McLean v. Wilson

¶1delivered the opinion of the Court:

¶2This was an action of debt, brought in the Gallatin Circuit Court, by McLean against Wilson, (who was surety for James Cain,) on an injunction bond, for the penal sum of $108, The defendant, Wilson, craved oyer of the bond, and demurred generally. The demurrer was sustained by the Court, and judgment rendered against the plaintiff thereon.

¶3It is assigned for error that the Court erred in sustaining the demurrer.

¶4The only question raised by this assignment of error, is, whether the bond declared on, and set out on oyer, was sealed by the defendant, Wilson.

¶5The bond is described, on its face, as executed under the hands and seals of the signers, Cain and Wilson, and there appears a scrawl set opposite the signature of the principal, Cain, who first signs the bond, but none opposite the name of Wilson.

¶6This case falls directly within the rule decided by this Court, at the present term, in the case of Davis v. Burton et al. (1) It was there decided, that all the signers of an instrument, indicating upon its face an intention to seal it, adopted any seal or scrawl that may be annexed to the name of any one.

¶7The Court, then, erred in sustaining the demurrer.

¶8For this error, the judgment of the Court below is reversed, and this cause remanded to the Circut Court of Gallatin County, with directions to permit the defendant in error to withdraw his demurrer, and plead over, and for that Court to proceed and try the cause, &c.

¶9Judgment reversed.