#### Varnum, *Fuller & Co. vs. Thomas Evans.*

1. Where an attorney, acting under a power of attorney, from the attorney of the principals, recites in the deed of release, the power from the principals to the attorney, or person from whom he derives his powers, and in the body of the said release says “by virtue of the authority vested in me as aforesaid, and in the name and in behalf of the said Varnum, Fuller & Co.” (the principals,) “ and others, I accept the provisions in the said assignment, made in this behalf, and do further release and discharge, &c. Signed IT. Winslow, [n. s.] Attorney for C. P. M. J. Winslow, [seal] Agent for V. F. & Co.” It was *held,*that this execution was in compliance with the rule which requires a deed executed by an attorney to be sealed and delivered in the name of his principal.

2. An acceptance of a provision under a deed of assignment, and a release of the principal, with the assent of the security, is equivalent to a discharge by operation of law, and the rights of all concerned are the same under one as well as the other.

*Before*Butler, J., *at Marion, Spring*Term, 1841.

This was a special verdict,, and from it the facts and matters in issue between the parties may be fully understood. The verdict is as follows :

We find that the defendant and R. B. Wiggins *&*Co., ■ executed the following note:

“ New York, 24th July, 1832.

$1477 11-100. Twelve months afterdate we jointly and severally promise to pay to the order of Varnum, Fuller *&*Co. at their counting room, No. 165 Pearl street, fourteen hundred and seventy-seven dollars 11-100, for value received.

R. B. WIGGINS *&*Co.

THOS. EVANS.”

That on 14th March, 1833, R. B. Wiggins made an assignment to Thomas Evans, the defendant, and Edward B. Wheeler, providing for the payment of the plaintiff’s debt, (among others,) in the first class of the debts enumerated— with a condition therein expressed, that all creditors who did not, within a specified time, execute a releáse to the said Wiggins, of all claims, except upon the property assigned, should be debarred from all benefit to be derived from such assignment.

On the first of April, 1833, the plaintiff, among others, executed a power of attorney to C. P. Mallett, impowering him, or such agent as he might think proper to appoint, to *410act in their behalf, in making a settlement with the assignees of R. B. Wiggins *&*Co., and to execute such paper or papers as might be necessary to entitle them to the benefit of the assignment made by said Wiggins on the 14th of March aforesaid.

On the 8th day of April, the said Mallett executed a power of attorney to John Winslow, reciting the above and appointing said Winslow his attorney in the transacting of said business — ratifying and confirming all and several his acts in the premises, as fully and effectually as if done by himself in his own proper person — (signed) C. P. Mallett [seal.]

On the 9th day of April, 1833, the said Winslow came to Marion Court House and executed an instrument reciting the above-stated powers of attorney and assignment, and declaring that “I, the said Winslow, attorney and agent as aforesaid, in consideration of the provision made by said Wiggins, in his said deed of assignment, for the said Varnum, Fuller *&*Co., (and others,) and in consideration that they shall severally receive such amount of money from the above named assignees, or either of them, in proportion to their respective interests in said assignment, as they shall be thereunto severally entitled in pursuance of the terms thereof, do hereby, by virtue of the authority vested in me, as aforesaid, in the name and in behalf of the said Varnum, Fuller *&*Co. (and others) accept the provisions in the said assignment, made in tlris behalf, and do further release and discharge the said Ricks B. Wiggins, and R. B. Wiggins *&*Co., from all further or other liability arising under and by reason of the following claims, being the amount respectively due the said parties, by the said R. B. Wiggins *&*Co ” (then among others enumerating the note sued on, and an account due the plaintiffs for $504 89.)

(Signed)

JOHN WINSLOW, [Seal] Attorney for C. P. Mallett.

JOHN WINSLOW, [Seal!] Agent for Varnum, Fuller *&*Co.

We further find that Evans was not guilty of fraud in representing to Winslow, that the assigned effects were sufficient to pay the claim of the plaintiffs, but that Evans *411assented to the release thus given, and that it was made at his instance and request, and for his benefit — Evans was the only assignee who acted — Wheeler refused to act.

If the court should be of opinion, from the facts thus found, that the plaintiffs are entitled to recover, then we find for them, the sum of two thousand three hundred and seventy-five dollars thirty-five cents — if not, we find for the defendant.

Signed

JAMES LANE, Foreman.”

Upon the facts found in the foregoing special verdict, his Honor, the presiding Judge, pronounced the following judgment, in favor of the plaintiff, for the reasons annexed.'

1. Because the release having been taken by the Surety himself, it was for his benefit, and not in derogation of his right.

2. The release should have been executed by the agent, Winslow, in the name of his principals, to have made it affectual against them. The form in which the paper is executed, would subject Winslow to its obligations, while it imposes none on his principals. It purports to convey ■or release an interest, and as such, it should have been executed in the name of the plaintiff *by their agent.*Let the postea be.delivered to the plaintiff.

The defendant appealed for a new trial, on the following grounds:

1. The presiding Judge erred in directing the postea to be delivered to the plaintiff, because, although the release may have been taken for the benefit of the defendant, there being no fraud, the effect was to' discharge him from liability on the note, as an instrument.

2. Because the release was executed in legal form.

3. Because, if it was not valid as a formal release, it was still valid and effectual, as a discharge by an authorized agent, on a sufficient consideration.

Dargan, for the motion,

on 2nd ground, cited *Fash vs. Pass,*2 Hill, 294; *Taylor vs.*MLean, 1 McM.; *Welsh vs.*Parish, 1 Hill Rep. 161; *Comb’s*case, 9 Coke; 1 Salk. *41295; 5 Com. Law Rep. 223; *Burrell vs. Jones,*5 M. *&*S. 345; *Ledbetter vs. Farrow,*1 L. N. P. 356; 33 Com. L. 34; 10 Wend. 275; 6 Con. Rep. 464; 8 Pick. Rep.; *JV. E.J. Co. vs. Be Wolf, 2*Pick. 222; . 11 Mass. Rep.'26; 1 Camp. 184 ; 2 Wheat. Rep. 56; 4 McC. 323; 1 B. *&*Cress. 150; 2 B *&*Ad. 328; 6 Ves. Jr. 305.

McIver, contra,

contended that the execution by parol and by deed are different. This was an execution by deed. The instrument set up is void. Cited 1 Bail. 517; *Prior vs. Colter,*2 Kent Com. 492-493. Cited, also, *Fash vs. Boss,*2 Hill, and *Taylor vs. McLean,*1 McM.; *the State Bank vs. Kerr,*1 McM, 141.

*Curia, per*

O’Neall, J.

In this case I first propose to inquire whether the execution of the release was such as binds the plaintiffs.

The attorney recites the powers from the principals to Mallet and from Mallet to himself, and in the body of the release says, *“*by virtue of the authority vested in me as aforesaid, *in the name and in behalf of the said Varnum, Fuller & Co.,*(and others) I accept the provisions in the said assignment made in this behalf, and do *further release and discharge, &c.”*The attorney executed this release as follows: John Winslow, [l. s.}"attorney for C. P. Mallet— John Winslow, (seal) agent for Varnum, Fuller *&*Co. Was this execution a compliance with the rule which requires a deed executed by an attorney to be sealed and delivered in the name of his principal! I am satisfied it is. It purports to be by the authority, (the power recited,) and in the name and in the behalf of the principals. This is as ample an execution as if the deed had begun, “We, Varnum, Fuller, & Co.” and had been executed “ Varnum, Fuller & Co., by John Winslow, their.attorney, [l. s.]” In thus stating an execution by Varnum, Fuller *&*Co., I am well aware that a firm cannot be bound by deed, unless each partner seal and deliver it, or assent to the execution by one for all. But as no such objection was urged against the execution, we take it for granted that the execution was, in this respect, binding, and the notice of it has been merely to prevent a misconstruction of our opinion. In *Pryor vs. Coalter,*1 Bail, 517, and *Welsh vs. Parish,*1 Hill, 155, *413there was nothing on the face of the deeds which shewed that the act done was “ in the name and in behalf” of the principal. Each purported to be the act of A. B. attorney of C. D.; and hence the deeds could not be the deeds of the principals. The difference between those cases and this mark a plain and obvious distinction. *This,*although signed and sealed by the attorney, is declared to be by the authority and in the name and in the behalf of the principals, which was the same as if the attorney had said, by the authority of the principals and in their names and stead, I sign, seal and deliver this deed. About the validity of such an execution, no one could doubt, and this being equivalent is equally good and binding. In *Welsh vs.*Parish, 1 Hill, 162, Judge Johnson recognizes *Wilkes vs.*Bock, 8 E. 142, as good law. For he says “ *that case*turned altogether upon the manner of signing the bond, and it was certainly very immaterial whether the name of the agent or principal was placed first, *provided the undertaking or obligation was in the name of the*principal.” Referring to *Wilkes vs. Bock,*it fully sustains the position that the deed is the deed of the principal, if it purports to be in his name and behalf, no matter how it is signed by the attorney. In that case Wilkes and Brown had been co-partners. Bock was. indebted to them by account. Brown was absent, but Wilkes was his attorney; there was some dispute about the payment of the account, and it was agreed to submit it to arbitration, and the parties entered into bonds, to abide by the award. Wilkes, for himself, and as attor-. ney for Brown, executed their bond in this form, Matthias; Wilkes, [l. s.] For James Browne; Matthias Wilkes, [l.s.] The question was, whether Brown was bound by the award made up according to the.submission. It was held that he was, inasmuch as the execution, from the bond itself, appeared to be done for him, and in his name, and by his authority. That decision touches this case. For it is no more a strict execution than is the case before us. From the release in this case, as well as the bond in that, the execution appears to be done for the plaintiffs, and in their name and by their authority; and hence, on the authority of that case, is entitled to be supported. Nor is Combe’s case, 9 Rep. 86, (which has given rise to all this nicely *414about the execution of deeds by attorneys,) at all opposed to this conclusion. That was the case of a surrender of a copyhold by an entry on the rolls of the court. It was made by attorneys, but not in the name of their principal; inasmuch, however, as in the entry the attornies set out their power, and referring to it, declared the entry to be in pursuance of the authority thereby given to them, it was held to bind the principal. This, it will be noted, is a direct authority in support of the release in question. For it declares an act done in pursuance of a recited power made by the principal to be his act, and hence, as the same circumstance is found in this case, it supports the view that the release here is the deed of the plaintiffs. But I admit that the entry there was an act, without sealing or delivery, and that in that point of view, this case is distinguished from the point there decided. The court, however, in enforcing the judgment, stated the principle which gave 'rise to the rule governing this case. It was there said, “ if attornies have power, by writing, to make leases by indenture, for years, «fee., they cannot make indentures in their own names, *but in the name of him who gives them*warrant This is, I concede, the law governing all deeds made by attornies, and to it their deeds must conform; but this is done whenever, as in this case, the deed declares it to be made in pursuance of the authority and in the name and behalf of the principal. From this review and application of the law, I think the release is good; and this brings up the question whether it discharges the defendant. I do not think it does. In the first place, it does not seem to me that it is a discharge of Ricks B. Wiggins *&*Co. For it sets out that in consideration of the provision made by Ricks B. Wiggins, in his said deed of assignment, for the said Varnum, Fuller *&*Co., and others, and in consideration *that they shall severally receive such amount of money from, the above named assignees, as they shall be thereunto severally entitled*in pursuance of the terms thereof, the provisions in the assignment are accepted; and Ricks B. Wiggins & Co., are released and discharged. The special verdict does not find that the plaintiffs ever received any thing under the assignment; and if they did not, I apprehend the release is without consideration, and is not bind*415ing on the plaintiffs even, as against Wiggins. But be that as it may, it is clear, I think, in the second place, that Evans cannot pretend that he is discharged. The assignment was to him, and to protect him in his securityship; to enable him to avail himself of the benefits of the assignment, the plaintiffs’s release was necessary to be executed. He procured it to be done, and the jury have found not only that he assented to it, but that it was for his benefit. Under such circumstances, it cannot be a release of him. For the release of one joint or joint and several debtor only operates as a release to the other, when made without his knowledge or assent, on the ground either that by the terms of the contract it cannot be enforced against one, but must be against both, or if by the terms of the contract it may be enforced against one, then that it deprives him of a remedy against his co-debtor. This case is under the last branch of the proposition stated; for the note of Wiggins *&*Co. and the defendant is joint and several. There is nothing therefore in the form of the contract to prevent a recovery against the defendant as a several promissor. The release deprived him of no remedy. For he himself was the assignee, and to make his remedy perfect, it was necessary to be executed. When therefore it was executed by his procurement, with his assent, and for his benefit, it cannot relieve him from the note to the plaintiffs. It is very analogous to a discharge, under the bankrupt or insolvent debtors law; either would discharge the principal; but yet the security would be bound. An acceptance of a provision under a deed of assignment, and a release of the principal, with the assent of the security, must be equivalent to a discharge by operation of law, and the rights of all concerned would be the same, under one as well as the other.

Note. — The Reporter is not in possession of the different exhibits containing the evidence and all the facts that were before the court; but he flatters himself that enough is furnished of the case to make it intelligible. He has given all that he received.

The motion is dismissed.

Richardson, Earle and Butler, XI., concurred.