Ex parte First Nat. Bank of Ozark

• Decision Date: 09 October 1924
• Docket Number: 4 Div. 160
• Citation: 212 Ala. 274,102 So. 371
• Parties: Ex parte FIRST NAT. BANK OF OZARK.
• Court: Alabama Supreme Court

102 So. 371

212 Ala. 274

Ex parte FIRST NAT. BANK OF OZARK.

4 Div. 160

Supreme Court of Alabama

October 9, 1924

Rehearing Denied Dec. 4, 1924

Certiorari to Court of Appeals.

The First National Bank of Ozark sued R.A. Caton on a promissory note, and from a judgment for plaintiff defendant appealed to the Court of Appeals. The judgment being there reversed and the cause remanded, the plaintiff now petitions for certiorari to the Court of Appeals to review and revise the judgment and decisions of that court in the case of Caton v. First National Bank of Ozark, 102 So. 369. Writ granted. Reversed and remanded.

W.S Huey, of Enterprise, and E.O. Baldwin, of Andalusia, for petitioner.

A Whaley, of Andalusia, opposed.

SOMERVILLE J.

Prior to the adoption in this state of the Uniform Negotiable Instruments Law (Code 1907, §§ 4958-5149; Code 1923, §§ 9029-9222), this court had always recognized the distinctions impressed by the common law and the Statute of Anne on instruments given under seal, and, though a promise to pay money were in the exact form of a negotiable promissory note it was held that its execution under the seal of the maker destroyed its character in law as a promissory note, and made of it an obligation legally different and distinct, a specialty, usually called a bill single or writing obligatory, carrying a conclusive presumption of a valid consideration for the obligation to pay, and not negotiable under the principles of the law merchant, or the provisions of the Statute of Anne, making promissory notes negotiable. Reed v. Scott, 30 Ala. 640; Sayre v. Lucas, 2 Stew. 259, 20 Am.Dec. 33; McCrummen v Campbell, 82 Ala. 566, 2 So. 482; Muse v. Dantzler, 85 Ala. 359, 5 So. 178; Phillips v. Americus Guano Co.,

110 Ala. 521, 18 So. 104; Davis v. McWhorter, 122 Ala. 570, 26 So. 119.

So rigorously was this distinction preserved in our system of pleading that a declaration on a promissory note, eo nomine, could not be supported by proof of a promissory note under seal, though otherwise identical with the instrument declared on, and vice versa. Authorities supra.

The nonimpeachability of the consideration of a sealed instrument was abrogated by statute in this state a century ago. Aikin's Dig. 283, § 137; Code 1852, § 2278; Code 1923, § 7662; Litchfield v. Falconer, 2 Ala. 280, 282. But, by virtue of the ancient law, promissory notes under seal were still regarded as specialties, and were held not to be promissory notes, and hence were not governed by the principles of the mercantile law, nor by the provisions of statutes relating to promissory notes.

The Uniform Negotiable Instruments Law (section 6. subd. [4]; Code 1907, § 4963; Code 1923, § 9034, subd. [4]) provides that the validity and negotiable character of an instrument are not affected by the fact that it bears a seal. Section 184 of the law (Code 1907, § 5131; Code 1923, § 9202) declares that:

"A negotiable promissory note within the meaning of this chapter is an unconditional promise in writing made by one person to another, signed by the maker, engaging to pay on demand or at a fixed or determinable future time, a sum certain in money to order or to bearer."

So far as the substance and effect of the instrument is concerned there remains no distinction between a sealed and an unsealed promissory note. The sealed note is no longer a specialty with peculiar incidents, but is in fact a negotiable promissory note, differing in no wise from other promissory notes except as to the limitation of action thereon, which, as to...