terms, or which is necessary and proper for carrying the authority expressly given into full effect. Now the power of attorney, in this case, very clearly did not in terms give to Levi authority to mortgage the real estate of his principal; still less does it in terms give him power to borrow money, and to bind his principal by a promissory note; nor does the case show, by any means, that such power was necessary and proper for carrying into effect the authority expressly given. In truth, the object of the power seems to be to give Levi authority to manage and take care of the property of his principal in the best manner, but not to involve his principal in debt, and bind him by a promissory note, and pledge his real estate as security. There is nothing in the case to show that it was necessary for Levi, in the execution of any authority given him, to raise money for his principal by note and mortgage; or even that the money raised was in fact for his principal. In the absence of all evidence that the money was in fact obtained for the principal, or that it was necessary for the execution of the authority given, there being no express authority to make a mortgage or negotiable note, there is an entire failure to show that Levi had any power to make the note and mortgage; and the title of the plaintiff, being derived under that mortgage, wholly fails.

The plaintiff, having no valid title, and no right to exclusive possession, according to the agreement of parties, judgment must be rendered for the defendants.

WHETHER ATTORNEY EXECUTING INSTRUMENT SHOULD SIGN HIS OWN NAME as attorney in addition to that of the principal, in order to make it valid, or whether it is sufficient to sign the principal's name alone, is a point upon which the authorities are not agreed. Mr. Wharton adopts the doctrine, and quotes with approval the reasoning, of the principal case on this point: Wharton on Agency, sec. 284. In a note to Story on Agency, on the other hand, it is stated that it can not positively be said upon the authorities to be absolutely necessary that an instrument executed by attorney should appear on its face to have been so executed: Story on Agency, sec. 147, note. Certainly, the better course for the agent or attorney in such a case is to sign the principal's name, together with his own as agent, thus: "A. B., by C. D., his attorney;" since by so doing he gives notice of the fact of his agency, and puts those who may have occasion to ascertain the validity of the instrument upon inquiry in the proper quarter to ascertain the extent of his authority. In the case of a conveyance of land, for instance, an attorney or searcher of records looking up the title, if he should find the deed apparently executed by the grantor in person, might neglect to search for an authority under seal to the person who as attorney actually signed the grantor's name. But notwithstanding the obvious utility of the mode of execution above indicated, the weight of authority would seem to be in favor of the doctrine that an agent or attorney may execute an instrument, either under seal or without

seal, by signing the principal's name alone, especially where the fact that it is executed by attorney appears in the body of the instrument. It was so held in Devinney v. Reynolds, 1 Watts & S. 328, in the case of a deed, where the fact of its being executed by attorney was stated in the body of the deed. In Forsyth v. Day, 41 Me. 391, it was laid down in general terms that an agent authorized to execute an instrument might do so by signing the prin cipal's name as if it were his own. Rice, J., delivering the opinion of the court in that case, says: "No case, I apprehend, can be found in the books which will sustain the rule so broadly laid down by the learned judge in the case of Wood v. Goodridge, cited above. Nor can the doctrine be sustained on principle. It is difficult to perceive any sound reason why, if one man may authorize another to act for him and bind him, he may not authorize him thus to act for him and bind him in one name as well as in another. As matter of convenience in preserving testimony, it may be well that the names of all parties who are in any way connected with a written instrument should appear upon the instruments themselves. But the fact that the name of the agent by whom the signature of the principal is affixed to an instrument appears upon the instrument itself, neither proves nor has any tendency to prove the authority of such agent. That must be established aliunde, whether his name appears as agent or whether he simply places the name of his principal to the instrument to be executed. More, even: the authorities clearly show that one man may be bound by the use of his name by another, simply from an implied authority." In Berkey v. Judd, 22 Minn. 287, a deed was executed by several grantors, one of them signing his own name and those of the other grantors as their attorney. The body of the deed showed that the execution as to the other grantors was by attorney. The attorney signed their names and connected them all together by a bracket, writing the words "by their attorney in fact" along the bracket, but not adding his name as such attorney. This was held a valid execution, and the court said: “As respects the execution of a deed by an attorney in fact, although it is usual and better for him to sign the name of his principal, and to add thereto his own signature, with proper words indicating that the act is done by him as such attorney, yet it is not in all cases necessary that he should so append his own name. When the deed on its face purports to be the indenture of the principal, made by his attorney in fact, therein designated by name, it may be properly executed by such attorney by his subscribing and affixing thereto the name and seal of his principal alone." But in Meagher v. Thompson, 49 Cal. 189, where one of two grantors was attorney for the other, and executed it for both, it was held that his own name must be signed twice, once for himself and once as attorney for his co-grantor.

With respect to instruments other than deeds, it is well settled than an execution by attorney in the principal's name alone is sufficient. So in case of a contract, where the agent's act was subsequently ratified by the principal, and the other party then went on and performed his part: Merrifield v. Parrott, 11 Cush. 591, citing the principal case, and conceding that the principal might not have been bound before he ratified the signing, and permitted the other party to act upon the contract as valid. The making, indorsement, or acceptance of a negotiable instrument by an agent may undoubtedly be in the principal's name alone, leaving the authority to be shown by parol, though it is better that the agency should appear upon the instrument: Ch. Bills, 13th Am. ed., 444; 1 Daniel's Neg. Inst., secs. 298, 299; Haven v. Hobbs, 18 Am. Dec. 678; Morse v. Green, 38 Id. 471; First National Bank v. Gay, 63 Mo. 33, disapproving the principal case; Mechanics' Bank v. Bank of Colum

bia, 5 Wheat. 326. An authority to sign the principal's name may be implied in such a case from a recognition and adoption of other notes or acceptances similarly signed: Barber v. Gingell, 3 Esp. 60; Watkins v. Vince, 2 Stark. 368; Llewellyn v. Winckworth, 13 Mee. & W. 598. So where the party signing had in fact been in the habit of forging the defendant's signature and the defendant had taken up instruments so signed: Weed v. Carpenter, 4 Wend. 219. And where the name is so signed without the authority of the princi. pal, he will be bound by a subsequent ratification of it: Hefner v. Vandola hah, 62 Ill. 483; Paul v. Berry, 78 Id. 158; Brigham v. Peters, 1 Gray, 139; Cravens v. Gillilan, 63 Mo. 28. So a signing of the principal's name by a third person in the agent's presence and by his direction, adding the name of the third person, and not that of the agent, is good: Weaver v. Carnall, 35 Ark. 198; S. C., 37 Am. Rep. 22. Certainly the signing of the principal's name by another, in his presence and by his direction, by a third person, to a deed or other instrument, is good, whether the name of the party signing is added or not: Gardner v. Gardner, ante, 740; Mutual Benefit Life Ins. Co. v. Brown, 30 N. J. Eq. 193; Lovejoy v. Richardson, 68 Me. 386.

DONOHUE V. WOODBURY.

[6 CUSHING, 148.]

ACCEPTANCE, WITHOUT VERBAL ASSENT, OF SUM EXPRESSLY TENDERED IN FULL payment of an unliquidated demand, is an assent de facto, and binding, though, through inattention, the terms of the tender were not heard, if by ordinary care they might have been heard.

PAYMENT OF PART OF CLAIM, THOUGH TENDERED IN SATISFACTION, is no defense to an action for the balance, where the claim is liquidated; oth wise where it is unliquidated.

ASSUMPSIT, brought originally before a justice, and thence appealed to the common pleas, to recover an alleged balance of a claim for services. A previous action for the entire claim had been commenced and withdrawn, and afterwards the defendant's attorney tendered a certain sum, less than the amount claimed, to the plaintiff's attorney, saying that it was "for all that Woodbury was owing Donohue." The plaintiff's attorney took the money and said nothing in reply, and afterwards testified that he did not hear the words of the tender. The presiding judge ruled that if a sum of money was tendered and accepted as payment in full, the demand being unliquidated, it was a good defense to an action for the balance, and that even though the plaintiff's attorney, through carelessness and inattention, failed to hear the words of the offer, it was nevertheless a binding acceptance, if, with ordinary care, he might have heard the words. Verdict for the defendant; exceptions by the plaintiff. C. D. Bowman, for the plaintiff.

E Washburn, for the defendant.

By Court, SHAW, C. J. This is an action to recover a balance alleged to be due to the plaintiff for labor and services. The only question on the exceptions is, whether the directions to the jury were correct; and the court are of opinion that they were. If an offer of money is made to one, upon certain terms and conditions, and the party to whom it is offered takes the money, though without words of assent, the acceptance is an assent de facto, and he is bound by it: Reed v. Boardman, 20 Pick. 441. This is quite distinguishable from a tender, not accepted, in discharge of any debt or debts, which must, in general, be absolute and untrammeled with any condition. It is also quite distinguishable from an accord and satisfaction, where something other than money is offered on one side and received on the other in satisfaction of some debt or duty.

The rule is well settled, that the payment of a part of a debt, though offered in satisfaction, is not a payment of the whole, and is no defense to an action for the balance. But that rule applies strictly to a case of debt, or a claim for a liquidated amount. It does not apply to an unliquidated claim for damages. Originally, the present was a claim for services, and was for unliquidated damages. Some services were admitted to have been rendered, but the amount was denied; and an offer was made of a less sum than that claimed. The case was open to two inquiries: first, as to the time of service; and second, as to the rate. The offer, therefore, of thirty-five dollars was both to liquidate the claim and pay that sum in satisfaction; the acceptance of the offer fixed and liquidated the sum, in the nature of an insimul computassent, and eo instanti discharged it: Tuttle v. Tuttle, 12 Met. 551, 554 [46 Am. Dec. 701].

In regard to the other point, it appears to us that the direction was right. Money could scarcely be paid by one to another without some words being spoken or some purpose expressed. It was the duty of the agent, before receiving the money, to know what was said, and what was the purpose expressed; and if the words were so spoken that, with ordinary care, he might have heard them, and through carelessness or inattention he failed to do so, the acceptance was binding, as an assent to the terms.

Exceptions overruled.

PART PAYMENT OF LIQUIDATED DEBT IS NO SATISFACTION, though accepted: See Harrison v. Close, 3 Am. Dec. 444; Russell v. Lytle, 22 Id. 537; Geiser v. Kershner, 23 Id. 566; Shaw v. Clark, 27 Id. 578; Reynolds v. French,

30 Id. 456. But see, contra, Brooks v. White, 37 Id. 95. Much less is an agreement to pay and accept less than the sum due a satisfaction: Seymour v. Minturn, 8 Id. 380; Geiser v. Kershner, 23 Id. 566; Daniels v. Hatch, 47 Id. 169. For cases holding that the acceptance of the note of a third person as payment or security for part of a debt in full satisfaction is a good bar to an action for the balance, see Boyd v. Hitchcock, 11 Id. 247; Le Page v. McCrea, 19 Id. 469; Brooks v. White, 37 Id. 95. Payment and acceptance of a certain sum in full satisfaction is a good bar to an action for general unliquidated damages: Stockton v. Frey, 45 Id. 138. The principal case is approved on the point that where there is an unliquidated and disputed demand or mutual demands which are unliquidated or in dispute, and upon a settlement a certain sum is paid and accepted as full satisfaction, it is a good bar to any subsequent action for any alleged balance, in Alvord v. Marsh, 12 Allen, 606; Simmons v. Almy, 103 Mass. 36. Not so where the demand or mutual demands are liquidated: Nelson v. Weeks, 111 Id. 225. In such a case a part payment and receipt in full do not preclude further inquiry into the legal. ity of the items of a demand: Walan v. Kerby, 99 Id. 3, citing the principal

case.

WAY V. SPERRY.

[6 CUSHING, 238.]

STATUTE OF LIMITATIONS RUNS ON NOTE MADE WITHOUT THE STATE by a nonresident afterwards removing within the state, only from the removal, though it was barred before removal by the statute of the state in which it was made.

DISTINCT AND UNEQUIVOCAL PROMISE TO PAY DEBT BARRED BY DISCHARGE in bankruptcy, or a conditional promise, where the condition is fulfilled, is binding.

PROMISE TO PAY DEBT DISCHARGED BY BANKRUPTCY Need not be WRITTEN nor founded upon a new consideration.

NEGOTIABILITY OF NOTE IS REVIVED BY NEW PROMISE AFTER DISCHARGE in bankruptcy, and the new promise inures to the benefit of a subsequent indorsee.

NEW PROMISE BY DISCHARGED BANKRUPT IS MERE WAIVER of the dis. charge as a defense, and the original debt is the substantive cause of action; so of a new promise to pay an outlawed debt, or by an infant after maturity.

ASSUMPSIT to recover the amount of certain notes. Under a plea of the general issue the defendant relied on the statute of limitations as to one of the notes, and a discharge in bankruptcy. The notes were all made in New Hampshire, where the defendant then resided, and more than six years had run thereon before the defendant removed to Massachusetts, such removal having been less than six years before action brought. There was evidence that, after the discharge in bankruptcy, the defendant on several occasions verbally promised the original payee to pay the notes as soon as he possibly could. There was evidence also