Cooper v. Rankin

• Decision Date: 17 July 1813
• Citation: 5 Binn. 613
• Parties: COOPER v. RANKIN administrator of RANKIN.
• Court: Pennsylvania Supreme Court

5 Binn. 613

COOPER v. RANKIN administrator of RANKIN.

Supreme Court of Pennsylvania.

July 17, 1813

IN ERROR.

It seems that an attorney who is not authorised by writing under seal, cannot execute a deed of release under seal, in the name of his principal; but if he does execute such a deed, though it cannot be given in evidence against the principal under the issue of non est factum, yet it may be under the issue of non assumpsit as amounting to an agreement not to sue.

THIS was an action in the District Court of Philadelphia upon a promissory note drawn by Cooper the defendant below, in favour of Rankin the intestate, for 466 dollars 67 cents, and payable in four months from the 13th of November 1804. The pleas were non assumpsit, payment, and a release, to which last plea the plaintiff replied non est factum.

Upon the trial of the cause, the defendant proved, that Rankin, in the beginning of the year 1805, sailed upon a voyage to the Isle of France, as the supercargo of Lewis Crousillat, and left Crousillat to settle and adjust all his concerns during his absence; that he returned from that voyage in the summer or fall of 1806, sailed in two or three months for Batavia, and died abroad.

He then offered in evidence, after proving Crousillat's handwriting, an instrument dated the 27th of May 1805, signed and sealed " L. Crousillat, attorney to Alexander Rankin, " but without any subscribing witnesses, and purporting, in consideration of an assignment of the same date by Cooper of all his property in trust for his creditors, to release and quit claim to him, his heirs & c. all actions, suits, debts sums of money, and demands in law or equity, which the parties had against him from the beginning of the world to the day of the date.

This evidence was overruled by the Court, who sealed a bill of exceptions.

Sergeant and Hallowell for the plaintiff in error. The Court below were of opinion that an authority under seal was necessary to execute the release under seal, and that there was no proof of a delivery of the release by the attorney. As to the first objection, it applies only to the particular issue of non est factum; the release was evidence under the issue of non assumpsit, to prove an agreement not to sue. As to the second, there was no subscribing witness to the release. None was necessary. And where there is none, proof of the handwriting of the obligor is strong evidence of sealing and delivery, and should have gone to the jury. Clark v. Sanderson ^[a], Peak Ev. 100.

Phillips for the defendant in error. Delivery is essential to a deed, and there was no proof of it whatever. Bull. N. P. 254. If delivered, the attorney had no authority to execute it; for an attorney cannot execute a deed for his principal, without an authority by deed. 3 Bac. Abr. 408., 1 Bac. Abr. 183. Authority., Co. Litt. 48. b., 2 Roll. Abr. 8., 1 Salk. 96., Brownl. 94., Yarborough v. Beard ^[b], 1 Bac. Abr. 287. Attorney., Co. Litt. 52., 8 Co. 58., Hob. 9., Roll. Rep. 3. The only question below, was, whether the release was evidence under the issue of non est factum.

TILGHMAN C. J.

If we were only to consider now, the question which the District Court is said to have decided, that is to say, whether an agent or attorney not authorised by deed, can execute a deed in the name of his principal, I am inclined to think I should agree with that Court, because I do not see how the stream can rise higher than its source. I refrain however from giving a positive opinion on that point, as it is unnecessary. The writing was good evidence on a plea of non assumpsit, because, granting it not to be a deed, it might operate as an agreement in writing not to prosecute an action on the note, and this agreement was founded on good consideration, on a conveyance executed by Cooper, of all his estate, for the benefit of his creditors. From the circumstance of there being no subscribing witness, I think it probable that the writing never was sealed and delivered; but after proof of the hand writing, it ought to have gone to the jury in the character I have mentioned. I am therefore of opinion that the judgment should be reversed, and a venire facias de novo awarded.

YEATES J. gave no opinion, having been sick during the argument.

BRACKENRIDGE J.

The use of the seal was originally the distinguishing the person; for every individual was supposed to have his peculiar seal. The act of impressing with a seal, importing greater deliberation, might also be considered as adding to the evidence of its being the act of the party. It was a symbol of solemnity, which gave a greater effect to the instrument. This may be considered as a...