1 Rawle 54 | Pa. | 1828
The opinion of the court was delivered by
The Northampton Bank had a judgment against Peter Smull, individually, on the 12th of September, 1817. They issued a Fieri Facias, to August, 1818, which was returned “ Levied on personal property.” A Venditioni Exponas, issued to November Term; and an Alias Venditioni Exponas, to February Term, 1819, which was returned, “ Debt and costs paid.” The sheriff, who was called, produced the receipt of the cashier. The cashier was called, who proved that the sheriff kept an account in the bank, but not a separate account for each suit; that his funds in the bank, at the time of paying this money, consisted of deposits, and the proceeds of a note discounted for the sheriff in the bank; that the debt was paid by a check. Evidence, however, was given to prove that the personal property of P. Smull did not sell for the amount of this debt, nay, for only about one quarter of it.
It also appeared, that Peter Smull was the executor of George Smull, at that time, (though since, removed, and the plaintiff substituted in his place;) that there were three several judgments against Peter Smull, executor of George Smull, amounting to about three thousand six hundred dollars, bn which lands of George Smull, deceased, were sold to that amount; and it was alleged that part of the money raised by the sale of the lands of George Smull, was applied by the sheriff to pay this debt of Peter’s to the Northampton Bank.
It too often happens that sheriffs misapply money. The misapplication of money belonging to one man, leads to misapplication of the next money coming into his hands, and so on to the end of his office; and thus every execution would give rise to a new suit. But, in these cases, there is no mistake: tire sheriff knows he is misapplying money; he who receives it does not know it, but he knows he is receiving what the sheriff owes him, and he is not bound to know more. The sheriff himself could not, in such case, recover it back. The sheriff and his sureties were liable, perhaps, to the plaintiff; the bank never was, and, if it was, from the facts and dates in this case, the statute of limitations, which was pleaded, was a bar to the plaintiff’s recovery. The cases of Rapalje v. Emory, in 2 Dall. 51, and Rogers v. The Huntingdon Bank, 12 Serg. & Rawle, 77, are much stronger than this.-
Judgment affirmed.