IIemphilll, Cit. J.
This action was brought on three promissory notes described as being under seal; anil the ground of the objection to their introduction in evidence, and on which a reversal of the judgment is sought, is tiiat they are, unsealed instruments, and therefore variant from their description in the petition. There is no statement in the petition that copies of the. notes are attached or exhibited as a part of the petition, or that they were tiled at all; though it appears probable, from the position of the copies in the record, tiiat they were actual 1 y filed with the petition and served on the defendant. [115]*115Had such been (ho case, the question of variance could not have arisen. It is not essential that the instrument be described by its right name in the pleadings, provided a copy be given; for by this tiie question of identity must be settled. Tiie defendant cannot be misled or surprised if the original offered in evidence corresponds with tiie copy in the. petition, although the instrument may bo defectively stated in the pleadings. Tiie facts in relation to tiie character or terms of an instrument cannot be set forth more clearly than by describing or copying it as it is written ; and as this is the most safe method, it should' be adopted, parlicularly where there may be a doubt, as to th<‘ legal effect or character of the instrument. Tiie defendant could not then be jeopardized by the, bringing another suit for the &une cause of action, as tlio former judgment would bar a recovery. And tlio question whether the cause of action is the same would be determined, not by the averments of tiie first petition, but by the copy of the instrument as set forth in the record. (Lockhart v. Dewees, 1 Tex. R., 533; Roberts v. Black, 2 Tex. R., 416.)
As it is doubted whether copies of these notes were attached to tiie petition, it will be necessary to determine whether they were- truly described as being sealed instruments. It seems that before, tiie conquest of England by tiie Normans sealing was not much used, if at all, to authenticate contracts. Such of the Saxons'as could write subscribed their names, and whether they could write or not, (lie sign of the cross was also affixed. The inability to write, which authorized aifillitcratc Saxon to use the sign of tiie cross as a substitute for a signature, induced the Normans to reject signatures altogether and affix waxen seals as evidence of the execution of instruments. This was confined at first to the king and higher nobility, hut at the time of Edward tiie First every freeman and siicli of tiie more substantial villains as were to he put upon juries had their distinct particular seals, (2 Black. Com.. 306; Shep. Touch., 56, 57; 4 Mc. R., 270:) and it was not until tlio statute of 29 C. H, c. 3, more than six hundred years after tiie conquest, that the Saxon custom of signing was again made necessary in grants of land and other species of deeds.
It appears, then, that.the use of seals in England had its origin in the necessities of ignorance; and as long as individuals had their distinct seals with particular devices, their substitution for a signature or their use with a signature might with some show of reason be regarded as tiie best evidence of the authenticity of a deed. But sealing with tiie seal of •another, or with a stick or any sueli like tiling that would make a print was held to be good; and this mode, of sealing certainly afforded no internal evidence of tiie seal being fixed by tin: maker of tiie deed. In England and some, of tiie States it is still necessary to a «cal that an impression should he, made oil wax or some tenacious substance; but in most of the States this mode of sealing lias been disused to sueli an extent, says Chancellor Kent, as to induce, tiie court to allow, but with certain qualifications in some of tiie States, a flourish with the pen at tiie end of tiie name or a circle of ink or scroll to he a valid substitute for a seal. (4 Kent Com., 433.) Tlio mode of sealing with a scroll was early introduced in tlio older Stales. In South Carolina ir, lias been the usage since the revolution, and probably long before, and thus became a portion of tiie common law of those States in the Varne mode that sealing with wax became a portion of tiie common law of England.
That the practice of authenticating contracts between individuals by seal might be advantageously discontinued there is no question. It was not known until tiie introduction of tlio common law in 18-10, nor am I aware that any injury lias arisen or can arise from the want of seals. To require their use for the validity of certain instruments, while signing is sufficient for others, misleads the community, who are not likely to lie apprised of distinctions which wo know from experience, to he perfectly idle, and which frequently occasion the entire destruction of the rights of parties. Whatever maybe, the, case, elsewhere, there- can be but slight advantage from maintaining the distinc[116]*116tion in this State. The legal offeofs and incidents of contracts are generally not affected by the use, of a seal. From this must he excepted conveyances of land and promissory notes, so far as relates to their privilege of negotiability, &e. But. specialties are barred by the same limitations as simple' contracts. They are entitled to no priority in the payment of the debts, and both are alike and equally chargeable on the real and personal property of a succession; and when made the foundation of an action, the adverse party is entitled to a profert of either species of contract, or, in other words, to have copies of them filed.
But as the distinction is recognized by law, and the custom of sealing with a scroll has generally superseded the impression upon an adhesive substance, I see no reason why one should be held any better evidence of sealing than the other. The impression upon wax can be more easily obliterated than the flourish with the pen, and the latter has this advantage, if no other, over the former mode. It may be said that any one may attach the scroll to the in-strujnent, but this applies equally to the other mode, as any one may make an impression on wax, paste, &e.; and the law does iiot require it to be done with the particular seal of the obligor, or with any seal at all. AVere separate seals with special devices in general use, and were the makers of instruments confined to the use of their own seals, there would then be some reason in requiring an impression tó be made with these sales, and some advantages over flourishes with a pen; but there is none in sealing' according to the ordinary usage.
In this case there is not only a scroll, but within this is written the word ■“seal."’ Can this be intended for .any other purpose than as a declaration that he has affixed his seal ? If written in his own handwriting, it is as sus-ceptable of proof as his signature; and if in that of another, the fact of his assent can be established by the same evidence that would be required if a seal of wax had been used. If it be admitted (and it seems to be established by general usage, that a scroll may he used as a seal, the question of whether it was actually affixed for that purpose becomes one of intention,'but not more so than if an impression had been made on wax. In either case, if there be in the body of the instrument an acknowledgment that it is sealed, a seal or scroll affixed would raise a strong presumption that it was placed there for that purpose.
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IIemphilll, Cit. J.
This action was brought on three promissory notes described as being under seal; anil the ground of the objection to their introduction in evidence, and on which a reversal of the judgment is sought, is tiiat they are, unsealed instruments, and therefore variant from their description in the petition. There is no statement in the petition that copies of the. notes are attached or exhibited as a part of the petition, or that they were tiled at all; though it appears probable, from the position of the copies in the record, tiiat they were actual 1 y filed with the petition and served on the defendant. [115]*115Had such been (ho case, the question of variance could not have arisen. It is not essential that the instrument be described by its right name in the pleadings, provided a copy be given; for by this tiie question of identity must be settled. Tiie defendant cannot be misled or surprised if the original offered in evidence corresponds with tiie copy in the. petition, although the instrument may bo defectively stated in the pleadings. Tiie facts in relation to tiie character or terms of an instrument cannot be set forth more clearly than by describing or copying it as it is written ; and as this is the most safe method, it should' be adopted, parlicularly where there may be a doubt, as to th<‘ legal effect or character of the instrument. Tiie defendant could not then be jeopardized by the, bringing another suit for the &une cause of action, as tlio former judgment would bar a recovery. And tlio question whether the cause of action is the same would be determined, not by the averments of tiie first petition, but by the copy of the instrument as set forth in the record. (Lockhart v. Dewees, 1 Tex. R., 533; Roberts v. Black, 2 Tex. R., 416.)
As it is doubted whether copies of these notes were attached to tiie petition, it will be necessary to determine whether they were- truly described as being sealed instruments. It seems that before, tiie conquest of England by tiie Normans sealing was not much used, if at all, to authenticate contracts. Such of the Saxons'as could write subscribed their names, and whether they could write or not, (lie sign of the cross was also affixed. The inability to write, which authorized aifillitcratc Saxon to use the sign of tiie cross as a substitute for a signature, induced the Normans to reject signatures altogether and affix waxen seals as evidence of the execution of instruments. This was confined at first to the king and higher nobility, hut at the time of Edward tiie First every freeman and siicli of tiie more substantial villains as were to he put upon juries had their distinct particular seals, (2 Black. Com.. 306; Shep. Touch., 56, 57; 4 Mc. R., 270:) and it was not until tlio statute of 29 C. H, c. 3, more than six hundred years after tiie conquest, that the Saxon custom of signing was again made necessary in grants of land and other species of deeds.
It appears, then, that.the use of seals in England had its origin in the necessities of ignorance; and as long as individuals had their distinct seals with particular devices, their substitution for a signature or their use with a signature might with some show of reason be regarded as tiie best evidence of the authenticity of a deed. But sealing with tiie seal of •another, or with a stick or any sueli like tiling that would make a print was held to be good; and this mode, of sealing certainly afforded no internal evidence of tiie seal being fixed by tin: maker of tiie deed. In England and some, of tiie States it is still necessary to a «cal that an impression should he, made oil wax or some tenacious substance; but in most of the States this mode of sealing lias been disused to sueli an extent, says Chancellor Kent, as to induce, tiie court to allow, but with certain qualifications in some of tiie States, a flourish with the pen at tiie end of tiie name or a circle of ink or scroll to he a valid substitute for a seal. (4 Kent Com., 433.) Tlio mode of sealing with a scroll was early introduced in tlio older Stales. In South Carolina ir, lias been the usage since the revolution, and probably long before, and thus became a portion of tiie common law of those States in the Varne mode that sealing with wax became a portion of tiie common law of England.
That the practice of authenticating contracts between individuals by seal might be advantageously discontinued there is no question. It was not known until tiie introduction of tlio common law in 18-10, nor am I aware that any injury lias arisen or can arise from the want of seals. To require their use for the validity of certain instruments, while signing is sufficient for others, misleads the community, who are not likely to lie apprised of distinctions which wo know from experience, to he perfectly idle, and which frequently occasion the entire destruction of the rights of parties. Whatever maybe, the, case, elsewhere, there- can be but slight advantage from maintaining the distinc[116]*116tion in this State. The legal offeofs and incidents of contracts are generally not affected by the use, of a seal. From this must he excepted conveyances of land and promissory notes, so far as relates to their privilege of negotiability, &e. But. specialties are barred by the same limitations as simple' contracts. They are entitled to no priority in the payment of the debts, and both are alike and equally chargeable on the real and personal property of a succession; and when made the foundation of an action, the adverse party is entitled to a profert of either species of contract, or, in other words, to have copies of them filed.
But as the distinction is recognized by law, and the custom of sealing with a scroll has generally superseded the impression upon an adhesive substance, I see no reason why one should be held any better evidence of sealing than the other. The impression upon wax can be more easily obliterated than the flourish with the pen, and the latter has this advantage, if no other, over the former mode. It may be said that any one may attach the scroll to the in-strujnent, but this applies equally to the other mode, as any one may make an impression on wax, paste, &e.; and the law does iiot require it to be done with the particular seal of the obligor, or with any seal at all. AVere separate seals with special devices in general use, and were the makers of instruments confined to the use of their own seals, there would then be some reason in requiring an impression tó be made with these sales, and some advantages over flourishes with a pen; but there is none in sealing' according to the ordinary usage.
In this case there is not only a scroll, but within this is written the word ■“seal."’ Can this be intended for .any other purpose than as a declaration that he has affixed his seal ? If written in his own handwriting, it is as sus-ceptable of proof as his signature; and if in that of another, the fact of his assent can be established by the same evidence that would be required if a seal of wax had been used. If it be admitted (and it seems to be established by general usage, that a scroll may he used as a seal, the question of whether it was actually affixed for that purpose becomes one of intention,'but not more so than if an impression had been made on wax. In either case, if there be in the body of the instrument an acknowledgment that it is sealed, a seal or scroll affixed would raise a strong presumption that it was placed there for that purpose. But as the acknowledgment without the seal will not make an instrument a specialty, so if it be omitted, and the seal be actually affixed, its character or legal effect as a decid or specialty slionld not be destroyed. (Harp. R., 3; 1 Bibb R., 492.) It is well settled that it is the seal and not the acknowledgment of f ho party that constitutes the deed. (4 McC. R., 272; Bae. Abr., Obligations, C., p. 159; 4 Comyn’s Dig., 157.) Sealing and delivery are essential to a bond, yet there is no occasion to mention in the bond that it was sealed and delivered. (Bac. Abr., Obligations.) In this case the intention of the parly to seal seems as palpable as if he had used the words “ witness my baud and seal.” Bet ns.suppose that he liad written within the scroll “ tins is my seal: ” his intention could certainly not he questioned; and it seems equally manifest when tile word “seal” alone is used.
Tt may be said that, by the statute concerning conveyances, a scroll cannot he regarded as a seal unless the person making'the same shall, in the body of the instrument, recognize such scroll as having been affixed hy way of seal. It is extremely questionable whether any instrument is embraced in the provisions of the statute except conveyances of lands. The provision is found in an act concerning conveyances. That is the subject-matter of the statute; and unless the intention of the Legislature be very clear, such construction slionld not he given to the law as would extend its operation beyond Us declared purpose. The provision referred to is found in the first section, in dose connection with regulations relative to conveyances, as will be seen from the context, which is as follows : “ Ho estate of inheritance or freehold or fora term of more than five years in lands and tenements shall be conveyed from [117]*117one to another unless tlie conveyance he declared by writing, sealed and delivered. And any instrument to which a person making the same shall affix a scroll by way of seal shall he adjudged and liolden to he of the same force and obligation 11s if it were actually sealed; provided the person making the same shall, in the body of the instrument, recognize such scroll as having been affixed by way of seal; nor shall such conveyance Be good against a purchaser for valuable consideration, not having notice thereof,'nor any creditor, unless the same be. acknowledged by the party or parties,” &c. If the portion of the section in relation to sealing was intended to be merely parenthetical, the subject-matter being resumed at its .close, it affords an instance of magical rapidity of change of intention which has perhaps few parallels in the history of legislation. lint we. canuot hold to this construction, andaré disposed to limit the restriction on the use of scrolls to the particular instruments then in the legislative mind, if indeed, when properly construed, any restriction he imposed upon the use of scrolls even in those instruments.
• Note 4!).—Clopton v. Pridgen, 8 T., 308; Conner v. Antrey, 18 T., 427. Want of consideration in a sealed instrument must be asserted under a plea verified by affidavit. (Pierce v. Wright, 33 T., 631.
Note Ml — Muckleroy v. Bethany, 23 T., 163.
At the introduction of this provision the practice of sealing with adhesive substances liad been discontinued in most "of the States where the common law prevailed, and the use of scrolls substituted. To require an acknowledgment to give the latter the force and validity of a seal has the appearance of an onerous discrimination, and tends to the prejndiee.and ruin of parties who may reasonably be supposed to be ignorant that sealing in one mode requires a recognition and in another it does not. Had the provision been that in no case sliould au instrument be considered sealed nnloss there was an acknowledgment of the party’s intention in the body of the writing to that effect, its operation would have been salutary. A seal or scroll affixed would then leave hub little doubt that -the instrument had been actually sealed by the party. A better provision would be to abolish seals altogether; but since they exist and have their operation. I am not disposed tó deprive a scroll, at least with tlie word “seal” written within the circumflex, of its force by common usage as a seal.
If the true construction of the statute requires that in conveyances .of lands a scroll must be acknowledged in the body of the instrument to give it the force of á seal, let it be given anil enforced. But in other instruments not within the purview of the statute let the party’s intention to seal, whether indicated in the body of the instrument or elsewhere, have its effect. The word “ seal ” written or affixed in a scroll or flourish after his name indicates clearly his purpose, and prima, facie should be. held for Ids seal. If it be denied, an issue of fact is formed, but until then it is the deed of the party, and must he so held. (S S. & M. R., 568; 9 S. & M. R., 34; 10 S. & M. R., 411; 11 Ala. R., 568; 1 McMul. R., 313; 4 How. R., 363; 6 How. R., 152; 1 Pike R., 108; 4 Pike R., 195 ; 5 Pike R., 116; 4 Yerg. R., 528.)
Judgment affirmed.