
    KIER vs. QUIN.
    A party can not recover damages from the opposing attorney unless .he has acted illegally and corruptly or maliciously.
    Error to Common Pleas No. 2, of Philadelphia County, No. 280 January Term, 1884.
    This was an action brought by Elizabeth Kier against E. C. Quin, Esq., to recover $169.23, which she alleges she was unjustly compelled to pay by reason of defendant’s misconduct. AVm. Kier borrowed $600 of the Homeward Building Association and gave a mortgage for that amount. He died soon after, and his widow, Elizabeth Kier, continued to make pay-meats until 1881. In the latter part of that year E. C. Quin,., attorney for the Building Association, notified her to pay $80.50 arrears. She demanded to know the whole claim, and received word from Quin that the Association would settle for $411.10, crediting all payments on the stock to the mortgage. Mrs. Kier did not accept the settlement proposed, and soon afterwards a sci. fa. was issued upon the mortgage, and judgment was taken upon two nihils and damages assessed at $800.80. A sci. fa. was issued, and then Mrs. Kier applied to open the judgment; the Court discharged the rule upon the association’s filing a remittitur for all above $411.10. Mrs. Kief then brought this suit against Quin to recover $169.23;: attorney fees, costs and expenses actually paid in, having the’ judgment reduced to $411.10, on the ground that he had abused the process of the Court to collect a claim he knew was not all due. After hearing plaintiffs evidence, the Court directed a non-suit to be entered.
    Mrs. Kier then took this writ of error.
    
      Hunn Hanson, Esq., for plaintiff in error,
    argued that an attorney is personally liable for any tort or wrong committed in his office; Baker vs. Braham, 3 Wilson, 368; Bates vs. Piling, 6 B. & C., 38; Codrington vs. Lloyd, 8 Ad. & E., 449; Lynch vs. Commonwealth, 16 S. & R., 361; Ellingham vs. Clark, 1 Phila., 51.
    
      D. W Sellers, Esq., contra.,
    
    argued that the judgment for $800.80 was valid under Act of April 29, 1874, sec. 37, P. Laws, 96: Act April 10, 1879, P. Laws, 17. The payments on the stock cannot be appropriated to the mortgage without the-request of defendant; Association vs. Sutton, 35 Pa., 463; Spring Garden Asso. vs. Association, 91 Pa., 493; Earley’s Appeal, 7. W. N. C., 184; Association vs. Hungerbuehler, 9 W. N. C., 218; Watkins vs. Association, 10 W. N. C., 414. In order to sustain an action against an attorney there must be a want of probable cause for his bringing suit or express malice; Anonymous, 1 Modern, 209; Sedley vs. Sutherland, 3 Espinasse, 203; Bicknell vs. Dorian, 16 Pick, 378; Reynolds vs. Kennedy, 1 Wilson, 234; McCullough vs. Grishobber, 4 W. & 
      S., 201; Wagner vs. Beashore, 1 Penrose & W., 232; Herman vs. Brookerhoff, 8 Watts, 240; Sommer vs. Wilt, 4 R. & S.. 19; Eberly vs. Rupp, 90 Pa., 259; Travis vs. Smith, 1 Pa., 234; Beach vs. Wheeler, 26 Pa., 212, and 30 Pa., 69: Kramer vs. Stock, 10 Watts, 117; Mayer vs. Walter, 64 Pa., 283; Munson vs. Austin, 2 Philadelphia, 116; Barry vs. Pennsylvania Salt Co., 8 W. N. C., 307; McCarthy vs. D’Armit, 1 Penny, 298; Rosenstein vs. Brown. 7 Phila., 144. Probable cause is a question purely of law for the Court, and it is error to submit the question to the jury. Fisher vs. Forrester, 33 Pa., 501; Deitz vs Langfit, 63 Pa., 234; Laughlin vs. Clawson, 27 Pa., 328; Goff vs. Barrett, 29 Pa , 377.
   The Supreme Court affirmed the judgment of the Common Pleas on January 26th, 1885, in the following opinion :

Per Curiam.

It is clear the Court committed no error in refusing to take •off the non-suit previously ordered. The damages claimed to have been sustained by the plaintiff in litigation 'with a party for which the defendant acted as attorney, cannot be recovered •of the latter on all the evidence given in this case.

Judgment affirmed.  