delivered the opinion of the Court:(1)
This is a writ of error, prosecuted on the part of Sloo, to reverse the judgment entered in this cause against him, on the following statement of facts appearing on the record :
A judgment, by confession, was entered in the St. Clair Circuit Court, in favor of the defendants in error, against Sloo and McClintoc, trading under the firm of Sloo & Co., for $125,000.
This confession is made by Alfred Cowles, an Attorney of that Court, under a warrant of attorney, executed by McClintoc alone, in the name of the firm, without seal, authorizing any attorney of any Court in this State to appear for the partners and confess the judgment. It further appears that the residence and place of business of the plaintiffs in error, was at Alton, in the county of Madison, where the warrant of attorney was executed. No bond or evidence of previous indebtedness was filed or exhibited to the Court with the power of attorney on which the judgment was confessed, but the bare authority only to confess the judgment for the sum specified, appears to have been filed when the confession was entered.
At the term immediately subsequent to the rendition of this judgment, Sloo appeared, and upon affidavits filed, moved the •Circuit Court to set aside the judgment, or restrain the levying of the execution upon his property, because he never executed the power, nor authorized McClintoc to execute it for him.
The Circuit Court denied the motion, to which the plaintiff in error excepted and filed his bill of exceptions.
The plaintiff in error, Sloo, assigns for error the refusal of the Circuit Court to grant his application, and to set aside the sáid judgment as to him, or to restrain the execution of the judgment as to him, and also makes a general assignment of errors, to which the defendants have joined.
A preliminary question has been raised by the counsel for the Bank, which it is necessary to dispose of, as, on that disposition, the further action of this Court will depend.
It is contended that the assignment of errors in this case, is an assignment of errors in fact, not cognizable in this Court.
The transcript returned upon the writ of error, commences with the application, notice of motion, and reasons for moving to set aside the judgment as to the applicant, and then recites that judgment, together with the warrant of attorney, the proof its execution and the declaration and confession ; after which follow the affidavits of the several parties, and thes refusal of the Court to grant the motion; all this is contained in the bill of exceptions, signed by the circuit judge; after which is a remittitur, entered on the next day after the decision on the motion, by the plaintiffs’ attorney, for $14,222 61.
That the record is inartificially drawn up, may be readily conceded. The record should have presented the proceedings in the order of time in which they transpired, commencing with those on the rendition of the judgment. Then the subsequent application and proceedings had thereon, should have followed; but because this clerical error has transpired, it will not, we conceive, make the assignment of errors an assignment of errors in fact. We apprehend the counsel has been misled in this particular, and considered the question in a different aspect from that in which the proceedings appear. But are we to sacrifice substance to mere form ? And is the inverted order of time in which the proceedings are presented here, to be a sufficient reason for refusing that justice which the very right of the case, as presented by the record, shall demand, and turn the party round to sue out a writ of error coram vobis, which has been disused and super-ceded by the more summary mode of a direct application to the Court for the rightful exercise of its own powers, over its proceedings and those of its officers ?
We think the exception not well taken. The question presented in the Court below, was whether a judgment, unauthorized and illegal, had been rendered as to Sloo? That'depended on the authority of McClintoc to authorize the confession in favor of the Bank, in the name of Sloo. The affidavit establishing the due execution of the power by McClintoc, filed with the declaration, and on which proof the judgment was ordered to be entered, shows that McClintoc, as the partner, without the consent or authority of Sloo, executed the power in question; and consequently the legal point to be determined, is, whether such a power, so executed, will authorize the rendition of the judgment against the other partner, who neither authorized nor assented to the confession. Apart then from the affidavits on which Sloo based his application for setting aside the judgment as to him, the Circuit Court had, in the original proceedings, evidence entirely sufficient, on which to determine the. irregularity of the proceedings and of the erroneous character of the judgment rendered, without recurring to evidence aliunde the record. It is true, the special errors assigned in this Court, go to the refusal to grant the motion, and do not specify this particular ground in the original record. Still we conceive we are bound to consider the whole proceedings as fairly before the Court, without regarding the manner in which the clerk has made them up, and that this portion of the record, as well as that relating to the facts stated in the affidavits by both parties, was equally before the Circuit Court, as it most clearly is here.
The defendants in error, having joined in error, might also be considered as waiving all objection, if the rigid rules of pleading were insisted on, the joinder being only considered as a demurrer to the assignment of errors in cases where the errors are not well assigned, and contradict the record. It is strenuously insisted, that this Court cannot decide this case without .determining questions of fact without the record, in judging whether the Circuit Court erred in refusing to set aside the judgment on the application made, and that it has no jurisdiction for such purpose.
It is a sufficient answer to this objection to quote the jurisdiction expressly • conferred by statute: “To determine all matters of appeal, error, or complaint from the judgment or decree, of any of the Circuit Courts of this State, and from such other inferior courts as may hereafter be established by law, in all matters of law and equity, wherein the rules of law or principles of equity, appear, from the files, records, or exhibits of any such court, to have been erroneously adjudged and determined.”
It is then the judgment of the law on the facts, as they appear in the record, which is to be investigated to ascertain whether it has been correctly pronounced, as it shall appear to have been decided in the proceedings brought up, and not a new investigation of facts de hors the record. The expressions used in the statute defining the jurisdiction of this Court, we agree, are not to be extended to give this Court cognizance of cases in proceedings or judgments merely interlocutory ; but we aver that whenever a decision takes place in any of the Circuit or inferior Courts of record of this State, which is final, and of which a record can be made, and which shall decide the right of property or persona] liberty, complete jurisdiction is conferred on this Court to hear and determine the same. Coke, in his Commentaries on Littleton, saith, that “ A writ of error lieth when a man is grieved by an error in the foundation, proceedings, judgment, or execution in a causeand can it be said there is no grievance in the rendering a judgment against one who is not summoned to appear in court, and who has not authorized the judgment, nor been, by his consent, a party to it? This Court having a revisionary power over all errors happening in the Circuit Court where the cause was prosecuted, and that Court having entertained jurisdiction of the cause, and of the particular point presented, it cannot now be objected here, that this Court has no power to revise those proceedings. It seems to us, that, if the reasoning of the defendants’ counsel was correct, the adoption of his doctrine would lead to an almost entire subversion of the objects for which this tribunal was created. There is nothing, then, in the present case, to distinguish it from an ordinary case of a writ of error, and as such we proceed to the merits of the grounds assigned for error.
That the Circuit Court should have vacated the judgment as to Sloo, we cannot entertain a doubt; for, as has been before remarked, the affidavit of the witness to the execution of the power of attorney, under which the judgment was confessed and entered up, expressly declares that the power was signed by McClintoc for the firm of A. G. Sloo & Co., and it does not appear that McClintoc had the least authority whatever for doing the act.
Without then recurring, for the present, to the affidavits and proofs exhibited on the motion, the simple question is presented, whether one partner can confess a judgment in the name of his co-partner.
It is undeniable, that unless there be an express authority to the partner from the other, or he assent to it, the power of attorney executed by one partner in the name of the other, as to him, is void. The whole current of British and American authorities sustains this rule. Indeed we have not seen, nor do we know of a single case to the contrary.
In general, the power of attorney to confess the judgment, is accompanied by a bond, as evidence of the indebtedness or amount due.
How or when this peculiar security for a debt authorizing a creditor to sign a judgment and issue execution without even issuing a writ, was first invented, does not appear. Cbitty, in commenting on it, says, “ It has now become one of the most usual collateral securities on loans of money, or contracts to pay an annuity, and for debts due, but is usually accompanied with some other deed or security.” It is also under seal. In the present case, the power has no seal, and it has therefore been supposed to place the case on a different footing from the adjudged cases, most of which assign, as a reason why one partner cannot confess a judgment, in the name of the other, that he cannot bind the co-partnership by an act under seal. The ancient reason, in the earliest cases in which the question arose, was, that the seal of the other partner was his private property, and could not be subject to the control or use of the other. Another given is, that it is an act not within the limits of co-partnership business.
In the case of Harrison v. Jackson, Sykes, and Rushforth,(1) the agreement related to a partnership transaction, was under seal and executed by Sykes, the other partners not being present. In an action of covenant against the three partners, on this agreement, Lord Kenyon, who gave the opinion of the Court, said he admitted the authority of the partners according to the law merchant, or mercantile transactions, but denied that any power existed to bind each other by seal, unless a particular power be given for that purpose; and furthermore remarked, that it would be a most alarming doctrine to the mercantile world, if one partner could bind the others by such a deed as the one in question. It would extend to cases of mortgages, and would enable a partner to give a favorite creditor a real lien on the estates of the other partners. In the cases of Ball v. Demsterville,(2) Clement v. Brush,(3) Murphy v. Bloodgood,(4) Green v. Beal,(5) Motteux v. St. Aubin,(6) Ton v. Goodrich,(7) the same principle was recognised. In Pearson v. Hooker,(8) it was decided that one partner may release a debt due the partnership by a deed under seal.
Kent, Chief Justice, however, distinguishes this particular case from the class of cases referred to, “ because there was no attempt to charge the partnership with a debt by means of a speciality, but it is the ordinary release of a partnership debt. Each partner is competent to sell the effects, or to compound, or discharge the partnership demands; each having an entire control over the personal estate.”
The Supreme Court of New York, in the case of M‘Bride v. Hogan, after an elaborate examination of all the cases bearing on this question, came to the conclusion, “ That one partner cannot do any act under seal, to affect the interest of his co-partner, unless it is to release a debt.” It follows, then, according to the recognised doctrine of these adjudicated cases, that this power of attorney, had it been under seal, would have been a case identical -with those cited.
We may be permitted to ask, what difference there can possibly be in principle, and effect of the act done, in the cases cited, and the one under consideration. Whether the power to confess the judgment be under seal or not, can surely make no difference in its consequences or intended objects.—If the power is valid, not being under seal, the consequences and results of the act are precisely similar to those which the principles of the decisions cited, most strongly urge as unjust and illegal; and if void for want of a seal, the case is only thereby rendered more clear and certain.
To judge of the power of the partner, and the legality of his act, we are necessarily required to examine the consequences and effect of his act. And what are they ? To subject all the private as well as joint property of the partner, both real and personal, to execution and sale ; a still further consequence, his person to imprisonment, in execution of the judgment so confessed, without his authority or assent, express or implied—nay, against his most solemn protestations, or possibly obtained through misapprehensions, or fear, or through deceitful representations held out to a weak and indecisive mind ; or it might happen by collusion, and for the purpose of fraud. When such results may be readily conceived—nay, be like to happen, can it indeed make any real difference whether the act, from which such consequences might flow, is or is not under seal ? What magic is there in a scrawl, for that is, by our law, in effect, a seal ? Can the legality, reason, or justice of the case, depend on a legal subtlety, or shall the case be decided on the broad and firm basis of reason and right ?
We cast aside the distinction as unworthy the consideration of the tribunals of the present age, and unhesitatingly decide, that justice and right ought not in any case to be sacrificed to mere forms, however ancient they may be, or however numerous may have been the precedents produced. We do not, however, wish to be understood as discarding those which are essential to the correct and regular order of proceedings, and which are necessary to be observed in the proper and systematic conducting of cases.
We have thus far considered the case without reference to the affidavits read on the motion. From an examination of the contents of those, our opinion is strengthened as to the views already expressed. There can be no doubt, from the statement of McClintoc, and all those who testify on the part of the Bank, that McClintoc had no authority whatever, from Sloo, to make the power of attorney. The judgment is also for a much larger sum than was actually due at the time, it embracing contingent liabilities not then at maturity, and was, in fact, entered up for $14,222,61 more than was due, being the amount remitted on the next day after the Circuit Court refused to grant the application of Sloo.
An attempt is made to draw from some expressions of Sloo, an inference of his sanction of the act of McClintoc, long after the power had been signed and delivered. It may be doubted whether a subsequent agreement to, or assent of, the act of McClintoc, after, the judgment had been rendered on an invalid power, would legalize the irregular and unauthorized confession; hut it is sufficient in the present case to say that, in our opinion, the attempt to establish such assent or approval has signally failed.
In every aspect in which this case can be viewed, we have no hesitation in saying that the judgment of the Circuit Court is erroneous and void, as to Sloo, having been entered up without authority, and that the Court below ought to have vacated the judgment on the application of Sloo. It is therefore ordered, that the judgment of the Circuit Court, as to Sloo, be reversed, and that Court directed to cause the execution thereon, as to Sloo, to be set aside. The plaintiff in error to recover his costs in this Court and the Court below.
Judgment reversed as to Sloo.
Note. After a general appearance by an attorney for both the defendants, who were partners, and the pleadings entered by him in the name of both, one of the defendants cannot plead that he was not served with process, and had not appeared in the suit. Field v. Gibbs et al., 1 Peters C. C. R. 155.
A warrant of attorney to confess judgment, cannot be expressly revoked. A warrant of attorney authorized the confession of judgment at a certain term, for a certain sum, in an action of debt; and the judgment was confessed accordingly. Hein, that the judgment was not erroneous, merely because the nature of the debt was not particularly described in'the warrant.
The defendant’s appearance to the action by attorney, prevents him from making any objection relative to the process. Eldridge v. Folwell et al., 3 Blackf. 207.
Where an attorney appears for a party, the Court will look no further, but will proceed as if he had sufficient authority," and leave the parly to his action against him. Jackson v. Stewart, 6 Johns. 34; Henck v. Todhunter, 7 Har. & J. 275; Harding v. Hull, 5 Har. & J. 478; Munnikuyson v. Dorset, 2 Har. & Gill, 374.
If an attorney appear for a defendant, (whether process has been served or not) without his authority, and confess judgment, or let it go by default, the judgment is regular, and will not be set aside; but the attorney is liable to an action. Denton v. Noyes, 6 Johns. 296. See 4 Monr. 377.
But if there were fraud or collusion between the plaintiff and the defendant’s attorney, or if he be not responsible, or perfectly competent to answer to his assumed client, the Court will relieve against the judgment. 6 Johns. 296.
A default for not pleading will be opened, if it were suffered by the neglect of an attorney who is insolvent. Meacham v. Dudley, 6 Wend. 514.
In Ohio, a party is not concluded by the acts of an attorney who appears without authority: and if no process has been served on the defendant, the Court will set aside a judgment, even at a subsequent term, obtained after such unauthorized appearance. Crichfield v. Porter, 3 Ham. 518.
Though in Kentucky an authority will be presumed, when an attorney appears for a defendant not served with process, yet if the defendant prove that he had no authority, his rights cannot be affected by the attorney’s acts. Handley v. Statelor, 6 Litt. 186.
An appearance by ail attorney without authority, is good. Rust v. Frothingham et al., Breese 260.
Where an attorney commences an action in the name of another, or appears for another, the Court will presume he had authority to do so, until the contrary appears. Ransom v. Jones, Ante 291.
Lockwood, Justice, dissented from the opinion of the Court.
7 Term R. 207.
4 Term R. 343.
3 J. C. 180.
9 Johns. 285.
2 Caines R. 254.
2 Black. 1133.
2 Johns. 213.
3 Johns. 68.