Walker v. Bentley

Decided December 15, 1879

Supreme Court of Alabama · decided 1879-12-15

Tried before the, Hon. W. B. Wood. This action was brought by Moses Bentley against James Walker, and was commenced before a justice of the peace, on the 6th August, 1873; the cause of action being a promissory note for $128.86, executed by the defendant, dated February 9th, 1872, and payable to the plaintiff or order one day after date, on which the balance due was $56.86, after deducting the credits indorsed.

Relies on Wimberly v. Dallas

Decided 1879-12-15

BBICKELL, C. J.

¶1When a promissory note, or other written instrument, is offered in evidence under the plea of *94set-off, or other plea in bar, tbe execution or assignment thereof can be put in issue only by a replication verified by affidavit. — Code of 1876, § 8037. If such replication is not filed, the execution or assignment thereof is an admitted fact, for all tbe purposes of tbe trial. That- a promissory note purporting to be signed by tbe maker with a mark only, and which is not attested, is tbe matter of the plea, is not an exception to the statute.— Wimberly v. Dallas, 52 Ala. 196.

¶2Eeversed and remanded.