Maus v. Wilson

15 Pa. 148, 1850 Pa. LEXIS 313

• Court: Supreme Court of Pennsylvania
• Decided: August 1, 1850
• Status: Published

Opinion

The opinion of the court was delivered by

Gibson, C. J.

The scire facias on the mortgage appears to have been somewhat anomalous. Hilborn, as the attorney in fact of Carl Ellinckhuysen, a merchant of Rotterdam, executed a mortgage of one hundred and four lots in Lewisburg; which, in 1798, was put into the hands of counsel learned in the law, to be enforced ; and this counsel sued out the scire facias, not against Ellinckhuy-sen, whose deed the mortgage exclusively was, but against Hilborn, the attorney, by whose instrumentality it had been executed, and who, though his authority was spent and his office terminated by the sealing and delivery, was made, as a sort of vicarious sacrifice, to bear the brunt of the day. It might naturally have occurred to the counsel, one would be apt to think, that Ellinckhuysen himself deserved to have a da.y in court, in order to contest the agent’s authority to incumber his title; or to show collusion with the mortgagee ; or to prove that the debt was paid. It is true the mortgage was given as a security for the agent’s personal responsibility; but that does not seem very much to lessen the propriety of giving the mortgagor an opportunity to test the soundness of the transaction. Power is often given an attorney to sue in the name of his principal, but never, we believe, to be sued in his own name. An attorney would fare ill, if he were liable to be sued on every covenant in a deed executed by him in the name of his principal. The objection made to the competency of the judgment and execution below, was put by counsel, not on the ground that the scire facias was between strangers to the title, and that one man’s land cannot be sold on a judgment against another, but that the original letter of attorney had not been produced. The court very properly rejected the evidence.

Judgment affirmed.