Watkins v. Phillips

The opinion of the Court was delivered by Rogers, J. We agree, with the Court in Hansell v. Nelson, (1 Miles, 342,) that a ground-rent deed is an instrument of writing for the payment of money, within the meaning of the 2d section i>f the act of the 28th of March, 1835, which authorises the court to enter judgment, for want of an affidavit of defence. Nor do we. think it material that the deed contains other covenants, provided it appear on the record (as it does here,) that the action is brought on the covenant for the payment of money, which is the principal covenant. The act extends to all articles, or bills, notes, bonds or other instruments of writing, for the payment of money; words sufficiently comprehensive to include an action of covenant to recover the arrearages of ground-rent. It is within the spirit, certainly within the_ words of the act; for it does not cease to be an instrument of writing for the payment of money, merely because it also contains covenants which do not partake of that character. It is said that the prothonotaiy had no power to assess the dam [211] ages. But a writ of inquiry'is a m'ere* inquest of officers, to inform the conscience of the court, Who, if they please, may themselves assess the damages, (1 Tidd, 513.) And it has been the practice, instead of executing a writ of inquiry,- and without any previous application to the court, in actions on promissory notes, bills of exchange, covenants for the payment of a sum certain, or on an award, and indeed in all cases where the court have nothing more to do than to calculate the interest, upon a sum previously ascertained and fixed, to refer the assessment to the prothonoiary. If either party is dissatisfied with the assessment of damages, the error may be corrected by appeal to the Court. Judgment affirmed.