Manufacturers & Mechanics' Bank of the Northern Liberties in the Co. v. Cowden

Majority

p. 461

The Manufacturers & Mechanics’ Bank of the Northern Liberties in the Co. of Philadelphia vs. Cowden and others.

Headnote

In order to authenticate affidavits taken in another state, pursuant to 2 R. S. 396, § 25, it is not necessary to follow the letter of the statute: a substantial compli. anee with its provisions is sufficient.

Accordingly, where an affidavit purported to have been taken before E. L. “ President judge 8th district, Pa.,” and then followed a certificate under the seal of the court of common pleas of Lycoming county, Pa., thus: “ I, H. M., Prothonotary of the court of common pleas of the county of Lycoming, within the 8th judicial district of Pennsylvania, do hereby certify that E. L. whose name is subscribed &c. is president judge of the court of common pleas of the 8th judicial district,” &c.: Held, a sufficient authentication to allow the affidavit to bo read.

In general, a power of attorney to confess judgment becomes inoperative after a single exercise of it, and will not authorize the entry of a second judgment. Accordingly, a power having been executed by A., B. and G., authorizing the confession of a judgment against them and each of them in Pennsylvania or elsewhere, ajudgment was entered up under it in that state, against C., and after-wards another in this state, against all the parties: Held, that the power was exhausted as to C. by the entry of the first judgment; and because he was included in the second, it was set aside as irregular. l The result, it seems, would have been the same, had the power been in terms to confess a. judgment or judgments &c.

On the 16th day of April, 1841, the defendants Cowden and Boyd of the state of Pennsylvania, and St. John of the state of New-Jersey, as their surety, executed to the plaintiffs a bond

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in the penalty of $50,000—conditioned to pay $25,000—and a warrant of attorney, directed “ to Thomas D. Smith, Esq. attorney of the court of common pleas at Philadelphia, in the county of Philadelphia, in the state of Pennsylvania, or to any other attorney of the said court or of any other court there or elsewhere, or to any prothonotary of any of the said courts.” After reciting the bond, the power proceeded thus : “ These are to desire and authorize you or any of you to appear for us and each of us, our and each of our heirs, executors or administrators, in the said, court or elsewhere, in an action of debt there or elsewhere brought or to be brought against us and each of us, our and each of our heirs &c., at the suit of the said bank, their successors or assigns, on the said obligation, as of any term &c., and confess judgment thereupon against us and each of us,” &c. On the 17th of June, 1841, judgment was entered against Co.w-den, by virtue of the warrant of attorney, in the court of common pleas of the county of Northumberland in the state of Pennsylvania ; executions were issued upon the judgment and levied upon a large amount of property. On the 2d day of October, 1841, another judgment was entered against all of the defendants, by virtue of the same warrant of attorney, in the supreme court of this state, which

If. Gray, for the defendants,

now moved to set aside on the ground that a second judgment was wholly unauthorized. He cited Campbell v. Canon, (Addis. Rep. 267 ;) Martin v. Rex, ( 6 Serg. & Rawle, 296 ;) Neff v. Barr, (14 id. 166 ;) Ulrich v. Voneida, (1 Penrose & Watts, 245.)

J. S. Bosworth, for the plaintiffs,

contended that the warrant of attorney would authorize the entry of more than one judgment. He also took exception to the authentication of one of the affidavits on which the motion was founded. It purported to be “ subscribed and sworn to before, &c., at Williamsport, Lycoming county, Pennsylvania, this 10th day of June., A. D. 1842. Ellis Lewis, President judge 8th district, PaJ’ There

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was then a certificate as follows : “ State of Pennsylvania, Lycoming county, ss : I, Hepburn M’Clure, Prothonotary of the court of common pleas of the county of Lycoming, within the eighth judicial district of Pennsylvania, do hereby certify that Ellis Lewis, whose name is subscribed to the within certificate, is president judge of the court of common pleas of the 8th judicial district of Pennsylvania,” &c. Signed, and the seal of the court affixed. The objection was, that it did not appear that Ellis Lewis, though a judge of the 8th judicial district, was a judge of the court of common pleas of Lycoming county. Another certificate of the same prothonotary, attached to a record accompanying the papers, stated that Ellis Lewis il is president judge of the 8th judicial district aforesaid, and that by virtue of his office he is president judge of the several courts of common pleas within the said district

It is hardly necessary to resort to the second certificate of the prothonotary. The matter is plain enough without it. The eighth judicial district includes several counties, in each of which there is a court of common pleas, and Ellis Lewis is the presiding judge in each of those courts. Lycoming county is within the eighth judicial district, and thus it appears that the affidavit was sworn before a judge of the court of common pleas of Lycoming county. (2 R. S. 396, § 25-.) It is not necessary to follow the letter of the statute. A substantial compliance with its provisions is sufficient. (Belden v. Devoe, 12 Wend. 223 .)

I do not think it necessary to enquire whether the warrant of attorney was of any force out of the state of Pennsylvania. Conceding that a judgment might originally have been entered in this state, the warrant contained no authority for entering a second judgment any where. After the entry of the judgment in Pennsylvania, the power was functus officio. This is fully established by the cases cited at the bar, and is plain enough in principle. If the warrant had been to confess a judgment or judgments, in the plural, it seems that a second judgment

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could not be entered until the first judgment had been reversed or set aside. (Fairchild v. Camac, 3 Wash. C. C. Rep. 558 .) But here there is nothing to show that more than one judgment was intended.

As the first judgment was entered against Cowden alone, it may be that the plaintiffs would have been warranted in taking a second judgment against the two other obligors in the bond. But Cowden has been included in the second judgment, and as to him the power was clearly spent when the judgment was entered in Pennsylvania

Motion granted.

Cases cited

Belden v. Devoe 12 Wend. 223 N.Y. Sup. Ct. 1834-10-09 p. 463