
    John J. Whittington, Claiborne Steele, and Samuel Edwards, vs. Deborah E. Clarke.
    Under the statute of this state, whenever it is manifest that a scroll is in tended to be used by way of seal, it must have that effect, whether it so appears from the body of the instrument, or from the scroll itself; any affixture therefore to an obligor’s name in an instrument, and in the locus sigilli, manifestly intended to be used by way of seal, is sufficient to have that effect.
    An instrument containing in the body of it the words “ sealed with our seals,” and the word “seal” either written or printed opposite to, or against each name signed to it, is, under our statute, a sealed instrument.
    The use of the word “ seal,” whether written or printed, in the locus sigilli, under our statute, has the effect of a seal.
    Error from the circuit court of Warren county; Hon. George Coalter, judge.
    This was a motion made in the circuit court of Warren county, at the April term, 1845, by Deborah E. Clarke, for an award of execution, on a bond, executed by John J. Whittington, with Claiborne Steele and Samuel Edwards as sureties therein, for the purpose of replevying property, which had been dis-trained for rent. The distress was made on the 13th day of January, 1845, and the bond executed on the next day. In the body of the bond, was contained the words “ sealed with our seals,” and affixed to each name, was the word “ seal, ” printed. On the 14th day of May, 1845, the circuit court of Warren county, awarded execution on the bond, for $600, the penalty thereof, to be discharged by the payment of $300, with interest thereon, at the rate of six per centum per annum from the 13th day of January, 1845, till paid, and the costs. On the 24th day of June, 1845, the defendants in the execution by petition to the clerk of the circuit court, obtained a writ of error, and have brought the case to this court.
    
      Sharkey and Anderson, for plaintiffs in error.
    It is assigned for error that the court below rendered judgment on an instrument not under seal.
    The intention of the plaintiffs in error to make a sealed instrument is evinced, by the words “ witness our hands and seals,” used in the body of the writing: but nothing is affixed to their signature which can be considered a substitute for a seal, unless the written word “seal,” which appears after the signatures in the record, may be called a scroll, which would bring it within the statute. How. & Hutch. 617.
    It is believed that the written or printed word “ seal ” following the signatures, can have no more effect than the same word used in the body of the instrument, unless it be surrounded by a scroll.
    In the case of Taylor v. Glaser, in 2 S. & R. 502, it was decided that a flourish of a pen in imitation of a seal, will answer where there is proof that it was intended for a seal, but the mere assertion in the body of the instrument was held not sufficient proof; and in that case, it is worthy of remark, there were subscribing witnesses to the instrument over whose names were written the words “sealed and delivered in presence of,” yet this was held not a sealed instrument: the reason of the decision must have been that, those words, above the names of the subscribing witnesses, could have no more effect, than the words in the body of the writing, widening the intention of the parties, which intention was not carried out by affixing a scroll.
    Suppose, after the names of the parties, were added the words “ witness our seals,” and yet no scroll attached to the word “ seals,” would it be contended that these words could give the instrument any greater dignity than the same words used above the signatures? Yet that supposition in no wise differs from the present case.
    The authority just cited does not conflict with the case of 
      Long v. Ramsay, 1 S. & R. 72, where it was decided that a seal made with a flourish of pen is sufficient. In that case the opinion of the' court below was overruled, because the judge charged, that the “flourish of a pen” was not a seal, which was a matter of fact, which should have been referred to the jury. We fully admit the force of the authorities deciding that any flourish of a pen, square, round or oval, which is adopted as a seal, will be sufficient to make the writing a specialty; the same authorities are clear that no words declaratory of intention, will be sufficient, unless there is some such flourish made with the pen, and it must be shown that such was adopted as a seal.
    In 7 Gill & Johns. Rep. it was decided, that however clear may appear to have been the intention of the parties to make a seal, yet if from accident or mistake they omit to attach a scroll, it cannot be regarded as a sealed instrument. A case we think analogous to the present one, where the intention of the parties may be sufficiently clear, yet a certain formality was omitted necessary to complete the instrument.
    It is doubted whether the error assigned appears upon the record, no bill of exceptions having been taken in the court below. The instrument which purports to be a bond given for property distrained for rent, under the statute, H. & H. 559, is set out in the record, and we think constitutes a necessary part of the record, because it is the foundation of a judgment. It is certainly decided in numerous cases in Howard’s Rep. that a forthcoming bond, which has the effect of judgment when forfeited, is no part of the record ; but the judgment upon a forthcoming bond is such by the mere operation of law, no judicial sentence being necessary to be pronounced ; we think there is a distinction between the judgment in that case, and the one now under consideration, which is a judicial judgment, which the statute authorizes the court on motion to pronounce on the bond itself; such a judgment must be founded on something which appears upon the record on which it may be given, and this we think must be the bond, otherwise, there would be no allegata on the record on which-a judgment could be founded. Moreover the statute provides that the bond shall be lodged with the court having jurisdiction of the amount; and unless it be spread upon the record, it would not appear whether the judgment is upon such a bond as the statute requires.
    
      Smedes and Marshall, for the defendant in error.
    The counsel for the plaintiffs in error, insist that the judgment of the court below should be reversed, because the bond given to replevy the property distrained was not sealed by the obligors; that though strictly formal in all other respects, the parties omitted to affix their seals to it; the printed word seal was affixed to the name of each of the parties, but that did not make it a valid bond under the statute, nor in fact a bond at all. Before proceeding to the examination of this question, let us first inquire whether it can properly arise on the record now before this court. There was no bill of exceptions filed in the court below. The circuit judge has not certified to this court that the bond which the clerk has been pleased to insert in this record, is the same bond upon which the judgment of the court below was founded. Nor is there any evidence in the record, admitting the bond copied into it to be properly there, from which this court can know whether the word seal affixed to the names of the several parties who signed the bond, was written or printed. We submit the question, however, whether the bond, not having been made part of the record by a bill of exceptions, can be considered by this court at all. No written or parol evidence, introduced in the court below, is, as we maintain, a part of the record, unless made so by a bill of exceptions; and the fact of its being spread out in the record by the clerk, can make no difference. The judge, before whom the case is tried, must certify the evidence adduced on the trial, not the clerk. This court has repeatedly decided that forfeited forthcoming bonds, and the executions issuing thereon, constitute no part of the record, unless made so by bill of exceptions. 2 How. 845; 5 lb. 278; 6 lb. 580; 1 S. & M. 629; 2 lb. 52. But it is contended, that the bond in the case under consideration is the foundation of the judgment; and, consequently, a necessary part of the record, whether made so by a bill of exceptions or not. So, we answer, is the forthcoming bond, the foundation of the statutory judgment on which the execution issues. And so is a promissory note, or bill single, or any other bond on which a suit is brought, the foundation of the judgment rendered in either case. And yet we apprehend that none of them would be a part of the record, unless made so by a bill of exceptions. They are all set out in the declaration, precisely as the bond in this case is set out in the motion. The motion here, is in the nature of a declaration ; and the bond is merely evidence to support it. And we see no good reason why this bond is any more a part of the record, without a bill of exceptions making it so, than would be the forthcoming bond, promissory note, or bill single, in the cases above enumerated. Admitting, however, that the bond in this case is a part of the record, how can the court say whether the word seal was printed or written, if indeed it makes any difference? The counsel for the plaintiffs admit, if the word seal had been written by the parties themselves, it would have been a sufficient scroll under the statute, H. <fc II. 617, to have made it a valid bond. "Why, let us ask, would that have made it a valid bond ? Because it would then be manifest, that the obligors intended to adopt it as their seal. Hence, we insist, that any kind of scroll, whether written or printed, and whether oval, round, square, or whatever shape it may be, which the parties adopt, as their seal, is a good seal. How then, are the court, to arrive at the intention of the parties? Clearly not from the shape of the scroll, nor from whether it be printed or written, but from the words used in the written instrument. This court has decided that a printed scroll is as valid as one made with a pen and ink. See Wanzer v. Barker, 4 Howard, 363. And the courts, in the various states, having statutes similar to ours, have uniformly held, that whenever the parties state in the body of the instrument, they “ sealed it with their seals,” or use language clearly.showing their intention to make it a sealed instrument, and there is any kind of scroll, no matter of what shape, annexed to their names, that the instrument is a sealed one. See 1 Dali. Rep. 63; 1 Serg. & Rawle, 72; 2 lb. 502; 3 Gill & John. 234; 7 lb. 284; 4 McCord, 267; 1 Wash. Rep. 42 and 170; 2 lb. 63; 1 Ala. Rep. 187; 1 Blackf. Rep. 322; 3 Men. 376. In 2 Serg. & Rawle, 502, it was held, that even a flourish under the name, if there be affirmative proof that the instrument was delivered as a sealed instrument, is sufficient. In the present case, how does this court know that it was not expressly proven that the bond was delivered as a sealed instrument, and, further, that the obligors actually adopted, in the presence of witnesses, the printed word seal, as their scroll 1 Such proof might have been given, and this court, in the absence of all evidence to the contrary, will presume it was given. We are aware, that in New York and most of the New England states, where they have no statute similar to ours, an ink or printed scroll will not do. But the decisions in those states can have no application to this case. We are fully convinced, that even if the question made by the counsel for the plaintiffs in error is fairly presented by the record, the judgment is fully sustained by authority, as well as sound reason, and will therefore be affirmed by this court.
   Mr. Justice ThacheR

delivered the opinion of the court.

Judgment was rendered in the circuit court, upon a motion for an award of execution upon a replevy bond given in a distress for rent.

It is objected that the instrument upon which the award was claimed was not duly sealed.

The instrument in its body contains the words sealed with ®ur seals,” and against each name is written the word “ seal.”

It is enacted, in this state, 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.” In the case of McGuire v. McRaven, decided at this term, a deed was sealed by a circular scroll containing the word “seal,” and it was held, that whenever it is manifest that a scroll is intended to be used “ by way of seal,” it must have that effect, whether it so appears from the body of the instrument, or from the seroil itself. From this decision, it is deducible that any affixture to an obligor’s name in an instrument, and in the locus sigilli, manifestly intended to be used by way of seal, is sufficient to have that effect. The object of the statute is plainly to remove the’ inconvenience that elsewhere exists, requiring a seal to be an impression upon wax, wafer, or some other tenacious substance capable of being impressed. The use of the word “seal” in locus sigilli is open to less doubt than the use of a flourish; and critically viewed the letters of the word actually form a scroll.

It is contended in argument that the word “ seal” was printed and not written. This does not appear by the record, and if it did, the same course of reasoning and conclusion would be applicable to the word in that foym as if it had been written.

It is very doubtful whether the foregoing question is presented to this court in the proper channel, but as it exists in the case, we seize the occasion to settle it conclusively.

Judgment affirmed.  