414. Sir WILLIAM BLACKSTONE. Commentaries. (1763. IV, 293.) 4. There is yet another species of arrest, wherein both officers and private men are concerned, and that is upon a hue and cry raised upon a felony committed. An hue (from "huer," to shout) and cry, “hutesium et clamor," is the old common law process of pursuing, with horn and with voice, all felons, and such as have dangerously wounded another.1 It is also mentioned by statute Westminster the First, 3 Edw. I, c. 9, and 4 Edw. I, de officio coronatoris. But the principal statute, relative to this matter, is that of Winchester, 13 Edw. I, c. 1 & 4, which directs that from thenceforth every county shall be so well kept, that immediately upon robberies and felonies committed, fresh suit shall be made from town to town, and from county to county; and that hue and cry shall be raised upon the felons, and they that keep the town shall follow with hue and cry, with all the town and the towns near; and so hue and cry shall be made from town to town, until they be taken and delivered to the sheriff. And that such hue and cry may more effectually be made, the hundred is bound by the same statute, c. 3, to answer for all robberies therein committed, unless they take the felon; which is the foundation against action against the hundred,2 in case of any loss by robbery. By Statute 27 Eliz., c. 13, no hue and cry is sufficient, unless made with both horsemen and footmen; and by Statute 8 Geo. II, c. 16, the constable or like officer, refusing or neglecting to make hue and cry, forfeits £5. And the whole vill or district is still in strictness liable to be amerced, according to the law of Alfred, if any felon be committed therein and the felon escapes. An institution which had long prevailed in many of the eastern countries, and hath in part been introduced even into the Mogul empire, about the beginning of the last century; which is said to have effectually delivered that vast territory from the plague of robbers, by making in some places the villages, in others the officers of justice, responsible for all the robberies committed within their respective districts.3

MAY 29th and 30th, 1879. Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, WOODWARD, and TRUNKEY, JJ. STERRETT, J., withdrew before the argument. Error to the Court of Common Pleas of Beaver County. Of October and November Term, 1878, No. 163. This case was certified to in the Middle District from the Western District. It was originally brought in Allegheny County, but the venue was afterwards changed to Beaver County.

Trespass on the case by John Gibson's Son & Co., of Philadelphia, against the county of Allegheny, for the loss of sixty barrels of whiskey destroyed by the mob during the labor riots, which occurred in said. county in July, 1877. At the trial, before HICE, P. J., it appeared

1 Bracton, De Legibus, I, 3, tr. 2, c. 1, § 1; Mirror of Justice, c. 2, § 6. 2 See vol. III, p. 160.

Mod. Univ. Hist., VI, 383, VII, 156.

that the whiskey was shipped at Cincinnati on the 16th of July, 1877, to be carried to Philadelphia, over the Pittsburgh, Cincinnati & St. Louis Railroad and the Pennsylvania Railroad; that it arrived in Pittsburgh on the morning of the 19th of July; that on the evening of that day the sheriff of the county of Allegheny was notified by the officers of the Pennsylvania Railroad Company, that a number of men had forcibly taken possession of a portion of the railroad company's property, and the freight of shippers, and were obstructing the passage of trains. These officers also requested the sheriff to go in person and disperse the mob. He sent for some of his deputies and proceeded to the scene of the disturbance. Upon his arrival he found several hundred men in possession of the company's road, whom, as sheriff of the county, he ordered to disperse. This, in language of the sheriff, "they positively refused to do," and said "they were going to hold that road, and that they were going to wade in blood to their waists." This effort proving unavailing, the sheriff returned to his home, and on the way sent a telegram to the governor, asking for troops to quell the riot. An order was sent to the general commanding at Pittsburgh, to assist the sheriff with the troops. On Friday and Saturday efforts were again made by the sheriff to have the mob disperse, but on neither occasion was he accompanied with a posse or military force, his efforts to procure a posse having been unsuccessful. On the afternoon of Saturday he accompanied the portion of the State military force, which had arrived from Philadelphia, to 28th Street, where the mob was in possession of the railroad. Here the sheriff again addressed the rioters and commanded them to disperse. His efforts were again unavailing, and the military were then brought up and attempted to force back the mob in possession of the road. The rioters assaulted the soldiery with stones, clubs and pistol shots, and the latter then fired on the mob and a number of persons were killed and wounded. In a few hours the mob was largely augmented in numbers, and during the evening and night, and the following morning, the property of the railroad company, including its shops, elevator and hotel, and the trains upon the road, were all destroyed by fire kindled by the mob, who surrounded the property and trains, and would allow no interference to extinguish it. In the fire thus enkindled the whiskey in suit was burned. This action was brought against the county, under the provisions of the Act of May 31st, 1841, Pamph. L. 416, extended to Allegheny County, by the Act of March 20th, 1849, Pamph. L. 184. . .

The following assignments of error will show the various questions in the case and the manner in which they were raised in the court below: . . .

4. In refusing to allow the defendants to prove, as contained in their fourth offer: That the said outbreak, by reason of its nature and extent, was beyond the power of the local authorities to antici

pate or subdue. The purpose of this part of the offer being to show that the outbreak and violence which resulted in the destruction of the plaintiff's goods, did not constitute a mob or riot within the contemplation of the statute declared on.

...

S. H. Geyer, George Shiras, Jr., George W. Biddle, and Daniel Agnew, for the plaintiff in error. The framers of the Act of 1841 . . did not mean by the words "any mob or riot," a vast combination of men, outside as well as inside of the county. Where an insurrection is, by reason of its nature and extent, beyond the power of the local authorities to anticipate or subdue, a county cannot be held liable for the loss of property destroyed during and in consequence of it. . . . D. T. Watson, M. W. Acheson, and Thomas M. Marshall, for defendants in error. The inability of the county authorities to quell the mob cannot limit the liability of the county. . .

Mr. Justice PAXSON delivered the opinion of the Court, October 6th, 1879.

This was one of the cases brought against the county of Allegheny to recover damages for property destroyed by the mob during the riots of 1877. The particular property which is the subject of this suit consisted of sixty barrels of whiskey, belonging to the plaintiff's below. It was wholly destroyed, and its value is not disputed. A verdict and judgment were had in favor of the plaintiffs, and the defendants have removed the record to this court for review. The questions it presents are of grave importance.

The plaintiff's have no common-law remedy. They must recover, if at all, by virtue of Act of May 31st, 1841, Pamph. L. 416, which provides, that

"in all cases where any dwelling-house or other building or property, real or personal, has been, or shall be destroyed within the county of Philadelphia, in consequence of any mob or riot, it shall be lawful for the person or persons interested in and owning said property to bring suit against said county where said property was situated and being for the recovery of such damages as he or they sustained by reason of the destruction thereof, and the amount which shall be recovered in said action shall be paid out of the county treasury, on warrants drawn by the commissioners thereof, who are hereby required to draw the same as soon as said damages are finally fixed and ascertained."

The provisions of this Act were extended to the county of Allegheny by the Act of March 20th, 1849, Pamph. L. 184. A somewhat similar act had been in force in Philadelphia since 1836; see Pamph. L. 711, § 36. We are charged with no duty of vindicating the wisdom of this legislation. It is proper to say, however, that the principle embodied in the Act is not new. As early as 1285, the Parliament of England, by Statute of Winton, or Winchester, 1 Stat. 13 Edw. I, p. 2, ch. 3 (see 1 Hawkins, Pleas of the Crown, ch. 68, § 11), provided a remedy against the hundred, county, &c., in which a robbery should take place, for the damages caused thereby, to be recovered by the

party robbed in any action against any one or more of the inhabitants. This statute was re-enacted by 28 Edw. III, ch. 2. Subsequently the Statute 27 Eliz., ch. 13, § 2, provided for the assessment of the damages against all the inhabitants of the hundred after a recovery against one or more. Next we have the famous Riot Act of 1 George I, ch. 5, § 1-7, which was passed by reason of the tumult attendant upon the accession of that king to the throne, and which made it a felony, without benefit of clergy, for any persons unlawfully to assemble and demolish any church or dwelling-house. The sixth section of the same Act provided that in case such church or dwelling-house shall be destroyed, the inhabitants of the hundred in which it was situated should be liable for its value. This was followed by the Act of George II, ch. 10, § 1, and the laws upon this subject were consolidated, in 1827, by 7 & 8 George IV, ch. 31. It will thus be seen that we have imported the principle of the Act of 1841 from that country, from whence we derive the great body of our common law. That it was not transplanted at an earlier date is perhaps due to the fact that new countries, sparsely settled, do not early develop riotous tendencies. . . .

It was further objected that, "where an insurrection is by reason of its nature and extent beyond the power of the local authorities to anticipate or subdue, a county cannot be held liable for the loss of property destroyed during and in consequence of it." This proposition is a crystallization of the offers of evidence contained in the fourth and fifth assignments of error. To which may be added the point, pressed upon the argument, that after the appearance of the military of the State upon the scene, in obedience to the order of the executive authority the responsibility of the county of Allegheny ceased. The word "insurrection," in this connection, is not applicable. The meaning of it is: "A rising against civil or political authority; the open and active opposition of a number of persons to the execution of law in a city or state; a rebellion; a revolt:" Worcester. There was noth

ing of the kind here. It was a mob, and nothing more. It has never been held that the responsibility of a city or county for the violence of a mob depends upon its size or formidable character, or that the failure of the civil authorities to suppress it, or that their calling upon the military authorities for aid relieved them from liability.

History furnishes three notable instances which go far to establish the contrary view. The first one to which I refer was the "No Popery" riots of London, in June, 1780. This was the most extensive riot of which we have any record. For several days, the mob, numbering sixty thousand persons, had complete control of London. The authorities were paralyzed. The immediate cause of the tumult was the presentation of a petition by Lord George Gordon to Parliament for the repeal of Sir George's Saville's Act for the relief of Catholics. The riot commenced on June 2d, and continued until June 8th. It was

not confined to the city of London, but spread throughout the kingdom. The whole city was in a state of anarchy. On the evening of June 6th, thirty-six different fires were raging, caused by the mob. The famous prisons of the Fleet and King's Bench were fired, and the prisoners released; all the public buildings threatened; many private houses sacked, that of the chief magistrate of the highest criminal court in the kingdom, Lord Mansfield, whose furniture, pictures, books, and papers were burned. More than four hundred and fifty persons were killed. It was only by the vigorous use of the military power that the mob was finally subdued. The Courts of England held that the loss fell within the statute, and the respective hundreds were liable. . .

The Act of 1841 is both a remedial and penal statute. It is remedial, so far as it provides for compensation to the person whose property has been destroyed, and penal, so far as it throws the burden of that compensation upon the municipality within whose borders the destruction took place. It is but an extension of the ancient English law, which made the inhabitants of the respective hundreds responsible for robberies committed therein. Formerly, as we have seen, a person robbed had his remedy against any inhabitant of the hundred; that is to say, the inhabitants were jointly and severally liable. Then the law was so changed, that damages recovered against an individual could be assessed against all the inhabitants, so as to compel contribution. Afterwards it was still further modified so as to give the right of action against the hundred. The principle upon which this legislation rested was that every political subdivision of the State should be responsible for the public peace and the preservation of private property; and that this end could be best subserved by making each individual member of the community surety for the good behavior of his neighbor and for that of each stranger temporarily sojourning among them. The effect was to make each citizen a detective, and on the alert to prevent as well as to detect and punish crime. There was no exception in favor of robberies committed by overwhelming numbers, and by such a show of force as to overawe and overpower the limited constabulary of the hundred, or such as were committed by strangers. In either case the hundred was liable to the person robbed, however difficult or impossible it might be for the inhabitants to anticipate or prevent it. It was evidently a police regulation, based upon grounds of public policy, and enforced without regard to the hardships of particular cases. Our Act of 1841 is also a police regulation, and rests upon like grounds of policy. . .

It may seem a harsh rule to hold a community responsible for the effects of mob violence, which apparently, at least, they had no power to prevent; yet not more so than to hold every inhabitant of the English hundred liable for a robbery of which he knew nothing, and had no means of arresting. In both cases it is a police regulation. It is