son, and at the close of the evidence instructed the jury to return a verdict for the defendant Shafer. The court was clearly in error in both rulings.

The plaintiff and the defendant Shafer engaged in a personal altercation and fist fight on a street in Douglas. Bystanders separated them, and thereupon Shafer drew his revolver and told the plaintiff that he was under arrest. He took the plaintiff to the jail, and without lodging a complaint against him, or taking him before the magistrate, he confined him in jail, where the plaintiff remained from 1 o'clock in the afternoon until 10 o'clock the following morning, when he was brought into the courtroom, and Henson, the magistrate, made out a complaint. Henson testified that he made up his mind that the case was not strong enough to be prosecuted on the charge of resisting an officer, and that he thereupon wrote a complaint charging the plaintiff with using obscene and profane language, in violation of an ordinance of the town of Douglas. Thereafter plaintiff was found guilty by the magistrate, but on appeal to the District Court he was acquitted. At the time when the plaintiff was brought to the jail, Henson was present. He testified to the following conversation at that time:

"He [Shafer] said, 'I have got Von Arx down here.' And I said, 'You look as though you had got somebody.' And he was mud from head to foot, his face was scratched, and that is all I said. He said, 'I am going on to get my dinner and cleaned up;'. and that is all I saw of the marshal."

Fuesi, a hardware merchant, testified that in the afternoon of the day of the arrest, in company with one Hunsaker, he went to Henson and said that he and Hunsaker would "go good" for the plaintiff; "Let him out; let him go home;" and that Henson said, "Nothing doing until to-morrow at 10 o'clock." It is not denied that Fuesi and Hunsaker were men of property, and on the trial Henson admitted that he knew that the plaintiff could furnish any reasonable bail. He denied, however, that Fuesi and Hunsaker offered to go bail for the plaintiff; but he admitted that at 5 o'clock that afternoon he had a conversation with Fuesi, in which the latter said:

"What are you holding Von Arx for? You have no right to arrest him.' I said, 'Well, I don't know about that; well, he is in jail.' He said, 'I know he is; I heard so, but you cannot keep him in jail.' I said, 'Well, I guess I can; I guess we can.'"

Upon the facts as they are admitted by both the defendants, a gross and wanton outrage was committed upon the plaintiff. He was a property owner, and for 12 years had been a resident of the town of Douglas. He was arrested and deprived of his personal liberty, the right to which is most jealously guarded in American jurisprudence, and imprisoned in jail for a period of 21 hours without a warrant, without the semblance of legal process, and upon no charge of violation of law. The plaintiff testified that before he was put in jail he asked Shafer to bring him into court, that Shafer made no answer, and that on approaching the jail he said to Shafer, "Here is Mr. Henson in the doorway," and that Shafer took his club and said, "Come on to jail," and immediately put him in jail. Shafer denied that the plaintiff made any such request, and he testified that after he put the plaintiff in jail

he went out home to his dinner, then took his clothes to the cleaners, and afterwards was engaged in looking after witnesses on the case, up to about 4 o'clock, and that he then went to Henson to make out a complaint, but failed to find him in the office at that time.

[1] The laws of Alaska, applicable to the case, are not materially different from those which prevail generally in the states.

2389, Compiled Laws, provides:

Section

"That the defendant must in all cases be taken before the magistrate without delay."

And section 2408 provides:

"That when the defendant is brought before a magistrate upon an arrest, either with or without warrant, on a charge of having committed a crime, the magistrate must immediately inform him of the charge against him and of his right to the aid of counsel before any further proceedings are had."

It was the plain duty of Shafer, upon arresting the plaintiff, to take him forthwith to the magistrate. He had no right to defer this in order to eat his dinner, clean his clothes, or look after witnesses. Harness v. Steele, 159 Ind. 286, 64 N. E. 875; Ocean Steamship Co. v. Williams, 69 Ga. 251; Keefe v. Hart, 213 Mass. 476, 100 N. E. 558, Ann. Cas. 1914A, 716. In the case last cited the court said:

*

"The defendants had no right to detain the plaintiff to enable them to make a further investigation of the charge against him. It was their duty to bring him before the court as soon as reasonably could be done. * * It cannot be said as matter of law that their delay for an hour and a quarter was reasonable."

It was the plain duty of Henson, when he saw that the marshal had the plaintiff under arrest, to cause the plaintiff to be brought before him, and a charge to be made against him, and to afford him a hearing or the opportunity of bail. Instead of so doing, he permitted the marshal to imprison the plaintiff, and later in the day, when his right to hold the plaintiff in jail was challenged, his answer was, "Well, I guess I can; I guess we can;" and further said:

"Nothing doing. I don't want to talk to you any more. There is nothing doing until to-morrow morning at 10 o'clock."

This is not a case in which Henson can claim immunity from responsibility by reason of his office of magistrate. He never acquired jurisdiction of the person of the plaintiff, or the authority to hold him in jail. Instead of obeying the plain provisions of the law, he pursued a course wholly different in nature.

"When he does this, he steps over the boundary of his judicial authority, and is as much out of the protection of the law in respect to the particular act, as if he held no office at all." Cooley on Torts, 416; Brosde v. Sanderson, 86 Wis. 368, 57 N. W. 49; Piper v. Pearson, 2 Gray (Mass.) 120, 61 Am. Dec. 438; Clarke v. May, 2 Gray (Mass.) 410, 61 Am. Dec. 470; La Roe v. Roeser, 8 Mich. 537; Truesdell v. Combs, 33 Ohio St. 186; Robinson v. Dow, Fed. Cas. No. 11,950; Pratt v. Hill, 16 Barb. (N. Y.) 303.

[2] It is equally clear, upon the facts as they are admitted, that Shafer also is answerable in damages for false imprisonment. In 11 Ruling Case Law, 800, it is said:

"The duty of the one making such an arrest to bring the prisoner before a proper magistrate or prosecuting officer, that proceedings for the trial of the

prisoner may be instituted, and that he may have an opportunity to give bail or otherwise procure his release, is even more imperative than if a warrant had been issued before arrest."

In Ocean Steamship Co. v. Williams, 69 Ga. 251, the court said: "That it was the duty of the party making or causing the arrest to convey the person arrested, without delay, before the most convenient officer authorized to receive an affidavit and issue a warrant, is too plain to admit of cavil or dispute. Time is not given to make an investigation of the facts of the transaction, but to procure the warrant. 串串串 The arrest is allowed only for the purpose of carrying the party before a magistrate."

*

In Harness v. Steele, 159 Ind. 286, 64 N. E. 875, the court said: "But the power of detaining the person so arrested, or restraining him of his liberty, in such a case is not a matter within the discretion of the officer making the arrest. He cannot legally hold the person arrested in custody for a longer period of time than is reasonably necessary, under all of the circumstances of the case, to obtain a proper warrant or order for his further detention from some tribunal or officer authorized under the law to issue such a warrant or order. If the person arrested is detained or held by the officer for a longer period of time than is required under the circumstances, without. such warrant or authority, he will have a cause of action for false imprisonment against the officer and all others by whom he has been unlawfully detained or held."

In Leger v. Warren, 62 Ohio St. 500, 508, 57 N. E. 506, 508 (51 L. R. A. 193, 78 Am. St. Rep. 738), it was said:

"To afford protection to the officer or person making the arrest, the authority must be strictly pursued; and no unreasonable delay in procuring a proper warrant for the prisoner's detention can be excused or tolerated. Any other rule would leave the power open to great abuse and oppression."

In Brock v. Stimson, 108 Mass. 520, 11 Am. Rep. 390, Judge Gray said:

"The statute authorizes the arrest without a warrant, only as a preliminary step towards taking the prisoner before a court."

And the court held that, if the officer omits to take the prisoner before the court, he is liable to him for assault and false imprisonment. In Markey v. Griffin, 109 Ill. App. 212, the court said:

"The right to release upon bail is so firmly grounded in our system of jurisprudence by federal and state Constitutions, and statute and common law, that one accused of crime, whether guilty or innocent, cannot be deprived of the right with impunity. Whether bail shall be granted, or a party deprived of it, is not to be left to the determination of a city marshal or police officer."

Other cases of similar import are Schoette v. Drake, 139 Wis. 18, 120 N. W. 393; Jackson v. Miller, 84 N. J. Law, 189, 86 Atl. 50; Burke v. Bell, 36 Me. 317; Judson v. Reardon, 16 Minn. 431 (Gil. 387).

The judgment is reversed, and the cause is remanded for a new

trial.

GEORGE v. MEYERS.

(Circuit Court of Appeals, Ninth Circuit. May 7, 1917.)

No. 2805.

1. ASSIGNMENTS 132-ACTION ON ASSIGNED CLAIM-ISSUES, PROOF, AND VARIANCE.

In an action on an assigned claim, cross-examination to show that plaintiff was not the real party in interest was properly excluded, where such matter was not set up in the answer.

[Ed. Note. For other cases, see Assignments, Cent. Dig. §§ 227, 228.]

2. WITNESSES

AMINATION.

275(5)-CROSS-EXAMINATION-LIMITATION BY DIRECT Ex

In an action for services and for rent, where plaintiff on her direct examination testified concerning entries in a book by her husband, but confined her testimony to the work account, and the part of the book containing the rental account was not in evidence, and she was not questioned concerning such entries, a question, asked her on cross-examination, as to whether her husband wrote down in the book about the rent, was properly excluded.

[Ed. Note. For other cases, see Witnesses, Cent. Dig. § 971.]

230-EXAMINATION-IGNORANCE

3. WITNESSES DOCUMENTARY EVIDENCE.

OF LANGUAGE-READING

Where an Assyrian witness, who identified a page of an account book and testified that it was in his writing, stated that he could not translate the writing from Assyrian to English, the court properly refused to require him to read it the best he could, especially where the court and the jury had difficulty in understanding his testimony.

[Ed. Note. For other cases, see Witnesses, Cent. Dig. §§ 811, 812.]

4. WITNESSES 287(1)—EXAMINATION-MEANING OF WITNESS.

Where an Assyrian witness had great difficulty in making himself understood, it was not error to permit a question on redirect examination as to what he meant by the word "settling," and whether he meant that they paid afterwards, or whether anything more was said about settling.

[Ed. Note. For other cases, see Witnesses, Cent. Dig. §§ 930, 1000.] 5. WITNESSES ~388(2)—IMPEACHMENT-CONTRADICTORY STATEMENTS-LAYING FOUNDATION.

A question asked a witness as to whether, in a proceeding in the commissioner's court, another witness was not asked about a certain matter, was properly excluded, where the latter had testified, but no foundation for impeaching him had been laid by questioning him as to any statement before the commissioner.

[Ed. Note. For other cases, see Witnesses, Cent. Dig. § 1233.]

6. WITNESSES

280—CROSS-EXAMINATION—ARGUMENTATIVE QUESTIONS. Defendant in his cross-examination claimed to be unable to recall a date, whereupon plaintiff's counsel asked him if two of plaintiff's children were burned at the time of such fire, and whether "that didn't make any impression on your mind, so that you can tell this jury when that happened those two children and lots of the goods in the building lost, and still you don't remember when that fire occurred." The question was objected to as argumentative. Held, that there was no abuse of discretion in allowing counsel to call to the mind of the witness a circumstance from which the jury might infer that the witness was not testifying accurately in stating that he could not recall the date.

[Ed. Note. For other cases, see Witnesses, Cent. Dig. §§ 988, 990-993.] For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

1

In Error to the District Court of the United States for the First Division of the District of Alaska; Robert W. Jennings, Judge.

Action by Mrs. George Meyers against Michael George. Judgment for plaintiff, and defendant brings error. Affirmed.

Gunnison & Robertson, of Juneau, Alaska, for plaintiff in error. Cheney & Ziegler, of Juneau, Alaska, for defendant in error. Before GILBERT, MORROW, and HUNT, Circuit Judges.

HUNT, Circuit Judge. Mrs. George Meyers brought action against Michael George, stating two causes of action: One for services rendered; the other for rental of a store building occupied and used jointly by Mrs. Meyer's husband and the defendant, George. Plaintiff alleged that Meyers for good and valuable consideration assigned and transferred to her the demand for rental, and that she was at the time of the institution of the action the lawful owner and holder of the claim. The defendant filed a general denial, and made counterclaim for money loaned by him to plaintiff. The jury rendered a general verdict in favor of plaintiff for $418.35. Judgment was entered upon the verdict, new trial was denied, and the defendant George sued out a writ of error.

[1] Mrs. Meyers testified to the effect that her husband had assigned to her the rental account involved in the second cause of action. Upon cross-examination she was asked how much she paid her husband for the account. Counsel for plaintiff below objected, upon the ground that defendant had raised no question about there being an assignment, and that it was not necessary that Mrs. Meyers should have paid her husband anything, the account having been assigned for the purpose of collection in this suit. The court sustained the objection.

Meyers, the husband, testified that he had no interest in the case, financially or in any way, and that, if Mrs. Meyers obtained judgment, no part of the money would come to him. If the purpose of the crossexamination was to show that Mrs. Meyers was not the real party in interest, the answer should have set up such matter. Pomeroy's Code Remedies, §§ 131 and 711; 5 C. J. p. 994 et seq. In Haviland v. Johnson, 70 Or. 83, 139 Pac. 720, the Supreme Court of Oregon held that an assignment of a claim for the purpose of collection is based upon a valuable consideration and is sufficient, that a defendant is not to be prevented from making any defense that he could have made had the action been brought by the assignor in his own name, and that where the assignor is a witness in the case he is bound by the judgment.

[2] After Mrs. Meyers testified on her direct examination concerning rental payments and entries by her husband in a book, she was asked on cross-examination this question:

"About the rent in there, did your husband write down in this book about the rent, too?"

Plaintiff objected, upon the ground that the witness had not testified to the book about the rent due to Meyers, but had confined her testimony to the work account, which she said her husband wrote down for the defendant George and her. The court sustained the objection. The court did not err, because it does not appear that, when the ques