Attorneys are made so by a letter or power of attorney, (a) or they are Attorneys of Record.
It is a general rule, that one acting under a power of attorney cannot execute for his principal a sealed instrument; unless the power of attorney be sealed. (b) And where a statute pre(a) "Few persons are disabled to be private attorneys to deliver seizin; for monks, infants, femes covert, persons attainted, outlawed, excommunicated, villains, aliens, etc, may be attorneys. A feme may be an attorney to deliver seizin to her husband, and the husband to the wife." Co. Lit. 52 a. An infant cannot execute a power coupled with an interest. Hearle v. Greenbank, 3 Atk. 695, 714.
(b) Harrison v. Jackson, 7 T. P. 209; Elliot v. Davis, 2 B. & P. 338; Berkeley v. Hardy, 5 B. & C. 355; Stetson v. Pat-ton, 2 Greenl. 358; Watson v. Sherman, 84 Ill. 263. - If a partner seal for himself and co-partner, in the presence of the co-partner, it is sufficient, though his authority be only by parol. Ball v. Dun-sterville, 4 T. R. "313. - In Brutton v. Burton, 1 Chitt. 707, it was held that a warrant of attorney under seal, executed by one person for himself and partner in the absence of the latter, but with his consent, was a sufficient authority for signing judgment against both; on the ground that a warrant of attorney to confess judgment need not be under seal. - And Hunter v. Parker, 7 M. & W. 322, contains another application of the same equitable and reasonable principle. Compare Bauorgee v. Hovey, 5 Mass. 11, 24. - An instrument to which the agent of a corporation has affixed his seal, may be evidence of the contract in an action of assumpsit against the corporation; for the seal of the agent of a corporation, unlike that of the agent of a natural person, never can be the seal of his principal Randall v. Van Vechten, 19 Johns. 60; Damon v. Inhabitants of Granby, 2 Pick.
345; Bank of Columbia v. Patterson's Admr. 7 Cranch, 299. But see Bank of Middlebury v. Rut. & W. R. R. 30 Vt. 159. - There is a class of Partnership cases, in which it has been held that any express ratification through parol, by a partner of a contract under seal entered into for the firm by his co-partner, makes the instrument the deed of the firm. Darst v. Roth, 4 Wash. C. C. 471; Mackay v. Bloodgood, 9 Johns. 285; Drumright v. Philpot, 16 Ga. 424. - The dicta of several judges have extended this exception to include an original parol authority. See Skinner v. Dayton, 19 Johns. 513, where the decision seems to be too broadly stated in the reporter's note. Some decisions also go to this extent, as Gram v. Seton,
1 Hall, 262. - In Cady V. Shepherd 11 Pick. 400, the cases are reviewed, and among others Brutton v. Barton, 1 Chitt. 707 (see supra), the decision in which is stated nakedly, without the addition of the reason by which the Court of Queen's Bench appear to have been governed, and which goes to reconcile it with the authorities. McDonald & Mills v. Eggleston, Barker & Co., 26 Vt. 156, is also to the same effect. And see Banter v. Parker, 7 M. & W. 331,332,344; Price v. Alexander,
2 Greene (Ia.), 427; Cady v. Shepherd and McDonald & Mills v. Eggleston, Barker
& Co., however, must be taken to decide the law for Massachusetts and Vermont to be, that a partner may bind his co-partner by a contract under seal, made in the name and for the use of the firm, in the course of the partnership business, provided the co-partner assents to the contract previously to its execution, or afterwards ratifies and adopts it; and this assent or signature was made; and when this exhibits the grantor as present, and as authorizing the signature made in that way, then it becomes the signature of the grantor made by another hand than his own.1 But in executing a deed by attorney, the power being delegated to the attorney is with him, and the deed takes effect from his act; and therefore the instrument which gives the power is to be strictly examined and construed.(e) It is however held, that a deed which is inoperative at law from a defective execution by an attorney, is nevertheless valid in equity if the attorney had authority to make the deed. (ee) And also that if the seal of a corporation be affixed to its deed, it will be held valid without signature; and a presumption of authority to affix the seal will arise from the seal itself. (ef) An attorney of record, more commonly called an attorney at law, is one who has been duly admitted by competent authority to practise in the courts. An attorney at law, by his admission as such, acquires rights of which he cannot be deprived at the mere discretion of a court. (/) Such an attorney need not prove his authority to appear for any party in court, and act for him there, unless his authority be denied, and some evidence be offered tending to show that he has no such authority. (g) But * a person who is not an attorney at law, and who offers to appear for another in court, by special authority, must prove such authority if requested. (h) scribes * certain formalities, and makes them requisite for the execution of an instrument, a power to make that instrument must, in general, be itself executed with similar formalities. (c) But as oral or written powers are equally parol, one by oral authority may sign the name of his principal without a seal thereto; and so he may be authorized orally to bind his principal by written contracts, where the Statute of Frauds requires a writing signed by the parties sought to be charged, as the foundation of an action. (d)
The effect of a written authority in limiting the power of an attorney precisely within what is written, may be illustrated by the execution of a deed by one person for another. If a grantor requests a person in his presence to sign for him his (the grantor's) name to a deed, and the person thus requested writes the name of the grantor without writing his own, or adding any words to indicate that the grantor acted by attorney, this would seem to be nevertheless the signature of the grantor, and the deed would be valid. But if the grantor has given to A a power of attorney in the ordinary form, authorizing him to execute a deed for him as his attorney, and this person writes the * name of the grantor in his absence, without saying " by A, his attorney, " or writing his own name; this would not seem to be a sufficient execution of the deed. Because A had no other power to act for the grantor than that which the letter of attorney gave him; and that did not give him any other power than to act as the grantor's attorney; that is, to sign the deed himself, declaring that the grantor signed it by him. In the first case, evidence is admissible to show the authority under which the adoption may be by parol. Parol ratification, though frequently confounded in the cases with an original parol authority, stands on quite a different footing and may be defended by reasons which do not apply to the other. It is delivery that completes the deed, and a subsequent parol assent, or contemporaneous parol assent, may amount to delivery, though a previous assent, by the nature of things, as well as by common law, never can. The deed must exist before it can be delivered; and it may be delivered at any time after it once does exist in a complete form. See Byers v. McClanahan, 6 G. & J. 250; Parke, B., Hibblewhite v. McMorine, 6 M. & W. 215, citing Hudson v. Revett, 5 Bing. 368; Blood v. Goodrich, 12 Wend. 525, 9 Wend 68; Bragg v. Fessenden, 11 Ill. 544. And, besides, on the doctrine of estoppel, a principal, by admitting that to be his deed which was executed by his agent, might be held to have disabled himself to say that the agent was not duly authorized. As yet, however, the law must certainly be taken to be that even a parol ratification does not make an instrument under seal, executed by an agent who had not an authority under seal, the deed of the principal. Where, however, a partner makes a mortgage of personal property in the name of the firm and seals it, the seal being unnecessary, the mortgage binds the firm. Milton v. Mosher, 7 Met. 244; see also ante, p. * 52, and notes, and post, p. * 140.