Francis v. Wood , 28 Me. 69 ( 1848 )

The following opinion was read by

Wells J.

—The officer, who made the arrest, states, in his testimony, that he went on board the schooner, commanded by the defendant, and arrested Seymour, one of the crew, and while he had his hand upon Seymour, the defendant ordered him to go forward, and help hoist one of the sails, and that Seymour broke away from the officer, who commanded the defendant to assist him; that the defendant said, “ he should have nothing to do with it, that he had his vessel to take care of,” and when the officer told him, he should hold him responsible, if he carried Seymour off in his vessel, the defendant replied, that he knew as much law, as the officer did.

Although there was testimony, conflicting with that of the officer, yet the instructions must have reference to the evidence, upon the hypothesis, that the jury might find it to be, as the plaintiff contended it was.

Seymour was arrested, about the time the vessel was getting under way.

Thé instructions to the jury, were made, in reference to the material facts, which were submitted for their determination.

The Judge told the jury, what the defendant might do, in certain contingencies, in reference to the management of his vessel, when the arrest was made, “ but that he would have a right to go on, in the same way, as if Danielson, the officer, had not come on board.”

The jury must have understood by this language, that in the whole management of the vessel, and the control of the crew, for that purpose, the defendant was not bound to alter his conduct, but might proceed in such manner, as he thought, the situation and condition of his vessel would require, irrespective of the presence of the officer.

The defendant would consequently be at liberty, to command one of his men, who might be under arrest, to attend to any duty on board the vessel. And there would be but little doubt that the seaman would act in obedience to his command, and by violence, release himself from the officer. Although the defendant might not use any actual force, by which rescues are ordinarily accomplished, the relation existing between the master and the seaman, is of such a character, that the command of the former would probably excite the latter, to the exercise of all his physical power, to effect his escape. Surrounded by his shipmates, acting in conformity to the master’s orders, he would be encouraged to violate the law, and prevent the service of legal process. The master would thus as effectually aid in the rescue, as if he personally removed the hand of the officer, from the prisoner, and must be considered as uniting with the seaman, in the rescue, made by him. But the declaration not only alleges a rescue, by the defendant, it also declares, that he caused Seymour “ to escape and go at large.”

If the master of a vessel, can be permitted to conduct in the sanie manner, when an officer is on board of it, with a lawful precept, and has actually made an arrest of one of his mew, as if the officer were not, present, it may be very difficult in such cases, to execute either civil or criminal process. Under the instruction, given in the present case, the master might weigh anchor, while the officer was on board, and before he could have a reasonable time, to remove his prisoner., compel him to relinquish the discharge of his official duty, or subject himself to the necessity of being carried to sea.

It is said, one cannot be guilty of a rescue, by the use of words only; such doctrine is true, when applied to animals, that are not influenced by language. But when an action is produced by words, and by the presence and countenance of the speaker, they are in substance equal to the amount of force requisite, to. create such an action.

But if the defendant was not guilty, technically, of a rescue, as the declaration not only embraces that, but also contains the allegation of causing an escape, if the seaman was under arrest, as the testimony tends to show, when the defendant, with a full knowledge of it, ordered him to attend upon his duties, on board the vessel, and he thereupon broke away from the officer, who was unable to detain him, the defendant appears to have been guilty of causing him to escape and go at large. And the instructions must be taken, in reference to the declaration in the writ, as well as the evidence. Upon the part of the case under consideration, they were not given, at the request of the plaintiff, but in answer to that of the defendant, and if prejudicial to the rights of the plaintiff, they furnish just ground of exception.

From the view, taken by me, of the case, it is unnecessary to express any opinion, upon the effect of the officer’s return, as in my judgment, a new trial ought to be granted, because the instructions, which have been mentioned, were erroneous.