Schenke v. Rowell

cause why the instrument should not be set aside as invalid and insufficient, and also as irregular, in the following particulars, among others:

1st. That the obligor did not stipulate to bind his heirs, executors and administrators.

2nd. That the. instrument was not sealed.

Urged that the instrument in question was not in compliance with the statute, nor with the rules and practice of the court, and furnished no security to defendants, because,—I. That the obligor had not stipulated to bind his heirs, executors and administrators. The statute provides that security shall be given' in the form of a bond, &c., conditioned to pay on demand, &c. ( 2 R. 8 . 620, §§ 1, 4). A “bond” is “ an obligation or deed, whereby the obligor obliges himself, his heirs, executors, and administrators, to pay a certain sum of money to the obligee” (Boumer's Law Dict.; Burrill's Law Diet."). A writing in this form, though sufficient under some conditions and circumstances that might arise, would not be in others; or, at least might give rise to litigation. 1. If this obligation, in its present form, were to become a debt, during the lifetime of the obligor, then it would clearly come within the statute; so far, at least, as to afford a right of action against the heirs of the obligor, dying intestate (2 R. S. 452, § 32; Mersereau v. Ryerss, 3 N. Y. 261 ; Loomis v. Tifft, 16 Barb. 541 ; Stuart v. Kissam, 11 Barb. 271 ). But, if the suit were to continue beyond the death of the obligor, and the obligation were not in the form of a debt, but a conditional liability, then the obligation would not necessarily come within the statute. 2. What has been said under (1) applies with equal force to a devisee in case the obligor were to die leaving a will. The statute provides only for liability as to the debts of the testator ; not a conditional liability. The obligor’s devisees might well con

test the question of their liability (2 R. S. 452, § 32, and cases cited above). 3. A writing in the form of this obligation is not only not a “ debt ” within the statute, but it could not be regarded as a “ claim” against the “next of kin, ” in case it had not matured before payment or distribution, as provided in 2 R. S. 90, § 47, concerning the liability of next of kin. 4. Nor could such obligation be brought within the term “ demand” in a case provided for by 2 R. S. 89, § 43, concerning suits on rejected claims. Hence, this obligation might bs resisted by the heirs as not a debt; by the next of kin, as not a claim ; and by the executor or administrator, as not a “ demand.”

II. As to the objection that gumming on without impression is no seal: Bouvier's Dict.; 3 Hill, 212 ; 3 Coke's Inst. 169 ; Burrill's Dict. ; Coit v. Millikin, 1 Denio, 376 ; Bank of Rochester v. Gray, 2 Hill, 227 ; Farmers & Manufacturers’ Bank v. Haight, 3 Hill, 493 ; Bellinger v. Gray, 51 N. Y. 621 ; 4 Kent Com. 452; Warren v. Lynch, 5 Johns. 239 ; Matter of Estate of Mount, Daily Register, Oct. 7, 1876 ; 15 Pet. 290 .