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.

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, [1 U.S. 288, 290]

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