Warren v. Lynch

Kent, Ch. J.

delivered the opinion of the court. The two questions made upon this case are, 1. What is the legal import of" the instrument upon which the suit is brought ? and, 2. Was the evidence sufficient to entitle the plaintiff to recover ?

1. The note was given in Virginia, and by the laws of that state it was a sealed instrument or deed. But it was made payable in New-Tork, and according to a well settled rule, it is to be tested and governed by the law of this state. (4 Johns. Rep. 285.) Independent then of the written agreement of the parties, (and on the operation of which some doubt might possibly arise,) this paper must be taken to be a promissory note, without seal, as contradistinguished from a specialty. We have never adopted the usage prevailing in Virginia and in, some other states, of substituting a scrawl for a seal; and what was said by Mr. Justice Livingston, in the case of *245 Meredith v. Hinsdale, ( 2 Caines, 362 .) in favour of such a substitute, was his own opinion, and not that ox the court. A seal, according to Lord Coke, (3 Inst. 169.) is wax with an impression. Sigillum est cera impressa, quia cera sine impressione non est sigillum. A scrawl with a pen is not a seal, and deserves no notice. The law 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 has no one property of a seal. Multum abludit imago. To adopt it as such would be at once to abolish the immemorial distinction between writings sealed, and writings not sealed. Forms will frequently, and especially when they are consecrated by time and usage, become substance. The calling a paper a deed will hot make _it one, if it want the requisite formalities. “ Notwithstanding, says Perkins, (sect. 129.) that words obligatory are written on parchment or paper, and the obligor delivereth the same as his deed, yet if it be not sealed, at the time of the delivery, it is but an escrorvl, though the name of the obligor be subscribed.” I am aware that ingenious criticism may be indulged at the expense of this and' of many of our legal usages; but we ought to require evidence of some positive and serious public inconvenience, before we, at one stroke, annihilate so well established and venerable a practice as the use of seals in the authentication of deeds. The object in requiring seals, as I humbly presume, was misapprehended both by President Pendleton, and by Mr. Justice Livingston. It was not, as they seem to suppose, because the seal helped to designate the party who affixed it to his name. 1st a ratio nullius pretii, (says Vinnius, in Inst. 2. 10. 5.) nam et alieno annulo signare licet. Seals were never introduced or tolerated in any code of law, because of any family impression, or image, or initials which they might contain. One person might always use another’s seal, both in the English and in the *246 Roman law. 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. President Pendleton, in the case of fones and Temple v. Logwood, ( 1 Wash. Rep. 42 .) which was cited upon the argument, said that he did not know of any adjudged case that determines that a seal must necessarily be something impressed on wax 5 and he seemed to think that there was nothing but Lord Coke’s opinion to govern the question. He certainly could not have examined this point with his usual diligence. The ancient authorities are explicit, that a seal does, in legal contemplation, mean an impression upon wax. “ It is not requisite,” according to Perkins, (sect. 134.) “ that there be for every grantor who is named in the deed a several piece of wax, for one piece of wax may serve for all the grantors, if every one put his seal upon the same piece of wax.” And Brooke, (tit. Faits, 30. and 17.) uses the same language. In Lightfoot and Butler’s case, which was in the Exchequer, 29 Eliz. (2 Leon. 21.) the Barons were equally explicit, as to the essence of a seal, though they did not all concur upon the point, as stated in Perkins. One of them said that twenty men may seal with one seal upon one piece of wax only, and that should serve for them all, if they all laid their hands upon the seal; but the other two Barons held that though they might all seal a deed with one seal, yet it must be upon several pieces of wax. Indeed this point, that the- seal was an impression upon wax, seems to be necessarily assumed and taken for granted in several other passages which might be cited from Perkins and Brooke, and -also in Mr. Selden’s Notes to Fortescue; (De Laud. p. 72.) and the nature of a seal is no more a matter of doubt in the old English law, than it is that a deed must be written upon paper or parchment, and not upon wood or stone. Nor has the common law ever been altered in Westmin•> *247 sier Hall, upon this subject; for in the late case of Adam v. Keer, (l. Bos. and Puller, 360.) it was made a question whether a bond executed in Jamaica, with a scrawl of the pen, according to the custom of that island, should operate as such in England, even upon the strength of that usage¡>

The civil law understood the distinction and solemnity of seals as well as the common law of England. Testaments were required not only to be subscribed, but to be sealed by the witnesses. Subscriptions testium, et ex edicto prat oris, signacula testamentis imponerentur. (Inst, 2. 10. 3.) 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, (Elementa juris civilis secundum ord. Inst. 497.) with any other instrument, which would make an impression, and this, he says, is the law to this .day throughout Germany. And let me add, that we have the highest and purest classical authority for Lord Coke’s definition of a seal; Ipuid si in ejusmodi cera centum sigilla hoc annulo impressero P (Cicero. Academ. Quœst. Lucul. 4. 26.)

2. The instrument being a promissory negotiable note, the next point is, whether the plaintiff did not show enough to entitle him to recover as a bona jide endorsee for a valuable consideration. There were circumstances to induce an opinion, that as between the defendant and Rose, the note was given for the purpose of placing the debt due from the defendant to Rose, out of the reach of the creditors of Rose, who was insolvent. But there is no evidence to bring this fraud (if any there was) home to the knowledge of the plaintiff. He was the agent of Rose for the purpose of settling with his creditors, and just before the note was given, he was in advance upwards of400 dollars for Rose. The note was drawn before the existence of the attachment of Mason and Smedes; and being a creditor of Rose to such an amount, I think *248 the plaintiff showed enough to rebut the presumption of his having taken the note without consideration ; and that upon both grounds the motion for a new trial ought to be denied.

Rule refused»