Field, C. J. and Cope, J. concurring.
We think that the true meaning of the statute authorizing judgment to be entered by the Clerk upon an offer on the part of the defendant to suffer judgment for a specified sum, etc., is that judgment can be entered only when the offer is made after action is brought and while pending. To hold that a party may make out a complaint and then get the defendant to acknowledge service, and to offer to pay all or a portion of an assumed demand, and then for the plaintiff to file these papers, as parts of an entire arrangement, with the Clerk, and have him enter a judgment, which would be binding, is simply to hold that the safeguards which the law has throwm around confessions of judgment by a debtor, and which cautionary provisions are for the security of creditors, are nugatory. It would prove a successful device to cover the property of the debtor, without exposing the fraudulent actors to criminal responsibility. The statute against voluntary assignments and the statute in reference to confessed judgments would both be at the mercy of a debtor who desired to put his property out of his hands and defeat his creditors by a secret arrangement of this sort, which would devolve upon the assailing party the onus of showing—what it frequently-might be difficult to do—that the proceedings were fraudulent.
It is not necessary to consider whether the answer sufficiently controverts the averments of the bill. It may be observed, how*585ever, that the whole case, and the qualified terms in which the different answers are couched, certainly wear a suspicious appearance. We prefer to place the case upon the broader ground that the Clerk having no power to enter the judgment, except in a given category, namely, when the offer is made while the cause is pending—i. e. after action commenced by the filing of the complaint—the judgment entered under the circumstances characterizing this case is void. It seems that the attorney handed all the papers, complaint, offer, etc., attached together, to the Clerk at the same moment. Of course, at the time of the offer, there could have been no cause pending, the Clerk having neither received or filed - the complaint.
We do not regard this as a mere irregularity, but as a question of power in the Clerk—just as if the statute provided that the Clerk might enter judgment by default by the written consent of the defendant, filed ten days after service of process, and the Clerk entered the judgment on the day of the service. The Clerk has no general jurisdiction or power to render, or of his own motion, and as his act, to enter judgments; and when in a few exceptional cases the statute confers a power of this sort, as he looks to the statute for the source of his authority, so he must pursue, at least substantially, the directions of the statute, in order to impart validity to his acts. This is the rule with all special tribunals, and all agents acting under special and limited statutory authority. In other words, as they derive their whole powers, both as to fact and mode, from the statute, they must show that the particular act done was authorized by the statute, and performed in the manner prescribed by it.
This view distinguishes this case from Patrick v. Montader, (13 Cal.) which was the case of a mere irregularity, not affecting the jurisdiction, and in which case the attaching creditor was allowed in equity to retain a legal advantage, though irregularly obtained. But here there was no legal advantage, but the defendants are seeking to enforce a judgment void in itself for want of authority in the Clerk to enter it.
Judgment reversed and cause remanded.