author: Green, J.

text:
    October and November Term, 1881,
    No. 214.
    Shreve et al. versus Wheeler.
    1. Where a judgment creditor sought to set aside a prior conveyance of the land by the debtor, on the ground that it was accompanied by an unrecorded defeasance, which made the transaction an unrecorded mortgage, the fact that the creditor, before the making of the contract upon which he obtained judgment, had himself made payments on behalf of the debtor to the alleged mortgagee, with the request that they be indorsed upon the contract of defeasance, was sufficient notice to put him upon inquiry, if it did not amount to actual knowledge of the contents of the instrument.
    2. It was not error for the Court to charge that the right of the judgment creditor probably began when he entered judgment, there being no evidence to show that his debt was contracted at any time before the judgment was entered.
    3. Nor was it error to charge that the judgment creditor was bound to know, as a matter of fact, that the vendee had the legal title, because the deed of the latter was upon record, the Court having elsewhere charged the jury that this record was not notice of the defeasance.

      Error, to the Court of Common Pleas of Crawford County.

    Ejeetmeut, by Silas Wheeler against O. H. Perry Shreve and Ezra Cooper, to obtain possession of sixty-four acres of laud in Bloomfield township in the said county._
    Upon the trial in the Court below the following facts appeared :
    On the 8th of October, 1833, Israel Shreve and Elizabeth, his wife, conveyed the land in dispute to Perry Shreve, the defendant, for $15, and upon the further consideration “ that Barzilla Shreve and Nancy Shreve, his wife, parents of the above-named Perry, shall have the use and benefits and profits of all houses, cleared lands, etc.”
    January 1st, 1851, O. II. Perry Shreve and Susannah, his wife, by deed, duly acknowledged and recorded, sold the land for $650 to Israel Shreve, 3d, subject to the rights of Barzilla and Nancy Shreve.
    The testimony of O. II. Perry Shreve, and his son James Shreve, as to this deed was that it was given as security for signing an obligation which was afterward paid off by Perry, that subsequently Israel, 3d, held the deed to keep other .parties off, admitting that Perry owned the land, and that Perry farmed it, leased it for oil, and received the money and built a mill on it.
    On the other hand Israel, 3d, for plaintiff testified that he was the owner, having himself paid three notes for $600 given by Perry and his father
    There was no reconveyance from Israel, 3d, to Perry.
    November 28th, 1868, Israel Shreve, 3d, and Lidia M., his wife, in consideration of $1500, granted and conveyed the land in question by an absolute deed to the plaintiff, Silas Wheeler. The deed was duly recorded December 1st, 1868.
    Two days after the execution of this deed, November 30th, 1868, the plaintiff entered into an agreement with O. II. Perry Shreve, which provided that if the latter should pay, November 30th, 1869, $525 ; November 30th, 1870, $487.50; November 30th, 1871, $450; and November 30th, 1872, $412.50, and all the taxes and assessments, he, Wheeler, would convey the land to Perry by as good and perfect a title as he had received it from Israel, 3d, the agreement to be void on failure of Perry to pay the payments and taxes, and meanwhile Perry to have the possession, and to be entitled to the income and profits.
    This instrument was not recorded. With reference to these papers Perry Shreve testified :
    I had a business transaction with Silas Wheeler, the plaintiff', about November 30th, 1868 ; I hired some money of him, about $1500,1 think ; I was to pay, I think 9 per cent. I secured, that loan by giving bina a deed of the sixty acres of land. He gave me an article (identifying the agreement of November 30th, 1868). The deed came from Israel Shreve, my brother; I was to give him (plaintiff) a deed for the land; that is the way I was to secure it. When I paid him up I was to make him the article back, and get a deed as good as he got.
    This testimony was corroborated by that of James Shreve.
    The plaintiff testified:
    I purchased the land in controversy from Israel Shreve; I purchased the land in 1868, in November ; O. II. P. Shreve said the land belonged to Israel Shreve; he said if I would buy it of Israel, he, O. II. P. Shreve, would buy it of me. O. H. P. Shreve did not intimate to me that he had any interest in the land. On the contrary, he told me that Israel owned it.

      Israel Shreve, for the plaintiff, testified:
    I conveyed the land ; I deeded it to Silas Wheeler; $1500 he gave me for it; the bargain was made at my house; Wheeler came and stayed all night with me; I cannot tell exactly how much he paid me in hand at the time, excepting $100 ; I know pretty near what the note was against me,— a little over $700; I took that and a note; he then came to me in Franklin township and lifted the note and paid me the money.
    Upon the back of the agreement of November 30th, 1868, were indorsed a number of payments, among which were the following:
    “ May 6th, 1869, received fifty dollars at the hands of E. Cooper, to apply on this contract. (Receipt given.)
    “8. Wheeler.”
    “June 21st, 1869, received fifty dollars at the hands of E. Cooper. (Receipt given.) S. Wheeler.”
    A receipt produced by defendant, Perry Shreve, upon call, was as follows:
    “Union, June 21st, 1869.
    “ Received of O. H. P. Shreve, at the hands of E. Cooper, fifty dollars to apply upon land contract.
    “$50. Silas Wheeler.”
    On the 11th of July, 1871, Ezra Cooper, one of the defendants, entered up two judgments against O. II. P. Shreve et al., for $250 each, upon one of which execution was issued, and levy made upon the land in dispute as the property of O. H. P. Shreve. The land was sold, October 31st, 1871, to Cooper, and he obtained therefor a sheriff’s deed, duly executed and recorded. Cooper then leased the land to O. H. P. Shreve, who was in possession at the time of the service of the writ.
    It was contended on behalf of the defendant, Cooper, that the deed of November 28th, 1868, and the agreement of November 30th, 1868, together constituted a mortgage, and the separate defeasance not being recorded, the subsequent sheriff’s sale conveyed to him a title discharged from the lien.
    To show knowledge and notice on the part of Cooper of the nature of the transaction, plaintiff gave evidence as follows:

      Israel Shreve, 3d, testified:
    “ Question. Did you know of a contract of Wheeler to sell this land to your brother, Perry ?
    “ Answer. Nothing particular about it; nothing more than my brother said he was going to make a contract with him to get it back at the start; but afterwards the contract was assigned to me.
    “ Q. Do you know of Cooper paying money on it ?
    “ A. Yes, sir; I was there once when Cooper paid, — I think it was $50, which is the only time I remember of his being there.
    “ Q. Who did he pay the money to ?
    “ A. He paid it to Silas Wheeler.
    “ Q. Who was it for?
    “ A. For Perry Shreve.
    “ Q. What for?
    “ A. He said he wanted to pay it in; he said he wanted to help Perry, and he would pay that much on the contract; I do not know whether the contract was there, or whether he agreed to put it on as soon as he got home,

      “ Q. What was said about what the contract was ?
    “ A. The contract of this farm from Wheeler to Perry Shreve.
    “Q. You say that was talked about in the presence of Cooper and Mr. Wheeler ?
    “A. Yes, sir.”

      Silas Wheeler, the plaintiff below, testified as follows:
    “Ezra Cooper paid me $50 on May 6th, 1869, as shown on the contract. He paid me in his office in Union. He also paid me $50, June 21st, 1869, as indorsed on the contract. I gave Cooper receipts at the time for the amount paid, and Cooper also requested me to indorse the payments on the contracts, and Cooper said he was making the payments for Perry Shreve. I think I had a copy of the contract with me, but am not sure. We did not talk particularly about tbe contract, only that he (Cooper) wanted me to make the credits upon the contract. When Cooper made the payments he knew I had bought the farm.
    “ Question. W by do you say Cooper knew the contents of the contract between you and Shreve?
    “ Answer. I did not say that Cooper knew all the contents of the contract; he knew there was such a contract or he couldn’t have wanted me to make the indorsements upon it.
    “ Q. Did you tell Cooper what the contract was about at the time you say he paid you money on it, or before that ?
    “A. I think I told Cooper I had given Perry Shreve a contract the first time he made a payment.
    “ Q. Did Cooper tell you what the contract was about on which he was paying you the money ?
    “ A. I think he did.
    “ Q,. What did Cooper say when he paid you the money ; can you give his words ?
    “ A. lie desired me to put it on the contract.

      “ Q. You had not the contract with you, had you?
    “ A. I don’t know whether I had the contract with me or not; I gave him a receipt, and agreed to put it on the contract.”
    Defendants produced several witnesses, who testified that the general reputation of Israel Shreve, 3d, for truth and veracity was bad
    Counsel for the defendants .asked the Court to charge the jury, inter alia:

    5. That there is no evidence in this case showing that at the date of the entry of the Cooper judgment and the sheriff’s sale to Cooper, that ho had any notice of the agreement between the plaintiff and O. H. P. Shreve in relation to borrowing money and accepting the deed from Israel Shreve.
    7. That the recording of the deed from Israel Shreve to Wheeler, for the land in question, was not sufficient to affect Cooper with notice of the fact that the deed was taken to secure- a loan; and that when motiey is loaned, and a deed is taken to secure such loan, the recording of such deed is not notice of the real character of the transaction.
    The Court declined the fifth point, affirmed the seventh, and charged the jury, inter alia:

    “ The defendant alleges that this transaction — the purchase by Wheeler from Israel Shreve — was practically and substantially from O. II.-P. Shreve, and the giving of the article and repurchase was to cover up and hide the real transaction, which was simply the loan by Wheeler to Perry Shreve of $1500; that this was simply a contract by which Wheeler was to be repaid that loan. The deed from Israel Shreve and wife to the plaintiff, dated the 28th of November, 1868, and the article of agreement dated the 30th of November, 1868, are not precisely simultaneous, but explained by the testimony of Perry Shreve himself, and if believed by you, then it is sufficient to convert this transaction (the giving of the deed and the giving of the article) into what the law calls a mortgage. The Supreme Court have decided so in this case, provided you believe the evidence given by Perry Shreve, as contended for on the part of the defendant. This being a mortgage, however, would not prevent Silas Wheeler from recovering the balance of the purchase-money from O. H. P. Shreve, if Ezra Cooper had not come upon the scene. And he comes upon the scene in this way:
    “In 1871, some three years after the date of this article, while Shreve was paying upon it, Cooper obtained two judgments against O. II. P. Shreve, and issued execution and levied upon the sixty-four acres and bought it in at sheriff’s sale, and the sheriff made a deed to .him November 7th, 1873. Cooper claims that he had no notice of this transaction, and that he bought free and discharged from this mortgage, being unrecorded, as it was; and that he can hold this land as against Wheeler, Shreve, or any one else.
    “ So he can, provided you find that he had not notice of the real state of the transaction, to wit, that this was a mortgage, if you find really that it was a mortgage.
    * * * * * *
    [“You will bear in mind that Cooper’s right begins when he entered judgment; at all events, it became perfect at the time he became a purchaser at sheriff’s sale. If he purchased without notice of any of this transaction, the Supreme Court have said he purchased free and clean of that parol agreement 'as testified to by Perry Shreve. He was bound to know, as a matter of fact, that Wheeler had the legal title, because Wheeler’s deed was upon record.]
    “ If he knew that Wheeler had an agreement to reconvey the land to Perry, and that he had not been fully paid, and that it constituted a mortgage, — that is, a parol mortgage, such as the Supreme Court have said it constituted, — then he was bound to take notice, the same as if the article was put upon record ; and he would be subject to what equities Silas Wheeler had, and would have to pay the balance of the purchase-money Wheeler claims.”
    Counsel for defendants excepted to the ruling upon their fifth point, and to that part of the charge within brackets.
    March 9th, 1881, verdict for plaintiff, “ the land described in the writ to be released upon the payment of $895 in six months from this date.” Judgment upon the verdict.
    Defendants took out a writ of error, assigning as error the rulings of the Court as above.

      William R. Bole and J. W. Sproul.

    The evidence clearly showed that Whee.er’s deed was, in fact, a mortgage. Every element of a loan was present in the transaction, and every element of a sale was wanting.
    The real question in the case was, did Cooper have notice of the fact of this parol mortgage at the time the judgment-notes were given him by O. H. P. Shreve ?
    The evidence relied upon is that of Silas Wheeler. The impressions of a witness as to a naked fact or his belief as to the probability of an event having happened is not evidence: Carter v. Connell, 1 Wh., 392 ; Carmalt v. Post, 8 Watts, 406.
    Inference is not admissible: Given v. Albert, 5 W. & S., 337 ; Woodburn v. Banks, 5 W. & S., 449.
    That portion of the charge excepted to wras equivalent to instructing the jury that the recording of the deed from Shreve to Wheeler was notice to Cooper.' An absolute deed and a defeasance made at the same time constitute a mortgage; and if the defeasance be not recorded, it is considered as an unrecorded mortgage and postponed to a subsequent judgment, though the deed is duly recorded: Manufacturers’ and Mechanics’ Bank v. Bank of Penna., 7 W. & S., 335 ; Friedley v. Hamilton, 17 S. & R., 70 ; Wilson v. Shoenberger’s Executors, 7 Casey, 295 ; Corpman v. Baccastow, 3 N., 363 ; Paige v. Wheeler, 11 N., 282.
    If Cooper’s debt was contracted without notice of the parol mortgage, his right to priority would not afterwards be affected. The Court was therefore wrong in saying his right begins when he entered judgment: Britton’s Appeal, 9 WT., 172 ; Hulings v. Guthrie, 4 Barr, 123 ; Uhler v. Hutchinson, 11 Harris, 110.

      Joshua Douglass for defendant in error.
    When parol proof is relied upon to show that a deed absolute in form was intended as a mortgage, it must be clear and convincing : Todd v. Campbell, 8 Casey, 250 ; Insurance Co. v. Austin, 6 Wr., 257; Payne’s Adm’r v. Patterson’s Adm’r, 27 P. F. Smith, 134 ; Moore v. Small, 7 Harris, 461.
    Treating the contract as a mortgage, the payment of the instalments and the receipts show that Cooper knew the facts two years before his debt was contracted. The purchaser of an equitable title must stand or fall by the case of the person from whom he purchased: Chew v. Barnet, 11 S. & R., 389 ; Whitfield v. Fausset, 1 Vesey, Sr., 387 ; Rhines v. Baird, 5 Wr., 256 ; Reed v. Dickey, 2 Watts, 459 ; Kramer v. Arthurs, 7 Barr, 165.
    A purchaser with notice is bound: Jaques v. Weeks, 7 Watts, 261 ; Dougan v. Blocher, 12 Harris, 28.
   The opinion of the Court was delivered, January 9th, 1882, by

Green, J.

In this case the learned Court below left to the jury, with the most precise and emphatic instructions, the question whether the transaction between Perry Shreve and Wheeler was a contract of sale or a loan. The jury were told that if they found it to be in reality a loan, then in legal effect the papers executed and delivered between the parties constituted a mortgage, and as the paper thus treated as a defeasance was unrecorded, it would be an unrecorded mortgage, by which Cooper would not be bound unless he had notice. If he -had notice he would be bound by it, and must pay to Wheeler the remainder of the mortgage-money. In this view of the legal and equitable rights of the parties there was clearly no error, nor is it claimed that there was, on the part of the plaintiff in error. The jury has found the facts against the defendant.. Under the charge they must have found either that the transaction was in reality a sale, as the form of the papers would indicate, or if it was a mortgage, that Cooper had notice of it. As this finding in either aspect involves only a question of fact, and was based upon sufficient testimony to support it, the matters assigned for error are extremely limited in number and much confined in their character. There are but two of them. The defendants by their fifth point asked the Court to say that there was no evidence that Cooper had notice, at the date of entering his judgment, of the agreement between Wheeler and Perry Shreve in relation to borrowing money and accepting the deed from Israel Shreve.

This the Court declined to do, but left the question to be determined by the jury. In this we think there was no error. The deed from Israel Shreve and wife to Wheeler of November 28th, 1868, in express terms passes the legal title. It was in the ordinary form of a deed in fee simple without condition or qualification, and on the face of the papers Israel Shreve was at that time the unquestioned owner of the legal title.

The next paper, in the course of the title, was a written contract, dated November 30th, 1868, signed by Wheeler and Perry Shreve, stipulating in terms for the sale and conveyance by the former to the latter of the land in dispute, upon the payment of specified sums of money at definite times. On the part of the defendants it is alleged that these sums of money, instead of representing the purchase-money of the land upon an independent contract of sale, represented in reality a loan of $1500 previously made by Wheeler to Perry Shreve, and the interest thereon, and hence that the agreement of sale of November 30th, 1868, constituted in legal effect a defeasance to the absolute deed from Israel Shreve to Wheeler, dated November 28th, 1868. Supposing this to be so, was there any evidence in the case that Cooper, the judgment creditor of Perry Shreve, had notice, at the time of entering his judgment, of this alleged contract of defeasance ? That is the only question raised by the first assignment of error. Israel Shreve, 3d, the grantor in the deed to Wheeler, testified as follows:

(His Honor then read the testimony of Israel Shreve, 3d, and Silas Wheeler upon this point and. the receipts.)

Mr. Cooper, being a party to the suit, and most essentially interested in its result, made no denial of the foregoing testimony.

In this situation of the evidence it would have been manifest error for the Court to say there was no evidence [notice ?] of the agreement between Wheeler and Perry Shreve in relation to borrowing money and accepting the deed from Israel Shreve. Plere was direct and uncontradieted testimony to the effect that Cooper had, as Perry Shreve’s agent or friend, paid money on the very contract which is alleged to create, in part or in whole, the defeasance relied upon. There was clearly sufficient notice to put Cooper upon inquiry, if not actual knowledge, of the contents of the contract. Whether the agreement be treated as a contract of sale, or as part of a paid contrivance for a loan, is immaterial, for in either event Perry Shreve’s title was not to be completed till the money was all paid, and that was sufficient to charge Cooper with the obligation of such payment if he took the title after knowledge of the written contract. With the credibility of the witnesses we have nothing to do, and suggestions on that subject are out of place here; the meaning, the truthfulness, and the effect of the testimony, as applicable to the true relations of the several parties, were exclusively for the consideration of the jury.

As to the second assignment we can see no error in the statement by the Court that “ Cooper’s right begins probably when he entered judgment,” for the reason that there is not a particle of evidence on this record to show that his debt was contracted at any time before the judgment was entered. It is entirely possible that the judgment was entered immediately after the debt was contracted, and there is nothing in the case upon which we can base a contrary assumption. The language of the judge, as quoted in the specification, is qualified by the use of the word “ probably,” and therefore it is not a positive assertion as to the date of the inception of Cooper's right, though it might well have been so under the evidence. We do not think the remaining matter of this specification is fairly subject to the criticism made by the learned counsel for the plaintiff in error. The Court did not say or iutimate that the recording of the deed from Israel Shreve to "Wheeler was notice of the defeasance, nor of anything more than the mere fact of the deed itself. On the contrary, in the answer to the defendant’s seventh point, and again in the general charge, the Court distinctly told the jury that the record of the deed was no notice whatever to Cooper of the parol mortgage, and that Cooper was in that event not bound by anything appearing on the record. This, we think, was a correct and sufficient expression of the rights of Cooper in the premises, and therefore, seeing no error in the record,

The judgment is affirmed.


source: Caselaw Access Project

author: Trunkey, J.

license: Public Domain

text:
    October and November Term, 1881,
    No. 7.
    McCarthy et al. versus De Armit.
    1. In an action against the mayor and certain police officers of a city for alleged false imprisonment of the plaintiff, De Armit, without warrant or information, it was proven that a riot occurred in the city, during which more than twenty persons were killed, and a vast amount of property was destroyed, that for ten days the community was considered in a dangerous condition, that troops were present under the command of the governor of the State, an extra force of police was employed, and that a committee of public safety were meeting every day. A brother of the plaintiff was killed, as alleged, by the soldiers. The following morning one of the rioters shot and killed two soldiers. A few days afterward, B., a citizen, told a detective that G. had pointed out to him a man, and said, calling him by the last name of plaintiff, that he was the one who had shot the soldiers. The detective informed the mayor, who directed an investigation. The detective learned that several citizens had seen the murderer immediately after the shooting. G. told him D. could give him the information. D. was afraid to express himself, and upon being asked whether the murderer was a De Armit, replied, “You are near it.” People evaded talking about it, and appeared to be in fear; but all who spoke of it said, from the reports, the man was a De Armit. These facts being reported to the mayor, he ordered the arrest of the plaintiff, who was discharged upon proof of innocence, after a confinement of three days. Held, that these facts constituted probable cause for the arrest.
    2. In an action of trespass for false imprisonment, the act in itself is wrongful, and the burden is upon the defendant to prove that the imprisonment washy authority of law.

      3. The question whether the facts constitute probable cause is one of law.
    4. The gist of false imprisonment is unlawful detention, and the general rule is that malice will be implied from the want of probable cause, so far, at least, as to sustain the action.
    5. If the sheriff, or mayor of a great city, or 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 probable cause and malice.
    6. The action of the mayor was in his ministerial capacity.
    7. In trespass all the defendants are alike guilty, and each is liable for the damages sustained without regard to the different degrees of guilt. But when. exemplary damages are claimed, the jury should be instructed to assess them according to the acts of the least guilty of the defendants, and if any defendant is not liable for such damages, none should be included in the verdict.
    8. Upon the cross-examination of the mayor, defendant, a question tending to show that before the riot he had publicly denounced the bringing on of the troops, is too remote, and not admissible to discredit the witness.
    9. So, also, as to a question tending to show that in the opinion of alarge portion of the community he had not performed his duty.
    10. So, also, as to a question tending to show that the day before the arrest of the plaintiff; he had caused the arrest of another man accused of shooting the soldiers, upon the sworn information of one of the other defendants.
    Smith v. Ege, 2 P. F. Smith, 419, followed.
    Error, to tbe Court of Common Pleas', No. 2, of Allegheny County.

    Trespass, vi et armis, by Harry C. He Armit against William C. McCarthy, Solomon Coulson, Henry Jacobs, Edward
    Friel, C. Gr. McAleese, William Claire, and - Motts, to recover damages for an alleged false imprisonment.
    Judgment of non pros, was subsequently entered as to the defendants Claire and Motts. As to the other defendants, pleas of “ not guilty, with leave, etc.,” were entered..
    Upon the trial in the Court below, before J. M. Kirkpatrick, J., the following facts appeared :
    The defendant, McCarthy, was, in 1877, mayor of the city of Pittsburgh, and the other defendants were police officers employed by the eity, and acting under his direction. In July of that year there was a great riot in Pittsburgh, which commenced on the afternoon of Saturday, July 21st, and terminated on Sunday evening following, between eight and nine o’clock. The community surrounding Pittsburgh, inside and outside of it, was in a very dangerous condition. A committee of public safety was meeting every day. There was an extra police force on duty, paid for by the citizens, and troops, sent by tbe governor, were kept in the city until ten days afterward. From twenty-three to twenty-five people were murdered, and a vast amount of property was destroyed by tbe mob. The mob broke open gunshops and possessed themselves of weapons and cannon. In the course of an engagenient between the rioters and some Philadelphia troops, on Saturday afternoon, about 5 o’clock, Jacob He Armit, a brother of the plaintiff, was killed at the Twenty-eighth Street railroad crossing, near the upper roundhouse. The following morning two of the Philadelphia soldiers were shot and killed on Forty-ninth Street by a man whose identity was not established, but who became commonly known as “ Pat, the avenger.” On the night of Saturday, July 28th, the plaintiff was arrested without warrant or information, upon the charge of having committed the murder of the two soldiers, by the defendants, Cbulson, McAleese, Friel, and Jacobs, who were detailed for the purpose by the chief of police, under instructions of the defendant, McCarthy.
    The plaintiff, and other wetnesses for him, testified at length, but in substance, to the effect that the police surrounded his house about half after twelve o’clock in the night, with much profanity and violence kicked the door off the hinges, forced him, partially dressed, into a carriage, and took him to a cell which was filthy from urinal water, and infested with bedbugs and other vermin. He remained there until Monday, when he was removed to a better cell. Monday afternoon he was brought up before Judge Fetterman, upon a writ of habeas corpus. At the request of the defendant, McCarthy, the hearing was postponed until the next day, when he was finally discharged. He also testified that he was not “Pat, the avenger,” not concerned in the riot, did not shoot anybody, and that he spent Saturday night, the 21st, at the house of his mother, where the corpse of his brother was lying.
    The defendant, McCarthy, testified in substance, inter alia : I had information that a De Armit had been engaged in the shooting of the soldiers; common report; anonymous letters; but I didn’t act on that; the first information connecting the De Armits with it was nigher to the day' of the shooting than to the day of the arrest; there were people spoke to me; I had heard of the death of the brother of the plaintiff before the arrest; I ordered the arrest of both men because I had become satisfied in my own mind,'whether wrongfully or not, that one of these two men was the party Avho had shot the two soldiers at Forty-eighth Street; the inciting reason for making the arrest was official information I received from one of the detectives, William J. White.
    On cross-examination he testified:
    From the rumor that was floating in the community with regard to this man, De Armit, I personally directed Mr. White to go and investigate into it; the rumor came in two ways, from individuals and by letters; the general purport of it Avas that a De Armit was “ Pat, the avenger ;” as to Avhieh De Armit I could not find out; the letters were anonymous ; my instructions to. Mr. White were to proceed and investigate this matter; he himself had information, which he stated to me; he had been told that on Sunday the man who had done the shooting had been pointed out to his informant, and that the name of the man was De Armit; after I had put Mr. White on the job the information he gave me.was in substance that he went back to the party who had given the information in the first instance and ascertained where the party was likely to he found who had made the statement; this party was found, and he was sent to another man ; we arrested both De Armits, but the size of the other was so entirely different that we were satisfied he was not the De Armit we wanted and he was discharged; we had the information from Mr. Bostwick that Mr. Graham had pointed out a man to him on Sunday as being the party that did the shooting at Lawrenceville, and that his name was De Armit; J ames Scott, a detective, told me one of them was in the habit of drinking and spreeing.
    “Question. Did you not on Friday, before the riots, in a barber shop, in the presence of a number of persons, including J. H. Reed and Charles M. Powers, denounce the bringing on of the Philadelphia soldiers, and say they were here for the purpose of shooting down common people like you and the barber you were talking to ?”
    This question, for the purpose of showing to what extent the witness was actuated by the exigencies of the public situation in making this arrest.
    Objected to as irrelevant and incompetent, and admitted under exception.
    “ Answer. I think it altogether likely that I said so.
    “ Q. What else was charged against you by the community at large by which you were' hounded?”
    Objected to as irrelevant, incompetent, and not cross-examination. Admitted under exception.
    “ A. I have very good reason to believe that a large portion of the community were of the opinion that I hadn’t performed my duty, of which they were mistaken, however. I may say further, that had I been allowed to have the control of this matter, if it had not been taken out of my hands, there would not have been a dollar’s worth of property nor a single life lost, and that if the men who controlled this matter had been actuated by the spirit of Coleridge, who says; He prayeth best who loveth best both man and bird and beast,’ we would not have been here lamenting the lives of twenty-three men lost.
    ' “ Q. Will you state whether or not you did arrest or have Mr. Phillips arrested on the 27th day of July, the day before these De Armits were arrested for shooting Philadelphia soldiers, upon the sworn information of Sol. Coulston, one of the defendants in this case? and this for the purpose of bearing upon the question of the sufficiency of the probable cause attempted to be set up by the defendant for the ai’rest of De Armit without a warrant.”
    Objected to as incompetent, irrelevant, not pertinent to the issue, and not cross-examination. Admitted under exception.
    “ A. Judging from this paper, which I have entire confidence in, that is a fact; this is my signature to the paper; the information was taken before me.”

      William J. White testified for the defendant: Mr. Bostwick had told me that he seen the man pointed out to him on Penn Avenue near Eleventh Street, on Sunday afternoon, that had. shot those two soldiers on Forty-ninth Street. I asked him who it was, and he said it was De Armit, who had a brother killed at the round-house the night before. Pie told me that if I would go and see Barney Graham (Barney is a nickname), James Graham, of Lawrenceville, he could tell me more about it. I went and informed the mayor of what information I had, and he told me to go out there and investigate and see what I could find out. . . . I proceeded to Lawrenceville and went to Squire King to find out where Graham lived, and Squire King went along with me, We got information there that the gun these two soldiers had been killed with was left on Forty-fifth Street. We went down there and got the gun and the cartridge-box, and inquired of the parties there the description of the party that had done the shooting, and the direction they had taken after they gave up the gun and the cartridge-box. Was informed by Rear-don, I think, -who keeps a saloon there, that a party stopped in front of his house and wanted a drink and I [he?] refused to give him one, and he left his gun and cartridge-box, and went down towards the Forty-third Street bridge, down the railroad track. We then went and hunted up Mr. Graham, told him what I wanted, and he told me to go and see Michael Dale, who could give me all the information I wanted. Mr. Dale didn’t give me any further information than that. The man was described to me before I went to see Graham, the appearance of the man and size. . . . Pie said he was a young man between twenty and twenty-five years of age; a man about 5 foot 9 inches tall; his face was black, as though he had just come off from working; had been working, and his face was all streaked with sweat, dirty. Pie said he was dark-complexed; he said he came from the direction of Forty-eighth Street. ... I went to see Graham, and he directed me to Dale; I went to see Dale; I asked him if he had seen the party that shot those two men, and he said he had. lie said he stopped in front of his house, corner Forty-eighth and Hatfield streets, and he either said he put the cartridge-box on or took it off, but he stood in front of his door awhile, across the street opposite to him. I asked Mr. Dale if he knew the man, and he said I don’t like to say any thing at the present time ; I have got property here and I am afraid to express myself. I asked him if the party didn’t live on Forty-eighth Street. He said he did. I asked him if his name was De Armit, and he said, “ Yon are damn near it; I have nothing more to say,” and he walked away from me. I asked him if he lived on Forty-eighth, because I knew Harry De Armit was in the Directory as living at the head of Forty-eighth Street. . . .' I reported to the mayor. I also found out that the party that done the shooting came up Forty-fifth Street; came up in the direction of the railroad and captured a young soldier there, a young soldier about eighteen years of age that had strayed away I'rom his company, and took his gun from him, threatening to kill him if he would not give it up, and I also traced him around, followed him around as far as Forty-eighth Street, and also saw parties there who had seen him during the shooting, and also went around to where Michael Dale lives, and stopped there; also stopped in front of Reardon’s, on the street below, which runs parallel with Hat-field. I did not hear from any other source, or in any other way, that it was a De Armit who done the shooting. I gave the first information to the mayor the day I received it about Bostwick. I reported every evening when I came in what I found out. I found out that De Armit didn’t live on the hill above Twenty-eighth Street, and he told me to try and find out where he lived, and on Saturday afternoon, I believe, I learned from Mr. Robert Hamilton, who was then clerk of the water commission, that he was an engineer on the Evergreen Railroad. That was on Saturday, I could not say whether it was in the morning or not. I reported to the mayor, and also suggested to him that being as he was living there he might have in all probability left his engine, gone up to Forty-eighth Street, done the shooting, and then went around and over the bridge, as I traced the man as coming ■from that direction and going in that direction, and he might be the party. He came up Forty-fifth Street, towards Penn Avenue, and down Penn Avenue to Iiatfield Street and Forty-sixth, and from Forty-sixth Street down the railroad track, and gave away his gun and cartridge-box, and started down the railroad towards the Forty-third Street bridge.

      "William Bostwiek corroborated White as to the circumstances of the interview with him.

      Michael Dale, for the defence, testified:
    “ I saw the soldiers pass along. After they were passed, I saw a man coming down between the cemetery wall and the big pipe that lays along the wall, then rolled alongside of the curbstone, and when he came to the street next to the curb there, and he came to the curb, he jumped right out into the street, and the soldiers were then out probably 200 yards, and he hauled up his gun and stood there a good little bit, and a street-ear came along, and the soldiers had dodged around the street-car. The road was very dusty. After the street-car had passed he dodged down on his knee, and off went the gun. After the dust cleared up you could see . . . that there were bulks of two bodies lying out there of some kind, and I went out there and examined it, and there was two soldiers shot through the head. . . . He came to this corner, corner of Kane’s fence, and stopped and wiped the dust off his face, and he spoke. Some of them said, you fetched them. Then says he, I done my duty ; if some of the rest would do theirs there would be no more soldiers to go home to Philadelphia. . . . About five feet seven or eight inches, — spare-faced man. He had a mustache, but it was so dusty you could not tell the color of his hair or mustache. His hat was all over dust. He had a square leghorn hat on; what you would call a straw hat, with a black ribbon on. The hat was very dirty, full of dust. . . . Every person where you went they put it on He Armit, because the Philadelphia soldiers had shot one of his brothers on Sunday ; but I did not know He Armit, and don’t know him yet. . . . Mr. White came to where I live. ... He asked me whether I would know the man that done the shooting. I told him if I could see the man dressed the same I would know him if there was ten thousand alongside of him. Says he, do you know He Armit ? Not that I know of, I says. Well, says he, would you know him if you would see him anyplace? Not that I would know of, I says, — don’t know any of the He Armits, that I know of. Says he, do you know he who done the shooting was He Armit ? I just made the reply, you are pretty close to it, from the reports.”
    The officers denied the violence and improper treatment while making the arrest.
    The evidence was voluminous, but the above are the material portions.
    Counsel for plaintiff-asked the Court to charge, inter alia:

    1. That to prevent a recovery in this action, defendants must show probable cause for the arrest and detention of plaintiff.
    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.
    11. Malice in this action, need not be specially proved on the part of the plaintiff
    14. The testimony for defendant, if believed, does not disclose any ground of probable cause, and the verdict should be for the plaintiff.
    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.
    Counsel for the defendants asked the Court to charge, inter alia:

    3. That the probable cause operating on the mind and judgment of the mayor, William C. McCarthy, does not depend upon the actual state of the case, but upon his honest and reasonable belief at the time of the arrest.
    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.
    6. The same general principle which excepts judges from answering in a private action for tcn% applies to justices of the peace.
    The Court affirmed the above points of the plaintiff, refused those of the defendants except the sixth, which was affirmed, and charged the jury, inter alia:

    “ 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.”
    These rulings and the charge were excepted to by defendants.
    December 16th, 1879. Verdict for plaintiff for $2500, upon which judgment was entered.
    The defendants took a writ of error, assigning as error the rulings upon the points as above, and the charge ; that the charge upon the plaintUf’s fourteenth point and the sixth point of defendants was contradictory; that the Court erred in taking from the jury the question of probable cause, and instructing them that under all the evidence of the case the plaintiff was entitled to recover, and the only question for the jury to determine was one of the damages ; and as to the tenth, eleventh, and twelfth assignments, the admission in evidence of the testimony excepted to.

      D. T. Watson and M. Swartzwelder for plaintiffs in error.

      First. 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 felony, he would not be liable in this action. To maintain an action against the mayor in such a case the plaintiff must prove malice. The decision of the mayor was a judicial determination of the question which the law cast upon him of whether, under all the circumstances of the case, it was his duty to make the arrest, and for an error he cannot be held responsible: Downing v. McFadden, 18 Penna. State, 334 ; Thompson v. Lyle, 3 W. & S., 166 ; Billings v. Russell, 23 Penna. State, 189 ; Iron Co. v. Smith, 71 Penna. State, 230 ; Bennett v. Fulmer, 49 Penna. State, 157; Donahoe v. Richards, 38 Maine, 379 ; Stewart v. Southard, 7 Ohio, 402.

      Second. The proof in this case fully established the commission of a felony, and considering all the surroundings, the mayor had reasonable grounds to suspect or believe that De Armit was engaged in killing some of the Philadelphia troops: Smith v. Ege, 52 Penna. State, 421 ; Walter v. Sample, 1 Casey, 275 ; Dietz v. Langfitt, 13 P. F. Smith, 234 ; Russell v. Shuster, 8 W. & S., 309.

      Third- It is not true, that in such a time of commotion and excitement, the mayor could arrest on suspicion only when and in such cases as a cautious, prudent, private citizen would consider it his duty to arrest.

      Fourth. It was error to charge the jury that they must find against all the defendants the same measure of damages which the acts of the one most guilty would justify: Hodgson v. Millward, 3 Grant, 406 ; Clark v. Newsam et al., 1 Exchequer, 130 ; Navigation Company v. Richards, 57 Penna. State, 142 ; Seely v. Alden, 61 Penna. State, 302 ; Wardrobe v. Stage Company, 7 Cal., 118 ; Railroad Company v. Finney, 10 Wis., 388.

      Fifth. It was mischievous to introduce the testimony objected to, and have the jury try the- mayor’s general conduct during the riots, instead of the case at bar.

      S. Schoyer, Jr., and West McMurray for defendant in error.
    Trespass for assault and false imprisonment needs no evidence of malice or want of probable cause: Addison on Torts, see. 40; Chivers v. Savage, 5 E. & B., 697 ; Brandt v. Craddock, 27 L. J. Ex., 314 ; Carey v. Sheets, 60 Ind., 17 ; Akin v. Newell, 32 Ark., 605.
    Probable cause requires that there should be such a state of facts and circumstances as would induce a man of ordinary prudence and caution to believe the charge to be true: Driggs v. Burton, 44 Vermont, 124 ; Boyd v. Cross, 35 Md., 194 ; Collins v. Hayte, 50 Ill., 353 ; Barron v. Mason, 31 Vt., 189 ; Muns v. Dupont, 2 Wash. C. C., 463 ; Seibert v. Price, 5 W. & S., 439 ; Smith v. Ege, 52 Penna. State, 422 ; Winebiddle v. Porterfield, 9 Barr, 137.
    The argument for the plaintiff in error as to the mayor’s exemption from liability goes to the length of saying that any arrest by him or under his direction, no matter how malicious, causeless, or groundless, could be excused because he had first judicially determined upon it.
    In this matter he acted as a ministerial officer, and he cannot claim exemption because he happens at other times to sit judicially: Yates v. Lansing, 5 Johns., 282; Whitcomb v. Cook, 39 Vermont, 585; Vosburgh v. Welch, 11 Johns., 178; Sullivan v. Jones, 2 Gray, 570; Briggs v. Wardwell, 10 Mass., 356 ; Spencer v. Perry, 17 Maine, 413 ; Morgan v. Hughes, 2 Term, 225.
    Circumstances of outrage are ground for exemplary damages ; Hill v. Goodchild, 5 Burr, 2790; Mitchell v. Milbank, 6 Term, 199; Halsey v. Woodruff, 9 Pick., 555.
    In cases of joint trespass the plaintiff may enter one joint judgment against all, assuming the largest sum assessed against any one as the damages against all: 2 Sedgwick on Damages, 614; Halsey v. Woodruff, 9 Pick., 555; Fuller v. Chamberlain, 11 Metcalf, 503; O’Shea v. Kirker 4 Bosworth, 120; Bell v. Morrison, 27 Miss, 68 ; Hair v. Little, 28 Ala., 236 ; Clark v. Bales, 15 Ark., 452.
   The opinion of the Court was delivered November 21st, 1881, by

Trunkey, J.

Prosecutions are presumed to have been properly instituted, and hence, to sustain an 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. Smith, 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 cautious man in believing that the pai’ty 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 had opportunities for knowledge, or who have made investigation: Smith v. Ege, 2 P. F. Smith, 419. He who has probable cause, or, in other words, reasonable ground 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: Swaim v. Stafford, 4 Ired., 392. 1 he belief must be that of a reasonable and prudent man, else the most baseless pi’osecutions 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 as a reasonable and prudent man would be likely to act under like 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 his 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 subject 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 verdict for the defendant, even if his malice were clearly proved.

Malice in law exists where 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 Maine, 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 the advice of counsel and acting thereon, rebuts the inference of ihalice arising from the want of probable cause. The law favors honest efforts to bring the guilty to justice, and when 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 presunción is that the defendant is not guilty. In this the act in itself is wrongful, and the burden is upon the defendant 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 upon this point. It was so treated in Burns v. Erben, 40 N. Y. [Hand], 463, and in Wakely v. Hart, 6 Binney, 316, and is sustained by the 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 these circumstances are found forcible reasons for prompt-action in his 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 the 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, he 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 probable cause and malice. It is of 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 his judicial. No complaint had been made before him; he 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 injures an individual he would be liable the same as if he were not clothed with certain 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 shares 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 when 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. On Saturday, July 21st, 1877, a riot occurred in Pittsburgh, during which more than twenty persons were killed, and a vast amount of property destroyed. For ten days the community was considered in a dangerous condition, troops were present 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 De 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 Rearclon 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 his name ivas 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 thus 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 the citizens appeared in fear, and evaded the inquiries of the detective officer. Probably they feared the mob, or the murderer. This fact, also, would bear upon the apparent necessity of arresting both the De Armits at the same time. The facts, as they appeared at and before the giving the order for the arrest, must control in determining if there was reasonable cause. Very often appearances are not the same after the event as before.

We think the facts in 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 boys. Upon this information complaint was made by Ege, the father and sons were arrested and committed to jail, and on a further hearing they wereffischarged. It was held, in an action by the father for malicious prosecution, that there was reasonable ground for the 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 on suspicion of felony. A high officer, as the sheriff', may arrest a party 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 such party guilty. If the mayor had good reason to suspect, it was his duty to act to the end that the felon should not escape. Were 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 he has no redress if his injury came through the proper action of a public officer while in the faithful performance of his duty.

The 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 the witness.

Judgment reversed, and venire facias de novo awarded.


text:
    October and November Term, 1881,
    No. 190.
    Allegheny Valley Railroad Company versus Steele.
    1. In an action to recover damages for refusing, on the part of the defendant, to take railroad ties tendered for delivery under a contract to furnish oak ties, there was evidence that the ties so tendered did not correspond with the specifications of the contract. Defendant asked the Court to charge, that if the jury believed the plaintiff had been delivering, and attempting to deliver, inferior ties of a different kind from those specified, and that defendant in refusing to take ties had reference to such inferior ties, plaintiff could not recover even if the words of refusal might bear a broader construction. Held, that the point ought to have been affirmed.
    2. The resident engineer of the defendant corporation, one of whose duties was the inspection of ties, telegraphed to the plaintiff: “No more ties from you will be received from O. C. & A. R. here,” and wrote : “ As your contract for ties has not been approved, you had best stop furnishing. Any hemlock ties we may receive from you will be held subject to your order.” Plaintiff had another contract with defendant to furnish hemlock ties, and it wás a fact in dispute as to which of these contracts the communications referred. The authority of the resident engineer to rescind the contract was denied. Defendant asked the Court to charge, that any act of the resident engineer, whereby he should attempt to rescind or revoke a contract made by the superintendent, would not bind the defendant unless such act were done by authority of or ratified by the superintendent or other superior officer. Held, that it should have been affirmed.
    3. Plaintiff asked the Court to charge, that if, before the expiration of the time for delivery, the defendant notified plaintiff that they would not receive any more ties under said contract, and refused to do so, such notice and refusal was a breach of the contract on the part of defendant. Held, that inasmuch as the point asked for binding instructions upon the mere fact of refusal without reference to the other facts of the case, it was error to affirm it.
    4. The Court charged the jury, that if this telegram and letter were sent by the resident engineer, that would amount to a breach of the contract if they believed it. Held, to be gross error.
    5. Semble, that in case of a breach of the contract the proper measure of damages would have been the difference between the price agreed to be paid and the cost of the article to the plaintiff.
    Error to the Court of Common Pleas of Venango County.

    Assumpsit by B. C. Steele against the Allegheny Valley Railroad Company to recover damages for the alleged refusal of the defendant company to receive certain cross-ties under a contract between the parties.
    Plaintiff and defendant entered into the following agreement :
    “Pittsburgh, April 8th, 1875.

      “ Memorandum of agreement between B. C. Steele and Allegheny Valley Railroad Company. Said Steele agrees to deliver in cars at Oil City, or at grade on line of said, eight thousand (80001 or ten thousand cross-ties before September 1st, 1875 ; said ties to be white oak or chestnut oak, and to be made of young thrifty timber, hewn on two sides, and cut square at the ends. (No split ties will be received.) The ties will average nine inches across the face. (No ties with less than seven inches face measure will be taken.) They will measure eight feet six inches (8 6) long, and seven inches thick.

      “ In consideration said railroad company agree to pay fifty (50) cents each for all ties delivered as aforesaid.
    “ B. C. Steele.
    “ J. J. Lawrence,
    “ General Superintendent.
    “ Witness:
    “ J. Blackstone.”
    Upon the trial in the Court below, before McDermitt, P. J., the plaintiff' testified that he had been furnishing ties and timber to the defendant for six years before; that he provided timber to complete the contract upon which suit was brought, and that he delivered four or five hundred ties along the line of the road, which the company paid for.
    Pie then called J. J. Lawrence, who testified that he knew S. H. Jackson; that Jackson was the resident engineer of the defendant, and had special charge of the track and bridges that it was part of his business to inspect ties and the like; that he had charge of the inspection of ties, and that under general instructions he provided materials including ties. that his power extended no further than simply to see that the ties corresponded with the contract, and that witness was succeeded as general superintendent by Mr. McOargo.
    The plaintiff then testified that he saw Mr. McCargo and wanted him to put these ties in ;. that McCargo could not do it, but said he would give witness the rate, so that he could run them over their road and sell them to some other road about Pittsburgh; that he said witness could not put the ties in, and his agents said witness could not; that they refused to take them, and that he could have filled the whole contract for twenty-three or four cents a tie. "While the contract was in existence he had another contract from Mr. Jackson for hemlock ties that was in existence. The reason given for not receiving the ties was that the contract had not been approved. He had ties at Sandy and at Henry’s Bend. Those at Henry’s Bend were not at Oil City or on the line of the Allegheny Valley Railroad. Were not delivered there on cars. At Henry’s Bend were about one thousand.
    Counsel for plaintiff' then offered in evidence, after identification, the following telegram and letter :
    “ Pittsburgh, 19th.

      “ B. C. Steele, Titusville :
    ' “ No more ties from you will be received from O. C. & A. R. here. Letter by express to-night.
    “S. H. Jackson.”
    “ Pittsburgh, June 19th, 1875.
    “ B. C. Steele :
    “ Dear Sir : As your contract for ties has not been approved you had best stop furnishing. Any hemlock ties we may receive from you will be held subject to your order.
    “ Yours truly,
    “S. H. Jackson,
    “ Besident Engineer.”
    The Court admitted the papers, after objection, to which counsel for defendant excepted.
    David McCargo, for the defendant, testified that he was general superintendent of the Allegheny Valley Railroad, appointed ’ July 1st, 1875 ; that he did not authorize Mr. Jackson not to receive ties under the contract, and never ratified such action ; that he never revoked or rescinded the contract, or authorized any one to do so ; that at the interview with plaintiff' he told him that the ties were reported to be inferior and not according to the contract, and that witness would .take any ties that were according to the contract.

      Defendant’s counsel then offered to prove by the witness the market value of ties during the continuance of this contract, at the place where the ties were to be delivered, with a view to show what would be the legal damage, if any, in case of a violation of the contract.
    The offer was rejected, and exception taken. Dpon cross-examination the witness testified, that in July, 1875, he was, as receiver, operating the Oil Creek and Allegheny River Railroad. There was a change of business between the two companies. Mr. Ramsey, the man who inspected ties on the Oil Creek Road, was also inspecting ties on the Allegheny River Road.
    S. B. Ramsey, for the defendant, testified:
    “ Steele got on the train..... Fie spoke to McCargo about taking these ties. McCargo referred him to me there. I said we could not take the ties because they did not come up to the specifications. They were not first-class ties, were red oak, black oak, pin oak, chestnut, not chestnut oak, chestnut and birch.....I do not think there was a tie in the whole lot that had a seven-inch face..... I told Mr. Steele..... that they did not come up to the specifications in any one -way. .... The ties.....were very inferior .... very uneven.....I said they were decayed, not good.....All the white oak I could find were sawed; they were of no use to us whatever, and I would not take them at any price; they were not fit to go in any railroad.....As the officer in charge of this department, I was ready to have received these ties, under the contract of the price named, if they had complied with the stipulations of the contract.”
    There were other witnesses for the defendant, who testified that the ties did not come up to the specifications. There was much other testimony, but the above constitute the material portions.
    Counsel for plaintiff asked the Court <to charge :
    1. Dnder the contract between the defendant railroad company and B. C. Steele, the plaintiff had the right to put in the ties described therein at any time before September 1st, 1875, and if before the expiration of such time the defendant notified the plaintiff that they would not receive any more ties under said contract, and refused to do so, such notice and refusal was a breach of the contract on the part of the defendant.
    2. If the jury find, from the evidence, that the plaintiff was able and willing to deliver the number of ties mentioned in the contract in accordance with its terms, and was hindered and prevented from so doing by the defendant, the plaintiff is entitled to recover in this action for the loss of whatever profit proved, which he would have recovered or which would have accrued to him had he been permitted to carry out the said contract on his part.
    3. That the measure of damages in this case is the difference between what it would have cost the plaintiff' to have delivered the ties under the contract and the amount agreed to be paid thereon.
    The Court affirmed the second point, and answered the first and third as follows:
    1. This point is answered in the affirmative, and further, we say, that if this telegram and letter were sent by Mr. Jackson, that would amount to a breach of the contract if you believed it.
    3. Affirmed, but any tie which the defendant did accept and pay for you must exclude from your consideration and calculation. A sub-contract between the plaintiff and a third party, if any has been proved, to furnish a portion of the ties, has nothing to do with this case excepting so far as it may tend to show, if it does do so, the cost of furnishing ties.
    Counsel for defendant asked the Court to charge, inter alia:

    2. The words and acts of the parties are to be construed in connection with the circumstances attending the transaction ; and if the jury believe plaintiff had been delivering, and attempting to deliver under the contract, railroad ties inferior to and of a different kind from those specified in the contract, and that defendant in refusing to take ties from the plaintiff had reference to such inferior ties, the plaintiff cannot recover even if the words used by the defendant’s agent might bear a broader construction.
    3. The Court is asked to charge the jury, that any act of S. H. Jackson, whereby he should attempt to rescind or revoke a contract ma<Ie by the superintendent, would not bind the defendant unless such act were done by authority of,.or afterwards ratified by, the superintendent or other superior officer’.
    The Court answered these points as follows:
    2. This point is evidently framed to meet the telegram and letter from S. H. Jackson, the resident engineer of the defendant, to the plaintiff, on or about the 19th of June, 1875, notifying him, in substance, not to deliver any more ties, as the contract had not been approved. There is no evidence tending in the slightest degree to show that the contract inside was subject to the approval of the board of directors of the defendant’s company, or of any other officer or officers. If, therefore, you find, from the evidence, that they clothed their resident engineer, as Jackson, with authority to inspect the ties and to accept or reject them, and if he, by telegram or letter, or by both, notified the plaintiff that he had best not furnish any more ties, as the contract had not been approved, he was legally justified in treating such notice as the notice of the company. Thus explained this point is refused.
    3. As explained in our answer to the second, the last point read, this point is also refused.
    Defendant excepted to the answers to these points.
    March 30th, 1881, verdict for the plaintiff for $882.43, upon which judgment was subsequently entered.
    Defendant then took a writ- of error, assigning as errors the admission in evidence of the telegram and letter, the overruling of defendant’s offer as above, and the answers to the points.

      Hancock and Glenn for plaintiff in error.
    The answers to the points took away the questions of fact from the jury.
    The telegram and letter refer to ties coming from the Oil Creek and Allegheny River Railroad. Plaintiff was furnishing hemlock ties under another contract. These were questions for a jury to determine. The words “ you had best stop furnishing,” were advice.
    Jackson had no authority to rescind the contract: Hough v. Doyle, 4 Rawle, 291; Redfield on Railways, vol. ii, p. 114; Kerns v. Piper, 4 Watts, 222; Hays v. Lynn, 7 Watts, 524.
    The measure of damages was incorrect. Loss of profits must have been stipulated for, and have been in the contemplation of the parties : Adams Express Co. v. Egbert, 136 Penna. St., 360 ; Fessler v. Love, 48 Penna. State, 407.

      Osmer, Dale and Freeman for defendant in error.
    Defendant has treated the case as if plaintiff predicated his right to recover on the ground that defendant refused to receive ties at some other point than that designated, and for refusing ties of an inferior quality. Plaintiff bases his right on the sole ground that defendant abrogated the contract in loto.

    A principal is bound only by the authorized acts of his agent, but this authority may be shown by a written instrument, verbal commission, or by the acts of the principal in holding out the agent to the world as having authority: Bank v. Bank, 16 N. Y., 125 ; Field on Corporations, sec. 201; Anderson v. Coonley, 21 Wendell, 279.
    The action of Jackson was not disavowed: Kelsey v. Nat. Bank of Crawford Co., 69 Penna. State, 426; Insurance Co. v. Maguire, 51 Ill., 342.
    . The rule as to damages was correct, since the ties had no open market value: Lentz v. Chateau, 42 Penna St., 435; Feigel v. Latour, 1 W. N. C., 1335; Clark v. The Mayor, 4 Comstock, 338.
   The opinion of the Court was delivered, November 7th, 1881, by

Green, J.

This action was brought to recover damages by one who had contracted in writing to deliver railroad ties against the company who had agreed to take them, for refusing to take ties tendered for delivery. The company defended on the ground that the ties offered for delivery did not correspond with the requirements specified in the contract. Considerable testimony was given in support of this defence. Some of the ties had been received and paid for, others had been refused. The defendant, by their second point, asked the Court to instruct the jury that if they believed the plaintiff had been delivering, and attempting to deliver, inferior ties of a different kind from those specified in the contract, and that the defendant in refusing to take ties from the plaintiff' had reference to such inferior ties, the plaintiff could not recover on account of such refusal, even if the words of refusal might bear a broader construction. This point ought to have been affirmed. It was based upon a hypothesis which was supported by actual testimony in the cause, and the defendant had a clear right to a definite instruction upon the effect of those facts. But the learned judge of the Court below refused the point. In doing so he added an explanation about another matter, foreign to the essential proposition of th¿ point and overlooking its effect. Neither the telegram nor the letter, sent by Jackson to the plaintiff, certainly and absolutely related to this particular contract. Whether they did or not was a disputed fact in the case. And if they did, and were sent because of the inferior character of the ties, the defendant would or might be authorized to terminate the contract in this or any other mode. Yet the whole effect of the inferior character of the ties, as bearing upon the right of the defendant to terminate the contract on that account, was taken from the jury by the answer to this point. Nor is this defect compensated by proper instructions on the subject in any other portion of the charge. Other matters are spoken of quite foreign to the case, but as to tbe vital subject nothing further was said.

In their third point the defendant called in question the validity of an act of rescission, by a subordinate officer, of a contract made by his superior officer without any authority to rescind. The proposition of the point was legally sound, and should have been affirmed without qualification. Yet it was refused with a reference to the explanation made in answer to the second point. That explanation furnishes no proper response to the point, and here, also, there was error.

The answer to the plaintiff’s first point was still more erroneous. The point itself utterly ignores the entire defence set up as a justification, and of the rescission of the contract by the defendant, and asked for a binding instruction upon the mere fact of refusal without reference to any other facts in the case. The refusal to take ties under the contract by the defendant, if it was unauthorized by any act of the plaintiff was a breach of contract. But if by his own conduct he had released the defendant from their obligation to take his ties, then their refusal to take them was no breach. With an explanation of this kind the point could have been affirmed. But it was affirmed absolutely, and then the learned judge went still further, much beyond anything contained in the point, and told the jury that if the telegram and letter were sent by Jackson, that would amount to a breach of the contract. In this there was clear and gross error, it was the assumption by the Court of the whole power of the jury over this part of the case. Jackson’s authority to rescind was a disputed fact in the ease. Without commenting upon the question whether the plaintiff had given evidence to prove such authority, it is enough to say that the defendant gave direct and positive testimony that he had no such power. More than that, it was a disputed matter whether the letter and telegram referred to ties under this particular contract. The plaintiff' was at the same time delivering hemlock ties to, the defendant under another agreement. He testified himself, “ while this contract was in existence I had another contract from Mr. Jackson for hemlock ties that was in existence.” As the letter contains a reference to hemlock ties, and the telegram mentions no particular kind, and no particular contract, it was a question of fact in the case whether the letter and telegram did relate to the contract declared upon in this suit. This question it was the special province of the jury to decide. Still more than this, the letter was not an absolute refusal to take the ties, nor was it an order not to deliver any more. The language is, “ You had best stop furnishing.” This was scarcely more than advice, and was certainly not a peremptory refusal. If followed up by such a refusal in fact, it might have been regarded as testimony indicative of such a purpose, but all that would be for the jury. In no circumstance was it proper for tbe Court to decide all these matters by a binding instruction to the j ury.

As this was an action by the vendor against the vendee for refusing to receive articles sold, we think the answer to the plaintiff’s third point as to the measure of damages was correct. In such circumstances the difference between the price agreed to be paid and the cost of the article to the plaintiff would be the proper measure of his damage.

On the fourth, fifth, and sixth assignments the judgment is reversed, and venire facias de novo awarded.