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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
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.
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.
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
Harvey A. Gross, for petition.
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
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
required by said court, with your petitioner's signature as surety thereon."
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."
* * *
"On September 2, 1922, in accordance with said arrangement as made at bar in open court your petitioner did sign his name to and become surety on the recognizance of said M. W. Wallace, the same being found in Recognizance Book No. 24, page 334; and did sign his name to and become surety on the recognizance of said Charles Shultz, the same being found in Recognizance Book No. 24, page 335; and did sign his name to and become surety on the recognizance of said Eugene Onney, the same being page 337. Said Recognizance Book being found among the records in the office of the clerk of the courts of said found in Recognizance Book No. 24, county."
"On October 27, A. D. 1922, the prosecution aforesaid, with the consent of said court, was again continued to January sessions, 1923, then and there being held on the first Monday of January, being the first day of January, A. D. 1923, and the three defendants aforesaid were again required to renew their aforesaid recognizances for their appearances at said January term of court."
"Your petitioner was again permitted by said court to become surety on the several recognizances of said three defendants in the same amount as had been previously required for their appearance at the January sessions of court, and the moneys aforesaid deposited by your petitioner were permitted to remain with the clerk of said court as additional security an said recognizances."
"The recognizances entered by said three defendants are found in Recognizance Book No. 24 aforesaid, on pages 373, 374 and 375, and are in the sum of
"On January 1, 1923, the prosecution aforesaid, with the consent of said court, was again continued to April sessions, 1923, then and there being held on the third Monday of April, being the 16th day of April, A. D. 1923, and the three defendants aforesaid were again required to renew their aforesaid recognizances for their appearances at said April term of court."
"Your petitioner was again permitted by said court to become surety on the several recognizances of said three defendants in the same amount as had been previously required for their appearance at the April sessions of court, and the moneys aforesaid deposited by your petitioner were permitted to remain with the clerk of said court as additional security on said recognizances."
"The recognizances entered by the said three defendants are found in Recognizance Book No. 25, on pages 37, 38 and 39, and are in the sum of five hundred ($500.00) dollars each, as required by said court, with your petitioner's signature as surety thereon."
"On April 18, 1923, the prosecution aforesaid, with the consent of said court, was again continued to August sessions, 1923, then and there being held on the fourth Monday of August, being the 27th day of August, A. D. 1923, and the three defendants aforesaid were again required to renew their aforesaid recognizances for their appearances at said August term of court."
"Your petitioner was again permitted by said court to become surety on the several recognizances of said three defendants in the same amount as had been previously required, for their appearance at the August sessions of court, and the moneys aforesaid deposited by your petitioner were permitted to remain with the clerk of said court as additional security on said recognizances."
"The recognizances entered by the said three defendants are found in Recognizance Book No. 25, on pages 101, 102 and 103, and are in the sum of five hundred ($500.00) dollars each, as required by said court, with your petitioner's signature as surety thereon."
"On August 27, A. D. 1923, said prosecution was tried in said court, and the said William T. Sprenkel, M. W. Wallace and Eugene Onney were acquitted and the said Charles Shultz was found guilty in manner and form as he stood indicted."
“On August 28, A. D. 1923, said court, per Ross, Judge, sentenced the said Charles Shultz to serve a term of six months in the county jail, pay a fine of ten ($10.00) dollars and pay the costs of prosecution, and that he stand committed until the sentence be complied with, but that upon payment of the costs and the fine within a period of ninety days, or giving security to pay the same in ninety days from the above date, the sentence of imprisonment is suspended."
The petition further avers "that the said M. W. Wallace, Charles Shultz and Eugene Onney, by appearing in said court for trial on August 28, 1923, have fully complied with all the terms and conditions of their several recognizances into which they had entered for their appearances at the several terms of said court, and that your petitioner has been fully discharged of and from all liability as surety on said several recognizances." The petition further avers "that neither the said M. W. Wallace, Charles Shultz and Eugene Onney, or either of them, are interested directly or indirectly in the fifteen hundred ($1500.00) dollars deposited as aforesaid, and that no part of said moneys belong to either of said defendants, but that all of said moneys be long to your petitioner and are his own private property."
ed in the petition; that the Act of May 12, 1921, P. L. 548, regarded the moneys deposited with the said clerk of the courts in said cases as money of the defendants, and avers that the records showing that Charles Shultz, one of the defendants, was sentenced on the 28th day of August, 1923, "to serve a term of six months in the county jail, pay a fine of ten dollars and pay the costs of prosecution, and that he stand committed until the sentence be complied with, but that on payment of the costs and fine within a period of ninety days, or giving security for the payment of the same within ninety days from that date, the sentence is suspended," has not complied with the said sentence in that he has not given security for the payment of said costs within ninety days, nor has he paid the said costs, the money so deposited as bail for said Charles Shultz is subject to a deduction of the sum of $512.35, amount of costs unpaid.
The demurrer further states that Purd R. Smith had deposited the money in the City Bank of York, Pennsylvania, on the day on which the same was paid into this court, to wit, September 20, 1922, and remained in said bank until the said bank was declared insolvent and was liquidated by the banking commissioner of the State of Pennsylvania; that said liquidation is not completed and that the said moneys have not been paid out as yet by the state banking commissioner; therefore the respondent is unable to comply with the order of the court or the request of said petitioner, and asks that the petition be dismissed at the costs of the petitioner.
No depositions were taken in support of either the petition or the demurrer, and the court is left to stand upon the facts as they appear in the indictment, the petition and the demurrer.
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
for their appearance at subsequent courts. It was not taken in lieu of proper bail upon the recognizances, but as a further guarantee for the reason that the petitioner, acting as surety on the recog
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.
proper surety, but to support the proper American Insulation Co., Inc. v. Best
Practice-New trial on court's own
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