
    BOHANNON vs. HOUGH.
    •A Scroll representing a Seal without words in the body of the instrument, shewing the intention ofthe maker to make it a sealed one, will not make it such.
    A. G. McNutt eok the Appellee contended—
    That the authorities cited by the counsel for the appellant could not apply in this State. In England, there is no act of Parliament saying what shall constitute a seal, neither was there any statute in Virginia on the subject, at the time the cases quoted from Washington and Munford’s Reports were decided; it was, nevertheless, held in Virginia, that if a scroll was attached to the instrument, and described therein as a seal, it would be held by the Court to he a sealed instrument. In the case of Hubbard vs, Beckwith, reported in 1st Bibb’s Reports, page 492, the Supreme Court of Kentucky decided that assumpsit was not the proper remedy on an instrument at the foot of an account acknowledging a sum certain to be due, and concluding, as witness my hand, with a scroll annexed to the name. That court entertained no doubt but that the instrument was a specialty and debt the property remedy; so far as I am informed, there was no statute in that State on the subject at the time; — even if there was a statute on the subject, it is most likely that like ours, it was copied from the statute enacted in Virginia, (since the period ofthe decisions in Munford) making a scroll constitute a seal.
    In 1824, when the case cited from the Alabama Reports, page 137, was decided, there was no statute in that State prescribing what should constitute a seal — neither did the joint property come up in that case, and the decision, of the Court rested on another point; to say the most of that decision, it was extra-judicial, and the Court were not unanimous. One of the Judges gave no opinion; two others, Grimshaw and Minor, were of opinion that “it would be sufficient if the writing be valid and delivered, though there were no words on its face expressly shewiog the intention of the parties to make a deed.” Judge Grimshaw, in delivering his opinion in the case, stated, “If for general convenience, and by general consent and usage, ink has been adopted instead of wax, one sign employed instead of another, to express the sapae idea, and indicate the same solemnity, I cannot think it competent for this Court, by its adjudication, to declare the general practice unmeaning and unavailing. Such a judicial decision must, in my opinion, tend to open a torrent of mischief on society; to discharge most of our public officers and their securities from their bonds, and to destroy private rights, ten years sooner than the parties intended or expected at the time of making their contracts. Until I conceive such decisions required by principles of law clear as the beams of light, I cannot assent to ¿í.” The reasoning of the learned Judge applies with equal force in our State; but independently of the general usage and law on the subject, our statute, passed inl822, expressly enacts, “that any instrument to which the person making the same shall affix, a scroll, by way of seal, shall be adjudged and holden to be of the same force and obligation as if it were actually sealed: See Revised Code, page 122. But, says the gentleman, there must be something in the body of the instrument, designating the intention of the party, to constitute the scroll — his seal. This would be substituting the intention for the act; and assuredly the intention of the party is as fully shewn by his affixing his scroll in the place where seals are usually placed — but it may be answered that the mere circumstance of a scroll being placed in the Spot where the seal usually is, does not sufficiently shew that it was placed there by the party, by way of seal. The reason, no doubt, why that expression was used, was to prevent those flourishes which parties sometimes make under, over and about their names ^ by way of ornament or individuality, from being taken as seals, although -they may be technically called scrolls; yet not being affixed byway of seals, the Legislature, no doubt, intended by the words “by way of seal,” to exclude their being taken as seals.
    2d. It is unnecessary to argue the third error assigned, for the doctrine is well established “that no' point can be raised in a court of appellate jurisdiction, which was not raised in the court below”: Gelston vs. Hoyt, 13 Johns. Rep. 169. Our statute also expressly declares, that “no defect in the pleadings can be noticed other than what shall be specially alledged in the demurrer”: Revised Code, page 119. Even if the point had been raised in the court below, it would not have availed the appellant; for the declaration alledges that the bond was indorsed long before it became due; and if the drawer had paid the money without taking up the bond, by so doing, he would have put it in the power of the payee to practice a fraud upon an innocent purchaser. Hough, however, was not the assignor of the ’bond, as is supposed in the third assignment; it is presumed that Mitchell, the payee and assignor was intended — but waiving that error, no form can be found in any author on Pleading, wherein the instrument was indorsed before it fell due, and it was held necessary to aver in the declaration against the drawer, at the suit of the endorser, the non-payment of the money to the assignor. If the appellant had paid the money, he could have had the judgment on the demurrer set aside, and leave given him to plead. The fact that he made no such application is conclusive that he had no defence to make.
    3d. The fourth assignment of error is also unavailable in this court to the appellant, because he did not specially alledge the same in the Court below as a cause of demurrer; but on principle it is contended that the ob» jection could never be sustained.
    The case cited from 1 Bibb, 356, was an action of debt on a valid instrument, to pay, at a certain time, one horse of the value of fifty pounds.— The case in 2 Bibb, 584, was an obligation “to be discharged in bricks.” The casein 1 Bibb, 487, has already been quoted and commented upon in the commencement of this argument.
    Neither of the above cases are in point; ,nor do they bear out the doctrine contended for by the counsel for the appellant. The case cited from Hardin’s Rep., page 118, is equally inapplicable; but in Hardin’s Rep. page508, in the case of Dorsey vs. Lawrence, the supreme court of Ken-tueky decided “that debt would lie on an obligation for the payment of a-certain sum of money which might be discharged in property.”
    The courts have taken a distinction between the cases where the bond was given for property to a certain amount; and cases where the bond was given fot money payable in property at a certain price. In the latter description of cases, it has been held in Kentucky, as well as most other states, that an action of debt could be sustained.
    In 19 Johnson’s Rep., page 144, will be found a case where the court held that an action of debt would lie on a note for a certain sum payable in bank notes.
    In the case ofBallinger vs. Thruston, in 2 Hal. Reports of the consliu-tional courts of South Carolina, it was decided that “debt would lie on a bill single, for a sum certain, though it was payable in produce.”
    The counsel for the appellant, it is to be presumed, will not question the authority of the Alabama Reports: the case reported in the Alabama Reports, page 44, of Bradford vs. Stewart, was on an instrument precisely similar to the one on which the appellant was sued in the court below.— The supreme court of Alabama appear to have been unanimous in the opinion that debt would lie on such an instrument. The learned chief justice, in his opinion, stated:
    “This was an action of debt on an instrument under seal, for the payment of a sum of money, at an appointed day, which might be discharged in cotton, at a stated price. The first assignment is that the action should have been covenant, and not debt. “The action of debt lies to recover moneys due, on a specialty, or on a single bond, and on bonds conditioned for the payment of money, or for the performance of any other act.”— Here is a plain and absolute undertaking to ¡ray a specific sum of money, followed by a condition of which the obligors had , a right to avail themselves, and thereby discharge themselves of the payment of the money.— They did not, (as seems to be implied by the argument of the counsel for the plaintiff in error,) bind themselves to paya certain sura of money, or deliver a certain quantity of cotton. There is no undertaking in the instrument which gave to the obligee a right to demand cotton. He had a right to demand payment of the suns of money. The obligors had a right todischarge themselves bydeliverihg cotton, at a stipulated price, on the day when the money fell due.
    After that day, the obligee had an absolute and unconditional right to the specific sum of money. This is not a contract to deliver property of a given description, or to pay a certain sum in property, or to pay money, or 10 deliver property. That part of the bond which related to property, was exclusively for the benefit of the obligors. The action of debt was ■prcperly brought. Let the judgment be affirmed; so said the supremo court of Alabama,- and so this court will say, unless they construe entirely away, and make void those salutary act of the legislature, which declare that this scroll shall constitute a seal, and that the court shall not notice any other pauses of demurrer than those especially set forth, and thus avoid more than one half of the land titles and legal obligations, in our state; and, at the same time, turn loose the demon of discord and litigation on society.
   OPINION OF THE COURT — by

chibs' justice TURNER.

The question raised in this case as to the chara'^er of the instrument sued on, has iong since been settled in this Co^c, as recollected by myself and many members of the Bar, and has been the rule in some of the circuits ever since, viz: that an instrument declared on as a sealed instrument» must, on its face, purport to be such — as, “witness my hand and seal,” or other words, shewing that the maker or obligor intended to make a sealed instrument, and that, in the absence of such terms in the body of the instrument, the scroll representing a seal, will not make it a sealed instrument; and we are not disposed to alter that decision: Justice does not require it. Indeed, if we were to sustain both positions, I am not aware that any serious injury would result from it more than might happen in case the practice should be uniform. From the loose practice of persons contracting, in giving notes, &c. it Í3 difficult, if not impossible, to lay down a rule which will govern every case. A view of the note in this case is sufficient to justify this remark: there is a promissory note in form.; two .persons sign it; one has a scroll annexed, and the other has none.

Judges Cage and Nicholson concurred.

OPINION OF THE

How. JOHN BLACK.

The first question raised by the demurrer is, whether the instrument declared on as a specialty is to be considered such, having a scroll annex** ed, instead of a seal of wax, or other substance capable of receiving an im„ pression, without words in the body of the instrument itself, declaring the intention of the maker to make a sealed instrument. The statute of this State, Revised Code page 122, enacts that “any instrument to which the person making the same shall affix a scroll by way of seal, shall be adjudged and holden to be of the same force and obligation as if it were actually sealed.

This statute places a scroll on the same footing, and gives to it the same validity as if a seal of wax or wafer had been affixed with all due solemnity; and I think a fair construction of the statute would be to consider every scroll annexed as a seal of wax — and if the instrument would be á specialty if a wax seal had been affixed, to give to a scroll the same eSect. A general view of all the authorities on the subject of deeds, convinces me that at common law an instrument in writing, sealed and delivered between the parties, would be -talid as a specialty, although there be no memorandum or note made in the body of the deed, stated the signing, sealing, & c.; nor would it be a specialty on account of such note or memorandum, (usually commencing in enjus rei testimonium) unless the seal were actually affixed. This is nothing more than a memorandum, made in testimony of a fact done, and is not necessary to the efficacy of the fact itself: it is not the essence of the deed, and no material part of it. The fixing the seal is the act itself for the commemoration of which it is inserted.'

If an instrument in writing would be considered a specialty when sealed with wax, without any statement thereof on the face of the instrument itself, I should suppose that it would irresistibly follow that a scroll having the same effect, “force and obligation,” by our statute, with such seal, would make it a specialty. The reasons given by the Supreme Courts of Virginia and Alabama why they will not, under enactments similar to our own consider a scroll as a seal unless there are words embodied in the instrument shewing the intention of the parties signing to make a specialty, are, according to my conception of them, legislative rather than judicial reasons. They say the facility with which a holder could commit forgery .by fixing a scroll, and thereby alter the liabilities of the maker, would be too .great.

This might have been a good reason why the Legislature ought not to have passed such an act, or to shew that they should have guarded it with some reservation and restriction, but is, I apprehend, no reason why the Court ought not to give all the effect to a scroll which the words of the act itself seem to require. Besides, I think the apprehensions of the Courts are groundless — for it would be at least as easy to detect a forgery of a scroll as of a common seal, which, in the general, is nothing more than a piecd of paper fastened to the end of a man’s name with a bit of wafer. It has been said that unless this rule were adopted, any flourish at the end of a signature, or any where on the note, might be taken for a seal; but it may be answered, that, in the language of the statute, that the party did affix “a scroll by way of seal,” and when that is apparent, it must have the «‘force and effect of a seal;” and I should think that such intention might be as well gathered from the act affixing the scroll, as from a declaration in the instrument that it was done. The word (seal) within the scroll, or {L. S.) clearly denotes the intention to make a scroll.

Great importance in former days was attached to the act of. fixing the seal on account of the supposed solemnity and deliberation with which it was done; and if we were to judge of the deliberateness of some grantors of former times by the size of the seals they appended to their instruments! there would be much apparent ground for supposing it to be great. Buj in the present day wb«u these ponderous appendages have dwindled down to nothing more than a little paper and wafer, I see no more solemnity and deliberation in fixing a common seal than in making a scroll. This decision has apparently been dictated rather by that repugnance which many feel to an innovation on such an immemorial, though at the present day, rather useless custom, than by a strict interpretation of the will of the Legislature derived from the words of the act itself — and savours of a desire to have something more, in order to give the instrument something which will approach nearer the solemnity of sealing than the act of Assembly apparently required.

This question is said by one of my brother Judges to have been settled in this Court by an adjudicated case some time since; and the practice of the country has become conformable to it on that account. I will assent that the rule shall not be altered) although I am unable to perceive the reasons upon which it is founded.

The second point raised by the demurrer is whether debt will be on this instrument, which is as follows: — “On the first day of January, 1829, I promise to pay Edward Mitchell the sum of eight hundred and thirty-three dollars, payable in cotton at nine cents, with the benefit of the rise at the time, to myself, which cotton shall, on that day, be delivered at Vicksburg» to him or his agent, in good order, and shall class with prime cotton, which if not punctually paid, I bind myself to pay legal interest of the State on the amount from the date hereof. Given under my hand this 29th day of December, 1827.

(Signed) WYLIE BOHANNON. ' (Seal.)

The draft promises to pay $833, payable in cotton, and stipulates the price and quality of the cotton, and place of delivery. If the contract had stopped here, I have no doubt but this would be the proper and fair interpretation of the contract — i. e., the draft promised to deliver so much cot” ton as would amount to the sum of $833, at the time and place mentioned. He would have been bound to pay in cotton, and the sum mentioned in the note would only serve to ascertain the quantity of cotton which might be more or less, as the price might be higher or lower. The defendant would not have been discharged by tender of tW money — for the promisee migh* insist on the cotton. But the stipulation for the payment of the interest from date, (a circumstance overlooked by counsel) appears to alter the effect of this contract. He has stipulated the damages: in the event of non delivery of the cotton, he is to pay legal interest from date of note. It appears the defendant has reserved to himself the privilege of delivering the cotton, or of paying the principle and interest. Could the plaintiff, on de. fendant’s failing to deliver the cotton, have refused the principle and inte, rest? That is what he was entitled to demand, on defendant’s failing in de_ livery of cotton — and debt will lie for the recovery. I consider this circumstance as varying the case from those cited by defendant’s counsel, in 1 Bibb, 4872 Bibb 584 — Hardin 118: which cases were determined on the ground that the defendants (the promisors) were bound to deliver the property, and that an offer of the amount in money would not have discharged them; Therefore, these were considered as contracts for the delivery of property — not for the payment of money; and debt cannot be maintained in such casos.

The judgment must be reversed, because the court below erred in overruling so much of the demurrer as objected to this instrument as a specialty. The demurrer to plaintiffs declaration sustained; but being of opinion that debt may be maintained on this writing, the cause will be remanded with leave to amend.

Judge Nicholson concurred.  