Armstrong v. Pearce — 5 Del. 351

Majority

p. 351

ROBERT ARMSTRONG vs. THOMAS F. PEARCE.

Headnote

Though a scroll is a sufficient sealing of an instrument, some seal must appear on its face. The words “ witness my hand and seal" are not sufficient.

Action on the case on a promissory note, dated 26th of April, 1831. Pleas, non-assumpsit, payment, set-off and limitation.

Mr. Wolfe moved a nonsuit, because th,e form of action was mis

p. 352

taken; the instrument being under seal, the action should be debt, and not case.

Platt, for plaintiff.

Wolfe, for defendant.

Mr. Platt

denied that the instrument was under seal. There was no seal to it; though the note ran “ witness my hand and seal.”

refused the nonsuit. A seal upon wax is not necessary ; but something designed to answer the purpose of a seal is necessary. The expression in the body of the note “witness my hand and seal,” does not make the seal; and there is not even any thing to leave to the jury, to show there was ever a seal made to the note. It may seem absurd to give consequence to a mere scroll seal made by the flourish of a pen; but such a seal is as good at this day as the wax seal was formerly. Once it answered the purpose of identification, being marked with a device belonging to the party who used it; now the identification is produced by the signature; and the seal now as well as formerly, fixes the character of the instrument to which it is affixed. This is a useful purpose. It is well understood that when a seal is used, it imports deliberation and solemnity in the transaction ; that it imparts an importance and finality to it, which do not belong to instruments not under seal.

This use of a seal is equally important as when the impression ,was made upon wax; and it would be dangerous to-imply the seal, where no other evidence existed of the party ever having executed a paper under seal, than the expression “ witness my hand and seal.” (53 Eng. Com. Law Rep., 232.)

Verdict for plaintiff.