
    *John Work against Michael Hoofnagle, esq.
    Every public oilier ought to know his duty, and exercise it faithfully, or he will be responsible in damages to the party grieved.
    Th-is was a special action on the case against the defendant, as a public officer. Plea non cul. with leave to give the special matters in evidence.
    The declaration consisted of three counts. 1st, That on the 2d July 1785, Daniel Brodhead, jun. was an inhabitant or resident of Virginia, and indebted to the plaintiff in 154I. on two bills of exchange drawn by him and dishonoured, and had goods in Westmorland county, to the amount of 500I.; that the plaintiff issued a foreign attachment against him, tested 10th April 1785, returnable in the July term following which he delivered to Robert Orr, esq. then sheriff, 011 which the said goods were attached, and obtained judgment thereon for 154I., his damages, and 3I. 3s. 6d. costs. That the defendant, as one of the justices of the Court of Common Pleas, and prothonotary of Westmoreland county, combining with the said D. B. or his agents, to defraud the plaintiff of his damages and costs, on the 22d November 1785, did certify to the said sheriff having the custody of the sard goods, that special bail was entered in the suit, who thereupon released the same goods to the agents of the said D. B. The said J. W. in fact sait-h, that no special bail was taken, nor any caption or recognizance filed, and that the said D. B. did not surrender himself as a prisoner, and that a ca. sa. issued against him, tested 8th July 1786, was returned by the sheriff, non est inventus. By means whereof the'said J. W. lost the benefit of his attachment, judgment, and costs, &c. &c.
    The 2d count proceeds as above, and that the defendant combining, &c. took John M’Donald special bail, he knowing that the said J. M. had no estate, real or personal, within Westmoreland county aforesaid, without any rule or order of court, and avers that the said J. M. was wholly insufficient. Whereby, &c.
    The 3d count pursued the same form, and that the defendant combining, &c. concealed the recognizance of bail, and did not file the 'same, according to the duty of his office, until the 1st June 1786, and thereby prevented the plaintiff from excepting against the bail, who in pursuance of this neglect lost his lien. Whereby, &c.
    The plaintiff proved the issuing of the attachment against Brodhead for his debt; the under sheriff’s levying on his goods at Pittsburgh, and re-delivery of them shortly after-wards, in July 1785, to Brodhead’s clerk, on the defendant informing him that he had taken M’ Donald as special bail, in doing whereof the * officer informed him he had pKny acted wrong; and on the plaintiff’s obtaining judg- L ment, that he had issued a ca. sa. to October term 1786, which was returned non est inventus.
    
    It was also shewn • in evidence, that no entry of the special bail could'be found in the prothonotary’s office, at the time of bringing this suit against the now defendant; that M’Donald was the clerk of Brodhead, and was reputed to be a man of no property; and that shortly after the attachment was supposed to be dissolved, the defendant accepted and paid an order drawn on him by M’Donald for 28I. The name of Mr. Brackenridge was entered on the appearance docket as attorney for the said Brodhead in the original suit, and judgment was confessed to the plaintiff in January term 1786, with a cesset of three months.
    On the part of the defendant it was shewn, that a scire facias issued against M’Donald as special bail, returnable to January term 1787, wh-ich was not served, and that on an alias scire facias issued to the April term succeeding, a scire feci was returned, to which Mr. Galbraith appeared, and in July term following, judgment was entered for the plaintiff, with a stay of execution for six weeks. Messrs. Woods and Thompson’s names were marked on the docket as the plaintiff’s attornies. But it appeared that blanks were left in the scire facias for the time of caption and the sum. The entry of M’Donald as special bail appeared at the time of trial in the defendant’s hand writing, in the continuance docket, and was proved to have been made by him while he held the office, after the commencement of the present suit. The acknowledgment of the recognizance bore date on the 22d November 1785, and agreed therein with a copy of a loose memorandum found amongst the defendant’s office papers, and taken by the plaintiff’s counsel.
    
      Mr. J. Ross for the defendant,
    made three points, ist, That the plaintiff’s attorney must be supposed to have acquiesced in the taking of special bail. An attorney appears for the defendant, and- the plaintiff takes judgment with the usual cesset of three months; he then issues a ca. sa. which he must have known well could not be done, unless the attachment was dissolved. If the plaintiff had conceived himself aggrieved, why did he not call on the now defendant before judgment? Or why not complain to the court of his conduct? It was stated, that if he had proceeded against M’Donald on his judgment on the scire facias, he might have recovered his debt and costs, as was effected in a subsequent instance, in the case of John Knight against M’Donald. An *5081 h°nest creditor may lose his debt by * laches and negli-J gence, as in the remedies to be had against indorsers of promissory notes and.bills of exchange.
    3. The plaintiff by proceeding against the special bail, has waved and lost his remedy against the now defendant. He has obtained judgment thereon, assisted by two counsel, and this is perfectly analogous to the case of a plaintiff accepting the assignment of a bail bond. The court will not afterwards make a rule on the sheriff to bring in the defendant’s body, nor can the plaintiff maintain an action against the sheriff for taking insufficient bail.
    It was stated and agreed to, that the general practice before the revolution,' in all the western counties, had been, for the prothonotaries to sue bail bonds and take special bail in all suits, as well attachments as others, for the convenience of the practitioners, the latter barely reserving to themselves the liberty of excepting against the special bail at the ensuing term. 3 Bl. Rep. 1145, and Vaugh. 138, were also cited to shew that the judges are not liable to answer .personally for their errors in judgment; so of single magistrates acting within their jurisdiction. >>
    3. That all the counts charged a combination of the defendant with Brodhead or his agents, to defraud the plaintiff of his debt, and that no evidence being adduced to prove it, the allegata and probata did not agree. Neither the court nor jury would presume a fraud, and in this instance the allegation of such turpitude was matter of substance and not mere form.
    Mr. Young for the plaintiff,
    answered these objections, and cited 3 Espin. 366. 13 Co. 138. Carth. 487.
   by the court.

And, Officers are created for the benefit of the community, not for the emolument of individuals. Every public officer ought to know his duty, and exercise it with fidelity, or he will become responsible to the party grieved. The defendant’s conduct in the instance before us has been highly culpable, and it has not been accounted for, nor can it possibly be explained to bis advantage, if tbe testimony merits credit. The under sheriff is told by him in July 1785, that special bail has been entered, and therefore delivers up the goods; but he takes the liberty of informing him, that he has done wrong. It appears by the continuance docket, and the defendant’s loose memorandum, that the special bail, (if taken at all,) was not acknowledged until November 22d following, and this is inserted in the docket after the bringing of this action, by way of defence. This is more than mere mistake of judgment. The defendant’s information to the sub-sheriff was a palpable misrepresentation against *the plain duties of his office, and if the plaintiff has r*gAg suffered thereby he is entitled to compensation. With- L out animadverting on the practice which is said to have prevailed in these remote counties, as to prothonotaries dissolving attachments of their mere authority, without the interposition of a court, and taking special bail, it will not be pretended that the defendant can shelter himself under this usage. Indeed, from the taking of the judgments, with the stays of execution, issuing the ca. sa. and the scire facias, it would appear as if some agreement had been entered into by the counsel. Of that agreement we have no testimony. But it must be observed that the plaintiff’s counsel could not find the recognizance of bail, on the most diligent search, and it is therefore most probable that the suit on the scire facias was instituted for the defendant’s benefit. There can be no doubt, but that the judgment against M’Donald is a mere nullity, the scire facias containing no certain demand against him, and being void in itself. No appearance of counsel can cure it in its present state. It appears to us that the action is proved in substance; but at any rate, the combination if necessary to be proved, may be fairly inferred from the circumstances, and that the plaintiff is entitled to recover his debt and interest.

Cited in 12 Pa., 228, in support of the decision that the sureties of a pro-thonotary are liable for damages incurred by a purchaser of land, through a mistake in the certificate of judgments.

Verdict pro quer. 240I. 4s. 4d.  