#### Richard Yarborough v. Stephen Monday,

From Person.

Dec. 1830.

Where an instrument is signed by two versons, and but one seal is affl'ttd, orcl nardy it is to be talc n as the deed of that .¡arty • nly whose name is written near st to it. Bu’ it may he show by /.roof*, eith r on the face of, or dehors the instrument, that the other party adopted the seal.

This was an action of assumpsit upon a written instrument in form of an indenture of apprenticeship It was signed by the Plaintiff and Defendant. Th« re was but one seal to the instrument, which was placed over the name of the Plaintiff, his signature being the first.— Upon the opening of the case, his Honor Judge Strange, thinking that an action of assumpsit could not he sustained on the instrument, nonsuited the Plaintiff, who appealed to this Court.

Winston, for the Plaintiff,

cited Warner v. Lunch f5 John. Rep. 239) Jervis v. Lockwood (1 Washington 42). Austin v. Whitlock (1 Mum. 487). Ball v. Sinister-ville (4 Term Rep. 313).

No Counsel appeared for the Defendant.

Ruffin, Judge.

The nonsuit, I think, was premature, I understand it to have been ordered upon the production of the instrument, and before proof by the Plaintiff that the Defendant had not sealed it. I do not doubt, that more than one person may adopt the same seal.— But that is to be shown by evidence. Upon the face of the paper, the seal is to be taken as that of the person whose name is next to, or written to it. Such is the course of business. But yet the Defendant might show that it was h*s, and the Plaintiff might rebut that by other evidence. In which event, it would be a case for the jury» But I understand the record to state in effect, that the *494Court ruled upon the face of (be paper in exrlusionof all evidence. I do not concur in that, because I conceive it was a simple contract or a deed, as (he Defendant did or did not adopt the seal at the time of executing. Unless he acknowledged it as his seal, it. was not his seal. It may be that it was executed by ¡he parties at different, times. The seal may have been affixed after (he first signature; when clearly it would ho that of the party making it. Or one may have affixed it, and ¡he other afterwards signed. It seems, to me, that in such case a mere signature is not to be taken as a sealing, unless (he party declare the seal already made to be his own.

Ham, Judge, concurred.

Henderson, Chief-Justice,

dissenliente. — Seals were properly emblems impressed on wax, or some material susceptible of receiving and retaining an impression.— In this State, from necessity or from some accidental cause, our forefathers early adopted as a seal, or in lien of one, a scrawl; and our Courts have for a long period given to it all the efficacy of a seal; in fact have considered it as a seal. In Virginia it is considered a seal, if in the writing it appears, (hat the parties so called or so understood it; as “witness my hand and seal.” In our State no such rule has been established. It is sufficient if a scrawl appears,whereif(herehadbeenaseal, itwould have been affixed.- It is also true (hat many parties may adopt the same seal. (Ball v. Dunstervill.) But as each ordinarily seals with his own or proper seal, and prima facie, when there is hut one it is the seal ofhirn only who madeit, such adoption is matter of proof, and may be inferred from some expressions in the writing, or proved by something dehors the instrument — in other words, as theques-tioo of sealing is matter of fact, it must be proven. If there is a seal, and but one obligor or grantor or person bound, if it is the seal of any one, it is the seal of him *495who appears to be the obligor, grantor or person bound. But if there are snore parties bound or to be bound than 1 one, and there is but one seal, without farther proof it is hot the seal of both, but of him only whose it is proven to be, either by its location or other proofs. For one party may be bound by writing under seali and the other by parol •, that is, by writing not under seal. In the present case there is but one seal. It may be the seal of .either, or of both. Its locality would make it the seal of the Plaintiff alone, as there is no other seal, for his name is written nearest to it, and immediately under it. In the absence of all proof, either upon the writing or by parol, I think it must be taken to be the seal of him alone. But I am inclined to think, that the paper itself affords such proof. It begins “ this indenture.” Now it is true, that it is not calling a paper an indenture which makes it one, but its actual indentation. Yet the appellation given to it by the parties must certainly have an operation, so far as to show, not what the parties actually did, but what they ¡atended to do. But I do not mean that this would be conclusive, for there may be other marks to control the operation of the name even as to the intent. Now an indenture is a deed of two or more parties. Each must seal to make it the deed of each party; nor will the ^ mistake of the ' parties in calling it an indenture, without indentation, induce a conclusion, that they were also ignorant that it required tiie sealing of each to make it an indenture. For it would be going too far to conclude, that if they were ignorant of any one thing which constituted ari indenture, they were ignorant of every thing relating thereto. But their ignorance shokld be conñned. to such things as it is apparent they were ignorant of, and to give to other words their ordinary signification. I therefore think, that in this case there was sufficient in the writing to induce the Court to say that both par-*496tjeS adopted one and the same seal, and that it is the deed of both.

Per Curiam. — Let the judgment below be reversed, and a new trial awarded.