p. 506presented his authority to execute the bond to the justices 0£ the Qourt below; but it appeared to the C. P. that he had a written authority for that purpose, when the bond wag executed, which was there exhibited on the motion, and proved. The O. P. quashed the appeal, and thereupon Van Hoesen’s counsel offered to file and did file the bond with the clerk; but the Court held this insufficient.
Platt cited Laws, sess. 47, ch. 238, s. 36, 37.
He contended that the bond was well executed; it was enough that the authorization was proved when the fact of execution was contested. It need not even be in writing. This is according to the principles of the common law. The statute is silent. A power of attorney to execute a mortgage need not be recorded. (Wilson v. Troup, 2 Cowen’s Rep. 195.) This is upon the principle, that the power to execute is no part of the deed.D. B. Tallmadge and E. Williams, contra.
If the appeal was not prosecuted according to law, it was the right, and the duty of the C. P. to quash it. The approbation which the justices are authorized to endorse on the bond, relates merely to the sufficiency of the surety. A proper bond must be executed, according to the statute cited, within ten days after the judgment rendered; and unless this be done, the appeal cannot be received. It must be a perfect bond within the ten days. Is a bond given by an attorney, but not accompanied by the power to execute it, sufficient? All bonds cannot be given by attorney. Where there is a judgment, and the execution is to be prevented, the law may very properly demand a signing in person. The sheriff should see this done in the case of a limit bond; and a bond to prosecute a writ of error must be given in person. The act expressly authorizes the notice of the appeal to be signed by the party, or his attorney, but when speaking of the bond, there is no such alternative. This language implies the distinction for which we contend. May it, as the gentlemen contends, be one half in writing, and the other by parol? Is a man to be driven round the country to search both for the attorney who executes, and the witnesses, to
p. 507prove his parol authority ? It should, at any rate, have been in writing, and actually filed, before the Court could entertain the appeal. It was an integral part of the bond; nay, the vital principle of its existence. The party could never enforce it, without the use of the power, which should be furnished in the first instance, without driving the party to his motion, in order to obtain it. In other cases, the attorney is bound to show his power in the most full and distinct manner. The onus lies with him; and if he fails to do this, he is personally liable. ( White v. Skinner, 13 John. Rep. 307 .) But,The Court were clear that the motion must be granted; andsaid, the statute speaks of a bond; but whether this be executed in person or by attorney, it is the same thing. Indeed, there are many cases where the party cannot execute in person, as in case of sickness or necessary absence ; and the statute would never impose the strictness contended for, without excepting such cases. Yet there is no exception. Requiring the party to execute the bond in person, would in various cases, work an absolute deprivation of right. It is enough, that the bond was, in point of fact, valid in its creation. To be sure, it was reasonablé in the Court below, to require that the authority should be filed. ■ On its production, and being proved, they might have compelled the party to file it, as one of the papers relating to the motion before them. They should have done so, and retained the cause. It was afterwards filed, and still remains on file. The statute is clearly satisfied; and the motion should be granted.
Motion granted.