Tallmadge v. Teller. the same day entered the defendant's default-the 20 days for pleading having expired. Afterwards, on the same day, the defendant tendered a demurrer, which the plaintiff refused to receive. C. M. Jenkins, for plaintiff, opposed the motion. By the Court, BRONSON, J. The order to stay proceedings did not give the defendant the same time to plead after the motion to consolidate was decided, that he had at the time the order was served. Brown v. St. John, 19 Wendell, 617. And the 20 days for pleading having expired before the motion was made, the plaintiff was at liberty to enter the de fault as soon as the order to stay proceedings ceased to operate. The defendant might have pleaded before the motion was made. The plaintiff was regular, and as there is no affidavit of merits, the default must stand. Motion denied. TALLMADGE vs. TELLER. Orders made by the judges of the New-York common pleas, or by the recorder of New-York, in suits pending in this court, are made by them as supreme court commissioners, and consequently under the 95th general rule of this court, a second order for time made by either of them may be treated as a nullity. It is not necessary, in an order made by those officers, to state that the or. der was made in the absence or during the sickness of the circuit judge of the first circuit; the fact will be intended. MOTION to set aside default and subsequent proceedings, for irregularity, and also on the ground of merits. The declaration was served on the 24th June last. The time for pleading was first enlarged by consent; an order for further time was then made by Judge Ulshoeffer, of the NewYork common pleas, in the absence of the circuit judge ; and subsequently a further order was made by Judge Inglis, of the New-York common-pleas, without stating the Tallmadge v. Teller. absence of the circuit judge. The plaintiff disregarded the last order, entered the defendant's default, and proceeded to judgment. H. H. Martin, for the defendant, to show that judge Inglis had authority to make the order, cited Statutes of 1832, p. 189, § 6; 1834, p. 118, §5; and 1839, p. 96, chap. 116, $2. W. Parmelee, for the plaintiff, insisted that the order might be disregarded, first, because it did not purport to be made in the absence of the circuit judge; and second, because the 95th rule provides that "if a second order for time shall be made by a supreme court commissioner, the plaintiff may treat the same as a nullity." Martin, in reply, said Judge Inglis stood in the place of the circuit judge, and did not act as a supreme court commissioner in making the order. By the Court, BRONSON, J. The sixth section of the act of 1832 provides, that "no person acting as a supreme court commissioner in the city of New-York, shall be authorized to make any order or do any act relative to suits pending in the supreme court; but in the absence from the city of New-York, or sickness of the circuit judge of the first circuit, such duties may be performed by the first judge of the common pleas, or the recorder of the city." By the acts of 1834 and 1839, the same powers that may be exercised by the first judge are conferred on the associate judges of common pleas. Although the fact is not stated in the order of Judge Inglis, it is but a reasonable intendment that the circuit judge was absent or sick at the time the order was made. II. Judge Inglis was not the representative of the circuit judge in making the order; he acted as a supreme court commissioner. 2 R. S. 281, § 32. And the 95th rule is general, that a second order for a time to plead made by a supreme court commissioner may be treated as a nullity. The act of 1832 does not confer any new powers on the Williams v. Hogeboom. judges of the New York common pleas, and the recorder of the city; it only suspends the exercise of powers which they before possessed, during the time that the circuit judge is in the city, and able to discharge his duties. The plaintiff was therefore regular; but as there is an affidavit of merits, the defendant must be relieved on the usual terms. Ordered accordingly. WILLIAMS US. HOGEBOOM. In suits commenced previous to the 14th May, 1840, it is not necessary that there should by sixty days between the teste and return of executions. An execution though tested on Sunday is amendable. A. P. Holdridge, for the defendant, moved to set aside the execution issued in this suit, which was tested on the fifth day of July which was Sunday, and made returnable on the eleventh. He insisted first, that the execution should have been returnable sixty days from the receipt thereof by the sheriff, Statutes 1840, p. 334, § 24; and second, that being tested on Sunday the writ was absolutely void, and could not be amended. The suit was commenced and judgment recovered in 1839. P. Cagger opposed the motion. By the Court, BRONSON, J. The statute referred to does not affect any suit or proceeding commenced before the act took effect § 38, and consequently the objection that there was not sufficient time between the teste and return of the execution, is not well taken. This point was decided at the last motion term. Although tested on Sunday, the writ was not absolutely void, and the plaintiff may amend on paying the costs of this motion. Ordered accordingly. THE NORTH RIVER BANK vs. DAVID ROGERS & SAMUEL D. ROGERS. A power of attorney authorizing the execution of mortgages, bonds, warrants, bills, notes, &c., and generally to do all things whatsoever relating to the concerns and business of the constituent, confers authority upon the attorney to execute a bond and warrant of attorney to confess judgment for a bona fide debt owing by the constituent. Whether this court have power to grant a commission to a person residing in a foreign place to take an affidavit, where an affidavit cannot be authenticated in such place in the form prescribed by the statute, quere. THIS was a motion in behalf of David Rogers, to set aside a judgment entered as upon confession, in November, 1837. The motion was founded on the alleged want of authority. The counsel for David Rogers relied on his affidavit, which was taken before the Hon. Fitz Wilhelm Didrickson, judge and recorder of the town court of Christianstadt, in the island of St. Croix, in the dominions of the king of Denmark, on the 5th day of May, 1840. It purported to have been taken at Christianstadt, where the deponent then resi ded. In the jurat the officer styled himself judge and commissioner, and the affidavit was taken before him under a commission issued pursuant to a rule of this court made in April term, 1840, directed to him for the special purpose of authorizing the taking of the affidavit; it being alleged that there was no court in St. Croix having a seal, and, therefore, no power there to take the affidavit whithin the words of the 2 R. S. 317, 2d ed. § 33. The affidavit denied authority in any one to confess the judgment; and also denied all knowledge or imformation that it had been entered, until April, 1839, and excused the delay in making the motion since that time. It appeared that David Rogers was formerly a member of the firm of David Rogers and son, composed of the defendants, who carried on business in the city of New-York, and as such firm became largely indebted to the plaintiffs. That David Rogers had resided at St. Croix since 1833; his son Samuel continuing to reside in the city of New-York, from that time to the time of confessing the judgment. VOL. XXII. 82 North River Bank v. Rogers. During the latter part of that time he had acted under a warrant of attorney from David Rogers in settling the business of the firm, which had become much indebted to various persons, and on the 26th of December, 1836, the warrant of attorney to confess the judgment in question with a bond in the penalty of $200,000 was executed by Samuel D. Rogers in the name of himself and David Rogers. This was done without the actual knowledge of David Rogers at the time; but by a writing dated on the same, 26th December, signed and sealed by David Rogers, and his wife, it was recited as follows: "Whereas, I, the said David Rogers, heretofore executed in due form of law, and delivered unto my son, Samuel D. Rogers, of &c., a power of attorney, wherein and whereby I gave to my said attorney, full power and authority, for me and in my name and place, to do, perform and execute whatever in his judgment might appear most advisable, in relation to all my affairs and business; and more particularly to sell or mortgage all or any part of my real estate, wheresoever situated, and to sign, seal, execute and deliver any deed of conveyance, mortgage or other instrument or obligation relating thereto; and in my name to sign, seal and deliver any custom house bond or other bond or obligation, covenant, warrant, bill, note, check or other writings whatsoever, and generally to do all things whatsoever, relating to my concerns and business, as well those that were particularly specified in said power, as those that were not; and whereas the power so, executed has been lost, &c., and I am desirous to confirm the same, and also all the acts and proceedings of my said attorney under it; therefore, be it known to all persons that I the said David Rogers do, by these presents, ratify the said power of attorney, &c., and fully approve of and confirm all and every act, matter and thing whatsoever done or to be hereafter done by my said attorney, under the power so executed to him as aforesaid." The confirmation then contained a clause authorizing Samuel D. Rogers to execute such conveyances as should cut off the contingent claim of Susan, the wife of David Rogers, to dower in such lands as Samuel D. Rogers should mortgage. On the part of the plaintiffs, several depositions were |