Connay v. Halstead

The opinion of the court was delivered, May 17th 1873, by Agnew, J. By the Act of 24th February 1806, Brightly’s Purdon 577, pl. 32, it is made the duty of the prothonotary upon the application of the holder of a bond or other instrument con [357] taining a warrant of attorney to confess judgment, “ to enter judgment against the person or persons who executed the same for the amount, which on the face of the instrument may appear to be due,” &c. This act does not confer upon the prothonotary all the power of an attorney at law to confess a judgment, but only authorizes him without the agency of an attorney to enter a judgment in the way specified in the act, to wit, for the amount which from the face of the instrument may appear to be due. This would probably embrace a case where the sum due can be ascertained by calculation from the face of the writing, upon the maxim, id cerium est quod cerium reddi potest. But in this case the sum or amount due, could by no possible calculation be made to appear from the face of the instrument. It was an agreement for the sale of a tract of land by loosely-stated boundaries and no quantity stated. The price was to be at the rate of ten dollars an acre, and the number of acres was to be ascertained by a survey. Until the number should be thus determined, a matter wholly outside of the face of the paper, the amount of the purchase-money could not be known. The prothonotary had no guide, therefore, in entering the judgment. In fixing the sum he must rely upon evidence outside of the writing, and this would not be according to the letter or spirit of the act, which intended that a judgment should he entered only on the acknowledgment of the party himself contained in the writing. It is evident the law did not intend to make the prothonotary an arbitrator or umpire to determine uncertain things, and to conclude the party by his act; for by entering the judgment the party is brought into court and the judgment is final and Concludes him, unless set aside or reversed. The filing of a survey and the affidavit of the plaintiff, as permitted by the court on hearing the rule to set the judgment aside, did not mend the matter; for at the bottom lay the want of authority in the prothonotary to bring the defendant into court on this writing. His act must be strictly according to the law, and is not like the general authority of an attorney at law, who may appear and confess judgment and arrange the details of the judgment. Judgment reversed, and' the writing ordered to be stricken from the file.