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Perkins and in Brooke, and also in Mr. Selden's notes to Fortescue.
Judge Nott does not concur in this. He considers it certain that the most ancient deeds and charters in England were solemnized by the sign of the cross, or by the handwriting of the party to which the cross was annexed, without any other semblance of a seal; and that it was not until long after the Norman conquest that seals were introduced into common use in Eugland. Relph & c. v. Gist, 4 McCord 270. And he refers to Terms de la Ley, tit. Deed 150; to Reeves's history of the Eglish law, vol. I, p. 11; to the interesting passage of Sir William Blackstone, in the second volume of his commentaries, p. 305; and to Sheppard's Touchstone 57, where it is laid down that “if the party seal the deed with any seal besides his own, or with a stick or any such like thing which doth make a print, it is good.”
Judge Nott thinks, also, there has been a misconstruction of Lord Coke's definition of the word sigillum. He remarks that “the expression of Lord Coke is, cera sine impressione non est sigillum. So that it is the impression, at least, which constitutes the seal, and not the wax. The wax is not added as the necessary ingredient of the deed, but merely as a substance on which the impression may more easily be made."
“What," asked Judge Pendleton, " is the private seal of an individual ? Does an impression furnish any criterion by which to decide whether it be his seal or not?
It is true," he observed, "that some few gentlemen have seals which impress their family coats of arms; some have such as impress the initials of their names; but these are rare indeed when compared with the great body of the community who have no seals, and who use such as are placed on the writing for them, and make them their own by ackuowledging them to be such." He considered it important whether this adoption be of wax or a scroll.
"Seals,” said Judge Kent, “ were never introduced or tolerated in any code of law, because of any lamily impression or image or initials which they might contain.”—“ The policy of the rule consists in giving ceremony and solemnity to the execution of important instruments, by meaus of which the altention of the parties is more certainly and effectually fixed, and frauds less likely to be practised upon the ww wary.”
Judge Pendleton could not “perceive a difference in point of solemnity between the act of impressing wax and that of making a scroll."
“A scrawl with a pen," in the opinion of Judge Kent, is not a seal, and deserves no notice.''--" The law," he observes,
" has not indeed declared of what precise materials the wax shall consist; and whether it be a wafer or any other paste or matter sufficiently tenacious to adhere and receive an impression, is perhaps not material. But the scrawl,” in his judgment, “has no one property of a seal.”
“If it is the impression which constitutes the seal,” Judge Nott could “see no good reason why it may not as well be made on the paper itself as on any substance annexed, and be as well made with a pen as with any instrument."
3. A scroll, by way of seal, is sufficient in South Carolina,
Virginia, Maryland and Pennsylvania.
Accordingly it has been established in South Carolina, that any stamp, impression or mark, made or adopted by the signer, to a written contract, and annexed to his signature, as and for his seal, will render such contract a sealed instrument. McKain v. Millar, 1 McMul. 315; Gramling v. Woodward, 2 Richardson 622.
"Scrolls," Judge Pendleton remarks, "have been long substituted for seals in this country. The party acknowledges the scroll to be his seal, and as such this court will consider it.” “We will not,” he said, “make a precedent which would not only let loose great numbers of individuals from their engagements, but all or most of the executors, administrators, guardians, and perhaps public collectors, from the force of their bonds; a decision which would dishonour government, relax public and private security, and convulse the state.'
Such was the opinion of the court of appeals of Virginia, in respect to an instrument executed before the act of 1788, which expressly declared that “any instrument to which the person making the same shall affix a scroll by way of seal, shall be adjudged and holden to be of the same force and obligation as if it were actually sealed." 12 Hen. Stat. 749,
This act was treated as a legislative construction of the law; agreeable to. and adding strength to that of the court.
In Maryland, a scrawl has been cousidered as a seal from the earliest period of its judicial history. Trasher v. Everhart, 3 Gill & Johns. 246. In South Carolina it has been so ever since the revolution, and probably long before. Relph f• Co. v. Gist, 4 M Cord 267. And in Pennsylvania, a writ
, ten or ink seal had been adjudged good some years before the Virginia decision and the Virginia act. McDill v. McDill, 1 Dall. 68. In that state the sufficiency of this kind of seal is not now to be questioned. Long v. Ramsay, 1 S. & R. 72; Meredith v. Hinsdale, 2 Caines' Rep. 362.
4. In New York, Vermont and Massachusetts there must be
an impression on war, wafer, or some tenacious substance.
In New York, Judge Livingston was disposed to hold as a geveral rule that an instrument purporting to be a bond, aud in its usual form and terms, delivered also as the maker's deed, might be a specialty, notwithstanding there was affixed to his name L. S., instead of a seal with wax or wafer. 2 Caines' Rep. 362. But a majority of the judges declined allowing a scrawl to be substituted for a seal. There ought, Judge Kent thought, to be evidence of some positive and serious public inconvenience, " before we at oue stroke annihilate so well established and venerable a practice as the usage of seals, in the authentication of deeds." Warren v. Lynch, 5 Johos. 245. " This venerable custom of scaling," said Platt, J., “is a relic of ancient wisdom, and is not without its use at this day.” " A seal attracts attention, and excites cantion in illiterate persons, aud thereby operates as a security against fraud." 12 Johns. 76.
In Vermont, Warren v. Lynch and 4 Kent's Com. 444 have been deemed conclusive. Beardsley v. Knight, 4 Vermont 179.
When in Massachusetts cases were cited from Virginia and Pennsylvania, shewing that in each of these states a scroll was a seal before it was made so by statute, Wilde, J. said, then that is the common law there in opposition to the common law of England. Com. v. Griffith, 2 Pick. 13. The courts of Massachusetts do not, however, require that the impression should be on wax; they hold that a seal by a wafer or other tenacious substance, upon which an impression is or may be made, is a valid seal. Bradford v. Randall, 5 Pick. 496; Tucker &c. v. Bartlett &c. 5 Cush. 364.
5. In Pennsylvania though a scroll is allowed, an incision
in the paper, with a riband through it, is not sufficient ; there must be a seal, or a scroll by way of seal.
Although in Pennsylvania a scroll made with ink bas by immemorial use aud custom been adopted as a seal, yet even in that state parties are not permitted to substitute any mark or device which their imagination may suggest for a seal. In Duncan v. Duncan, 1 Watts 325, the body of the conveyance, and the certificates, appeared all to have been drawn in the same handwriting. The conveyance was written on parchment, in the margin of which, at the end of each name of a grantor subscribed to the deed, and of each name of an officer subscribed to a certificate, there was an incision or slit made in a horizontal direction, apparently with a knife, and a blue riband weaved through the same by the scrivener, who, no doubt, intended that the riband, which covered about five eighths of an inch square of the parchment, at the end of each name, should, at the time of signing, have been covered with a seal of wax, and by means thereof have been attached to or incorporated with the parchment. But this was neglected. In the conclusion of the conveyance were the words “ we have set our hands and affixed our seals ;" and in each certificate the words “under my hand and seal.” But no scroll, wax, wafer, or any thing more than the riband was used to denote a seal. It was contended that the riband inserted in the parchment, in the manner described, was sufficient in law to constitute a seal, if so intended by the party, and that it ought to have been submitted to the jury to decide whether the riband was used with that intent or not. But the supreme court of Pennsylvania considered that whether an instrument of writing be under seal or not, is a question of law to be solved by the court from the inspection of the instrument itself. And it decided that this instrument was not under seal.
This case shews, as indeed has been often adjudged, that although in the body of a writing it is said that the parties have set their hands and seals, yet it is not a specialty unless it be actually sealed and delivered. Taylor Sc. v. Glaser, 2 S. & R. 502.
6. How several may use the same seal.
One piece of wax may serve as a seal for several persons, if each of them impresses it himself, or one impresses it for all, by proper authority, in the presence of all. Lord Lovelace's case, W. Jones 268; Ball v. Dunsterville, 4 T. R. 313; Ludlowo v. Simond, 2 Caines's Cas. 42; Mackey foc. v. Bloodgood, 9 Johns. 285; Tasker &c. v. Bartlett fec. 5 Cush. 364.
But then it must appear by the deed, and profess to be, the seal of each. Cooch v. Good man, 2 Adol. & El., N. S. 598; 42 Eng. Com. Law Rep. 825; and each should sign it, or his adoption of the seal be in some way clearly proved. Maule v. Weaver, 7 Barr 332.
7. What recognition of the seal or scroll is required in the
body of the instrument.
Whether the instrument was sealed or not, President Tucker
thought did not, at common law, depend at all upon the recognition of the seal in the body of the instrument.
Cromwell v. Tate's er'or, 7 Leigh 305. And in Maryland, a scrawl being considered equivalent to wax or wafer, if there a party execute and deliver an instrument with a scrawl attached to it, it is considered as much his seal as if he had declared it to be so in the body of the instrument. Trasher v. Everhart, 3 Gill & J. 246. This is a looser course than seems to be recognized in England. There the putting a seal opposite to the name, though evidence of a deed, and one of the formalities belonging to it, is not taken as conclusive. If, said Chambre, J., the parties did not mean to contract by deed, their ignorance as to the effect of a seal could not make it so. case before him, in which the words of the articles were, "to which the parties have set their hands," not seals, he said, it was therefore not the intention of any of the parties to execute a deed. Clement v. Gunhouse, 5 Esp. 83.
In South Carolina, the mere circumstance of a scrawl appearing upon a paper, without any declaration of a party that a seal had been affixed, nor any other evidence of the fact, is not sufficient to constitute a deed. Relph foc. v. Gist, 4 McCord 271. There must be some evidence, intrinsic or extrinsic, which creates a belief that some mark on the paper was intended as a seal. Gramling v. Woodward, 2 Richard
v2 son 622, 3. The jury is to be satisfied that the party when he signed did intend to adopt, and did actually adopt, as a seal, something then existing on the paper. O’Cain v. O'Cain, 1 Strob. 402.
And in Virginia, the general rule is, that an instrument with a scroll affixed to it, is not a sealed instrument, unless in some part of it the scroll be recognized as affixed by way of seal. Baird &c. v. Blagrove foc. 1 Wash. 170; Argenbright v. Campbell & wife, 3 H. & M. 174; Austin's adm’x v. Whitlock's er'ors, 1 Munf. 487; Anderson &c. v. Bullock fic. 4 Munf. 442; Jenkins v. Hurt's commissioners, 2 Rand. 446; Peasley v. Boatwright, 2 Leigh 195; Cromwell v. Tate's er'or, 7 Leigh 301. The scroll is considered as sufficiently recognized when the intention to make the paper a sealed instrument can be ascertained from the body of the instrumcnt.
Such intention sufficiently appears, when on the face of the instrument it is expressed to be " sealed with my seal” or “our seals," or given under or witnessed by "my hand and seal” or "our hands and seals," or has other words of like import, besides having a scroll or seals, with appropriate names.