In form the declaration was clearly in assumpsit. There being no averment in the declaration that the lease was under seal, and the copy given not purporting upon its face to have been sealed, any person looking at the copy given would suppose that when the lease was written it was designed that it should be sealed, but that in point of fact the parties had, for some reason, omitted to seal it. This was clearly a good declaration in assumpsit, and if the lease produced in evidence had been without seals, the declaration would have been a proper and appropriate one, under which to give it in evidence. (4 Denio, 420.) In that case it is conceded that the justice erred in permitting evidence of a contract under seal to be given in evidence under a declaration in assumpsit. Judge Jewett says, "upon general principles I think it is obvious the justice erred. A specialty can not be given in evidence as the foundation of an action of assumpsit upon a simple contract. The variance changes the nature of the contract, so as to render the one set out a different contract, in legal contemplation, from that received in evidence." (Cowen Hill'sNotes, 518, note 407.) I think this is clearly so upon well settled principles of pleading. In Andrews v. Montgomery, (19John. 165,) the court say, "It is well settled that assumpsit can not be supported where there has been an express contract under seal." Chitty says, "When a party has a security of a higher nature he must found his action thereon, and as the law has prescribed different forms of action on different securities, assumpsit can not in general be supported where there has been an express contract under *Page 152 seal." (1 Chit. Pl. 94.) And most clearly assumpsit can not be maintained upon a sealed contract. Here the action is brought upon the contract itself to recover damages for its nonperformance.
In the case of Van Santwood v. Sanford, (12 John. 197,) the declaration contained four counts. The fourth alledged that certain differences having existed between the plaintiffs and one Isaac Newton, they on the 22d of March, 1814, entered into articles of agreement in the words following, (setting forth the agreement to submit,) and hereupon the said defendant, on the 24th day of March, in the year aforesaid, entered into a guaranty covenant and agreement in the words and figures following, to wit, (setting forth the agreement of the defendant verbatim,) and which concluded in the following words: "Signed and sealed the 24th day of March, 1814. Stephen Sanford, L.S." and by which the defendant guarantied the performance of the award of the arbitrators on the part of Newton to the amount of $800. The award of the arbitrators was then stated, by which Newton was to pay $680,32 in two days, and notice of the award to Newton and to defendant, and that neither of them had paid the money, and that the defendant had not kept his covenant and guaranty so by him made, c. To this count there was a demurrer.
The court say the demurrer to the fourth count is well taken; the action is covenant and it can not be maintained but on a deed. The only averment or allegation of a deed is "and hereupon the defendant on the 24th March," c. (reciting the averment in the declaration.) It must appear that the contract was under seal unless it be expressly averred to be so, and though the bond or deed upon oyer recite "in witness whereof we have hereunto set our hands and seals," yet that does not amount to such an averment but that the party must show that the bond or deed wasactually sealed by the other. The court further say "there are some words of art, such as `indenture, deed, or writing obligatory,' which of themselves import that the instrument was sealed; but if it be alledged that J.S. by his certain *Page 153 writing demised or covenanted without averring that it was sealed, the court will not intend that it was sealed." (Cro.Eliz. 571; Ld. Ray. 2537; 8 Com. Dig. Fait, (A, 2,)Pleader; 2 Wend. 9, 14.) They also say that in the case ofWarren v. Lunt, (5 John. 244,) "this court decided that a scrawl for a seal with an (LS) was not a seal and deserved no notice, and that calling a paper a deed will not make it one if it want the requisite formalities. The oyer of the contract, therefore, set out in the count under consideration, can have no effect, for we can not tell that the original differs from it or possesses any of the properties of a seal." So in this case, on looking at the declaration and the copy of contract or oyer annexed, the court could not say that the contract therein referred to was under seal, as it was not so averred.
But it is said that the declaration is good and sufficient in a justice's court, where pleadings are to be liberally construed. If the original contract had been annexed to the declaration I have no doubt it would have been a sufficient declaration in covenant if not demurred to, because it would then have affirmatively appeared that the contract was under seal. In this case, if the defendant had demurred to the declaration and alledged as cause of demurrer that it was not alledged that the contract declared on was under seal, it would have been a sufficient answer that the declaration on its face did not appear to be in covenant, but was in fact assumpsit, and that a sufficient consideration was set forth for the making of the contract. The defendant could not have sustained a demurrer. They therefore had no alternative but to plead. But to say that a declaration which is good in assumpsit, so that a demurrer will not lie thereto, will also answer as a declaration in covenant, is an anomaly in pleading which I do not understand.
There is no doubt the justice might disregard any technical variance between the contract offered in evidence and the one set out in the declaration, which was not calculated to mislead the defendants, and which was of the same nature of that set forth in the declaration. But this is not a case of variance *Page 154 within that principle. It was seeking to prove a cause of action of an entire different nature from the one declared upon. It was a contract which required an entire different form of a declaration, and which would require an entire different plea from the one set forth. If the declaration is to be regarded as one in assumpsit, then the general issue not only puts in issue the making of the contract, but the breaches assigned, and the defendant would under it be permitted to give in evidence almost any defence he might have to the action. But if it can be treated as a declaration in covenant, and the plaintiff be permitted to give in evidence a sealed contract, then the defendant's plea properly puts in issue only the execution of the contract, and when that is proved the breaches assigned would be admitted, because they were not specially denied.
I am aware that in the case of Mosher v. Lawrence, (4Demo, 421,) a case similar to the one in question, Judge Jewett says, "I am of opinion that the defect in the declaration was such as the justice's court had ample power to amend before verdict; and that on the trial it might well disregard the variance." That case was not reported, and was not brought to the notice of the supreme court upon the argument of the cause now under consideration. If it had been, it is probable that court would have felt bound by it, as an authority for its action, subject to a review in this court. But the two cases have been decided upon principles which I think evidently conflict, and it remains for this court to determine which is in accordance with the then well settled and known rules of pleading and evidence. I believe no other case can be found than the one cited, where a variance which changed the entire nature of the action was held to be such that it might be disregarded upon the trial.
It is true that the judges of the court of common pleas, when reviewing justices' judgments on certiorari, are required to give judgment in the case as the right of the matter may appear, without regarding technical omissions, imperfections, or defects in the proceedings before the justice which did not affect *Page 155 the merits. (2 R.S. 257, § 181.) This provision was cited by the court in Mosher v. Lawrence. But the same general rules of pleading are applicable to justices' courts as are applicable to courts of record. The same and no different causes of action may be joined before a justice. But the same nicety in matters of form are not required, unless objected to at the joining of issue.
The form of action is determined by the matter set forth in the declaration, and not by the name which the plaintiff may give it. (5 Hill, 177; 1 Comst. 226.) The matter here set forth clearly made a good cause of action in assumpsit, but no pretence of a cause of action in covenant.
In the case of Mosher v. Lawrence, some stress was laid by the court upon the fact that the defendant had not been misled, or prejudiced, because the plaintiff offered to amend and to consent that the cause be adjourned, so as not to prejudice the defendant. No such offer was made in this case; nor was there any amendment made in fact.
The rule that pleadings in justices' courts shall be liberally construed, has nothing to do with this case. The declaration is good both in form and substance, as a declaration in assumpsit. But the declaration is not supported by the proof. The case ofHowe v. Wilson, (1 Denio, 183,) is directly in point upon this question. That was an action before a justice; the declaration alledged that the defendant, with force and arms, broke and entered the plaintiff's close situated, c. and then and there took and carried away the plaintiff's horse, c. Plea, not guilty. The proof was that the defendant entered the close of another man near the plaintiff's and took and carried away the plaintiff's horse. Bronson, J. in delivering the opinion of the court says, "The plaintiff relies on the principle that pleadings in justices' courts are to be liberally construed, but the rule has nothing to do with this case. There is no defect in the declaration either in form or substance. The difficulty is that the declaration is not supported by proof, and for that reason the plaintiff was properly nonsuited." So in the case now under consideration, the declaration was a good and perfect one *Page 156 in assumpsit, but the plaintiff gave no evidence to support an assumpsit, but was permitted to give in evidence a contract under seal. In permitting this evidence I think the justice clearly erred, and that the judgment of the supreme court reversing the judgment of the court of common pleas and of the justice, should be affirmed.
And thereupon the judgment of the supreme court was reversed, and that of the common pleas affirmed.