Action on a bond given to the United States for the liberty of
the jail yard in Portland, in the State of Maine. The condition of
the bond was that J.K. and B.K. "should continue true prisoners in
the custody of the jailer, within the limits of the jail yard." It
was agreed by the counsel for the plaintiff and defendants that
J.K. and B.K. had remained within "the limits of the jail yard," as
established under the laws of 1787, of Massachusetts, then
prevailing in Maine, the limits of the jail yard having in October,
1798, been extended over the whole county, but had not remained
within the limits established on 29 May, 1787, and existing when
the act of Congress was passed, 4 January, 1800, authorizing
persons under process from the United States to have "the jail
limits" as established by the laws of the state.
Held that
the Act of Congress of 19 May, 1828, gives the debtors imprisoned
under executions from the courts of the United States, at the suit
of the United States, the privilege of jail limits in the several
states, as they were fixed by the laws of the several states at the
date of that act.
Whatever might be the liability of the officer who took the bond
from the defendants if the jail limits continued to be such as were
established under the law of Massachusetts of 1787, the bond not
having been taken under that law, and the condition being different
from the requirements of those regulations, the parties to the
bond, the suit being upon the bond, are bound for nothing
whatsoever but what is contained in the condition, whether it be or
be not conformable with the law.
The statute of May 19, 1828, entitled, "An act further to
regulate Processes in the courts of the United States," which
proposes only to regulate the mode of proceeding in civil suits,
does not divest the public of any right, does not violate any
principle of public policy, but on the contrary makes provision, in
accordance with the policy which the government has indicated, by
many acts of previous legislation, to conform to state laws, in
giving to persons imprisoned under their execution the privilege of
jail limits, embracing executions at the suit of the United
States.
The cases
Wayman v.
Southard, 1 Wheat. 10, and
Beers
v. Houghton, 9 Pet. 332, cited and affirmed.
The United States, in 1838, instituted an action of debt against
the defendants in error on a bond executed by them on 30 January,
1838, for the sum of seventeen thousand four hundred and
ninety-four dollars and four cents, the condition of which was as
follows:
"The condition of the above written obligation is such that
whereas the said Jacob and Benjamin Knight have been and now are
imprisoned in the prison at Portland in the said Maine District by
virtue of an execution issued against them on a judgment obtained
against them by the said United States at the District Court of the
United States for Maine District, which was begun and holden at
Portland, within and for the District of Maine on the first Tuesday
of December, A.D. 1837, for the sum of eight thousand four hundred
and sixty-two dollars and thirty-six cents, principal, and one
hundred and sixty-one dollars and seventy-nine cents for interest
thereon, to
Page 39 U. S. 302
19 December aforesaid, and costs of suit taxed at twenty-four
dollars and forty-seven cents, and also for all legal interest that
may accrue on said sum of eight thousand four hundred and sixty-two
dollars and thirty-six cents from 19 December until said judgment
shall be fully discharged and satisfied, with one hundred cents
more for one writ of execution and the officer's fees and charges
for commitment, taxed at ninety-seven dollars and forty cents."
"Now if the said Jacob Knight and Benjamin Knight, from the time
of executing this bond, shall continue true prisoners, in the
custody of the jailer within the limits of the jail yard until they
shall be lawfully discharged, and shall not depart without the
exterior bounds of said jail yard until lawfully discharged from
said imprisonment according to the laws of the United States in
such cases made and provided, and commit no manner of escape, then
the said obligation to be void, otherwise to remain in full
force."
In this case the parties in the circuit court agreed to the
following statement of facts:
"On 30 January, last past, Jacob and Benjamin Knight were
committed to the jail in the City of Portland on an execution
issued on a judgment in favor of the said United States against
said Jacob and Benjamin, whereupon the said Jacob and Benjamin, as
principals, and Isaac and Edward Knight as sureties, gave the bond
declared on in this suit; that said Jacob and Benjamin continued to
remain within the limits of the Town of Portland, exclusive of the
islands, and did not depart therefrom up to the time of the
commencement of this suit, nor have they since departed therefrom,
but neither the said Jacob nor Benjamin, from the time of the
execution of said bond nor afterwards at any time lodged in the
night time within the walls of said jail, but remained at large
within the limits of said Town of Portland, exclusive of the
islands belonging to the same, both day and night."
"If, upon the foregoing facts, the court is of opinion that the
condition of said bond has been broken by the said Jacob and
Benjamin, and that they have made an escape, then the court are to
render judgment, to be entered as of said October term and as on
verdict rendered for the said United States, and if the court shall
be of opinion that the obligation of the bond has not been broken,
then judgment to be rendered in manner aforesaid for the said
defendants."
And each party reserves to themselves the right to a writ of
error, to reverse any such judgment as may as aforesaid be rendered
by said court in the case.
The justices of the peace of the County of Cumberland, on 29
May, 1787, established the
"proper boundaries of the jail yard in the county, to be:
beginning at the bottom of Love lane, at low water mark; thence up
said lane, including the houses on each side thereof to the
northerly side of Back Street; thence down said Back Street,
including the houses on both sides thereof, to King Street; from
thence down said King Street, including the houses on both
sides
Page 39 U. S. 303
thereof, to low water mark; thence by low water mark to the
first bounds, including all the ground and buildings within the
aforesaid limits."
Afterwards, on 16 October, 1798, the limits of the jail yard
were extended to "the Town of Portland, exclusive of the islands,"
and on 10 September, the judges of the court of sessions
ordered
"that the bounds of the jail yard be extended over the whole
county, and to the exterior limits thereof, which are hereby fixed
and established as the bounds of the jail yard for the said County
of Cumberland."
At the October sessions of the circuit court, judgment on the
facts agreed was given that "the obligation of the bond was not
broken," and the United States prosecuted this writ of error.
Page 39 U. S. 312
MR. JUSTICE BARBOUR delivered the opinion of the Court.
It was an action brought upon a bond given to the United States
in the year 1838 for the liberties of the jail yard in Portland.
The general issue was pleaded, with leave to give special matter in
evidence. The condition of the bond, after reciting that Jacob
Knight and Benjamin Knight have been, and now are, imprisoned in
the prison at Portland, in Maine District, by virtue of an
execution issued against them on a judgment obtained against them
by the United States at the District Court of the United States for
the Maine district, &c., proceeds as follows:
"Now if the said Jacob Knight and Benjamin Knight, from the time
of executing this bond, shall continue true prisoners, in the
custody of the jailor, within the limits of the jail yard until
they shall be lawfully discharged, and shall not depart without the
exterior bounds of said jail yard until
Page 39 U. S. 313
lawfully discharged from said imprisonment according to the laws
of the United States in such cases made and provided, and commit no
manner of escape, then the said obligation to be void; otherwise,
to remain in full force."
The parties agreed to a statement of facts, as follows:
"On 30 January last past, the said Jacob and Benjamin were
committed to the jail in the City of Portland on an execution
issued on a judgment in favor of the United States against said
Jacob and Benjamin, whereupon the said Jacob and Benjamin, as
principals, and the said Isaac and Edward, as sureties, gave the
bond declared on in this suit; that Jacob and Benjamin continued to
remain within the limits of the Town of Portland, exclusive of the
islands, and did not depart therefrom, up to the time of the
commencement of this suit, nor have they since departed therefrom,
but neither the said Jacob nor Benjamin, from the time of the
execution of said bond, nor afterwards at any time, lodged in the
night time within the walls of said jail, but remained at large
within the limits of said Town of Portland, exclusive of the
islands belonging to the same, both day and night."
Upon this agreed state of facts, the court gave judgment for the
defendants, to reverse which, this writ of error is brought.
It appears from the record that at a Court of General Sessions
of the Peace for the County of Cumberland, within which Portland is
situated, held in the year 1798, the limits of the Town of
Portland, exclusive of the islands, were fixed and determined, as
the boundaries of said jail yard, and that the court of Sessions at
Portland, in the year 1822, extended the bounds of the jail yard
over the whole county and to the exterior limits thereof. It
appears also from the facts agreed that Jacob and Benjamin Knight
continued to remain within the Town of Portland, exclusive of the
islands, without ever having departed therefrom, but that neither
of them lodged in the night time within the walls of the jail, but
went at large both day and night within the limits of the Town of
Portland, exclusive of the islands.
Upon this state of facts it has been contended by the attorney
general that the imprisoned debtors were guilty of an escape
because they were not within the walls of the jail in the night
time, although they always continued both day and night within the
limits of the jail yard. It is said that the only act of Congress
in force at the date of the bond in question which entitled the
parties to the privileges of jail yards when imprisoned on process
issued from any court of the United States at the suit of the
United States was the Act of 4 January, 1800, which enacts
"That persons imprisoned on process issued from any court of the
United States, as well at the suit of the United States as at the
suit of any person or persons in civil actions, shall be entitled
to like privileges of the jails, or limits of the respective jails,
as persons confined in like cases on process from the courts of the
respective states are entitled to, and under the like regulations
and restrictions."
That
Page 39 U. S. 314
this act of Congress only adopted the state laws then in force;
that by the law of Massachusetts (of which Maine was then a part)
then in force, as construed by her courts, it was an escape for a
debtor, having the liberty of the yard, to be without the walls of
the prison in the night time, although he was within the limits of
the yard. It is certainly true that this Court has construed the
acts of Congress adopting state laws in relation to writs and
processes, and the proceedings thereon, as applying to the state
laws then in force.
23 U. S. 10 Wheat. 1,
23 U. S. 51.
34 U. S. 9 Pet.
331. It is also equally clear that the construction of the laws of
Massachusetts then in force as to the debtor being without the
walls of the prison during the night time being an escape is such
as has been stated; the decisions cited at the bar fully show
it.
Whilst, however, we admit these premises, we cannot yield our
assent to the conclusions drawn from them.
If it were even conceded that the act of Massachusetts of 1784
was in force at the date of the execution of the bond in question,
although it would subject the officer to liability, yet it would
not have affected these parties. From the language of that act, a
person imprisoned for debt was allowed to have a chamber and
lodging in any of the houses, or apartments belonging to the
prison, and liberty of the yard within the day time. It was the
construction put on these words, which made it necessary for the
debtor to be within the walls of the prison in the night time. In
the bond in question there is no such language. Whilst, therefore,
the officer might have been liable for taking from the debtor a
bond not in conformity with the statute, but extending to him a
greater privilege than was allowed by law, yet in this case, the
suit being on the bond, the parties are bound for nothing
whatsoever but what is contained in the condition of the bond,
whether it be or be not conformable with the law. The condition of
this bond is satisfied by the parties' not departing without the
exterior bounds of the jail yard, whether they are within the
prison walls in the night time or not, and it appears from the
agreed case that they did not depart without those bounds; there
was then no breach of the condition of the bond.
But we now proceed to the consideration of another question of
very great practical importance in the courts of the United States,
and that is whether the Act of 1828, May 19th, entitled an "act
further to regulate processes, in the courts of the United States,"
has not since its passage regulated the right of imprisoned debtors
to the privilege of the jail liberties?
The third section of that act is in the following words:
"And be it further enacted that writs of execution and other
final process, issued on judgments and decrees rendered in any of
the courts of the United States, and the proceedings thereupon,
shall be the same, except their style, in each state, as are now
used in the courts of such state,"
&c., with a proviso,
"That it shall be in the power of the courts, if they see fit,
in their discretion, by rules of court, so far
Page 39 U. S. 315
to alter final process in said courts as to conform the same to
any change which may be adopted by the legislatures of the
respective states for the state courts."
It is first objected that whatsoever may be the construction of
this section as now governing executions in case of other parties,
yet it does not embrace those issued on judgments rendered in favor
of the United States, and this upon the ground that the United
States is never to be considered as embraced in any statute unless
expressly named.
The words of this section being, "that writs of execution and
other final process, issued on judgments and decrees rendered in
any of the courts of the United States," it is obvious that the
language is sufficiently comprehensive to embrace them unless they
are to be excluded by a construction founded upon the principle
just stated. In Bacon's Abridgment title Prerogative, 3-5, it is
said that the general rule is that where an act of Parliament is
made for the public good, the advancement of religion and justice,
and to prevent injury and wrong, the King shall be bound by such
act, though not particularly named therein. But where a statute is
general, and thereby any prerogative, right, title, or interest is
divested or taken from the King, in such case he shall not be bound
unless the statute is made by express words to extend to him. It is
a settled principle that the King is not ordinarily barred unless
named by an act of limitations. The principle expressed in the
maxim
nullum tempus occurrit regi rests upon the ground
that no laches shall be imputed to him. The doctrine that the
government should not, unless named, be bound by an act of
limitations is in accordance with that just cited from Bacon,
because if bound, it would be barred of a right, and in all such
cases is not to be construed to be embraced unless named, or what
would be equivalent, unless the language is such as to show clearly
that such was the intent of the act. The same principle has been
decided in New York, Massachusetts, Pennsylvania, and no doubt in
other states, and all upon the same ground. Not upon any notion of
prerogative, for even in England, where the doctrine is stated
under the head of prerogative, this, in effect, means nothing more
than that this exception is made from the statute, for the public
good, and the King represents the nation. The real ground is a
great principle of public policy, which belongs alike to all
governments, that the public interest should not be prejudiced by
the negligence of public officers to whose care they are confided.
Without undertaking to lay down any general rule as applicable to
cases of this kind, we feel satisfied that when, as in this case, a
statute which proposes only to regulate the mode of proceeding in
suits does not divest the public of any right, does not violate any
principle of public policy, but on the contrary makes provisions in
accordance with the policy which the government has indicated by
many acts of previous legislation, to conform to state laws, in
giving to persons imprisoned under their execution, the privilege
of jail limits, we shall best carry into
Page 39 U. S. 316
effect the legislative intent by construing the executions at
the suit of the United States to be embraced within the act of
1828.
Having come to this conclusion, it only remains to inquire
whether the words in the act of 1828 "the proceedings thereupon"
(that is, on executions) embrace as a part of those proceedings,
the rights of an imprisoned debtor to have the privilege of the
jail limits? Upon this question we are relieved from the necessity
of argument by the decisions of this Court.
In the case of
Wayman v.
Southard, 10 Wheat. 1, this Court was expounding
the meaning of the words, "modes of proceeding," in the process act
of 1792, and the question was whether these words included
"proceedings on executions." It decided that they did, but the act
of 1828, passed after the decision of the case of
Wayman v.
Southard, adopted the very terms "proceedings on executions"
because the expression is, "proceedings thereupon," referring to
executions, which had just preceded it. And the reasoning of the
Court in
Wayman v. Southard proves clearly that these last
words would include proceedings by debtors to obtain the privilege
of the jail liberties. In the same case of
Wayman v.
Southard it was objected that the process act of 1792 ought
not to be construed as embracing the proceedings on executions,
because if it did it would furnish the rule as well for writs of
capias ad satisfaciendum, as of
fieri facias, and
that the marshal would be as much bound to allow a prisoner the
benefit of the rules under the Act of Congress of 1800 as to sell
upon the notice, and on the credit prescribed by the state laws,
and that as the act of 1800 had, by separate and distinct
legislation, provided for the jail limits, Congress could not be
supposed to have provided for the same subjects in the process act.
But the Court considered this separate provision as to the jail
limits merely as a cumulative act of legislation with a view to
remove doubts that might have arisen from the jails in which
prisoners were confined not belonging to the United States. And
this answers the argument urged at the bar upon the ground of the
several acts which especially provided for jail liberties, against
the construction of the act of 1828, which would extend to embrace
the privilege of jail liberties, within the terms, "proceedings
thereupon" -- that is, on executions. In
Beers
v. Houghton, 9 Pet. 362, this Court, in construing
this very act of 1828, said
"The words 'the proceedings on writs of execution, and other
final process' must from their very import be construed to include
all the laws which regulate the rights, duties and conduct of
officers in the service of such process, according to the exigency,
upon the person, or property of the execution debtor, and also all
the exemptions from arrest or imprisonment under each process
created by those laws."
This quotation covers the whole ground of controversy, on the
effect of these words "proceedings thereupon." We are of opinion,
therefore, that the act of 1828 gives to debtors imprisoned under
executions from the courts of the United States at the suit of
the
Page 39 U. S. 317
United States the privilege of the jail limits in the several
states as they were fixed by the laws of the several states at the
date of that act.
We give no opinion whether that act would extend so far as to
enable the imprisoned debtors of the United States to avail
themselves of the benefit of the insolvent laws of the states, as
the question does not arise in this case.
Upon the whole view of the case, we think the judgment of the
circuit court correct, and it is therefore
Affirmed.
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District of
Maine and was argued by counsel. On consideration whereof it is now
here ordered and adjudged by this Court that the judgment of the
said circuit court in this cause be and the same is hereby
affirmed.
