Commonwealth v. Conard

• Decision Date: 27 March 1829
• Citation: 1 Rawle 249
• Parties: The COMMONWEALTH, for the use of BLACK, v. CONARD and another.
• Court: Pennsylvania Supreme Court

1 Rawle 249

The COMMONWEALTH, for the use of BLACK, v. CONARD and another.

Supreme Court of Pennsylvania.

March 27, 1829

A prothohotary complies, substantially, with the directions of the act of assembly of the 24th of February, 1806 when, in entering judgment on a bond with warrant of attorney, upon the application of the party, he enters 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, the time of entering judgment, and the date of the judgment on the margin of the record.

An omission by the prothonotary to enter on the record a stay of execution provided for in the warrant of attorney, is not such a neglect of duty or mistake in the prothonotary, as will work a forfeiture of his official bond, and make him liable to the party for the amount due upon his judgment.

A prothonotary who wilfully neglects any duty, is liable upon his official bond to any one who may be thereby injured.

THIS cause was tried at Nisi Prius, at Philadelphia, in February, 1828, when a verdict was rendered for the plaintiff, subject to the opinion of the court upon the facts given in evidence considered as a special verdict, whether or not the plaintiff was entitled to recover.

The case was this: John Conard was appointed prothonotary of the Supreme Court in the year 1817, and on the 31st of December, in that year, gave a bond to the commonwealth, in the sum of four thousand five hundred dollars, with Joseph Barnes and Samuel C Michlin as his sureties, conditioned that he should " well and truly and faithfully, in all things execute the duties of the said office according to law," &amp c.

On the 5th of December, 1818, Ann Black (for whose use this suit was instituted,) brought to the office of the defendant a bond and warrant of attorney to confess judgment, dated the 1st of December, 1818, and requested the prothonotary to enter judgment thereon.

The prothonotary, accordingly, entered judgment in the following manner, viz.

March Term, 1818.

" p. p. Ann Black ( Judgment entered 5th of December, 1818, on a bond and warrant of attorney, dated 1st December, 1818, for $7568, conditioned for the payment of $3784."

139. v. (

Thomas Dobson. (

5th Dec. 1818. Judgment.

The bond was payable in one year from its date, and the warrant of attorney contained a proviso that execution should not issue until the expiration of one year from the date of the bond.

On this judgment no proceeding took place until the 20th of November, 1823, when a Scire Facias issued to revive the judgment for another period of five years. In the mean time, several judgments were obtained against Thomas Dobson, and a mortgage was given by him. All his real estate was sold, and this court decided that none of the money arising from the sale was applicable to the payment of Ann Black's judgment.^[a1] This suit was instituted upon the official bond of the prothonotary, for an alleged breach of duty in omitting to enter on the docket the tenor of the bond, and the stay of execution provided for in the warrant of attorney; in consequence of which the lien of her judgment was lost.

Two questions were argued,--1. Whether the facts given in evidence proved a failure of duty in the prothonotary?

2. If they did, whether the plaintiff was entitled to recover upon his official bond?

Scott and Tod, for the plaintiff, referred to the act of the 24th of February, 1806, Purd. Dig. 409. 2 Salk. 417, 660. 5 Co. 53, b. Pennock v. Hart, 8 Serg. & Rawle, 369. Bombay v. Boyer, 14 Serg. & Rawle, 253. Black v. Dobson, 11 Serg. & Rawle, 94. 1 Bac. Ab. 659. Commonwealth v. Wolbert, 6 Binn. 293. Yard v. Lea's Executors, 3 Yeates, 349. Dallas v. Chaloner's Executors, 3 Dall. 500.

T. Sergeant and Chauncey, for the defendants, cited 3 Yeates, 345. Act of the 12 th of March, 1791, Purd. Dig. 749. Act of the 30 th of March, 1811, Purd. Dig. 697. Pitt v. Yalden, 4 Burr. 2060. 8 Mass. 57.

OPINION

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 28th 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) of 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 confession 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...