Sale v. Branch Bank

1 Ala. 425

• Court: Supreme Court of Alabama
• Decided: June 15, 1840
• Status: Published

Opinion

COLLIER, C. J.

— The twenty-first section of the act recited in the note, expressly authorizes the State Bank and its Branches, to lend money on the terms stated, viz: on notes with at least two sureties, payable in one, two, and three years, with interest at seven per cent, per annum. And the twenty-sixth section of the same statute enacts, “ if any person who shall borrow any sum or sums under this act, shall fail to make payment of any instalment thereon, when it shall become due, the whole of the sum or sums so borrowed, or the entire balance remaining unpaid, shall become due, and the President of the proper Bank, shall at once proceed to collect the same.”

It is true that the notice does not allege that the note was due and unpaid at the time of the issuance of the same, but it sets out the note in hæc verba, from which it will appear that the first instalment was then past due. No allegation for non-payment was necessary; the law under which summary proceedings of this character are had, does not contemplate it; if the debt has been paid, it is incumbent on the defendant to show it. The first instalment, then, being due and unpaid, the defendant in error was entitled to recover the entire sum borrowed.

2. The only evidence furnished by the record that the certificate of the President of the Branch Bank was produced at the trial, is the recital in the judgment. There we are informed that the President certified that the plaintiffs in error, were indebted to the bank in two thousand dollars, and that the debt was really and bona fide the property of the bank; but how the debt was created, whether by bill, note, or otherwise, is not stated. In Roberts et al. v. The State Bank, 9 Porter’s Rep. 318, this court held that the certificate must identify, with reasonable certainty, the debt sought to be recovered; that a mere reference to if, by its amount, and which would quite as well apply to any other debt of the same amount, was too loose and indeterminate, to give to the court jurisdiction of the case in a summary proceeding. The certificate in the case at bar, is obnoxious to the objections stated, and consequently will not sustain the judgment of the County Court.

3. In respect to the last objection to the judgment, if it was rendered for too large a sum, it could not for that cause be reversed, but would be amendable under our statutes, authorizing amendments, as a clerical mistake at the costs of the plaintiffs in error. This assignment does not present the question, whether a paper, such as that on which this proceeding is founded, is pro-testable, so as to charge the principal with the fees of protest. However the lavt may be on the point, we do not hesitate to say, that the protest is wholly unnecessary, and the notarial fee a burthen imposed upon the debtor, without a corresponding benefit to the Bank.

For the error arising from the insufficient certificate, the judgment is reversed, and the case remanded.