acquittal of the defendant that he might be examined as a witness for the other defendants. Ibid.

41. If two or more join in a prosecution without reasonable or probable cause, they are jointly and severally liable to the party injured; and one who participates voluntarily in such prosecution, and with whose approbation and counsel it is carried on, is liable in damages, whether there were others who were concerned in it or not. Cotton v. Huidekopper, 2 P. R. 149.

(b) Pleadings and evidence.

42. In an action for a malicious prosecution a declaration stating that the defendant maliciously and without probable cause did procure the plaintiff to be indicted, &c. is good although it does not allege that the defendant after the finding of the indictment maliciously and without probable cause, did cause her to be tried, &c. Graham v. Noble, 13 S. & R. 233.

43. Where the declaration is for a vexations suit and holding to bail in one action only, the records of other actions brought by the same defendant against the same plaintiff, cannot be given in evidence. Ray v. Law, 1 P. C. C. 207, 209.

44. Where the declaration in such action states, that the sum demanded as bail in a vexatious suit was endorsed on the writ, no other evidence to establish the fact that such bail was demanded can be given than the endorsement on the writ. Ibid.

45. The declaration in an action for maliciously holding to bail, stated the writ in the original suit to have been returnable to March, 1809. Under this count a record of an action returnable to December, 1809, cannot be given in evidence. But it may be used as evidence of malice in support of other counts. Munns v. Dupont & al. 3 W. C. C. R. 31. 46. If the declaration in this action do not recite the act of Assembly, of 1705, giving double damages in case of imprisonment without probable cause, nor conclude against the form of the act, the court will not order the damages to be doubled. Morrison v. Gross, 1 Br. 1.

47. Papers taken by a magisfrate from the person of the plaintiff in such action, and used upon an indictment against him, and which are in the possession of the defendant, may be read upon the trial of the action. Munns v, Dupont, 3 W. C. C. R. 31.

48. Where an action for maliciously suing out a capias ad respondendum, and holding the plaintiff to bail, was brought against the defendants as executors: it was held to be error. Wengert v. Beashore,

1 P. R. 232.

49. In an action on the case for a malicious prosecution upon the act of 1705, unless the jury find expressly that they have assessed only single damages, the court cannot double those which have been given. Campbell v. Finney, 3 W. 84.

50. In an action for malicious prosecution, it was held that a witness called for the defendant, could not state the substance of the testimony generally given by several witnesses, who were sworn for the commonwealth before a magistrate, on the occasion which gave rise to the action, to establish probable cause; although he might be permitted to

state the substance of what each witness swore, if such witness were dead or out of the process of the court. Cotton v. Huidekopper, 2 P. R. 149.

51. In an action for a malicious prosecution the record of the prosecution is evidence against the defendant, to show not only that the plaintiff was acquitted, but that the defendant was the prosecutor, and was directed by the jury and sentenced by the court to pay the costs. Katterman v. Stitzer, 7 W. 189.

E. Of the action on the case in nature of a writ of conspiracy. 52. It seems, that in this action it is not necessary to declare that the conspiracy was without probable cause. But, on error, the court will presume, where the verdict is for the plaintiff, that probable cause was not shown. Griffith v. Ogle, 1 Binn. 172.

53. In a writ of conspiracy, strictly speaking, it is sufficient to charge the defendants with a conspiracy, falsely and maliciously, to accuse the paintit of a crime, without charging the want of probable cause. Ibid. 54. Where the conspiracy was to accuse the plaintiff of an offence for which he was liable to indictment and removal from office, the law implies damage, and the declaration need not allege more. Ibid.

55. In an action in the nature of a writ of conspiracy for fraudulently withdrawing the goods of the defendant in an execution from the reach of the plaintiff, the standard of damages is the value of the goods withdrawn, and not the amount of the judgment on which the execution issued. Penrod v. Mitchell, 8 S. & R. 522.

56. Unless the value of the goods exceeded the execution; in which case it seems the damages ought not to exceed the amount of the execution. Ibid.

57. An action on the case lies wherever the plaintiff is aggrieved and damnified by unlawful acts done by the defendants, in pursuance of a combination or conspiracy for that purpose. Mott v. Danforth, 6 W. 306. SERGEANT, J.

55. An action on the case lies for conspiring with the plaintiff's debtor to defraud the plaintiff by advising and assisting him to depart from the state, and to secrete and eloign his goods and chattels and convert them to their own use, whereby the plaintiff was prevented from recovering his debt, &c. Mott v. Danforth, 6 W. 304.

59. And it is not a valid objection to the action that the debt to the plaintiff was not payable at the time of the alleged fraud; nor that the defendants were ignorant that the plaintiff was a creditor; if the design was to defraud creditors generally. Ibid.

60. In such action the measure of damages is the value of the property withdrawn from the reach of the plaintiff; provided it be within the amount of the plaintiff's debt. Ibid.

A. Authority of an agent or factor, and how proved.

1. Where a power is general the attorney may do anything to bind his principal which is within the scope of his authority. But if it be special, everything is void if he does not act in strict conformity to his authority. Allen v. Ogden, 1 W. C. C. R. 174.

2. The power of an agent to sell lands must be in writing, and cannot be proved by his own testimony. Nicholson v. Mifflin, 2 D. 246. 2 Yeates, 38. Meredith v. Mucoss, 1 Y. 200. [And see further on this point, EVIDENCE.]

3. It seems that an agent or attorney, not authorised by deed under seal, cannot execute a deed under seal in the name of his principal. Cooper v. Rankin, 5 Binn. 613. Gordon v. Bulkely, 14 S. & R. 331.

4. But although a deed of release under seal cannot be executed by an attorney not authorised under seal, yet such writing may operate as an agreement not to prosecute an action, and may be given in evidence as such under the plea of non assumpsit, in an action by the principal against the releasee. Cooper v. Rankin, ut supra.

5. A sale of land by an agent under parol authority is void, but if the sale by the agent be subsequently confirmed by the principal, he and those claiming under him are estopped from recovering the land in ejectment. Vanhorne v. Frick, 6 S. & R. 90.

6. Every general power necessarily implies the grant of every matter necessary to its complete execution. An attorney who has power to convey land, has necessarily the power to receive the purchase money. Peck v. Harriot, 6 S. & R. 149.

7. And where an agent empowered by deed "to contract for sale, sell and convey" land, entered into articles of agreement, by which it was stipulated that the vendee should clear and improve the land, pay the purchase-money by instalments, &c. and on the completion of the covenants receive from the vendor or his legal representative a good and sufficient warrantee deed, it was held that the receipt of the agent for the purchase-money was binding on the principal, although no conveyance of the land had been made. Ibid.

S. A power of attorney to sell and convey land confers sufficient authority upon the attorney to redeem the land, when sold for taxes. M' Cord v. Bergautz, 7 W. 487.

9. One who was entitled to the annual interest upon a certain sum bequeathed by will, and also to a certain principal sum, payable on the death of another person, executed with her husband a power of attor ney "to ask, demand, &c. all such sum and sums of money, debts, dues,

accounts, and other demands whatsoever, which are or shall be due, owing, payable, and belonging to us, or detained from us, by any manner of ways or means whatsoever; especially all the share, part, or dividend of the said C. H., of, in and to the estate of H. S. &c., now in the hands and possession of J. S. administrator," &c. Held, that this power did not authorise the attorney to compound for, and release the annuity and the principal sum payable after the date of the power. Heffernan v. Addams, 7 W. 116.

10. Where a testator ordered his land to be sold, and the proceeds to be divided among certain persons, it was held, that a power of attorney from one of those persons authorising A" to ask, demand, and recover his lawful part of the estate of H. H.," (the testator); giving and granting to the attorney his full power &c., " to take, pursue, and follow such legal coruse for the recovery, receiving, and obtaining the same" as he might or could do if personally present, and upon the receipt thereof, acquittances, &c., in his name, to sign, seal, and deliver; did not authorise A to sell, and convey the interest of the constituent as real estate, or to dispose of it as personal estate. Hay v. Mayer, 8 W. V. 203.

11. A, who was entitled to a share of a residue of real and personal property which a testator had directed to be equally divided betwixt his children, executed a power of attorney, by which, after reciting that the testator had given and bequeathed to him a certain legacy, he appointed B, (his brother and also entitled to a share of the residue,) his attorney to demand and receive from the executor the legacy so bequeathed, and upon receipt thereof, a general release or discharge for the same to make, execute, and deliver, &c. Upon the power of attorney was endorsed a receipt and release under seal, by A to B of 200 dollars, in full satisfaction of his legacy, and concluding "and I do hereby acquit and discharge the said B, his heirs, executors, and administrators, and all other persons from any manner of amount of said legacy." At the date of the power of attorney, the administration account of the testator had not been settled; but at the settlement it appeared that the share of each of the personal estate was 90 dollars: Held, upon the construction of the power of attorney, and of the release endorsed, that the interest of A in the real estate of the testator did not pass thereby. Shepley v. Lytle, 6 W. 500.

12. A power of attorney given by the obligee in a bond to assign it to a bank in satisfaction of a note due to the bank by the attorney, does not authorise the attorney to assign the bond as security for, or in payment of notes or loans, generally due by him. Strohecker v. Farmers' Bank, 6 W. 96; S. C. 8 W. 188, 9 W. 237.

13. Where a power of attorney after reciting that certain land had been sold for taxes, authorised the attorney after redeeming the land, to sell and convey the same, it was held in ejectment, by the vendee of the attorney against the purchaser at the sale for taxes, that it was necessary for the plaintiff to prove that he had redeemed the land. Devinney v. Reynolds, 1 W. & S. 328.

14. An attorney must in some form or other execute the deed in the name of the principal, otherwise it will not be binding on the latter. Heffernan v. Addams, 7 W. 121. KENNEDY, J.

15. Where a release of a legacy executed by an attorney began in his

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name, recited the power and released in the name of the attorney, and was sealed by the attorney, it was held not to be the deed of his principal. Heffernan v. Addams, 7 W. 116.

16. A deed beginning "Know ye that M. H. by W. M. his attorney" &c., and concluding " In witness whereof the said M. H. by his said attorney hath hereunto set his hand and seal" &c., to which were appended the name and seal of M. H. and acknowledged by the attorney to be the act and deed of his principal, was held to be properly executed. Devinney v. Reynolds, 1 W. & S. 328.

17. The acts of a servant bind his master only when done in the course of the business committed to him, or within the scope of an authority specially delegated. Kerns v. Piper, 4 W. 222.

18. A promissory note signed by a clerk in a store for his employer, does not bind the latter without proof of special authority. Ibid.

19. Money paid on account of suretyship for an agent in a matter where he is acting for his principal, and within the scope of his authority, creates a debt against the principal. Tiernan v. Andrews, 4 W. C. C. R. 474.

20. A power of attorney given by A and wife to B"to settle with the executors of C to receive all legacies, &c. and on receipt thereof to execute, seal and deliver, all and every release, quitclaim, receipt or other instrument of writing, which may be necessary to secure the said executors from harm, on account of any payment which may be made by them," does not authorise B to convey the wife's interest in land derived under the will of C. Sweigart v. Frey, 8 S. & R. 299.

21. An agency to lease lands may be created by parol, and the agent is a competent witness to prove it. M'Gunnagle v. Thornton, 10 S. & R. 251.

22. Testimony is not admissible of an agent's having leased lands for some years and collected rents as presumptive proof of the authority of the agent. Meredith v. Mucoss, 1 Y. 200.

23. A receipt signed by a brother-in-law of the plaintiff, who lived near him, and was in habits of intimacy with him, was held not to be admissible to bind the plaintiff without proof of agency. Worman v. Boyer, 14 S. & R. 212.

24. The general rule is, that a factor may sell on credit, unless in special cases, or he is otherwise directed. Bingham v. Bache, Com. Pleas, cited 1 Y. 487. Randolph v. Hollingsworth, cited Ibid. Laussat v. Lippincott, 6 S. & R. 392.

25. But the rule before the act of 1835, was that a factor cannot pledge the goods of his principal for his own debt. Laussat v. Lippincott, 6 S. & R. 392. Newbold v. Wright, 4 R. 195.

26. The principal was not obliged even to tender to the pawnee the balance due from him (the principal) to the factor. 4 R. 195.

27 But where a merchandise broker to whom goods were delivered by his principal for sale, deposited them for sale in the usual course of business with a commission merchant connected with a licensed auctioneer, who advanced his notes thereon, it was held that the principal was - bound. 6 S. & R. 386.

28. A supercargo to whom various shipments have been consigned by the same vessel, with instructions from one of the shippers to obtain an