Opinion
December Term, 1817.
It is not a good ground of demurrer to a declaration on bond, that the bond is alleged to be executed by the defendant, when, upon oyer, it appears that it is signed in the name of the principal by a third person as attorney in fact. (See Gratz v. Stump, Cooke, 494.)
The only way of questioning the authority of the attorney is by the plea of non est factum.
In error. —
James Lewis, chairman of the board of trustees for Garrick Academy, brought an action of debt against George and Henshaw in the Circuit Court of Franklin county. The declaration is in the usual form, not stating that S. George signed the bond by attorney. The defendant craved oyer of the bond, which is set forth in the record, and it is stated therein that Solomon George, by Phoebe George and W. Henshaw, are bound. c. The condition sets forth, that S. George, by Phoebe George, had rented thirty-six acres of school land, and on certain conditions, by him to be performed, the bond to be void. It is signed thus: Solomon George, seal, by Phoebe George. William Henshaw, seal.
The defendant demurred, and as causes of demurrer stated: First, because, by the plaintiff's own showing, the writing obligatory declared on is not signed or sealed by S. George, or any person legally authorized by him. Secondly, he does not show that Phoebe George was authorized to sign for Solomon. Thirdly, because he does not show she was authorized to rent the land for Solomon. Fourthly, a variance between the writing declared on and that produced. In the former he is charged as liable by his own act. In the latter by the act of Phoebe George, if liable at all. Fifthly, the defendant, Henshaw, is not liable, being joined with parties not bound by the contract. Sixthly, the declaration is informal and unsubstantial. The demurrer was overruled, a writ of inquiry was awarded, and a jury at the next term assessed damages to $200. Judgment was rendered for the debt in the declaration mentioned, to be discharged by the payment of $200, the damages assessed by the jury. The defendant prayed a. writ of error, and assigned for error the same causes as set forth in his demurrer.
A bond upon oyer becomes part of the declaration, 1 Saund. 317; Doug. 476, 477, 3d edition; Carthew. 513; 6 Mod. 27, 237, and then, if it show a good cause of action, it must be denied or avoided. For if the defendant demur, which confesses the declaration, judgment must be for the plaintiff. Upon oyer had, the defendant is apprised fully of the mode of execution intended to be established by proof, and can no longer complain of uncertainty or variance, having before him the very instrument verbatim. It shows an execution by A. B. as attorney for C. D., and enables him to call in question the authority given to the attorney upon non est factum. Then here the demurrer is bad, for upon the whole declaration, including the bond and condition set out upon oyer, it is plain that there is a debt due and unpaid. The declaration then also shows lands rented to George through the agency of Phoebe, which fact will also stand or fall by the plea of non est factum, for the writing states that fact, and if genuine proves it undeniably. And there is no variance; for the former part of the declaration is explained by the latter part containing the bond set out verbatim. At first it is a bond executed by A. B., at last by A. B. by his attorney; reducing to a certainty that which was before doubtful as to the mode of execution. Henshaw, on this view of the case, is joined with parties liable. The contrary supposition is incorrect. Here is a substantial declaration and after a general demurrer, the Court is bound not to regard formalities.
Affirm the judgment of the Circuit Court.