Latimer, 14 Ohio, 542. The waiving of process, and confession of judgment in favor of the plaintiff below, was not, then, within the authority conferred by the power of at torney. Under the rule of interpretation applicable to such instruments, we must conclude that the jurisdiction of the defendants below, obtained through the warrant of attorney only, and the confession of judgment by means thereof, exceeded the authority conferred by the defendants in their power of attorney, and that the court, therefore, erred in overruling their motion to set aside the judgment, irregularly obtained against them.”

The supreme court of Ohio, after referring to its prior adjudications, said: "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; Henshail v. Matthew, 1 Dowl. P. C. 217; Foster v. Claggett, 6 Dowl. P. C. 524; ManufacturIn Watson v. Paine, 25 Ohio St. 340, ers' & M. Bank v. St. John, 5 Hill, 497. which was an action upon a judgment based The power of attorney attached to the note on a warrant of attorney attached to a in controversy does not, in express language, promissory note, and which authorized any authorize a confession of judgment in favor attorney at law to confess judgment in favor of anyone, not even of the payee; but if of the holder of the note, the point was such authority might be implied as to the made that the warrant of attorney did not payee, we cannot, under the rule of a strict authorize the waiving of process or an ap- interpretation, extend that implication in pearance for the defendants in an action favor of the defendant in error, to whom the brought by an indorsee. The members of note was transferred by delivery. the supreme court of Ohio were divided in It will thus be seen that where it has been opinion on that point, and it was left unde- adjudged by the court that a power of attorcided. The case The case went off went off upon another ney to confess a judgment may be executed ground, but McIlvaine, J., delivering the in favor of a party other than the payee, it judgment of the court, expressed his individ- has been in cases where authority was exual opinion that a power to confess judg-pressly conferred to confess a judgment in ment in favor of any holder of the note may be exerted as well in favor of an indorsee as of the payee.

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

But in Clements v. Hull, 35 Ohio St. 141143, it was held that, under the Code of Civil Procedure, a warrant of attorney authorizing judgment to be confessed in favor of the holder of a note could be executed in favor of the equitable owner and holder, be-on did not authorize a confession of judgment ing the real party in interest. The court said: "The scope of the power is not limited in this case as it was in the case Cushman v. Welsh, 19 Ohio St. 536, in favor of the legal holder only. The authority here given is 'to confess judgment in favor of the holder of said note,' and we think these words were intended, and should be construed, to embrace any holder who might lawfully prosecute an action on said note, in his own name and for his own use."

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 the person of the plaintiff in error, and erred in rendering a judgment against him."

Looking at the face of the note, the National Exchange Bank insists that, being payee, it was also the holder within the meaning of the warrant of attorney, however strictly construed; that nothing else appearing than the note and warrant, a confession of judgment in its favor was in conformity with law and usage in Ohio, as declared by the highest court of that state. We incline to think that that position is justified by the above cases, when carefully considered; and assuming such to be the law as

The latest case in the supreme court of Ohio is Spence v. Emerine, 46 Ohio St. 433, 440, 441, 15 Am. St. Rep. 634, 21 N. E. 866. There the note was payable to a named person or bearer, and the warrant of attorney authorized any attorney to appear for the obligor in any court of record in Ohio, and confess judgment for the amount then due, and to release all errors and the right of ap-administered in Ohio,-which is the view peal. The confession was in favor of one to whom the note had been transferred by delivery merely. The question was as to the power of the court to render the judgment.

most favorable to the plaintiff in error, the question still remains whether the judgment, when sued on in another state, may be collaterally attacked upon the ground

on legal notice to him, or without his appearance in person or by an attorney authorized to represent him. If law and usage in Ohio were to the contrary, then such law and usage would be in conflict with the Constitution of the United States; for it is thoroughly settled that a personal judgment against one not before the court by actual service of process, or who did not appear in person or by an authorized attorney, would be invalid as not being in conformity with due process of law.

that the party in whose behalf it was ren- | either; and, consequently, that the court dered was not in fact the holder, because not was without jurisdiction to proceed except the real owner of the note? This question must, we think, be answered in the affirmative. It can be so answered without doing violence to the Constitution or the laws of the United States. While the words of the While the words of the warrant of attorney might be held to embrace any holder, even the equitable owner, who might rightfully prosecute an action on the note in his own name and for his own use (Clements v. Hull, 35 Ohio St. 141), yet if it was true, as alleged, that in 1885 the Tiffin National Bank purchased, received, and became the owner of the note, then the National Exchange Bank could not thereafter rightfully sue on it in its name and for its own use. Here, the confession of judgment was in behalf of the payee bank, which was not entitled to sue for its own use or to receive the proceeds if it sold the note in 1885, and never afterwards became the ownThe words, in the warrant of attorney, "in favor of the holder of this instrument," ought not, as between the National Exchange Bank and the obligors, to be construed as embracing the former after it ceased to be the owner of the note, but, at most, as only authorizing a confession of judgment in favor of the party who had become its real owner. It should not be supposed that the obligors intended, or that the payee bank ever understood them as intending, to authorize a confession of judgment in favor of one who was not entitled, of right, to demand payment from the obligors. That view accords with justice, and, not being inconsistent with the words in the warrant of attorney, it should be adopted.

er.

This whole subject was carefully considered in Thompson v. Whitman, 18 Wall. 457, 463, 469, 21 L. ed. 897, 899, 901. That was an action of trespass, brought in the circuit court of the United States for the southern district of New York for taking and carrying away a certain sloop. The defendant, a New Jersey sheriff, had seized the vessel, pursuant, as he claimed, to a statute of New Jersey relating to the raking of clams, and proceeded against it before two justices of Monmouth county, New Jersey, by whom it was condemned and ordered to be sold. Those justices had no jurisdiction, under the statute, to act in the premises, unless the seizure and the offense both occurred in that county. The record of the case recited that the offense was committed and the seizure made in Monmouth county, and the contention was that the record was conclusive, both as to the jurisdiction of the court and the merits of the case. In that case it was held to be competent for the complaining party to prove collaterally that the vessel was not seized in Monmouth counByles on Bills says that "holder is a gen- ty, and therefore that the facts necessary eral word, applied to anyone in actual or to the exercise of jurisdiction by the New constructive possession of the bill, and en- Jersey justices did not exist, although their titled at law to recover or receive its con- existence was recited or affirmed in the oftents from the parties to it." Sharswood's Sharswood's ficial record made by them. Speaking by ed. 66. So in 1 Parsons on Bills & Notes it Mr. Justice Bradley, this court adjudged, in is said that "by the holder of negotiable the language of Story, that the Constitution paper is meant, in law, the owner of it; for "did not make the judgments of other states if it be in his possession without title or in- domestic judgments to all intents and purterest he is, in general, considered only as poses, but only gave a general validity, the agent of the owner." p. 253. So that faith, and credit to them, as evidence;" and, proof that the payee bank was not the own- upon an elaborate review of previous cases, er of the note when it brought suit in Ohio that "the jurisdiction of the court by which tended to show that it was not in law the a judgment is rendered in any state may be "holder" of the instrument within what questioned in a collateral proceeding in anmust be regarded as the true meaning of the other state, notwithstanding the provision warrant of attorney, and, therefore, that the of the 4th article of the Constitution and court was without authority to enter judg-law of 1790 [Rev. Stat. § 905, U. S. Comp. ment by confession in its favor against the obligor. In other words, the defendant Wiley could show collaterally that he was not legally before the court-as he was not, in any just sense--if his appearance was entered and judgment confessed by one who had, in fact, at the time, no authority to do

Stat. 1901, pp. 677 et seq.], and notwithstanding the averments contained in the record of the judgment itself." There has been no departure in the decisions of this court from the doctrines announced in Thompson v. Whitman, whether the question related to courts of general or to courts of limited or

special jurisdiction. It has been repeatedly | judgment against the obligors if the Naaffirmed. Knowles v. Logansport Gaslight tional Exchange Bank had in fact sold the & Coke Co. 19 Wall. 58, 61, 22 L. ed. 70, 72; note, and ceased, before the commencement Hall v. Lanning, 91 U. S. 160, 165, 23 L. of that suit, to own it or to be entitled to ed. 271, 273; Pennoyer v. Neff, 95 U. S. 714, receive the proceeds to its own use. It was, 732, 24 L. ed. 565, 572; Cole v. Cunningham, in such case, in legal effect, a personal judg 133 U. S. 107, 112, 33 L. ed. 538, 541, 10 ment without service of process upon the Sup. Ct. Rep. 269; Grover & B. Mach. Co. v. defendants, and without their appearance in Radcliffe, 137 U. S. 287, 295, 34 L. ed. 670, person or by an authorized attorney. The 672, 11 Sup. Ct. Rep. 92; Thormann v. proceedings were wanting in due process of Frame, 176 U. S. 350, 356, 44 L. ed. 500, law. The obligors never consented to judg503, 20 Sup. Ct. Rep. 446; Bell v. Bell, 181 ment by confession in favor of one who was U. S. 175, 178, 45 L. ed. 804, 807, 21 Sup. not the owner of the note or entitled to reCt. Rep. 551; Andrews v. Andrews, 188 U. ceive its proceeds, and the warrant of attorS. 14, 34, 47 L. ed. 366, 370, 23 Sup. Ct. Rep. ney cannot be held to have authorized such 237. The general jurisdiction of the Ohio a confession. court undoubtedly embraced such a cause of action as was set forth in the suit on the note. But we are of opinion that that court had no authority or jurisdiction to render

Perceiving no error of law in the record the judgment must be affirmed.

It is so ordered.

(195 U. S. 427)
HENRY LOCKHART, Appt.,

v.

H. C. LEEDS, J. A. Johnson, Julia Johnson, et al., Appellees.

Statement by Mr. Justice Peckham: The appellant filed his bill in this suit, in the proper court of New Mexico, for the purpose of obtaining relief against the defendants mentioned therein. The defendants dePleading--definiteness of allegations—gen- murred on several grounds, among which was eral and special prayers for relief—trus- | that the complainant's remedy, if any, was at tees ex maleficio injunction pendente law, and that the bill did not state a case for lite. a court of equity. The demurrer was sustained and the bill dismissed, and the judgment of dismissal was affirmed by the supreme court of New Mexico, and the complainant thereupon appealed to this court. Among other things the bill averred that, about May 7, 1893, the complainant and one Johnson and the defendant Pilkey entered into an

1. The failure to file notice of a mining loca-
tion within ninety days after discovery is
stated with sufficient certainty to have been
due to the failure to discover, until after that
time, a conspiracy to defeat complainant's
rights, whereby his partner was to fail in his
duty to file such notice, by averments in the
bill that the location was made July 10, that
the conspiracy was secret, and was entered
into about October 1, and that the complain-
ant would have complied with the mining
laws had it not been for such conspiracy.
2. Relief under a general prayer in a bill
which states all the facts should not be

denied because it is asked upon a different
theory of the law than that upon which a
special prayer for relief is based, where both
prayers are based upon the same facts, clearly
set forth in the bill.

3. A bill makes a sufficient showing to entitle complainant to treat the legal holders of a

mine as trustees ex maleficio, and to recover from them, as such trustees, the materials taken from the mine, where it avers that their title was acquired under a relocation made in pursuance of a fraudulent conspiracy with complainant's partner, whereby that partner was to fail in his duty to perfect the original

location.

agreement in Bernalillo county, New Mexico, by which they were to become partners in the enterprise in mentioned in the agreement; and that, for the consideration mentioned therein, Pilkey was to start out to discover, if possible, and to locate for the purpose of operation by the parties, any mining claim of gold, silver, or other metal; and that, in order to enable Pilkey to carry out his portion of the agreement, he was to be furnished certain tools, etc., and some money. discovered any such mine, it was his duty to locate the same, and to send in to the other partners specimens of the ore, in order that its value might be determined. Work was to be begun within twenty days after the signing of the agreement. Any fraud by Pilkey was to forfeit his share, which was to be one-third interest in any mine discovered and worked.

If he

4. A case for an injunction restraining further mining during the pendency of the suit is made by a bill which seeks to treat as constructive trustees persons, some of whom are insolvent, who have acquired title to a mining claim by a relocation made in pursuance of an alleged fraudulent and secret conspiracy with complainant's partner, whereby that partner was to fail in his duty to per-making of this agreement, Pilkey started out fect the original location.

[No. 10.]

The agreement was to continue for a year, and all discoveries and locations of any mines during that time by Pilkey were to be under the agreement mentioned. After the

to prospect and to discover, if possible, a mining claim of the character mentioned. The parties were aware, at the time of the ex

Argued October 20, 1904. Decided December ecution of the agreement, of the existence of

A

5, 1904.

PPEAL from the Supreme Court of the Territory of New Mexico to review a judgment which affirmed a decree of the District Court for Bernalillo County, in that Territory, sustaining a demurrer to, and dismissing, a bill filed for the purpose of obtaining relief against persons whose title to mining property was acquired by virtue of a relocation made in pursuance of an alleged fraudulent conspiracy to defeat complainant's rights, whereby his partner was to fail in his duty to perfect the original location. Reversed and remanded, with directions to overrule the demurrer and grant leave to

answer.

See same case below (N. M.) 63 Pac. 48.

2. See Equity, vol. 19, Cent. Dig. §§ 1012, 1013.

the place where Pilkey went for the purpose of prospecting and discovering a mine, and that there possibly might be a valuable claim at that place. Accordingly, Pilkey at once went to the spot, and, on or about the 10th of July, 1893, he discovered the claim at that place, and it turned out to be a valuable mine. He located the mine according to the agreement, and posted the notice thereon provided by the laws of the United States and New Mexico, and proceeded to do work thereon pursuant to the provisions of those laws, but did not do all the work made necessary by them. The bill then alleges that Pilkey commenced to sink a shaft or cut upon the mineral-bearing lode, and did work enough thereon to arrive at mineral-bearing ore in place, within less than ninety days from the

sion and enjoyment of the same, and to the preferential right to acquire the legal title from the United States; and that the pretended location of the mine under the name of the Washington mine, by and in the names of the defendants named, was wholly inoperative and void; and that Pilkey, by reason of his participation in a fraudulent conspiracy with the defendants, forfeited all right or interest in the said mine pursuant to the agreement made by Pilkey with complainant and Johnson; and complainant averred that he was equitably the owner of and entitled to such interest. He further averred that the defendants refused to permit complainant to enter upon the property or to work the same; and that the defendants claim title to the mining property under and by virtue of their agreement with Pilkey, and their pretended location of the same as the Washington lode. It is further averred that the defendants were engaged in mining, extracting, and converting to their own use, the ores and minerals contained in the mine, and had mined and removed ores and minerals of great value therefrom, and had converted to their own use all such mineral; and that, unless enjoined, they would remove all the ores and minerals, and thereby the entire substance and value of the property would be destroyed, and the complainant would sustain irreparable injury, as the defendants, or some of them, were wholly insolvent. To this bill the defendants demurred, as already stated.

time of taking possession of the lode; and it | tled, as against the defendants, to the possesis then averred that the parties were ready, able, and willing in all things to comply with the laws spoken of, "and would have so done except for the wrongful, fraudulent, and unlawful acts of the defendants hereinafter mentioned." Some time about the 1st of October, 1893, Pilkey, while so in possession of the lode, wrongfully and fraudulently conspired, combined, and confederated with the defendants to defraud plaintiff; and they agreed that said Pilkey, in violation and fraud of the rights of the plaintiff in and to the mine, should transfer, convey, and deliver possession of the mine to the defendants, or one of them, without the knowledge or consent of plaintiff and the said Johnson. This was done. It was also agreed that they should do all other acts necessary to transfer the right to defendants. Pilkey was to have a certain proportion of interest in the mine, and the defendants, the balance. The defendants also caused and procured the defendant Pilkey to stop work upon the mine, under the agreement already referred to; and it was also agreed that Pilkey should fail and neglect to record, in the proper office, a copy of the location notice posted by him on the ground. The defendants also covered up and concealed the work which had been done on the ground by Pilkey; and they posted another notice thereon, and called the mine the "Washington" mine, and filed a copy of the same for record, December 13, 1893, without the knowledge or consent of the plaintiff or his copartner, Johnson; and they made the location for the benefit of themselves as locators, under the mining laws of the United States. For the purpose of concealing the interest of Pilkey in such pretended location, it was agreed that each of the four defendants named should be entitled to a fifth interest, and that Pilkey should be entitled to the remaining fifth, which last-named interest should be claimed and held by Walker in trust for Pilkey. Johnson subsequently transferred all his interest, under the agreement of copartnership between plaintiff, Johnson, and Pilkey, to the complainant, who was, at the time of the commencement of the suit, the owner of Johnson's interest under the assignment. The bill further states that, after the removal by the defendants of the original location notice posted by Pilkey, as already stated, the complainant procured a copy thereof, and had the same recorded in the office of the recorder of the county, on December 9, 1893. The complainant averred that, by virtue of the premises, he became and was, at the commencement of the suit, the equitable owner of said mine, and of the gold and silver ores therein contained, so discovered and located by Pilkey under the agreement; and that he was equitably enti

Mr. J. H. McGowan for appellant.
Mr. W. B. Childers for appellees.

Mr. Justice Peckham, after making the foregoing statement, delivered the opinion of the court:

One phase of this controversy has already been before this court in Lockhart v. Johnson, 181 U. S. 516, 45 L. ed. 979, 21 Sup. Ct. Rep. 665, which was an action of ejectment brought by the plaintiff (who is the complainant herein) to recover possession of the mine above mentioned from the defendants herein. It was there held that the plaintiff could not maintain an action, as the facts showed that he had no legal title, and that the remedy he might have, if any, was in equity.

Upon the trial of the ejectment action the plaintiff offered to prove, in substance, the same facts as are set forth in this bill in regard to Pilkey's action under the agreement with plaintiff and Johnson, and the fraudulent conspiracy entered into by the defendants for the purpose of defrauding the plaintiff out of his right to such mine. The evidence was objected to and excluded on the ground that it did not show any legal title