to ask for justice was caused by his ignorance of the injury. Under these circumstances, we will not hold him concluded by anything but a strict compliance with the whole law. Judgment affirmed. Affirmed, Kratz's Appeal, 2 Pittsburgh Rep. In the Supreme Court of Pennsylvania. THAYER V. THAYER. (Vol. III., p. 10, 1855.) 1. In an action for malicious prosecution, the declarations of the defendant at the time of commencing the original prosecution are part of the res gesta and admissible for his defence. 2. Where such a prosecution is founded on the arrest of the plaintiff under a bench warrant, evidence of what a witness who is absent from the state testified to on the hearing, is admissible for the defendant to show probable cause. 3. That such absent witness is reported to reside in a distant state, and has written letters from it, is sufficient to pave the way for the admission of his statement. 4. Where one who was examined as a witness on the hearing of the bench warrant, is made a defendant in the action for malicious arrest, his statement may be given in evidence to show probable cause, although he is present in court, and the opposite party waives objection to his competency, and demands that he be again examined on oath. 5. Where the plaintiff, in an action for maliciously arresting him by a bench warrant, proved that defendant had stated that his object was thereby to secure other claims not in suit, it was held that the burthen of proof was shifted, and that it lay upon him to satisfy the jury that he had probable cause, and that the arrest was not malicious. ERROR to the Common Pleas of Elk County. This was an action on the case for a malicious prosecution. brought by David Thayer against Henry and Reuben Thayer. The plaintiff in error was the plaintiff below. The proceeding on which the action was founded was under the Act of 1842. Henry Thayer obtained a judgment against David Thayer, at No. 38, May Term, 1851. On the 6th of May, 1851, Henry made affidavit that David had assigned, removed and dis A posed of certain property with intent to defraud creditors. warrant of arrest was issued by Judge Derby, directed to Reuben Thayer, constable, on which David was arrested and finally committed. He was afterwards discharged on habeas corpus by Judge Wilcox, Dec. 15, 1851. The present action for malicious prosecution was thereupon commenced. On the trial the plaintiff proved, that the defendant in conversation about the arrest, stated that he knew David's real estate was ample to secure his claim, and that he would not have had him arrested, but that he wished to compel him to give security on some other claims. He also proved the possession of real estate sufficient to cover the judgment of Henry Thayer, and rested. The defendants then offered to prove by Henry Souther, Esq., the statement of Reuben Thayer given on oath before Judge Derby on the hearing of the bench warrant. This was objected to by plaintiff's counsel, because Reuben Thayer was present, and they agreed that he should be examined; also, because the witness, Mr. Souther, was the attorney for Henry Thayer. The objection was overruled and the evidence admitted. This was made the third assignment of error. The witness testified that the statement made by Reuben Thayer on oath before Judge Derby, was, that David had threatened that he would dispose of all his property, and never would pay Henry a cent, and that he intended to cheat him out of the judgment. The first assignment of error, after a verdict for defendants, was to the admission of evidence of what one Thomas Schram testified on the hearing of the bench warrant. The preliminary evidence of Mr. Souther, in relation to the absence of the witness, was, "I saw a letter from Thomas Schram, dated in some town in Kentucky. He was a witness before Judge Derby." Judge White, before whom the cause was tried, admitted evidence of what Schram testified. The second assignment of error was to the admission of the testimony of Caleb Dill, under exception, as to the refusal of David Thayer to pay a debt to him for which he was liable under his agreement with Henry. The third assignment of error has been already noticed. The fourth error assigned was to the concluding part of the following portion of the charge of his Honor, Judge White. "As a general rule, the prosecutor in a criminal case, or the plaintiff in a proceeding such as the one which is made the foundation of this suit, is presumed to have acted from honest motives, upon probable cause, and without malice; and the burthen of proof to show want of probable cause and malice is upon him who seeks redress in the action for malicious prosecution. If, however, it is shown that the proceeding complained of was instituted for the purpose of extorting money or security for money due or claimed to be due from any other cause than the judgment upon which the proceeding is founded, the rule is changed; the law implies want of probable cause and malice, and the burthen of proof to show probable cause and absence of malice is thrown on the defendant. The principle stated is applicable to this case. Is the presumption of want of probable cause or of malice rebutted by the facts of this case? Does the evidence establish satisfactorily to you the absence of malice or that there was probable cause ?" The fifth error assigned was to the instruction of the Court, that the discharge of David Thayer on the habeas corpus could have no effect upon the rights of the parties in this suit. The sixth and last was to the allusion of the Court to portions of the evidence explaining the conduct of the defendant, and stating that if his object was to hasten the collection of money due, he being pressed by his own creditors, the motive was an honest one, and taken in connection with the fact that he acted under advice of counsel, and that he instituted the proceeding reluctantly, would afford strong grounds to infer that his conduct toward his brother was not malicious. The case was argued by Johnston, Souther and Goodrich, for defendant in error. The opinion of the Court was delivered by LEWIS, J.-The Court was correct in deciding upon the effect of the discharge by Judge Wilcox. It did not overthrow the、 evidence of probable cause furnished by the commitment by Judge Derby after a full hearing of the parties. The decision of the latter was certainly evidence that probable cause existed for the arrest on the 6th of May, 1851; and the decision of the former merely established the fact that the prisoner was entitled to his discharge six months afterwards. His right to a discharge may In have risen from circumstances which arose after his arrest. deed, it seems that he was voluntarily discharged by the plaintiff in that proceeding immediately after the decision of Judge Derby, and we do not perceive any new authority for his arrest. Nor does it appear that he was actually restrained of his liberty at the time Judge Wilcox made his decision. There was no error in referring the jury to that portion of the evidence of Henry Souther, in which he states the object of the proceedings before Judge Derby, as explanatory of the declarations of Henry Thayer. The declaration of the latter related to the object of that proceeding. They were evidence against him, but they were not conclusive. His declaration and the consultation with his counsel at the time that the proceeding was commenced were part of the res gesta, and were properly given in evidence to show the object of it. The counsel who advised it was certainly qualified and competent to explain the object of it so far as he was consulted respecting it. This disposes of the fifth and sixth errors. There is nothing in the third. The second is not made manifest, so that we can perceive in what manner the plaintiff in error was injured by it, if erroneous; and the others are not assigned according to the rule of Court, so that we can notice them. On the whole we see no reason to believe that injustice has been done. Judgment affirmed. See Cotton v. Huidekopper, 2 Penn. 149; Seibert v. Price, 5 W. & S. 438; Winebiddle v. Porterfield, 9 Barr 137; Beers v. Cornelius, infra, and cases cases cited. In the Supreme Court of Pennsylvania. ERWIN'S APPEAL. (Vol. III., p. 77, 1855.) A testator directed his real estate to be leased during the life of his son Daniel, and not to be sold during that period, but the proceeds to be applied to his maintenance. Daniel presented a petition to the Orphans' Court, setting forth that the estate was mismanaged, and that the proceeds were inadequate to his support, and praying a sale of the land. The dismissal of this prayer held to be proper. ERROR to the Orphans' Court of York County. Daniel Erwin, the appellant, presented his petition to the Orphans' Court of York County, setting forth that by the will of his father, Patrick Erwin, the administrator c. t. a. was required to lease certain lands, and apply the rents to the maintenance of the petitioner; that by the will the land was not to be sold during the lifetime of petitioner, but that the rents were inadequate to maintain him, whereas the interest on what could be realized by sale, would be ample; that the administrators c. t. a. were mismanaging the estate, so that petitioner could get nothing. It concluded with praying the Court to order a sale. This was refused. Thos. E. Cochran for appellant, Evans & Mayer for appellee. The opinion of the Court was delivered by LOWRIE, J.-Judging from the manner in which the will of Patrick Erwin is set out in the petition, the highest interest that Daniel can claim is a right to the rents during life. The faithfulness with which these have been accounted for by the execu tors, cannot possibly be allowed to enter as an element into the question of the propriety of converting the land into money in order to increase the means of his support. If the executors have managed badly, they, and not the land, must account for that. But it is averred that its income is not sufficient for Daniel's support, and that the interest on its value would be, and there |