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his hands.

The plaintiff, Michael Bowman, after he arrived at full age,
brought this suit against the representatives of Henry Ilerr, his late
guardian, and claimed to recover upon a declaration for money had
and received for his use.

Upon a trial of the cause, the plaintiff offered evidence of the
receipt of money by the defendant's testator, as the guardian of
the plaintiff, to which the defendant objected, on the ground that
the plaintiff could not support his action, without showing that pre-
viously to the institution of it, the guardian or his representatives
had settled a guardianship-account in the Orphans' Court. This
objection having been sustained by the court, the plaintiff took a
nonsuit, which he afterwards moved the court to take off, and which
being refused, he entered this appeal.

In this court the cause was argued by

Elder and Hopkins^ for plaintiff's appellant.
Kline and Wcidman, for appellees.

The opinion of the court was delivered by

HoiiKKS, J. At the common law, a guardian is liable to an action
of account-render, but there is no instance of an action for money
had and received having been sustained against him, before settle-
merit of his account. The remedy by account-render, is but seldom
resorted to, but the practice is for the ward to file a bill in chancery,
calling the guardian to account. The Equity courts take jurisdic-
tion on the ground of their general superintendence of all infants,
and because the guardian is a trustee ; and it is the peculiar duty



May 1830.] OF PENNSYLVANIA. 283

[Bowman v. Ilerrs Ex'rs.]

of chancery to insure the faithful discharge of a trust. This course
has many advantages, as the guardian may be examined on oath,
and is compellable to produce books and papers, and other written
documents, that may lead to a thorough investigation of the case,
arid a just decision of the controversy : Co. Lit. 80 ; 1 131. Com.
463 ; 13ac. Ab., tit. Guardian and Ward. The same results may
be obtained in the action of account-render, although in a mode
more troublesome and expensive. But this cannot be done in
assurnpsit, which may be the reason that no such action has ever
been attempted. As early as the 27th March 17i3, all authority
in relation to guardian arid ward, was committed to the Orphans'
Court, with an appeal, as the law now stands, to the Circuit Court,
and afterwards to the Supreme Court. They were vested with the
power of appointing guardians, and it is made the especial duty of
the court to see that the trust is faithfully discharged, and for this
purpose they are clothed with authority at any time to exact secu-
rity from the guardian, may discharge him on his own applica-
tion, or may dismiss him for malfeasance, or any other just cause,
and compel him by attachment or sequestration to pay over the
balance in his hands, and surrender all muniments of title in his
possession.

In the llth section of the act, it is directed that when the minor
has been fully paid, satisfaction shall be entered in the Orphans'
Court. When bonds have been taken in pursuance of the Act of
the 30th March 1821, the condition of the bond is to render a just
and true account in the Orphans' Court, and to deliver up the pro-
perty of the minor, agreeably to the decree or order of the court.
The third section of the act requires the guardian to settle once in
every three years, in the same court, and at such other times as
may be required by the court. These various acts evidently show
that the legislature intended to devise a system complete in itself,
by the erection of a tribunal with all the power necessary to afford
adequate relief. AVhich view of the case, taken in connection with
the act, which prescribes that when a remedy is provided, a duty
enjoined, or anything is directed to be done by an Act of Assembly,
the directions of the act shall be strictly pursued, induced the
opinion that the Orphans' Court alone had the power to compel
the settlement of a guardian's account. In Denison r. Cornwell,
17 S. & R. 378, it was decided that the Orphans' Court was the
proper tribunal to settle accounts between guardian and ward. For
this purpose, they are clothed with the authority of a court of
equity. They may examine the guardian on oath, to charge or
discharge him, may compel the production of hooks or other docu-
ments, and, in general, may exercise every authority neeessurv to
enforce a faithful performance of the trust. The accounts of
guardians consist of a variety of items, some very trifling in amount,
and if the investigation must be conducted on the principles of the



284 SUPREME COURT [Lancaster

[Bowman r. Heir's EXTS.]

common law, injustice of the most glaring kind may frequently be
the result, for unless the guardian be prepared in case of a disputed
account with the proof of every voucher, his charge before a com-
mon-law court will be disallowed. And to make this the duty of a
guardian, in the course of a trial, which is frequently terminated in
a single day, would be such an intolerable hardship as to prevent
persons from accepting a trust which cannot be attended with profit,
but must necessarily result in trouble, and eventual loss. The
Orphans' Court may, on the contrary, in the exercise of a reason-
able discretion, allow time to procure proof of expenditures, or may
supply the want of a regular voucher (which ought to be done with
great caution), by the oath of the guardian himself. And this
should be permitted when, from the nature of things, no regular
vouchers can be attained, as for travelling expenses, going to, and
returning from school, and others of a similar character. The
office of guardian is one of peculiar trust and confidence ; it is,
therefore, of importance that we should adopt no rule which may
prevent men of the first integrity and character from accepting the
trust.

It is said that Denison v. Cornwell is contrary to the practice.
Of this practice, so confidently relied on, no one member of the
court is aware, and if so general as to furnish a rule for decision, it
is singular that not a trace of it should exist in the books. The
case of Denison v. Cornwell has alone been produced, and which
establishes a rule directly the reverse. Whether in any case a
minor would be concluded by an account settled in his minority, it
is not necessary to decide. It is, however, plain he would not be
prevented from impeaching an account settled in the Orphans'
Court, in pursuance of the third section of the Act of 18:21. In
directing a settlement once in every three years, the legislature
intended it as a measure of precaution, an additional security to the
infant. By the settlement, the court and the friends of the infant
have an opportunity of knowing the situation of the estate : if there
is any reason to apprehend injury to the rights of the minor, mea-
sures may be taken to guard his interests, either by dismissing the
guardian or compelling him to give additional security for the per-
formance of his duty. Such a settlement would not conclude the
infant, and it may be doubtful whether it would be even prima facie
evidence in favor of the guardian. The Orphans' Court would
have the power to compel a re-settlement of the account, after the
infant attained his age. Such a- settlement alone would be conclu-
sive upon both guardian and ward.

Doubts have been expressed whether the Orphans' Courts have
power to enforce their decrees. It has been said that resort must
be had for that purpo.se to the common-law courts. After settle-
ment, an action of assumpsit will lie to enforce payment of the
balance ; but it is by no means conceded that it is the only, although



May 1830.] OF PENNSYLVANIA. 285

[Bowman v. ilerr's Ez'rs.]

it is the usual remedy. By the 8th section of the Act of the 27th
March 1713, the justices may send their attachment for contempt,
and may force obedience to their warrants, sentences and orders
concerning any matter or thing cognisable in the same courts, by
imprisonment of the body, a sequestration of lands or goods, as fully
as any court of equity may or can do. As early then, as the first
organization of the court, full and plenary authority has been given
them, by attachment or sequestration, to enforce compliance with
their order or decrees.

By the death of Henry Ilerr, the guardianship ended, and if
there was a balance in his hands, the minor became a creditor of
the estate, and this the administrator may be compelled to settle
and pay over. Whatever the deceased has received in his indivi-
dual or fiduciary character, his representatives may be compelled to
settle, either by attachment or sequestration, as in the case of the
guardian himself.

Judgment affirmed.

Referred to, 3 II. 246 ; 10 Barr. 529 ; 9 II. 341 ; 1 C. 215.

Commented on, 7 W. 67, 68; 6 Phila. 509.

Affirmed, by Wells's Appeal, 9 Barr 103.

Followed, 1 W. 235 ; 7 W. & S. 30, 31 ; 12 Smith 440.



Hart against Withers et al.



IN ERROR.



One partner cannot hind his co-partner by deed, although it be given in
a transaction in the course of the business of the firm, and the benefit of the
contract be received by the firm.

In such case where an award had been made against the defendants, and
by agreement they were let into a defence on the merits, without beinji in any
degree prejudiced by the award, in their defence, they are not precluded by the
agreement from putting in the plea of non est^iirtuni, and availing themselves
the of fact that the instrument declared on was executed but by one of the
firm only.

But if such agreement had that effect, it would be waived by taking issue
on the plea of non ettt faction, instead of moving to have it struck out.

N\ hen suit is brought against several partners upon a sealed in.-trument,
executed by one for all. the plaintiff* cannot recover against the partner who
actually executed the instrument alone.

ERIIOH to the District Court for the city and county of Lan-
caster.

In that court it was an action of covenant, brought by the plain-
tiff, who was also plaintiff in error, against the defendants, upon
the following agreement :



286 SUPREME COURT [Lancaster

[Hart r. Withers.]

"Be it remembered that on the 13th day of January 1816, 1 have
purchased of Benjamin Hart, forty acres, or as much more as he
may choose to let me have, of woodland on the place said Hart
bought of Joseph Miller, in Colerain township, at the rate of $-4
per acre. The cutting -to begin at the corner near John Caughey's
field, and from thence along the road to the lower end of the mead-
ow on said place, and to cut back in regular proportions or dis-
tances from said road ; and I do hereby agree to give to said Hart,
as soon as the quanity is surveyed, three notes for the amount, pay-
able at either of the banks in Lancaster county, in equal propor-
tions ; the first note payable on the first day of July next, the second
on the first day of October thereafter, and the third and last pay-
ment on the first day of January following. It is further agreed
that I am to give said Hart two thousand good and sufficient chest-
nut rails out of said wood-cutting, for which I am to have a credit
of $30 on the amount of the wood. The wood to be all cut before
the first day of May 1817, and the wood to be coaled in the same
season. In witness whereof, I have hereunto set my hand and seal
the day and year first above written.

JOHN WITHERS & Co.
Witnesses,

WILLIAM MURRAY

JOSEPH MILLER."

The plaintiff entered a rule of reference, under which arbitrators
were appointed, who, on the 10th November 1818, made an award
in favor of the plaintiff for 11.70 with costs. On the 22d March
is 20, the attorneys of the parties agreed "that the award of arbi-
trators in this cause should stand as a security for the sum, if any,
which shall hereafter be found to be due on trial; and that the de-
fendants are to be let into a defence upon the merits, without being
in any degree prejudiced by the award in the defence."

The pleas of the defendants, upon which the cause was put to
issue, were non cut fart urn, and performance with leave, &c.

On the trial, the plaintiff, after proof that the article of agree-
ment on which suit was brought, was executed by John Withers,
but not in the presence of the other partners, offered in evidence in
connection with that agreement, "the agreement entered in the
cause by the attorneys to try the cause upon the merits, and to
show that at the time of entering into the article, John Withers,
Michael Withers and George Withers, were iron-masters in company,
that they acted and transacted business for each other, by one ex-
ecuting deeds in the name of one for the use of all the company.
That the whole proceeds of the timber were taken to the company
works, and there used for the joint interest of the company, with
the full approbation of all the defendants."



May 1830.] OF PENNSYLVANIA. 287

[Hart v. Withers.]

This evidence being objected to, was rejected by the court, and
a bill of exceptions sealed.

The plaintiff then offered this evidence against John "Withers
(the party who executed the article) alone ; this was also objected
to, rejected by the court, and another bill of exception thereupon
sealed.

These bills of exception were severally assigned for errors.

Jenkins, for the plaintiff in error, contended that the evidence
was competent to charge the defendants upon the contract declared
upon by the plaintiff'. It was incumbent on the plaintiff to prove
that the defendants were partners, that the contract related to the
partnership business, and that the deed declared on was the deed
of all the partners. The evidence offered went to establish all
these points. As a general rule it is conceded one partner cannot
bind his co-partners by deed, but the partners may agree to be
bound in that way, and then the deed of one would be binding on
all.

1. What agreement will confer this power?

2. What is the usual proof of such agreement ?

It is not necessary that such agreement should be in writing, or
under seal, it may be by parol : Watson on Part. 103. As to the
evidence of assent necessarv to constitute such agreement, it has

v

been held, that if they are present when the partner executes the
deed, the co-partners will be bound ; and this although silent when
it is done. Their assent is in that case inferred. The evidence of
assent may be either express, or inferential. It will be inferred
from the acts of the parties at the time, or their subsequent appro-
bation ; as where one partner for his private debts binds the firm,
and subsequently the other partners assent to it, they are bound,
and this too in a transaction not of the partnership : Watson on
Part. 109. The evidence offered went to establish this assent by
proof, that the contract was beneficial to the partnership, that the
fruit of it had been enjoyed by the firm, and that their usual course
of dealing warranted this form of binding the firm. If the evidence
did establish the assent of all the partners then they were all bound.
This was for the jury to determine. One partner cannot bind the
firm in a collateral guarantee, but the assent of the other partners
to such transaction will bind them ; and it is competent to show this
by proof, that the partners usually gave such guarantee : Chit, on
Con. 74. If these partners wished not to be bound by this deed,
they should have disclaimed it: Elliott v. Davis, 2 Bos. \ Pul. .'>:>S.
Silence is evidence of assent in many cases : 2 Starkie's Ev. -'1 st .
If one sell the land of another in his presence, and he is silent, he
cannot afterwards assert his title. To permit him to do so would
be a fraud on the purchaser. And in our case, if in point of fact,



288 SUPREME COURT [Lancaster

[Hart v. Withers.]

to bind each other by deed, was the mode of dealing of these part-
ners, it would be to permit a gross fraud not to receive evidence of
it to bind them. A deed executed by one partner for all, may be-
come binding by subsequent acts of ratification : Skinner v. Day-
ton ct al., 1 ( J Johns. II. 513. This case also shows that authority
to bind partners by deed, may be by parol. But the evidence
offered should have been received against John Withers, who exe-
cuted the article. Where a judgment-bond was given by one partner
in the name of the firm, a judgment entered on it, although not
binding on the partner who did not execute it, is on him who did ;
and the court will permit the name of the former to be stricken out,
and the judgment to stand against the latter : Gerard v. Basse, 1
Dall. 119; 1 Black. 1133; Green v. Beals, 2 Caines 255; 4 Esp.
220. The agreement upon which the defendant was let into a
defence, was an agreement to try on the merits ; and on this
ground the evidence should have been received. It never was
intended under that agreement that the defendants should be per-
mitted to avail themselves of a defence purely technical, which
this is.

Buchanan, contra, contended that no position was better estab-
lished than that one partner cannot bind another by deed : Wats,
on Part. 160. The receipt of the consideration by the partners will
not make it their deed, although it may be in a partnership trans-
action : Harrison v. Jackson et al., 7 Term. R. 207. This case is
no way distinguishable from that before the court. It was a part-
nership transaction, on a full and valuable consideration received by
the partners, and one partner executed the deed for all.

In all commercial transactions one partner is considered the
authorized agent of the co-partners, and they are in contemplation
of law virtually present at, and sanctioning the proceedings of each
other; but this holds only as to simple contracts: Taylor v. Cor-
yell, 12 S. & It. 243. Authority to one partner to bind others by
deed, must be created by deed, no subsequent parol acknowledg-
ment will do : 2 Caines 255 : Chit. Con. 78. The case in Wats,
on Part. 103, is where the partner executed the deed in the pre-
sence of his co-partner, with his express assent and as the deed of
both ; there both are considered as having executed it, the seal
being adopted by the partner, who stood by, when it was put to
the paper. But it is a very different case from ours, proceeding upon
a principle no way connected with the doctrine of partnership.
True, in commercial transactions, Mr. Chitty says that subsequent
assent is sufficient to ratify anything done under the several power
of the partners to bind each other ; but this is confined to commer-
cial transactions and to simple contracts. In such cases the authority
is implied, and subsequent acts and acknowledgments will certainly



May 1830.] OF PENNSYLVANIA. 289

[Hart P. Withers.]

confer it. But it is not so with regard to a contract by deed, and
at all events, there is no case where, upon the plea of non est fac-
tum, it was permitted to the plaintiff to prove the deed by evidence
of subsequent assent on the part of the defendant. Upon this plea
no evidence is competent but proof of actual execution.

The case in 10 Johns. R. 513, was not between a stranger and
the partners, but between the partners themselves, in which one
partner asked contribution for money recovered against him on a
deed executed by him for all, and in the name of all the partners.
The question in that case was not upon the deed, and on the plea
of non cst factum, but it was collateral to it ; and very properly
the inquiry was permitted as to the beneficial nature of the con-
tract the firm, and subsequent acts of ratification by the other part-
ners. If a recovery had been had against John Withers alone on
this article, and he had brought suit for contribution, and offered
evidence that the benefit of the contract had been received by the
firm, then this case would be an authority.

Hopkins, in reply. These partners had authority to contract for
each other, to promote the object of the concern. Here the
fruit of the contract went to the use of the partners, arid the
contract was made in the course of their business and for their
benefit. It is therefore a defence stripped of all equity, a mere
legal shadow, and without justice. The action is an action of cove-
nant, which in Pennsylvania, is an equitable action : Kulm r.
Nixon, 15 S. & R. 1^5. At law there is enough to avoid this
technical defence, but in equity there is no doubt. Assent is essen-
tial to constitute a contract, but it may be either precedent, con-
comitant or subsequent to it, and in either case the same effect, a
binding contract is produced. Here the proceeds of the contract
were received arid used by the company with the full knowledge of
the contract ; surely this amounted to an affirmance of it : Wat. on
Part. 163. The operating reason for the rule that one partner cannot
bind his copartner by deed, is that the consideration of a deed can-
not be inquired into. This reason does not prevail in Pennsylvania :
here the consideration is open for inquiry in our courts of law : in
England in equity only can this be done; and it would be against
mercantile policy to allow the funds of the firm to be hung up until
this question could be decided in equity. And in England Lord
Mansfield held in a case at Nisi Prius, it is true, that whore the
debt was a partnership debt, one partner may give a bond for it.
binding on the firm. But if the assent of the partners is given,
there is an end of all reason for the rule. It is clear that where
the partner is present when his copartner executes a deed in the
name of both, although there is no evidence of express assent, both
are bound. Here the authority is by parol, and the assent is
inferred from the presence and silence of the partner. It estab-

1 P. & W. 19



290 SUPREME COURT [Lancaster

[Hart r. Withers.]

lishes that assent may be shown by proof of circumstances. This
being established, it is manifest that circumstances necessary to evi-
dence such assent will be as various as the transactions of men are
diversified; and the question must be submitted to the sound dis-
cretion of the jury. Mere presence is held to be sufficient evidence
of assent ; other circumstances may exist to demonstrate it more
satisfactorily ; and it would be incongruous to say that actual
presence alone is sufficient. One may seal for many, and if all
consent, it is the seal of all, whether there be one or many seals.
It is the consent, then, and not the manual operation of sealing,
which makes the instrument: Randall v. Van Yechten, 11* Johns.
R. 60. In this case there was a mere resolve of the corporation to
pay 3">00 on the contract, and it was held such evidence of assent
sis would bind the corporation. The evidence of assent is much
stronger in the case now before the court. He referred also to
Buchannan v. Curry, 10 Johns. R. 137. Although the case in 19
Johns. R. 513 is a case of contribution, the whole court went upon
the principle that subsequent ratification and assent were equivalent
to actual execution by all the partners. But the agreement to try
on the merits controls the defence, and excludes the defendants
from ground purely technical, and stripped of all equity.

The opinion of the court was delivered by

GIBSON, C. J. The law of partnership is part of the law mer-
chant which has respect exclusively to the business of commerce ;
and as sealed instruments do not ordinarily enter into it, the author-
ity of a partner being limited to the scope of the trade, is held to
be incompetent to the execution of them. They may, indeed, be
a partnership to carry on a business not purely commercial ; still,
however, the authority of the partners is regulated by the usages
of trade. The measure of this authority allowed by the law mer-
chant, being graduated to the exigencies of commerce by experi-
ence, is the wholesome and convenient one ; nor ought we, by an
apparent hardship to be drawn into a desire to enlarge it. Un-
doubtedly the partnership had the benefit of the plaintiff's wood,
but he thought fit to furnish it on separate account ; and even if he
supposed in point of law that the covenant of the party who sealed
the deed bound all the defendants, yet that, as we have lately de-
termined in Moser r. Libenguth, '2 Rawle42H, is riot such a mistake
as would entitle him to equitable relief; much less can we. on the
ground of an equity between the parties themselves, say that an
instrument is a deed in equity, which is not a deed at law. That
even in a court of plenary chancery powers will interpose for" or
against a stranger on the foot of such an equity, admits of more



Online LibraryWilliam RawleReports of cases argued and adjudged in the Supreme Court of Pennsylvania (Volume 1) → online text (page 33 of 62)