APPENDIX No. 8.

ON SEALED INSTRUMENTS.

READ BEFORE THE GEORGIA BAR ASSOCIATION,

BY A. H. DAVIS,

AT ITS ANNUAL MEETING IN ATLANTA, GEORGIA, AUGUST 9, 1888.

Sigillum est cera impressa”—3 Coke's Institutes, 169.

When possible, it is very interesting to follow an old legal principle back to its beginning. The circumstances giving birth to a doctrine are often wrapped in obscurity; but the doctrine itself may have been found upon trial to possess a practical value, and so outlives the things that called it into being. Very often, however, we can see into the past with clearness enough to say, "these facts begot such and such a principle." And to us of the present day, it seems some legal doctrines have a remarkably queer parentage.

It is the purpose of this essay to briefly show the origin of the seal as a mode of attestation; how the great doctrines of the subject followed simply and logically out of a single idea; and particularly the past and present status of the seal in Georgia. The seal certainly has great antiquity. Blackstone cites an instance of its use recorded by the prophet Jeremiah, and speaks also of its employment in the Roman law. And our own Judge Lumpkin found a still more ancient precedent in "Moses' Reports, Book of Genesis, c. 38, v. 18." But we are chiefly concerned to know that in the common law the seal was not of general use prior to the reign of William the Conqueror.

b

There was a time when we were a very ignorant folk. We could not even read or write. Before the Conquest the inability to write

a 2 Blackstone Com. 305.

b 13 Ga. 147.

one's name had been relieved by signing with a cross-mark, "which custom," says the great commentator, "our illiterate vulgar do for the most part to this day keep up." The Norman fashion of overcoming the same embarrassment was imported into England at the time of the Conquest, and consisted in making an impression, having, or supposed to have, a distinctive individuality, "on wax wafer or other tenacious material."

This, then, is the origin of the seal, to supplement the inability to write. Born of ignorance, it is no wonder that it was clothed in superstition. To the unlearned, there is a mystery in what they do not understand, that works the untrained imagination into a kind of awe, which we of superior education call superstition. At the time sealing first became fashionable in England, the learned class was very small, consisting almost entirely of the clergy. The scholar's sacred function, no doubt, assisted the ignorance of the laity in vesting the power to read and write with a superstitious respect. And this feeling was most probably encouraged and fostered by the learned themselves, as a convenient means of self-magnification. Thus, by a very natural process, the seal itself, being the only thing about an instrument that the ignorant could know or recognize, soon became the special mark and object of superstitious awe on the one hand, and of factitious importance on the other. To this origin in human simplicity and weakness can be traced the familiar doctrines concerning sealed instruments. Thus:

(1) Sealing being looked upon as a very solemn and important act, the legal presumption arose that no man would affix his seal without inducement. Hence, where a contract is sealed, a valuable consideration is presumed from the mere presence of the seal.

(2) So, likewise, it was not proper, or even competent, for one to impart authority to do such a solemn act as execute a sealed instrument, save with an equal solemnity. Hence the authority to execute a sealed instrument must be under seal. The only qualification to this is in the case of the agent of a corporation, because the first person affixing the corporate seal must necessarily be without authority under that seal. Hence a vote of the direc tors or of the corporators is sufficient."

c1 Greenleaf's Evid. 19; 2 Chitty's Blackstone, p. 465, note (36); 3 Minor's Insts. p. 136; 9 Ga. 54.

d 6 M. & W. 215; Smith's Merc. Law, p. 149, and authorities there cited: 30 Ga., 280.

e Angell & Ames on Corp. p. 193; 1 Minor's Inst. 615: Ga. Code of 1882, 2182.

(3) Again, a sealed instrument could not be lightly set aside. Consequently, a release thereof must be under seal. For it would be absurd, nay, impossible to cancel a solemn act by a trivial one.

(4) As a proof of the participation of the learned in maintaining doctrines that magnified their own accomplishments, we have the fact that a separate form of action, namely, that of covenant, was specially appropriated to sealed instruments. An action on a sealed contract, where the damages were unliquidated, had to be declared in covenant. To be sure, if it were a promise to pay money, the plaintiff might elect between covenant and debt. But covenant in many cases had special advantages to recommend it.h

(5) It is curious to note the effect of the seal in pleading and in evidence.

(a) The fact of sealing had to be averred in pleading, because of the dignity the seal had acquired from the important doctrines which clustered around it.

(b) The doctrine of profert is the direct outcome of the respect accorded the seal. If either party in his pleadings alleged the existence of a sealed instrument, defining the rights of the parties, he must offer to show it to the court, for the reason, among others, that the seal was of great moment.

(c) So, too, the doctrine of estoppel. When a party had made a solemn declaration under seal, he was not permitted to deny or contradict it. A person might contradict a previous sworn statement at the risk of perjury, but he could by no means dispute what he had solemnly sanctioned by his seal. It is truly remarkable that the seal should be given more finality than the oath. And, although the doctrine of estoppel has grown wider and rests mainly upon principles of good faith and common sense, it was originally confined in its operation to sealed statements, and derived its prime force from the superstitious deference paid to the seal.'

Coke Litt. 222(b); 3 T. R. 590; 8 East 246, cited by Mr. Chitty in 2 Blackstone, Com. 465, note (36.)

g Chitty's Pleading, 134.

h In covenant recovery could be had upon a promise to do a collateral thing, as well as to pay money. 1 Chitty's Pleading, 134; 4 Minor's Inst. 400. Moreover in covenant the venue was transitory. 1 Ch. Pl. 240.

il Sand. 290, note 1, cited by Chitty, 2 Blackst. 305, note 14.

12 Blacks. Com. 465, note 36, and authorities. 1 Ch. Pl. 351.

k See authorities cited by Mr. Chitty, 2 Chitty's Blackst. 465, note 36; 53 Ga., 468.

7 See Greenl. Ev. 3222, 23, 211.

(6) Having become so firmly rooted in the law, and besides possessing intrinsic value as a mode of attestation or authentication, the seal has been treated with very distinguished consideration by the framers of the various statutes of limitation, both in England and the United States. Thus, the first general statute of limitations in England, that of 21 Jac. I., c. 16, imposes no limitation at all upon actions of covenant, or debt, on sealed instruments. And subsequent statutes in America have allowed a longer period within which to bring an action on a contract under seal, than on one not under seal. Thus, in Georgia, twenty years is the period of limitation prescribed for sealed instruments, while a comparatively short time, six or four years (as the case may be), is allowed for actions on other contracts."

(7) Moreover, at common law, its solemnity enabled a specialty to bind the heir, when named."

(8) And, lastly, may be mentioned the favor shown obligations in the payment of a decedent's debts. The specialty debt was regarded as of a higher nature than debts by simple contract, and so had to be paid in preference to them."

The seal having acquired so great importance, the inquiry, What is a seal? became necessarily significant and interesting. The common law maxim was: "Sigillum est cera impressa, and the definition was: "An impression on wax, wafer, or other tenacious material." It is only of late, comparatively, that the question arose whether an impression on the paper itself fulfils the idea of a seal. The older authorities held that it was not sufficient, but numerous later decisions, in this country and England, maintain that it is."

Another interesting question in this field is: "Does sealing include signing?" Blackstone says: "This neglect of signing and resting only upon the authenticity of seals remained long among us; for it was held in all our books that sealing alone was sufficient to authenticate a deed." But he goes on to say, the statute of Frauds expressly directs the signing in grants of lands and other species of deeds, "in which, therefore, signing seems to be now as necessary as sealing, though it hath been sometimes held that the one includes the other." P

o See the numerous authorities cited in 2 Minor's Inst., 729; Ga. Code, 5.

p Ellis vs. Smith, 1 Ves. Jr. 13; 2 Blackst. 306, note (16).

Historically, the position that sealing includes signing is impregnable, inasmuch as sealing was originally the substitute of signing. But the later authorities are against such a conclusion."

It will be interesting now to note the disposition, past and present, of our legislature and Supreme Court toward this relic of antiquity. And in tracing the adventures of the seal in Georgia, we shall find that it has gone through dangerous and slippery places. It has not always been regarded with favor, but in common with most human inventions, has had a career of ups and downs.

That the seal imports a consideration, was recognized and firmly upheld in the case of Rutherford vs. Executive Committee, etc. To the same effect is the language of the Code and of subsequent decisions. The presumption at common law was conclusive, so that a plea to a sealed instrument of want or of failure of consideration, was inadmissable. This was decided to be the law in Georgia in the case cited. In two subsequent decisions, the Supreme Court has established an exception in favor of sealed promissory notes, allowing a failure of consideration (total or partial) In the first of the cases, the question to be pleaded thereto. arose upon a note purporting to be under the hands and seals of both the makers, but which in fact was signed by only one. The court held, with considerable doubt, that a sealed promissory note s not a common law specialty, mainly because it lacks the essenial solemnity of delivery."

t

The definition of specialty in the Code plainly includes a sealed promissory note, and in a later case the Supreme Court has held such a note entitled to the twenty years' limitation of actions on specialties." After all, the court preferred to rest its

72 Blackst., 306. In Georgia a deed to lands must be signed, although it need not be sealed.

"The learned judge who rendered the decision, did not explain why a promissory note is not delivered with as much solemnity as a specialty, since no more is required of the latter than simply being handed to the obligee. Delivery was anciently somewhat formal, but gradually became less and less so, until it is even presumed from slight indications. See 2 Chitty's Blackst., 307, note (17).

⚫ 22717.

22915; 58 Ga. 236.