jected thereto, and showed the captain the copy of the bail-piece Dec. Term, 1828. and the letter of attorney, which he perfectly understood. That Coggeshall however, being advised by Northam to do so, persisted in his intention to send Windsor on shore in the small boat, while Northam and the witness and Carr held Windsor to prevent him from going into the boat. That the captain thereupon called up his men and threatened to use force to put Windsor on shore, which induced Dow v. Coggeshall. the witness and Carr to release Windsor who immediately went into the small boat followed by Carr. That the witness was also requested to go on shore in the small boat, but he declined to do so; and Windsor and Carr were landed alone at Fort Adams, in the harbour of Newport. The witness directed Carr after he had got into the small boat to bring Windsor to New-York by some other conveyance, and Carr took with him the copy of the bail-piece and deputation when he was put on shore. Mr. Kinney further testified, that as he did not leave the steam-boat, he did not know whether Carr did or did not exercise any controul over Windsor after he left the boat; that the plaintiff afterwards, upon affidavits, obtained an order from the Supreme Court, allowing further time for the surrender of Windsor, upon the payment of costs, and that the expenses attending the same were about forty or fifty dollars, the precise amount not being ascertained. The witness further testified that the expenses incident to the taking of Windsor, and putting him on board the steam boat including counsel-fees, amounted to $75. 50, which had been paid, besides $20, to Carr, which had not been paid. The counsel for the plaintiff then enquired of the witness whether the time for the surrender of Windsor had not so nearly expired on the said 12th day of August, as that the said steam boat afforded the last and only opportunity of carrying him to New-York in season for his surrender, within the time limited by law, and whether in fact, it was practicable by any other means to produce Windsor in New-York in time to make a due surrender of him in exoneration of his bail. This question being objected to by the defendants, was overruled by the Chief Justice. Dec. Term, 1828. The plaintiff then called another witness, who corroborated Mr. Kinney's principal statements, and testified in addition thereto, that Kinney and Carr were so anxious to keep Windsor on board, Northam and that Mr. K. offered to indemnify the captain, if he would carry the Coggeshall. Dow v. debtor to New-York. The defendants called several witnesses, who testified that there was a great deal of excitement on board the steam boat when the passengers found that Windsor was detained forcibly on board: that captain C. refused to carry him to New-York, and ordered Kinney, Carr, and Windsor, all into the small boat. He said, as they had all come together, he wished them to depart together, and called the passengers to witness his proceedings. Carr and Windsor went into the boat, but Kinney refused to go. He remained in the steam boat and directed Carr, after he was in the small boat to hold Windsor, and bring him to New-York, saying that he would pay all his expenses. By the testimony of the defendant's witnesses, it did not appear that Northam was more active in the matter than the other passengers, but there was some slight evidence to show that he was one of the owners of the boat. passage money, however, was received by the Captain's Clerk, who testified that Mr. N. did not seem to take any part in the matter. The It appeared further, that the Chancellor Livingston was a regular passage boat, plying between New-York and Providence, and that it is not customary for the passengers to ask the Captain's leave when they go on board, or to pay their passage money until after the boat has put off from the wharf. Windsor was very willing to be put on shore at Fort Adams, and was unwilling to proceed to New-York. The Chief Justice charged the jury, that the plaintiff's action was founded upon an alleged rescue, by the defendants, of Windsor from Carr, who had him in custody on a bail-piece. That to constitute a rescue, in the legal sense of the term, the party rescued must be under a legal arrest, or rightfully held in custody, and must be wrongfully set at large, or freed from detention by the rescuer. That in his opinion, the evidence did not sustain 1828. Dow v. Northam and that charge, as there was no intention manifested by the defend- Dec. Term, ants, or either of them, to set Windsor at large, or to liberate him from the power or custody of Carr, nor was there any attempt made to separate them. The captain, it was true, refused to permit Windsor to continue on board, and insisted upon putting him on shore; but he did not prevent Carr from going with him, and Carr actually accompanied Windsor on shore. That if the cарtain's refusal to carry Windsor to New-York, and the act of putting him on shore, exposed the captain to any action, (concerning which he expressed no opinion,) still the facts disclosed would not sustain an action for a rescue. That if the views taken by him of the evidence should be embraced by the jury, their verdict would be for the defendants; but if they should be of opinion from the facts disclosed, that Windsor was set at large from the arrest, or was taken out of the power of Catr, or if the latter was prevented from exercising his lawful authority over him by the defendants, or either of them, then their verdict ought to be in favour of the plaintiff, for $75.50, and such part of the forty dollars as they judged proper-they being at liberty to convict one defendant and acquit the other, if they thought the evidence would support such a verdict. The jury, without leaving the box, found a verdict in favour of both defendants. Mr. Geo. Sullivan, for the plaintiff, now moved for a new trial, on the following grounds: I. That the verdict was against the evidence and against law. The Chief Justice mis-directed the jury, by instructing them that the evidence was to be applied to the issue, as if the plaintiff in his declaration had counted on a technical rescue; whereas the action was in truth brought for an unlawful interference on the part of the defendants, with the plaintiff's custody of the person of the debtor, for whom he was bail. II. There was sufficient legal evidence of an unlawful interference on the part of the defendants with the plaintiff's right of 1828. Dow v. Northam and Dec. Term, custody over the person of the debtor: but the presiding Judge informed the jury that there was no such evidence. Even if there was no evidence to support the first count, still the second count was fully sustained. Windsor, in contemplation of law, was in the custody of the plaintiff, through the intervention of his agent, Kinney. For although the deputation was to Carr, that did not take away from the agent the right to represent his principal, and to detain Windsor himself. The Chief Justice put the defendants' liability exclusively upon the ground of their intention to set Windsor at large, or liberate him from the power or custody of Carr; whereas, the liability of the defendants in law, rests upon the fact of their interfering with the plaintiff's controul over the person of the debtor, whereby he was prevented from surrendering him to the sheriff. III. The presiding Judge, by omitting to direct the jury as to the right of the plaintiff to bring the debtor, by the steam-boat, to New-York, under the circumstances of the case, left the jury in ignorance of the plaintiff's legal rights, and gave them ground to infer that the defendant, Coggeshall, could not have brought Windsor to New-York in his boat, without subjecting himself to damages for a false imprisonment; whereas Windsor having made no application to the captain before the vessel left the wharf, could not have recovered against the captain or the owners of the boat, even if he had been brought to New-York. IV. The direction of the Chief Justice was uncertain in respect to the ground on which the jury were required to return their verdict, so that they could not distinctly understand whether they were to return a verdict for the defendants on the ground, that no technical rescue was sufficiently proved, or because Windsor was not in fact liberated from the plaintiff's custody, or upon the ground that the defendants did not intend to set him free. The jury were in fact left to infer that the captain and owners of the boat had a legal right to put Windsor and Carr on shore, and that therefore the defendants could not be liable in this action, and it is not clear from the charge but what the jury returned their verdict upon this Dec. Term, ground. 1828. Dow v. Mr. Greenwood and Mr. W. T. McCoun, the counsel for the Northam and defendants, were stopped by the court, in their reply. Per Curiam. It is very clear that this motion cannot prevail. The plaintiff, in both counts of his declaration, has brought his action against the defendants for having rescued Windsor out of his power. The first count alleges that the debtor was in the custody of Carr, a special agent deputed by the plaintiff to arrest him, and that he was taken out of the custody of Carr. The second count differs in no respect from the first, except by alleging that Windsor was in the custody of the plaintiff, and was rescued out of his hands and control by the defendants. Now the plaintiff's own evidence shows that there was no rescue whatever, no separation of the parties, no sundering of the debtor from the party having charge of him. If the plaintiff was represented by Carr, then the debtor was left under his controul; for both went on shore together, and so far from being separated, they were in fact kept together. If, however, Kinney was the representative of the plaintiff, still there was no rescue, because Kinney was expressly requested to retain the custody of Carr, by going into the small boat with him. If the plaintiff himself, through his agent, voluntarily abandoned the debtor, he surely cannot charge the defendants with having rescued him. The plaintiff, if he has any cause of action against the defendants, has manifestly mistaken his remedy. He should have framed a count to correspond with his proof, and if the captain was bound to bring Windsor to New-York, and refused to do so, he should have been charged with the act, which he in fact committed. If we treat the second count as a declaration in case, for sending Carr and Windsor on shore, that will not assist the plaintiff; for the proof shows no damage from that act, and therefore the gravamen of the declaration would not be supported. Coggeshall. |