Ballou v. Kip, 7 Johns. 175

Ballou v. Kip

7 Johns. 175 | N.Y. Sup. Ct. | 1810

Per Curiam.

The escape charged in this case was by . going into the office of Reuben Leavenworth, and into the house of Lewis Berry. The proof was, that those *177places were within the reputed liberties, and were so understood, not only by all the prisoners, but by all other persons acquainted with the liberties, until after the alleged escape. It was further shown, that there must have been a mistake in the courses and distances contained in the field-book upon record, upon which the liberties were established, for they would not unite so as to include the gaol. There was also a map annexed to the field-book, and it appeared probable, but by no means certain, that the map was intended to represent the house and office as being within the liberties, though the courses and distances by the field-book would not include them. Upon these facts, it is difficult to rely upon the courses and distances as any certain guide; and the reputed liberties may perhaps be considered as affording the best evidence in the case, of the actual liberties of the gaol. But it is not requisite to go so far; for if the office of Leavenworth and the house of Berry be not within the liberties, the escape, by going into them, was at least inadvertent and involuntary, and a return from them into the actual liberties before suit brought, was a good defence according to the decision in Dole v. Moulton, (2 Johns. Cases, 205.) The case of Tillman v. Lansing, (4 Johns. Rep. 45.) only applies to an escape voluntarily and knowingly made; and the weight of evidence in this case is clearly in favour of the allegation, that the escape, if any, by going into that office, was not wilful, but involuntary ; and as the prisoner returned within the undisputed liberties before suit brought, the verdict ought to have been for the defendant.

In Bissel v. Kip, (5 Johns. Rep. 89.) it was observed, in the opinion delivered by the court, that going into Leavenworth's office was an escape. But the testimony in that case was direct and positive, that upon no construction would the liberties include that office, and the reputation of its being within the liberties was not supported by the aid of the map, and the arrest there was while *178the prisoner was in the office, and before his return» Nor was the fact of going into the office material in that cause; for there was proof of an instance of wilful escape from the reputed, as well as from the actual liberties.

The verdict in this case must be set aside, and a new trial awarded, with costs to abide the event of the suit.

Motion granted, •