Yarborough v. . Monday

13 N.C. 493

• Court: Supreme Court of North Carolina
• Decided: December 5, 1830
• Status: Published

Opinion

FROM PERSON. The nonsuit, I think, was premature. I understand it to have been ordered upon the production of the instrument, and before proof by the plaintiff that the defendant had not sealed it. I do not doubt that more than one person may adopt the same seal. But that is to be shown by evidence. Upon the face of the paper the seal is to be taken as that of a person whose name is next to, or written to it. Such is the course of business. But yet the defendant might show that it was his, and the plaintiff might rebut that by other evidence. In which event, it would be a case for the jury. But I understand the record to state in effect that the Court ruled upon the face of the paper in exclusion of all evidence. I do not concur in that, because I conceive (494) it was a simple contract or a deed, as the defendant did or did not adopt the seal at the time of executing. Unless he acknowledge it as his seal, it was not his seal. It may be that it was executed by the parties at different times. The seal may have been affixed after the first signature, when clearly it would be that of the party making it. Or one may have affixed it and the other afterwards signed. It seems to to me that in such case a mere signature is not to be taken as a sealing, unless the party declare the seal already made to be his own.

HALL, J., concurred.