Casey v. Viall

• Decision Date: 14 March 1891
• Citation: 17 R.I. 348,21 A. 911
• Parties: CASEY v. VIALL, Keeper of County Jail.
• Court: Rhode Island Supreme Court

21 A. 911

17 R.I. 348

CASEY

v. VIALL, Keeper of County Jail.

Supreme Court of Rhode Island.

March 14, 1891.

Exceptions from court of common pleas, Providence county.

Charles F. Baldwin and John M. Brennan, for plaintiff.

Horatio Rogers, Atty. Gen., and Clarence A. Aldrich, Asst. Atty. Gen., for defendant.

PER CURIAM. This is trespass on the case against the defendant, as keeper of the Providence county jail, for suffering one Eben J. Beane, a prisoner for debt in said jail, to escape therefrom November 11, A. D. 1888. The plaintiff recovered judgment for $1,275 debt and $37.65 costs against said Beane in this court, November 22, A. D. 1887. One James H. Tower was bail for said Beane on the original writ in the suit in which said judgment was recovered, and committed said Beane to jail in said suit in discharge of himself as bail, November 9, A. D. 1888. The next day he caused C. F. Baldwin, the plaintiff's attorney of record in said suit, to be served with the following notice, to-wit: "Providence, R. I., November 10, 1888 Charles F. Baldwin, Esq.: I hereby notify you as attorney of record of Anuie Casey that on November 9th, 1888, I have committed Eben J. Beane to the Providence county jail in discharge of myself as bail upon a certain writ of arrest in favor of said Annie M. Casey and against said Eben J. Beane, and have paid the jailer $3.00 as board of said Beane. [Signed] James H. Tower." Said notice was served and was returned to the jailer, Saturday, November 10, A. D. 1888, at 5 o'clock P.M. On Sunday, November 11, A. D. 1888, more than 24 hours after the return, the defendant discharged said Beane from the jail for non-payment of board by the plaintiff, the only sum ever paid for board being the $3 paid by Tower. The question is, was said Beane rightly discharged? The defendant contends that he was, under Pub. Laws R. I. c. 270, of March 10, 1882, because the plaintiff did not, within 24 hours after notice as aforesaid to her attorney of record, pay the board of said Beane in advance. Sections 1 and 2 of said chapter are as follows, to-wit: "Section 1. Whenever any person shall be imprisoned upon original writ, mesne process, execution, or surrender, or commitment by bail in any action whatever, the party at whose suit such person is imprisoned shall pay to the keeper of the jail in which he is imprisoned the sum of three dollars per week, in advance, for the board of such prisoner, reckoning such board from the time of such commitment, which payment in advance shall continue to be made by such creditor during the time such prisoner shall be detained at his suit: provided, however, that in case of commitment by bail the bail so committing him shall pay such board in advance, until twenty-four hours after notice in writing of such commitment shall have been duly served upon the creditor or his attorney of record by the sheriff, his deputy, or some town sergent or constable, and lodged with the said jailer. Sec. 2. In case of default made in payment of such prisoner's board, as required in the preceding section, the keeper shall discharge such prisoner from jail, stating in his formal discharge on the jail-book the reason therefor." It was for the plaintiff under said sections, taking them literally, if she wished to have said Beane kept in jail, to pay to the defendant, as keeper, three dollars a week, in advance, for his board, within 24 hours after notice to her attorney of record as aforesaid; and it was the duty of the defendant, in case of default on her part, to discharge said Beane. She did not pay such sum within 24 hours after such notice, and the question is whether her failure to pay it was a default on her part. She contends that it was not, for two reasons, namely: First, because Tower, when as bail he committed said Beane, paid three dollars in advance for his board, said sum being sufficient to pay for a week, and she was entitled to adopt and treat it as payment until the end of the week, in her behalf; and, second, because Sunday, being dies non, is to be excluded in computing the 24 hours allowed for the payment of the board.

We do not think the first reason can avail. The statement of the facts admitted does not show that Tower either paid or professed to pay the three dollars for anybody but himself, or that the defendant received them as paid for any other person to any extent. To entitle a person to ratify another's act or to adopt it as his own, the act must have been performed, professedly at least, by the other as the agent or representative of the person ratifying or adopting it or in his name. Whart. Ag. §§ 62, 63. Tower paid more than it was necessary for him to pay on his own account, but he did not pay more than it might have been necessary, if service of the notice had been delayed; and therefore it cannot be assumed that he paid the excess for the plaintiff. His purpose was probably to protect himself in case of delay, as he could not forecast all contingencies. But suppose the plaintiff could have adopted Tower's payment to the extent of the excess; did she do it, and, if so, when? There is nothing in the admitted facts to show any such adoption, certainly nothing to show it before Beane was discharged, and after his discharge it was too late. The statute is peremptory, and it was the defendant's duty under it to discharge Beane as soon as the plaintiff was in default.

It is argued that the purpose of the statute is to secure the state from loss, and that so long as the board is paid in advance it does not matter whether it be paid by the creditor or the bail. The argument rests on an imperfect view. The state does not keep a boarding-house. It furnishes a jail in which...