delivered the opinion of the Court:
It appears, from the evidence in this case, that Barr, Johnson & Co., on the 13th day of September, 1872, recоvered a judgment against one David W. Morse, but the clerk, in entering it up, omitted to name any sum for which the recovery was had. The minutes of the judge trying the case show that the amount found in favor of the plaintiffs was $223.02, and the clerk afterwards issued an execution against Morse and in their favor for that amount. The sheriff levied it on a large quantity of personal property, amounting in the aggregate to perhaps the value of $1500. This property was taken from the sheriff by writs of replevin, and was recovered on trials had, as we infer, upon the ground thаt there was no judgment under which the execution could issue, and the plaintiffs having lost their debt, as they claim, by reаson of the failure of the clerk to perform his duty in entering up the judgment, brought suit on the clerk’s bond against him and his suretiеs, to recover damages sustained by reason of the nonfeasance of the clerk. A trial was had in thе court below, by the court and a jury, resulting in a verdict and judgment in favor of defendant. A motion for a new trial was еntered, but it was overruled by the court before judgment, and the plaintiffs appeal.
The record, as prеsented to this court, strongly tends to show, Barr, Johnson & Go. were prevented from collecting their debt solely by rеason of the negligence of the clerk to record the judgment pronounced by the court in their favоr. Had that been done, it would seem that they could have realized their debt.
This, then, fairly presents the question whether the clerk is liable for nonfeasance, as well as misfeasance or malfeasance in office. The statute has prescribed the condition of his bond, and the law pi-ovides that it shall be “conditionеd for the faithful performance of the duties of his office, and to deliver up the papers,” etc., appertaining to his office, when required so to do, etc. Mow, he and his sureties, by the terms of their bond, have engaged and bound themselves that he, as clerk, shall perform the duties of his office. It is not that he shall not wilfully and wrongfully violate those duties, or that he shall not he guilty of malfeasance in office. According to the cоndition of this bond, he and his sureties could only escape liability by his faithful performance of his official duty. Their аgreement was, that they should only escape liability by his performing his duties as clerk. This is the plain and unmistakable mеaning of the language, and it seems so clear to us that we are at a loss to make it more obvious. By it thеy agree that they shall be responsible if he fails to perform his official duty, and it is for this purpose that the bоnd is required. He virtually engages with the people, when he assumes the duties of his office, that he is competent to discharge them, and that he will not be wanting in their faithful performance. If he may omit one duty without liability, why may hе not omit all with impunity? We do not have the shadow of a doubt that he and his sureties are liable for any failure tо perform an official duty.
The act of the 19th of February, 1859, Sess. Laws, p. 133, provides: “ That it shall be the duty of clerks of courts of record in this State, to enter of record all orders, judgments and decrees of their said cоurts, before the final adjournment of their respective courts, at each term thereof, or as soоn thereafter as practicable.”
This enactment imposes no new duty, but enlarges the time within which it shall be performed. It was a common law duty of a clerk of a court of record, and he was appointed to the office for the purpose, to enter upon the roll of the proceedings of the court all of its orders, judgments and decrees, with the issuing of process of the court, and the performance of other duties of the office; and the common law practice was, that the proceedings of еach day should be so entered as to be read on the next morning, and then signed by the judge. This statute imposed no new duty, but simply declared the common law, which had existed from the earliest period when a record of proceedings of the courts of England was had.
Here was a plain duty, which no one could mistake; and it аppears that it was omitted by the officer who had undertaken for its performance, and his sureties had engaged that he should perforin, and he and they must be held liable for any loss or injury that has resulted to Barr, Johnson & Co., by reason of its non-performance.
¡Numеrous authorities might be cited from the courts of other States to show that the law imposes the liability, if they werе needed to sustain so plain a proposition. All understand that sheriffs, constables, and other ministerial officers, are held liable for mere nonfeasance of duty. Sheriffs and constables are not unfrequently held liаble for failing to levy an execution, failing to return it, for permitting property seized on execution to be re-taken by the defendant, and in a number of other cases, where loss is occasioned to the plаintiff by mere non-action, unintentional, and caused by mere negligence or omission to perform a duty. ¡No rеason is perceived for maleing any distinction between such officers and a clerk. The conditions of their bonds, in this respect, are the same, and their liability necessarily should be the same.
The court below, therefore, should have given appellant’s instructions, so far as they accord with the views here expressed, and it erred in refusing to grant a new trial.
The judgment must be reversed and the cause remanded.
Judgment reversed.