Opinion of the Court.

is no dispute that plaintiff previously owned the premises, but it is insisted that his title was transferred to defendant, by a sale under an execution, and a judgment confessed under a warrant of attorney, executed by plaintiff, in favor of defendant. The power of attorney, the note, the judgment order, the execution and sheriff's deed, were all read in evidence on the trial.

It is, however, contended, that the confession of the judgment was not authorized by the power of attorney; and that, for want of such authority, the judgment, and all subsequent proceedings under it, were void, and conferred no title to the land. It appears that the note was dated on the 24th of April, 1856. The power of attorney bears date on the 4th day of June, 1858, and authorizes T. J. Henderson, or any other attorney, to confess a judgment against the maker, for the amount of a note which is therein described as similar to the note upon which judgment was confessed, except it is described as bearing date on the 24th day of April, 1846, and is described as a note dearing six per cent; while the note upon which the judgment was rendered is for the payment of the principal sum, with interest, without specifying the rate; the condition in the note is otherwise properly set forth in the power of attorney.

As a general rule, well recognized and firmly established, an attorney in fact is held to a strict compliance with the authority conferred. When he acts, it must, to be sustained, be within the scope of his authority. It must be for the purposes prescribed, and in the mode required. A departure from the authority conferred, or for purposes not authorized, will not be sustained, and because there is a want of power. In this case, the authority was to enter the appearance of the maker of a note, bearing one date, and to confess a judgment on that note, while the appearance was entered, and judgment entered on a note dated two years afterward. This was manifestly not within the power delegated; and, if there was no power to enter the appearance and confess the judgment, it is a nullity, and binds no one, either in a direct or collateral proceeding, but may be attacked at all times, and in all courts; because the

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court must, in some mode, have jurisdiction of the defendant, or it cannot act. Nor is it an answer to say, that the power attorney authorized the entry of appearance for one purpose, and that it was merely error to render a judgment for another and different purpose. The authority was special, and limited to entering an appearance to, and the confession of a judgment on, one particular instrument; and an appearance could not be entered to, or a judgment confessed on, a different instrument.

No one would contend, that the attorney in this case could have confessed judgment in an action of ejectinent, slander or on an account, because they are not within the scope of the authority conferred; and yet in terms the authority to confess this judgment is as fully excluded as in either of the other cases. Nor is it an answer to say, that the date was by mistake misrecited in the warrant of attorney. We know of no rule of construction which would authorize us to draw such an inference. It, so far as we can see, is the contract of the parties, fairly drawn and embodying their intention. The judgment being unauthorized, no title could be divested by a sale under it. The defendant therefore failed to show title, and the judgment of the court below must be reversed and the cause remanded.

Judgment reversed.

JOSEPH MCPHERSON, impleaded, etc., et al.,

v.

RUFUS C. HALL.

1. TENDER—what insufficient as a tender — grain receipts. In an action to recover damages for failure to receive and pay for a quantity of oats, sold by the plaintiff to defendant, proof of the attendance of the plaintiff at the time and place agreed upon for their delivery, but in the absence of the purchaser, for the purpose of tendering warehouse receipts for the oats, is not a sufficient tender, without the further proof, that such receipts were genuine, and that the grain was not subject to charges.

2. SAME-made to the purchaser personally—otherwise. But a tender of the receipts to the defendant in person would have been good, if without objec

Opinion of the Court.

tion, as the failure to object would impliedly admit, that the receipts honestly represented the property. But this inference cannot be drawn, in the absence of the purchaser.

3. INSTRUCTION — to be reviewed — must be excepted to. Where instructions asked by a party have been refused, unless excepted to, this court will not review them.

APPEAL from the Superior Court of Chicago.

Messrs. SCATES, BATES & TOWSLEE, for the appellant.

Mr. F. S. HOWE, for the appellee.

Mr. JUSTICE LAWRENCE delivered the opinion of the Court:

This was an action brought to recover damages for failure to receive and pay for a quantity of oats sold by plaintiff to defendants. On the trial the court below gave for the plaintiff the following instruction:

"If the jury believe, from the evidence, that the defendants, through their agent, Stiles, on or about the 25th day of February, A. D. 1865, purchased of the plaintiff, through his agent, Parks, five thousand bushels of number one oats at 614 cents per bushel, to be delivered at the office of defendant on any day during the month of March, following; and the defendants failed during the entire month of March to demand and call for said oats, and that on the 31st day of March, the plaintiff, by himself or his agent, went to the office of the agent, Stiles, with warehouse receipts for 5,000 bushels of oats, and then and there, either tendered, or was willing to tender, receipts for that amount, and that said agent, Stiles, was not there, and that plaintiff was only prevented from making such tender by reason of such absence, then the plaintiff is entitled to recover.

This instruction was erroneous. We decided at the April Term, 1866, in the case of McPherson v. Gale (40 Ill. 368), that the mere attendance of the plaintiff at the office of the defendants, in the absence of the latter, for the purpose of tendering warehouse receipts, was not a sufficient tender, without proof that the

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warehouse receipts were genuine, and that the articles for which they called were not subject to charges. Unless the receipts which the plaintiff was ready to deliver really represented the quantity of grain they called for, and would have produced that grain without charge when transferred to the defendants, then the tender, even as a symbolical tender, was not good. A tender of the receipts to the defendants in person, would undoubtedly have been good, if not objected to by them, as the failure to object would be an implied admission that the receipts honestly represented the property. But, in the absence of the defendants, no such inference can be justly drawn. In regard to the warehouse charges, it may be remarked, that, if they are shown by the evidence to have existed, yet if they were so small that it would have been for the manifest interest of the plaintiff to pay them, the jury would be justified in presuming, if he had found the defendants or their agent at their office, he would have offered to pay them, or deduct them from the contract price of the oats.

It is suggested, that, even if the instruction was defective, no actual harm has accrued therefrom to the defendants, as it was proven that the warehouse receipts were genuine, and the oats actually in store. It is true, there was evidence on these points, but none on the question as to whether the oats were subject to charges. They may have been subject to charges which it would not have been for the interest of the plaintiff to pay in order to complete the transaction.

The instructions asked by the defendants and refused are not properly before us, as no exception was taken to them.

Judgment reversed.

JOHN A. MERRICK, impleaded, etc.,

v.

WILLIAM WAGNER, for the use of JAMES YOUNG.

AGENCY-powers of agent-to sign a replevin bond. M. executed to H. a power of attorney under seal, authorizing him to settle his business and collect all claims due to him in the State of Illinois; which instrument conferred

Opinion of the Court.

upon him extensive powers in relation thereto, giving him authority to generally do all and every act and acts, thing and things, service and services, in the law whatsoever needful and necessary to be done, in the settlement of such business, and the collection of the claims. Held, that a replevin bond, executed by H., as M.'s attorney, under this instrument, was within the scope of his authority and binding upon M.

APPEAL from the Superior Court of Chicago.

The opinion states the case.

Messrs. E. A. STORRS and E. B. SHERMAN, for the appellant. Messrs. SCATES, BATES & TOWSLEE, for the appellee.

Mr. CHIEF JUSTICE WALKER delivered the opinion of the Court:

This was an action of debt, brought by appellee against appellant in the Superior Court of Chicago, on a replevin bond, which appears to have been executed by Hughes as Merrick's attorney. The evidence showed the replevying of the property by Merrick, a trial subsequently had, and a recovery by defendant in the replevin suit, and a judgment of retorno habendo, and that the property was of the value of $550. A verdict was found in this case for the plaintiff for the debt mentioned in the replevin bond, and six hundred and forty dollars damages. A motion for a new trial was entered and overruled, and a judgment rendered on the verdict, to reverse which, this appeal is prosecuted.

The only question is, whether, under the power of attorney executed by Merrick to Hughes, the latter had power to execute the replevin bond sued on in this case. This is the power of attorney under which the bond was executed:

"Know all men by these presents: That I, John A. Merrick, of Chicago, Cook county, and State of Illinois, have constituted, made and appointed, and by these presents do constitute, make and appoint, my trusty friend, Thomas Hughes, of the city of Chicago, county of Cook, and State of Illinois, to be my true and lawful attorney, for me and in my stead,