Worthington v. Preston

30 F. Cas. 645

• Court: U.S. Circuit Court for the District of Eastern Pennsylvania
• Decided: October 15, 1824
• Status: Published

Opinion

WASHINGTON, Circuit Justice

(charging jury). If the defendant be liable for the escape which forms the ground of this action, it must be either (1) in his official capacity, or (2) upon a contract of bailment.

1. The first is a question of law, and depends upon the construction of the act of congress respecting fugitives, and the act of assembly of this state, which has been read. The former authorises the owner of a fugitive from service, escaping from one state into another, or his agent, to seize him, and to take him before any federal or state judge, or magistrate of the county, &e., where the seizure is made, and upon proof to the satisfaction of such judge or magistrate that the person so seized doth, under the laws of the state from which he fled, owe service or la-bour to the person claiming him, it is made the duty of such judge or magistrate to give a certificate thereof to such claimant, or his agent, which is to be a sufficient warrant for removing the fugitive to the state from which he fled. This act confers only a limited authority upon the magistrate to examine into the claim of the alleged owner, and being satisfied on that point, to grant him a certificate to that effect. This is the commencement and termination of his duty. He has no authority to issue a warrant to apprehend the fugitive in the first instance, or to commit him after the examination is concluded, and thé certificate given. Pending the examination, whilst the fugitive is in custodia legis, the judge of this district and myself have always considered ourselves at liberty to commit, from day to day, till the examination is closed, or else the fugitive could not safely be indulged with time to get his witnesses to disprove the claim of the asserted owner, should he have any. An attempt has been made in congress to correct these glaring defects in the act, without which correction the act is found to be practically of little avail; but the attempt has not as yet succeeded. As it now stands, the magistrate had no authority to command the gaoler in this case to receive and safe keep the fugitive, and consequently, it is not a case provided for by the act of assembly of this state, which is confined to commitments •under the authority of the United States. But even if the magistrate had been authorized to commit, it would be a conclusive objection to the plaintiff’s demand, under this head, that no warrant of commitment was in fact granted.

2. Is the defendant liable as bailee? And the first inquiry under this head is, whether aDy contract of bailment is proved to have been entered into by the defendant with the plaintiff’s agent? Two witnesses, one of them the turnkey, have stated, that at no period, from the time the negro was brought to the gaol to that of the departure of the agent and son of the plaintiff who brought him there, was the defendant present, and that the directions to keep him, and not to lock him up till he had received his supper, were given exclusively to the turnkey. The agent has sworn positively that the promise to keep the man safely was made by the defendant in person. The son, who was present the whole time, knows nothing of the alleged promise by the defendant. You must therefore say, upon the evidence, how this fact is. It is all important to the ease of the plaintiff, and the burthen of proving it to your satisfaction lies upon him. But admit the fact to be proved, would the defendant, under all the circumstances of this case, be liable? No reward for the required service was promised, and, according to the doctrine laid down in Coggs v. Bernard [2 Ld. Raym. 909], the bailee is answerable in such a case, only for gross neglect. Now, when a man promises to keep safely property, either animate or inanimate, be the former a rational being or otherwise, he must be free to exercise his own judgment as to the mode, and must depend upon his own vigilance to effect the object. But if the bailor restricts,him in these particulars, by prescribing the mode and degree of confinement, the bailee can not be charged with negligence of any kind, much less with gross negligence, if, notwithstanding an honest and strict fulfilment of the special contract of bailment'thus entered into, an escape should happen, or a loss be sustained. Now, in this case, the slave was left in the yard of the gaol, with the knowledge and consent of the agent, and with an order not to lock him up, until he had received his supper. The door communicating with the yard was carefully locked when they left the yard, and the only way by which.an escape could be effected, was over the wall. Before the supper could be brought to the negro, he had made good his escape over the wall. How then can the bailee, admitting the defendant to have been such, be chargeable with negligence under circumstances like these? But would he have been liable, even if the order not to lock him up .till after supper, had not been given? We think not. The charge of gross negligence could not have been imputed to the bailee, who kept this man in .the same place, and with the same precautions, that he kept all the other prisoners under his charge.

Verdict for defendant.