
    Jones & Temple v. Logwood.
    October Term, 1791.
    ‘.Scrolls — Validity as a Seal. — A scroll Is of equal validity to constitute a deed, as an impression made by a seal on wax.
    Pleading- and Practice-Action on., Bond — Set-Oif—No-tice— Case at Bar. — Notice of sett off is not practised in this State upon plea of payment of the bond ■sued on, and proof made of payments; the plaintiff maj7 give in evidence another bond, due when they were made, and apply the payments to that bond.
    This was an action of debt brought up by the appellee, in the District Court of King and Queen : the declaration is in common form, upon a bond — plea payment. At the trial, the defendants tendered a bill of exceptions, stating, that the plaintiff offered a writing to the jury as evidence in support of the declaration, to which there was no seal but a scroll: and the Court permitting this writing to go to the jury, the defendants excepted.
    *Also the defendants offered in evidence, sundry receipts, to a greater amount than the debt in the declaration mentioned, and bearing date before the institution of this suit : but the plaintiff in opposition thereto, offered in evidence a bond of the defendants, dated on the same day with that mentioned in the declaration, but payable before it, and given for a larger quantity of tobacco ; on which bond no suit had been instituted, and on this bond, some of the receipts were said to be credited : and the plaintiff insisting that not only those receipts, but such as were not endorsed thereon should be applied to the credit of that bond, the defendants objected to its going in evidence to the jury, urging that it was not their deed, and was given for an usurious consideration. But the Court after examining one of the attesting witnesses, who proved the execution of the bond, permitted it to go as evidence to the jury in opposition as well to the receipts which were not endorsed on the bond, as to those which were : to which opinion also the defendants excepted.
    The endorsements on the bond, agree precisely with some of the receipts, as to their amount, and are stated to be in “ part of this bond.”
    Verdict and judgment for the plaintiff and appeal.
    
      
      Scrolls — Validity as a Seal. — Nor the proposition that a scroll is of equal validity to constitute a deed as an impression made by a seal upon wax, the principal case is cited and approved in Currie v. .Donald, 2 Wash. 03; Cromwell v. Tate, 7 Leigh 304; Parks v. Hewlett, 9 Leigh 613; Bradley Salt Co. v. Norfolk, etc.. Co., 95 Va. 462. 465, 28 S. E. Rep. 567. See monographic note on “Bonds” appended to Ward v. Churn. IS Gratt. 801.
      Custom. — See the principal case cited in Baker v. Preston, Gilm. 285.
    
   The PRESIDENT

delivered the opinion of the Court.

It is important that the Court should settle a question so interesting to the community as the following : whether a scroll used as a seal, constituted a good bond before the act of 1788, or whether to make it a seal, wax or something capable of impression, and impressed, was necessary. Acts of Parliament in England, and acts of Assembly in this country, frequently speak of seals ; but none of them define what shall constitute a seal. Nor is there an adjudged case recollected, which determines that a seal must be necessarily something impressed on wax. To consider it upon the reason of the thing ; a seal is required to give solemnity to the act ; and I cannot perceive a difference, in point of solemnity, between the act of impressing wax and that of making a scroll.

Public corporate bodies have a known and fixed seal: and it is necessary that their acts should be under that common seal. In that instance an impression may be necessary, to shew that the act has been done in their corporate capacity.

But what is the private seal of an individual ? Does an impression furnish any criterion by which to decide whether it *be his seal or not ? it is true that some few gentlemen have seals which impress their family coats of arms ; some have such as impress the initials of their names : but these are rare indeed when compared with the great body of the community who have no seals, and who use such as are placed on the writing for them, and make them their own by acknowledging them to be such. In truth and reality then, it is unimportant whether this adoption be of wax or a scroll. Eord Coke in his 2d institute, in a commentary upon a statute which speaks of a seal, says “ a seal is wax with an impression.” But there is neither an act of Parliament nor an adjudged case to bind the Court. It was his opinion only, founded probably on the practice of that day, and if that gives a binding rule, we may by going further back, discover a period of time, when the impression was made with the eye tooth. There was some utility in that custom, since the tooth impressed was the man’s own, and furnished a test in case of forgery. But both are founded on the usage of the times. Scrolls have been long substituted lor seals in this country. The party acknowledges the scroll to be his seal, and as such this court will consider it. If there had been a positive law to bind the court, we must have obeyed it, however inconvenient ; but since none is shewn or recollected, we will not make a precedent, which would not only let loose great numbers of individuals from their engagements, but all or most of the executors, administrators, guardians and perhaps public collectors, from the force of their bonds : a decision which would dishonor government; relax public and private security, and convulse the state.

The late act, if it operates, is conclusive ; if it does not, it is at least a legislative construction of the law in general ; agreeable to, and adding strength to, that of the court.

On this point there is no error.

As to the other point, tho’ notice of a set-off is given in England, it is not usually practised here: both parties seemed to have been prepared, the plaintiff to prove the execution of the bond first payable, and the defendant, his payments : as to the dispute which of those bonds the receipts ought to be applied to, the jury have decided it, and the court think properly.

Judgment affirmed.  