Ely v. Parsons

2 Conn. 382 | Conn. | 1818

Swift, Ch. J»

I am of opinion, that the order of the county court establishing the liberties of the prison in Mid-dletown, is to be construed to extend to the practical line of the street, as it was used and travelled at the time of making the order, and so as to comprehend the whole of the street or highway between the houses, within the limits mentioned. Such was manifestly their intent. This w'ould establish well known, definite boundaries. It cannot be presumed, that the order referred to a survey, which had not been regarded in practice, and which would exclude part of the open street, and comprehend part of the houses : where the limits would be uncertain, to be decided by a subsequent admeasurement, and the judgment of a legal tribunal.

I am of opinion, therefore, that a new trial ought to be granted.

TRumbuii, Edmond, Smith, Brainakd and Gotjid, Js. were of the same opinion. Peters, J.

The “ west line of Main street” is a boundary of the prison limits ; and, at the time of the escape alleged, the prisoner was without this line, as fixed by the city council, and a survey of the street as anciently established, but within it, as actually opened for thirty years. And the question is, what is intended by .Main street; technically, a highway, defined by Hues and limits, or, vulgarly, a public path ? When courts of record speak by record, of mailers of record, they use the language of the law, ahd not common parlance. Lines of highways are established by law, and are not as moveable as stores and fences. A line is the nearest distance between two points, and ex ri termini, is straight, unless the contrary is expressed. W hen the contrary is intended, the order follows visible monuments.

But it is said, that the practical line was intended ; as it was not the object to entrap prisoners, hut to confine them within palpable limits. The defendant was gaoler. lie was furnished with a copy of the order, and was bound to know, and to make known to his prisoners, the palpable limits thereby prescribed.*

But the complaint is not, that the court on the circuit judged wrong upon the evidence, but that they admitted improper evidence. I cannot say this of the act of the city council. The charter of the city, which is a public act, expressly empowers them “ to lay out new highways, streets, &c. or to alter those already laid out.” Wrere there any irregularity in their proceedings, it ought to appear in the motion. It does not appear in the recital.

But if the court erred in this, still, as it appears by the survey of Main street, as anciently established, given in evidence by the defendant, that the prisoner was without Main street, and consequently, without the limits of the prison, a new trial ought not to be granted.

HosmeR and Chapman, Js. gave no opinion, the former being related to one of the parties, and the latter not. having been in court when the case was argued.

New trial to he granted.