State ex rel. Early v. Chamberlin

• Decision Date: 31 October 1873
• Citation: 54 Mo. 338
• Parties: STATE OF MISSOURI, to the use of JAMES G. EARLY, Respondent, v. THOMAS D. CHAMBERLIN, et al., Appellants.
• Court: Missouri Supreme Court

54 Mo. 338

STATE OF MISSOURI, to the use of JAMES G. EARLY, Respondent,

v.THOMAS D. CHAMBERLIN, et al., Appellants.

Supreme Court of Missouri.

October Term, 1873.

Appeal from St. Charles Circuit Court.

L. J. Dryden & E. A. Lewis, for Appellants.

I.The instrument sued on as a bond was not admissible in evidence.It was not a bond, having neither a seal nor a scrawl.(1 Bouv.LawDic., 200;Drake Attach., § 125;Moreau vs. Detchemendy, 18 Mo., 522;State vs. Thompson, 49 Mo. 188;Grimsley vs. Riley's Admr., 5 Mo., 280.)

Frank T. Williams, for Respondent.

I.The only form prescribed by statute for attachment bonds does not require a seal nor scrawl thereon.(Wagn. Stat., 194, § 68.)This form is prescribed for actions before justices of the peace, but the principles and formula in attachments there are the same as in other courts.

II.The principal cannot take advantage of the omission, or of any other defect in the bond, after having had the advantage of it.(Drake Attach., § 124.)

ADAMS, Judge, delivered the opinion of the court.

This was an action on an attachment bond, which had been executed by the defendants in an attachment suit in the Circuit Court against the plaintiff.

The only question discussed here is, whether the attachment bond was not a nullity, because it was not sealed, either by affixing the common law seal by a tenacious substance, or by a scrawl by way of seal as allowed by our statute.

In State ex rel. West vs. Thompson, 49 Mo., 188, this court held an attachment bond, given under the landlord and tenant act, void for want of a seal.

In ordinary attachment suits before a justice of the peace the seal is omitted in the form prescribed by the statute.

This attachment, however, was commenced in the Circuit Court, and it may be conceded that, under the ruling laid down in the case referred to, a seal was necessary to make this a good bond.If that be so, the seal, or a scrawl by way of seal, was an essential requisite to its proper execution.But this point is not presented by the record.The answer of the defendants did not deny the execution of the bond under oath.Where an action is founded on an instrument of writing, charged to have been executed by the defendant, and not alleged to be lost or destroyed, its execution must be taken as confessed under our code of practice, unless he deny the execution by answer verified by affidavit.The language of the statute is: “When any petition or other pleading shall be. founded upon any...