Van Santwood v. Sandford — 12 Johns. 197

Majority

p. 197

Van Santwood and another against Sandford.

Headnote

0/"0a™£‘‘°" must be averwrítingorcontract on which the suit is sealed Vy^he noSufficíe’nt'3 the ^defendant ¡^d&ca¡n'the ur°jd“0a]“d to wit: setting it forth# verbatim, with the vitness wherejjfy VandVnd nlm’e, "íid scrawl with an

THIS was an action of covenant. The declaration contain. ed four counts. The fourth count, that certain differences haw ihg arisen between the plaintiffs and one Isaac Newton,, they, , , , , on the 22d of March, 1814, entered into articles of agreement, in the words following; (setting forth the agreement to submit to arbitration verbatim)—“ And hereupon the said defendant, on .the 24th day of March, in the year dforesaid, entered into a guaranty, covenant, and agreement, in the words and figures following, to wit: (setting forth the agreement of the defendant verbatim:) and which concluded in the following words: . ° “ signed and sealed the 24th day of March, 1814. Stephen Sanford, (Z. <S.)” And by which the defendant guarantied the performance of the award of the arbitrators on the part of Newton, to the amount of 80.0 dollars. The plaintiffs, in this court, then stated an award of the arbitrators, that Newton should pay to them, 680 dollars and 36 cents, in two days thereafter, and notice of the award to Newton, and to the defendant, that neither of them had paid the money ; and that the defendant had not kept his said covenant and guaranty so by him rtiade, &c.

To this count there was a demurrer and joinder.

I. Hamilton, in support of the demurrer.

He cited 1 Chitty's Pl. 348. 1 Saund. Rep. 291. a. n. 1. 1 Saund. 320. n. 3. 5 Johns. Rep. 244 . 2 Lev. 74. 207.

S. Foot, contra.

delivered the opinion of the court. The demurrer to the fourth count is well taken; the action is covenant, and it cannot be maintained but on a deed. The only averment or allegation of a deed is, “ and hereupon the defendant, on the 24th day of March, in the year aforesaid, entered into a guaranty, covenant, and agreement, in the words and figures followingthen the agreement is set out in hcec verba, with a ¡conclusion, that it was signed and sealed with the name of the

p. 198

defendant, and the locus sigilli, purporting to be a literal oyer of the agreement.

jj. must appear that the contract was under seal, and the law will not intend that it was sealed, unless it be expressly averred to be so, and though the bond or déed, upon oyer, recite, “ in witness whereof we have hereunto set our hands and seals,” yet that does not amount to such an averment, but. that the party must show that the bond or deed was actually sealed by the other. These principles will be found in Cabel v. Vaughan, (1 Saun. 291. note 1,^[1] ) where all the cases are carefully and accurately collected. There are some words of art,' such as indenture, deed, or writing obligatory, which, of themselves, import that the instrument was sealed ; but if it be alleged that J. S. by his certain writing, demised or covenanted, without averring that it was sealed, the court will not intend that the writing was sealed. (Cro. Eliz. 571. Ld. Ray. 2537. 8 Com. Dig. Fait (A. 2.) Pleader, 2 W. 9 . 14.)

In the case of Warren v. Lynch, ( 5 Johns. 244 .) this court decided that a scrawl for a seal, with an (L. S.) was not a seal, and deserved no notice, and that calling a paper a deed will not make it one, if it want the requisite formalities. - The oyer of the contract, therefore, set out in the count under consideration, can have no effect; for we cannot tell that the original differs from it, or possesses any of the properties of a seal.

The other objections taken by the defendant’s counsel are not tenable, but it is not now necessary to consider them, as-the count is bad for the reasons assigned.

Judgment for the' defendant, with leave to amend on the usual terms.

* Chitty, 348.