contracts in reference to these rights and in reference to sales of certificates (with certain exceptions) in writing; and, while it was doubtless competent for the probate court in Bexar county to have vested the title to certificate No. 864 in William Irvin, as the purchaser by the express terms of the order of confirmation of the sale to him, and while such may have been the legal force of said order without such terms, and notwithstanding the direction to the administrator to convey, as the administrator, in obedience to the terms of the order, and in obedience-as all the parties then doubtless believed-lIto the requisitions of the law," did convey the certificates by writing in the form of a deed to land, and as this certificate No. 864 was thus conveyed to Henry Beaumont, as above shown, with the full knowledge, as I must believe from the proof, of William Irvin, and under circumstances equivitlent to his express direction, I do not see how I can escape holding that this was a transfer and delivery of said certificate by Irvin to Beaumont, and that therefore no right in said certificate remained in Irvin which the plaintiff could take as the survivor at his death. The judgment of the court, therefore, must be for the defendant.
(Oircuit Oourt, E. JJ. Missouri, E. JJ. September 24, 1888.)
FALSE IMPRISONMENT-WHAT CONSTITUTES.
For about two weeks plaintiff was constantly guarded by defendant's detectives without any warrant, and all his movements were under their control, he being repeateqly urged to confess his guilt, and examined in regard to the robbery in such a manner as to clearly show that he was regarded as a criminal. and that, if necessary. force would be used to detain him. Held, that these facts warranted a finding that plaintiff was unjustifiably deprived of his liberty. . In such a case it is within the discretion of the jury to award punitive damages.regardless of the existence of actual malice, but a verdict for $20,000 is
At Law. On motion for new trial. 34 Fed. Rep. 646·. Action byD. S. Fotheringham against the Ad'amsExpress Company·. VerdictJor plaintiff., C. P. &J. D. Johnson, Thomas B. Harvey, and H. M.Bryan, for plaintiff. Martin, Laughlin Kern, for defendant.
. THAYER, J. With reference to the motion for a new trial which has been filed in this case and duly considered, it will suffice to say, that I entertain no doubt that the jury were warranted in finding that plaintiff
lAs to the allowance of exemplary in actions for false imprisonment, and ·what are excessive damages in such actions, see· Clarke v.Improvement Co., 85 Fed. B,ep, 478, aull note. .
V. ADAMS EXPRESS CO.
was unlawfully restrained of his liberty from about the 27th or 28th of October until the 10th of November following; that is to say, for a period of about two weeks. The testimony in the case clearly showed that during that period he was constantly guarded by detectives employed by defendant for that purpose; that he was at no time free to come and go as he pleased; that his movements were at all times subject to the control and direction of those who had him in charge; that he was urged by them on several to confess his guilt, and make known his confederates; and that he was subjected to repeated examinations and cross-examinatIOns touching the robbery, of such character as clearly to imply that he was regarded as a criminal, and that force would be used to detain him if he attempted to assert his liberty. The jury in all probability found (as they were warranted in doing) that during the time plaintiff remained in company with the detectives, he was in fact deprived of all real freedom of action, and that whatever consent he gave to such restraint was an enforced consent, and dId not justify the detention witHout a warrant. It is manifest that the court ought not to disturb the finding on that issue. The most important question that arises on the motion is whether the damages assessed are so excessive that the verdict ought to be set aside on that ground. It is apparent that the damages allowed are much greater than the actual damages plaintiff can be said to have sustained, consequence of the false imprisonment. The verdict therefore solely cannot be justified on the assumption that it was intended to be merely compensatory. Without doubt the jury intended to inflict exemplary or punitive damages. The amount of the verdict can be explained on DO other hypothesis. A question has been raised as to the right of the jury to award such damages in the absence of malice. It is urged that in the matter of depriving the plaintIff of his liberty without warrant, the defendant acted without malice, and that the jury have substantially so found by finding in defendant's favor on the counts for malicious prosecution. With reference to this contention it is only necessary to say that the right of the jury to assess punitive damages in this class of cases does not necessarily depend upon the existence of malice, using that term in its ordinary sense. Punitive damages may be awarded when a wr!>ngful actis done willfully, in a wanton or oppressive manner, or even when it is done recklessly,-that is to say, in,open disregard of one's civil obligations and of the rights of others. The cases on the subject show that in the matter of assessing damages for a false imprisonment, or for an assault or trespass, it is the duty of the jury to consider not only all the circumstances of aggravation attending the wrongful act, but in some measure, at least, the nature of the right that has been invaded, and the effect upon soolal order of permitting a wrong-doer to escape without substantial punishment, in case of a flagrant violation of the law and the rights of others. Huckle v. Money, 2 Wils. 205; Beardrrwre v. Carrington, ld. 244; Merest v. Harvey, 5 Taunt. 442; Conrad v. Insurance 00., 6 Pet. 268; Day v. Woodworth, 13 How. 363; Voltz v. Blackmar, 64 N. Y. 440; Drohn v. B1'ewer, 77 Ill. 280; Sherman v. Dutch, 1Q Ill. 283; Mc-
.Bride v. McLaughlin, 5 Watts;,.315j Turn]Yike 00. v. Boone, 45 Mel. 344; McWilliamsv.Bragg, 3Wis..42,t;Greenv.Craig,47 Mo. 90. Ihaverw doubt that it was: within the.dise.retion of the jury in the present caSe to assess substantial damages: aSS punishment of the wrong-doer, and to deter others from committing like offenses. The p;1aintiffwas taken into custody, originally, without a warrant, and was detained without even the color of legal process for such an unreasonable period that the wrong cannot be excused I under our,system of government, by the plea that such arbitrary measures were necessary to discover the, perpetrators of a great crime. Moreover, thejuryprQbably found (as they may well have done) that the evidence disclosed some circumstances of oppression on the part of defendant's agents in the transaction, and a disposition on their part to override time-honored laws intended to protect persons from arbitrary arrests and imprisonment, as well as a reckless disregard of plaintIff's rights as a citizen. All of these considerations evidently had weight with the jury, and induced them to award exemplary damages. While I am of the opinion. that it wasthe right of the jury, if not their duty, to award such damages, yet I have not been able to conclude that the amount actually assessed was reasonable. The damages allowed appear to me to be excessive, notwithstanding the fact that defendant's wealth properly formed one element in assessing the same. The verdict is certainly very much larger than the V'erdicts that have usually been returned in this class of cases. Uas large a verdict as the one now under consideration has ever been allowed to stand in an action for false imprisonment, the case has not been called to my attention, and probably no such case can be found. I am fully persuaded that in so far as .the damages are concerned, the verdict would not commend itself at first blush, or on careful consideration, to the judgment of dispassionate men Jully conversant with all the circumstances of the case, and for that reason I am of the opinion that it ought not to stand for the full amount assessed by the jury. But as the case consumed 15 days in the trial, and was probably conducted at great expense to the litigants, and as no exceptions, other than as to the amount of the damages, can fairly be taken to the verdict, a second trial ought to be avoided, if possible. I shall accordingly adopt the practice of permitting the plaintiff to remit a portion of the damages, if he so elects. Precedents exist for such practice, even where punitive damages are involved. Burkett v. Lanata, 15 La. Aim. 337 If plaintiff elects to remit at least 40 per cent. of the verdict, that is to say, the sum of $8,000, within the next five daYf:l, the motion for a new trial on the first count will be overruled, but otherwise it will be sustained. The motion for a new trial addressed to the second and third counts of the petition, on which a verdict was returned in defendant's favor, will in any event be overruled.
LILLIENTHAI. V. W ALLAdH.
(Oircuit Court, S. D. New York. October 4, 1888.)
lODGMENT-RENDITION AND ENTRY-STAY PENDING NEW TRIAL.
011 a motion to stay the entry of a judgment pending an application for a new trial, a decision was rendered that on plaintiff's filing security for costs he should have six weeks to make and serve his bill of exceptions or case, all proceedings for the entry of judgment except the taxation of costs to be stayed; but the order entered provided "that the defendants be stayed from entering judgment for the space of. six weeks, " and a resettlellleut of the order to make .the stay coterminous with the making and service of the bill of exceptions or caSe was refused. Held, that the stay which was operative on the defendant was not that mentioned in the decision, but that prescribed by the order, and that a subsequent order extending plaintiff's time to make and file his case, "in accordance with the decision herein, and without prejudice to the stay of proceedings therein ordeted, " did not operate as an extension of the stay. .
At Law. On motion to set aside a judgment. Lg:wrence &r Waehner, for plaintiff. Ftank E. BlachweU, for defendants.
LACOMBE, J. This is an action on the law side of the court. It was referred by consent, and the referee has found against the plaintiff on his claim, and in favor of the defendants upon a counter-claim set up by them. The opinion and report of the referee were filed July 12, 1888.· Plaintiff wishing to move for a new trial upon a case, and wishing time within which to prepare a bill of exceptions to be used as such case, obtained on July 20, 1888, an order to show cause why all proceedings of the defendants to enter judgment or enforce the report should not be stayed until the hearing and determination of a motion by the plaintiff to vacate and set aside the report, and for a new trial in the action. This order to show cause was made returnable August 3, 1888, and all proceedings of the defendants to enter judgment or to enforce the report were stayed until the entry of the order to be made on the determination of the motion for such stay of proceedings. On August 3d the order to show cause came on for argument, and a decision was rendered that defendants might proceed to tax their costs, and that upon plaintiff's filing security for the same, leave should be given him to move for a new trial, under the rule of February 5, 1877; and that his time to make and serve the bill of exceptions or case should be extended six weeks from August 3d. The decision further provided for a stay of all proceedings of the defendants to enter judgment subsequent to taxation of costs. The order upon this decision was prepared, and its entry procured by the defendants. It provided that when the costs should have been taxed, "the defendants be and they hereby are stayed from entering judgment for the space of six weeks." The order bears date August 3, 1888. Plaintiff thereupon m0ved to resettle the order in several particulars; among oth.ers asking that the elause providing for the stay should be modified so as to be coterminous with the making and serving of the exceptions or