John Guyer's Administrator v. Guyer

11 Del. 430

Opinion

Whiteley.

Any entry of judgment by a warrant of attorney is an execution of the warrant, and it is thereupon fundus officio. This is not the case of an entirely unauthorized entry of a judgment on the warrant of attorney in question, but it was in strict conformity with the terms of it, and nothing aliunde, or outside of the instrument itself, can be allowed to annul or defeat the execution of it when made in literal conformity with the terms of the power conferred by it. 1 Tidd., 552; 1 Houst., 516; 3 Wash., 568; 6 S. & R., 296; 14 S. & R., 166; 5 Watts, 289; 1 Sug., 89.

The CouH.

The attempt to enter the first judgment in the name of the obligee in the bond several terms of the court after his death, under the authority of the warrant of attorney, was so utterly inconsistent with the power conferred by it, and contrary to law, that we had, and still have, no hesitation in considering it as a total failure to execute the warrant, and an absolute nullity in contemplation of law. The rule in this case must therefore be discharged.