Whelan v. Sherron

In support of this affidavit of illegality, the docket of Justice Wade’s Court was introduced in evidence, before said presiding Magistrate, by which it appeared, that the name of John Whelan had been written thereon, as the security on an appeal, in the case of Owen Sherron vs. William Patterson. — 55 — William Patterson was then called, and introduced as a witness, on the part of the complainant, to prove that the name of John Whelan, as it appeared on the said docket of the said James II. Wade, was not the hand writing of the said John Whelan. This testimony the said Justice overruled, as incompetent, on the ground of his being a party to the record, and interested in the result. The defendant, or complainant, then introduced John Jones, as a witness, who proved that the name of John Whelan, as it appeared on said docket, was not the handwriting of the said John Whelan. The plaintiff in execution then introduced, as a witness, the Magistrate, James II. Wade, before whom the original cause was tried,— He testified, that the said John Whelan did call or him, at his office,' and tell him, that he, Whelan, had called, for the purpese of becoming the security of the said William Patterson, for an appeal, in the aforesaid case, and that he, Whelan, did request him, the said James JI. Wade, Esq. to sign his name to the docket, as the security of said William Patterson, which he said he did do, agreeably to said request. This was all the testimony, which was introduced, on both sides ; and the presiding Magistrate certifies to this Court, that, upon this testimony, he decided that the execution was legal, and should bo enforced. Exceptions having been taken, to this decision of the Magistrate, by the counsel of the said John Whelan, as being contrary to Law, and he having complied with the statute; applied to this Court, for the writ of Certiorari, which was granted to him. And now the question, which is presented, for the consideration and decision of this Court, under the foregoing facts and proceedings, in the Court below, is, has, or has not, the Magistrate, in overrulin'»' the defendant’s affidavit of illegality, and in sustaining the execution, issued against him, as security on said appeal, on principles of Law, committed error, under the facts, above stated? This question, in the present case, becomes important and interesting, in point of Law, inasmuch as it is suggested to this Court, that a practice prevails, with some Magistrates of this county, of signing the names of individuals, upon their docket, where an appeal has been demanded. — 56 — upon the authority of loose and verbal declarations of such individuals, and binding them, for the payment of the eventual condemnation money, on the appeal, without any authority in writing, for that pur-' pose — a practice, which, if it in tact exists, to say the least of it, is of dangerous tendency, as it must inevitably lead, either to gross fraud, or perjury. We have a striking instance of this, in the case now before the Court. The, defendant, Whelan, in his affidavit of illegality, under oath, denies that he ever gave the Magistrate, James H. Wade, any authority to sign his name, as security on said appeal;— on the other hand, the Magistrate as expressly states, under his hority was given, by the said John Whelan, to loth cannot be right. It therefore becomes important, under the facts above stated, to enquire, first t admitting the fact, that such parol authority was given, by the said John Whelan, to the said James II. Wade, to sign his name, on the docket of said Wade, as a security on the Appeal of William Patterson i waelner dio act cone, as it appears on tiic race of said docket, has been done in sucha manner, as can legally bind the said John Whelan, for the eventual condemnation money ; or, in other words, whether the act, as done, purports, on its face, to have been done, in pursuance of such authority. For, 1 apprehend, it is a well settled principle, that where an act, done for another, is done in pursuance of a previous written, or paro!, authority, it must appear, upon its face, to have been done, in pursuance of such authority, or it will not bind the principal. — tiiory on Agency, 1Ü7. If this does not appear, the strong presumption of fact would, be, that no such authority had been previously delegated. Second i Whether, in point of Law, a power or authority, to sign the name of another, as a security upon an appeal, can be delegated by parol; or whether, from the very nature and dignity of the contract, that power must not Ire delegated, by writing, and under seal, in order to malte the act binding, and legal. N'iíiv, idmfm . ’■ ■ ' Am. ''.¡.y I would simply ron.-k, t' a f o . -n '< m - ' to n ■_ d •• pm Ming Magis-tral , in tb ( i ”d 1 Wo o d i ■■ rye 'o ’ dial the name of John Win L’p r> v n : <■ i f. ie -e - te ñ „ p st;,] James M. Wade, d - reed v w ■ A, p ■ I W t'm - 1 1 William Patterson, is written thereon, by any person, claiming to act, as the attorney of the said Whelan. The. act, on its face, purports to be the individu — 57 — al act of the said Whelan, and not his act, by virtue of any power, or authority, delegated by him, to any person, lor that purpose; and, as already remarked, such being the fact, the strong presumption,--in Law, would be, that no such authority had been previously given, or delegated, by him, to any person. It may, therefore, well be questioned, as it seems to me, whether the presiding Magistrate, in the Court below, when he received the testimony of the said James H. Wade, for the purpose of adding to, and explaining, the facts, as they were apparent, on the face of that record, did not commit error in Law, But, without placing" this there is another, and much the facts of the case, which Whether, in point of Law, another, as a security «por whether, from the very na thorit dekw morder to mane the security, This que: in reference to the regulating appeals, i which such appeal r no oilier oem my own min: that point, as ground of error, .ant question, involved, under ¡oils consideration. It is this: utihority, to sign the name of :an lie delegated by parol; or rnitv of the contract, such aura led, by writing, under seal, iding, upon the principal, or ■ortanee, whether considered, i is to be given the Statute, mil the mode and manner, in ected in such Courts, as well securities, upon such appeal, .ay possibly prevent, in future, baud and perjury, if it produce give the conclusion, to which o it, as briefly as practicable. The language of tin Courts, is as follows “the Justices of the Í “ more of thorn, slial “■determine all suits, c éí sums of money, not “rant. And the said “ to give judgment, an “ theless, that either ¡ “ appeal, on payment id sr the Is, in our Justice’s passing of this Act, riets, or any one or >T co ority and jurisdiction, to hear and idated demand, or account, for any Thirty Dollars, by summofiébor ware hereby authorized and empowered mention thereon. Provided, never-g dissatisfied, shall he allowed an id giving security, for the eventual — 58 — “ condemnation money, within three days after judgment, &e. — -But no stay of execution shall be allowed, after an appeal trial, for a “ longer term than twenty days ; in which case, the security on the. “ appeal, together with the security for the stay of execution, shall “ he liable for the debt and costs,” Now it is contended, by the counsel on the part of the plaintiff in execution, that, inasmuch as the above Statute, regulating appeals in Justice’s Courts, does not, on its face, prescribe, in terms, the manner and form, in which such appeal is to be entered, or the security given, for the eventual condemnation money; therefore, the Magistrate, in the Court below, had the right to enter the same, and take the security for the eventual condemnation money, in any manner and form, he pleased. The first answer, which I have to make to this proposition, is — that so thought not the Magistrate himself, in the Court below, when he wrote the name of John Whelan, as the security of William Patterson, on appeal, on the face of his docket. For, by that act, he has treated the security, required by the Statute, as a security of Record; and thus given us his own exposition and construction of the Statute. That this exposition and construction of the above Statute is the correct one, will, I think, be manifest, if we, for a moment, consider the nature and character of an appeal, the spirit and language of the above Statute, regulating appeals in justice’s Courts, and the cotcmporaneous construction of other Statutes, in pari materia, and the practice under them. And first, what is an appeal ? Is it not the act of a party on record, whereby a judgment of a Court of Record, upon security being given, by him, as under the above Statute, for the eventual condemnation money, is permitted to transfer, or lift up, that judgment, from an inferior to a superior tribunal, cither for reversal or affirmance? If so, is it not manifest, both upon reason, and common Law principles, that the act of appealing, as well as every other act, which is required by the Law, in order to perfect that appeal, must, of necessity, be of as high a character and dignity, as the act, which is appealed from ; or, in other words, that they must be matter of record ? Now, it is true, that tire Statute, regulating appeals in Justice’s Courts, does not, in terms, prescribe the form, in which tho security, upon an appeal from the judgment of the Justice to that of a .Jury, shall be taken by him, or entered. Neither does tho Statute, regulating appeals to this Court, from the Inferior Courts, or from the verdict of a Petit Jury to that of a Special Jury, in this Court, — 59 — The language of the Statute, regulating appeals to this Court, is al« most precisely the same, with that regulating appeals, in a Magistrate’s Court, from the judgment of the Justice to that of the Jury. It ⅛ as follows : “ That in case either party shall be dissatisfied with the “ verdict of the Jury ; then, and in all such cases, either party may, “within four days after the adjournment of the Court, in which such “verdict was obtained, enteran appeal, in the Clerk’s office of sucll “ Court, (as matter of right) and if such verdict shall bo obtained in “ the Inferior Court, it shall be the duty of the Clerk thereof to trans- “ mit such appeal, to the Clerk of the Superior Court, of the County “ in which such verdict shall be obtained, who shall enter the same “ on the appeal docket, which appeal shall be admitted and tried by “ a Special Jury : Provided, the 'person or persons, so appealing, shall, “previous to obtaining such appeal,pay all costs, which may have arisen “on the former trial, and give security, for the eventual condemnation “ money ; except executors or administrators, who shall not be liable “ to give such security.” — Prince I), 420. The Judges of this Court, in giving a construction to the above Statute, have uniformly held, that the act of appeal, as well as the act giving security for the eventual condemnation money, as required by the Statute, are acts of record, which must appear on the minutes of the Court; and, by a rule of this Court, they have prescribed the form of a recognizance, under seal, which is to be given, before such appeal can be legally perfected. And such is the uniform practice, in this Court. The cotemporaneous exposition of Statutes is always a safe rule of construction, to apply to similar Statutes, in pari materia. And although it would not bo required, that an appeal, entered in a Magistrate’s Court, to make if legal, should, verbatim et literatim, follow the form, prescribed in the rule of this Court; still, I apprehend, it should appear, on the face of the record, in the Court below, that an appeal was demanded, by the dissatisfied party, and that a recognizance, under seal, for the eventual condemnation money, had been taken and acknowledged, by the security, before the magistrate, as matter of record. The security, required for the eventual condemnation money, under the above Statutes, regulating appeals in our own Courts, is precisely analagous to that security, which is required under the English Statutes, for the prosecution of a writ of error ; for an appeal is but — 60 — another name for a writ of error. By the Statute 3 James 1,. @b. •8; made perpetual by the Statute 3 Charles 1. Ch. 4, Sec, 8, to-restrain unnecessary delays of execution, it is provided, that, in actions thereon specified, no writ of error shall be allowed, unless the party, bringing the same, tcith two sufficient securities, shall first be bound, unto the party, for whom the judgment is given, hy recognizance, to be acknowledged in the same Court, in double the sum to be recovered by the former judgment, to prosecute, (he said writ of error, to effect, and also to satisfy and pay, if the said judgment be affirmed, all the damages and costs, adjudged upon She former judgment, and all costs and damages, to be awarded, for the delaying of (lie execution ; and so absolute and unconditional is this recognizance held in England, that it is an established rule, there, that such bail cannot divest themselves of their responsibility, by surrendering their principal, to the plaintiff in error, or be relieved from that responsibility, upon the ground that their principal has become bankrupt, pending the appeal. — 3 lilac, Com. 410. note (4): Pe/ersd. on Bail in Error, 470. That such also is the raor.o a,.'! , h .• < f iho security, required to bo given under our < on r:,:n ■ , i.i c. w, of appeal, for the eventual condemnation monc'.. and such tlmir K.spoiibihility, there cannot u < n t > i 1 \ o, n we refer to the u, o i i c otion of the Act of 1 fore, from v that the pro the plaintiff ,i c' i Court, unde k, uiere-ifest, rt of .j i ¡.-¡lice’s ; ap-tbly, impel fant, that Uf'VfJ. VlOJifitl UCtKH'l Oí. UlC rffiltl peals in that Í vu . 1 hu, ] i necessity m ly La,c ... pi..cd , f -t _ ^ dm..— we should distinctly ascertain tire nature and character of that security, which is required to bo given, for the eventual condemnation money, in cases of appeal, under the Statute, that we may be the better prepared, to decide the question, whether, in point of Law, a power or authority, to sign the name of another, as a security upon an appeal, can be delegated by parol, so as to make the act valid and binding, upon the security ? ’The decision of this question will determine the point, whether the Magistrate, in the Court below, when he overruled the defendant’s affidavit of illegality, and sustained the execution, which had been issued against .him, as a security on the — 61 — appeal of Owen Sherron, has, or has not, committed ormr, in Law ? Now it is true, that an agent, or attorney, mar w-dinarily bo constituted, and appointed, by a parol authority, in the broad sense of that term, at the common Law — that is, he may be crmwitutcd such, by a verbal declaration, or by a writing not under seal, or by acts and implications. But agencies of this character are exclusively confined, upon legal principles, to commercial transactions, and others of a like character. There, is, however, to this general rule, one exception of great practical utility. And it is this : That whenever any act of agency is required to be done, in the name of the principal, under seal; the authority to do the act must he conferred,, by an instrument under seal; or, otherwise, tho act done cannot be hold valid, and binding upon the principal. This exception has its foundation, in' the strict principles and solemnities, required by the common Law, in regard to the transfer of real estate, and the creation of formal obligations and covenants; and applies, as it seems to me, with all its force, to the facts of this present case. — Story on Agency, 49, 50; Reed vs. Van Ostend, 1 Wend. 424 ; Blood vs. Goodrich, 9 Wendel, 68 ; Hunford vs. McNair, 9 Wendel, 54; Blood vs. Goodrich, 12 Wendel, 535; Cooper vs. Rankin, 5 Binn. 613; Gordon vs. Bulkley, 14 Searg. & Rawle, 331 ; Harrison vs. Jackson, 7 Term R. 203. Admitting, then, that a security to an appeal can legally delegate, to another, the power and authority to subscribe his name, as such security, to a recognizance for the payment of the eventual condemnation money, which is an act to bo performed of record, and under seal — which I exceedingly doubt — the question arises: can that authority be delegated, by parol, in the common Law acceptation of that term ; and will the act, thus done, bind the security ? From the best reflection, which I have been enabled to give this question, I am of opinion, that such power or authority cannot be delegated, by parol; but, if delegated, must be delegated by writing, under seal, or the act of the agent will not bind his principal. The authority, therefore, given in the present case (if such authority in fact ever was given) by the defendant, Whelan, to the Magistrate, James H. Wade, being, according to the testimony of said Wade, a verbal, and not a written, authority, under seal, in my opinion, vested m himno power, to perform the act, which he appears to have done, so as legally to bind the said Whelan, as a security on said appeal, for the eventual condemnation money ; and consequently, as it appears to — 62 — this Court, the presiding Magistrate in the Court below, in overruling the affidavit of the said Whelan, as to the illegality of the execution, which was issued against him, as security on said appeal, and sustains, ing said execution, has committed error in Law, and his judgment ought, therefore, to be reversed. McAllister & Cohex, for Plaintiff in Error. T, E, Loyd, for Defendant in Error. It is therefore ordered, that the judgment of the Court below, in the case of Owen Sherron vs. John Whelan, security of William Patter, son, overruling tire affidavit of illegality of said Whelan, be, and the same is hereby, reversed; and the said affidavit of illegality is hereby sustained, with costs. And it is further ordered, that the Clerk of this Court do certify to the said Leonidas Wylly, Esq. and James H. Wade, Esq. the judgment of this Court, in the premises,