
    Spence v. Emerine.
    
      Cognovit.
    
    1. A warrant of attorney to confess judgment should be strictly construed.
    2. A warrant of attorney attached to a sealed note payable to the payee or bearer, authorized “ any attorney at law, at any time after the above sum becomes due, with or without process, to appear for us in any court .of record in the state of Ohio, and confess judgment against us, for the amount then due thereon, with interest and costs, and to release all errors and the right of appeal,” Held:
    
    
      (a) Such warrant of attorney conferred no authority to confess judgment against the maker of the note, in favor of the holder to whom the payee had transferred the note by delivery.
    
      (b) In an action on the note, it was error to render judgment against the maker thereof in favor of such holder, by virtue of such warrant of attorney, without summons or other notice to the maker of the bringing of the action.
    (Decided May 21, 1889.)
    
      Error to the Court of Common Pleas of Sandusky County.
    The defendant in error, Andrew Emerine., to whom a sealed note, payable to E. S. Clark, or bearer, had been transferred by delivery, took a judgment thereon against the maker, John Spence, plaintiff in error, by confession, under a warrant of attorney attached thereto, at the September Term, 1887, of the Court of Common Pleas of Sandusky County.
    The following is a copy of the note and warrant of attorney.
    “$250.00. Springfield, O., Dec. 17, 1885.
    “On the 1st day of Oct. 1887, I promise to pay to E. S. Clark, or bearer, two hundred and fifty dollars, for value received, with 6 per cent, interest from and after Sept. 1st, 1886, until due, and 8 per cent, after due; interest to be paid annually after maturity.
    “And we jointly and severally hereby authorize any attorney-at-law, at any time after the above sum becomes due, with or without process, to appear for us in any court of record in the state of Ohio, and confess judgment against us, for the amount then due hereon, with interest and costs, and to release all errors and the right of appeal.
    “ Witness our hands and seals.
    “ John Spence, [Seal.]
    “ Post-office, North Hampton.”
    By leave of this court, for the reasons set forth in the application of the plaintiff in .error to file a petition in error, he filed such petition in error to reverse said judgment, and made the following assignment of error :
    “Said court of common pleas erred in rendering judgment in favor of the defendant in error against the plaintiff in error, without summons or other notice of the bringing of said action, by virtue of a warrant of attorney attached to the note sued on in said case below, because said warrant did not authorize the confession of a judgment in favor of said defendant in error, and said common pleas court, therefore, had no jurisdiction over the person of the plaintiff in error.”
    
      
      Harrison, Olds & Marsh, Bowman & Bowman, for plaintiff in error.
    I. To authorize the confession of judgment in favor of the equitable transferee of a sealed promissory note, payable to the payee or bearer, by virtue of a warrant of attorney; the warrant must expressly authorize the confession of a judgment in favor of the transferee. That is to say, unless a warrant of attorney expressly authorizes the confession of judgment in favor of the payee of the note, or in favor of any holder thereof, the warrant is void for its uncertainty, or else it merely authorizes the confession of judgment in favor of the payée. Osborn v. Hawley, 19 Ohio, 130; Marsden et al. v. Soper, 11 Ohio St. 503; Watson v. Payne, 25 Ohio St. 340; Cushman v. Welsh, 19 Ohio St. 536 ; Clements, v. Hull, 35 Ohio St. 141; Reams v. Bank of Lima, 2 Ohio C. C. Rep’ts, 43.
    II. A warrant of attorney to confess j udgment, which does not state in whose favor the judgment may be confessed, is void for its uncertainty. It is fatally defective for want of an essential term. This essential term cannot be supplied by intendnvmt or presumption. The rule of strict construction of such warrants, has been repeatedly laid down and applied with a firm hand by the courts, including this court. Cushman et al. v. Welsh, and other cases before cited; 5 Hill, 497; 15 East. 592; 7 Taunt. 452; 61 Ill. 236; Short v. Coglin, 1 Anstruther, 225 ; Henshall, Ex’r v. Mathews, 1 Dowling’s Pr. Rep. 217; Foster v. Clagget, 6 Dowling’s Pr. Cases, 524; Cowie, Ex’r v. Allaway, 8 Dunf. & E. 257; Lewis et al. v. Moon, 1 Ohio C. C. R. 211; Carlin v. Taylor, 7 Lea (Tenn.) 666 McDoal v. Yeoman, 8 Watts. (Pa.) 361; Lamaurieux v. Hewitt, 5 Wend. 308.
    III. But if the courts could aid, by intendment or presumption, the words of the power, they would not do so by liberal and extensive construction; but, on the other hand, they would only aid any omission or defect in its terms, by necessary implication, guided by the rule of strict construction.
    Yet, even under the liberal rule of construction, there are as strong, if not stronger reasons for presuming the obligor intended the power to■ be exercised in favor of the obligee only. The obligee was the only other party the obligor had in mind at the time he entered into the obligation. The obligee was the person, and the only person, with whom the obligor dealt or contracted. A transfer of the note “by endorsement theron,” if made before the maturity of the note, would preclude any defense which the obligor might have at maturity. Can it be presumed that the obligor desired also to confer the further right upon any transferee to get judgment without process? It seems plain to us that the maker of such a note would much more likely intend that only the payee should have the right to take judgment without process; and that if the intention had been to confer such extraordinary right upon any transferee, the warrant would have so provided.
    In this class of instruments, which may be, and in point of fact often are used to carry out schemes of fraud or oppression, and upon which judgments may be taken without notice, the courts do not apply a liberal rule, nor feel at'liberty to give them such scope as the maker may be supposed to have intended ; but, on the contrary, the courts go only so far as they are compelled by the express terms of the power, or by necessary implication. In many instances, these instruments are snares prepared to entrap the unwary. In the state of Illinois warrants of attorney or cognovit notes, have been abrogated by statute. The good citizens of the state got tired of this instrumentality of fraud and oppression, and the general assembly came to their relief.
    
      McCauley & Weller, for defendant in error.
    I. It was held in Osborn v. Hawley, 19 Ohio, 130, that a power of attorney to confess judgment, attached to a negotiable promissory note, when the note is transferred becomes inoperative and void.
    The correctness of this holding was questioned in Marsden v. Soper, 11 Ohio St. 503.
    The same question was made in Watson v. Paine, 25 Ohio St. 340. The court in this case did not seem to be fully agreed on the point, but Mcllvaine, C. J., in the opinion p. 346, states some very obvious reasons why no such rule should be held.
    In the later case of Clements v. Hull, 35 Ohio St. 141, it was held that 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.
    The rule is therefore settled that the transfer of the note does not render the power void. That result would probably follow in the single case of the transfer of a note with a power attached to confess judgment for the payee only.
    In the case before the court the note was a plain promissory note, payable to bearer, and while it was in fact under seal, the fact was of no consequence. The statute of April 14, 1884, Ohio L. 81, p. 198, abolished private seals, so that the note was negotiable by delivery.
    If therefore, as held in Clements v. Hull above, it was competent to confess a judgment in favo;' of an equitable holder of a note, there could be no possible objection to confessing a judgment in favor of a person holding a note as this one was held, unless the power of attorney in this case is bad for uncertainty.
    II. It is a,well settled rule that formal instruments, such as powers of attorneys, are subject to a strict construction; that is, where powers are expressly limited to a specified person, or to be exercised in a designated court, county or state, or in favor of a certain person, or at a specified term of court, or in any other of the many ways in which they may be so limited, the courts restrain the exercise of the power within the limits clearly expressed.
    Many instances of this kind may be found. • The plaintiff in his brief has referred to quite a number of them. The only fair inference from these cases is, that the power conferred on a particular person must be exercised by him only. An examination of the cases in which a strict construction has been enforced will show, that where a power is expressly limited, the court will not extend it beyond the limits expressed.
    The power in this case authorized any attorney-at-law, with or without process, to appear for us in any court of record in the State of Ohio and confess judgment against us for the amount due hereon, etc.
    There was a distinct authority here to confess a judgment against the maker. The authority was not limited to be exercised for any person, or class of persons. The exercise of this clear grant of authority necessarily implied that the judgment should be in favor of some person, or class of persons; some holder, either the payee or, as stated in the note, “ the bearer some party in interest who might properly bring an action on the note.
    The rule on this subject is clearly stated in Ewells Evans on Agency, 145, (marginal).
    Authority is clearly given in terms to confess a judgment against the maker of the note. That authority is-not ambiguous or uncertain, either in terms or meaning. It is not easy to see how this authority,could be exercised without confessing a judgment in favor of some holder of the note.' A judgment must have been so confessed, as a necessary means of executing the authority so clearly given, with effect.
    It does not follow that because the power necessarily includes the payee, it necessarily includes no one else.
    If it includes the payee while he owns the note, it includes the transferee in the same sense when he becomes the owner of it. This results from the negotiable quality of the note, and the fact that the power follows it upon its transfer. The transferee therefore shows a necessary implication including him when he alleges ownership of the note with such a power attached to it.
   Dickman, J.

Although at common law a note under seal is not negotiable, either by delivery or indorsement, so as to enable the holder to maintain an action upon it in his own name, the sealed note now under consideration became negotiable hy statute, unless its negotiability was destroyed by the warrant of attorney attached to it. It is provided by section 3171 of the Revised Statutes, that all bonds and promissory notes, for a sum certain, and payable to any person or order, shall be negotiable by indorsement thereon; “ and all such instruments payable to a person or bearer shall be negotiable by delivery.” . In this state, it is held that if the note is in itself certain and perfect, without conditions, it may remain negotiable, although the power of attorney to confess judgment attached to and forming a part of the note, may not, by its terms, operate in favor of an indorsee or transferee of the note. Osborn v. Hawley, 19 Ohio, 130.

Whether the warrant of attorney can be executed for the benefit of a holder of the note other than the payee, must depend upon the language of the warrant itself. But it is an established principle, that an authority given by warrant of attorney to confess a judgment against the maker of the note, must be clear and explicit, and strictly pursued, and we cannot supply any supposed omissions of the parties. Cushman v. Welsh, 19 Ohio St., 536 ; Cowie v. Allaway, 8 T. R., 257 ; Henshall v. Matthew, 1 Dowling’s Pr. Cas., 217 ; Foster v. Claggett, 6 Dowling’s Pr. Cas., 524; The Manufacturers’ and Mechanics’ Bank of Philadelphia v. St. John, 5 Hill, 497. In all cases of special agency, an agent constituted for a particular purpose, and under a limited power, cannot bind his principal if he exceeds that power. The special authority must be strictly pursued. 2 Kent’s Com., 621. And the same principle may be traced back to the Roman law, by which, when the authority was express or special, the agent was bound to act within it.

The'plaintiff in error, in executing the note, might be presumed to have authorized an attorney to enter up a judgment against him in favor of the payee, when he would-not be presumed to have consented to stand in the relation of judgment debtor to a stranger or adverse holder, to whom the payee might.indorse or deliver the note. The maker might well insist upon a strict construction of the power granted, when the payee, by transferring the note before maturity, might preclude a defense which he might hav« at maturity. The power of attorney attached to the note in controversy, does not, in express language, authorize a confession of judgment in favor of any one, not even of the payee; but if such authority might be implied as to the payee, we cannot, under the rule of a strict interpretation, extend that implication in favor of the defendant in error to whom the note was transferred by delivery.

In Osborn v. Hawley, supra, as appears from a certified copy of the journal entry in the court of common pleas, upon which error was assigned, the warrant of attorney did not indicate in whose favor a judgment might be confessed, and it was held, that when the legal title to the note was transferred, such power of attorney became invalid and inoperative, and no authority whatever could be exercised under it for the benefit of the indorsee.

In Marsden v. Soper, 11 Ohio St. 503, the warrant of attorney under which judgment was confessed, purported to authorize such confession “in favor of any holders of this obligation,” at any time after the same became due; but the court questioned, whether such a warrant of attorney would be legally operative, to authorize the confession of a judgment in favor of an indorsee of such note.

In Cushman v. Welsh, supra, the power was conferred by the terms of the instrument, to confess judgment only “in favor of the legal holder of the note,” and it was decided that a warrant of attorney for the confession of such a judgment,' did not authorize a confession of judgment on such note in favor of the owner and holder thereof, without'an indorsement thereon by the payee, as provided by the statute, transferring the legal title to such owner and holder of the note.

In Watson v. Paine, 25 Ohio St. 340, the warrant of attorney attached to the note gave authority to appear in any court of record in the United States, and confess a judgment against the makers, “ in favor of the holder of the note.” The point was made in the case, that the warrant of attorney did not authorize the waiving of process, or an appearance for the makers, in an’action brought by an indorsee of the note; in other words, that the power of attorney was not negotiable. The court did not find it necessary to decide the point, but it was said by Mcllvaine, J., in delivering the opinion of the court, I am unable to find a reason why a power to confess judgment in favor of any holder of the note, may not as well be used in favor of an indorsee as in favor of the payee.”

In Clements v. Hull, 35 Ohio St. 141, the scope of the power was not limited as in Cushman y. Welsh, supra, in favor of the legal holder only, but the authority given by the warrant of attorney was, “ to confess judgment in favor of the holder of said note.” It was by virtue of such language in the warrant, that the court was of opinion, that the power authorizing waiver of process and confession of judgment-might be executed in favor of an equitable owner and holder, to whom the sealed note — payable to a designated payee or bearer — had been transferred by delivery, without indorsement thereon as required by the statute.

It will thus be seen, that where it has been adjudged by the court that a power of attorney to confess a judgment may be executed in favor of a party other than the payee, it has been in cases w'here authority was expressly conferred to confess a judgment in favor of a legal holder or holder of the note. The decisions have all been based upon a strict interpretation of the power granted, without aiding any omission or defect in its terms by liberal intendment or construction.

In accordance with the views which we have expressed,’ our conclusion is, that the warrant of attorney attached to the note sued on, did not authorize a confession of judgment in favor of defendant in error, and there having been no summons or other notice to the plaintiff in error oF the bringing of the original action, the court of common ' pleas acquired no jurisdiction over t-he person of the plaintiff in error, and erred in rendering a judgment against him.

We are therefore of opinion, that the judgment of the court of common pleas should be reversed, and the petition in that court dismissed without prejudice.

Judgment accordingly.  