Glasscock v. Glasscock

8 Mo. 577 | Mo. | 1844

Scott, J.,

delivered the opinion of Urn Court.

The plaintiff in error sued the defendants in error, by petition in debt on two notes set out in the petition. The instruments on which the suit was brought were not actually sealed, but io them there were scrawls annexed, and within these scrawls the word “seal” was written in full. There was no recognition of the scrawl as a seal in the body of the instrument. On the trial, the court below refused to permit the notes to be read in evidence, because they were deemed to be bonds, and therefore varied from the writings set out in the petition, which were described as notes.

The court, during the progress of the trial, permitted the plaintiff to amend his petition in a matter of form; this was objected to; the plaintiff took a non-suit and moved to set it aside, which motion being overruled, lie brought his writ of error. '

In the case of Cartmill vs. Hopkins, 2 Mo. Rep., it was held, that- to make a scrawl a seal it was neoessary that it should appear that the maker- intended it as such, by some expression in the body of the instruments to which it was annexed. This decision has been adhered to ever since, and we are not now prepared to depart from it.

The construction put upon our statute, making a writing, to which there was annexed a scrawl by way of seal, a sealed instrument, was adopted in analogy to the interpretation put upon a similar law of the State of Virginia. Judge Tucker, of that State, in one of the early cases on this subject, placed this construction, on the ground that it was necessary, in order to prevent unsealed instruments from being converted into sealed ones by the bare annexation of a scrawl, which could not be so easily affected if the scrawl was recognized as a seal in the body of the instrument, The word seal being written within the scrawl, does not show that the instrument was intended to be a sealed one. That can only be shown by what appears on the face of the instrument. This case is neither within the letter nor spirit of the former decisions, the law of which seems to have been recognized by the general assembly, at the late revision of a change in the phraseology of the former statute, adopting those-decisions.

This Court cán see no error in permitting the. amendments to be made by the plaintiff, as they were formal, although they were made during the progress of the trial. This would seem to be a matter entirely in the discretion of the court below.

The other judges concurring, the judgment will be reversed, and the cause remanded,-