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his own interests at the expense of his principal or the cestui que trust. The directors are the agents and trustees of the corporation and its stockholders. As a director of an insolvent corporation is not a trustee for its creditors, and owes them no duty, where the debt to which preference is given is an honest and just debt of the corporation, the circumstance that the director is incidentally benefited by such preference does not, in our opinion, absolutely disqualify him to take part in the proceedings of the directors, or to vote upon the proposition to secure such debt. If the corporation and the stockholders acquiesce in the action of the director creditors, outside creditors, who are strangers to the corporation, and have no lien or claim upon its property, cannot impeach the transaction. Schufeldt v. Smith, 131 Mo. 280, 31 S. W. 1039, 29 L. R. A. 830, 52 Am. St. Rep. 628, creditors of a corporation brought suit to set aside a deed of trust securing certain debts for which the directors were personally liable, two of which, amounting to $14,000, were evidenced by the notes of James Walsh, the president of the corporation, which the corporation had assumed and agreed to pay. The resolution authorizing the execution of the deed of trust was passed by three directors, of whom Walsh was one. The trial court held the deed of trust void, but its decision was reversed on appeal; the supreme court of Missouri holding that, as the debts were just, the preference was valid. The facts upon which Butler v. Mining Co., 139 Mo. 467, 41 S. W. 234, 61 Am. St. Rep. 464, was decided, were as follows: The corporation had but three stockholders, who were also its sole directors. The company owed them $100,000, and four years after it ceased to be a going concern they caused all the property belonging to it to be transferred to themselves in payment of their debt. Suit was brought by a creditor to set aside the transfer, and the lower court held the deed void. But on appeal the supreme court said, "Can an insolvent corporation prefer its director creditors in the disposition of its property to the exclusion of its general nondirector creditors, so long as the property of the corporation remains in its custody and possession, and the preference is made in good faith to pay off and discharge honest obligations?" The court answered its question in the affirmative, and sustained the deed. In Garrett v. Plow Co., 70 Iowa, 697, 29 N. W. 395, 59 Am. Rep. 461, the court said that counsel "insist that the directors of an insolvent corporation cannot take from it security, by mortgage or other conveyance, creating a lien upon its property, even though given in good faith, and without fraud in the transaction. We are not prepared to admit this proposition. A creditor may accept payment or security from an insolvent debtor, free from any claim of other creditors. A corporation may make payment of its debts, or give its property in security therefor, just as a natural person may

do. If, therefore, a director holds the indebtedness of an insolvent corporation, he may take payment or security in a good-faith and honest transaction. No reason can be given why a director who holds a valid debt against his corporation may not, though it be insolvent, in a fair and honest way take its property in security." In Bank v. Whittle, 78 Va. 737, an insolvent corporation against which suits were pending for the appointment of a receiver, for the purpose of securing certain notes on which the directors were accommodation indorsers, assigned as collateral security sundry bonds, constituting a valuable part of its assets. It was held that the assignment was valid, if made in good faith. The supreme court of Missouri, in Foster v. Mill Co., 92 Mo. 79, 4 S. W. 260, sustained the validity of a deed of trust given to secure debts owing to four of the directors, who voted for the resolution of the board authorizing the execution of the deed. The right of a corporation in embarrassed or failing circumstances to prefer debts due to its directors, or for which they are liable as indorsers, sureties, or otherwise, has been upheld in many other cases, among which the following may be cited: Warfield v. Canning Co., 72 Iowa, 666, 34 N. W. 467, 2 Am. St. Rep. 263; Bank of Montreal v. J. E. Potts Salt & Lumber Co., 90 Mich. 345, 51 N. W. 512; Bank v. Wasson, 48 Iowa, 336, 30 Am. Rep. 398; Banking Co. v. Claghorn, 1 Speer, Eq. 545; Garrett v. Plow Co., 70 Iowa, 697, 29 N. W. 395, 59 Am. Rep. 461; Reichwald v. Hotel Co., 106 Ill. 439; Sargent v. Webster, 13 Metc. (Mass.) 497, 46 Am. Dec. 743. In the latter case it was said by Shaw, C. J.: "In the first place, it is very clear that the plaintiff, Sargent, though a member of the corporation, had a right to deal with them as with a person and body politic. He could take security or attach property, or take any other measure that another creditor could; and though he might be liable, in a qualified way, for the debts of the corporation, it was a special liability created by statute, and one which can be enforced in the mode provided by statute." Our conclusion, therefore, upon the reasons and authorities herein set out, is that the deed of trust executed by the Nappanee Canning Company to Mosiman, as trustee, to secure, among others, debts for which the directors of that company were liable, was valid, and enforceable against the property described in it.

The findings of the court to the effect that the execution of the trust deed rendered it impossible for the appellee Reid, Murdock & Co. to recover and collect damages for the breach of its contract with the canning company; that the directors intended to shield themselves from further liability, to indemnify themselves against loss, and to obtain the benefit of the advance in the price of the goods sold to the appellee; and that the trust deed is fraudulent as to each of the directors beneficially interested therein, are wholly unimportant. The directors had a

right to cause the deed of trust to be made to secure themselves against loss. As it included all the property of the company, its necessary effect was to render it impossible for the appellee to collect any claim held by it out of the property of the corporation. And no facts are found which establish fraud. Griffin v. Peters, 133 U. S. 670, 10 Sup. Ct. 354, 33 L. Ed. 696. It was not a fraud for the directors to do what they had a legal right to do, nor was the deed rendered fraudulent by the consequences of loss to the appellee Reid, Murdock & Co. which may have resulted from it. The facts found sustain the conclusion of the court that the appellee Reid, Murdock & Co. was entitled to recover from the Nappanee Canning Company $1,100 as damages, and there was evidence to support the finding.

The judgment that the appellee Reid, Murdock & Co. recover from the Nappanee Canning Company $1,100, and costs in that behalf only, is affirmed. The judgment that the mortgage or deed of trust executed by the Nappanee Canning Company to Mosiman, as trustee, is void as to Francis E. Berlin, Barney Uline, Frank Coppes, Tobias Hartman, Henry Wysong, Jacob H. Whisler, Joseph S. Armey, John W. Albin, Ephraim Emmert, Coppes Bros. & Co., and the Farmers' & Traders' Bank, is reversed, with directions to the court to restate its second conclusion of law in accordance with this opinion, and to render judgment in favor of the said appellants, sustaining said mortgage or deed of trust; and the judgment in favor of the said City National Bank of Goshen, Isaac Blumberg, George Searer, George Barber, M. H. Mittenthal, as guardian, sustaining said mortgage or deed of trust, is hereby affirmed.

HADLEY, J., dissents, and will hand down dissenting opinion.

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1. A paragraph of a complaint in false imprisonment, to the effect that defendant unlawfully imprisoned plaintiff and deprived him of his liberty, was not demurrable as stating a mere conclusion of law.

2. A complaint for false imprisonment is sufficient without alleging that the act complained of was illegal or wrongful, or that the arrest or imprisonment was without competent authority, or malicious, or without probable cause.

3. In an action for false imprisonment a paragraph of the answer professed to recite circumstances surrounding the arrest, but averred that defendant had not arrested plaintiff. A demurrer to the paragraph was sustained. Held that, as the paragraph could only be sustained as a special denial, and the facts could be shown under the general denial of the answer, the action on the demurrer was harmless. 4. In an action for false imprisonment the court charged that the general rule of the law

is that no person shall be deprived of his liberty except he first be charged by affidavit or indictment with the commission of an offense, and such charge be followed by a warrant duly issued and placed in the hands of an officer authorized to serve such process. The court then stated that there were exceptions to the rule. Held, that it was not error not to state the exceptions in such instruction, they being given in subsequent ones.

5. In an action for false imprisonment the evidence showed that plaintiff was arrested for stealing a watch, the officer making the arrest having no warrant, and acting on information; and that plaintiff was detained against his will for some time, without being taken before any magistrate, or any formal charge being made against him. The court charged that it is the duty of a sheriff arresting a person without a warrant, upon information, when he has reasonable or probable cause to believe that such person has committed a felony, without delay to take the person arrested before some magistrate, to be charged with such offense by affidavit. Defendant contended that the court should have charged that a peace officer is not required in all cases to take his prisoner before a magistrate, but may release him. Held, that the instruction was applicable to the evidence.

6. If defendant wished an instruction in accordance with his contention, he should have requested it.

7. An officer who has made an arrest without a warrant should, on becoming satisfied thereafter that the accused is not guilty of the offense, release him; but, if either the arrest was unlawful, or the prisoner has been illegally detained or deprived of his liberty by the officer before such release or discharge, that the officer released the person arrested under such circumstances will not relieve him of an action at the instance of the injured party.

8. By Burns' Rev. St. 1901, § 1771, a sheriff is authorized to arrest without a warrant any person whom he may find violating any of the penal laws; but the section provides that the detention of the person so arrested is to continue only until a legal warrant can be obtained. Held that, if an officer detains a person for a longer period than necessary to obtain a warrant. he is liable for false imprisonment.

9. In an action against two defendants for false imprisonment the court instructed as to the measure of damages if they found for one of defendants, and in another instruction stated the damages if they found against such defendant. Such defendant contended the first instruction was erroneous, as the jury must have understood they would not be justified in finding in his favor, and that the second was erroneous in that it gave the jury to understand they could not find in his favor unless they found in favor of both. Held, that the contention was of no merit, the court having instructed as to form of verdict if they found for both defendants, and that they might find against both, or in favor of one and against the other.

10. In action for false imprisonment, evidence held to sustain a verdict for plaintiff.

11. Wounded pride. humiliation, and mortification from a public arrest are elements of damage in an action for false imprisonment against an officer and one causing his arrest.

12. Where, in an action for false imprisonment, the evidence discloses that plaintiff was accused in the presence of others of being a thief, and, when he protested his innocence, called a liar, exemplary damages were proper. 13. In false imprisonment exemplary damages do not depend alone upon malice on the part of the wrongdoer, but they may be rightfully

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awarded when the wrongful act is willfully done in a wanton or oppressive manner, or done with reckless disregard of the rights of the complaining party.

Appeal from superior court, Howard county; Hiram Brownlee, Judge.

Action by Arthur Steele against Lewis W. Harness. From a judgment for plaintiff, defendant appealed to the appellate court. Transferred to supreme court under Act March 13, 1901. Affirmed.

Harness & Vorhis and Bell & Perdum, for appellant. Blacklidge, Shirley & Wolf, for appellee.

JORDAN, J. Appellee, a minor, by his next friend, sued appellant, the sheriff of Howard county, together with one Strubbs, to recover damages for false imprisonment. A trial before a jury resulted in a verdict against appellant for $400, and a finding in favor of the defendant Strubbs. Over appellant's motion for a new trial, wherein he assigns various reasons, the court rendered judgment on the verdict, from which appellant appealed to the appellate court. appeal was transferred to this court under the act of March 13, 1901.

The

The first error argued by counsel for appellant is the overruling of the demurrer to the first paragraph of the amended complaint. This complaint consists of two paragraphs. The first, omitting the caption, is as follows: "Plaintiff, for his amended complaint, complains of the defendant, and says that on the 15th day of May, 1900, the defendant unlawfully imprisoned the plaintiff and deprived him of his liberty for the space of one hour, to his damage in the sum of $2,000, for which he demands judgment." It is contended that this paragraph contains no facts to show that appellee was falsely imprisoned and deprived of his liberty, but consists merely of conclusions. While the paragraph is somewhat terse, it is an exact copy of the form given in 3 Works, Prac. p. 152. It may also be said that it substantially follows the averments in a form given in 1 Estes, Pl. & Forms, p. 561, with the exception that the latter form does not contain the word "unlawfully," and states that the imprisonment was "without probable cause," and also gives the place at which the plaintiff was imprisoned. The charge that "the defendants imprisoned

the plaintiff and deprived him of his liberty for the space of one hour" is certainly not a mere conclusion of the pleader, but is a composite statement of an ultimate fact, the imprisonment of the plaintiff. The word "unlawful" is not essential, and may be omitted from the pleading, for the rule is settled in this state that a complaint for false imprisonment is sufficient without alleging that the act complained of was illegal, or wrongful, or that the arrest or imprisonment was without competent authority, or malicious, or without probable cause. Colter v. Lower,

35 Ind. 285, 9 Am. Rep. 735; Gallimore v. Ammerman, 39 Ind. 323; Boaz v. Tate, 43 Ind. 60. The paragraph in controversy is at least sufficient on demurrer. It might possibly have been open to the objection, upon a motion to make it more specific, that it did not state the venue where the alleged wrong was perpetrated by the defendants; but in respect to this question we do not decide.

The appellant answered in three paragraphs, the first being a general denial. A demurrer was sustained to the second, and of this ruling appellant complains. The paragraph was not one in confession and avoidance. It professed, in part, at least, to recite the circumstances surrounding the alleged arrest and imprisonment, but expressly averred that the defendant at no time or place arrested the plaintiff, and at no time deprived him of his liberty. If the paragraph, under its recitals and averments, can, on any view, be sustained as an answer, it must be upon the ground that it serves as a special denial. All of the facts, however, therein averred, so far as competent to constitute in any manner a defense to the action, were admissible under the general denial, which remained as a part of the answer; consequently it was not necessary to affirmatively plead them, and the ruling in sustaining the demurrer to the paragraph, under the circumstances, was harmless. Water Supply Co. v. Ritter, 146 Ind. 521, 45 N. E. 697.

There is a sharp conflict in the evidence in regard to some material points; nevertheless there is evidence to establish the following summary of facts: On May 14, 1900, E. H. Strubbs, appellant's codefendant below, was carrying on a harness shop in the city of Kokomo, Howard county, Ind. On that day a watch was stolen from his shop, and thereupon he made complaint to appellant, who was the sheriff of said county, and informed him that appellee frequently visited his harness shop, and stated to appellant that he thought appellee had taken the watch, as he had been at his place of business on the morning of the 14th, and that appellee knew that he (Strubbs) had the watch, because he had often looked at it when at the harness shop. Appellee was a boy about 14 years of age, an orphan residing in the family of one McBeth, in the city of Kokomo. He was a musician, and his standing in the community was good, and he was just beginning to rely for his support in teaching music. Appellant, on receiving the information mentioned, and after talking the matter over with Strubbs, proceeded, on the forenoon of May 15th, to hunt for appellee. After inquiring at several places for him, he finally found him at the home of one Stewart, in said city, and called him out of the house, and then and there informed him that he was the sheriff of the county, and had come to arrest him. Appellee inquired for what he was to be

arrested, and was informed by appellant that he (appellee) knew what he had taken. Appellee denied that he had taken anything, and thereupon appellant informed him that a watch had been taken from Strubbs' harness shop, and that he (appellee) knew he had taken it. Appellee replied that he knew nothing about the watch being taken; that he had no need for the watch, as he had one of his own, which he took out and exhibited to appellant. Thereupon the latter took the watch away from him, and put it in his pocket, and stated to appellee to get his hat, and come with him. Upon being ordered to get his hat and go with appellant, appellee became excited and frightened, but did as he was bidden, and went along with appellant; the latter informing him that he wanted him to go with him to Strubbs' shop. They went together north along Main street, in the city of Kokomo, until they came opposite the county jail, and then appellant took appellee across the street to the jail building. Appellant then again said to him, "You don't know nothing about the watch?" and he replied that he did not. Thereupon appellant said to him: "If I have to lock you up, you will be in here for six weeks. I don't like to do a young man like this. If you don't own up, I will have to turn the keys. If I once turn the keys on you, you will be in here for six weeks." Appellant denied this conversation, but admitted that he took appellee across the street to the jail, but gave as an excuse for so doing that he wanted to ascertain if his dinner was ready, it being then 11 o'clock. After leaving the jail building, appellee was taken by appellant to Strubbs' harness shop. In going to the shop they went along Main street past the offices of two justices of the peace, and also passed along near the vicinity of the mayor's office, but no offer or attempt was made to take him before either of the magistrates or the mayor. On the way to Strubbs' Ishop they went along and through the principal parts of the city, and passed and repassed a great many persons, and finally arrived at the harness shop. Appellee testified that when they reached the shop both Strubbs and appellant accused him of having taken the watch; Strubbs saying to him: "You know you took the watch, and you ought to tell where it is. I hate to have a boy up this way;" and further accused him of having taken a match safe,-all of which he denied. Appellee testified that when at the shop Strubbs and appellant told him that a prominent man passed the window of the shop at the time the watch was taken, and saw appellee take it. Appellant and Strubbs, at the latter's shop, had a conversation in a whisper with each other, after which appellant directed appellee to come along with him. They went together down along Washington, Main, and Walnut streets until they again reached the county jail, appellant continuing to say to appellee that if he did not

tell where the watch was he would have to put him in jail, and, if he once put him in jail, he would be there for six weeks; and further said to him, "I don't like to turn the key on a boy." Appellee continued to deny that he had taken the watch, or that he knew where it was, and thereupon appellant told him he was "lying." After they had reached the jail the second time, appellant took appellee into the jail office, and then directed a young man who was present there to get him the key to the door opening into the cell rooms of the jail. He then unlocked and opened the iron door leading to the cells, and then said to appellee: "Now, what have you got to say? Back there is your cell." Upon hearing appellant make this statement, appellee became frightened, and began to cry, but continued to assert his innocence. Appellant was informed at the jail that some friend of appellee had been there to see him. After he received this information, he told appellee he might go back to Stewart's house,-that being the place where he was when appellant found him,-saying to him: "You stay there until this evening, and I will come after you. Don't you go away at all." After appellant let appellee go, he continued crying until he reached the home of Mr. Stewart. He informed Mr. Stewart of his arrest, and the latter went to the jail, and saw appellant in regard to the trouble. Stewart testified on the trial that appellant told him that appellee had been accused of stealing a watch, and that he had arrested him, and taken him to the jail, but did not put him in the prison. He informed this witness that he had no warrant for the arrest of appellee, but, as sheriff, he had the right to arrest a person on information without any warrant being issued. He admitted to this witness that he had taken appellee to the jail, and had opened the cell door, and told him if he did not confess he would put him in jail. In the same conversation he told the witness that he did not believe that appellee was guilty, but, as an excuse for taking him to jail and threatening to imprison him therein, he stated that he did so because it was the practice of sheriffs and other officers to do so in order to extort a confession of the truth from an accused person. After going to Stewart's as directed by appellant, appellee remained there until the next morning; but appellant did not come for him, and he was not again arrested, and nothing further was done in the matter. The fact that appellant had no warrant for the arrest of appellee, and made no attempt to take him before a justice of the peace, or some other judicial officer, is undisputed.

Under the alleged error of overruling the motion for a new trial, appellant, by his counsel, insists that instruction No. 2 is faulty, basing his objection apparently on the ground that it is not applicable to the evidence. In their contention, however, counsel

seemingly disregard the evidence given on the part of appellee. When all of the evidence given in the case is considered, as it inust be, it is manifest that the contention in regard to the charge in question is not sustained.

Complaint is also made in respect to instruction No. 4. By this charge the court advised the jury that the general rule of the law is that no person shall be deprived of his liberty except he first be charged by affidavit or indictment with the commission of an offense, such charge being followed by a warrant duly issued and placed in the hands of an officer authorized to serve such process. The instruction, however, further states that to this general rule there are certain exceptions, made necessary by the needs of society; but the exceptions are not given in this particular charge. The objections urged are that the court erred in not informing the jury in the same instruction in regard to the exceptions in question. The court, however, by instruction No. 6, fully advised them in respect to the exceptions to the general rule asserted in No. 4. Possibly it might have been more orderly to have stated in the charge the exceptions to the rule so far as they were applicable to the case at bar. But the practice in this state is well settled that, where an instruction is correct so far as it goes, but incomplete, it may be completed by another which supplies the defects. On any view of the question, as the exceptions were given in instruction No. 6, appellant, under the circumstances, has no basis for his complaint. By instruction No. 7 the court said: "It is the duty of a sheriff arresting a person without a warrant for an offense committed within his view, or when he arrests a person without a warrant upon information, when he has reasonable or probable cause to believe that such person has committed a felony, in either case without delay, and as soon as he can reasonably do so, to take the person whom he has placed under arrest before some magistrate, to be charged with such offense by affidavit. Such an arrest can only be made and the person held for such purpose. If the officer shall fail to take the person so arrested before a magistrate, as required by law, then he is liable to such person in an action for damages." By instruction 8 the jury was further advised that a sheriff of a county is a peace officer, and as such he may arrest without a warrant upon information and reasonable or probable cause for belief; but such sheriff is not an examining officer, charged with the duty of inquiring as to the guilt or innocence of the party charged. The instruction, in substance, further stated that the duty of examining into the alleged offense rested on the magistrate before whom the accused person was taken; the court again asserting in this charge, as it had previously done, that it was the duty of the officer making the arrest to take the accused person before a magistrate for present

ment and examination in regard to the charge made; that, although the arrest was rightfully made in the first instance, nevertheless, if the officer failed to take such person before a magistrate, as required by law, he would be liable in an action for damages. Appellant's insistence is that instructions 7 and 8 did not state the law correctly, for the reason, as contended, that a peace officer, on making an arrest without a warrant, is not required, under the law, to take his prisoner before a justice of the peace, or any other committing officer, for the purpose of having the party so arrested charged by affidavit. It is contended that the officer, on learning that the accused is probably not guilty of the offense, may discharge him. The insistence is that the charge in question is not a correct exposition of the law, because this latter statement is omitted. It is true that an officer who has made an arrest without a warrant may and should, on becoming satisfied thereafter that the accused is not guilty of the offense, release him; but, if either the arrest was unlawful or the prisoner has been illegally detained or deprived of his liberty by the officer before such release or discharge takes place, the mere fact that the officer released the person arrested under such circumstances will not relieve him of an action at the instance of the injured party. Upon any view of the case, the instructions were a correct statement of general principles of law applicable to the evidence, at least so far as they related to an offense of the degree of felony; and, if appellant considered that he was entitled to have the jury advised as he contends, he ought to have requested a special instruction for that purpose. By the rules of the common law a peace officer, where he had reasonable or probable cause to believe that a felony had been committed, might arrest the accused person without a warrant; and for making such an arrest he was justified, although subsequently it appeared that the party was not guilty of committing the offense. Doering v. State, 49 Ind. 56, 19 Am. Rep. 669, and authorities cited; Simmons v. Vandyke, 138 Ind. 380, 37 N. E. 973, 26 L. R. A. 33, 46 Am. St. Rep. 411; Palmer v. Railroad Co., 92 Me. 399, 42 Atl. 800, 44 L. R. A. 673, 69 Am. St. Rep. 513, and cases cited. 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

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