alleged assignment to Batdorff, in which issue] termined by litigation between them, and that Batdorff was made plaintiff and Bechtel, for use, the plaintiffs are not under any liabilities to either etc, defendant. On the 22d September, 1885, a verdict in the feigned issue was rendered in favor of Batdorff, and the single question now for consideration, as we understand the case, is whether or not the Court had jurisdiction to direct the issue.

of the defendants, beyond those which arise from the title to the property in contest; because if the plaintiffs have come under any personal obligations, independently of the question of property, so that either of the defendants may recover against them at law without establishing a right to the property, it is obvious that no litigation between the defendants can ascertain their respective rights as against the plaintiffs."

The proceedings for interpleader would appear to have been instituted with particular reference to the provisions of the special statute of 27th March, 1848, entitled "An Act relating to inter- Horton v. The Earl of Devon (4 Welsb. H. & G. pleading in Berks and Schuylkill counties" (P. Exch. 496) is a case precisely similar; the defendL. 265), but as this local Act is substantially a ants, who were wharfingers, had certain goods transcript of the 4th and 5th sections of the Act deposited at their wharf by A., who transferred of 11th March, 1836 (P. L. 76), conferring cer- them to B.; B. by order transferred them to the tain equity powers upon the District Court of plaintiff, at the same time acquainting the dePhiladelphia, the provisions of which were by fendants with the fact. The defendants thereupon the Act of 14th February, 1857 (P. L. 39), ex-placed the goods to the plaintiff's account on their tended to the Courts of Common Pleas through- books and informed him of their having done so ; out the Commonwealth, the question for consid- A. and other parties subsequently laid claim to eration is one of general interest. And as the sections referred to of the Act of 11th March, 1836, are founded in the English statute of 1 and 2 William IV. 58, the decisions of the English Courts upon that statute may with propriety be referred to in the construction of ours.

The plaintiff contends that as there was a direct and express contract relation subsisting between Sheafer and Bechtel, by the terms of which Sheater obliged himself to pay to Bechtel the amount of the bill, the former could not disclaim all interest in the subject matter, so as to occupy the place of a mere stakeholder, and was not therefore entitled to raise an interpleader between Bechtel and Batdorff.

the goods, on the ground that the transfer to the plaintiff was fraudulent. But the right of the plaintiff as against the defendants was supposed to be altogether independent of the question to whom the goods in truth belonged, and it was held that the defendants were not entitled to an interpleader. So in Lindsey v. Barron (60 Eng. Com. Law. Rep. 289), the personal obligation of Barrow to hold the box of plate for Lindsey was independent of the question of the rightful ownership, as between Lindsey and Medley, the claimants; and in Patorni v. Campbell (12 Mees. & Wels. Exch. 277), Campbell had incurred a personal obligation to Patorni, independently of the actual ownership of the bill in dispute, by his agreement to hold it subject to his disposal under his assignment, and in both cases it was held that the remedy by interpleader did not apply. To the same effect are the cases of James v. Pritchard (7 Mees. & Wels. Exch. 216), and Dalton v. Midland Railway Co. (74 Eng. Com. Law. Rep. 457), whilst the doctrine of Slaney v. Sidney (14 Mees. & Wels. Exch. 800) and Turner v. Kendal (13 Id. 171) is simply this, that under the Act of 1 and 2 Wm. IV., an interpleader will not be awarded to relieve a party under an express promise to pay or perform against an antagonistic and independent claim.

It is true, as a general rule, the party seeking relief by an interpleader must not have incurred any independent liability to either of the rival claimants; if he has expressly acknowledged the title or right of one of them, and agreed to hold the property for him, or, disregarding the adverse claim of one, has by contract made himself liable in any event to the other, he cannot be said to stand indifferent between them. Illustrations of this rule are found in the several cases cited by the plaintiff in error. In Crawshay v. Thornton (2 My. & Cr. 1), the general nature of the remedy by interpleader is fully discussed; in that case A., as the agent of B., deposited certain iron with C.; The same rule prevails, also, where an indepenD. claimed to be the owner of the iron, not only dent liability must of necessity arise out of the under assignment from A. but by an independent very nature of the relation subsisting between the acknowledgment and undertaking of C. that he parties, with respect to the subject matter of disheld it at D.'s disposal; it was therefore held, pute, as between landlord and tenant, attorney that owing to this independent obligation of C., and client, etc., for, as a general rule, a tenant to hold the iron for D., he had no right to an in- cannot deny his landlord's title, nor an attorney his terpleader between B. and D. "The case ten- client's right to money received for him as such; dered by every bill of interpleader," says MAULE, nor can a bailee ordinarily raise an interpleader J., "ought to be, that the whole of the rights between his bailor and one who asserts an indeclaimed by the defendants may be properly de-pendent antagonist and paramount title; but even

a tenant, who is under an express promise to pay | of consideration here on a question of jurisdicrent, may interplead his landlord and an opposing tion. (See also McCoy v. McMurtrie, 12 Phila. claimant, when the title of the latter is derived Rep. 180.) from the lessor after the lease; or generally, when there is privity between the claimant and the lessor, as, for example, when the relation of mortgagor and mortgagee, trustee and cestui que trust, assignor and assignee, etc., has been created between them. In such case, the tenant does not dispute the landlord's title; so, in the case of an attorney, agent or bailee, whenever the third person claims the debt or thing under a title derived from the bailor or principal, by assignment, sale or mortgage, subsequent to the bailment or agency, he may compel the parties to interplead, for there is no denial of the original title or right, the only dispute is as to the effect of the subsequent act. (Pomeroy's Eq. 1326-7, note, and cases there cited.) On the other hand, a party to a contract may interplead his co-contractor and other persons who in like manner derive their title from, or are in privity with him. (Pomeroy's Eq., supra.)

These general principles, with the exceptions stated, are applicable, whether the proceedings are in the law or the chancery forms, for it is enacted, both in law and equity, that the party seeking relief by interpleader shall have no interest in the subject matter.

The mere fact that a contract relation existed between Sheafer and Bechtel, by the terms of which Sheafer was bound to pay the money to him, will not necessarily deprive Sheafer of the right to an interpleader. In Pennypacker's Appeal (57 Penn. St. 114) a debt was due on a judgment bond, given by Worth to Gause; the judgment was assigned to Anne Watson, who afterwards assigned to Buckwalter; Pennypacker, administrator, etc., claimed the money, alleging that the assignments were without consideration and fraudulent, and that Gause held the money as agent for John F. Watson, of whose estate he was administrator; he gave notice of his claim; executions having been issued, Worth paid the money into Court and obtained a rule on the claimants to interplead under the statute; and, although a direct and express contract relation existed between Worth and Gause, it was held by this Court to be the precise case for the applieation of the law of interpleader either voluntarily or compulsorily. So in Coates v. Roberts (4 Rawle, 100) the verdict and judgment on an interpleader in a foreign attachment for a common debt upon contract, was held to be conclusive upon the claimant who had notice under the practice at common law and failed to defend. In Brownfield v. Canon (25 Penn. St. 299) the action was in assumpsit for a debt due to a contractor, and although the claimant voluntarily appeared and interpleaded, the case is also worthy |

It is true, nevertheless, that the proceeding cannot be sustained by a party who has any personal interest in the subject of controversy. (Dohnert's Appeal, 64 Penn. 314; Bridesburg Mfg. Co.'s Appeal, 106 Id. 275.) The party applying for it must occupy the place of a mere stakeholder without any rights of his own to be litigated. The object of the proceeding is to determine to which of several claimants he shall pay the debt or duty, about which there is no dispute except as to the person entitled to receive it, so that when their respective rights are settled, nothing further remains in controversy. In this case it is clear that Sheafer had no controversy with either of the claimants as to his indebtedness or the amount of it; in proof of this he offers, if the Court shall so direct, to bring the whole sum into Court, and if either party had desired this to be done, it doubtless would have been done. The better practice in such cases is to order the money into Court, but this, we think, if the offer to do so was distinctly made, was not essential to the exercise of the power of the Court in the framing of an interpleader.

The suit was properly brought in Bechtel's name. A recovery could not have been had in any other form, and if Sheafer had not admitted the debt and offered to pay the money into Court, Batdorff would have been obliged, in order to establish his right, either to resort to some independent and collateral proceeding, or to give notice, promote the recovery, and ultimately to rule the money into Court. But by offering to bring the money into Court, Sheafer assumed the relation of a stakeholder to the contesting claimants, and if he complied with all the orders of the Court in this behalf, it was his right to be relieved of litigation and further costs.

The phrase in the first section of the Act of 1848, "which have lawfully come into the hands or possession of the defendant" has special reference we think to "goods and chattels" and not to money. The language may, it is true, be read to apply to both, but the effect of such a construction, if the words are taken in the sense suggested by the counsel for the plaintiff in error, would be to so restrict the operation of the Act that it would be applicable to a very small class of cases indeed. The general manifest purpose of the statute and the well established practice under it would not justify us now in giving to it this narrow and restricted operation.

The judgment is affirmed.
Opinion by CLARK, J.

PAXSON and STERRETT, JJ., absent.

J. D. B., Jr.

Jan. '83, 73.

Zebley v. Storey.

March 21, 1887. | cation of the record of the Quarter Sessions, showing the discharge of the plaintiff on habeas corpus. Objected to. Objection overruled. Evidence admitted. Exception. (Second assignment of error.)

Malicious prosecution-Evidence-Habeas corpus-Act of February 18, 1785.

In an action for an alleged malicious prosecution for a misdemeanor, evidence that the plaintiff was discharged upon a writ of habeas corpus is admissible in his behalf. Such a discharge operates as a final deter.mination of the prosecution against him so far as to entitle him to maintain the action.

In an action for a malicious prosecution, which has resulted in the confinement of the plaintiff in prison for a certain period, evidence is not admissible upon his part to show the filthy condition of the prison and the discomforts he sustained in consequence. The defendant is not responsible for the default of the

county or its officials in that respect.

In an action for malicious prosecution evidence that the defendant's counsel advised him that it was his

The defendant being called on his own behalf testified, among other things, that at the hearing in the habeas corpus William H. Ruddiman, Esq., appeared for the Commonwealth. Witness was then asked the following question: "Can you say whether or not Mr. Ruddiman said at that time to the Court that Storey had had his opportunity and ought to go to prison ?"

This question was put in order to contradict matter brought out by cross-examination of plaintiff by defendant's counsel. Question objected to by plaintiff. Objection sustained. Exception. (Third assignment of error.)

One McFarland, having been called as a witduty to institute the prosecution, is not competent evi- defendant and asked the following question, in ness by the plaintiff, was subsequently called by

dence.

order to contradict his testimony in chief for the plaintiff: Were you not, at an examination before Mr. Reeves, asked by Mr. Gerhart: "Did he, Storey, not say, at the conversation in Franklin

Error to the Common Pleas No. 3, of Phila-Square, that he had authority to buy from his delphia County.

Case, by John W. Storey against John Zebley, Jr., to recover damages for an alleged malicious prosecution.

brother, but that he had no written authority, as he did not think it necessary?" and did you not answer, "I do not recollect anything of that conversation taking place there at that time;" and if you made such answer why did you not then say that Mr. Zebley said, in conversation between him and members of the firm, that Mr. Storey had told him, Zebley, that he had no written authority?

Objected to by plaintiff. Objection sustained. Exception. (Fourth assignment of error.)

The defendant having shown that his counsel, Joseph R. Rhoads, Esq., had advised him that he had a right to prosecute the plaintiff, offered to prove by Mr. Rhoads that he had also advised defendant that it was his duty to institute such prosecution. Objected to by plaintiff. Objection sustained. Exception. (Fifth assignment of error.)

The case was originally brought in the District Court, and twice tried before SHARSWOOD, P. J. Upon each occasion a rule for a new trial was made absolute. The case was then certified to the Common Pleas No. 3. On the first trial in that Court, a verdict was rendered for the plaintiff, but a rule for a new trial was made absolute. On the second trial there was a disagreement of the jury. The case then came up for trial a third time before YERKES, J. The following were the facts of the case, viz: In the month of September, 1868, certain goods were sold by the defendant to the plaintiff, for which the plaintiff failed to pay. In April, 1869, the defendant caused the arrest of the plaintiff, alleging that the goods had been obtained by false pretences on plaintiff's Joseph T. Ford, Esq., plaintiff's former counsel, part. The plaintiff was, in default of bail, com- was asked by defendant the following question : mitted by an alderman to the county prison," Do you know at whose instance Mr. Storey was where he remained for twenty-seven days. At the expiration of that time he was discharged by the Court of Quarter Sessions upon proceedings on a writ of habeas corpus. He then on September 4, 1869, instituted the present suit.

The plaintiff offered to show the filthy condition of the cell in which he was confined in the county prison, and the uncomfortable nature of his other surroundings. Objected to by the defendant. Objection overruled. Evidence admitted. Exception. (First assignment of error.)

Plaintiff also offered in evidence an exemplifi

brought up from prison the second time?"-to be followed by the inquiry, whether witness knew it was at the instance of Mr. Zebley or Mr. Rhoads. Objected to by plaintiff. Objection sustained. Exception. (Sixth assignment of error.)

Defendant also offered in evidence a deposition of one William F. McFarland, taken upon a previous occasion, in order to contradict certain statements made by McFarland as a witness for the plaintiff. The material part of the deposition was as follows: "He (plaintiff's brother) said that Jacob Riegel & Co. had brought suit against

his brother, but that he did not know whether his the cause was certified to the Common Pleas No. brother would pay or not, as they had not been 3, where it was tried by the late Judge YERKES. on good terms for years. I mentioned this next The first trial resulted in a verdict for the plainday to Mr. Zebley-the said witness having tiff, which was set aside and a new trial granted. already testified that what he had said to Zebley At the second trial there was a disagreement of was not true." Objected to by plaintiff. Objec- the jury. The third resulted in a verdict for the tion sustained. Exception. (Seventh assignment plaintiff and a judgment upon the verdict. It is of error.) to this judgment this writ of error was taken.

The defendant, under an agreement of counsel, offered in evidence the notes of the testimony of one John M. Cummings. A portion of this was objected to as immaterial, to wit, as follows: He (the plaintiff) told me that his wife was a daughter of William Means, and among other things he asked me if I had not seen my brother, the doctor, lately. I said I had not, and he then said: The next time you see or write to Jim, tell him you sold a bill of goods and have become acquainted with William Storey, and he will remember me.' There was present Mr. Ivins, at his desk, within a few feet of where we were sitting. The next afternoon he came in and said he was going to leave the city that night-the goods were charged and shipped to William Storey, Curlsville. I sold him another bill, November 27, 1868. Nothing particular occurred then-goods were charged and shipped as before. He did not tell me then he was John W. Storey, buying for William Storey."

Said offer was made to contradict the plaintiff, whose attention had been called particularly to said statement of Cummings and denied by him. Objection sustained. Exception. (Eighth assignment of error.)

Defendant requested the Court to charge, inter alia, as follows: "A discharge of the plaintiff upon a writ of habeas corpus, after hearing thereon in the Court of Quarter Sessions, is not such a final determination of the prosecution against him as will entitle him to maintain his present action, and the verdict of the jury must be for the defendant." Refused.

Verdict and judgment for the plaintiff for $2750, and judgment thereon.

The defendant thereupon took this writ, assigning for error the admission of plaintiff's offers of evidence, the refusals of defendant's offers of evidence, and the refusal of defendant's point as above.

William H. Ruddiman, for plaintiff in error. George Junkin and Benjamin Harris Brewster, for defendant in error.

The first assignment alleges that the Court erred in overruling the defendant's objection to the plaintiff's offer to show the condition of the cell and all that occurred there, and his surroundings there.

The plaintiff was arrested upon a charge of obtaining certain merchandise from the defendant's firm by means of false pretences. At the hearing before the Alderman, he was committed to the county prison in default of bail, where he was confined for twenty-seven days, when he was brought up on a writ of habeas corpus before Judge BREWSTER and discharged. Upon the trial below the plaintiff was allowed to testify, against the objection of the defendant, as to his treatment while there. He said: "When I went to prison I received two very narrow blankets, and tin dishes, no knife and fork. I slept on the floor. I was there twenty-seven days.

Got nothing to eat from time I left boarding house till next morning; room was filthy-stool with no cover to it-the men made water in it at night, and it ran over." The witness had previously said that he had been sent down in the van with two other prisoners, "one drunk and spewing."

This testimony could hardly fail to inflame the minds of the jury and enhance the damages. And if the treatment referred to had been the act of the defendant he would have no reason to complain of the admission of the evidence. But it is a matter with which he had nothing to do. He is not responsible for the way in which the county of Philadelphia, acting through its officials, treats persons confined in the county prison. He is responsible for the unlawful restraint of the plaintiff's liberty, if he has so restrained it, but it would be unreasonable as well as unjust to hold him liable for the acts or conduct of public officials over whom he had no control. We are of opinion that it was error to admit this testimony.

The second and ninth assignments of error may be considered together. The first alleges error in admitting in evidence the record of the January 3, 1888. THE COURT. This was an Quarter Sessions upon the habeas corpus proaction on the case for a malicious prosecution and ceeding. The second was to the refusal to affirm has about it the unmistakable flavor of antiquity. the defendant's last point. The point was as It was twice tried in the District Court by our follows: "A discharge of the plaintiff upon a late and lamented colleague, Chief Justice SHARS- writ of habeas corpus, after hearing thereon in WOOD, then the President Judge of that Court. the Court of Quarter Sessions, is not such a final After the adoption of the present Constitution, determination of the prosecution against him as

will entitle him to maintain his present action, | particularly in a different state of the evidence, and the verdict for the jury must be for the to submit the case to the grand jury. That redefendant."

The question raised by this point has never yet been decided by this Court to my knowledge. Under such circumstances it would seem natural to suppose that counsel presenting it would give us the benefit of their aid and research in disposing of it, on the contrary it is thrown in upon us not only without an authority pro or con, but without an argument. Yet we are asked to decide it. We might perhaps decline to do so, but as the question lies directly in the path of another trial we will consider and dispose of it.

spectable body are entirely independent of us; they can form their own views of the prosecutor's case, and may, if their judgment so indicates, place the defendant on his trial; we, at present, do not see adequate cause to induce us either to restrain him of his liberty or compel him to give bail to answer. He is discharged." It will be noticed that there is no indication from Judge KING that a private prosecutor could procure the re-commitment of a person so discharged. It must be done by the public prosecutor, and manifestly for a public purpose.

The nearest approach to an authority in this State is the ruling of the late Justice BELL at Nius Prius, in Charles v. Abell (Brightly Reports, 131), where he held that a discharge on habeas corpus puts an end to a criminal prosecution, so as to enable the defendant therein to maintain an action for malicious prosecution. It was said by that learned Judge: "It must be acknowledged that the law on this subject has undergone many alterations in modern times. It seems to be now agreed that if a grand jury ignore the bill it is sufficient to maintain the action. But this rule has been still further modified, and it is settled that if a party is brought before an examining magistrate and discharged, though the proceedings might be again renewed, still, in point of law, that prosecution is ended, and the party may maintain the action for malicious prosecution. There is a precedent for a declaration in Chitty's Pleadings in an action brought under such cir

The eleventh section of the Habeas Corpus Act, 18th February, 1785 (1 Smith's Laws, 275), provides as follows: "And for preventing unjust vexation by reiterated commitments for the same offence Be it enacted, that no person who shall be delivered or set at large upon a habeas corpus shall, at any term thereafter, be again imprisoned or committed for the same offence, by any person or persons whatsoever, other than by the legal order and process of such Court wherein he or she shall be bound by recognizance to appear, or other Court having jurisdiction of the cause, and if any other person or persons shall knowingly, contrary to this Act, re-commit or imprison, or knowingly procure or cause to be re-committed or imprisoned, for the same offence or supposed offence, any person delivered or set at large as aforesaid, or be knowingly aiding or assisting therein, then he or they shall forfeit to the prisoner or party grieved, any pretence of variation in the warrants of commitment notwith-cumstances. There is no difference, in point of standing, the sum of five hundred pounds, to be recovered by the prisoner or party grieved in manner aforesaid."

principle and practice, between a discharge by a committing magistrate and a discharge by a Judge who examines the case upon habeas corpus. It as effectually puts an end to the prosecution as if the defendant were discharged by a magistrate, although a new charge may be afterwards made." The practice of commencing suits for a malicious prosecution, after a hearing and discharge by a committing magistrate, appears to have passed unchallenged in this State. There are many such cases in our reports. It is sufficient to refer to Orr v. Seiler (1 Pennypacker, 445); Bernar v. Dunlap (94 Penna. 329). It would be unreasonable to give greater effect to the discharge of a prisoner by a committing magistrate, who is ordinarily a layman, than to a discharge upon habeas corpus by a Judge of a Court of record.

It will be seen that the Act prohibits, under a heavy penalty, the re-arrest or imprisonment, for the same offence, of a person discharged upon habeas corpus, except by "the legal order and process of such Court wherein he or she shall be bound by recognizance to appear, or other Court having jurisdiction of the cause." A discharge upon habeas corpus is not necessarily, and in all cases, the end of the prosecution. The public prosecutor, for public reasons, and with leave of the proper Court, may send a bill to the grand jury even in a case where the prisoner has been discharged upon habeas corpus. This view of the Act was evidently taken by the late Judge KING, of Philadelphia, in the case of Common- The offence with which the plaintiff was charged wealth v. Ridgway (2 Ashmead, 247), where he was a mere misdemeanor. It lacks every element said in discharging the relator: "I rejoice, how- of public importance. Such prosecutions are ever, that our judgment is not conclusive of the seldom resorted to except to collect a debt, and subject. The sole effect of this decision is that, one can hardly imagine an instance in which a in the present state of the evidence, we see no public prosecutor would ever interfere in such a sufficient cause to hold the defendant to bail. It case, where the offender had been discharged is still competent for the proper public officer, | upon habeas corpus. And as the private prose