author: Mr. Justice Gordon

text:
    Vetter’s Appeal.
    1. Where, by the express terms of a lease for one year, provision is made for the extension of said lease beyond said term, if the lessor should consent thereto, and after the lapse of the year the lessee remains in possession without any dissent on the part of the lessor, the assent of the lessor to such occupancy will be presumed.
    3. Kent may issue not only from lands and tenements corporeal, but also from the personal property necessary for their proper enjoyment.
    3. Mickle *. Miles, 7 Casey 20, followed.
    4. A. leased a certain planing mill, together with the machinery and fixtures therein, to B. Subsequently B.’s creditors issued execution against all the personal property in said mill, including the machinery and fixtures. A. claimed the whole of said personalty as his property, whereupon the sheriff demanded and took from B.’s creditors a bond of indemnity and then sold the property. The proceeds of sale being paid into court, A. claimed the whole amount, as landlord of B., for rent of the planing mill in arrear. Held, that A. was entitled to the proceeds of the chattels which belonged to B., but that his conduct in setting up a title adverse to B., as to the machinery and fixtures, estopped him from any right to participate in the proceeds thereof, his only remedy in respect thereof being an actiori. of trespass against B.’s creditors and the sheriff.
    October 31st 1881.
    Before Sharswood, O. J., Mercur, Gordon, Trunkey and Sterrett, JJ. Paxson and Green, JJ., absent.

      Appear from the decree of the Court of Common Pleas No. 1, of Allegheny eounfnj: Of October and November Term 1881, No. 260.
    This was an appeal by Jacob Vetter, from a decree of said court, dismissing liis exceptions to a report of an auditor distributing a fund in court, being the proceeds of a sheriff’s sale of personal property under an alias fi. fa. issued upon a judgment obtained by William Beilstein for use of Jacob Vetter against Michael Simon.
    The material facts of the case were as follows: By virtue of said writ of execution the sheriff levied upon certain personal property in the possession, of the defendant found upon separate premises used as a planing mill, a lumber yard and a dwelling-house. Thereupon one George Reineman served notice on the sheriff, claiming that he owned all the personal property thus levied upon. The sheriff thereupon demanded and received a bond of idemnity from the plaintiff for 05,000, with two sureties, upon which bond judgment was entered, and the sheriff then on February 27th 1880, sold the property, and, by leave of the court, paid into court the net-proceeds, $1,160.28.
    Before the auditor appointed to distribute this fund, George Reineman claimed the same as landlord of the said planing mill and dwelling-house, for rent in arrear due to him by the defendant in the execution Michael Simon, bis tenant. In support of this claim, Reineman produced two leases from bimself to Simon, both dated January 8th 1877, one leasing for the term of one year, for the yearly rental of 02,500, the said planing mill, “ with all machinery and steam power and use of personal property, such as patterns, &c., fixtures, &c., now belonging to said George Reineman and on the said premises, said mill, &c., situated at the corner of Anderson and Robinson streets, Allegheny city; said Michael Simon also to pay all taxes assessed thereon for 1877, and if this lease is extended after the first year, also to pay the taxes for the years following; also to have the use of three horses, three wagons, said Simon to feed and take good care of them.” The other lease was for two dwelling-houses at the yearly rental of 0250. Both leases contained the following provision:
    “ It is further agreed between the parties hereto, that should the said party of the second part continue to occupy the said tenement after the expiration of the term above limited, by consent of the said party of the first part, without entering into any further or other agreement, then the amount of rent, terms of payment and other covenants and agreements, hereinbefore mutually agreed upon shall be continued as applicable to such further term as the said parties may continue to occupy the relation of landlord and tenant.”

      The fund was also claimed by Joseph Tetter, the plaintiff in the execution, who resisted Reineman’s claim on the following grounds:

      First. — Because, having claimed the goods as his own, Reineman was estopped from claiming the proceeds of the goods for rent.
    It was shown that Reineman brought an action of trespass against the sheriff for the seizure of the goods, which action is still pending and undetermined.

      Second. — Because the relation of landlord and tenant did not exist at the date of execution, levy and sale between Reineman and Simon.

      Third. — That if the relation of landlord and tenant did exist at the time of levy and sale, it existed, as claimed by Reineman, under the extension of the agreements which he put in evidence; and as these agreements include personal property, separate and apart from the realty, no warrant of distress could have issued, and, therefore, the landlord cannot claim the fund in a case like this, where he could not have distrained.
    The auditor awarded the fund to Reineman, upon his claim as landlord for rent in arrear, holding (1) that on the authority of Mickle v. Miles, 7 Casey 20; s. o., 1 Grant, 320, overruling or qualifying Commonwealth v. Oontner, 6 Harris 447, the fact that the leases included personal property, used in connection with the demised premises, did not affect his claim on the fund for rent; and (2) that Reineman was not estopped from claiming as landlord by reason of the fact that he had filed a claim with the sheriff as owner of the personal property sold in execution, and was in fact the owner thereof.
    Exceptions filed to this report were overruled by the court, and the report confirmed. Whereupon Jacob Tetter took this appeal, assigning for error the said decree.

      A. Blaheley (with him H. O. Bowers), for the appellant.—
    Reineman failed to prove that the relation of landlord and tenant existed between him and Simon at the date of the levy and sale. The leases produced were dated in 1877 for one year. They provided for the contimianee of the tenancy after the term by consent of the lessor; but there was no evidence of such consent, which, we contend, must be shown affirmatively.
    By his claim upon the sheriff as owner of the goods levied upon (for which he afterwards brought an action of trespass against the sheriff, which is still pending), Reineman was estopped from claiming rent out of the fund" on the ground that the goods belonged to Simon. By such claim, the plaintiff, Tetter, was compelled to suffer detriment by giving bond to the sheriff. Thus all the elements of estoppel exist: Anderson’s Appeal, 4 Yeates 88; Miranville v. Silverthorn, 12 Wright 149; Helser v. McGrath, 2 P. F. S. 534; Waters’ Appeal, 11 Casey 523.

      Doty {Kennedy with him), for the appellee. —
    -The auditor found that Simon entered into possession by virtue of the leases. The mere holding over, in the absence of dissent by the lessor, was enough under the provision for their continuance by consent.
    The alleged estoppel is immaterial, for even if the goods did belong to Reineman, the fund was produced by the sale of whatever interest the defendant had, or might have had, therein, and was applicable first to the payment of rent in arrear.
   Mr. Justice Gordon

delivered the opinion of the court, November 7th 1881.

As the leases of Reineman to Michael Simon expressly provide for their extension beyond the term of one year, if the lessor should consent thereto, the exception of the appellant founded on a supposed want of such consent, comes to nothing. Simon continued to occupy the premises, and as Reineman did not dissent to such occupancy his assent must be presumed. Certainly, that was a matter for themselves to settle, and if they were satisfied with the arrangement, no third party can be heard to complain.

So, that rent may issue, not only from lands and tenements corporeal, but also from tlie personal property necessary for their proper enjoyment, is settled by the case of Mickle v. Miles, 7 Casey 20 ; and, indeed, a proposition so obvious ought never to have been doubted.

On the other hand, the court below made a mistake when it awarded to Reineman the proceeds of that part of the property sold on the Beilstein writ, which he, Reineman, claimed as his own. By this claim he compelled Vetter, the use plaintiff, to protect the sheriff by a bond of indemnity: by it be then held, and still does hold, both Vetter and the officer as trespassers, and by it he sets up a title adverse to the proceedings which has brought the money into court, hence, on the authority of Bush, Bunn & Co.’s Ap., 15 P. F. S. 363, ho cannot be permitted to take any of that money. But it is alleged that lie is entitled to take as landlord : we answer, yes, so far as the money was made from the tenant’s goods, for they were distrainablo for the rent due, and that fact, under the Act of Assembly, gives tlic landlord the right to claim, from the sheriff, the money made from them. But not so as to the landlord’s own goods, for they are not subject to distress, therefore, unless he can claim the money as made from his own property, he cannot claim it at all, for, se judice, it was not the property of the tenant.

But, as we have already seen, by the case above cited, as owner of the goods he was not entitled to take the money made from them by the writ in the sheriff’s hands; his position of hostility to that process barred any claim that he otherwise might have had to receive its proceeds.

The case, then, stands thus : Reineman, -as landlord, is entitled to any money raised from the sale of the goods of Simon, the tenant, and Vetter is entitled to the proceeds arising from the property claimed by Reineman.

The decree of the court below is now reversed and set aside, and it is ordered that a redistribution be made in accordance with the foregoing opinion; and it is further ordered that the appellee pay the costs of this appeal.


source: Caselaw Access Project

author: Mr. Justice Sterrett

license: Public Domain

text:
    Clohessy versus Roedelheim, Bing & Co.
    -A-0*' °f March 30th 1860 (Pamph. L. 346), -which provides that *n actioDS ^01’ the sa^e any spirituous, vinous or malt liquors the fac|¡ that such liquors or admixtures thereof were impure, vitiated or adulterated shall constitute a good and sufficient defence, applies only in those cases where the quality or value of such liquors has been impaired by the impurity, vitiation or adulteration.
    3. Where in an action to recover the price of liquors sold the defendant sets up as a defence the fact that the liquors have been sold to him in a county where the local option law was at the time in force, it is not enough for him to show an agreement or contract to sell in that county. He must also prove the actual consummation of the sale by the delivery of the goods there.
    3. A., living in a county where the local option law was in force, visited the store of B. & Co. in another county, where such law was not in force, and there selected various liquors which he desired to buy, and which were set apart for him. At his request these liquors were subsequently shipped to his residence by B. & Co, marked with the initials of the firm and labelled “ Glassware.” The freight was paid by A., who received the goods by virtue of certain written orders sent to him at his request by B. & Co. In an action by B. & Co. against A. to recover the price of said liquors, Held, that the sale and delivery had taken place in the county wherein B. & Co. did business, and not in that wherein A. resided; that B. & Co. had an undoubted right subsequently to mark and ship the goods in whatever manner A. might direct, that there was no evidence that B. & Co. had knowingly aided A. to evade or violate the local option law in force in the county in which A. lived, and that therefore the plaintiffs were entitled to judgment.
    October 31st 1881.
    Before Sharswood, O. J., Mercur, Gordon, - Trunkey, Sterrett and Green, JJ. Paxson, J., absent.
    Error to the Court of Common Pleas No. 1, of Allegheny county : Of October and November Term 1881, No. 76.

      Assumpsit, by S. Boedelheim, S. Bing and II. Schloss, partners trading as Boedelheim. Bing & Co., against Michael Clohessy to recover the sum of $4-78.95, being the price of certain liquors furnished by plaintiffs to the defendant.
    On the trial, before Coi.lier, A. J., the following facts appeared : The defendant Clohessy was in 1874 the proprietor of a small hotel at Irwin, Westmoreland county, in which county the local option law was then in force. During the spring and summer of that year, defendant at various times purchased of plaintiffs, who carried on business in the city of Pittsburgh, Allegheny county, the various liquors to recover the price of which the present suit was brought.
    As to the place where, and the manner in which, those liquors were purchased the evidence of the plaintiffs and defendant was wholly contradictory. Plaintiffs testified that the defendant came to their store at Pittsburgh, examined and chose the liquors which he wanted, and that they were then and there set apart for him, being subsequently forwarded, at his request, to the railroad station at Irwin, Westmoreland county. Defendant on the contrary testified that one of the plaintiffs had called on him at his hotel in Irwin and that lie had then and there ordered the liquors, plaintiffs agreeing and undertaking to forward them from their store in Pittsburgh to Irwin.
    The fact was undisputed that the goods were at defendant’s request forwarded to him marked “ B. & B.,” and labelled “ Glassware.” Defendant paid the freight upon them, receiving them at Irwin by virtue of sundry written orders sent to him at his request by plaintiffs in tlie following form :

      “ Freight Agent, Irwin Station, Pa.
    “ Dear Sir: — Please deliver unto bearer 1 bbl. and 1 box glassware, marked It. & B., at your station, and oblige
    “ Yours,
    “ Boedelheim, Bing & Co.”
    Defendant testified that he liad adopted this plan of having the goods sent to him, so that he might escape appearing to be the consignee thereof.
    Defendant also gave evidence tending to show that the liquors in question, or at least some of them, were not pure, but were adulterated.
    Defendant requested the court to charge, inter alia,
    2. That any impurity, vitiation or adulteration, to the least extent, would fall within the meaning of the law which prohibits a recovery for such liquors; therefore, if the jury find from the evidence that there was the least impurity, vitiation or adulteration, their verdict should he for the defendant.

      Ans. “If tbe jury believe, that there was any impurity, vitiation or adulteration, which impaired the quality or value of any of the liquors in suit to the least extent, the • plaintiffs cannot recover for the liquors so impaired.” Exception. (First assignment of error.)
    3. That the term impure means the introduction of any substance foreign to and not essential in the manufacture of pure liquors. Therefore, if the jury find that the liquors sued for contained any impurity, the plaintiffs cannot recover.
    Ans. “Refused.” Exception. (Second assignment of error.)
    4. That if the jury find that the contract of sale and purchase was made in the county of Westmoreland, while the-local option law, which prohibited the sale of intoxicating liquors in that county, was in force, and in violation thereof, the plaintiffs cannot recover.
    Ans. “ Refused.” Exception. (Third assignment of error.)

      7. That if the jury believe the testimony of the plaintiffs themselves, that the liquors were shipped in their own names to Larimer or any other point in the county of Westmoreland, and that the goods were then delivered to the defendant in violation of the local option then in force, the plaintiffs cannot recover.
    Ans. “ Refused. The plaintiffs expressly deny that they delivered the goods to the defendant in Westmoreland county.” Exception. (Fourth assignment of error.)
    8. That if the jury find from the facts as stated by the plaintiffs, that the liquors were shipped to any point within the county of Westmoreland, in the plaintiffs’ names, and that the plaintiffs authorized the delivery to defendant in the county of Westmoreland, at the request of defendant, to knowingly aid him to evade the prohibitory law then in force in that county, then and in such case the plaintiffs cannot recover.
    Ans. “ Refused.” Exception. (Fifth assignment of error.)
    9. That if the jury find from the evidence that the plaintiffs, in the salo and delivery of the liquors sued for, knowingly aided and abetted the defendant in any way to evade or violate the liquor law then in force in the county of Westmoreland, then, and in such case, the plaintiffs cannot recover.
    Ans. “ Refused.” Exception. (Sixth assignment of error.)
    The Court charged, inter alia, as follows :
    The defendant alleges that the goods he bought were liquors; that at the time he purchased them the local option law, as it is commonly called, was in force in Westmoreland county, and that because of that law no one could sell liquors without a license, and a license could not be had. He also alleges that he contracted for these goods in Westmoreland county, and that the plaintiffs agreed to deliver them to him there, and he contends, if you believe that, it makes a defence to the whole of plaintiffs’ claim.
    It is my duty to say to you that although this defendant got the plaintiffs’ liquors, and has not accounted for them, if they contracted to sell him the liquors, and agreed to deliver them to him in IV estmoreland county, they cannot recover. . . .
    But, on the other hand, if the goods were selected in Pittsburgh, or, on the'question of delivery, if Clohessy himself asked that they be delivered in this way, because he did not want them to appear in his name, and requested that they be shipped in the plaintiffs’ name, and he be given a card by which he could got them from the railroad company, and that card was given or mailed to him as each article was shipped, ho to pay the freight, then it was a delivery in Pittsburgh, and not in Westmoreland county, and the act would not apply.....
    The defendant, as he has a right to do, interposes, as a defence, the Act of 1860. He claims he ought not to pay for these liquors, because there is an act which says, that whenever impure, vitiated or adulterated liquors are sold, lie need not pay for them. That is correct. The question arises whether these liquors, or any of them, were impaired, impure, vitiated or adulterated. If they were to the least extent, so as to impair their quality or value, that is enough, under the law .... you determine whether any of the liquors were impure, vitiated or adulterated in the least degree so as to impair their quality or value. If they were, the plaintiffs cannot recover for the liquors in that condition.
    Verdict and judgment for the plaintiffs in the sum of $272, whereupon defendant took this writ of error, assigning for error, inter alia, the answers of the court to the defendant’s points above cited.

      Weir (with whom were Gibson and MoKenna), for the plaintiff in error.
    The Act of March 29th 1860 (P. L. 346), provides that “in all actions for the sale of spirituous, vinous or malt liquors, or any admixture thereof, it shall be competent for the defendant in every such case to prove that such liquors or admixtures thereof were impure, vitiated or adulterated, and the proof thereof being made it shall amount to a good and legal defence to the whole of plaintiffs’ demand.” Under this act the sole question for the jury is whether the liquors are impure, vitiated or adulterated. It can make no difference whether the quality or value of the liquor is or is not impaired. The evidence clearly shows that plaintiffs combined with defendant to evade and violate the local option law. This precludes them from recovering: Bank of U. S. «. Owens, 2 Peters 538; Coppell «. Hall, 7 Wall 558; Bank «. Lanier, 11 Wall. 369.
    “ Tbe principle of public policy is that no court will lend its aid to a man who grounds his action upon an immoral or illegal act”: Mitchell «. Smith, 1 Binney 110; Siedenbender «. Charles’ administrator, 4 S. & R. 151; Biddis «. James, 6 Binney 329 ; Maybin «. Coulon, 4 Dallas 298; Duncanson «. McLure, 4 Ibid. 308; Badgley «. Beale, 3 Watts 263; Kepner «. Keefer, 6 Ibid. 231; Wagonseller «. Snyder, 7'Ibid. 343 ; Clippinger v. Hepbaugh, 5 W..& S. 315; Filson «. Himes, 5 Barr 452; Columbia Bank and Bridge Co. «. Haldeman, 7 W. & S. 233; App «. Coryell, 3 P. & W. 494; Edgell «. McLaughlin, 6 Wh. 176; Brua’s Appeal, 5 P. F. Smith 295; Fowler «. Scully, 22 Ibid 456; Stephens «. Monongahela National Bank, 7 Norris 157.

      Josiah Cohen, for defendants in error. —
    The true object of the Act of Assembly, invoked by plaintiff in error, was not to prevent admixture of liquors, for, by the terms of the act, “ admixtures ” thereof were recognized, but that such admixtures should not be impure, vitiated or adulterated.
    The spirit of the whole charge of the court is in strict accordance with the meaning of the Act of Assembly cited. There are no judicial interpretations of it of record, but surely the act never designed more than to prevent such admixtures which, as the learned judge says, “ impair the quality or vaT/ue ” of the liquor “ in the least degree.” In any event the qualifying words, “ so as to impair their value in the least degree,” as used by the court below in connection with the terms “impure, vitiated or adulterated,” were intended to work out simple justice by instructing the jury that every admixture did pot necessarily render the mixture impure, vitiated or adulterated.
    There was no evidence to show that plaintiffs had conspired with defendant to evade or violate the local option law. The place of delivery of the goods was the place of sale: Shriver & Co. «. Pittsburgh, 16 P. F. S. 446 ; Garbracht«. Commonwealth, 11 Pitts. Leg. Journ. (N. S.) 220 ; Finch «. Mansfield, 97'Mass. 89. Here the question of the place of delivery and of sale was fairly submitted to the jury, and found not to be within the limits of Westmoreland county. There was therefore nothing illegal in the contract.
   Mr. Justice Sterrett

delivered the opinion of the court, November 14th 1881.

One of the several defences, made in the court below, was grounded on the Act of 29th March 1860, which, inter alia, provides that “ in all actions for the sale of any spirituous, vinoits or malt liqnors, or any admixtures thereof, it shall be competent for the defendant, in every such ease, to prove that said liquors or admixtures thereof were impure, vitiated or adulterated ; and proof thereof being made, shall amount to a good and legal defence to the whole of the plaintiff’s demand : ” Purdon, 919 pi. 61.

Testimony was introduced by the defendant below, tending to prove that at least some of the liqnors purchased from the plaintiffs wTere of the character described in the act; and, in the two points, covered by the first and second assignments of error respectively, the court was requested to charge, 1st. “ That any impurity, vitiation or adulteration, to the least extent, would fall within the meaning of the law which prohibits a recovery for such liquors; therefore, if the jury find from the evidence that there was the least impurity, vitiation or adulteration, their verdict should be for the defendant.” 2d. That the term impure, means the introduction of any substance, foreign to and not essential in the manufacture of pure liquors. Therefore, if the jury find that the liquors sued for contained any impurity, the plaintiffs cannot recover.” The latter proposition was refused; and, in answer to the first, the learned judge instructed the jury that if they believed “ there was any impurity, vitiation or adulteration, which impaired the quality or value of any of the liquors in suit, to the least extent, the plaintiffs cannot recover for the liquors so impaired.” In view of the mischief intended to be remedied by the act, we think the construction given to it, in the foregoing answer, in connection with the general charge, is entirely proper. The act was not intended to prevent every admixture of liqnors, for by its very terms “ admixtures thereof ” are recognized. The penalty of the act is aimed at such impurity, vitiation or adulteration of liquors or admixtures thereof as impairs either their quality or value. This, of course, forbids the introduction of all poisonous or noxious ingredients, because these necessarily impair the quality, if not also the value of the liquor. The amount found by the jury, as compared with the plaintiffs’ demand, indicates that, under this branch of the defence, part of their claim was excluded by the jury.

Another ground of defence was, that the liquors were sold and delivered by plaintiffs to defendant in Westmoreland county, in violation of the local option law then in force in that county. On that subject the testimony was somewhat conflicting, and it was therefore a question of fact for the jury, whether the sale was consummated by delivery in Allegheny, or in Westmoreland county. That question was fairly submitted with proper instructions as to what constituted a sale ; and the jury were told that if they believed the liquors were sold in Westmoreland county, tlieir verdict should be for the defendant. In addition to the instructions thus given in the general charge, two of the plaintiffs’ propositions, complained of in the last two assignments, were affirmed. In each of these an important phase of the question, as suggested by the testimony, was clearly and correctly presented, and there was no error in affirming them. The verdict, rendered under the full and explicit instructions thus given in the general charge, and in answer to the plaintiffs’ eighth and ninth points above referred to, establishes the fact that the sale was made in Allegheny county, where the local option law was not in force.

The third assignment is not sustained. It was not enough for defendant to show that an agreement or contract to sell was made in Westmoreland county; Before he could claim that plaintiffs had forfeited their right to recover the price of their goods, in consequence of having sold them in W estmoreland county, contrary to law, it was incumbent on him to prove a sale consummated by delivery in that county — such a sale as would render them amenable to indictment there. As already observed, the. instructions on this subject were clear and adequate. The point, as presented, was rightly refused: Garbracht v. Commonwealth, 11 P. L. J. (N. S.) 220.

Eor the reason giveii by the learned judge, there was no error in refusing to affirm the point specified in the fourth assignment. It improperly assumed, as a conceded fact, that the liquors were delivered by the plaintiffs below in Westmoreland county. This they expressly denied, and it thus became one of the main questions of fact for the jury.

The fifth and sixth assignments are not sustained. The propositions recited therein, and which the court refused to affirm, are based on the testimony as to an understanding- between the parties, in pursuance of which the goods, purchased by defendant below, were marked “R. & B.,” and shipped to Westmoreland county, so that his name would not appear as consignee, &c. If the sale was actually made in Pittsburgh, neither the manner in which the goods were consigned to the purchaser, nor the purpose for which they were thus consigned, could possibly change the place of sale and delivery. Assuming it to be true that they were marked and shipped in the manner and for the purpose testified to by the defendant below, the plaintiffs, in so doing, violated no law. If they sold and delivered the liquors- to him at Pittsburgh, as the jury found, they had an undoubted right to mark and ship them to him in any manner he might direct. To hold that, by so doing, they knowingly aided him to evade or violate the liquor law, then in force in Westmoreland county, would be wholly unwarranted. Aside from the defence based on the act of 1860, the only question that could legitimately arise on the evidence in the case, was whether the sale was consummated by delivery in Allegheny, or in W estmoreland county. That question, as we have seen, was fairly submitted to the Jury, and found in favor of the plaintiffs below.

Judgment affirmed.

Chief Justice Shabswood dissented.


author: Mr. Justice Trunkey

text:
    McCarthy versus De Armit.
    1. In an action of trespass against the mayor and police officers of a city for an unlawful arrest and imprisonment, the burden of proof is upon the defendants to show that the arrest and imprisonment were by authority of law.
    2. A, peace officer who arrests and imprisons one upon reasonable suspicion of felony, will be excused from liability even though it appear afterwards that in fact no felony has been committed.
    3. The gist of an action for false imprisonment is the unlawful detention, and the general rule is that malice will be inferred in such cases from the want of probable cause, so far at least as to sustain the action.
    4. If a peace officer wantonly arrests and imprisons an innocent man, he ought to be held liable in quite as heavy punitive damages as a private person would be fora causeless and malicious prosecution; but if without malice, and in the honest endeavor to arrest and bring a felon to justice, he arrests and imprisons an innocent person who is unjustly suspected, he will not be held liable therefor.
    5. If the mayor of a groat city, together with certain of his police officers, be sued for false imprisonment made in an effort to suppress riot and arrest a murderer, the evidence on the part of the defendants showing their good faith and the existence of probable cause, need not be very strong to shift the burden upon the plaintiff to establish want of reasonable cause and malice.
    6. Where a mayor or justice of the peace maliciously and without reasonable cause orders the arrest and imprisonment of a person for an alleged felony or breach of the peace, he will be held liable to the person thus arrested not only for compensatory damages but also for exemplary damages, proportioned to the wantonness and oppressiveness of Ms conduct.

      7. As a general rule all the defendants in an action of trespass are alike guilty ; each is liable for the damages sustained, without regard to the different degrees or shades of guilt. Hence the damages are not divisible, and the verdict should usually be against all the defendants for such sum as the most culpable ought to pay.
    8. However, in an action of trespass where intent must be considered, as against the mayor and police officers of a city for false imprisonment, if some of the defendants acted in good faith and others maliciously, and hence some are liable to exemplary damages and others not, the damages should be only compensatory to the plaintiff.
    9. Where in such an action the defendants are all liable for exemplary damages, but in different amounts, the jury should be instructed as regards such exemplary damages to assess them according to the acts of the most innocent of the defendants.
    October 31st 1881.
    Before Sharswood, C. J., Mercub, Gordon, Trunkev, Sterrett and Green, JJ. Paxson, J., absent.
    Error to the Court of Common Pleas No. 2, of Allegheny county: Of October and November Term 1881, No. 7.
    Trespass vi et armis, by Harry C. De Armit against William C. McCarthy, Solomon Coulson and five others, to recover damages for the alleged unlawful arrest and imprisonment of the plaintiff. The defendant, McCarthy, was mayor, and the other defendants were police officers of the city of Pittsburgh.
    On the trial, before Kirkpatrick, J., the following facts appeared :
    The great riots of 1877, in the city of Pittsburgh, were in the month of July. Eor several days prior to July 21st 1877, the employes of numerous railroads centering in the city had struck for higher wages, and as a means of enforcing their demands they organized themselves into regular companies on each road, and prevented the transportation of freight over any of the roads. Some passenger trains were allowed to run, but freight cars were not. This accumulated in the city hundreds of cars and vast quantities of property of all kinds belonging to shippers, and as each train was thus waylaid the trainmen joined the organized forces. No actual destruction of property or life happened until on Saturday, July 21st, when, on the Pennsylvania railroad, a regiment of soldiers from Philadelphia attempted to clear the tracks, so that freight trains might be sent east. A conflict occurred on that day between the trainmen and a vast body of persons there assembled and the troops, in which men were killed on both sides. Hundreds of workmen, in the excitement of the hour, sympathized in and joined, with the trainmen, while the “ tramps ” came in great numbers, no one knew from where or how. Saturday night was given over to riot; thousands of dollars’ worth of goods were burned or stolen, and the flames ruined depots and warehouses, and tracks and engines and cars. The mob broke open gun-shops, and, armed with weapons and cannon they paraded the streets and controlled the city. The Philadelphia troops were driven into the round-house, and there were attacked and besieged.
    In the Saturday battle the troops killed a young man by the name of De Armit, the brother of the plaintiff below. On Sunday morning these troops left the round-house, and were going out of the city towards the arsenal, when they were frequently fired upon. One man, known as “ Pat, the Avenger,” was known to have killed two, and was supposed to have shot more. On Sunday the citizens organized, and, with the help of some citizen soldiers and regulars, who were sent out by the general government, and other soldiers in charge of Governor Hartranft, peace in the city was compelled and the mob quelled.
    The excitement somewhat subsiding on Tuesday and Wednesday (July 24th and 25th), numerous arrests were made, but the chief criminal, “ Pat, the Avenger,” against whom the efforts of the police were directed, could not be found. The mayor received one or more anonymous letters informing him that' one of the De Armits, the brothers of the man who was shot by the troops, was Pat, the Avenger. He disregarded them, but one of his detectives, W. J. White, informed him that a reputable citizen, Bostwiek by name, had pointed out to him “ Pat, the Avenger,” and that it was one of the De Armits. The mayor directed White to investigate and see if this were true. While this investigation was going on, rumors pointed to a De Armit as “ Pat.”
    White was referred by Bostwiek to one Graham as the man who pointed out to Bostwiek “ Pat, the Avenger,” and said it was one of the De Armits. Graham, when visited, refused to tell what he knew, but referred White to one Dale as possessing all the necessary information. Dale was visited, and informed White that he was afraid to speak. White asked Dale if he knew the man, and he said, “I don’t like to say anything at the present time. I have got property here, and am afraid to ex-presa myself.” White asked him if the party didn’t live on Forty-eighth street. He said he did. He asked him if his name wTas De Armit, and he said, “ You are damn near it, I have nothing more to say,” and he walked away.
    As the result of investigation, the mayor directed the arrest of plaintiff. This was effected about midnight on Saturday, July 29th, at his house, by some of the policemen defendants, who were detailed by the chief of police for that duty. The plaintiff was lodged in a cell in the station house, where he remained over Sunday, closely imprisoned. On Monday morning he was taken before a judge on a writ of habeas corpus, and, at the request of Mayor McCarthy, was held for a further hearing. Dale testified that he had seen the man called “ Pat, the Avenger,” shoot two soldiers, but ho and other persons failed to identify the plaintiff as the culprit. On Monday afternoon Mayor McCarthy met one Leffler, who said he had seen “ Pat, the Avenger,” shooting, and was sure De Armit was. not the man. The mayor immediately notified the district attorney of this fact, and by the mayor’s advice De Armit was discharged the next morning, at the adjourned hearing, with a statement by the judge that the investigation showed that he was not “ Pat, the Avenger.”
    The plaintiff, in aggravation of damages, alleged accompanying circumstances of willful and uncalled-for abuse on the part of the policemen in making the arrest. He alleged that, first, four policemen walked up to his house, asked if lie lived there, and then said his brother was hurt and wanted to see him ; seeking thus to induce him to go out. This he refused to do, and, with oaths, the parties left. About one hour afterwards twelve or fourteen men came down the road towards his house, when he (De Armit) fired upon them. They then closed in on his house, called upon him to come out, kicked in his front door, held cocked revolvers to his head, and with profanity abundant, in the presence of his wife, arrested him and then brought him to the city, and not until after he was arrested would they tell him why he was wanted; that when brought to the watch-house he was placed in a filthy cell and became covered with vermin. This was all denied by the defendants.
    The plaintiff presented, inter alia, the following points :
    I. That to prevent a recovery in this action defendants must show probable cause for the arrest and detention of plaintiff. Ans. This point is affirmed. There was no warrant or process upon which the plaintiff was arrested, and it is plain the injury complained of was of that forcible and direct kind that unless it was maliciously done, under color of legal process, is remediable in an action of trespass. The ground of proceedings in the two cases are different. In the one plaintiff must show want of probable cause. In the other, this form and cause of action (arrest without information or wai’rant, viz., trespass), it is enough for him (the plaintiff) to prove the act of violence, and the defendant must justify it, if a private individual (not this case), by proving an offence actually committed and plaintiff guilty of it; if a peace officer or officers (this case), that he had reasonable ground, probable cause, to suspect the plaintiff to be concerned in the offence.
    10. That the probable cause to justify the arrest and detention of the plaintiff must be that which would justify any prudent and cautious man in the premises. Ans. “ This point is affirmed.”

      II. Malice in this action need not be specially proved on part of plaintiff. Ans. “ This point is affirmed; we have already so stated with the reasons for the same in detail in our answer to the plaintiff’s first point.”
    14. The testimony for defendant, if believed, does not disclose any ground of probable cause, and the verdict should be for plaintiff. Ans. “ This point is affirmed.”

      15. If the jury believe there were circumstances of outrage or oppression, either in the arrest of the plaintiff or his detention afterwards, by any of the defendants, the jury may give exemplary damages. Ans. “ This point is affirmed.”
    The defendants presented, inter alia, the following points: 8. That the probable cause operating on tlie mind and judgment of the mayor, William O. McCarthy, does not depend upon the actual state of the case, hut upon liis honest and reasonable belief at the time of the arrest. Ans. “ This point is refused.”
    5. That in this form of action, trespass vi et armis for false imprisonment, the law requires substantially the same allegations, proof of malice and want of probable cause, as in an action for malicious prosecution. Ans. “ This point is refused.”
    His Honor charged the jury, inter alia:
    “ These answers to the points, gentlemen of the jury, are of such a plain and unequivocal character that they cannot be mistaken, and will enable us to correct' ourselves or be reviewed by a higher tribunal if necessary. JBut whilst I have so stated in regard to the evidence, if believed, not constituting “ probable canse ” for the arrest, the evidence becomes important, and the jury should consider it in the light of estimating the amount that the plaintiff ought to recover.....It is for the jury to say, in view of all this evidence, what the recovery ought to be, whether merely nominal, more than nominal, or to what extent the plaintiff ought to have recovery here.....
    “ I should further say to you, as I do, that in this regard there will be a, distinction between William C. McCarthy, one of these defendants, and the officers making the arrest; 1 mean as to the wanton character of the arrest. If the officers exceeded their power, and if tlioy behaved wantonly, cruelly and recklessly', and after a method that was unjustifiable, W. C. McCarthy would in no respect be responsible for such conduct on the part of the officers.”
    After the jury liad retired, they were sent for by the court, who further instructed them as follows:
    “ I instructed you that jrou could divide the verdict, assessing upon each the amount that yon thought lie ought to pay for his conduct in the premises. I now instruct you, that in that respect, upon reflection, I am satisfied there was error, that there can be but one verdict and one judgment in this case, and that whatever amount you render in this case must be rendered against tlie defendants as such. You understand me, not dividing or assessing it upon each separately, but in gross against tlie defendants, assessing against these defendants tlie amount which you think the most guilty of all ought to pay in tbe premises. I now instruct you that your verdict must be against the defendants jointly, making no distinction, for whatever amount you may think the one most responsible and most guilty ought to pay.
    Juryman. We are not at liberty to make a distinction between exemplary damages and any other damages ?
    By the Court. If I have not stated, I ought to state that you have the right to find exemplary damages if you think the act has been wanton, cruel and unjust. You have the right to find exemplary or punitive damages, so called. ■
    Juryman. In such case as that we divide the damages ?
    By the Court. No, sir; you simply assess whatever damages you find against everybody, you understand, as a whole. You cannot divide any damages.
    Juryman. The act contemplates exemplary damages as well as other damages?
    By the Court. It does.
    Verdict for the plaintiff, for $2,500, and judgment thereon. The defendants took this writ of error, assigning for error, inter alia, the answers to the plaintiff’s and defendants’ points above given, and the instructions of the court above quoted.

      D. T. Watson and M. Swartzwelder, for the plaintiffs in error. —
    The mayor, acting as such, is a quasi judicial officer, who is not responsible in a civil action for his errors of judgment, and if the arrest was ordered by him with the honest belief on his part that De Armit was concerned in the commission of the I felony, he would not be liable in this action. To maintain an laction against the mayor in such a case the plaintiff must prove malice.
    The proof in this case did fully establish the commission of a felony, and, taking into consideration all the surroundings, the mayor had reasonable ground to suspect or believe that De Armit was engaged in firing upon and killing some of the Philadelphia troops, and was justified in making the arrest on such well founded suspicion, without a warrant previously issued. The mayor was vested by Act of May, 1857, with all the powers and authority possessed by aldermen and justices of the peace, so far as regards the detection and punishment of felonies and misdemeanors, and to that extent was acting as judge.
    Our third point, that probable cause does not depend on the actual state of the case in point of fact, but upon the honest and reasonable belief of the mayor at the time of the arrest, should have been affirmed: Smith v. Ege, 2 P. E. Smith 421. The Court erred in their instructions as to damages: Little Schuylkill Nav. Co. v. Richards, 7 P. F. Smith 142.

      IVest MoMurray, and 8. Schoyer, Jr., for tbo defendant in error.
   Mr. Justice Trunkey

delivered the opinion of the court, November 21st 1881.

Prosecutions are presumed to have been properly instituted; and hence, to sustain ail action for malicious prosecution, malice and want of probable cause must both concur and be proved by the plaintiff: Walter v. Sample, 1 Cas. 275; Dietz v. Langfitt, 13 P. F. S. 234.

] Probable cause does not depend on the state of the case in point of fact, but upon the honest and reasonable belief of the party prosecuting. Among the numerous attempts to define it are, “ A reasonable ground of suspicion, supported by circumstances sufficient to warrant a cautions man in believing that the party is guilty of the offence;” and, “ A deceptive appearance of guilt arising from facts and circumstances misapprehended, or misunderstood, so far as to produce belief.” The substance of all the definitions is a reasonable ground for belief of guilt. Representations of others may be an adequate foundation for it, especially if made by those who have liad opportunities for knowledge, or who have made investigation: Smith v. Ege, 2 P. F. S. 419. lie who has probable cause, or in other words, reasonable grounds for belief of guilt, stands acquitted of liability : Travis v. Smith, 1 Barr, 234. This question must be judged by the circumstances existing at the time of the arrest for the offence charged; and it is immaterial that the prosecutor subsequently learned his mistake: Swain v. Stafford, 4 Ired. 392. The belief must be that of a reasonable and prudent man, else the most baseless prosecutions would be safe. But some allowance will be made where the prosecutor is so personally injured by the offence that he could not likely draw his conclusions with the same impartiality and absence of prejudice that a person entirely disinterested would deliberately »do. And all that can be required of him is that he shall act j, as a reasonable and prudent man would be likely to act under Nike circumstances: Cole v. Curtis, 16 Minn. 182. In Fisher v. Forrester, 9 Cas. 501, Woodward, J., said of the defendant who had commenced a prosecution which failed, doubtless he was greatly excited and not wholly without cause; and it is not strange that he was mistaken, in some particulars, in recounting the events of the moment. And he was not condemned for Ms mistakes.

What facts and circumstances amount to probable cause is a question of law. Whether they exist in any particular case is a question of fact. Where the facts are in controversy the sub-1 ject must be submitted to the jury, in which event it is the \ duty of the court to instruct them what facts will constitute probable cause, and submit to them only the question of such facts. This principle is well settled. If all the evidence is insufficient to establish probable cause the court shall so instruct the jury, for they are not at liberty to find a fact without evidence ; and if the admitted facts amount to probable cause, the court should direct a verdiqt for the defendant, even if his malice were clearly proved, jj

Malice in law exists títere an act is done wrongfully and designedly by one person to the injury of another. Prosecutions may be instituted and pursued with pure motives, but so regardless of the forms of law and judicial proceedings as to render the transactions illegal and malicious : Page v. Cushing, 38 Me. 523. Yet something more than mere legal or theoretical malice is requisite to sustain an action for malicious prosecution,. for it must be proved as a fact^ It may be inferred from the want of probable cause, and generally is, but its existence is a fact for the jury. . Where it is a just and proper inference from all the facts and circumstances of the case, upon all the evidence in the cause, that the defendant was not actuated by any improper motives, but only from an honest desire to bring a supposed offender to justice, the action will not lie, because such facts and circumstances disprove that which is of the essence of the action, namely, the malice of the defendant in pressing the charge: Vanderbilt v. Mathis, 5 Duer 304. When the prosecutor submits the facts to an attorney at law, who advises they are sufficient, and he acts thereon in good faith, such advice is often called probable cause and is a defence to an action for malicious prosecution; but in strictness, the taking of the advice of counsel and acting thereon rebuts the inference of malice arising from the want of probable cause. The law favors honest efforts to bring the guilty to justice, and where a citizen proceeds by complaint before a magistrate, though the prosecution be unwarranted in fact, if his motives were pure he will be protected.

The foregoing principles have been brought into view because most of them apply in the pending case. This action is against the mayor and his officers for false imprisonment, and in some respects it is by no means analogous to an action for malicious prosecution. In that the presumption is that the defendant is not guilty. In this, the act in itself is wrongful, and the burden is upon the defendants to prove that the imprisonment was by authority of law. The question of probable cause in trespass for false imprisonment is one of law, and upon principle there is no ground for diversity on this point. It was so treated in Burns v. Erben, 40 N. Y. (Hand) 463, and in Wakely v. Hart, 6 Binn. 316; and is sustained by tbe weight of authority in this country and in England.

The fact of felony, and reason for suspecting a particular person, justify his arrest by a private person. But a peace officer, who arrests one upon reasonable suspicion of felony, will be excused, even though it appear afterwards that in fact no felony had been committed. It may be expected that a felon will flee from justice, if an opportunity is afforded him, and that if he knows he is suspected he will do what may be in his power to obliterate the evidences of his crime. In those circumstances are found forcible reasons for prompt action in bis arrest. The public safety, and due apprehension of criminals charged with heinous crimes, imperiously require that such arrests should be made without warrant by officers of the law. “ Many an innocent man has been and may be taken up on suspicion; but tbe mischief and inconvenience to the public, in this point of view, is comparatively nothing; it is of great consequence- to the police of the country.” Burns v. Erben, supra; Rohan v. Sawin, 5 Cush. 281; Wakely v. Hart, supra; Cooley on Torts 174.

The gist of false imprisonment is unlawful detention, and the general rule is that malice will be inferred from the want of probable cause, so far at least as to sustain the action. Constables and other police officers, who arrest persons suspected of having committed felony, in actions for damages, should be allowed to defend upon like principles as a private person, who causes an arrest by a complaint on oath; for it is the duty of these officers to make such arrests. If an officer wantonly and maliciously arrests an innocent man, he ought to be liable in quite as heavy punitive damages as a private person would be for a causeless and malicious prosecution; but if without malice, and in the honest endeavor to arrest and bring a felon to justice, lie takes an innocent person, who was unjustly suspected, he should not suffer at all. And if the sheriff or mayor of a great city, or a justice of the peace, be sued for false imprisonment, made in an effort to suppress riot, or to arrest a murderer, the evidence on the part of the defendant showing his good faith, and the existence of probable cause, need not be very strong to shift the burden upon the plaintiff to establish want of reasonable cause and malice. It is of tbe utmost importance that these officers act promptly and fearlessly, as well as honestly, in such circumstances.

In the order for the plaintiff’s arrest, the mayor acted in his ministerial capacity, not liis judicial. No complaint had been made before bim; lie did not hear and determine. Many of the proper acts of a justice of the peace are ministerial. In the performance of these, if he wrongfully injure an individual, he would be liable the same as if he were not clothed with eertain judicial functions. If an officer fail to perform a ministerial duty of a purely public character, as the execution of a capital sentence, no private person would have a right of action against him. When the ministerial duty involves individual rights, the case is different. If a justice of the peace, without reasonable cause, maliciously orders the arrest of a person .for breach of the peace, or felony, he may be compelled to answer the injured party in compensatory damages, and, also, exemplary, proportionate to the wantonness and oppressiveness of his conduct. Otherwise the danger from the acts of reckless officers would be only less than the danger of holding honest and prudent officers liable in damages whenever they mistakenly arrested an innocent man.

In trespass all the defendants are alike guilty, each is liable for the damages sustained without regard to the different degrees or shades of guilt; the damages are not divisible, and the verdict should be for one amount against all the defendants, for such sum as the most culpable ought to pay. This rule has few exceptions. However, when exemplary damages are claimed against a defendant, his intent must be considered. Two persons may be liable, one for punitive damages, and the other only for compensatory. As where the plaintiff was arrested by a police officer, and another, one acting in good faith and the other maliciously, the true criterion of damages is the whole injury which the plaintiff sustained from the joint trespass. In such case, if the plaintiff means to get exemplary damages, he should proceed against the party which ought to be punished in that way: Clark v. Newsam & Edwards, 1 Exc. 130. Under the evidence in this case, the jury should have been instructed, as respects exemplary damages beyond compensation for the injury done to the plaintiff, to assess them according to the acts of the most innocent of the defendants, and if any defendant was not liable for exemplary damages, none should be included in the verdict, for the question was as to the motives of the defendants.

Having expressed our opinion upon the principal questions of law raised by the assignments of error, it remains to consider whether the jury were rightly instructed to render a verdict for the plaintiff, if the defendants failed to prove probable cause, or to disprove malice, the instruction was just.

lOn Saturday, July 21st 1877, a riot occurred in Pittsburgh, duriBg which more than twenty persons were killed and a vast amount of property destroyed. Eor ten days the community was considered in a dangerous condition, troops were juesent under the command of the Governor of the State, an extra force of police was employed, and a committee of public safety were meeting every day. At Forty-ninth street, near the cemetery, on Sunday morning, two soldiers were killed. The night before a brother of the plaintiff had been killed, as alleged, by the soldiers. Within a few days Mr. Bostwick told White, a detective officer, that James Graham, on Sunday, had pointed to a man and said, “Bostwick, there goes Do Armit, the man that shot those two soldiers at the cemetery.” White at once informed the mayor, who directed him to investigate in the neighborhood where the men were shot. He did so, and was informed that several citizens had seen the murderer, who left his gun at the house of Reardon, immediately after the shooting. Graham told him to go to Dale, who could give him the information wanted. Dale did not like to say anything, was afraid to express himself, and in answer to the question if the name was De Armit, said, “ You are — near it. I have nothing more to say,” and walked off. The officer found it difficult to get people to talk about it, they evaded, and appeared to be in fear; but all who said anything said the man was a De Armit, from the reports. The officer communicated what he learned to the mayor. These facts the jury could well have found, and doubtless would, had the opportunity been given. The fact of the felony is now admitted, and it was then notorious. By law, the mayor is the chief conservator of the peace in the city of Pittsburgh. Upon the verity of the testimony adduced by the defendants, the mayor had probable cause to suspect that the plaintiff had committed the crime. “ The condition of the community during the time covered by the testimony ” was material for him to consider with the fact that citizens appeared in fear, and evaded the inquiries of the detective officer. Probably, they feared the mob, or the murderer. This fact, also, would hear upon the apparent necessity of arresting both the De Armits at the same time. The facts, as they appeared at and before the giving of the order for the arrest, must control in determining if there was reasonable cause. Very often appearances are not tlie same after the event, as before.;

We think the facts hi this case more clearly show probable cause for the arrest, than did the facts in Smith v. Ege, 2 P. F. S. 419, for the prosecution. There the prosecutor employed detectives 'who were informed by the neighbors that suspicion rested upon the Smith family; a girl told them one of the Smith boys had said to her he committed the murder, and a knife said to.have belonged to the murdered man was found in the cabin of the hoys. Upon this information, complaint was made by Ege, the father and sons were arrested and committed to jail, and on a further hearing they were discharged. It was held, in an action by the father for malicious prosecution, that there was reasonable ground for belief of the guilt of the plaintiff and his sons.Where a high crime has been committed very stringent proof is not required to establish that the prosecutor had ground for reasonable belief that a suspected party was guilty. As already seen, peace officers may arrest upon suspicion of felony. A high officer, as the sheriff, may arrest a parly merely suspected of a capital offence. Suspicion is not belief. Probable cause for suspicion by a prudent and reasonable man, that a party committed a high crime, may not be sufficient to induce him to believe sucb party guilty. If tbe mayor bad good reason to suspect, it was bis duty to act, to the end that tbe felon should not escape.

W ere the evidence insufficient to establish probable cause, and such as to warrant a finding that the defendant, as mayor of the city, without malice, and with the single purpose of bringing the'murderer to a trial by due process of law, ordered the plaintiff’s arrest, the fact would be for the jury. Because the plaintiff was innocent of the crime, it does not follow that the mayor was malicious.

An innocent man is unfortunate when he is suspected of having committed a high crime, and is deeply injured when imprisoned upon suspicion; but be has no redress, if his injury came through the proper aetiouof a public officer while in the faithful performance of his duty.”\

Tbe questions set out in the tenth, eleventh and twelfth assignments were so foreign to the issue that they ought to have been overruled. Though asked in cross-examination, they were not admissible as tending to discredit tbe witness.

Judgment reversed, and venire facias de novo awarded.


author: Mr. Justice Green

text:
    Young’s Appeal.
    1. Where an erroneous decree has been entered by the Orphans’ Court and nothing has been done in pursuance thereof, said court lias discretionary power either under the act of October 13th 1840, § 1, Pamph. L. 1, or independently of that act subsequently to correct the error in its original decree.
    2. The fact that a decree of the Orphans’ Court has been affirmed on appeal by the Supreme Court, does not preclude said first named court from subsequently reviewing and vacating the decree.
    3. A testator, by his will, devised and bequeathed his whole estate to his three executors, A., B. and C., upon certain trusts. Said executors after-wards filed a joint account, showing a cash balance in their hands. As a matter of fact A. never had any of the assets in his hands, the sole charge of the estate being undertaken by B. Pour years after the filing of the account A, died intestate. At the time of his death B. was entirely solvent, and trusted and respected in the community. There was no reason to suppose that he had committed a devastavit, nor did A. nor any of the testator’s beneficiaries suppose that such was the case. B. continued to carry on the affairs of the estate for more than six years after A.’s death, with the knowledge of the testator’s beneficiaries, and without objection on their part. He then absconded, taking with him the assets of the estate. Three years afterwards A.’s administrator was cited to file an account, and it was sought to charge A.’s estate with the cash balance appearing from the joint account of the executors to be in their hands. Held, that under the circumstances of the case A.’s estate should not be so charged.
    October 31st and November 1st 1881.
    Before Siiarswood, C. J., M’erour, Gordon, Trunkey, Sterbett and Green, JJ. Paxson. J., absent.
    Appeal from a decree of the Orphans’ Oonrt of Allegheny county: Of October and November Temí 1881. No. 90.
    This ivas an appeal by James S. Young, administrator d. b. n. c. t. a., and substituted trustee of the estate of G.iison C. Lightcap, Sr., deceased, from a decree of the said court setting aside a former decree surcharging Maria Dempsey, administratrix of Samuel L. Robinson, executor and trustee under the will of said Gilson O. Lightcap, Sr., with a .certain sum, and confirming the account of said Robinson as executor filed by his said administratrix.
    Gilson C. Lightcap, Sr., died January 28th 1865. By his will he nominated as his executors his son Gilson O. Lightcap, Jr., Samuel L. Robinson and S. B. W. Gill. He directed his said executors to sell alL his real estate and to invest the proceeds, together with all his personal property, in safe and good securities, which securities he directed them to hold in trust for the benefit of bis wife and children in certain manner and form directed and provided by him. Letters testamentary were granted to the three executors named in the will, who thereupon proceeded to perform the duties laid upon them. They sold ail the testator’s real estate, executed joint deeds to the purchasers, received a portion of the purchase money in cash and took mortgages upon the properties sold for the residue.
    In 1866 said executors filed a joint account charging themselves with various sums, including the cash realized from the real estate sold, the whole aggregating 023,790.00. They credited themselves, inter alia, with the amount of the mortgages not yet collected and with divers others sums, aggregating 814,018.33. The balance, in cash, remaining in their hands appeared to be §4,170.37.
    Although Robinson joined in the deeds for the real estate and in the above account, no assets of the estate actually came into bis bands. Gill attended to all business matters, received the amount of the various mortgages as they fell due, and entered satisfaction of record thereof.
    On August 5th 1870, Robinson died intestate, and letters of administration were granted upon his estate to his widow, Maria Robinson now Dempsey. At the time of Robinson’s death his co-trustee and executor, Gill, was an attorney-at-law in good standing and universally trusted and respected in the community. He continued after Robinson’s death as before to have sole charge of the assets of Gilson C. Lightcap, Sr.’s estate. In September 1877, Gill absconded, taking with him all the cash and valuables of the said' estate. He was subsequently dismissed by the Orphans’ Court from his office of executor and. trustee.
    In May 1878, the Orphans’ Court, on petition of one of the children of Gilson C. Lightcap, Sr., directed Gilson C. Lightcap, Jr., and Maria Dempsey, administratrix of Samuel L. Robinson, to file separate accounts of the estate of Gilson C. Lightcap, Sr. Maria Dempsey thereupon filed the following account:
    ■ “Accountant does not charge herself with any portion of the estate of the said Gilson O. Lightcap, deceased, no portion of said estate having come into her hands as administratrix of said Samuel L. Robinson, the balance shown by the former account of the executors of said Lightcap having been received and retained by S. B. W. Gill, the co-executor of said Samuel L. Robinson, with the knowledge and consent of the devisees of the testator, and no property or effects of said estate having come into the hands of said Samuel L. Robinson, since the filing of said former account, and the said Samuel L. Robinson having died the 5th day of August, a. d. 1870.
    “ Accountant claims credit as follows :
    “ Paid Register Hoerr, filing and passing this account, . $8 00
    ' “ Balance due accountant,.....$8 00
    Mania Dempsey.”
    The account was confirmed nisi, but exceptions being filed thereto, the court, Hawkins, P. J., after argument, entered a decree surcharging the accountant with the cash balance shown by the former joint account, viz., $4,170.37, with interest thereon, but limiting the surcharge to the personal estate of Robinson.
    The children of Gilson C. Lightcap, Sr., took an appeal from this decree to the Supreme Court, assigning for error:
    1. The refusal of the court to surcharge the accountant with the money collected by Gill, one of the executors, on the purchase money mortgages mentioned in the account, in addition to the surcharge of the cash balance shown by the account.
    2. That the court erred in limiting the surcharge made to the personal estate of said Robinson, deceased.
    After argument, the Supreme Court, being of opinion that the question as to whether the amount decreed against the accountant was or was not a lien against the real estate of Robinson, was not before the Orphans’ Court at that time, and would not properly arise until it was asked to make an order to sell said real estate, in their opinion, filed October 25th 1880, affirmed the decree, except the last clause, “ The foregoing surcharge is limited to the personal estate of Samuel L. Robinson,” which was reversed and the appeal dismissed.
    In 1880 Gilson O. Lightcap, Jr., was discharged from the office of executor and trustee under his father’s will, and on October 25tli 1880 letters of administration d. b. n. c. t. a. on said estate were granted to James S. Young, wbo was subsequently also appointed trustee of said estate.
    On November 17th 1880, said James S. Young, administrator and trustee, petitioned the Orphans’ Court for a writ of fieri facias with which to levy, out of the lands and tenements of the estate of said Robinson, the sum decreed against his estate.
    Pending this petition Maria Dempsey, administratrix, presented a petition setting out all the foregoing facts and praying the court to review and reverse the decree surcharging her. Answers were filed, and after argument the prayer of the petition was granted, Hawkins, P. J., filing the following opinion:

      “ Further investigation and reflection have led to the conclusion that this court committed error in surcharging the present accountant with the cash balance shown in the joint account which was filed by the trustees named in the will of G. C. Light-cap, deceased. Some of the reasons upon which this conclusion is based were not suggested by counsel at the first bearing, nor did they occur to the court until after the decree had been made. In view of the appeal taken from the decree to the Supreme Court and its affirmance, can this error of surcharge be now corrected by this court ?
    “ The appeal to the Supreme Court was taken by the except-ants, and was based solely on the refusal to surcharge the securities mentioned in the joint account and on the interposition of the bar of the statute of limitation as respected deceased’s real estate. It had in fact no reference to the surcharge of the cash balance. That part of the decree was in the exceptant’s favor. The accountant might have, hut has not, taken an appeal from it. But she may yet take an appeal and have the affirmed decree reversed as respects the surcharge. It follows that the question of whether the surcharge was properly made was not before, and was not decided by, the Supreme Court. In such case Parker’s Appeal, 61 Pa. St. 478, is authority for bolding that the Orphans’ Court has jurisdiction to entertain a hill of review. But it is claimed that the petition is insufficient, because it does not allege (1) error on the face of the decree, nor (2) new, or (3) after-discovered evidence, as required by the Act of 13th October 1840. The authority of Parker’s Appeal, supra, is a complete answer to this claim. But if it were not, the Orphans’ Court has discretionary power, outside of the proviso of that statute, to grant relief: Gillen’s Appeal, 8 W. N. C. 499; Whelan’s Appeal,. 70 Pa. St. 410 ; and the circumstances of this case are such as to justify the exercise of that discretion. Nothing having been done under the decree no one can be injured by setting it aside in the interest of justice.
    “ The evidence shows that Gill was the trusted and confidential adviser of testator in his lifetime, and that he became and continued to be, until he absconded, the acting trustee, after testator’s death, with the kpowledge and without objection on the part of the le¿ atees; that while Mr. Robinson joined in the sales of real estate made, and in his account filed with his co-trustees, he never in fact received any part of the assets, had no reason to suspect Gill’s honesty, and was never called upon by the legatees to interfere in the administration of the trust, and that it was not until long after Gill had absconded, and more than nine years after Mr. Robinson’s death had elapsed, that any proceedings were instituted, by the legatees against Mr. Robinson’s personal representatives in assertion of his liability for the assets embraced in the joint account.
    “ There can be no doubt that the joint account was a confession of joint liability on the part of the trustees, and, was there nothing more, would be conclusive. But subsequent events changed the relations of the parties as respected the liability of the trustees. On the death of Mr. Robinson the office of trusteeship devolved upon the survivors, and it thereupon became their duty to collect from his personal representative whatever assets were in fact in his hands at the time of his death : Bunting’s Appeal, 4 W. & S. 469; Ray v. Doughty, 4 Blackf. 115 ; Beattie u Johnstone, 8 Hare 169; Goble v. Andrews, 1 Green Oh. 66; Schenck v. Schenek, 1 O. E. Green 182; Act of May 3d 1855, § 2 (P. L. 415, Purd. Dig. 1426); Brown’s Appeal, 12 Pa. St. 337; Seibert’s Appeal, 19 Id. 49; Stearly’s Appeal, 3 Gr. 270; Jones’ Appeal, Id. 169. Had a citation been issued at the instance of the survivors, the only answer that could have been made would have been that no assets had come into the hands of the deceased trustee, but that all the assets were already in the hands of the survivors. A citation would, therefore, have been useless and unnecessary, so far as the trust estate was concerned, and accordingly no citation was issued, nor account filed.

      “ Had an account showing no assets in Mr. Robinson’s hands in fact been filed before Gill absconded, it would doubtless have been confirmed absolutely; for the legatees knew that Gill had all the assets in his hands and they had implicit confidence in him. Such [Confirmation would have been an adjudication of the fact that Mr. Iiobinson had no assets in his hands. Would it have been conclusive? There is no doubt that it would as respected the surviving trustees and those legatees who were sui juris ; and there are strong reasons why it would as respected the son and testator, who was then a minor. One manifest purpose in G. O. Lightcap in appointing trustees was, through them, to preserve the corpus of his estate during the lifetime of his widow for his children at her death. By virtue of their appointment the trustees became invested on the testator’s death with “ all the legal title and authority” which might become necessary to effectuate that purpose. The children were neither necessary nor proper parties to any suit by or against the trustees which involved the preservation of the trust estate. A judgment for or against the trustees alone would, therefore, be conclusive on the children without regard to their minority at the time of its rendition, in the absence of fraud or gross negligence on the part of the trustees. This will be conceded of the three trustees during the lifetime of Mr. Iiobinson. It is also true of the survivors, if it be true, as it undoubtedly is, that on the death of Mr. Iiobinson “all the legal title and authority” which liad been invested in three, ipso facto, devolved upon them by operation of law. The estate of Mr. iiobinson thereupon become responsible as debtor for any devastavit which has been committed by him and for any assets which were in his hands when he died (Hooker v. Woods, 33 Pa. St. 466), but was not responsible for acts done or committed by his co-trustees subsequent to his death: Stephen’s Appeal, 56 Pa. St. 409. If he had committed devastavit, or had assets in his hands, it was the duty of tiie survivors to apply the remedy, and they were responsible for its neglect. The children would have been no more proper nor necessary parties to any action bronght by the trustees in that behalf than for the recovery of assets in the hands of a stranger.
    “ The purpose of the 2d section of the Act of 3d May 1855, was similar to that of the 31st section of the Act of 24th February 1834, P. L. 78, Purd. Dig. 425. In both, that purpose was the regulation of succession, and of the duties incident to succession, in the office of trustees; the former Act relating to special, and the latter to ordinary administration trusts. In neither was the language expressly exclusive of the right of beneficiaries to intervene as parties in action for or against the trust estate, and yet in Drenlde v. Shannan, 9 W. 485, and Carter v. Trueman, 7 Pa. St. 315, it was held that such was the intent of the last mentioned Act (of 24th February 1834, § 31). There is no reason why there should be any difference in the construction of the two acts. But even without the Act of 1855 the children of testator would have no rightjto intervene, in the absence of collusion and fraxrd, as between Mr. Robinson and his co-trustees, or insolvency on the. part of the survivors: Alsager v. Rowley, 6 Yes. Jr. 719; Steins Appeal, 10 Pa. St. 119. It is not alleged that there was any collusion or fraud. And there is no evidence that at the time of Mr. Robinson’s death the survivors were insolvent. Indeed, there is every just ground of inference that at that time, and for several years after, Gill, in whose hands the assets actually were, could have satisfactorily settled his accounts, or have given satisfactory security, if he had been required. The estate of Mr. Robinson could no more be justly held responsible for Gill’s subsequent insolvency than for his subsequent acts as surviving trustee. It did not occupy any trust relation to the estate of G. O. Lightcap, deceased: Stephen’s Appeal, supra; Ilocker v. Wood, supra.
    “ If then the confirmation of an account filed by the personal representative of Mr. Robinson, before Gill absconded, would have been effective to protect Mr. Robinson’s estate, why should not the same state of facts and law which would have justified such confirmation be equally effective now ? The confirmation was simply the judicial conclusion from the facts which were represented by the account. The same facts ought now to lead to the same conclusion.
    “No new facts have arisen since Mr. Robinson’s death which can affect the liability of his estate to the trust. It is true now, as it was then, that he had committed no devastavit, had no assets in his hands, and his estate was not liable for the subsequent acts of his survivors. It is true now, as it was then, that the trust estate devolved upon the survivors; that all the assets were in their hands, where they belonged, and that they were solvent. It is true now, as it was then, that in the absence of collusion and fraud as between Mr. Robinson and his co-trustees, and insolvency upon the part of the survivors, testator’s children had no right of recourse against the deceased trustee’s estate, but that the surviving trustees had the exclusive right of action and were alone responsible to the legatees. There is no evidence tending to show that any devastavit had taken place prior to Mr. Robinson’s death. Certainly neither Mr. Robinson nor the legatees had any suspicion nor ground of suspicion that there had. As already stated, there is no room for doubt that at that time, and for several years afterwards, Gill could have settled his accounts satisfactorily, or have furnished sufficient security, had it been required. If the legatees thought otherwise they were guilty of gross negligence as well as gross injustice in failing to notify the administratrix of Mr. Robinson’s estate, and to institute proceedings against Gill in time. There is, then, nothing upon which to base a presumption that the devastavit took place in Mr. Robinson’s lifetime. He has not, therefore, been shown to Lave been in default.
    “ That Gill continued for more than six years after Mr. Robinson’s death to transact all the business, and handle all the assets of the estate, as acting trustee, with the knowledge and without objection on the part of the legatees, and that no proceedings were instituted against Mr. Robinson’s estate for more than nine years after bis death, is strougly pursuasive, if not conclusive evidence, that the legatees looked to Gill alone as the responsible trustee. They clearly have no equity against the estate of Mr. Robinson. Their loss is a misfortune which was in no sense the result of any default on his part, and no injustice can be done in declaring his estate free from liability. Mocker 9. Wood, supra; Haage’s Appeal, 17 Pa. St. 190; Ducommun’s Appeal, Id. 208, and Ilengst’s Appeal, 24 Id. 419, which were cited by exceptant’s counsel, do not sustain his view. Haage’s Appeal rules that where one survivor of three executors files an account In which he charges himself with balances shown in joint accounts, previously filed by him and Ms co-executors, the estate of his deceased co-executors becomes thereby released, and lie alone remains liable. Ducommun’s Appeal was not a case of survivorship. Ilengst’s Appeal is distinguished from the present case by the fact that the executor, whose estate was charged, had been guilty of gross negligence, that he had assets in his hands, and that his co-executor, who had previously removed from the state, was insolvent when he (the executor charged) died.
    “ It follows that, both on reason and authority, the decree of this court surcharging the present accountant with the cash balance shown in the joint account, filed by the trustees named in the will of G. O. Lightcap, deceased, was erroneous and should be set aside, and that the exceptions filed to the original account in this case should have been dismissed, and said account confirmed absolutely as filed.”
    A decree was accordingly entered vacating and setting aside the former decree of the court, dismissing the exceptions to the account and confirming the same absolutely. James S. Young, administrator and trustee, et al., thereupon took this appeal, assigning for error the granting of the review, the vacating of the original decree of surcharge, and the refusal to surcharge the accountant with the cash balance appearing by the joint account of the executors to be in their hands.
    ' Lewis MeMullen (with whom was J. T. Myler), for appellants.' —
    -A bill of review can only be bad as a matter of right pi case of after-discovered evidence or for error of law appearing in the body of the decree: Riddle’s Estate, 7 Harris 431; Hartman’s Appeal, 12 Casey 74; Green’s Appeal, 9 P. F. S. 238.
    A general allegation of error in the decree is not sufficient upon which to grant a re-hearing: Russell’s Administrators’ Appeal, 10 Casey 258 ; Act of October 13th 1840.
    It is not contended that the Orphans’ Court has not discretion to grant a bill of review ex gratia, when new evidence as to the facts upon which the decree was grounded, and that by due diligence it could not have been used at the original hearing, is set forth in the petition. Being in the nature of a new suit it is the right of the respondent to have new evidence set out fully in the petition, so he will know what he has to answer, and the court has no right to take that right away from him by granting a re-hearing ex gratia, on a petition that does not in any way intimate that a single word of new evidence has been discovered; that contains nothing but a general allegation that the decree is inequitable and unjust — a vague notion that there must be error somewhere, or everywhere, alleging no mistake in stating the account, nor newly-discovered facts or evidence, nor mistake in law, but merely that the decree is erroneous: Hengst’s Appeal, 12 Harris 419.
    The affirmance of the former decree by the Supreme Court bars the right to a bill of review: Dennison v. Goehring, 6 Barr 453.
    There can be no question but that by the settlement and confirmation of the joint account filed by the three executors, their joint liability for the cash balance, admitted by them to be in their hands, was adjudged and fixed: Haages’ Appeal, 5 Harris 190; Ducommun’s Appeal, Id. 270; Hengst’s Appeal, 12 Harris 419.
    The only way to question that joint liability is to inquire into the decree fixing it, by a bill of review: Bunting’s Appeal, 4. W. & S. 4G9. But it is now too late to do this.
    Robinson was unquestionably derelict in his duty in allowing Gill to have sole charge of the assets. His estate ought therefore to be held liable: Weigand’s Appeal, 4 Casey 473; Irwin’s Appeal, 11 Casey 294.
    If the legatees did know that the funds were in Gill’s hands it would not absolve the other executors from liability incurred by gross negligence: Ducommun’s Appeal, supra; Lincoln v. "Wright, 4 Beavan 427; Burrows v. "Walls, 5 De Gex, Macnaghten & Gordon, 246; De Haven v. Williams, 30 Smith 482.

      George Shvras, Jr., for appellee. —
    As to the first ground of complaint, it would seem to be clearly within the power of the Orphans’ Court, as conferred by tile Act of October 13th .1840, and also, outside of the provisions of that statute, to open its decree for error therein contained: Parker’s Appeal, 11 P. F. S. 478; Whelen’s Appeal, 20 P. F. S. 410.
    In point of fact, the particular item, the cash balance in the co-executors’ account, with which the Orphans’ Court had charged the estate of Samuel L. Robinson, had never been litigated or considered in the Supreme Court, and hence the confirmation by that court of the decree of the Orphans’ Court did not prevent re-examination.
    "Whatever may have been the former confusion of the authorities, the rule is now well settled that, as between executors and legatees, one executor is not to be held for misappropriation by another unless he participated in the misappropriation. Hence, when, as in the present case, an executor dies before the act of misappropriation by his co-executor, his estate will not be held: Williams on Executors (5th American edition) 16(50; Perry on Trusts, §§ 421-426; McKim v. Aulbach, 1881, Alb. L. J. 317; Edmonds v. Crenshaw, 14 Pet. 166.
    One executor cannot be held responsible for the waste or misconduct or another unless there he some act or agreement on the part of the one sought to be charged by which the estate went into or has been negligently suffered to remain in the exclusive custody of the one by whose misconduct the loss occurred: Longford v. Gascoyne, 11 Ves. 333. An executor is not to be held further than he is shown to have participated in the misappropriation: Peter v. Beverly, 10 Pet. 562; Brazier v. Clark, 5 Pick. 196 ; McNair’s Appeal, 4 Rawle 157; Sterrett’s Appeal, 2 P. & W . 419.
   Mr. Justice Green

delivered the opinion of the court, January 9th 1882.

"When this case was here before, the question involved in the present contention was not before us. It follows that the decision then made determined nothing as to the matter now in controversy. It cannot be doubted that the court below bad ample power to correct the error of its original decree, either under or independently of the Act of 13th October 1840. Nothing bad been done under the decree, and if it was erroneous it ought to be corrected in the interest of justice and by the court that made it. We held in Parker’s Appeal, 11 P. F. Smith 478, that the Orphans’ Court, under the Act of October 13th 1840, might entertain a bill of review notwithstanding a decree of affirmance by the Supreme Court. The discretionary power of the Orphans’ Court to correct its own errors by petition of review outside of the provisions of the Act of 1840, has been affirmed in the cases of Gillen’s Appeal, 8 W. N. C. 499, and Whelan’s Appeal, 20 P. F. Smith 410, and is manifest upon plain principles applicable to the power of all courts over their own decrees.

The chief contention here is upon the question of the propriety of the original decree of surcharge. The learned judge of the court below, in a carefully prepared opinion has indicated with much force the reasons which induced him to regard that decree as erroneous. He has expressly found, upon the evidence taken in the course of the proceedings upon the account, that no devastavit was committed until long after the death of Robinson, the deceased accountant. It is very clear that upon Robinson’s death the right to the control and disposition of the assets of Lightcap’s estate devolved upon, and resided in, the surviving executors, and they were responsible for its exercise. As the testimony taken in the court below has not been printed, we are bound to assume that all the facts found by the Orphans’ Court, and reported in the opinion, were found upon sufficient testimony. As set forth in the opinion they are, that Robinson never had any of -the assets of the estate of Lightcap in his hands up to the time of his death; that all the assets of the estate in point of fact were where the law had cast them, in the hands of the surviving executors after Robinson’s death, and that those executors were solvent; that there is no evidence tending to show that any devastavit had occurred prior to Robinson’s death, and that neither Mr. Robinson nor any of the legatees had any ground of suspicion that such devastavit had taken place; that at the time of Robinson’s death Gill, the executor who had and administered the assets, was entirely responsible and able to settle his accounts or to give security, had it been required, and continued in that condition for several years later; that Gill continued for more than six years after Robinson’s death to transact all the business and handle all the asssets of the estate, as acting trustee, with the knowledge, and without objection on the part of the legatees. No proceedings were instituted against Robinson’s estate until more than nine years after his death; and this is, as the learned Judge of the Orphans’ Court well says, strongly persuasive evidence that the legatees looked to Gill alone as the responsible trustee.

In this state of the facts it is contended that the estate of Robinson is liable as for a devastavit, mainly because he had joined in the original account filed by the three executors, in which they admitted a balance in their hands. Ordinarily it is quite true' that the filing of a joint account is an admission of joint liability for the balance in hand. But it by no means follows that such joint liability is a continuing obligation which remains fixed and established as a judicial decree ""and without regard to subsequent circumstances. Hengst’s Appeal, 12 Harris 413, chiefly relied upon by the learned counsel for the appellants, furnishes both the rule and its exceptions. It was there held that the filing of a joint account renders the accountants prima facie liable jointly for the acknowledged balance, but the death of one of the accountants, at law discharged his liability. In equity, however, the liability survived if there were equitable circumstances showing that it ought to he continued. Thus if the deceased accountant had actually received the money, or the survivor was insolvent and the deceased had made no effort during a number of years to secure the fund received by the insolvent executor, in such circumstances the liability would survive and could be enforced against the estate of the deceased, solvent, joint accountant. But that liability was shown to depend, not upon the mere fact of the filing of the joint account, but upon that fact combined with the equitable circumstances stated. Now in the present case there is an entire absence of these circumstances. Robinson never received any of the assets of the estate, and Gill, who did receive them, wTas not only not insolvent during Robinson’s lifetime, hut continued entirely solvent for a number of years after his death, as he had been before. There was, therefore, no neglect on Robinson’s part in not securing the fund in Gill’s hands, before his death, it is also contended that the omission of the executors to invest the fund as directed by the will constituted a devastavit as to Robinson during his life. The authority cited for this is Wiegand’s Appeal, 4 Cas. 473. That, however, was a case in which the proceeding was against the surviving executor, against whom, of course, the obligation to execute the will was a continuing one, for the neglect of which he was undoubtedly liable. No case is cited, either from the English or American reports, in which a liability has been declared and enforced in circumstances such as are present here; and the tendency of modern cases is certainly to hold accountants responsible for their personal defaults, and for such as have resulted from personal negligence, but not for the mere defaults of others with whom they have been joined, unless there are special equitable circumstances requiring it. For these reasons we think the action of the court below in setting aside the orginal decree of surcharge was right, and therefore—

The decree is affirmed.