1810.

OCTOBER, of government an oath unknown to the former laws of the state, or of the United States, although there be no pecuniary penalty inLeigh's Case. flicted on those who refuse to take the oath therein prescribed, I cannot but consider it as a penal statute, and, as such, must givẻ it a strict interpretation. It appears to me, therefore, that prac titioners of the law are not comprehended in the act, under these words; "every person who shall be appointed to any office or place, civil or military, under the Commonwealth, shall, in addition to the oath now prescribed by law, take the following oath," &c. The practice of the law is a profession which every citizen of the State, having complied with certain requisites of the act of 1792, c. 71. may take up, engage in, and exercise, according to his own will and pleasure; and which he may lay down, and resume, as often as to him may seem convenient, without any responsibility for his conduct in so doing. The language or wording of the latter sentence in the oath, evinces, to my mind, that the practitioners of the law were not in the contemplation of the Legislature. The officer taking the oath, after swearing" that he hath not been engaged in a duel, by sending or accepting a challenge to fight a duel, or by fighting a duel, or in any other manner in violation of the act, since the passage thereof," is further to swear, that he will not be so concerned, directly or indirectly, in such duel, during his continuance in office;" which, in my conception, has no allusion to practitioners of the law: but, admitting they are comprehended in the act, it has, or ought to have, a prospective, and not a retrospective, operation; and cannot affect officers of any description, appointed to office prior to the passage of that act; which I construe as if the phraseology of the clause had been thus; "every person, who, after the passing of this act, shall be appointed to any office, civil or military, under this Commonwealth, shall take the oath, &c. as therein prescribed." And I cannot conceive that a practitioner of the law of nine or ten years' standing, qualifying to exercise his profession in a Court where he had been unused to practise, can be an appointment to an "office, civil or military, under the Commonwealth." I am, therefore, of opinion, that Mr. Leigh may be admitted to practise at this bar, without taking the oath prescribed by the act to suppress duelling.

Mr. Leigh was therefore admitted without taking the oath.

Austin's Administratrix against Whitlock's Executors.

Saturday, October 27.

1. A scroll annexed to

a signature is not suthi.

THIS was an action of covenant, brought in the County Court of Hanover, by Betsey Austin, administratrix of Chapman Austin, deceased, against Martha Whitlock, executrix, and John A. cient to make Richardson, executor, of David Whitlock, deceased.

sequence

in

a sealed strument, an

from

tended as

on au

the

party's inte

defendant 10

legally

bound by his

then to con

The declaration set forth that the said David, in his life-time, less it appear, on the 22d day of February, 1791, by his certain writing obli- expression in the body of gatory sealed with his sea, &c. obliged himself to convey unto the instrument the said Chapman Austin, all the interest of him the said David that it was inin a certain suit brought by him against one John Smith in con- such. of his the said Smith's undertaking to become one Giles 2. In coveCarter's security for the purchase of a tract of land sold by him nant, agreement to the said David to the said Carter, lying in the County of Halifax, convey and in case the said John Smith should not be legally bound by rest in a cerhis said undertaking, he the said David in that case obliged him- tai suit, and self by his said writing obligatory to convey unto the said Austin, that suit was the right which had been conveyed to him the said David, by a not certain John Garland of whom he bought the said land, for and undertaking) in consideration of a sorrel horse delivered to the said David by vey the right The of such parhim the said Austin, the same day and year aforesaid. ty to certain a debreach assigned was, that the said David, in his life-time, had not, land, nor had the defendants, since his death, although often requested, conveyed to him the said dustin, in his lite-time, or to the plaintiff, since his death, all the interest of him the said David in the said suit, nor had he or they conveyed to him the Austin the right which was conveyed to him the said David by ting forth a the said John Garland, of whom he the said David bought the said land as aforesaid, "the one or other of which he the said David, in his life-time, and the defendants, since his death, refuss! to corought to have done, according to the form and effect of his said is substantial writing obligatory."

claration

charging a re

fusal to convey the inter

est in the suit,

or the right

said to the Lind,

without set

failure to ICcover in the suit, and a subsequent

vey the land,

ly defective, and not to be cured by a general ver

entire data

The defendants, without craving oyer, pleaded "conditions performed," and, issue being joined, the plaintiff, at the trial, diet, assessing offered in evidence a writing corresponding with that described ges. in the declaration, except that it concluded, "as witness my hand this 22d day of February, 1791," and was signed, "D. WHITLOCK," with a written scroll annexed to the signature: but as it was not expressed on the face of the said writing, that that scroll

ministratrix

V."

Whitlock's

OCTOBER, was acknowledged by David Whitlock as his seal, and it was not 1810. evidenced, as such, by the attesting witness, who was dead, Austin's Ad- (though his hand-writing was admitted,) the defendants moved the court that the said writing should not go in evidence to the Executors. Jury; which motion being overruled, a bill of exceptions was filed. The Jury found a verdict for the plaintiff for 790 dollars damages; and judgment was accordingly entered; but, on an appeal to the District Court holden at Richmond, was reversed; and judgment entered for the defendant; whereupon the plaintiff appealed to this Court.

8. 36.

Peyton Randolph, for the appellant. The County Court deci ded correctly in receiving the writing in question as a sealed instrument; a scroll being sufficient by virtue of the act of (a) 1 Rev. 1789.(a) In the case of Baird v. Blagrove, 1 Wash. 170. (which Code, p. 112. seems against me,) the agreement was dated before the law giving scrolls the same validity as seals, and Jones & Temple v. Logwood, 1 Wash. 42. is an authority in my favour; for it does not appear that in that case the words, "in testimony whereof I have affixed my seal," &c. were inserted in the body of the instrument; yet the scroll was decided to be sufficient.

Wickham, contra. I admit that, where a party affixes a scroll by way of seal, it is good as such at common law: for the act of Assembly was only in affirmance of the common law. But here there is no proof that the scroll was intended as a seal.

But, putting this objection out of the question, no action can be maintained at law on this paper. The covenant is void, as being impossible; and, if it were possible, is against law. One man cannot convey to another his interest in a suit. A chose in action, at common law, is not assignable. The suit itself cannot pass by a conveyance. If this be not the construction of the contract, but it is to be understood merely as an agreement that Chapman Austin should have the benefit of the suit, this writing was sufficient of itself, and there was no breach.

The covenant is also against law: for, if not champerty, the first part was certainly maintenance, and the second, or alternative part, was in violation of the act against conveying or taking pre(b) 1 Rev. tenced titles; (b) there being no averment in the declaration that Code. o. 30. Whitlock, who covenanted to convey, was in possession of the lands

p. 37.

1810.

Indeed, the contrary is to be inferred from the agreement; and OCTOBER, such an agreement is not binding in law or equity.

ministratrix

V.

2. The declaration is radically defective; containing no aver- Austin's Adment that Austin lost the benefit of the suit, (in which event only the land was to be conveyed,) and setting forth, in fact, no cause of action.(a)

Whitlock's
Executors.

(a) Chiches

ter v. Vass, 1

Randolph, in reply. If a scroll is a seal, per se, it must be so, Call, 83. though not described as such.

or not.

As to Mr. Wickham's objections to the right of action; I admit that a conveyance of an interest in suit is not binding at law, though it is in equity: but if a party covenants to do an act which is not immoral, he is bound to do it, whether it be effectual in law The most that could be said against the covenant to convey the obligor's interest in the suit is, that it would be unavailing; and this is not a sufficient objection; for parties, if they please, may attach importance to a thing nugatory in itself. But, properly construed, it signifies no more than giving the benefit of the judgment when it should be obtained. That part of the agreement was therefore not void: but, if it were, the alternative part was good; and that is enough. (b) The cases relative to main (b) 5 Vin. 112. (c) 15 Vin. tenance are not applicable, in all respects, to this country.(c) If 152. (E.) pl. we take only so much of the doctrine as is reasonable, this agreement does not come within its reason or policy. Neither does the statute relative to pretenced titles apply. In 15 Viner, 154. it is said that a title is pretenced “where it is founded in pretence, and nothing in verity; or where a good title is made pretenced by the act of the party." Under neither of these heads can this case come; for it does not appear that Whitlock's title was unsound; and it cannot be contended that an equity in lands is not assignable. It does not appear from the agreement, or any other cir cumstance, that he was out of possession.

4.

2. The breach was sufficiently assigned in the declaration; being in the words of the agreement. (d) Chichester v. Vass is (d)6 Vin. 445. not like this case; for, there, the gist of the action was altogether omitted. But if there was any error, it was cured by verdict. The defendants pleaded "conditions performed." This was an admission that the conditions were possible, and an averment that they had been performed.

OCTOBER, 1810.

ministratrix

Whitlock's
Executors.

Wickham. If matter of substance be omitted in a declaration,
There was no option to receive the

it is not cured by verdict.

Austin's Ad land in lieu of the suit, in any other event than the failure of the suit. It was essential, therefore, to state that circumstance. The declaration only says that Whitlock failed to convey the benefit of the suit, or to convey the land, thus assigning two breaches; the first of which was impossible, for the agreement itself was all the conveyance he could make of the suit; the second was assigned altogether uncertainly and defectively; and the damages assessed are entire.

Randolph. It is evident that Austin expected, and was entitled to some other conveyance of Whitlock's interest in the suit; the failure to execute which was a sufficient breach of the agree

ment.

Saturday, Nov. 16. The Judges pronounced their opinions.

Judge TUCKER, after stating the case. That a covenant is a deed, and that a seal is one of the essential parts of a deed, is evident from the authorities generally, and especially Co. Litt.. 6. a. 35. b. 175. b. 225. a. and b. 229. b., and Litt. s. 371, 372. From several of which, and particularly the two last, it is apparent that the clause of in cujus rei testimonium ought to recite that the ma ker of the deed hath thereunto put his seal: for, otherwise, a supposititious seal may be affixed to any instrument of writing, without proof of the acknowledgment thereof by the maker of the instrument, and a mere purol promise or agreement may be converted into a covenant, which is an instrument of a much higher nature; insomuch, that what might be considered as mere nudum pactum, as in the case of Hite, Ex'r of Smith, v. Fielding Lewis's Ex'rs, in this Court, October 29, 1804, (MS.) may, by the subsequent addition of a seal or scroll, be converted into an obligation which should not only bind the maker and his executors, but his heirs also. For such would have been the effect of the wri ing signed by Fielding Lewis, in that case, “whereby he obliged himself, his heirs, executors and administrators to indemnify Mrs. Smith," as executrix of Charles Smith, for the latter having become security for his son, if there had been a seal, or scroll, added to that instrument, and acknowledged by the maker, in the clause of attestation. But if such mention be unnecessary in the body of the instrument, how easily may any in