(dissenting):
With the greater part of the majority opinion I am in entire accord. I entirely agree that the attitude of the courts toward the contracts or engagements of infants has undergone a great and desirable change. Under the older law the courts made void those contracts which operated to the disadvantage of the infant, leaving as voidable, to be affirmed or disaffirmed at the option of the infant, those contracts which operated in his favor. The reason of the change seems comparatively simple. Under the older decisions when a contract of an infant was void such fact discharged the other contracting party but this effect was different when the contract was voidable. This, however, was not the primary reason for the change, nor was it that the courts desired to validate the acts of infants. The courts simply transferred to the infant, upon his attaining majority, the burden as well as the privilege of determining what obligations were in fact to be deemed favorable or unfavorable to him or what engagements he desired to carry out as moral obligations. The Court recognized that as the infant was the one whose interest was affected by the determination as to whether a contract should be performed or not then he should, upon arriving at legal age, be the one to determine the question as to whether or not benefit existed for him under the contract. As a consequence of the postponement of the determination of the *430beneficial character of the contract until the maturity of the infant certain acts were, thereafter, necessarily termed voidable which has theretofore been considered as void because not seen to be beneficial to the infant.
With all of this-1 am in perfect accord and this reasoning would be applicable and the majority opinion most persuasive if this were a suit on the bond or obligation executed by the infant. But such is not the case. The question here is—can an infant execute a valid warrant of attorney authorizing an attorney to appear in this Court and, without service of process or pleading, confess a judgment against him which shall be a valid judgment of this Court ?
Every cited case which has held the action of the infant voidable has been one in which the estate or interest of the minor was affected and this effect on the interest of the minor has been the underlying reason for making the contract or engagement voidable. The present case solely affects the jurisdiction and integrity of the Court itself.
No case in any jurisdiction has ever held as voidable the warrant of attorney executed by an infant to confess judgment without process or pleading. Every Court where the question has arisen has held such warrants to be void.
The Courts of Delaware have several ■ times decided the precise and exact question. Waples v. Hastings, 3 Harr.403; Carnahan v. Allderdice, 4 Harr. 99; Karcher v. Green, 8 Houst. 163, 32 A. 225. See, also, DiMeglio v. B. & O. R. R. Co., 1 Boyce 74, 74 A. 558, and City Loan System v. Nordquist, 5 W. W. Harr. (35 Del.) 371, 165 A. 341, 344.
In England, the following are precise authorities holding the warrant void: Saunderson v. Marr, 1 H. Bl. 75, 126 Eng. Repr. 46; Motteux v. St. Aubin, Wm. Bl. 1133, 96 Eng. Repr. 669; Ashlin v. Langton, 4 Moore & Scott 719, 30 E. C. L. 362.
The following American cases unequivocally hold that *431the warrant of attorney of an infant to confess a judgment is void and not voidable. Knox v. Flack, 22 Pa. 337; Lutes v. Thompson, 5 Pa. Co. Ct. R. 451; Smith v. Fisk, 6 Pa. Co. Ct. R. 167; Bennett v. Davis, 6 Cowen (N. Y.) 393; Fuqua v. Sholem, 60 Ill. App. 140; Handley v. Wilson, 242 Ill. App. 66; Soper v. Fry, 37 Mich. 236.
Even those cases and text books which sustain and advocate the holding of infants’ general transactions as voidable and not void recognize warrants of attorney for the confession of judgments as an exception to the rule. The leading case of Coursolle v. Weyerhauser, 69 Minn. 328, 333, 72 N. W. 697, 699, in speaking of the exception to the rule says,
“There seems to be very little left of it, unless it be in cases of * * * warrants of attorney to appear and confess judgment in court.”
So, too, Williston, after approving the modern rule of the general voidable character of infants’ contracts, says:
“Probably Courts would still hold an infant unable to authorize a confession of judgment or to appoint an attorney for judicial proceedings.” 1 Williston on Contracts, § 227.
3 Freeman on Judgments, page 2708, says:
“A minor is not competent to give a warrant of attorney authorizing the entry of judgment against him and a judgment based upon such warrant will be set aside on his motion.”
All of the cases bearing upon the question of the void or voidable character of the appointment of an agent by an infant are collected in a note in 31 A. L. R. 1005. At page 1017 of 31 A. L. R. it is recognized that a warrant of attorney to confess a judgment is an exception to the general rule.
A distinction between “Powers of Attorney” to conduct the general affairs of the infant and technical “Warrants of Attorney” for the sole purpose of confessing judgments *432in Court against the infant is recognized in Schuler Domestic Relations, § 406.
I do not think a Court can acquire any jurisdiction over an infant defendant without the issuance of process. If an infant defendant came into open Court with or without an attorney and attempted to waive process and confess judgment, I do not believe that the Court would allow such action. Every judgment entered upon warrant of attorney is in theory based upon an action brought. Theoretically the warrant authorizes the appearance, acceptance of the declaration and confession of judgment. It becomes a judgment debitum sine breve (D. S. B.). This action I do not think can be taken by one who has no authority to confer a binding subsisting power and the validity of whose action can, perhaps, not be determined until many years in the future.
I find all of the authorities uniform in holding void the warrant of attorney of an infant for the confession of a judgment. I think reason and sound public policy sustain such view. All minors are infants in the eyes of the law and the warrant of attorney of a child of ten is of equal validity to that of one nearing majority. .1 think such child ought not, by construction, to be permitted to encumber its property by a judgment confessed by another, without process, guardian or oversight where the judgment might become binding unless promptly disaffirmed upon reaching majority. If the warrant of attorney be voidable and not void, endless questions suggest themselves, such as possible priority of liens and the effect of issuance of executions on the judgment.
Where the warrant of attorney to confess a judgment is included in a note or bond there are, therein, two separable elements, viz., the obligation of the infant to the obligee or payee and also the warrant to a third party to confess the judgment. I believe, as held in other cases, that the *433obligation (note or bond) is voidable but that the warrant of attorney to confess the judgment is void. Fuqua v. Sholem, supra; Handley v. Wilson, supra.
Such holding protects those dealing with the infant in that it allows an adjudication on the direct obligation of the infant, viz., on the note or bond itself, and only prevents a summary judgment against the infant. Such holding allows the infant to determine the validity of his own obligation in the same manner as he may determine any other contract or engagement, but casts around him a protective assurance that, in any litigation brought against him, he may be represented by a guardian or guardian ad litem.
In view of the unbroken line of Delaware decisions on the subject, I think the warrant of attorney must be held void. As said in Hackett v. Bethlehem Steel Co., 5 W. W. Harr. (35 Del.) 317, 165 A. 332, 333:
“We feel bound to follow prior decisions of this Court unless clearly convinced that they are erroneous.”
Reinhardt, J., concurred in this opinion.