The west Tennessee star. (Bolivar, Tenn.) 1888-1888, 1888-04-27
FoTHERINGHAM WINS

FO ! If1ERINGHAM WINS
The Adams Express Messenger who Was
Robbed by Jim Cummingg'' Awarded
$50, 600 Damages for Illegal fetentiOn-
A Blow at the PinIOertOn System of Hold
ing Men Without Due Process of Law.
ST. LOUIS, April 20.-The jury that tried
the damage suit of David S. Fotheringham
against the Adams Express Company in
the United States Court, was instructed
by Judge Thayer yesterday morning, the
following being a synopsis of the charge:
The Court, in his charge, said il would be well
for the jury 10 keep the distinction between the
talse Imprisonment count and the two mali
cious prosecution counts in the plaintiffs
petition clearly in mind A person deprived
of his liberty by private individual ordina-
rily had right of action against all persons
or corporations participating IN such arrest or
deprfving him of his liberty. This general rule
Of law was subject to the exception that pri-
vate individual, knowing that felony had
been committed, might arrest the person be-
neved by a reasonable man TO be the felon, and
hold him until warrant could be obtained
from a proper court or magistrate and no
longer. The plaintiff could not lawfully be
held in custody and deprived Of his freedom at
the Southern Hotel from October 26, 1886, un-
til November 9, 1886. The Court directed
the return OF verdict for the plaintiff
If the evidence satisfied the jury that the
restraint during the period in question was
without plaintiffs consent and against his Will,
ana II Lle evidence 1OrGner SaLlSn6Q bue bWelf6
men that such restrait was caused, procured or
instigated by the defendant or agents Of de-
fendant acting at its dlctation or under Its
authority.
The Court defined what constituted an arrest
and Illegal restraint of ones liberty. If the
defendant acted in the pursuance Of the be-
lief that plaintiff participated in stealing the
money, thinking his detention necessary to
discover other participants in the crime and
to recover the stoltn funds, then the
jury ought to regard such facts not a
| justification of the arrest without warrant, but
in mitigation of the damages which it might
| otherwise assess. The defendant claimed that
| from October 26, 1886, to Monday, November 3,
| the plaintiff remained at the Southern Hotel
| with the detectives, and elsewhere of his own
| free will and consent to aid them in the dis
| coveTy of the rObber or robbers. 1t claimed
/ further that on November &, 1886. when the
! plaintiff manifested desire to leave the COM
/ pany OF the detectives, that he was then de-
| tained because the detectives had been advised
| of the finding of an indictment against the
! plaintiff, and that the detention thereafter
! was solely for the purpose of turning him
/ over TO the officers OF the law. The instruc-
/ tion being, that il the testimony satisfied the
! jury that such contention represented the true
| state of the case a verdict for the defendant
| on the f1rst count should be returned. AS to
| the second and third counts of the petition, the
/ malicious prosecution counts, the mere fact
/ that an individual had been prosecuted for an
i alleged crime, and had been acquitted, did not
]
| the person or persons who caused or were con-
| cerned in the prosecution person became
! liable to respond in damages for tnsti-
| eating a criminal prosecution which
resulted in acquittal only in the event that
/ it was made to appear that in SO doing
he acted both malciously and without reason
| able and probable cause for believing that the
! party accused was guilty. The result was that
they must find for the defendant in both the
second and third counts, although the plaintiff
| was innocent of the crimes charged in the two
| indictments against him. unless the plaintiff
| had succeeded in showing by q preponderance
OF evidence that the defendant caused, procured
or instigated the finding and subsequent prose
4 cution of the indictments, and that in so doing
it acted both maliciously and without reason
able and probable cause tor believing him
guilty.
But if the plaintiff showed that the defend
ant had so acted both maliciously and4wfthout
probable cause, then he was entitled to YER
| dict on both the second and third counts for
| such damages as the evidence showed he had
| sustained. They ought to judge of the cause
! defendant had for acting it did, and OF its
| motives at any stage of the prosecutions, in
| the light of facts and circumstances then
known to it. The Adams Express Company, a
| corporation, could only act by agents, be
bound or rendered liable by acts OF
agents authorized to act for it, and the
acts, motives and beliefs of w. II. Damsell
and R. A. Pinkerton at the time in question
| were the acts, motives and beliefs OF the COM
| pany to the same extent as though 1t was a
natural person.
The jury was to determine from the evidence
the questions arising under the second and
third counts. Did the defendant cause. procure
or instigate the finding of the indictments
against the plaintiff and the subsequent pro
ceedings thereon in the Criminal Court in this
city? In doing, if It did cause, procure or in
stigate the prosecutions, did the defendant act
without reasonable and probable cause as here
tofore defned2 Did the defendant act malici
ously well as without reasonable causef An
Affirmative answer to either Of the three
questions would entitle the defendant tC
a verdict on both ct said counts
In the event OF finding for the plaintiff on the
second and third counts it rs the jurys duty
to assess his damages, and he should be allowed
in that behalf compensation for time while lost
in confinement and for all time n beessarily con
sumed in defending himself against the prose
cutions and in preparing to deferd himself, ane
compensation for all disbursements made ol
liabilities necessarily incurred in defending
himself, including his counsel fees, also reason
able compensation for any mental anxiety Of
feelings OF shame and degradation expe
rienced in consequence of being confined in iai
with criminals and being prosecuted as Grim
It was within the discretion Of the jury to al
low such exemplary or punitive damages as i
thought the defendant ought to be punished
with. The instructions closed with an admont
ton TO the jury to be impartial and fair.
The jury went out at 1850 O'Clock anC
turned with a verdict at 2:25 p. m. 1
70 nd for the plaintiff on the first count
tia : for false imprisonment, and assessed
the damage at SIC, 600. The finding in the
second and third counts was for the de
fendant. These last two counts we're those
charging malicious prosecution on the
two indictments that were found agains
Fotheringham.
Fotheringham was in court when the
verdict came in, and he showed no emo
ton. He is remarkably young maj
under any circumstances. Governor
johnson said he thought the Adams Ex
press Company would not appeal, as tn,
verdict was too small to go TO that ex
pense. The company would probabl.
prefer to pay the money. One ground o
appeal might be on the exceptions t.
the rulings of the Court, but a.
these were remarkably fair tn
chances for the company in that direction
would be very slim. When Fotheringhan
pays his lawyers a good fee he viii still
have a neat little sum left upon which t.
make start in life a little more inde
pendent than in the position of an ex
press messenger. Mrs. Roote, his moth
er, who has a spark Of retribution in he
nature.
GilhOoly and Cox.
DUBLIN, April 20.-Mr. Gilhooly, NJ. P.
who was sentenced on March to tw,
months Imprisonment for offenses unde
the Crimes act, had his sentence reduces
to-day, on appeal to two weeks. MIR. Gil
, hooly has been serving a short term O
/ Imprisonment since he received the tw,