Montelius v. Montelius

Sergeant, J. — (After consulting with Mr. Justice Kennedy, who came into court at the close of the argument,) pronounced his decision as follows: — The first objection which has been taken to the judgment is, that it was entered without a declaration having been filed, according to the terms of the warrant, which is of an anomalous character, as it and the bond are incorporated together, and form in fact but one instrument. But I think that a strict compliance with such a clause in a warrant of attorney accompanying a bond, has been dispensed with by the act of 24th February, 1806. The 28th section of that act requires the prothonotary of any court of record within this commonwealth, on the application of any person being the [85] holder of any instrument of writing containing a warránt to any attorney at law to confess judgment, to enter the judgment without the agency of an attorney, or declaration filed. This section seems to control the language contained in the warrant of attorney in this case. It is next urged that the judgment has been entered of the wrong term. It appears to me, however, that the expression “ last term,” in a warrant, includes the term of the execution of a bond and warrant, as the words are referable to the commencement of the existing or present term. It is also contended that the omission of the prothonotary to transcribe on the docket the terms of the agreement for stay of execution, avoids the entry of the judgment. Such an objection might, as in the cases cited in support of this point, be of consequence between the plaintiff and the prothonotary, or between the plaintiff* and the sheriff*, but it is a matter of no importance as between the plaintiff* and defendant, on a question as to the validity of the judgment. These are the grounds upon which the rule has been taken to set aside the judgment, but I do not think they are sufficient. The objection to the execution is, that the plaintiff* did not first issue a scire facias calling upon the defendant to show cause why the plaintiff* should not have execution of his judgment, because of the happening of. one of the contingencies specified in the warrant, other than the nonpayment of the several notes. lam inclined to think that the plaintiff* was bound to follow this course. The issuing of a scire fdcias is the most direct and appropriate method to ascertain whether the terms upon which execution was to stay, have been violated by the defendant, or whether any of the contingencies upon which it was to issue have ever happened. Here the plaintiff* alleges, that although none of the notes have matured, yet the partnership between the defendant and William Montelius, Jr., has been dissolved, which, if true, would give the plaintiff* a right to [86] issue an execution. But this is denied by the defendant. Can the court decide between the parties ? A partnership may be dissolved in a variety of ways, but only on a certain state of facts which must be established before a jury, and not assumed by the court. Upon the whole, I am of opinion that the scire facias must be issued, as the case is somewhat like that of Adams v. Bush, 5 Watts 289, where this court seems to have decided the point. Execution set aside.* Footnotes [*] In debt on bond with condition for the payment of money by instalments, the plaintiff must proceed according to the provisions of the statute of 8 & 9 W. 3, c. 11; and, therefore, if judgment be obtained for want of an affidavit of defence or otherwise, in such action commenced by writ, the plaintiff cannot have execution upon motion as to instalments falling due after the impetration of the writ; but must proceed by scire facias, &c. Longstreth v. Gray, 1 Watts 60. But it is otherwise upon a judgment by bond and warrant of attorney, without writ, for the payment of money by instalments, for then, though the better course is to move the court for leave to issue execution for a particular sum, in the first instance, yet this is not the only course, and an inquiry as to whether too much is demanded is equally open to the defendant after execution as before. Skidmore v. Bradford, 4 Barr 296. Judgments on warrants of attorney have never been considered as within the statute. Reynolds v. Lowry, 6 Barr 465; Bank of Chester v. Ralston, 7 Barr 482.