
    [Lancaster, (adjourned court,)
    
    November 14, 1825.]
    MOORE against PORTER.
    CASE STATED.
    The remedy of the prothonotary for his fees, is against the party for whom the services in a suit are done, in the same manner as for other debts.
    Where the amount does not exceed one hundred dollars, an action may be brought before a justice.
    A prothonotary lias no right to issue an execution for his fees, as there is no judgment rendered for him.
    The fees are not chargeable to the attorney, unless he becomes security.
    The plaintiff in error, whether plaintiff or defendant below, is to be looked to for the prothonotary’s fees on affirmance.
    The prothonotary cannot recur to the recognizance given by the plaintiff in error for his fees, should the plaintiff in error prove insolvent: but, if the recognizance is sued, the court will take care that these fees are secured, so far as they are covered by the recognizance.
    Where the judgment is reversed in the Supreme Court, and no venire facias denovo awarded, the prothonotary of the Supreme Court cannot direct the prothonotary below to issue execution for his fees.
    This was a writ of error to the Court of Common Pleas of Lancaster county, in a suit brought there by Daniel Moore, Esquire, prothonotary of this court, against G. B. Porter, Esquire, one of the attorneys of this court, and the following points were stated, and submitted to the opinion of the court below, who rendered judgment for the defendant.
    1. Where the defendant below takes out the writ of error, and thereby becomes plaintiff in error, and the judgment of the inferior court against the defendant is affirmed, how can the prothonotary of the Supreme Court recover the costs due him? Can he compel the plaintiff below to pay the costs, and let him recover them, with his other costs, from the defendant, or must he pursue the plaintiff in error; and, in either case, what is the remedy or mode to be pursued by the prothonotary?
    
      3. Where the judgment is against the plaintiff below, and he takes out the writ of error, and the judgment of the inferior court is affirmed, how can the prothonotary of the Supreme Court recover the costs due him ? Can he compel the defendant below, in whose favour the judgment is, to pay the costs, and let him recover them, with his other costs, from the plaintiff, or must he pursue the plaintiff himself; and, in either case, what is the remedy or mode to be pursued by the prothonotary?
    S. In cases where the plaintiff in error is, by the decision or decree of the Supreme Court, liable to pay the costs, but is insolvent, can the prothonotary of the Supreme Court resort to the security in the recognizance for his costs.
    4, In the same case, where the plaintiff in error and the security in the recognizance are both insolvent, can the prothonotary of the Supreme Court recover his costs from the attorney who ordered the writ.
    
      5. Where the judgment is reversed in the Supreme Court, and the court refused to award a venire facias de novo, can' the prothonotary of the Snpreme Court recover his costs, by directing the prothonotary of the inferior court to issue execution therefor ?
    6. On the first point made, (No. 1,) can the prothonotary of the Supreme Court recover his costs, by directing the prothonotary of the inferior court to issue execution therefor against the plaintiff in error, that is, the defendant below?
    7. In the point next made (No. 2,) can the prothonotary of the Supreme Court recover his costs, by directing the prothonotary of the inferior court to issue execution therefor against the plaintiff?
   The opinion of the court was delivered by

Tilghman, C. J.

This is a case stated, relating solely to the remedy which the prothonotary of this court has for the recovery of his fees. The party for whom the services are done, is responsible for the fees, and to him is the officer to look. When judgment is obtained and an execution issued, it has been usual for the sheriff to pay to the several officers the fees due to them in the suit. But the prothonotary has no right to order the execution to be issued, because' no judgment was rendered for him. When the plaintiff obtains judgment, he may issue an execution or not, at his pleasure. But if he will not do it, the officer may have recourse to him for the fees due from him. If it be asked, in what manner this recourse is to be had, the answer is, that fees are recoverable like other debts. Where the amount does not exceed one hundred dollars, an action may be brought before a justice of the peace. The fees are not chargeable to the attorney of the party for whom the services are done, unless he has become security for the costs.

Where the defendant in the court below becomes plaintiff in error, and the judgment is affirmed, the prothonotary of the Supreme Court must look to the plaintiff in error for his fees, and cannot have recourse to the plaintiff below, because the services were not done for him. So where the plaintiff in the court below becomes plaintiff in error, and the judgment is affirmed, to him, and him only, must the prothonotary look for his fees.

Where the plaintiff in error is subject to the costs in the Supreme Court by the affirmance of the judgment, and is insolvent, the prothonotary of the Supreme Court cannot have recourse to the securities in the recognizance entered into on the suing out of the writ of error, because he is no party to that recognizance. But where suit is brought on such recognizance, it is presumed that the judges of the court on which it is brought, on application to the officers to whom fees are due, will take care that the fees, so far as 'they are covered by the recognizance, shall be secured.

Where the judgment is reversed in the Supreme Court, and no venire'facias de novo awarded, the prothonotary of the Supreme Court cannot recover- his fees, by directing the prothonotary of the inferior court to issue an execution therefor, because he has no judgment to warrant such an execution. But his recourse must be to the plaintiff in error, for whom he performed the services on ■ which the fees were due. The truth is, that prothonotaries are placed in a hard situation. They are obliged to perform the services demanded of them in suits depending, and yet, as was decided in Lyon, &c. v. M'Manus, (4 Binn. 167,) they cannot (with a few exceptions) maintain an action for the fees until the suit is ended, before which it often happens that both plaintiff and defendant are insolvent. In some of the other states, summary remedy is given by law, for officers’ fees. It is believed, that scarce any where are prothonotaries so unprotected as in Pennsylvania. But it is not for this court to alter the law. The principles which I have laid down, have been established by ancient usage and practice. They embrace all the points submitted in the case stated. It is the opinion of this court, that on all those points the Court of Common Pleas was right, and therefore the judgment should be affirmed.

Judgment affirmed.  