ings. We feel justified, therefore, in assuming that his earning capacity was small. Possibly, if he had lived, he might, later in life, have developed a capacity for more lucrative employments. Probably not. Probably not. And, in estimating the loss to his estate caused by his death, we must be governed by probabilities, not possibilities. Probably, if the deceased had not been injured, and had lived to the common age of men, he would have left but little, if anything, to his surviving relatives. It seems to us that in such a case the damages recoverable for the benefit of surviving relatives ought to be comparatively moderate; that if, under our law, no more than $5,000 is recoverable for the negligent killing of a skilled workman, capable of earning a large income, when his death is immediate, a verdict of $8,000 for the death of an unskilled workman, capable of earning only a small income, must be regarded as clearly excessive, though, as in this case, he survives his injuries some six or seven months. Influenced by these considerations, we think a new trial must be granted, unless the administrator remits all over $5,000. If such a remittitur is entered upon the clerk's docket, the entry will be, motion and exceptions overruled.

PETERS, C. J., and LIBBEY and HASKELL, JJ., dissent.

MCCLEARY v. ALLEGHENY COUNTY. (Supreme Court of Pennsylvania. Oct. 1, 1894.) COMPENSATION OF SHERIFF.

Sp. Act 1872, fixing the pay of county officers of Allegheny county partly in salary and partly in fees, is repealed by Gen. Act 1876, and amendment of 1883, passed pursuant to Const. art. 14, § 5, and providing for payment of all county officers in counties containing over 150,000 inhabitants by salary only; and the compensation of the sheriff of such county is governed by. the latter act. Bell v. Allegheny County, 24 Atl. 209, 149 Pa. St. 381, distinguished.

Appeal from court of common pleas, Allegheny county.

Action by William H. McCleary against the county of Allegheny to recover salary as sheriff. Judgment for defendant, and plaintiff appeals. Reversed.

D. T. Watson, Walter Lyon, Charles H. McKee, and John F. Sanderson, for appellants. N. S. Williams, for appellee.

DEAN, J. The plaintiff is sheriff of Allegheny county. He was elected at the general election in 1890, and entered upon the duties of his office the first Monday of January, 1891. Acting on the assumption that his office was a salaried one under the act of June, 1883 (a supplement to the general act of 1876), and that he was not entitled to any of the fees taxed by the fee bill for the sheriff, he kept an itemized monthly account of all fees earned and received by him, and promptly paid those received each month into the county treasury, and on the

second Monday of each month demanded from defendant his monthly salary for the previous month. For the first seven months, he earned and paid into the county treasury, fees, $20,763.33. After deducting pay of sheriff's deputies and clerks, there still remained a net balance to the county's favor, for the seven months, of $8,550.02. The act before noticed purports to be an act fixing salaries of all county officers in counties containing over 500,000 inhabitants, and directs that the sheriffs of such counties shall be paid an annual salary of $15,000. Under the decennial census of 1890, Allegheny county had a population of 551,959. The sheriff claimed that under this act the county should pay to him one-twelfth of $15,000 each month. While admitting the office was salaried one, the county denied that the amount of the salary was fixed for Allegheny county by the act of 1883, but alleged it was determined by the special act of March 6, 1872, passed for Allegheny county before the adoption of the new constitution. By this act the salary of the sheriff was $6,000 and mileage. While the court below evidently was of opinion that the sheriff's salary was $15,000, as fixed by the later act, yet, believing that the law, as decided by this court in Bell v. Allegheny County, 149 Pa. St. 381, 24 Atl. 209, ruled the case against plaintiff, it entered judgment on demurrer for defendant. As a consequence, we have this appeal by plaintiff.

The record does not show what would have been the annual compensation of the sheriff at a salary of $6,000 and mileage. It may be safely assumed the whole would not have amounted to $15,000, otherwise he would have had no motive in making claim under the act of 1883. The stand taken by the county, in effect, avers the source of his compensation is a mixture of the two systems, salary and fees. One of the griev ances of the people before the adoption of the constitution of 1874 was the large compensation of county officers in counties having a large population. This (see Debates of Constitutional Convention, vol. 8, pp. 304, 332) was especially prominent in Philadelphia and Allegheny counties, where, it was alleged, the receipts from fees were out of all proportion to the services rendered or responsibilities entailed. So it was declared in section 5 of article 14 that "in counties containing over one hundred and fifty thousand inhabitants, all county officers shall be paid by salary, and the salary of any such officer and his clerks, heretofore paid by fees, shall not exceed the aggregate amount of fees, earned during his term, and collected by or for him." This section was a mandate to the legislature to provide by law a salary for all county officers in counties whose population made them subject to the constitutional provision. Perot's Appeal, 86 Pa. St. 335. Therefore the legislature passed the act of March 31, 1876 (P. L. 13), entitled "An

act to carry into effect section 5, article XIV, of the constitution relative to the salaries of county officers, and the payment of fees received by them, into the state or county treasury, in counties containing over hundred and fifty thousand inhabitants." The first section of the act enacts: "That in all counties in this cominonwealth, containing over one hundred and fifty thousand inhabitants, all fees limited and appointed by law to be received by each and every county officer therein elected, by the qualified voters of their respective counties, or appointed according to law, or which they shall legally be authorized, required or entitled to charge or receive, shall belong to the county in and for which they are severally elected or appointed, *** and none of said officers shall receive for his own use or for any use or purpose whatever, except for the use of the proper county *** any fees for any official service whatsoever." The second, third, and fourth sections of the act then specify in elaborate detail how the accounts of the fees shall be kept and verified. The fifth section declares that: "All county officers within the counties to which this act applies, * * * and their several deputies and clerks, shall be paid for their services by fixed and specified salaries, which shall be a charge upon the treasury of the county to which each shall respectively belong, to the extent of the fees collected and paid in by each ofhcer respectively, or earned where fees are chargeable upon the county treasury." The sixth, seventh, eighth, ninth, tenth, and eleventh sections relate to the adjustment of the salaries of the officers and clerks where the fees do not reach the amount of salaries, and provide that the county commissioners and comptrollers shall constitute a board for supervision and adjustment, and further provide for an appeal from their decision to the court of common pleas. The twelfth section fixes the annual , salary of the sheriff in counties containing over 300,000 inhabitants at $15,000; in those under 300,000 and over 250,000, at $6,500; in those under 250,000 and over 150,000, the same amount was fixed for the sheriff, but the salary was put at a lower figure than in the second classification for some other of the county officers. Section 15 enacted that the salary so fixed should be in lieu of all fees and mileage now received. Sections 16, 17, and 18 provide that certain officers shall be paid quarterly, who shall be deemed county officers, and also when the act shall take effect. The plain command of the constitution in section 5, art. 14, to the legislature, was to fix by law salaries for county officers in counties containing over 150,000 inhabitants. That in obedience to this command the act of 1876 was passed, we think no lawyer now doubts, or ever has doubted. After the census of 1880, on 11th of May, 1881, there was a supplement to the act of

1876 passed, which modifies the classification, so as to make a class between 300,000population and 500,000. Then came the act of June 13, 1883 (P. L. 113), entitled "An act to fix the salaries to be paid county officers in counties containing over five hundred thousand inhabitants, being a supplement to an act approved 31st March, 1876, entitled 'An act to carry into effect section 5, article XIV, of the constitution, relative to salaries of county officers *** in counties containing over one hundred and fifty thousand inhabitants.'" The act contains but two sections. "Section 1: Be it enacted: that in counties containing over five hundred thousand inhabitants, the annual salaries of county officers shall be as follows, namely: Of the sheriff, fifteen thousand dollars;" and further, along with the sheriff's, a schedule of the salaries of all other county officers. Then section 2 particularizes all the salaries to be paid under the act of 1876, so far as relates to counties containing over 300,000 inhabitants, and expressly repeals so much of said act as embraces that class, and further directs that the supplement shall only affect officers elected after its passage. By the census of 1890, Allegheny county had a population of 551,959, so that, as far as population is concerned, it came within the terms of this supplementary act, and within the terms of the unrepealed provisions of the original act of 1876.

But it is argued the act of 1876 does not apply to Allegheny county, because all the county officers of that county were salaried under the provisions of the act of March 6, 1872, relating to Allegheny county; and the former, being a general affirmative statute, does not, without positive repugnancy, repeal the particular or local statute. That this is a settled rule of construction cannot be questioned; and although it is manifest the constitution of 1874 sought to enforce uniformity of compensation of county officers in counties of the same class, the end must be attained by laws which leave no doubt of their intent to repeal local laws not in conformity with the general law. The rule of construction on this subject has been stated in Johnston's Estate, 33 Pa. St. 511, where it is held, following Harcourt v. Fox, 1 Show. 520, an affirmative statute introductive of a new law on the same subject does imply a negative of the former law, if they are repugnant. Or, as stated in Dillon on Municipal Corporations (section 54), for which he cites cases in our own and many other states: "It is a principle of very extensive operation that statutes of a general nature do not repeal by implication charters and special acts passed for the benefit of particular municipalities; but they do so when this appears to have been the purpose of the legislature. If both the general and the special acts can stand, they will be construed accordingly. If one must give way, it will depend upon the supposed intention of the

on which the statutes are founded. One is passed to strike down the fee system, with its abuses; the other clings to and nourishes it. In the Bell Case, as argued, both statutes accomplished the same end, that sought for by the fundamental law,-compensation wholly by salary. In the case before us, if affirmed, the worst feature in the fee system, sheriff's mileage, will be retained. In the opinion of this court, delivered by Justice Heydrick, in Bell v. Allegheny County, supra, it is assumed throughout that the question was whether a local salary act was impliedly repealed by a general salary act passed since the adoption of the constitution. The paper books give no intimation that the compensation of that officer was partly fees. In Com. v. Grier, supra, President Judge Ewing distinguishes that case from Bell v. Allegheny County, because, in Bell's Case, the salary of the county treasurer had been definitely fixed without any fees at the date of the adoption of the new constitution. It is suggested now, by appellee's counsel, that the county treasurer, under another local act,that of 1872,-was entitled to receive one dollar fee for each printed bond in license cases. Whether the preparation and printing of this bond was intended to be an item of expense to be thus charged for, or a fee for services, is not clear. But, however this may be, this court and all others hear and decide cases on the issues presented of record. The judgments in them are authority for what is passed on and decided. They are not precedents for issues not raised until two years after final judgment. Bell v. Allegheny County is the law of that case and all others like unto it. It is not authority in the cases of other county officers where the contention is on radically different facts.

It is not

clear to us, from the computation of fees earned and received, that the whole of plaintiff's claim is allowable; therefore the judgment of the court below sustaining the demurrer is reversed, at costs of appellee, and the record is remitted, that the cause may be proceeded in to final judgment.

VON BONNHORST v. ALLEGHENY COUN-
TY.
(Supreme Court of Pennsylvania. Oct. 1, 1894.)
RECORDER OF DEEDS-COMPENSATION.

The salary of the recorder of deeds is governed by the act of 1876 and the supplement of 1883, fixing the amount at $10,000 annually. Appeal from court of common pleas, Allegheny county.

Action by George M. Von Bonnhorst against the county of Allegheny to recover salary as recorder of deeds. Judgment for defendant, and plaintiff appeals. Reversed.

D. T. Watson, Walter Lyon, Charles H. McKee, and John F. Sanderson, for appellant. N. S. Williams, for appellee.

DEAN, J. The plaintiff was elected recorder of deeds for Allegheny county on 4th November, 1890, and was sworn into office first Monday of January, 1891. For the first seven months of that year the fees belonging to the county, and received and earned by him, amounted to the sum of $34,587.25. Deducting the amounts payable to his deputies and clerks, the balance in favor of the county was $19,902.50. The plaintiff claimed salary for the seven months, $5.833.33%, being seven-twelfths of an annual salary of $10,000, under the general act of 1876, and the supplement of 1883. The defendant demurred, averring that plaintiff's salary was fixed by the act of 1871 at $4,000, and this was all he could claim at law. By the act of 3d of April, 1873, in addition to the salary allowed by the act of 1871, the recorder was entitled to fees in certain cases. The learned judge of the court below sustained the demurrer, and entered judgment for defendant, believing his decision was in accord with Bell v. Allegheny County, 149 Pa. St. 381, 24 Atl. 209. We do not think that case rules this one, and have given our reasons therefor in McCleary v. Allegheny County (in an opinion filed this day) 30 Atl. 120. Therefore the judgment sustaining the demurrer is reversed, at costs of appellee, and judgment is entered for plaintiff.

McGUNNIGLE v. ALLEGHENY COUNTY. (Supreme Court of Pennsylvania. Oct. 1, 1894.) CLERK OF COURT-COMPENSATION.

The salary of clerk of county courts is governed by the act of 1876 and its supplements, fixing the amount at $5,000 annually.

Appeal from court of common pleas, Allegheny county.

Action by David K. McGunnigle against the county of Allegheny to recover salary as clerk of the courts of oyer and terminer and quarter sessions. Judgment for defendant, and plaintiff appeals. Reversed.

D. T. Watson, Walter Lyon, Charles H. McKee, and John F. Sanderson, for appellant. N. S. Williams, for appellee.

DEAN, J. The plaintiff is clerk of the courts of oyer and terminer and quarter sessions of Allegheny county, and, as a county officer, claimed he was entitled to be paid, under the act of 1876 and its supplements, an annual salary of $5,000. The defendant demurred to the claim on the ground that plaintiff's compensation was fixed, by the act of 6th of April, 1871, at $3,000, and he could lawfully claim compensation only under that act. His claim covered salary for the seven months ending 31st July, 1891, during which time the fees earned and received by the county amounted in gross to $20,036.84. After deducting amounts payable to his deputies, there was a balance in favor of the

county of $5.171.24. His claim for the seven months was $2.916.66%. In addition to the $3,000 salary allowed by the act of 1871, the act of 6th of March, 1872, allowed the clerk of quarter sessions certain fees. The learned judge of the court below, being of opinion that this case was ruled by Bell v. Allegheny County, 149 Pa. St. 381, 24 Atl. 209, sustained the demurrer, and gave judgment for defendant. We think this case is not ruled by that, as appears by our opinion in McCleary v. Same Defendant (herewith filed) 30 Atl. 120. If the office of clerk of the courts had been compensated wholly by a salary, the judgment in this case would have been right; but, as a considerable part of the compensation is made up of fees, Bell v. Allegheny County is not authority. Therefore, the judgment sustaining the demurrer is reversed, at costs of appellee, and judgment is entered for plaintiff.

1. The amount paid by an administrator to his bondsmen for becoming his sureties is not chargeable against the decedent's estate.

2. The amount paid by a trustee, appointed to sell decedent's land in partition, to his bondsmen, for becoming his sureties, is not chargeable against decedent's estate, though the trustee was the administrator thereof.

Appeal from orphans' court, Dauphin county; J. W. Simonton, Judge.

Proceedings for the settlement of the accounts of William H. Eby, as administrator of the estate of Elizabeth G. Eby, deceased, and as trustee appointed to sell the real estate of said deceased. To certain credits in his account Maurice C. and Fanny M. Eby excepted, and their exceptions were sustained. William H. Eby, as administrator and as trustee, appeals. Affirmed.

L. W. Hall, for appellant. J. E. Patterson, for appellee.

MCCOLLUM, J. We cannot ascertain from the paper books what compensation the appellant received as administrator or trustee. He filed two accounts, in one of which he claimed credit for $110, paid to a corporation for becoming his surety as administrator, and in the other he claimed credit for $1,530, paid to it for becoming his surety as trustee. The sum so paid amounted to 11⁄2 per cent. on all moneys received by him as administrator, and on all moneys realized by his sale of the real estate. As it is not alleged that the compensation he received for his services was less than the customary allowance to trustees, we may reasonably conclude that the sums he paid to his surety, and with which he seeks to charge the estate, are in addition to such allowance. The commissions paid to an administrator or other trustee are

intended as compensation for the responsibility involved in the acceptance of the trust, and for services rendered in the administration of it. The law contemplates, and the courts award in the form of commissions or otherwise, proper remuneration for both. But there is no precedent in our decisions, nor warrant in the law, for charging the estate for services rendered, or time and money expended, in procuring the bond which the trustee is required to give. The ability to give this bond is in the nature of a qualification for the office. The execution and approval of the bond constitute a condition precedent to acceptance of the responsibilities and entrance upon the duties of the trust. There is a broad and plain distinction between a claim for services rendered and money expended in execution of a trust and a claim for labor and expenditures incurred to enable a person to become trustee. Public officials, who are required to give bonds for the faithful performance of their duties as such, do not furnish them at the expense of the county, state, or nation; nor should trustees who are required to give them do so at the expense of the estate or trust fund. Strictly speaking, there is no apparent reason why the latter should furnish bonds at the expense of the estate, and the former should furnish them at their own expense. The law does not so discriminate between them. In either case the bond is given to enable the principal obligor to hold a position of trust, and to secure the proper performance of the duties which pertain to it.

It is probable that this litigation is due to the comparatively recent legislation which enables certain corporations to become sureties. But the privilege thus granted to them does not increase the compensation of an administrator or trustee, or in any manner affect the liability of the estate to him. The law on the subject of compensation to trustees is the same now as before the legislation referred to. We regard the language of Judge Ashman in Wilson's Estate, 1 Pa. Co. Ct. R. 509, as applicable to our question, and we therefore quote it in this connection. He said: "When an administrator accepts his office, he impliedly asserts his ability to fulfill its obligations, among which the first in order is the entering of security. He also impliedly admits the adequacy of the compensation which the law has affixed to the performance of his duties. Why a compensation which has hitherto been supposed to pay for all services does not cover a service which is so personal to the accountant that until he has rendered it he could do no official act and claim no official pay, we are unable to see. If the accountants in the case in hand were unable to obtain security. they were ineligible to become administrators; if they chose to incur expense in order to qualify, they did so presumably because the office was worth the outlay."