unlawful arrest, and that an officer abus

VOL. XXXII.] FRIDAY, JAN. 29, 1915. [No. 13

Common Pleas--Law

Huber v. Walker.

trespasser ab initio.

In 12 A. & E. Enc. of Law, 745, it is said: "Though an original imprisonment may have been lawful, an action for false imprisonment will lie for detention after the time warranted. And the converse of the proposition is also true, that where there has been a lawful taking into custody there can be no false imprisonment in the absence of subsequent improper detention." On page 746 of the same, it is said: "Likewise it will constitute false imprisonment if there be unreasonable delay in presentment of the

cutor for an interview of over an hour, and then, after another delay in getting a team, was driven to a trolley and brought to the alderman's office, and from there to the dis

trict attorney's office, after three stops at hotels for drinks, and there was discharged on his own recognizance to appear at a future hearing.

Rule to strike off judgment of nonsuit. C. P. of Lancaster County. February Term, 1913, No. 27.

Coyle & Keller, for rule.

H. Frank Eshleman and H. Edgar Sherts, contra.

January 9, 1915. Opinion by HASSLER, J.

The plaintiff seeks in this action to recover damages for false imprisonment. At the trial we entered a non-suit, which we are now asked to strike off.

The testimony shows that the defendant, who is a constable, arrested the plaintiff in Martic Township, this county, on January 25, 1913, on a warrant issued by an alderman of this city. The arrest was, therefore, admittedly proper, but the plaintiff complains that the subsequent acts of the defendant were illegal, and rendered him liable to answer in damages for false imprisonment. These acts were, in not taking him directly to the alderman's office, or in unreasonable delay in doing so.

In Owen v. Schmidt, 14 Phila., 183, Judge Thayer decides, upon authorities cited by him, that the abuse of a lawful arrest stands on the same footing as an

or trial."

In Kirk v. Garrett, 35 Atlantic, 1089, be questioned that, when a person is a Maryland case, it is said: "It cannot arrested, either with or without a warrant, it becomes the duty of the officer or the individual making the arrest to convey the prisoner in a reasonable time, and without unnecessary delay, before a magistrate, to be dealt with as the exigency of the case may require. The power to make the arrest does not include the power to unduly detain in custody; but, on the contrary, is coupled with a correlative duty, incumbent on the officer, to take the accused before a magistrate as soon as he reasonably. can.' . . . If the officer fails to do this, and unreasonably detains the accused in custody, he will be guilty of a false imprisonment, no matter how lawful the original arrest may have been."

In Mulberry v. Fuelhart, 203 Pa., 573. it is said, when the action taken is lawful it cannot be made illegal ab initio, unless by some positive act incompatible with the exercise of the legal right to do the first act.

What constitutes unreasonable detention, there being no dispute as to the facts, is a question of law for the Court: Resh 7. Bahr, 8 Northampton, 174; 12 A. & E. Enc. of Law, 748.

The testimony at the trial showed that after the arrest the defendant took the plaintiff to the mill of the prosecutor, a mile and a quarter away, where they remained about an hour, during which time the prosecutor urged him to tell all

he knew about the alleged offense, promising him to leave him go and pay him well for it if he did so. He told the plaintiff he desired to know who the other parties were. The prosecutor then got his horse and buggy and took the plaintiff and defendant to Willow Street, where they boarded a car for this city. Arriving here, the defendant started with the plaintiff towards the office of the alderman who had issued the warrant. On the way they met a man, upon whose invitation they went into a hotel and took a drink. . Three glasses of beer were ordered, but the plaintiff, who was a minor, said he did not drink beer, whereupon something soft was ordered for him, which he did drink. They then went to the alderman's office. The alderman directed the defendant to take the plaintiff to the district attorney's office, which he did. On the way they stopped at two hotels. The plaintiff at both places refused beer and took soft drinks. He did not request to be taken into these hotels, but apparently went willingly. Arriving at the district attorney's office, that official directed the defendant to let the plaintiff go home after signing a recognizance, and after he promised to come up to Lancaster the following Thursday for a hearing. They then went together to Center Square, and on the way the defendant told him not to tell his father about the affair, and not to bring any one with him to the hearing, and not to have his attorney there.

A trolley road runs from Marticville to Millersville, where it connects with a road to Lancaster. The station at Marticville is about one and a quarter miles from where the plaintiff was arrested.

and debt on it as much as it is worth; I don't want to get into trouble."

The defendant also said to Mr. Diffenbaugh: "I can't take no bail; you aint worth $500; I can't take no bail for this here." The plaintiff made no request to look for bail.

Having been arrested in this county, the defendant was not required to take the plaintiff to the nearest justice to permit him to give bail, as is the case where one is arrested outside of the jurisdiction of the justice issuing the warrant: Act of May 2, 1899, Sec. 1, P. L. 173.

It was the defendant's duty to take the plaintiff to the alderman who issued the warrant without unnecessary delay. If he did this there was no unreasonable detention, and consequently no false imprisonment. The defendant had the choice of two ways of going to the alderman's office, one by the trolley road, the station of which was a mile and a quarter from the place of arrest, and one by walking the same distance where a team was to be provided which was to take them to another trolley road, and thence to this city. The former is much the longer route. It was the defendant's right to choose which route he would take.

They waited at the mill of the prosecutor about an hour. Then a horse and buggy was provided, and the defendant was brought to Lancaster. The team did not belong to the defendant, and he was required to wait a reasonable time until the prosecutor got it ready to bring to Lancaster. A wait of an hour was not an unreasonable time. The delay was not for the purpose of putting the plaintiff through the third degree, as has been suggested by counsel. He was asked to tell who the parties were who committed the offense. He was promised immunity if he did so. He was not threatened nor intimidated in any way.

The defendant's stopping in at the three hotels on the way to and from the alderman's office, while most improper, was not an unlawful detention of the plaintiff. He went into them willingly and partook of the refreshment fur

The request that he bring no one to the hearing, that he should not tell his father, or have his attorney at

As there was no dispute as to the facts at the trial, it was a question of law for the Court to say whether these facts showed unnecessary detention. We were of the opinion that they did not do so, and have had no reason since to change it. We, therefore, discharge the rule for a new trial.

January 9, 1915. Opinion by LANDIS, P. J.

There is no dispute concerning the facts arising in this case, and the only question to determine is, whether, under them, the plaintiff is entitled to maintain his action. It appears that Henry G. Hoffer and Mary Hoffer, his wife, in consideration of the sum of $6,600.00 ($2,000.00 of which was charged), by indenture dated March 27, 1895, and recorded in the Recorder's Office of Lancaster County, in Record Book Z, No. 21, at page 74, etc., granted and conveyed unto Henry O. Hoffer, the defendant, a messuage and tract of land situated in Penn Township, this county, containing 67 acres and 127 perches. The charge referred to, as recited in the said deed, was as follows: "And further subject to a lien or charge of Two Thousand Dollars, which is to remain charged upon the said premises, the interest thereof, at the rate of 5 per cent, to be paid annually, as well as also part of the

Mary Hoffer died on June 20, 1902, and Henry G. Hoffer died on July 2, 1905. Henry G. Hoffer left to survive him three children, namely: Monroe O. Hoffer, who is since deceased; Matthias O. Hoffer, the plaintiff, and Henry O. Hoffer, the defendant. No part of the said charge of $2,000.00 was ever paid by Henry O. Hoffer to his parents, Henry G. Hoffer and Mary Hoffer, during their lives. Therefore, upon the decease of Henry G. Hoffer, the whole of the said sum was, according to the provisions of the said deed, payable by Henry O. Hoffer, who then remained the owner of the said land, to "the legal heirs and representatives of said Henry G. Hoffer, according to law."

The defense set out by the defendant in his affidavit of defense was to the fol

lowing effect: When Henry G. Hoffer

died he left a last will and testament, and in it he directed that all his property

and estate should be converted into cash by his executors, and that, after the payment of his debts and funeral expenses, the remainder should be divided in equal shares among his three sons. He appointed Henry O. Hoffer and Monroe Hoffer his executors, and they took out letters testamentary and filed in the Register's Office an inventory of his estate. They included in the inventory this charge of $2,000.00, and subsequently, when they filed their account in the Orphans' Court, they charged themselves with the whole amount of the inventory. Their account came before the Orphans' Court for audit and adjudication, and a balance, as ascertained to be in their hands, was distributed by that Court. In making the distribution, the Orphans' Court charged up against Matthias O. Hoffer an advancement of $1,109.00, and, after deducting the same from his share, awarded him $10.67. This award he has so far refused to accept. The question raised by the defendant is, that

ent action. It is clear that, if the executors were entitled to collect the amount of the charge contained in the deed, then the Orphans' Court had authority to make the distribution upon that basis, and the plaintiff would now be prevented from recovering judgment in this suit. But, on the other hand, it is equally clear that, if the executors were not entitled to demand the amount thus charged in the deed, the Orphans' Court had no authority to distribute that money to the prejudice of the plaintiff, and its action in so doing cannot affect nor bind the plaintiff. This proposition is not charged in the least by the fact that the executors included the charge in their inventory and account. The plaintiff was in no wise a party to any such arrangement, and therefore cannot be prejudiced by their act.

The inquiry, therefore, which controls is: Was the money, under the terms of the charge, payable to the executors of Henry G. Hoffer as part of his estate, or was it payable to his three sons individually as legal heirs and representatives? The said sum of $2,000.00, or "the remainder of said principal sum," was directed to be paid one year after the death of the survivor to the legal heirs and representatives of said Henry G. Hoffer, according to law." It was not, eo nomine, payable to his executors. Unless the words "legal heirs and representatives" are to be construed as meaning executors, Henry O. Hoffer, as the owner of the land, had no right to pay it to himself and his brother as executors, and thus defeat the right of the plaintiff under the deed.

In Gibbons v. Fairlamb, 26 Pa., 217, a testator provided that, in case of the death of any of his legatees, the bequest of the one so dying should "descend to and be equally divided amongst his or her heirs or representatives." A daughter died in his lifetime, leaving no issue, and her husband took out letters of administration. It was held that, while he was the heir or representative of his wife, he could not recover as her administrator. In Neely's Estate, 155 Pa., 133. it was held that, "where the subject of a testamentary gift is personalty, a limita

In

substitutionally or by way of succession, means the persons entitled under the intestate laws." In McCrea's Estate, 180 Pa., 81, Judge Ashman, who delivered the opinion of the Court below, which was affirmed in a per curiam on appeal, said: "The word heirs' when used to denote succession in a gift of personalty is always a misnomer, because 'heirs' is a word of limitation, and there can be no limitation, in strictness, of a chattel interest. Its popular meaning comprehends those who succeed to the property of an ancestor, and hence includes next of kin and those who take under the statutes of distribution as well as heirs-at-law. The Courts are forced to accept this definition where a gift of personalty is to one and his heirs, or to one for his life and then to his heirs. Comly's Estate, 136 Pa., 153; Neely's Estate, 155 Pa., 133, and Ashton's Estate, 134 Pa., 390, the gift was, after a life estate to the first taker, to his heirs, and it was held that those parties were entitled who were named in the statutes of distribution. In Eby's Appeal, 84 Pa., 241; Patterson 7. Hawthorn, 12 S. & R., 113, and McGill's Appeal, 61 Pa., 46, the gift was to certain persons or their heirs, and heirs' was held to mean personal representatives, making the bequest equivalent to a gift to the first takers, their executors and administrators. In none of these cases could there be any doubt as to the meaning of the testator, and in each the Courts adopted the word which he had inartificially applied to a gift of personality, and gave to it that of next of kin or of personal representatives, because that was the meaning which he had evidently placed upon it. But they did that simply from necessity and in order to give effect to the testamentary purpose. Where the purpose is not clearly expressed to the contrary, authority is equally abundant to show that they will adhere to the technical meaning of the word, for the ample reason, among others, that every intendment is to be made in favor of the heir: Ivin's Appeal, 106 Pa., 176; Keys' Estate, 4 District Reps.. 281; Stewart's Estate, 147 Pa.. 383. The sole question. here is: What did the testator mean by