Rowe v. Ware

By the Court. Stephens, J., delivering the opinion, 1. Bell was not a competent witness against those sued as his co-sureties, on an issue of non est factum, for the direct effect of his testimony was to fix them as sureties with himself, and so divide and lessen his own liability. There was, therefore, no error in refusing a continuance to get his evidence. 2. The same reason does not apply to Taylor, for he was not served, and therefore was not to be bound to anybody nor anybody bound to him by the judgment; but another reason which disposes of all the assignments of error, rendered his proposed testimony incompetent also. His evidence, which was ruled out, was only proof of a verbal authority to sign the bond. The Court has before held that an authority under seal is necessary to authorize an agent to sign a sealed instrument. Whether the rule be a reasonable one or not, is not the question, it is too firmly fixed in the law to be . disturbed by Courts. It is a case for the Legislature only. [281] But it was said that the bond need not have been under seal, though in point of fact it was so, and therefore the seal might be disregarded. Not so. The question was, whether Taylor had authority to sign the names of Hooks and Herndon to this bond as it is — sealed as it is. Whether a bond without a seal (to use for convenience, a short but inaccurate phrase,) would be valid, has nothing to do with the ease, for there was no such paper in the case. If Taylor ever signed such an one, we know nothing of it. Was he legally authorized to sign the bond ? is the question. He was not, and therefore this bond does not bind them. 8. Under this view it is useless to consider the other assignments of error, for there was no evidence of authority to sign the bond, and a different verdict could not stand. No amount of errors will send a case back for a new trial, when a different verdict, if rendered, would have to be set aside for want of evidence to support it. It is worse than useless to give an opportunity to do that, which being done,- must be undone.