case that where the agent has failed to bind his principal, he has personally implicated himself, and, on the other hand, where he has bound his principal, he has not bound himself.

There is also a distinction taken in this respect between public and private agents, the latter being often made responsible, where the former would be exempted. As to the personal liability of agents by reason of their irregular execution of deeds &c., vide the following cases: Bacon v. Dubarry, 1 Salk. 70; White v. Cuyler, 6 T. R. 177; Appleton v. Binks, 5 East, 148; Macbeath v. Haldimand, 1 T. R. 172; Unwin v. Wolseley, 1 T. R. 674; Myrtle v. Beaver, 1 East, 135; Rice v. Chute, 1 East, 579; Tippets v. Walker, 4 Mass. Rep. 595; Thacher v. Dinsmore, 5 Mass. Rep. 299; Forster v Fuller, 6 Mass. Rep. 58; Brown v. Austin, 1 Mass. Rep. 208; Freeman v. Otis, 9 Mass. Rep. 272; Hodgson v. Dexter, 1 Cranch, 363; Jones v. Le Tombe, 3 Dallas, 384; Sheffield v. Watson, 3 Caines Rep. 69; Durall v. Craig, 2 Wheaton, 45; Brown v. Morris, 2 Taunt. 374; 2 Atk. 623; 2 Marsh. Rep. 457; 7 Taunt. 159; and Paley on Agency, 296, 298. The whole of the foregoing cases belong more particularly to the case where the inquiry was as to the agent's personal liability; but, as that liability, in most of the cases, could have arisen from no other cause than the agent's neglect to comply with the rule under consideration, they will be found to shed light on, and to strengthen the rule.

So also no argument in favor of the validity of this irregular mode of executing deeds by attorneys, can be deduced from that class of cases in which one partner has bound his companion by deed, though the former only executed the deed. When these cases are attentively examined it will be found that they do not rest on the idea of an implied agency; or that the signing partner is ever competent by his sole act, to bind his copartner by deed. But these cases have been allowed merely on the ground that the one who did not sign or seal, adopted and made his own, the seal and signature to the deed, by being present at, and approving of the execution, in the mode in which it was done, and under the assumed right of the acting copartner. Thus, in the case of Ball v. Dunsterville 4 T. R. 313; one partner executed a bill of sale for both partners of their joint effects; but in the presence of the other, there being, however, only one seal, and one impression on the wax. The court held that they were both bound. In

this case, as well as all others of the same class, the court has never in one instance, intimated that the rule under consideration was in the least impugned or qualified; nor did the counsel, on either side, even argue these cases, as having any reference to the rule, but simply upon the ground that the presence and approval of the copartner, who did not sign, made the seal and signature by the other his own; and it is also to be additionally remembered, that, perhaps, in most, if not in all, of these cases the partner either signed the name of the firm, or the name of each member of the firm. It might, however, be admitted that if A and B be copartners, and A has a deed prepared, granting in the name of both, or of A only, partnership property, and this deed be signed by A only, in the presence and with the approbation of B, that the deed would be valid to bind B. And it might be further admitted that the deed would be valid though B's name appeared in no part of the deed; and though the deed was even silent as to its being partnership property that was about to be conveyed. Be these points as they may, I think it is very clear that this class of cases stands on its own peculiar ground, and in no degree questions the inflexibility of the rule.

It is also to be borne in mind that the rule in question, is applicable only to instruments known to the common law, as deeds of conveyance, bonds, &c. Hence bills of exchange or promissory notes may be signed in the name of an agent only, and yet be valid against the principal. If the authority be general, the fact of agency may be proved by matter aliunde, and need not appear upon the face of the paper; but if such bills or notes be made in virtue of special authority, the agency must appear by the instrument, though it is not necessary for the agent to execute it in the name of the principal. This is far from being an arbitrary and unmeaning distinction. For the rule itself depends much on the nature of grants and conveyances, and the distinction between ministerial acts, and those which actually convey or pass an interest. The fact is that the rule itself originated in times when specialties or deeds were the only means, or nearly so, of creating debts; a bond creates a debt, a simple contract is only evidence of a debt; a bond is a debt; it is debitum in præsenti, solvendum in futuro; but a bill of exchange, a promissory note, or other single contract is not, in se, a debt, but evidence only of a debt. Hence a bond is a species of conveyance of a

personal thing, as a deed or indenture is a conveyance of land, or other thing real. Hence is it that the rule, (as it applies only to sealed instruments of all kinds, because they actually create and pass a right or interest) never did and could not, on principle, apply to a simple contract which does not per se create or pass a right, but merely evidences its existence. It is however, quite immaterial to inquire into reasons, since the law is settled, that the rule applies only to specialties. Any number of cases, therefore, or bills, notes, or other simple contracts, in which the agent signed his own name only, and which were held obligatory on the principal, cannot be entitled to the least weight or consideration against the rule, because, as the rule never claimed to embrace them, no inference of any relaxation of the rule can possibly be drawn from them. I shall, however, state the leading cases on simple contracts, in order to embrace in this opinion every possible class of cases which any person might be inclined to refer to. Cator v. Hoste, 2 Bos. and Pull. 557; Long v. Colburn, 11 Mass. Rep. 97; Mayhew v. Prince, 11 Mass. Rep. 54; Stackpole v. Wells, 11 Mass. Rep. 27; Emerson v. The Providence Hat Man. Com., 12 Mass. Rep. 237; Arfridson v. Ladd, 12 Mass. Rep. 173; Rathbone v. Budlong, 15 John. R. 1; Mechanics' Bank v. The Bank of Columbia, 5 Wheat. 326; 1 Dane's Abr. page 201, §7; page 203, § 15, 16; page 428, 32.

The foregoing cases establish,

1. That bills, notes, and other simple contracts need not be executed by an agent, in the name of his principal:

2. That the person executing the simple contract must have had an authority so to do, otherwise he will be personally bound:

3. That generally the agency must appear on the face of the contract, and then the principal only is bound, though the agent did sign his own name only:

4. That if he exceeds his authority, he may be personally liable, though his character of agent be disclosed in the contract.

I shall now refer to a few American cases in which the rule has been as strictly enforced here as in England. Nor am I aware of a single case in which the rule has even been doubted in this country.

The doctrine was examined in the case of Fowler v. Shearer, 7 Mass. Rep. 14. A promissory note was given for the purchase money of an estate conveyed to the defend

ant, in virtue of a power of attorney given by a husband to his wife, who executed a deed under this power to the defendant, but she executed it in her own name. It was argued that this deed of conveyance was ipso facto void; because, first, it could not operate on her own estate, she being covert; and secondly, not on her husband's interest, because the power had not been legally executed. Chief Justice Parsons (among the most distinguished of American jurists) held, that if an attorney has authority to convey lands, he must do it in the name of the principal. The conveyance must be the act of the principal, and not of the attorney, otherwise the conveyance is void. And it is not enough for the attorney in the form of the conveyance, to declare that he does it as attorney; for, he being in the place of the principal, it must be the act and deed of the principal, done and executed in his name.'

So likewise, in the case of Bogart v. De Bussey, 6 John. Rep. 94. The court said, 'the agreement upon which the suit is brought, was made by the plaintiffs as attorneys for A B, and they executed it as attorneys. If the covenant is to be considered as made with A B the principal, the suit ought to have been brought in his name. If, however, it is to be considered by and with the attorneys in their own names, as attorneys, then the whole agreement is void, and no action can be maintained upon it. Frontin v. Small, 2 Lord Ray. 1418; Com. Dig. Tit. Attorney, C. 14. So that, quacunque via data, judgment must be for the defendant.' So again, in the case of Elwell v. Shaw, 16 Mass. Rep. 42, it was held that a deed executed by an attorney, must, in order to be valid, be made in the name of the principal, and that the deed was equally void, though it recited the letter of attorney from the principal, and declared that the said attorney in virtue thereof conveyed the lands to the grantee, and set the name and seal of the principal, though in fact the deed was signed in the attorney's name.

The last American cases to which I shall refer, occurred in Maryland, viz. Smith's Lessee v. Perry, 1 Harris & M'Henry's Rep. 706, and Harper v. Hampton, 1 Harr. & John. 622. The first of these cases was decided in the General Court in 1783, on a point saved, and was argued, on both sides, by the most eminent counsel, and decided by judges of distinguished learning. The report of the case is very meagre, neither reasons nor authorities being assigned. The deed in question, recited the power of attorney to sell, and it was executed in

the agent's name, but adding 'attorney in fact of John Smith.' The point was, whether this deed and power constituted a sufficient conveyance in law to vest the title of the lands in the defendant; and the court gave judgment for the plaintiff.

The other case, Harper v. Hampton was argued in the Court of Appeals in 1805. The most eminent legal talents of the state were engaged in the cause. Johnson, (late Chancellor,) Pinkney, (late Attorney-General U. S.,) and Mason, distinguished for learning in the realty, argued for the defendant against the attorney's deed. The late Robert Goodloe Harper, Philip Barton Key, and Luther Martin, all lawyers of great celebrity, contended in favor of the deed.

Jacob Rumph gave the usual power of attorney to R. G. Harper, authorizing him to sell and convey certain lands. The deed to the purchaser recited this power, and also the survey made by Rumph. It stated throughout the deed that the conveyance was made in virtue of the said power, but it was signed, Robert Goodloe Harper, Attorney for Jacob Rumph. 3

Seal.

The deed by Young and Blake is so similar to R. G. Harper's deed, in every respect, that whatever, on this point, could be urged as to the one deed, would be equally applicable to the other, except that Harper had an express authority to convey, whereas Young and Blake had none whatever.

The plaintiff's counsel, in affirmance of the deed, resorted to various arguments which I have anticipated, and, perhaps, satisfactorily answered, except the case of leases made in Maryland by the agents of the lord proprietor, which they contended had always been held valid, though never executed in the name of their principal. To this I reply, 1. That the direct question as to the validity of those deeds was never made or decided, and no inference in favor of their validity can be made from the mere fact of their never having been disputed, for it may be readily imagined that there were but few in the province inclined to call them in question. 2. The lord proprietor did not grant lands as an ordinary individual. His agents were not attorneys specially authorized for the purpose of leasing or conveying manors; they had large and very discretionary powers. 3. The universality of this irregularity in the lord proprietor's grants and leases was such, as would have rendered an unfavorable decision of little avail, as they would have been in every instance followed by new assurances. And lastly, an extreme case of this public kind can afford no fair ground of