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Ascension Day, All Saints' Day, Ash otherwise all commerce between man Wednesday, and Good Friday. Taylor and man must soon be at an end. v. Chambers, Cro. Jac. 68.

Therefore the general rule of law is that "Ae market day he was sober,-"

all sales and contracts of anything ven

dible in fairs or markets overt shall not was not written of London but Ayr, only be good between the parties, but where they made the market day heb- also be binding on all those who have any domadal. According to Bracton, as construed by This rule applies to all goods and chattels

right or property therein." 2 Com. 449. Lord Hale, 2 Inst., 567, a new market so sold, save only those which have been might not be established nearer than stolen and the thief thereof duly con623 miles to an old one. If the new mar- victed. Keble v. Brown, Cro. Eliz., 661. ket was on the same day as the old one In London every tradesman's shop is a it was prima facie a nuisance and abat- market overt for the articles wont to be able. But if the new one be on another

sold there. day, it cannot be presumed a nuisance, fixed by grant or usage not only time and

In the country there must be but may be so proven to a jury, and will then be abated. 3 Bl . Com. p. 218. In place, but also the class of articles sold

there, to constitute a market overt. This such cases also action would lie to re

feature of market has not crossed the cover damages. Rol. 140, Yard v. Ford, Atlantic, and is not known in America. i Mod. 69. The doctrine of the common 3 Bl. Com. n. What we lack in variety law was that every man, buyer and of law for our American market is fully seller, ought to have a market within supplied in the rich variety of comestibles one-third of a day's journey (20 miles) found therein, as Fulton Market in New from his own house. This was based York, French Market in New Orleans, upon the idea that only one day should and the markets of Philadelphia, Baltibe consumed in marketing, i. e. one-third in going, another in transacting his af- more, and Washington will show on any

Saturday -Case and Comment. fairs, and the third in returning. 3 BI. Com. 219. This was, of course, for the convenience of both sellers and buyers,

O. C. OPINION AND ADJUDICA

TIONS. and it resulted that the markets or fairs were scattered over all England with very Thursday, January 7, 1915. rarely greater space than 15 miles apart.

By JUDGE SMITH. According to Magna Charta, v. 25, there

Opinion: was throughout the Kingdom uniform

Estate of John C. Montgomery, deweight for all things, and but one measure for corn, wine, ale, and beer. Own- ceased. Exceptions to adjudication disers and governors of fairs and markets missed and adjudication confirmed abso

lutely. were required to enforce this provision scrupulously; and for this purpose they

Adjudications: were allowed to appoint a clerk of the

Maria Huxtable, East Lampeter. fair or market. F. Moore, 523. His

Jonas Eshleman, East Hempfield. honor and duty it was to hold the lowest

B. Frank Hougendobler, Salisbury. and swiftest court of the Kingdom,

Franklin VcFalls, Columbia Boro. known to the bar as curia pie poudre, and

Reuben Shirk, City. to the common people as “pie powders,"

May Becker, City. where all market cases were decided Lewis Graybill, Fulton. “off hand.”

Jonas K. Eaby, Leacock. Market overt is the name of an open Monday, January 18, 1915. and public market, where every sale

J. N. Cohn, City. passes a good title to the buyer, even Jacob K. Eckert, City. though the seller has none at all; for," Solomon P. Parmer, Salisbury. says Blackstone, “it is expedient that the Amandus Ulrich, City. buyer, by taking proper precautions, may Abram B. Witmer, Earl. at all events be secure of his purchase; Sarah Yeager, Rapho.

LANCASTER LAW REVIEW. ing the authority given him by law is a

an

Common Pleas-- Law.

trespasser ab initio. Vol. XXXII.] FRIDAY, JAN. 29, 1915. (No. 13 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 det tion after the time warranted. And the con

verse of the proposition is also true, that Huber y. Walker.

where there has been a lawful taking

into custody there can be no false imFalse arrestDelay after legal arrest. prisonment in the absence of subsequent

While unreasonable detention after a legal improper detention.” On page 746 of arrest constitutes an unlawful arrest, there is the same, it is said:.“ Likewise it will no such unreasonable delay where the defend-constitute false imprisonment if there be ant, after arrest about fifteen miles from the unreasonable delay in presentment of the city where was the office of the alderman who prisoner to a magistrate for examination issued the warrant, was taken before the prosecutor for an interview of over an hour, and or trial.” then, after another delay in getting a team, In Kirk v. Garrett, 35 Atlantic, 1089, was driven to a trolley and brought to the

a Maryland case, it is said: “It cannot alderman's office, and from there to the district attorney's office, after three stops at

be questioned that, when a person is hotels for drinks, and there was discharged on

arrested, either with or without a warhis own recognizance to appear at a future rant, it becomes the duty of the officer hearing.

or the individual making the arrest to Rule to strike off judgment of non

convey the prisoner in a reasonable time, suit. C. P. of Lancaster County. Feb- and without unnecessary delay, before a

magistrate, to be dealt with as the exiruary Term, 1913, No. 27.

gency of the case may require. The Coyle & Keller, for rule.

power to make the arrest does not in

clude the power to unduly detain in cusH. Frank Eshleman and H. Edgar tody; but, on the contrary, is coupled Sherts, contra.

with a correlative duty, incumbent on January 9, 1915. Opinion by Hass- the officer, to take the accused before a LER, J.

magistrate 'as as he reasonably

can.' . .. If the officer fails to do this, The plaintiff seeks in this action to and unreasonably detains the accused in recover damages for false imprisonment. custody, he will be guilty of a false imAt the trial we entered a non-suit, which prisonment, no matter how lawful the we are now asked to strike off.

original arrest may have been.” The testimony shows that the defend- In Mulberry v. Fuelhart, 203 Pa., 573, ant, who is a constable, arrested the it is said, when the action taken is lawplaintiff in Martic Township, this ful it cannot be made illegal ab initio, county, on January 25, 1913, on a war- | unless by some positive act incompatible rant issued by an alderman of this city with the exercise of the legal right to do The arrest was, therefore, admittedly the first act. proper, but the plaintiff complains that What constitutes unreasonable detenthe subsequent acts of the defendant tion, there being no dispute as to the were illegal, and rendered him liable to | facts, is a question of law for the Court: answer in damages for false imprison- Reslı 2. Bahr, 8 Northampton, 174; 12 ment. These acts were, in not taking ! A. & E. Enc. of Law, 748. him directly to the alderman's office, or The testimony at the trial showed that in unreasonable delay in doing so. after the arrest the defendant took the

In Owen v. Schmidt, 14 Phila., 183, plaintiff to the mill of the prosecutor, a Judge Thayer decides, upon authorities mile and a quarter away, where they recited by him, that the abuse of a lawful mained about an hour, during which arrest stands on the same footing as an time the prosecutor urged him to tell all

soon

he knew about the alleged offense, prom-, and debt on it as much as it is worth; I ising him to leave him go and pay him don't want to get into trouble.” well for it if he did so. He told the The defendant also said to Mr. Difplaintiff he desired to know who the fenbaugh: “I can't take no bail; you other parties were. The prosecutor then aint worth $500; I can't take no bail for got his horse and buggy and took the this here.” The plaintiff made no replaintiff and defendant to Willow Street, quest to look for bail. where they boarded a car for this city. Having been arrested in this county, Arriving here, the defendant started the defendant was not required to take with the plaintiff towards the office of the plaintiff to the nearest justice to perthe alderman who had issued the war- mit him to give bail, as is the case where rant. On the way they met a man, upon one is arrested outside of the jurisdicwhose invitation they went into a hotel tion of the justice issuing the warrant: and took a drink. · Three glasses of beer Act of May 2, 1899, Sec. I, P. L. 173. were ordered, but the plaintiff, who was It was the defendant's duty to take the a minor, said he did not drink beer, plaintiff to the alderman who issued the whereupon something soft was ordered warrant without unnecessary delay. If for him, which he did drink. They then he did this there was no unreasonable went to the alderman's office. The alder- detention, and consequently no false imman directed the defendant to take the prisonment. The defendant had the plaintiff to the district attorney's office, choice of two ways of going to the which he did. On the way they stopped alderman's office, one by the trolley road, at two hotels. The plaintiff at both the station of which was a mile and a places refused beer and took soft drinks. quarter from the place of arrest, and He did not request to be taken into these one by walking the same distance where hotels, but apparently went willingly. a team was to be provided which was to Arriving at the district attorney's office, take them to another trolley road, and that official directed the defendant to let thence to this city. The former is much the plaintiff go home after signing a the longer route. It was the defendant's recognizance, and after he promised to right to choose which route he would come up to Lancaster the following take. Thursday for a hearing. They then They waited at the mill of the prosewent together to Center Square, and on cutor about an hour. Then a horse and the way the defendant told him not to buggy was provided, and the defendant tell his father about the affair, and not was brought to Lancaster. The team did to bring any one with him to the hear- | not belong to the defendant, and he was ing, and not to have his attorney there. required to wait a reasonable time until

A trolley road runs from Marticville the prosecutor got it ready to bring to to Millersville, where it connects with a Lancaster. A wait of an hour was not road to Lancaster. The station at Mar- an unreasonable time. The delay was ticville is about one and a quarter miles not for the purpose of putting the plainfrom where the plaintiff was arrested. tiff through the third degree, as has been

When the plaintiff was arrested, Mr. suggested by counsel. He was asked to Diffenbach, his employer, offered to go tell who the parties were who comhis bail, but the defendant told him he mitted the offense. He was promised could not take him, as he was not worth immunity if he did so. He was not $500, which Mr. Diffenbaugh did not threatened nor intimidated in any way. deny. Mr. Diffenbaugh then asked the The defendant's stopping in at the defendant to take the plaintiff to his three hotels on the way to and from the father, but the defendant told him he alderman's office, while most improper, had seen his father the night before, and was not an unlawful detention of the he had told him to take the boy and it plaintiff. He went into them willingly would be all right. The father testified and partook of the refreshment furthat he told the defendant that the plain- | nished. The request that he bring no tiff would have to go to jail, saying: “I one to the hearing, that he should not can't help it; I have a little place here, tell his father, or have his attorney at the hearing, cannot possibly amount to principal sum when demanded, to s'd false imprisonment.

Henry G. Hoffer and his wife, during As there was no dispute as to the facts their lives, or the life of the survivor of at the trial, it was a question of law for them, and the remainder of said printhe Court to say whether these facts cipal sum, if any, in one year after the showed unnecessary detention. We were death of the survivor, to the legal heirs of the opinion that they did not do so, and representatives of said Henry G. and have had no reason since to change Hoffer, according to law." it. We, therefore, discharge the rule for Mary Hoffer died on June 20, 1902, a new trial.

and Henry G. Hoffer died on July 2, 1905. Henry G. Hoffer left to survive

him three children, namely: Monroe 0. Hoffer v. Hoffer.

Hoffer, who is since deceased; Matthias Charge by deed—Legal heirs and rep- | 0. Hoffer, the plaintiff, and Henry 0.

resentatives ” — Next of kin Exec-Hoffer, the defendant. No part of the utor-Advancement.

said charge of $2,000.00 was ever paid

by Henry O. Hoffer to his parents, Where land is conveyed subject to a charge Henry G. Hoffer and Mary Hoffer, durpayable after the death of the grantor to his · legal heirs and representatives according to

ing their lives. Therefore, upon the delaw," the charge is payable to the next of kin cease of Henry G. Hoffer, the whole of of the grantor directly and not to his executor. the said sum was, according to the pro

Rule for judgment for want of a suffi- visions of the said deed, payable by cient affidavit of defense. C. P. of Lan- Henry O. Hoffer, who then remained caster Co. June Term, 1914, No. 40.

the owner of the said land, to “the legal

heirs and representatives of said Henry I’m. R. Brinton and M. G. Schaeffer, G. Hoffer, according to law.” for plaintiff.

The defense set out by the defendant

in his affidavit of defense was to the folHarnish & Harnish and D. McMullen, lowing effect: When Henry G. Hoffer for defendant.

died he left a last will and testament, January 9, 1915. Opinion by LANDIS, and in it he directed that all his property P.J.

and estate should be converted into cash

by his executors, and that, after the payThere is no dispute concerning the ment of his debts and funeral expenses, facts arising in this case, and the only the remainder should be divided in equal question to determine is, whether, under shares among his three sons. them, the plaintiff is entitled to maintain pointed Henry 0. Hoffer and Monroe his action. It appears that Henry G. Hoffer his executors, and they took out Hoffer and Mary Hoffer, his wife, in letters testamentary and filed in the Regconsideration of the sum of $6,600.00 ister's Office an inventory of his estate. ($2,000.00 of which was charged), by They included in the inventory this indenture dated March 27, 1895, and re- charge of $2,000.00, ana? subsequently, corded in the Recorder's Office of Lan- when they filed their account in the Orcaster County, in Record Book Z, No. phans' Court, they charged themselves 21, at page 74, etc., granted and con- with the whole amount of the inventory. veyed unto Henry 0. Hoffer, the de- Their account came before the Orphans' fendant, a messuage and tract of land Court for audit and adjudication, and situated in Penn Township, this county, i a balance, as ascertained to be in their containing 67 acres and 127 perches. hands, was distributed by that Court. The charge referred to, as recited in the In making the distribution, the Orphans' said deed, was as follows: “And further Court charged up against Matthias 0. subject to a lien or charge of Two Thou- Hoffer an advancement of $1,109.00, sand Dollars, which is to remain charged and, after deducting the same from his upon the said premises, the interest share, awarded him $10.67. This award thereof, at the rate of 5 per cent, to be he has so far refused to accept. The paid annually, as well as also part of the question raised by the defendant is, that

He ap

this adjudication is a defense to the pres- | tion to the heirs of the first taker, either ent action. It is clear that, if the exec- substitutionally or by way of succession, utors were entitled to collect the amount means the persons entitled under the inof the charge contained in the deed, then testate laws." In McCrea's Estate, 180 the Orphans' Court had authority to Pa., 81, Judge Ashman, who delivered make the distribution upon that basis, the opinion of the Court below, which and the plaintiff would now be prevented was affirmed in a per curiam on appeal, from recovering judgment in this suit. said: "The word 'heirs' when used to But, on the other hand, it is equally clear denote succession in a gift of personalty that, if the executors were not entitled is always a misnomer, because ‘heirs ? to demand the amount thus charged in is a word of limitation, and there can the deed, the Orphans' Court had no be no limitation, in strictness, of a chatauthority to distribute that money to the tel interest. Its popular meaning comprejudice of the plaintiff, and its action prehends those who succeed to the propin so doing cannot affect nor bind the erty of an ancestor, and hence includes plaintiff. This proposition is not charged next of kin and those who take under in the least by the fact that the executors the statutes of distribution as well as included the charge in their inventory heirs-at-law. The Courts are forced to and account. The plaintiff was in no accept this definition where a gift of perwise a party to any such arrangement, sonalty is to one and his heirs, or to one and therefore cannot be prejudiced by for his life and then to his heirs. In their act.

Comly's Estate, 136 Pa., 153; Neely's The inquiry, therefore, which controls Estate, 155 Pa., 133, and Ashton's Esis: Was the money, under the terms of tate, 134 Pa., 390, the gift was, after a the charge, payable to the executors of life estate to the first taker, to his heirs, Henry G. Hoffer as part of his estate, or and it was held that those parties were was it payable to his three sons indi- entitled who were named in the statutes vidually as legal heirs and representa- of distribution. In Eby's Appeal, 84 Pa., tives? The said sum of $2,000.00, or 241; Patterson 7. Hawthorn, 12 S. & R., “the remainder of said principal sum,” 113, and McGill's Appeal, 61 Pa., 46, was directed to be paid one year after the gift was to certain persons or their the death of the survivor to the legal heirs, and ‘heirs' was held to mean perheirs and representatives of said Henry sonal representatives, making the beG. Hoffer, according to law.” It was quest equivalent to a gift to the first not, eo nomine, payable to his executors. takers, their executors and administraUnless the words legal heirs and rep- tors. In none of these cases could there resentatives ” are to be construed as be any doubt as to the meaning of the meaning executors, Henry O. Hoffer, as testator, and in each the Courts adopted the owner of the land, had no right to the word which he had inartificially appay it to himself and his brother as plied to a gift of personality, and gave executors, and thus defeat the right of to it that of next of kin or of personal the plaintiff under the deed.

representatives, because that was the In Gibbons v. Fairlamb, 26 Pa., 217, meaning which he had evidently placed a testator provided that, in case of the upon it. But they did that simply from death of any of his legatees, the bequest necessity and in order to give effect to of the one so dying should “descend to the testamentary purpose. Where the and be equally divided amongst his or purpose is not clearly expressed to the her heirs or representatives.” A daugh- contrary, authority is equally abundant ter died in his lifetime, leaving no issue, to show that they will adhere to the and her husband took out letters of ad- technical meaning of the word, for the ministration. It was held that, while he ample reason, among others, that every was the heir or representative of his wife, intendment is to be made in favor of the he could not recover as her administra- | heir: Ivin's Appeal. 106 Pa., 176; Keys' tor. In Neely's Estate, 155 Pa., 133, it Estate, 4 District Reps., 281; Stewart's was held that, “where the subject of a Estate, 147 Pa., 383. The sole question testamentary gift is personalty, a limita- ' here is: What did the testator mean by

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