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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