Read Bros. & Co. v. Joseph L. Levy & Co.

• Decision Date: 31 January 1868
• Citation: 30 Tex. 738
• Parties: READ BROTHERS & CO. v. JOSEPH L. LEVY & CO.
• Court: Texas Supreme Court

30 Tex. 738

READ BROTHERS & CO.

v.JOSEPH L. LEVY & CO.

Supreme Court of Texas.

January, 1868.

An attachment bond, executed under the 5th, 10th, and 26th sections of the act of 11th March, 1848, to which there is neither scroll nor seal, was rightly quashed on motion for want of a sufficient bond. Pas. Dig. arts. 143, 148, 163.

The first section of the common-law act, 20th January, 1840, about conveyances, reads as follows: “The common law of England (so far as it is not inconsistent with the constitution or the acts of congress now in force) shall, together with such acts, be the rule of decision in this republic, and shall continue in full force until altered or repealed by congress.” Paschal's Dig. art. 978, note 418. The 1st section of the act of 5th February, 1840, reads as follows: “Any instrument to which the person making the same shall affix a scroll, by way of seal, shall be adjudged and holden to be of the same force and obligation as if it were actually sealed: Provided, The person making the same shall, in the body of the instrument, recognize such scroll as having been affixed by way of seal.” Pas. Dig. art. 997, note 420. Each of these acts took effect on the 16th March, 1840.

On the 11th of March, 1848, the legislature passed the law regulating attachments, the 26th section whereof expressly recognizes scrolls as seals. Pas. Dig. art. 163.

On 2d February, 1858, the legislature passed the act to dispense with seals in certain cases. It reads as follows: “No scroll or private seal shall be necessary to the validity of any contract, bond, or conveyance, whether respecting real or personal property, except such as are made by corporations; nor shall the addition or omission of a scroll or seal in any way affect the force and effect of the same; and every contract in writing hereafter made shall be held to import a consideration as fully and in the same manner as sealed instruments have heretofore done.” Pas. Dig. art. 5087, note 1114. The object of this law was to dispense with a mere formality in the execution of a certain class of contracts (private acts), not to change the law regulating proceedings in the district courts, which are public acts, not to be repealed by a general law, which might be subject to the constitutional objection of embracing more objects than one. Pas. Dig. State Const. art. VII, sec. 24, note 199.

It is not the province of the court to improve, polish, or refine the laws, but to construe them as they are.

The case of Champlin v. Foster, 29 Tex. 22, which involved an appeal bond, may be distinguished from this.

ERROR from Victoria. The case was tried before Hon. J. J. HOLT, one of the district judges.

The facts are sufficiently stated in the opinion of the court.

Glass, Crosland & Callender, for plaintiffs in error. This suit was brought by the plaintiffs in error against the defendants in error, upon a promissory note, and an original attachment was sued out. The defendants moved to quash the attachment for want of a sufficient bond, the only defect alleged being the want of a seal or scroll. The district court held this to be a fatal defect, and quashed the attachment. This ruling of the court is assigned for error by the plaintiffs in error, who rely upon it for the reversal of the judgment in that regard.

Upon this point we think it only necessary to refer the court to the case of Champlin v. Foster, 29 Tex. 22, from Calhoun county, decided at the present term, in which it was held, after full argument, that no seal or scroll is necessary in statutory or other bonds.

No brief for the defendants in error has been furnished to the reporter.

LINDSAY, J.

The plaintiffs in error instituted their suit against the defendants in error in the district court of Victoria county, on a promissory note, bearing date the 22d November, 1865, due four months after date, for the sum of $1,085.50. The suit was brought on the 19th day of June, 1866. The petition alleged that the defendants had transferred their property for the purpose of defrauding their creditors, and they would probably thereby lose their debt. The petition was sworn to, and in the affidavit it was averred that a writ of attachment was not sued out for the purpose of injuring the defendants. On the same day a bond was executed by the sureties of the plaintiffs, for the purpose of procuring the issuance of the writ of attachment, which was accordingly done, placed in the hands of the sheriff, and levied by him upon various articles of merchandise, of which he made due return. At the return term of the district court the attorneys for the defendants entered and filed a motion to quash the writ of attachment for want of a sufficient bond to authorize its issuance. It appears that there was neither seal nor scroll to the bond executed by the sureties, and for this cause the court below sustained the motion and quashed the writ of attachment. The case was then tried, and a final judgment was rendered in favor of the plaintiffs for the amount claimed in their petition. From this judgment they bring the case here by writ of error. The only error assigned in the record is the quashing of the writ of attachment upon the alleged ground of the insufficiency of the bond for want of a seal or scroll.

By an act of the congress of the republic of Texas, passed January 20, 1840, it was declared, “the common law of England (so far as it is not inconsistent with the constitution or the acts of congress now in force) shall, together with such acts, be the rule of decision in this republic, and shall continue in...