
    [Lancaster,
    June 1, 1829.]
    The COMMONWEALTH against CLARKSON, Administrator of PASSMORE.
    appeal! ■
    Mutual demands extinguish each other by operation of law, without actual de- " falcation by the act of the parties.
    Therefore, where a prothonotary and a sheriff received, fees for each other during their continuance in office, the fees received by the prothonotary for the sheriff, against which he was entitled to" set off money received by the sheriff for him, were held to have been fees received by the prothonotary while in office, and liable to taxation under the act of the .10th of March, 1810, although no actual settlement of accounts took place between them until long after the prothonotary had gone out of office.
    . Appeal from the decision of the Circuit Court of Dauphin county.
    The accounts of the defendant’s, intestate, John- Passmore, who had been prothonotary of the Supreme Court for the Lancaster district, and of the Court of Common Pleas of Lancaster county, and clerk of the Orphans’ Court, Quarter Sessions, and Oyer and Terminer, in and for the county of Lancaster, having'been settled on the 18th of May, 1824, by the auditor general and state treasurer, who found a balance against him of eight thousand one hundred and ninety-nine dollars.and thirteen "and three quarter cents; he, on the 28th of July, 1824, entered an appeal to the Court of Common Pleas of Dauphin county, under the 11th section of the act entitled, “ an act to amend and consolidate the several acts relating to the public monies, and for other purposes,”- passed on the 30th of March, 1S11.
    On the 7th of April, 1S29, a verdict passed against the defendant in the Circuit Court for two thousand eight hundred and nineteen dollars and" sixty-seven cents.
    
      On the trial, it appeared, that John Passmore had been appointed prothonotary of the Suprémé Court for the Lancaster district and of the Court of Common Pleas for the county of Lancaster, and also clerk of the Orphans’ Court, and courts of Quarter Sessions and Oyer and Terminer, of the same county, on the 3d of January, 1S09. He continued to hold the office of clerk of the Orphans’ Court until the 6th of February, 1816, of prothonotary of the Supreme Court and clerk of the courts of Oyer and Terminer and Quarter Sessions, until the 4th of March, ÍS17, and of prothonotary of .the Court of Common Pleas until the 10th of Jpprilj ISIS. _ • • •
    _ Henry Beigart, was sheriff of Lancaster county from 'October, 1812, till October, 1815; and George Hambright was sheriff of the said county from October 1S15, till October, 1818.
    Among the items- contained in the account settled by the auditor general and .state treasurer, were- the following:' viz. -
    “ For amount of fees collected for Henry Beigart, formerly sheriff of Lancaster county,' - - #1,967,-87
    ■ “For fees collected for George Hambright,late sheriff of Lancaster county, - #2,201,34
    These fees were received by John Passmore, in the course'of his business and during his continuance in office, for sheriffs Beigart and Hambright. During their continuance in office they had also received fees for Mr. Passmore. A considerable time after Mr. Passmore had gone out of office, he Settled .with these gentlemen, and then, and not until then, they respectively agreed, that these sums should be credited in his a'ccount against them. If appeared from Mr. Passmore’s return to the auditor general, which was read in' evidence on the trial, by the counsel for the common-ivealth, that he had repeatedly urged settlements at an earlier period tvith Mr. Beigart and Mr. Hambright, but could not accomplish his purpose on account of 'their embarrassments.
    The question for the decision of the court was, whether the two sums above staled, were taxable? The decision of the Circuit Court being against the defendant, he entered this appeal, because the judge instructed the jury that the plaintiff was entitled to a verdict for one half of the amount of those sums, when he ought to have instructed them that they were not liable to taxation.,
    
      BuchanaA-, for the appellant.
    The construction of the act of the 10th of March, 1S10, Purd. Dig. 608, being that those fees only-are taxable which were received by the officer during his continuance in office, as determined in Heister v. The Commonwealth, the question on which.the decision of this cause depends, is, whether the appropriation of money received by the prothonotary for the sheriff, to fees received by the sheriff for the prothonotary, he a receipt of the fees by the prothonotary, at the time he received the money of the sheriff, or at the time the appropriation is actually ■made? He argued in support of the negative of the proposition, and cited Turner v. Fendall, 1 Cranch, 117. 6 Bac. Ab. 135.
    
      Douglass, for the commonwealth
    answered—That the fees were •substantially received while the prothonotary was in office, because, the right of set-off then existed, which was equivalent to actual payment. ; '
   The opinion of the court was delivered by

Gibson, C. L

Mr.' Passmore, while in office, received fees which were due to the sheriff, and the sheriff during the same period, received fees which were due to Mr. Passmore; and the question is, whether these cross demands extinguished each other by operation of law, or whether that effect was produced for the first time when actual defalcation, took.place by the act of the parties?

Defalcation was unknown at the common law, according to which, mutual debts were distinct and inextinguishable except by actual payment or release. But the statute of set-off .which was intended to prevent circuity, has been held to operate on the rights of the parties before action brought, or an act done by either of them. In Murray v. Williamson, (3 Binn. 135,) a set-off was sustained against an administrator, 44 because,” as Judge Ye ates well observed, 44 the sum really due at the death of the party is the true debt.” On no other, principle could there be a set-off against the representative of an insolvent decedent; instead of which the defendant, would have to pay the.demand against him first, and then come in with the other creditors for a dividend of his own money according to the degree of his debt. This we see is not the case, every thing but the balance having been previously extinguished. We have other instances qf the same principle, where it did not depend on positive law. . In Griffith v. Chew, (8 Serg. & Rawle, 17,) where the obligee in a joint and several bond, had appointed an administrator of one of the obligors, having assets, to be one of his own executors, it was held, that the debt was paid presently, the law having made the application without waiting for the det of the party. On the same principle a retainer, which was formerly pleaded specially, may now be given in evidence on plene administravit, the law having administered the assets in the'hands of the executor by payment of his debt. The application of this principle is consistent with both justice and convenience, particularly where the party to whose use the money was received, had no property specifically in the coin dr bills of which it consisted, and to ■whom a recovery could not be more beneficial than á retainer of the ■money already in hand. According to both reason and authority, therefore, the fees received by the sheriff were virtually in the hands •of Mr. Passmore, the instant that he and the sheriff became réeiprocally holders of each other’s funds; and, as this occurred while Mr. Passmore was in office, the fees in question are subject to taxation. '

Judgment affirmed.  