to and directly affects all classes; they gard to the market value of the land will bear with equanimity high taxation varied, as was to be expected. The witfor any reasonable governmental pur- nesses for the appellant placed the value pose; they will not submit to unjust tax- at from $50,000 to $100,000. Those for ation for any purpose. * * * The the appellee placed it at from $100,000 moment taxes within the territorial lim-to $135,000. The court believes that the its of a county are not uniform on the figure fixed by him of $100,000, which same class of subjects, the non-uniform- was that given by the assessor himself, ity results in injustice to the taxpayer is a substantially correct one. whose valuation is placed above that of As regards the ratio of assessment, his neighbor. * * * His one and the evidence places it at from 30 to 60 only remedy against unjust and discrim- per cent, and we believe that the figure inating taxation is the one pointed out of 50 per cent is also a fair one. From by the acts of assembly (1889 and June these figures and from the rule that uni26, 1901, P. L. 601) referred to. And formity of assessment is the controlling we must say that the legislature, in view element, and not the market value, we of the absolute necessity of prompt pay-feel that the assessment of the appelment, as well as the dissatisfaction and lant's property should be reduced from irritation caused by want of uniformity. $100,000 to $50,000.

was moved to make the remedy as ample And now, Oct. 11, 1923, the appeal in as possible by allowance of these ap-this case is sustained, and it is ordered peals." and decreed that the assessment of the

It is apparent, we think, from this, or property of E. Richard Meinig for the even apart from it, that any inequality year 1923 shall be reduced from the sum of taxation resulting from an assessment of $100,000 to the sum of $50,000; the in an intermediate year is quite as unjust costs of this appeal to be paid by the and as distressing to the taxpayer as that County of Berks. which might result from an inequality in

Allegheny Co.

Conroy v. Weisbrod

a triennial assessment, and if, as the Su-C. P. of preme Court said, the legislature was moved to make the remedy as ample as possible by allowance of these appeals, it would be most inconsistent to hold that, while they were making it as ample as possible, they, nevertheless, restricted the remedy to the triennial assessments. Certainly it cannot be said that that of .1pril 26, 1855, P. L. 309, and Fiduci would be making the remedy as ample aries Act of 1917, P. L. 504, Section 35.

as possible.

Pleading and practice-Administrator --Action in trespass-Negligence-Act

An administrator cannot maintain an action in trespass for damages for the death of his decedent by the alleged negligence of de

The act itself does not at any time mention triennial assessments, but makes the act applicable to any future assess-fendant. The Act of April 26, 1855, P. L. 309, ment; and the act being a remedial one, is not disturbed by the 35th Section of the it should receive a liberal construction,

Fiduciaries Act of 1917, P. L. 504.

and we feel that it applies to the case in Affidavit of defense raising questions

Percy C. Pachtman, for plaintiff.

hand. If so, our second conclusion of of law.
law necessarily follows from the
findings of fact, the learned counsel for
the appellee stating in his argument that
his view of the law in this regard was
the same as that of the learned counsel
for the appellant.

An examination of the evidence in this case will show, we think, that there is ample testimony to sustain the court's findings of fact. The testimony in re

I'm. A. Challener, for defendant. Before Swearingen, Carnahan and Douglass, JJ.

Swearingen, J., May 27, 1924.-This case is before the court upon a question of law raised in the affidavit of defense filed by the defendant. The action is in

of the costs.

Where no order was made by the court des

ignating a depository in which the clerk shall deposit the moneys deposited with him and the clerk placed the same in a bank approved by the court, and said bank failed, the clerk was ordered to pay the amount he out interest.

other than a national bank or trust company

had received, less his commissions, and with

trespass, and was brought by the admin- therefore, could not be held for the payment istrator of the estate of Nora Conroy, deceased. She was injured on March 12, 1923, by the negligence of the defendant, as was alleged, from which injuries she died shortly afterwards. The question of law is that the plaintiff cannot maintain this action, because the Act of April 26, 1855, P. L. 309, names the persons entitled to recover damages for an injury In the matter of the petition of John causing death, and an administrator is Gill, in the Court of Quarter Session of not one of those named. This act is still York County, Pa., for an order on Purd in force, and was not disturbed by the R. Smith, former clerk of the courts, to 35th Section of the Fiduciaries Act of pay over money deposited at the time the 1917, P. L. 504; and if it were, the sec-petitioner became bail on the recogniztion is unconstitutional,--there being no ances in Commonwealth v. William P. reference in the title of the Fiduciaries Sprenkle, M. W. Wallace, Charles Shultz Act to the subject of the Section 35. We and Eugene Onney, No. 27, August Sesthink the case is ruled by Strain, Admr., sions, 1922. Petition allowed. v. Kern, 277 Pa. 209.

And now, to wit, May 27th, 1924, after argument and upon consideration, the question of law raised in the affidavit of defense is sustained; and judgment is hereby entered in favor of the defendant.

Q. S. of

Gill's Petition

Harvey A. Gross, for petition.
James G. Glessner, contra.

Ross, J., December 29th, 1924.—On the 15th day of September, 1924, a petition was presented to this court by John Gill, representing that:

"On August 28, A. D. 1922, a true bill York Co. of indictment was found by the grand jury in the court of quarter sessions of the peace of said county to No. 27, August Sessions, 1922, wherein William T. Sprenkle, M. W. Wallace, Charles Shultz and Eugene Onney were jointly charged with assault and battery, aggravated assault and battery and felonious assault."

Cash bail-Act of May 12, 1921, P. L. 548-Cash deposited in support of bail on recognizances-Liability of cash "On August 31, 1922, the above case was continued, with the consent of said for payment of costs imposed on defend-court, to October sessions of said court." ant-Failure of court to designate de- and that "by reason of the continuance

pository for cash - Interest.

Where one, who was about to become bail for several persons under indictment, with approval of the court, deposited with the

clerk of the court a sum of money equal to the amount of the several recognizances upon which he became bail, because he was not a resident of the country in which the recognizances were entered and therefore, without the deposit was not acceptable as bail, he was entitled to have the money so

deposited, less the clerk's commission, repaid to him, notwithstanding that one of the de

fendants was convicted and sentenced to pay costs and failed to comply with the sen

tence.

In the case mentioned, the money was paid not in lieu of surety but as additional support of the person who became bail on the

recognizances; it was not the property of

the defendant sentenced to pay costs, and,

of said case, the said court required the said M. W. Wallace, Charles Shultz and Eugene Onney, defendants, to enter into a recognizance in the sum of five hundred ($500) dollars each for their appearance at said October sessions of court."

“In open court on September 2, 1922, the said M. W. Wallace, Charles Shultz and Eugene Onney, being personally present in court, offered to enter into the recognizances aforesaid, as required by said court, and offered as surety on each recognizance your petitioner (John Gill), who, being a non-resident of said York County, was not accepted by said court, whereupon your petitioner offered to said

court, at bar in open court, to deposit five hundred ($500.00) dollars each, as with the clerk of said court the sum of fifteen hundred ($1500) dollars, in current funds of the United States, as additional cash bail if said court would accept your petitioner as surety on the recognizance of each of said three defendants in the aforesaid sum of five hundred dollars; whereupon your petitioner was accepted as surety on the bonds of said three defendants, and your petitioner deposited with Purd R. Smith, then clerk of said court, the sum of fifteen hundred $(1500) dollars in current funds of the United States."

The prayer of the petition is that this court "order and direct the said Purd R. Smith, then clerk of said court, to forthwith pay to your petitioner the aforesaid sum of fifteen hundred ($1500.00) dollars, together with all interest or income which the same may have earned in the The facts stated in the petition, not meantime, less his commissions for re- denied but practically admitted in the deceiving and paying out said moneys, as murrer, show that the money paid was required by the Act of General Assem-not paid in lieu of security but as addibly of May 12, A. D. 1921, P. L. 548." tional support for the petitioner who had To this petition, Purd R. Smith bailed the defendants charged with crime, through his counsel, James G. Glessner, Esq., filed a demurrer on September 22, 1924. The demurrer stated that John Gill, the petitioner, was not one of the defendants in the recognizance mention

nizances, was a non-resident of the coun- bank not authorized by law, namely a ty. The terms of the recognizances trust company or national bank. This is clearly show that the duty of the surety deemed by the court now sitting as an on the recognizances was to produce the inadvertence on the part of the clerk, body or the person of the party charged probably caused, under stress of business, with the crime, who was directed to give by the court neglecting, at the time the proper recognizance for his appearance money was paid, to direct the clerk what at the subsequent terms of court. This depository to select for the deposit of the he did, and the party so charged with the cash, as the act requires. We think, crime was convicted of the crime and re- therefore, that the request of the peticeived his sentence. tioner asking to have the commissions alWe believe that the terms of the re-lowed by law deducted from the money, cognizance were complied with by John should be refused. Gill, who acted as surety for the accused on his recognizance, and the money placed with the clerk, with the consent of the court, should be returned to him because the requirements of the recognizance have been completely fulfilled. The cash deposited under the Act of May 12, 1921, P. L. 548, was not in lieu of other bail, but was in addition to the other bail, because the person, John Gill, acting as bail, resided out of the County of York, out of the jurisdiction of this court, and it was not deposited in place or stead of C. P. of

And now, December 29th, 1924, it is ordered that Purd R. Smith turn over to the petitioner the amount of money deposited with him as additional security for the appearance of M. W. Wallace, Charles Shultz and Eugene Onney, without any accumulated interest, but deducting from the said amount the legal commissions which the act of assembly allows him for its custody.

Lehigh Co.

proper surety, but to support the proper American Insulation Co., Inc. v. Best

Practice-New trial on court's own

motion.

surety on the recognizance. That recognizance was a recognizance to appear and answer to the charge preferred, and nothing more. The defendant was not the owner of the money deposited, but it was made plain in court that the money deposited was the money of the surety on the recognizance, because he was not a citizen in the district judicially super-ered a rule to show cause why a new trial vised by this court.

We think, therefore, that the petitioner, who was the owner of the money, as was plainly shown at the time the money was deposited, is entitled to have the cash deposited with the clerk of the courts returned to him as prayed for. We do not, however, agree with the petitioner that interest is due upon the money so deposited, for the reason that it is obvious that the clerk of the courts, being confused by the circumstances of the case, sought legal counsel, who evidently advised a retention of the money until a decision of the court is rendered. The money was simply a deposit and is not entitled to bear interest. There is no other reason offered why the clerk should forfeit the commissions allowed him by the act of assembly than the statement that the clerk deposited the money in a

On a rule for judgment n. o. v., the court, new trial should be awarded, of its own motion, enshould not be granted.

being of the opinion that such a judgment could not be entered, but that a

Rule for judgment n. o. V. Rule to show cause why new trial should not be granted entered.

Fred B. Gernerd, for plaintiff and rule. Allen W. Hagenbach, for defendants. Reno, P. J., August 4, 1924. For reasons which need not be entered here, but which an inspection of the record of this case will reveal in abundant measure, the court is of the opinion that plaintiff's motion for judgment non obstante veredicto cannot be sustained. However, a careful reading of the same record convinces us that a new trial should be awarded. Unfortunately, plaintiff did not file a motion for a new trial. In these circumstances, we think that we are warranted in exercising the extraordinary power