
    The Treasurers vs. Ross, Ex’or of Allison.
    Neither the state, nor any one authorized by the state, can, maintain an action against a clerk of the court of common pleas, on his bond, for neglecting to record judgments recovered in his office.
    None but persons injured by the neglect can maintain the suit.
    Where the successor to a clerk records the judgments so neglected he cannot recover against his predecessor the tees for recording them.
    Allison the defendant’s testator, had been clerk of the court of common pleas for York district, and during the term of his office, he had neglected to record many of the judgments obtained at that court. Moore was elected his successor, and was authorized by a resolution of the legislature to commence a suit in the name of the treasurers of the state on Allison’s bond, given for the faithful performance of his office, to recover the amount of fees ■due for recording the judgments by Moore, which Allison had neglected, provided it should be at his own expense and responsibility. This was an action of debt on the bond, and the breach assigned, was the neglect of Allison to record the judgments.
    The defendant moved for a nonsuit on the ground that no breach existed when the suit was brought, as the plaintiff, by his own shewing had before that time recorded the judgments.
    Waties, J. who tried the cause, was of opinion that this was a good objection. The plaintiff could derive no other right from the resolution than that which the state possessed; and as the state could not now maintain the suit on the bond for a breach which had been repaired, the plaintiff could not. It appeared to him if the plaintiff had any remedy it was by an action of assumpsit for services rendered. He therefore ordered a nonsuit.
    This was a motion to set aside the nonsuit,
    
      'Mills-, for the motion.
    
      
      Ross, contra.
   Curia, per

Nott, J.

I concur in opinion with the presiding judge that the breach assigned in this case was not such as authorized the plaintiff to maintain this action. The act of 1789, requires the clerk of the court to give bond with good security for the just and faithful discharge of his duty, and it declares that such clerk with his sureties shall be liable to all damage sustained by any person or persons in consequence of the malpractice committed by such clerk. P. L. 488. It appears therefore that the object of the bond is to indemnify all such persons as may sustain any damage by the malpractice of the clerk and not as an indemnity to the state. The breach assigned is neglecting to record certain judgments in which individuals alone were concerned. The omission to do which only operates, to their injury and in which the state had no interest. The defendant’s testator might be twite liable for the same thing, if he should be held ánswerable to the present plaintiff for a recovery in this case would be no bar to an action by any individual who had been injured by the negligence complained of. This resolution of the legislature gave to the plaintiff no right, except such as the state possessed. And if the state had no right, the action must fail. But there are other objections to the plaintiff’s recovery in this case. His services were not only gratuitous and therefore could not be the foundation of an action, but the defen- ' daht’s testator derived no benefit from them. In any point of view therefore in which the case now can be considered this motion cannot prevail.

Motion refused.  