Gale v. Tappan

12 N.H. 145 | Superior Court of New Hampshire | 1841

Gilchrist, J.

The first objection taken by the defendant cannot be sustained. There is nothing in the case to raise a presumption that the demand was made upon any other person than Tappan, the defendant. The person called upon appeared to be familiar with the transaction, did not deny his signature to the note, and said that there had been trouble about it. He was also found at the defendant’s office ; and not only is the evidence competent to be submitted to the jury to prove a demand upon the defendant, but it is difficult to resist the conclusion that the defendant was the person upon whom the demand was made.

The other objection, however, is fatal to the maintenance of this suit. The demand was made by Eaton, not in pursuance of any authority, written or verbal, from the executors, but under the power of attorney from Hannah Tappan. He showed his authority to the defendant, who said he was satisfied as to the power of attorney. He might be satisfied that it was executed by Mrs. Tappan, and that, upon its face, it sufficiently authorized Eaton to make the demand ; but this does not now estop him from taking the objection, that the authority was then determined by the death of the principal. He might not then have known of her death ; or he might have supposed that the demand was made as well under an authority derived from the plaintiffs, her executors, as under the power of attorney.

It has been often settled that an authority of this kind is determined by the death of the principal.. Where a man makes a deed of feoffment to another, and a letter of attorney to one to deliver to him seizin by force of the same deed, the death of the feoffer is, in law, a countermand of the letter of attorney. Co. Litt. 52, b. An authority confirmed by letter of attorney must be executed during the life of the principal : for a power to represent another can only continue so long as there is some one to be represented. Bac. Abr., Authority, E. A payment of the wages of a sailor to a person having a power of attorney to receive them, has been held void, where the principal was dead at the time of the payment. Wallace, Adr., vs. Cook, 5 Esp. 118. And a power of attorney, authorizing the sale of a vessel, is revoked by the death of the owner. Wallace & ux., Adx., vs. King, 1 Stark. 121. And the same point seems to have been determined in a case in equity, where a power to a creditor to receive a debt, expressly for the purpose of liquidating the claim of the creditor, unaccompanied, however, by any actual assignment of the debt, or by any security to which the power might have been ancillary, was held to be revoked by the death of the principal. Lepard vs. Vernon, 2 Ves. & B. 51. To the same point, also, are the cases of Harper & a. vs. Little, 2 Greenl. 14; Rex vs. Corporation of the Bedford Level, 3 East 356, and Raw vs. Alderson, 7 Taunt. 453.

As the authority of Eaton, therefore, was determined by the death of Mrs. Tappan, before the demand was made upon the defendant, the verdict must be set aside, and a

Neto trial granted.