
    Clements et al. v. Hull.
    A power of attorney, attached to a sealed note payable to bearer, authorizing the waiving of process and the confession of judgment in favor of the holder of the note, may be executed in favor of an equitable owner and holder, to whom the note may be transferred by delivery, but without indorsement thereon.
    Error to the Court of Common Pleas of Morrow county, reserved in the district court.
    The defendant in error, to whom a sealed note, payable to J. N. Cooley or bearer, had been transferred by delivery, took a judgment thereon against the makers, plaintiff in error, by confession under a warrant of attorney attached thereto, at the October term, 1874, of the court of common pleas.
    The following is a copy of the note and warrant of attorney :
    “ $200. , Elint, Ohio, October 17,1871.
    “ One year after date, we, or either of us, as principal debtors, for value received, promise to pay to J. N. Cooley or bearer the sum of two hundred dollars, payable at the Eirst National Bank of Mt. Gilead, Ohio.
    “We hereby authorize any attorney at law to appear for us, or either of us, at any time after the maturity of the above note, in any court of record in the State of Ohio, or elsewhere, and waive the issue and service of process, and confess judgment in favor of the holders of said note, for the amount of said note and interest, and interest on said judgment at the rate of eight per cent., together with costs of suit, and release all errors, and waive all right of second trial in said action.
    “ Witness our hands and seals this 17th day of October, 1871.
    “ C. M. Clements, [l. s.]
    “ C. C. Clements, [l. s.]
    [stamps.] “ Susan W. Clements.” [l. s.]
    
      Thereupon the plaintiffs in error filed their petition in error, in the district court, to reverse said judgment, and made the following assignments of error:
    “ 1. That said court erred in rendering judgment for said Isaac Hull, who was not the payee of said note.
    “ 2. That said court had no jurisdiction of the persons of these defendants, and erred in rendering said judgment.
    “ 3. That said court erred in rendering judgment upon said cognovit without first bringing in said defendants below by summons.
    “4. That said court erred in rendering a judgment in favor of Isaac Hull upon said warrant of attorney.”
    The proceeding in error has been reserved here for decision.
    
      Andrews & Allison, for plaintiffs in error.
    
      T. H. Dalrymple, for defendant in error.
   McIlvaine, J.

Upon the proposition that a power of attorney to confess a judgment, attached to a negotiable promissory note in favor of the holder thereof, may be executed in favor of an indorsee, I need add but little to what was said iu the opinion in the case of Watson v. Paine, 25 Ohio St. 340.

In strictness, the question is not, whether such a power of attorney is negotiable, but whether the attorney upon whom the power is conferred may execute it in favor of the holder, according to the express terms of the grant, when such holder is other than the payee of the note. The doctrine advanced in that case, upon this question, is now approved.

In a very recent case, Osborn v. Kistler, ante 99, it was decided that a sealed note, though payable to bearer, could not be transferred, so as to vest the legal title in the transferee, except “ by indorsement thereon.” See also 14 Ohio, 542. But, on the other hand, all the cases clearly recoguize the doctrine that a purchaser of such paper, to whom it is transferred by delivery merely, acquires an equitable ownership and title thereto, whereby he may prosecute an action thereon in his own name, subject, however, to such defenses as existed against it while in the hands of the payee.

It only remains, therefore, to be determined, whether such a power of attorney can be executed in favor of such equitable owner and holder.

The code of civil procedure provides that every-action must be prosecuted in the name of the real party in interest, and the case before us being within this rule, we think, it must have been in the contemplation of the donor of the power, as it is clearly within the words of the grant, that the attorney should confess judgment in favor of such equitable owner and holder.

The scope of the power is not limited, in this case, as it was in the case, Cushman v. Welsh, 19 Ohio St. 536, in favor of the legal holder only. The authority here given is “ to confess judgment in favor of the holder of said note,” and we think these words were intended, and should be construed, to embrace any holder who might lawfully prosecute an action on said note, in his own name and for his own use.

Judgment affirmed.  