
    John Doe, ex dem. William F. Smith vs. Richard Roe, i. e. Tullius C. Tupper.
    As a general rule, one partner cannot bind another by writing under seal.
    Judgment was obtained against S. and G. as partners; G. executed a forthcoming bond, and signed the partnership name thereto, which bond was forfeited. Held, that this bond was invalid as to S., and the statutory judgment equally invalid.
    'S. and G. being partners, G. signed the partnership name to a forthcoming bond, which was forfeited, and the real estate of S. was levied on under an execution on the bond, and sold to T.; afterwards S. sued T. in ejectment for the land. Held, that the judgment against S. on the bond could be collaterally attached in this suit, and shown to be void for want of jurisdiction in the court to render it.
    As a general rule, it is too late to object to a forthcoming bond after the return term ; but it is never too late for one who is not a party to it to object to its operating to charge him.
    Even if it be the law, that in judicial proceedings one partner may give a bond which will hind the firm, yet the rule cannot apply to a bond which is to become the foundation of a judgment, without further notice to the party who did not sign it.
    A bond signed by one partner in the partnership name is absolutely void, not merely voidable; and though such bond may become obligatory by the subsequent acquiescence of the "party not signing it, that acquiescence is only evidence that the other partner had power to sign the joint name.
    "Where one partner, without authority, signed the name of his copartner to a forthcoming bond, which is forfeited, the judgment thereon will not bind the party not signing it, even though he were a defendant in the original judgment ; nor will a sale of property of the party not signing the bond, under execution upon it, pass any title.
    In error, from the Madison circuit court.
    This was an agreed case in the court below, upon which the court there rendered judgment for the defendant. The agreement exhibited the following state of facts. 1. A patent from the general government for the land in controversy to T. J. Sumnall; and 2. a duly proved and recorded deed from Sumnall to the plaintiff The defendant admitted his possession of the land in controversy, at the commencement of the suit, and claimed title to it by virtue of a purchase at sheriff’s sale. He read, T. The deed of the sheriff to one Flournoy ; 2. The deed from Flournoy to himself; 3. The record of the judgment under which the sale by the sheriff to* Flournoy took place. This record exhibited the following facts. Graves W. Steele, suing for the use of N. and J. Dick & Co., brought an action in the Madison circuit court, to the March term, 1834, against William F. Smith and Peter C. Goosey, as partners, under the style of William F. Smith & Co. A writ issued, and the service was acknowledged in these words : “ Service acknowledged, this 8th March, 1834. W. F. Smith <fc Co.: By P. C. Goosey, andP. C. Goosey.” The plea of non assumpsit was filed for all of the defendants ; and at the same term of the court Robert S. G. Perkins, acting as agent and attorney in fact for the defendants, under a power of attorney, signed W. F. Smith &. Co., confessed a judgment in favor of the plaintiff, for $561 51. Upon this judgment a writ of fi. fa. issued, which was levied on two negro men; a forthcoming bond taken, and forfeited 29th of September, 1834. The bond is in the ordinary form, signed, William F. Smith & Co. (Seal.)
    P. C. Goosey. (Seal.)
    N. Bryant. (Seal.)
    Upon this forfeited bond execution issued, was levied on the land in controversy, as the property of William F. Smith, which was sold, and purchased, as stated, by Flournoy, and by Flournoy sold to the defendant.
    A similar record in all points, except the plea of another judgment in favor of the same party against the same defendants, with like steps, formed also a part of the agreed case. It was proved that Peter C. Goosey had signed the name of William F. Smith & Co., to the forfeited forthcoming bonds.
    
    The judgment of the court below was in favor of the defendant, from which the plaintiff prosecuted this writ of error.
    
      Robert Hughes, for plaintiff in error.
    1. The first objection to the bill of the defendant is, that the judgment under which he claims is a confession of judgment, in the case of Steele, use of Dick, v. William F. Smith Co., 
      which consisted of William F. Smith and Peter O. Goosey, and the letter of attorney is under seal, and is signed William F. Smith & Go. See Story on Part. 173 to 180.
    2. The forthcoming bond is taken on an execution issued on this judgment, against Smith and Goosey, and is signed “ William F. Smith & Co.,” “ P. C. Goosey,” “ N. Bryant,” and .is not signed by William F. Smith; but upon the contrary, it is proved, that the signature to the bond is not in the writing of Smith, but in that of P. G. Goosey. Yet the bond is considered that of Smith as well as that of Goosey, and an execution is issued upon it, and under that execution the property of Smith is sold. The whole record of the judgments against Smith & Goosey, which are in evidence, show that Smith had nothing to do with the suit from beginning to end, but that everything was done by Goosey. Gioin v. McGarroU. 6 How. 351.
    
      W. R. Hill, for defendant in error.-
    The validity of the judgments under which the defendant claims, is controverted on two grounds. 1st. That the original judgments were rendered by confession under a power of attorney. 2d. That the judgments on forthcoming bonds under which the land was sold, were rendered on bonds bearing the signature of the firm of William F. Smith & Go., which signature is in the handwriting of P. C. Goosey, one of the partners.
    1. [The argument of Mr. Hill on the first point is omitted ; the court not having considered it in their opinion.]
    2. The second ground assumes that the forthcoming bond is void because the signature of the firm is in the handwriting of P. C. Goosey.
    It is submitted that the validity of the forthcoming bond cannot be inquired into in this collateral way. There are here judgments of a court of competent jurisdiction, purporting to be regularly obtained, according to the due course of legal proceedings. They can only be set aside by a direct application to the court. 8 Johns. R. 361; 13 lb. 537.
    In Weathersby v. Proby, 1 How. 98, it was held that on a motiofi to quash execution on forthcoming bond, defects in the bond cannot be taken advantage of. The court there say that the party has acquiesced in the effect of the bond. The conclusion seems fair that if on a motion to quash the execution, defects in the forthcoming bond cannot be inquired into, a fortiori the validity of the bond cannot be impeached collaterally, and without any motion whatever.
    It is now too late to dispute the validity of these bonds. It is the settled law of this state, that the validity of a forthcoming bond cannot be contested after the return term. After that time the party is deemed to have acquiesced in defects or irregularities, or matters aliunde, which, if relied on at the proper time, would have rendered it void. 4 How. 363; 6 lb. 498 j lb. 540.
    If, however, the judgments and executions on forthcoming bonds may now be set aside, still it is insisted the sale under them is valid.
    In Woodcock v. Bennett, 1 Cow. 738, and Mitchell v. Evans, in this court, 5 How. 548, the doctrine is laid down that a sheriff’s sale, under judgment and execution, merely voidable, is valid; otherwise, if the process is absolutely void. What is meant by void and voidable process, does not clearly appear. In the case from New York void process and irregular process are considered as synonymous' terms, while erroneous process is considered as merely voidable. And in the same case the opinion of Mr. Justice Gould, in 2 Con. R. 702, where he says, “ Process cannot be irregular where sued out according to established practice,” is cited with approbation. If this last rule is to be test, the process in this case is merely voidable. According to the evidence, P. C. Goosey, one of the partners of William F. Smith & Co. (of which William F. Smith was the-only other) signed the name of the firm as principal to the forthcoming bonds. Does this fact render the bonds void, not merely voidable, but absolutely void ?
    
    It may well be argued that these bonds are positively valid, their execution coming within the scope of Goosey’s authority. Generally, it is true, one partner cannot bind the firm by deed; but there is an exception to the rule in relation to judicial proceedings. In these he has full power to bind the firm. . He may appear for the firm.
    He may execute an attachment bond, which will bind the firm, (6 How. 254); and, by parity of reasoning, he may execute a forthcoming bond for the firm. The statute in relation to forthcoming bonds, How. & Hutch. 653, provides that they shall be taken from the person “ whose property is levied on.” The property of the firm was levied on here ; and how else can the statute be complied with, than by a bond executed in the name of the firm, as such 1 And how can this be done, except by one of the partners 1 The statute, ex vi termini, would seem to confer this authority.
    It is not, however, necessary to insist on the validity of these bonds. It is sufficient to sustain this sale, if it can be shown that they are not absolutely void, but merely voidable.
    
    If, in virtue of the partnership, Goosey had no authority to bind the firm by bond, still he might have had express authority from Smith, the other partner ; or the bond might have been executed in Smith’s presence, and with his assent; or Smith may subsequently have ratified and confirmed it. Under any of these circumstances, the bond would be valid.
    Where one of two partners executed an arbitration bond, in the name of the firm, with the conserit and approbation of the other partner, it was held the firm was bound, 9 Johns. R. 285.
    The authority of one partner to bind another by deed, may be by parol; or the subsequent assent of the other partners may ratify and confirm the deed. 19 Johns. R. 513.
    In Cady v. Shepherd, 11 Pick. 400, it was held that one partner may bind his copartner, by contract under seal, in the name of the firm ; provided the other partner previously assent to its execution, or afterwards ratifies or adopts it, and this assent or adoption may be by parol. The same doctrine is ruled in 7 Cranch, 297. 4 Wash. C. C. R. 471. 2 Hill’s (S. Car.) R. 532.
    Can the court now say, that there was no previous assent, or subsequent ratification by Smith, because there is no such proof on record 1 The evidence to sustain a judgment never, or rarely, does appear of record. Or rather will not the court intend, from the long acquiescence of Smith, that then circumstances did exist, or that proof was made of them, on the rendition of the judgment on the bonds 1
    
    The authorities cited abundantly sustain the position, that a bond executed under the circumstances of these now under consideration, is capable of ratification by the subsequent assent of the other partners, and to this point the attention of the court is particularly requested. It is a proposition too plain to admit of argument, that a bond absolutely void in its creation, cannot, by any subsequent act, or assent of the parties to it, become valid. If the bond of a firm, executed by one partner, without the previous authority of the others, be positively void — a mére dead letter — vitality cannot be infused into it by the subsequent assent or ratification of the parties not originally bound. The term ratification, implies the legal existence of a contract having’some inchoate obligation; and the distinction between contracts, void and voidable, is well settled — that the one class is capable of confirmation, and the other not. Thus, the bond of a feme covert is absolutely void ; it is therefore incapable of confirmation by her, after the death of her husband ; whilst the bond of an infant being merely voidable, may be confirmed after attaining full age.
    The views here presented, it is believed, satisfactorily establish the point, that the forthcoming bonds are not, from the facts proved, per se void, but at most merely voidable; and it follows incontestably, that the judgments predicated on the bonds cannot be more than merely voidable. If the fact relied on goes only to show the cause of action voidable, the judgment predicated on it cannot, by any process of reasoning, be absolutely void, but at farthest voidable ; and if only voidable, according to the authorities cited the sale is valid, and the judgment below must stand.
    If, however, the court should be of opinion, that the facts proved nullify the judgments on forthcoming bond, it is submitted that the sale is still valid, and may be referred to the original judgments. The execution under which the sale was made, recites judgments on forthcoming bond. If these judgments are void, they have no legal existence and' the recital is false; it may be rejected as surplusage, and the execution so amended as to conform to the orignal judgment. The modern doctrine of the courts, in relation to amendments, is carried to a most liberal extent.
    Some adjudications from South Carolina will show this. Giles v. Pratt, 1 Hill, 239. Pending the trial of an action of trespass, to try title, (the ejectment of that state,) the court permitted the judgment and execution, under which the plaintiff claimed title, to be amended, so as to confer authority for the sale, and this of course, and without notice to the defendant in the execution. S. P. 1 Hill, 167.
    In Treasurers v. Rep. of Bordeaux, 3 McCord, 142, process was amended after sale under it, so as to show the authority for the sale. The same doctrine was ruled in-Pur key v. Toomer, 1 Const. Court R. 323.
    These authorities would justify the court in amending the executions, so as to conform to the original judgments. If it be objected, that there are executions already levied upon these judgments, and that the levy is evidence of satisfaction, (see Pickens v. Marlow, 2 S. & M. 428,) the answer is, that the levy on the personal property is only prima facie evidence of satisfaction; and if it appear that the levy was not productive, the legal presumption of satisfaction is rebutted. The record evidence here is, that the property levied on was restored to the possession of the defendants in the execution, without sale. It is true the sheriff might, in such ease, be held liable to the plaintiff in execution; but if he afterwards levy on other property, the defendant in the execution, who consented to a release of the first levy, by receiving back the property, cannot object to the regularity of the sale, much less can a purchaser be affected by any such proceeding.
    The case is susceptible of still another view. If the executions are amendable, so as to correspond with the original judgments, they cannot be absolutely void. Void process is incapable of amendment. They are at most merely voidable, and the sale is consequently valid.
   Mr. Chief Justice Sharkey

delivered the opinion of the court.

The plaintiff in error brought ejectment to recover the east half of the south-west quarter of section number twenty, in township nine, of range three, east. The parties made an agreed case in the court below, by which it appears that Smith derived title to the land in controversy, from the patentee, Sumral, in 1835. In 1834, two judgments were rendered in the circuit court of Madison county, against William F. Smith and Peter C. Goosey, as partners, trading under the firm of William F. Smith & Co., in favor of Steele, for the use of N. & J. Dick & Co. On these judgments executions issued, and the sheriff levied on personal property, and took forthcoming bonds, which were returned forfeited ; and executions were afterwards issued on the forfeited bonds, and part of the money paid, but by whom it does not appear. For the balances due, the land in controversy was levied on and sold, and the defendant in error derives _ title from the purchaser at sheriff’s sale. It was in proof that the forthcoming bonds were not signed by Smith, but that his name was attached to them by his partner Goosey, and no authority from Smith for that purpose was shown. The court gave judgment for the defendant, and the case comes up by writ of error, and it is now insisted that Goosey had no power to bind his copartner Smith, by signing the partnership name to the forthcoming bonds, which were sealed instruments, and that the executions under which the land was sold, having issued on these bonds, were therefore void. If this position be true, the plaintiff must recover his land.

It seems to have become almost an axiom in law, that one partner cannot bind his copartner by deed, without authority for that purpose. This limitation arises from the technical rule that to bind another by deed requires a special authority. Partnerships are usually formed for conducting mercantile transactions, or for carrying on business which does not require the use of sealed instruments, and it is therefore generally out of the usual order of business, for one member of the firm to execute deeds for the others. Such a power would enable one partner to encumber with liens the entire individual property of his copartner, and on this account it is contrary to the policy of the law to give effect to such instruments. This question was fully investigated by Chief Justice Marshall, in the case of Anderson and Wilkins v. Tompkins, et al., 1 Brock. R. 456. He expressed himself as being dissatisfied with the extent to which the rule had been carried, and held that it could not apply in cases where the contract need not be by deed. In such cases he said the deed could not make void a contract which would be valid without it. Still, he held the rule to be a sound one in its application to property that can pass only by deed, and liabilities that can be created only by deed. Chancellor Kept also seems to regard the rule as well settled, and on sound policy, that one partner cannot bmd his copartner by deed, except in one or two instances of debts due the firm, or to proceedings in ba*k^rauy'^Z|j^OT¿s Com. 5th ed. 47, et seq. Indeed, no priWbhpla has recede?! more universal assent, and no rule seems/to admifi^^^W^ exceptions. Deeds so made, which prqfes£ 4a trapsfer 'thg'|||roperty of the absent partner, or which incu\liabutíre®rded as absolutely void as against the nartnefr^hp Mid pdrimn. but valid as to those who did sign. It becomWa matter of some consequence to inquire into the effect of a judgment which has been procured in consequence of a deed executed by one partner in the name of the firm, inasmuch as the forthcoming bond which was executed by Goosey, became a judgment by operation of law, when forfeited, and on it the execution issued under which the land in controversy was sold. Green v. W. & T. Beals, 2 Caines R. 254, is a leading case on this subject, and very much in point. A warrant of attorney, under seal, was executed by one partner in the name of the firm, on which a judgment was rendered and an execution issued. The partner who did sign the warrant, moved to set aside the execution. The court refused to give him relief, because he was legally liable in a proper action, but the court' decided that the judgment was void as to the partner who did not sign, and that they would give him relief by directing that the execution should not be levied on his property. Again, in the case of Crane v. French & Wilkins, 1 Wendell, 311, it was held that one partner cannot confess a judgment which will bind his co-partner individually. The same question was again very fully discussed in the case of Grazebrook v. McCreedie & Senior, 9 Wendell, 437. A judgment was rendered on a cognovit, given to an attorney as ¿he attorney of the firm, when in fact he was only employed by one member, the other being ignorant of the proceeding. The court refused to set aside the judgment, but opened it so as to allow the other partner to contest the claims. By this refusal the court virtually held, that although one member of a firm cannot bind the other hy confessing a judgment, yet, that the attorney of one member may bind the firm by such confession. This decision was based on a previous one, which decided that a judgment confessed by an attorney without authority, is binding on the party, and that he must have his recourse on the attorney. With this feature in the case we have no concern; it is cited for the purpose of showing that one member of a firm cannot bind his copartners by a confession of judgment, and that principle is fully recognized. On the strength of these authorities we are bound to hold that the bond given by Goosey was invalid as to Smith, and also that the statutory judgment on the bond was equally invalid.

But it is insisted that the validity of these judgments cannot be thus collaterally inquired into. We have seen, from the authorities, that such judgments may be declared inoperative on motion, which is but a collateral inquiry.' Judgments are conclusive until regularly reversed between parties and privies, where the court has jurisdiction of the subject-matter and of the person ; but where it has not such jurisdiction, its judgments may be collaterally impeached. It is always competent to inquire into the jurisdiction of the court, for on this the judgment must depend for validity. On the forfeiture of a forthcoming bond, there is no formal judgment. The forfeiture operates as a judgment by virtue of the statute ; and it must be based on such a foundation as will support a judgment. If Smith did not sign the bond, there was nothing on which the statutory judgment could rest. It is like a judgment without jurisdiction over the person. The process to render Smith amenable to the jurisdiction is wanting. He was not a party to the bond, and of course its forfeiture could not operate as a judgment against him.

Again says the counsel, it is too late to object to a forthcoming bond after the return term. It is true that a party to such a .bond cannot have it quashed after the return term, but it is never too late for one who is not a party to it, to object to its operating to charge him. As to him it is void. And it is also said that in judicial proceedings one partner may give a bond which will bind the firm. Whether this be true in any case we need not inquire; it is certainly a misapprehension of the law when such bonds are to become the foundation of a, judgment without further notice to the party who did not sign. The position is also taken that such bonds are not void but voidable, because they may become binding by the acquiescence of the party. Such acquiescence may be regarded as evidence that the party who did not sign, gave power to the other partner to sign for him. Such authority may be by parol, if the party be present, and then it is as much his bond as though he had signed it. But the authorities referred to hold them to be void. If any such authority had been given by Smith, it was incumbent on the defendant to have proven it.

It is further urged that even if the bonds were void, that still the sale by the sheriff may be sustained as resting on the original judgments, and the executions so amended as to conform to the judgments. The executions under which the property rvas sold, issued on the bonds, reciting that the forfeiture had the force and effect of a judgment, and it includes different parties, as it is against the surety as well as the principal. To amend it, would be to make a new execution. Besides, an amendment would not get rid of the mischief which the rule of law is intended to prevent, and it would also probably release parties who are noAV liable, and charge parties who may be released, and thus entirely change the effect of the .process. When an original judgment is against all the members of a firm, it may seem immaterial whether the bond be signed by all the members, or by one for all, they being already bound. But the consequences may be important. The rights of the defendants are materially changed by giving a forthcoming bond. It operates as an irrevocable judgment by barring a writ of error. A judgment may be obtained without actual service of process, and if in such case one partner may bind the other by forthcoming bond, one who is entirely ignorant of the existence of any legal proceeding against him, may have his entire property incumbered without his knowledge or consent. The law has it in view to prevent one partner from disposing of, or creating liens, on the individual property of the others, and any means by which such a result is brought about must be illegal. We therefore think the law on the agreed case is for the plaintiff; the judgment must therefore be reversed and entered accordingly.  