author: O’Brien, J.

text:
    The Waterloo Woolen Manufacturing Co., Resp’t, v. James Shanahan et al., App’lts.

      (Court of Appeals,

      Filed October 6, 1891.)

    1. Statutes—Appropriation acts—Construction of.
    The courts cannot determine, upon the testimony of witnesses, that the purpose of the legislature was to appropriate public money for the benefit of an individual when it has expressed its purpose in the bill itself to be the enlargement or improvement of the canal. When such an act is assailed on the ground that its purpose is local and private and not public, the question must be determined by the language and general scope of the act.
    2. Same—Private acts.
    Where the state has diverted the waters of a river into the canal and thus deprived the riparian owners of its use, an act authorizing an expenditure to restore a portion of the water to its original channel and to the use of the owners who had been deprived of it cannot be said to be private or local within the meaning of the constitution.
    3. Same—Infringement of property rights.
    The mill race of plaintiff’s predecessor in title was taken by the Seneca Lock Navigation Co., but the right to use the surplus waters of the canal and river were reserved to him. In 1857 the state, having acquired the rights of the Navigation Co., enlarged the canal which occupied the site-of the former race, which increased the supply of water to the plaintiff’s mill. In 1888 the legislature authorized the improvement of the channel of the river and Bear Creek, the result of which will be a diminution of the surplus water in said canal, but will not make it less than he had a right to use under the agreement with the Navigation Co. Held, that the execution of the work authorized by the statute did not involve the taking of any of the plaintiff’s property for any purpose, public or private.
    4. Same.
    An expenditure for the purpose of dredging and excavating the channel of a navigable river and a private race intersecting a canal so as to facilitate the passage of canal boats therein from the canal, is not for a private or local, but for a public purpose.
    Appeal from a judgment of the supreme court, general term, fifth department, affirming judgment in favor of plaintiff.

      Charles F. Tabor, atty-gen., for app’lts ; Frederick L. Manning, for resp’t.

       Reversing 33 N. Y. State Rep.. 361.

   O’Brien, J.

defendant, James Shanahan, as superintendent of public works, in behalf of the state, entered into a contract with the defendants, Fuller and Albaugh, for the performance of certain work in dredging and otherwise improving the channel of Seneca river and Old Bear race at Waterloo. The contractors had entered upon the work when this action was commenced and both they and the superintendent of public works were enjoined from proceeding therewith; and by the final judgment in the action this injunction, against them, and all persons acting under them, is made perpetual. This appeal involves an examination of the reasons and grounds upon which the operations of the state, acting through one of its officers, and in pursuance of legislative direction, have been arrested at the suit of the plaintiff. The judgment in this case decides that the improvement is not authorized by law and that the consummation of the work contemplated will injuriously affect certain property rights of the plaintiff. It is necessary, at the outset, to get as clear an idea as .possible in regard to the nature, origin and extent of these rights in order to get a more comprehensive view of the questions involved in the controversy.

The plaintiff is a domestic manufacturing corporation engaged in the manufacture of woolen goods on an extensive scale at Waterloo, deriving the power for the operation of its machinery from the waters of Seneca river. It was incorporated in the year 1836, but the water rights and privileges which it owns, and which it is claimed are to be affected by the acts of the defendants, existed long prior to that date. In the year 1802 the state conveyed, by letters patent, 640 acres of land to John McKinstry on the north shore of the Seneca river where is now the site of the present village of Waterloo. In December, 1807, he conveyed this land to one Elisha Williams, who erected one or more mills on the site now occupied by the plaintiff’s factories, adjoining or near the river. The motive power for these mills was furnished by a race or canal constructed by Williams from the river, on the north side, and near the upper end of what is now Big Island, which divides the flow of the water of the river, the main current being south of the island, and on the opposite side from the race. The mills,, so erected'by Williams, were in operation in the year 1813 when the legislature, by special act, incorporated the Seneca Lock navigation Company. Laws 1813, chap. 144. This company under the power conferred upon it by law, took the canal or race constructed by Williams asa part of its canal, reserving to him, however, the right to draw water from the canal, for the use of the mills, not necessary for navigation purposes. The navigation company, in the prosecution of its business, used the river as a highway, except around the rapid places, where it constructed a canal and locks for the passage of its boats, and the mill race, dug by Williams, was utilized for this purpose. While the company carried on its operations the situation was this: It had the right to the use of the race, which was made forty feet wide and between three and four feet deep, supplied with water from the river, for the passage of its boats, and Williams and his grantees were entitled to all the surplus water from the canal or race for the use of their mills. The respective rights of the corporation and the grantees of Williams to the use of the water flowing through the race, thus converted into a canal, for public use, are regulated and defined by the statute, under which authority was given to acquire the race, and by a recent decision of this court Silsby Mfg. Co. v. State, 104 N. Y., 562; 6 N.Y. State Rep., 463. With the rights of the parties thus vested and defined, the legislature, in the year 1825, authorized the construction of the Cayuga & Seneca canal, by the state, and for that purpose authorized the purchase of all the rights and privileges of the navigation company. Laws 1825, chap. 271. The state, .under this statute, and the proceedings thereunder, acquired such rights to the use of the water as the corporation, to which it succeeded, then had and no more, and Williams and his grantees still retained the right to the use of the Ct.App.] Waterloo Woolen Mfg. Co. v. Shanahan el al. 97 surplus waters then flowing through the canal from the river, and no more. Silsby Mfg. Co. v. State, supra.

Subsequently the state 'found, it necessary to enlarge the capacity of the canal, which occupied the old mill race, by making it deeper and wider. The last improvement, in this respect, was authorized and executed under chapter 479 of the Laws of 1857. This enlargement resulted in a canal seventy feet wide and a minimum depth of seven feet with a maximum depth of nine feet, in place of the original race, and consequently a greatly increased quantity of water was diverted from the channel of the river into the canal. The plaintiff having succeeded, through mesne conveyances, to all the rights of Williams, has enjoyed the benefit of the increased body of water, thus supplied by the state, in the additional power which it furnished for the operation of machinery, and the advantage thus gained it now claims as a property right, which it seeks to retain and protect in this action.

It has not been found by the court below, nor is it alleged in the complaint, that any right which the plaintiff’s grantors had or enjoyed, during the occupation of the race as a canal by the Navigation Company, is threatened or will be injuriously affected by any act of the defendants. But it is alleged and found that, since 1857, the plaintiff has used and enjoyed the water power for its factories, as enlarged and increased by the improvement of the canal, made by the state in that and previous years, with the acquiescence of the authorities of the state having charge of the care and management of the canals, and that such use and enjoyment has ripened, by the lapse of time, into a property right which is threatened and will be seriously impaired if the contract, made by the defendants with the state, is carried out.

Thus far our attention has been directed to the origin, nature and extent of the property rights on the north side of the river, as developed since the grant from the state in the beginning of the present century. In order to appreciate and understand the motives which, probably, inspired or stimulated the legislation which must be hereafter considered, and which is the real point of contention between the parties, it is necessary to notice other and what, perhaps, might be called rival interests and rights which, during the same period, were developed on the south or opposite side of the river, and which must have been materially affected by the operations of the state and of the corporation, the rights of which the state acquired on the other shore of the stream.

About the year 1798 one Samuel Bear settled on lands on the south shore, now the site of South Waterloo, or that part of the village which is south of the river. The Seneca river flows from the outlet of Seneca lake, at the village of Geneva, easterly through the villages of Waterloo and Seneca Falls, and finally empties into the Oswego river. It divides the village of Waterloo, one ward being south of the river and the other north. In the year 1804 the state conveyed one hundred acres of land to Bear, lying along and south of the river, with the water '

' power and privileges connected therewith. He also dug a race and erected a mill on his land. The use by Bear of the waters of the river for manufacturing purposes, on the south side, through this race, probably antedated a similar use by Williams on the other side, though this fact is not found and, in our view, is not. very material. It is the channel known in the case as Bear race, and entered the river near the easterly end of Big Island and a considerable distance easterly or below the point where Williams tapped the river with his race, on the opposite side. The defendants Sweet, Mengin and Cook are the owners of this race, water power and mill, having derived title thereto through mesne conveyances from Bear. The channel of the river was originally along and near the south shore, so that when Bear built his mill the facilities for obtaining a proper supply of water were, apparently, as good on his side of the river as on the other. But subsequently, as we have seen, the navigation company and, later, the state itself diverted the water, at a point above, into the canal, on the north shore, and the plaintiff’s mills, using the surplus, must have had a better supply than the mills on the other side. In fact the plaintiff has succeeded in this case, in the courts below, on the ground that the power of the legislature to appropriate money has been used for the purpose of securing to certain mills, on the south side of the river, a greater supply of water, which must necessarily diminish the surplus from the canal, and thus-take property from the plaintiff for the use of persons on the opposite side of the river.

This view of the situation and this conflict of private interests; will enable us to consider the legislation which the plaintiff has, thus far, successfully assailed.

By chap. 113 of the Laws of 1887, the superintendent of public works was authorized to expend $15,000, or so much thereof as might be necessary, in necessary improvements on locks number one and two on the Cayuga and Seneca canal and to remove obstructions and debris between Seneca Lake outlet and the upper dam, at Waterloo. The money thus appropriated, for some reason not now important to ascertain, was not expended but remained in the state treasury, and at the next session of the legislature, chap. 325 of the Laws of 1888 disposed of it and authorized its expenditure, in language somewhat different from that used in the statute passed the year before, as follows :

“An act to provide for the dredging and excavating the channel of Seneca river and the old Bear Race, in the village of Waterloo, to facilitate the passage of canal boats. Approved by the governor, May 18, 1888. Passed, three-fifths being present.

“The People of the state of Hew York, represented in senate- and assembly, do enact as follows:

“ Section 1. The superintendent of p ublic works is hereby authorized in his discretion, to expend the fifteen thousand dollars, or so much thereof as may be necessary, which was appropriated by chapter 113 of the Laws of 1887, and directed therein to be-applied to improvements on the Cayuga and Seneca canal, toward dredging and excavating the channel of Seneca river, from its interseetion with said canal, in the village of Waterloo, and the old Bear Race, and thence toward dredging and excavating said race to Washington street, in said village, so as to admit the passage of canal boats therein from said canal.

“ Section 2. This act shall take effect immediately.”

Pursuant to the authority thus given, the defendant, Shanahan, as superintendent of public works, advertised, as required by law, for proposals to perform the work contemplated by the legislature in the passage of the act. This resulted in a contract with the state for the performance of the work by the defendants Fuller and Albaugh, in conformity with a map and plans prepared by the state engineer. After entering upon the performance of the contract they were enjoined by order granted in this action, and Sweet, Mengin and Cook, the parties who own Bear race, were also made parties upon the ground that they were to be the real beneficiaries of the improvement, although there is no allegation that they had done or threatened any act in furtherance of the work.

On the trial of the action, at special term, the court found the following facts in addition to those already stated: That the Seneca river is navigable and a public highway, and that its channel is south of Big Island; that Bear Race was private property, and that neither it nor the channel of the river to its intersection with the canal, where the dredging was to be done, once the improvement made, were any part of the canal system; that the race was about twenty feet wide and three and a half feet deep and that, by the improvement, it was to be made wider and deeper; that the plaintiff is entitled to all the surplus water that runs through the canal; that chapter 325 of the Laws of 1888 did not receive the assent of two-thirds of the members of either house of the legislature and is void; that it appropriated public money for a local or private purpose and that its effect was to take the plaintiff’s property for private use, and was, therefore, in conflict with the constitution, and, being thus invalid, it furnished no authority or protection to the superintendent, or the contractors, in deepening the channel of the river and the race and, in this way, diverting the waters of the river from the canal. Judgment was directed perpetually restraining them from the further prosecution of the work and it has been affirmed by the general term.

The case, therefore, involves, among other questions, the validity of an act of the legislature, always important This court has said upon a recent occasion that “only when required by the most cogent reasons, nor, indeed, unless compelled by unanswerable grounds, will an act of the legislature be declared void.” People v. Budd, 117 N. Y., 13; 26 N. Y. State Rep., 533.

Before proceeding to examine the grounds upon which a statute has been held void, in this .case, it may be well to observe that there can be no dispute as to the power of the legislature to take private property for other than a public use without the consent of the owner. That, of course, cannot be done, either with or without compensation. ¡Nor can it bo denied that, generally, whether the use to which private property may be devoted by legislative power, is in fact public or private is a judicial question and the courts are not concluded by any declaration of the law-making power as to the nature of the use. Matter of Niagara Falls & Whirlpool R. Co., 108 N.Y., 375; 13 N. Y. State Rep., 690; Matter of Deansville Cemetery Association, 66 N. Y., 569. So, too, it has been held that a legislative act, ostensibly for the protection of the public health, but which deprives the citizen of liberty or property, may be subjected to judicial scrutiny for the purpose of ascertaining whether its provisions really relate to and are, in fact, convenient and appropriate to promote the public health. The determination of the legislature on this point is not final or conclusiva Matter of Jacobs, 98 N. Y., 98.

It'may also be regarded as settled that when the legislature appropriates public 'money for some improvement thé courts may inquire whether the improvement is for a purpose w"hich is public, or one merely private or local, and whether the bill, if the purpose was private or local, received the assent of two-thirds of the .members of each house of the legislature, as required by the constitution. People v. Allen, 42 N. Y., 378 ; People v. Commissioners of Marlborough, 54 id., 276. But the scrutiny which the courts have exercised, in regard to legislation of this character, has been confined to matters appearing on the face of the bill itself, and to things that are the subject of judicial notice. In this case the act has been held void as an appropriation of public money for a local or private purpose, not receiving .the assent of two-thirds of the members of each house. The private or local character of the expenditure does not appear on the face of the bill, but the trial court, against the defendants’ objection and exception, instituted an inquiry in regard to the purpose of the appropriation, upon the testimony of witnesses, and having found as matter of fact, from this testimony, that the improvement could ‘ not benefit the canal, but would benefit the property of individuals, the conclusion was reached, in this way, that the purpose of the appropriation was not public, but private or local. Reading the title and the provisions contained in,the body of the act, it provides for an expenditure of $15,000 for the purpose of dredging and excavating the channel of a navigable river and a private-race, intersecting the canal, so as to facilitate the passage of canal boats therein from the canal. The purpose, thus expressed, is'not private or local, but public, inasmuch as the general improvement of the public highways of the state, whether canals or rivers that are navigable, is for the benefit of the state at large, though some locality or some individual may be benefited more than others. The expenditure may, in fact, be improvident and the work may prove to be useless to the public, but the legislature, as the depositary of the sovereign powers of the people, must necessarily be the judge of the propriety and utility of making it. If it were otherwise, every appropriation of money, by the legislature, could be assailed in the courts, at the suit of private individuals, on the ground that they are useless and intended for a purpose other than is plainly expressed in order to evade some provision of the organic law.

The judicial department cannot institute an inquiry concerning the motives and purposes of the legislature, in order to attribute to it a design contrary to that clearly expressed or fairly implied in the bill, without disturbing or impairing in some measure the powers and functions assigned by the constitution to each department of the government. The courts cannot determine, upon the testimony of witnesses, that the purpose of the legislature was to appropriate public money for the benefit of an individual when it has expressed its purpose in the bill itself to be the enlargement or improvement of the canal. They must assume that the legislature acted in good faith and meant just what it said, though it may be possible to show, outside of the language and terms of the bill that, in fact, all or the larger part of the benefits following the expenditure may or will be reaped by a few individual-. The question always is, with respect to such bills, how is the purpose of the legislature to be ascertained ? Must that be determined from the bill itself and from such considerations as the court can judicially notice, or is it competent to take proof and determine it as a matter .of fact, as was done in this case? Reason and authority, as well as the fitness of things, demand that when an act of the legislature appropriating money is assailed, upon the ground that the purpose of such appropriation is local or private and not public, the question shall be determined by the language and general scope of the act. This principle was stated with great force and clearness by Judge Denio, in The People v. Draper, 15 N. Y., 545. “If a particular act of legislation does not conflict with any of the limitations or restraints which have. been referred to, it is not in the power of the courts to arrest its execution, however unwise its provisions may be, or whatever the motives may have been which led to its enactment. There is room for much bad legislation and misgovernment within the pale of the constitution ; but whenever this happens, the remedy which the constitution provides, by the opportunity for frequent renewals of the legislative bodies, is far more efficacious than any which can be offered by the judiciary. The courts cannot impute to the legislature any other than public motives for their acts. If a given act of legislation is not forbidden by express words, or by necessary implication, the judges cannot listen to a suggestion that the professed motives for passing it are not the real ones. If the act can be upheld upon any views of necessity or public expediency, which the legislature may have entertained, the law cannot be challenged in the courts.”

The power of the courts to overthrow legislative acts, by independent inquiries as to facts,_ outside of the provisions of the statute itself, has been considered and denied in more recent' cases. The People v. Albertson, 55 N. Y., 50, 54 ; Matter of N. Y. E. R. R. Co., 70 id., 327; People ex rel. Kemmler v. Durston, 119 id., 569; 30 N. Y. State Rep., 203; Amy v. Watertown, 130 U. S., 319. But, even upon the theory adopted by the courts below, and upon the facts developed at the trial, and found in the record, it is by no means clear that the act is invalid under § 9 of article 1 of the constitution, which requires a two-tliirds vote for the appropriation of money for a local or private purpose. The state had diverted the waters of the river into the canal, and to that extent deprived the riparian owners below, on the south side, of _ its use. Assuming that the purpose of the act was, as claimed, to'restore a portion of the water thus diverted to its original channel and to the use of the owners who had been deprived of it by the act and authority of the state, who can say that an expenditure for that purpose is private or local within the meaning of the constitution ? If the state in carrying out a policy of justice, through its legislature, appropriates money to pay a debt or to repair an injury inflicted upon an individual or a locality, obligatory upon it in honor and justice, that is but a part of its legitimate functions and duties as a sovereign and the purpose is, public. Morris v. The People, 3 Denio, 399. So that, whether the statute is tested by reference to its language alone, or by a consideration of the facts established, it was legally enacted. Moreover, it should also be observed that the complaint contains no allegation that the statute was not constitutionally enacted, or that it did not receive the requisite vote, or that it is private or local, and the evidence upon which these facts were found and the finding itself were excepted to. It has been held that when the objection to the validity of a law arises out of the failure of the legislature to comply with the procedure pointed out by the provisions of the constitution, which is not apparent 'upon the face of the act itself, the facts must be distinctly pleaded. The People v. The Supervisors of Chenango, 8 N. Y., 317; Thomas v. Dakin, 22 Wend., 9: Hunt v. Van Alstyne, 25 id., 608. But as this point was not specifically raised at the trial and is not discussed upon the briefs of counsel, we prefer to put our decision on other grounds.

The courts below have also held that the act is invalid because its effect is to take the plaintiff’s property for private purposes. This proposition is based solely upon the fact that the improvement, by deepening the channel of the river, and enlarging the race, will divert water from the canal and restore it to the channel of the river, the use of which the plaintiff has enjoyed, without question, for more than twenty years. The use by the plaintiff of the surplus water, beyond what it was entitled to during the occupation of the canal by the navigation company, however long continued, arid whether adverse or by permission, could not impair the rights of the state. Burbank v. Fay, 65 N. Y., 57. The state was at liberty to withdraw the surplus, so far as it came from the enlargement of the canal in 1857 and prior thereto, so long as the plaintiff could use the quantity of water secured to its grantors by the law under which the navigation company acquired the race. It is not claimed that this right was threatened or could be impaired by the improvement. The state could restore water which it diverted from the natural channel, without furnishing the plaintiff with any legal ground of complaint, even though it was for the purpose of delivering it to the defendants or any other riparian owner on the south side. So long as the legal rights of the plaintiff, as between it and the state, are respected it cannot complain if the state is doing something with its own property that may possibly benefit others. If the state has the' right to diminish the supply of water in the canal at all, and that right is not denied, then the motives that may underlie the act are not material. The reasons that move the public authorities do not concern the plaintiff. So we conclude that the plaintiff has no property right in the use of the surplus water in the canal, as increased by the enlargement made by the state from 1840 to 1857, that can be impaired by the execution of the work contemplated by the statute. But if the plaintiff could establish any right to* the use of the increased supply of water furnished by the state in the process of enlarging the canal from time to time, the most that the plaintiff could then claim would be that the improvement would result in a consequential injury which might form the basis for a claim for damages or compensation before the tribunal which the state has authorized to hear and determine such claims. It would furnish no ground for arresting the wbrk of improving or enlarging the canal in such manner as the legislature might determine to be for the public good. Atwat4er v. Trustees, etc., 124 N. Y., 602; 87 N. Y. State Rep., 234; Silsby Mfg. Co. v. State, supra; Rexford v. Knight, 11 N. Y, 313; Laws 1883, chap. 205, § 13. The execution of the work, authorized by the statute, by the superintendent of public works, or the contractors acting under his authority, does not involve the taking of any of the plaintiff’s property for any purpose, public or private.

But Bear race, from its intersection with the river to Washington street, which the act also provides for dredging and excavating, is the private property of the defendants Sweet, Mongin and Cook. If that has been or is to be taken, within the meaning of the constitution, that is a question which the owners alone can raise. It does not in any legal sense concern the plaintiff if the defendants see fit to renounce a constitutional provision, intended for their own benefit. Town of Pierrepont v. Loreless, 72 N. N., 211; Baker v. Braman, 6 Hill, 47; Matter of the Mayor, etc., 99 N. Y, 569, 584. The expenditure of public money for the purpose, in part at least, of enlarging a private mill race, furnishes the basis for the argument, in behalf of the plaintiff, to show that the appropriation is for a private or local purpose. But we have no right to assume, as this argument does, that the state will never acquire the title to the race or the right to its use for the purposes of navigation. The title, or the right to its use, can be acquired at any time and need not be obtained in advance.

Property required by the state for canal purposes always has been and may still be taken in a summary way, without the aid of any judicial proceeding. The constitutional provision requiring compensation to be made to the owner, to be ascertained by a jury, or by commissioners appointed by the court, does not apply to such a case. Const, art 1, § 7. The state may take possession, go on with its work and await the claim of the owner for compensation. Mark v. State, 97 N. Y., 572; Heacock v. State, 105 id., 246; 7 N. Y. State Rep., 353; Stewart v. State, 105 N. Y, 254; 7 N. Y. State Rep., 358; Benedict v. State, 120 N. Y., 228; 30 N. Y. State Rep., 651. In this view we have no right to say that when the authorities of the state were restrained they were not proceeding, in good faith, to make an improvement to the canal system. Moreover, it must be noted here that by chapters 461 and 493 of the Laws of 1889 the legislature re-oppropriated the money for this very improvement, increasing the amount, and providing for a release to the state of Bear race by the owners for canal purposes. We have already considered the argument of plaintiff’s counsel, which, apparently, was successful in the courts below, that the real purpose of the appropriation was to furnish additional power to defendants’ mill which is located at the easterly end of Bear race; and while we consider that this point is sufficiently answered by the remark of Allen, J., in People v. Albertson, supra, that “no motive, purpose or intent can be imputed to the legislature in the enactment of a law other than such as are apparent upon the face, to be gathered from the terms of the law itself,” yet there is an additional fact which deserves some notice. The act authorizes no work to be done in Bear race farther east than Washington street, and this would not reach" the defendants’ mill, as it is located on the other or easterly side of that street. The additional flow of water which would result from deepening and widening the race cannot be utilized by the defendants until the work is carried still farther east and the machinery in the mill is changed in order to permit the use of more power. It is not found or alleged that such a change is contemplated or threatened. In this view it is difficult, upon any theory of the case, to say that the state has any other purpose in view than that expressed on the face of the act, namely, to enlarge the channel of the river and the race, in order to permit navigation by boats from the canal to a public street on the south side of the river.

The judgments of the general term and special term should be reversed and a new trial granted, costs to abide the event.

All concur, except Finch, J., absent.


source: Caselaw Access Project

author: Gray, J.

license: Public Domain

text:
    Frederick Haberman, Resp’t, v. John O. Baker, App’lt.

      (Court of Appeals,

      Filed October 6, 1891.)

    1. Deed—Description—Ween it conveys the whole of road-bed.
    Where a highway has been wholly made from and upon the margin of the grantor’s land, his subsequent grant of the adjoining land described as bounded upon or along said highway must be deemed to comprehend the fee in the whole road-bed.
    2. Boundaries—Purchase by administrator of mortgagee.
    The administrator of a mortgagee purchased the mortgaged premises on the foreclosure sale in his own name, and thereafter entered into an agreement with the owner of adjoining property as to the division line between them. Subsequently the heirs of the residuary devisee conveyed their interests in the land by a description as rearranged by such agreement to the administrator. Held, that although the administrator acquired title in the capacity of trustee he held the lands as personalty, to be disposed of and accounted for as such; that his agreement was binding and valid without releases from said heirs.

      Appeal from judgment of the general term of the New York superior court, affirming judgment of the special term.

      Robert Sturgis, for app’lt; Samuel Untermeyer, for resp’t.
   Gray, J.

In this action, which was'brought to compel the defendant to perform his part of an agreement with plaintiff and to complete his purchase of the plaintiff’s land, various objections to the plaintiff’s title were raised and have been more or less discussed. If any of them are substantial the defendant should not, of course, be compelled to accept the title tendered by plaintiff. Whether equity will enforce the specific performance of such contracts is a matter resting, it is true, in discretion; but it is a discretion which proceeds, in its exercise, upon settled rules and not arbitrarily. Where the case is one in which the proceeding is against the purchaser at a judicial sale, to compel him to carry out his bid, the discretion of the court maybe influenced differently from a case like the present, where the action is upon the private contract of the parties. But this is just; for, in the former case, the bidder is warranted in assuming, not only that the title to the land is readily marketable, but also that the judgment of the court has set at rest all questions which might reasonably be raised concerning the validity of the title offered. In all cases I suppose that the quality of the title must be the same; but where the deliberate convention of private parties results in a contract for the sale and purchase of lands, the matter of the plaintiff’s right to an enforcement • of that contract should be considered more favorably; and if, notwithstanding all the legal questions raised by objections, or suggested from the records, the vendor is found to have the legal title to the premises and has a legal right to convey, as he has agreed, performance by the vendee must be decreed. That precise rules can be laid down, to be observed in the various cases where the object is to compel the specific performance of agreements for the sale and purchase of lands, I doubt, and their necessity is not apparent. The discretion of courts, in such cases, to cite the observation of Lord Eldon in White v. Damon, 7 Vesey, Jr., 35, and which Sir John Romilly, Master of the Rolls, quotes in Haywood v. Cope, 25 Beavan, 140, “must be regulated upon grounds that will make it judicial.”

In this case the objections relate to the plaintiff’s title to, and right to convey certain pieces of land, which formerly were included in highways since abandoned. His contract was to sell a distinct parcel or block of land lying between Eighty-sixth and Eighty-seventh streets, the Boulevard and the Tenth avenue in the city of New York. At about this point an old highway, known as the Bloomingdale road, skirted, on the west, the lands of which this block is a part, and in laying - out the Boulevard the old highway was here mainly taken in. From the Bloomingdale road, at about where Eighty-seventh street meets the Boulevard, there led off to the eastward a way, which was known as Stillwell’s road or lane. As a. consequence of the alteration of lines, caused by opening and regulating the Boulevard, Eighty-seventh street and the Tenth avenue, pieces or gores of land were added to the property of the plaintiffs grantors to form, the present block; to which, from their having previously constituted parts of the abandoned highways, the title is deemed to be in the heirs of Samuel Stillwell.

Originally, Samuel Stillwell owned the farm, or tract of land, of which the block now in question once formed a part, and the lane or road bearing his name was built by him for purposes of convenience of access, for himself and to other adjoining parcels of land which he had sold to various parties. It ran wholly upon his own lands and partly upon the northerly margin of the premises in question. For some distance eastwardly from the Bloomingdale road the land on the other, or northerly, side of this lane belonged to other owners. The first conveyance made by Stillwell, in the chain of this title, was made in 1803 to John Charlton. The description of the premises conveyed bounded them “ along the Bloomingdale Road ” and where they adjoined Stillwell’s road, “ along said road * * * to the Bloomingdale road.” By such a description a grantor, usually, is deemed to convey the fee of the soil to the centre of the road, where it is the dividing line between properties. In the absence of some express reservation by a grantor o‘f his property in a road, such as would be implied where an easement over it was alone granted and the description ran to and along the side of it, as it was in Jackson v. Hathaway, 15 John., 447, or later in the case of Mott v. Mott, 68 N. Y., 246, a conveyance of lands, generally bounded as along, or upon, a road, will convey the fee to its centre. See Jackson v. Hathaway, supra.

A recent decision of this court, in its second division, made with respect to another part of Stillwell’s property, has settled this question of what passed of this private road, in the case of a grantee of land adjoining and where the description of .the grant was “along the lane of said Stillwell intended for a road,” eta It was held that under the deed the fee of the soil was granted to the centre of the road when built Matter of Ladue, 118 N. Y., 213 ; 28 N. Y. State Rep., 821.

To complete the title to all of Stillwell’s road, the plaintiff attempts to deduce a title to the further half through the original conveyance of lands, made by Stillwell to R. L. Bowne, in November, 1795, which comprised a tract extending from the Bloomingdale road eastwardly and along the land subsequently laid out and used as a lane. In this deed there was no reference to any road and the only ground for presuming anything with regard to its dedication or existence, at that time, was that in a conveyance of other parts of Stillwell’s property, subsequent in time to Bowne’s, a map annexed thereto showed this lane laid out. As this map bore a date earlier than that of the deed to Bowne, the plaintiff argues that Bowne’s conveyance must have been with reference to the road as shown thereby. I think, however, that such an inference is hardly permissible from the mere fact of the date. Something further was required as proof concerning the map, or of the laying out of the road, in order to engraft upon the grant to Bowne any such additional right of property. But it is not necessary to depend upon that line of argument in aid of the plaintiff’s title to the land formerly comprised within the abandoned highways. From the proofs I think we must assume that Stillwell conveyed to Bowne with no reference to this lane. The question then is, whether, as the road was laid out upon Still-well’s land, a title in fee to the whole road-bed did not pass to Charlton, or his grantees, subject only to any easements in its use as a road. This question, I think, must be answered in the affirmative. That any property in the northerly half of the road should have remained in Stillwell, or his heirs, would require the support of some presumption, bearing upon his interests, or relating to some necessity in fact, the elements for which, I think, we cannot find.

The only interest in the lane, or in its maintenance as such, was possessed by Stillwell’s grantees. He had parted with all of his land bordering on the lane. The natural presumption and one which seems to flow from the established rules would be that, in bounding his grant to Charlton along this highway, Stillwell had conveyed his fee in the roadbed. Where the highway divides two properties the owner of each abutting piece is presumed to own to the centre of the way. The presumption is based on the idea that the adjacent owners originally contributed the land for the road, and this presumption assumes that nothing militates against, it in the facts of ownership. But if the grant of the abutting property went only to the side of the road, or the public authorities are vested with the right to the soil of the street, the presumption cannot exist. Dunham v. Williams, 37 N. Y., 261.

Where the highway has been, as in the present case, wholly made from and upon the margin of the grantor’s land, his subsequent grant of the adjoining land should be deemed to comprehend the fee in the whole roadbed, upon the same principle that exists for giving the fee to the centre in the other cases. The grantor should be presumed to have intended by his conveyance the full investiture of the grantee with all appurtenant property rights in the highway. What other intention could be consistently supposed ? In the early case of Jackson v. Hathaway, supra, it was observed that there was reason for intending that the parties to a conveyance of property bounded along, or upon, a highway, meant to the middle of the highway. Would there not be equally reason for the legal intendment that they meant the whole highway, where it was the property of the grantor in its entirety? Can we suppose an intention in the grantor to reserve to himself, or to his heirs, the fee in half of the highway? I think not As to the grantor the control and beneficial use of the road have ceased to be of importance; but to the grantee they must be important, if not essential, for many patent reasons. The case of Bissell v. Railroad Company, 23 N. Y., 61, though applied to a case where the question of title related to -only half of the street, is authority for the proposition that there is no reason to infer an intention in the grantor to. withhold his property in, or title to, the land covered by the highway, after parting with his right and title to the adjoining land.-

Our attention has been directed to several cases in the courts of other states where this question has been discussed and similarly decided; and in some of them the reasoning is upon the authority of Bissell v. Railroad Company. See In re Robbins, 34 Minn., .99, and Taylor v. Armstrong, 24 Ark., 102, and, as well, Watrous v. Southworih, 5 Conn., 305; Champlin v. Pendleton, 13 id., 23.

I.am, therefore, of the opinion that under Stillwell’s grant to Charlton the ownership of the soil of Stillwell’s road, where adjacent to the property granted, passed to the grantee as a parcel of the grant

So long as the road was required as such, and an easement had been acquired by the public, the ownership of its soil may have been subjected to the use. But when, after the year 1846, the public easement had been abandoned and the highway ceased to exist, the land comprising it reverted to primary conditions of ownership and of use, and became a parcel of the adjoining property from which it was taken originally. The fee in the land of Stillwell’s lane being in the plaintiff, and because of the description of the grant as to the Bloomingdale road, questions as to the title to the gore produced by the change in the westerly line of the tract by the laying out of the new boulevard are disposed of. The ownership of the land in the lane carried the fee to- the centre of the Bloomingdale road opposite to the lane and that, with the description along the Bloomingdale road, comprehended the gore in question.

In 1847, Eighty-sixth street (but not Eighty-seventh street) having been theretofore legally opened and in use, an agreement as to'a division of lands was made between John Adams, then in possession of the property composed of the block in question, and Herman Le Boy Edgar, in whom had become vested the legal title to the lands north of Stillwell’s road. The effect of that agreement was to make the south side of Eighty-seventh street (subsequently opened), from the Boulevard to Tenth avenue, pro tonto, a division line between their properties. But the appellant interposes certain objections as to the title of Herman Le Boy Edgar and affecting his right to conclude other interests in the land by such an agreement After Bowne had acquired the title to the tract of land, of which a portion, bordered upon the north side of Stillwell’s road, he mortgaged the same in 1809 to William Edgar, as-security for the repayment of a loan. Upon a sale, decreed in proceedings instituted, after the mortgagee’s death, to foreclose the mortgage, the premises were purchased by Herman Le Boy Edgar in his individual name. He was, however, at the time the administrator with the will annexed of William Edgar the deceased mortgagee, and it is argued that he acquired the title to the premises purchased in the capacity of trustee for those interested in the testator’s estate and that releases were needed to cut off their interests. The point is not tenable, however, for, though it-is true that lie held the property in trust, nevertheless the premises so’acquired took on the character of the mortgage indebtedness and was as personalty in the administrator’s hands, which' he could dispose of and was liable to account for as such

The case of Lockman v. Reilly, 95 N. Y., 64, 71, is sufficiently in point as to this. In that case it was held that whether the executors took a deed in their names as such executors, or in their individual names, was immaterial. The testator’s heirs*eouid take no direct interest in the laud so purchased, and could not dispute the title of a purchaser from the executors ; and this would be so, it was said, even though no power of sale- might be contained in the will.

Another objection raised by the appellant is thatthermortgagee, Edgar, had taken possession and had become seized of the property by a title which descended to his heirs and was not affected by the mortgage foreclosure. The point is not discussed, and does not seem serious. It need be but briefly adverted to in answer. It -seems to me to be sufficient to say that while it is true that the mortgagee went into possession of the mortgaged premises, the possessory right gained thereby was to satisfy the mortgage debt out of the property mortgaged. Had the debt been paid before any adverse title had been gained, the possessory right would have ceased, and the mortgagor would have been entitled to repossess himself of the property, But upon the foreclosure of the mortgage by the executor of the mortgagee, it not only appeared that Bowne, the mortgagor, had regained possession of the mortgaged premises within eighteen years of the time that his mortgagee had •entered, but all claims to any interest therein were expressly waived, except for the amount due upon the bond and mortgage. Further than this, it is to be observed that it was found as a fact by the trial court that the devisees of William Edgar, Jr., to whom Edgar, Sr., the mortgagee, had bequeathed and devised his residuary estate, in which were comprehended the mortgage interests in question, had conveyed all their right, title and interest to the grantee, Herman Le Boy Edgar. As that grant conveyed the lands, which included the premises in question and by boundaries as rearranged under the agreement of division between said Edgar and Adams, the plaintiff’s predecessor in interest, any possible claims outstanding in William Edgar, Jr.’s devisees were relinquished and their conveyance quieted all questions as to any land which, by the rectangulation of the line of the south side of Eighty-seventh street, would be left between it, the westerly side ■of Tenth avenue and the north line of what was the old Stillwell lane.

I have discussed those objections which seemed to me to offer any legal question requiring an expression of opinion, and I think neither, they, nor any others, are material, or disclose any flaw in the plaintiff’s title. The appellant, therefore, should be compelled to perform his contract.

The judgment should be affirmed, with costs.

All concur, except Finch, J., absent.


author: Ruger, Ch. J.

text:
    Lewis M. Teel, Resp’t, v. Abraham Yost, App’lt.

      (Court of Appeals,

      Filed October 6, 1891.)

    Judgment—Foreign—Judgment note
    Defendant, while a resident of Pennsylvania, executed an instrument by which lie promised to pay a certain sum in one year from its date, and authorized any attorney of any court of record to confess judgment therefor and release of errors and waived all stay of execution from and after its maturity. Judgment was entered on this, nóte before its maturity in the court of common pleas of that state by the prothonotary, who was the clerk of the court. Meld, that such judgment constituted a valid judgment by confession in that state and was enforceable here.
    Appeal from judgment of the general term of ttie New York superior court, affirming judgment in favor of plaintiff, entered upon the decision of a judge at special term.

      Lemuel Skidmore, for app’lt; Samuel B. Rogers, for resp’t

       Affirming 29 N. Y. State Rep., 272.

   Ruger, Ch. J.

This was an action upon a judgment; and the question involved is, whether the record in evidence constituted a valid judgment, in another state, by confession.

In the case of such a judgment it is, of course, unnecessary that any process should be issued or served, declaration filed, or personal appearance entered by the defendant; as these proceedings are totally inconsistent with the nature of a judgment by confession. The appearance by an attorney, under a written power from the party, authorizing his consent to a judgment, is the legal equivalent of the process and proceedings usually taken in an action in ihvitum. In all such cases it is simply a question as to what the principal has authorized to be done in his name; and does not involve any of the questions arising in an action in invitum, against resident or non-resident defendants. The judgment sued upon purported to have been rendered by the court of common pleas of the state of Pennsylvania, on the 14th day of January, 1878, in favor of the plaintiff, Lewis M. Teel, and against the defendant, Abraham Yost, for $2,268.00, D. S. B., or as upon debt without process. It was entered upon an instrument, filed in the records of the court, reading as follows:

“ $2,268. South Bethlehem, January 12, 1878.

“ One year after date I promise to pay Lewis M. Yost, twenty-two hundred and sixty'eight dollars, without defalcation, for value received. And I do hereby authorize any attorney of any' court, of record in Pennsylvania, or elsewhere, to confess judgment therefor and release of errors, and I do hereby waive all stay of execution from and after the maturity of the above note. Witness my hand and seal the day and date above written, with ten per cent allowed for collection fees, with interest from date.

“Witness present, “Abraham Yost, [l. s.] ”

“George Ziegejstfuss.”

This instrument is usually called a judgment note, an obligation quite common in the state of Pennsylvania. The parties to the note were "both residents of that state and had "been so for a long time previous to and after the rendition of the judgment, and the court of common pleas was a court of general jurisdiction in that state, of which the prothonotary was clerk and had charge of its records, and authority to enter judgments by confession. If the court in Pennsylvania had jurisdiction of the person of the defendant and the subject matter of the action, whatever course it might afterwards have pursued in determining the nights of the parties, they cannot be heard now to relitigate the questions considered in that action. As to such matter, upon the principle of res adjudicóla, the judgment is binding and conclusive upon the parties. If this was a valid judgment under the laws of the state where it was rendered, it must, under the constitution of the United States and the laws of Congress, be accorded the same force and effect in this state that it had in the state where rendered. Section 1, art 4, Con. U. S.; § 905, U. S. R S.

The rule laid down in Shumway v. Stillman, 6 Wend., 453, was: “ That the judgment of a court of general jurisdiction in any state in the union is equally conclusive upon the parties in nil the other states as in the state in which it was rendered. This, however, is subject to two qualifications. First If it appears by the record that the defendant was not served with process, and did not appear in person or by attorney, such judgment is void; and, Second, If it appears by the record that the defendant appeared by attorney, the defendant may disprove the authority of such attorney to appear for him." This case has been quite uniformly cited and approved as a leading casein subsequent cases in this state.

Under the authority of tnis rule, we do not see how the defendant could have been seriously prejudiced by the want of notice of the proceedings leading to the judgment, as it was competent for him to show in defense of this action that the power of ' attorney, upon which the judgment proceeded, was a forgery and conferred no authority upon any one to appear for him and confess judgment thereon; but no such proof was given or offered upon the trial. The presumption, therefore, is that the note was the genuine obligation of the defendant and gave actual authority to the prothonotary, or any other attorney, to consent to the judgment authorized by it

Several objections are raised to the recovery in this action; .some of them going to the form of the judgment, and others assailing the jurisdiction of the court to render it; but we are of the opinion that none of them are well founded. It was found by the trial court, as a question of fact, that said judgment was -duly rendered and entered according to the laws of Pennsylvania. It is, and was by the laws of Pennsylvania, a valid, binding adjudication, in personam, against the defendant herein, and entitled by the laws of said state to have the same faith and credit given to it as if it had been entered upon a verdict after a trial in which the defendant had appeared." A finding of law to the same effect was made by the court, and it is upon exceptions to these two findings that the questions in the case arise. These findings were amply supported by the evidence, and unless, therefore, it appears that some error of law was committed by the court on the trial, the judgment must be sustained. The evidence leaves no room for doubt but that this was considered in form and substance a valid judgment, in personam, in the state where it was rendered, and constituted a judgment within the meaning of the acts of Congress requiring faith and credit to be given to it in ■other states. The reasons for this conclusion are so well stated in the opinions of the supreme court of that state, that we shall content ourselves with reference to two reported cases only.

It was said in the case of Helvete v. Rapp, 7 Serg. & Rawle, 306: “ The evident and sole intention of the legislature in conferring the power of entering a judgment on the judgment bond, without the intervention of an attorney, was to exempt the obligor from the payment of costs to an attorney. This act was passed on the 24th of February, 1806. It provided that the prothonotary of any court of record, on the application of the'original holder, or his assigned, of a bond, note or other instrument, on which judgment is confessed, or containing a warrant of attorney to confess a judgment, shall enter judgment against the person or persons who executed the same for the amount which, from the face of the instrument, appears to be due without the agency of any attorney, or declaration filed, particularly entering on his docket the date and time of the writing, which shall have the same force and effect as if a declaration had been filed and judgment had been confessed by an attorney, or given in open court in term time. * * * There being no literal form directed, and no precedent to guide the prothonotary in the exercise of this new duty, each has adopted his own mode; they are as various as their faces, and many of them scarcely present a feature to inform a purchaser or designate a judgment; but here is a substantial entry of a judgment bond, containing all that is necessary to give information. It is entered on the docket in the form of an action, as a judgment bond, the names of the parties, the amount due, the date and time of the writing. It states the entry of a judgment bond and seal of the defendant; the judgment bond is filed of record, entered the 17th of May, 1815.' What is entered ? A judgment on the bond filed. Mo man could be deceived by this mode of entry; for, however inartificial it may be, however defective in the technical words of a judgment, none who called for information would be led into error; the docket entry gave full information. It might, have been more formal; but still it is the entry of a judgment,, entered by the prothonotary, who was authorized to make the entry.”

The head note in the case of the Commonwealth for the use of Black v. Conrad, 1 Rawle, 249, reads, that: “A prothonotary complies substantially with the directions of the act of assembly of the 24th February, 1806, when, in entering judgment on a bond with warrant of attorney, upon the application of the party he enters on his docket the names of the obligor and obligee in the form of an action as parties, the date of the bond and warrant of attorney, the penal sum, the real debt, the time of entering the judgment and the date of the judgment on the margin of the record.”

These clear and explicit announcements by the highest courts of the state, of the force and effect given to such judgments in that state, are entitled to the highest respect, and cannot, without ignoring the requirements of comity and propriety prevailing among sister states, be disregarded by the courts of other states. It should, in any event, be for the gravest reasons alone, and those demanded by the clearest rules of public policy and justice, that the courts of one state should deliberately deny to the decisions of the courts of another state the authority which they possess in the state where rendered. So far from the-questions in this case being of that character, we are of the opinion that judgments by confession, in all material respects similar to the one under consideration, are not only valid judgments at common law, 'but have been authorized by the statute law' of most of the states of the Union, and, among others, by our own.

The principal claim, made by the defendant on the argument of the case here, was that the note did not authorize a confession of judgment upon it before it was due; but it was also claimed that the record produced did not constitute a judgment, inasmuch as it did not appear thereby that process was issued and served on the defendant, or declaration filed, or personal appearance made by him, or .proof taken of the cause of action by the court, and, therefore, that it had no jurisdiction to render a judgment. We have already stated that in judgments by confession neither process, declaration or personal appearance are anywhere required in order to. authorize the rendition of a valid personal judgment by a competent court. The appearance of the agent appointed by the party in his warrant of attorney upon the entry of the judgment constitutes, to every intent and purpose, an appearance by the party, and gives the court jurisdiction.to render a judgment to the effect authorized against his principal.

We are also of the opinion that the entry of judgment before the maturity of the note was sanctioned not only by the law of Pennsylvania, but by that of every other country where judgments by confession are permitted. The evidence in the case showed that it was the common practice in Pennsylvania to enter judgment on such notes at .any time after their date, without respect to the time.when they became due; but the prothonotary was not authorized to issue execution for their collection until, by the terms of the note, it became due.

The cases of Commonwealth v. Conrad, 1 Rawle, 249, Montelius v. Montelius, 1 Brightly, 79, and Helvete v. Rapp, 7 Serg. & Rawle, 306, are examples of judgments on such. notes; and in Cooper v. Shaver, 101 Pa. St., 547, an application to set aside the entry of judgment on a collateral obligation, guaranteeing the collection of. a judgment with warrant of attorney, was denied, although no proof was given that an effort had been made by, or that the plaintiff was.unable to collect the original judgment

In New Jersey, where the practice of giving bonds and notes, with warrant of attorney, is similar to that prevailing in Pennsylvania, the court ñeld that it was not error to enter a judgment by confession upon a note before it became payable.

In this case there is no restriction upon the authority of the attorney to confess judgment, and the waiver of a stay of execution after the maturity of the note constitutes an implied admission, on the part of the defendant, that judgment could be entered previous to that time.

Under the former practice of entering judgments upon a warrant of attorney, it was uniformly held, in England and this country, that where the warrant is given to secure the payment of money, it is not necessary that the plaintiff should delay the signing of judgment until default be made in the payment, unless there is some restriction as to the time of entry in the warrant. See Graham’s Practice, 773, and cases cited.

We are, therefore, of the opinion that the entry of the judgment before the maturity of the note was in accordance with the settled practice, not only in Pennsylvania, but also in other jurisdictions where judgments by confession have been authorized.

There are, also, some authorities in this state holding, substantially, that judgments similar to the one in question, when rendered under the authority of the law of the state in which they are entered, may be enforced by action in this state. That doctrine was, impliedly, held in Trebilcox v. McAlpine, 46 Hun, 471; 11 N. Y. State Rep., 847, by the general term in the third department, where a judgment entered upon a Pennsylvania note, similar to that under consideration, was held to be a valid judgment, in personam, in this state under the laws of congress, provided it was authorized by the law of the state where it was rendered. The judgment in that case was reversed, because it was not shown that the law in Pennsylvania authorized the entry of such a judgment. In Huntley v. Baker, 33 Hun, 578, it was held by the general term of the fifth department that, by reason of the relations between the state and its citizens, which afford protection to him and his property and impose duties on him as such, he may be charged by judgment, in personam, binding on him everywhere as the result of legal proceedings instituted and carried on in conformity to the statute of the state furnishing a method of service which is not personal and which, in fact, may not become actual notice to him, even though he is absent from the state where the judgment was entered. In that case the law authorized the service of a summons at the usual place of abode of the defendant, in case of his absence from the state, and the service was made by leaving it there in the presence of his wife.

In Gibbs v. The Queen Ins. Co., 63 N. Y., 114, it was held that where a foreign fire insurance company has designated an agent, in compliance with the state insurance laws, making the appointment of an attorney or agent, in this state upon whom process in suits against the company may be served a prerequisite to its doing business in the state, it thereby submits itself to the jurisdiction of the state courts having authority to act; and by service of a summons on an agent, so designated, the court acquires jurisdiction and may render a judgment valid and capable- of being enforced upon any property within the jurisdiction. The court in that case refer to the case of Douglas v. Forrest 4 Bing., 686, where the decrees sued upon were pronounced in Scotland, against a native thereof, who went out of the jurisdiction before the commencement of the action and never returned, ana had no notice of the proceeding. The decrees ordered him to pay ■certain sums of money. He had been summoned by posting according to the law of Scotland. The court of common pleas of England held these decrees to be consistent with the principles of justice.

The ruling, however, was confined to a case “ where the party owed allegiance to the sovereignty which gave the judgment, from being born under it, and from his property being protected by it.” The court also cited Becquet v. MacCarthy, 2 Barn. & Ad., 951, where it was held that a “judgment in personam obtained in a British colony against an absent party without notice to him, but by the service, according to local law, upon the king’s attorney-general for the colony, was not so contrary to natural justice as to be void; ” and in in Hobhouse v. Courtney, 35 Eng. Ch., 119, it was held that where a non-resident has created an attorney, in fact, to deal with the particular matter afterward in suit, a service on such attorney will be good service upon the principal.

We may also refer to the case of Vallee v. Dumergue, 4 Exch., 290, where the defendant, a resident of England, was a shareholder in a French corporation, and was by the law of France required to elect a domicil in France where the directors of the company might notify him of all proceedings of the company, or its shareholders. By the law of France all legal proceedings-affecting any party having his real domicil out of that kingdom, left for him at such elected domicil, were as valid as if left at his real domicil in France. A judgment recovered by default upon process served at such elected domicil was held to be a valid judgment in personam, Baron Alderson saying: “It is not contrary to natural justice that a man who has agreed to receive a particular mode of notification of legal proceedings should be bound by a judgment, in which that particular mode of notification has been followed, even though he may not have had actual notice of them.”

To come, however, more particularly to judgments by confession, I am of the opinion that the one under consideration conforms to all of the requirements of the law in the various countries where such judgments have been authorized. It is stated in Chitty’s General Practice (2 vol., p. 333, 1st ed.), in speaking of the jurisdiction of the court of king’s bench, that: “this court (as well as common pleas and exchequer), has an exclusive summary jurisdiction (as well of an equitable as of a legal nature) over a warrant of attorney authorizing a judgment in the particular court and all proceedings thereon, to entertain a motion to set the same aside if it authorize a .judgment m that particular court, and it has been usual to frame that security under seal, enabling certain attorneys, therein named, or any other attorney of a particular court to appeal’ in that court as attorney for the party, and to receive a declaration in an action, usually of debt, for a named sum at the suit of the creditor, and to confess such action, or suffer judgment by nil dicet, or otherwise, to be entered up against the party, and also authorizing such attorneys, respectively, to release any errors in the proceeding. * * * How, or when, this peculiar security for a debt, authorizing a creditor, as it were, ver saltum, to sign a judgment and issue an execution without even issuing a writ, was first invented does not appear; but it has now become one of the most usual collateral securities on loans of money.” It' is further said, with reference to the form of the warrant of attorney, that “ it need not in strictness be under seal, though usually so, in order to authorize the release of errors.”

But it will, perhaps, be more satisfactory to show that a practice similar to that prevailing in Pennsylvania obtained in our own state from the earliest times to the adoption of the Code in 1848. The earliest allusion to this practice occurs in chapter 15 of the Colonial laws of 1774, under the title, “An act for the better discovery of judgments in the courts of record in this colony; ” wherein it is provided that the clerks of courts of record, within six days after every term or court, shall enter in an alphabetical docket the name of the party against whom the judgment is entered, with a particular “of all judgments by confession, non sum informatus, or nil dicet, eta” By chapter 105 of the Laws of 1801, it was provided “ that no judgment shall be entered upon any bond or contract in writing, hereafter to be made, upon the confession of any attorney, by virtue of any authority whatever contained in the same instrument * * * with such bond or contract, and no judgment shall be entered upon any confession taken out of court before any judge, etc.”

By § 8 of chap. 259 of the Laws of 1818, it was provided that a confession of judgment by bond and warrant of attorney should contain a particular statement and specification of the nature and consideration of the debt or demand, and in default thereof the judgment should be adjudged fraudulent as to other Iona fide creditors. Certain other provisions, in relation to warrants of attorney, not material to be particularly noticed, are found in chapter 48 of the Laws of 1813, and chapter 50 of the same year, and other years previous to 1828.

By § 10, art. 1, tit. 4, chap. 6, pt. 3, of the Eevised Statutes it was provided: “ That judgments may be entered in the supreme court, or in any court of common pleas, in vacation of in term, upon a plea of confession signed by an attorney of such court; although there be no writ then pending between the parties, if the following provisions be complied, with, and not otherwise:

“First. The authority of confessing such judgment shall be in some proper instrument, distinct from that containing the bond, contract, or other evidence of the demand, for which such judgment is confessed.

“Second. Such authority shall be produced to the officer signing such judgment and shall be filed with the clerk of the court in which the judgment shall be entered, at the time of filing and entering such judgment.” It was also provided by § 4, title 3 of the same chapter, that in cases of an action upon a written instrument for the payment of money, where the defendant had suffered default, or upon confession, that a reference might be bad to the clerk to assess damages, and in assessing such damages the production to the clerk of the instrument set forth in the declaration shall be sufficient evidence of the same without any other proof.

The practice under the statutes is described by Graham, in his work on Practice, as follows : “ A warrant of attorney is a written authority to the attorney to whom it is directed, or, as is more generally the case, to any attorney of the supreme court, or any other court of record, to appear for the party executing it and receive a declaration for him in an action at the suit of a person therein mentioned, and thereupon to confess the same, or to suffer judgment to pass by default; it also, in general, contains a release of errors. It must be subscribed by the defendant and must be in some proper instrument (usually by deed in the presence of a subscribing witness, although" this is not necessary) distinct from that containing the bond contract, or other evidence of the demand for which the judgment is confessed; and it must be produced to the officer signing the judgment, and filed with the clerk of the court in which the judgment is entered, at the time of the filing and docketing of such judgment. * * * Within a year and. a day from the date of the warrant of attorney, judgment may be entered up as of course without the leave of court” Graham’s Pr., chap. 4, p. 767, et seq.

I have been unable to find any rule or precedent in this country of’England requiring a power of attorney to confess judgment to be acknowledged, or even to be attested, by a subscribing witness. The Code of Procedure effected a change in the mode of procedure, and reinstated the practice of combining in one instrument the authority for a judgment and the proof of debt; and described the process as judgment by confession. By that Code a party could confess judgment, either for money due or to become due, or to secure a person for contingent liability on behalf of the defendant. To do this the defendant was required only to make a statement in writing, signed and verified by him, naming the amount for which judgment might be entered, and authorizing jts entry and stating concisely the facts out of which the liability arose. Upon filing this statement with the clerk of the court, he was required to enter the judgment for the amount confessed, with five dollars costs and disbursements, and • the statement and affidavit, with judgment endorsed thereon, became the judgment roll.

It is thus apparent that under the practice now existing in this state judgments are daily entered in our courts without process, declaration or appearance, and without the intervention of the court or even an attorney, and without proof of any authority from the defendant except that inferred from his signature to the statement.

This brief historical statement of the condition of the law on the subject in this state will have failed in its purpose if it does not show that heretofore the filing in court of a warrant of attorney, authorizing the confession of a particular judgment, gave the court jurisdiction over the person of the party executing it to adjudicate according to its regular practice upon the subject embraced in the warrant. When the warrant is for the confession of judgment for a specific sum, it is, of course, unnecessary to prove the nature, existence or amount of the debt upon the assessment of damages, as the express authority of the warrant supplies the place of such proof.

And as it is held in Pennsylvania on a warrant authorizing any attorney to confess judgment, the prothonotary may properly be considered such attorney. There would seem to be no valid reason why this should not be so, as the warrant authorizes the plaintiff to select any attorney he may desire, and the exercise of that authority is, at the most, a mere matter of form. Judgment is entered there, as here, on the request of the plaintiff, by the clerk without the intervention of the judge in term time, or vacation, and in case the debt is not then due, execution is stayed until it matures. The only material difference existing between the present practice in this state and in Pennsylvania, in relation to judgments by confession, is that here a defendant is required to verify his statement as to the nature and circumstances of the indebtedness. This requirement has no relation, however, to the jurisdiction of the court, or the authority of the clerk to enter judgment, as its only purpose has frequently been declared to be to protect creditors from judgments fraudulently confessed by an insolvent debtor. Sheldon v. Stryker, 34 Barb., 121; Chappel v. Chappel, 12 N. Y., 219 ; Dunham v. Waterman, 17 N. Y., 9.

In the latter case, Judge Selden says, “The object of the statute being to protect the creditors of the party confessing the judgment against fraud, its violation forms a proper subject of equitable jurisdiction.” In the case of Sheldon v. Stryker, supra, Judge Emott says, in view of the principles declared in the cases of Chappel and Dunham, above cited, that such judgment is not “ an absolute nullity if it is valid as to any person. It is valid as to the defendant in the judgment, for he cannot even move to set it aside ; and such judgments are always amended as to him.” It was, therefore, held that a judgment entered by confession, although it be not confessed in conformity with the provisions of the Code, is not absolutely void; but is voidable at the instance of certain creditors only.

In view of these decisions it would be idle to contend that a defendant can impeach a judgment entered upon a warrant of attorney signed by him and in conformity thereto, whether his statement be verified or acknowledged or not. It is not easy to point out any difference in principle between the practice now prevailing in this state and that pursued in Pennsylvania. Given a valid warrant of. attorney in either state, the rest is matter of form, to be regulated by the laws of the respective state where the cause of action arises.

The judgment should, therefore, be affirmed.

Judgment affirmed, with costs.

All concur, except Finch, J., absent.