Magher v. Howe

Treat, C. J. This record presents this state of case. A declaration against Magher, as survivor of Birge, on a promissory note, made by Magher and Birge. A plea, confessing the cause of action, and consenting that judgment may be entered. Then follows an order of the Court, which recites the production and proof of a warrant of attorney, authorizing a confession of judgment against the defendant, and proceeds to enter a judgment accordingly. It is now insisted, that it was irregular and erroneous to enter up a judgment against the surviyor, on a warrant of attorney, executed by the debtors jointly. It is contended, that a warrant of attorney to confess a judgment, is a special power that must be strictly pursued, and several English cases are referred to, which seem to sustain the position. But this question is not legitimately presented by the record, and it is, therefore, useless to enter upon its discussion. The warrant of attorney is not properly in the record. We do not judicially know that it was executed by both of the makers of the note. The conclusion that it was executed by Magher after the death of Birge, is perfectly consistent with the statements of the record. The clerk has copied into the transcript a warrant of attorney, purporting to be executed by both of the debtors, and an affidavit showing the death of Birge, on a subsequent day. But these papers do not thereby become a part of the record. They constituted the evidence on which the Court acted in entering the judgment, and, like any other evidence produced during the progress of a case, form no portion of the record, unless introduced into it by a bill of exceptions. If the defendant desired to present the question, he should have tendered a bill of exceptions to the decision of the Court, and in that way have incorpo3’ated the papers into the record of the case. Saunders v. McCollins, 4 Scam., 419; Corey v. Russell, 3 Gil., 366 ; Petty v. Scott, 5 ibid, 209. The judgment is affirmed. Judgment affirmed.