#### *Ann Beck vs. W. E. Martin.*

The general rule of law is, drat partners are bound by the acts of each other; and where one of a law partnership obtained the possession of a letter (containing an authority to take care of the interests of the plaintiff,) directed to the other partner, and acted under the instructions contained in the letter, it was held, that the plaintiff was bound by die act of the partner, as much so as if he to whom the letter was directed had received it, and acted upon it.

*Before*Richaldson, J., *at*Gillisonville, *Fall*Term, 1841;

This was an action of trover to recover a negro, (Richard.)

Ann Beck held a mortgage of Richard and several other negroes, from her brother, Josiah Beck. Col. Rice, sheriff of Colleton district, got possession of the mortgage ; and having also junior *fi.fa’s.*against Josiah Beck, sold Richard at public out-cry ; and the defendant, W. E. Martin, became the purchaser.

*261The question made was, whether the sale so made precluded the rights of Ann Beck, under the mortgage, and vested the title to Richard in the purchaser, under the cir-' cumstances attending the sale.

Ann Beck had, through her agent, Williams, enclosed the mortgage in a letter to Albert Rhett, authorizing him to take care of her interests, (fee. Rice, the sheriff, received this letter, took the liberty of opening it, and having so got possession of the mortgage, sold Richard, under it, on sale-day in April, 1840. This happened during Court at Walterborough. But Albert Rhett did not arrive till the day after, and knew not of the agency confided to him by Ann Beck, before his arrival.

In the mean time, his brother and professional partner, Edmund Rhett, had arrived on sale-day, and hearing of the sale intended under the mortgage, got possession of it from Rice, and also of the letter to Albert Rhett, and forbid the sale. Wm. Branch, deputy-sheriff, stated, that after Richard had been bid off, Edmund Rhett directed Rice to tender the bill of sale to the purchaser, and demand the money. This statement was altogether denied by Edmund Rhett. Rice, however, made the bill of sale, and received the purchase money. This summary may perhaps be sufficient, as the grounds of appeal turn chiefly upon the charge to the jury.

The presiding Judge charged the jury, that the rights of Ann Beck could not be affected by the sale so made by Rice; that, as her agent, Albert Rhett did not even know of his agency, till after the sale; Edmund Rhett could not have been his sub-agent, under any implication; that Edmund Rhett being the professional partner of Albert Rhett, did not, of itself, authorize him to act in the place of his absent brother, so as to affect the rights of Ann Beck, even if he had directed the bill of sale to be tendered, (fee., as stated by Branch. The agency was to Albert Rhett alone.

The plaintiff ought, therefore, to recover, and the defendant be left to his own resort to Rice, who had assumed the agency without authority.

The jury found for plaintiff, and the defendant appeals, on the grounds,

*2621. Because his Honor charged that the sheriff was not authorized to sell under the mortgage.

2. Because his Honor charged that an agent cannot appoint a sub-agent.

3. Because, although it was proved that Messrs. E. cfc A. Rhett were partners in business, his Honor charged that Mr. Ed. Rhett could not confirm the sale, because the mortgage had been enclosed in a letter directed to Mr. Albert Rhett.

4. Because his Honor charged that a mortgage sent to a lawyer was not a professional matter, but was private business.

5. Because, if the sheriff proceeded under mistake, it was caused by the plaintiff’s agent, and she is bound.

6. Because a purchaser is not bound to inquire into the regularity of a sale, when he sees a vendor in possession of a legal instrument.

7. Because the verdict was, in other respects, contrary to law and the evidence.

*W F.*Hutson, for the motion, said:

1. A mortgage sent to a lawyer is professional business. The profitsarising from such business is considered a part of the partnership profits ; that it is directed to one partner instead of the firm, does not alter the question. It was proved E. *&*A. Rhett were partners in Walterborough ; that Ed. Rhett confirmed the sale by Rice, and his con-nexion with his brother made him Miss Beck’s agent, and his confirmation was the confirmation of his principal.

2. A party purchasing is not bound to inquire into the regularity of the proceeding, if he sees the vendor in possession of a legal instrument. So of *fi.fa.*1 Bail. 512; why not of a mortgage *'l*

3. A mistake occasioned by a party’s agent is binding on the party ; 10 B. <fe C. 755 ; 2 Bay, 90, 112; 2 M’C. R. 251. If there is any mistake, it was occasioned by Miss Beck’s agent, Mr. Rhett.

4. Miss Beck’s agent stood by, and did not forbid the sale until the negro was bid off. She is bound ; 1 U M’C. 334,

Colcock, contra.

*263Curia, *per*

Evans, J.

It appears from the report of this case, that the presiding Judge charged the jury that “ Edmund Rhett’s being the professional partner of Albert Rhett, did not of itself authorize him to act in the place of his absent brother, so as to affect the rights of Ann Beck, even if he had directed the bill of sale to be tendered, &c., as stated by Branch.” The agency was to Albert Rhett alone. The correctness of this as a legal proposition, is brought in question by the grounds of appeal, and it becomes the duty of this Court to decide it. The business confided by Williams’s letter to Albert Rh'e'tt, was to take care of the plaintiff’s interest' against Beck's creditors. This he could only do by ascertaining what her rights were, according to law, and then decide what course would best protect and secure them. Her rights were in collision with the creditors of Beck; and to decide what these rights were, as well as how they were to be protected and secured, were questions requiring legal knowledge to decide and determine. The business, therefore, committed by the plaintiff to Mr. Albert Rhett, was one which had connection with his professional employment; and if, in the exercise of the authority thus committed to him, he had ordered the sale of the negro, or had received the money afterwards, in confirmation of the sale, there would be but little doubt that the plaintiff would have been bound. Assuming, therefore, (and I think there is no reasonable ground to doubt it,) that the business committed by Williams’s letter to Mr. Albert Rhett, was professional, is not he, and consequently his principal, bound by the act of Mr. E. Rhett, the professional'partner of Albert RhettThe general rule is, that partners are bound by the acts of each other, in all matters within the scope of the partnership business. It is on the principle that the act of one is the act of both; that each agreed, on the formation of the partnership, that the other should act for him in all matters connected with their partnership business. The acts of each are the acts of both, and neither is at liberty to disaffirm what the other does. In this matter, therefore, the act of E. Rhett may be considered as the act of Albert Rhett. If a plaintiff should write a letter of instruction to one of a law copartnership, directing the commence*264ment or prosecution of a suit, and the letter should come into the hands of the partner, who should commence the suit without consulting the one to whom the letter was directed, could the act be disaffirmed by either the principal or the other partner, unless it should appear that the power was specially and exclusively delegated to the one to whom the letter was addressed'? Or if a man in the country should, by letter addressed to one of a firm in the brokerage or commission - business, direct the purchase or sale of some article of property, could not another partner, in the absence of the one to whom the letter was addressed, effect the sale or purchase, so as to bind the principal'? It can hardly be denied the plaintiff would have been bound by the acts of Albert Rhett; and by the very nature of a partnership, the acts ofEdmund are the acts of Albert Rhett, by which he is as much bound as if he had acted himself. If, therefore, Mr. Edmund Rhett did authorize or affrm this sale, it seems to me the plaintiff is bound by it. I do not say he did any such act. I should rather conclude from the testimony he did not; but these are matters which should be passed on by the jury, and as the presiding Judge in his view of the law thought them immaterial, a majority of this Court are of opinion a new trial should be granted, and it is so ordered.

Butler and Wardlaw, Justices, concurred.

Richardson, J.,

dissenting. — The motion for a new trial depends upon this question, was the Judge correct in charging that the rights of Ann Beck could not be affected by the acts ofEdmund Rhett'? It was assumed that Edmund Rhett had not been made her agent by the. letter written to Albert Rhett, although Albert and Edmund Rhett were partners at law. This question is new, and requires consideration. The letter to Albert Rhett was in these words: “On the suggestion of Mr. Beck, I enclose a mortgage of some negroes of his to Miss Beck. My purpose is, to enable you to protect her interests from all Beck’s creditors.” This was the power of attorney. At the time of the sale, Albert Rhett did not even know of such a letter, and of course Edmund Rhett could not have acted with his privity. He must, then, have been a mere volun*265teer, unless he could himself derive the rights of an agent from the letter to Albert Rhett, and bad authority from it to ratify the sale of Richard, which he had forbidden in the first instance.

But there are many objections to such a construction in favor of Edmund Rhett’s agency: ’

1st. The authority was in writing, and confined to Albert Rhett; and he, not even knowing of it, could not have accepted it. It follows that no one could have had the right to assume his agency, or acceptance, whén neither existed.

2dly. It was a special agency under Mr. Williams, the general agent of Ann Beck, and ought to be construed strictly and confined to the special agent named by the general agent. No one else ought to implicate him or his principal.

3d. It was an agency in fact, and not to an attorney at law to do professional business, in its terms to protect her interests from all Beck’s creditors.

This could not give the power to sell or convey away the property. It was to protect and guard it from being sold at all, in order to protect her right and title to the ne-groes, or to interpose her prior claim to all creditors.

It is the same as if to protect her interests in a tract of land, or piece of furniture, which would be neither to sell nor destroy her title, but to protect it. This may be a very strict construction, but the agency had -no more of a professional law character, than if it had been to pay her taxes, or to look to her interest in a consignment of goods, claimed by another person, or to superintend her plantation or negroes.

A lawyer acts often as an agent in fact; and the rule that the principal cannot be bound, unless by his own agent, acting within the authority delegated, must be preserved, else we infract the first principle of the law of principal and agent, and make one man bound by the acts of another, without his own consent.

It is upon this strict view, that I question whether Albert Rhett himself could have ratified the sale made by sheriff Rice, and kept within the special written agency of Williams’s letter. How could such an act her in*266terests ¶ But I feel clear that Edmund Rhett had *no*agency whatever. ' But assume, for a moment, that the power to sell the negro was given, and also, that the professional partner of Albert Rhett, although unknown to Ann Beck, became also her agent, by construction of law — this would he going very far by implication, assuredly.

But, shall we go farther, and say that the two Rhetts were not only her agents, hut her *joint*and *several*agent'? Where can we find necessity or reason for this implication'? If a stranger must be introduced by legal intendment, why go another step, and say such stranger may act without the advice, consent, or knowledge, or even before the acceptance of Albert Rhett, the only agent practically confided in and named by the principal *'l*Should we-not rather say, under any construction, that Edmund Rhett could be no more than united jointly, and not severally, with Albert Rhett, and, therefore, his several or individual acts could not affect the rights of Ann Beck *1*Under any other and further implication, she would be deprived of her rights by law, without her own consent, privity, or any confidence apparent from her letter of attorney to Albert Rhett.

The implication that operates so strongly, should be unavoidable, and from unquestionable premises, in order to force us to such a conclusion, by mere construction.

I need scarcely here do more than refer to the settled doctrine of joint agencies.

Judge Story on Agency, p. 44, sums up the doctrine, as made by adjudged cases, thus: “Where an authority is given to two or more persons to do an act, the act is valid to bind.the principal only when one of them concur in doing it. For the authority is construed strictly, and the power is understood to be joint, and not several,” *&c.*“So,” he continues, “if an authority-is given to two persons jointly to sell the property of the principal, one of them cannot separately execute the authority.” “Indeed, so strictly is the authority construed, that, if it be given to three persons jointly and severally, two cannot properly execute it; but it must be done by one or by all.” “ However, the rule of interpretation is not so- rigid as to overcome the apparent intentions-of the party, if the -.vyo^s .can be -so construed as to reach the case. Thus, if an ap-*267thorify be given A. B., or either of them, a joint or several execution will be valid.”

It is plain, from this exposition, that powers to two or more persons, are strictly and always joint, unless literally or unquestionably several from their intent and necessity. There is very little room for constructive intendments in the law of agencies. But there is a caution in the doctrine in dealing with the rights of the absent, that is most wholesome, and in just accordance with that of the statute against frauds, to suffer no man to be made liable for another’s debt or default, except upon his own written assumption. How *strictly joint,*then, should be the agency of any man who is joined by- implication to the named agent. Look into the facts of the case. Rice takes the letter to Albert Rhett from the post office, assumes the friendly liberty of opening it, and proceeds under the mortgage he found enclosed.' \ The transaction reaches the ears of Edmund Rhett at the moment of the sale'. He promptly forbids the sale, as-Albert Rhett is absent. But, according to the witness Branch, he afterwards told the sheriff to tender the bill of sale and demand the money. The sheriff does so, delivers the negro, and keeps the money for his own security. But, under the doctrine just laid down, I ask, in what one link, in this series of gratuitous acts, is Ann Beck to be held as assenting or implicated'? There can be no reproach to the purchaser whatever. He must stand a suit at law, that he may recover over against Rice. But his right of property depends upon the assent to the sale by Ann Beck, as indicated by her power of attorney, when united with such gratuitous acts of other persons. It' Is in those acts that I can perceive no influence to alter her -right.

She seems as little implicated in the whole transaction, as if her agent, Williams, had never written the letter to Albert Rhett, who (Rhett) repudiated the sale the moment he heard of it, although he uttered no reproach against Rice for opening the letter. And I take occasion here to state, that I never witnessed a trial, notwithstanding its contradictions, in which all parties were more free from personal or any unpleasant allusions.

As a majority of the Court think differently from me, *268my impressions of the power of attorney, however strong, must be mistaken. • But as the point is new and peculiar, I will add a word more, on the authority of decided cases. I can find none finally adjudged, so as to be of express authority. But in that of *Edmondston against Wright,*1 Campbell, p. 88, we may find a decision of Lord Ellenbo-rough, of some importance still.

Wright had negroes in Jamaica. Mr. Lecky, Edmond-ston’s partner, was his attorney on record, who had the management of the negroes; the negroes were shipped to Georgia, by order. But the captain not having a permit, the negroes were forfeited. To release them, Edmondston paid £1200, as a compensation, which he sought to recover against Wright. The question, it will be seen, was, whether the general powers of Lecky could be exercised by his partner, Edmondston. Lord Ellenborough ruled “ that it was a voluntary payment,” and held, that the plaintiff (Edmondston,) could possess no general authority, as partner of Lecky, *whose poioers, as attorney on*record, *were clearly incommunicable;*and, as manager of the gang of negroes, he (E.) was *“functus*officio,” after delivering them on board the ship. Verdict for defendant. Now, then, for the general agent, read Albert Rhett, and for his partner, Edmondston, read Edmund Rhett, and we may say, with the same reason, that Albert’s powers were “clearly incommunicable” to Edmund ; but communicate them, and they are not still joint powers. But the case before us is stronger, because Albert Rhett could not physically or morally have communicated his powers, as he had not accepted, and knew not of their existence, until after the sale, and after the supposed exercise of his agency by Edmund Rhett. But ought not the opposite side to be required to shew the authority for his claim to such an exception in the law of agency *1*And are we not, then, with too little reason, opening a new and wide way for the entrance of imputed agencies'? And should we not do it at least with these qualifications, that it can only follow the acceptance by the named partner'? And then we build joint, and not several agency. If so, the verdict for Ann Beck is right.

And I must be allowed to repeat now, before Albert *269Rhett.personally accepted, and thereby created the agency to the co-partnership, no agency could arise.

Why such an agency belongs to the profession of the law, so as to be translated to Edmund Rhett, by the letter falling into his hands; or how, after it had been translated to him, it became in his hands both a *joint and several*agency, I cannot perceive.

In a word of common sense — how a series of liberties taken, and of trespasses done, by the sheriff, when after-wards interwoven with the hasty interference of Edmund Rhett, on account of the apparent agency of his brother, could divest the plaintiff of her rights, does not strike my understanding. Does not the gratuitous character in the beginning follow the transaction throughout, and keep the whole estranged from the plaintiffs *'l*I would, therefore, support the verdict upon the established strict construction of agencies, and would not the less support it *“in odium*spoliatorisand so let the sheriff,* who began and ended the trespass, respond in damages to the purchaser of the negro.

O’Neall, J., concurred.