ERRATA. Page 27, line 11 from bottom, 3 Id. 467, should be 3 Harris 467. 28, line 16, the figures should be 413 instead of 313. 40, lines 21. 22, strike out the words what might be implied from. 50, line 1, for or read and. 67, line 12 from bottom, for independent read dependent. 71, insert a comma after the word duty, at the end of 17th line; and after the word it, in 19th line. 74, line 11, 1 M. & W. 111, should be 2 M. & W. 122. 75, line 16 from bottom, for run read ran. 83, line 7, the book of Rep. should be 5 instead of 4 Rep. 93, line 4 from bottom, for lessor read lessee. 110, line 18, for vendor read vendee; and strike out the comma. 118, line 9 from bottom, strike out not. 119, lines 7, 8, for obligor read obligee. 127, line 6 of 2d section, for establish read established. 135, line 8, the figures should be 274 instead of 514. 149, line 3, after 10 Id. the figures should be 579 instead of 379. 159, line 6, after 19 Pick. the figures should be 99 instead of 199. 246, line 8, for lays read lies. 246, line 12 from bottom, for bona fide read bona fides. 247, in 1st paragraph, Herrick v. Carman should be cited from 12 Johns. instead of 11 Johns. 255, line 17, for lays read lies. 256, line 25, for obligors read obligee. 276, line 8, the figures should be 31 instead of 331. 278, line 6 of 3d paragraph, 5 Leigh should be 6 Leigh. 28, beginning of line 8 from bottom, the figures 205 should be 105. 281, section 16, Whaley v. Van Hook should be cited from 4 instead of 3 B. Monroe. 287, line 28, for defect read defeat. 288, line 7, after 14 Id. the figures should be 349 instead of 139. 301, line 8 from bottom, after bond for or read as. 300, line 11 from bottom, the figures 348 should be 438. 336, line 17, Gansevoort v. Williams should be cited from 14 Wead. instead 350, line 4 of § 3, after disclose strike out of. of 15 Wend. 427, last line of 7th section, the case cited from 2 Cow. should be 408 instead of 508. 462, line 15, the case cited is in 20 instead of 2 Johns. 135. 465, line 4 from bottom, 13 Wash. should be 12 Wheat. 466, line 22 from bottom, 4 Harris and Gill should be 4 Harris and Johns. 488, end of chapter 41, the figures 260 should be 280. PART II. OF PERSONAL ACTIONS. THE RIGHT OF ACTION; THE PARTIES WHO MAY SUE AND BE SUED; THE FORM OF ACTION; AND THE FRAME OF THE DECLARATION. TITLE I. RIGHT OF ACTION ON A SEALED INSTRUMENT; OR UPON A JUDGMENT OR DECREE. CHAP. 1. What is a sealed instrument. 2. Of the delivery necessary to make the instrument a valid obligation. 3. What is deemed part of the instrument; how it is affected 4. On a sealed instrument, though without consideration, there 6. Of conditions precedent; what performance by plaintiff 7. When material that instrument should be executed by covenantee as well as covenantor; what covenants run with the land and give a right of action for or against an heir or assignee. CHAP. 8. Of the action on covenants in the conveyance of land, which are broken at the instant; and on covenants in the sale of chattels. 9. Whether without covenant of indemnity or other special covenant by sub-lessee or assignee, there is a right of action against him by his assignor for breach of covenants in original lease. 10. Of the action on a covenant or obligation to indemnify. 11. Of the action on a judgment or decree. 12. Of the action against an executor or administrator or his representatives or sureties for a devastavit. The Romans generally used a ring, but the seal was valid in law if made with one's own or another's ring, and according to Heineccius, with any other instrument which would make an impression; and this, he says, is the law throughout Germany. The passage of Heineccius is referred to by Kent, C. J., in Warren v. Lynch, 5 Johns. 247. Lord Coke, after mentioning that a deed must be sealed, adds these words, that is, have some impression upon the wax, for sigillum est cera impressa quia cera sine impressione non est sigillum. 3 Inst. ch. 75, p. 169. 2. Opinions of Judges Pendleton, Kent and Nott contrasted. President Pendleton considering Lord Coke as saying "a seal is wax with an impression," regards this as his opinion only, founded probably on the practice of that day. If that gives a binding rule, we may, Judge Pendleton thinks, by going further back, discover a period of time when the impression was made with the eye tooth. There was, he remarks, some utility in that custom, since the tooth impressed was the man's own and furnished a test in case of forgery. Jones &c. v. Logwood, 1 Wash. 44. On the other hand, Judge Kent considers the ancient authorities explicit, that a seal does in legal contemplation mean an impression upon wax; this point seemed to him to be necessarily assumed and taken for granted in several passages in 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 England. Relph &c. v. Gist, 4 McCord 270. And he refers to Terms de la Ley, tit. Deed 150; to Reeves's history of the English law, vol. 1, 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 acknowledging them to be such." He considered it unimportant whether this adop tion be of wax or a scroll. "Seals," said Judge Kent, "were never introduced or tolerated in any code of law, because of any family 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 means of which the attention of the parties is more certainly and effectually fixed, and frauds less likely to be practised upon the unwary." 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, $65. 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 considered 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 & Co. v. Gist, 4 M'Cord 267. And in Pennsylvania, a written 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. |