June, 1829.

#### George Delius & G. W. Glostein v. Gordon Cawthorn.

From Warren.

An agent acting unde” a parol power cannot bind bis principal by deed.

But a bond, executed by an agent thus constituted, is not the bond of the agent, ami the fact that he exceeded his authority, does not subject him to an action as the obligor. The only remedy against him is by a special action on the case.

A bond is the act of the person whose name and seal are affixed to it, and cannot be rendered the deed of another by the averment of a collateral fact. Per Huvnnnsov, Chief-Justice. But he who makes a parol contract in the name of another, without sufficient authority, and receives the consideration, may be declared against as a contracting party, because the promise attaches to the consideration.

Debt upon bond, and on the trial, before his honor Judge Strange, on the last circuit, on the plea of non est factum, the case was, that the Defendant being' the Clerk of one Robert R. Johnson, in the town of Warren-ton, was sent by him to Petersburg, in Virginia, to purchase goods. The Defendant, as agent of Johnson, purchased goods from the Plaintiffs upon the credit of Johnson, and executed to them a bond, of which the following is a copy, and on which this action is brought:

“ Six months after date I promise to pay G. D. and G. W. G. or “ order, $78 25 in North-Carolina money, for value received, as wit- “ ness my hand and seal this 3d d íy of June, 1826. ”

“ROBERT R JOHNSON, by

“ GORDON CAWTHORN.”

The bond was entirely in the hand-writing of the Defendant, who had no written authority under seal or otherwise, from Johnson to execute it; neither did he at the time, say or pretend .he had such authority. The goods purchased by the Defendant, and for which the above bond was given, came to the possession of Johnson.

The Jury, under the directions of his Honor, returned a verdict for tne Plaintiff, and the Defendant appealed.

*91 Seawell, for the Defendant.

This is an action of debt on a bond which is set forth in the declaration, whereby the Defendant is charged with having made and executed his writing obligatory, sealed with his seal, by which lie bound himself to pay to the Plaintiffs the sum of $>78 25. The Defendant pleads, that the said writing and obligation is not his act and deed. Upon the trial, a certain writing, purporting to be signed and sealed by Robert M. Johnson, by which he obliges himself to pay the money therein mentioned to the Plaintiffs, is offered to be proven as the bond mentioned in the declaration.

But it is alleged, that it appears from the manner in which the bond is executed, iri the name of Johnson, that* Cawthorn undertook to execute it as his agent; and not having authority sufficient in law to execute a bond, though he bad to make a note, or other simple contract on the part, and in the name of Johnson, that inasmuch as Johnson does notVbecome bound by the instrument, Cawthorn does. Why i Was Cawthorn guilty of any fraud? Was he obtaining without authority the goods for which the bond was given ? Did they not come to the use of Johnson, and could not an action be maintained against Mm for them ? Then if an action could be brought against him for the goods, can one still be brought against Cawthorn, and he also be made to pay the bond; fojr if they are to be regarded as separate contracts, by different persons, the payment of one cannot be set up in bar of the other. But a short answer to this argument can be given. Did the parties, Plaintiff and Defendant, understand and intend that Cawthorn was to be bound personally, at the time of executing the paper ? This is only to be determined by the import and language of the paper itself. It declares,, that Johnson is to be bound — that he is to pay ; the Plaintiff was content to take it upon that footing, and with that understanding, on the part of Cawthorn.

*92. For this Court to convert what the parties intended for the bond of Robert Johnson, into the bond of Gov- - don Gawthorn, without his consent, would be, not to erij>orce a contract, but to make one. The whole difficulty lias arisen from ignorance of law in both parties, in respect to the difference between a deed and simple contract : this was common to both, and one should not be } injured by it, more than the other.

Badger, contra.

The rule is universal, that where one seals and delivers a deed as an agent, he must show7 that he had power to bind his principal, or it becomes the deed of the agent. It is an inflexible rule that a deed delivered in this way must be the deed of some one $ if it be not that of the principal, in law it is that of the agent. The obligation is not dependant upon the intent of the agent in doing the act, but results from the very nature of the act itself. (Mauri v. Hijfernan, 13 John. Hep. 58— White v. Skinner, Bo. 307 — Dusenberry v. Ellis, 3 John; Cases, 70 — Sumner v. Williams, 8 Mass. Hep. 162 — Do. 2,07 — 1 Fonb. 295 — Johnson v. Ogilby, 3 P. Wins. 277.)

The only question which can arise, is as to the form of the action. The cases referred to, particularly that of Dusenberry v. Ellis, prove that the remedy is by an action on the instrument, and the only case cited to the contrary is that of Long v. Colvert, ('ll Mass. Rep. 97.)

If the instrument in its body appears to be the deed of A B, but is executed by C D, it may be a question whether it is the deed of C D, and if he has no pow er to bind A B, it is the deed of no one $ but in the present case, the words “ I promise to pay, &c.” are as well referable to the name of the Defendant as to that of Johnson. In the English cases there is no intimation that an action on the case is the proper remedy, and the idea is inconsistent with the well settled rule of law, that where a servant sells a horse by the directions of his master, with instructions not to warrant his soundness, if he dis*93obey the instructions, it Is the sale of the master, but the warranty of the servant, which of course will support an . J 11 action, (1 Comyn on Contracts, 242.)

The case of Sumner v. Williams, is a direct authority to prove that the intent with which a deed is sealed, is iiot to be estimated in ascertaining its legal effect. There [the deed was made by the Defendants “ as administrators” of an insolvent estate, and the action was brought upon the covenants of title, and quiet enjoyment. The sole question was, whether the Defendants were liable personally, or whether the Plaintiffs were not restricted in their remedy to the estate of the insolvent.

Judge Parker says, “ that it must be inferred that the ^grantors (the Defendants) intended to guard against any recurrence to themselves or their estates, in case of a failure of title j and I think the inference equally clear, that the grantees themselves did not rest upon a supposed personal responsibility of the grantors for their security ; but both parties believed that whatever virtue there was in the covenants, the estate of the insolvent, and not those of the Defendants, was to be affected by them.”— Notwithstanding this, the Defendants were held to be responsible.

In the case of White v. Skinner, Judge Platt says, “ the covenant is not to be regarded as a nullity. The Plaintiff relied on this specialty security, if it does not bind the principal for whom the Defendant represented himself as agent, then it is personally obligatory upon the Defendant alone.” So here the Plaintiffs stipulated for a specialty security; the only question is, who does the bond bind ? The answer is, either the Defendant or Johnson; but clearly it does not bind the latter, and of consequence it does the former.

Hillman in reply.

All the authorities relied on by the other side, are cases in which the deeds or obligations purport upon the face of them to he the deeds of the agent, and *940f the principal — where the covenant or promise is ma$jc jjy †|1£! agenf jn h¡g 0Wn name, and not in that of the principal — and where, upon the face of the instru-nienfs mUst have the legal effect of being the deed of the former, or the deed of no one.

In this case, however, the deed does not purport to bei the deed of the agent Cawthorn, but of the principal* Johnson. There is no difference in the rules by which the intention of the parties is to be ascertained, whether the instrument submitted to the Court For their judgment, be under seal or not. To do justice between the parties, by enforcing a performance of their agreement, according to the sense in which they mutually understood it at the time, is the great object of Courts of Justice. It is essential to consider the subject matter of the agreement in affixing a meaning to the terms used therein, and all latitude of construction must submit to this restriction, namely, that the words and language of the instrument bear the sense intended to be put upon them. (Chitty on. Contracts, 19, 20.)

In this case, the subject matter of the agreement was the goods purchased of the Plaintiffs, by the Defendant Cawthorn, as the agent of Johnson, in his name and for bis use, and the instrument is executed in the name of Johnson, with a seal opposite his name, by Cawthorn, the agent, which is the proper way for an agent or attorney to sign, when he does not intend to bind himself. (Wilks and another v. Black, 2 East 142.- — 1 Evans’s Po-thier, 30.) Then it must have been mutually understood by the parties, at the time, that this was the bond of Johnson and not of Caxothorn. If that be the legal effect of the instrument, and the same is plain and intelli-ble on the face of it, any extrinsic evidence, going to vary the instrument, as having for its object the liability of any other person instead of Johnson, is inadmissible.— f Btackpole v. Arnold, 1£ Mass. Mep. 27.)

*95But this instrument cannot-be supported as the bond of Cawthorn in pleading. It has been contended on the other side, that the intention of the parties has nothing to do with tiie liability of the defendant, and the cases cited are relied on to establish that fact. The delivery being of the essence of a deed, it becomes, I think, important to enquire into the fact of intention. Now in this case, was the deed ever intended to be delivered as the deed of Cawthorn ? It certainly was not. It was delivered as the deed of Johnson, and if it be riot good as his deed, then there has been no delivery, and of course, the deed, as such, is void. The deeds in the cases cited were delivered as the deeds of the agents, and purported to be the deeds of no one else — This deed purports to be the deed of the principal and of no one else, and there is no evidence or circumstances to show that it was ever delivered as Cawthorn’s — but directly the contrary is apparent upon the face of the deed itself. The declaration must set forth the contract, either in the Words in which it is made, or according to its legal effect. (1 ChittyonPlead.299,302,351.') Ifthe contract produced in evidence vary from that stated in the pleadings, it is fatal. (1 Chitiy, 304 — Bristowe v. Wright, Bovglas, 666 — Pitt v. Green, 9 East. 188.) The form of the declaration is, that Cawthorn “ by his certain writingobligatory, sealed with his seal and dated, &c. acknowledged himself to be held and firmly hound, &c.” Upon profert made, or oyer liad, the declaration turns out to be the bond of Johnson, not of Cawthorn.

If the Defendant be liable at all, it is upon the ground of fraud, according to the authority of Jeteen v. Ogilhy. (3 P. Wms. 277.) In this case there is no pretence of fraud, but even if there were, the action should be in tort, and not in contract. In the case of Busenherry v. EUis, the instrument was not under seal, and the doctrine of it has been expressly overruled by a later decision in Massachusetts, (Long v. Colburn, 11 Mass. Rep. 97,) *96which has been expressly sanctioned by Chancellor Kent, who was one of the Court in the case of Dusenberry v. " Ellis. (2 Kent’s Coni. 493.) We have, therefore, the unan¡mous opinion of the Supreme Court of Massachusetts, which has been justly complimented for its ability and learning by the Counsel on the other side, that an action will not lie upon the instrument: and in confirmation of it, the authority of Chancellor Kent, one of the Judges who decided the case in New-York, before mentioned, when examining the whole doctrine of agency upon principle, not in a particular case, hastily argued and hastily decided, but in a work compiled with care, at his own leisure, upon a review of all the authorities, intended for the general benefit of the profession and posterity. But if the Court should be of opinion that the case of Dusenberry v. Ellis is authority, it should be confined to a case precisely like that — to a note only, and not to the case of a deed, where the nature of the instrument is notice of the authority which it is necessary that the agent should have, and where the rule of Caveat Emptor, in the purchase of real estates, is applicable. it appears to me, therefore, that whether we regard the intention of the parties — the mode of pleading— or the nature of the instrument — the Defendant is not liable — at all events, not in this form of action.

Toomer, Judge.

This is an action of debt, and the Plaintiffs declare upon the instrument, as the writing obligatory of the Defendant, who pleads non est factum, and issue is thereon joined. The contract must be set forth in the declaration in the terms of it, or according to its legal effect. (1 Chitt. Pl. 299.) It is usual to follow the words of written contracts. (Ib. 302.)

Every contract should be so construed as to give effect to the intention of the contracting parties, if such intent can be ascertained from the face of the instrument^ and be not repugnant to any principle of law. Agreements should be enforced according to the sense in which *97they were mutually understood, when they were made. This rule for the exposition of contracts tends to advance the ends of justice, and to subserve the purpose of the parties. The nature of the transaction, the language of the specialty, the mode of its signature and sealing, all conclusively show, that it was clearly understood by the parties to this suit, that the Defendant was not to be personally bound by the deed. The Defendant did not intend to bind himself, nor did the Plaintiffs believe that he was bound. It is said, the enquiry is not as to the intent with which the act was done ; but what was the nature of that act, and what are its legal effect and consequences ? Let it be observed, that the act frequently receives its impress and character from the intention of the parties at the time of its execution. It is true, if there be any stubborn principle of law, which makes this instrument the deed of tiie Defendant, contrary to the intent of the parties, the hardship of the case cannot prevent its application.

This instrument is technically and formally drawn to bind Johnson, the principal, and on its face he appears to be bound. The specialty, on its face, gives no cause of action against the Defendant. The intention to bind the principal is obvious; and the manner of executing the instrument is in strict accordance with the technical form prescribed, both by law and usage, to give effect to such intent. (Wilks et al. v. Back, 2 East. 142.) But Johnson, the principal, was not hound by the specialty, because the authority of the agent was not created by deed, and power to bind the principal by an instrument under deed, can only be delegated by deed. (Coke on Lit. 52, a. 1—Shamburger v. Kennedy, Ante 1 vol. 1—7 Term Rep. 209.) “The attorney, who executes a power by git ¡tig a deed, must do it in the name of his principal and the attorney is not bound, even though he had no authority to execute the deed, when it appears on the face of it to be the deed of the principal-.” (2 Kent's Com. 493.) *98Here the specialty was executed in the name of the principal, and on the face of the instrument that principal was bound. These positions lead to the conclusion, that {¡ie instrument having been executed in the name of Johnson, without proper authority, is void.

But the Plaintiffs were not without remedy against that person with whom they intended to contract. The Defendant had been constituted by Johnson, his agent to purchase goods, in the execution of that agency, he bought goods of the Plaintiff, in the name of Johnson, and for his benefit, and they subsequently came to his use.— The Plaintiffs could have recovered the value of the goods, in an action of assumpsit against Johnson. The Defendant had authority to make the purchase for his priucipal, and to bind him by the contract; and the subsequent acts of Johnson would have confirmed and ratified that contract, had the precedent authority been defective.' There was nothing, I apprehend, either in the making of the instrument, or in the receiving of it by the Plaintiffs, which could extinguish the contract, or defeat their right of recovery in an action of assumpsit.

Had the. Defendant been guilty of any fraud in making the contract — had he to obtain the goods, corruptly concealed the truth, or knowingly represented a falsehood, there is no doubt he would have been personally liable to the Plaintiffs in an action on the case. (2 Kent's Com. 494—Long v. Colburn, 11 Mass. Rep. 97—16 Do, 461.) But the statement of the case imputes no moral guilt to the Defendant. Tim execution of the instrument is as-crihable to .mistaken notions of iiis power. But it is to be inferred from some of the cases, that the assuming to act without auinoi it}, is a fraud in the eye of the law.— If the mistake be mutual — if it be common to the parties to this ««it, each possessing a full knowledge of all the fans ami circumstances connected with tne transaction, then the Plaintiffs, consenting thereto, and being actors ami participators therein, cannot complain, volenti non fit *99 injuria. But if the act be exclusively the effect of Defendant’s mistake, and the Plaintiffs, being ignorant of the circumstances, have sustained damage thereby, it is believed a special action on the case can be maintained against him for assuming to act without power. (2 Kent's Com. 494—11 Mass. Rep. 97—16 Do. 461 .)v;i But on this point, it is not necessary to express a judicial opinion.

The specialty was signed, sealed ami delivered in.the name of Johnson, for his act and deed, by the Defendant, as his agent. It was so accepted by the Plaintiffs, and on its face it appears to be the deed of Johnson. The present action can only be sustained, by making the instrument the deed of the Defendant. Is there any principle of law, which can so eutirely defeat the intentions of tiie parties, and pervert the truth of the transaction, as to change the nature and character of the instrument, and make it the deed of the Defendant ? The Plaintiffs say, the instrument is not a nullity; it. is the deed of some person ; and if not the principal’s, it must be the agent’s. That the Defendant had no authority to execute a deed In the name of Johnson, and by exceeding his power, or by assuming to act when he bad no power, he is not only personally liable to make compensation to the Plaintiffs, but the instrument, becomes bis deed, or he is bound in the same way, and responsible in the same form of action, as the principal would have been, had the deed been duly executed with full power, and was obligatory on him. It is admitted that the Defendant had no authority to bind Johnson by deed ; and that the Defendant for thus assuming to act, had it been done without the full knowledge and consent of the Plaintiffs, would be personally liable to compensate them for the loss sustained, But it is denied that the instrument becomes the deed of the Defendant, because it is not 'he deed of Johnson ; and the action cannot be maintained on the pleadings, unless the instrument is the deed of the Defendant.

*100It js believed, the elementary writers, in speaking of the nersonal liahilitv of the agent, because he has no res- • . ponsible principal, do not mean to convey the idea that j.|,e instrument becomes the deed of the agent, when it had been signed, sealed and delivered in the name of the principal, who was bound on its face, merely because the agent had exceeded his authority, or had acted without authority. But they intend simply to declare his personal responsibility, which may be enforced by bill in Equity on t he ground of fraud, or by special action on the case. (2 Kent’s Com. 494.) Formerly the remedy was by bill in Equity ; latterly by action on the case. This appears to be the ground of proceeding in Horsley v. Bell et al, (Ambler, 769, 772)—Meriel v. Wymondsel, (Hard. 205)—Cullen v. The Duke of Queensbury, (1 Bro. Ch. Rep. 101)—Johnson v. Ogilby, et al. (3 P. Wms. 277, 1 Fonbl. 295.)

There are many decisions, both English and American, in which the agent has been held personally bound, on the ground, tiiat the language of the contract created a personal undertaking — imported a personal responsibility ; where tiie agent bound himself personally, although in the contract be gave himself the description or character of an agent, (Appleton v. Binks, 5 East. 148—Tippets v. Walker, 4 Mass. Rep. 595—White v. Skinner, 13 Johns. Rep. 307.) But it is not pretended that this principle applies to the case now before the Court.

The two cases of Dusenberry v. Ellis and White v. Skinner, which have been referred to by the Plaintiff’s Counsel, to support the position, that the Defendant, having acted without authority, is personally bound by the specialty, in the same way as if he had executed it in his own name, without any allusion to his principal, are entitled to much respect; and 1 differ from them ■with much hesitation. Dusenberry v. Ellis, (3 Johns. Cases, 70.) is a case of parol contract; but otherwise saot to be distinguished from the case how under adjiuli-*101cation. It is there said, that if the agent sign a note in the name of the principal, but without authority, the agent shall be bound in the same manner as the principal would have been, had it been duly made with full power,* and the name of the principal shall he rejected as surplusage. Was there no circumstance to make me question the correctness of this decision, i should refuse it my. assent with great reluctance, and would most unwillingly ascribe to it a departure from principle. But this case was decided in 1802 ; and in 1814, the case of Long v. Colburn (11 Mass. Rep. 97,) was decided by the Supreme Court of Massachusetts, on a note signed in this manner: “pro William Gill, J. S. Colburn;” and Judge Parker, in giving the opinion of the Court, says, “the Defendant is not the promisee “the Plaintiff’s remedy is against Gill, if Colburn liad authority to make the promise for him ; and if he had not, a special action on the case might make Colburn answerable and a non-suit was entered. Judge Parker did not think that Col-burn could be made liable as a promiser on the note, had he acted without power in making it; but he must be made responsible in a special action on the case. Tuis decision occurred twelve years after that of Dusenberry v. Ellis, and is, at least, of equal weight and authority. I cannot suppose the New-York adjudication was unknown to Judge Parker. I must therefore look upon it as virtually overruled by him.

White v. Skinner (13 Johns. 307,) was an action of covenant, brought on a specialty, signed and sealed in this manner : “ For the Directors, Reuben Skinner, L. S.’? There was a private association or firm, known by the styleof “ the Granville Cotton Manufacturing Company of which SMnner was President and Director. On the face of this instrument, no person was hound but Skinner, the Defendant. He did not sign the name of cacli Director, Rnd annex a seal to each name. If lie had full power to bind them, the mode ef executing the instrument did not *102make it obligatory on them. The contract purported on. jjg face (0 t|ie. Defendant. No other person was boim(l by its terms. The Defendant personally undertook that others should perform, arid the judgment was correctly rendered against him. And if you view the Defendant as a partner, the result must be the same. The name of the firm was not, signed ; and if signed, copartners have no common seal; the name and seal of each should be affixed by some person specially author-ised to do the acts. For being a partner gives no authority to execute a deed for the other members of the firm. The case is unlike the one now under the consideration of this Court. Bat Judge Platt, in delivering the opinion of the Court, extra-judicially observes, “ if a person execute a bond as attorney for another, without authority, such person, so assuming to act, is personally bound, as though he had covenanted in his own name.” I have found no English adjudication to support this dictum of Judge Platt. He refers to 7 Term. Rep. 207, and 5 East, 148. They appear to me to furnish no basis for such a doctrine. However respectable the source from which it flows, Í must question its correctness ; and the more especially, as the decision was made in 1816, and Chancellor Kent published in 1827 the second volume of his Commentaries, in which it is said, “ the attorney is not hound, even though he had no authority to execute the, deed, when it appears on the face of it to be the deed of the principal 5” « there is a remedy against him by a special action on the case, for assuming to act when he had no power.”

The case of White v. Skinner, so far as it bears on the one now7 before the Court, contains only an obiter dictum of Judge Platt. I have found no English decision supporting it; and it seems, that eleven years after the opinion was expressed, it was not recognized as authority by Chancellor Kent, for the purpose for which it has been cited.

*103The '.'iprerae Court of Mm ..chases at October Terra9 1820, in Ballou v. Talbot, (16 Mass. Rep. 461,) expressly decided, that the Defendant having signed a promissory, note, and added to his signature the words i( agent for David Ferry.” did not make the Defendant liable as on his own promise; and if he acted without authority from Perry, that circumstance could not make it the promise of Defendant; but lie would be responsible in a special action tin the rase. The decision in Long v. Colburn is re-examined and confirmed. Chief-Justice Parker delivers the opinion of the Court, and supports it with able reasoning. Let it be also remarked, that this adjudication was made more than four years subsequently to the decision of Judge Platt, in White v. Skinner, which had been decided at August Term, 1816.

Under these impressions, and with this view of the cases on the subject, I cannot consent to render judgment against the Defendant.

Hall, Judge.

There is no dispute in tfiis case about the sealing and delivery of the bond, but only in regard to signing it. He who signed his name to it, as his deed, adopted the seal.

If a name appears to be signed to a deed adopting the seal, it must be the deed of such person, or the deed of no one. It cannot be the deed of one whose name is not signed to it.

When the principal^ name appears to a deed or other instrument, written by his agent, purporting to adopt the seal, that instrument must be the deed of the principal, or the deed of no one. If the agent was authorized to sign it, it is the deed of the principal; if he was not so authorized, it is not his deed. It cannot be the deed of the agent, because it does not purport to be so. On the contrary it purports not to be his deed, and he does not adopt the seal. The terms in width it professes to have been executed, declare it to be the deed of the *104principal, and not that of the agent. Therefore to make it the deed of the agent, is against the evidence furnished instrument itseif.

it bas been insisted, that the want of authority in tho agent to sigu the principal’s name, makes it the deed of the agent.

I have always understood, that the question, whose a particular deed is, (if any body’s) must be collected from an inspection of the paper itself. But if the rule contended for be correct, the question who is the obligor or grantor, depends not upon the instrument itself, but upon matter of fact, unconnected with the real execution of the deed. The evidence admissible under the plea of non est factum, should be confined to the point, whether things apparent on the face of the deed, so far as relates to tho execution of it, were true and genuine as they appeared to be. If they were not in any essential point, it W'as not the deed of the person it purpox*ted to be; and as it was not his deed, it could be the deed of no other person, because it did not purport to be so.

It is difficult for me to understand, how' a deed which has but one seal, shall be considered to be the deed of one person or another, as facts shall turn out, which are not connected with the two essentials of a deed, signing and sealing, I mean so far as they appear upon its face.

I am aware that there are authorities the other way. It is said to be 1 ight, that an agent who signs for another without authority, should be answerable himself.— As a principle of ethics, I subscribe to this rule; but it appears to me, that he should be answerable in some other action, than in one upon the insmunent which he has signed as agent, in his principal’s name. (Long v. Colburn, 11 Mass. Rep. 97.)

I can raise no objection to the case of White v. Skinner, (13 Johns. Rep. 307.) The Defendant in that case, signed for the directors in his own name, and of course *105¡■e was bound — be undertook for t. m. 1, had signed the name of the directors, and had affixed a seal to each name, and stated that he did so as agent, that case would have resembled thisi

Nor is this case like that of Appleton v. Binks, (5 East. 148.) There the agent signed and sealed the covenant in his own name, and with his own seal.

I think the rule for a new trial should be made absolute.

Henderson, Chief Justice.

The question, whether an instrument, allowing it to be genuine, be a deed, must be determined from its face, by an inspection of what it imports to be, not from evidence dehors the instrument— So whether it be the bond of A, or the bond of B, must be decided in like manner. No change of character can be given to it by extrinsic evidence. If this instrument be genuine, it is the deed of him whose seal it bears, and as seals at present bear no distinguishing mark, it is the seal of him whose it purports to be. If it is not his, it is not the seal of another, for that would be to change its character by evidence of a colateral fact. If therefore it is not the seal of Robert R. Johnson, it is the seal of no one; for it purports to be his seal, and not that of another. If he who affixed the seal of Robert R. Johnson to the paper, had no authority to do so, the person who has been injured by that act, may, or may not have a remedy against the party thus affixing it, according to the circumstances attending the transaction. If he who sealed the bond, falsely and fraudulently alleged that he had a power to do so, I think that he would be responsible for the fraud. But if in fact he pretended to no-» thing more than a bare verbal authority, and this was understood by the Plain tiff's, they have not been defrauded. It was a mere misconception of the powers flowing from a verbal authority, in which misconception they all participated. I cannot assent to the proposition supported *106by some very high modern American authorities, that if this is not the deed of the principal, for want of power agent to seal for him, it is therefore the deed 0f the agent; although I can well assent to the proposition, that in all parol contracts, if the principal be not bound by the agreement, the agent is. Í mean lawful agreements, for when the consideration, which is necessary to support all parol contracts, passes from the party to the agent, if from any cause it cannot be carried to the principal so as to bind him, it must of necessity rest with the agent; and with whomsoever the consideration rests, from him a promise arises. If in truth a person represents himself to be the agent of another, whether under a mistake, or with a design to deceive, and he is not, so that the consideration never gets to the principal to bind him, it then rests with the agent, and he is bound. If in truth he was not the agent, but the principal knowingly receives the consideration, he thereby ratifies the contract, takes the liability upon himself, and discharges the agent. But this is only in cases where the creditor treats with the agent, as agent. For if the agent treats with the creditor without disclosing his character of agent, he is personally bound, whatever he may do with the consideration. But the creditor may if he will, even in such case, treat the contract as one made by fhi; ag-uf, as agent, and follow his consideration to the hands of the principal — to him who receives benefit from it. It is in this way. I understand what is to be found in the English hooks upon this subject — that if the principal be not bound, tbe agent is — that if the agent does not disclose bis character, he is personally bound— that if his power be defect be to bind bis principal, the agent is bound. 1 «ay this with great deference to the decisions of some of our sister states, who have extended the. principle so far, as to make a deed executed by pro-curation, the deed of the agent, if from defect in the power, it be not the deed of the principal. I assent to *107• be prr.j udtion, that if a parol cor I .-.ct mu. . -fjy an agent, be not the contract of the principal, from a defect in the power of the agent, it becomes the contract of the agent for the reasons before given. I have examined every English authority which is referred to in support of the above mentioned cases. I think that they do not support the position for which they are cited.

Per Curiam. — Let the judgment below be reversed, and a new trial granted.