concurring:
I thoroughly agree with the conclusion expressed by the Chief Justice, namely, that neither by any statute nor by our practice can a judgment be entered by confession by virtue of a warrant of attorney when the instrument upon which the judgment is entered is not under seal.
I do not, however, concur in the opinion that our present well defined practice as to entering judgments by virtue of warrants of attorney has no foundation in the common law, nor any basis in statute. Believing that the practice is directly traceable to the common law, I feel it not inappropriate to indicate the sources from which the practice came.
As shown in the foregoing opinion by the quotation from Freeman on Judgments, Vol. 3, § 1302, there were two methods of obtaining a judgment by confession at common law,
1— By cognovit actionem. This was a written authority signed by the defendant authorizing someone to confess judgment against the defendant in a cause of action then pending. It was only used when a suit had already been instituted and the writ issued and generally after declaration filed. It was usually executed to save costs and in return for a stay of execution.
2— By warrant of attorney. This was a written authority directed to one or more attorneys to appear for the *538party executing it and receive a declaration from the creditor and thereupon to confess the judgment or suffer judgment to pass by default, either by
(a) Nil dicit
(b) Non sum informatus.
This latter class of judgments entered by warrant of attorney is, I think, the precise foundation upon which our practice is built.
In 3 Blackstone, Commentaries, 397, it is said,
“It is very usual, in order to strengthen a creditor’s security for the debtor to execute a warrant of attorney to some attorney named by the creditor empowering him to confess a judgment in an action of debt to be brought by the creditor against the debtor for the specific sum due.”
In 1 Tidd’s Practice, 546, the same practice is set out in which it is said that the warrant of attorney is given when no action is depending. At page 552 it is also shown that judgment was entered on the warrant of attorney as of course without applying to any Court or Judge if the judgment be entered on the warrant of attorney within a year from its date. See, also, 8 Modern, 212 (87 Eng. Reprint 964); Lushington v. Waller, 1 H. Bl. (126 Eng. Reprint 58).
In Bingham on Judgments, page 35, it is said that where there is no action pending, a warrant of attorney is often given authorizing the attorney to appear for the defendant and receive a declaration and confess judgment and (Id., page 45) that this judgment may be entered, as of course, within a year without applying to any Court or Judge.
To. the same effect is 2 Archbold’s Practice, page 16, and Crompton’s Practice, page 310; 1 Sellon’s Pr. 374, etc.
In Williams on Personal Property, pages 84-88, there is an interesting discussion of the authority and province of the warrant of attorney.
The dangers and disadvantages attending judgments by confession caused certain statutes to be enacted in Éng*539land, in 1822, requiring the execution of warrants of attorney to be made before a solicitor (10 Hals. Laws Eng. 394, Hailsham Ed., Vol. 10, page 208) and the filing of the warrant so that the practice was largely abandoned, or, as . Lord Halsbury says (18 Laws Eng., page 190) “it was formerly common practice for the judgment to be entered up upon warrant of attorney to confess judgment, but that practice is now almost obsolete.” Long before the practice became obsolete in England, it was in full flower in this state, based upon precisely the same common law authority that it had in England prior to its abandonment.
Following the common law practice of warrants of attorney authorizing an appearance for the defendant for the purpose of accepting a declaration and thereupon to confess judgment, so in the early Delaware practice a declaration was always filed in the case and this practice was continued until the necessity for such declaration was removed by statute as will presently appear. Under the early practice and until modified by statute, the judgment confessed, after the filing of the narr, was a judgment “for the sum in the narr, with costs.”
In contemplation of law, every judgment is entered upon an action instituted either in fact or in fiction. Woolley Del. Prac., § 788.
Because warrants of attorney had been used to confess judgments in an action of debt of common law and because in Delaware an action on a bond if instituted by writ would be an action of debt, so a judgment by confession upon warrant of attorney is a judgment entered upon a case in debt brought simultaneously with the entry of the judgment and brought without writ. It is, therefore, called debt without writ — debitum sine breve — or qs generally spoken, d. s. b. A judgment entered by confession upon warrant of attorney, being an action of debt without writ, can only be entered where an action of debt could have been maintained. Because an action of debt can only be main*540tained for the recovery of a sum certain or capable of being reduced to a certainty, so, therefore, the Court in Roman Automobile Co. v. Miller, 5 Boyce 586, 95 A. 654, held that a judgment could not be entered on a warrant of attorney attached to an instrument which neither prescribed a penalty nor included within itself a definite sum for which judgment could be entered.
The first Delaware statute having any bearing upon the entry of judgments upon warrants of attorney was Section 28 of the Act of February 3, 1818, Vol. 5, Laws of Delaware, page 332. This statute made it lawful for a creditor to receive from a debtor a “bond” for an amount not exceeding $50, with warrant of attorney attached, and to have judgment entered thereon before a Justice of the Peace. This was followed by the Act of January 29, 1825, relating to the same subject (6 Del. Laws, Chapter 263, Section 12) found in the Revised Code of 1915, § 4018. The word “bond” in this latter section was changed to read “an obligation.”
This Court in Slaughter v. Provident Savings Bank, 2 Boyce 333, 80 A. 243, construed the statute to mean that the “obligation” must be an instrument under seal.
On January 29, 1829, a statute was enacted (Volume 7, Laws of Del., ch. 126), Sections 3764, 3767 and 4303 of the Revised Code of 1915, which provided that the day, month and year of the entry of the judgments must be set down and that the real debt must be given and the date from which the interest was to be computed. The purpose of this statute was evidently to make the judgment record more certain as under the prior practice the usual form of judgment by confession had been “for the sum in the narr, with costs.”
On January 16, 1830, an act was passed (8 Del. Laws, ch. 1) which provided that the Clerk of the Court or Prothonotary upon presentation of a “bond” with warrant of attorney could enter judgment without declaration filed and *541without the agency of an attorney. This statute is now found as Section 3768 of the Revised Code of 1915 and expressly uses the word “bond” as the basis of the confessed judgment. The validity of judgments thus entered by the Clerk or Prothonotary is expressly declared by Section 2048 of the Code of 1852, being Section 4303 of the Revised Code of 1915, but in these sections in place of the word “bond” the word “obligation” is substituted showing the synonymous use of the two words by the Legislature.
The Court in Beeson v. Beeson’s Adm’rs, 1 Harr. 466, construed the present Section 3768 and held that its obvious purpose was to allow to be done by the Prothonotary, without declaration filed, or the intervention of an attorney, that which theretofore had been done by an attorney and the filing of a declaration.
The power of the Prothonotary to enter judgment pursuant to Section 3768 is expressly confined to the case of a bond and if it be true that the purpose of Section 3768 was to make the power of the Prothonotary co-extensive with that of an attorney, then there would seem to be legislative inference that the confession by an attorney must be of a bond or instrument under seal.
In 1866 it was expressly provided by statute that no declaration should be necessary or cognovit required for the confession of any judgment (13 Del. Laws, ch. 32, §§ 2 and 3, Revised Code 1915, §§ 4199, 4200). In Section 4200 the word “bond” is used as the basis of the judgment. Since 1866, the practice has varied in the several counties in regard to the necessity of filing a declaration when entering a judgment note upon warrant of attorney. In New Castle County, such declaration has been filed, but in Kent and Sussex Counties the notes have been entered without the filing of a narr. Woolley on Del. Pr., § 790.
I find no instance at common law of judgments by confession upon warrants of attorney where the instrument being the foundation of the judgment was not under *542seal and all of our statutory provisions have almost direct reference to instruments under seal.
O.ur established procedure as shown by Judge Woolley’s excellent work on Delaware practice, has uniformly, so far as I am informed, restricted judgments by confession upon warrants of attorney to instruments under seal. In speaking of the entry of judgment notes, Judge Woolley defines such note as “an instrument under seal.” From a thorough consideration of this subject of judgments obtained by confession upon warrants of attorney including an examination of the common law, our own Delaware practice, and pertinent statutory provisions, I agree that such judgment should only be obtained upon instruments under seal. Judgments by confession by warrant of attorney have been abolished in some jurisdictions. I see no reason to depart from an established practice and to extend the use of such judgments.