Heffernan v. Addams

The opinion of the Court was delivered by Kennedy, J. The several errors assigned in this case present but two questions:—First, Had Hugh Henry Heffernan authority, under the letter of attorney from Hugh Heffernan and Catherine his wife, of the 10th of June 1814, to compound for money which had not become payable to his principals, and upon receipt of a less sum [120] than the amount of the debt to release or acquit the debtor, or to compound for an annuity, that is, the interest on 200 pounds made payable to Catherine, one of the constituents, during her natural life, and to accept of a gross sum in lieu of it, and in consideration thereof release and discharge the annuity % Second, Does the release bearing date the 7th day of July 1814, executed by Hugh .Henry Heffernan to John Singer, purport to be the deed and release of Hugh Heffernan and Catherine his wife, or is it not in its terms and tenor the deed and release of Hugh Henry Heffernan, the attorney, himself 1 As to the first question, it would not seem, from the terms in which the letter of attorney is drawn up, to have been the intention of the constituents to grant to their attorney any power or authority over debts or moneys payable at a future day, before they should become payable. The language of the power is, “ to ask, demand, sue for, recover and receive all such sum and sums of money, debts, &c., which are or shall be due, owing, payable and belonging to us or detained from us, &c., especially, all the share, part or dividend of the said Catherine Heffernan, formerly Catherine Singer, of, in and to the estate of Henry Singer, late of the county of Berks, deceased, (whether real or personal) now in the hands and possession of John Singer, administrator of t he said Henry Singer, deceased.” It is clear that the attorney was only to receive such money or debts as the constituents had, or should have at the time of the receipt thereof, a right “to ask, demand, sue for and recover /” but it must be admitted without the least hesitation, that a right to ask, demand, sue for and recover money or a.debt does not exist before it becomes payable. We therefore think that the attorney had no authority or power from his principals to demand and recover moneys under the letter of attorney, before the debts became payable : and having no power to do so, it of necessity follows, that he could give no release, acquittance or discharge that would be binding upon his principals. The court below, then, as we conceive, erred in their charge to the jury, by telling them, that the words “all which are or shall be due,” contained in the letter of attorney, were to be construed as if written, “which areor shall become due ;” and that the attorney thereby acquired authority to demand and receive money, and to give binding acquittances therefor, before they became payable ; and consequently before they could have been sued for and recovered. Having shown that the attorney had no authority, under his letter, to receive the 180 pounds, which had not become payable when he undertook to release the obligor or land bound for the payment thereof; nor to do any thing more with the interest of the 200 pounds, which was payable annually to Catherine Heffernan, one of the constituents, during her natural life, than to demand and recover it, as and when it became payable, and not before ; and upon receipt thereof, after it became payable, to give a proper acquittance ; but beyond this as it appears no authority was given ; and [121] certainly not the least colour of it, going to warrant his release of the obligation to pay the interest according to the direction of the will, upon his receiving a sum of money in advance for it: I will now turn to the second question. Does the release, which was given in evidence and objected to by the counsel of the plaintiff in error, purport to be the deed or release of Hugh Heffernan and Catherine, liis wife, or of Hugh Henry Heffernan, the attorney, himself1? It is well settled that when one executes a deed for another, under a power of attorney, in order to make it the deed of the principal, it must be executed in the name of the latter; but if that be done, it has been held that it matters not in what form of words it shall be done; that such execution is sufficiently denoted by the signature of the names, as if opposite the seal be written, “for J. B. (the principal) M. W. (the attorney).” Wilkes v. Beck, 2 East 142. But without it be executed in some form or other, in the name of the principal, it will not be good as his deed, or binding upon him. Frontin v. Small, 1 Stran. 705 ; Bogart v. De Bussey, 6 Johns. Rep. 94 Berkley v. Hardy, 8 D. & R. 102 ; 5 B. & C. 355. But the release in question is not executed in the names of Hugh Heffernan, and Catherine his wife, or either of them, in any form or manner whatever; nor is the body or any part of it in their names. It, on the contrary, is in the name of Hugh Henry Heffernan the attorney throughout: and is executed by him in his own name under his hand and seal, without the slightest allusion to or mention of his principals. It appears not only from its face, but from the whole tenor and purport of it, to be the proper deed of the attorney himself; and therefore ought not to have been admitted in evidence as the deed of his principals, executed under the power of attorney, The judgment of the court below must be reversed; but, the attorney being the son of his constituents, it may be that he advised them truly of all that he had done, and accounted to them at the same time for the moneys received by him as the consideration for what he did do ; if it be that they received the moneys, and thus acquiesced in all that he did, it would amount to a confirmation thereof; and be as conclusive and binding upon them, as if the letter of attorney, given by them, had authorised the whole of it, and the release had been duly executed in their names : so that it may be that the plaintiff will not gain much, by reversing the judgment, if the defendant should be able, on the next trial of the cause, to prove that the constituents acquiesced in and approved of all that, their attorney did for them in regard to the matters in controversy. Judgment reversed and venire de novo awarded.