decision upon the irregularity in the execution of that particular instrument, so that the case was of not much force as a precedent.

But the same question arose in a later case, and the doctrine of Albertson vs. Halloway, was taken to be that a total failure of consideration may be pleaded to a sealed promissory note. Then the statute of 1836, allowing a partial failure to be pleaded wherever a total failure could be, was invoked, and thus the conclusion come to, that to an action on a sealed note or single bill, the defendant may plead either a total or a partial failure of consideration. There may be, and probably is, more of modern justice in the seal's being merely presumptive or prima facie evidence of consideration, but it might be questioned whether the legislature was not anticipated.

In this connection may be noticed the case of Bruton vs. Wooten:a "It seems that the seal does not necessarily import a consideration when such an instrument is relied on, by way of plea in Chancery. But whether this be so or not, where the instrument sets forth a consideration, the seal cannot import a consideration different from that which is expressed."

In reference to deeds, the presumption of consideration afforded by the seal does not preclude an inquiry into the consideration when the principles of justice require it. But only when the considerations of justice require it, will the consideration of a deed be scrutinized through extrinsic evidence."

The doctrine, that an authority to execute a sealed instrument must be under seal, has been somewhat modified. The Code says very plainly: "The act creating the agency must be executed with the same formality (and need have no more), as the law prescribes for the execution of the act for which the agency is created." And the doctrine has been affirmed, in several cases. In Ingram vs. Little, the first of our Supreme Court decisions on the point, the reason is very clearly stated, thus: "The rule, although a technical one, is single, clear, and easy of observance. If abro

In a case of this sort, many American authorities construe the one scroll as the seal of all the signers. 2 Minor's Inst., p. 730; 3 Monr. (Ky.), 377; 6 Barr. (Pa.), 302; 2 Dev. (N. C.), 493; Contra, 8 Gratt (Va.) 63

y Martin vs. Bartow Iron Works, 35 Ga., 320.

z So by statute in New York, 2 Rev. Stat., 406 277.

a 15 Ga. 570. See also Smith vs. Smith, 36 Ga. 190.

b Code 2690; 55 Ga. 78; 62 Ga. 609; 62 Ga. 742.

c Sewell vs. Holland, 61 Ga. 608

gated, the title to property might be left too much to the mistakes of memory, or to the corruption of humanity."

So that,

But an exception is allowed in favor of partners. "although a partner cannot by virtue of the authority he derives from the relation of copartnership, bind his partner by deed, yet a prior authority, or a subsequent ratification, not under seal, whether express or implied, verbal or written, is sufficient to establish the deed as the deed of the firm." The reason given is, that great inconveniences would result to trade from a strict enforcement of the common-law rule. But the exception is not made with all the firmness that might be desired, since the decision is finally put upon another ground, a reason for which we shall see presently.

The legislature has qualified the doctrine in two important particulars, namely, as to the authority of partners and agents, respectively, in legal proceedings. The Act of 1838 provides that any partner may, in the prosecution of legal rights, execute a bond in the firm name. This was manifestly dictated by considerations of convenience. But the words of the act itself, and the adjudications, restrict its operation to legal proceedings. For the same reason of convenience it has been enacted that an agent, about legal proceedings, may bind his principal by bond, without sealed authority. In Gilmer vs. Allen, it was decided that there was, in 1850, no statute authorizing an agent to execute a forthcoming bond for property levied on by attachment. But soon afterward a statute was passed giving an agent such authority.*

The distinctions between forms of actions being obliterated by the adoption of the Code pleading, no special form is appropriated to actions on sealed instruments.

The effect of the statute which requires a petitioner to set forth his charge, or demand, fully and distinctly,' is equivalent to the common-law requirement, that a sealed instrument be pleaded.

d Per Nisbet, J. 14 Ga. 173; See also Rowe vs. Ware, 30 Ga. 278.

e See Smith's Merc. Law, p. 75, note, where the American authorities are reviewed. Per Lumpkin, J. in Drumright vs. Philpot, 16 Ga. 424.

Cobb's Digest, p. 589; Code 1900.

▲ Dow, Wilson etc., vs. Smith & Co. 8 Ga 551.

i Act of 1784, Cobb, p. 721; Code 2207.

19 Ga. 208.

k Acts of 1855-6, p. 33; Code 3322.

Code, 3332.

The purposes of profert are substantially fulfilled in our practice by the attachment to the petition of a copy of the instrument, as an exhibit, and the production of the original in evidence.

The doctrine of estoppel is still alive among us; though courts generally are jealous of its extension, and recognize it only so far as they are compelled by force of precedent." Thus it is held in Georgia, that the maker of a deed cannot deny any of its material recitals."

The advantage of a sealed instrument, as regards the limitation of action on it, continues unabated."

In the payment of a decedents' debts, in Georgia, specialty debts stand on the same footing with other liquidated demands."

There are special doctrines respecting sealed promissory notes and deeds to land that deserve separate notice.

By the act of 1799, specialties are made negotiable like promissory notes. But only such as are for the payment of an ascertained sum of money, or of specific property."

Notwithstanding this statute, the effect of a seal upon a promissory note has been the subject of grave judicial doubt. Thus, in Broughton vs. Badgett, which has especial interest by being the first adjudication of our Supreme Court touching a sealed instrument, Judge Nisbet gives utterance to a serious doubt, whether a sealed note can be transferred by an endorsement not under seal. The case, however, did not require a decision of that particular point. But the doubt has since been resolved by the cases of Porter vs. McCollum, and Milledge vs. Gardner. In the first of these it is laid down, that to seal a promissory note does not destroy its negotiability, because such was the usage of merchants in Georgia at that time. In the other it was held, that the unsealed endorsement of a sealed instrument is a contract under seal. The Code now expresses the same principles."

One of the most frequent employments of the seal at common law has been rendered unnecessary with us, by reason of sealing

m See 1 Greenl. Ev. 205.

n Thrower vs. Wood, 53 Ga. 468.

o Code, ¿2915.

p Code, 2533. See also 5 Ga. 274; 14 Ga. 379; 15 Ga. 322.

q Cobb, p. 519.

r1 Kelly, 76.

815 Ga. 528.

t 29 Ga. 700.

u Code, 2776.

having been dispensed with as requisite to a good deed to lands. The earliest deliverance of our legislature on the subject was in provincial times. The statute of 1768, bears on the face of it its passage in a time of frequent inconveniences resulting from irregularities in the form or execution of deeds. Section IV, provides substantially that no defect in the form or execution of a deed shall affect its validity. But being confined to deeds "heretofore made," the law was simply and expressly curative, and did not outline any policy as to future deeds.

w

The whole statute was originally limited in its duration. But if it received a new lease of life in the general revival of 1783, the effect was merely to extend the healing operation up to the time of the revival. Without an express change of policy, neither the original act nor its revival could be a panacea for the sickly deeds of all time to come. Accordingly the legislature of 1785, passed an act, the first section of which re-enacts the act of 1768, in almost the same terms. The "want of form" policy is again strictly limited to deeds made before the passage of the act. And in the second section the intention of maintaining the use of the seal is manifest. For it is provided that deeds of conveyance by way of bargain and sale, among other requirements, being "under hand and seal," shall be valid. That want of form, however, shall not vitiate a deed, has become the settled policy of the Georgia law. And, likewise, as regards sealing, it is omitted from the recital of the requisites of a deed to lands in the Codes of 1863, of 1873 and of 1882. But the seal is usual in practice because of those several advantages appertaining to sealed instruments which still survive.

Next comes the inquiry, What is a seal? Or more comprehensively, What has been and now is necessary in Georgia, to constitute a writing a sealed instrument?

Before legislation on the subject, the seal in Georgia was the same as the common law seal; an impression or wax wafer, or other tenacious substance. But the question had arisen at common law whether an impression on the paper itself was a good seal. Our law holds that it is, thus following the weight of late authorities.

v Cobb, p. 163.

10 Cobb, p. 720.

z Cobb, p. 164.

v Code of 1863, 2648; Code of 1873 (and 1882) 2690.

z Code, 25.

The scroll, as a substitute for the seal, very early made its appearance in Georgia practice, and to still the conflict which arose about its efficacy, the act of 1838, was passed, declaring and establishing the sufficiency of the scroll, "or other representation of a seal." And, furthermore, whenever it should be shown by words expressed in the body or conclusion of the instrument, that it was the intention to execute a sealed instrument, though no scroll or seal had been annexed, it must be held to be a sealed instrument.

There have been several decisions in full accord with the terms and spirit of this act. Thus, where an instrument in the form of a bond was signed by the party executing it, and opposite his name was an ink scroll with the word "seal" written within it, it was held to be a sealed instrument, although there was no recital of the fact of sealing or acknowledgement of the scroll as a seal in the body of the instrument." So an instrument with a scroll annexed to the signature was a bond without purporting to be such on its face."

But the present law of Georgia is the diametrical opposite of this. For in the statute of limitations of 1856, the benefit of the twenty years is specially denied instruments which are thus sealed by sheer force of the statute of 1838, it being declared that, no instrument shall be considered under seal, unless so recited in the body of the instrument." Although this provision might, by interpretation, have been confined to the question of limitation, the Supreme Court took a different view in Brooks vs. M. C. & J. F. Kiser, where it is laid down without reserve: "That the printed blank on which a promissory note was drawn, concluded with the words, 'witness our hand and seal,' did not alone make the note a sealed instrument. These words cailed attention to the attestation to be made, but did not supply the place of a seal or representation thereof after the signature." So "the attaching of a seal or scroll, after the signature to an instrument without some recital in the body thereof, will not make such instrument a writing under seal; and it would seem that a recital alone, without the attaching of a seal or scroll, will not make a sealed instrument."

a Cobb, p. 274.

b Williams vs. Greer, 12 Ga. 459.

c Harden vs. Webster, 29 Ga. 427.

d Acts 1855-6, p. 234; Code 2915.

e 69 Ga. 762, and authorities there cited.