On Application for Rehearing.
Watkins, J.We have carefully examined the plaintiff’s elaborate application for rehearing, and the printed record, opinion, exhibits and brief accompanying same without being convinced that our opinion is erroneous.
The theory of plaintiff’s case is that defendant is liable, and can be proceeded against as a negotiorum gestor; and our opinion holds, that on the state of facts presented he is not <prima faeie liable in that capacity.
The gravamen of the application is that his petition alleges it to be a fact — not a fact apparent of record; not a fact known to the defendant — but a fact aliunde “ that the heirs of Christropher Gale had accepted his succession in the year 1828, and there was no estate *723to administer in 1872” — hence, the administration was a fiction. This may have been perfectly true as matter of fact; but without allegation of defendant’s knowledge of such a condition of things, it would be intolerable that he should be held as a wrong-doer; while •it would be permissible that the alleged conspirators should be so held afid made responsible for the avails thereof, as well as for the consequences of their acts.
Nothing in'the opinion is intended to deprive the plaintiff of any remedy or redress she may have against other parties, and the same is fully reserved.
Rehearing refused.