#### Josiah Dow *versus*Stephen T. Northam and Charles Coggeshall.

Dec. Term, 1828.

The plaintiff was the bail of one Windsor, and for the purpose of surrendering him, deputed one Carr to arrest W. at Newport, R. I., and bring him to New-York. Carr arrested W., and without the captain’s knowledge, put him on board the steam-boat Chancellor Livingston, in order to bring him to New-York. The defendant, Coggeshall, (who was the master of the boat,) aided in some measure by Northam, (a part owner and passenger,) after the boat left the wharf, and when he discovered that W. was on board the boat against his will, put him and Carr on shore together, and refused to permit W. to be carried to New-York. In an action against the master and Northam, for a *rescue,*it was held, that the proof did not support the declaration, and the jury having found a verdict for the defendants, the court refused to set it aside.

This was an action on the case against the defendants, for rescuing out of the custody and control of the plaintiff, one Charles Windsor, for whom the plaintiff was bail.

The declaration contained two counts. The first count stated, that Windsor, being indebted to John McGregor, Thomas Darling, and Henry T. Curtis, had been arrested on the 27th day of Oct. 1827, by the sheriff of the city and county of New-York, by virtue of a capias issued out of the Supreme Court at the suit of the said McGregor, Darling, and Curtis. That the said Dow had afterwards become special bail for Windsor, against whom the *329plaintiffs in that suit recovered a judgment, in the year 1828, for the sum of $1075,64, at the May term of the Supreme Court. That afterwards, as Windsor had not satisfied the judgment, the plaintiff “ made his certain deputation in writing, under his seal, to one Robert R. Carr, and attached the said deputation to a copy of said bail-piece, attested in due form of law,” by which the plaintiff authorized and empowered Carr to take Windsor, and surrender him to the sheriff of the city and county of New-York, in exoneration and discharge of the said plaintiff as bail for the said Windsor.” That Carr, by virtue of said deputation and bail-piece, afterwards, viz. on the 12th day of August, 1828, at Newport, in the state of Rhode Island, took and arrested the said Charles Windsor, and had him in custody for the purpose of surrendering him” into the custody of the said sheriff.” That the defendants, nevertheless, well knowing the premises, to prevent the plaintiff from surrendering Carr, *“ rescued the said “ Charles Windsor from and out of the custody of the said Robert “ Carr, and caused the said Charles Windsor to escape and go at “ large;*and the said Charles Windsor did thereby then and there escape and go at large, out of the custody of the said Robert R. Carr, wheresoever he would.”

The *second*count differed from the first in nothing except thé allegations, “ that the *plaintiff,*having a copy of the bail-piece, arrested Carr at Newport, and had him in custody, and that the defendants rescued Windsor *“out of the custody of the said plaintiff”*and caused him to go at large, &c. By which means the plaintiff could not surrender Windsor in exoneration of himself as bail, had become *liable*to pay the amount of said judgment, and had been *obliged to pay “*divers sums of money in and about a certain suit commenced and prosecuted by the said Mr. G. D. and C. against” the plaintiff, and deprived of the means of recovering the costs and charges incurred” in and about the arrest of the said Windsor, &c.

The defendants appeared by separate attorneys, and severally pleaded the general issue. To the plea of the defendant Northam, there was attached a notice of the special matters upon which he intended to rely at the trial This notice contained *330some of the principal facts proved at the trial, and the additional one that Windsor had been arrested and held to bail in Newport also, and that the defendant Coggeshall had been warned not to take or carry Windsor beyond the custody and controul of the bail last mentioned.

The cause was tried before the Chief Justice. At the trial the plaintiff called Franklin S. ICinney, Esq., his attorney in the cause, as a witness, who testified that on the 12 of August 1828, he together with the said Robert R. Carr, and charles Windsor, went on board the steam boat, Chancellor Livingston, while she was taking in passengers at a wharf in Newport, and on her way from Providence to New-York. That.Carr then had Windsor in In's *custody, by*virtue of a copy of the bail-piece, duly authenticated, which is mentioned in the declaration, and a letter of attorney or deputation attached thereto, whereby he was authorized to arrest Windsor, and carry him to the city of New-York, in order to surrender him there in exoneration of the plaintiff as baiL The witness further stated, that he was then acting as the attorney of Dow the plaintiff, and that he together with Carr and Windsor went on board the Chancellor Livingston, from a small boat upon the outside of the steam-boat as she lay at the wharf. That the parties adopted this mode of getting on board from fear of a disturbance, if they carried Windsor through the streets of Newport forthe purpose of transporting him forcibly to New-York. That the defendant Coggeshall was the Captain of the steam-boat and then had charge of her, and that Northam seemed to have a principal controul over the boat, and assisted in receiving the passage money. The witness did not know whether the captain saw the party in the small boat when they came on board, or was aware of their intention to do so,until after they were on board. That after the steam boat had left the wharf and had proceeded about a quarter of a mile on her way towards New-York, some of the passengers informed the captain that Windsor was on hoard, against his will, and that as he was desirous of being landed, they advised the captain to put him onshore. That thereupon Coggeshall concluded to send Windsor on shore in a small boat and ordered it to be prepared for that purpose, but the witness oh*331jected thereto, and showed the captain the copy of the bail-piece and the letter of attorney, which he perfectly understood. Coggeshall however, being advised by Northam to do so, persisted in his intention to send Windsor on shore in the small boat, while 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 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 hin'i 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.

*332The 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, that Mr. K. offered to indemnify the captain, if he would carry the ^ektor 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 Northern 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. The 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.

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 *333that charge, as there was no intention manifested by the defendants, or either o' ¡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 captain’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 Cair, 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^ *334custody 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 *335from the charge but what the jury returned their verdict upon this ground.

*Mr. Greenwood and Mr. W. T. McCoun,*the counsel for the 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.

*336The Judge charged the jury expressly to say by their verdict, whether Windsor was *in*truth set at large or not, and they have found, upon that point, against the plaintiff. Their verdict is fully supported by the evidence, and the motion must be denied.

*Motion denied.*

[F. S. *Kinney, Att'y for the plff.*

J. Greenwood, *Att'y for Northam,*S. D. Hewlett, *Att’y for Coggeshall.]*