Mendenhall v. Springer , 3 Del. 87 ( 1840 )

JUDGMENT in debt without writ. Fi. fa, and ca. sa.

A rule was obtained in this case to show cause why the defendant should not be discharged from imprisonment, the execution set aside, and the judgment stricken from the record, because it was confessed against the defendant alone, on a bond and warrant of attorney, given by himself and his wife jointly.

Wales and Rogers now showed for cause that the bond and warrant being joint and several, and being absolutely void as to the wife, remained the several obligation of Springer, and authorized the confession of judgment against him alone. They cited Henchman vs. Roberts, 2 Harr. Rep. 74; 2 Sellons Prac. 35; 2Blac. Rep. 1133.

Bayard and Booth, contra, argued that though the bond was joint and several, the warrant only authorized the entry of a joint judgment, which could not be. And as the power conferred by the warrant must be strictly executed, or not all, there could be no judgment confessed upon it.

By the Court: The irregularity complained of is, that the judgment has been entered against the defendant alone upon a joint warrant of attorney signed by himself and his wife, Hannah. The warrant of attorney, so far as Hannah Springer is concerned, is a mere nullity; it is void as her act. Considered as the act of Charles Springer, it purports to authorize the confession of a judgment against himself and his wife Hannah, and not against himself alone. The rule of law that authorities shall be strictly pursued, is rigidly applied to the cases of warrants of attorney to confess judgment. Thus it has been decided, that upon a warrant of attorney which purports to be an authority to confess judgment againstthree, which is signed by two only, the third haying refused to sign, judgment cannot be entered against the two who did sign. (1 Chit. 322, Harris vs. Wade Stone) So a joint warrant of attorney by face will not authorize the confession of judgment against one as survivor, the other having died. (15 East, 592, Gee vs. Lane.) And judgment was set aside because one of the parties at the time of the execution of the warrant was under age. (1 Chit. 708,Wood vs. Heath.) It is true that this court has heretofore decided, that upon a joint warrant of attorney given by husband and wife, judgment cannot be entered against themjointly; but it by no means follows, that judgment may therefore be entered against the husband alone. In the first case it cannot be entered against them jointly, because so far as the wife is concerned the warrant is a mere nullity as her act; and to suffer the husband to confess judgment against both, unless for a debt contracted dum sola, would be to enable him by means of an execution, without her consent, to strip her of her whole inheritance, and even to defeat the trust of property which might have been settled to her separate use for the express purpose of protecting it against the acts of her husband, since she would not be discharged from a ca. sa., without surrendering the property. (8 B. C. 1, Sparksand others vs. Bell and wife; 3 Wils. 124,Anon.) And in the second case the rule of law which requires that the authority shall be strictly pursued, precludes the entry of the judgment against the husband alone, since the warrant in its terms purports to authorize the confession of the judgment againstboth.

Rule absolute.