
    A. W. GREEN, plaintiff in error, v. THE SOUTHERN EXPRESS COMPANY, defendant in error.
    
    (Atlanta,
    January Term, 1871.)
    FALSE IMPRISONMENT—OBJECTION TO JURISDICTION AFTER PLEA TO MERITS—LIABILITY OF CORPORATION FOiR ACTS OF AGENT—RELEASE—EXCESSIVE VERDICT.— When an action of trespass for false imprisonment was instituted by the plaintiff against McCray and Mitchell and the Southern Express Company, in the county of Sumter, where two of the defendants resided, and the defendants appeared by their counsel and filed their joint plea to the merits of the action, without excepting to the jurisdiction of the Court:
    
      Held, That it was too late for the Southern Express Company, one of the defendants, to object to the jursdiction of the Court on the appeal trial of the cause, although the verdict of the jury on the first trial was against that defendant alone, and it was the only party entering the appeal. The Southern Express Company, as a corporation, is liable for the acts of its officers and agents, when acting in the sphere of their appropriate duties, and an agent of said company who arrested the plaintiff, who was suspected with having stolen money from the company, for the purpose of recovering the money so stolen for the benefit of the company, was acting within the sphere of his appropriate duty as the agent of said company, and the arrest of the plaintiff by such agent under the circumstances set forth in the record, was not such a willful trespass on the part of the agent as will exonerate the company from liability for the conduct of their agent in making the arrest; the more especially as the company, after the arrest and discharge of the plaintiff, recognized the authority of their agent to make the arrest, by endeavoring to procure a release from the plaintiff for the damages sustained by him in consequence of such arrest and imprisonment. Whether the release in the record mentioned was a valid release, or was procured by fraud, was a question of fact, to be determined by the jury under the evidence submitted on the trial. There was no error in the Court below in granting the new trial, on the ground that the verdict (for $10,000 00) was grossly excessive, under the evidence as disclosed by the record; the jury were not authorized to find a verdict *for vindictive damages, and it was the duty of the Court to have set it aside, as it was contrary to the principles of justice and equity. Whilst it is the duty of the Court to hold the defendant to a strict performance of the obligation and liabilities imposed by law, it is also the duty of the Court to protect the company from being wrongfully plundered under the form and color of law; and wherever it is apparent to this Court that juries, either from passion or prejudice against incorporate companies, have rendered verdicts which are grossly excessive, it will not hesitate to set them aside and grant a new trial. The legal and equitable rights of incorporate companies are to be measured by the same standards in the rendition of the verdicts of juries as those of natural persons.
    (McCay, J., having been of counsel below, did not preside in this case.)
    Corporations. Trespass. New Trial. Before Judge Harrell. Sumter ‘ Superior Court. . . , Term, 1870.
    
      In 1867, Arnold W. Green .brought case in the County-Court of said county, in which he averred that Stephen H. Mitchell and Edmond B. McCray, of said county, and The Southern Express Company of the county of ...... did, _ on the 30th of May, in said county, assault, beat, illtreat and imprison him in the jail of said county and kept him there twenty-four hours, without probable cause and without lawful warrant or authority, to his damage $20,000 00. Service was perfected on the company by serving its agent at Americus, and by a second original sent to Richmond county, in which the company is averred to be of Richmond county, Georgia. It was there served upon R. B. Bullock, Superintendent. The defendants jointly pleaded not guilty, or if guilty, they did it because of the probable guilt of plaintiff of robbery from said company. The jury found for the plaintiff against the Express Company only for $5,000 00 and costs. The company appealed, and in October, 1868, the jury found another verdict against the company for $5,000 00, for the use of plaintiff’s attorneys. A new trial was granted: See Green v. Southern Express Company, 39th Georgia Reports, 20.
    When the cause came on for trial again, counsel for the company moved to dismiss the same because, by the record, *it appeared that said defendant resided out of said county, to-wit: in Richmond county, Georgia, and because a verdict having been found against it alone, and no appeal having been taken as to the other defendants, it was now a sole defendant sued out of the county of its. residence. The Court overruled the motion and ordered the trial to proceed. Defendant’s counsel then pleaded the-release hereinafter stated.
    The evidence was as follows: Plaintiff, by interrogatories, gave this version of the facts: In 1867, he resided in Houston, Florida, his present home; he had lived in Americus, Georgia, and had many friends and relatives there. On or about the 27th of May, 1867, he left home for Americus. Upon his arrival there he was arrested, denied any investigation, thrust into jail and kept there with scanty food and bedding, from Thursday till the following Sabbath. The arrest was by Mitchell, said to be a Marshal of Americus, and “at the instance of the officers of the Southern Express Company,” and “at the special instance and direction of The Southern Express Company, one Dunning and - Bullock, officers or agents of said company being the most prominent instigators.” On the night of the 12th of July, 1867, one Kimball, an agent of the company, called plaintiff out from his mother’s house, and said he had a paper which he wished plaintiff to sign, and asked plaintiff to go with him to Judge White’s, some three hundred yards distant, and sign it in his presence. Plaintiff asked Kimball to read the paper; he read about a fourth of it, and seeing that plaintiff did not understand it, proposed that they should go on to White’s. Arrived at White’s, Kimball asked White to witness plaintiff’s signature to a paper which he, Kimball, held in his hand. No explanation was made. White took the paper, and supposing plaintiff and Kimball understood the contents, he read a portion of it hurriedly, then turned to plaintiff and showed him where to sign and plaintiff signed his name. Plaintiff “had a vague idea or notion that some of the company who were innocent of any wrong were liable to suffer for the wrong acts of others, and that the paper was to save them from annoyance and trouble,” but he had not the *most “distant idea that it was a release to ■ the culpable members of the company,” or he would not have signed it. White signed the paper, remarked that It needed a certificate of the Clerk, and handed it to Kimball. Kimball handed it to plaintiff’s older brother, who was present and who was the sheriff of the county, that he might take It to the Clerk and have the county seal put upon it. It was then near bed time. They left White’s and Kimball left them at White’s gate. Then the sheriff told plaintiff that he ought not to have signed the paper without understanding its contents. They got a light and the sheriff read it and tried to explain its effect, but not being able to make plaintiff fully understand the terms, the sheriff handed plaintiff the paper and told him to get the Clerk to explain it to him. He took It to the Clerk and asked an explanation of it, and when he understood it, told the Clerk not to attach the seal to it, that there had been an attempt to deceive and take advantage of him; and he kept the paper, went to Kimball, and told him what he thought of his conduct. Kimball demanded the paper, but plaintiff would not deliver it, and kept the same till he attached, it to these answers as evidence. After he signed the paper, Kimball turned in his chair and handed him $5 00; but nothing had been said about money, nor did he sien the paoer for monev, and when he went back to Kimball and refused to eive him the paper, he tendered back said money, and when Kimball refused to accept it, he indignantly cast it at Kimball’s feet and has never seen it since. The paper attached to his answers was as follows:
    “State of Florida.—-Sewannee County:
    Know all men by these presents, that I, Arnold W. Green, of Houston, in the State and county aforesaid, in consideration of the sum of five dollars to me in hand well and truly paid, at and before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, have released, acquitted and forever discharged, and by these presents- do release, acnuit and forever discharge the Southern Express Companv and its officers, agents and servants, as such, as well as individually and personally, John H. Mitchell and Edward B. McCrary, of and from all action and actions, cause and causes of action, damages, duties, liabilities and damages of every kind whatsoever, ex contractu and ex delicto, and particularly from all claims of liability of damages for on or account of mv *arrest and detention at Americus, in Sumter county, in the State of Georgia, on or about the 30th day of May, in the year that now is.
    
      Iii -witness whereof, I have hereunto set my hand and seal this_ the twelfth day of July, in the year of our Lord, one thousand and eight hundred and sixty-seven. A. W. GREEN. [Seal.]”
    Signed, sealed and delivered in presence of
    John H. White, Judge, etc.
    In answer to interrogatories said sheriff gave substantially the same account of the signing of said paper and what was done with it as plaintiff had given aforesaid.
    In answer to interrogatories, Kimball testified to the signing of said paper, etc., substantially as had said two witnesses, except that he said nothing as to plaintiff understanding it or having it read, except that he offered him five dollars as compensation for his injury, plaintiff agreed to accept it, signed the paper for that purpose, and delivered it and accepted the money. He admitted that after being advised by the Clerk, plaintiff refused to give up the paper which the sheriff (who had received it from Kimball to have it recorded) had handed to' him, and offered back the $5 00, but Kimball would not accept it. He said he was in all this matter acting for the Kxpress Company. He stated that plaintiff told him he never wished to sue the company, but had been “forced to do so by •outsiders,” that “he did not blame the company at all for susr pecting him, that he happened to go away the very night of the robbery, and enemies of his in town had made the impression on the agent of the company that he was the guilty party.”
    Hugh Dumfrey testified that said company had $354 40 stolen from it at Houston, Florida, on the night of the 27th •of May, 1867, and Murphy was requested to look after the thief. He learned from a citizen of Houston, on the 29th of May, 1867, that plaintiff had borrowed $50 00 at night on the 27th. saying he would be ruined if he did not get the $50 00 then; that plaintiff left on the train next morning, (the 28th) saving he would be back in twentv-four hours, and that plaintiff bought a ticket to Monticello, Florida. He got a description of plaintiff, and on the 30th started in pursuit of him. At Monticello, plaintiff had not registered *his name, but the landlord said such a man had been at his hotel, looked like a bad man, and quarreled with his barkeeper about a drink, and had left for Thomasville. At Thomasville plaintiff did not register his name, the hotel keeper there said his conduct was strange and unaccountable, that he did rot sleep at the hotel, but staid out all night and gave no excuse for it, except that he could not get to the hotel when he desired to do so, that he paid his hill, left an old coat and wore off a new duster which he had bought, and proceeded to Albany. The hotel-keeper of Albany said such a man had been there, and engaged to work with him as a servant until he could make sufficient to take him to' Texas, where he said his mother lived and kept a hotel; that he left for Americus. saying he would be back on Saturday, after seeing his relatives there. He then had on a new suit of clothes, and left his trunk at the hotel. The Express agent at Albany also told Dumfrey that such a man had been to him saying he wished employment, and asked if they kept much money in the Express office. Dumfrey went to> Americus on the 31st of May, (Sunday,) and found plaintiff jin jail, told him the facts which led to suspecting him, and of what he had heard in his pursuit aforesaid, except that he did not let him know that he knew of his borrowing the $50 00, told him what money he had spent en route, at which be seemed surprised. Plaintiff then “confessed that his conduct was. bad and suspicious, but he asserted his innocence, said his arrest was justifiable, but he was not guilty.” Next morning because of his protesting his innocence, appealing for kindness on behalf of his mother and brothers and sisters, Dumfrey had him turned out of jail, still supposing him guilty. Another fact which confirmed the suspicion was that Bullock and said sheriff, Green, were on the train with plaintiff, in charge of certain negroes charged with robbery, and yet plaintiff had no intercourse with his brother. The money was never recovered.
    What the Court charged, etc., only appears by the motion 'for a new trial. The jury found for the plaintiff for $10,000 00 and costs of suit.
    "‘Defendant’s counsel moved for a new trial upon the grounds:
    1st. That the Court erred in not dismissing said cause upon the said motion therefor.
    2d. Because said verdict is contrary to law, in that it is against said company only, and not jointly with the others; it is strongly and decidedly against the weight of the evidence, and excessive under the evidence.
    3d. Because the Court erred in charging section 2177 of Irwin’s new Code, to-wit: “The principal is not liable for the willful trespass of his agent, unless done by his command, or assented to by him,” as a principal applicable to and settling the liability of the Southern Express Company in this case. The Court should have charged the first clause of section 1679 of same Code, to-wit: “Every corporation acts through its officers, and is responsible for the acts of such officers in the sphere of their appropriate duties,” which was read and relied on by counsel for the Southern Express Company as the rule or principle controlling or settling the liability of the Southern Express Company .in this case, or cases of like character.
    4th. The Court erred in refusing to charge, without qualification, as requested, in writing, by counsel for the Southern Express Company, that to charge the Southern Exprass Company with the .acts of any of its officers it must appear that the acts complained of were within the appropriate duties of such officers or agents. The Court so charged, but qualified it by saying that this was true, unless the officers or agents were commanded so to do by the company, or had after-wards assented thereto.
    5th. Because the Court erred in refusing to charge without qualification, as requested, in writing, by defendant’s counsel: “That if the acts complained of are not within the corporate powers of the Southern Express Company, the company cannot be held liable for such acts.” The Court so charged, but qualified by saying that this was true (unless the acts were commanded by the company, or assented to by it.
    6th. Because the Court erred in refusing to charge without ^'qualification, as requested by defendant’s counsel in writing: “That if the acts complained of are beyond the powers, duties or rights for which said company was created, or with which it is invested by law, no act of ratification of, assent to, or acquiescence by the officers of said company can bind the company so as to authorize the jury to find for the plaintiff.” The Court charged, that this was true, unless the company commanded the acts to be done, or assented to them.
    7th. Because the Court erred in refusing to charge, as requested, in writing, by the counsel for the Southern Express Company: “That to arrest one for any violation of law, or rights of the Southern Express Company, or any of its agents, officers or employees, is not one of the powers, duties or rights of the Southern Express Company, under the law, and the Southern Express Company cannot be held liable for any such act, however wrongful or tortious, and that, too, whether it was authorized by the officers of said company or not. Nor could any' acquiescence in such arrest, ratification or assent thereto, by any or all the officers, bind the company for such •arrest or imprisonment, so as to authorize or justify the jury in finding anything for the plaintiff, but they must find for the defendant in such case.”
    8th. Because the Court erred in not charging, without qualification, as requested by counsel for the Southern Express Company: “That a settlement, or an attempt to settle, the claims or demands of the plaintiff by the defendant, is not a ratification of, assent to, or acquiescence in, the acts or charges alleged against that defendant. . A party has a right to buy his peace.” The Court so charged, but qualified by saying, that “if this evidence had been objected to he would have ruled it out, but as it had gone to the jury, they might take into their consideration, whether it was not an evidence of ratification or assent to the acts complained of by the company. It was for the jury to consider and give it what effect they thought proper on this subject.”
    9th. Because the jury erred in finding contrary to the charge of the Court in this: “That if the plaintiff, knowing what *he did, released the Southern Express Company from the act of arrest and imprisonment, and all damages sustained thereby, and all cause of action on account thereof, they cannot find for the plaintiff, but must find for the defendant.”
    10th. Because the Court erred in qualifying the foregoing by saying: “That if the defendant signed the release put in •evidence, with a full knowledge of what he was doing, and •of his rights against the Southern Express Company, and the same was not obtained from him by the Southern Express Company fraudulently, and he was not overreached in the getting said release, then they must find for the defendant.”
    11th. Because the verdict of the jury was contrary to the charge of the Court in this: “That if the defendants had reasonable or probable cause for the arrest and .imprisonment of plaintiff, that is if the facts, on which the defendants acted, were sufficient to raise a reasonable or probable belief that the plaintiff was guilty of the charge for which he was arrested and .imprisoned, then they can only find nominal damages for the plaintiff, say some small sum that will carry costs against the defendants.”
    12th. Because the verdict of the jury is contrary to the charge of the Court in this: “That the plaintiff was not entitled to more than nominal damages, unless the circumstances were such as to satisfy a reasonable man that the defendants, in the arrest and imprisonment, had no ground for their proceeding, but a desire to injure the accused.”
    The Court granted a new trial upon each and every of said grounds, and of this complaint is made here.
    (This cause was argued here on the 21st of January. On the following Tuesday, when the Court was about to deliver opinions, counsel for the Express Company stated that the cause had been settled since the argument, that he was authorized to withdraw the record, and he wished to do so to prevent the announcement of the opinion. The Court said, the application was too late, and delivered its judgment in the case.)
    R. H. Clark, C. T. Goode, W. A. Hawkins, for plaintiff in error.
    *Lyon, DeGraffenreid & Irwin, J. P. Carr, for defendant,
    cited, as to jurisdiction, Code, sec. 3333. Appeal does not affect'it: secs. 3562-3-4; 21st Ga. R., 359; 17th, 540; 18th, 409; 31st, 67. As to the charge: Code, sec. 2171; Solomons v. Central R. R., 40th Ga. R. The release cannot be used as evidehce of liability: 1 Gr. Ev., 197; 13th Eng. E. & E. R., 140, 145; 2d Car & Keen, 1012;'13th Ga., 406. The verdict is excessive: Code,, secs. 2932, 2944, 2941. When company is bound by acts of agents: 2 Mich. R., 519; 2 Hill on Torts, 323, 423; 18th Miss. R., 367; 15 Bar R., 574; 6 Railway Cases, 567; 2 E. L. & Eq., 406; 14th Pick, 561; 2 Comstock, 47'9; 3 Watts & S., 103, 106.
    
      
       APPELLATE PRACTICE—WITHDRAWAL OF WRIT OF ERROR—TOO LATE AFTER 'DECISION MADE UP.—To the proposition that after the argument of the case is concluded' and the decision of the court made up, though not delivered, it is too late for counsel to ask permission to withdraw the writ of error, the principal case is cited in Cherry v. Ware, 63 Ga. 290.
      See also, the principal case cited by counsel in Glenn v. Botts, 79 Ga. 212, 9 S. E. Rep. 425.
    
   WARNER, J.

In reviewing the facts and points made on the trial of this case, as disclosed by the record, there was no error in the judgment of the Court below in granting the new trial on the' ground that the verdict of the jury was grossly excessive. Let the judgment of the Court below be affirmed.  