
    *Den ex dem. Flommerfelt against Zellers.
    1. A judgment entered upon a bond and warrant of attorney, under the act directing tlio mode of entering judgments upon bonds with warrants of attorney to confess judgments, (Rev. Latos, 685), is not void, although the warrant authorizes the confession of the judgment for one sum, (viz. the sum mentioned in the condition of bond) and the judgment is entered for double that sum, (viz the amount of the penalty).
    2. Nor is it void, although the warrant of attorney is general (to confess a judgment for a specified sum) without referring to the bond.
    3. Nor although the placita is omitted, so that it does not appear by the record, of what term the judgment, is entered.
    4. Nor although the affidavit required by the fifth section of the act, was not filed with the papers in the cause, at the time the judgment is entered.
    5 And although all the preceding objections may be made to a judgment, yet as they do not render the judgment void, hut voidable only, it may be given m evidence in an action of ejectment brought by the purchaser under such judgment (to recover the possession of the lands thus purchased) against the defendant in the ejectment, he being also the defendant against whom the said judgment on the bond and warrant of attorney was entered.
    6. A mistake in the sheriff’s advertisement, in the description of the'land, will not vitiate the sale, if it may be fully understood from such description what property is to be sold.
    7. A sheriff may exercise a reasonable discretion as to the manner of selling property. Per Ford, J.
    
    8. A sheriff is not obliged to attend to tlio bid of an insufficient purchaser. Per Ford, J.
    
    9. It is no objection to the sheriff’s sale, that the premises did not sell for iheir full value, Per Ford, J.
    
    
      This was an action of ejectment, tried at the Hunterdon circuit, in October, 1823, before Justice Ford. The plaintiff deduced title under a sheriff’s sale of the premises in question, and offered in evidence an exemplification of a judgment in the Common Pleas of Hunterdon, at the suit of Jacob Lininger against Conrad Zellers, (the present defendant) in debt on bond and warrant'of attorney, (signed by a judge, in vacation, under the statute) and the execution thereupon; to which evidence the defendant’s counsel took sjveral exceptions, which the court overruled, reserving the points to be considered at bar, on a motion for new trial. The plaintiff then offered in evidence a deed from the sheriff of Hunterdon to the lessor of the plaintiff for the premises in question, on a sale made upon the said execution ; to which the defendant’s counsel excepted, on account of irregularity in the sale, and gave in evidence — 1. That the premises in question (which in the deed were described, by metes and bounds, as four separate tracts containing altogether 116 acres, but which in reality comprised two tracts, one of woodland, consisting of two‘adjoining lots or surveys, containing together *71 acres, on which the improvements were; the other of two adjoining lots of woodland, containing together 46 acres, and lying about half a mile distant from the former, were sold by the sheriff altogether, and not by the lot or by the acre.
    
    2. That the wood lots were described in the advertisement as adjoining lands of Elomerfelt, Hildebrandt and Zoul, when in fact they did not adjoin Zoul’s land.
    3. That at the sale, one John Zellers bid for the premises $700; that the sheriff called him out and conversed with him, and after he came in did not take liis bid, but sold it for a less sum, to the lessor of the plaintiff.
    The plaintiff proved, by persons present at the sale, that, from the description, they fully understood what property was to be sold, and at the time of sale also understood that it was all selling together; that John Zellers, who bid the $700, was a single man and transient person, having little- or no visible property, and was not supposed to be able to pay the purchase money. The plaintiff also gave in evidence a mortgage, by defendant, of the premises in question, assigned to him a few days after the date of the demise laid in the declaration.
    The judge charged the jury, that, the judgment having-been admitted in evidence, it was proper for thorn to consider it as valid, and sufficient to justify the sale; that the objections to its validity were mere questions of law, which had been reserved by the court, of which, if there was any thing in them, the defendant would have the benefit hereafter; that the sheriff', being a public officer, was to be presumed to have done his duty, and that the deed was prima facie evidence of all the facts therein certified to have been done in the discharge of that duty, such as, that the premises wore duly advertised, sold to the highest bidder, &c.; that a small variance or inaccuracy in the description of the premises could not impeach the sale, when if appeared that, from the description, it was fully understood what property was to be sold; that there was no law obliging-the sheriff to sell by the lot or by the acre — he was to exercise a reasonable discretion in selling the property to the best advantage, and in this case it did not appear that it would have sold better in any other way; that he-was to sell what would be sufficient to satisfy the execution, as near as might be, if it could bo so done without injury to the property; but as he could’not ascertain *bcforehand precisely how much of the property would satisfy the execution, he was to set up what he-might reasonably suppose to be sufficient, and if the sale should exceed the demand in a small proportion, it would be no objection to the sale; but in this case the amount of the sale fell short of the demand ; that the sheriff was not obliged to attend to the bid of an insufficient purchaser, else sheriffs might be imposed on, and sales defeated; that it was no objection to a sheriff’s sale, that the premises did mot sell for full value; that the sheriff was commanded to make the money of the property, and must sell for the best' price he could get; that if there was no fraud or collusion in it, the sale was unexceptionable on any other grounds. 'The jury found a verdict for the plaintiff. Upon the coming in of the postea, a rule was taken to shew cause why a new trial should not be granted.
    
      Vroom, in support of the rule,
    assigned two reasons — 1. That the court admitted incompetent evidence. 2. That the verdict was against law and evidence.
    Under the first reason, he insisted, that the judgment in this case was a proceeding under a statute giving a special .authority to a judge or officer to enter a judgment in a particular manner, different from the course of the common law ; that in such cases the statute must be strictly pursued, or the proceeding will be void; and he shewed for •cause and insisted' — •
    1. That the warrant of attorney under which this judgment was entered had not been pursued, 'the warrant authorizing the confession of a judgment for $883.38, (the sum mentioned in the condition) and the judgment having been entered for $1,766.76, (the penalty of the bond) with •costs.
    ■2. That this was a case not within the statute, the warrant of attorney being general to confess a judgment for a specified sum, without any reference to the bond ; whereas the statute authorized the entry of judgments only in case •of bonds given together with a warrant authorizing an attorney to appear to an action brought on such bond, and confess judgment for the sum mentioned in sueh. bond. Rev. Laws 685, see. 1.
    3. That the judgment, which expressed to be 'entered pursuant to the directions of an act entitled, “ An act directing the mode of entering judgments on bonds with warrants to confess judgments,” and was signed 9th July, 1821. After the repeal of that act, and the passing of the act entitled, “ An act directing the mode of entering judgments on bonds with warrants of attorney to confess judgment,” must be considered as entered under a repealed statute, and was without authority, and void.
    4. That it did not appear, by the judgment, of what term it was entered (the placita being omitted); that in this respect neither the authority of the warrant, which was to-confess a judgment of the last, next, or any subsequent term, nor the form prescribed by the statute, had been pursued.
    5. That the entry of the judgment was unauthorized for the want of an affidavit, the affidavit (which appeared to have been taken on the sanee day, and before the same judge wdio signed the judgment) not having been filed with the papers at the time the judgment was entered, but filed on the 24th October preceding, by order of the court (Rev. Laws 687, sec. 5); that this judgment, not having been entered pursuant to the directions of the statute, was not merely irregular, but. was wholly void upon common law principles (2 South. 480; 1 Pen. 151, 203 ; 2 Halst. 62); and by the express provision of the statute, (Rev. Laws 686, sec. 4,) which declares, that the judgment shall be entered as in and by the first and second sections of this act, and not otherwise.
    
    Under the second reason, he insisted, that the sheriff’s sale was irregular, the land not having been accurately described in the advertisement, but described as adjoining: Zoul, when in fact it did not adjoin his land.
    
      Saxton, in opposition to the rule,
    insisted, that there was no irregularity in the sheriff’s sale that could affect the plaintiff’s title under it; the fact of the lands not adjoining Zoul, was no objection, when, from the other part of the description, it was fully understood what property was to ¡be sold. And as to the judgment, he contended — 1. That .although the directions of the statute had not been strictly-pursued, yet the judgment was not void, nor yet so erroneous that it could be avoided on a writ of error; that a judgment signed without affidavit was not a void judgment (2 South. 480); that the affidavit was intended as a check against fraud, and to satisfy the judge of the justice of the debt, and authorize the signing of the judgment; when that was *done its office was spent, and the provision of the statute, as to its being filed, was merely directory, to preserve it for the security of plaintiff, and satisfaction of other creditors.
    2. That as to the term or placita, it was mere matter of form, and not essential, as this was a judgment that could be entered in vacation, and bound from the time of its actual .entry, which appeared from the signing and filing of the judgment; that, if necessary, the judgment, in more important particulars, was amendable. 3 John. Rep. 526.
    3. As to the title of the statute. That it was immaterial whether a former statute had existed or not, the judgment must be considered as entered under the statute in force at the time, if it could by law be brought within it; that the ■only variance was the omission of the words “of attorney” in the title of the act, which were immaterial; that the omission of a word in the title, or the misrecital of a statute in an immaterial part, and where it does not alter the sense, will not vitiate. 3 Caines Rep. 41; 6 Rae. 399; Stat. I. 5.
    
    4. As to the judgment being entered for the penalty, when the warrant only mentioned the sum specified in the condition, it was sanctioned by the statute, (Rev. Laws 307, sea. 13) which directs all judgments on bond to be entered for the penalty,, and the cases upon bail bonds, (2 Pen. Rep. 707-8) if not; that in these respects the judgment was amendable, even after, error brought. 1 H. Rlae: 643; 2 Lai. 1014.
    5. As to its being out of the statute, by reason of the warrant not referring to the bond. The warrant bore the same date, and was in fact given with the bond, for the purpose of confessing judgment thereon, although not so expressed on the face of the warrant. But if not within the words, it was within the mischief intended to be provided for, and so within the equity of the statute (2 Inst. 291, c. 2, n. 1; Ibid. 322, c. 11, n. 1, 2; 325, c. 12, n. 1; 393, c. 17, n. 2; 6 Bac. 384 &c.; Stat. I. 5); that this statute was to be liberally construed (1 Halst. Rep. 300); that the statute of jeofails and amendments extended to proceedings under it; that the judgment was put upon the footing of a judgmeut after verdict, and not to be set aside lor error, misprision of the clerk, or defect of form, &c., (Rev. Laws 686, sec. 3); but that it was unnecessary, at present, for the court to enter into a minute examination of the judgment, or to determine whether *it could or could not be reversed for error; for, he contended, in the second place, that being a judgment de facto of a court of record having cognizance of the subject matter of the suit, however erroneous it might be, it was only voidable ou error brought, and could not be considered as void or coram nonjudiee ; that this was not to be considered as a special authority given by statute to a newly created jurisdiction, proceeding in a summary manner, &c., the power of the judges to sign judgments by confession on warrant of attorney, was an old common law authority, regulated, in this instance, by statute'; that to determine whether it was void or voidable we need only to inquire into the constitution, power, and jurisdiction of the court, and not into the regularity of the judgment; that here was an actual judgment in the Court of Common Pleas, which was a court of record, of general jurisdiction in civil cases, (with the exception of title of land) having cognizance of the subject matter of the suit, and therefore the judgment, if erroneous, was only voidable on error brought, but not void; that it could not be avoided by plea, or its validity called in question in this collateral way (1 Pen. 204; 1 South. 58; 2 South. 480; 2 Bac. 450, Error A.; 14 Viner 
      633, Judgment G. a. 1, pl. 1, 4, 6; Ibid. 634, G. a. 2, pl. 2; 10 Co. 76; 5 Cranch 183, 185)that the provision in the statute, declaring that judgments should be entered according to the directions of the act, and not otherwise, had reference to, and was intended to prevent, the entering up of judgments on warrants of attorney in the common law form ; that this judgment, not having been reversed by writ of error before the sale, the title of the purchaser was protected by the statute (Rev. laws 434); that if there was the least possible doubt in this case, it would be determined by the consequences; to suffer a judgment to be impeached in this collateral manner would produce uncertainty and confusion, and endanger the rights of all parties; it would be destroying a record by a matter in pais ; the defendant in the original judgment would be deprived of the benefit of restitution, to which he would be entitled upon reversal on error; the plaintiff below would have his judgment destroyed by a proceeding to which he was not a party, and be deprived of the1 advantages of which he might avail himself to support his judgment upon writ of error brought, such as the privilege of amending, and the benefit of a certiorari, to supply *defects or omissions, (2 Bac. Error E. 468, &c.,) or pleading a release of errors, (2 Bac. Error L. 497) which the-warrant of attorney in this case authorized, the tenant or purchaser would be deprived of the same privilege of pleading a release which he was entitled to, in maintenance of' his title, (Ibid. Error L. 499) and both plaintiff and purchaser would be deprived of the benefit of a writ of error to this court, if they should err in opinion on this point;. that to suffer a judgment to bo impeached in this collateral manner, would be to destroy the security of title and defeat-sheriff’s sales, contrary'to the policy of the 'common law,, and against the provisions of our own statute, (1 Id. Bay. 252; Pen. Pep. 204; Pev. Laws 434) and tend to the-injury of all parties concerned; of the debtor, whose property would be sacrificed in consequence of this insecurity of.' title; of the creditor, whose judgment would go unsatisfied by the property being sold at an under value, and of the purchasers whose titles would be liable to be defeated by defects in the judgüient, of which at the time of sale he -could not possibly be apprised. The only safe course, therefore, was to pursue the rule of the law, and consider the judgment, although erroneous, not as a void judgment, but only voidable on error brought.
    
      Vroom, in reply,
    insisted, that, as to the judgment, the statute gave a special authority to the judge to sign judgment in certain specified casos, and in a certain prescribed form; that, unless the directions of the statute were pursued, the judge had no authority to sign the judgment, and it must be considered void, and would not support the sale. He relied on the case of Pierson v. Hopkins, Pen. Rep. 203.
   Kirkpatrick, G. J.

The ground on which we decided that case was, that there was no judgment; there could not be a judgment unless something was recovered, and in-that case it did not appear what was recovered, or for wha-t judgment was ordered.

Vroom, also cited Rev. Laws 135; 14 Vin. Abr. title Judgment, letter G. A. 2; 10 Co. Rep. 77.

Curia advisare vult.

The next day the opinion of the court was delivered by

*Kirkpatrick, O. J.

The judgment offered in -evidence at the circuit was not void, but voidable-only. It was a subject of which the judge had cognizance. This authority to enter judgment in vacation was not a new authority; it was an old common law authority, and this statute only came in to regulate the matter; therefore

Let the rule for new trial be discharged.  