
    IN HOUSTON SUPERIOR COURT.
    Central Bank vs. H. Kendrick and his Securities.
    Where th« stn-tms required 
      >ond with secu- \ t i bt ta en jr tne rent of a i In i igo, ir ! m cm ssG-v note was taken-suit was u i i led u*> n n n 3 t, mJ ihe n fit i pic t Ld tnat the note was ' i h < dcv-e, the st v v 1 K h rc-i uJ t bond nad not been ( npbed with, Tne plea was overruled.-A motion was then made for a new trial on the ground that the court erred in overruling the p!ea, which motion was refused.
   TEE facts m 1:11? «¡Re c.£ P,c fi.dleW ■ : - A" the third section i i ,e 99,} U >' '* "is Cl'M t! ' subject of f v oíe mthij-v 15 t'i ■ b’r'i'Nt i t ,f ,! j, n nont ¡I I i ‘.it. i s j i ' 11 <1 * k i> i >1 • t (! C . ’ 1 Ml'.fJ'V i,. UK' of 1 .1 due iu i ¡ii!'r , S to said tie Bank, \o, Í hot iav- \ tli 'cqniics í a 1 .i \eidii i u n io. a n w u b of the act N !-?J, (j/n-r V"' the Miron En i ^ - rized t > f< lit tk *- >j ' ' . ' ,t nk‘ ' n •“ bidder : d n • b) i I > 1 l i Í to tlu ria.e <n A ¡ i Tie la 1 i (ill lilt' ' 1 " ' areoid iil , iu : ' — ’ i I highe t in id . ' i » note v> >tk ''i'm 11 ‘ tfie ;t'-t ot 1 T i . , .i the ritat > «oí \ ‘ i , > o 'i of s u Í at t tk. n n • c > ' i. Bauk. ni a- f on \ - ■ ¡ i 1 anti the t' uoihI mi pk ! Id i 1 .e 1 * ' ing b°"n tak i in c ,, . > ’k t u a bond. Thi> ¡ik-a v, ' - >' *¡u' 1 l>> t, ' < rendewd for the pluuitTk, 1 * I», , n_r> ; an trial ivas made, upon the ground of error in tFc court, in overruling the plea. A rule nisi was granted, an 1 the question to be determined is, shall the plea prevail ? f-Iy opinion is, that it ought not to be sustained. The taking of a promissory note, although not in conformity with the mere letter. was certainly not violative of the spirit and object oí the law. It is hardly necessary to remark that the bond intended by the statute was of course to be a mere money bond, viz, a written engagement under the hands and seals of the obligor, and his securities, binding themselves to pay errini;i stun of money at a certain time. Now as to the e-¡d in vim.v, and the obligations incurred, there is no difference b'-t'vccn such a bond and a promissory note, executed by the same partieg, and for the same sum, and payable at the saira tinte.

Where there has been a substantial compliance with the law, the want of a rigid comfor-i dty with the mere letter of a statute requiring a bond to be token, is not a tVal objection to the bond:

But if the statute prescribes the form and ■ undition of the bond, and declares ail bonds taken in any omer form void, the bund prescribed should be strictly pur<* sued.

The difference is only in the form of the undet taking ; the substance is the same in each case. A prnmN'orv note is not exempt from the operation of the statute of limitation - for so long a period as a bond — but in that respect, (if the maxim “nullum tempus occurrit ref'' would not apply in a case of this kind) the taking of a note instead of a b >ud was beneficial to the defendants, and furnishes no ground of legdunatc objection on their part. For every purpose contemplated by the legislature, the taking of a promissory note r, as a substantial, though not a literal compliance with the statute. For that part of the statute which designate? a bond as the security to be taken, I regard as directory to the commissioners, but not as absolutely prohibitory of every other form of security. On the part of the defendants an attempt has been made to analogize the present cáse to cases « bid; have arisen under the statute 28 Hen. 8. c. 9. iu relation to bail bonds. As to bail bonds it is true the courts have frequently adjudicated. that any variance from the form and condition required by statute is fatal; and for the obvious reason that the statute is not only imperative as to the form and condition of the security, but expressly enacts that every security other than that prescribed by the statute shall be void. 10 Co. 101. 7 T. Rep. 109. 1 T. Rep. 418. 4 East, 568. 1 Archbold’s Practice, 74. Besides, the principal object of the statute was to prevent the extortion, and oppressive exactions to which defendants were often subjected by sheriffs, colore officii, previous to the statute. There is no analogy then between the st. 23 H. 6. and the act of 1824 under which the commissioners acted. They are equally dissimilar in their objects and terms. One was enacted to correct abuses, and prescribes the form and requisites of a bail security, at the same time declaring every obligation different therefrom to be void. The object of the other was, to invest certain commissioners with authority to rent a certain portion of the public property. It directs them to take bond and security from the lessee for the payment of the rent, but does not inhibit them from taking any other equivalent security; nor does it declare that any security other than a bond, shall be void. There are essential points of difference between the two statutes. The statute of New York, on the subject of bail bonds, was copied from the English statute. Hence, the remarks made concerning the latter, will apply with equal force to the former, and to the cases which have occurred under it, some of which have been cited on the part of the defendants. 8 John. Rep. 76. 7 lb, 157. 19 lb. 223.

That there is a well founded distinction between an imperative requisition of a statute, and a clause merely directory to an officer, is illustrated even in the case of a bail bond. Thus a sheriff may take a bond with one security only, notwithstanding the statute mentions securities in the plural number. 2 Saunders, 61 c. 1 Archb. Prac. 75. Again : the st. 12 Geo. 1. c. 29, enacts that the sheriff shall take bail for the sum endorsed on the writ and no more, yet if the bond be taken for more, it will not avoid it if no intention to oppress the defendant appear. 2 Wils. 60. 1 Burr. 331. 1 Archb. Prac. 74. The same distinction is supported in the case of Speake et al. v. U. States, 9 Crunch, 28, in which the court held “thata bond taken by virtue of the first section of the embargo law of January, 1808, was not void, although taken after the vessel had sailed, by consent of parties, the statute as to the time of taking the bond was merely directory to the collector.” On the subject of statutory bonds generally, I am aware that there are dicta, and some decisions, which go the extent, that the insertion of conditions not authorized by law, renders such bonds void in toto. 3 Wash. C. C. Rep. 10. This point however does not occur in the present case. If it did, it might be well worthy of consideration, whether it would not better comport with reason and justice that the unauthorized conditions only, should be held void. 1 Gallis. 86. But without engaging in that inquiry now, I will remark that the present case, does not fall within the reason of those authorities, in which such bonds are held to be void, as no onerous or unauthorized conditions have been exacted from the defendants. The obligation incurred by them under their contract, is only co-extensive with that which the legislature intended to impose. The departure from the statute, consists in the form, not in the substance of the contract. Where there has been a substantial compliance with the law, the want of a rigid conformity with the mere letter of a statute requiring a bond to be taken, is not a fatal objection to the bond. In the case of the U. States v. Morgan et al. 3 Wash. C. C. Rep. 10. the court held, that although the second section of the embargo law of December, 1807, directs the bond which is therein required, to be given to the collector, yet it is valid if taken to the United ¡States, (see also U. States vs. Smith et al. 2 Hall’s American Law Journal, 458.)

The case of Cole et al. v. Gower and Peggott, 6 East, 110, has been cited on the part of the defendant. In that case, certain parish officers had taken from the putative father of a bastard child, a promissory note for an absolute sum, whereas by the st. 6 Geo. 2 c. 31, they were only authorized to take security from him to indemnify the parish. Upon a suit brought upon the note, the defendants pleaded a tender of a sum less than the note called for, as the amount of the charge actually sustained by the parish. The court held that the parish officers were not authorized to take a note for an absolute sum, and that the plaintiffs could not recover beyond the amount tendered. At the first blush this case seems to be somewhat in point, but it is really not so. The taking of a note for an absolute sum, was not only contrary to the letter, but to the whole spirit of the law. By the statute, the liability of the putative lather was limited to the mere indemnity of the parish; but by taking a note for an absolute sum, the statutory measure of his liability was wholly disregarded, and an arbitrary one substituted. On the one hand if the amount of the note exceeded the actual charge incurred by the parish, then more was exacted from the defendant than the law required ; on the other hand, if the amount of the note was less than the actual charge, then the parish was not indemnified, and the object of the law was defeated. The proceeding too as was justly observed by the court, was contrary to public policy. Grose, J. said “ that the parish officers could not convert a power given to them for the mere purpose of indemnity into a matter of bargain and speculation upon the life and death of the child, thereby making it the interest of the parish to get rid of the child as soon as possible.” To show the want of analogy between this case in East, ond the present, it is only necessary to observe, th it the commissioners of the Macon Bridge, in t,iking a note, did not vary in the least degree the legal measuie of the def mdant’s liability, and that the transaction was in no wise incousMeut with public policy.

Authorities relating to mercantile and commercial agencies have been adduced to show that an agent acfin» under a particular, and not a general authority, cannot bind Ins principal beyond the extent of the authority '¡ranted. Pa ley on Agency, 139. 2 John. Rep. 48. 3 T. 11. 757. The doctrine is admitted, but the present case docs not fall within its limits. If the defendants were 'principals, seeking to avoid some act of their agent, upon the ground that he had transcended his power, then the authorities cited would not be inapplicable. The commissioners however by taking a promissory note, did not subject the State, whose agents they were, to any unauthorized liability. If this were a case of private commercial agency, another principle no less true than that which has been already stated would apply. It is this : although an agent cannot bind his principal by an act exceeding the agent’s authority, the want of authority may be supplied by a subsequent express or implied ratification of the act by the principal, “ omnis ratihabitio relrotrahitur et mandato priori ceqiiipa-ratur1 Bos. & Pul. 316. 13 John. 367. 2 John Cas. 424. 1 Livermore on Agency, 44, In this instance, the note taken by the commissioners was accepted by the State through its proper public functionary, and under the authority of an act of the legislature, it has been transferred ami delivered to the plaintiffs asan evidence of debt due to the díate. Similar acts of'adoption in the case of a private mercantile agency would cure any defect of authority on the part of the agent. I do not conceive it to be wce-sar.' to inri-t upon the application of this principle to the pi- M-nt wue, but advert to it to show that the defendants can derive no aid from the law of commercial agencies. As a general proposition it is not denied that a special or a particular authority must be strictly pursued. But in the several cases cited on the part of the defendants, wherein the principle has been practically applied, it will be found that the rights, duties, obligations, or liabilities, which were attempted to be created by an undue execution of a limited authority, were in some degree variant from those for the creation of which the power was given. Hence the decision, that such an execution of a limited power is not valid. But from the manner in which the commissioners of the Macon Bridge executed the authority delegated to them, no such variance results. Under the promissory note which they accepted, the right which thereby accrued to the State, and the obligation and liability incurred by the makers weio exactly commensurate with those which it v,as the object of the statute to ovate; to wit, a right on the part of tiie State to receive, and a corresponding obligation on the part ol ¡it • 1 nm e of the bridge and his securities, to pay, a certain sum of money at a specified period.

Reference has been made by defendant's counsel to a class of cases which have arisen under special statutory powers affecting the properly and vested rights of individuals without their assent. In all such cases it is admitted that a strict pursuance of the authority delegated is indispensable. 1 Burr. 877. Cowp. 26. 7 T. II. 363. 3 John. Cas. 107. Thus it has been frequently,determined that a collector of taxes or other officer empowered in particular cases to sell land for taxes, must strictly pursue the statutory directions, in every matter which the law required to precede the exercise of the power delegated to him : and that no title is conveyed by a sale when any pre-requisite act has been omitted. 4 Wheat. 77. 0 ib. lib. d Co such, it) I. 9 lb. 64. It is an obvious dictaffi of jtwhcc, 11., t no nan shall be deprived of his propettj, again it his null, - wept under the circumstances defined, and m the ma uun pt< -cribed by law. But these decisions do not much the cc-e under consideration. The au-thouty of tlx commwMo im of the Macon Bridge was not a power nflc ting compi Uo.ilv the private interests of individuals. Tlx dtbndinu u voluntary parties to the instrument hoc, sought to 1 o mvuffi. ¡led.

rlhe do< tune of po'> is In wliieli estates are limited and settlid, has b't>;, i. Itned to in counsel. 1 T. II. 707. Wil-lc>, 1 ’> lull <i ctan hour u-r has but little application to a <*. 1 í i ta > p.. ■ < ut. ffi ti-.** case of Taylor v. Horde', d id.. i iio. 1 *.u, I oi hiioiield doubtless laid down the comet i "’< i11 i 1 non to i> e conRiuetion of such powers. '■ "h.> due lit <a ihc pi. >-oo gave the power, ought to govern rtaiy c >i ii’cíion. n“ i > whom it is given has a right to eui-n .ffi mil ewe m -t : they over wnose estate it is adven ha>° a offit t • o t ¡¡ -'‘ad not be exceeded ; the condition ‘••nail not be e\<¡.|t d ; >t ‘hah be strictly pursued in form <ixl sebx.E’fi h he mu-on tim such powers are to be stneffi pm-no h is that ill o i,(-'of iv mffirler-men or parties kuig .tveiciou.dy m.eif i- in the estate, are connected ». “ill, a>xi a if cte.l In tí e e “mention of such powers, a reason wholly foiciip, to the ca-e be foie the court.

Finally, the note was g:\on ffir a valuable consideration,— it was vohmtanly ext < med 1 y the defendants,- — it created no fight in the btate. and lmpr- •d no obligation upon the defendants beyond the purview of the statute ; but the right on the one hand, and the correLltvc obligation on the other are the sámeos would have arisen under the security mentioned in the statute I hold, therefore, that the commissioners, sub stantially executed their power, and that the note is not void.

Rule nisi for a new trial discharged, and execution ordered to proceed. 
      
       See ante, p. %%,
      
     
      
       Note. — This case was submitted to the convention of Judges in November, 1830s by Judge Strong. The decision which he made in the case was confirmed by a majority of the Judges then present. Judge Lamar reduced his opinion to writing, of which the above is a copy, and it was entered on the minutes of the court, with the final order in the case. It may therefore be considered as having the sanction of a majority of the convention.
     