Seal v. Seal — 6 Del. 516

Majority

p. 516

Rachel Seal v. Joshua T. Seal and Joseph Seal, lately trading in the name and firm of J. T. Seal & Co. The same Plaintiff v. Joshua T. Seal.

Headnote

Judgments confessed upon a bond and warrant of attorney executed by _ one member of a firm in the name of the firm, first, against the two members of the firm jointly, and afterwards severally against the member of the firm alone who executed the bond and warrant, vacated and set aside; the first judgment, because the warrant only authorized the entry of a joint judgment against the partners, and not binding both, it could not bind either; and as to the second judgment, because it was not entered pursuant to the warrant, whidh must be executed strictly. A joint and several bond entered jointly against two cannot afterwards be entered severally against either.

Rule to show cause wherefore two judgments, each for the real debt of $1250, confessed in the Superior Court for Hew Castle County, at the suit of Rachel Seal, a lunatic, by Mahlon Betts, her trustee, the one against Joshua T. Seal and Joseph Seal, lately trading in the name and firm of J. T. Seal & Co.; and the other against Joshua T. Seal alone, should not be vacated and set aside. The bond and warrant of attorney on which the judgments were confessed, purported to have been executed by the firm to Rachel Seal, and was signed “ J. T. Seal & Co.” It was joint and several; but the warrant of attorney was joint only. Judgment was first confessed upon it at the suit of the plaintiff by her trustee against Joshua T. Seal and Joseph Seal, lately trading in the name and firm of J. T. Seal & Co., and afterwards, at a subsequent term, judgment was entered thereon against Joshua T. Seal alone.

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James A. Bayard, for the plaintiffs in the rule:

Both judgments must be set aside; because, in the first place, I take the ground that a judgment cannot be entered severally against one of two obligors in a joint and several bond, if the warrant of attorney is joint only; and if the judgment is not good against both, it is not good against either. Gee v. Lane, 15 East, 592; Parish v. Wilkinson, 8 T. R. 153; 7 Taunt. 453; 18 Eng. C. L. R. 93, 96; 52 Eng. C. L. R. 698. The bond and warrant were executed by Joshua T. Seal alone. Joseph Seal’s name was not subscribed to it, and the signature is in the handwriting of Joshua T. Seal, who alone executed it; and yet the judgment first entered cannot be a valid judgment against him individually by reason of his signature to it, though it is genuine, because it does not pursue the tenor of the warrant, viewed in that light on which it purports to have been entered, which was joint only, and not joint and several, and which, of course, did not authorize the confession of a judgment' thereon against him singly. A warrant of attorney is a power which must be executed sirietisimi juris, and must be strictly followed., In regard to the second judgment, I have to say that if a warrant of attorney, which is a power, is once exercised, it is functus officio, and can never be exercised again. Besides, the objection which I have taken to the validity of the first judgment as a sole judgment against him, applies with equal force to the last judgment entered subsequently and severally against Joshua T. Seal alone.

D. M. Bates, for the defendant in the rule:

A deed executed by one partner in the name of the partnership, but without the consent of the other partner, is his deed, though not the deed of the firm. Col. on Partn. 425. And he is estopped from denying that it is his deed. Elliott v. Davis, 2 Bos. & Pul. 338; Layton & Sipple v. Hasting, 2 Harr. 147 ; Green v. Beabs, 2 Caines’ Rep. 254 . This principle does not rest so much on the intention of the partner who executed the deed as upon the ground that it is regarded as a

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fraud on the other partners, and therefore he shall be bound by it as his own deed. I can perceive no distinction in this respect, between a power, or warrant of attorney, and any other deed.

In the next place, throwing out of view entirely the second judgment for the present, what is the effect of the objection as to the first or joint judgment? Although irregular and voidable as against the other, member of the firm, is it not a good and valid judgment as against Joshua T. Seal alone, who executed and gave the bond ? A bond and judgment may be good as to one and bad as to another. In the ease of Motteaux v. St. Aubin and others, 2 Wm. Black. 1133, a judgment entered on a joint warrant of attorney against an infant and another, was vacated and set aside as against the infant and sustained as to the other. The same thing has been done in the case of partners,, where there was no objection on the score of infancy, but where it was" the same as in the present case, that is to say, because the bond and warrant were executed by one partner in the name and without the knowledge' and consent of the other partners. Girrard v. Vasse, 1 Dallas, 119; Green v. Beabs, 2 Chines’ Rep. 254.

But if the first judgment must be entirely vacated as a nullity, then I maintain that the second judgment, entered against Joshua T. Seal alone, is good, and must stand. As to the execution of a power, I understand the principle to be this: if the power is once executed, it cannot be exercised or executed again; but an attempt to execute the power has no such effect. I, therefore, do not agree with the counsel on the other side, that a power defectively executed, can-never be executed again. I find the contrary maxim stated in Sug. on Powers, 15 Law Libr. 371. But that is not the question in this case; for the question here is, could a power which never was executed at all (which, I insist, was the case in this instance, if the judgment first entered is an entire nullity), be properly and validly exercised and executed at the time when the second judgment was entered ? I insist that it could; and, there

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fore, if the first must be entirely vacated and set aside, the latter must be preserved and sustained.

James A. Bayard, in reply:

The counsel on the other side has argued the motion, as if I were seeking to set aside the judgments on equitable grounds. But such is not the case. I seek to set them aside, because the warrant was a power, and had to be executed strictly pursuant to the power conferred by it, and on the ground of irregularity. For if there is irregularity, the Court cannot cure it; but the judgments must, for that cause, be set aside altogether. In the case cited on the other side from 2 Wm. Black. 1133, the motion was not made on the ground of irregularity, nor was such the ground of the application in the cases cited from Dallas and Caines’ Deports, which were the only cases produced. In the first case, the application was to the Court to strike the name of an infant from the warrant, on the ground of imposition. The bond and warrant were perfectly regular, but the infant had been induced by imposition to execute them. "When irregularity is the ground of objection, and the warrant has not been executed strictly, it cannot be corrected, but the judgment must be set aside absolutely.

Both judgments must be vacated and set aside. The first, because the joint judgment against Joshua T. and Joseph Seal cannot be sustained against the latter; because he neither executed the bond nor the warrant of attorney, and because it cannot be sustained as the judgment of the former, Joshua T. Seal, alone, as a judgment entered against him severally, by striking the name of Joseph Seal, his partner, from it; since the warrant of attorney, which must be executed strictly, only authorized the confession of a joint judgment against both partners. And this last objection applies with equal force to the second judgment, afterwards entered against Joshua T. Seal alone. As to the entry of this latter judgment, we think there is force in the objection, that having once con-

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leased judgment on the bond against them jointly, if the signature of the bond had authorized it to be done in this instance, the warrant of attorney would have then become' functus officio. For if there had been no exception on the score that the bond and warrant were in fact executed by but one of the partners, then no subsequent confession could have been entered upon it against either of them; because a party on a joint and several bond and warrant of attorney against two persons, cannot enter it jointly against them, and afterwards severally against both, or either of them.

Cases cited

Layton & Sipple v. Hastings 2 Harr. 147 Del. Super. Ct. p. 517