Hart, Wiggin & Co. v. C. D. Kanady, 33 Tex. 720

Walker, J. This was an. action commenced in the district court by attachment, sued out upon the affidavit of one of plaintiffs’ attorneys, P. C. Jordan. The ordinary bond was given; the plaintiffs’ attorneys signing the name, Hart, Wiggin & Co., and giving themselves individually as securities. After the name, Hart, Wiggin & Co., a scroll was appended for a seal. Scrolls were also used after the individual names of the securities. The suit was commenced on the eleventh day of April, 1868.

On the fourth day of December, 1868, the appellee (defendant below) filed a general demurrer, and also a general denial to the plaintiffs’ cause of action. On the eleventh day of December, 1868, he filed a plea in abatement to the attachment. In this plea he sets up that he had served a notice on plaintiffs’ attorneys to produce the power of attorney, if any they had, under which they acted in signing the plaintiffs’ names to the attachment bond, and avers that they had produced no power of attorney under seal or otherwise, and he therefore denies that they had any power to act for the plaintiffs in the premises.

We think there was error in suffering this plea in abatement to be filed after the defendant had pleaded to the merits; at all events the plea in abatement tendered an issue of fact, which should have been determined by a jury, and it was error in the court to take it for granted that the plaintiffs’ attorneys had no power to bind their principal upon the mere allegation of the defendant, that they had failed to make proferí of their power to him. Pleas in abatement must be proved, and the onus probandi is upon him who pleads them.

These errors are sufficient to demand a reversal of the case, and it is perhaps unnecessary for us to travel further through the record ; but we think the defendant below might, under the proper pleadings, have insisted upon the production of the power under which the plaintiffs’ attorneys claim to act, and the legality of using a seal, or a scroll for a seal, by a partnership firm might have been put in question. It has been very aptly remarked that the seal comes from the common law, while partnerships belong to the law merchant and not to the common law.

Partnership firms have no common seal, and it is still held by this court, as in the case of Reed Bros. & Co., v. Joseph L. Levi & Co., 30 Texas Reports, p. 738, that an attachment bond executed under the fifth, tenth and twenty-sixth sections of the act of eleventh of March, 1848, must have seals, or scrolls used for seals to the names of the obligors.

In the second edition of Paschal’s Digest, note 1114 to Art. 5087, it is said there is a common error that this act renders seals unnecessary in bonds, attachments, bail, injunctions, appeals, writs ©f error, sequestrations, claims, and all other judicial proceedings; also in official bonds, and all other legal undertakings. It should be observed that Art. 5087, only excuses the want of a seal upon contracts, bonds, or conveyances affecting real or personal property.

But it has been decided in Poster against Champlin, 29 Texas Reports, page 22, and in Russell against McCampbell, Id. 37, that a seal is not necessary to-appeal and writ of error bonds. The object of this appeal is to review the rulings of the court in abating the attachment, and in so doing we have no difficulty in discovering the errors which we have already pointed out, and we1 have perhaps further shown that had the defendant managed his case below as he might have done, he would probably have saved the-trouble and expense of defending against this appeal.

We must not be understood as holding in this opinion that a motion to quash or dismiss an attachment cannot be made in limmer but such a motion is directed to the legal mind of the court, and is based upon matter apparent on the record^ whilst a plea in abatement raises questions of fact not apparent from the record, and must be inquired of by a jury. The judgment of the district court is reversed and the cause remanded. The records in Nos. 208 and 209 raise the same questions as are raised in this case, and the parties file their briefs with the request that they be considered in each of the three cases.

They will therefore all abide .the same judgment. Reversed and remanded.