The opinion of the court was delivered by
Huston, J.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.
*60The judge left it to the jury to determine, whether there was any evidence that this money paid to the bank, arose from the sale of G. Smull’s estate, on which subject, the evidence was far from conclusive; and told them, in substance, that even if it should be found that this money or part of it arose from the sale of the said lands, yet if the bank or their officers did not know it to be from that source, if the bank acted fairly and received their money from an officer who had process to collect it, and who appeared to have collected it, they could keep it, and were not liable to'refund it unless some fraud or unfairness had been used by them to induce the sheriff to pay the money which they knew belonged to other people, in discharge of their debt. There was no error in the charge, and this case admits of no doubt. The doctrine that if a man pays money by mistake, does not apply to a case like this. I believe no sheriff keeps an account in bank for every different suit put into his hands. The plaintiff, whose execution he has levied and on which he has sold, has aright to apply for his money, and if it is paid him, he may safely take it and give a receipt. He is not bound to inquire, whether this is the identical money made by the sale of his debtor’s goods: to make such inquiry, would be impertinent. If he receives no more than was due, he is not answerable for that money to any person. It would be intolerable if a plaintiff, after expense and delay in collecting a debt, should subject himself to twenty suits by receiving it; and, according to the plaintiff’s doctrine, he would do so, if twenty persons could prove that a part of the money belonging to them, was used by the sheriff in paying that person.
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.-
Smjth, J., having been employed as counsel in the cause, took no part in the decision. ,Judgment affirmed.