This was an action of debt, in which the plaintiff declared in two counts: First, on a bond for two hundred and sixty-five dollars and two cents. Secondly, on a simple contract for the samo amount. The defendant pleaded the general issue to each count. On the trial the plaintiff produced a bond for the sum stated in the declaration, payable at nine months, and dated the 3d February, 1839, and proved the defendant’s signature thereto.
Good law ✅— No negative treatment on recordhow we know
Decided 1843-06-05
How this case has been cited
Cited by 5 later decisions — most recently April 1905
5 state decisions
Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.
¶1
As to the first count. A bond is the acknowledgment of a debt under seal, the debt being therein Particularly specified. In every good bond there must be an obligor and an obligee, and a sum in which the former is bound. Shep. Touch. 56. Com. Dig. Obligation A. Hurleston, 2. In New York,
ex parte Therwin,
8 Cowen 118, and some other of the American cases, the
nisiprius
decision before Lord Mansfield of
Traxira
v
Evans,
1 Anst. 229
in noia
has been followed. That case was, where a party executed a bond with blank spaces for the name and sum, and sent an agent, without a power of attorney under seal, to raise money on it, the agent occordingly filled up the blanks with the sum and the obligee’s name, and delivered the bond to him. On the plea of
non estfactnm
the bond was considered well executed. But the case of
Traxira
v Evans, has been by this court twice overruled, as attempting to establish a distinction in the mode of executing deeds by attorney, where the object was to raise or secure money, and when it was to operate as a conveyance — the first, by a power of attorney not sealed, the other with a power of attorney under seal. The notion with us has always been, what we learned from Co. Lit. 52 (a.) and the Touchstone 57, that he who executes a deed as agent for another, be it for money or other property, must be armed with an authority under seal.
McKee
v Hicks, 2 Dev. 379.
Davenport v Speight,
2 Dev. & Bat. 381. The insertion of the sum in the blank space was intended to consummate the deed ; it was done without
legal
authority, and the instrument is void as a bond. -
¶2
As to the second count. Before one partner or his representative can sue another partner at law, the settlement of the firm must be complete and a balance struck. Colyer on Part. 152.
Fromand
v
Coupland,
2 Bing. 170.
¶3
We see no error in the opinion of the court on either of the counts, and the judgment must be affirmed.
