Bowen vs. Mead. his signature appear, binding himself individually, and as a member of both firms? If the note had been given for a debt of either firm, Jesse Cram would have been as effectually bound by adding the sig natures of these firms as by affixing his own signature. Again, when the note was presented to Mead & Co. for their signature, the names of the other makers were affixed to it, and they had the same opportunity of knowing that each of these signatures were in the handwriting of Jesse. Cram, as had the agent of the plaintiffs. The means of information upon both the facts just adverted to were as accessible to Mead & Co. as to the plaintiffs. The former were as much interested to inquire into the authority of Cram to execute the note in the name of the firms of which he was a member, as were the plaintiffs. If the authority *did not exist, then [436*] Mead & Co, could not, as against these firms, enforce contributions; and the plaintiffs, for a like reason, would lose the benefit of the security which they supposed they had obtained. This circumstance would, in the absence of other proof to the contrary, repel the presumption that any fraud was meditated by the plaintiffs. They are no more responsible to Mead & Co. for any excess of authority on the part of Jesse Cram than they would be for the solvency of their cosureties, had there been no excess of authority, and their liability to contribute had been established by a judgment at law. It was the duty of Mead & Co., before giving credit and character to a note which was to pass into the hands of a third party, to ascertain, if they desired so to do, whether Jesse Cram had exceeded his powers as a member of the firms of Cram & Co. and Wilcox & Co. Not having done so, they cannot now, in law or justice, be permitted to shield themselves from a responsibility voluntarily incurred, by insisting that a fact, of which they had no knowledge, should have been communicated by the plaintiffs, who, for aught that appears, never saw the note until its execution by the defendants. The wrong, whether intentioual or not, growing out of the illegal Bowen vs. Mead. act of Jesse Cram, ought not to be visited upon the plaintiffs, проп to whom no fraud or other misconduct in the transaction can be fairly imputed. We have been referred to Leaf et al. v. Gibbs, 19 Eng. C. L. 475, as an authority to show that under the facts in this case, the plaintiff's are not entitled to recover. I have examined the case, and am unable to trace any analogy between it and the one before us. It is there held that if a person signs a promissory note, on a representation that others are to join, and one afterwards refuses to sign, the payees cannot recover in an action on the note against the person who signed it, unless such person, knowing the facts, and being aware of his rights, had consented to waive his objection. The distinction between the two cases may be gathered from the charge of Chief Justice Tindal to the jury. He said, that "from the evidence of the plaintiffs' witnesses, that the defendant was told that his mother was to join, and therefore the obtaining of her signature was a condition, which, if not carried into execution, would justify the defendant in withdrawing." Until the signature of the mother was obtained to the note, there was, in law, no delivery, and the at[437*] tempt to enforce *its payment was a fraud upon the defendant, who was told that his responsibility was to be shared by another. In the case of Duncan v. The United States, 7 Pet. 435, the fact was, that a bond was drawn in the names of Abner L. Duncan, John Carson, and Thomas Duncan, as sureties for William Carson; but Thomas Duncan never signed it. In behalf of the plaintiff in error it was contended, that the body of the bond proved that Thomas Duncan was, by the contract, to share its responsibility with Abner Duncan, and without the signature of Thomas Duncan it was never delivered, but remained an escrow. To support this proposition, reference was had to the following cases: Wells v. Dill, 1 Mart. 592, and to Leaf v. Gibbs, 19 Eng. C. L. 475. The supreme court of the United States sustain the opinion of the supreme court of Louisiana, in the case of Wells v. Dill, Bowen vs. Mead. in which it is said that as the bond upon which suit was brought was drawn in the name of one Blanchard as principal, and the defendant Dill and one Walter Turnbull, as sureties, and the signatures of Blanchard and Dill only are affixed, that Dill's signature to the obligation did not bind him. But it is to be remarked, that this ruling was in conformity to the civil law, which declares the contract incomplete until all the parties contemplated to join in its execution affix their names to the bond. The law (say the supreme court of Louisiana) presumes that the party signing did so upon the condition that the obligors named in the instrument should sign it." Mr. Justice McLean adds, in reference to this decision, that "There can be no doubt, that under the civil law, the principle is correctly stated by the court." The doctrine of the common law is said by the same judge to be too well settled to be controverted; that where an instrument is delivered as an escrow, or where one surety has signed it on condition that it shall be signed by another before its delivery, no obligation is incurred until the condition shall happen. The acknowledgment (continues Justice McLean) of the bond by Abner L. Duncan, and afterwards by John Carson, unconditionally, and its delivery to the government, would seem to rebut the inference drawn by the plaintiff's against its validity, from the simple fact of its not having been signed by Thomas Duncan. This case, then, instead of supporting the views of the defendants, is an authority against them. *In support of the views we have expressed, refer- [438*] ence may be had to the case of Stewart v. Bochm, Administrator of Jacob Swan, 2 Watts, 356. The action was upon a joint and several note, under seal, signed by Ringle & Dasher, who were principals, and Jacob Swan, who was a surety. As a defense, it was insisted by the administrators of Swan, that as Dasher signed and sealed the note in the name of the firm of Ringle & Dasher, without authority, that Ringle was not bound as it was the intention of the parties he Agent of State Prison vs. Lathrop. should be, and that, therefore, a recovery could not be had against the surety. In answer to this defense, the court say, "where the obligee has acted with good faith, what has he to do with the mistakes or misconceptions of the obligor?" In the case of Cutter v. Whittemore, 10 Mass. 450, it was held, that a bond written as if to be executed by three, as joint and several obligors, although executed by two, is nevertheless a valid bond. See, also, Adams v. Bean, 12 Mass. 140. Upon the whole, I am of the opinion, that upon the facts of this case the plaintiffs are entitled to judgment, and it must be so certified. Certified accordingly. AGENT OF STATE PRISON VS. LATHROP. The statute, Sess. L. 1842, p. 130, requires the agent of the state prison to give notice, in a newspaper, for sealed proposals for letting the convicts. The agent of the prison, without giving such notice, hired convicts to defendant for a term of years. The contract was held to be void the mode of letting prescribed by the statute being a limitation on the power itself, and not merely directory to the agent of the prison. Under the general issue in covenant, the defendant may show the deed is not his by proving a lack of power in the agent who executed it on his behalf. NOTE. — The agent of the prison is a state officer, appointed by the gov ernor by and with the consent of the senate, duly sworn and giving bonds and specially authorized to sue and be sued for all matters pertaining to the prison, Comp. L. of 1857, §§ 6163, 6182, 6185, etc. The above statute was amended by act of 1848, so as to require sealed proposals to be re ceived, and all contracts to be made in writing, approved by the inspectors and filed in the prison office, (§ 6185). Any judgment against him would be paid by the auditor general on the warrant of the inspectors, § 6224. The principles of law relative to his power to make contracts are, therefore, those which apply to public officers, and not those which apply to agents. He is a corporation sole, or branch of the political powers of the state, and as such "can exercise no powers but those conferred on him by the act by which he is constituted," or those which are necessarily im plied. See Dillon on Municipal Corporations, § 55, and cases cited there under. Agent of State Prison vs. Lathrop. ERROR to Jackson Circuit Court. Henry B. Lathrop brought an action of covenant in the circuit court, against the agent of the state prison, for a breach of articles of agreement, by which the agent of the prison had let to him the services of a number of convicts for a term *of years, and recovered a judgment for $5,735.63. [439*] The convicts were let by the agent of the prison, under an act entitled "An act authorizing the agent of the state prison to lease, for a term of years, the labor of convicts in the state prison." Sess. L. 1842, p. 130. The first two sections of the act are as follows: "Sec. 1. That it shall be the duty of the agent of the state prison, and he is hereby authorized to employ the convicts. confined in said prison at mechanics' labor, or so many of them as, in the opinion of the agent, will best promote the interests of the state, for a term of years, not exceeding five years. "Sec. 2. That it shall be the duty of the agent to give at least twenty days' notice, in some newspaper printed in the village of Jackson, or city of Detroit, for sealed proposals for letting the convicts for said labor of all or any of those branches now carried on or may hereafter be carried on in said pris on; that the notice shall specify the branch or branches, and the length of time for which each branch will be let." On the trial a number of exceptions were taken by defendant to the ruling of the court, and among others the following: The execution of the agreement having been admitted by defendant, the plaintiff offered it in evidence. Defendant objected to its reception as evidence, until the plaintiff should show the agent of the prison had given notice of the letting of the convicts, as required by the second section of the aforesaid act. The objection was overruled by the court, and defendant excepted. After plaintiff had closed his testimony, defendant called the clerk of the prison, who was sworn, and testified that he had been clerk of the prison for seven years. last past. Defendant then offered to prove by the witness, that no notice of the letting of the convicts had been given by |