pressly for that purpose. When the mills were purchased by Caroline Potter, pursuant to an arrangement with the trustees and Henry Hoppin, and she gave her written declaration to them as trustees, and to the said Henry Hoppin, the mills became an asset in the nature of a pledge as security in lieu of the mortgage discharged by the sheriff's sale. When Henry Hoppin took possession of the mills, in February, 1858, he did so by an arrangement with and authority from the trustees, to manage them as their agent; and the balance-sheets rendered by him to them so expressly state. He is now in direct relation with them both by contract and the possession of the property which they held in trust. So he remained when he joined in the covenant of January 17, 1861. That he viewed his relation in this light is obvious from the balance-sheets he rendered to the trustees. Every letter which passed between him aud the trustees is consistent only with such relation. Let the letters speak for themselves:

"PHILADELPHIA, August 28, 1860.

"To W. A. POTTER, W. C. CONRAD, G. W. Conrad,

Trustees for M. C. Hoppin:

"GENTS:-I have to inform you that I hereby decline to have anything more to do with the account of my son, and call upon you to at once take charge of the same and place it in a satisfactory position. also take this occasion to inform you that I no longer act in the capacity relative to the business of the mills that I have for the last three years. I claim to have been entitled to my living during the time, which I have drawn out. The balance remaining, of all kinds, consisting of notes unpaid, book-debts, dye-wood, dye liquors, etc., belonging to that account, is at your disposal, to do with as you please, first having settled my son's account satisfactory to yourselves, and a third party whom I will name. Respectfully yours,

'H. HOPPIN."

Test again his understanding by his letter of June 16, 1861: "W. C. CONRAD, GEORGE W. CONRAD, W. A. POTTER, Trustees:

“GENTS: . . . . I enclose you a synopsis of H. H.'s affairs, from the time he assumed the unfortunate position he has been forced to occupy for the last four years. . . . . And I now have to inform you that after having settled from the assets (which I shall at once proceed to do) now in my hands the obligation, in my opinion, I am personally responsible for, I shall, on the 15th of July, 1861, stand prepared to pass over to you, as trustees for certain parties, or to your authorized representatives, all the remaining assets, together with the possession of the Fairmount mills, trust deed, etc., which may remain in my possession at that time. "Respectfully yours, "H. HOPPIN."

Observe he addresses them as "Trustees for M. C. Hoppin," not as members of the firm of Potter, Conrad & Co. He acknowledges he has been managing the trust for his son, and calls upon them at once to take charge of the same, and tenders to them the remaining assets in his hands, with the Fairmount mills, which he admits he has been managing for the trust for the last four years.

Every deed and covenant made, every balance sheet he rendered, every letter he wrote, admits his relation to the trustees of Matthew Conrad's legatees in the plainest possible way; and yet it is seriously contended he is not bound to account to them for the property he received from them and the members of the firm of Potter, Conrad & Co., under arrangements with the trustees to secure trust funds.

It is true he received the $21,555.18 from the assets of William A. Potter and William C. Conrad, of the firm of Potter, Conrad & Co. But these gentlemen were also trustees, and those assets were substituted in the trust for the trust moneys they had used-limited, it is true, when substituted to the payment of the legacies of Matthew Conrad Hoppin and Matthew Conrad, yet fastened to trust for that purpose, and made general by the covenant of January 17, 1861.

Nor does the fact that the defendants might have been called to an account by the cestuis que trust relieve them. The answer is, they have not been, and the cestuis que trust are not bound by arrangements to which they are not parties, though made by their trustees, and may have direct recourse against their trustees, notwithstanding, for neglect of duty. The moment the defendants ask to be relieved from accounting to plaintiffs, because liable to their cestuis que trust, they are met with the command: "pay them and you will be relieved; it is the fact of payment, and not liability, that relieves you. Your agreement without performance is but accord without satisfaction. It is your non-performance of your agreements and covenants with the plaintiffs which constitutes the breach that renders you liable to them."

As soon as Hoppin purchased the mills he began depleting them of their machinery, and realized from this source alone more than sufficient to pay the balance due the trust. But for any income from the mills he refuses to account to any one, alleging that he is entitled to hold the mills and their earnings in his own right.

Shall he be allowed to do this so long as trust moneys, which they were to secure, remain unpaid? He purchased at the sale for arrears of ground-rent, accruing during his management of the mills for the trust, and which ground-rent he refused to pay, though, as he admits in his answer to the plaintiffs' thirteenth interrogatory, he had sufficient trust funds in his hands with which to pay it. Shall he be allowed to hold the trust property, protected confessedly only by a title procured by his own neglect of duty! He had paid the ground-rent theretofore, and why not this, also? To do so was his duty by an express provision of the covenant of January 17, 1861. Independent of this, the law cast upon him such duty the moment he assumed the management of the trust, so long as he had funds with which to do it.

In Chorpenning's Appeal, 8 Casey, 315, the court said: "The doctrine that a party will not be allowed to purchase and hold property for his own use and benefit, when he stands in a fiduciary relation to it, if contested by a party entitled to it as cestui que trust, is indisputable. And the rule is inflexible without regard to the consideration paid on the honesty of intent. Public policy requires this, not only as a shield to the parties represented, but as a guard against temptation on the part of the representative."

This general doctrine is qualified to this extent: that where the sale

is adverse to the interest of the cestui que trust, and the trustee has no money in his hands, or in expectation with which to prevent the sale, he may purchase and hold in his own right. Such is the doctrine of the case just cited. The purchase there was sustained because there was no evidence that the guardian "had funds in his hands wherewith to save the property from sale, or to buy it for their benefit." "If," continues the court, "such had been the case, and he had withheld it-let the land go to sale and bought it himself-he might have, by this means, been required to account. A trustee is bound to fidelity to the interest of the trust, and will not be permitted to make profit by means of his relation. If he has the power and means, duty requires him to act for the benefit of the trust." The same doctrine is affirmed in Parshall's Appeal, 15 P. F. Smith, 224, and the administrator was required to account.

It was, therefore, the plain duty of Hoppin either to pay the groundrent, and thus prevent the sale, or to account with the plaintiffs and pay them the money that they might have done so. And having neglected to do this, his purchase leaves him just where he was before the salestill an agent.

Nor does the fact that the plaintiffs were nominally parties to the several deeds and covenants mentioned break the force of this conclusion, as the defendants knew they were dealing with property owned by the plaintiffs' cestuis que trust. Moreover, all that was done was to protect the trust, and not again to expose it to hazard. In such case the law mercilessly strikes down every impediment interposed to prevent a recovery in right of the cestui que trust: Abbott vs. Reeves, Buck & Co., 13 Wright, 494; wherein our Supreme Court adopt the language of the court in Fuller vs. Knight, 6 Beav. 205: "The question really comes to this: whether the trustee has done, or could do, or would be allowed by this court to do, any act which would fetter his power of doing his duty. His first obligation was to perform the trust. He had concurred in committing a breach of trust, and the instant he found he had done so, was it not his duty to repair it? And could he be permitted in violation of his duty to do an act for his personal benefit, by which he deprived himself of the power of performing his duty?" The same doctrine is maintained in Purdy vs. Powers, 6 B. 492, and in The Pennsylvania Co. vs. McMurtrie, 31 Legal Intel. 76.

Nor do I think the release made and delivered by William A. Potter and his wife Caroline, in itself, estops Mrs. Potter from demanding an account, as the consideration for giving it was the distribution of the purchase-money for the mills to the cestuis que trust. The law always looks with jealousy upon such arrangements when set up to bar a recovery by a cestui que trust from a trustee who had not accounted when such arrangements were made; and nothing short of evidence that Hoppin at the time unreservedly and fully disclosed to Mrs. Potter the extent of his own knowledge should sustain the release in any event. She was a married woman, and not presumed to be familiar with the management of Hoppin, except as shown by affirmative evidence he disclosed to her his knowledge of the management: Parshall's Appeal, 15 P. F. Smith, 224; Wistar's Appeal, 4 P. F. Smith, 60; Campbell vs. McLain, 1 P. F. Smith, 200.

Nor is the complexity growing out of the various relations which Mrs.

Potter, Henry Hoppin, and Potter, Conrad & Co., now occupy to the property thus pledged to secure the trust, a reason for the defendants not accounting to the plaintiffs in this proceeding. These relations became grafted to the trust in an effort to bring back the perverted moneys, and may now be regarded as so many branches diverging from the same trunk, but so interwoven that they can be better considered together than each by itself; and a court of equity is so flexible in its nature as to extend its reach and lay its grasp upon the equities, wherever they are, and hold them up to the chancellor that he may so mould his decree as to protect them all.

It will be seen that I reach a conclusion adverse to that of the master. He reports that Hoppin was but a tenant, when, in fact, there is not a syllable in the reported evidence of such a relation; and Hoppin's answer and admissions, and all the documents in evidence, are against such conclusion.

He reports also that Hoppin had no funds in hand to pay the groundrent when the mills were sold; whereas, Hoppin, in his answer to the plaintiffs' thirteenth interrogatory, says he had. Also, that the covenant of January 17, 1861, was considered as inoperative. It was, nevertheless, solemnly executed, and I fail to see any evidence whatever that any one, except Hoppin himself, refused to conform to it. His letter of June 16, 1861, is a flat refusal to do anything thenceforth to make effectual any of the covenants.

The master has assumed that the several deeds and covenants referred to estop the plaintiffs' right to proceed further in right of the cestuis que trust; whereas, I regard them as but so many efforts to protect the trust, and failing to accomplish that result, they fail to accomplish any result as affecting the trust adversely.

The result, however, is, that Henry Hoppin has received large sums of money, in which he had no personal interest, to secure certain trusts. That the evidence is positive that those trusts have not been paid; that there is no evidence that Mrs. Potter has been paid her money; that the assets traced to his hands are superabundantly sufficient to pay every dollar of the balance due the trust. Yet Henry Hoppin is permitted to retain these without accounting, and let the cestuis que trust recover of the derelict trustees, or get their money as best they can. Such a result, to my mind, is unjust, inequitable and unwarrantable. Nevertheless, the exceptions to the master's report are dismissed, and the report confirmed by a division of the court.

Exceptions dismissed and report of master confirmed.

J. Howard Gendell and Clement B. Penrose, Esqs., for plaintiffs.
John B. Thayer and John G. Johnson, Esqs., for defendants.

[Leg. Int., Vol. 32, p. 90.]

THOMAS VS. PAINTER.

Where the facts have been stated honestly, fairly, fully and without reservation to an alderman, and he advises defendant to proceed and make the arrest, the defendant cannot afterwards be successfully sued for malicious prosecution.

Rosenstein vs. Feigel, 6 Philada. Rep. 532, followed and approved.

Motion for a rule for a new trial. Opinion delivered March 6, 1875, by

BRIGGS, J.-The jury were instructed: "Before you can render a verdict for the plaintiff, you should be satisfied from the testimony that there was no probable cause for making this arrest, and that the defendant was actuated by malice in causing the arrest. Unless both of these propositions have been established by the evidence, you should render a verdict for the defendant-one will not suffice.

"Probable cause may be defined to be the existence, or apparent existence, of such facts and circumstances as would cause a man of ordinary caution and prudence to believe them to be true, and to act upon them.

"If you find from the evidence before you that the facts and surrounding in this case were of that character, then the defendant was justified in making the arrest, and if justified in law, cannot be held answerable by the law for thus acting, notwithstanding the injury done to the plaintiff."

The plaintiff's counsel thinks this was submitting what constitutes probable cause to the jury. We do not think so. Probable cause was expressly defined by the court, and the jury instructed: "If you find from the evidence before you," etc., "then the defendant was justified in making the arrest."

This clearly submitted to them only the ascertainment of the facts, and required them, as they found them, to apply the law as given by the court in the definition accordingly.

It is also alleged that there was error in the instruction: "If the defendant honestly, fairly and fully, and without reservation, stated the facts of the case as he knew them, and understood them, to the alderman, for the purpose of learning what he should do, and not as a mere color or pretext for getting the warrant, and the alderman advised him to make the arrest, and the defendant honestly and in good faith acted upon the advice in making the arrest, he is to be protected."

This instruction is in accordance with the doctrine of Rosenstein vs. Feigel, 6 Philada. Rep. 532. That case was decided in 1868, and has maintained its ground, and been recognized by the bar of this city, and the court that rendered it, since then. To say nothing of the respect due the court that made it, a bar so learned and critical as ours would scarcely have suffered it to remain without question so long had they doubted the soundness of its principle. And much may be said in maintenance of such doctrine. An alderman is an officer of constitutional creation, invested with great power in bringing offenders to justice, is a conservator of the peace, and specially commissioned to inquire into all charges of an alleged criminal nature, and when the evidence shows a probable cause of guilt, to send the party to the Court of Quarter Sessions for trial. The prosecutor must invoke the agency of the alderman, or let the culprit go. He can obtain an investigation in no other way. Will, then, the law, after pointing out to the citizen the only official who can make the investigation, repudiate his judgment upon facts honestly laid before him, and hold the prosecutor answerable for the official's mistake? "To so decide," as is said in Laughlin vs. Clawson, 3 C. 330, "is to use the machinery of government as a trap to ensnare those who trust in government for such matters, and who ought to trust in it. If such officers make a mistake, it is an error of government