65 Mo. 584 | Mo. | 1877
Suit on attachment bond. Gilbert, to whose use the suit was brought, recovered judgment, and the defendants appeal, assigning divers errors for its reversal.
II. As respects the sufficiency of the petition, it stated facts sufficient to constitute a cause of action, although the bond sued on was not filed with the petition, and no excuse given for non-filing. Burdsall v. Davies, 58 Mo. 138; which explains or qualifies the case of Rothwell v. Morgan, 37 Mo. 107. To the same effect is H. & St. J. R. R. Co. v. Knudson, 62 Mo. 569. For this reason the objection to the introduction of any evidence, and the motion in arrest were alike unfounded.
III. It is insisted that error occurred in admitting in evidence the copy of the bond declared on, because such copy was not certified as required by law. (1 Wag. Stat. 597 § 43). It is impossible to tell whether the copy was certified or not, as it has not been incor
IY. Respecting the exclusion of the amended attachment bond, (as it is called), when offered in evidence, as well as the refusal to admit the record evidence of the approval of such instrument, it is enough to say that conceding that the acceptance of the amended bond would supersede and render inoperative the original instrument; still such concession can avail the plaintiff nothing, as the instrument excluded was not a bond in consequence of not having the word “ seals ” incorporated in the body thereof. Eor the like reason there was no error in refusing a declaration of law to the effect that the bond sued on had been superseded by the unsealed instrument offered in evidence. The rights which Gilbert had acquired under and by virtue of an instrument authorized by law, could not be abrogated by one wholly unauthorized. Finding no error in the record, we affirm the judgment.
Aeeirmed.