
    Nathaniel Call vs. Benjamin H. Hagger and Others.
    In an action against six several obligors, service was on five only, and as to the sixth, the officer certified that he had no last and usual place of abode in his county : the defendants, on whom service had been made, moved that the proceedings should be stayed for want of service on the sixth, whom they suggested to be an inhabitant of the commonwealth, and within the reach of process. The motion was overruled, and the action proceeded against the five who had been served with process.
    The statute of 1809, c. 33, § 2, by which suits on bonds given for the liberty of the prison-yard are limited to a year after the breach, does not apply to actions for breaches committed before the passage of the act.
    Debt on bond, dated Sept. 27, 1805, against six obligors, five of whom are named of towns in the county of Middlesex, whereof one is called a deputy sheriff, and the sixth is named of Boston, in the county of Suffolk. The coroner of Middlesex returned a service on four; a deputy sheriff of Suffolk returned a service on a fifth ; and respecting the sixth, there was no return of a service on him, but the coroner certified respecting him, that he had no last usual place of abode in his county. The writ was dated the 8th of December, 1809.
    At the Common Pleas, the defendants, on whom the process had been served, appeared and moved that the action should be dismissed, “ for want of legal service, inasmuch as there is no service on E. H., one of the joint obligors in * the bond declared on, he being at the time, and ever before, an inhabitant of this commonwealth.”
    This motion was overruled in the court below; and the action being brought here by appeal, the motion was renewed in this Court.
    
      Rockwood,
    
    in support of the motion, suggested that this case did not come within the decision in Tapp an vs. Brum, 
       for there the defendant, on whom no service was made, had no domicil within the commonwealth; whereas the party in this case is averred always to have been an inhabitant.
    
      Aylwin
    
    for the plaintiff. Every thing has been done, which could be required of the plaintiff, to bring himself rightly in Court. If the defendants will not plead in abatement, and show in what part of the commonwealth the other defendant resides, it must be considered as a waiver of the objection. In England a defendant not served with process must be outlawed, before the plaintiff can proceed against the others.  Here, as there is no process of outlawry in civil actions, unless a return of non est inventus shall be deemed an equivalent, judgment can never be obtained against parties to join contracts, where one of them chooses to elude the process of the Court by flying from county to county. But the case of Tappan vs. Bruen is in point to support the present course of proceeding, which has always prevailed in this common wealth.
    
    * By the Court. This return must be sufficient; or there must be required a return from the sheriff of every county in the commonwealth, certifying that the party has no domicil within his county. This would be an insufferable inconvenience. The motion is overruled, and the action must proceed.
    After this decision, the action was referred to the decision of the Court on the following agreed statement of facts: —
    The said Hagger, being a prisoner, in execution at the suit of the plaintiff, in the jail at Concord, in the county of Middlesex, sealed and delivered, with the other defendants, the bond declared on, conditioned to be void, if the said Hagger should thenceforth continue a true prisoner, &c., without committing any manner of escape. But the penalty of the bond was not precisely double thé sum for which Hagger stood committed by virtue of said execution He continued a true prisoner, until the 15th day of October, 1807, when he entered voluntarily, in the night time, into a tavern, which stood on land belonging to the county, and on the same lot on which the jail stood, and within one rod thereof, and within the limits assigned for the jail-yard. The said tavern was the house in which prisoners, who had given bond for the liberty of the yard, had, from the erection of the jail, always been accustomed to sleep in the night time; but it had never been assigned by the Court of Sessions for that purpose, agreeably to the provision of the statute on that subject. The said prisoners had always been informed by the sheriff of said county and his deputy jailer, that the said tavern was the proper lodging house for them in the night time.
    But the plaintiff had no knowledge of the said Hagger’s so being in the night time in said tavern, until within one year next preceding the commencement of this action, which was more than a year after the supposed breach of the condition..
    * If the Court should be of opinion, that the plaintiff would be allowed to give evidence of the facts aforementioned, as proof of an escape, and that they would maintain his action, the defendants agreed to be defaulted, and that such judgment should be rendered against them as to the Court should seem proper. But if the Court should be of opinion, that the plaintiff could not maintain this suit, then he agreed to become nonsuit, and that judgment should be rendered for the defendants for their costs.
    The cause was argued on these facts by Davis [Solicitor General] and Aylwin for the plaintiff, and Hoare for the defendants.
    
      Hoare
    
    contended that here was no escape. The prisoner was placed in this house by the sheriff, in whose custody he was. If it was not part of the prison, the sheriff is answerable, and not the innocent prisoner, who was under a moral impossibility of avoiding the act relied on as evidence of an escape. In the case of Baxter vs. Taber, 
       the Court laid down this principle, which is certainly founded in the highest reason, “ that to constitute an escape within the intent of the bond, there must be some agency of the debtor employed ; ” and they add that there must be consent on his part, otherwise there is no escape. Here was certainly neither agency ijor consent on the part of Hagger. The whole fault, if any fault there was, is attributable to the sheriff alone.
    If it be said that it was the prisoner’s duty to go to the records of the Sessions, and there ascertain the limits of the prison-yard, and the buildings into which he was privileged to go, it may be answered, that as a stranger to the place he could not locate the ooundaries, nor could he know the buildings merely from the description of them in the record. For this he must depend on the information of others. Had he trusted to bystanders, he might justly be charged with culpable negligence ; but when he received positive and precise instructions from the sheriff himself, surely he did all that the most scrupulous caution * could dictate; and if he is in such case chargeable with an escape, nothing short of inspiration could have preserved him from committing it.
    In England, the sheriff is not chargeable with an escape, unless fraud or negligence appear; and a recapture purges the escape. There can be no reason why the same principles should not govern here ; or why the law should be more severe with sureties in a case like this, than against the sheriff in England.
    
    If it be once established, that the sheriff’s directions on this point are no protection to a prisoner, a door will be opened for gross collusion between creditors and sheriffs. And it will always be out of the debtor’s power to prove such collusion.
    By the statute of 1808, c. 92, it is enacted, that no prisoner having given bond, &c., shall be considered as having committed an escape in consequence of having entered upon any private estate, or any public building within the limits; with an exception only of suits wherein final judgment had, before the passing of the act, been rendered by this Court. The house in which Hagger was must be either private property or a public building; and in either case he is not chargeable with an escape. A provision of the like kind is contained in the statute of 1811, c. 85, § 1, without an exception even of suits, in which final judgment has been rendered.
    By the statute of 1809, c. 33, 2, it is enacted that no action shall thereafter be maintained for the breach of any bond given or to be given for liberty of the yard, unless such action be brought within one year from and after such breach ; with an exception of actions then pending. This provision is very clear and explicit, and the case finds expressly that this action was not commenced within the year from the supposed breach.
    
      For the plaintiff,
    
    it was insisted that here was plainly an escape, since the prisoner was in the night time out of any apartments belonging to the prison. As to his being misled *by the sheriff, the case of Burroughs vs. Lowder & Al., decided the present term, [ante, page 372,] is directly in point, to show it no excuse. It is wholly at the prisoner’s peril.
    The remaining question in the case is, whether the action is barred by the limitation in the statute of 1809, c. 33. The breach in this case took place before the passage of this law; and we contend that the words used do not necessarily extend to suits for breaches previously committed. The future, not the past, is the object of all true legislation. It was truly said by Judge Patterson in the case of Calder & Ux. vs. Bull & Ux., 
       that retrospective laws of every description neither accord with sound legislation, nor the fundamental principles of the social compact; and this Court will not incline, by an enlarged exposition of the law in question, to give it a retrospective operation, but, if possible, will give it such a construction as will avoid imputing injustice to the legislature. For it would be manifestly unjust to deprive the plaintiff of a remedy on his bond for an antecedent forfeiture of its condition, especially when he knew not of the breach, nor could expect a future limitation by the legislature.  A prospective construction appears better to conform to the intention of the act; and its true reading should be, that no action shall hereafter be maintained for any future breach, unless, &c.
    If, however, the Court should not adopt this construction, we con tend that the act is unconstitutional, as impairing the obligation of an existing contract, and therefore void. The obligation of this contract was, that Hagger should continue a true prisoner, &c., and in default thereof, that the defendants would pay the penalty of the bond. - This obligation they voluntarily imposed on themselves.
    To impair is to lessen, to diminish, or to injure. A law which takes away all remedy on a contract, or circumscribes the time within which it shall be enforced, may certainly be said to lessen or injure such contract. If the * legislature are not restrained by the constitution from circumscribing the time in which a remedy shall be sought on an existing obligation, they may, under that form, take away the remedy altogether, by restricting the time to a single day. Such could never have been the intention of the framers of the constitution.
    
      Hoare, in reply.
    In Burroughs vs. Lowder &f Al. there was no such direction of the sheriff as in the case at bar. Here the officer, in whose lawful custody he was, placed the debtor, and expressly directed him to sleep in the apartment, for sleeping in which, it is now attempted to charge him with an escape. Such a case has certainly not yet been decided.
    The provision of the statute of 1809 is explicit, and admits of no construction. The restriction in the constitution of the United States, relied on for the defendants, may naturally and equitably be considered as applying only to such contracts on which a consideration has been paid. It is certainly giving it too wide an extent to apply it to the reasonable limitation of suits approaching so nearly n their nature to an action for a penalty.
    
      
       5 Mass. Rep. 193.
    
    
      
       1 Strange, 473.
    
    
      
      
        Aylwin cited the case of Russell Al. vs. Allen AL, decided in this Court., August term, 1787. Present, Cushing, C. J., Sargeant, Sewall, and Sumner, justices. Case for goods sold and delivered to the defendants, who were partners. The writ was served on Allen only, without talcing notice of the other defendant. Allen pleaded the general issue, which was joined. — Sullivan excepted to the declaration against the defendants jointly, as the service was on one of them only. If a joint promise were proved, he said, it would not maintain the action, which was then substantially against one defendant, for one only was then in Court—Lowell. The exception should have been taken in abatement. It cannot prevail now that the general issue is pleaded and joined; and he cited the case of Rice vs. Shute, 5 Burr. 2611.
      Cushing, C. J. In an action against two on a joint bond, and one defendant only served with process, the action proceeds against him; and this has been often practised n this government. To which the other justices agreed; and also that the exception in this case came too late.
    
    
      
       4 Mass. Rep. 369.
    
    
      
       3 Dallas's Rep. 397
    
    
      
       See Strange, 585. — L. Raym. 1350,
    
   By the Court.

It is agreed in this case, that the debtor was out of his proper limits as a prisoner. The defence is, that the sheriff deceived him by giving him improper instructions. This cannot avoid the effect of the bond, given voluntarily by the obligors, and placing the debtor’s conformity to its condition at his own peril. This circumstance may well bring the case within the provision of the statute of 1810, c. 116, that where it shall appear that a debtor, having given bond for the liberty of the yard, shall, through misapprehension of the limits, commit an escape, the court may enter judgment for the plaintiff for the money due on the execution, with costs.

The defendants have relied on another point in this cause, having cited the statute of 1809, c. 33, § 2, by which suits on prison bonds are limited to one year after the * breach; and it is agreed that this action was not commenced until more than a year from the breach alleged.

The plaintiff objects to this act, as being void by the provision of the federal constitution, which declares that no state shall' pass any ex post facto law, or law impairing the obligation of contracts.” — If the legislature of any state were to undertake to make a law, preventing the legal remedy upon a contract lawfully made and binding on the party to it, there is no question that such legislature would by such act exceed its legitimate powers. Such an act must necessarily impair the obligation of the contract, within the meaning of the constitution ; and the courts of law would be found, therefore, to consider it as a void act of legislation, and as having no force or authority. But to extend this principle to acts for the limitation of suits at law, which, when enacted with a due discretion, and a reasonable time allowed for the commencement of suits on existing demands, are wholesome and useful regulations, would be extravagant. It must be left to the discretion of the legislature to fix the proper limitations. In the case under consideration, the term of a year is not, in our opinion, unreasonably short.

But a true construction of the statute in question will not extend it to actions on bonds, where, the escape having taken place before the passing of the act, a right of action had vested in the creditor. Such being the fact in this case, the plaintiff is entitled to judgment ; and by the agreement of the parties the defendants must be called.

Defendants defaulted.  