The obligation of the maker of a sealed instrument under the common law depends wholly on certain forms being observed. If the forms are observed the obligation is binding. The instrument is not evidence of an obligation, it is the obligation itself.2 When this theory is carried to its logical extent, as it once was, the existence of the instrument in proper form necessarily involves the continued existence of the obligation. Thus even though the instrument had been paid or performed according to its terms, it formerly still remained a binding obligation unless cancelled or destroyed, and could be again enforced against the maker.3 And for the same reason the destruction of the instrument necessarily involved the destruction of the obligation. If even the seal of the instrument was destroyed by accident, the obligation was entirely discharged.4 It is therefore evident that at common law mutual assent or any intention on the part of either obligor or obligee was entirely unnecessary. Perhaps the most striking illustration of this is found in the early law that one whose seal was attached to an obligation was bound, even though his seal had been stolen and attached to the instrument without his consent.5
1 " The earliest covenants we find in the books seem to touch the land. Y. B. 20 & 21 Ed. I. 494, 497. The earliest instance of a covenant not relating to land is of the time of Edward III, Y. B. 4 el III, 57, 71; Y. B. 7 Ed. III. 65, 67. The earliest covenants were regarded as grants, and suits could not be brought on the covenant itself. So a covenant to stand seised was a grant, and executed itself. The same is true of a covenant for the payment of money; it was a grant of the money, and executed itself. For failure to pay the money, debt would lie. Chawner v. Bowes, Godb. 217. Afterwards an action of covenant was allowed, so that to-day there is an option." Ames, Lectures on Legal Hist. 98. As to the origin of sealed contracts, see T. Hudson Turner, 5 Archaeological Journal, 1; Professor Edward H. Decker, Illinois Law Bulletin, Feb., 1918, p. 161; Wigmore on Evidence, Sec.2426.
2 So Holmes, J., in United States Ac. Co. v. Riefler, 239 U. S. 17, 60 L. Ed. 121, 36 Sup. Gt. 12, speaks of a bond "carrying as a specialty does, its complete obligation with the paper." These words are quoted and applied in Hartford-Aetna Nat. Bank v. Anderson, 92 Conn. 643, 103 Atl. 845.
3 Ames, Lectures on Legal Hist. 109.
4 So Shylock says: "Till thou canst rail the seal from off this bond, thou but offend'st thy lungs to speak so loud."
5 "Glanvill says that if the defend' ant admits that a seal upon the instrument is his seal, but denies the execution of the instrument, he is, nevertheless, bound, for he must set it down to his own carelessness that he could not keep his seal. The case supposed would arise where the seal had been lost or stolen. There is a case to this effect in the time of John; Abb. pl. 55, col. 2,
R. 4 (8 John). The doctrine was somewhat qualified by the time of Brac-ton; Bract. 396 b. He seems to think that a covenantor would not be liable unless it was by his negligence that the matter occurred, as by leaving the seal in the possession of his bailiff or his wife. ... In the time of Edward I, Abb. pl. 284, col. 2, R. 7 (19 Ed. I) is a csse on the same principle, being a petition to the King that a certain seal that had been lost should no longer have validity. In Riley's Memorials of London, Page 45 (29 Ed. I), it is said that public cry was made that A. had lost his seal and that he would no longer be bound by the same. Riley, Page 447 (4 Rich. II), also gives an account of making a new seal for the city of London, and it is stated, as if it was important, that the old seal was broken with due formality." Ames, Lectures on Legal Hist. p. 98.