cerned, may be enforced by execution against the property of the defendant in like manner as judgments in civil cases are enforced: Provided, That where the judgment directs that the defendant shall be imprisoned until the fine or penalty imposed is paid, the issue of execution on the judgment shall not operate to discharge the defendant from imprisonment until the amount of the judgment is collected or otherwise paid.

1 June, 1872, c. 225, s. 12, v. 17, p. 198.

SEC. 1042. Poor convicts sentenced and imprisoned for fines. When a poor convict, sentenced by any court of the United States to pay a fine, or fine and cost, whether with or without imprisonment, has been confined in prison thirty days, solely for the non-payment of such fine, or fine and cost, he may make application in writing to any commissioner of the United States court in the district where he is imprisoned, setting forth his inability to pay such fine, or fine and cost, and after notice to the district attorney of the United States, who may appear, offer evidence, and be heard, the commissioner shall proceed to hear and determine the matter; and if on examination it shall appear to him that such convict is unable to pay such fine, or fine and cost, and that he has not any property exceeding twenty dollars in value, except such as is by law exempt from being taken on execution for debt, the commissioner shall administer to him the following oath: "I do solemnly swear that I have not any property, real or personal, to the amount of twenty dollars, except such as is by law exempt from being taken on civil precept for debt by the laws of (State where oath is administered); and that I have no property in any way conveyed or concealed, or in any way disposed of, for my future use or benefit. So help me God." And thereupon such convict shall be discharged, the commissioner giving to the jailer or keeper of the jail a certificate setting forth the facts. [See 22847, 5296.]

1 June, 1872, c. 255, s. 14, v. 17, p. 198. See, also, act of March 3, 1875, ante, p. 145.

SEC. 1043. Capital offenses.-No person shall be prosecuted, tried, or punished for treason or other capital offense, willful murder excepted, unless the indictment is found within three years next after such treason or capital offense is done or committed.

30 April, 1790, c. 9, s. 32, v. 1, p. 119.

SEC. 1044. Offenses not capital.-[No person shall be prosecuted, tried, or punished for any offense not capital, except as provided in section one thousand and forty-six, unless the indictment is found, or the information is instituted within two years next after such offense is committed.] [No person shall be prosecuted, tried, or punished for any of fense not capital, except as provided in section one thousand and forty-six, unless the indictment is found, or the information is instituted within three years next after such offense shall have been committed. But this act shall not have effect to authorize the prosecution, trial or punishment for any of fense, barred by the provisions of existing laws.]

The words in italic repealed.

30 April, 1790, c. 9, s. 32, v. 1, p. 119; 13 Apr., 1876, c. 56, v. 19, pp. 32, 33.

The statute must be pleaded-it applies to offenses subsequently created.-Under the 32d section of the act of April 30th, 1790, embraced in the above provision of the revision, it was held that the limitation applied to a statute creating an offense, passed subsequently thereto, but that on habeas corpus the court could not look behind the sentence of the court, provided it had jurisdiction of the offense.

In order to secure the advantage of the statute it must be pleaded, and if the defendant fails to do this it will be a waiver of the defense. Johnson v. United States, 3 McLean, 89; Adams v. Woods, 2 Cr., 336. But, see United States v. Watkins, 3 Cr., C. C., 555, and United States v. Cook, 17 Wall., 168, where it was held that the statute could not be taken advantage of by demurrer. United States v. White, 5 Cr., C. C., 38.

A valid indictment must be found.-Where an indictment for perjury was found within two years of the time when the offense was committed, on which a nolle prosequi was entered, and another indictment was found for the same offense after the two years had expired, and the statute was pleaded as a bar, it was held that it was a good bar to the prosecution; that the second indictment had no connection with the first; that the second indictment should be considered as the commencement of the new prosecution, and that the charge not having received the sanction of a grand jury within two years after the offense was committed, the prosecution was barred. The United States v. Ballard, 3 McLean, 469. See, also, United States v. Slocum, 1 Cr., C. C., 485.

An indictment for the embezzlement of money belonging to the moneyorder office of New York, by a clerk thereof, under the act of 21st of February, 1874, was held not an offense under the revenue laws, but that the indictment must be found within two years from the time the offense was committed or the provisions of this section could be pleaded in abatement. United States v. Norton, 91 U. S., 566.

SEC. 1045. Fleeing from justice.-Nothing in the two preceding sections shall extend to any person fleeing from justice.

30 April, 1790, c. 9, s. 32, v. 1, p. 119.

Fleeing from justice.--It is observed by Mr. Justice CLIFFORD, in United States v. Cook, 17 Wall., 168, as follows: "Accused persons may avail themselves of the statute of limitations by special plea or by evidence under the general issue, but, courts of justice, if the statute contains exceptions, will not quash an indictment because it appears upon its face that it was not found within the period prescribed in the limitation, as such a proceeding would deprive the prosecutor of the right to reply or give evidence, as the case may be, that the defendant fled from justice and was within the exception. Nor is it admitted that any different rule would apply in the case, even if the statute of limitations did not contain any exceptions, as time is not of the essence of the offense, and also for the reason that the effect of the demurrer, if sustained, would be to preclude the prosecutor from

giving evidence, as he would have a right to do under the general issue, to show that the offense was committed within two years next before the indictment was found and filed."

The objection that the indictment was not found within the limitations of the statute is not ground for quashing it, but a matter of defense under the general issue. United States v. White, 5 Cr., C. C., 38.

Fleeing from justice does not necessarily import the fleeing from some prosecution begun. United States v. Smith, 4 Day, C. C., 121.

SEC. 1046. Crimes under the revenue laws.-No person shall be prosecuted, tried, or punished for any crime arising under the revenue laws, or the slave-trade laws of the United States, unless the indictment is found or the information is instituted within five years next after the committing of such crime.

26 Mar., 1804, c. 40, s. 3, v. 2, p. 290; 20 April, 1818, c. 91, s. 9, v. 3, p. 452.

SEC. 1047. Penalties and forfeitures under laws of United States.-No suit or prosecution for any penalty or forfeiture, pecuniary or otherwise, accruing under the laws of the United States, shall be maintained, except in cases where it is otherwise specially provided, unless the same is commenced within five years from the time when the penalty or forfeiture accrued: Provided, That the person of the offender, or the property liable for such penalty or forfeiture, shall, within the same period, be found within the United States; so that the proper process therefor may be instituted and served against such person or property.

2 Mar., 1799, c. 22, s. 89, v. 1, p. 695; 26 Mar., 1804, c. 40, s. 3, v. 2, p. 290; 20 April, 1818, c. 91, s. 9, v. 3, p. 452; 28 Feb., 1839, c. 36, s. 4, v. 5, p. 322; 3 Mar., 1863, c. 76, s. 14, v. 12, p. 741; 25 July, 1868, c. 236, s. 1, v. 15, p. 183.

Penalty for violating patent laws.-In a civil action, in 1855, to recover the penalty for marking the word "patent" on an unpatented article, it was held that the two years limitation of the act of April, 1790, was repealed by implication in such cases by the act of 1839, embodied in § 1047 of the revised statutes, and that the time is extended to five years. Simpson v. Pond, 2 Curtis, C. C., 502.

Under the disbursing officers act the statute does not begin to run until the officer is "held responsible" for the loss as indicated by the act. Clark's Case. 11 Ct. Cl., 698.

SEC. 1048. Parties beyond reach of process during the rebellion. In all cases where, during the late rebellion, any person could not, by reason of resistance to the execution of the laws of the United States, or of the interruption of the ordinary course of judicial proceedings, be served with process for the commencement of any action, civil or criminal, which had accrued against him, the time during which such person was beyond the reach of legal process shall not be taken as any part of the time limited by law for the commencement of such action.

11 June, 1864, c. 118, v. 13, p. 123.

The whole time to be deducted.—In a suit by the United States upon the bond of a marshal of the eastern district of Virginia, in 1869, which was about nine years after the cause of action arose, the defendant pleaded the statute of April 10th, 1806, relating to marshals' bonds, and providing that suits thereon should be brought within six years, etc. It was agreed that the defendants were actual residents of the State of Virginia from the 24th day of May, 1861, to the 24th day of May, 1865, and that during the whole of that period the defendants could not be served with process for the commencement of the action, owing to the interruption caused by the war of the rebellion. The court below gave judgment for the marshal, but the Supreme Court of the United States, where it was taken, held that the effect of the rebellion was to suspend the running of the statutes of limitations during its continuance, and that the act of June 11th, 1864 (§ 1048 of the R. S.), requires all the time to be deducted during which the suit could not be prosecuted by reason of the resistance of the laws or the interruption of judicial proceedings, whether such time was before or after its passage. United States v. Wiley, 11 Wall., 508; Stewart v. Kahn, Id., 493; Hanger v. Abbott, 6 Wall., 532; McNeer v. Ragan, 2 Wh., 29; Montgomery v. Hernandez, 12 Id., 129.

In Graydon v. Sweet, 1 Woods, C. C., 418, it was held that the act of June 11, 1864, was not a statute of limitations, but that it merely declared that during the existence of the rebellion the time during which the ordinary course of judicial proceedings was interrupted should not be taken as a part of the time limited by law for the commencement of actions.

In United States v. Muhlenbrink, Id., 569, it was held that this statute did not continue in Georgia after the proclamation of the president of April 2, 1866. See, also, The Protector, 12 Wall., 700; Lockhart v. Horn, 1 Woods, C. C., 628.