reasoning in favor of the validity of similar deeds when executed by private individuals. In this case of Harper v. Hampton, the court expressed no doubt as to the nullity of the deed executed by Mr. Harper, and in giving their opinion the court refer to the case of Wilks v. Back, 2 East, 142, to which I have previously alluded, as a case which has been singularly misunderstood by some, and was appealed to by them as sanctioning the position that a deed, by an agent, is valid if the agency appear in the body of the deed, and the character be added to the agent's signature; a doctrine which the court certainly did not admit in this case of Harper v. Hampton. I shall presently have occasion to analyze the case of Wilks v. Back, and doubt not that it will be made sufficiently manifest that this case has been frequently stated unfairly by elementary writers, and not less often wrested by counsel, arguendo, from its true meaning, to suit their views, and to countenance a distinction which the learned judges, who decided it, never intended, and which no subsequent adjudication has in any degree sanctioned, or could sanction, without virtually abolishing the rule. But, to return to the case of Hampton v. Harper, I have only further to remark that the marginal note to this case has stated the rule with a verbal qualification, which the court's opinion does not warrant. The marginal note says, A deed by an attorney is invalid, unless his authority is strictly pursued. Such a deed should regularly be in the name of the principal.' Page 622. But the court, in page 709, makes use of no such qualifying word. The whole case, as well as the court's opinion, show that the attorney must execute the deed in the name of the principal, and consequently this abstract of the case should not have used the word 'regularly,' as it seems to imply some qualification.

I shall now conclude this opinion (already extended to an unusual and inconvenient length) by a critical examination of the case of Wilks v. Back, 2 East, 142, to which I have more than once adverted.

It is a singular fact, in regard to this case, that an erroneous view of its extent and meaning has partially prevailed, and been traditionally preserved, though the courts have never so understood it, and the case is, in itself, free from obscurity, when carefully looked at. We sometimes meet, in the elementary writers, a reference to this case, as establishing the position that although the attorney must execute his power in

the name of his principal, no particular form of words is required to be used, so as it appears to be the act of the principal. Hence signing a deed M. W. for J. B. is as good as J. B. by his attorney, M. W. Wilks v. Back, 2 East, 142.'

The above is an extract from the note of the American editor of Bac. Abr. vol. 1, page 319, 320. This extract may serve as an example of the erroneous mode of citing this case, adopted by some writers.. I deny that the case cited maintains any such position, for this would be to reverse all preceding cases, and to make that case quarrel even with itself. It never has been understood by the courts to have introduced either a new rule, or the least qualification of the old one. The case explicitly requires the agent to sign the principal's name, and if that be signed, it merely decides that if the attorney also signs, it is immaterial which name precedes the other. But this is a very different thing from the position laid down in the above note, viz. that if M. W. be the agent of J. B. he may execute the deed, either M. W. for J. B. or J. B. by his attorney, M. W. The former, I contend, is void; the latter good, since every authority, from that in Moore's Reports to the present day, prove that the agent's signature is not helped by adding his character. So also every English and American case since Wilks v. Back, prove that no such meaning should be attached to that case. That Chief Justice Parsons did not so understand the case in East is manifest from the case of Fowler v. Shearer, 7 Mass. Rep. 14, in which he expressly repudiates the idea that any thing short of signing the name of the principal will answer. But let us examine the case of Wilks v. Back itself, and we shall find that nothing more was decided than that a deed is executed in the name of the principal when it is thus executed,

Mathias Wilks, [Seal.]

For James Browne, Mathias Wilks, [Seal.]

The marginal note to the case says 'One who executes a deed for another, under a power of attorney, must execute it in the name of his principal; but, if that be done, it matters not in what form of words such execution is denoted by the signature of the names; as if opposite the seal be written for J. B. [the principal] M. W. [the attorney] (L. S.)' It is to be remarked that even this marginal note is not quite correct, as it has omitted to state that there were two seals.

The facts of the case were that Wilks and Brown, the

plaintiffs, were partners. Back, the defendant, stood indebted to them, and they entered into an agreement to submit their accounts to arbitration. For this purpose Brown constituted his partner Wilks his attorney to settle all accounts, and to execute any deed whatever, which might prove necessary for the settlement of all their accounts. It was in virtue of this power that Wilks executed the arbitration bond which gave rise to the question of the due execution of a deed by an attorney. It was sealed and delivered by Wilks, for himself and his partner Brown. Here, then, we find two seals, and also that Brown's name appears on the deed as well as Wilks's. If we attend to the argument of the counsel, and the opinions of the judges in this case, we shall find that neither contemplated the abolition, or even a qualification of the rule.

Garrow and Parnther argued in favor of the deed. They admitted the rule to its fullest extent, and contended that it was fully satisfied, as Wilks signed, sealed, and delivered in the name of Brown as well as of himself. That the signing his own name twice was immaterial, since he also signed the name of Brown, the principal; and that if there had been but one seal, it would have been sufficient.

Erskine and Comyn contra argued against the deed, and pressed the settled cases, which they said were not satisfied by this mode of execution, as the agent, though he signed the name of the principal, placed before it the word 'for,' whereas he ought to have signed it 'James Browne, by his Attorney, Mathias Wilks, [Seal.]' But the court were decided in the opinion that there had been a full compliance with the rule.

Lawrence, Justice, remarked (among other things) that • Wilks signs his own name alone opposite to one seal, to denote the sealing and delivery on his own account, and then, opposite the other seal, he denotes that the sealing and delivery were for James Browne. There is no particular form of words required to be used, provided the act be done in the name of the principal.'

Here it is manifest the judge had no doubt that this deed was executed in the name of the principal, whereas the note in Bacon's Abridgment seems to think that this case justifies the position that the simple signature M. W. for J. B. is suffi

cient.

Le Blanc, Justice, said, 'Wilks first signed in his own name for himself, and then, to denote that the act was also

done in the name of Browne, he signed it again for James Browne. I cannot see what difference it can make as to the order in which the names stand.'

Thus far the case is certainly quite clear of the least doubt, and advances no such doctrine as is to be found in the note complained of, and in some other elementary writers, and arguments of counsel interested to impugn the rule.

But we have yet to cite the opinion of the third judge, Grose, which I admit advances the doctrine stated in the note, and which I have been endeavoring to show is not the decision of the court in the case of Wilks v. Back. Grose stated the position in words; but it is quite clear that it was not his intention so to do. It was a careless expression, the full force of which did not occur to him. I infer this, first, From the fact that the decision of the court establishes a contrary doctrine from the mere obitur dictum of Mr. Justice Grose. Secondly, The marginal note clearly shows that no such doctrine was so understood by the reporter. Thirdly, Mr. Justice Grose himself says the bond must be executed by Browne as well as Wilks, and therefore he must have meant that under all the facts and circumstances of the case before him, the bond was well executed by Wilks the attorney. He could not have meant that the mere signature, Mathias Wilks, attorney for Jarnes Browne, is equivalent to James Browne by his attorney, Mathias Wilks, because this would be deciding on a case not before the court. All the other judges state the facts with minute care; Grose is obviously less careful, but did not mean to strike out a doctrine different from his brethren, and not called for by the facts of the case. Fourthly, and lastly, I am of this opinion because all subsequent cases contradict Grose's gratis dictum, and take the decision of that case as fully establishing the rule, in all the strictness in which it has been ever maintained; and I may add that the error I have endeavored to point out is by no means universal. The best authors state the point decided in this case from 2 East, as I now represent it. Vide Paley on Agency, 153, 154, and the learned American editor of Comyns's Dig. vol. 1, 781, note.

The truth is that those who have so erroneously stated the case of Wilks v. Back, have repeated the hasty obiter dictum of Mr. Justice Grose, instead of the decision of the court, and one inaccurate writer has copied from another.

Summary.

On the entire case, therefore, which I have perhaps, so tediously considered, I am of opinion the plaintiff in this cause, is entitled to recover,

1st, Because Young and Blake had no power to convey. 2d. Because there was a covenant only, on the part of John Mullins for him to convey.

3d. Because no grant was intended, and if one had been contemplated, it would have been inoperative as a source of title to the defendants, as it would have been the grant of a naked possibility.

4th. That if Young and Blake had power to convey, still they have not so conveyed as to divest the estate from the plaintiff, having failed to execute the deed in the name of John Mullins, which, as attorneys of Mullins, they were legally bound to do.

ART. VI.-HOFFMAN'S LEGAL OUTLINES.

Legal Outlines, being the Substance of a Course of Lectures now delivering in the University of Maryland. By DAVID HOFFMAN. Indocti discant, ament meminisse periti. In three Volumes. Vol. I. Baltimore. Edward J. Coale. 1829. pp. 626.

EVERY author in making a book, and so every speaker in addressing an assembly, supposes his readers or auditors to have made certain acquisitions of knowledge. They are presumed, in the first place, to understand the language used; and this, in the case of a science in regard to which the student's mind is a complete tabula rasa, as in the elements of geometry, for instance, where he is presumed not to know what is a straight line, a point, an angle, or a plane. These are all explained to him in preliminary definitions. The only preparatory stock of knowledge required of him, is, that of the meaning of the small number of words used in the definitions and demonstrations, without being previously defined.

most treatises, public discourses, and private conversations, the reader or hearer is presumed to have a pretty large stock of knowledge, and it is a point of some delicacy of discrimination