It is most unfortunate if no method be left in a system of law by which a confessedly voluntary promise may be binding. The seal at common law furnished such a means. It may be said that this means was arbitrary and artificial; but, nevertheless, it fulfilled the purpose, though sealed instruments were also subject to technical rules in regard to their execution by agents,27 and their modification or discharge by parol,28 which often worked injustice. To abolish altogether the common-law effect of the seal without substituting something in its place is a serious mistake. Such undesirable attributes as the common law attached to sealed instruments might well be abolished, but the rule that they need no consideration should not be. It is probable that the common-law rule is better even than the statutory extension to all written instruments, of the principle that no consideration is necessary.29 If such statutes are construed as merely making a written promise prima facie evidence that consideration for it existed, they are of little value, since when a promise is without consideration it is ordinarily easy to show that fact. If, on the other hand, they are construed as establishing that there is a "conclusive presumption" of consideration for all written contracts or if they expressly state consideration bert, 179 Mich. 566, 146 N. W. 418; In re McLaughlin's Est., 182 Mich. 707, 715, 718,151 N. W. 745.
22 Homans v. Tyng, 56 N. Y. App. Div. 383, 67 N. Y. S. 792; Finch v. Simon, 61 N. Y. App. Div. 139, 70 N. Y. S. 361. In Alabama, California, North Dakota, Oregon, South Dakota and Tennessee the express terms of their statutes give effect to an unsealed release. See infra, Sec. 418.
22 Hull v. Hull, 172 N. Y. App. Div. 287, 158 N. Y. S. 743.
24Rev. Stat. (1908), | 3314.
25 Ann. Code (1915), Sec.Sec. 2181-2182.
26 Comp. Stat. (1910), Sec.Sec. 3641, 3642, for them is unnecessary, it may be doubted whether the solution is wholly satisfactory. What is a "written contract? " Is an informal letter accepting an offer in another letter? Is an informal letter accepting an offer made orally? Is a letter containing a gratuitous promise? In any event the requisite of a written promise as distinguished from an oral promise is a technical formality as much as the requirement of a seal. Moreover, if formal writings only are to be within the protection of the Statute the distinction between such writings and informal ones will be often hard to draw (much more so than between sealed and unsealed writings). On the other hand, if all written promises are to be protected, the rule goes too far. A writing may be of a very informal character, and to make every gratuitous promise in a letter or memorandum as binding as a sealed covenant was at common law seems extreme.30
27 See infra, Sec.Sec. 275, 296.
28 See infra, Sec.Sec. 1834-1836, 1849.
29See Statutes referred to, supra, Sec. 218, and First National Bank v. Home Ins. Co., 16 N. Mex. 66. 113 Pac 815.
Recognizances are in form like bonds, containing an acknowledgment of indebtedness subject to a condition upon which the obligation will become void. They are not executed by signing and sealing by the obligor, but by the certification of the judicial officer before whom they are taken. A recognizance, therefore, partakes of the nature of a judgment or of indisputable evidence of indebtedness; but being voluntarily entered into by the obligor and implying in fact an undertaking to perform the condition, it may be classed as a contract. At the present time where recognizances are in use, they are often required to be signed, but as all matters in connection with entering into recognizances depend upon local statutes and practice which are well understood where they are in force, further treatment of the subject is unnecessary.