delivered the opinion of the court. ■

We held in McCarley v. Board of Supervisors, ante, p. 483, that a party complainant would not, in a court of equity, be permitted to obtain affirmative relief based upon his omission to affix a seal or scroll to an instrument delivered by him as a sealed instrument, and containing the words, “witness my hand and seal.” In such a case the instrument would be treated as sealed. In. so doing, we followed the lead of the high authorities cited in our opinion in that case. We cannot extend the doctrine further. To hold that when a defendant is sued upon an unsealed instrument as a sealed one, the courts will treat it as being sealed because of a recital that it is such, where no element of equitable estoppel is averred or shown, would be to break down all distinction between sealed and unsealed instruments. However wise this might be as a legislative act (and it has now been accomplished by the Code of 1880), it is beyond the province of this court.

Judgment affirmed.