Lucky v. Brandon ( 1823 )

By the Court :

The first point made is, that the plaintiff ought to have personal notice that a debtor in prison has made oath that he is unable to support himself, before the prisoner can be discharged. Where the residence of the plaintiff, or his attorney, is known, this notice ought to be given, and it ought to be given in a reasonable manner, so as to produce effect. Whether it were most reasonable to give it to the party, or to the attorney, must depend upon the circumstances of each particular case.

A creditor can not be said to neglect or refuse to support the prisoner, when he has no knowledge that such support is required of him. This notice, therefore, can not be dispensed with, unless it is impossible to give it, as where the residence both of plaintiff and attorney, or other agent, can not be ascertained, which can seldom 'happen. In this case, the notice was given to the attorney. The attorney acted upon it, and furnished support for a time. This was an acceptance of notice, and it is too late for the plaintiff to object to the want of it.

The second point made is, that the prison bounds can not be extended over private property, so as to authorize the prisoner to enter private houses, or labor on private grounds, within the condition of his bond. The court can not adopt the reasoning by which it is attempted to sustain this position, and the rejection does not include the proposition that the prisoner acquires a right to go where he pleases upon private property, without the consent of the owner. The prisoner acquires, within the limits of the prison bounds, no other right than that enjoyed by every other citizen, to associate where admitted, and to labor where employed. The ^public assumes no other control over the property or persons within the bounds than over the property and persons of other citizens. Within the bounds prescribed, the rights of the prisoner are the same that he would enjoy were he not imprisoned. This is what the law intended to confer, and the practice under it has been uniform in adopting this interpretation.

It was not the object of the law to permit air and exercise only. It intended to afford an opportunity to labor, to employ himself if he could, for the support of himself and family. Any other construction would make him a mere idle saunterer in the streets, exposed to the temptation of vicious indulgence, and setting an evil example to others.

The statute directs that bounds may be laid off and assigned around and adjoining the prison, so that these bounds shall not extend more than four hundred yards in any direction from the jail. A subsequent law extends the prison bounds to the corporation limits of the town in which the jail.is situate, or if the town be not incorporated, then to the limits of the recorded town plat. According to the plaintiff’s argument, the prisoner may range within these limits anywhere upon the public ground, and the public streets-and alleys, but he can go nowhere else. He must retire to the jail to sleep, to eat, and to perform all the offices of nature, or these must be attended to in the public streets. Such a construction was never thought of by our legislators ; it therefore could not have been intended by them. The court have not looked into the authorities cited by the plaintiff on this point; they could not adopt them if they sustain his position. The question stands too clear upon principle and sound practical good sense, to be decided against these, in deference to any authority.

The third point is, that the rules assigned by the court of common pleas are not defined by metes and bounds, and therefore do not so exist as to warrant the prisoner going at large. If this point is well taken, it can not entitle the plaintiff to recover upon the prison bounds bond. If no bounds were assigned, the bond was taken without authority, and against law. The sheriff might be liable for an escape, but the bond could not be sustained. The point, however, is not well taken. The assignment of limits or bounds is clear and certain. These bounds are mathematical lines, not visible actual monuments. It never was intended that the bounds around the jail, extending in each direction four hundred yards, should be wholly inclosed by visible actual monuments. Upon the ^plaintiff’s argument, these must be continuous around the whole area of the limits. If monuments be set up at certain points, and the line between described only mathematically, it would not be sufficient. The space between the monuments would not be designated with that certainty which is contended for. This consequence of the argument would seem sufficient to show that it is not tenable.

It is lastly contended for the plaintiff, that Tuscarawas street is not included within the bounds as assigned by the court. These bounds are extended “ south of the jail to Tuscarawas street indu~ sive.” This term includes Tuscarawas street-and establishes the southern line of that street as the southern limits of the bounds. The bounds further extend west of the jail to Poplar street, inclusive. East of the jail, as far as Walnut street in Canton, inclusive. Tuscarawas street, from its intersection with Poplar street, west, and Walnut street, east, is thus clearly included within the bounds. The prisoner was not out of the bounds when upon Tuscarawas street, anywhere between its intersection with Poplar and Walnut streets. The case agreed does not show that he was on that street, east or west of this intersection. It does not therefore show him out of the bounds.

Judgment must be for the defendant.