# Kirkbride v. Durden

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KIRKBRIDE et al. Plfs. in Err.verʃus DURDEN.
T
1788.
‘‘ any other Attorney, of any other Court, and at the fame time a
‘‘ mortgage of lands in the fame county, as a collateral fecurity.’’ The Judgment was entered in the Supreme Court as of Bucks county of September Term 1787 ; whereupon a writ of Error was fued out, in order to fet the Judgment afide, and the following errors affigned:
1ʃt. That the Judgment was entered in the Supreme Court for a debt which arofe beƒore the paffing of the Act of Affembly, that gave original jurifdiction to the Supreme Court, in the county of Philadelphia.
2dly. That the warrant of Attorney did not authorize the entering (illegible text)Judgment in the Supreme Court: and
3dly. The general errors.
To which in nullo eʃt erraium was pleaded.
Swiƒt for the Plaintiff in error, argued, I. That the Supreme Court never had original juriʃdictioon ‘till the late law ; for, the act by which it was inftituted, gives only an appellate juriʃdiction : 1 State Laws. 114. 15. Sect. 11. and that it was evidently the intention of the Legiflature to confine, even the exercife of that power, to fuits exceeding Ł.50 ibid. 338.9. Sect. 4. He infifted, that the Act of Affembly giving the original jurifdiction, likewife furnifhed a fatisfactory inference, that the Court did not previoufly poffefs it ; but that, at all events, after the act was paffed, no action, for any antecedent debt or cauʃe, could be brought in the Supreme Court ; nor, even for debts arifing after that act was paffed, in any other country than Philadelphia. 4 State Laws. 154. Sect. 4.5.
II. On the fecond error, he ftated, that, as it was an error in ƒact, the Defendant's plea had allowed it ; for, if the Plaintiff affigned error in ƒact, and error in law, the Defendant ought to join iffue as to the fact, and plead in nullo eʃt erraium only, he admits the facts, and the Jugment muft be reverfed. 2 Bac. Abr. 218. He waved this advantage, however, and contended, that the warrant, authorizing any Attorney, to enter up the Judgment in the Court of Common Pleas, of Bucks county, could not be extended to authorize the entering it up in the Supreme Court : for, where an inƒerior thing is mentioned, a ʃuperior cannot be intended. 2 Co. 46 and fuch has been the uniform determination of the Judges. 2 Inʃt. 457. 8. The warrant of Attorney gives a bare authority, which ought to be ftrictly purfued, and, though directed to any Attorney of any other Court, this cannot be taken to mean of a Superior Court, but only Courts oƒ equal and concurrent juriʃdiction. Nor can the jurifdiction be given be confent (which he faid, however, was not the prefent cafe) for, common recoveries are certainly actions by confent, and yet it was neceffary that a law fhould exprefsly veft, in the Supreme Court, a power to entertain them. 1 State Laws 224. But the intention of the parties appears by the mortgage, as well as by the Court fpecified in the warrant, to have been to bind only the eftate in Bucks county ; whereas, by entering up the Judgment in the Supreme Court, ​ 1788.
a lien is obtained upon the lands of the Plaintiff in error, throughout the State.
Wilcocks, for the Defendant in error, admitted. I. That it had been long a queftion, whether the Supreme Court had original jurifdiction before the paffing of the late law ; but, even refolving that point in the negative, he contended, that the Court might receive and fuftain a caufe under the peculiar circumftances of the prefent cafe. For, being an action of debt, it was, in its nature cognizable there, and no law prevented the parties from confeffing Judgment, by confent, without the trouble and expence of an original. This was not, therefore, to be conftrued into an exercife of original jurifdiction ; but merely a paffive acquiefcence in the agreement of the parties, to enter a Judgment upon the records of the Court. Such, he faid, had been the old and conftant practice in Pennʃylvania, both before and fince the revolution, as well with refpect to the confeffion of Judgments, as to be entering of amicable actions ; and if the matter were to be traced, the titles of many real eftates would be found to depend upon its legality–fo that the greateft diforder and uncertainty would be introduced by a contrary determination at this time. If, then, it was never doubted that the Court had a fuffiicient authority to compel the parties to perform at agreement, a ƒortiori, they may compel the performance, when the agreement is made with the folemnities of a warrant of attorney, and under circumftances which otherwife be attended with the moft pernicious confequences.
II. With refpect to the ʃecond Error, he faid, that, if it were neceffary, the Court would permit him to alter his plea ; but as it had been agreed to difcufs the validity of the warrant of Attorney on the prefent iffue, he fhould contend, that the cafes cited did not fupport the objection. He admitted, that when an act of Parliament entered into an exact enumeration, and it appeared from the fubject, that nothing more was intended, than what was expreffed, there the rule prevailed, and a recapitulation of inƒerior things, could not, by implication, affect things of a ʃuperior nature. But when an act contains general and comprehenfive words, which indicate an intention to embrace a higher object, he infifted, that one fpirit and meaning of the law, was not to be fettered by the mode of expreffion. This controverfy, however, he diftinguifhed from the cafe of ftatutes ; for, he faid, it did not arife on the conftruction of an act of Parliament, but whether an inftrument, executed by an individual, was fufficient to authorize certain proceedings. It was, therefore, a matter of a private nature, and muft be conftrued, as all contracts between Debtor and Creditor are conftrued, that is, according to the true intent and meaning of the parties. The form of the warrant is the fame that has been ufed for more that a century paft ; it is general; it is comprehenfive ; and it has ever been taken in that fenfe, which gives the greateft benefit to obligee, that can be obtained from the confeffion of the Judgment. The late act of Affembly (paffed September 1786,) which gives original Jurifdiction ​
1788.
to the Supreme Court in Philadelphia, in Sect. 4. plainly fuppofes the caufes to be fuch as are inftituted by Capias, Summons, Attachments, Scire ƒcias, Partition, or Dower ; all which modes are particularly fpecified ; and it certainly holds forth no idea to prevent an amicable fuit being entered, or a Judgment being confeffed, by a fpecial warrant of attorney, as in the prefent cafe. It was natural to fpecify the Common Pleas of Buck county, becaufe the parties lived in Bucks, and the eftate upon which the mortgage was given, lay in that county ; but it was certainly in the power of the Obligor fo give authority to enter Judgment in any Court within the United States–from the nature of the contract it muft be prefumed that he intended to do fo, as well as from the terms of the warrant, which authorize the entering the Judgment in an Court in America; and, agreeably to the eftablifhed practice and interpretation of fuch warrants of Attorney, the Judgment has been confeffed in the Supreme Court.
The chief justice delivered the unanimous Judgment of the Court.
M‘KEAN, Chieƒ Juʃtice. – We are happy that this caufe has come before us fo recently after the paffing of the act of Affembly ; as, by on early fettlement of the practice, much uncertainty and litigation may be avoided.
There are two grounds upon which, we are clearly of opinion, this Judgment ought to be fet afide. The firʃt is, that though it has been entered, in purfuance of a warrant of Attorney, after the paffing of the law, yet the Bond is oƒ a prior date ; and we find it exprefsly enacted, ‘‘ that no fuit of action fhall be commenced in the ‘‘ faid Supreme Court ƒor any debt or cauʃe which ariƒe BEFORE the ‘‘paƒƒing oƒ this act, except fuits of the Commonwealth, and fuch ‘‘wherein the title of land, or other real eftate, may come in ‘‘ queftion.’’ For this reafon, therefore, we think that the Judgment could not have been entered up, even in the county oƒ Philadelphia.
But, in the ʃecond place, whatever doubts may formerly have been entertained, it is certain that, aƒter the 2d oƒ January 1787, the original juriƒdiction of the Supreme Court is, by the 4th Section of the fame act, reftricted to the county oƒ Philadelphia ; and this Judgment being entered, at a fubfequent period, in the Supreme Court as of the county of Bucks, there can be no doubt, that the proceedings are, likewife, on that account, erroneous and irregular.
The intention of the Legiflature was, evidently, to prohibit the entering up Judgment on bonds &c, by virtue of warrants of Attorney in that Court, which fhould affect the lands of the party in any other county than Philadelphia ; and the confequences would be fo injurious, that even if we could, we ought not to admit a different conftruction of the act. For, if one Judgment were entered in 'Waʃhington county, and another here, on the ʃame day, by what principle could we determine, which of thofe Judgments had the prior line? The queftion would be productive of great perplexity in the ​ 1788.
adminiftration of juftice ; and might eventually prevent the transfer of lands, which it is the policy of this country to facilitate and encourage.
With refpect to the other objections;–the Court might give the Defendant leave to amend his pleas, fo as to remove the difficulty, which arifes from the affignment of the errors in fact. And, though the queftion on the extend of the warrant of Attorney, would require fome confideration,yet, it is a rule, that the acts of the parties, as well as acts of Parliament, fhall be liberally conftrued to promote the remedy. I have, therefore, no doubt, that if the Judgment had been entered in the Supreme Court of the ftate of New-Jerʃey, it would be deemed good there ; although that Court is not fimilar to the Court fpecifically named in the warrant. But it is unneceffary to pronounce any determination upon thefe points, as our opinion is unanimous, for the other reafons which have been mentioned.
Let the Judgment be reverfed.
Swiƒt fuggefted, that, as the Judgment had been entered coran non judice, the Plaintiff had been wantonly driven to bring the writ of Error, and, might, therefore, be entitled to cofts.
But, by M‘KEAN, Chieƒ Juʃtice.–If you had moved the Court below, the fame decifion would have taken place ; and the act of Affembly is pofitive, that on the reverʃal here of a Judgement, each party fhall pay his own cofts. See 2 State Laws. 273 Sect. 7.