Person's Appeal

Mr. Justice Gordon

delivered the opinion of the court, March 29th 1875.

The controversy, in this case, arises out of the distribution of moneys made by a sheriff’s sale of the property of Peter Laux, on two executions against him, dated January 19th 1874. The one, a-pluries fi. fa., No. 2, of March Term, was issued on a judgment of G. B. Linderman & Co., and the other, a fi. fa., No. 3, of the same term, upon a judgment of F. H. Person, the appellant. The execution first issued, Linderman & Co.’s, was endorsed by the sheriff as coming to his hands at 4 p. M., of the 19th of January, and the other, Person’s, as coming to his hands at 12.30 P. M., of the same day. To this first-named writ, the auditor, to whom was committed distribution of the money raised by the sale, awarded the fund, though it appeared by the endorsement thereon, to have reached the hands of the sheriff subsequently to that of the appellant. This award was induced by the consideration of certain oral testimony, from which it appeared that it was customary for the prothonotary of Carbon county, to put writs, as he issued them, into a box, in his office, set apart for the sheriff, and to which that officer had free access at all times. It also appeared that the prothonotary had placed writ No. 2 in this box before No. 3 was made out, but that this latter writ was put into the sheriff’s possession some hours before he took the former out of the box. We do not think this evidence warranted the conclusion to which the auditor and court below arrived. It will be observed, that the lien of an execution attaches, not from the date of its issue, but from the time it comes into the hands of the sheriff: Act June 16th 1836, sect. 37, Pamph. L. 768. But the ruling of the court below would, in effect, give the lien to the execution first issued, for the prothonotary would naturally and uniformly place these writs in the box in the order in which they were made out. Such was the result of the case under consideration; No. 2 was the first in the box and took the money, though No. 3 was first in the sheriff’s hands. This was a complete inversion of the Act of Assembly. The setting apart of a pigeon hole, in the prothonotary’s office, for the use of the sheriff, is a mere matter of convenience, and the putting of a writ therein is no delivery to him. It is undoubtedly true, that in the absence of an endorsement of the time of receipt, parol evidence may be adduced to prove which of two or more writs came first into the custody of the executive officer : Mifflin v. Will, 2 Yeates 177; Hale’s Appeal, 8 Wright 438. But as is observed by Justice Thompson, in the case last cited, when, in obedience to the direction of Act of 1836, the sheriff does note the precise date of the receipts of the writs, it is conclusive. In the case now under review, the precise dates of the receipts of the writs were noted, and an inspection thereof renders itt patent that the money in court should have been applied in satisfaction of the appellant’s execution. The decree of the court below is reversed at the costs of the appellees, and a new distribution ordered.