Branch Bank at Decatur v. Douglass. BRANCH BANK AT DECATUR v. DOUGLASS. 1. The clause in the charter of the Decatur Branch Bank, which makes it unlawful for a member of the general assembly to become indorser for any other person, does not discharge a member from liability on a note to which he is a surety. 2. The act of 1840, only makes it unlawful for a member to be the indorser or surety of a note discounted by the State Bank or any of its Branches, which is not his own paper, or for his own benefit, and a plea in avoidance of a note, signed by a member, as surety, is bad, if it does not negative these facts. Writ of Error to the County Court of Morgan. MOTION by the Bank, to have judgment against Douglass for the amount of a promissory note dated at Florence, Ala.. October 14, 1840, payable to the Bank six months after its date, for $802 80, executed by one Bromley as principal, and by Douglass and one Carrol as sureties. The defendant pleaded-1. Non assumpsit. 2. Actio non, because he says that he, the defendant, at the time of mak ing, &c. to wit: on the 14th day of October, 1840, was a member of the General Assembly of the State of Alabama,' to wit: a member of the House of Representatives of the General Assembly of the State of Alabama, from the county of Lauderdale in said State, and this he is ready to verify; wherefore, &c. The Bank demurred to the last plea, and the court overruling the demurrer, gave judgment for the defendant. This is now assigned as error. L. PRYOR, for the plaintiff in error, insisted that the sta tute which prohibits members of the assembly from being sureties, is' directory only, and does not avoid the security. Branch Bank at Decatur v. Douglass, D. C. HUMPHREYS, contra. GOLDTHWAITE, J.-1. Our attention has not been specifically called by the counsel on either side to the enactments supposed to bear on this cause; but we presume the tenth section of the charter of the Decatur Branch, and the act of 1840, are those referred to. The first of these provides, that' "it shall not be lawful for the President, directors, or cashier, or other officer of said Branch Bank, or any member of the general assembly, to become indorsers for each other, or any. other person or persons, to the said Branch Bank," [Dig. 96, 10.] The other directs-1. That "it shall not be lawful for any member of the general assembly to become indorser, or acceptor of any bill, negotiable at the Bank of the State of Alabama, or any of the Branches thereof, unless on his own paper, and for his own benefit. 2. No member, &c. shall be security or indorser, except as prescribed in the first section on any note discounted by the said State Bank, or any of the Branches thereof." (Dig. 111, §§ 41, 42.] The section quoted from the charter, may be dismissed. with the remark, that it does not in terms, include a mere surety, and therefore the construction, when invoked to destroy a contract, must be, that only such as are specified were intended to be prohibited, even if it was conceded this provision of the charter would discharge a member of the assembly, or other of the designated officers, from liability upon a note or bill indorsed by them. In Bates v. The Branch B'k' at Mobile, 2 Ala. Rep. 689, we held that sureties and indorsers were not equivalent terms, within the acts for the relief of sureties, and the reason is equally strong against considering them so in the present case. 2. Independent of this, it is very clear the act of 1840 repeals, to some extent, the inhibition of the charter, while at the same time it extends the prohibition against members of the assembly becoming sureties or indorsers, unless on paper for his own benefit; but then only when the paper is discounted by the bank. If then, it is supposed the principle decided in Bates & Hines v. The State Bank, 2 Ala. Rep. 451, does not cover this case, as to which, at this time we express no opinion, it is evident the plea is defective in not averring that James v. Stewart & Rainey. the note was discounted by the Bank, and not executed by the defendant as his own paper, and for his own benefit. The only fact averred is, that at the execution of the note, the defendant was a member of the general assembly, but this alone does not entitle him to raise the question of invalidity, (if it is conceded he might do so under particular circumstances,) because the note may have been received in some other way than being discounted, or it may have been his own paper, or for his own benefit. The demurrer to the plea, instead of being overruled, should have been sustained. Judgment reversed and remanded. JAMES v. STEWART & RAINEY. 1. Where a married woman sues alone, in a case where she might join in Error to the Circuit Court of Limestone. TRESPASS quare clausum fregit, by the plaintiff, against the defendant in error: The defendant pleaded not guilty, liberum tenementum, and justification. From a bill of exceptions, it appears, that the defendant offered to show that the plaintiff was a feme covert, which was objected to under the pleadings, but admitted by the court, and the plaintiff excepted. Evidence was then offered, that the plaintiff was the wife of Ambrose James, but that in James v. Stewart & Rainey. the spring of 1843 a separation took place between them, and that in the fall of the same year, a short time previous to the trespass complained of, the husband left the State, and has been heard of but once since, and was then in the State of Missouri. The plaintiff then proposed to show, that he had left the State, with the avowed intention of never returning, or living with her again, and that he had abjured the State, which evidence the court declared immaterial, and on motion of the defendant non-suited the plaintiff; to all which the plaintiff excepted, and now assigns as error. JONES, for plaintiff in error. Whenever a feme covert may or should be joined with her husband, the coverture must be pleaded in abatement, and not in bar. [1 Chit Pl. 387.] For all torts done to the wife, and all contracts with her, she should be joined with her husband. [10 Johns. 49; 6 Term 265; 1 Strange, 230; 1 Coke Lit. 350, a N. 1; Cro. Eliz. 61; Cro. Jas. 644; 1 Chit. P. 20, 37; 1 M. & S. 180; 2 Id. 393; 7 Ala. 525.] When a married woman is abandoned by her husband, and he has abjured the State, she may sue, and be sued alone, as a feme sole. [1 Peters, 108; 1 Vernon, 104; 1 Aikin, 174; 2 Esp. 554; 4 Ib. 27; 1 Hill S. C. 8; 2 Kent's Com. 154; 4 McC. 148; 1 B. §• P. 359.] ORMOND, J.-It is laid down by Mr. Chitty in his Pleadings, 1 vol. 23, that where a married woman sues alone,, but might be joined in the action with her husband, the objection can only be taken by plea in abatement; but that when a feme covert improperly sues alone, having no legal right of action whatever, she will be non-suited. This doctrine is fully sustained by the cases of Milner v. Milnes, 3 Term, 627, and Caudell v. Shaw, 4 Id. 361. According to these authorities, the court erred in non-suiting the plaintiff. It does not to be sure appear, what was the nature of her interest in the lands, for a trespass upon which the suit was brought, but the necessary inference from the record is, that she had a legal interest in the premises, as otherwise there would have James v. Stewart & Rainey. been no necessity for resorting to this objection, the fact of her coverture, as it appears, having been brought out by the defendants, after she had made out a prima facie case. Το justify the non-suit, it should have appeared upon the record, that she had no legal right of action wharever. The question, of what will constitute abjuretion from the State, was somewhat considered in Arthur & Corprew v. Broadnax, 3 Ala. 557, but it was not necessary to be decided, as the point did not necessarily arise upon the record. There can be no doubt, that where the husband has abjured the realm, the wife may sue, or be sued, as a feme sole. What will constitute such abjuration, is a matter of great consequence in a government like ours, consisting of separate, independǝnt States, united under one Federal head. It could not be tolerated that the mere departure of the husband beyond the line of the State, (frequently an imaginary one,) should confer on the wife the right of a feme sole, or expose her to its disabilities. So on the other hand, it would seem, that in our wide spread empire, the husband might, by departure from the State, as effectually abjure the realm, for all the purposes of this question, as if he had gone into voluntary exile, in a foreign country. Perhaps the true solution of the question, will be a matter of fact for the jury under all the circumstances of the case, depending not on the fact whether the husband has merely crossed the line of the State, or gone in quest of adventure, to the wilds of Oregon, but upon the intention of permanent abandonment of the wife, accompanied by departure from the State, with the design of not again returning. But as it is not absolutely necessary that the point should be decided, in this case, at the present time, we prefer to leave it on this footing. Let the judgment be reversed, and the cause remanded. |