Pequawkett Bridge v. Mathes

7 N.H. 230 | Superior Court of New Hampshire | 1834

Upham, J.,

delivered the opinion of the court. It is admitted by the.pleadings in this case, that the bond declared on is signed by Richard K. Young. ;• and the evidence of. its delivery seems to be. conclusive, from the testimony of Mathes. But the defendant alleges that said Young did. not seal said writing, and it remains to be determined, from the : facts submitted, whether the seal of said Young is affixed, to the instrument, and he thereby became a party to it, so as to render it, necessary that he should be included in the. action, together with the other joint obligors.

The bond contains the. usual allegation, “ sealed with our seals.” The objection, therefore, which has .been urged, that the law will not intend that a party seals an instrument without an express averment to this effect, would seem to be obviated.

The authorities are conclusive, that there may be a less number of seals than of signers to an instrument. It is said that it is not necessary to have on the deed as many pieces of wax, or wafers, as there are obligors, and that one wafer may serve for all. Perkins, Sec. 134 ; Shep. Touchstone, 57 ; Com. Dig. Fait, A 2; 4 D. & E. 313 ; 1 Stark, on Ev. 332 ; 9 Johns 285 ; 2 Caines' Ca. 1; Bradford vs. Randall, 5 Pick. 496; 3 Green. 290. In such cases, the signers adopt one seal ; and we see no reason why two or more, among any number of signers, may not adopt one of several seals.

In this case, when Young put his name to the instrument he must be considered as having adopted one of the seals already affixed. His signature of the bond, with the request that it might be witnessed, and his delivery of the same, coupled with the averment that it was sealed with his seal, is sufficient evidence of a full execution of the instrument. If one deliver as his deed an instrument signed, and sealed by another in his name, it is his deed. Perkins, Sec. 131 ; Shep. Touch. 57; 4 Term Rep. 313.

It is not necessary that the names should appear in the bond. If the obligors, in witness of their obligations to perform certain covenants and conditions, have affixed their hands and seals to the instrument, it is sufficient to bind them. Zouch vs. Clay, 1 Ventris, 185 ; Cromwell vs. Grunden, 2 Salkeld, 462 ; Smith vs. Crocker and al., 5 Mass. 538 ; Hunt, adm’r, vs. Adams, 6 Mass. 519. Neither is it necessary that the subscribing witness see the deed executed. It is enough if the obligor acknowledge it to be his signature, and request the witness to sign. Grellier vs. Neale, Peake’s N. P. Ca. 147 ; Park vs. Mears, 2 Bos. & Pul., 217: Powell vs. Blackett, 1 Esp. 97. In this case, verdict was taken for the plaintiff.

The verdict must therefore be set aside.

After the opinion of the court was delivered, motion was made for leave to summon in the said Richard K. Young, to become a party to said suit, agreeably to the provision in the act of January 5, 1833, and leave was granted,