
    Northampton Co. v. Steele.
    An attorney at law, appointed by the court of common pleas to conduct a suit in behalf of the county against the sureties of a prothonotary who had misappropriated moneys paid into court by order of the court, and directed to be deposited in bank, is entitled to compensation for his services rendered in such suit, and the liability of the county is fixed therefor by the action of the court, and the ratification of the county commissioners.
    March 14, 1889.
    Error, No. 75, Jan. T. 1889, to C. P. Northampton Co., to review a judgment on a verdict for plaintiff in an action of assumpsit by H. J. Steele against Northampton Co., at June T. 1888, No. 40. Paxson, C. J., and Green, J., absent.
    The facts are stated in the following charge of the court, by Reeder, J..
    “ This is an action brought by H. J. Steele against the County of Northampton to recover a sum which he claims to be due him for professional services rendered by him to the county in the case of ‘ The Commonwealth of Pennsylvania, to the use of Charles Morrison, Prothonotary of the Court of Common Pleas of Northampton County v. Samuel S. Yohe, William H. Huliek and Enos Werkheiser.’
    “ It appears by the testimony of Mr. Steele, which is the only evidence in the cause, that this suit was brought against William H. Huliek and Enos Werkheiser, who were the sureties upon the official bond of Samuel S. Yohe, as prothonotary of the court of common pleas of this county, for the recovery of certain moneys which had been paid into court. This money that was paid into court, it appears, was money that had been realized from different executions placed in the hands of the sheriff of Northampton county, and upon which he realized certain sums, the distribution of which being questioned, it was, by direction of the court, paid into court and directed to be deposited in bank. This fund, so paid into the custody of Samuel S. Yohe, was discovered to be short when the time came for Mr. Yohe to turn over his office and the papers and funds in his office, and this suit was therefore brought for the purpose of recovering from Samuel S. Yohe’s sureties the amount of money which he was short in the fund paid into court by the direction of one of the judges of this court. This fund was in the keeping of the prothonotary. It was placed there subject to the control of the court and subject to the distribution of the court. It could not be paid out, under our rules of court, without the order and direction of the court. It was in the custody of the court. The court recognizing that fact, my brother, Judge Schuyler, issued an order in which he directed that H. J. Steele, Esq., appearing for the Commonwealth of Pennsylvania, to the use of Charles Morrison, the present prothonotary, should bring suit against the bondsmen of Samuel S. Yohe for the purpose of recovering this deficiency. This was done. Suit was brought and the suit came up and was heard several times in different ways in this court, and afterward a writ of error was taken and the suit was carried up to the supreme court of the state and argued there, and the supreme court affirmed the action of the court below in holding the sureties of Samuel S. Yolie responsible for the balance due to the fund paid into court, and the money was recovered from them. {By reason of the labors of Mr. Steele, somewhere about twenty-five hundred dollars was recovered of this court fund. After the recovery of the money, and the refusal to make payment for his services as testified to by him, he brought this suit for the purpose of being compensated for the services he had rendered, and the question you are now trying here is whether, under the direction of the court, he is entitled to recover for the labor so performed by direction of the court. I say to you, gentlemen of the jury, as a matter of law, that he is.] This fund was under the control of the court. It was the business of the court to see that this fund was properly protected and properly distributed. When the court discovered that the fund under its control, and of which the prothonotary was the custodian, had been dissipated, and had not been kept intact, as it should have been, it was the duty of the court to see that steps were taken for the protection of the fund, which was under the control and for the distribution of the court, and, therefore, [it was in pursuance of what was distinctly the court’s duty, that my brother Schuyler appointed Mr. Steele for the purpose of bringing this suit, and for the purposes of protecting that which was within the custody of the court. It was, to that extent, an act of the county, and, for the services performed in relation to and in connection therewith, the County of Northampton was responsible. Therefore, we say to you that, as a matter of law, for services of this character such as Mr. Steele has testified that he performed in connection with these suits, Mr. Steele was entitled to compensation from the County of Northampton.] The amount for which he sues is $380.00, together with $11.40 interest, making altogether $391.40. The only testimony in the case as to the value of the services is that of Mr. Steele himself, which is uncontradieted, that the services which he rendered were worth $391.40. He furthermore testified that these charges are in accordance with the fee bill adopted by the members of the bar of this county and which has received the endorsement of this court, and they are, therefore, what he would be entitled to receive as being the usual compensation paid to attorneys for like services. There is no other testimony showing the value of the services. Whether you receive this testimony or not as conclusive upon that point, still, as I understand it, it is not combatted by the other side, and therefore your verdict will be in favor of the plaintiff for $391.40.”
    The defendant presented the following points, which were denied:
    “1. Under the law and the evidence, the plaintiff cannot recover.” .
    ££ 2. Under the law, the verdiet must be for the defendant.”
    
      The plaintiff in the court below testified, inter alia, as follows: “ I conducted these proceedings with the knowledge and consent of the county commissioners. The commissioners, in office at the time I conducted the proceedings before arbitrators, paid me a retaining fee and also for my services in obtaining the award of arbitrators. After judgment had been entered in court and a writ of error was taken, I prepared a paper book and directed that the printer’s bill be sent to the county commissioners, which they paid without objection.”
    Yerdict and judgment for plaintiff for $391.40.
    
      The assignments of error specified, 1, 2, the answers to defendant’s points, quoting them; and, 3, 4, the portions of the charge within brackets, quoting them.
    
      H. S. Cavanaugh, for plaintiff in error.
    The county was never in any way interested in the proceeding instituted to recover the court fund. The expenses should have been borne either by the fund or by the bondsmen.
    Neither the court nor the county commissioners, nor any other functionary, can bind the county for costs in any way not prescribed by statute. Berks Co. v. Pile, 18 Pa. 493 ; Comrs. v. Lycoming Co., 46 Pa. 496; Wayne Co. v. Waller, 90 Pa. 99.
    
      H. J. Steele, p. p., not heard.
    It is the duty of the court to protect the fund committed to its custody. Allegheny Bank’s Ap., 48 Pa. 332; Deckert’s Ap., 5 W. & S. 344; Act of April 20, 1846, Purd. 764; Act of April 3, 1851, Purd. 593; Act of June 20, 1873, Purd. 955.
    Where no other provision has been made for the necessary expenses of the judiciary, in its official duties, the county where the court is held, is, in general, liable. Comrs. v. Hall, 7 Watts, 290; Allegheny Co. v. Watts, 5 Pa. 465; McCalmont v. Allegheny Co., 29 Pa. 417; Venango Co. v. Durban, 3 Grant, 66. These cases are distinguished from Wayne County v. Waller, 90 Pa. 99, which decided that, where counsel are assigned by court to defend a pauper criminal, the county is not bound to pay their fees. The former cases relate to the administration of justice, the latter case to matters in which the county is presumed to have no concern.
    The county commissioners ratified the action of the court, and their action is binding on the county, in all matters touching the business of the county. VanKirk v. Clark, 16 S. & R. 290; Allegheny Co. v. Western Hospital, 37 Pa. 123; Schuylkill & Dauphin Improvement Co. v. McCreary, 58 Pa. 304. The commissioners may employ counsel. Chester Co. v. Barber, 97 Pa. 455; Dillon’s Mun. Corp. 479. The protection of court funds is a public affair of the county. Morrison v. Bachert, 112 Pa. 000; Potter Co. v. Oswago Twp., 49 Pa. 162; Blank Co. v. Bridenhart, 16 Pa. 458; Butler v. Neosho Co., 15 Kansas, 178; McCabe v. Fountain Co., 46 Ind. 380; Dillon’s Mun. Corp., §§ 459, 938.
    March 14, 1889.
   Per Curiam,

Judgment affirmed.  