Allen v. Sullivan Railroad , 32 N.H. 446 ( 1855 )

Bell, J.

At common law it was originally held that a seal consisted of an impression upon wax, or wafer, or some other tenacious substance, capable of being impressed. Warren v. Lynch, 5 Johns. 239 ; 4 Kent’s Com. 452 ; 3 Co. Inst. 169.

In some of the States it has been held by the courts, or provided by statutes, that a scrawl made with a pen constitutes a sufficient seal. The question of the sufficiency of a scrawl as a seal arose here in Douglas v. Oldham, 6 N. H. 150, and it was held that a scrawl could not here be considered as a seal. So far as we are aware, no decision has occurred here in relation to the nature and requisites of a seal, except this and the case of Carter v. Burley, 9 N. H. 558. In that case the question arose whether the impression of a notarial seal upon the paper of a ^protest, made by a notary-public in Pennsylvania, could be here regarded as a seal, and it was held by the court a sufficient seal. “ In this case,” says Parker, C. J., “ the protest is by a notary, under what purports to be an official seal. It is not a mere scrawl, but a distinct impression upon the paper of the protest, showing the character of a notarial seal. Nothing would have been added to its character by wafer or wax ; and as this is not an uncommon mode of affixing official seals, we are of opinion that it is sufficient. It is to be presumed, from the production of the instrument itself, that it was duly affixed according to the laws of Pennsylvania, until there is something to impeach it.”

By the Revised Statutes, passed about four years after this decision, it was provided, that “ whenever the seal of any court or public office is required to be affixed to any paper, the word seal shall be construed to include an impression of such official seal made upon the paper alone, as well as an impression made by means of wax or wafer affixed thereto.”

This provision, which has no negative, express or implied, of the extension of the same rule to other proper cases, seems to us a distinct recognition of the fitness of an impression of a seal on paper alone to answer all the purposes of a seal.

Though wax and wafer are most frequently spoken of as the material of seals, yet other things were used. The bulls of the Pope were sealed with lead or gold. Jac. Law Diet., Seals. And in our own State, as well as elsewhere, seals were very commonly impressions made upon pieces of paper annexed by a wafer, gum or paste, to the instrument sealed, or two such pieces of paper were secured to each other, and to tapes passed through the paper, or parchment, of the instrument, by wafer, or other adhesive substance, and the impression made upon one of these pieces of paper.

It seems to us, then, that there is nothing necessary to constitute a seal but some material of a suitable character to receive an impression, and an impression bearing the character of a seal upon it. Where wax, or a paper annexed by wafer, were fixed to an instrument in the place of a seal, and with the apparent o intention that they should be seals, the" court would not look curiously to discover the impression made upon it; but where there was nothing but the impression made upon the paper to indicate that there was a seal, the court would not regard any thing as a seal but such a clear and manifest impression as left no doubt as to its purpose.

The eases of Warren v. Lynch, 5 Johns. 239; Bank v. Gray, 2 Hill 227, and Bank v. Haight, 3 Hill 493, are inconsistent with these views: the two latter holding directly that a mere impression on the paper is not a seal. In the former, Chancellor Kent says: “ The law indeed has not declared of what precise material the wax shall consist, and whether it shall be a wafer, or any other paste, or matter sufficiently tenacious to adhere and receive an impression, is perhaps not material.” Most seals have, in this State, not been affixed to wax, or wafer, or to any adhesive substance, but they have been impressed upon paper attached by a wafer or paste, by the effect of which the paper was rendered susceptible of receiving and retaining the impression of the seal. When, then, presses have been contrived of such power as to make an equally distinct and permanent impression directly upon the paper alone, it does not seem consistent to hold that the wafer or paste, whose chief use was to facilitate the making of the impression upon the paper under which it was put, is still requisite, when it has ceased to be either necessary or useful for that purpose.

Heretofore, and now, the impression of the seal has been made upon the paper, which seems, therefore, at this day precisely that tenacious substance which is capable of receiving the impression required for a seal.

The court are therefore of opinion that, within the principle of the decision in Carter v. Burley, an impression of the seal of *a railroad corporation, impressed upon the paper of instruments issued by them as bonds, and purporting to be under seal, is a sufficient seal to make the instruments specialties, on which debt may be maintained. Beardsley v. Knight, 4 Vt. 479 ; Bank v. Slason, 13 Vt. 334.

Judgment for the plaintiff