#### Yohe *v.*Commonwealth.

A prothonotary, short in his account of money paid into court, at the expiration of his term of office, is liable, with his sureties, for the deficit, although the docket shows that all monies ruled into court during his term have been paid to the parties legally entitled thereto at the time suit is brought for the deficit.

In such case, the proper party plaintiff is the prothonotary in office at the time of suit brought, although not the immediate successor of the defendant.

March 8, 1888.

Error, No. 333, Jan. T., 1888, to C. P. Northampton Co., to review a judgment for the plaintiff on a case-stated wherein the Commonwealth to the use of Charles A. Morrison was plaintiff and Samuel S. Yohe, William H. Hulick and Enos Werkheiser were defendants, at Feb. T., 1886, No. 52. TRUNKEYand Clark, JJ., absent.

The case-stated was as follows:

“Samuel S. Yohe, one of the defendants, was duly elected and commissioned prothonotary of the county of Northampton in the year 1878, for the period of three years from the first Monday of January, 1879, and, on Nov. 29, 1878, with William H. Hulick and Enos Werkheiser, entered into an official bond in the sum of twenty thousand dollars, which was duly approved and accepted in accordance with the Act of Assembly in such case made and provided.

“ The condition of said bond was as follows : ‘ That if the said Samuel S. Yohe shall and"does faithfully execute the duties of said office, and shall and does well and truly account for and pay according to law all moneys which shall be received by him in his official capacity, and shall and does deliver the books, seals, records, writings and papers, belonging to said office, whole, safe and undefaced to his successor therein, then this obligation to be void, or else to be and remain in full force and virtue.’

“The said Samuel S. Yohe filled said office for the full term for which he was elected, and, during that time, it was provided by *641the rules of the court of common pleas that, ‘ on the payment of money into court, the same shall be deposited in such incorporated bank as the court may designate, to the credit of the court in that particular case, and shall be drawn out only upon order of the court, attested by the prothonotary.’ This rule, so far as it related to the deposit of funds to the credit of the particular case, had not been followed either by the prothonotaries who preceded said S. S. Yohe or said S. S. Yohe.

“ James J. Cope was the prothonotary who immediately preceded S. S. Yohe. At the expiration of his term of office on the first Monday of January, 1879, there was a shortage, in the amount on deposit to the credit of the court of common pleas in the Easton National Bank, of $2,147.93. After the expiration of the term of said Tames J. Cope, he deposited to the credit of the court the sum of $970.15.

“ The sums of money paid to the said S. S. Yohe, prothonotary as aforesaid, during his term of office, were not all deposited by him in the Easton National Bank, which was the depository designated by said court in accordance with said rule. There was paid into court, during his term of office, the sum of $19,619.05, of which there was deposited in said bank, to the credit of the court, $17,583.78, paid in cash $745.85, and there remains due to Yohe in costs and fees, from said fund, $489.72, making a total credit of $18,819.35, and a net deficit of $799.70. ' All the money paid into court during the said term was paid to the parties entitled thereto’ at the time of bringing this suit, except the sum of $259.55, which was never finally awarded to the parties until Feb. 22, 1886, and was paid in cash by said S. S. Yohe. The bank docket kept in the prothonotary’s office shows that all moneys ruled into court during said term have- been drawn out by the parties legally entitled thereto, and receipts in full for such amounts are duly entered in said docket.

“ All payments of money so paid into court were made by court check on the fund deposited to the credit of the court in the said bank, except the payments, as above stated, made in cash.

“ If the court be of the opinion that the payment of the said deficit, by court checks, to the suitors entitled thereto, extinguished the liability of the defendants, then judgment to be entered in favor of the defendants; otherwise, in favor of the plaintiff for the amount of said deficit.

“James J. Cope was elected the successor of Samuel S. Yohe as prothonotary, and entered upon the duties of his office on the first Monday of January, 1882. During his term the court directed him to prepare a new equity docket. Cope employed Yohe to do this work, and agreed that the amount received by him for such work should be appropriated to the payment of the deficit of Yohe to the court fund. Cope received the sum of $150 for this work, and appropriated the same to the payment of a private indebtedness *642which he alleged existed, but without Yohe’s knowledge or assent. If the court be of the opinion that this was such a credit as Yohe was legally entitled to, then the amount to be deducted from the net deficit above stated; otherwise, not.

“ The court account in the Easton National Bank was overdrawn Aug. 25, 1885, to the extent of $375.84, and if the court be of the opinion that the bank is entitled to interest upon that amount, then one-half of the interest so chargeable at the date upon this case-stated, to be included in the judgment; otherwise, not.”

The opinion of the court below was as follows, by Schuyler, P.J.:

“Samuel S. Yohe was prothonotary of this court for three years, beginning with the first Monday in January, 1879, and the present suit was brought upon his official bond, one of the conditions of which was that he should faithfully execute the duties of his said office, and well and truly account for and pay according to law all monies received by him in his official capacity. During Mr. Yohe’s term of office, there were paid into court at different times monies amounting in the aggregate to $19,619.05, all of which monies were received by Mr. Yohe in his official capacity. On this amount Mr. Yohe is entitled to a credit of $18,819.35 for monies paid to parties entitled thereto, leaving a deficit of $799.7o, and it is for the recovery of this deficit that the present suit has been instituted. Our rule of court On the subject of the payment of money into court provides that said money ‘ shall be deposited in such incorporated bank as the court may designate, to the credit of the court in the particular case.’ Mr. Yohe did not deposit all the money received by him in the incorporated bank designated by the court, nor did he deposit any of it ‘to the credit of the particular case.’

“ If the foregoing were all the facts, it is very clear that judgment would have to be entered for plaintiffs. The facts relied on as leading to a different result are within a narrow compass. One of them is that Mr. Yohe’s predecessors in office did not observe the rule of court referred to above, so far as it relates to depositing the money ‘ to the credit of the particular case.’ Another is, that Mr. Yohe’s immediate predecessor was short in his deposits to a large amount, part of which he made good after the expiration of his term of office. We are wholly unable to see what these facts have to do with the case.

“ The only remaining facts are thus set forth in the case stated: ‘ All the money paid into court during Mr. Yohe’s term was paid to the parties entitled thereto at the time of bringing this suit. . . . The bank docket kept in the prothonotary’s office shows that all monies ruled into court during said term have been drawn out by the parties legally entitled thereto, and receipts in full for such amounts are duly entered in said docket. All payments of money so paid into court were made by court check on the fund deposited to the credit of the court in the said bank.’

*643“ These facts can have but one meaning. They do not mean that the payments referred to were made during Mr. Yohe’s term, for if they had been so made there would have been no deficit. There is no pretence that this *deficit*was ever made good. [The only possible meaning, therefore, of the facts referred to is, that, after the expiration of Mr. Yohe’s term, by a fraud practiced upon the court, the court was induced to give its checks upon a fund which it held in trust for other parties, to pay the debt of one of its former officers.] [3] Outside of the ingenuity displayed in the preparation of the case-stated, no serious attempt has been made to disguise that this was the true nature of the transaction. We use the word fraud advisedly, although it may not have been intended, for the court would not have permitted the money in its custody to have been thus flagrantly misappropriated, if the real facts had not been concealed.

“ But perhaps this is immaterial. As has already been stated, the present suit is brought to recover the amount of Mr. Yohe’s deficit. The suit is nominally to the use of the present prothonotary, but it is really to the use of the court to enable it to make good its accounts of monies received. That the deficit still exists is not denied. *So long as this deficit remains*it is of no consequence how many of the creditors have been paid, or who they may be, or how they were paid.

[“ Nor is there anything in the objection that the suit is brought in the name of the present prothonotary.] [4] He is the representative of the court and the proper use plaintiff, for that reason. When the money has been realized, the court will see that it is properly appropriated. [The $150 transaction between Mr. Yohe and Mr. Cope clearly has no place in the present controversy.] [5] The same is true of the overdraft in the Easton National Bank.”

The court entered judgment for the plaintiff for $799.70, whereupon the defendant took this writ.

*The assignments of error*specified that the court erred, 1, in entering judgment for plaintiff; 2, in refusing to enter judgment for defendants; 3-5, in the portions of the opinion enclosed in brackets, quoting them; 6, that the court should have held that, under the circumstances set forth in the case-stated, the $150 which Cope received for making the equity docket was a payment to him on account of the monies then- in Yohe’s hands, and not deposited in bank — that is, that it was a payment to Yohe’s immediate successor on account of the deficit of Yohe to the court fund.

*E. f Fox*and *B. F. Fackenthall,*for plaintiff in error.

There is no right of action in the present use plaintiff. Yohe only covenanted to deliver the books, etc., to his successor, not to the success- or of his successor.

In the absence of a rule of court, it is the duty of the prothonotary to keep the custody of money paid into cour|. in his own custody: Aurentz *v.*Porter, 56 Pa. 115.

*644April 23, 1888.

When the prothonotary pays all the claims which were deposited during his term, there can be no further claim upon him.

There should be a more specific statement of the names of the parties who are entitled to the money. In the absence of such statement, there is no right of action : King *v.*Com., 103 Pa. 487.

The case-stated fails to show that there was any money in bank when Yohe entered in his office.

It nowhere appears in the case-stated that it was the duty of Yohe to deposit the moneys to the particular case to which it belonged. The rule does not say who shall deposit the fund. In an action to enforce the penalties, there must be a strict construction. Under a case-stated, only necessary inferences can be drawn.

*H. J Steele,*for defendant in error.

The plaintiff in error argues on facts not in the case-stated. The court will draw proper inferences only from facts as admitted: Parker *v.*Urie, 21 Pa. 305.

Yohe did not deposit the moneys received by him in accordance with the rules of court. He therefore violated the terms of his bond.

In receiving monies, the prothonotary only acts as the court’s officer; and, for the faithful performance of which duty, he and his sureties are liable: Deckert’s Ap., 5 W. & S. 344; Allegheny Bank’s Ap., 48 Pa. 331.

An análysis of the defence shows that it is based either upon the fraud of Yohe or the negligence of his successor in office. Plainly, the officer cannot take advantage of his own fraud. Neither can the laches of his successor in office avail him, for the public right cannot be destroyed or compromised by the neglect of the public agent: Com. *v.*Johnson, 6 Pa. 136; Haehnlen *v.*Com., 13 Pa. 617; R. R. *v.*Schaeffer, 59 Pa. 350; Com. *v.*Brice, 22 Pa. 211.

As the fund deposited to the credit of the court was a general one, it was liable to all suitors who had deposited their money in court, and the only effect of the court discharging its obligation as to those whose moneys had been misappropriated, was to subrogate it to the rights of such suitors, against the prothonotary and his sureties: Wallace’s Ap.,5 Pa. 103; Demmy’s Ap., 43 Pa. 155; McCormick *v.*Irwin, 35 Pa. in ; Kelchnér *v.*Forney, 29 Pa. 47.

Yohe having violated the terms of his bond, the sureties are liable: Com. *v.*Comly, 3 Pa. 372; Watson *v.*Smith, 26 Pa. 395; R. R.- *v.*Shaeffer, 59 Pa. 350; Bailey *v.*Com., 20 W. N. C. 221.

The court cannot allow money, deposited for a special purpose, to be diverted to the injury of others: Russell *v.*Church, 65 Pa.

9; Middletown and Harrisburg Turnpike Co. *v.*Watson, 1 Rawle, 330; Henniss *v.*Page, 3 Wh. 275 ; Bank *v.*Macalester, 9 Pa. 475; Reed *v.*Penrose, 36 Pa. 214.

If suit had been brought to the use of suitors who had been paid, there might be some similarity between this case and King *v*Com. But suit here is brought to the use of the court.

Per Curiam,

Judgment affirmed.