
    Cake v. Bird. [Priestley et al. v. Bird.]
    A bank obtained a judgment against a surety and issued execution tbereon. The sheriff made return that he sold defendant’s personal property and, after paying costs, paid into court a balance larger than the judgment. Before the money was distributed, defendant’s assignee in bankruptcy claimed it, and the bank entered into an agreement with the claimant, whereby the claimant was permitted to withdraw the money in court and deposit it in another bank, subject to the order of the United States court, until the right to the fund should be established. The bank in which the money was deposited failed and the fund was lost. Subsequently the principal’s real estate was sold. An attorney at law, claiming to represent the bank, received the money. On a rule upon the attorney to pay over the money, upon petition of the defendant in this execution, the court below held that the sale of the personal property operated as a satisfaction of the jtidgment and that the bank was entitled to no part of the fund produced by the sale of the real estate upon the second writ, and the court made an order on the attorney to repay the money. Held, upon writ of error by the attorney, that the judgment should be affirmed.
    
      May 23, 1888.
    Error, No. 336, Jan. T. 1888, to C. P. Northumberland Co., to review an order making absolute a rule on J. Adam Cake, an attorney-at-law, to pay over money to O. O. Bird, executrix of Joseph ¿ird, deceased, at Jan. T. 1884, No. 126. Trunkey, J., absent.
    This case arose upon petition of C. C. Bird, executrix, presented Dec. 14, 1883, for rule to show cause why J. Adam Cake, Esq., should not return money to the sheriff or pay it into court for distribution according to law. The rule was thereupon granted. The answer averred that the money was received as attorney for a bank, creditor of the defendant in the execution, whose judgment was a first lien upon the property sold. The petitioner filed a replication denying that the judgment of the bank was entitled to the money and also denying that the respondent was attorney for the bank in that judgment.
    The facts are stated in the following opinion of the court, by Bockerellbr, P. J.:
    “ This matter has been hanging for a long time, but doubtless the protracted illness and death of Joseph Bird was the cause. The facts appear to be that on the 25th of November, 1873, Joseph Priestley and Eraneis B. Toulman recovered a judgment in this court to No. 126 January Term, 1874, against Joseph Bird, A. C. Simpson, and J. H. Jenkins, for the sum of $40,000, real debt $20,000. A writ of fieri facias was issued in 1877 and the joint real estate of the three defendants was levied upon and condemned, whereupon the above stated writ of venditioni exponas was issued, on the back of which the sheriff was directed £ to collect $6,812.39, with its interest from the 10th of December, 1876 (it being the payment due and interest to 15th June, 1876, less amount raised on former writs), and also the further sum of $525, interest payable to 10th December, 1876.’ By virtue of this writ the sheriff sold the said real estate in several lots for different sums, ‘ making in all,’ as he says in his return, £ $3000, of which sum I have applied $126.30 to costs, and applied to debt and interest on portion assigned to John B. Packer $1,915.80, and have the balance, $957.90, to be distributed as directed by the court.’ It is this latter sum of money about which the dispute in this case arises. It seems the Eirst National Bank of Northumberland had recovered a prior judgment for the sum of $1,455.84 against one John C. Lloyd and J. H. Jenkins, as bail, to No. 60 November Term, 1873, the said J. H. Jenkins being also one of the defendants in the said Priestley and Toulman judgment. This judgment of the bank against Lloyd and J enkins had, however, been fully paid and satisfied as long ago as 1873 by a writ of fi. fa. issued thereon to No. 33 November Term, 1873, on which the sheriff made the following return, to wit: £ Sold defendant’s personal property as levied upon on the 25th day of August, 1873, to the value of $1,783.58, out of which sum I have retained the cost of sale as per notices and cost on this writ amounting to $70.48, leaving a balance in my hands of $1,713.10, which balance, leave being granted, I have paid into court.’ After the money was paid into court, and before a distribution made by the court, or an auditor appointed for that purpose, it seems that "Wm. T. Forsyth, who was assignee in bankruptcy of John C. Lloyd, made some claim, alleging, as I presume, that the property sold belonged to him as assignee, and the officers of the bank, plaintiff, entered into an agreement with Mr. Forsyth that the money be paid by the prothonotary to him and to be by him deposited in the Augusta Bank at Sunbury in his name as assignee, etc., as a call loan, the money to remain subject to the order of the II. S. court until the legal right of the same be established, the said bank to pay interest for the use of the said money at the rate of four per cent, per annum, the said agreement in no way to affect the legal rights of any of the parties in interest. Instead of asking the court, in whose ■custody the money was, to appoint an auditor or otherwise determine whether the money belonged to the bank, plaintiff, or the assignee in bankruptcy, the parties undertook to manage the whole thing in their own way. The evidence, however, clearly shows that whatever proceedings were had in the Bankrupt Court the case was finally determined in favor of the bank. A part of the money, perhaps, was lost by reason of the Augusta Bank being insolvent and considerable being claimed for costs. John C. Lloyd and J. H. Jenkins, the defendants in the execution, and their creditors and co-debtors were not parties to this transaction and therefore not bound. If the parties took tbe money raised by the sale of the property and voluntarily put it in an insolvent bank where some of it was lost, certainly they must bear this loss. The contest, however, in the present case does not seem to be between the First National Bank of Northumberland and the defendants. The bank is not claiming the money in dispute, and, as far as the evidence shows, never did. The bank employed J. II. Vincent, Esq., to collect the amount of its judgment, who issued the execution and conducted the proceedings against John C. Lloyd and J. H. Jenkins in 18Y3. But for some reason J. Adam Oake, Esq., who had formerly been counsel for the bank, and was such in other matters at the time when the property of Bird, Jenkins and Simpson was sold on the Priestley and Toulman writ, made a claim to the sheriff and demanded the money on the judgment of the bank against Lloyd and Jenkins, No. 60 November íerm, 18Y3. The sheriff seems to have hesitated for some time and finally returned the writ of Priestley and Toulman, as I have already mentioned, that he had £ the balance of $95Y.90 to be distributed as directed by the court.’ One day, however, the sheriff was sitting in his office and he says Mr. Oake came down from the court and said that he, Oake, was to get that money, and the sheriff, supposing that the court had so ordered, paid it over. Mr. Oake represented to the sheriff that he was attorney for the bank and had the only right to collect it. The sheriff says he knew there was a dispute about the judgment, that some alleged it was paid, but Mr. Cake said it never was paid and that was the reason why this $957.90 was retained. Court was in session upstairs and Mr. Cake came downstairs into the sheriff’s office and said he was to receive that money. The sheriff did not require him to produce an order from the court, but, supposing it was all right, paid it to Mr. Cake. Previous to that time the sheriff had frequently refused to pay over the money to Mr. Cake, and when he did pay it he believed that Mr. Cake had authority from the court. Considerable testimony was taken to show that afterward, in a settlement with the officers of the bank, Mr. Cake gave the bank credit for the money he received. Mr. Cake so testified, whilst, on the other hand, the officers of the bank know of no such credit having been given, and say if there was they would have known it. Mr. Stone, the president, and the law committee of the bank, say they never authorized Mr. Cake to get this money of the sheriff. I will not undertake to determine which party is right in regard to that matter, for I have come to the conclusion that it is an immaterial matter as regards the question before the court. [The bank had no right to receive the money, and, this being so, Mr. Cake could have had no legal authority to receive it. By the levy and sale of the personal property of Lloyd and Jenkins for the full amount of the bank judgment and execution, that judgment was satisfied. It may be if the parties had had the money distributed by the court and it had been determined that the property sold belonged to the assignee in bankruptcy, the judgment would not have been satisfied.] [1] It has been held ‘that seizure of goods in execution to the amount of the debt is a discharge of the judgment1 whether the goods be sold or not, so far as the rights of other creditors are concerned, except where the plaintiff is deprived of the fruit of his levy, without any fault of his own.’ Lyon v. Flampton, 20 Pa. 46. See also Taylor’s Ap., 1 Pa. 391. But that is not this case. If anything was lost- it was not because the money was not made on the bank’s execution, and if the bank lost part of it through agreeing to deposit it in an insolvent institution or by costs, certainly other parties can not be prejudiced. Mr. Stone, the president of the bank, says all questions as to who was entitled to that money have been determined in favor of the bank by a decree of the United States Bankrupt Court just before he got the money from Mr. Forsyth. [Mr. Cake being a member of the bar and an officer of the court, I can see no other way than to direct him to pay back the money. To put the case in the mildest form, the money was paid to and received by Mr. Cake by mistake. The bank was not entitled to it and never claimed it. Buie absolute.” ] [2]
    
      The assignments of error specified, 1 and 2, the portions of the opinion included within brackets, quoting them.
    
      S. P. Wolverton, for plaintiff in error.
    While the sale of the personal property might have extinguished the debt and as between the plaintiffs and defendants, the same rule does not apply between distributees. If the money arising from the sale under the provisions of the Bankrupt Act went into the hands of the assignee for distribution under that Act, the plaintiff could not be postponed in the distribution of the proceeds of sale of other property of the defendant.
    A creditor having two funds subject to his encumbrance may pass by the first and come upon the second, dependent upon the equities amongst the junior lien creditors. McDevitt and Hays’ Ap., 70 Pa. 373; Horning’s Ap., 90 Pa. 388; Uniontown Building and Loan Association’s Ap., 92 Pa. 200.
    The Statute of Limitations was a bar to the proceedings. Downey v. Garard, 24 Pa. 53, 54; Rhine’s Admrs., v. Evans, 66 Pa. 192; Campbell v. Boggs, 48 Pa. 524; Stephens v. Downey, 53 Pa. 424; Trickett on Limitations, pages 277, 278.
    
      J. Nevin, Hill and J. H Rockefeller, not heard, for defendant in error.
    This is not the case of “a creditor having two funds subject to his encumbrance ” who “ may pass by the first and come upon the second.” Mr. Cake was not a creditor and he did not stand in the shoes of a creditor. Moreover, the bank he pretended to represent had not passed by the first fund but had sunk the greater part of it by depositing it in an insolvent institution “as a call loan.” McDevitt and Hays’ Ap., 70 Pa. 373; Horning’s Ap., 90 Pa. 388, and Uniontown Building and Loan Association’s Ap., 92 Pa. 200, have no application.
    The statute of limitations must be pleaded before judgment or final decree. Heath v. Page, 48 Pa. 130; Alden’s Ap., 93 Pa. 182. In this case it was not pleaded.
    The statute would run only from the time of the discovery of the fraud. Mitchell v. Buffington, 10 W. N. C. 361.
    Oct. 1, 1888.
   Per Curiam,

The opinion of the court below so fully and clearly disposes of the questions raised in this case, that we feel it unnecessary to add anything thereto, except to say that we fully concur therein.

The judgment is affirmed.  