I do not mean that a person who erects a nuisance can not be convicted of that same act and fined. Possibly (although I express no opinion on this) the jury in this case might have rendered a verdict of guilty of erecting, but not of continuing. But the fact is that the jury have convicted the defendant of continuing, as well as erecting the nuisance. While it is shown that the defendant is not the owner, he can not, in my opinion, be convicted, at least on this proof, of continuing. If Mrs. Livingston were the successor to the defendant she would be liable for the continuance of the alleged nuisance.1 This defendant would not be liable, unless he derived some benefit, as by demising the premises and receiving rent or by conveying with covenants for the continuance of the nuisance.2 Much less would the defendant be liable for the continuance if Mrs. Livingston was not his successor; and if he had erected the nuisance only as her agent.

It may be said that it is not necessary that the court should adjudge that the defendant abate the nuisance, and that the court may merely impose a fine. But I do not think a verdict can stand, which finds the defendant guilty of continuing a nuisance which he does not continue and which exposes him to a judgment which he can not perform.

There are, perhaps, other reasons why this conviction should be reversed but I deem this sufficient.

It should be said in justice to the learned judge who tried the case that his attention was not in any way called to the point above suggested, and that he could not be expected to notice it, as he very probably did not see the indictment.

Conviction reversed and new trial granted.

AGENCY-VIOLATION OF CITY ORDINANCE-SPECIAL AGENT. COMMONWEALTH V. LEAVITT.

[12 Allen, 179.]

In the Supreme Judicial Court of Massachusetts, January Term,

1866.

One who is the Agent for Another to hire men to drive cattle, is not criminally liable for the acts of such persons in violating a city ordinance by driving such cattle on a sidewalk.

Complaint for permitting cattle under the care of the defendant to go upon the sidewalks of a public highway in Cambridge, in violation of a city ordinance.

1 Brown v. Cayuga and Susque. R. R. Co., 12 N. Y. 448.

2 Mayer v. Cunliff, 2 N. Y. 174; Hause v. Corning, 1 Lans. 288.

At the trial in the Superior Court before WILKINSON, J., two witnesses were called upon the part of the Commonwealth, who testified that the defendant employed them to drive the cattle, as stated in the opinion, and paid them, there being six or seven drivers in all, and that the defendant was not with them in driving the cattle through Cambridge. There was evidence to show that the cattle went upon the sidewalk, as alleged.

The defendant called on Harding as a witness, and offered to prove by him that an owner of some of the cattle requested the defendant to employ two men to assist in driving the drove to Brighton, and to pay them; but the evidence was excluded. The defendant then offered to prove by the way bills on the railroad that he did not own the cattle, but this also was excluded.

The jury returned a verdict of guilty, and the defendant alleged exceptions.

P. E. Tucker, for the defendant.

J. S. Morse, for the Commonwealth.

CHAPMAN, J. The evidence that the defendant employed two men to assist in driving the cattle from the Boston and Maine Depot through Cambridge to Boston; that he went with one of the men from the depot almost to Cambridge Bridge, and then took a horse car for Brighton, and met the men at Brighton, and paid them after they had finished their work, tended to show that he was the owner of the cattle, or the agent of the owner employed in driving them. In either case he would be liable. But the evidence offered by him that a person who was the owner of a part of the cattle requested him to employ two men to assist in driving them, and to pay them at Brighton, tended to explain these acts and to show that he performed them merely as a servant of the owner, employed to hire and pay men. If the hiring and payment of the men constituted all his agency in the matter, he would not be liable, because the men were not acting for him or under his control. His agency would not extend to the manner of doing the work.

If he had assisted the men in driving the cattle through Cambridge, he would be liable on that account; but it does not appear that he rendered any such assistance. The testimony of Harding ought to have been admitted.

But it was a con

It was objected that it was a mere conversation. versation containing a request of the owner that the defendant would do him a service, and such a request is a fact, and admissible in evidence as such.

The way bills that were offered were clearly inadmissible, and were properly rejected; but for the rejection of Harding's testimony the exceptions must be sustained.

AGENT-WATCHMAN IN JAIL NOT LIABLE FOR NEGLIGENT ESCAPE OF PRISONER.

STATE V. ERRICKSON.

[32 N. J. (L.) 421.]

In the Supreme Court of New Jersey, February Term, 1868.

1. An Indictment for a Negligent Escape will lie only against those officers upon whom the law casts the obligation of safe custody, and will not lie against the mere servants of such officer.

2. A Watchman of a Jail is not liable for an escape of a prisoner effected through his negligence.

This case came to this court for its advisory opinion from the Oyer and Terminer of the county of Monmouth.

The defendant was indicted and convicted for a negligent escape. It appeared upon the trial, that one Jackson, who had been convicted of grand larceny, escaped from the county jail, to which he had been legally committed; that the defendant had been employed by the sheriff to watch this criminal at night; that one Mrs. Smalley was the keeper of the jail, and that she kept the keys of the cell doors in her own room. Another prisoner, Tienny, escaped with Jackson. The cell door of Jackson was found, in the morning, unlocked. The defendant had the keys of the outside door of the jail. The prisoner was locked up by the jailer. The defendant, about twelve o'clock at night, laid down on a bench, near the stove in the jail, outside of the cells, and then fell asleep. The next morning, just after daylight, it was discovered that Jackson had got out, by unlocking both his cell door and the outside door of the jail. The defendant was not an officer of the prison, being employed for the occasion, to watch Jackson at night. It was admitted that the evidence showed that the escape was not with his connivance. The case was argued before BEASLEY, C. J., and Justices VREDENBURGH and Depue.

For the State, Mr. McLean.

For the defendant, J. Parker.

The opinion of the court was delivered by

BEASLEY, C. J. As it appears that the criminal who escaped was not in the custody of the defendant, the latter could not be guilty of the crime of which he has been convicted.

The offense of suffering, by negligence, a prisoner to escape, is one which can be committed only by the person in whose charge the law places the criminal. This rule is reasonable, for such person alone has the control of the imprisonment, and can thus take the measures neces

2

sary to prevent the escape of the prisoner. Going, then, upon the facts as stated in the case, it is clear that on the occasion in question, the sheriff and the keeper of the jail were each guilty of a negligent escape. The prisoner was in their custody and they are responsible in law for the negligence of the defendant, who was their agent. It is also equally certain that such agent could not commit this offense. The books do not leave this rule of law in any uncertainty. In 1 Russell on Crimes 1 the doctrine is stated in these words: "But it seems that an indictment for a negligent escape will only lie against those officers upon whom the law casts the obligation of safe custody, and will not lie against the mere servants of such officer." And in the second volume of Burn's Justice, edited by Chitty, two cases, which are in point, are thus referred to: "T. Hill, a yeoman wardour of the town, and Dod, the gentleman gaoler there, were indicted for the negligent escape of Colonel Parker, committed to the town for high treason. Lord Lucas, the constable of the town, had committed the Colonel to the care of the defendants, to be kept in the house of the defendant, Hill. The judges present (O. B. January, 1694), were of opinion that the defendants were not such officers as the law took notice of, and, therefore, could not be guilty of a negligent escape. It was merely a breach of trust to Lord Lucas, their master. Upon the same principle, T. Stick, a wardour of the tower, who was indicted at the same session for the negligent escape of Lord Clanconty, was acquitted."

For a recognition of the same principle, see, also, Bishop on Criminal Law.3

Let the Oyer, etc., be advised to grant a new trial.

NOTES.

§ 77. Officers-Not Criminally Liable for Acts of Deputies or Servants.— An officer (public) is not criminally liable for the criminal acts of his subordinates - as a warden of a prison for the murder of a prisoner through the cruel treatment of a deputy. And so of a military officer for the negligence of his soldiers acting under his orders."

§ 78. Sheriff not Indictable for Neglect of Duty by Deputy.- In State v. Berkshire, an indictment was brought against a deputy sheriff for neglect of duty in not executing certain writs of capias. The Circuit Court quashed the indictment, but the Supreme Court reversed its action. "The high sheriff,"

1 p. 420.

2 p. 6.

3 Vol. 2, sec. 922.

4 R. v. Huggins, 2 Strange, 882.

5 R. v. Hutchinson, 9 Cox, 558 (1864). 62 Ind. 207 (1850).

said the court, citing Hipp v. State,1 ,1 "can not be made to answer for his deputy criminally. But we see no good reason why the deputy himself should not be liable in this case."

--

§ 79. Escape - Negligence of Jailor Indictment Against Sheriff. - In Nall v. State, a sheriff was indicted for suffering a prisoner in his custody to escape from jail. It appeared that the jailor had allowed the prisoner to go out of the prison walls for exercise, and on one of these occasions he made good his escape. The sheriff was convicted. On appeal the Supreme Court reversed the case. "The bill of exceptions shows," said WALKER, J., "that Thompson was one of the deputies of the defendant; that the defendant had instructed the jailor, that he must obey the orders of his deputies as his own; and that, in consequence of these instructions, the jailor was in the habit of yielding obedience to the orders received from the defendant's deputies. Assuming that this evidence was sufficient to show that the defendant had authorized his deputy, Thompson, to give directions to the jailor in reference to the prisoners in his custody; yet, as every man is presumed to be innocent until his guilt is made manifest this can not be construed as an authority to Thompson to give any other directions than such as were legal, proper and customary. The declarations of his agent do not bind the principal if not within the scope of his agency, or expressly authorized. The direction of the deputy to the jailor, to allow the prisoner the liberties enjoyed by him, was a command to violate the law-it was not a legal or proper direction, and was not within the scope of the authority conferred by the defendant. As a general rule, if an agent does an illegal act, the principal is not responsible for it criminaliter, unless it is shown that the act was done by his express authority. The court erred in permitting the declarations of the deputy to go to the jury as evidence against the defendant. If it had been shown that the defendant was cognizant of the orders which his deputy gave, and made no objection, the case might have been different. Whether or not a sheriff is liable criminally, and if so, how far, for an escape occasioned by the negligence or willful misconduct of the jailor, is a question which is not presented by the record, as it now stands, and on which it is not necessary for us to express our opinion. The judgment is reversed and the cause remanded."

§ 80. Principal and Agent - Liability of Principal.-"A principal or a partner may be civilly liable in damages for the tort of his agent or associate under facts which would not subject him to criminal responsibility. In a civil suit the material inquiry is whether the wrong was done while the agent was within the line of the duty with which he was charged or the partner within the scope of the partnership. In criminal cases it is the participation of the principal or partner in the wrongful act, either directly by concurring therein or by assenting thereto. If the principal or partner commands, procures, or

15 Blackf. 149.

2 34 Ala. 262 (1852).

8 2 Greenl. Ev., sec. 68.

4 Patterson v. State, 21 Ala. 572; Rex v Huggins, 2 Strange, 885; Hern v. Nichols, 1 Salk. 289; Mitchell v. Minnus, 8 Tex. 6; Commonwealth v. Lewis, 4 Leigh, 664.

See Roscoe's Cr. Ev. 412; 3 Hawk. P. C., ch. 19, sec. 29; Fell's Case, 1 Salk. 272; 2 Bishop's Cr. L., sec. 922; Randolph v. Donaldson, 9 Cranch, 76; Com. v. Lewis, 4 Leigh, 664.