
    ANDREW CORRIGAN v. THE TRENTON DELAWARE FALLS COMPANY.
    ■ The impression of a distinctive corporation seal on an instrument calling for the seal of the corporation, held to be a seal.
    On a bill filed May 29th, 1843, against The Trenton Delaware Falls Company, by Andrew Corrigan, a judgment creditor of the said company, for himself and all others the creditors and stockholders of the said company, who should come in and seek relief by and contribute to the expense of the suit, stating the insolvency of the company, and the supension of its ordinary business for want of funds to carry on the same, an injunction was granted, and receivers were appointed to take possession of the property of the company, under and by virtue of the provisions of the act entitled “ An act to prevent frauds by incorporated companies,” passed February 16th, 1829.
    
      In the progress of the cause, and on the 20th of January, 1845, in pursuance of an order theretofore made in the cause, directing the receivers to ascertain and report the amounts and order of priority of the mortgages and judgments, and the amount of other debts due from the company, the receivers made report accordingly. This report was brought before the Chancellor on separate appeals of several judgment creditors and a mortgage creditor of the company. A number of exceptions were taken to the report. The exception which was argued prior to this term, was an exception to several of the mortgages reported as having been given by the company, on the ground alleged, that they were not executed under a lawful seal. The concluding clause of the mortgages, respectively, calls for the seal of the corporation, and the impression of a seal purporting to be the distinctive seal of the corporation, at the proper place for a seal, appeared on the papers on which the writings purporting to be mortgages, respectively, were written, without wax or seal or any other substance.
    
      W. Holsted, for the appellants, cited 1 Hal. 169; 6 Hal. 178; 5 Johns. Rep. 238; 2 Hill’s Rep. 227; 3 Ibid. 493; and contended that a mere impression on the paper was a nullity.
    
      H. W. Green, oontra.
    
    The impression of the seal is there, and the attestation is correct. The question is, is this a seal ? Our Supreme Court has decided that an ink scroll is no seal, except in instruments for the payment of money. The case cited by Mr. H., from 5 Johns., decides that an ink scroll or device is not a seal.
    In 3 Inst. 169, it is said, “ Sigillum est cera impressa, et sine impressione nullum est sigillumP This proves too much; for it is clear that a wafer and paper is good without an impression. He read from Perkins, §§ 134, 136, and from 2 New York Term Rep. 362. In Virginia, an ink scroll is sufficient, if the concluding clause calls for a seal. 1 Wash, Rep. Ct. of Appeals in Virginia, 42, 171. In Pennsylvania, an ink scroll is sufficient, and this independent of statuie. 1 Dall. 63; 5 Binney 241; 1 Serg. and, Rawle 72; 2 Ibid 
      503; 1 Waits 322. In Bee’s Rep. 140, the doctrine is, there, must be something capable of receiving an impression. He cites 4 Grif. Law Reg. 1201, note 1. New York and New Jersey are the only two states in which it is held that a scroll is insufficient. --He is not aware that the question should be considered so settled by the cases decided in our, Supreme Court, as to control the opinion of this court. In reference to the late decisions in New York, reported in Hill’s Rep., he says the Kents and Spencers of New York are gone.
    The wax is not the seal, but the impression. Here is the impression, incapable of being erased. Where is the common sense of first putting paste, and then paper over it, and then an impression ? The wax is abandoned, the impression is abandoned, out Chief Justice Kent said there must be some sticking, substance yet. • This corporation say they have annexed their seal, and if the seal is to be proved, a witness may be called to prove it is their seal. He hopes the courts in this state will not follow the further step taken in the cases in New York, reported in Hill’s Rep. If we go to the common law, we must have wax and an impression. The doctrine contended for on the other side would lead to disastrous consequences. This question as to a corporate seal is new in this state. Again, the instruments are acknowledged as the deeds of the company, and are recorded, and the judgment creditors had notice of these mortgages.
    
      J. Wilson, on the same side, said that the mere impression has been used on the process of this court and is used in proceedings of the United States.
    
      Mr. Halsted, in reply. This is simply a question between two creditors, who shall have the fund. He thinks the question is decided by the Supreme Court, and that this court will simply declare what the law now is. The Chancellor, on mere questions of law, follows the decisions at law. If those decisions are wrong, let them be overruled by the Court of Errors. The authorities cited by Mr. Green, except the case in Watts, were before our Supreme Court when they gave the- law in the case cited. Suppose Chief Justice Kirkpatrick and Chief Justice Ewing were led in this matter by Chief Justice Kent, who Mr, Green said dealt in classics as well as in civil law ; and suppose the opinion of this court should be different from the decisions of our Supreme Court; is this the place to set those decisions aside ? This court is only concurrent with the Supreme Court; and courtesy requires that it respect the opinion of that court. Shall the two courts come in conflict on this question ? It is a common law question, belonging appropriately to the Supreme Court; and if Mr. Green’s argument is good, it destroys the decisions of that court. It was said there is a distinction between corporate seals and the seals of individuals. Has a corporation any better right to say what shall be a seal than an individual has ? It was said the corporation declared it to be their seal. Did not the individual who executed the indenture, in the case decided by the Supreme Court, declare the same thing ? Suppose I put a scroll to a paper writing purporting to be my deed, and call it a seal, does that make it a seal ? This court has nothing to do with consequences. The practice as to subpoenas in chancery, if it ever was as Mr Wilson says it was, has been corrected. Perhaps the decisions of the Supreme Court corrected that loose practice.
    The Chancellor intimated that if either party desired it, he should be disposed to send the question to the Supreme Court, as the more proper tribunal for its decision ; but if not, he would decide it. Neither party expressing such desire, the Chancellor said he should hold that the mortgages were well sealed. The opinion is as follows:
   The Chancellor.

I do not consider the decisions of the

Supreme Court in reference to ink scrolls, as ruling this question. According to Lord Coke, a seal is wax with an impression, because wax without an impression is not a seal. “ Sigillum est cera impressa, quia cera sine impressione non est sigillum.” It is olear that by this definition the impression makes the seal. It is true that if this definition is strictly taken, there must not only be an impression, but that impression must be made on wax. But the impression is the sine qua non of Lord Coke’s seal; the wax is only auxiliary ; it adheres to the paper and receives the impression, and is the material which annexes the impression to the instrument. But we have long since grown out of the substance or essence of Lord Coxe’s definition, the impression ; the question is, are we yet fast in the wax ?

We have said by long practice, that both these were not necessary. With which of them would Lord Coke have been the better satisfied? Clearly with the impression; nay, he would not have dispensed with that at all. What proportion of the seals used on private papers now-a-days would fall within his definition? A wafer placed at the end of the-name, with a piece of paper on it, or without the piece of paper, and without any impression, is a seal; and by the same rule or reasoning or absence of reasoning, a drop of sealing-wax dropped in proper position in relation to the name, and without impression, or bit of paper upon it, would be a seal; provided the writing called for a seal. Lord Coke’s definition has been entirely departed from, and the mere wax or wafer, put on to receive the seal, is recognized as the seal. How can it be said that the impression, the essence of the definition, appearing on the paper, is no seal, because it is impressed without wax? Chief Justice Kent, in the case of Warren v. Lynch, 5 John. Rep. 238, which decides that an ink scroll is no seal, says, “the law has not, indeed, declared of what precise materials the wax shall consist; and whether it be a wafer or any other paste or matter sufficiently tenacious to adhere and receive an impression, is, perhaps, not material.” Is any such matter material, then, if the seal can be impressed without it? In the above cited case, Chief Justice Kent says, “ the scroll has no one property of a seal.” It is evident from this that he does not consider a scroll as an impression ; and here there is a distinction between the case of Warren v. Lynch, as to scrolls, and the like decisions of our Supreme Court, and the case before us; for here the impression appears, and it is the impression of the corporate seal, the known, recognized and distinctive seal of the party executing the paper. If wax without the impression of a distinctive seal has come tc be a seal, I do not see why the impression of a distinctive seal on the paper itself should be rejected as no seal, simply because it is made to appear on the paper without wax.

Perhaps as succinct and sensible an account of the ancient use of seals as is to be found, is that given in 1 Morgan’s Es says 83. It is there said, “ The seals of private persons are not full evidence by themselves, for it is not possible to suppose these seals to be universally known, and consequently they ought to be attested by something else, i. e., by the oath of some that have knowledge of them ; [that is, knowledge that the person whose seal it purports to be, uses that seal;] and when these seals are thus attested, they ought to "be delivered in to the jury, because, though part of their credit arises from the oath that gives an account of their sealing, yet another part of their credit arises from the distinction of their own impression ; for certainly every family had its own proper seal, as it is now in corporations. By this they distinguished their manner of contracting one from, the other, and by false impressions of the seals they discovered a counterfeit contract; and therefore it was not the oath, but the impression of the seal accompanying it, that made up the complete credit of the instrument. But since, in private contracts, the distinction of sealing is in general worn out of use, and men usually seal with any impression that comes to hand, to be sure, there must be evidence of putting the seal; because, at this day, little can be discovered from the bare impression.” This is, of course, spoken of private seals, as now used, and not of corporate seals.

In 1805, Justice Livingston, in delivering the opinion of the court in Meredith v. Hinsdale, 2 N. Y. Term Rep. 362, holds this language : “ However ancient the use of seals as a mark of authenticity to instruments may be, or to whatever cause their origin may be ascribed, it is certain that, in modern times, a private seal is not regarded as evidence of truth, or of belonging to the party to whose signature it is affixed ; but that men promiscuously use each other’s seals, without attention to the impression or coat of arms. Thus it is no uncommon thing to see a seal containing the device, arms, and perhaps name of one person, used to authenticate the instrument of another. If it be not necessary, then, that in sealing a deed, the grantor should affix his own, but may adopt the seal of a stranger, why should it be exacted that the materials on which the impression is made should be of wax, wafer, or of any other particu*ar composition? Why should not any impression or mark answer as well as the common mode of sealing, provided it be durable, whether it be stamped on the paper itself, or on something laid upon it, if it be made as a solemn act of confirmation, and deliberately acknowledged as the seal of the party making it.” But the cause was decided on another point. The instrument being made in Pennsylvania, where a scroll is recognized as a seal, the court in New York treated it as such, adopting the law of the place of the contract. At this time Kent was Chief Justice, and Thompson, Livingston, Spencer, and Tompkins, justices.

Five years afterwards, the question came up again before the Supreme Court of New York, in the case of Warren v. Lynch, 5 John. Rep. 238. Kent, Chief Justice, and Justices Thompson and Spencer, were still on the bench, and the places of Justices Livingston and Tompkins had been supplied by Justices Van Ness and Yates. The question in this case arose on a paper writing in other respects in the form of a note concluding, “ Witness my hand and seal,” signed by the maker, with the letters L. S. enclosed in an ink scroll, placed at the end of the name, where a seal is usually affixed-to sealed instruments. The question was, whether by the laws of New York, this was a sealed instrument. The opinion was delivered by the Chief Justice. Before proceeding to examine the question, he takes occasion to say that what was said by Justice Livingston, in Meredith v. Hinsdale, in reference to the ink scroll, was his own opinion, and not that of the court. He then says that the object in requiring seals, as he presumes, was misapprehended by President Pendleton and by Mr. Justice Livingston. It was not, as they seem to suppose, because the seal helped to designate the party who affixed it to his name; for one person might use another’s seal. The policy of requiring seals consists in giving ceremony and solemnity to the execution of important instruments, by means of which the attention of the parties is more certainly and effectually fixed. Now these two ideas are not at all opposed to each other; the reason may be, as Chief Justice Kent states, to give ceremony and solemnity, and yet the seal might, and no doubt did, in ancient times, help to designate the person who affixed it to his name. The expression, “ One person might use another’s seal,” is proof that, in ancient times, before chirography became general, some had their distinctive seals, and that the seal helped to designate the person who affixed it to his name; and if it were not so, why the ancient idea of giving sealed instruments to the jury?

A word as to the solemnity spoken of by Chief Justice Sent. Does it consist in the mere symbol ? Is there any more solemnity in a bit of wafer than in a scroll made with a pen ? The feeling of solemnity, if any, attending the execution of a sealed instrument, arises from a sense of the effect of the instrument, and not from the symbol used to characterize it as a sealed instrument ; and as to the remark of the court, that to adopt a scroll for a seal would be to abolish all distinction between writings sealed and writings not sealed, I apprehend, with great respect, it was not well considered. Our statute authorizing a scroll for a seal to money bonds, has had no such effect, and, on the principle above stated, could have no such effect.

Instruments are now proved by proving the putting of the seal, by producing the subscribing witness, who swears to the signature, and the acknowledgment of the seal. The seal may be wax or wafer, without paper or with, and without impression, and the same man may use, as a seal, one thing to-day and another to-morrow. As seals are used now, there seems to be no good reason why I may not affix a scroll, and acknowledge that to be my seal.

But it is not necessary, on this occasion, to come in conflict with the decisions of the Supreme Court as to ink scrolls. I am of opinion that the impression of a distinctive corporation seal, on an instrument calling for the seal of the corporation, is % lawful seal.  