Harman v. Harman

11 F. Cas. 530

• Court: U.S. Circuit Court for the District of Eastern Pennsylvania
• Decided: April 15, 1830
• Status: Published

Opinion

BALDWIN, Circuit Justice.

We have no doubt that the power of attorney is executed in the form, and with all the solemnities required by the law of France, where the parties are domiciled; nor that any writing made under its authority would be binding upon them here, as a contract, to the same extent as it would there. The general proposition, that the validity of a contract depends on the law of the country in which it is executed, is undeniable, unless it is to be performed elsewhere; the forms of execution are also governed by the local law of the contract, on which it depends whether a seal is necessary to give it efficacy or not. But when an instrument is executed in one country, with reference to the laws or judicial proceedings of another, it must be executed with the formalities prescribed in that country in which it is to take effect, for the purposes declared by the law. The plaintiffs come into this court to claim the personal property of a decedent, domiciled in this state at the time of his death; he must pursue his remedy by the law of the forum to which he resorts, and comply with all things required to entitle them to distribution, one of which is that he shall give bond and security, in the orphan's court, to the administrator, to refund in certain cases.

This court, in a suit in equity, between a foreigner and a citizen, praying for an order of distribution of the estate of a decedent, is bound by the same law which regulates the proceedings of the orphan’s court of the state; it has accordingly ordered, that bonds shall be given pursuant thereto. The only question now before us is, whether the papers presented are the bonds of the plaintiffs, according to the true intent and meaning of the fifteenth section of the act of 1794. We cannot doubt that the intention of the legislature was, that the security of creditors and the administrator, should be by an instrument, which should have all the effect and attributes of a bond or specialty by the laws of the state, binding the principals and sureties alike. If the papers now before us are not bonds, the obligation they create may be barred by the act of limitation, and in case of the death of any of the parties who have executed them, the administrator would come in only as a simplq contract creditor, for the sum which he had been compelled to pay to a creditor, who may have sued after the order for distribution. This would be so contrary to the spirit, as well as words of the law, and so unjust to the administrator, that we cannot hesitate on the subject. . The law of this state recognises no instrument of writing to be a bond, without the seal of the party who executes it The case of Taylor v. Glaser was a strong one; there were counterparts of an agreement; one was under seal, the other had none, and was held not to be a specialty. 2 Serg. & R. 504. The seal is not a mere formality of execution, but a matter of substance, which gives to the paper certain legal effects, which cannot be attached to any unsealed paper. The power of attorney not being under seal, therefore, eould give no authority to execute a bond in the name of the parties; the eases are full to the point, and the law must be taken to be settled.