Commonwealth ex rel. Black v. Conard , 1 Rawle 249 ( 1829 )

The opinion of the court was delivered by

Smith, J.

By the bond, the money was made payable in one year, and in the warrant of attorney to confess judgment, was a proviso, that execution should not issue for one year from the date of the bond. It was decided, in Pennock v. Hart, 8 Serg. & Rawle, 369, that where the stay of execution was entered on the docket, the judgment continued for five years from the expiration of the stay of execution. If the prothonotary had added to the entry of the judgment, the words, “ with stay of execution for one year,” the lien would not have been lost.

The interest was punctually paid on this bond, up to the 1st of December, 1823.'

The official bond of the prothonotary has been sued by Ann Black, and the question is,—was this such a neglect or mistake of the prothonotary, as to forfeit his bond, and make him liable to the plaintiff for the amount due upon her judgment?

To render the prothonotary liable, it must appear that he committed a breach of the conditions of his bond. And, to show that he has done so, it is alleged that he did not comply with the directions of the act of assembly, of the 24th of February, 1806, in two particulars. First, in not entering on his docket the tenor of the bond, or instrument presented to him by Ann Black., Secondly, in not entering the judgment, with the stay of execution therein mentioned. In order to decide, whether the officer did, or did not comply with the directions of the act, we must necessarily inquire what his duties were. The 2Sth section of the act of the 24th of February, 1806, (Purd. Dig. 409,) directs, that “ it shall be the duty of the prothonotary of any court of record within this commonwealth, on the application of any person being the original holder (or the assignee of such holder,) of a note, bond, or other instrument of writing, in which judgment is confessed, or containing a warrant for an attorney at law, or other person, to confess judgment, to enter judgment against the person or persons, who executed the same for the amount, which from the face of the instrument, may appear to be due, without the agency of an attorney, or declaration filed, with such stay of execution as may be therein mentioned, for the fee of one dollar, to be paid by the defendant; particularly entering on his docket the date and tenor of the instrument of writing, on which the judgment may be founded, which shall have the same force and effect as if a declaration had been filed, and judgment confessed by an attorney, or judgment obtained in open court, and in term time. ” And it further directs, that the defendant need not pay any costs or fee to the plaintiff’s attorney, when judgment is so entered on any such instrument of writing.

I do not think the object of the act was merely to take power from the attorneys, and to give it to the prothonotary; but that it was to enable the citizens to transact their own business in the offices, so far at least as related to the entry of.judgments on bonds, notes, or other instruments of writing, in which an authority to enter judgment was contained, without the intervention of attorneys; hence the act declares it to be the duty of the prothonotary, for the fee of one dollar, to enter the judgment, on the application of any person, who should be the holder (or the assignee of the holder) óf a note, bond, or other instrument of writing of the nature mentioned in the act; and that a judgment, so entered, should have the same force and effect, as a judgment on filing a declaration and confes» sion of judgment by an attorney. Clearly, then, since the prothonotary is required to enter judgment, upon the mere application of the party, as he had been accustomed to do before the act of the 24th of February, 1806, on the authority and instructions of the attorney, he is bound upon such application to follow the directions of the party in making the entry, as he was obliged to follow those of the former, in entering a judgment by warrant of attorney and confession thereupon; and he is not further bound. Neither his responsibility nor his compensation is increased by that act. He was entitled to the fee of one dollar for entering judgment pursuant to the prsecipe of an attorney, and he is entitled to no more for entering it upon the application of the party. When the party gives no particular instructions, thé prothonotary could only be liable for omitting to make a special entry, not required by the act of assembly, in case he acted with bad faith.

But it is contended, that the act requires the prothonotary par~ ticularly to enter on his docket, the date and tenor of the instrument of writing, on which the judgment may be founded, and that the word “ tenor” has a legal signification, and means transcript or copy. If this were so, the, consequence would be, that every bond, or other instrument of writing would have to be copied on his docket, verbatim et literatim, which could not have been intended by the' legislature, otherwise they would have at once required and directed the officer to place an exact transcript or copy of the writing on his docket. This they have not done, and I therefore consider them, when they used the word “tenor,” as referring to the substance or import of the instrument, which it was customary with attorneys, when they confessed judgments by virtue of warrants of attorney, to set out. It is also contended, that the act of the prothonotary is a mere ministerial act; that he has no discretion, but must obey the directions of the act of assembly. The directions of an act of assembly ought ever to be obeyed, not only by the officers of the commonwealth, but by all its citizens. I am, however, by no means prepared to say that the officer, in the present instance, disobeyed the law or directions of the act, so as to render him liable to the plaintiff. It is to be observed, that almost every prothonotary in this state has a different form of entering judgments, which, according to the late Judge Duncan, is “as various as their faces.”' In the case of Helvete v. Rapp, 7 Serg. ¿r Rawle, 306, there is a form varying from the one before us. There the record was as follows, to wit:

“ Frederick Rapp

“ Francis Helvete.

PenaIty> . . . 555,450,00

RealI)ebt’ ' ' 2,725,38 .

“ Plaintiff files of record a judgment bond, under the hand and seal of defendant, for the sum of 5,450 dollars, conditioned for the payment of 2,725 dollars and 38 cents, on or before November 5th next, dated 5th dav of this instant, and entered the 17th May, 1815.”

Here there was no actual judgment entered, at least, in terms there was none,—no copy or transcript of the bond, as now contended for,—merely the penalty, the real debt, the date of the bond, when payable, and the day of entering the same, are stated; and, although the bond was dated on the 5th of May, 1815, and éntered on the 17th, and payable on or before the 5th of November, 1815, yet nothing is expressly entered, as to the stay of execution. This was decided by the Supreme Court, to be a valid entry and a good judgment; and the learned judge who delivered the opinion of the court said, that there being no literal form directed, and no precedent to guide the prothonotaries in the performance of this new duty, each had adopted his own inode, and that many of the entries scarcely presented a feature to inform purchasers, or designate a judgment. In the case under consideration, we think that the prothonotary substantially complied with the directions of the act, when he entered on his docket the names of the obligor and obligee, in the form of an action as parties,—the date of the bond and warrant of attorney,—the penal sum, the real debt, and the time of entering the judgment; and, moreover, the date of the entry of the judgment on the margin of the record, where the same judgment was entered, according to the act of the 21st of March, 1772. Should we now, for the first time, give a different interpretation to the act, it would lead to consequences extremely unjust. It is not pretended,, that in this case there was any wicked or perverse intention on the part of the prothonotary,—he is free from any such charge: so, too, from the charge of ignorance, and of particular negligence. If, then, he erred at all, it must have been an error of judgment in the interpretation of an act of assembly, which cannot legally render him liable. As well' might it be said, that inferior courts were responsible for the errors of their judgments.

But it is further said, that lie is liable to the plaintiff, because he did not enter the stay of execution on his docket. It is to be observed, that the stay of execution is no part of the bond, but a part of the warrant of attorney; and it is not pretended, that the omission to state the stay of execution, rendered the entry of the judgment invalid, or the judgment itself void. The prothonotary, acquainted with what had been' usually done in other similar cases, placed, in this case, upon his docket, what had been usually placed there before, and no more. It is not alleged that he acted wrong intentionally;—neither he, nor the plaintiff, (indeed very few lawyers,) foresaw or expected the decision in Pennock v. Hart, made in 1822. Before that decision was published, a Scire Facias to revive this judgment actually issued, previous to the expiration of the five years from the entry of the bond. Was it incumbent on this offxcer to know, or rather foreknow, .the construction given to the act in Pennock v. Hart? The plaintiff had by the entry of the prothonotary a lien—a valid and binding judgment, and a right to issue execution on it at the end of a year: she did not,' however, issue an execution, nor revive the judgment,, but by inattention lost her lien. Whose fault was this? Was it the prothonotary’s? The plaintiff evidently thought, as the prothonotary did, that her. lien would continue for a period of .five years from the day of its entry on record; for on the 20th of November, 1823, she issued a Scire Facias'to revive her judgment—only fifteen, days anterior to the expiration of the five years. At this time, I presume, the decision in Pennock v. Hart, had become known, and it was supposed, might operate on this judgment; the difficulty then started for the first time; and it occurred to the plaintiff that the prothonotary must be liable, although he had entered for her a valid judgment,.attaching a lien on the defendant’s real estate, and thereby entitling her to a complete right to all the” benefits of such a judgment, which she could, at the proper time, have enforced, although the stay of execution was not stated on the record. Besides, the plaintiff could have continued her lien, if she had taken out an execution, or had issued her Scire Facias Within the proper period; the lien was lost by her neglecting to take the necessary steps to preserve it, or by mistaking the law. In such a case, I,never can charge, as a default of the officer, that which is the. negligence or default,-or ignorance of the party.

In the course of the argument, it was contended by the able and l'espectable counsel for the defendants, that if there had been any failure of duty in the officer, it was not such as could be embraced by his official bond; and that the plaintiff was not entitled to any benefit from it. In reference to which it may suffice to. say, that if the evidence in this case had shown a clear failure of duty in the prothonotary, such a failure would have amounted to a breach of the condition of his bond, of which the plaintiff could have availed herself. A, prothonotary wilfully neglecting any duty, which he is bound to perform, is liable within the terms of the condition of the bond, which was intended for, and inures to, the benefit of every citizen who may be injured. Upon the whole, -we think the judgment should be rendered for the defendants.

Judgment for the defendants.