Graham v. . Holt

25 N.C. 300 | N.C. | 1843

As to the first count. A bond is the acknowledgment (302) of a debt under seal, the debt being therein particularly specified. In every good bond there must be an obligor and an obligee, and a sum in which the former is bound. Shep. Touch., 56; Com. Dig. Obligation A; Hurleston, 2. In New York ex parte Therwin, 8 Cowen, 118, and some other American cases, the nisi prius decision before Lord Mansfield ofTraxira v. Evans, 1 Anst., 229, in nota has been followed. That case was where a party executed a bond with blank spaces for the name and sum, and sent an agent, without a power of attorney under seal, to raise money on it, the agent accordingly filled up the blanks with the sum and the obligee's name.[,] and delivered the bond to him. *210 On the plea of non est factum the bond was considered well executed. ButTraxira v. Evans has been by this Court twice overruled, as attempting to establish a distinction in the mode of executing deeds by attorney, where the object was to raise or secure money, and when it was to operate as a conveyance; the first, by a power of attorney not sealed, the other with a power of attorney under seal. The notion with us has always been, what we learned from Co. Lit., 52 (a), and the Touchstone, 57, that he who executes a deed as agent for another, be it for money or other property, must be armed with an authority under seal. McKee v. Hicks, 13 N.C. 379;Davenport v. Speight, 19 N.C. 381. The insertion of the sum in the blank space was intended to consummate the deed; it was done without legal authority, and the instrument is void as a bond.

As to the second count. Before one partner or his representative can sue another partner at law, the settlement of the firm must be complete and a balance struck. Colyer on Part., 152. Fromand v. Coapland, 2 Bing., 170.

We see no error in the opinion of the Court, on either of the counts, and the judgment must be

PER CURIAM. Affirmed.

Cited: Phelps v. Call, 29 N.C. 264; Blacknall v. Parish, 59 N.C. 72;Love v. Rhyne, 86 N.C. 578; Sandlin v. Ward, 94 N.C. 497; Humphreys v.Finch, 97 N.C. 307; Newby v. Harrell, 99 N.C. 156; Cadell v. Allen,Ib., 545; Rollins v. Ebbs, 137 N.C. 358, 359; S. c. 138 N.C. 149.

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