
    *Austin’s Administratrix v. Whitlock’s Executors.
    Saturday, October 27, 1810.
    i. Sealed Instruments — Scroll—Necessity of Recognition in Body of Instrument. — A scroll annexed to a signature is not sufficient to make a sealed instrument, unless it appear, from some expression in the body of the instrument that it was intended as such.
    
      2. Covenant — Declarations—Sufficiency ot — Case at Bar. — In covenant, on an agreement to convey the party's interest in a certain suit, and (in case the defendant in that suit was not legally bound by bis undertaking) then to convey the right of such party to certain land, a declaration charging a refusal to convey the interest in the suit, or the right to the land, without setting forth a failure to recover in the suit, and a subsequent refusal to convey the land, is substantially defective, and not to be cured by a general verdict, assessing 'entire damages.
    This was an action of covenant, brought in the County Court of Hanover, by Betsy Austin, administratrix of Chapman Austin, deceased, against Martha Whitlock, executrix, and John A. Richardson, executor, of David Whitlock, deceased.
    The declaration set forth that the said David, in his life-time, on the 22d day of February, 1791, by his certain writing obligatory sealed with his seal, &c. obliged himself to convey unto the said Chapman Austin, all the interest of him the said David in a certain suit brought by him against one John Smith in consequence of his the said Smith’s undertaking to become one Giles Carter’s security for the purchase of a tract of land sold by him the said David to the said Carter, lying in the County of Halifax; and in case the said John Smith should not be legally bound by his said undertaking, he the said David in that case obliged himself by his said writing obligatory to convey unto the said Austin, the right which had been conveyed to him the said David, by a certain John Garland of Whom he bought the said land, for and in consideration of a sorrel horse delivered to the said David by him the said Austin, the same day arid year aforesaid. The breach assigned was, that the said David, in his life-time, had not, nor had the defendants, since his death, although often requested, conveyed to him the said Austin, in his life-time, or to the plaintiff, since his death, all the interest of him the said David in the said suit, nor had he or they conveyed to him the said Austin the right which was conveyed to him the said David by the said John Garland, of whom he the said David bought the said land as aforesaid, “the one or other of which he the said David, in his life-time, and the defendants, since his death, ought to have done, according to the form and effect of his said writing obligatory.”
    The defendants, without craving oyer, pleaded “conditions performed,” and, issue being joined, the plaintiff, at the trial, offered in evidence a writing corresponding with that described in the declaration, except that it concluded, “as witness my hand this 22d day of February, 1791,” and was signed, “D. Whitlock,” with a written scroll annexed to the signature: but as it was not expressed on the face of the 488 said writing, that that scroll *was acknowledged by David Whitlock as his seal, and it was not evidenced, as such, by the attesting witness, who was dead, (though his hand-writing was admitted,) the defendants moved the court that the said writing should not go in evidence to the Jury; which motion being overruled, a bill of exceptions was filed. The Jury found a verdict for the plaintiff for 790 dollars damages; and judgment was accordingly entered; but, on an appeal to the District Court holden at Richmond, was reversed; and judgment entered for the defendant; whereupon the plaintiff appealed to this Court.
    Peyton Randolph, for the appellant.
    The County Court decided correctly in receiving the writing in question as a sealed instrument; a scroll being sufficient by virtue of the act of 1789.  Tn the case of Baird v. Blagrove, 1 Wash. 170, (which seems against me,) the agreement was dated before the law giving scrolls the same validity as seals, and Jones & Temple v. Logwood, 1 Wash. 42, is an authority in my favour; for it does not appear that in that case the words, “in testimony whereof I have affixed my seal,” &c. were inserted in the body of the instrument; yet the scroll was decided to be sufficient.
    Wickham, contra.
    I admit that, where a party affixes a scroll by way of seal, it is good as such at common law: for the act of Assembly was only in affirmance of the common law. But here there is no proof that the scroll was intended as a seal.
    But, putting this objection out of the question, no action can be maintained at law on this paper. The covenant is void, as being impossible; and, if it were possible, is against law. One man cannot convey to another his interest in a suit. A chose in action, at common law, is not assignable. The. suit itself cannot pass by a conveyance. If this be not the construction of the contract, but it is to be understood merely as an agreement that Chapman Austin should have the benefit of the suit, this writing was sufficient of itself, and there was no breach.
    The covenant is also against law: for, if not champerty, the first part was certainly maintenance, and the second, or alternative part, was in violation of the act against conveying or taking pretenced titles; there being no averment in the declaration that Whitlock, who covenanted to convey, was in possession of the land. 489 ^Indeed, the contrary is to be inferred from the agreement; and such an agreement is not binding in law or equity.
    2. The declaration is radically defective; containing no averment that Austin lost the benefit of the suit, (in which event only the land was to be conveyed,) and setting forth, in fact, no cause of action, 
    
    Randolph, in reply.
    If a scroll is a seal, per se, it must be so, though not described as such.
    As to Mr. Wickham’s objections to the right of action; I admit that a conveyance of an interest in suit is not binding at law, though it is in equitj': but if a party covenants to do an act which is not immoral, he is bound to do it, whether it be effectual in law or not. The most that could be said against the covenant to convey the obligor’s interest in the suit is, that it would be unavailing; and this is not a sufficient objection ; for parties, if they please, may attach importance to a thing nugatory in itself. But, properly construed, it signifies no more than giving the benefit of the judgment when it should be contained. That part of the agreement was therefore not void: but, if it were, the alternative part was good; and that is enough,  The cases relative to maintenance are not applicable, in all respects, to this country,  If we take only so much of the doctrine as is reasonable, this agreement does not come within its reason or policy. Neither does the statute relative to pretenced titles apply. In 15 Viner, 154, it is said that a title is pretenced “where it is founded in pretence, and nothing in verity; or where a good title is made pretenced by the act of the party.” Under neither of these heads can this case come; for it does not appear that Whitlock’s title was unsound; and it cannot be contended that an equity in lands is not assignable. It does not appear from the agreement, or any other circumstance, that he was out of possession.
    2. The breach was sufficiently assigned in the declaration ; being in the words of the agreement,  Chichester v. Vass is not like this case; for, there, the gist of the action was altogether omitted. But if there was any error, it was cured by verdict. The defendants pleaded “conditions performed.” This was an admission that the conditions were possible, and an averment that they had been performed.
    ^Wickham. If matter of substance be omitted in a declaration, it is not cured by verdict. There was no option to receive the land in lieu of the suit, in any other event than the failure of the suit. It was essential; therefore, to state that circumstance. The declaration only says that Whitlock failed to convey the benefit of the suit, or to convey the land; thus assigning two breaches; the first of which was impossible, for the agreement itself was all the conveyance he could make of the suit; the second was assigned altogether uncertainly and defectively; and the damages assessed are entire.
    Randolph. It is evident that Austin expected, and was entitled to some other conveyance of Whitlock’s interest in the suit; the failure to execute which was a sufficient breach of the Agreement.
    Saturday, Nov. 16.
    
      
      SeaIed Instruments — Scroll—Necessity of Recognition in Body of Instrument. — This subject has been discussed at length in the Virginia and West Virginia authorities collected in foot-note to Clegg v. Lemessurier, 15 Gratt. 108; foot-note to Parks v. Hewlett, 9 Leigh 511; monographic note on “Bonds” appended to Ward v. Churn, 18 Gratt. 801; mono-graphic note on “Deeds” appended to Fiott v. Com., 12 Gratt. 564.
      On the point, the principal case was cited in Cromwell v. Tate, 7 Leigh 306; Parks v. Hewlett, 9 Leigh 515, 519; Clegg v. Lemessurier, 15 Gratt. 112, 113; Smith v. Henning, 10 W. Va. 631; Keller v. McHuffman, 15 W. Va. 78.
    
    
      
      Covenant— Declaration. — See monographic note oa “Covenant, The Action of” appended to Lee v. Cooke, 1 Wash, 306.
    
    
      
       1 Rev. Code, p. 112, s. 36.
    
    
      
      
         1 Rev. Code, c. 30, p. 37.
    
    
      
       Chichester v. Vass, 1 Call, 83.
    
    
      
       5 Vin. 112.
    
    
      
       15 Vin. 152, (E.) pl. 4.
    
    
      
       6 Vin. 445.
    
   The Judges pronounced their opinions.

JUDGE TUCKER,

after stating the case. That a covenant is a deed, and that a seal is one of the essential parts of a deed, is evident from the authorities generally, and especially Co. Litt. 6, a. 35, b. 175, b. 225, a. and b. 229, b., and Litt. s. 371, 372. From several of which, and particularly the last two, it is apparent that the clause of in cujus rei testimonium ought to recite that the maker of the deed hath thereunto put his. seal: for, otherwise, a. supposititious seal may be affixed to any instrument of writing, without proof of the acknowledgment thereof by the maker of the instrument, and a mere parol promise or agreement may be converted into a covenant, which is ait instrument of a much higher nature; insomuch, that what might be considered as-mere nudum pactum, as in the case of Hite, Ex’r of Smith, v. Fielding Lewis’s Ex’rs, in this Court, October 29, 1804, (MS.) may, by the subsequent addition of a seal or scroll, be converted into an obligation which should not only bind'the maker and his executors, but his heirs also. For such would have been the effect of the writing signed by Fielding Lewis, in that case, “whereby he obliged himself, his heirs, executors and administrators to indemnify Mrs. Smith,” as executrix of Charles. Smith, for the latter having become security for his son, if there had been a seal, or scroll, added to that instrument, and acknowledged by the maker, in the clause of attestation. But if such mention be unnecessary in the body of the instrument, 491 how easily may any instrument *of the same kind be converted into one very different from it? The omission of the word “seal” in the clause of attestation, according to the maxim of law, “ex-pressum facit cessare taciturn,” does, in my opinion, preclude all evidence, dehors the instrument, of the execution of it in any other manner than is expressed in the body of the instrument. One of the reasons which are given why a deed must be pleaded with a profert in curia is, that the deed must be brought into Court for the purpose of inspection; and if (as is said in 10 Co. 92, b.) the Judges found'that it had been raised or interlined in any material part, they adjudged it to be void. Now, suppose the word seal had been found interlined in such an instrument as this, and no notice taken by the witnesses that such an interlineation had been made before the execution thereof, and nothing farther said about the seal; would not this have avoided the deed? I presume it would. So deeds, in which were erasures, have been held void, because they appeared, on the face of them, to be suspicious Now what can be more suspicious than the apparent addition of a seal to an instrument, which the maker acknowledges under his hand only? Judge Buller, in the case of Master v. Miller, 4 Term Rep. 339, speaking on this subject, says, “when there is a profert of a deed, the deed or the profert must agree with that stated in the declaration, or the plaintiff fails. But the profert of a deed without a seal will not support the allegation óf a deed with a seal.” Neither, as I conceive, will the profert of an instrument, importing, in the body of it, to be executed under the hand of the party only, support the allegation of a deed sealed with the seal of the party, although a seal be to that instrument in reality affixed; inasmuch as that may be done without the party’s knowledge or intention.

But here an objection arises upon the pleading. It may be said, the defendants have, by their plea of “covenants performed,” admitted the execution of the covenant set forth in the declaration. This is certainly correct: but, inasmuch as oyer was not asked of that covenant, it cannot be alleged that this identical instrument is the deed declared upon, and admitted by the plea. Every objection to the instrument on the ground of variance between the deed alleged in the declaration, and that which was offered in evidence, appears to me to have been still open to the defendant. I am, therefore, of opinion, that the judgment of the District Court was correct, and ought to be affirmed.

* JUDGE ROANE.

As to the objection made to the reception of the writing in evidence in support of the action, I think the impression of the Court in the case of Baird v. Blagrove, is equally correct, and decisive in support of that objection. In this case, as in that, the paper is nowhere stated, in its body, to have been sealed; in this case, as in that, it is merely attested as simple contracts not under seal are; viz., “witness my hand,” &c. and in this case, as in that, a consideration is stated in the writing; which is a circumstance equally- unusual, and unnecessary, in relation to specialties. The mere circumstance of scrolls being annexed was not in that case sufficient to exalt the instrument into a specialty; nor ought it in this; especially, as there is only a single scroll in this case, which possibly might have been inserted through inadvertence or accident; whereas there were three scrolls in that case, whence a more solemn and deliberate execution of the instrument may be agreed to be inferible. The County Court, therefore, erred in admitting this paper in evidence, and the judgment of the District Court reversing its judgment is correct. Were this the only error, the District Court ought only to have awarded a new trial, with directions not to admit that paper in evidence in future; whereas it has given final judgment in favour of the deCendant; and this brings us to the sufficiency of the declaration.

That declaration states that the testator of the appellees obliged himself to convey all his interest in a certain lawsuit then pending against one John Smith, who was security for Giles Carter, “and in case he should not be legally bound by his said undertaking,” then also to convey to said Austin his right to a tract of land; and the declaration assigns breaches in not conveying the interest in the lawsuit, nor the right to the land; without averring, at the same time, that the said John Smith “was not legally bound” by' his undertaking, which is a condition precedent to his being bound by the last covenant. The plaintiff has therefore charged, and recovered damages upon, a breach of a covenant, which is not shewn in his declaration to have occurred, but which, as set out, is inchoate and incomplete, for want of this last-mentioned circumstance.

It is clear that a breach should be so set out as that it may clearly appear to be within the covenant; and, also, that, where a covenant is in the alternative, the breach 493 should be assigned as *to both parts thereof. This doctrine is found in 1 Esp. N. P. 363—366, and is decisive against the sufficiency of the present declaration.

On this ground, then, (without entering into the other points stated in the argument,) I am of opinion to affirm the judgment of the District Court.

JUDGE EEEMING

was of opinion, for the reasons stated by the other Judges, that the County Court erred in admitting the paper in evidence. He also concurred with Judge Roane in pronouncing the declaration essentially defective.

Judgment of the District Court unanimously affirmed. 
      
       Bro. Abr. tit. Facts, pl. 11, cited 4 Term Rep. 323.
     
      
       1 Wash. 170.
     