the limits of the jail yard. What is the pro- | been sufficiently followed, in setting forth, in vision in the law of Massachusetts? Not that the bond, the particular condition referred to, prisoners should have liberty of the jail yard yet this objection is met by the last clause, within the prison. The law of 1789 was, that which provides in general terms that the parthe person should continue within the limits of ties shall "commit no manner of escape." The the prison. This is not the jail yard. This acts of the parties do clearly constitute "an will be found fully explained in 3 Mass. Rep. escape" under the statute in question, and amount to a breach of that condition, so as to render them liable to the penalty, even if they were not so in regard to the other conditions.

98.

The construction which the court will give to this bond will be strict. The action is against the sureties, and they are entitled to all the benefits of such a construction. Cited, 9 Wheat. 680.

The Act of Congress of 19th May, 1828, ch. 68, provides that writs of execution and proceedings shall be such as the laws of the State shall determine. Proceedings are to be according to the provisions of the State laws. It has been decided in Beers v. Houghton, 9 Peters, 329, that proceedings comprehend all the acts after execution. In that case a discharge by the State law of Ohio discharged the bail."

If the interpretation of "proceedings" is not such as is contended for, no power exists to extend the privileges of the jail limits as regulated by the State laws. If the acts of Congress on this subject are not prospective in the new States, no authority of this kind exists.

It is submitted that the Act of Congress of 308*] 1828 extends to all *suits by the United States. The provision is as to all process issuing from the courts of the United States; no distinction exists as to suits by the United States.

There was a case decided in Massachusetts, where a party confined at the suit of the United States, had the benefit of the Poor Debtor's Act, an act passed after the Act of 1789.

It is also contended that even if the privileges of an imprisoned debtor depend on the Act of 6th January, 1800, yet that the construction which limits them to such as were allowed by the State laws, in force at that time, is incorrect. To this it is replied that the words of the act distinctly adopt the regulations of the States existing at the time of its passage, and no others; that it could never be the intention of Congress, if it were within their constitutional power, to sanction prospective legislation over which they exercised no control; and that, by repeated decisions of this court, it has been held that in adopting State laws of this character, those only are included which are actually in existence at the time. Wayman *v. Southard, 10 [*309 Wheat. 41; The United States Bank v. Halstead, 10 Wheat. 59; Beers v. Houghton, 9 Peters, 361; Wilcox v. Hunt, 13 Peters, 378; Anonymous, Peters's C. C. Rep. 1.

But the principal ground taken on behalf of the defendants in error is, that the privileges of imprisoned debtors, at the time this suit was brought, did not depend on the Act of Congress of 6th January, 1800, but on the Act of 19th May, 1828, 4 Story's Laws, 2221, which declared that "writs of execution and other final process in the courts of the United States, and the proceedings thereon, should be the same as were then used in the State courts." To this it is answered that the act referred to does not apply to suits in which the United States are plaintiffs; and that if it did, the "proceedings" therein mentioned do not embrace the privileges of the jail limits, as then used in the States.

Mr. Gilpin, Attorney-General, in reply: The positions attempted to be established on the part of the plaintiffs in error were these: that if Jacob and Benjamin Knight had not "remained true prisoners," or had committed what amounted to "an escape," in contemplation of the laws of the United States, the condition of the bond was broken, and the judgment of the Circuit Court was erroneous; that the law of the United States ascertaining these It is a settled rule that in general statutes points was the Act of 6th January, 1800, 1 which regulate the recovery of debts, the govStory's Laws, 715, which gave the privileges ernment is not bound unless they are made and adopted the restrictions in regard to im-applicable to it in express terms, or by necesprisoned debtors which then existed under the State laws, and that these State laws made it "an escape," if the debtor lodged at night elsewhere than in an apartment belonging to the jail, or had remained outside of the jail at night; which it was admitted Jacob and Benjamin Knight had done.

It is contended, on the part of the defendants in error, that even if the acts of Jacob and Benjamin Knight did amount to an escape under the State laws thus relied on, yet that the bond now sued upon was not taken in conformity with those laws; that its condition, instead of being in the words of the Statute of Massachusetts, is simply that the parties shall not depart without the exterior bounds of the jail yard, which they have not done; and that, therefore, the condition has not been broken, though they were not within the prison walls at night. To this it is replied that, even supposing the words of the statute not to have

sary implication. This is no invidious prerogative right, but a rule founded on well ascertained public policy, necessary to protect the public interests against the negligence of public officers; and specially to guard the public revenue. It is a rule adopted in many if not all the States of this Union, and probably in most other countries, as well as in the United States; and has been sanctioned by repeated judicial decisions. The United States v. Wilson, 8 Wheat. 256; The United States v. Hoare, 2 Mason, 314; The United States v. Greene, 4 Mason, 433; The United States v. Hewes [lately decided by Judge Hopkinson in the District Court of Pennsylvania]; Staughton v. Baker, 4 Mass. Rep. 528; The People v. Rossiter, 4 Cowen, 143; Corn v. Baldwin, 1 Watts, 54; King v. Allen, 15 East, 340.

The Act of 19th May, 1828, is certainly not applicable, by its terms, to suits to which the United States are parties; and the whole

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, etc., proceeds as follows: "Now, if the said Jacob Knight and Benjamin Knight, from the time of executing this bond, shall continue true prison

its 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 impris. [*818

State 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."

held to be a matter with which the marshal had nothing to do; although the Act of 24th September, 1739, directs that officer to execute all process, and consequently devolves upon him every act which can be regarded as a proceeding thereon. In the case of Wayman v. Southard, 10 Wheat. 20, the whole scope of the opinion refers to the conduct of the marshal while the writ is in his hands, as constituting his "proceedings on the execution." It speaks, in express terms, of the Act of 1800, as that which authorizes the marshal to allow the benefit of prison rules to those who are in custody under process issued from the courts of the United States, in the same manner as to persons imprisoned under State process; it re-ers, in the custody of the jailer, within the limfers to the previous temporary laws having the same object in view, and it alludes, with evident doubt, to an argument deriving this authority from the Process Act. 10 Wheaton, 35. The facts of that case also show the nat-onment, according to the laws of the United 312*] ure of the proceedings; they were "the correctness of the marshal's mode of sale under a fieri facias; the correctness of the return made by him; the question whether or not he had obeyed the commands of the writ. In the case of The Bank of the United States v. Halstead, 10 Wheaton, 54, a similar question was involved; it related to the propriety of the marshal's conduct, and whether or not he had proceeded correctly in his mode of executing the process. The case of Beers v. Houghton, 9 Peters, 356, arose expressly on the mode of proceeding by the marshal under an execution. He was directed by the writ to arrest a person; he found him to be exempted by the State laws from arrest; his return to that effect was held to be proper; his proceedings were strictly proceedings on the execution; the person he was ordered to arrest was, in point of fact, legally discharged from custody, as completely as if he had paid the debt, and the marshal so made his return. As far as the proceeding on the execution was involved, it was in no respect similar to the privilege of the jail limits; the latter is a mere incident to the custody of the debtor, whether granted or not, the proceedings under the writ go on; it does appear upon the record; it does not affect in any way the discharge or satisfaction of the debt.

It thus appears that whether we take the words and plain intent of the Act of 19th May, 1828, or the general scope of legislation by Congress, in regard to processes, and to the imprisonment of debtors, or the course of judicial decision, as applied to the proceedings of a marshal in the execution of final process, the provisions of that act cannot be properly considered as embracing the privilege of jail limits, or as applicable to the present case. That case must depend on the provisions of the Act of 6th January, 1800; which, by subjecting the defendants to the laws of Massachusetts then in existence, deprives them of the privilege to which they would have been entitled, had they not failed to comply with the terms prescribed by that law, which are also the conditions mentioned in the bond.

Mr. Justice Barbour delivered the opinion of the court:

This case came before us upon a writ of error to the Circuit Court of the United States for the District of Maine.

The parties agreed to a statement of facts, as follows: "On the 30th of 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 impris oned, debtors were guilty of an escape, because they were not within the walls of the jail in

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," etc., with a provision, "that it shall be in the power of the courts, if they see fit, in their discretion, by rules of court, so far *to alter final proc- [*315 ess in said courts as to conform the same to any change which may be adopted by the leg. islatures of the respective States, for the State courts."

the night time; although they always contin- | and that is, whether the Act of 1828, May 19th, ued, both day and night, within the limits of entitled "An Act further to regulate processes the jail yard. It is said that the only act of in the courts of the United States," has not Congress in force at the date of the bond in since its passage regulated the right of impris question which entitled the parties to the oned debtors to the privilege of the jail liberprivileges of jail yards when imprisoned on ties. process issued from any court of the United States, at the suit of the United States, was the Act of the 4th 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 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. 10 Wheat. 1, 51; 9 Peters, 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.

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 are never to be considered as embraced in any statute, unless expressly named.

But

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 Abridgement, 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 reliIf it were even conceded that the Act of gion and justice, and to prevent injury and Massachusetts of 1784 was in force at the date wrong, the king shall be bound by such act, of the execution of the bond in question; al- though not particularly named therein. though it would subject the officer to liability, where a statute is general, and thereby any yet it would not have affected these parties. prerogative, right, title, or interest, is devested, From the language of that act, a person im- or taken from the king, in such case he shall prisoned for debt was allowed to have a cham- not be bound; unless the statute is made by ber and lodging in any of the houses, or apart-express words, to extend to him. It is a setments 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,

tled 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 gov ernments, that the public interests should not