Glasscock v. Glasscock

• Decision Date: 31 January 1844
• Citation: 8 Mo. 577
• Court: Missouri Supreme Court
• Parties: GLASSCOCK v. GLASSCOCK & DODD.

8 Mo. 577

GLASSCOCK

v.GLASSCOCK & DODD.

Supreme Court of Missouri.

January Term, 1844.

ERROR TO RALLS CIRCUIT COURT.

WELLS and CAMPBELL, for Plaintiff. The question involved in this case is: ““““Were the instruments of writing on which the suit was founded notes or bonds.” In this case, the writings did not purport to be sealed, either in the body of the paper nor in the testatum, but to each signature was attached the word ““seal,” with a scrawl around it. There was no seal made by wax or by any actual impression, and the question presents itself, whether it can be taken as a seal under our statute. The plaintiff assigns for error the decision of the Circuit Court, in deciding that the said instruments of writing were bonds and not notes, and in excluding them from being read as evidence in the cause. We contend, on the part of the plaintiff, that this question has been settled by a series of decisions of this court, as may be seen by reference to the following cases: Cartmill v. Hopkins, 2 Mo. R. 220; Boynton v. Reynolds, 3 Mo. R. 80; Grimsley v. Administrator of Riley, 5 Mo. R. 281. See, also, 1 Wash. R. 270; 1 Munford's R. 490; 4 ibid. 442. On motion of the plaintiff, the court permitted to be amended his petition, by inserting the words, “witness my hand,” which had been inadvertently omitted in writing the original petition. This was a correction of a mere clerical error, which any court would not hesitate to permit, and by which no principle of law was violated, and no injustice done to the defendants. This amendment is fully warranted by our statute of jeofails and amendments, and is in conformity to the liberal and reasonable course of practice that aims at substantial justice to the parties. No argument is needed to prove that this objection on the part of the defendants is untenable.

SCOTT, J.

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 to 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, he brought his writ of error. In the case of Cartmill v. Hopkins, 2 Mo. R. 220, it was held, that to make a scrawl a seal it was necessary that it should appear that the maker intended it as such, by some...