
    [Philadelphia,
    April 10, 1824.]
    BLACK against DOBSON, executrix of DOBSON, with, notice to HART and VAUGHAN, terretenants.
    SCIRE FACIAS.
    If a judgment be entered under a warrant of attorney, which has been filed in the oft fice of the prothonotary, and which provides for a stay of execution, the five years during which such judgment is a lien on the real estate of the defendant, are not to be computed from.the time at which execution may issue, but from the first day of the term in which the judgment,is entered; unless the cesset appears plainly on the record, so as to prevent the possibility of danger to .subsequent purchasers and incumbrancers. Nor will the court amend a judmgent, thus defectively entered, by afterwards placing the cesset executio on the docket.
    On the 5th December, 1.818, judgment was entered in this court by the plaintiff against Thomas Dobson, the testator, then in full life, for the sum of seven thousand five hundered and sixty eight dollars, the penalty of a bond, dated December 1st, ISIS, conditioned for the payment of three thousand seven hundred and eighty four 'dollars, with interest thereon, on the 1st December, 1819. The warrant of attorney was filed in the office of the prothonotary, and contained the following proviso; Provided always, that execution shall not issue untu the expiration of the time mentioned in the conditipn of the annexed obligation, viz. one year from the date hereof.”
    
      (a) On this subject, vide, The King v. The Inhabitants of Rotherjield Greys, t Barn. ci Cress, Rep. 345. Republished in 8 Eng. Com, Law Rep, 95.
    
      On the 9th January, 1819, Thomas Dobson executed a mortgage to TÍiomas dinners, to secure the payment of six thousand five hundred dollars, which ,was .recorded on the 30th January, 1819, and'which at the time of suing ont this scire facias, viz. on the 20th'November, 1823, was; by assignment, the property of Benjamin Lehman,
    
    The question for the determination of the court was, whether the judgmerif.abovementioned remained a lien on the mortgaged premises, as against Benjamin Lehman.
    
    
      Tod, on’ behalf of the plaintiff,,
    moved, that the judgment on which the scire facias had issued, should stand revived during the period of five years, from the first day'of December Term last, against the .real estate of Thomas Dobson ; also,
    That the docket entry of the said judgment should be amended, by addrtijg the words; yin oneyearfrom the date of the said bond, together with lawful interest, for the same, payable quarter yearly,”
    The case of Pennock v. Hart, S S'erg. fy Rawle, 369, he observed, had established the principle, tfiat where there was a cesset executio, the five years during which a judgment remained a lien on real estate, were to be computed from the time at which execution might issue, and not from the first day of the term in which judgment ,was entered. . That decision covers the present case; for by the proviso contained in the warrant of attorney, which, according to the usual practice, was filed and formed part of the record, and of which all persons were bound to fake notice, execution was to be staid until the 1st of December, 1819,. within five years from which time, the scire facias was sued out. It was the business of the clerk to enter particularly on his docket the date and tenor of the instrument, on which .the judgment was founded, together with such stay of execution as may be. therein mentioned. Act of 24&\ February, 1806,sec. 28, 4 Sm.L. 278. If he has omitted to perform his duty in this respect, it ought not to prejudice the.plaintiff, who fias done all the law required of him. It is at most a mere clerical error, the amendment of which can injure no one, since the stay of execution being upon the record, there was as full constructive notice of its existence, as if if had been spread upon the docket. Amendments, analagous,to thát now asked for, have often been máde, and sometimes even where third persons were affected by them. 1 Caines 9, Close v, Gillespey. 3 John. 526, Shoemaker v. Shirtliffe. 1 Dali. 227, Shorty. Coffin. 5Burr. 2730, Richards v. Brown. Doug. 113, 14, 15, Benner y. Frey. 1 Binn. 366. Lessee of Hilly. West, Id. 486. Helveie v. Rapp, 7 Serg. S¡- Rawle, 306.
    
      Rawle, contra,
    argued, that this was a controversy between creditors, between whom equity would not interpose, but would permit whoever could lay hold of a plank at law, to keep it. This application is made more than five years after the entry of the judgment, and the court has no power to amend it, in favour of a plaintiff who has been guilty of such laches. The judgment was entered on the 5th December, 1818, and by the express terms of the act of 4th Jlpril, 1798, sec. 2. 3 Sm. L. 331, constitutes a lien on the defendant’s real estate, during five years from the firstday of the preceding March Term, unless there was something on the face of it to take it out of the general rule. A cesset exeevtio, it has been decided, will postpone the commencement of the five years, until execution can issue, but in such a case the cesset must distinctly appear upon the record, so that none may be deceived. It is not enough that it be filed among the papers of the prothonotary’s office, which being a voluntary act, not required by law, makes it no part of the record. The docliet is our record, and if it be not found there, it does not exist as regards subsequent purchasers and incumbrancers. On the docket there was nothing to show what was the day of payment. Suppose a person about to purchase should examine the record, and finding the lien of this judgment expired, should take a deed and pay the purchase money, would the court afterwards permit the judgment to be amended and strip him of his property? This would hardly be contended. In England a judgment cannot be amended, even by the alteration of a single letter, so as to prejudice a purchaser. Salev. Crompton, 1 Wils. 61. '¿Sir. 1209, A C. The principle of this case applies in Pennsylvania, not only to purchasers hut to creditors, who by the true construction of the act of Assembly of 1798, areplaced upon thesame footing. Bunk of North Jlmerica v. Fitzsimmons, 3 Binn. 342. The plaintiff, if he has been injured by the error of the clerk, is not without remedy. The prothonotary is answerable for a false docket. He cited act of 21st March, 1772. Purd. Dig 262. Gilb. Hist, of C. P. 140. Seaman v. Miller, 1 John. 148. 2 Tid. Pr. 866. 7 Vin. Ab. 54. pi. 7. '
   The opinion of the court was delivered by

Gibson, J.

The only way in which the amendment prayed for could be permitted would be, by considering the lien as still existing, on the ground that the omission to enter fho s;ay of execution on the ducket, was a misprison of the clerk, in mere matter of form: in which case, the amendment, if grantable, would be useless. But clearly we cannot deprive subsequent judgment creditors or mortgagees, of any legal advantage which they may have obtained. It is settled, that a judgment creditor can avail himself of the expiration of the lien, whenever the land would be discharged in the hands of the purchaser.

Now, what information of the duration of the lien beyond the five years from the date of the judgment, could be obtained by a purchaser from the face of the docket, I am at a loss to discover.

The warrant of attorney, which contains the stipulation for a stay of execution, was filed in the-office, but there is neither a direct reference to it, nor any thing else to put a party on inquiry, or to induce him to search further. The act does not require, either the bond or warrant to be filed, and a purchaser is, therefore, not bound to suppose, that either is actually filed. But I am not prepared tó say, he would be prejudiced, even if there was a reference to a paper containing the terms on which the judgment was given.

It is going far enough for the creditor to decide, that his judgment may be extended beyond the time limited by the letter of the act, where the cesset appears palpably plain on the record, and where there can be no possibility of danger to a purchaser.

In Pennock v. Hart, we carried the construction thus far, to fulfil what we were persuaded was the actual intention of the legislature^ although not expressed in the act.

There the terms of the cesset were spread on the docket, and it was impossible that a purchaser, or any one else, could be injured or deceived by supposing that the judgment was discharged. Further than this I am not disposed to go, as it would lead to injustice. Helvete and Rapp is entirely consistent with this doctrine ; for there the judgment was not held good by relation to the bond, which was filed, but the entry on, the record itself, contained the substance of the bond, as well as the substantial requisites of a judgment. The dispute was, as to the effect of the entry as it stood, and as t^e defect was entirely in- matter of form, it was held, that it should not prejudice the judgment creditor; the entry being sufficient to put a purchaser on his guard. We are of opinion that the amendment be disallowed.

Motions denied.  