General Contract Purchase Corp. v. Max Keil Real Estate Co.

Layton, C. J.,

delivering the opinion of the Court:

An examination of the authorities leads to the conclusion that, at common law, a practice of entering judgment under warrant of attorney authorizing confession of judgment, in the office of the Clerk of the Court, without action brought, was unknown.

Freeman on Judgments, Vol. 3, § 1302, says:

“At common law there seems to have been two methods of confessing judgment. One was by means of a warrant of attorney which was a written authority directed to one or more attorneys to appear for the party executing it and receive a declaration for him in an action at the suit of a person therein named and thereupon to confess the same, or to suffer judgment to pass by default. * * •*”

“The other means of confessing judgment was by cognovit actionem or written confession by the defendant of the whole or of a part of the cause of action and further authorizing an appearance. * * * It might be given at any time after process was sued out, and before it was served, or before declaration, but it was usually after declaration, and if made after plea it contained a withdrawal of the plea and was called cognovit actionem relicta verificatione.

In 4 Minor’s Inst. 726, it is said

“The defendant was always allowed to acknowledge the plaintiff’s action, and confess a judgment for the amount claimed, or for such part thereof as he and the plaintiff could agree upon, provided, it was done in open Court. But a confession of judgment in the Clerk’s office was never contemplated by the common law, and can only take place in pursuance of authority of some statute.”

Those interested in a pursuit of the subject are referred to, 1 Tidd’s Pr. (3d Am. Ed.) 546, 559; 2 Chitty’s Gen. Pr. (1st Am. Ed.) 333; 1 Sellon’s Pr. 374-381; 18 Halsbury’s Laws of England 190, note 9; 3 Blackstone 396; 1 Black Judgments, § 50; 3 Freeman, Judgments, swpra; 4 Minor’s Inst., supra; Farquhar v. Dehaven, 70 W. Va. 739, 75 S. E. 65, 40 L. R. A. (N. S.) 956, Ann. Cas. 1914A. 640, and note; First National Bank of Kansas City v. White, 220 Mo. 717, 120 S. W. 36, 132 Am. St. Rep. 612, 16 Ann. Cas. 889, and note; Irose v. Balla, 181 Ind. 491, 104 N. E. 851.

In this state, the first statutory recognition of entry of judgment by confession under warrant of attorney was by a statute enacted in 1818, found in 5 Del. Laws, page 332; This empowered a creditor to receive from his debtor a “bond” with a warrant of attorney and to enter judgment thereon before a Justice of the Peace.

This statute was followed by the Act of January 29, 1825, found in 6 Del. Laws, page 443, authorizing Justices of the Peace to enter judgment without process upon “obligations” with warrant of attorney annexed authorizing the entry. This latter act is incorporated in Revised Code 1915, as Section 4018.

Section 3768, Revised Code 1915, has its origin in Vol. 8, c. 1, Latos of Del., passed January 16, 1830, and is as follows:

“It shall be the duty of the Prothonotary, on application by the obligee, or assignee, of a bond containing a warrant for an attorney at law or other person to confess judgment, to enter judgment against the person who executed the same, for the amount which, from the face of the bond, may appear to be due, without the agency of an attorney, or declaration filed, and with such stay of execution as may be therein mentioned; particularly entering on his docket the real debt and time from which interest is to be calculated.”

The pertinent part of Section 3764 directs the prothonotary to set down the precise time of entering the judgment and declares the judgment to be effective as a lien at that time.

But long prior to any statutory enactment an extensive practice existed to enter judgment on warrant of attorney without, in fact, bringing suit, a declaration, however, being filed with instrument and warrant; yet, we have seen no authority to support the view that this precise practice ever existed in England.

What is now Section 3768, Revised Code 1915, was before our Courts, very shortly after its enactment in 1830, in Beeson v. Beeson’s Adm’rs, 1 Harr. 466. In this case it was said that the purpose of the act was to “avoid the necessity of employing an attorney at law to confess judgment in the case of a bond and warrant of attorney in the common form. The necessity of employing an attorney for this purpose is held out in the law as an evil — it was the mischief to be remedied — and the remedy applied is in authorizing the prothonotary to enter the judgment without the intervention of an attorney.”

The language of this statute is significant. It assumes an existing practice for the confession of judgment by an attorney at law under warrant of attorney.

It may be fairly inferred that this practice was confined to bonds, the distinguishing characteristic of which is the presence of a seal. 2 C. J. 7; 4 R. C. L. 47.

Apparently the statute in question was intended to do no more than to give to the prothonotary a power coextensive with that of an attorney, although this Court, in Roman Automobile Co. v. Miller, 5 Boyce (28 Del.) 586, 95 A. 654, 655, did say, in commenting upon Section 3768, which in the Code of 1893, was Section 5, c. 37,

“The only authority for the confession of judgment by virtue ■of a warrant of attorney where there is no penalty stated in the bond, is contained in Section 5, Chapter 37, quoted above.”

In this case the warrant of attorney authorized the confession of judgment either by the prothonotary or by an attorney, but the report of the case does not show whether, in fact, the judgment was entered by the prothonotary without appearance by an attorney. If the Court meant to say that the section in question is the only authority for the confession of judgment by the prothonotary by virtue of a warrant of attorney where there is no penalty stated in the bond, it was undoubtedly correct.

The fair inference is that the Legislature knew of the general practice of attorneys at law to cause judgments to be entered by confession upon bonds with warrant of attorney, and intended to confer upon the prothonotary a like power with respect to that same class of instrument.

Furthermore, this Court, in Slaughter v. Provident Savings Bank, 2 Boyce 333, 80 A. 243, in construing Section 4018, Revised Code, supra, held that the word “obligation,” used in the statute, imported an instrument under seal; and an examination of our pertinent statutes shows that the Legislature has regarded the words “bond” and “obligation” as synonymous terms. It will be noted that in the Act of 1818 the word, “bond,” was used, while in the Act of 1825, the word “obligation” was substituted; and, in Section 4303, Revised Code 1915, which expressly declares the validity of judgments entered under Section 3768, the word “obligation” is employed instead of the word “bond” which appears in the last mentioned section.'

Therefore, we conclude that the power and authority for the confession of judgment, under a warrant of attorney directed to an attorney at law, are not founded upon statutory enactments, but upon established practice; and, under that practice, by inference from statutory enactment and by decision, we are of the opinion that a judgment by confession under warrant of attorney must be based upon an instrument under seal evidencing the debt for which the judgment is confessed.

Inasmuch as the basis of the judgment before us was not an instrument under seal, it is hardly necessary to inquire whether, at common law, a warrant of attorney authorizing the confession of judgment was required to be under seal. It is sufficient to say while, according to some authorities, there seems to have been at common law, a distinction drawn between a cognovit actionem and a warrant of attorney, the former not requiring, the latter requiring, a seal, Bouvier Lato Diet., title, “Cognovit Actionem,” Irose v. Balia, supra, the early English authorities seem to say that in strictness the warrant of attorney was not required to be under seal, although it was usual to employ a seal in order to authorize a release of errors in the judgment. 2 Chitty Gen. Pr. 333, 334; Tidd’s Pr. 546, and cases cited.

But we are convinced that the established practice in this state, so far as it can be traced, has been to require a warrant of attorney authorizing the confession of judgment, whether contained in the instrument forming the basis of the judgment, or annexed to it, to be under seal, and this Court in Slaughter v. Provident Savings Bank, supra, held distinctly that the warrant for the confession of judgment must be under seal.

Woolley’s Pr., § 790, defines a judgment note as an instrument under seal, and there is nothing in this high authority on Delaware Practice to indicate that a warrant of attorney for the confession of judgment without seal was ever recognized as sufficient.

Finally, the plaintiff seems to argue that whatever may be the rule with regard to the instrument of an individual, an instrument of a corporation might stand on a different footing, but without doubt the rule is the same in either case. Peyton-Du, Pont Securities Co. v. Vesper Oil & Gas Co., 3 W. W. Harr. (33 Del.) 124, 131 A. 566.

Accordingly, we hold that the judgment before us, having been entered upon an unsealed instrument in writing containing a warrant of attorney authorizing confession of judgment, was illegally entered and must be vacated and set aside; and it is so ordered.