
    [568] [*] HOWARD and FITCH against BLACKFORD and others.
    Debtor stepping, by mistake, a few feet oyer the prison limits, and instantly returning, is not an escape, forfeiting a bond for keeping within the limits,
    This was an action brought by the assignees of the sheriff of the county of Essex, on a bond given by the defendants, for the limits of the prison, to Kendrick, on of the defendants.. The condition of the bond was, that Walter Ken-rick should well and truly keep within the bounds of the prison limited and prescribed by the judges of the Court of Common Pleas, until discharged from said prison by due course of law. The breach assigned was,- that the said Walter Kendrick did not keep within the bounds of the said prison, as marked and laid out by the Inferior Court of Common Pleas, according to the form and effect of the said condition of the said bond; but afterwards, to wit: on the 26th day of February, 1808, walked out of and beyond the said bounds of the said prison, &c. To this declaration, the defendants pleaded five pleas. On the second and third pleas, issue is [*] taken. To the 1st, 4th, and 5th, the plaintiffs demurred, to which there was a rejoinder. The first plea of nil debet, was abandoned on the argument.
    The fourth plea alleged, that before the issuing the capias ad respondendum in this cause, and while the said Walter was in custody, &c., at the suit of the plaintiffs, the said Walter was walking within the bounds of the said prison of the said county of Essex, as laid out and prescribed by the Inferior Court of Common Pleas, which said limits were not designated or defined by any visible objects or marks, but were in many parts thereof terminated by an imaginary line; and being so walking within the said limits next and adjoining to the bounds of the said jail or [569] prison, which was so terminated by an imaginary line as aforesaid, he the said Walter in walking as aforesaid casually, accidentally, and by mistake, walked over and beyond the bounds of the said prison, a little way, to wit, the distance of five feet and no more, and thereupon and immediately thereafter, and without any pursuit or retaking, &c., and before the commencement of this action, he the said Walter voluntarily and of his own accord instantly returned within the bounds of the said pi’ison, and within the custody of the said sheriff] &c., and continued after such return within the bounds of the said prison until the commencement of this action and long afterwards, and until discharged by due course of law; which is the same walking out of the prison limits as declared on. And avers that the said return as aforesaid, was before any action brought by the plaintiff against the sheriff for any escape of the said Walter; and further avers that the said Walter was not a prisoner in the said custody, &c., by virtue of any commitment or any writ of capias ad satisfaciendum, at the suit of the said plaintiffs, &c.
    The fifth plea states, that Kendrick was in custody at the time on mesne process, and not charged in execution; [*] and that the bond was taken for more than double the sum for which Kendrick was committed, and therefore not taken in' conformity to the statute.
    
      I. H. Williamson, for plaintiffs.
    The defendants, by their bond, are estopped from excusing themselves by saying that the prison limits are not defined by any visible marks, &c., 3 Com. Dig. 121. The bond was forfeited on Kendrick’s going over the limits, and his return makes no difference. The whole depends on the positive provisions of the statute; that the penalty of the bond exceeds double the sum for which the prisoner was committed, does not vitiate the bond: the act is only directory to the sheriff, and does not conclude the rights of the plaintiffs. The case of bail bonds is applicable to this case; bail bonds are held good though taken in a larger sum than' the statute directs. 2 Wil. 69
      
       The bond was not obtained by duress, but voluntarily given.
    
      A. Ogden and Hornbloioer, for the defendants,
    first contended, that fhe declaration was defective. The declaration ought to have set out the issuing of the writ on which the prisoner was in custody; that it was marked for bail, that it was delivered to the sheriff, and that the sheriff, on the authority of the writ, arrested the prisoner; that the fourth plea set up a sufficient defense to the action, as well on the reason [570] and propriety of the thing as on the common law doctrine of voluntary return before action brought, in cases of actions against the sheriff for an escape; that the limits or rules of the prison must be considered as the four walls of the prison, and the common law doctrine of escapes on mesne process as applicable to the case. 1/. Johns. Rep. 1)5, 2 Johns. 1)38. They also cited a manuscript case of Dole v. Moulton, from New York,  and 3 Mass. Rep. 80; that if the act was to have the rigid construction given to it as was contended for by the counsel for the plaintiffs, the bond [*] would be forfeited in case the prisoner was taken a few feet by force over the limits, or should he be run against by some mischievous person, and thereby forced over the limits; that the reasoning of the court in the case of Dole v. Moulton, was in point; and in their opinion, conclusive on this plea. On the fifth plea they contended, that by a liberal construction of the two statutes on the subject, Pat. SOS and 363, the first making a provision for bail bonds, and the last for prison limit bonds, would confine the operation of the last act, to prisoners committed on execution only; the acts in that case taken together would have a reasonable and beneficial operation; the one affording ease to prisoners confined on mesne process; and the other to those on execution. That the construction contended for by the plaintiffs’ counsel, would render the acts variant and repugnant to each other. They also contended, that as the bond was taken for more than double the sum for which the prisioner was committed, it was void, and that no action could be maintained on it; that as it might be contended that if the bond was not good under the statute, yet that it was good at common law, they considered a reasoning of this kind subject to this answer; that at common law, an assignee of a bond could not bring an action in his own name; that this action was bottomed wholly on the statute; and, therefore, that the statute must be pursued, and that strictly as it was penal.
    
      I. H. Williamson, in reply.
    It was not necessary to set out the issuing the writ, &c. The commitment of the prisoner, and his being actually confined in a civil action, was sufficiently set out, and that was all the act required; it is not necessary, even in actions on bail bonds, to set out the arrest. J Burr. 330; 1 Stra. 4~i-4- That there was no repugnance in the two acts; that the first act was confined to' prisoners arrested on mesne process; and therefore, admitting the correctness of the argument of the defendant’s counsel, it does not apply to this case; the prisoner in this [*] case [571] having been committed on the surrender of his bail. If their doctrine is true, after commitment or surrender by bail, or otherwise, after the return of the writ, and before execution is actually taken out, the prisoner must remain in close confinement, which does not accord with the spirit, and is at variance with the letter of the act. It does not appear in the declaration, that the bond was taken for more than double the sum for which the prisoner was committed; but even if it did, and admitting the fact to be so, yet it does not destroy the validity of the bond. % Wil. 69, before cited.
    The statute of New York on the subject of the prison limits, is materially different from our own; therefore the adjudications under it can form no rule for us. The bond in this case is forfeited by the express provisions of the statute. It is no excuse for the breach of the condition of a bond, that the obligor did it casually, accidentally, and by mistake. This is the case of a contract, and the doctrine of escape does not only apply. The action is not brought against- the sheriff, but against .the prisoner and his sureties, and that for violating the indulgent provisions of the law.
    This cause, not only important in principal, but considerable in amount, was learnedly argued two different terms; when the court took time to advise thereon; and at this term, the following opinions were delivered by the judges.
    
      
       See 1 Bur. S00.
      
    
    
      
       Since published, see $ Johns. Cases, %95.
      
    
   Kirkpatrick, C. J.

This is an action of debt upon a bond given to the sheriff of the county of Essex, for the bounds and rules of the prison. To the plaintiffs’ declaration, the defendants have pleaded sundry pleas; and to the first, fourth, and fifth of these, the plaintiffs have demurred; and the question is upon the demurrers.

The first plea, viz.: nil debet, is abandoned on the argument by the defendants themselves. And rightly. [*] Nil debet to a bond, on general demurrer, is bad. 2 Wilson, 10 ; 2 L. Raym. 1500.

The fifth plea, that the act under which this bond is taken, directs that it be taken in double the sum for which the defendant is committed; and that in this case the bond exceeds that sum. This plea cannot be maintained. Likening it to the common case of a bail bond, (and I can see no difference in the principle) the cases of Nordon v. Horsly, 2 Wilson, 69, and Wishard v. Wilden, 1 Bur. 330, are conclusive. In laying down the law in the latter of these cases, Ld. Mansfield says, “ the sheriff, or perhaps the plaintiff may be answerable or punishable; but the bond is not void; the statute is directory only.”

The fourth plea deserves more consideration. It presents a new case, and the law must be settled. The defendants pleaded, in substance, in this plea, that [572] walking within the bounds and rules of the prison, and near the line thereof, (which was designated by no visible marks or objects) the prisoner, casually, accidentally, and by mistake, walked over the same, to the distance of five feet and no more, and then immediately, of his own free will and accord) and without any fresh pursuit or re-caption, returned into the custody of the sheriff) within the said bounds and rules, and there continued until discharged by due course of law; and that this is the walking out and escape, of which the plaintiff complain, &c.

Prison bounds and prison yards, have at all times existed. They have generally, but I believe not always, been surrounded with walls, to prevent escapes. The provision made by the act in question, only extends these bounds; and instead of walls for the safe keeping, requires of the prisoner, what is much more suitable to the condition of a free man, a bond, with sureties, that he will keep himself within them. The bonds, therefore, so far as it relates to escapes, are to be considered as the walls of the prison. What [*] was an escape before, from the ancient limited bounds, is an escape now from the new enlarged bounds, and nothing else. The doctrine of escape iscin no way.altered. The plaintiff’s remedy against the sheriff, and the sheriff’s defense against the plaintiff, are the same now as before the passing of the act. The condition of things is in no way changed, except that the sheriff, for his security, instead of the walls of the prison, has the defendant’s bond with sureties, taken upon his own judgment, and at his own risk.

Let us see how this is. By the law, as it stood before the passing of this act, that is, by the common law, if a defendant in custody on mesne process made an escape, the plaintiff had his action on the case against the sheriff, for his damages, and the sheriff again had his action on the case against the defendant, to recover over his action. It was not necessary that there should have been an actual recovery against the sheriff, to entitle him to his action against the defendant. His action was grounded upon his liability, and therefore, he might pursue it as well before, as after a recovery against himself. To° this purpose is Cro. Eliz. 63, £34, 31$.

The sheriff’s action, therefore, against the defendant, being grounded entirely upon his own liability to the plaintiff, it is manifest, that'whatever took away that liability, took away also hjs right of action; and of course, that whatever was a good plea in the mouth of the sheriff against the plaintiff in his action of escape, [573] was a good plea also in the mouth of the defendant against the sheriff, in his action. Now, as the sheriff might plead to the plaintiff’s action, a rescue, a re-caption or fresh pursuit, or the .voluntary return of the defendant in custody before action brought; so the defendant might also plead the same pleas to the sheriff’s action against him. •And in both cases, they are a complete bar. Oro. Eliz. 873; £ Sh. 908; Com. Rep. 554-

'[*] This, I think, was incontestably the case at the common law. Has this act altered it ?

The act is made for the benefit and easement of’ prisoners. It is to be construed liberally in their favor.

Upon the enlargement of the prison bounds to an extent which could not be surrounded by walls, it would have been absurd, as well as unjust, to make the sheriff liable, upon the old principles, for escapes which he had no means of preventing. For his security, therefore, instead of bars and bolts, and locks, the law gives him a bond, of the sufficiency of which, he is to be the sole judge. But this bond creates no new obligation, it imposes no new duty upon the defendant. He was as much bound before, by the law of the land, to keep himself within the prison, as he is now by the bond. The sheriff's action against him before, was as legitimate as it is now, and the same damages were recoverable, and upon the same principle. But there, instead of an action on the case, against a man who has broken prison, and perhaps fled his country, he has a bond with sureties, not to recover anything more or different from what by law he could have recovered before, but to make that recovery secure. On the most obvious reasoning, therefore, whatever was a good defense then, is a good defense now. If, in this case, the plaintiffs, instead of taking an assignment of this bond, had brought their action of escape against the sheriff, as they might well have done, and the sheriff had pleaded thereto the matters set forth in this plea, and had had judgment for himself, as of course he must, can it be imagined that he still could support an action on the bond, against the defendant? It would be contrary to all principle. The sheriff, in that case, would have been in no wise damnified, he would have been subject to no liability. Shall the plaintiffs then be put into a better situation, and the defendants into a [f] worse, by the assignment of the bond ? Can the sheriff, by a mere transfer, raise up a right of action which he never had himself? which never existed before? Or can he, by that means, wrest from the defendants their legitimate plea ? Certainly not. It is manifest that the act gave the assignment merely to save the circuity of action, and not to alter the substantial rights of the parties.

[574] The money which the plaintiffs had a right to recover against the sheriff, the sheriff had a right to recover against the defendants, and no more. Can this right be enlarged to the plaintiffs against the defendants, by the assignment of the bond ? It cannot.

It has been insisted that the words of the act are express and positive, that if the prisoner walk out of the said bounds the bond shall be forfeited. They are so. But then, like all other words, they must have a construction according to the intent of the legislature, and suitable to the subject matter under consideration.

The question then will be, what is walking out of the bounds, according to the true meaning of the act ? And I think the plainest rules of construction tell us that it can be no other than such walking out as before the passing of the act, would have been an escape, a walking out by which the plaintiffs would have been damnified, for which, they would have had their action against the sheriff, and he against the prisoner. And this is the import of the phrase in the act concerning sheriffs. There it is said if the sheriff suffer the prisoner to walk out of the prison, it shall be an escape. So that by legislative construction, the words walking out, &c., mean an escape, an escape as understood in law language. The voluntary return, therefore, may be pleaded to it, and it is a complete bar. That the words are not to be taken literally, but according to the principles of sound construction, is [*] manifest from many cases that might be put; as the invasion of a public enemy, the imminent danger of the prisoner’s own life, or that of others, from fire, &c. Kay, indeed, I think a hundred cases might be put, where even Shylock himself could not construe the walking out to be a forfeiture of the bond. Whether this be one of those cases, it will be well for the plaintiffs to consider.

Upon the whole, therefore, I think, there must be judgment for the defendant upon the demurrer.

Rossell, J.

Was decidedly of the same opinion.

Pennington, J.

This is an action on a bond, taken by the sheriff of Essex, for the liberty of the bounds of the prison, to Walter Kendrick, one of the defendants, and assigned by the sheriff to the creditor, according to the statute. To a declaration on this bond, the defendant pleads five pleas. On the second and third pleas, issue is taken, and they are not now a subject of consideration. To the first, fourth and fifth pleas, the plaintiff demurs, and there is joinder in demurrer. The defendant’s counsel, on the argument, abandoned the first plea, it is therefore out of [575] the question. Before I proceed to a consideration of the fourth and fifth pleas, it will be proper to take notice of an objection to the declaration, made by the counsel for the defendants, to wit, that it is bad, inasmuch as it does not set out the issuing the writ on which the defendant, Kendrick, was in prison; that it was marked for bail in a certain sum; that the writ was delivered to the sheriff, and he arrested the prisoner thereon. In support of this objection, they say, that the precedents of declarations on bail bonds all set out the arrest, &c., under process. The first answer to this is, that it has been adjudged in England, that the arrest in an action on a bail bond cannot be traversed; for otherwise, it would be a way to avoid all bonds civilly taken; 1 Stra. JpJjJp. But the statute under which bail bonds are taken, is different in this respect from the act authorizing [*] bonds for the rules of the prison. The statute, 23 Henry 6, makes it the ,duty of the sheriff to let out of prison, .on reasonable sureties, all persons arrested by them, in their custody, by force of any writ, bill, or warrant, in any personal action. Our act relative to the bounds of the prison, says nothing concerning arrest or process; but simply provides, that every prisoner in any civil action, giving bond to the sheriff, &c., shall have liberty, &c. The declaration in this case, states that Kendrick did surrender himself before the judges of the Inferior Court of Common Pleas in and for the county of Essex, in discharge of his bail, in a certain action of trespass on the case upon promises, brought against him by the plaintiffs, and that he was thereupon committed to the custody of the sheriff by the court. It fully sets out an allegation, that Kendrick was legally a prisoner in a civil action, at the suit of the plaintiffs; the state of the action, and the manner and cause of his commitment ; and I think, with sufficient certainty. The fifth plea, bringing up mattter of inferior magnitude, I shall consider it first.

The first ground of objection taken under this plea is, that the liberty of the bounds of the prison cannot be given only in cases of commitments on execution. It is admitted that the words of the act are broad enough to embrace commitments on mesne process; but it is insisted on, and that with great earnestness, by one of the learned counsel for the defendants, that this construction would render the act repugnant to the statute, Pat, 203; which in substance, is copied from 23 Henry 6, c. 9; that as both acts are in pari materia, they must be taken as one act, on the same subject matter. Admitting this to be the case, yet I can perceive no difficulty in reconciling them,/in giving [576] a construction to the last act corresponding with the letter of it. The one is intended as a provision to let prisoners confined or arrested for debt on mesne process, [*] at large on bail; the other, to give all the prisoners confined for debt, the liberty of walking, and being within a certain district of land annexed to the jail, instead of keeping them in close confinement, within the four walls of the prison. The second point taken under this plea is, that the bond on which the action is brought, is taken for more than double the sum for which the prisoner was committed. The fact is so; it overruns the double amount somewhere about a sixth part. If the sum contained in the bond was the sum actually to be recovered, I should think that there was something in the objection; but that is not the case. As the bond is directed by the act, to be taken in double the amount of the sum for which the prisoner is committed, some other rule must be resorted to, to ascertain the actual sum to be recovered. The bond is presumed to be voluntarily made, and presented to the sheriff; he is, however, not bound to receive it unless it is in double the amount of the debt, with which the prisoner is charged. Should the sheriff act oppressively in requiring exorbitant sums, no doubt he would be liable to punishment. There are no negative words in this provision of the statute, and I consider it merely directory.

The fourth plea brings up for consideration, the real merits of this case, and is in substance, that the limits of the prison were not designated by any visible lines or marks, but that the limits terminated by imaginary lines; that Kendrick, casually, accidentally, and by mistake, walked over the bounds of the prison limits, about five feet, and no more, and voluntarily returned before action brought. If this was action of escape against the sheriff, I apprehend the plea would be good. It in that case, might have been considered a negligent escape, with a voluntary return of the prisoner before action brought. This voluntary return before suit brought, would have purged the escape, in case the escape itself was negligent and not voluntary — for a voluntary escape cannot be purged. [*] If the bond in this case could be construed to have been given merely as an indemnity to the sheriff, the plea would have amounted to a plea of non damnificatus, and have come within the case of Dole v. Moulton, cited from New York, 2 Johns. Cos. 205. But our act is materially different from the New York act on the same subject. The New York act directs the bond to be given to the sheriff, conditioned that the prisoner shall remain a true and faithful prisoner, and shall not at any time and in any wise escape, or go without the [577] limits of the said respective liberties, until discharged by due course of law; but no authority is given to assign the bond, nor is it declared by the act to be forfeited. By our act the bond is also given to the sheriff, conditioned that the prisoner shall keep within the rules of the prison; so far, the acts bear some resemblance to each other; but our act does not stop here, but goes farther, and declares that in case the prisoner walk out of the bounds of the prison, the bond shall he, forfeited, and that the sheriff shall assign the bond to the plaintiff, and the plaintiff is authorized to bring a suit in his own name. The New York act, in express terms, declares that the bond shall be for the indemnity of the sheriff only. It appears to me that we cannot consider our act as merely providing an indemnity to the sheriff, but as furnishing a remedy to the plaintiff. It is said by the counsel for the defendant, that an assignee cannot acquire by the assignment, any other rights than what the assignor had at the time of the assignment. Admit it; the bond is forfeited in the hands of the sheriff; the whole depends on the construction of the act. If the bond was intended as a mere indemnity to the sheriff, why declare the bond forfeited, and direct an assignment ? I consider that we are bound by the positive provisions of the statute, and the common law doctrine of escape as out of the question; and it appears to me, this is the reason and good sense of the [*] thing; an escape whether negligent or voluntarily, implies a default in the officer. It is true, that this default may be purged in case of negligent escapes, by the diligence and fidelity of the officer, by fresh pursuit and recaption, or a voluntary return of the prisoner before the action brought; still it is a fault, or it would not need purging; the sheriff, under the statute, is bound to take the bond and let the prisoner at large within the rules; how can the sheriff be in fault in case he escapes ?

On the second argument of this cause, the counsel for the defendants referred the court to the case of Bartlet v. Willis, 3 Mass. Hep. 80. The bond in that case was given to the creditor, and in that respect bears a much stronger resemblance to our case than the one from Yew York. It was conditioned that the prisoner continue a true prisoner, &c., without committing any manner of escape. The act gave the privileges of the yard, and apartments of the prison in the daytime, and the apartments of the prison at night. [578] It turned out in evidence, that the prisoner went to the pump in the prison yard in the night; he was not to be locked up; but the apartments of the prison was the limits at night. The fact then was, that he went a few steps over the limits to get water, and all the court were clearly of an opinion that this was an escape. The common law doctrine of a voluntary return before action brought, was wholly disregarded, and why ? The doctrine of purging negligent escapes, grew out of a principle of indulgence to the sheriff; but the sheriff was out of the question; which is precisely the case under consideration. The case actually adjudged, is as strong a case against the defendant in this case as can well be. The case however, was cited for the purpose of showing a distinction between a voluntary going over the limits, and an involuntary one. Chief Justice Paksosts, in giving the opinion of the court, says, that they were all of opinion, that if a prisoner having given bond to obtain [*] an easement from close confinement, be found voluntarily without any apartment, &c., it is an escape. I do not consider the plea in this case, as alleging that Kendrick involuntarily went out of the limits, casually, accidentally, and by mistake ; what is it but carelessly, thoughtlessly and negligently ? That is, he did not intentionally go over the rules; it is not a question of quo animo ; to call an inadvertent act an involuntary one, is a perversion of language. It appears to me that we can give no other construction to the act, than that the prisoner is to keep within the rules or limits of the prison, at the peril of his sureties. How far the visitation of God, inevitable necessity, or irresistible force will justify, it is time enough for the court to determine when the question shall arise. I am, on the whole, of opinion, that the plaintiff is entitled to judgment.

Judgment for defendants.

Cited in Timison v. Cramer, 2 South. 498; Camp v. Allen, 7 Halst. 1; Allen v. Smith, 7 Halst. 159; Day v. Hall, 7 Halst. 203; Vroom v. Smith’s Ex., 2 Gr. 479. 
      
       See 7 Johns. JRep. 511. Chief Justice Kent’s opinion. Plea in bar, admitting the fact, but alleging that plaintiff is not damnified by the going over the limits, is bad, on demurrer. 7 JSalst. 1
      
     