
    Scruggs vs. Brackin.
    A court upon the trial of a cause cannot order and adjudge a non-suit to be entered for the misconception of the action, or for want of testimony. The party alone has the right to decide whether he will take a non-suit, or have a trial.
    An instrument which in its body does not purport to be sealed, but which has a scroll affixed to the name of the signer, is a sealed instrument within the meaning of our act of 1801.
    This is an action of assumpsit brought to recover the price paid for a negro, on a warranty that she was a slave for life. The breach of the warranty assigned is, that she was at the time of the sale a free woman, and has since recovered her freedom. The defendant pleaded non-assumpsit, upon which plea issue was .taken. On the trial of the cause in the circuit court, the plaintiff read a paper as evidence of the warrranty, in these words: “ Know all men by these presents, that I, John Brackin, of Sumner county and state of Tennessee, have this, day bargained, sold and delivered unto Edward Scruggs, of Davidson county, Tennessee, one negro woman, Fanny, a slave for life, for the sum of three hundred and forty dollars, the receipt whereof is hereby acknowledged.
    ■“ Nashville, 23d November 1820.
    “John Brackin, (seal.)”
    
    
      To the reading of this paper in evidence, the counsel for the defendant objected. The court sustained the objection: thereupon the defendant’s counsel moved the court to enter a non-suit in said cause. After argument of said motion, the court made the following judgment: “ It is considered by the court, that the plaintiff has misconceived his action, for that an action of covenant should have been brought upon the bill of sale, and that no parol evidence could be heard in support of the action of assumpsit, and that the action would not lie; and thereupon the court orders that the plaintiff shall be called, and a non-suit entered;” which was done. From this decision of the court the plaintiff appealed in error to this court.
    
      J. B. Yerger, for plaintiff in error.
    J. This judgment must be reversed, because the judge who tried the cause in the court below, after refusing to hear the evidence offered, ordered a non-suit to be entered against the consent of the party. No judge has the power to order a party to be non-suited, unless he consents. 2 Tennessee Rep. 57-8.
    2. The judge erred in rejecting the bill of sale offered to be read in evidence in this cause, because the action of assumpsit will not lie upon a sealed instrument. It is true that assumpsit will not lie upon an instrument under seal; the action must be debt or covenant; yet the judge erred, for the instrument offered was not under seal. There is a scroll annexed to the bill of sale, with the word “seal” enclosed in lines following the name, but the instrument has no evidence in the body of it which shows that it was the intention of the parties to seal it.
    In times past the seal of wax was used to designate the person signing the instrument, writing being then but little practised by the common people; at this day it is used to give greater dignity to the instrument itself. 5 Johns. Rep. 243.
    
      The seal need not now be made of wax as of old, but may be by a scroll, under our act of assembly of 1801. 1 Scott, 694, sec. 61.
    But still the intention of the parties to the contract, whether it was to be sealed or not, remains to be ascertained, for unless it was so intended the instrument is not a deed. This is a question of construction, and like all such questions must be determined from the face of the deed itself. The mere annexing a scroll to the name without some intention expressed in the body of the instrument that it was to be sealed, will not be sufficient to constitute it a deed. This would be the construction given to an instrument of this kind by applying the rules of the common law. 5 Esp. Rep. 82: 16 Viner’s Abr. 51.
    Our statute uses the same words of the Virginia statute upon the same subject, and in fact was drawn from that statute. The courts of Virginia in the construction of that statute, have holden that the merely affixing a scroll without something in the body of the instrument showing that the parties intended it to be considered a deed sealed, was not sufficient to give it that character. 1 Virg. Rev. Code of 1819, p. 510, sec. 94: 1 Munford’s Rep. 487: 4 do. 442' 2 Rand. Rep. 446: 1 Wash. Rep. 170.
    If the seal were made upon wax as at the common law, then the impression made upon the wax would evidence the intention of the parties to the instrument; if it is made by a scroll as in this instance, the intention must be evidenced by something in the body of the instrument. 1 Alabama Rep. 1S7: 4 McCord’s Rep. 267: 5 Esp. Rep. 83.
    The correctness of this construction will be seen by looking to the consequences that would follow the reverse of this doctrine. Instruments that never had a seal could be made sealed instruments by the mere addition of a scroll, to avoid the statute of limitations; and if they should be denied upon oath, proof of the party’s hand writing would still give them effect. This would defeat the statute of limitations in many instances. Again: if a release not under seal were given to the maker of the instrument, the mere addition of a scroll would destroy the effect of the release, and the instrument would' be again revived. This is the first time this question has been made in this court, and is one of much importance in its retrospective, if not in its prospective operation. Thousands of instruments long since barred by the statutes, may, nay will, again spring into existence, if such instruments are to be considered sealed papers. If such instruments are considered sealed bonds or deeds, then the consideration cannot be questioned in a suit upon them; but if they are not, then it can. No possible injury can result from the construction contended for on the part of the plaintiff in error; all the claims not barred by the statute of limitations will still be recoverable, and the solemnity supposed to be given to an instrument properly sealed will receive some countenance, and the principles of the common law be followed.
    If then this bill of sale be no deed for want of the proper sealing, it follows that assumpsit was the proper remedy for a breach of warranty of title contained in the bill of sale, and the bill of sale was the best evidence to prove that fact, and was rejected by the court improperly.
    
      D. Criaghead, for defendant in error.
   Peck, J.

delivered the opinion of the court.

After the cause had been submitted to the jury, the plaintiff produced a bill of sale for the negro.

It was objected that the action being case and not covenant, and the plaintiff having offered a bill of sale under seal, the action in the form brought could not be maintained, and it'was moved to have a non-suit entered; upon argument of which motion, it was considered by the court that the plaintiff had misconceived his action, “for that an action of covenant should have been brought upon the bill of sale, and that no parol evidence could be heard in support of the action of assumpsit, and that the action would not lie; and thereupon the court ordered that the plaintiff should be called, and a non-suit entered;” which was done.

This is erroneous. The court had a right to judge of the admissibility of the evidence offered, and to reject it if inadmissible. But no case is recollected where our courts have tolerated the practice of ordering a non-suit. This is sufficient to reverse the judgment. But a question not void of difficulty, and not hitherto brought before us, is presented on the rejection of the evidence offered; and that is, whether the instrument offered in evidence was a sealed instrument; it does not purport to be such upon its face; true a scroll is affixed to the name. Is this sufficient to give the instrument the character of a deed without the testimonial of intention to seal, in the body? In Virginia, South Carolina and Alabama, such instrument is not held to be a deed. But a majority of this court thinks that the construction on our act of 1801, though in the language of the Virginia statute, has had a different construction in this state-, and the understanding of the whole community makes the law on this point.

. Judgment reversed.  