KIRKBRIDE v. DURDEN
1 U.S. 288 (1788)

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U.S. Supreme Court

KIRKBRIDE v. DURDEN, 1 U.S. 288 (1788)

1 U.S. 288 (Dall.)

Kirkbride et al. Plfs. in Err.
v.
Durden

High Court of Errors and Appeals of Pennsylvania.

April Sessions, 1788

The Plaintiffs in Error had executed a Bond, bearing date the 23rd of October, 1784, to the Defendant, with a warrant to confess Judgment thereon, directed 'To Wm. Lewis, Attorney of the Court of Common Pleas at Newtown, in the county of Backs, or to

Page 1 U.S. 288, 289

any other Attorney, of my other Court, and at the same time a mortgage of lands in the same county, as a collateral security.' The Judgment was entered in the Supreme Court, as of Bucks county of September Term 1787; whereupon a writ of Error was send out, in order to set the Judgment aside, and the following errors assigned: 1st. That the Judgment was entered in the Supreme Court for a debt which arose before the passing of the Act of Assembly, that gave original jurisdiction to the Supreme Court, in the county of Philadelphia. 2ndly. That the warrant of Attorney did not authorize the entering up the Judgment in the Supreme Court: and 3rdly. The general errors. To which in nullo est erratum was pleaded. Swift, for the Plaintiff in error, argued, I. That the Supreme Court never had original jurisdiction 'till the late law; for, the act by which it was instituted, gives only an appellate jurisdiction:I State Laws. 114. 115. Sect. II. and that it was evidently the intention of the Legislature to confine, even the exercise of that power, to suits exceeding L.50. Ibid. 338. 9. Sect. 4. He insisted, that the Act of Assembly giving the original jurisdiction, likewise furnished a satisfactory inference, that the Court did not previously possess it; but that, at all events, after that act was passed, no action, for any antecedent debt or cause, could be brought in the Supreme Court; nor, even for debts arising after that act was passed, in any other county than Philadelphia. 4 State Laws. 154. Sect. 4. 5. II. On the second error, he stated, that, as it was an error in fact, the Defendant's plea had allowed it; for, if the Plaintiff assigned error in fact, and error in law, the Defendant ought to join issue as to the fact, and plead in nullo est erratum as to the matter of law; but if he pleads in nullo est erratum only; he admits the facts, and the Judgment must be reversed. 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 inferior thing is mentioned, a superior cannot be intended. 2 Co. 46. and such has been the uniform determination of the Judges. 2 Inst. 457. 8. The warrant of Attorney gives a bare authority, which ought to be strictly pursued; and, though directed to any Attorney of any other Court, this cannot be taken to mean of a Superior Court, but only Courts of equal and concurrent jurisdiction. Nor can the jurisdiction be given by consent ( which he said, however, was not the present case) for, common recoveries are certainly actions by consent, and yet it was necessary that a law should expressly vest, in the Supreme Court, a power to entertain them. I State Laws 224. But the intention of the parties appears by the mortgage, as well as by the Court specified in the warrant, to have been to bind only the estate in Bucks county; whereas, by entering up the Judgment in the Supreme Court,

Page 1 U.S. 288, 290

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 question, whether the Supreme Court had original jurisdiction before the passing of the late law; but, even resolving that point in the negative, he contended, that the Court might receive and sustain a cause under the peculiar circumstances of the present case. For, being an action of debt, it was, in its nature cognizable there, and no law prevented the parties from confessing Judgment, by consent, without the trouble and expence of an original. This was not, therefore, to be construed into an exercise of original jurisdiction; but merely a passive acquiescence in the agreement of the parties, to enter a Judgment upon the records of the Court. Such, he said, had been the old and constant practice in Pennsylvania, both before and since the revolution, as well with respect to the confession of Judgments, as to the entering of amicable actions; and if the matter were to be traced, the titles of many real estates would be found to depend upon its legality - so that the greatest disorder and uncertainty would be introduced by a contrary determination at this time. If, then, it was never doubted that the Court had a sufficient authority to compel the parties to perform an agreement, a fortiori, they may compel the performance, when the agreement is made with the solemnities of a warrant of attorney, and under circumstances which would otherwise be attended with the most pernicious consequences.

II. With respect to the second Error, he said, that, if it were necessary, the Court would permit him to alter his plea; but as it had been agreed to discuss the validity of the warrant of Attorney on the present issue, he should contend, that the cases cited did not support the objection. He admitted, that when an act of Parliament entered into an exact enumeration, and it appeared from the subject, that nothing more was intended, than what was expressed, there the rule prevailed, and a recapitulation of inferior things, could not, by implication, affect things of a superior nature. But hhen an act contains general and comprehensive words, which indicate an intention to embrace a higher object, he insisted, that the spirit and meaning of the law, was not to be fettered by the mode of expression. This controversy, however, he distinguished from the case of statutes; for, he said, it did not arise on the construction of an act of Parliament, but whether an instrument, executed by an individual, was sufficient to authorize certain proceedings. It was, therefore, a matter of a private nature, and must be construed, as all contracts between Debtor and Creditor are construed, that is, according to the true intent and meaning of the parties. The form of the warrant is the same that has been used for more than a century past; it is general; it is comprehensive; and it has ever been taken in that sense, which gives the greatest benefit to the obligee, that can be obtained from the confession of the Judgment. The late act of Assembly (passed September 1780,) which gives original Jurisdiction

Page 1 U.S. 288, 291

to the Supreme Court in Philadelphia, in Sect. 4. plainly supposes the causes to be such as are instituted by Capias, Summons, Attachments, Scire facias, Partition, or Dower; all which modes are particularly specified; and it certainly holds forth no idea to prevent an amicable suit being entered, or a Judgment being confessed, by a special warrant of attorney, as in the present case. It was natural to specify the Common Pleas of Bucks county, because the parties lived in Bucks, and the estate, upon which the mortgage was given, lay in that county: but it was certainly in the power of the Obligor to give authority to enter Judgment in any Court within the United States - from the nature of the contract it must be presumed that he intended to do so, as well as from the terms of the warrant, which authorize the entering the Judgment in any Court in America; and, agreeably to the established practice and interpretation of such warrants of Attorney, the Judgment has been confessed in the Supreme Court. The Chief Justice delivered the unanimous Judgment of the Court.

M'Kean, Chief Justice, We are happy that this cause has come before us so recently after the passing of the act of Assembly; as, by an early settlement 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 set aside. The first is, that though it has been entered, in pursuance of a warrant of Attorney, after the passing of the law, yet the Bond is of a prior date; and we find it expressly enacted, 'that no suit or action shall be commenced in the said Supreme Court for any debt or cause which arose BEFORE the passing of this act, except suits of the Commonwealth, and such wherein the title of land, or other real estate, may come in question.' For this reason, therefore, we think that the Judgment could not have been entered up, even in the county of Philadelphia. But, in the second place, whatever doubts may formerly have been entertained, it is certain that, after the 2nd of January 1787, the original jurisdiction of the Supreme Court is, by the 4th Section of the same act, restricted to the county of Philadelphia; and this Judgment being entered, at a subsequent period, in the Supreme Court as of the county of Bucks, there can be no doubt, that the proceedings are, likewise, on that account, erroneous and irregular. The intention of the Legislature was, evidently, to prohibit the entering up Judgments on bonds &c. by virtue of warrants of Attorney in that Court, which should affect the lands of the party in any other county than Philadelphia; and the consequences would be so injurious, that, even if we could, we ought not to admit a different construction of the act. For, if one Judgment were entered in Washington county, and another here; on the same day, by what principle could we determine, which of those Judgments had the prior lien? The question would be productive of great perplexity in the administration

Page 1 U.S. 288, 292

of justice; and might eventually prevent the transfer of lands, which it is the policy of this country to facilitate and encourage.

With respect to the other objections; the Court might give the Defendant leave to amend his plea, so as to remove the difficulty, which arises from the assignment of the errors in fact. And, though the question on the extent of the warrant of Attorney, would require some consideration, yet, it is a rule, that the acts of the parties, as well as acts of Parliament, shall be liberally construed to promote the remedy. I have, therefore, no doubt, that if the Judgment had been entered in the Supreme Court of the state of New Jersey, it would be deemed good there; although that Court is not fimilar to the Court specifically named in the warrant. But it is unnecessary to pronounce any determination upon these points, as our opinion is unanimous, for the other reasons which have been mentioned.

Let the Judgment be reversed.

Swift suggested, that, as the Judgment had been entered coram non judice, the Plaintiff had been wantonly driven to bring the writ of Error, and might, therefore, be entitled to costs.

But, by M'Kean, Chief Justice. If you had moved the Court below, the same decision would have taken place; and the act of Assembly is positive, that on the reversal here of a Judgment, each party shall pay his own costs. See 2 State Laws. 273. Sect. 7.

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