The opinion
Jewett, Justice.
The judgment against Brown must be set aside. Whipple had no authority to confess a judgment as his attorney. Brown *has a defence on the merits, and the attorney is not responsible. It would have been competent for Johnson to have confessed a judgment under the joint debtor act, so as to bind partnership property, the declaration being served on him, ( 10 Wend. 630 ,) but that is not this case; here the judgment is against both defendants as upon a service of process upon both. Besides, there is good ground to believe that this judgment was .the result of collusion between the plaintiff’s attorneys, Johnson and Whipple.
Motion granted that the judgment and execution as against the defendant Brown be set aside, with $10 costs.