Van Santwood v. Sandford , 12 Johns. 197 ( 1815 )

Spencer, J.,

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 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,^*) 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.