SECTION II.

Sealed Instruments.

WILKS AND ANOTHER v. BACK.

KING'S BENCH. 1802.

[2 East, 142.]

THE defendant being indebted upon an account to the plaintiffs Wilks and Browne, who were formerly in partnership as millers, it was agreed to refer the matter to arbitration; and accordingly bonds of submission were entered into by the parties as after mentioned; and the arbitrators by their award dated 14th August, 1801, reciting that by two several bonds dated 15th June, 1801, under the respective hands and seals of M. Wilks and J. Browne, millers, and late partners, and of W. Back, the parties became mutually bound to abide the award, &c., proceeded to award the sum of £407 9s. 7d. to be due on the balance of accounts from the defendant to the plaintiffs, &c.

Upon a motion to set aside the award, the question was at last resolved into this, whether Wilks had competent authority to bind Browne, his late partner, by executing the bond of submission for him. As to which it appeared that by an indenture dated 28th August, 1799, between Wilks and Browne, the latter for the considerations therein mentioned did constitute and appoint Wilks to be his attorney irrevocable to ask, demand, sue for, compound, and receive all the debts and effects of the said partnership; with full power for Wilks to sign, seal, and deliver in the name of Browne any deed, &c., whatsoever necessary for the purposes therein mentioned, &c. By virtue of this authority Wilks executed the bond of submission in question in this form: "Mathias Wilks" (L. S.). "For James Browne, Mathias Wilks" (L. S.), and it was sealed and delivered by Wilks for himself, and also for his late partner Browne; but the latter was not present at the time.

Garrow and Parnther, in showing cause against the rule, did not dispute that according to Combe's case, 9 Rep. 76 b., where any has authority, as attorney, to do an act, he cannot do it in his own name, but in the name of him who gave the authority. But they contended that here the sealing and delivery was done by Wilks in the name of Browne as well as of himself, which he had authority to do by virtue of the power of attorney of August, 1799, and that the signing of his own name twice was not material, as he also signed the name of Browne, and declared that it was done for him. The form of words used cannot invalidate the act where the authority is sufficient to warrant the act done. If there had been only one seal, yet if the

instrument were sealed and delivered for himself and his partner, he having authority so to do, it would have been sufficient, according to the case of Ball v. Dunsterville, 4 T. R. 313. It is true that was done in the presence of the other partner; but that was only material in that case, as showing that it was done by his particular authority, and here was a special authority by deed to do the act.

Erskine and Comyn, contra. It is clear from Harrison v. Jackson, 7 T. R. 207, that one partner cannot as such bind another by deed. Then if the authority be derived from the power of attorney, Wilks ought to have executed it in the name of Browne the principal, and not in his own, according to what was said in Combe's case, and confirmed by Lord C. B. Gilbert in 4 Bac. Abr. 140, and by Lord Kenyon in White v. Cuyler, 6 T. R. 177. So in Frontin v. Small, 2 Lord Raym. 1418, s. c. 1 Str. 705, a lease made by an attorney in her own name, though stated to be made "for and in the name of" the principal, was holden void, and that no action of covenant lay thereon. Now here it was signed by Wilks" for Browne;" whereas the signature ought to have been in the name of Browne, though made by Wilks. Therefore as Browne would not be bound by the award, it is void for want of mutuality.

GROSE, J. No doubt the award must be mutual, and for this purpose the bond must be executed by Browne as well as by Wilks; but this is a sufficient execution by both. I accede to the doctrine in all the cases cited, that an attorney must execute his power in the name of his principal, and not in his own name; but here it was so done, for where is the difference between signing J. B. by M. W. his attorney (which must be admitted to be good), and M. W. for J. B.; in either case the act of sealing and delivering is done in the name of the principal and by his authority. Whether the attorney put his name first or last cannot affect the validity of the act done.

LAWRENCE, J. No doubt, in point of law, the act done must be the act of the principal, and not of the attorney who is authorized to do it. The whole argument has turned upon an assumption of fact that this was the act of the attorney, which is not well founded. This is not like the case in Lord Raymond's Reports where the attorney had demised to the defendant in her own name, which she could not do; for no estate could pass from her, but only from her principal. But here the bond was executed by Wilks for and in the name of his principal; and this is distinctly shown by the manner of making the signature. Not that even this was necessary to be shown; for if Wilks had sealed and delivered it in the name of Browne, that would have been enough without stating that he had so done. However, he first signs his own name alone opposite to one seal to denote the sealing and delivery on his own account, and then opposite the other seal he denotes that the sealing and delivery was for James Browne. There is no particular form of words required to be used, provided the act be done in the name of the principal.

LE BLANC, J. Wilks first signed it in his own name, as for himself, and then to denote that the act was also done in the name of Browne, he signed it again for James Browne. I cannot see what difference it can make as to the order in which the names stand.

Rule discharged.1

TAFT v. BREWSTER AND OTHERS.

SUPREME COURT OF NEW YORK. 1812.

[9 Johns. 334.]

THIS was an action brought against the defendant and Thaddeus Loomis and Joseph Coats, on a bond dated the 16th of April, 1810, by which the defendants, "by the name and description of Jacob Brewster, Thaddeus Loomis, and Joseph Coats, trustees of the Baptist Society of the town of Richfield," acknowledged themselves bound to the plaintiff in the sum of $3,600, to be paid, &c., conditioned, that if the defendants, as trustees of the Baptist Society of the town of Richfield, their heirs, &c., should pay the plaintiff the sum of $1,800, with interest, at the several times therein mentioned, &c. The bond was signed "Jacob Brewster, Thaddeus Loomis, and Joseph Coats, trustees of the Baptist Society of the town of Richfield," and sealed by them respectively.

The plaintiff assigned two breaches: 1. That after the making the bond, &c., a large sum of money, to wit, $126, being the interest for one year then elapsed, was then due and owing; and, 2. That another large sum of money, to wit, the sum of $1,100, became due, and was owing, to the defendants on the 1st of June, 1811, which, with the $126, was still in arrear and unpaid.

The defendants, after craving oyer of the bond and condition, demurred, and assigned for causes of demurrer: 1. That the bond was executed by the defendants in a corporate and not in their individual capacity; 2. That the declaration was double, in assigning two distinct breaches of the condition of the bond; and, 3. That in assigning the breaches, it is not said "according to the statute," &c.

The plaintiff joined in demurrer, and the same was submitted to the court without argument.

PER CURIAM. The bond must be considered as given by the defendants in their individual capacities. It is not the bond of the Baptist Church; and if the defendants are not bound, the church certainly is not, for the church has not contracted either in its corporate name or by its seal. The addition of trustees to the names of the defendants is, in this case, a mere descriptio personarum. But there is one special

1 Acc.: Mussey v. Scott, 7 Cush. 215 (1851).-ED.

cause of demurrer well taken, and that is, that the declaration is double, in assigning two distinct breaches. . . . Judgment must, therefore, be given for the defendants, with leave, nevertheless, to the plaintiff to amend on the usual terms.

STINCHFIELD v. LITTLE.

SUPREME COURT OF MAINE. 1821.
[1 Me. 231.]

In an action of covenant upon the issue of non est factum, the plaintiff offered in evidence the deed declared on, which was in these words: "Know all men by these presents, that I, Josiah Little of, &c., by virtue of a vote of the Pejepscot Proprietors, passed on the first day of September, 1784, authorizing and appointing me to give and execute deeds for and in behalf of said proprietors, for and in consideration of the sum of thirty-seven pounds to me in hand paid by Thomas Stinchfield of, &c., the receipt whereof I do hereby acknowledge, have given, granted, released, conveyed, and confirmed unto him the said T. S., his heirs and assigns forever, two hundred acres, &c. To have and to hold the above granted and bargained premises with all the privileges and appurtenances thereof to him the said T. S. his heirs and assigns forever, as an absolute estate of inheritance in fee simple forever: hereby covenanting in behalf of said proprietors, their respective heirs, executors, and administrators to and with the said T. S. his heirs and assigns to warrant, confirm, and defend him and them in the possession of the said granted premises, against the lawful claims of all persons whatsoever. In testimony that this instrument shall be forever hereafter acknowledged by the said proprietors as their act and deed, and be held good and valid by them, I, the said Josiah Little, by virtue of the aforesaid vote, do hereunto set my hand and seal this nineteenth day of February," &c., with the defendant's name, and a seal. To this the defendant objected that the deed and the covenants therein were the deed and covenants of the Pejepscot Proprietors, and not of the defendant; and so not proving the declaration. And THAcher, J., before whom the cause was tried, thereupon directed a nonsuit, with leave for the plaintiff to move that the nonsuit should be set aside and the action proceed to trial, if the Court should be of opinion that the deed and covenants therein were the deed and covenants of the defendant.

Belcher and R. Williams, for the plaintiff.

Little and Longfellow, for the defendant. Proprietors of lands, incorporated by the provisions of our statutes, have no common seal, and

must always grant by vote, or convey by deed, executed by agent or attorney authorized for that purpose. . .

PREBLE, J. In this case two questions are presented for the consideration of the Court. 1. Is the deed declared on the deed of the Pejepscot proprietors? 2. Admitting it not to be deed of the Pejepscot proprietors, is it the deed of Josiah Little, the defendant?

Where a contract is entered into or a deed executed in behalf of the government by a duly authorized public agent, and the fact so appears, notwithstanding the agent may have affixed his own name and seal, it is the contract or deed of the government, who alone is responsible, and not of the agent. Unwin v. Wolseley, 1 D. & E. 674; Mabeath v. Haldimand, id. 172; Hodgson v. Dexter, 1 Cranch. 345; Dawes v. Jackson, 9 Mass. 490; Sheffield v. Watson, 3 Caines, 69. But the same rule does not obtain in relation to the agent or attorney of a private person or corporation. It seems to have been settled or recognized as law in courts of justice by judges, distinguished for their wisdom and learning, in successive generations and under different governments, that in order to bind the principal or constituent and make the instrument his deed, the agent or attorney must set to it the name and seal of the principal or constituent, and not merely his own. In the year 1614 it was resolved in Combes' Case, 9 Co. 76, that "when any has authority as an attorney to do any act, he ought to do it in his name who gives the authority, and the attorney cannot do it in his own name, nor as his proper act, but in the name, and as the act, of him who gives the authority." There, however, the act done by attorney was the surrender in court of certain copyhold lands, in doing which, as is well known, neither signing nor sealing constituted any part of the ceremony. A case where a question, relating to the receiv ing of such a surrender was agitated, came before the Court of K. B. in 1701, — Parker v. Kett, 1 Ld. Raym. 658, — in which Ld. C. J. Holt seems to be dissatisfied with the rule in Combes' Case, and expresses an opinion that, though the act were done in the attorney's own name, provided he had sufficient authority, it would be good without reciting his authority, though not so regular and formal. The rule, however, as laid down in Combes' Case, is cited by Ld. Ch. Baron Comyn, as good law. Com. Dig. Attorney (c. 14) and 1 Rol. 330, 7 35, is quoted as supporting it. Upon the same authority it is stated, that if an attorney has a power by writing to make leases, if he makes a lease in his own name, it will be void. This latter principle was recognized as law in 1726 in Frontin v. Small, 2 Ld. Raym. 1418. In that case also the attorney in the body of the instrument for, and in the name, and as attorney of the principal, demised, &c. ; but the court held, that a person empowered by warrant of attorney to execute a deed for another, must execute it in the name of the principal. In conformity with this decision is the language of Ld. C. J. Kenyon in 1795, in White v. Cuyler, 6 D. & E. 176. "In executing a deed for the principal under a power of attorney, the proper way is to sign in the name of the prin