
    [Sunbury,
    July 5, 1826.]
    GORDON against BULKELEY.
    IN ERROR.
    One who hag only a parol authority for the purpose, cannot bind his principal by affixing, in his absence, his name and seal to a bond.
    Writ of error to the Court of Common Pleas of Tioga county, in an action of debt brought by Israel Bulkeley, the defendant in error, against Groves Gordon, the plaintiff in error, upon a bond, purporting to have been given by John Gordon and the said Groves Gordon, to the said Israel Bulkeley, constable of Tioga township, in the county of Tioga, for one hundred and fifty dollars, conditioned that the said John Gordon should appear at the next Court of Common Pleas of Tioga county, to abide the final decision of the said court, &c., and to comply with all things required by law to procure his discharge, under the acts of assembly for the relief of insolvent debtors. The bond was. signed and sealed by John Gordon, and acknowledged by him alone before a judge of the court; and it appeared that the name and seal of Groves Gordon were affixed in his absence, in pursuance of a parol authority from the said Groves Gordon, the surety and co-obligor in the •bond.
    The defendant pleaded, non esf factum; and, upon this issue, the court below was of opinion, that the bond was well executed by the said Groves Gordon.
    
    
      Ellis and Lewis, for the plaintiff in error,
    cited, Cooper v. Rankin, 5 Binn. 615. Co. Litt. 48, b. ' 1 Bac. Jib. 199, 287. Bellas v. Hayes, 5 Berg. & Rawle, 437. Big. Dig. Mass. Rep. 28, No. 1, 4. *
    
      Williston, contra,
    cited, Stahl v. Berger, 10 Serg. & Rawle, 170. .
    
   The opinion of the court was delivered by

Rogers, J.

The single question, in this case, is whether a bond can be executed in the absence of one of the obligors, by the other signing the name of the absent obligee, and affixing his seal, having but a parol authority to do so ?

Public convenience requires, that one man should have power to authorize another to execute a contract for him, as the business may be frequently as well performed by attorney, as in person. But it is a general rule, that such delegation, or authority, must be by deed, that it may appear that the attorney or substitute had' a commission or power to represent the party; and, further, that it may appear that the authority was well pursued. 1 Bac. Ab. 199. Co. Litt. 48, b.

But this is said to be different from a' letter of attorney, anfi, in some respects, it may be distinguished from the cases cited; but there is no difference in principle. Great abuse might arise, if one man, and particularly an insolvent debtor,' should have it in his power to bind another in his absence by so solemn an instrument as a deed, with a mere parol authority. In such a case, society would be too much exposed to the designs of the artful and unprincipled, supported, as they would frequently be, by the testimony of confederated and perjured witnesses. The distinction has been taken between a sealed and ári unsealed instrument, between a bond and a promissory note. No man can bind another by deed, unless he has been authorized by deed to do it; and if a person, however authorized, if not by an instrument under seal, make and execute a deed, expressed to be in behalf of his principal, the principal is not bound by the deed, although he who made it is bound. Banorgee v. Hovey et al., 5 Mass. Rep. 11. Hatch v. Smith, 5 Mass. Rep. 52.

A written or parol authority is sufficient to authorize a person to make a simple contract, as agent or attorney, and to bind his principal to the performance of it, without a formal letter of attorney under seal. Stackpole v. Arnold, 11 Mass. Rep. 27. Long v. Colburn, 11 Mass. Rep. 97. The President, &c. of Northampton Bank v. Pepoon, 11 Mass. Rep. 288.

The distinction then appears to be clearly takerr, between a contract under seal and a simple contract, and I feel no disposition to extend the law, believing that public policy requires that the operation of a parol authority should be rather restricted than enlarged. The case we have now under consideration is an exceedingly strong one; an insolvent debtor, attempting to bind another as his surety by bond, in the absence of the surety, and with but mere parol authority to do so. As then' Groves Gordon was not present when the bond was executed, and John Gordon had no written authority to execute the bond, I am of opinion, that, although it is the bond of John Gordon, yet it is not the bond of Groves Gordon, the surety. 9 Johns. 285.

Judgment reversed, and a venire facias de novo awarded.  