
    *Baird & Briggs, v. Blaigrove Executor of Blaigrove.
    April Term, 1793.
    Scrolls — Failure to Mention in Body of Instrument— Effect.-- — Declaration in case, stating- that the plain tiff having obtained a judgment against one J. G-., and being -willing to give the said J. (1. an opportunity to sell his property to advantage, an agreement was entered into (which is set forth verbatim) between the plaintiff, the testator of the defendant, and the said J. G., whereby the said testator bound himself to sell the balance of the debt, which should remain unsatisfied by the sale of the property, paid by a certain day. That the intention was to favor the said J. G. ; in consideration whereof, the said testator assumed to pay such balance avers a sale made, and that a balance still remained unsatisfied. To the agreement are three scrolls .annexed, opposite to each signature, but it is not said to be sealed in the agreement, the attestation, or declaration. This is not to be considered as a sealed instrument. But if it were so, the agreement is only inducement to the action, the real foundation of which is the subsequent assumpsit, and therefore, it is sustainable.
    Sealed Instruments- Subsequent Parol Agreement.-— A parol agreement made subsequent to one under seal, may be declared upon, though it should alter the terms of the written agreement.
    This was an action on the case, brought by the appellants in the District Court of New Eondon. The declaration states, that the plaintiffs having obtained a judgment against a certain Jeremiah Glenn, and being willing to give to the said Glenn, an opportunity of disposing of his property to the best advantage, to enable him to satisfy the judgment, an agreement was entered into between the plaintiffs, the said Glenn, and the testator of the defendant, (which is set forth verbatim) whereby, the testator of the defendant bound himself to see the balance of the aforesaid debt, interest, and costs, (which should remain unsatisfied, by the property which the said Glenn might sell, for that purpose,) paid by October 1775: that the intention of the said agreement was, to favor the said Glenn, by enabling him to sell his property at the highest price. That in consideration thereof, the said testator, afterwards, &c. assumed upon himself, to pay such balance when required. The declaration then avers, “that the sale by G. was made, and a balance still remained unsatisfied, of which the testator had notice; whereby an action accrued to the plaintiffs, to have of the said testator; the said balance, nevertheless,” &c.
    The agreement stated in the declaration, has three scrolls, opposite to each signature; but no part of the agreement, either in the beginning, conclusion, or attestation, says any thing, about its being sealed. The conclusion is thus “as witness our hands” &c. The attestation thus “teste.”
    Upon the general issue, the plaintiffs had a verdict, and upon motion, the judgment was arrested. Prom this judgment, the plaintiffs appealed.
    Ronald for the appellant.
    The error stated as the ground for arresting the judgment is, that this action is not sustainable, being founded upon an instrument under seal. This might have been a serious objection, if the fact had been true: but it is not, or at least it does not appear to be so, upon the face of the record, for in the first place, the court cannot say, that the agreement was sealed, and if they could, then 2dly, the action is not brought upon the agreement.
    *It is true, there are scrolls to the agreement, which might, or might not have been intended for seals; but it cannot be considered as a deed, unless it be mentioned to be sealed.
    But if it were sealed, the agreement is not the foundation of the action. It is true, the declaration states the agreement, but yet, it avers, that the testator assumed in consideration of the indulgence given to G. not in consideration of the agreement. — This consideration is sufficient to maintain the action, since it might produce loss to the plaintiffs.
    Marshall for the appellee
    Whether this instrument be sealed or not, the court must determine upon an inspection of it, and if so, there can exist no doubt, that there are three seals to each signature. The calling it a sealed instrument, cannot make it one, unless it be actually sealed, which is the substantial part.
    It is not easy to read this declaration, and not consider the agreement, to be the very foundation of the suit. It is set out in haec verba, and the cause of its being made, is mere tautology, that being expressed in the deed, and would have resulted without the averment — the consideration is plainly referable to the agreement and to nothing else. — If it be to any thing else, it is to the intention of making it, which would certainly be an insufficient consideration — an assumpsit, in consideration of an intention in the other party to do a thing, would be clearly a .nudum pactum. — The assumpsit is not stated to have been made, in consideration of an indulgence actually granted. Of course, it must refer to the intention, or to the agreement — if to either, the plaintiff cannot recover — if to the first, there was no right for want of a valid consideration, if to the second, the remedy was misconceived.
    
      
      Scrolls — Failure to Recognize in the Body of the Instrument — Effect.—For a discussion ot this question see, citing the principal case, Clegg v. Lemessurier, 15 Graft. 112.113, and note ; Parks v. Hewlett, 9 Leigh 515, 519, and note ; Austin v. Whitlock, 1 Muni. 492 ; Cromwell v. Tate. 7 Leigh 304, 305. 806 ; Bradley Salt Co. y. Norfolk, etc., Co., 95 Va. 462, 28 S. B. Rep. 567 : Smith v. Henning, 10 W. Va. 631; Keller v. McHuff-man, 15 W. Va. 78.
    
    
      
      Sealed Instruments- • Subsequent Parol Agreement Changing.- -For the proposition that, a parol agreement made subseqnent to one under seal may be declared upon, though it should alter the terms of the written agreement, the principal case is cited in Shepherd v. Wysong, 3 W. Va. 52 ; State v. Harmon, 15 W. Va. 135.
    
   The PRESIDENT.

The court are not satisfied, that this is to be considered as a sealed instrument. It is in no part of it expressed to be sealed — the attestation is the same, as in common simple contracts, not under seal, nor does the declaration speak of it, as being of that dignity — it is true, there are scrolls annexed, but it may nevertheless remain a matter of doubt, whether they are to be considered as the seals of the parties?

However, it is unnecessary to determine this point, as we are of opinion, that if it were a sealed instrument, this action is sustainable. The agreement is only stated as inducement to thát, which forms the real ground of the consideration afterwards alledged. The foundation of the action, is the subsequent assumpsit which is stated in the declaration, and there is *no doubt, but that a parol agreement made subsequent to one under seal, may be declared upon, tho’ it should alter the terms of the -written agreement.

Judgment of the District Court reversed, and entered for the plaintiff' upon the verdict.  