Dexter & Veazie v. Adams

Beardsley, J., delivered the opinion of the court as fol lows: “ In my view of this case, there was no error in allowing ■ Jenkins to be sworn and examined as a witness for the defendant. It was urged on the argument, that notwithstanding the release executed by the defendant, the witness still remained liable to Olcott, who was surety in the bond for the limifs, and was bound to indemnify him against all damages which he might incur by means of the escape. This objection was not made on the trial; and if it had been, it probably would have been obviated at once by a release from Olcott, as it appears he assented to the execution of the one made by the defendant. But the point, as now presented, not having been made on the trial, cannot be regarded, whatever might have been its effect if taken at the proper time. “ Assuming that Jenkins, independently of his bond for the limits, would have been liable to indemnify the defendant for an escape, if one had occurred—a point upon which no opinion is intended to be expressed—such liability wras merged in the higher security, the bond ; and did not exist when the release was executed. . Besides, this point was not made on the trial. If the plaintiffs intended to insist that the release was defective in form, or in the manner of execution, they were bound to make the objection in a specific form, that the defect might be obviated. A general objection, such as was made, ought not to be regarded. “ The main point in this case was disposed of when it was formerly before the court, (2 Denio, 646,) and it is only material now to advert to one aspect of the case which was not then presented. <£ The judge was asked, by the plaintiffs’ counsel, to charge that if Jenkins knowingly went beyond the limits, intending so [787] to do, defendant was liable for that escape, notwithstanding the fraudulent misrepresentation by which Jenkins was induced to go where he did. The judge refused so to charge, and as I think correctly; for there was no evidence on which that point could arise. The only witness on this part of the case was Jenkins; and he testified that he did not know where the jail limit was at that place, although he thought it was in the centre of the river. Of this, however, he had no certain knowledge ; and the jury would have been warranted in finding that he was in doubt whether the place to which he went, was-or was not beyond the jail limit, although they could not, on this evidence, have come to the conclusion that he knew he .was passing beyond the prescribed boundary. The judge charged that it was not enough to show that Jenkins was in doubt as to the boundary ; and that, if he was induced to go beyond the line by the trick and fraud of the agent of the owner of the judgment, acting with a view thereby to aid such owner in collecting the amount of the sheriff, the action could not be maintained, although a doubt might have been entertained by Jenkins as to the place of the boundary of the jail liberties. There was no error in this, or any other part of the charge, and a new trial should be denied.” H. G. Wheaton, attorney and counsel, and R. W. Peckham, counsel, for plaintiffs in error. First. The court erred in charging the jury, as in substance it did, that if they found that Jenkins was induced to leave the jail limits by the false message sent to him by Mink, and that Mink and Baker were acting in concert in sending the message, and that the message was sent for the purpose of enticing Jenkins off the limits, and enabling Hadley to collect his judgment of the sheriff, the plaintiff could not recover. And in refusing to charge the jury, that the fact of the prison [788] er’s being induced to leave the limits by fraud or deception, did not constitute a defence to this suit, unless Hadley, the owner of the judgment on which he was imprisoned, was in some way cognizant of, or a party to the fraud or deception, or had authorized it. [787] New trial denied. The plaintiffs brought their writ of error, and came to this court. [788] Because one man can never be held responsible for the fraudulent act of another, in a case like this, unless he has either authorized it before hand, or, it being done for his benefit, has approved of, or ratified it after it was done and had come to his knowledge. And it is clearly proved in this case, that the act complained of was not authorized by Hadley, the party sought to be held responsible for it, before it was done; and it is not proved that, after it was done and came to his knowledge, he approved of or ratified it. 1. The duty of the sheriff, as defined by the Revised Statutes and at common law. (2 R. S. 437, § 63; Alsept v. Eyles, 2 Hen. Black. 108 ; Raines, ex'r v. Dunning, 2 Mar. 386; Elliot v. Norfolk, 4 T. R. 789 ; 1 Rol. 808, L. 7.) 2. What will discharge the sheriff from liability consequent upon the escape of his prisoner % (Cary v. Turner, sheriff, 6 Johns. R. 51; Kellogg v. Gilbert, 10 Johns. R. 220 ; Cargill v. Taylor, 10 Mass. R. 206; Sweet v. Palmer, 16 Johns. R. 181; Patten v. Halstead, Cox's Rep. 277; Vin. Ab. Escape, N.; Crompton v. Ward, 1 Strange, 429.) 3. The nature and extent of the agency of Baker. (Story on Agency, § 126, §§ 17 and 18; Fenn v. Harrison, 3 T. R. 754 ; Gibson v. Colt, 7 Johns. 390; Paley on Agency, by Dunlap, 202, note a.) 4. On the subject of the ratification of an unauthorized act of an agent, or of a stranger, done with intent to benefit the principal. (Story on Agency, §§ 248, 249, 250, 252, 253, 254, 255; 256, 258 ; Owings v. Hull, 9 Peters, 607, 629 ; Hays v. Stone, 7 Hill, 128 ; Paley on Agency, by Dunlap, 171, note o.) 5. On the subject of the liability of the principal for the torts of the agent. (Story on Agency, §§ 452, 453, 454, 455, 456, 459 ; Smith Merc. L. 66.) [789] Second. No fraud was committed upon Jenkins to induce him to leave the limits, because— 1. No fact was misrepresented to him necessary or material for him to know, in order to enable him to judge of the propriety or legality of his leaving the limits—the misrepresentation alleged being confined to a fact, which could in no way mislead him as to his rights or responsibilities as a prisoner, and the truth or falsehood of which, so far as those rights or responsibilities were concerned, was entirely indifferent. Third. The court erred in refusing to charge the jury, that if they believed the prisoner Jenkins was aware, at the time he went on to the steamboat Albany, he forfeited his limit bond, and made the sheriff liable for an escape, whether the message he had received as to Delavan, was true or false, and with such knowledge, after some minutes hesitation, went deliberately off the limits on to the boat, that then the defendant was liable though the message, as to Delavan’s wish to see him there, was false. Fourth. The court erred in admitting the testimony of John F. Jenkins, he being interested in the event of the suit; and the release executed by the sheriff did not divest him of that interest. 1. The release executed by the sheriff is confined entirely to the witness’ liability under the bond he had executed to the sheriff, and described in the release, the surety being still liable to the sheriff on the bond. Now, suppose a recovery to be had against the sheriff, he would be entitled to recover the amount of the surety, and would not the witness be liable to the surety for the full amount he should have .to pay the sheriffs The sheriff’s release, therefore, to the witness, executed by .the consent of the surety, left the surety liable to the sheriff, and the witness to the surety. The release, therefore, in no way relieved the witness from his interest in the event of the suit. His interest after the release, remained equally certain and fixed. 2. Without any bond, the witness was interested in the event of the suit.. The sheriff was sued for a negligent, not [790] for a voluntary escape. After the arrest, it was the duty of the prisoner to remain in custody, according to law. It was a wrong to the sheriff for him to leave the limits, and if the sheriff sustains damages in consequence of the prisoner leaving the limits, he is liable to the sheriff for the damages. Notwithstanding. the release from the bond, the common law liability to the sheriff still remained. (Alsept v. Eyles, 2 H. Black. 108; Appleby v. Clark, 10 Mass. Rep. 59 ; Vin. Ab. Escape, J. Cro. E. 237, 293, 53.) 9 Wheat. 651—sheriff may give the limits without a bond.. 2 R. 8. 434, §§ 47, 40. 3. The objection to the witness Jenkins, on the ground of interest, after execution of the release, was sufficiently specific, unless the court or opposite party called for a specification of the particular in which it was alleged his interest remained. (3 H. 395; 17 W. 257.) • SS" R. W. Peckham, in reply.’—Question of agency is not in the case, as tried and passed upon by the supreme court. Only question put to the jury was, whether act was done for plaintiffs’ benefit. Ratification and adoption was the point tried. "HBg. Cagger & Stevens, attorneys, and Samuel Stevens & N. Hill,jr., counsel, for def’t in error. First. John F. Jenkins was a competent witness. 1. He was released from all liability on his bond to the sheriff. 2. That release having been given with the consent of Mr. Olcott, (the surety,) released Jenkins from all liability to respond to the surety. 3. The release was executed to enable Jenkins to be examined as a witness for the benefit of the surety, as well as the sheriff. This would be a conclusive defence to a suit by either of them against Jenkins, .for any liability to them which would have rendered him incompetent as a witness. (11 More, 342; C. Sr H. 365, mentions the case.) 4. This objection was not taken on the trial; had it' been, [791] it could have been obviated by a release from Mr. Olcott, and cannot therefore be urged here. (W. 142, 143; W. 562, .563.) 5. Jenkins was under no liability to the sheriff, except what arose from the bond. He was never confined to the four walls of the prison, and if he had given no bond for the limits, his escape from the limits would have been a voluntary escape, for which the sheriff would have had no remedy against him. 6. But if this were otherwise, the release was executed to render Jenkins disinterested and competent, as a witness in behalf of the releasor. This would preclude him from after-wards claiming or enforcing against Jenkins any liability which would have rendered him incompetent as a witness. 7. This objection was not taken at the circuit; had it been, it could have been, obviated by a further release from the sheriff, and will not therefore be listened to now. Second. All the other decisions of the circuit judge, in relation to the admission of evidence, were correct, provided his charge to the jury was correct. Third. The. circuit judge committed no error in his charge to the jury. 1. A plaintiff cannot maintain an action for an escape procured by himself, or by his own fraudulent devices. (Van Wormer v. Van Vorst, 10 Wend. 356.) 2. The same consequences necessarily follow, if the escape be procured by the fraudulent contrivances and devices of the agent of the plaintiff. 3. The fraud of an agent is imputable to the principal, although committed without his authority, knowledge or assent. (Story on Agency, § 452; Per Park, B., in Cornfoot v. Fowke, 6 M. & W. 373 ; 1 Salk. 289; 2 H. 461; Story on Agency, § 140; 23 W. 260.) ' This principle extends to sub-agents employed by the immediate agent of the principal. (Id. § 554.) The jury in this case, have found that the escape, for which the plaintiffs seek to charge the sheriff, was procured by the fraudulent device and contrivance of Baker, acting in concert [792] with Mink,—Baker being the agent of Hadley, (the plaintiff in interest,)—for the purpose of commencing a suit to charge the sheriff with this debt, if Jenkins should escape from the limits ; and that this fraud was resorted to by Baker, to enable him successfully to do the very thing which he was authorized by Hadley to do, to wit, to commence a suit against the sheriff for the escape, and thus charge him with this debt. If Baker, at the time of concocting and carrying into effect this fraudulent scheme to enable Hadley to charge the sheriff with this debt, had not been the agent of Hadley for any purpose, Hadley could not avail himself of the fruits of this fraud, concocted and executed for his sole benefit, without subjecting himself to all the consequences of such fraud. He cannot adopt the escape, which was procured solely for his benefit, and repudiate the means by which it was procured; he must adopt all or none of the unauthorized acts of the person acting as his agent, and for his benefit. Smith’s Commercial Law, 114, 115, 3d ed., by Holcombe Sr Gholson.) The attempt to reap the benefit arising from such fraudulent act, is an adoption of the act itself; and renders Hadley responsible for all its consequences, as much as though it had been done by his previous command. (Story on Agency, § 455.) Fourth. His honor, the circuit judge, committed no error in refusing to charge as requested by the plaintiffs’ counsel. 1. The first and second requests {pp. 33', 34,) are simply the converse of what the judge did charge. 2. The third proposition required the judge to decide a question of fact. He committed no error in refusing to comply with such request, but properly submitted it to the jury. 3. The fourth request was properly refused by the judge. There was no evidence to justify the instruction required. 4. The fifth and last request, is merely the converse of the principle answered in the charge which had been given. SSÜr” JV*. Hill,jr., same side. <=§B8t Decision.—Judgment affirmed, unanimously—with defendant’s taxed costs, and one-half thereof in addition. [793] Note.—The supreme court, Beardsley, J., held, that there was no error in allowing Jenkins to be sworn and examined as a witness for the defendant. The objection that the witness, notwithstanding his release by defendant, still remained liable to Olcott, his bail, was not made on the trial; and could not be regarded in.that court. Assuming that Jenkins, independently of his bond for the limits, would have been liable to indemnify the defendant for an escape, such liability was merged in the higher security—the bond; and did not exist when the release was executed. But this point was not intended to be decided, nor was it made on the trial. If the plaintiffs intended to insist that the release was defective in form or in the'manner of execution, they were bound to make the objection ina specific form. A general objection, such as was made, ought not to be regarded. Second. Baker was the agent of Hadley to commence an action against the sheriff, if Jenkins should be seen off the limits. This was the character and extent of his agency. If the escape was brought about by him and Mink, who were acting to aid Hadley and for his supposed benefit; and the, latter sought to gain an advantage by the result of such labors in his behalf, he necessarily thereby became a party to what they had done. One who endeavors to turn to his own advantage what others had assumed to do for his benefit, although without authority, is, as to such act, deemed to stand in their place; and if what the assumed agents had done was fraudulent as to themselves, it was equally so as to him who thus adopts and assumes it. In this case, therefore, there was no escape from the limits, for which Hadley could have redress. In effect, he procured it; and therefore the action would not lie. Third. The charge of the circuit judge was correct, in stating, that it was not enough to show that Jenkins was in doubt as to the boundary of the limits; and that, if he was induced to go beyond them by the trick and fraud of the agent of the owner of the judgment, acting with a view thereby to aid such owner in collecting the amount of the sheriff; the action could not be maintained, although a doubt might have been entertained by Jenkins, as to the place of the boundary of the jail liberties. Not reported.