
    Benjamin T. Reed versus Samuel Fullum.
    A bond for the debtors’ liberties restrains the debtor within the liberties established by law for the time being. And it was held, that the statute of the 10th of February, 1823, narrowing the liberties in Suffolk after the 15th of May following, was not unconstitutional as appued to a bond given before the passing of the act, but that the principal in such bond, having after the 15th of May made use of the liberties in their former extent, was guilty of an escape.
    This was an action of debt against a surety in a bond dated the 6th of January, 1823, and conditioned that Alvan Howe, the principal in the bond, then a prisoner in the gaol in Boston, within the county of Suffolk, on execution, should “ not depart without the exterior bounds of the debtors’ liberties,” until he should be lawfully discharged.
    The defendant, after oyer, pleaded that at the time when the bond was executed the debtors’ liberties, mentioned in the condition, included the whole of the county, and that Howe did not depart without the exterior bounds of them.
    The plaintiff replied, that on the -10th of February, 1823, (by St. 1822, c. 86,) it was enacted, that from and after the 15th of May then next, the boundary of the gaol yard should be coextensive with the exterior boundary of Ward No. 5, in the city of Boston, and that Howe, on the 16th of May and before he was lawfully discharged, while the bond was ■ in force, did depart without the exterior bounds of the debtors’ liberties as therein described, to wit, beyond the exterior boundary of Ward No. 5.
    To this there was a general demurrer.
    
      Curtis, in support of the demurrer. The St. 1822, c. 86, should be construed to be prospective. Applied to this bond it would be retrospective, and void, as impairing the obligation of a contract. Sturgis v. Crowninshield, 4 Wheat. 197 ; Blanchard v. Russell, 13 Mass. R. 16 ; King v. Dedham Bank, 15 Mass. R. 454 ; Foster v. Essex Bank, 16 Mass. R. 270 ; Call v. Hagger, 8 Mass. R. 430; Brown v Penobscot Bank, ibid. 449 ; Dash v. Van Kleeck, 7 Johns R. 503. The rights of these parties were vested before the act was passed. The risk of the principal’s breaking the bond was much less, where he had liberty to go over the wnole county. It may be asked, why the defendant did not surrender the debtor. It is sufficient to answer, that he was not obliged to do so. Suppose that the debtor had concealed himself, or that the defendant had been out of the commonwealth when the law passed, having no notice of it; the defendant would then be rendered liable for a breach which he could by no possibility prevent, in case this action can be maintained.
    
      J. T. Austin, for the plaintiff.
    The statute is prospective, since it proposes to reduce the prison limits after the 15th of May then following. And though this bond was given before the passing of the statute, yet it was given with a reference to the power of the Court of Sessions and of the legislature to alter the debtors’ liberties; and the fair construction of it is, that the' debtor should not go beyond the liberties as they should from time to time be established by law. The condition was for the benefit of the obligors, and though performance was rendered more inconvenient by the statute of 1822, yet that statute is to be taken in connexion with St. 1811, c. 85, which enables the surety to surrender the principal, and he ought to show that he has done all that he could physically do to save the penalty. Bull. N. P. 165 ; Parker v. Chandler, 8 Mass. R. 264 ; Bigelow v. Johnson, 16 Mass. R. 218. When the prison limits have at any time l ten extended, it has not been thought necessary to take new bonds. Where bonds have been given for appearance at court on a certain day, it has never been doubted that they were obligatory, although the legislature should alter the time of the sitting of the court. This bond resembles one given for the performance of the duties of a clerk in a bank, which duties are continually changing. If a new duty devolved on the clerk after the bond was given, the court will not say that the bond would not cover it.
    
      Prescott, in reply. The debtors’ liberties means the right of using a certain extent of territory. It is said the surety enters into the bond with reference to a power to alter the prison limits, When this bond was given the limits had been fixed by the Court of Sessions, and it was not competent to that court to alter them, The surety was willing to confide in the debtor, that he would not pass those bounds, ’ and the legislature could not make him liable for the debt- or’s passing out of a smaller space. But if the legislature had such a power, the surety could not suppose they would exercise it in a manner to affect a bond already given.
   Lincoln J.,

in delivering the opinion of the Court, observed in substance, that it had been contended that the words in the bond, “ will not depart without the debtors’ liberties,” had reference to a definite extent of territory, and that they were substantially the same with the words, “ shall not depart out of the county of Suffolk,” but he said the Court had come to a different result. We think the condition means that the debtor shall not depart out of the exterior boimds of the liberties that shall at the time be established by law. And this is in accordance with St. 1784, c. 41, which has received a judicial construction. In Walter v. Bacon, 8 Mass. R. 468, the right of the Court of Sessions to enlarge the prison limits was expressly recognised. It might be said there was an impairing of the obligation of a contract in that case, as much as in this, for the creditor had as good right to consider the debtor’s being permitted to go beyond the smaller limits an infraction of the contract, as the surety has in the present case to consider it an infraction, that the debtor should be confined within the smaller limits. And in Baxter v. Taber, 4 Mass. R. 361, where it was held not competent for the Court of Sessions to include private property as part of the gaol yard, it was admitted that they might extend the limits on the land of the county.

But it is not necessary to consider what would be the effect of St. 1784, on this case, for the bond was not given in pursuance of that statute, but of St. 1811, c. 167. The first section provides for giving bonds conditioned that the debt- or “ will not depart without the exterior bounds of the debtors’ liberties and the second, “ that nothing done since the passing of the act to which this is an addition, shall be considered a breach in any bond which has been or may be given to obtain the liberty of the gaol yard or debtors’ liberties, except the passing over and beyond the exterior limits and bounds thereof as by law established ioi the time being.” This contemplates the right of the Court of Sessions ' to change the debtors’ liberties, and such alteration therefore does not impair a contract already made, but the party must be bound by the obligation which the statute imposes.

But it is said, that it was not competent to the legislature to pass a law to affect bonds previously given. This question was considered in Walter v. Bacon It was there decided, that the legislature had a right by a subsequent statute to define an escape, and to establish the boundaries of prison yards as they had been previously limited by the Court of Sessions. The debtor there was alleged to have committed an escape by entering on private property, and by St. 1808, c. 92, it was enacted that no person should be considered as having committed an escape in consequence of having entered on private property ; and it was argued that the statute was unconstitutional. The Court say, that they see no provision of the constitution of this commonwealth, nor of that of the United States, which prohibits the enacting such a law, and that by its provisions the defendants were saved from the penalty of their bond. It is said, that the statute of 1822 is retrospective; but it was not to go into operation until May, and could therefore have no effect upon any breach of a bond committed previously to that time. The complaint that the surety may be prejudiced is without much foundation, for the statute of 1811 says he may surrender the principal to the keeper of the prison, and that the principal may then give a new bond.

The Court are of opinion that there was an escape, and the plaintiff’s replication is adjudged good. 
      
       See Sommers v. Johnson, 4 Vermont R. 278.
     