
    *Zenas Kent v. Joel B. Burnett et al.
    Where jail limits are by law co-extensive with a county, and a new county is made in part out of an old one, the jail limits of the old county are still the privilege of a debtor who was charged in execution before the new county was organized.
    This is an action of debt from the county of Portage.
    The suit is brought on a writing obligatory, executed by the defendants, Burnett, Pendleton, Tyler, and Hopkins, on June 6, 1839, to the plaintiff, to secure to the two first-named defendants the privileges of the prison limits of the jail of Portage county.
    The defendants have plead : 1. Ml débet, on which an issue is made up to the country; 2. That the said Burnett and Pendleton did not go at large out of the limits of the county, as existing at the time of the execution of said bond, etc.
    To this plea the plaintiff has demurred, and, for the purpose of determining the questions arising upon it, counsel have subscribed an agreed statement of facts to be considered as a part of the plea. The statement is in these words:
    “ That two of the defendants, Burnett and Pendleton, were arrested and imprisoned on June 6, 1839, on a ca. sa. issued from the court of common pleas of Portage county, on a valid and subsisting decree in favor of the plaintiff, under the act abolishing imprisonment for debt, passed March 19, 1838, which writ was dated the 4th day of June of the same year, 1839.
    “That on the aforesaid 6th day of June, all the defendants in this cause executed, in due form of law, their bond to the said plaintiff, in the sum of §10,233.34, for the purpose of obtaining for the said Burnett and Pendleton the benefit of the prison limits of said county of Portage, which bond was duly approved, and said Burnett and Pendleton were thereupon discharged out of close custody, and went upon the said prison limits.
    *“ That the condition of said bond contains, amongst other [393 things, the following: ‘Now, if the said Joel B. Burnett and Jay H. Pendleton shall, from the time of executing this bond, continue true prisoners in the custody of the jailer, and within the limits
    
      of the prison bounds for the county of Portage aforesaid, and shall not depart without the exterior bounds of the same, until they shall be legally discharged, without committing any manner of escape, then this obligation to be void, otherwise to remain in full force and virtue.’
    “ That this suit is brought upon said bond for an escape com mitted by the said Burnett and Pendleton, on May 6, 1840, in go ing without the exterior bounds of the limits of the prison bounds for Portage county, without having been legally discharged.
    “ That at the time of the execution of said bond, the said Burnett and Pendleton resided in the township of Franklin, within the present territorial limits of Portage county, where they have resided ever since; and also, that at the time of the execution of said bond the territorial limits of Portage county embraced two ranges of townships on the west, to wit: Twinsburgh, Hudson, Stowe, Tallmadge, Springfield, Northfield, Boston, Northhampton, Portage, and Coventry, which were included in Summit county when the same was erected, March 3, 1840, and have over since constituted a part of said county of Summit.
    “ That on May 6,1840, the said Burnett and Pendleton departed without the present territorial limits of said county of Portage, and went into the before-mentioned townships of Tallmadge and Portage, which were at that time a part of the county of Summit, and at the date of said bond a part of said county of Portage, without having in any manner been discharged from their said imprisonment.”
    Otis & Tilden, for the plaintiff,
    claimed that the departure without the territorial limits of Portage county into the townships of Tallmadge and Portage, was an escape for which the defendants 894] were liable on their bond. They cited Moore v. *Allen, 7 J. J. Marsh. 651; Steinman v. Tabb, 3 Bibb, 202 ; Bonafous v. Walker, 2 Term, 26 ; Peters v. Henry, 6 Johns. 121; Janson v. Hilton, 10 Johns. 559 ; Baxter v. Faber, 4 Mass. 361.
    Birchard, Todd and Hoffman, for the defendant,
    insisted that although the townships of Tallmadge and Portage constituted a part of the county of Summit at the time of the alleged escape, yet inasmuch as those townships constituted a part of Portage county at the time the bond was made, Burnett and Pendleton did not, in going into those townships, commit an escape. They rolied on Collier v. Johnson, 7 Ohio, 235, pt. 1; Commissioner of In. v. Way et al., 3 Ohio, 103; Pollard v. Collier, 8 Ohio, 43.
   Wood, J.

It will be seen by reference to the agreed case, that after the execution of the bond by which Burnett and Pendleton . became entitled to the liberties of the prison, which were then coextensive with the territorial limits of Portage county, the general assembly passed an act organizing the county of Summit, by which Portage and Tallmadge townships, though before in the county of Portage, were after March 3, 1840, a part of the county of Summit; and that on the 6th day of May following, the defendants Burnett, and Pendleton, went into the last-mentioned townships, in the county- of Summit. The question to be decided is, whether this is an escape.

It is very ingeniously argued by the plaintiff’s counsel, if not literally, at least, substantially, that the defendants Burnett, ana Pendleton, were bound by the terms of the obligation to contract to-day and expand to-morrow, so as to keep at all times within the limits of the county of Portage, to whatever changos those limits maybe subjected by the ordeal of legislation. But suppose these defendants had been residents in that part of Portage which is now Summit, at the passage of the act; the moment the act passed, they being beyond the prison liberties, according to the argument, would have been guilty of an escape. Counsel say not> provided they immediately ^returned into Portage county; [895 but why not? We know of no common law principle to save the penalty of the obligation by giving a reasonable time to return, and we have no authority to establish an arbitrary rule for that purpose. Suppose, at the passage of the act these defendants had not the power of locomotion, by reason of some bodily infirmity, what then is'to be done to save the condition of the bond ? The law requireth nothing impossible. It worketh an injury to no one, and another arbitrary rule must be set up to save the defendants, by requiring them to return only so soon as the disability is removed.

It is, however, argued by the defendant’s counsel, that they were bound to keep within the limits of Portage county, as they existed at the date of the obligation only, and that the general assembly could constitutionally pass no law which would limit or impair the rights of the defendants, as they then stood. Without passing upon the constitutionality of the act, however, in its effee upon this bond, it will be found, we think, as to these defendant$} to continue the jail limits of Portage county precisely as they stood at the passage of the act. It provides, substantially, that all suits pending in Portage county should be prosecuted to final judgment and execution, the same as if the act had not passed; that the sheriff should serve and executo process, etc.

It is clear the legislative intention was, when a suit was once begun in Portage county, before Summit was organized, it should be consummated by final process by the sheriff of Portage, whose jurisdiction would still extend throughout its ancient limits, and, in our view, in such cases, they would still constitute the limits of the jail of Portage county.

The plea, then, embodying the agreed statement of facts, is in our opinion, a good answer to the declaration, 'and the demurrer should be overruled and .judgment given for the defendants.

Judgment for the defendants.

Thos. L. Hamer, for the defendant.

No argument for the plaintiff came to the hands of the reporter,  