
    *Hortons & Hutton v. W. & E. Townes.
    February, 1835,
    Richmond.
    Pleas in Abatement — Strictness Required.- — The utmost strictness is required in pleas in abatement; anda general demurrer to such plea has all the effect'of a special one.
    Same-How Pleaded — What It Must Show- Conclusion of Plea. — Plea in abatement to -jurisdiction, held naught, 1. because pleaded by attorney, not in person; 2. because concluded with a prayer quod billa cassetur, instead of si curia cognoscere velit; and 3. because it did not give plaintiffs a better writ — per Tucker, P.
    Principal and Agent--Agent’s Authority Construction oi Power of Attorney — Case at Bar, — A. by letter of attorney authorizes U. to puthis'name to or upon any negotiable note, as mater or indorser, for the purpose of getting the same discounted at one or other of certain specified bants, to amount of 3000 dollars, and then for renewal of such note at bank, from time to time, so as the amount shall at no one time exceed 3000 dollars; B. makes a note for 3000 dollars accordingly, which is discounted at bant, and renewed from time to time, but is at length reduced to 1000 dollars; and then, B. purchases groceries of C. and for the price thereof, gives him a note made by A. by B. his attorney negotiable at one of the specified banks, which the bank refuses to discount: Hbid, this note for the price of the groceries, is not within the authority conferred on B. by A.’s letter of attorney, and is not binding on A.
    Same — Same—Same—Quaere.—whether the authority given by A.’s letter of attorney to B. was not exhausted by the making of the first note for 8000 dollars, discounted at bank? It seems, it was.
    Same — Confirmation of Agent’s Act — Evidence.—In an action by C. the holder of the note of A. given him by B. the attorney, for the price of groceries, evidence is offered to prove, that A. with full information of all the circumstances, acquiesced in and confirmed the act of B. in making such note: but this evidence being equivocal, Held, it was properly left to the jury to determine, whether A. confirmed this act of B. his attorney ?
    Same — Same.—A. being informed of the making of the note by B. and of all the circumstances, makes no complaint, and afterwards procures indemnity from a third person against loss by reason of the note: Held, this does not amount to confirmation of B. ’s unauthorized act in making the note.
    Debt on a promissory note for 507 dollars, brought by Hortons & Hutton, as indorsees, against W. & E. Townes, as the makers, in the circuit court of Petersburg.
    There were several counts in the declaration upon the note, and two money counts, one for money paid, laid out *and expended, and the other for • money had and received. The count on the note to which the evidence applied, alleged, that W. & E. Townes, by James Townes, their agent in that behalf, made and delivered their promissory note to one Rutland, dated the 5th October 1827, whereby they promised to pay Rutland, or order, ninety days after the 13th of that month, 507 dollars, for value received, negotiable and payable at the office of the bank of the U. States at Fayetteville, N. Carolina; that Rutland indorsed the note to Hortons & Hutton; and that the note was, at its maturity, duly presented at bank for payment, and protested for non-payment. The defendants first pleaded, in abatement, that before the filing of the plea, the defendants or either of them never resided in Peters-burg or within the jurisdiction of the court, and that the cause of action did not originate in that town or within the jurisdiction of the court; concluding with a verification, and praying judgment of the writ and declaration, and that the same might be quashed. This plea was verified by an affidavit of W. Townes, one of the defendants, stating that he made oath, “that the plea contained the truth.” The plaintiffs demurred to the plea; and shewed for cause of demurrer, that the defendants did not shew therein, of what county or corporation in the commonwealth they were inhabitants, -so as .to give the plaintiffs a better writ; and that the affidavit to the plea was uncertain and insufficient. The court sustained the demurrer. And then, the defendants pleaded the general issue.
    Upon the trial of the issue, the defendants filed exceptions to an opinion of the court, which in the result became immaterial. The plaintiffs filed exceptions to another opinion of the court; stating, that the plaintiffs *gave in evidence, 1st, a letter of attorney from the defendants, W. Townes and E. Townes, to James Townes, in the following words i 1 ‘Know all men by these presents, that we, W. Townes and E. Townes, merchants and partners trading under the firm of W. & E. T. of Mecklenburg county, Virginia, have constituted and appointed, and do by these-presents constitute and appoint, James. Townes of Cheraw, S. Carotina, our true and lawful attorney, for us to write and subscribe our names to any negotiable note or paper, either as makers or indorsers of the same, to the amount of 3000 dollars, for the purpose of getting the same discounted, at the state bank of N. Carolina, or either of its branches, or at the office of discount and deposit of the bank of Cape Fear at Fayetteville, N. Carolina, or at the office &c. of the bank of the U. States at Fayette-ville, or either of them, or for us to write and subscribe our names to any note, as makers or indorsers, for the renewal of any such note at either of the aforesaid banks, from time to time, so that the amount for which we shall be bound, at any one and the same time, shall not exceed the aforesaid sum of 3000 dollars; hereby ratifying and confirming whatever our said attorney shall lawfully do, or cause to be done, in conformity with the powers hereby granted, in and concerning the premises aforesaid-As witness our hands and seals this 24th November 1829.” (Signed) “W. Townes-E- ’Townes;” and sealed by both.
    2ndly, The promissory note in the declaration mentioned, in these words: “Cheraw, S. C. 5th October 1827. Ninety days after the 13th inst. we promise to payJB. Rutland, or order, 507 dollars, value received, negotiable and payable at the office of discount and deposit of the bank of the U. States at Fayetteville, N. ^Carolina.” (Signed) “W. & E. Townes, by their attorney James Townes.” (Indorsed) “B. Rutland.”
    3rdly, The testimony of James Townes, the attorney in fact, who proved the making of the note by him; and then, on cross examination, proved, that soon after the letter of attorney was executed, he applied to the office of the bank of the U. States at Fayetteville, and obtained a discount for 3000 dollars, upon a note indorsed with the name of the defendants by him as their attorney; which note and discount were renewed and continued, according to usage at the bank, for some time, and had been gradually reduced, so that at the time of making the note in the declaration ■ mentioned, the amount due at bank for which the defendants were liable, as indorsers, was only about 1000 dollars: that he, James Townes, then bought groceries of the plaintiffs, Hortons & Hutton, to the amount of 507 dollars, and agreed that he would give the plaintiffs the note of the defendants in the declaration mentioned, for that amount, and would procure Rutland to indorse the same to the plaintiffs, in order to enable them to procure a discount thereof at the office of the bank of the U. States at Fayetteville, and that in case the bank should refuse to discount the note, the plaintiffs should hold it as their property, and as a note binding the defendants, according to the usual effect of such notes: that, upon the plaintiffs’ application to the bank, it refused to discount the note: that he, James Townes, at a later period, while the note was in possession of the plaintiffs, informed the defendants of the circumstances under which it was made, and by whom it was held, and the defendants did not then make any objection, nor did they complain *that he, James Townes, had exceeded his authority: that the defendants, afterwards, procured Joseph Townes to make certain assurances to protect them from the acts of James under their letter of attorney, and that the said note was provided for: and that Rut-land, to whom or to whose order the note in question was made payable, indorsed the note for the accommodation of the makers thereof, but without their knowledge or agency, except through James Townes, the attorney.
    And this being all the evidence in the case, the court, upon the motion of the defendants’ counsel, instructed the jury, that, according to the tenor and meaning of the defendants letter of attorney to James Townes, he was not authorized to make the note in question, in the name of the defendants, to pay or secure payment for the groceries by him bought of the plaintiffs, and that the intention and agreement of James, the attorney, Rutland the indorser, and the plaintiffs, that the note should be discounted at the bank of the U. States, did not create any liability on the part of the defendants; but the court added, that if the jury should believe from the evidence, that the defendants, after they were apprised of the making of the note, in the manner and for the purposes stated in the testimony, ratified the same, then they were bound by and liable on the note; to which opinion the plaintiffs’ counsel excepted.
    The jury, under the instruction of the court, found a verdict for the defendants. And then the plaintiffs’ counsel moved the court to set aside the verdict, and direct a new trial, 1. because the verdict was contrary to the evidence, and 2. because of the supposed misdirection of the court, in its instruction to the jury. The court overruled this motion, and gave judgment for the defendants upon the verdict; from which the plaintiffs appealed to this court.
    ^Allison and Macfarland, for the appellants,
    argued, 1. that the obvious purpose of the letter of attorney given by W. & F. Townes to James Townes, was to enable him to raise money on their credit, for his own accommodation, not exceeding 3000 dollars. It did not confine his authority to the making of a single note for that amount, and the renewal of that note; but authorized him to make any number of notes, provided they should not exceed, in the aggregate, 3000 dollars at any one time, and to make other notes for renewal of such notes, whatever number of them he should make. The authority conferred by the letter of attorney, was unlimited in respect of time, or number of notes, but only limited as to the amount in the aggregate; and the limitation, that the amount should not exceed 3000 dollars “at any one time,’’ plainly evinced, that several notes might be made at several times. When the attorney made the note in question, negotiable at bank, for the purpose of being negotiated there, and delivered it to the plaintiffs in order that they might get it so negotiated, he acted within his authority; since it distinctly appeared, that the contents of this note, with those of others which had been discounted at bank, did not exceed, at the time, the sum of 3000 dollars. Nor was the authority less strictly complied with, if the note was made for the purpose of being negotiated at bank, and did not transcend the authority as to the amount, because the note was not actually discounted at bank; for, until the note was made and perfected by delivery, it could not have been negotiated at bank, nor could it have been known whether the bank would negotiate it or not. It could make no difference, whether the attorney made a note, to be by himself offered for discount at the bank, to raise money for his own use, or made and delivered a note to another, in order that he might get it negotiated at bank, for the use and benefit of the attorney; for it was, in fact, applied to his use. He *had a right to vary the form of the transaction, provided he kept substantially within his authority: he might have made this note, got it discounted at bank in his own name and for his own use, and then immediately paid the money to Hortons & Hutton ; and he meant to do exactly the same thing, in effect, when he gave the note to them, that they might get it discounted, to pay the debt he had contracted to them. The note was a valid security in their hands, the moment it was delivered to them ; and as it could not be rendered more valid by being negotiated at bank, so neither could it be invalidated by the refusal of the bank to discount it. 2. Adverting to the facts proved by the attorney, that while the note was in the hands of the plaintiffs, he informed the defendants of the circumstances under which it was made, and by whom it was held, and they did not then object or complain that he had exceeded his authority, and that they afterwards procured from another person certain assurances to protect them from his acts under the letter of attorney, and the note in question was provided for, — they contended, that this amounted to a ratification of the act of the attorney in making the note; and the court ought so to have instructed the jury. For a principal, informed of an act of an agent done under colour of his authority, must express his dissatisfaction within a reasonable time; the law inferred acquiescence and confirmation from his silence. Cairnes & Lord v. Bleecker, 12 Johns. 300; Odiorne v. Maxcy, 13 Mass. Rep. 178. Here, the principals ratified the act, first, by acquiescing, after full knowledge of the circumstances; and secondly, by negotiating with the attorney and procuring indemnity. And if this conduct was not, in law, tantamount to acquiescence and confirmation, the jury ought to have inferred from the facts proved, a complete ratification by the principals of the act of the attorney; and the court ought to have set aside the verdict as contrary to evidence.
    ^Spooner, for the appellees,
    complained of error committed against them; namely, in the judgment of the court sustaining the demurrer to the defendants’ plea in abatement to the jurisdiction. And then proceeding to examine the letter of attorney, he premised, that it conferred a special authority, which must be strictly pursued. It authorized the attorney to sign the defendant’s names to any negotiable note or paper, not notes or papers, to the amount of 3000 dollars, for the purpose of getting the same discounted at bank, and to sign their names to any note, for the renewal of such note, not notes: it authorized him to bind them by a single note, and by subsequent notes for its renewal only: it authorized him to use the credit of their names to get an accommodation, to a limited amount, at bank, not to bind them for debts he should contract to individuals. The attorney did indorse their names on a negotiable note for the whole sum of 3000 dollars at once, and get it discounted at bank, and then indorsed their names on other notes for the renewal of that note; and in so doing, he fully executed and exhausted his power. The letter of attorney was then functus officio; the attorney had no authority to make or indorse any new note, and get it discounted at bank; much less to make a new note, and pass it to individuals, to be binding on his principals, whether discounted at bank or not. He cited Eenn v. Harrison, 3 T. R. 7S7; 4 T. R. 177; Attwood v. Mannings, 7 Barn. & Cres. 278; With-ington v. Herring, 5 Bing. 492; 14 Éng. C. E. R. 42; 15 Id. 492, 501, to shew the difference between general and special powers confided to agents. As to the circumstances relied on, as a confirmation of the act of the attorney in making the note in question, he said, nothing could be more vague than the evidence on that point. The date of the conversation was not given; it might have been after the note was protested, nay, after this action was brought, when the silence of the defendants could not *possibly be mistaken for acquiescence. Neither did it appear, that these circumstances were ever communicated to the holders of the note, so as to induce them to forego any measures for securing the debt due them, from the real debtor who contracted it. The court properly left it to the jury as a question of inference of fact, from the facts in proof, and the jury found that there was no confirmation. The indemnity which the defendants are said to have obtained, was a mere measure of precaution, and one that could never be of any avail, unless it should be adjudged, that the letter of attorney authorized the agent to bind them by this note.
    
      
      Dilatory Pleas — Not Regarded with Favor. — Dilatory pleas are not regarded with favor, and in order to discourage their use, they are required to be drawn with the greatest accuracy and precision. Guarantee Co. v. National Bank, 95 Va. 486, 28 S. E. Rep. 909, citing 1 Chit. on Pl. 445; 4 Min. Inst. 1036; and Hortons v. Townes, 6 Leigh 58.
      The principal case Is cited and approved in Quarrier v. Peabody Ins. Co., 10 W. Va. 521.
      Same — Plea to Jurisdiction — riust Be Pleaded in Person. — In Quarrier v. Peabody Ins. Co., 10 W. Va. 519, the court said; “Though in some very ancient entries, pleas to the jurisdiction have been put in by attorneys, yet the rule that such a plea cannot now be put in by attorneys, seems well established. 2 Saunder’s Reports, 2 b, Hortons & Hutton v. W. & E. Townes, 6 Leigh 58; Guild v. Richardson, 6 Pickering, 371.”
      Same — Same—Conclusion of Plea. — That the proper conclusion of a plea to the jurisdiction of the court is whether the court can or will take further cognizance of the action, and not that the action abate and be dismissed, see the principal case cited and approved in Quarrier v. Peabody Ins. Co., 10 W. Va. 520.
      Same — Same—Must Give Plaintiff Better Writ.- The principal case is cited In Guarantee Co. v. National Bank, 95 Va. 486, 28 S. E. Rep. 909, for the proposition that a plea to the jurisdiction, of a court in a transitory action, which fails to give the plaintiff a better writ by showing what court of the state has jurisdiction of the cause of action, is bad.
      The principal case is cited and approved in Wooddell v. West Virginia Imp. Co., 38 W. Va. 28, 17 S. E. Rep. 388. See monographic note on “Abatement, Pleas in” appended to Warren v. Saunders, 27 Gratt. 259.
    
    
      
       See monographic note on “Agencies” appended to Silliman v. Fredericksburg, etc., R. R. Co., 27 Gratt. 119.
    
   BROCKENBROÜGH, J.

I think it very clear, that the letter of attorney conferred no other authority than that of subscribing the names of the defendants, either as makers or indorsers, to any negotiable note or paper, for the purpose of getting the same discounted at either of the banks specified in the letter, and when the same note or paper should come to maturity, of renewing the same toties quoties, so that the defendants were not to be bound at any one and the same time for a greater sum than 3000 dollars. The power to have the note or paper discounted at either of the banks, repudiates the idea of having notes negotiated at all of the banks, or at more than one bank to the same time, whilst the renewability of the note, manifests the intention of the principals to be, that the accommodation was to be granted to the attorney by a bank, and not by individuals. To allow the attorney to make purchases from individuals, would place his conduct beyond the control of the principals, and thereby endanger their safetj'. The construction given to the power by the circuit court, seems to me to have been perfectly correct.

Another question has been supposed to arise as to the subsequent ratification of the agent’s act by the principal, and whether the court erred in not granting the *plaintiffs a new trial. The court left it to the jury to decide, from the evidence, whether the defendants, after the3' were apprised that the note in controvers}' was made for the purpose of paying, or securing the payment, for groceries purchased by James Townes from the plaintiffs, ratified the contract? No objection has been made to this course: the jury found that there was no subsequent ratification; and then the plaintiffs moved for a new trial, which the court refused. Was there error in this? The bill of exceptions exhibits a summary of the evidence. It states, that the said James Townes the attorney, at a later period, and whilst the note was in possession of the plaintiffs, informed the defendants of the circumstances under which it was made, and by whom it was held; that the defendants made no objection, and did not complain that the attorney had exceeded his authority; that the defendants afterwards procured Joseph Townes to make certain assurances to protect them from the acts done by James under the letter of attorney, and that the note was so provided for. There was no evidence of any assent given, or any actual ratification of the act of the attorney, by the principals, but the ratification is inferred from their silence. That is too equivocal a circumstance from which to form such a conclusion ; and the subsequent conduct of the defendants in standing a suit, shews that they did not understand their failure to object as an actual ratification. The defendants, it is stated, afterwards procured Joseph Townes to make certain assurances What those assurances were, is not stated; but whatever they might have been, they were only intended to protect the defendants themselves from the acts of their attorney. Then it is said, “the note was so provided for.” How was it provided for? This does not appear. It would be a strained inference to say, that it was provided for by the defendants acknowledging that they were bound for its payment, or would *pay it. If such had been the fact, it would have been easy to have so stated it. I am of opinion, that the evidence set out in the bill of exceptions is too vague and unsatisfactory to authorize the court to say that the jury erred in the verdict which it rendered. I am therefore for affirming the judgment.

CARE, J.

I am of opinion, that the construction given by the circuit court, of the power of attorney, was clearly the true one. It certainly did not authorize James Townes to make the note in question, in the name of the defendants, to pay or secure the pay7ment for groceries purchased by him of the plaintiffs. Indeed, I incline to think, that it authorized the drawing but one original note for 3000 dollars, and the renewing that note from time to time, suffering it at no time to rise above the sum of 3000 dollars: and this note of 3000 dollars, having been drawn and discounted, I think the power was functus officio, so far as related to drawing original notes under it. I think the instruction of the judge, leaving to the jury the fact of subsequent ratification, was also proper; and that the new trial was properly refused.

CABELL and BROOKE, J., concurred.

TITCKEJR, P.

I am of opinion, that the judgment is right upon the merits. But the appellees’ counsel, fearing the result of the argument as to the construction of the letter of attorney, complained of error in the judgment of the court on the demurrer to the defendants’ plea in abatement to the jurisdiction. If judgment should have been given for the defendants on the demurrer to that plea, it could only have been a judgment in abatement, instead of a judgment in bar of the demand, so that this judgment would, in that aspect, be reversed, and the appellant would have his costs. I *am of opinion, however, that the plea in abatement was bad, and was properly overruled. The utmost strictness is required in these pleas, and a general demurrer to one of them, has all the effect of a special demurrer. Now, this plea is vicious, 1. because it was pleaded by attorney, instead of in person; 1 Chitt. Plead. 412; 2 Wms. Saund. 209, b. c. 2ndly, Because it ought to conclude with a prayer si curia cognoscere velit, or respondere non debet, and not quod billa cassetur; 1 Chitt. Plead. 427, 450; 2 Wms. Saund. 209, d. 3rdly, I incline to think it defective in not giving the plaintiff a better writ, by shewing the defendants’ residence, though it is generally true, that in a plea, to the jurisdiction of courts of limited jurisdiction, it is only necessary to shew that they ought not to take cognizance of the cause. 6 East. 600. Eor it may be, that the defendants’ residence may be unknown to the plaintiff, who should not be turned out of court without the necessary information to enable him to commence his action effectually. Upon the whole, I am satisfied the plea was properly overruled, and a re-spondeas ouster awarded.

The merits of the case depends upon the construction of the power of attorney; and upon the questions, 1. whether the agent transcended his authority? and 2. whether there has been any subsequent confirmation of the unauthorized act? I concur in the position taken at the bar, that powers of attorney, of this description at least, ought to be construed strictly. It was not a power for the benefit of the maker, but an authority given to the attorney, to draw and subscribe a note for his own accommodation and advantage. Whoever dealt w7ith him under that power, must have been conscious, that he could not bind his principal beyond the express letter of his instructions. It would be strange, indeed, if it were otherwise ; if the engagement of one to lend his name and credit to another in a specified manner, or to a specified extent, should be enlarged to embrace engagements *of a different character, upon the pretence that they were not more onerous or more hazardous than those which were authorized. That is a matter of which the principal alone had a right to judge. Neither the attorney nor the plaintiffs in this case, have a right to say, that the contract made with them, does not expose the principals to more hazard than the execution of a note according to the express terms of the power. Nor has this court the power to make, or to sustain, a contract for the party, which he did not authorize. The question then is, whether this note is within the authority given to the attorney7? The power given is, to subscribe the principals’ names to a negotiable note, for the purpose of getting- it discounted at one of several banks which are specified. The note executed was for the amount of a bill for groceries; it was payable to Rutland, and indorsed by the plaintiffs, that they might get it discounted at the U. S. Bank at Fayetteville, where it was made negotiable and payable, but where it never was discounted. The authority was to execute a note for the purpose of raising money; the note executed was not of purpose to raise money for the agent James Townes, but to pay a debt contracted at that time with the plaintiffs for groceries, with an agreement that if it could not be discounted, the plaintiffs were to hold the note as their own property, and as a note binding on the defendants, according to the usual effect of such notes. Thus, the defendants, who had only7 authorized themselves to be made debtors to one of the banks, are made debtors to an individual. Here, it must be confessed, is a clear and obvious difference in form, between the authority given and the contract made. Is there no difference in substance? Very great, I apprehend. Had the note been discounted by either of the specified banks, a renewal might reasonably have been expected at the expiration of the note. The power itself shews, that these renewals were contemplated: *the principals, may, very fairly, have calculated upon them, and may thus have anticipated a long credit for the amount for which they became responsible. But by this note, as it was not discounted, they would become bound to pay, at the end of ninety days, the amount of the note. And upon the like principle, the whole 3000 dollars might have been thrown upon them at the end of sixty days, if the agent had borrowed money, or paid debts to that amount, due to an individual. There was, therefore, much reason for specifying, that the names of the principals should be used in raising money by discount at the banks, from which, after a credit once given, a renewed credit might have been reasonably expected; whereas a note executed to an individual, must have been paid at maturity. If an authority to draw at six months, is violated by a draft at sixty days, it may with equal propriety be affirmed, that an authority to get a note discounted on accommodation at bank, is violated by obtaining a loan from, or giving a note to, an individual for goods purchased of him. Without, therefore, considering whether after having once borrowed the 3000 dollars and repaid it in part, the agent had a right again to enlarge the debt (which, to say the least, I think very doubtful) I am very clearly of opinion, that the note, in this case, was not within the scope of the authority.

We come next to inquire as to the confirmation of the agent’s act by the subsequent conduct of the defendants. The judge, very properly, left this matter to the jury, but as all the evidence in the cause is certified, and a new trial was moved for, it still recurs for examination. It is certainly true, as contended at the bar, that the subsequent assent of the principal will ratify even an unauthorized act of an agent, and that acquiescence, after notice, may be evidence of that assent. See Ward v. Evans, 6 Mod. 36, and the other cases cited 4 Bac. Abr. Master and Servant, K. p. 586. *And this is particularly true, where a loss may accrue from a delay on the part of the principal to disavow the agency; or where the transaction may turn out a profit or loss, according to circumstances, and it is therefore unreasonable in the principal; by delaying his election to be bound or discharged, to secure to himself the profit, or avoid the loss, according to the event. Prince v. Clark, 1 Barn. & Cress. 186; 8 Eng. C. L. R. 54. In this case, however, there was nothing of the kind. The transaction was one from which the defendants could derive no profit. Boss was inevitable if they were bound; and as there was no necessity, for the safety of the plaintiffs, to communicate their dissent to the act, I do not think their silence, or their seeking indemnity against possible liability (and that too from a third person), ought to have been considered as such conclusive evidence of their assent, as to justify the court in setting aside the verdict as contrary to evidence. The judgment therefore should be affirmed.

Judgment affirmed.  