Dickson v. Hamer

1 Free. Ch. 284

• Court: Mississippi Chancery Courts
• Decided: July 1, 1844
• Status: Published

Opinion

The Chancellor.

At the time I directed an issue in this case, the decision of the High Court of Errors, in the case of Williams v. Crutcher, 5 How. Rep. 71, had not been made. When first looking into the papers of the case, although it appeared clear beyond doubt that the forthcoming. bond which the complainants seek to have declared void, was blank in its most essential parts, when it was signed, yet as I had some doubt, from the testimony, whether verbal authority was not given to the officer taking the bond to fill it up, in conformity with the purpose for which it was intended, I directed an issue mainly to ascertain that fact. Some examination of the authorities upon the question, had led me to the conclusion that the bond although signed in blank would be good, if it should turn out that an express authority was given at the time, to fill it up for a specified purpose, even though that authority rested in mere parol. I had repeatedly decided, after full examination, that mere implied authority in such cases was not sufficient to give validity to a bond so filled up. But examining the question as one of principle, no reason occurred to me why parties signing and sealing a bond, with blanks left in it, might not at the time give express verbal authority to another person to fill those blanks so as to make the bond obligatory.

That an agent cannot bind his principal by signing and sealing an instrument in the name of his principal, unless his authority to do so was created by an instrument of equal dignity, is universally admitted. The authority in such case must be under seal, and the reason given is, that it would be unreasonable that the power to make so solemn an instrument should be transferred by any medium less solemn than the act to be done under it. It is the seal, then, which no one may make for another, without authority to do so derived through the medium of a seal. And this occurred to me to be the extent and limit of the rule. It is quite certain that acts, other than the sealing of a deed, but which are still necessary to its validity, may be performed by a mere verbal agent. For example : it is essential to the validity of a deed, that it should be delivered; but this may be done by a third person, acting under parol authority from the grantor, Chadwick et al. v. Webber et al. 3 Greenleaf’s Rep. 141. Verplank v. Sterry, 12 John 536.

In the case before me it appears that the bonds were signed, sealed and delivered. These were deliberate acts, done in part completion of the bonds; and nothing remained but to fill out the blanks left in them. The filling these blanks was an act of less solemnity than the signing and sealing, and it appeared to me, reasoning from the analogies of the law, that this might he done without at all violating the rule which requires an agent, when he attempts to bind his principal by a seal, to have the authority of a seal for so doing. Here no signing or sealing Avas to be done; that ceremony had been already performed by the obligors of the bond. I thought, therefore, that there was no act to be done in the case by ap agent, requiring the authority of a seal. In this view of the case I found myself sustained by the reported opinion of Lord Mansfield as cited in 1 Aust. 228, and by the opinions of the supreme courts of New-York and Pennsylvania, as reported in 8th Cowan, 118, and in 17th Serg. and Rawle, 438. I was aware that the question had been decided differently in several of the states. A different rule has been at least laid doAvn by the courts of Tennessee andNorth Carolina, and Judge Trotter in delivering the opinion of the supreme court of this state, in the case before referred to, sustains that view of the law. Nothing remains for me but to follow .that decision; in doing which it becomes unnecessary for me to enquire whether the finding of the jury under the issue directed is sustained by thé testimony or not, as according to that decision, the enquiry which was made is wholly immaterial to the case. I shall accordingly direct that the finding of the jury, and the order directing an issue to be tried, be set aside, and that a decree be prepared, declaring the forth-coming bonds made by the complainants, void, and perpetually enjoining any execution thereon. The costs of the case must be paid by the complainant.