Gambar halaman
PDF
ePub

54

be there to receive him; and where the keeper of the prison made one of the prisoners confined for debt a turnkey and trusted him with the keys, it was held to be an escape.55 But the jailer may well employ the prisoner within the jail, giving him no liberty, and it is held not to be an escape where the prisoner was entrusted with the inner keys, but always under the supervision of the jailer. And, in general, a constructive escape will take place only where the prisoner is entrusted with such liberty that he can at his own desire obtain full freedom, but from the want of such desire remains voluntarily within the walls of the jail or other place of confinement.

56

2337. Escapes are also voluntary or negligent: a voluntary escape arises from the free act of the jailer; a negligent escape from his negligence or carelessness.

57

A voluntary escape is the giving to a prisoner, voluntarily, any liberty not authorized by law. Letting a prisoner, lawfully confined under final process, out of prison for any, even the shortest, time, is an escape although he afterward returns; 58 and this may be the case; as, when he is imprisoned under a capias ad satisfaciendum, although the officer may accompany him,59 unless it be to remove him to a place appointed by law for his being kept, or in obedience to a writ of habeas corpus. But if, in the latter case, he went out of the direct road to accommodate the prisoner, it is an escape. 60 When the deviation is to accommodate the plaintiff, the sheriff is not responsible, although the prisoner escapes through his negligence.61

A negligent escape takes place when the prisoner goes at large, unlawfully, either because the building or prison in which he is confined is too weak to hold him, or because the keeper, by carelessness, lets him go out of prison.

And nothing will excuse the jailer where an escape takes place except the act of God, or of the enemies of the country,62 or the authority of a court of competent jurisdiction.63

65

64

2338. The jailer is liable for the escape of prisoners lawfully in arrest, and if the arrest is illegal, he is free from all liability. He may, therefore, in his defence show that the court issuing the process had no jurisdiction, or that the process was void. So where a copy of process was left with the jailer as his warrant, he may justify an escape by showing such copy to be on its face void; he is not bound to look beyond the copy, and the validity of the process itself is not material.6 66

But no advantage can be taken of errors and irregularities in the process which do not render it void. And where the defendant was privileged from

Colby v. Sampson, 5 Mass. 310.

Wilkes v. Slaughter, 3 Hawks, No. C. 211; Skinner v. White, 9 N. H. 204; Steere v. Field, 2 Mas. C. C. 486.

56 Bolton v. Cummings, 25 Conn. 410.

57 Colby v. Sampson, 5 Mass. 310; Lowry v. Barney, 2 D. Chipm. Vt. 11; Jones v. The State, 3 Harr. & J. Md. 559; 2 Harr. & G. Md. 106.

58 1 Rolle, Abr. 806.

59 Dy. 207, pl. 24; Benton v. Sutton, 1 Bos. & P. 24; Hob. 202.

601 Mod. 116; Wood v. Turner, 10 Johns. N. Y. 420; see Hassam v. Griffin, 18 Johns.

N. Y. 48.

61 The State v. Woods, 7 Mo. 536.

62 Fairchild v. Case, 24 Wend. N. Y. 281; Baxter v. Taber, 4 Mass. 361.

Bender v. Graham, 1 Ala. 269; Stevenson v. Carothers, 3 Yeates, Penn. 180; Wiles v. Brown, 3 Barb. N. Y. 37.

Albee v. Ward, 8 Mass. 79.

Howard v. Crawford, 15 Ga. 423; Hitchcock v. Baker, 2 All. Mass. 431; Tuttle v. Wilson, 24 Ill. 553.

66 Kidder v. Barker, 18 Vt. 454.

67 Spafford v. Goodell, 3 McLean, C. C. 97; Parker v. Hotchkiss, 25 Conn. 321.

arrest, such privilege is personal to him and affords no justification to the sheriff.68

70

69

2339. If a prisoner confined on final process effect a negligent escape, he may be again retaken by the sheriff, but not so after a voluntary escape. If he was confined on mesne process, he may be arrested by the sheriff after a voluntary escape." But the plaintiff may always retake the escaped defendant, whether his escape be negligent or voluntary. He has two remedies, one against the sheriff for suffering the escape, and the other by the recapture of the prisoner. If he elect the latter and retake the prisoner, he cannot afterwards proceed against the sheriff." But the return of a prisoner after a voluntary escape will not discharge the sheriff.

2340. As the escape of the prisoner is a tort on the part of the sheriff, he becomes liable to the plaintiff. This action is clearly in tort and was such at common law, but by two ancient statutes,72 an action of debt is given against the sheriff the amount of the judgment. And as in an action of debt the whole or nothing must be recovered, there is in this case no question as to the amount of damages.73 These statutes have been superseded by statutes in the various states, and the action of debt for an escape is not now in use, at least to any extent.

2341. The usual remedy for an escape is by an action on the case against the jailer. In this action the plaintiff can recover only the actual damage he has sustained, and this depends upon the pecuniary ability of the defendant to pay the debt. The officer may therefore show that the prisoner was totally insolvent at the time of the arrest, in which case only nominal damages can be recovered, or may show his poverty in reduction of damages.

In general, the plaintiff is entitled prima facie to recover the amount of the judgment.

If a defendant arrested on mesne process escapes, the sheriff may show in defence that the plaintiff could not recover in the original action.75

2342. An officer is bound to make diligent search for the defendant when he has a process against him, or for his property when he is commanded by a lawful writ to seize it, and any neglect upon his part will make him liable to the plaintiff for any loss he may sustain on that account,76 although he may have acted from a mistaken idea that he had no authority; as, where the sheriff suspends proceedings on the production of an insolvent's discharge by the defendant, he incurs the peril of an action if the discharge turns out to be void." For the same reason that he is liable when he does not execute the writ the officer is responsible for an insufficient or defective execution; as, where he was required to make a levy upon real estate, and he did it so defectively that no title passed by it, he was held liable to an action for nominal damages, notwithstanding he showed that the debtor at the time had no valid title to the land,78

68 Gill v. Miner, 13 Ohio, St. 182.

69 Butler v. Washburn, 24 N. H. 251.

70 Cady v. Huntington, 1 N. H. 138; Stone v. Woods, 5 Johns. N. Y. 182; Whithead v. Keyes, 1 All. Mass. 350.

71 Basset v. Salter, 2 Mod. 136; Ethevick v. Brewell, Comb. 396.

72 Stat. of Westminster, 2 Ch. 11, 13 Edw. 1; Stat. 1 Rich. II, Ch. 12.

73 Steere v. Field, 2 Mas. C. C. 486.

Rawson v. Dole, 2 Johns. N. Y. 454.

75

Riggs v. Thatcher, 1 Me. 68.

76 Dunlap v. Berry, 5 Ill. 327; Ware v. Fowler, 24 Me. 183; Palmer v. Gallup, 12 Conn.

555; Tucker v. Bradley, 15 Conn. 46.

"Orange County Bank v. Dubois, 21 Wend. N. Y. 351.

78 Bell v. Roberts, 15 Vt. 741.

If the plaintiff sustain any damage in consequence of the sheriff's neglect to return his writ in due time, or within the period prescribed by the law of the place, an action will lie for such damage. In some states the sheriff is required to make his return within a certain time after the return day, and on failure to do so he is held responsible for the debt. He is also liable to the plaintiff for making a false return.

2343. As to actions founded upon neglect or non-performance of their obligations by common carriers, it will be convenient to consider who are common carriers, as to responsibility; what persons and goods they are bound to take; the responsibility as affected by the carrier's ability and tender of payment for his services; and failure on his part to perform his obligations after undertaking to do so.

2344. We have seen under a former title" who is a common carrier. It is only required here to observe that the superior alone is in general considered as the servant of the public; but to this there is an exception, the master of a vessel being viewed in the light of a principal. The ship owners are not, however, discharged from liability on this account, this claim upon the captain being merely a cumulative remedy.81

80

2345. A common carrier fills a public station, and he is bound to discharge his duty, by administering equally and without discrimination to the necessities of each individual member of the community, so that his refusal or neglect is a breach of duty, and when this refusal is attended with inconvenience to the customer he must compensate him for the loss, unless he has a lawful excuse for the refusal or neglect.82

2346. In general, the time when the goods are to be delivered to him is about the period he sets out on his accustomed journey. A land carrier may refuse to admit goods into his yard or warehouse before he is ready to take his journey, because that would increase his responsibility, unless, indeed, where there is an express undertaking, or there is a mode of dealing to receive packages at all times. Nor is a master of a vessel bound to receive goods sent to be laden at unreasonable hours.83 But, in either case, if the goods are accepted, the carrier's responsibility as to them attaches.

2347. To render the carrier liable for neglect he must have the means of conveying the property; if his conveyance, be it a carriage, wagon, vessel, or steamboat, is already full, he cannot be obliged to take more; but although he may have room, he is not bound to carry merchandise until the freight, or fare, has been tendered or paid to him.

2348. Having accepted goods to carry, the carrier is responsible for the neglect of them, when an injury occurs to them, whether he has received payment of his hire or not. But if the goods were never given in charge to the carrier, as, if the owner puts them in the care of a servant, and sends him to have the sole charge of them, the carrier is not responsible.

84

The carrier is bound to deliver goods to the persons to whom they are consigned, and when he delivers them to a person not entitled to them he does so at his peril.

2349. In considering the obligations and rights of innkeepers the subject of their liability was so fully examined that we shall not be required here to do more than to refer to it.85

[blocks in formation]

CHAPTER VI.

INJURIES TO REAL PROPERTY IN POSSESSION.

2350. Injuries to real property.

2351. Injuries to property in possession.

2352-2361. Ouster.

2353-2358. The kinds of ousters.

2353. Abatement.

2354. Intrusion.

2355. Disseisin.

2357. Discontinuance.

2358. Deforcement.

2359. The remedy for an ouster. 2362-2381. Trespass to real estate. 2363. The nature of the estate. 2364. The title of the plaintiff. 2365. The nature of the injury. 2368-2381. Trespass, how justified. 2369-2376. By authority in law.

2377. By authority in fact.

2382-2395. Nuisance.

2383. Nuisances to corporeal hereditaments.
2384. Nuisances to incorporeal hereditaments.

2385-2395. The remedy for a nuisance.

2386. Remedy by injunction.

2387-2391. Remedy by abatement.

2388. Who may abate a public nuisance.
2389. Who may abate a private nuisance.

2390. The manner of abating a nuisance.
2392. The remedy by action.

2350. Injuries to real property affect the rights of the party in possession, or they affect the rights of the reversioner or remainder-man who is not in possession. The first of these classes will be considered in this chapter.

2351. The injuries which affect the possession or right of possession may deprive the owner of the possession, as ouster, or may merely injure him in this possession without depriving him of it. If this last injury is done with force, it is a trespass; if without force, a nuisance.

2352. Ouster is the actual turning out, or keeping excluded, the party entitled to possession of any real property corporeal. And such an ouster or dispossession may be either of the freehold or of chattels real, but it cannot be committed of anything movable. An ouster may be committed by a stranger, or by one tenant in common. A taking possession by one tenant of the whole property with an actual intent to exclude his co-tenant from the enjoyment is an ouster as much as if committed by a stranger.2

1 Doe v. Cowley, 1 Carr. & P. 123; 3 Sharswood, Blackst. Comm. 167.
'Newell v. Woodruff, 30 Conn. 492; Izard v. Bodine, 3 Stockt. N. J. 403.

Ousters of the freehold may be effected by one of the following methods: abatement; intrusion; disseisin; discontinuance; and deforcement.

2353. Abatement, in this sense, as an injury to real estate, is where a person dies seised of an inheritance, and before the heir or devisee enters, a stranger who has no right makes entry, and gets possession of the freehold; this wrongful entry is called an abatement, and the person who makes it an abator. This is one of the highest injuries which can be committed against the right of real property.

2354. Intrusion takes place when, after the determination of a particular estate of freehold, a stranger enters wrongfully before the remainder-man or reversioner; for example, when a tenant for life dies seised of certain lands, and after such death of the tenant for life, a stranger enters before the remainderman or reversioner. Intrusion differs from abatement only in this, that the former is an injury to the remainder-man or reversioner, and the latter to the heir or devisee. The person who makes an intrusion is an intruder.

2355. Disseisin is a wrongful putting out of him who is seised of the freehold. To make a disseisin there must be a claim or color of title at the commencement, for any other entry is a mere trespass. To constitute a disseisin there must be an intention to obtain an adverse possession, and unless that be manifest the wrongful act cannot put him out who is seised of the freehold.

2356. By adverse possession is meant the enjoyment of land, or such estate as lies in grant, under such circumstances as indicate that such enjoyment has been commenced and continued under an assertion of right on the part of the possessor.

When a wrongful entry is made by one claiming title, the rightful owner of the land may consider him as a disseisor of his whole interest, although such a wrong doer may claim a less estate, because a disseisor cannot qualify his own wrong, so as to prevent the owner from pursuing the remedies which the law has provided in cases of disseisin, and which are more specific and effectual than those applicable to a mere trespass.

The person who makes a disseisin is called a disseisor.

2357. The fourth kind of ouster is a discontinuance, which is an alienation made or suffered by the tenant in tail, or other tenant seised in auter droit, by which the issue in tail, or heir or successor, or those in reversion or remainder, are driven to their action and cannot enter; as, if tenant in tail makes a feoffment in fee simple, or for the life of the feoffee, or in tail, all which are beyond his power to make, for that, by the common law, extends no further than to make a lease for his own life; in such case the entry of the feoffee is lawful during the life of the feoffor, but if he retains possession after the life of the feoffor, it is an injury, which is termed a discontinuance.7

2358. The last species of injuries by ouster is called a deforcement. In its most extensive sense it signifies the wrongful holding of any lands or tenements to which another person has a right, so that it includes as well an abatement, an intrusion, a disseisin, or a discontinuance, as any other species of wrong

8

8 By the ancient laws of Normandy the term abatement was used to signify the act of one who, having the apparent right of possession of an estate, took possession immediately after the death of the actual possessor, before the heir entered. Hollard, Anciennes Lois des Français, tome i. p. 539.

6

Coke, Litt. 277; Fitzherbert, Nat. Brev. 203; Archbold, Civ. Pl. 12; Dane, Abr.
Coke, Litt. 277; Taylor v. Horde, 1 Burr. 110; Litt. sec. 279.

Campbell v. Wilson, 3 East, 294; Morris' Lessee v. Vanderen, 1 Dall. 67; Watson v. Gregg, 10 Watts, Penn. 289; Jones v. Porter, 3 Penn. 132; Jackson v. Huntingdon, 5 Pet. 402; Rung v. Shoneberger, 2 Watts, Penn. 23.

[blocks in formation]
« SebelumnyaLanjutkan »