1. A paper-writing, purporting to be a bond, signed and sealed by a party, in which a blank is left for the sum to be afterwards inserted, which blank is afterwards filled up and the paper delivered, not in the presence of the party signing nor by any person having authority from him under seal, is not the bond of the party so signing and sealing.
2. He who attempts to execute or consummate a deed, whether for money or other property, as agent for another, must be armed with an authority under seal.
3. In every good bond there must be an obligor and an obligee, and a sum in which the former is bound.
4. Before one partner or his representative can sue another partner at law, the settlement of the firm must be complete and a balance struck.
DANIEL, J.
As to the first count. A bond is the acknowledgment (302) of a debt under seal, the debt being therein particularly specified. In every good bond there must be an obligor and an obligee, and a sum in which the former is bound. Shep. Touch., 56; Com. Dig. Obligation A; Hurleston, 2. In New York ex parte Therwin, 8 Cowen, 118, and some other American cases, the nisi prius decision before Lord Mansfield of Traxira v. Evans, 1 Anst., 229, in nota has been followed. That case was where a party executed a bond with blank spaces for the name and sum, and sent an agent, without a power of attorney under seal, to raise money on it, the agent accordingly filled up the blanks with the sum and the obligee's name.[,] and delivered the bond to him. On the plea of non est factum the bond was considered well executed. But Traxira v. Evans has been by this Court twice overruled, as attempting to establish a distinction in the mode of executing deeds by attorney, where the object was to raise or secure money, and when it was to operate as a conveyance; the first, by a power of attorney not sealed, the other with a power of attorney under seal. The notion with us has always been, what we learned from Co. Lit., 52 (a), and the Touchstone, 57, that he who executes a deed as agent for another, be it for money or other property, must be armed with an authority under seal. McKee v. Hicks, 13 N.C. 379; Davenport v. Speight, 19 N.C. 381. The insertion of the sum in the blank space was intended to consummate the deed; it was done without legal authority, and the instrument is void as a bond.
As to the second count. Before one partner or his representative can sue another partner at law, the settlement of the firm must be complete and a balance struck. Colyer on Part., 152. Fromand v. Coapland, 2 Bing., 170.
We see no error in the opinion of the Court, on either of the counts, and the judgment must be
PER CURIAM. Affirmed.
Cited: Phelps v. Call, 29 N.C. 264; Blacknall v. Parish, 59 N.C. 72; Love v. Rhyne, 86 N.C. 578; Sandlin v. Ward, 94 N.C. 497; Humphreys v. Finch, 97 N.C. 307; Newby v. Harrell, 99 N.C. 156; Cadell v. Allen, Ib., 545; Rollins v. Ebbs, 137 N.C. 358, 359; S. c. 138 N.C. 149.
(303)