101 Pa. Super. 534 | Pa. Super. Ct. | 1931
Submitted March 12, 1931. Plaintiff, a Canadian corporation, instituted an action of replevin in the court below for the recovery of a certain shipment of leather of the alleged value of $1,000. A bond in the amount of $2,000 was filed, as required by Section 1 of the Replevin Act of April 19, 1901, P.L. 88, signed by plaintiff corporation by Lester Bowman, its attorney, who signed as attorney-in-fact, and by a surety company. The commonly accepted abbreviation of a seal — "(L.S.)" — appeared following the signature of plaintiff corporation, but the corporate seal of plaintiff was not attached. There appears on the bond the word "telegram," which refers to a telegram delivered by Bowman to the prothonotary at the time the bond was filed, which reads as follows: N.Y. 1/12/31. 11:45 A.M. Lester Bowman, You are hereby authorized to act as attorney-in-fact for the Huron Leather Co., Ltd., in the execution of replevin bonds against whomever it may have occasion to issue them and that this telegram will be followed up with a power of attorney from our home *536 office signed by the regular officers confirming said authority. Huron Leather Co., Ltd." Defendant filed a petition upon which a rule was granted on plaintiff to show cause why the writ of replevin should not be quashed on the ground that the bond was not executed under proper authority of plaintiff, and was therefore invalid. The answer set up authority given plaintiff's attorney-in-fact by said telegram. At the oral argument the court gave leave to plaintiff to file a formal power of attorney (which it later did) ratifying the act of its attorney-in-fact in executing the bond. The court then discharged the rule to quash and from its order in doing so defendant appeals.
The Replevin Act, Section 1, provides as follows: "That before any writ of replevin shall issue out of any court of this Commonwealth, the person applying for said writ shall execute and file with the prothonotary of the said court a bond to the Commonwealth of Pennsylvania, for the use of the parties interested, with security in double the value of the goods sought to be replevied, conditioned, etc., ......"
This section of the act makes it clear that the filing of the bond by plaintiff is a condition precedent to the issuance of the writ. In Page v. Williamsport Suspender Co.,
Where, as here, the plaintiff is a corporation, it must of necessity perform this duty through an agent. But appellant contends that the authority of plaintiff's agent in this case, to execute the bond, was not properly shown, because there was nothing to indicate who acted for the corporation in signing its name to the telegram purporting to authorize its attorney-in-fact to execute the bond in its name. We think this is true. There is no presumption that the person who sent the telegram or the attorney who signed the bond, had authority to bind the corporation. The instrument shows, on its face, such an absence of authority as to make the bond invalid. It is nothing better than an informally executed paper: Hamborsky v. Magyar Presbyterian Church,
But there is another reason why this bond is invalid. It did not bear the corporate seal. A seal is of the essence of a bond, and no writing can have the qualities which attach to a bond without the seal of the parties executing it: 9 Corpus Juris, Sec. 19, page 14; Taylor v. Glaser, 2 S. R. 501.
In Moritz's Contested Election,
The initials "L.S." used to denote a seal would be sufficient if plaintiff were an individual, but cannot be used to take the place of a corporate seal. A corporation is an imaginary being whose deeds are authenticated by its common seal, which must be proved: Leazure v. Hillegas, 7 S. R. 313.
The appellee contends that, under Section 8 of the Replevin Act, the court had the power to permit the filing of the power of attorney ratifying the act of the attorney-in-fact in executing the bond in the first instance. The section provides in part, "...... The court may, upon motion, increase the amount of bail required; may require new bail, if for any reason the *539 old bail has become insufficient, ...... or may permit the substitution of bail for that already given, ......" We are of the opinion that the court does not have discretion, under the phrase "substitution of bail for that already given," to substitute a valid bond for an invalid one. We believe this phrase was intended to cover a case where the bond, valid when given has for some reason become insufficient or doubtful, in which case the court may, and in fact should, permit substitution of a new and valid bond for the original.
Plaintiff corporation was under a duty to file its bond and it failed to discharge that duty when it entered a bond not bearing its corporate seal and not executed by an agent properly authorized.
The order is reversed and the writ quashed.