47 Ky. 282 | Ky. Ct. App. | 1847
delivered the opinion of the Court. — Judge
Simpson did not sit in this case.
The only question presented in this case is, whether the Circuit Court erred in instructing the jury to the effect that a contract between the owner of a runaway slave and the county jailer, by which the latter, for a reward to be paid, undertook to receive and keep safely in the public jail, the runaway slave then in possession of the owner, is contrary to public policy and to the law, and therefore, cannot be the basis of a recovery against the jailer upon the subsequent escape of the slave from the jail.
1. The first consideration that presents itself in the investigation of this question is, that the jail is public property provided at the public expense for public uses, which are defined by law, and that the jailer is the officer
3. It cannot, therefore, be said that the fact that a slave is a runaway re-captured by his owner, furnishes any ground, in view of the public policy, for taking such a slave rather than others, into the public jail. The fact that there is an express provision for the case of runaways taken up by strangers, and none for those of which the owner has regained the possession, negatives all inference of any peculiar policy which would authorize the reception of the latter into the jail, rather than any other.slave which the owner might, from any cause, desire to place in the jail for safe keeping.
4. The reception and custody of a runaway slave stands upon no other ground than that of accommodation to the owner and profit to the jailer. If upon these grounds and without the authority of any law, the jail may, at the discretion of the jailer, be converted to private uses, it is difficult to fix any limit either to the na
This fact, however, can only serve as an illustration of the principle. If it were conceded that no particular evil had followed in this case, from taking the runaway slave into the jail for custody, it must also be conceded that there was no more right to do it in this case than in others — that if it was lawful to take one slave, it would have been equally so to have taken two or as many as the jailer could make room for, and that if it was lawful to take a slave because he had runaway, it was equally lawful to take one that the owner feared would runaway, or one that for punishment or any other cause, he desired to be kept in confinement. And in fine, it is obvious that if the contract shall have the sanction of law in this instance, it will be sanctioning a practice by which the private interest of the jailer may be put in opposition to his public duties, to the hazard of the public property placed under his care and of the com
We are of opinion, therefore, that this and all other contracts by which the jailer undertakes, for a reward, to appropriate the jail to the accommodation of private persons, for uses not prescribed or plainly implied by law, are against law and public policy, not only as involving a direct breach of duty in converting the public property to private and unauthorized use, whereby it will be more or less injured, (which might be said even-if he were not to receive a reward,) but also and more especially because it tempts the jailer to a violation of duty in this and other particulars which have been adverted to, and with the almost certain effect of producing consequences which are themselves in violation of the objects of the law and subversive of its policy. On such a contract neither party could maintain an action.
Wherefore, the judgment is affirmed.