Opinion by
Mb. Justice Dean,As required by act of June 1, 1889, the state board of revenue commissioners assessed upon the county of Philadelphia for the year 1891, a personal property tax of $837,282.18. The act of 30th of March, 1811, made it the duty of the auditor general to settle the accounts between the commonwealth and counties in these words: “ All accounts between the commonwealth and any person or persons, body politic or corporate, as well as those with the officers of the revenue, as other persons intrusted with the receipt, or who have or hereafter may become possessed of public money, also the accounts of all persons having claims on the commonwealth, except as are hereinafter excepted, shall be examined and adjusted bjr the auditor general according to law and equity.”
In pursuance of the authority thus conferred, the auditor general, on the 19th of January, 1892, settled and adjusted the personal property tax against the city and county of Philadelphia for the year 1891, as follows :
Amount of tax, . . $837,282.18
Deduct treasurer’s commission, $8,372.82, $828,909.36
Paid into state treasury, .... 527,241.47
Due commonwealth, . . $301,667.89
From this settlement the county appealed to the court of *555common pleas of Dauphin county, specifying as objections to the settlement: (1) No settlement of this character against the city and county of Philadelphia was authorized by law, either against them jointly or severally. (2) The same objection as the first, except reversing the order in which defendants are named as parties. (3) The settlement did not credit defendant with $447,844.26, which was applicable on the account for said tax. (4) That if there were any indebtedness to the commonwealth on account of said tax, it had been fully paid, either directly or indirectly, into the state treasury. (5) That the said tax had been assessed, collected and paid by the county of Philadelphia to John Bardsley, the treasurer of said county, who by law was the agent of the commonwealth to receive the same ; that by the laches, unlawful acts, and negligence of the commonwealth’s officers, he was permitted to retain the money in his hands, and by him it was embezzled and lost, and therefore, even if said county was responsible for same when received by Bardsley, it was lost by the negligence of the commonwealth, and the county is relieved from payment.
On hearing of the appeal, under act of 1874, without a jury, the court, holding that the county alone was answerable for the personal property tax,«permitted an amendment, striking from the record the city as one. of defendants, and this disposed of the first objection. As to the second, alleging direct payment, there was no evidence, except that $150,000 had been paid the 18th January, 1891, on the personal property tax for the preceding year, and this had properly been credited to the county on another suit by the commonwealth for that tax. The fourth objection was only supported by evidence tending to show, the county treasurer had applied on other indebtedness of his to the commonwealth $185,000 of the school fund of the city of Philadelphia. But, as there was no evidence the commonwealth’s officer knew from whence the money came, and, as to credit it in this suit on the personal tax account would only be a second misappropriation of the school fund, the court refused to allow such credit.
Objections to the settlement not specified in the appeal were raised, but the court, on unquestioned authority, ruled that the hearing in the common pleas was limited to matters specially set out in the appeal, and framed a judgment against the county on the following statement:
*556Balance due commonwealth on settlement
of auditor general, .... $301,667.89
Interest from April 20,1892, to April 20,1893, 18,100.07
Attorney general,..... 15,083.39
Judgment, .... $334,851.35
Before the judgment was formally entered, the attorney general consented to the filing of the 5th specification, raising the questions as to whether Bardsley, when he received the money, was the agent of the commonwealth, and the effect of the alleged negligence of the commonwealth’s officers on the liability of the county. The court, following its decision, which we have, at the present term, affirmed in No. 29, May term, 1893, (No. 303, September term, 1891, of the common pleas,) in a suit between the same parties, overruled the 5th objection and entered the judgment heretofore set out. From this judgment the county appeals to this court.
All of the assignments of error except the 18th have been in substance passed upon and overruled in the case already mentioned. The 18th alleges, the court erred, in view of the evidence, in allowing interest and attorney general’s commission on the balance due on settlement of the.auditor general.
The 16th section of the act of 1889 directs: “ That one third of the net amount of tax based on the return of property subject to taxation for state purposes .... that is collected and paid into the state treasury by a county .... shall be returned by the state treasurer to such county for its own use in payment of the expenses incurred by it in the assessment and collection of said tax.”
The plain intent of the act is, that, before the county is entitled to its one third, the whole amount must be paid into the state treasury. The whole amount of tax to be paid into the state treasury for 1891 was $828,909.36; the one third of this is $276,303.12; of this whole amount, the county actually paid into the state treasury $527,241.47, leaving, unpaid, $301,667.89; if this had also been paid in, the county would have been entitled to an immediate return of $276,303.12; and the commonwealth would have retained for her own use $25,364.77. The court below entered judgment against the county.for the full amount of the balance due at settlement, *557$301,667.89, and, in addition, interest on the whole balance, $18,100.07, and attorney general’s commission on the whole balance, $15,083.39.
Wo think the computation of interest and attorney general’s commission against the county on the whole balance does more than equity to the commonwealth. Many of the circumstances calling for a modification of the judgment in No. 303, September term, 1891, are absent in this case ; the defaulting county treasurer was in office not five months of the year 1891; the neglect of the commonwealth’s officers to enforce quarterly returns and payments could only relate to a single quarter of that year, and whatever loss may have resulted to the county from the preceding year’s laxity cannot be carried forward and imputed to the commonwealth the next year; for eight months after Bardsley was out of office the county had opportunity for investigation and ascertainment of its exact liability. Nevertheless, it chose to contest by appeal payment of the whole balance settled against it, and for that reason ought to pay such interest and commissions as the commonwealth can equitably demand. The act of 1811, however, by express terms confers equitable powers on the auditor general in making the settlement,, and although, by the mere fact of appeal, questions of interest and commissions become new matters of adjudication for the court, they are to be imposed according to “ law and equity ” as if they had been part of the settlement. Then, why, in view of the hardship of this case, should the commonwealth have interest on $301,667.89, when only $25,364.77 was actually hers ? If the whole sum had been paid, it was her duty to at once return to the county all of it except this comparatively small part; she could not legally have used more if it had been paid, therefore she lost no interest by its nonpayment. If the county had paid immediately after the settlement the $25,364.77, would the commonwealth have brought suit against the county for $276,303.12, added interest and commissions for the mere purpose of paying the principal back to the county? If such suit had been brought, would equity have added the additional penalties ? The conclusiveness of the settlement is conceded; the technical right of the commonwealth at law, to collect the exact balance shown by the settlement, cannot be denied, but the equity in imposing a penalty upon the county *558for not handing over to the commonwealth $276,803.12 to be immediately handed back to the county, it seems to us, does not follow, therefore we modify the judgment thus:
Balance on settlement, .... $301,667.89
Interest from April 20, 1892, to October 2,
1893, on $25,364.77 commonwealth’s
share of balance,..... $2,156.73
Attorney general on $25,364.77, . . $1,268.24
Amount of judgment to be entered, $305,092.86
of which $276,303.12 is to be returned to the county.
To this extent the 18th assignment of error is sustained; all the other assignments of error are overruled, and the judgment 'of the court below, as modified, is affirmed.