Bank of Cumberland v. Bugbee , 19 Me. 27 ( 1841 )

The opinion of the Court was by

Weston C. J.

Under the plea of non est factum, the plaintiffs were called upon to prove the execution of the bond, on which they declare. They adduced the usual proof, arising from the testimony of such of the subscribing witnesses as were within the jurisdiction of the court, and from evidence of the handwriting of such as were not, and of the handwriting of the defendants, whose signatures they attested. And it is conceded, that the bond has the genuine signatures of all the defendants. The objection to the execution of the bond, is based upon the fact, that it has but five seals, although subscribed by six persons. And upon this ground, the counsel for the defendants moved the presiding Judge to direct a nonsuit, which he declined to do. This motion was founded upon the assumption that the instrument to be legally binding should contain as many seals as signatures.

I am very clear upon the authorities, that the law is otherwise, and that two or more persons may adopt one seal, and that it has the same effect,, as if each had affixed his separate. It is the doctrine of the elementary writers, and is equally sustained by adjudged cases. Shep. Touchstone, 57; Com. Dig. Fait, A 2; 4 Cruise’s Dig. 27, 8. The earliest decision, which has been cited for the plaintiffs, is Lord Lovelace’s Case, Sir W. Jones, 268. I have not had access to that authority, but what was there held is stated as a quotation from it in Ball v. Dunstervillw & al. 4 T. R. 314 in these words, “ if one of the officers of the forest put one seal to the rolls by assent of all the verderers, and other officers, it is as good as if every one had put his several seal; as in case divers men enter into an obligation, and they all consent, and set but one seal to it, it is a good obligation of them all.” And in the case last cited, one seal was regarded as sufficient for two persons. Mackay v. Bloodgood, 9 Johns. R. 285; Bradford v. Randall, 5 Pick. 496; Pequawkett Bridge v. Mathes & als. 7 N. H. Rep. 230, are authorities to the same effect. No opposing case has been adduced; and there can be no doubt, that the motion for a nonsuit was properly overruled.

The plea of non est factum raises an issue to be tried by the jury, and when joined, it belongs to them to decide, whether the instrument was duly executed or not. But in determining this question, they are not at liberty to disregard the evidence. There were seals enough to bind legally all the defendants, provided one of them was adopted by each. They all declare •themselves bound and obliged. The term, “ sealed with our .seals,” is affirmed by, and embraces every one, who affixed his signature to the instrument. The signature of each is a plain and manifest adoption of one of the seals. The delivery, which was proved by the testimony, or the attestation of the subscribing witnesses, by each of the parties, in connection with the language, leads to the same result, by necessary implication. There was no opposing proof or any testimony whatever, calculated to raise a suspicion) that any one of the defendants acted under a misapprehension, or was not apprized of the full effect of the language.

In my judgment, the verdict is manifestly against the evidence, and the justice of the case requires that it should be set aside.

New trial granted.