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South Orange Trust Co. v. Barrett

Superior Court of Delaware, Kent County

November 1, 1950

SOUTH ORANGE TRUST CO.
v.
BARRETT et al.

Keith & Buckson, of Dover, for the plaintiff.

Henry J. Ridgely, of Dover, for the defendants.

LAYTON, J., sitting.

LAYTON, Judge.

Judgments of foreign states are always subject to attack elsewhere upon the ground that the Court rendering them was without jurisdiction. In Delaware, a judgment entered upon a note containing a Warrant of Attorney authorizing the confession of judgment against the maker is void unless the Warrant of Attorney is under seal. General Contract Purchasing Corp. v. Max Keil Real Estate Co., 5 W.W.Harr. 531, 170 A. 797, 799; Slaughter v. Provident Savings Bank, 2 Boyce's 333, 80 A. 243. A certified transcript of an unreported Maryland decision by [45 Del. 535] Judge Niles, Superior Court of Maryland, has been cited as representing the law of Maryland upon the question. The facts are almost identical except that in the case at Bar Defendant did not appear and defend the Maryland action. There, Defendant, Bessinger, executed a judgment note, not under seal, in Delaware to Plaintiff, South Orange Trust Co. Plaintiff bank attempted to enter judgment in Maryland upon the Warrant of Attorney to confessjudgment. The defense was interposed that the Maryland Court had no power to enter judgment on the note because, under the law of Delaware, a judgment so established would be void because the

Page 311

[45 Del. 536] Whatever may be the correct answer to this question, it has become moot since Defendant's amendment setting forth the law of New Jersey governing the entry of judgment notes with Warrant of Attorney. It appears from the amendment to the motion, and Plaintiff now concedes, that it is the law of New Jersey that a Warrant of Attorney accompanying a judgment note must be under seal. I have already stated that the note in question was made payable in New Jersey. In such case the better reasoned authorities hold that the law of New Jersey governs the contract regardless of where suit is brought. This is merely an application of the principle of conflicts of laws that the governing law is that of the State where the contract is to be performed. Beale, Conflicts of Law, Vol. 2, pp. 1229-1230. While evidence of a contrary intent on the part of the parties may vary this rule, nothing has been called to my attention which would indicate that it was the intention of either of the parties here that payment, or performance, should be other than at the Plaintiff's bank in New Jersey. Accepting this as correct, it would follow that the law of New Jersey governed the suit instituted in ...


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