28 Pa. 489 | Pa. | 1857
The opinion of the court was delivered by
As this case originated before a justice of the peace, but little regard was paid to the form of the action or the nature of the pleadings.
The plaintiff, after proving the handwriting, offered in evidence the following instrument, viz.:—
“ One day after date, I promise to pay to Solomon Miller, or order, forty dollars, for value received. As witness my hand this 12th day of April, 1847.
|40.00. Wm. Binder.” [l. s.]
This evidence was objected to and excluded, and a verdict rendered for the defendant.
There was error in rejecting the note upon which the suit was brought, whether it was sealed or not; but the error was a harmless one unless the instrument offered was a sealed instrument, for, as a promissory note, it was barred by the statute of limitations, and it was not pretended, um^the trial below, nor on the argument in this court, that th^flj^^hbeen an admission of indebtedness, or a promise to pay i^^^^Ryears from the commencement of the suit.
In this state a scrawl, or a mark made with a pen in the form of a seal, is, perse, a seal, and the only question in the case before \ m.
It is conceded that, where the language of the writing is, “ witness my hand and seal,” that it is unnecessary to show, by independent proof, that the seal was affixed at the time of the execution and delivery. But it is insisted upon by the defendant’s counsel, and such was the opinion of the learned president of the Common Pleas, that-where, as in the present case, the words are, “as witness my hand,” the instrument cannot be given in evidence as a specialty, without first proving that it was sealed when delivered.
That the rule has been held in accordance with the decision made in this case by the Common Pleas, in some of our sister states, is undeniable; but in Pennsylvania it is otherwise.
As early as 1786, it was held, in the case of Lesher’s Lessee v. Levan, 2 Dall. 96, that the sealing might be presumed from the evidence of signing. In Long v. Ramsey, 1 S. & R. 71, it did not appear, either from the face of the writing or by any extrinsic proof, that the instrument offered in evidence as a deed, was sealed and delivered as such; but there was a seal at the end of the name made by the flourish of a pen. In delivering the opinion of the court, Chief Justice Tilghman said, “ it is enough if there was a sealing and delivery; of this the jury are to judge, and, upon proof of the handwriting of the obligor, they may presume the sealing and delivery.”
In Taylor v. Glaser, 2 S. & R. 502, the paper concluded, “in testimony whereof, we have hereunto set our hands and affixed our seals,” and there were two subscribing witnesses, over whose names was written, “ sealed and delivered in the presence of,” but there was no seal, nor anything in the place of a seal opposite the name of the party, but there was a flourish under his name; the paper was held not to be a specialty. This is all that the case decides, and it is rather confirmatory of Long v. Ramsey, than otherwise. What was said by the chief justice in commenting upon Austin v. Whitlock, 1 Munford 487, was only arguendo, and not necessary to the decision of the main point.
Austin v. Whitlock was decided by the Virginia Court of Appeals in 1810; but the same point arose in Maryland in the case of Trasker v. Everhart, 3 Grill & Johns. 234, in 1831. And it was there held that, where there was a seal at the end of the signature, the presumption was, that it was affixed on delivery, although nothing was said about sealing in the body of the instru-
The omission of the usual having affixed the seal, is, of itself, of little moment, buBflfflKcoupled with the declaration of “witness my hand,” it wOurcrFe for the jury to say whether the presumption against fraud and in favour of innocence was overthrown. The note should have been re.ceived in evidence, and
Judgment reversed and venire de novo awarded.
