Commonwealth v. Walter

99 Pa. 181 | Pa. | 1882

Mr. Justice Sterrett

delivered the opinion of the court, January 2d 1882.

After the defendant Walter, as sheriff of Butler county, acknowledged and delivered his deed to the purchaser for the land sold on the testatum fieri facias, and received the purchase money therefor, he had an undoubted right to pay the same either into the proper court of his own county or into the court of common pleas of Venango county, whence the writ issued : Borlin’s Appeal, 28 P’g. L. J. 412. By so doing, he would have avoided all risk. It would then have been the duty of the court into which the money was paid, to distribute the same to the parties entitled thereto. In no other way could the sheriff relieve himself from responsibility. He had the right to distribute it himself; but, if he undertook to do so, he incurred the risk of misapplication and consequent liability on his official bond: Luce v. Snively, 4 Watts 396; In re Bastian, 9 Norris 472; Franklin Township v. Osler, 10 Norris 160. Instead of paying to the party entitled, or into either court, the sheriff returned the writ and paid the money to the prothonotary of Venango county, who in turn paid it to the plaintiff in the testatum, to the prejudice of the Oil City Savings Bank, which had the first lien on the land out of which the fund was realized. This was all done without the intervention or even the knowledge of either the court of the situs, or the court whence the writ issued. In no proper sense of the term can this be considered a payment of the money into the Court of Common Pleas of Yenango county. To sanction such a practice would be productive of great mischief. If the sheriff has money,.which, in obedience to the command of his writ, he wishes to bring into court, it is his duty to have the matter brought to the attention of the court, so that it may be fully advised, and take such action as may be proper in regard to the distribution of the money and its safe keeping in the meantime. The recognized and proper practice in such cases is for the sheriff or his deputy to appear in person or by attorney, and, by leave of court first obtained, pay in the money. This being done, the prothonotary, as the officer and representative of the court, acting under its authority, takes charge of the fund subject to the special or standing orders of court in regard to its safe custody and ultimate disbursement. This is the only way in which money made on execution process can regularly go into the hands of the prothonotary. His authority to receive and receipt for money in any other way is quite restricted. In Watson v. Smith, 2 Casey 395, it was held that as a matter of public convenience, sanctioned by an almost universal practice, a suitor may lawfully pay, to the prothonotary, fees due to a former incumbent of the office; and as a necessary consequence his sureties are liable therefor. But, the prothonotary has no power to receive payment of a judgment, and he who makes such payment does so in his own wrong: Tompkins v. Woodford, 1 Barr 156. And, in Wells v. Baird, 3 Barr 351, it was held that money paid to the prothonotary and entered by him, on his docket, as paid into court, will not affect the right of the plaintiff to have the judgment revived.

There appears to be no question as to the bona tides of the sheriff in this case, and it is to be regretted that he and his sureties must be adjudged liable, as for a misapplication of the money; but it is the inevitable result -of his failure to relieve himself of responsibility in either of the modes recognized by law.

Judgment reversed, and judgment is now entered on the verdict against the defendants, in favor of the Commonwealth for $8,000, penalty of the bond, and in favor of the Oil City Savings Bank, $128.35 damages.