hanged by martial law, it created a forfeiture of his estate, without an attainder. There is also a dictum of Brown, justice, in the case of Hales v. Pettit, in the early part of the reign of Elizabeth, Plowden 262, "that in 8 Edward the IIId, a woman brought a writ of dower, and the tenant said that her husband went into Scotland and adhered to the King's enemies, and came into the realm with the King's enemies, and afterwards died in Scotland; and it seems a good bar by averment, for other law could not be had against him." But in this very case, Dyer justice, denied this to be law, and said that the case was not so adjudged in 8 Edward, the IIId. I have not the year books, and cannot say which of the learned judges were right, but the law has been settled otherwise for two hundred years. Coke. Lit. 13, 1 Hales P. C. [*] 343, 4, 4 Blac. Com. 380. Hence the practice of statute attainders, to enable the Crown to seize on the estates of traitors and rebels.-These parliamentary attainders are said to be imitations of attainders at common law, Hob. 242; they amount to judgment of treason, and create a forfeiture. The only ground on which the tenant can succeed is, that our Confiscation Acts, together with the inquisition, amount to a statute attainder, which is not pretended, nor can it be with the least shadow of reason. For the foregoing reasons, I am clearly of opinion, that the demandant is entitled to judgment. Judgment for the demandant. [*776] CASES ADJUDGED IN THE SUPREME COURT OF JUDICATURE OF THE STATE OF NEW-JERSEY. MAY TERM, 1811. HOWARD and FITCH vs. BLACKFORD and others. Debtor stepping by mistake, a few feet over 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, one of the defendants. The condition of the bond was, that Walter Kendrick 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 gaol or 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 prison, 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 custody, &c. by virtue of any commitment on 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.* bond was not obtained by duress, but voluntarily given. The A. Ogden and Hornblower, for the defendants, first contended, that the 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 defence to the action, as well on the * See I Bur. 330. reason 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, 4 Johns. Rep. 45, 2 Johns. 433. 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 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. 203 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 prisoner 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 wholely 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, 1 Burr. S30: 1 Stra. 444. 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 defendants' counsel, it does not apply to this case; the prisoner in this [*] * Since published, See 2 Johns. cases, 205. case 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. 2 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 principle, 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. 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 vs. 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 |