Reed v. Scott

30 Ala. 640

• Court: Supreme Court of Alabama
• Decided: June 15, 1857
• Status: Published

Opinion

"WALKER, J.

The distinction between sealed and unsealed instruments is not altogether destroyed by the Code. To the word promissory note the law attaches a distinct meaning, which does not include a bond, or instrument under seal. Under the mercantile law and the statute of Anne, it was held, that the instrument’s being under seal deprived it of its character of a promissory note, and, consequently, of its negotiable character.— Sayre v. Lucas, 2 Stewart, 259; Clark v. F. M. C. of Benton, 15 Wendell, 256; 1 Chitty on Pl. 15 ; Story on Bills, 76, § 61; Story on Prom. Notes, 56, § 55; Farmers’ & Mechanics’ Bank of Phila. v. Greiner, 2 S. & R. 114. A bond is sometimes designated as a note under seal, and bill single is sometimes used to designate indiscriminately an instrument without condition, whether with or without a seal. — 5 Com. Digest, 194, Obligation, C; Bouvier’s Law Dic., Bill Single. But a bond cannot, with strict legal propriety, be termed a promissory note; and they have always been distinguishable in the incidents which attach to them. The instrument sued upon, being described as a promissory note, was not the instrument offered in evidence, because the latter is a bond. The court did not, therefore, err in the rejection __of the evidence when offered.

In the case of Harris v. Hillman, 26 Ala. 380, this court approved the action of the circuit court, in refusing to allow an action for the recovery of a slave, corresponding with the old action of detinue, to be changed by amendment into an action for the recovery of damages for the conversion of the slave. It is remarked in the decision of that case, that the Code has carefully preserved the well-known boundaries of the actions of trover and deti-nue; that the judgments in the two actions are different, and that the same testimony will not, in all cases, sustain both actions. On the contrary, the Code has obliterated the boundary lines between the actions of debt and as-sumpsit; and the judgment for causes of action which, at common law, were recoverable under those different forms of action, is under the Code the same. Therefore, the reasoning upon which the decision of Harris v. Hillman is based, has no application to the question of amendment in this case. Following the late decisions of this court in the cases of Grimm’s Adm’rs v. Crawford, and Farrow v. Smith, at the last term, we must hold, that the circuit court erred in refusing to permit the plaintiff to amend his complaint, by inserting a correct description of the instrument sued on.

Judgment must be here rendered, setting aside the non-suit in the court below, and the cause must be remanded.

Hice, O. J., not sitting.