P. & M. Bank of Mobile v. King, Upson & Co.

upon the principal, in such case, to show that the authority has been abused, or transcended.

3. The statement contained in a notarial protest, that the notary had sent notices of the dishonor of the paper, addressed to the parties at a particular place, is no proof, even on a demurrer to evidence, that the notices were properly directed; this fact must be shown by proof, independent of the protest.

4. Semble: it cannot be intended, because one is authorized to indorse notes, that he is also an agent for the purpose of receiving notices of their dishonor.

Writ of Error to the Circuit Court of Mobile.

THIS was a suit by notice and motion against the defendants, as indorsers of a promissory note of the following tenor, viz: "$3,700 Mobile, August 23d, 1838.

Ninety days after date, we promise to pay King, Upson & Co., or order, thirty-seven hundred dollars, for value received, negotiable and payable at the Planters' and Merchants' Bank of Mobile. L. & C. C. LANGDON & Co." Indorsed thus: "King, Upson & Co. per C. C. Langdon; Rob't E. Love, per Lea & Langdon, att'ys, Lea & Langdon."

The defendants pleaded non-assumpsit, which was verified by affidavit, and thereupon the cause was submitted to the jury. To make out their case, the plaintiff adduced the note, of which the above is a copy, together with the protest of a Notary Public for non-payment, of which it is certified that the indorsers had due notice in writing, directed by the Notary, "to the several indorsers, and left at the office of Lea & Langdon, also to the first and second indorsers at Marion, Perry county, Alabama, and put in the post office." The plaintiff also gave in evidence a letter of attorney, purporting to be made by the defendants, bearing date the 7th day of April, 1838, by which they appointed Charles C. Langdon their attorney, with full power and authority, for them, and in their names, "to draw and indorse promissory notes, to accept, draw and indorse bills of exchange, and to sign any check or checks, order or orders, for any money or effects, which we now have, or may hereafter have, deposited in the Planters' and Merchants' Bank of Mobile," &c.

P. & M. Bank of Mobile v. King, Upson & Co.

The letter of attorney is attested by a subscribing witness, and on it is written a certificate of J. H. Adams, a Notary Public, bearing even date therewith, in which it is certified that the defendants acknowledged that they signed, sealed and acknowledged the same.

It was also proved, that the note in question was really and bona fide the property of the Bank, at the time the notice issued. The judgment entry recites further, that "the plaintiff also proved the execution of the note, on which motion was made for judgment, and further proved the execution of the power of attorney."

This was all the evidence in the cause, and the defendants demurred to it; thereupon the jury were discharged, and a judgment rendered in favor of the defendants for costs.

J. A. CAMPBELL, for the plaintiff. The indorsement of the note was prima facie within the authority conferred by the defendants upon their attorney. If the authority was transcended, it devolved upon the defendants to prove it; in the absence of such proof, the plaintiff was entitled to recover. [7 Ala. Rep. 19.].

No counsel appeared for the defendants.

COLLIER, C. is shown by the evidence demurred to, that the letter of attorney from the defendants to C. C. Langdon, who appears to have indorsed the note in their names, was proved; and it is said that "the execution of the note on which the motion was made for judgment," was also proved. The signature of the makers was not a point put in issue by the pleadings; nor can it with propriety be said, that the motion was submitted on the note. While it would be proper to look to the note to ascertain the nature and extent of the indorser's liability, the recovery against them was sought upon their indorsement. The plea negatived the indorsement, and we think the reasonable inference is, that the indorsement, instead of the execution of the note, was proved. Taking this to be so, and there can be no question but the evidence made out a case which prima facie entitled the

P. & M. Bank of Mobile v. King, Upson & Co.

plaintiff to a judgment upon the demurrer, if the act done by the attorney is within the scope of the powers conferred upon him, and the notice of the dishonor of the note was sufficient to charge the indorsers.

The authority conferred in the present case, if not identical with, is not materially variant from, that considered in Knapp v. McBride & Norman, 7 Ala. Rep. 19. We there held, that the attorney was invested with authority to indorse notes on account of his principals; and where a note of which they were ostensibly the legal proprietors, was indorsed by their attorney, in their names, it would be intended, that the authority was not abused or transcended. If the reverse was true, it devolved upon the defendants to establish it by proof. See also, Wallace v. The Branch Bank at Mobile, 1 Ala. Rep. 565.

It does not appear that the defendants resided at the place to which the notice was addressed to them. Would a jury be warranted in inferring from the recital in the protest that the Notary gave the notice the proper direction? It may be conceded, that they are rarely mistaken as to the residence of the parties to be charged, yet it cannot be predicated of the usual accuracy with which they do business, that they have acted upon proper information in the case at bar. In cases of demurrer to evidence, we have held, that the judgment would not be reversed for a defect of proof which might have been supplied, or the truth have been shown, if the party demurring had addressed to a witness produced by his adversary, a single inquiry.

The principle on which these decisions rest, is not applicable to the present case. Here no oral testimony was offered, so that the defendant could not have shown, by the examination of the plaintiff's witnesses, what was the truth in respect to the point we are considering. The protest can only be evidence of what appears on its face-it is so declared by statute; but it cannot prove that which it does not express, and which is not inferrable from its terms.

It would be carrying the doctrine of presumption to its utmost verge to intend, that the Langdon of the firm of Lea & Langdon was the C. C. Langdon, who indorsed the note in question as the defendants' attorney. But if this presump

The State v. Glaze.

tion be perfectly legitimate, does it follow that an authority to indorse notes makes one an agent to receive notices of their dishonor? We think not. The agencies involve different powers and duties.

There was, then, such a defect of proof that the plaintiff was not entitled to recover. The judgment is consequently affirmed.

THE STATE v. GLAZE.

1. An indictment for adultery is good, although the offence is not laid with a continuendo.

2. If one of the persons charged with this offence is known by the name charged in the indictment, the other is not entitled to an acquittal by showing that is not the true name.

3. Although the act of 1807, authorizing the judge to respite the sentence, when he reserves questions as novel and difficult, may yet be in force, it is now proper to render the judgment in conformity with the 1st section, 13th chapter, Penal Code.

Questions referred as novel and difficult, by the Circuit Court of Tuskaloosa.

THE defendant, Glaze, was indicted at the fall term, 1843, for living in adultery with one Cynthia Gage. The charge in the indictment is, "that Thomas Glaze and Cynthia Gage, late of the county aforesaid, on the 10th day of September, 1843, in the county aforesaid, did live together in adultery."

At the trial, the defendant, Glaze, only, being on trial, he moved to quash the indictment, which motion was overruled. He then pleaded not guilty, and in the course of the trial, . amongst other matters, the State proved, that the person named in the indictment was generally called Mrs. Gage; one witness stated the name was Cynthia, but two said it

The State v. Glaze.

was Sarah Ann. The defendant asked the court to instruct the jury, that unless the State proved the name of the female, to be as laid in the indictment, they must find the defendant not guilty. The court refused this, and charged the jury, that if the woman was sometimes called, and known by the name of Cynthia, although her real name was Sarah Ann, this was sufficient, if the charge was proved to their satisfaction. This question was reserved by the presiding Judge as novel, &c.

P. MARTIN and B. W. HUNTINGTON, for the defendant, insisted

1. The indictment is defective in not being laid with a continuendo. [Archbold C. P. 27.]

2. If the true name of the female is Sarah Ann, instead of Cynthia, there is a variance between the proof and the allegation. Archbold C. P. 30, 31; 2 Hawk. c. 25, § 71, 72; 2 East P. C. 651, 781.]

ATTORNEY GENERAL, contra, argued—

1. When several are indicted together, none but the party misnamed can plead, or otherwise take advantage of the misnomer. [1 Chit. C. L. 215, and cases there cited.]

2. But if the misnomer could avoid the indictment, the proof repelled the idea, for no criminal would be convicted, if more names than one would avoid an indictment. If the female had pleaded a misnomer, the proof that she was known by the name used in the pleading, would hold her. [2 Hale P. C. 177; 2 Term, 291; Hawk. 132, c. 25, § 72; 1 Overton, 434; 2 Hale, 990.]

3. The indictment is sufficient, without a continuendo. [The State v. Hinton, 6 Ala. Rep. 864.]

GOLDTHWAITE, J.-1. This case requires but the citation of other adjudications to dispose of it. If the correctness of the indictment was a question referred, which seems not to have been done, the decision made in Hinton's case, 6 Ala. Rep. 864, is conclusive. We there held, that the term adultery, was the illicit commerce of two persons of different sex, one of those being married to another person.

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