
    
      Calwells v. Sheilds & Somerville.
    August, 1843,
    Lewisburg.
    (Absent Cabell, P., and Brooke, J.)
    Judgments — What Constitutes — Record of Judgment Confessed — How Far Evidence Aliunde Is Admissible to Show the Action and Power of Attorney to Confess* — Case at Bar, — On a motion for award of execution against three obligors in a forthcoming bond, one of whom is principal and the other two are sureties, the entry upon the record states that as well the plaintiffs came by their attorney, “as the defendant M.” (the principal) “in his proper person, and the other defendants by their attorney, and the said defendants acknowledge judgment.” In the same entry (after the judgment) is the following: "And. the plaintiffs by their attorney here in court release to the defendants 183 dollars 60 cents, and agree to stay execution of this judgment until the first day of the next term.” On a bill in equity by the sureties, claiming a discharge on the ground that the agreement to stay was without their consent or knowledge, it is alleged that the sureties did not appear by an attorney at law, but by an attorney in fact; that the power under which the attorney acted did not authorize him to confess judgment • with stay of execution ; and that in fact he never consented to such stay, hut the agreement for the stay was with the principal alone. The power of attorney is in these words : “We authorize J. M. to confess judgment for us and in our name, on a delivery bond in favour of S. & S. executed by us on the 18th November 1840;” and is signed and sealed by the three obligors. Held, 1. That the entry must be taken altogether, and regarded as the record of a judgment between the parties upon the confession of the defendants therein, with the condition of a stay of execution. 2. That it not appearing from that record whether the sureties appeared by an attorney at law or an attorney in fact, evidence aliunde is admissible for the purpose of proving that they appeared by an attorney in fact, and to shew the authority under which he acted. 3. That the power of attorney under which the attorney acted did authorize the confession of judgment with stay of execution. 4. That parol testimony is not admissible to prove that so much of the entry as relates to the stay of execution was without the consent of the said attorney ; dissentiente Stanard, J.
    On the 28th of September 1839, Fleming-B, Miller and William B. Calwell ex-306 ecuted an obligation to Sheilds *& Somerville for 3000 dollars, payable nine months after date.
    On the 9th of the same month, a deed of trust was made between Miller of the first part, James Calwell jr. of the second, and William B. Calwell of the third part, whereby, after reciting that William B. Calwell was surety in the bond executed by Miller to Sheilds & Somerville, that Miller was indebted to William B. Calwell 1000 dollars by bond, and that William B. Cal-well was the endorser with Miller on a note of William Ross for 3000 dollars, due the Farmers bank of Virginia at Hynchburg, Miller conveyed to James Calwell jr. sundry slaves and horses, and his furniture and farming utensils, in trust that if Miller should pay the said bonds, and indemnify and save harmless William B. Calwell from liability on his said endorsement, then all right and title in and to the property should cease and determine in James Calwell jr. ; but if Miller should fail in any of these engagements, and William B. Calwell should be compelled to pay the bond to Sheilds & Somerville, or the debt to the Farmers bank, or the debt of 1000 dollars should be unpaid at its maturity, then it should be lawful for James Calwell jr. to sell by public auction, after three months notice, all or any part of said property, for the full and adequate indemnity of William B. Calwell for the money he might have paid upon the debts aforesaid, and the payment of the bond to William B. Calwell.
    On the first of May 1840 another deed of trust was made, between Miller of the first part, James Calwell jr. of the second, and William B. Calwell and Henry B. Calwell of the third part, whereby, after mentioning the same endorsement and bonds, and another bond of 750 dollars to William B. Calwell, and after mentioning that Henry B. Calwell is the security of Hiller in a note to John Callaghan, one to Matthew W. Pettigrew, and one to Joel W. Flood, the same property and ten head of 307 *cattle were conveyed to James Cal-well jr., upon trust that if Miller should pay off the debts due to William B. Calwell when they should become due, and should pay off the debts due to Sheilds & Somerville and to the Farmers bank, so that William B. Calwell should be entirely absolved from all liabilities for the same, and should also pay off the said debts for which Henry B. Calwell was surety, so as to absolve him from all liability for the same, then all the right and interest conveyed to James Calwell jr. should cease and determine. But if Miller should fail in any or all of these engagements and obligations, then it should be lawful for James Calwell jr. to sell at public auction, (the day and place of sale being advertised publicly for 3 months) at the request of either the said William or Henry, so much of the said property as would pay the said bonds due to William B. Calwell, and also all the money which he might have been required to pay either to Sheilds & Somer-ville or the Farmers bank, and also pay to Henry B. Calwell all money which he might be required to pay to Callaghan, Pettigrew or Flood.
    Default being made in the payment of the bond to Sheilds & Somerville, they instituted an action thereupon in the circuit court of Greenbrier, and on the 21st of October 1840 obtained judgment against the obligors. A writ of fieri facias on the said judgment went into the hands of Joel M’Pherson deputy for John Mays sheriff of the county of Greenbrier, and on the 18th of November 1840 he took from Miller and William B. Calwell a forthcoming bond with James Calwell as surety, which recited the execution as amounting to 3344 dollars 77 cents. ' This bond being forfeited, M’Pherson took from the obligors the following writing:
    “We authorize Joel M’Pherson to confess judgment for us and in our name, on a delivery bond in favour of Sheilds & Som-erville, executed by us on the 18th 308 November *1840. Witness our hands and seals this 10th day May 1841.
    F. B. Miller, [JO. S.]
    W. B. Calwell, [B. S.]
    Jas. Calwell. [B. S.]”
    After this it was discovered that by mistake of the clerk the fi. fa. issued for interest from the 2d of June 1839, instead of from the 2d of June 1840, and therefore there was an excess included in the forthcoming bond of 180 dollars (the interest for one year) and the sheriff’s commission of 2 per cent, thereon, being 3 dollars 60 cents, amounting together to 183 dollars 60 cents.
    On the ISth of May 1841, the following judgment was entered:
    “John N. Sheilds and Robert B. Somer-ville, merchants and partners trading under the firm and style of Sheilds & Somer-ville, plaintiffs,
    against
    Fleming B. Miller, Wm. B. Calwell and James Calwell, defendants.
    1 ‘On motion for award of execution on a forfeited forthcoming bond, taken by virtue of an execution sued out of this court on the 27th of October 1840, in the name of the plaintiffs against the defendants Fleming B. Miller and William B. Calwell.
    “This day came as well the plaintiffs by their attorney, as the defendant Miller in his proper person, and the other defendants by their attorney, and the said defendant acknowledge judgment for the sum of 6689 dollars 54 cents the penalty of the said bond, besides the costs by the plaintiffs about their motion in this behalf expended. But this judgment is to be discharged by the payment of 3344 dollars 77 cents with legal interest thereon from the 18th of 309 November 1840 until *paid, and the costs. And the plaintiffs, by their attorney, here in court release to the defendants 183 dollars 60 cents with interest thereon from the 18th day of November 1840 till paid, and agree to stay execution of this judgment until the first day of the next term of this court.”
    On the 18th of August 1841, William B. Calwell, by a writing under his hand and seal endorsed on the deed of the 9th of September 1839, assigned and transferred to the president and directors of the bank of Virginia at Buchanan, for value received, his right and interest in and to the property conveyed in the said deed, and all benefit thereof. And on the same day he united with Henry B. Calwell in making a similar assignment on the deed of the first of May 1840 for their benefit. Afterwards, to wit, on the 21st of August 1841, a formal deed was executed between Miller of the first part, John S. Wilson of the second part, and the president and directors of the bank of Virginia at Buchanan of the third part, whereby Miller conveyed the same property, to secure the payment of two bonds to the said bank, in which William B. Calwell and Henry B. Calwell were joined with him. And at the foot of this deed two other writings were executed, one by William B. Calwell and Henry B. Cal-well, bearing date on the same day with the deed, whereby they declared that the deed was executed with their privity and consent, and they released and transferred all their right and title to the property thereby conveyed; and the other by James H. Calwell, bearing date the 23d of August 1841, stating, that by direction of the parties, he transferred and assigned to the president, directors and company of the bank of Virginia such legal title as was vested in him by virtue of the deed of trust for the benefit of William B. Calwell and Henry B. Calwell.
    In January 1842, William B. Calwell and James Calwell filed a bill to‘restrain 310 proceedings against them on *the judgment of Sheilds & Somerville, setting- forth that William B. Calwell was surety of Miller in the original judgment, and James Calwell was surety of Miller and William B. Calwell on the forthcoming bond, and alleging, that to the agreement for the stay of execution on said judgment they were neither parties nor privies; that it was entered into without their knowledge or consent; that they have been informed and believe it was entered into by the plaintiffs with Miller in consideration of a waiver by Miller of an error in the execution on which the forthcoming bond had been taken, which probably rendered the bond invalid; that Miller had no authority of any kind to make any' such agreement for them; that the power of attorney given to M’Pherson only authorized him to confess judgment for them, and in point of fact M’Pherson did not in any manner assent to said agreement for them or in their behalf. They charged expressly, that the agreement was completed between Miller and the plaintiffs without the assent of them or either of them, directly or indirectly given, either by themselves, or any one in any manner authorized or empowered to give such assent for them, and they insisted that by the agreement they, as the sureties of Miller, were released from all liability to pay the debt.
    Sheilds & Somerville, in their answer, set forth the tenor of the judgment, as it appeared by a transcript thereof exhibited with the answer. And they stated they were informed by Alexander P. Eskridge esquire, their attorney at law, that the arrangement made was in fact with the knowledge of all the parties interested, or of those authorized to act for them; that Miller acted in the matter not only for himself, but as the known and authorized agent and attorney both of William B. Cal-well and James Calwell; that Miller, for himself and as such attorney, objected in the first instance to the rendition of any judgment on the forthcoming bond, 311 because *of the mistake of the clerk in issuing the execution, (taking the ground that in consequence of that mistake the execution and bond were liable to be quashed) ; that, to obtain a judgment at that time against any of the obligors, he was compelled to agree to stay the execution of the judgment until the ensuing term of the court; and that after this agreement, and in consequence of it, judgment was confessed by Miller for himself and as attorney for the other obligors, and the agreement was entered of record. The answer then proceeded as follows:
    “That Miller has been in the habit of acting as attorney for the Calwells since the commencement of his practice in the county of Greenbrier, is, these defendants are informed, a well known fact. He has so acted in their cases generally, and with their knowledge and approbation ; and having so acted in other cases, the attorney aforesaid of these defendants regarded him as their attorney and treated with him as such in this case. ' It is well known, that according to the practise in the courts of this commonwealth, no warrant of an attorney is produced to sustain the action of an attorney in any particular case, but when a gentleman has obtained a license to practise in the courts of this commonwealth, and has been admitted to practise in any particular court, it is enough for him to appear as the attorney for any party to a case in that court. In this case the defendants are informed by mr. Eskridge, not only that mr. Miller appeared as the attorney of the Calwells to manage this case for them, but that he has frequently appeared as their attorney in other cases, as before mentioned ; and his authority to appear in cases as their attorney, and manage the same for them, has not been denied. It is wholly unnecessary to enquire whether an attorney at law is authorized to make an agreement on behalf of his clients for a stay of execution. Eor even if it be conceded that 312 Miller had no greater authority *from the Calwells than that of their attorney, (which would be conceding a great deal more than ought to be conceded) and even if it be also conceded that the authority of an attorney at law does not enable him to make an agreement for a stay of execution, these concessions would avail the complainants nothing, for the plain reason that Eskridge had no other authority than that of an attorney at law, and the rule must work both ways. If Miller, as the attorney at law for the Calwells, was unauthorized to make an agreement for a stay of execution which would bind them, Eskridge, as attorney at law for these defendants, was equally unauthorized to make an agreement for a stay of execution which would bind these defendants; and if the agreement was not binding on these defendants, no argument is necessary to shew it can avail the complainants nothing.”
    The defendants farther stated “that M’Pherson was present in court, knew of the agreement between Miller and Eskridge at the time it was made, and not only did not object to it, but approved it;” and the answer continued as follows: “So far from an unqualified and unconditional judgment being confessed by M’Pherson as attorney in fact, the fact is (as these defendants are informed) that neither M’Pherson nor Miller would confess the judgment, or agree to confess it, unconditionally; but on the contrary, the mistake of the clerk in issuing the execution was pointed out as a matter which vitiated the execution and bond, and there would have been no confession of judgment either by M’Pherson or Miller, except for the agreement aforesaid to stay the execution. That agreement having preceded the confession, the confession was an assent to the agreement,” even if the confession were made by M’Pherson.
    The defendants then referred to the two deeds of the 9th of September 1839 and first of May 1840, and said, that Miller having failed in paying off his obligation to them, it became lawful for James Calwell 313 jr. at *the request of William B. Calwell, to sell at public auction so much of the property conveyed'as was necessary to satisfy the debts secured; but instead of causing such sale to be made, the said assignments, deed of trust and other writings of the 18th, 21st and 23d of August 1841 had been made. And they insisted that “if indeed William B. Calwell had the power to divert the property conveyed by Miller to secure the debt due to these defendants, from the purposes for which it was conveyed, and appropriate it to other debts, the exercise of such a power must deprive him of all right to the relief sought by the bill. ”
    Eskridge, who had been the attorney for Sheilds & Somerville, deposed as follows: “When the motion for a judgment was about being made, Miller came to me, and remarked that he should move to quash the bond and execution in the case, as mr. North (the clerk) had issued the execution for one year’s interest more than it ought to have issued for; and called my attention to the bond upon which the suit had been brought. Upon examining the bond and execution, I discovered that a mistake had been made; and then told mr. Miller I would postpone the motion to a future day of the court. On the day on which judgment was rendered, an arrangement was made with Miller, (acting, as I supposed, not only for himself but as counsel for the Cal-wells,) by which the defendants were to confess judgment, and I, on behalf of the plaintiffs, was to release the excess of interest, and to stay the execution until the first day of the succeeding term of the court. I believed when the arrangement was made, that Miller had full power and authority to make it on behalf of all the defendants. I would not have made such arrangement unless I had believed all the defendants were to be bound by it.” On answer to a question by the counsel for Sheilds & Somerville, he said, ‘ ‘Mr. 314 Miller *would not have consented, as I understood, to a judgment on the bond without a stay of. execution. It was considered, as well as I recollect, both by mr. Miller and myself, that the parties would be placed in the same situation at the then succeeding term, as if the delivery bond and execution had been quashed and new execution issued. My impression was that Miller, throughout this transaction, was acting as an attorney for the Calwells, and for himself as a party concerned. My reason for this impression is, that I have known Miller, since he has practised in Greenbrier, acting as the attorney for the Calwells in all their cases, and in the arrangement made by him he assumed to act for all the defendants, and I did not think, as a member of an honourable profession, he would assume to act where he had- no authority.” In answer to another question he said, “I would not have made an arrangement with Miller alone, nor would I have entered into any agreement to stay the | execution, to which the defendants Calwells were not assenting by their attorney or agent; and if I had not firmly believed that Miller had the power as attorney to make the arrangement to stay the execution and confess the judgment, I would have made no arrangement with him.”
    On the other hand, mr. Miller (who was objected to by the counsel of Sheilds & Somerville as incompetent) deposed as follows: “Before a motion for judgment was made upon the bond, I had discovered the error in the execution, and indicated it to mr. Eskridge; upon whose motion the case was docketed and continued. Upon examination he admitted the error, and suggested a confession of judgment with stay of execution and correction of the error. To this I at once assented, confessed the judgment for myself, and have no recollection of any thing else that occurred about it. I did not see mr. M’Pherson confess the judgment, nor had I any conversation with him, that I can recollect, in re-315 lation *to it. I am certain that I did not direct or control his action upon it in any way whatever, nor did I ever hear the record read, or see it, until late in the fall. I was neither the agent of the securities, nor did I in any way assume to be such. I was the principal debtor, and wanted time to pay the debt, and felt confident of my ability to do so at the time which the limitation gave me.” In a subsequent part of his deposition he said, “I was in this case not acting as the attorney for the securities, nor did I assume to be such.”
    M’Pherson deposed as follows: “I was authorized by a paper writing, filed with the papers in the case of Sheilds & Somer-ville, to confess a judgment on a delivery bond for William B. and James Calwell, which I did in open court. I had no other power granted me. I did not consent to the stay of said execution. I was not consulted in relation to the stay, and further it was a matter with which I had nothing to do.” In answer to a question he said, “I was not aware that there was any objection to the bond, until the bond was directed to be docketed; and was informed (as well as I recollect, perhaps on the same day, or during the court) by mr. North, that it was in consequence of an error in him as clerk, and not in me as sheriff. I was apprized of the stay of execution shortly after the rising of the court, about the time I received my executions from the office, or perhaps during the court; I cannot say certainly.”
    Mr. North, in his deposition, said, that he did not recollect that any other counsel than Miller had appeared for William B. Calwell and James Calwell since Miller’s removal to Greenbrier, except in one action of trespass against James Calwell: that Miller was the attorney for them in allcases against them in the circuit court of Greenbrier in which pleas have been- put in, since some time in the year 1840: that the original judgment in favour of Sheilds & Somerville was an office 316 judgment, *no plea having been put in: that at May term 1841, Miller examined all or most of the delivery bonds executed by James Calwell and William Bi Calwell: that after he had examined the delivery bond and the original judgment in the case of Sheilds & Somerville, he understood from him that he intended to resist the award of execution on the delivery bond, because of a variance between the judgment and execution: and that on proving the notice, the motion was docketed and continued. “A day or two afterwards,” he said, ‘ ‘I was informed (I think by mr. Miller and mr. Eskridge the attorney for Sheilds & Somerville) that the matter had been arranged; that judgment was tobe confessed on the bond, with a stay of execution until the next court.” According to his recollection, “mr. Eskridge, mr. Miller and mr. M’Pherson, or perhaps mr. Miller and mr. M’Pherson, came to the clerk’s office, and confessed the judgment as entered on the record: E. B. Miller confessed the judgment in person, for himself; William B. Calwell and James Calwell, by Joel M’Pherson their attorney in fact.”
    There was, however, a manifest difference between the entry of the judgment in this case and the entries in other cases (in the same court at this and a preceding term) in which judgments were confessed for the Calwells by M’Pherson as their attorney in fact. For while the entry in this case, as it regards the Calwells, was in the form that would have been used if the confession for them had been by an attorney at law, the entries in the other cases were as follows: “This day came as well the plaintiffs by their attorney, as the defendants by Joel M’Pherson their attorney in fact, and thereupon the said defendants, by their attorney aforesaid, acting under a power of attorney under the hands and seals of the defendants, acknowledge judgment” &c. Copies of five judgments in this form were filed as exhibits.
    317 *The cause was heard the 19th of October 1842, before Duncan, J., upon a motion by the defendants to dissolve the injunction : On consideration whereof, the court, for reasons stated in a written opinion, decreed that the injunction be dissolved. The following is an extract from that opinion.
    “A record is truth in contemplation of law, and, in the language of lord Coke, ‘imports in itself such in con troll a ble credit and verity that it admits of no averment, plea of proof to the contrary.’ And this is rendered necessary from principles of public policy; for if the verity of the records of courts of justice could be questioned, there would be no end to litigation, and no security for titles to estates. Hardships may sometimes arise from the inflexibility of) the rule, but it is much better that they I should be endured, than to encounter the j pervading and extensive mischiefs that! would result from its relaxation. The rule j is not of modern origin, but can be traced ! up to the earliest history of the common ¡ law; and no instance, I believe, has occurred of any departure from it down to the present day. The record in the present case states that the defendant Miller in his proper person, and the other defendants by their attorney, appeared, and the said defendants [that is, the said Miller and the two Calwells his sureties] acknowledge judgment for the sum &c. We may here stop to enquire, whether it would be competent for either of these parties to deny the facts stated in the record, so far as I have quoted it; that is, could the defendant Miller be admitted to aver and prove that he did not appear in person and confess the judgment? Suppose he offered to prove an alibi, such proof would necessarily be by parol, by facts in pais: and how could such proof compare with a record, having the solemn sanction of a court of record? Or suppose that the plaintiffs (the Calwells) offered to prove that the attorney who confessed the judgment was not 318 authorized *by them to do so: if there is any force in the decisions upon this question, ancient or modern, they clearly would not have the right. In 1 Salkeld 86, the court of king’s bench decided, ‘that an attorney’s consent binds the client, though contrary' to his express orders;’ and in another case reported on the same page, chief justice Holt said, ‘The course of this court is, where the attorney takes upon him to appear, the court looks no farther, and leaves the party to his action against him.’ In a modern case decided by a learned judge of the federal court, in an action brought against two defendants upon a judgment rendered in a state court, the record shewed that both the defendants ‘appeared by attorney.’ One of them pleaded, that at the time of the proceedings he resided out of the state; that he had no notice of the proceedings, nor authorized any person to consent for him to the plea. There was a demurrer, and the court sustained the demurrer. This case presented the ground of an alibi, (according to the hypothetical case stated by me in the first proposition,) and in all respects is a much stronger case that the case of the plaintiffs; yet judge Washington decided it upon the broad ground, that a record imports in itself such incontrollable credit and verity, that it admits of no averment, plea or proof to contradict it.
    “So much as it regards what may be technically called the judgment in this case. I am clear in the opinion that the plaintiffs are estopped by the record from denying that there was such a judgment, and that it was rendered upon their confession by their attorney.
    “But in the argument it was contended with great force and plausibility, that the agreement to stay execution was an extrajudicial act of the parties ; that it constituted no part of the judgment of the court: and that whilst they admit the full force of the rule that the records of the courts must be considered a verity, yet the rule only applies to the judicial action of 3X9 the court, *and cannot be expended to embrace mere private agreements, which might as well be made out of court, and with which the court had nothing to do. It seems to me that this reasoning cannot be sustained. A judgment by confession is always the result of agreement, and frequently of compromise and concession; and I have shewn that a judgment by confession cannot be questioned. And so in reference to any agreement in the progress of a cause. We have seen in the case extracted from Salkeld, that an agreement by the attorney to join issue on a plea, (which the court says was a hard plea,) against the express orders of the client, was binding on the client. Thus I have shewn by express adjudication, that the agreement of the parties entered upon the record, in relation to a cause depending in the court, is of as high a nature as the record of the action of the court itself. And how is it in the case of an agreement of this character, entered upon record after a judgment has been rendered? Suppose the plaintiff, by his attorney, were to enter upon the record satisfaction of a judgment; can there be any doubt that it would be binding upon the plaintiff? I think there could be none. And as to an agreement to stay execution, suppose the record had stated that the defendants had in proper person appeared and agreed to it; would they not have the same right to controvert the fact of their - having appeared in person, as they would of an entry upon the record that they had appeared by their attorney? I can see no difference. The agreement to stay execution is as much a part of the record as the agreement confessing judgment, and being contemporaneous with it, must be looked upon as a part of the same transaction. And that an agreement entered upon record to stay execution has all the characteristics of a record, is clearly inferrible from the decision in Eppes & others v. Randolph, 2 Call 186. Under our statute of executions, 320 we know that a judgment ^creditor must sue out execution within a year after the rendition of the judgment: yet in the case to which I have just referred, there was a stay of execution for two years from the time of rendering the judgment, and the court of appeals recognized the right to sue out execution after the expiration of the time to which the stay of execution extended, though more than a year had elapsed from the date of the judgment. And I apprehend that the defendant could not have been entertained on a motion to quash the execution; on the ground that the record of the agreement to stay execution was an estoppel upon him. Such, I have reason to believe, has been the uniform course of the courts on this subject. But if it were competent to the" defendants to question the verity of the record as to the agreement by them, by their attorney, to stay execution, is not the right mutual, and cannot the plaintiffs contest that matter also, and say that their attorney made no such agreement, or that he transcended his authority? Suppose the plaintiffs had caused execution to issue before the expiration of the stay, can there be a question that the court would have instantly quashed it, even if the plaintiffs had been full-handed with proof that the attorney made no such agreement to stay execution, or if he did, that he transcended his authoritj'? And if the argument of the plaintiffs here rest upon the ground that the general power of an attorney at law extends only to the prosecution or de-fence of an action, and that after judgment is rendered his functions cease, how will that proposition affect the parties here? The plaintiffs’ attorney, it is supposed, had no right to enter into an agreement for a stay of execution, so as to bind them. If this is admitted, then the attorney for the creditors had no right to make the agreement, so as to bind them. Therefore ,the agreement to stay execution was binding on neither party : it must consequently be a nullity, and the judgment would 321 stand as if no such ^agreement had been made. Now the principle is well established, that it is not the mere fact of indulgence by a creditor to the principal debtor that will exonerate the sureties: the indulgence must be the result of a valid agreement between the creditor and his debtor, which would be enforced either at law or in equity. This principle has been so often decided, that a reference to the authorities is unnecessary. It is not pretended that there was any other agreement to stay execution, than that disclosed by the record; and that agreement, if not binding on the sureties, cannot be binding on the creditors.
    “But it is contended that the attorney for the defendants, mentioned in the record, was Joel M’Pherson, the attorney in fact. The answer to this is, that the record does not so state it: and a record must aways be proved by itself; nothing aliunde is admissible. The,term attorney, used in the record, implies an attorney at law. But suppose it does comprehend an attorney in fact: non constat that the attorney in fact was Joel M’Pherson ; it may have been another: and non constat that the letter of attorney was the same filed in this cause; there may have been another: and to go into the enquiry would be to subvert the rule I have just stated, that a record must be proved by itself, and admits of nothing aliunde. Suppose, however, that the attorney mentioned in the record was Joel M’Pherson, and that his sole authority was the letter of attorney filed in this case: is the proposition a clear one, that he would have transcended his authority in making B the agreement for the stay of execution? I doubt exceedingly whether it would not have been within the scope of his authority. He might have consulted thereby the interest of his principals. And when we take into consideration the fact, that they were actually in possession of a trust fund belonging to the principal debtor, intended for their indemnity against this par-322 ticular debt, in equity *they became principals themselves : therefore delay was precisely what they may have most desired. But I will not elaborate this branch of the case. My proposition is, that the record is conclusive against them.”
    William B. Calwell and James Calwell presented a petition for an appeal.
    In a note by Patton as their counsel, subjoined to the petition, it was insisted that the judge of the circuit court had misconceived the question in the case; that his opinion was founded on the supposition that the plaintiffs seek to impeach the verity of the record, when such is not the fact. “On the contrary,” said the counsel, 1 ‘they insist upon the verity of the record. They, by their attorney, did confess the judgment. They expected and intended that Miller their principal should also com fess judgment. This, it is true, he did: but by an arrangement between him and the defendants in equity, without the knowledge or consent of the plaintiffs, or of any person acting for or authorized to act for them, he procured a stay of execution.” The attorney of the plaintiffs made no agreement that the execution should be stayed; ‘‘they made no such condition. The record alleges no such thing. And the proof not only shews that neither they nor any one else for them (either attorney at law or attorney in fact) made any such agreement, but it shews who did make the agreement. The proof is clear beyond doubt, that Miller acted for himself, and for himself alone; and it is equally clear that the attorney in fact, who acted for the plaintiffs in confessing the judgment, knew nothing about the arrangement, — neither assented to it nor was consulted about it.”
    The appeal was allowed.
    Price for appellants.
    There is no inconsistency and the entry upon the record. The circuit court seems to have supposed that the entry of the appearance of the defendants 323 by their ^attorney must mean that they appeared by an attorney at law. But that is not the necessary meaning of attorney: it means attorney at law or in fact, but does not necessarily mean either. And the record, therefore, does not estop the appellants from shewing by parol that the attorney meant was an attorney in fact. Not only did the circuit court hold it to work such estoppel, and to be conclusive • proof that an attorney at law was meant, but it seems to have supposed that Miller must of necessity have been that attorney. For this supposition there is no foundation. The original judgment was by default, and no information is to be derived from that to shew who was the attorney in the case. Is it to be presumed that Miller, the principal debtor, had been employed as the attorney of the sureties? This would be a presumption not only without proof, but against proof: for Miller expressly disclaims acting for the Calwells ; and M’Pher-son proves that he confessed the judgment. But suppose the record is to be considered as importing that the defendants appeared by an attorney at law and confessed the judgment; how far have the plaintiffs advanced? Not a step. The record shews that the plaintiffs at law by their attorney, agreed to stay execution. This is the very thing complained of; and the record is therefore evidence in our favour. The record does not shew with whom the agreement was made; it certainty does not shew an agreement between the Calwells and the plaintiffs at law for the stay: and we may therefore well contend that the burthen is, by the record, thrown upon the plaintiffs at law, to shew that the Calwells were parties to or acquiesced in the agreement. At all events we may shew with whom the agreement was made, — that it was with Miller, without shewing the record untrue. So far as appears from the record, the agreement was voluntary; but we are authorized to shew by parol what was the inducement to it; and the proof shews 324 the consideration. *What then was the effect of the agreement? The cases all shew that if there be an agreement for delay between the principal and the creditor, by which the hands of the creditor are tied, the sureties are discharged. Nisbet v. Smith and others, 2 Bro. C. C. S79; Eees v. Berrington, 2 Ves. jun. 540; Boultbee v. Stubbs, 18 Ves. 20; Samuel v. Howarth, 3 Meriv. 278; King v. Baldwin, 2 Johns. Ch. Rep. 560; S. C., 17 Johns. R. 390; Croughton v. Duval, 3 Call 69; Ward v. Johnson, 6 Munf. 6; Hill v. Bull, Gilm. 149; Bennett v. Maule’s adm’x, Gilm. 305; Norris v. Crummey&c., 2 Rand. 334; Hunter’s adm’rs v. Jett, 4 Rand. 107; Steele v. Boyd, 6 Heigh 547. If there had been no agreement of record, — If there had merely been a paper written and filed containing an agreement between the plaintiffs and Miller that the execution should be stayed, it would operate to discharge the sureties. The entry on the record can have no other effect.
    It will be contended on the other side, that Miller is incompetent. This case is like Hill v. Bull in this, that there, without Hite’s deposition, there was other abundant testimony, and here the testimony is abundant without Miller’s. But the objection there, that the witness was liable for costs, does not apply here. In Steele v. Boyd it was unanimously decided that the witness was competent; and the decision is in point. Here, though the Cal-wells got relief, Miller will not be released. His interest is equal on both sides. Ware v. Stephenson, 10 Leigh 155, is also a pertinent authority on the question of competency.
    The objection that William Calwell was indemnified by Miller’s deeds of trust, does not apply to James Calwell. But is there any force in the objection even as to William Calwell? What were the terms of the deeds? If William Calwell should have the money to pay, the property might be sold. But unless he is bound, he will not have it to pay, and therefore the deeds • cannot operate.
    325
    ^Robinson for appellees.
    The ground of the bill is, that the agreement to stay, though made at the same time that the defendants confessed judgment, and entered of record contemporaneously with that confession, was without their knowledge or. consent. Before en-quiring whether the parol evidence sustains the allegation,, the question arises how far such evidence is admissible to shew what took place in court? To what do we look “when the acts of a court of justice are the subject of evidence?” The answer is, that “courts of record speak by means of their records only.” 3Starkieon Ev. 1043. And the record imports in itself such in-controllable credit and verity, that it admits of no averment, plea or proof to the contrary. 3 Tho. Co. Eit. 323; Field v. Gibbs &c., Peters’s C. C. R. 155. This is not controverted; it is said that the appellants, so far from making any averment against the record, insist on its verity. If it had been averred that the Calwells had not appeared by attorney, and had not acknowledged the judgment, it is agreed that such averment would have been against the record, and no proof of it could have been received. But the argument is, that it is no contradiction of the record to aver that what is entered after the judgment, was without their knowledge and assent. An inspection of the record is sufficient to demonstrate the incorrectness of this proposition. The record states that the plaintiffs release to the defendants. This undoubtedly means, to all the defendants; to Miller, who had appeared in person, and to the other defendants, who had appeared by attorney. And if the release be to all the defendants, the agreement to stay the execution must be understood to be an agreement with all. It is only necessary to read the sentence, to see that this is its meaning. Agree with whom? Why, with the defendants, of course; with Miller, who had appeared in person, and with the other defendants, who had appeared by at-326 torney. No *other interpretation can fairly be placed upon the language, in the absence of words confining the agreement to Miller. Had it been understood to be with Miller alone, there would have been inserted, after the word “agree,” the words “with the defendant Miller.” Suppose, instead of one defendant appearing in person and the others by attorney, all had appeared in person or all by attorney, and the entry had stated that, the defendants came in proper person or came by attorney, and had been in all other respects exactly as it is; surely the agreement must, in each of those cases, have been understood to be with all the defendants who appeared. And if it would have been so understood in those cases, it must be understood in the same way in this. The other side leave out of ¿heir consideration the word agree; they would have the court to forget that this word necessarily imports that there is some person or persons with whom the agreement is made. If not, — if they admit that the import of the record is that there were two parties to the agreement, then the conclusion is irresistible, that, according to the record, the plaintiffs by their attorney constituted one party, and the defendants in person or by attorney the other party: just as in a case where a suit is entered, dismissed agreed, the plaintiffs constitute one party to the agreement, and the defendants the other; or as in the case of articles of agreement between A. B. of the one part, and C. D. and E. F. of the other, where, it being said that A. B. agrees, the necessary conclusion would be that the agreement was with C. D. and E. F. both. The record in this case, then, must be considered as importing not only that the agreement was with the knowledge of all the defendants, but also that it was with the consent of all.
    Bub it is not necessary that there should have been the express consent of all; it is enough if the agreement was with the knowledge of all. Now, as the record 327 *shews and the appellants admit that they appeared by attorney, this appearance charges them with knowledge of all the proceedings which took place in court in the case. And the agreement to stay being part of those proceedings, they cannot be heard to say that the agreement was without their knowledge. Suppose this were a case in which the defendants had all confessed judgment in proper person, the entry in other respects being as it is, and two of the defendants were hardy enough to aver that the agreement was without their knowledge; can it be imagined for one single moment that such an averment would avail? Surely not. For all that appear§ in the record is regarded as having been done publicly in court, and the parties who appeared are considered as present while there was action in the case, and privy to what was done. The agreement to stay, forming a part of the action in the case, must be held to have been made in their presence and with their knowledge, and no averment or proof could be received from them to the contrary. If this would be so in case all the defendants had appeared in person, how stands the case when one of them has appeared in person and the two others by attorney? The agreement to stay must, in this case, equally be held to have been made in the presence and with the knowledge of the attorney who appeared. It is in vain to urge that the agreement might in fact have been without the knowledge of the attorney. Either he must have known of it, or he might with reasonable care have known of it. With due attention, he could not have failed to acquire such knowledge, either on the day the proceedings occurred, or the next morning when they were read. 1 R. C. of 1819, ch. 69, ? 46, p. 237. And if, for want of proper attention, he did not in fact obtain such knowledge, though this may subject the agent to the action of his principals, it cannot relieve them from the consequences of that knowledge which he had or 328 might have had, *and which indeed they themselves might have had. In many cases, from considerations of policy, judicial proceedings affect third persons who are not parties to the case and have no actual knowledge of such proceedings, in like manner as if they had such knowledge. And in holding those who are parties to a case, and have appeared in it in person or by attorney, chargeable with knowledge of the proceedings in the case, the policy of the law is carried out with much more mildness, and upon grounds so reasonable that they cannot well be questioned.
    In the view which has been presented, it is enough that the Calwells appeared by attorney: it is immaterial by what kind of attorney they appeared; and it can be of no avail to urge that the attorney who appeared for them was not authorized to agree to a stay of execution. Being authorized (as they admit) to appear in the case for them and confess the judgment, he was authorized at least to take notice of what took place, and inform his principals of it: it was his du'y to take this notice and give this information ; it must be intended that he performed this duty; and their failure to object at the time, or soon afterwards, is an acquiescence in what was done. Moreover, the authority of an attorney to confess a judgment carries with it the authority to make arrangements as to the time of issuing the execution. If he may confess judgment with an immediate issue of execution, he may confess it also with a stay of execution. It may be said, there is a difference in this respect between the case of an attorney appearing under such a power as that to M’Pherson, and the case of an attorney having the general authority of an attorney at law. This is not admitted : but if there be such difference, this confession is entered in the mode in which it would have been entered if made by an attorney at law, and not in the mode in which judgments confessed at the 329 same term by *M’Pherson under powers of attorney were entered. It does not purport to have been confessed under a power of attorney, nor by him. But regarding the agreement as contemporaneous with the confession, it is wholly immaterial whether the confession was by an attorney at law or by an attorney in fact. Por, as the authority under which the confession was made is unquestioned, the confession is binding, and must preclude the appellants from impeaching its validity because of any agreement which had been made before the confession, or which was made contemporaneously with it, as effectually as a confession made in that state of the case by the defendants in person would have done. Whether the attorney knew of the agreement to stay or did not know of it, the result will be the same. If he knew of the agreement and still made the confession, he did that which ■ he was clearly authorized to do, and this confession bound his principals. It must l have been so, if the agreement to stay had j been entered first, and the confession of ! judgment entered afterwards; and it can- [ not the less be so, because of the order in which the two things are entered, supposing them to be contemporaneous. On the other hand, suppose the agent, when he made the confession, had no knowledge of the agreement to stay, and suppose, if he had possessed this knowledge, he would not have made the confession, (both of which suppositions are unauthorized by the facts of the case;) still, if the agent might with reasonable care have known of the agreement, and injury has resulted to his principals from the want of this care, the whole effect of such want of care (as before remarked) is to subject the agent to the action of his principals.
    These views are fully authorized by the general doctrines which pertain to the relation of principal and agent, and by the decision of judge Washington in the case of Field v. Gibbs &c. before cited. Al-330 though he *held the plea in that case to be no bar to the action on the judgment, yet he entertained no doubt that if the plea was true, the attorney was liable for damages to the party for whom he appeared. That no injustice will be done by acting upon this doctrine in the present case, abundant^ appears from the parol evidence, if it shall be found necessary to look into it. [The evidence of Eskridge and of North was here stated.] Well may Eskridge say, as he does say, that he did not think Miller, as a member of an hon-ourable profession, would assume to act where he had no authority. He had a right so to think. No warrant of attorney is known among us. Counsel deal with counsel as authorized to act in those cases in which they assume to act. The courts act upon this supposition also. It is our usage, and a usage which must be respected when the objection is taken that the action of counsel does not bind the party for whom he has assumed to act. In this case, however, it cannot be doubted that Miller was authorized to appear and act for the Cal-wells in every case in which he thought proper to appear and act,' — in this as well as the rest; and having acted for them as well as for himself, they are bound by his action. If they are not, still they are bound by M’Pherson’s conduct. On the day the | motion was directed to be docketed, he was ! aware of the objection taken to the bond. Yet he made no confession. He left Miller either to move to quash the execution and bond, or to make an arrangement with the plaintiffs’ counsel, for the Calwells as well as for himself: and when Miller had made such an arrangement, M’Pherson united with him in making the confession. The confession thus made, being after that arrangement, was necessarily subject to it. I He admits, too, that he was apprized of the stay of execution ; and as it was his duty to communicate this fact, we have a right to conclude that he did communicate it to his principals.
    331 *The deposition of Miller, we insist, cannot be used by the Calwells, because he is interested that they should succeed. To Sheilds & Somerville he is only liable for the principal, interest and costs recovered by their judgment, not for damages pending the injunction of the Cal-wells. Garnett v. Jones, 4 Leigh 633. Neither is he liable to them for their costs in equity. But if the injunction of the Calwells be dissolved, they may recover over against Miller whatever they may have to pay, (including the damages pending the injunction, and the costs in chancery) and may also recover against him the costs of their suit or motion. See Stowers adm’r of Bragg v. Smith’s ex’x, S Munf. 401. Miller is therefore more clearly incompetent than the principal obligor in Riddle v. Moss, 7 Cranch 206, or in Jones v. Raine, 4 Rand. 386. But if the- deposition of Miller be looked to it is obvious, taking it in connexion with that of Rsk-riJge, that Miller did not make the objection to the forthcoming bond merely for himself, but made it for the Calwells as well as himself, and that Rskridge’s suggestion of the confession and stay was to Miller not only for himself, but as representing the other obligors; and that when Miller “to this at once assented,” his assent was as well for the others as for himself. And all this may be so, though the confession of judgment for the Calwells was by M’Pherson.
    The fact not being established that the agreement was with Miller alone, or that it was without the assent or knowledge of the sureties, it is unnecessary to enquire how far the agreement by the attorney for the plaintiffs is binding on them. This however is clear, that if the agreement had not been a part of the proceedings in court, —if there had merely been an agreement in pais between the plaintiffs’ attorney at law and Miller that the execution should be stayed, such as was mentioned by the appellants’ counsel, it would not operate to discharge the sureties; because “an 332 attorney at law has *not, in virtue of his office, power to release the sureties of the principal debtor from whom he may have been employed to collect a debt, or to do any act which would have that effect, to his client’s prejudice.” This is the language of the court in Givens v. Briscoe &c., 3 J. J. Mar. 533. And Wilkinson & Co. v. Holloway, 7 Leigh 277, so far as it goes, sustains the same doctrine.
    But II. Upon what principle is it that William B. Calwell can come into equity and ask to be discharged, after he has diverted the property conveyed by Miller to secure him in respect to the debt due Sheilds & Somerville, from the purposes for which it was conveyed, and appropriated it to other debts of his own? If the case had been the other way, — if the deeds of trust had been made in terms to secure the creditor, and the creditor had disabled himself from transferring the securities to the surety, he would be precluded from so much of his demand against the surety as the latter might have procured if the transfer had been made to him. The rule is one of equity, which regards the property as dedicated to the debt. On the other hand, where the property is conveyed in terms for the surety’s benefit, the right of the creditor cannot be less. If a distinction in that respect be taken between a trust which is to cease and determine in case thp surety be indemnified and saved harmless, and a trust w’hich is only to cease in case the debt be paid, the answer is that these trusts are of the latter character. The terms are, that the right in the trustee shall cease if Miller shall pay off and discharge the bond. Certain it is, that when default was made by Miller in paying the bond, and William B. Calwell was required to pay it, • and damnified by the suit of Sheilds & Somer-ville, from that moment a case existed in which there was aright to sell the property under the trust, and consequently in which the creditors had a right to be substituted to the then existing rights of the 333 surety. If the creditors had *then brought a suit to obtain such substitution, even if the sureties had become af-terwards discharged by any act of the creditors, the creditors might yet be substituted to that right of the sureties which had become perfect before such discharge. And it may be questioned whether, by any transfer of the surety, this right of the creditors is destroyed. But undoubtedly, if, in consequence of ‘William B. Calwell being the cestui que trust on the face of the deeds, his power over the subject was complete, and the right of the creditors to charge the subject thereby lost, William B. Calwell can have no pretence to the equity which he claims. The very ground of this doctrine as to the effect of an agreement by the creditor to give time to the principal debtor is, that if no such time had been given, and execution could have issued at the suit of the creditor or at the suit of the surety, the debt might perhaps have been made out of the principal’s property. And the surety is not in a condition to ask equity to give him the benefit of this doctrine, when that which the doctrine supposes may perhaps have resulted from the creditor’s agreement, has been done certainly and directly by the surety himself; viz. diverting the debtor’s property from the debt. The case is yet stronger when we find the property diverted to effect other objects of the surety.
    Patton in reply.
    We concede that where the record is certain and unequivocal in its statements, it cannot be contradicted or disproved, except in certain cases upon the ground of fraud or mistake. But we do not concede that it is an estoppel as to all that counsel may think proper to infer. The sense in which lord Coke considers the record as importing such incontrollable verity, appears by the next sentence, where he says, “And if such a record be alleged, and it be pleaded that there is no such record, it shall be tried only by itself.” 3 Tho. Co. Lit. 323. What is the reason on 334 *which the doctrine rests? Eord Coke assigns it, immediately after the passage just referred to. “The reason,” he says, “is apparent; for otherwise there should never be any end of controversies.” Even between the same parties, the record is not always conclusive as to what appears on it. Seddon v. Tutop, 6 T. R. 607. The cases upon this subject are collected in the opinions delivered in Wood v. Jackson, 8 Wend. 1. It is a part of the rule laid down by De Gray, chief justice, in the case of The Dutchess of Kingston (which is one of those cited, p. 18), that a judgment is not evidence of a matter incidentally cognizable, nor of a matter to be inferred by argument from the judgment. And so it is laid down by lord Coke, that every es-toppel “must be certain to every intent, and not to be taken by argument or inference,” and that “every estoppel ought to be a precise affirmation of that which maketh the estoppel.” 3 Tho. Co. Kit. 431. In the present case, the record is wholly ambiguous and uncertain as to the material facts. It shews that the acknowledgment of judgment for the Calwells was by an attorney ; but who that attorney was, or whether an attorney at taw or in fact, does not appear. It shews that the plaintiffs agreed to stay the execution; but with whom they agreed, whether with Miller, or the attorney for the Calwells, or both, or whether the agreement was voluntary or not, the record does not shew. And yet the court is asked to supply all these matters about which the record gives no information, upon the ground that the record is conclusive. If the construction of the entry contended for on the other side were a more probable one than it is, still it would be a complete answer, that the conclusion is onl}r arrived at by ingenious, protracted and inferential ratiocination, and the record is no estoppel as to what is ascertained by argument and inference. And there is another rule of law which would preclude the appellees from relying on the es-335 toppel, if otherwise they *might have relied on it. They have not only answered as to the matter of fact, but have proceeded to take evidence in support of their allegations. The rule of law is, that if a party having a right to rely on an es-toppel does not plead it, but merely relies on it as evidence, the truth of the matter may be proved. Wood v. Jackson, 8 Wend. 18; Davis’s adm’r v. Thomas &c., 5 Keigh 1; Vooght v. Winch, 2 Barn. & Aid. 662; Trevivan v. Kawrence, 1 Salk. 276; Outram v. Morewood, 3 East 346; Stoughton v. Kynch, 2 Johns. Ch. Rep. 210.
    As to the matters, then, about which this record is claimed to be conclusive, it can only be evidence so far as it goes, liable to have its defects supplied by parol proof. Indeed, parol proof is not only admissible to supply defects, but may be received to shew that what from the record, in the absence of evidence, would be supposed to be the fact, is not so. Shelton and others v. Ward, 1 Call 538; Stolers adm’r of Bragg v. Smith’s ex’x, 5 Munf. 401.
    Of what is the record in this case evidence? It shews, it is said, that the release was to the defendants. Does it follow that the agreement for a release was with the defendants? It was not only the interest but the duty of the plaintiffs’ counsel to make the release, whether there was any agreement for it or not. As it regards the agreement to stay, there is nothing to shew that it was by contract with any person at all; it may have been voluntary, having no more of the nature of a contract than an entry of the plaintiff’s agreeing to dismiss a suit in which there was no appearance by the defendant. But if not voluntary, what is there to authorize the inference that the agreement was with all the defendants, rather than with Miller alone? It seems to be supposed that in articles of agreement inter partes, every agreement by the.party of one part must necessarily be considered to be with all those of the other part. This will be so or not, just as the articles 336 shew 'x',or do not shew that the agreement was with all or only one of them. Platt on Covenants 130. Reference was also made to the entry of a suit dismissed agreed. Such an entry purports an agreement between the parties, because it states that the parties came by counsel, and by their agreement, or by their consent, the suit is dismissed.
    But it is argued that because the record shews that the defendants came by their attorney, whether the agreement was with them or not, they must have known of it. In such a case as this, it is necessary that there should have been actual presence and actual knowledge by some persons who had authority to assent or ratify. If the Cal-wells had been personally present at the time of the agreement to stay the execution, and had made no objection to it, they would have been bound; but if they were not present and did not know of it, then, whether the agreement preceded or followed the judgment, they will not be bound. The argument that the attorney of the Calwells either knew of the agreement or might have known of it, will not avail. Suppose he did know of it, was it his duty or had he any right to object? He had a right to conclude that it was either voluntary, or with Miller alone, or with his clients; and neither way was he bound to object, or communicate the matter to his clients. If the attorney had interfered when the agreement was with Miller alone, and would have operated to discharge the sureties, well might it be said that he would be liable to the action of his principals. It was his duty not even to tell his clients, if by telling them he exposed them to the danger of having the liability revived.
    It is thought just that relief should be denied to the appellants, and they left to pursue either Miller or M’Pherson. Pursue Miller for what? Was he their attorney? Does the record shew it? The attorney at law who is to bind the 337 party must be the attorney on ^record. And here the record gives the name of no attorney. Ought the appellants to pursue M’Pherson? What was his authority and what was he to do? He could do nothing which he was not expressly authorized to do. Livermore on Agency 69, 94, 97, 103; Paley on Agency ISO. And he has done nothing but what he was authorized to do. Would it not be as just to send the appellees in pursuit of Eskridge? If loss is to be inflicted on any agent in this transaction, on whom should it be but him?
    (Here Patton examined the evidence, and argued that the agreement to stay the execution was with Miller alone; that he was not the attorney for the Calwells in this case, never told Eskridge he was acting for them, and in fact did not act for them, but left M’Pherson to confess the judgment as their attorney; that though Miller had said, in the most explicit terms, he was their attorney and would confess judgment if thereo was a stay of execution, they would nevertheless not be bound, if he had not done what he said he would do; that though he had assumed to act for them, yet if he so assumed in a case in which they had another attorney, and in which he was not authorized to act for them, this would not bind them, Kennedy v. Gibbes, 2 Desauss. 380; but that in truth he had not assumed to act for them, for Eskridge’s statement that he so assumed must be regarded not as a statement of a fact, but as his opinion upon the facts; that for this opinion Esk-ridge had no sufficient ground; that no authority to Miller to appear in this case could be implied from his appearing for the Calwells in other cases, .Wolstenholm v. Davis, Ereeman’s Cas. in Ch. 289, especially as the Calwells, so far from leaving the matter open to him to appear or not, had constituted another attorney; and that if, upon the whole evidence, the court should regard the same as balanced, the burthen of proof was on the appellees, and they must fail.)
    338 *It seems to be supposed that Esk-ridge, who is directly interested, and against whom this very record could be used by his clients to charge him, is competent, and that Miller is not. (Robinson. There being no exception to the competency of Eskridge, that question is not before this court; there is an exception to Miller’s deposition.) On what ground is Miller to be held incompetent? It is objected that he is liable to the sureties for costs; and the cases of Riddle v. Moss, 7 Crannh 206, and Jones v. Raine, 4 Rand. 336, are referred to. Those cases do not apply. The costs there were a necessary incident to the obligation of suretyship. The costs here are not of that character; the surety comes here upon a new and independent ground. But the point is adjudged in Steele v. Boyd, 6 Leigh S47. That case shews that the principal is not liable for the costs in this case. And if not liable for costs, he cannot be for damages. The damages are a penalty only upon the party who prosecutes the injunction. Miller is clearly not liable for them to the creditor. Nor is he liable to the sureties. In Stowers adm’r of Bragg v. Smith’s ex’x, 5 Munf. 401, the damages and costs were incurred in resisting the liability in consequence of the contract of suretyship; and that case is therefore clearly distinguishable from this, in which the controversy is (as before mentioned) upon new and independent ground.
    To the proposition in Givens v. Briscoe &c., 3 J. J. Mar. S33, as applied to the case in which it is found, there is no objection; but it can have no application here. In Norris v. Crummey &c., 2 Rand. 334, judge Green puts the case of a judgment with an entry of record staying the execution, as one of the modes by which sureties may be discharged. The principle is, that whatever an attorney does in the course of a suit is binding on his client: the client is bound although the attorney was ex-339 pressly prohibited from doing *it. Huston v. Mitchell, 14 Serg. & Rawle 307. This subject is well considered in Denton & others v. Noyes, 6 Johns. R. 296.
    In concluding upon the main question, Patton referred to Skip v. Hue, 3 Atk. 91; Eyre v. Bartrop, 3 Madd. C. R. 221, am. edi. 120; Chichester’s adm’r v. Mason, 7 Leigh 244, and to the other cases cited by Price as to the effect of an agreement between the principal and creditor by which the hands of the creditor are tied. He referred to them to show not only the general principle, but also the manner in which it had been applied.
    II. He examined the validity of the objection that William B. Calwell was not entitled to relief because he had released property conveyed for his benefit. He argued, that both deeds were in terms for the purpose of reimbursing William B. Calwell what he might have paid; that though there might have been a power to sell if he had required it, still he was not bound to require a sale; that if the creditors had in terms given William B. Calwell a release, they could not afterwards come into equity and complain that property previously conveyed, for his benefit, had, after the release, been discharged; that here William B. Calwell had been discharged as effectually as he could be by a deed of release, and being discharged, had done no wrong in giving up property conveyed for his indemnity, there being no obligation, either legal or moral, to hold on to the property for the benefit of the creditors.
    
      
      Records — Conclusiveness of. — Courts of record speak by means of their record, and the record imports in itself such incontrollable credit and verity that it generally admits of no averment, plea or proof to the contrary. Perry v. McHuffman, 7 W. Va. 308, citing Calwells v. Sheilds, 2 Rob. 305. See also, citing the principal case for this proposition, Craig v. Sebrell, 9 Gratt. 134; Ins. Co. v. Barley, 16 Gratt. 385 ; Richardson v. Jones. 12 Gratt. 56; Richardson v. Donehoo, 16 W. Va. 713.
      Judgments by Confession — Power of Attorney. — See monographic note on “«Judgments by Confession” appended to Richardson v. Jones, 12 Gratt. 53.
    
   BALDWIN, J.,

delivered the following as the opinion of a majority of the court:

The court is of opinion that the entry in the proceedings mentioned on the motion for award of execution upon the forthcoming bond, must be taken altogether, and. regarded as the record of a judgment between the parties, upon the confession of the defendants therein, with the condition of a stay of execution: that it not ^'appearing' from that record, whether William B. Calwell and James Cal-well appeared by an attorney at law or an attornej’ in fact, evidence aliunde is admissible for the purpose of proving that they appeared by an attorney in fact, and to shew the authority under which he acted: that the power of attorney from said Cal-wells to Joel M’Pherson, under which the latter acted, did authorize the confession of judgment with stay of execution, appearing from said record: and that parol testimony is not admissible to prove that so much of said entry as relates to the stay of execution was without the consent and concurrence of said M’Pherson. It is therefore considered that the decree be affirmed with costs.

STANARD, J,, dissented. He was of opinion that the injunction should be perpetuated, so far as it restrained proceedings as 10 James Calwell.  