
    [Sunbury,
    June, 20, 1827.]
    BANKS against The JUNIATA BANK of Pennsylvania.
    IN ERROR.
    'The plaintiff is liable to the prothonotary for the price of an original writ, though charged to the plaintiff’s attorney in the docket.
    The prothonotary is entitled to demand the fees due in a suit conducted to judgment, though a scire facias thereon has issued, on which the proceedings are not terminated.
    He is also entitled, where after a scire facias, execution has been taken out, and no return made for more than two years.
    Writ of error to the Court of Common Pleas of Mifflin county.
    
      Ephraim Banks, the plaintiff in error, and defendant below, was sued by the Juniata Bank of Pennsylvania in this action of debt on single bill. The defendant below had been prothonotary of the Court of Common Pleas of Mifflin county, and pleaded a set-off of sundry sums claimed by him, as fees for his services as prothonotary, in sundry suits: in each of which the Juniata Bank was plaintiff. On trial in the Court of Common Pleas of Mifflin county, some of these claims of the-defendant below were admitted in evidence; but the following items of set-off were rejected, and bills of exception taken thereupon.
    1. The fee due for issuing an original writ to April term, 1821, against Belford and others. It was admitted that this fee was unpaid, but the defendant below had never charged the same in any book to the Juniata Bank. On the contrary he had, by an entry on the margin of the docket, charged the same to Mr. Hale, the attorney of the Bank. Mr. Hale, on the trial, denied his liability.
    2. Fees, amounting to two dollars and fifty cents, for sundry services to the plaintiff below, in a suit against Allen, to November term, 1818, and judgment thereon. To revive this judgment, after the defendant below was out of office, to November term, 1821, a scire facias issued, to which the defendant, Allen, appeared, and pleaded payment, and no step had been taken in the cause by either party since.
    3. Fees, amounting to three dollars and fifty cents, due on an action against Reynolds, brought to August term, 1818. Judgment in March 1820, Scire facias to November term, 1821, Judgment on the scire facias, and execution to April term, 1824. of this execution, no return had yet been made by the sheriff, nor did it appear that any return had been called for.
    4 & 5. The fees due on issuing two original writs to August term, 1818, one, against Elliot and Beale, served, but no step in the cause since; the other against Kennedy, not served, but prosecuted by an alias writ, after defendant below was out of office. Judgment, and execution obtained. Land sold, and the proceeds of the sale applied exclusively to prior judgments. After argument by Potter and Blanchard, for the plaintiff in error, who cited Lyon v. M'Manus, 4 Binn. 169, 11 Serg. & Bawle, 248, and Moore v. Porter, 13 Serg. & Bawle, 100; and by Benedict, for the defendant in error, who also relied on Lyon v. M'Manus, 4 Binn. 169,
   The opinion of the court was delivered by

Todd, J.

1. Error assigned.

It is not intended to give any opinion upon the question, whether by contract express or implied, the attorney in a cause may not become solely responsible to the prothonotary for the price of the original writ. But, without such contract, it is clear that though the attorney directs the writ, and though the prothonotary is not bound to give any credit for it unless he thinks proper, yet if he does give credit, that credit is presumed to be given exclusively to the plaintiff in the cause. The charge entered on the docket against the attorney, can make no difference in the case, though that entry might be evidence with other facts to help to establish a special contract. Even if the attorney was responsible, and clearly bound for the price of the writ, yet neither that responsibility by itself, nor any thing else of the kind short of actual payment or satisfaction, can exonerate the Juniata Bank, the principal debtor. Therefore, as under the case of Lyon v. M‘Manus, 4 Binn. 169, it is conceded that no compulsory credit is to be given for the fee on an original writ, and as the law has not made the attorney liable in this case, and it does not appear that he has made himself so, we decide this point in favour of the plaintiff in error. The set-off was good, and ought to have gone in evidence to the jury. This decision disposes also of the 4th and 5th errors assigned.

2. The fees due in the case of Allen. The scire facias, we take to have been the commencement of a new suit, and the first action was ended, at least so far as to give the officer a right to demand his fees, and terminate the credit, under the rule established in the case of Lyon v. M‘Manus.

3. The fees due in the case of Reynolds. It is argued, there is no insolvency shown here. There is none. Nor do we consider that under the facts of this case, any insolvency need be proved. An execution had issued, and no return made, or demanded, for more than two years. The presumption then is conclusive, that the'defendant in that case, if not insolvent, has paid the debt and costs to the plaintiff below. The prothonotary has, most certainly, no right to interfere in a cause. He cannot prosecute to insolvency, nor issue an execution without orders, nor call for a return of it. The opinion of the court is, that the plaintiff in error has sustained all his exceptions; that judgment be reversed, and a venire facias de novo awarded.

Judgment reversed, and a venire facias de novo awarded.  