The opinion of the court was delivered by
Ford, J,
This writ of error brings up a judgment recovered in Hunterdon Pleas, by the executors of John Chamberlin, deceased, against Ralph Hunt on a bond and warrant of attorney. The bond was. not made by Ralph Hunt alone, but by Daniel Hunt and Ralph Hunt, wherein they bound themselves jointly and severally. The warrant was to any attorney to appear to an action to be brought, as it says, “ against us.” After the death of Daniel Hunt, judgment was confessed by virtue of this warrant in an action against Ralph Hunt alone. The first exception taken to the record is, that the warrant contains no authority to appear to an action against only one of them, and confess judgment against him alone. In determining this matter we are to take the precedents and principles of the common law for our guide; and in doing so we shall find this judgment inconsistent with both.
First—As to precedents, I do not know that the question ever came up in this court before; but it has presented itself •frequently in the books, and judgments of this kind have been disallowed in all the courts of Westminster Hall.
In the case of Still v. Still, 1 Barn. 35, the Court of Common Pleas fell into the error of allowing it; but they soon afterwards sot themselves right by refusing leave, in the case of Laycock v. Garforth, 2 Barn. 38, which was in the year 1751, upwards of half a century ago, and from that time to this day it has never been permitted in the Common • Pleas. We may wTell suppose that court, which is some[416] times called the lock and key of the common law, would not have unsettled one of their decisions unless they had discovered in it-a great departure from reason and principle.
With regard to the King’s Bench they never fell into this error, but uniformly refused leave to enter judgment against the survivor upon a joint warrant. In the case of Gee v. Lane, 15 East. 592, it was refused by the whole court; and Ellenborough, 0. J. said, an authority to enter judgment against “us," will not warrant a judgment against one alone; the authority must be pursued; we cannot violate it. There never has occurred in the King’s Bench one valid case as far as I can learn to the contrary of Gee v. Lane. It is not intended to deny that the case of Todd v. Dodd, Sayer 5, was in the King’s Bench; nor, according to Bayer’s report, that it was the other way; but the accuracy of it as reported by him is highly questionable. Though in Qee and Lane, it would have been an authority in point for the plaintiff, it was neither cited from Bayer by the counsel, nor the least notice taken of it by him or the court. And its being treated with such silent neglect, both by the bar and the bench, renders it very suspicious. It could not have been over-looked, for Todd v. Dodd, is reported both by Bayer and Serjeant Wilson, and most authors in quoting it refer to both those reporters. They are undoubtedly the same case from the identities of name, court, year and term; jet Abbot does not cite the case from Bayer who has it in point for him, but from 1 Wils. 312, though according to Wilson, it has little if any bearing in favor of the motion. Bayer represents the warrant as having been given by two persons, one of whom was dead; but he names neither of them; Serjeant Wilson represents the warrant as being given by only one person, Richard Dodd, whom he names, and the present question could not have been directly before .the court. If therefore 0. J. Lee really said what is ascribed to him by Bayer, it must have been an obiter dictum, a random observation collateral to the point, which Serjeant Wilson deemed unneces[417] fsary to be put down. It was a warrant to confess judgment to two persons, and one of them being dead, leave was asked to enter it up in favor of the survivor, and it was granted. Laying this contradicted case aside there never was a time in that court, when they would grant leave to enter judgment against one person only on a joint warrant executed by two. Therefore for upwards of half a century those courts have constantly refused leave to enter such judgment, because it would bo unauthorized by the warrant and consequently illegal. It would be contrary to every allowed precedent that can bo found. I have also sought with some care the light that is often shod from the tribunals of neighboring states, but have not found a single departure from the current of cases before mentioned; and it would appear bo mo highly indiscreet to put afloat what has been so thoroughly settled heretofore.
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The opinion of the court was delivered by
Ford, J,
This writ of error brings up a judgment recovered in Hunterdon Pleas, by the executors of John Chamberlin, deceased, against Ralph Hunt on a bond and warrant of attorney. The bond was. not made by Ralph Hunt alone, but by Daniel Hunt and Ralph Hunt, wherein they bound themselves jointly and severally. The warrant was to any attorney to appear to an action to be brought, as it says, “ against us.” After the death of Daniel Hunt, judgment was confessed by virtue of this warrant in an action against Ralph Hunt alone. The first exception taken to the record is, that the warrant contains no authority to appear to an action against only one of them, and confess judgment against him alone. In determining this matter we are to take the precedents and principles of the common law for our guide; and in doing so we shall find this judgment inconsistent with both.
First—As to precedents, I do not know that the question ever came up in this court before; but it has presented itself •frequently in the books, and judgments of this kind have been disallowed in all the courts of Westminster Hall.
In the case of Still v. Still, 1 Barn. 35, the Court of Common Pleas fell into the error of allowing it; but they soon afterwards sot themselves right by refusing leave, in the case of Laycock v. Garforth, 2 Barn. 38, which was in the year 1751, upwards of half a century ago, and from that time to this day it has never been permitted in the Common • Pleas. We may wTell suppose that court, which is some[416] times called the lock and key of the common law, would not have unsettled one of their decisions unless they had discovered in it-a great departure from reason and principle.
With regard to the King’s Bench they never fell into this error, but uniformly refused leave to enter judgment against the survivor upon a joint warrant. In the case of Gee v. Lane, 15 East. 592, it was refused by the whole court; and Ellenborough, 0. J. said, an authority to enter judgment against “us," will not warrant a judgment against one alone; the authority must be pursued; we cannot violate it. There never has occurred in the King’s Bench one valid case as far as I can learn to the contrary of Gee v. Lane. It is not intended to deny that the case of Todd v. Dodd, Sayer 5, was in the King’s Bench; nor, according to Bayer’s report, that it was the other way; but the accuracy of it as reported by him is highly questionable. Though in Qee and Lane, it would have been an authority in point for the plaintiff, it was neither cited from Bayer by the counsel, nor the least notice taken of it by him or the court. And its being treated with such silent neglect, both by the bar and the bench, renders it very suspicious. It could not have been over-looked, for Todd v. Dodd, is reported both by Bayer and Serjeant Wilson, and most authors in quoting it refer to both those reporters. They are undoubtedly the same case from the identities of name, court, year and term; jet Abbot does not cite the case from Bayer who has it in point for him, but from 1 Wils. 312, though according to Wilson, it has little if any bearing in favor of the motion. Bayer represents the warrant as having been given by two persons, one of whom was dead; but he names neither of them; Serjeant Wilson represents the warrant as being given by only one person, Richard Dodd, whom he names, and the present question could not have been directly before .the court. If therefore 0. J. Lee really said what is ascribed to him by Bayer, it must have been an obiter dictum, a random observation collateral to the point, which Serjeant Wilson deemed unneces[417] fsary to be put down. It was a warrant to confess judgment to two persons, and one of them being dead, leave was asked to enter it up in favor of the survivor, and it was granted. Laying this contradicted case aside there never was a time in that court, when they would grant leave to enter judgment against one person only on a joint warrant executed by two. Therefore for upwards of half a century those courts have constantly refused leave to enter such judgment, because it would bo unauthorized by the warrant and consequently illegal. It would be contrary to every allowed precedent that can bo found. I have also sought with some care the light that is often shod from the tribunals of neighboring states, but have not found a single departure from the current of cases before mentioned; and it would appear bo mo highly indiscreet to put afloat what has been so thoroughly settled heretofore.
But secondly—This judgment is at variance with that fixed principle or maxim of the common law, that delegated ]lowers must be strictly pursued; they can never be enlarged by construction, and are never to be exceeded. If power be given to an attorney or agent to sell ten acres out of a large tract, courts of justice will no sooner enlarge it by construction to twelve acres than to twelve hundred. A different rule would not only deter men from ever delegating power to others, and so put a stop to factors and agencies in commerce, but also vest a most dangerous discretion in courts of justice to vary the agreements of parties. Ellenbob,ough, O. J. in Gee v. Lane, gives to such an act its true character, in calling it a violation of powers. The present warrant empowers an attorney to appear in an action to be brought against Daniel Hunt and Ralph Hunt both, and extends no further; its language is, “to an action to be brought against us, and confess judgment against us.” They were willing to stand together in judgment, and to meet an execution by their joint means and exertions. But it gives no authority [418] for placing one of them in judgment by himself, and leaving him all alone to breast an execution for the whole sum, while the means and estate of the other remain untouched and undisturbed. Judgment by confession is followed by an immediate seizure of the goods and estate of one, while a remedy against his co-obligor may come so late as not to arrive till after he is ruined. If the creditor is left to proceed on his joint and several obligation in the ordinary way he will bring an action against each, especially if requested so to do; one against the survivor and another against the representatives of the deceased; or the survivor if he be only security, might have a little time to obtain relief from the estate of the principal; and if these facilities are taken away and he involved in the evil consequences of losing them, the blame cannot fall upon the warrant of attorney, but on the court for suffering the limited power therein expressed to be exceeded and violated. A warrant of attorney by two persons, may like an obligation, be drawn joint, or joint and several; and it will never do to confound together things which in their nature are so distinct. If innovations must be made it could be no less obnoxious in principle to convert a joint obligation, by construction, into joint and several, than to take this violent course with a power of attorney. I therefore feel constrained, as well from the force of principle, as weight of precedent, to consider the warrant of attorney in this case as no authority for the entry of the judgment, and consequently that the judgment is erroneous. A consideration of the remaining objections becomes evidently unnecessary.
Let the j udgment be reversed.