*in a criminal case is by recognizance, in which he binds himself to the Queen in a certain sum conditioned for the performance of the duty imposed on him; and in case of his making default, that sum accordingly becomes forfeited, and payable to Her Majesty. The commonest case of a recognizance between subject and subject was that of bail; which has, however, become much less frequent since the Act restraining the right to arrest on mesne process (f). It may be added that statutes and recognizances no longer affect lands, unless registered under stat. 2 & 3 Vict. c. 11, s. 8, and the lands themselves have been actually delivered in execution (g).
The peculiar incidents of contracts of record are:-First, that like all records, they prove themselves; that is, their bare production, without any further proof, is sufficient evidence of their existence, should it be controverted.
Secondly, that, if it become necessary to enforce them, authorized, although not technically a recognizance, is good as a bond at common law: Dennard v. State, 2 Ga. 137; contra, Sargent v. State, 16 Ohio 2G7. The mere fact that proceedings are erroneous, will not avoid a recognizance given in the course of them: Com. v. Haffey, 6 Pa. St. 348. A recognizance need not recite the special facts which gave the officer an authority to act in the particular case in which it was taken. It is enough if he had jurisdiction in cases of that general description ; and it appears that the condition is to do something to which a party may legally be bound by recognizance: People v. Kane, 4 Denio, 530; The People v. Millis, 5 Barb. 511; Gildersleeve v. The People, 10 lb. 35. The record is not the forfeiture of a recognizance, but-only evidence of it; and neglect of the clerk to omit to record the forfeiture when it is decreed, cannot affect it. It may be entered nunc pro tunc, and the record, when so amended, is conclusive in a collateral proceeding: Rhoads v. The Com., 15 Pa. St. 272. A recognizance taken in open court is of itself evidence that it was taken by the order of the court without any formal entry to that effect: Chumasero v. People, 18 111. 405. A recognizance is a common law obligation and the sureties may be bound separately from their principal: People v. Dennis, 4 Mich. 609. A recognizance being a record cannot be averred against; People v. Watkins, 19 III. 120.-S.
(f) 1 & 2 Vict. c. no.
(g) See 27 & 28 Vict. c. 112, s. 1.
An obligation by record, however, may be *dis-charged by a deed of release, though a deed is a matter of inferior degree (i).
However, as I said, the other two classes of contracts are those which are of most practical importance, and to them, therefore, my observations will be addressed. These, as I have said, are
1. Contracts by deed.
2. Contracts without deed, or simple contracts. 1. With regard to contracts by deed:
A deed is a written instrument, sealed and delivered (j).
Let us pause for a few moments to consider the parts of this definition.
In the first place, it is a written instrument, and this writing, the old books say, must be on paper or parchment; for if it were written on linen, wood, or other substance, it would not be a deed (k). But, though every deed must be written (/), it is not necessary that every such instrument should be signed, for, at Common Law, signature was not essential (m); and, although by several statutes, particularly the Statute of Frauds (n), signature has been rendered essential to the validity of certain specified contracts, yet *there are many-contracts which are not affected by any statute; and to these last-mentioned contracts, and also to those which are the subject of several sections of the Statute of Frauds (o), if entered into by deed, signature is not necessary (p).1
(h) Still, it seems, regulated by 15 & 16 Vict. c. 76, s. 132; see 38 & 39 Vict. c. 77, s. 21.
(i) Barker v. St. Quintin, 12 M. & W. 441; Shepp. Touch. 322.
(j) Co. Litt. 171 b; Shepp. Touch. 50. See Hibblewhite v. M'Morine, 6 M. & W. 200.
(k) Co. Litt. 35 b. (I) Shepp. Touch. 54.
(m) lb. 56. (n) 29 Car. II, c. 3.
1 By statute in Pennsylvania, and perhaps in some other States, soire facias is the method of proceeding to forclose a mortgage: Bouvier's Law Dict, sub voce; Bispham's Equity, 3d ed.,§ 156.
Secondly, it must be sealed and delivered. This is
(o) See Shepp. Touch, by Preston, 56; Cooch v. Goodman, 2 Q. B. (42 E. C. L. R.) 580; Aveline v. Whisson, 4 M. & Gr. (43 E. C. L. E.) 801; Cherry v. Heming, 4 Exch. 631. See 2 Blackst. Comm. 305.
(p) Bac. Abr. Obligation, C.
1 Maule v. Weaver, 7 Pa. St. 332; Jeffery v. Underwood, 1 Ark. 108. But see Armstrong v. Stovall, 26 Miss. 275.-s.
What was said in these cases as to the necessity of signature is mere dictum, as an examination of them will show. But in the very recent case of Miller v. Ruble, 15 W. N. C. 431, the Supreme Court of Pennsylvania had to pass definitely upon the question. A statute provides that when a conveyance is to be made of the real estate of a married woman, husband and wife shall join and " it shall be lawful for them to make, seal, deliver, and execute a deed for the same, and after such execution" to appear before a proper officer and acknowledge the same. In that case the deed recited six grantors, of whom two were a husband and his wife in right of the wife. After the attesting clause were six scroll seals, opposite one of which the wife signed. The husband did not sign, but both appeared before a justice of the peace and duly acknowledged the instrument. The court held that the interest of the wife did not pass to the grantee. In the opinion Chief Justice Mercur says: "The great industry and careful search of counsel have not resulted in his being able to cite a case since McDill v. McDill (1 Dallas, 64), in which it was held by this court on a direct presentation of the question that a deed professing to convey land was sufficiently executed without any signature of the vendor. On the contrary, in Watson v. Jones (4 Norris, 117), McDill v. McDill is cited approvingly by Mr. Justice Gordon. The recognition of any rule which dispenses with the necessity of the signature of the grantor would be fraught with great mischief. Aided by a pliant justice of the peace, or by a false personation before an honest one, it would provide a convenient way to rob a man of his land without the trouble and danger of counterfeiting his signature. . . . Sealing and delivery are not the only requisites which must precede the acknowledgment. They must first make the deed. This clearly imports the signing thereof. Until that is done it would be a forced construction of this language to say they had made a deed. The manifest meaning of this word in the connection in which it is used, is that the deed shall be duly prepared and be signed by them. The sealing is referred to as a separate act." The entire opinion should be read. In Washburne on Real Property (4th ed.) *553, it is stated that "In most of the States, however, a signature is required; and, in all, it is uniformly practised." the main distinction between a deed and any other contract. The seal is an indispensable part of every deed,1 and so, except in case of the deed of a corporation (q), is the delivery (r). From this delivery it is a perfect deed, taking its effect from this essential part of its completion (s). It obviously follows immediately from this proposition that after delivery it cannot be altered -not even by filling up a blank (t).2 With regard to delivery, however, you must observe that it is not absolutely