LANCASTER LAWREVIEW VOL. XXXVI] FRIDAY, MARCH 7, 1919. [No. 19 H. Frank Eshleman and B. F. Davis, contra. January 18, 1919. Opinion by HASSLER, J. Common Pleas Equity. ment. False Frey v. Barr (No. 2). of proof-Damages Commitment as The act of April 20th, 1869, P. L. 78, providing that insane persons may be placed in an asylum only on certificate of two physicians "after personal examination made within one week of the date thereof," means one week prior to the commitment. Where, therefore, a person was taken to and confined in an insane asylum without such certificate, which was given the next day, the commitment was illegal, and the party at whose instance and request it was made, is liable in an action for false imprisonment, even though the jury find that the plaintiff was in sane. In an action for false imprisonment, the burden is not on the plaintiff to show malice or want of probable cause, as in malicious prosecution, but malice is presumed and the burden is on the defendant to justify the arrest. This burden is not discharged by testimony of his alleged insanity and a certificate made by two physicians the day after the incarceration of the plaintiff in an insane asylum. In such case it is proper to charge the jury: "If you find from the testimony that he was not insane and was improperly detained there after the physicians had examined him, then he would be entitled to recover such damages as he sustained for the whole period of nine days and five hours during which he was confined." On the trial of a case, a witness for the defendant should not be permitted to testify as to what another witness said in the absence of the plaintiff except as affecting his credibility, and must be so limited when offered, and only such facts could be contradicted as the party could have proven as part of his own case. Action for damages for false imprisonment. Verdict for plaintiff for $520. Rule for a new trial. C. P. of Lancaster Co. August Term, 1917, No. 35. This is an action for false imprisonment. The parties are brothers-in-law. At the instance of the defendant the plaintiff was taken to and confined in the Lancaster County Insane Asylum without having been first examined by two physicians, as required by law. This examination was subsequently made, and the physicians who made it reported him to be insane. After a short period of confinement, nine days and five hours, he was discharged. We will refer to the facts more fully in disposing of the different reasons for a new trial. As we are of the opinion that the verdict in this case is fully justified by the testimony, both as to its being favorable to the plaintiff and as to its amount, we think the first and second reasons are without merit. The third reason is that we “erred in disallowing the testimony of Ida Barr, and other witnesses, offered to contradict Elizabeth Frey, the wife of the plaintiff, and to witnesses in his behalf, in statements made by her on cross-examination concerning the acts and behavior of the plaintiff about and shortly before his commitment." We are unable to find any offer expressly made for that purpose in the record. No offer that could have had such effect was disallowed, except it might be our refusal to permit Mrs. Ida Barr, defendant's wife, to testify what Elizabeth Frey, wife of the plaintiff, said at the time of the sale of her father's property, in the absence of the plaintiff. As a matter of fact, she did answer the question, and it was not stricken from the record but was considered by the jury. She should not have been permitted to testify what the plaintiff's wife told her in the absence of the plaintiff unless it was offered solely for the purpose of affecting her credibility as a witness, and it must have been so limited when offered. This was not done. Even D. McMullen, for defendant and rule. for that purpose, to affect the witness's credibility, only such facts could be contradicted as the party could have proven as part of his own case: Hildeburn v. Curran, 65 Pa. 59; Com. v. Grauman, 52 Sup. 215; Henry on Trial Evidence, Section 470. The facts involved here, viz., what the plaintiff's wife said in his absence, could not have been so proven. The remaining four reasons question the correctness of our instructions to the jury to find a verdict for the plaintiff and as to how they should find the amount of it. We will first consider the effect of our instructions as to the right of the plaintiff to recover. We instructed the jury in substance, and we think correctly, that as the plaintiff had been committed to and confined in the Insane Asylum at the instance of the defendant without having been first examined by two physicians, who found him to be insane and a proper subject for confinement in an asylum, his commitment and confinement was illegal, and entitled him to recover damages from the defendant, as it was at his instance that he was so confined. The Act of the 20th of April, 1869, Section 1, P. L. 78, provides that insane persons may be placed in a hospital for the insane, but never without a certificate of two or more reputable physicians after personal examination made within one week of the date thereof, etc." It is admitted that no such examination was made prior to the plaintiff's commitment, but was made the day afterwards, and it is contended that this is in compliance with the Act of Assembly because the words "within one week of the date thereof," mean a week before or after the date of commitment. This contention loses sight of the real purpose of the Act of Assembly. It was passed to protect the liberty of our citizens by preventing the commitment of sane persons to such institutions. The power given to relatives and friends by the Act is a dangerous one, and is only to be exercised where all the requirements of the Act have been complied with. The examination by the physicians must be made and the certificate signed before commitment, and for the reason that the mental condition of a person might change and he become sane shortly after such examination, the Act requires that it must have been made within a week prior to the date of the commitment. If it could be made a week afterwards it would not prevent the confinement of sane persons in asylums when it suited the wishes or whims of relatives or friends to get rid of them for a time. This is an action for false imprisonment and not for malicious prosecution. In Lentz v. Raum, 30 L. L. R. 121, we pointed out the distinction between them. Among the cases cited in that opinion is Mikelberg v. Philadelphia Rapid Transit Co., 16 D. R. 906, in which Judge Moschzisker says: The rules of law governing an action for malicious prosecution and the rules governing in an action for false arrest are essentially different. In an action for malicious prosecution, the burden is upon the plaintiff to show, in the presentation of his case, want of probable cause on the part of the defendant to justify the criminal prosecu tion and malice moving the defendant to the prosecution. In this action malice is never assumed; it must either be expressly shown or be inferable from the want of probable cause; while in the action for false arrest, after the plaintiff has shown the arrest, then the burden is upon the defendant to prove that such arrest was by authority of law and rested upon probable cause; or in the case of a public officer charged with the duty of apprehending those accused of crime, if he cannot show probable cause, to disprove malice. In this form of action malice need not be shown as an element in the presentation of the plaintiff's case; malice sufficient to support the action is always assumed until the contrary ap pears in the evidence, and ordinarily it is of no importance, excepting as it affects the damages: 12 Am. & Eng. Ency. of Law (2d ed.) 726; McCarthy v. DeArmit, co Pa. 63; Neall v. Hart, 115 Pa. 347." We know of no authority in Pennsylvania that holds that in such an action it is essential for the plaintiff to show that the criminal action was determined in his favor in order to avoid a non-suit. In McAleer v. Good. 216 Pa. 473, it is also decided that the | show that he did not do some of the burden of showing probable cause in such case as this is on the defendant. The defendant has not disproved malice in his act in having the plaintiff committed to and confined in the asylum, as he has shown no legal authority for it. The testimony of his alleged insanity and his examination by two physicians after his commitment was not authority to commit, as the act requires that such examination be made and a certificate be signed before commitment. As this was not done, the imprisonment of the plaintiff was illegal, and he is entitled to recover. In our opinion filed in this case March 30, 1918, granting a new trial [Frey v. Barr (No. 1), 35 LAW REVIEW 237], we decided that the defendant was liable if at his instance and request the plaintiff was committed. To the same effect, see McAleer v. Good, 216 Pa. 473. He testified that he caused the plaintiff's commitment. We are convinced that the plaintiff was entitled to the verdict, and that we did not err in so instructing the jury. acts alleged, and he has produced quite a number of witnesses who knew him well and saw him at or about this time, and who testified that he was all right mentally, that is, that he was not insane. This must be considered by you in arriving at your estimate of the damages, for if you find from the testimony that he was not insane, and was improperly detained there after the physicians had examined him, then he would be entitled to recover such damages as he sustained for the whole period of nine days and five hours during which he was confined. But if you find that he was insane, then his detention after the physicians' examination was legal and proper, and he would only be entitled to recover damages for the detention from the time of his commitment until the physicians examined him, which was about one day. "There can be no recovery of exemplary, or punitive damages which are claimed in this case, because it does not appear from the testimony that the defendant acted wantonly and wilfully, but that he acted because of threats of the plaintiff which had been communicated to him. You can, therefore, only allow such damages as will compensate the plaintiff for the injury he has sustained. The plaintiff has not shown any outlay of money or expense incurred by reason of his confinement in the asylum. You, however, can allow him fair compensation for the humiliation and disgrace put upon him by the illegal confinement in the asylum, as was done for at least a period of one day, and you have a right to take into consideration. all the circumstances of the case, including the plaintiff's standing in the community, and all other matters which may enable you to determine what will be fair compensation. The law fixes no rule to measure damages in such case, but leaves it to your sound discretion, But it is complained that we did not use the proper rule as to measuring the damages in instructing the jury how to arrive at their verdict. We said on this subject: "From the time of the examination by the physicians his imprisonment, or detention, was not illegal in this respect, and the question then arises for your consideration whether he was a proper subject for confinement in an asylum. The burden rests upon the defendant to show this, for in that way he would show that he had probable cause for the plaintiff's confinement in the asylum. I will not go over the testimony in detail. Two doctors have examined him, and have certified that he was insane. You have heard the testimony of a number of witnesses all on behalf of the defendant to show that his acts were those of an insane man. Some have ex-you being men of affairs and able to pressed their opinion of his insanity about the time of his confinement. On the other hand, the plaintiff testifies that he was not insane, denies many of the acts testified to by the defendant's witnesses, and produces other witnesses to conclude from all the circumstances what would properly compensate the plaintiff under the circumstances as shown in this case." The only complaint as to these instructions, urged at the argument of the for its execution; and although these may be perfectly arbitrary, yet, being required by the creator of the power, they can be satisfied only by a strictly literal and precise performance of them: Slifer v. Beates, 9 S. & R. 166, at page 181; Rutland v. Wythe, 10 Cl. & Fin. 425. rule, is that it gave the jury the idea is disposing of his own property, may that the humiliation and sense of dis-prescribe whatever ceremonies he pleases grace suffered by the defendant on account of his illegal arrest could be multiplied by the nine days he was confined. We see no merit in this contention. As the last eight days of plaintiff's confinement was under the physicians' certificate, there was some legal authority for it, and we were bound to so instruct the jury, if they found from the testimony that the plaintiff was insane. Of this, however, there was considerable doubt, as the testimony of numerous witnesses was to the effect that he was sane. We are satisfied with the correctness of these instructions, and we discharge the rule for a new trial. Rule discharged. Orphans' Court. Price's Estate. In this case the power should, by the will of the donor, be executed "by last will or testament or writing in the nature thereof, duly attested." The donee executed his will with the expressed intention of exercising the power, but there were no subscribing witnesses to the will nor was it even executed in the presence of witnesses, so that the will was admitted to probate upon proof of the signature only. That the will was not "duly attested" must be admitted since the decisions in Irvine's Estate, 206 Pa. 1, and Paxson's Estate, 221 Pa. 98, and consequently the auditing judge correctly held that the will was not a valid exercise of the power. The learned counsel for the exceptant ingeniously argued that the words "duly attested" qualify only the Powers-Execution by will or other writ- words immediately preceding them, viz., ing "duly attested." The donor of a power, inasmuch as he is disposing of his own property, may prescribe whatever ceremonies he pleases for its execution, and although these may be perfectly arbi trary, yet, being required by the creator of the power, they can be satisfied only by a strictly literal and precise performance of them. Where, by the will of the donor, a power should be executed "by last will or testament or writing in the nature thereof, duly attested," and the donee executed his will with the expressed intention of exercising the power, but there were no subscribing witnesses to the will, nor was it even executed in the presence of witnesses: Held, that the will was not a valid exercise of the power. a writing in the nature thereof," and do not apply to the words "last will or testament "; but this interpretation is opposed to the natural grammatical construction of the sentence and is not supported by any inference from its punctuation. In fact, an inspection of the original will discloses a comma after the word "thereof" and preceding "duly attested," so that if any reliance is to be placed on mere punctuation, the latter words would apply to all that goes before. The question is not new in England. Sugden on Powers, 8th ed., page 224, lays down the rule that where only one Exceptions to adjudication. O. C. of power is given, and it is authorized to Phila. Co. Oct. T., 1890, No. 119. John C. Hinckley, for exceptant. W. H. G. Gould, contra. May 24, 1918. Opinion by GEST, J. The donor of a power, inasmuch as he be executed by different instruments, although the ceremonies required to the execution are not stated after each instrument, they will relate to both, and the proposition is supported by several pertinent authorities. The exceptions are, therefore, dismissed and the adjudication confirmed absolutely. LANCASTER LAWREVIEW VOL. XXXVI] FRIDAY, MARCH 14, 1919. [No. 20 Common Pleas-Law. Wm. J. Coulter, Adm'r d. b. n. c. t. a. of Mary A. Flury, dec'd, v. Harry B. Rowe, Ex. of Julia J. Rowe, dec'd. longed to plaintiff's testator, and, second, because the statement alleged that she gave this money to Julia J. Rowe, the defendant's testatrix, as trustee for her husband. In his statement the plaintiff sets forth his cause of action substantially as follows: Mary A. Flury, plaintiff's testator, died on April 15, 1913. In 1908 she sold a house and deposited in the Lancaster Trust Company twenty-five hundred dollars of the proceeds of that sale on a certificate of deposit. It was renewed annually by her in her own name Trust-Certificate of deposit-Allegata and that of her husband until September and probata. In a suit by an administrator against an executor to recover the proceeds of a certificate of deposit received in her life time by the defendant's decedent on the ground that the latter had gotten it from the plaintiff's decedent and held it as trustee for the deceased husband of the plaintiff's decedent, a verdict for the defendant is properly directed in the absence of proof as to the circumstances under which it was given to the defendant's decedent or placed in her name or held in trust by her. A trust can not be set aside in an action such as this, by one who has created the trust or as in this case by her personal representative. Under a statement which alleges that the defendant was acting as trustee for a third party of the money in question, the plaintiff can not recover on proof that the money at one time was the property of the plaintiff as no implied promise to repay would arise. A plaintiff can only recover on the cause of action set forth in his statement. Assumpsit. Rule for a new trial. C. P. of Lancaster Co. August Term, 1917, No. 77. John A. Nauman, B. F. Davis and E. D. Zeigler & Son, for defendant and rule. J. E. Senft and John E. Malone, contra. January 18, 1919. Opinion by HASSLER, J. The five reasons for a new trial filed in this case raise but a single question, which is whether we erred in giving the jury binding instructions to find a verdict for the defendant. We gave as our reasons for doing this, first, because there was no proof that the money be 9, 1912, when it was renewed by " Mary A. Flury or Julia J. Rowe, and made payable to the order of either." It was endorsed by and paid to Julia J. Rowe, on May 20, 1913. She then obtained a new certificate of deposit from the Lancaster Trust Company for the said sum of twenty-five hundred dollars, which was subsequently endorsed by and paid to her. It is alleged in the statement that Julia J. Rowe's name was placed on the certificate of deposit of September 9, 1913, as trustee for Jacob K. Flury, husband of said Mary A. Flury, and that on October 10, 1912, being the date of the will of Mary A. Flury, and on April 15, 1913, the date of her death, Julia J. Rowe was acting as trustee of said money for said Jacob K. Flury, husband of said Mary A. Flury. At the trial it was proved that the certificates of deposit were issued as set forth in the statement, that Julia J. Rowe endorsed and received the proceeds of the one dated September 9, 1912, being in the names of Mary A. Flury and herself, and on May 20, 1913, a new certificate of deposit was issued to her, in her own name, for the sum of twenty-five hundred dollars. Mr. Miller, a witness for the plaintiff, identifies the money so obtained by her as the money deposited by Mary A. Flury, but none of the circumstances under which it was given to Julia J. Rowe, or placed in her name and held in trust by her, were shown, so that the proof of the fact that it was the money originally deposited by Mary A. Flury and at one time belonged to her, |