The opinion of the court was delivered by
Rogers, J.The act of the 4th April, 1798, prescribes that a judgment shall not continue a lien for a longer term than five years, unless within that time a scire facias be sued out by the plaintiff This scire facias was sued out in due time, but it is contended, that notwithstanding the plaintiffhas lost his lien, because he has not pursued the remedy pointed out by the act with the- requisite diligence. In a case at Philadelphia, not yet reported, the court de-' cided that when a scire facias had been issued, but not returned, and when it appeared that no steps whatever had been taken to prosecute the suit, that there was such gross negligence, as to amount to an abandonment of the writ. That the mere issuing a scire facias, without more, was not sufficient to keep up the lien for an indefinite length of time. That, however, is not the case, and we are unwilling to extend the principle further than is warranted by the terms of the case to which we have referred.
This scire facias was issued, returned served, a plea of payment put in, and the cause put to issue, and placed on the trial list from time to time. At a special court held by judge Franklin, an entry of “ settled,” was made on the trial list, at the suggestion,ras it appears of Mr. Duncan, who, at that time, was the counsul for the defendant. When again put upon the list of the special court, a similar entry was made by judge Scott, but at whose instance does not appear — possibly at the instance of the same counsel, or per*133haps caused by a Hasty reference to the entry previously made. The cause appears regularly continued on the docket; nor shall I stop to inquire when those entries were made, or is it material. On the 13th May, 1823, the entry “ settled,” was on motion stricken out by the court, having been made by mistake and without authority. After this, I can perceive no indication of an abandonment of the writ, or any thing that amounts to gross negligence. When we consider the peculiar situation of this cause, we can be at no loss to perceive why it was suffered to slumber on the docket. In all probability neither the plaintiff nor his counsel were aware of the entry; for if made in his absence, the trial list would be the last place where he would expect to find it. lie would be guided by the entries made by the prothonotary on his docket. It appears to me to be dangerous to adopt a latitude of construction as regards this act, as we would introduce uncertainty, as to what degree of diligence is necessary to continue the lien of a judgment. Numberless questions will arise from an attempt to superadd a limitation to the lien of a judgment, not warranted by the terms of the act itself. Independent of any statutory provision, the judgment and the lien were co-cxistent, and it is the same now, when a scire facias has in fact issued within the term of five years; except in the case of a writ without any return of the sheriff and without any steps whatever being taken in prosecution of the suit.
The entry ° settled” generally, or settled says plaintiffs or defendant’s attorney, is often made: it is certainly a loose mode of doing business; but I am not prepared to say it is a nullity, when ©n tire record. It would perhaps amount to an entry of satisfaction, or a discontinuance. However that might be, I cannot agree to give the entry, “ settled,” under the circumstances of this case, that effect It is a memorandum on the trial list furnished the judge of the special court, under the act of 1816, and which forms no part of the record. The trial list is his own private paper, which he has a right to do with as he pleases, and which, in fact, some judges convert, without scruple, to their own private purposes. In practice it is usual in some counties to make out two two trial lists, one for the court, the other for the bar, and in addition the prothonotary keeps a minute book, in which he marks the style of the suit, the proceedings in the cause, comprising the amendments to the pleadings, the names of the jurors, and the verdict, &c. and these entries he afterwards transfers to the continuance docket. In the trial list furnished the court, the judge makes his memorandums, which are intended for his own information and guidance during the term, noting the causes that are continued, ihose marked for argument, and when tried, states in short, *134“ tried,” and sometimes, though not always, whether the verdict was for the plaintiff or defendant, and the amount of the verdict. Sometimes the judge takes the list with him, sometimes he leaves it in his drawer, and at other times with the prothonotary: and whether he does the one or the other, is more frequently the result of accident than design. That an entry on a paper such as this, should have all the sanctity and inviolability of a record, would, I apprehend, introduce a laxity of practice pernicious in the extreme to the suitors. A record should be fixed and certain, and not depending as to its place, or in any other way, on the whim of any person. It is not my intention to define what in Pennsylvania constitutes a record, but it will be sufficient to shew, that a trial list of the judge does not partake of that character. If this entry be a record entry in this respect, it must be so in all others, and then it would follow, that.a judgment entered on the trial list, and not transferred to the continuance docket or any further notice taken of it, would effect subsequent purchasers, and in many cases the utmost degree of diligence on his part would not avail to avoid loss. To what does a purchaser look for the existence of judgments; not surely to the trial list, but to the docket: and if not regularly entered there, it would be contrary to every principle of justice, that he should be injured: for in such case he would have no notice, either express or implied. The advocates of the contrary opinion, seem to me to be carried away with the hardship of the plaintiff’s loosing his debt, when he has obtained a verdict and judgment. But is it not much more hard, that the innocent purchaser should bear the loss, when he has taken every pains to inform himself by regular searches in the proper offices. It is the duty of a plain tin who obtains a judgment, to see that the regular entries are made; and if any loss arises from the default of the prothonotary, it is the plaintiff, from whose neglect, in some measure, it has arisen, who should bear the burthen of a law suit, and not a subsequent purchaser, who had nothing to do with the transaction, and who has taken every pains, by the necessary searches, to inform himself of the existence of liens.
Huston, J. and Smith, J. dissented.Decree of the court of Common Pleas reversed, and a decree entered for the appellants,