Hendrickson v. Fries

45 N.J.L. 555 | N.J. | 1883

The opinion of the court was delivered by'

Depue, J.

This suit was brought against Randall Hendrickson and Franklin C. Hendrickson, on a judgment recovered by the plaintiff against them in the Court of Common Pleas in and for. the county of Philadelphia, in the State of Pennsylvania. This judgment was entered by confession, upon a sealed bill executed by the defendants, dated at Philadelphia, and payable to the plaintiffs or order, generally, and containing in it a warrant of attorney, authorizing any attorney of any court of record of Pennsylvania or elsewhere, to appear for and enter judgment against them for the .sum named in the 'bill, with release of errors, &c.

Randall Hendrickson, who alone appeared in this suit, pleaded non summons, non appearance, in person or by authorized attorney; and that the attorney who appeared and confessed the judgment was not lawfully authorized so to do. The plaintiff replied that the said judgment was entered by confession under and by virtue of a power of attorney made by the defendants, setting out the bill and warrant of attorney contained in it.

The judge at the Circuit admitted evidence that the defendant was not summoned, and did not personally appear in the Pennsylvania suit. He overruled the defendant’s offer to show that the sealed bill was, in fact, executed and delivered in this slate, and that payment of it was demanded here, on the ground that such evidence was immaterial. Upon this ruling the defendant sued out this writ of error.

By a statute of this state it is enacted that “ every warrant of áttorney for confessing judgment which shall be included in the body of any bond, bill or other instrument for the payment of money, shall be void and of no effect; and such bond, bill or other instrument shall have the same force, and no other, as if the said warrant of attorney had not been incorporated therein.” Rev., p. 81, § 1. If this judgment had been entered in any court of this state, it would have been irregular.

The contention of the plaintiff in error is that this statute applies to all warrants of attorney that are, in fact, executed and delivered in this state, and that, therefore, the judgment of the Pennsylvania court is a nullity — the defendant having not been summoned nor appearing personally or by a lawfully authorized attorney in that suit.

The statutory provision in question was passed in 1799, as section 13 of an act entitled “An act to regulate the practice of the courts of law.” Rev. L.,p. 415. It was continued in the Practice act in the Revision of 1846. Rev. Stat., p. 931. In the Revision of 1874 it was.transferred to and reenacted as section 1 of an act entitled “ An act directing the mode of entering judgments on bonds with warrants of attorney to confess judgments.” Rev., p. 81.

Under the provision of our constitution, the title of a statute is not only an indication of the legislative intent, but is also a limitation upon the enacting part of the law. It can have no effect with respect to any object that is not expressed in the title. Const., art. IV., § 7, ¶ 4; Rader v. Township of Union, 10 Vroom 509; Evernham v. Hulit, ante p. 53; People v. Briggs, 50 N. Y. 553.

Applying this canon of construction, I think it is clear that this statute must be construed to be a mere regulation of the practice in our own courts. The legislature did not intend to prohibit the making in this state of warrants of attorney for use in other states, which are in the form that is legal in their courts; for it placed the prohibition on this form of warrants of attorney in an act purporting, by its title, to regulate the mode of entering judgments which cannot have any extra-territorial force.

The judge properly treated the evidence excluded as immaterial, and the judgment should be affirmed.

For affirmance — The Chancellor, Chief Justice, Dephe, Dixon, Knapp, Scudder, Clement, Cole, Green, Kirk, Paterson. 11.

For reversal — Magie, Reed, Van Syckel. 3.