The opinion of a majority of the. Court, Sheplev J. dissenting, was drawn up by
Whitman C. J.— The bond declared upon in this case purports to have been executed by Jonathan Tucker in person, and by Thomas J. Goodwin, by Amos G. Goodwin. The defendants having pleaded non est factum, objected to the introduction of the bond to the jury, till the authority of Amos G. Goodwin, to execute it in behalf of Thomas J. Goodwin was proved. No power of attorney was produced for the purpose; nor did it appear, that any effort had been made to discover or obtain one, with a view to its production on the trial; nor did it appear, that any person had ever seen or witnessed one.
*145The Judge, who presided at the trial, admitted evidence to the following effect., viz. that said Thomas, at the time when the bond was executed, was absent; but. that he had since said, on being shown a bond, resembling the one in suit, that he admitted it to be good ; and that he admitted the signature ; and said, Amos did it for him. And again, speaking of the bond in suit* that Amos signed it as his agent or attorney, and for him; and that he had authority so to sign it. Upon this evidence the bond was permitted to be read to the jury, as the bond of said Thomas.
The verdict having been returned for the plaintiff is, according to the report of the Judge, to be set aside, and a new trial granted, if the foregoing procedure was irregular, and unwarranted by the rules of law. In Stetson v. Patten & al. 2 Greenl. 358, Mr. Chief Justice Mellen, in delivering the opinion of the Court, remarked, “ that no authority need be cited to show, that when an instrument under seal is executed by attorney, the attorney must be authorized by deed, under the hand and seal of the principal.” It appeared in that case, that the indenture, then in question, had been executed by the plaintiff’s brother, acting as his attorney; he being at the time, absent from the State; and that he received it from the hands of his brother ; and three years afterwards, received a payment in part fulfilment of the stipulations contained in it, on the part of the defendants; and endorsed the same on the indenture. The Chief Justice, thereupon, further remarked, “ that with respect to these facts, they cannot amount to any thing more than a sanction and ratification, made by parol; and such ratification could not be more availing than a parol authority, given before the instrument was signed, which we have seen is of no importance.”
In Hanford v. McNair, 9 Wend. 54, Mr. Justice Sutherland, in delivering the opinion of the Court, in reference to a similar point, says, “ I do not perceive how the circumstance, that a counterpart of the agreement, executed in the same manner as the original, was delivered to McNair, and received by him without objection, avoids the difficulty. It is but *146a subsequent acknowledgment or ratification of the deed.” And in Blood v. Goodrich, ib. 68, Mr. Chief Justice Savage says, to make it the deed of Goodrich and Champion “it must be shown that Kingsbury had authority to act for them; and as he professes to act by deed, an authority from them, under their seals, is indispensable.” The Chief Justice goes on to remark, subsequently, in a manner seemingly scarcely reconcileable with his postulatum ; and says, f‘ but I should be unwilling to say that a subsequent written acknowledgment, accompanied by acts recognizing the deed as the deed of him, whose name had been used, was not proper evidence to be submitted to the jury.” And if there were such written acknowledgment, he, still, seems to conclude, that it was incumbent on the plaintiffs to have given written notice to the defendants, to produce the power of attorney; and that, upon its non-production, secondary evidence, written as it would seem, might.be given of its existence and contents.
The same case came before the. Court again, 12 ib. 525. The Chief Justice then proceeded to examine the subject anew ; and came to the conclusion, as it would seem, that any parol acknowledgment, that the instrument had been duly executed, might be submitted to the jury. And in reference to Steiglitz v. Edgenton, 1 Holt’s N. P. 141, he holds the following language ; “ the Chief Justice (Gibbs) no doubt intended to say, that no subsequent acknowledgment by parol, could supersede the necessity of an authority under seal, by virtue of which the deed was executed ; but he does not say, nor did he intend to say, that a parol acknowledgment, by the party, of the existence of an authority under seal, could not be admitted.” The language of Mr. Chief Justice Gibbs, was used in reference to a proposition to prove, that one partner, who did not execute an agreement purporting to be executed by his partner for him, had acknowledged its execution, and is as follows: —“ The authority to execute must be by deed. If' one' partner, who- did not execute, acknowledge that he gave an authority, I must presume, that it was a legal authority, and that must be under seal, and produced. One man cannot *147authorize another to execute a deed for him, but by deed.” To me it is not readily perceivable, that the Chief Justice did not mean to say, that an acknowledgment, by the party, of the existence of an authority under seal, could not be admitted. He certainly says, if it be under seal, it must be produced. Does not this imply, that an acknowledgment by the party; of its existence, would not be sufficient? He is certainly very explicit, that no acknowledgment of the party, sought to be charged, that the instrument had been duly executed, would be sufficient. And can it be that he meant, nevertheless, to admit that a party’s acknowledgment, that it had been executed under the authority of a sufficient power of attorney, would be admissible ? His language is, further, that “ no subsequent acknowledgment will do.” How this can be understood otherwise, than as a peremptory negation of the validity of an admission to either point, is not obvious, to say the least of it.
The doctrine, at the former decision of the case of Blood v. Goodrich &f al., as laid down by tiie court, can hardly be regarded as otherwise, than as a relaxation of the former rules, in reference to the admissibility of evidence to prove the existence of an authorization, under seal, to act for another. Yet, it then seemed to be necessary, that the admissions or acknowledgment should be in writing. By the last decision it seems, that any parol acknowledgment will do. These advances in relaxation of former rules may have found their inducement in a proneness to approximate the rules, in reference to agencies, authorized by deed, to those by parol or implication. Inroads upon known and established rules are not always advisable. They tend to the increase of uncertainties in the law. If it be allowable for a Court at one time to encroach a little, by the same rule, at another time, it may go a step further. When once the ancient boundaries are broken down it will become difficult to know where wo should make a stand. Innovations in the law are too frequently like inventions in the arts; but seldom to be regarded as improvements. They distract the mind, and tend more frequently to perplex*148ity and- Gonfusion, than to any substantial advantage. The ancient course has been to require the best evidence, of an authorization to act for another, to be produced. If it be to establish the authority to execute a sealed instrument, the power must be evidenced by writing under the hand and seal of the principal. Such writing must be produced, if not proved to have been lost, or in the hands of the adverse party, or otherwise inaccessible to the party required to produce it. Being proved to have once existed it is presumed to be still in existence, and should be sought for in the proper repository. If not there, but is proved to have got into the hands of the principal, he should have the legal notice to produce it. If not obtainable in either of these ways, secondary evidence may be admissible to establish it. The power, in this case, if it ever existed, should have been sought for in the hands of Amos G. Goodwin, or of the administrator of his estate. Nothing of this kind appears to have been done; and no evidence was adduced, that it had been lost, or that it was in the hands of the adverse party. If the power never existed, the execution of the deed, as to Thomas J. Goodwin, was a nullity; and the plea of non est factum, as to him, was sup-? ported. As to him, none of the legal preliminary steps were taken to authorize the reading of the bond to the jury. The verdict therefore must be set aside, and a new trial be granted.
Sheplev J.— The first objection taken to the proceecjings during the trial is, that “ the defendants objected to the sufficiency of the testimony to prove the execution of the bond by Thomas J. Goodwin, or the authority of Amos G. Goodwin to execute the same for him; but the Court admitted it.” That testimony tended to prove, that the principal had admitted, that the agent had authority from him to sign and execute the bond. One witness stated the Admission in these words. “ He said Amos had authority from him to sign the bond for him.” The law requires, that the authority tp sign and execute a sealed instrument for another should be conferred by an instrument under seal, unless the principal be present, when *149the instrument is executed. How is the fact to be proved, that one, who has acted in such case as the agent, had such authority ? The instrument may be proved by proving the handwriting of the agent and by a production and proof of the power of attorney conferring the authority. If the power of attorney cannot be produced, and there be proof of its loss; or proof that it has passed into the hands of the principal, who after notice refuses to produce it; the contents may be proved. May the authority' be proved also by the admissions or declarations of the principal ? The earlier cases were examined, and this question was fully considered, in the case of Cady v. Shepherd, 11 Pick. 400; and the decision was, that it might be so proved. In New York, after intimations of a different opinion in prior cases, the Court finally came to the same conclusion, in the case of Blood, v. Goodrich, 12 Wend. 525. It is not perceived, that these decisions violate any legal principle. Every person is presumed to know the law ; and when the principal admits, that the person who has acted as his agent in signing a sealed instrument, had authority from him to sign it, he must be considered as admitting, that such authority was communicated in a legal manner, that is by a sealed instrument ; unless it should appear from his admissions or declarations, that it was not. All the cases cannot be reconciled. But the weight of authority does not appear to be opposed to this doctrine. And it is not suited to operate unjustly upon the party making the admission. The case of Stetson v. Patten, 3 Greenl. 358, is not opposed to it,. In that case it was a fact agreed, that the agent had not any authority under seal. The only proof of authority was, that the principal had indorsed a payment of interest on the instrument executed by the agent. The objection in the present case was therefore properly overruled by the presiding Judge.