At common law, an instrument under seal was not discharged, even by performance, unless the instrument itself was canceled; that is, unless the seal was torn off or the instrument was mutilated in some way so that it ceased to be the formal obligation which it was originally.1 Conversely, at the early law, the accidental destruction of the seal operated as a discharge of the sealed contract without any regard to the intention of the parties.2 Accordingly, it was held at the early law that a judgment upon a scaled contract did not operate as a merger thereof, but that if an action were brought subsequently upon the same instrument, a plea that judgment had once been rendered thereon was insufficient,3 especially if the judgment was that of an inferior court.4 unless the sealed instrument had been brought into court and had been canceled. This devotion to form as distinguished from substance, was too much even for the common-law judges, and it was finally held in England that a judgment operated as a merger of a sealed instrument, whether execution had issued or not;5 and this principle has always been recognized in the United States.6

6 Lilly-Brackett Co. v. Sonnemann, 163 Cal. 632, 42 L. R. A. (N.S.) 360, 126 Pac. 483; Wells v. Schuster-Hax National Bank, 23 Colo. 534, 48 Pac. 809; Weeks v. Pearson, 5 N. H. 324.

Contra, Gould v. Hayden, 63 Ind. 443

7 Wells v. Schuster-Hax National Bank, 23 Colo. 534, 48 Pac. 809; Weeks v. Pearson, 5 N. H. 324.

8 Lilly-Brackett Co. v. Sonnemann, 163 Cal. 632, 42 L. R. A. (N.S.) 360, 126 Pac. 483.

9 Van Winkle v. Owen, 54 N. J. En. 253, 34 Atl. 400.

1 See Sec. 1164.

2 See Sec. 1164 and ch. LXXXV.

3 Denom v. Scot, Y. B., 17 Ed., 111, 24 (Pasch). pl. 11 (translation by L. Owen Pike, p. 296); Statham's Abridgment, Title Barre (105).

See discussion in Higgen's Case, 6 Coke, 44b and 45b.

4 Denom v. Scot, Y. B., 17 Ed., 1ll, 24 (Pasch.), pl. 11 (translation by L. Owen Pike, p. 296).