Maus v. Worthing

Lockwood, Justice, delivered the opinion of the Court: The appellee moves to dismiss this appeal, because the appeal bond appears to have been executed on the part of the surety therein, by an attorney in fact appointed by letter or power of attorney not under seal. The authority to execute the appeal bond is contained in the record, and is as follows, to wit: “ Mr. John A. Jones, Dr. Sir, I hereby authorize you to sign my name to a bond to be given by Jacob S. Maus, in an appeal case to the Supreme Court, at the last term of the Circuit Court. J. H. Worthing, for the use of John McCann, vs. Jacob J. Maus. “W. S. Maus.” The rule of law seems to be well settled, that an agent or attorney cannot bind his principal, by deed, unless he has authority by deed so to do. (1) In the cases of Hanford v. McNair, (2) and Blood v. Goodrich et als., (3) the Supreme Court of New York, review a number of authorities, both English and American, and decide that the only exception to the rule, that the authority to execute a deed must be by deed, is where the agent or attorney affixes the seal of the princip al in his presence and by his direction. These authorities are conclusive on the point. The appeal must therefore be dismissed, with costs, for the want of a sealed power to execute the deed on the part of the surety. Footnotes [(1)] Chit, on Cont. 57, and the English authorities there referred to. [(2)] 9 Wend. 54. [(3)] 9 Wend. 68.