St. John v. Redmond , 9 Port. 428 ( 1839 )

ORMOND, J. — It

is conceded by the counsel for the defendant in error, that the charge of the court may be wrong, but he insists, that as the power of attorney,in virtue of which this bill of exchange'was accepted,-authorised the acceptance of the bill, this court will not reverse, even if the charge was wrong,

The authority conferred by the power of attorney, is! to transact all such business as appertains to, or concerns-the plaintiff in his individual capacity,- or as the surviving partner of St. John & Leavens, and after specifying the particular acts which may be done,- confers a general grant of power, to do all and every act which may be necessary- to execute the power conferred.

There can be no doubt, that an attorney in fact cam not bind his principal beyond the1 power delegated to him, and whether an authority of this description be considered general; as contemplating the execution of a variety of acts, in contradistinction to a special power to-do a particular act, the construction must be the same. In either case, the principal is not bound, unless the act done be within the scope of the power. The only ques-* tion in this case, must be, whether the acceptance of the bill in question, was an act appertaining to the business,- or necessary to the settlement of the firm of St. John & Leavens, or concerned the business of St. John individually, for within these limits, the power is circumscribed. If, as appears to be the proof, the bill was accepted for the accommodation of a third person, it was not author-ised by the power: the charge of the court, therefore, on this point, was Correct.

But in the charge given to the jury, the court erred. The charge is in these words: “ that if St. John had paid any bill of exchange, which had been accepted by said Whitaker for him under said power, he was liable on this.” The power of attorney expressly authorises the execution of any instrument of writing, if such be necessary to carry into effect, the object of the power, and if any such had been made, to accomplish the design of the power, St. John would doubtless have been responsible for their discharge-. But it is inconceivable that the payment by St. John, of a bill drawn or accepted in pursuance to the power of attorney, should subject him to the payment of a bill not drawn in reference to the power, and wholly unauthorised. But although this is the literal meaning of the charge, it was probably given in reference to the evidence of the attorney — that he had accepted bills in the presence of St. John, and with his assent, which were afterwards paid.

An authority to act for another, may be inferred from the conduct of the party, as by paying debts, or recog-nising acts contracted or entered into by such supposed agent. But where no express authority is proved, au-thorising the agent to bind the principal in the manner he is sought to be charged, but such authority is presumed from the previous conduct of the party recognising such acts as binding on him, it will be necessary to show that the instrument was tafeen on the faith of such previous recognition of authority in the agent to bind the principal — (Seé the authorities to this point; in the note to Chitty on Bills, 35.)

If, therefore, we could understand the charge of the court, as applying to the recognition and payment by St. John,- of previous acceptances by Whitaker in his name,- and not within the scope of the letter of attorney; it would not neces'sarily follow, that St. John was liable in this instance, unless the bill was taken on the faith of such previous acceptances by Whitaker having been recognised and paid by St. John.-

The power of attorney offered in evidence; was acknowledged by the plaintiff before a notary public; who certified the acknowledgment thereof under his notarial seal, arid it was permitted to be read in evidence without further proof, which it is insisted was error. But we are df opinion, that the act of eighteen hundred and three, whieh authorises notaries public to receive proof or acknowledgments o'f instruments of this character,- and to certify the fact under their notarial seal, was intended to be such a verification aS will authorise them to be read in evidence without further proof.-

The judgment is therefore reversed, and the cause remanded for further proceedings.