
    STAPLES’ APPEAL.
    The Act of June 12th, 1878, does not give the Sheriff poundage on money raised by execution where the fund is paid into Court.
    Appeal from Common Pleas of Erie County, No. 83 July Term, 1884.
    Executions were issued on judgments obtained against French and McKnight; and their personal property was sold by F. E. Staples, the Sheriff of Erie county, at auction for $3,521.53. A dispute having arisen as to who was entitled to • fund, the execution creditors ruled it into Court, and had an auditor appointed to distribute, who refused to allow the-sheriff any poundage, under the Act of June 12, 1878, P. Laws, 187.
    The Court below refused to allow the claim for poundage in> the following opinion, per
    Galbraith, P. J.
    It is apparent that the purpose of the clause in the Act of June 12th, 1878, P. Laws, 187, on which the exceptant bases-the claim that the sheriff should be allowed poundage on the-money paid by him into Court, was intended to prevent plaintiff from defeating the sheriff’s poundage by receipting to the-defendant for the debt, as had no doubt sometimes been done. To the clause was added: “The same commission to be allowed when money is paid to plaintiff or sheriff, with or without sale;, if paid without sale, no commission shall be allowed on more than is paid over to the creditor.” Evidently the writer of this-language had in his mind the purpose mentioned, as well as-the further object of saving the rights of the sheriff when the debt or a part of it was collected without actual sales of the-property.
    Under the Act of 1868 the sheriff was not entitled to-poundage except when he actually received and paid over to-the plaintiff or his attorney the money; but by the addition of' this claus to the Act of 1878, he would be entitled when the-money was neither received or paid over by him, but was paid directly to the plaintiff. This being the evident purpose we-cannot presume that the language used was meant by the Legislature to give poundage to the sheriff when the money is paid by him into Court and there charged with the poundage due by law to the prothonotary.
    The learned auditor would appear to be clearly right in his-conclusion on this point, and accordingly the exception is overruled.
    Staples then appealed to the Supreme Court.
    
      E. L. Whittelsey, Esq., for appellant,
    cited Petry vs. Beauvarlet, 1 Binney, 97; Wall vs. Lloyd, 1 S. & R., 327; Middleton vs. Summers, 3 S. & R., 550; Evans vs. Elmes, 1 Clark, 272; Commonwealth vs. Fraim, 16 Pa., 169; Big Black Improvement Co. vs. Commonwealth, 94 Pa., 450.
    
      F. Gunnison, Esq., contra,
    
    cited Terry vs. Gregg, 26 Pittsburgh L. J,, 94.
   The Supreme Court affirmed the decree of the Common IPleas on February 16th, 1885, in the following opinion :

Per Curiam.

The Act of February 22,1821, P. Laws, 52, gave poundage ■to the sheriff for “levying on goods and selling the same.” The Act of June 12,1878, P. Laws, 187, allows it to the sheriff for “recovering and paying money to the plaintiff or his attorney,” and this last Act allows a poundage to the prothono-tary “for recovering and distributing money paid into Court.” ' The statute gives the compensation, to the officer on whom is imposed the risk of safely keeping the fund and 'making a due • distribution thereof. We therefor concur in the opinion of "the learned Judge in Terry vs. Gregg, 26 Pitts. L. J., 94, that it was not the intention of the Act to allow poundage to two ■ officials on the one fund.

Decree affirmed and appeal dismissed at the costs of the appellant.  