Marshall, Ch, J,,
delivered the opinion of the court, and,, after stating the facts, proceeded as follows :
The act of the legislature of Rhode-Island, on which this case depends, enacts, " That it shall and may be lawful for the sheriffs of the several counties, to grant to any person imprisoned for debt, a chamber in any of the houses, or apartments, belonging to such prison, and liberty of the yard within the limits thereof, on his giving bond to the creditor, with two sufficient sureties,, in double the amount of the debt, with condition to remain a true prisoner until lawfully discharged, and not to escape. And in case the creditor shall put the bond in suit, and recover judgment thereon for breach of the condition, he is to recover his debt with thirty per centum on the principal sum for his damages;" and_the principal, and his sureties, shall be committed to close jail until the judgment be paid. The law, then, prescribes the manner in which a poor prisoner may obtain his discharge. On application to any judge of the court of common pleas, or justice of the peace in the county, notice is to be given to the creditor to appear at such timé and place as the judge or justice shall appoint, to show cause why the prisoner should not have the benefit of the act. Any one judge, of the court of common pleas, and any one disinterested justice, are then authorized to administer the oath prescribed in the law; " if, after fully examining and hearing the parties, the said justices shall think proper so to do." A certificate being given to the jailer, the prisoner is to be discharged, on leaving with the jail keeper, to be delivered to his creditor, his note payable to the creditor in two years, with interest, for the amount of the execution. It is then enacted, that if any such prisoner shall be convicted of having sold, leased, or otherwise concealed, or disposed of, or intrusted his or her. estate, or any part thereof, directly or indirectly, contrary to his or her oath, or affirmation, he, of she, shall not only be liable to. the pains and penalties of wilful perjury, but shall receive no benefit from said oath or affirmation.
The question to be decided by this court is, whether a prisoner obtaining a discharge according to the forms of law, by means of fraud and falsehood, has broken the condition of his bond.
There is so much turpitude in the act confessed by the demurrer, such reluctance to allow any man to avail himself of so flagitious a defence, that it is not without some difficulty this question can be considered as a naked point of law. It is, however, the duty of the court so to consider it; and this has been attempted.
The object for which this borid waá given is of decisive importance in the inquiry respecting the extent of the obligation it imposes. It is, certainly, not given for the purpose of improving the security of the creditor, but simply for the purpose of allowing the debtor the benefit of the prison yard, without impairing the right of the creditor to the custody of his person. The yard, and a comfortable chamber, are, substituted for the walls of a jail; but as this substitution would facilitate an escape, it was deemed reasonable to secure-the' creditor against the abuse of an indulgence which the humanity of the law afforded. This consideration would suggest the propriety of provisions against an actual escape, the means for making which were furnished by allowing the use of the prison yard; but not against the employment of fraud or artifice to obtain a discharge, in the manner prescribed by law, which may be employed in jail as well as in the yard, and the means of employing which are not in any degree facilitated by substituting the yard for the walls of . the jail. The condition of the bond is, to remain " a true prisoner, until lawfully discharged, without committing any escape, or escapes, during the term of his restraint," and the certificate is a mode of discharge prescribed by law which terminates " his restraint." If, as is conceived, this bond was intended to guard against the dangers created by allowing the prisoner the liberty of the prison yard, hot against a fraud already committed, which is entirely unconnected with the bond, and the enlargement of his limits; then it is not broken by the practice of such fraud. The persons perpetrating it are, in a high degree, criminal, and ought not to be permitted to avail themselves of such conveyances. The jurisprudence, of Rhode-Island must be defective indeed, if it does not furnish a remedy for such a mischief. The replication charges these conveyances to have been executed by the defendant, pending the suit, for the purpose of defrauding the plaintiff, of defrauding his creditors generally, ano of enabling himself to take the oath of an insolvent debtor. It further charges, that, after the execution of the bond, the false oath, was taken with the knowledge of the sureties. However criminal this act may be, it cannot be punished by extending the obligation of the bond, on which this suit was instituted. ' The judgment rendered by the magistrates was obtained by perjury, but the discharge of the prisoner, which-was the consequence-of that judgment, was in the course of law, and is not deemed an escape.
This question appears to-have been considered by the court in the case of Simmset ah v. Slacum; andf although the question was not there decided, because hi that case, the sureties alone were sued, and did not appear to be concerned in the fraud of their principal, yet the reasoning of the court certainly applies, to this .case. The decision in the case of. Simms et al. v. Slacum has been revised, and the court feels no disposition to depart from it. The reasoning it contains need not be repeated, but is considered as applicable to this case.
There is some difference in the provisions of the two statutes, but. not enough to induce a different construction as; to the extent of the obligation of the bond for keeping the prison rules. The law of Khode-Island enacts, that if any prisoner shall be cqnvicted of having disposed of any part of his estate, contrary to his oath or affirmation, " he shalLnot only be liable to the pains and penalties of wilful pérjury, but shall receive no benefit from said oath or/affirmation." Conviction is a technical term applicable to a judgment on a criminal prosecution, not to a proceeding on this bond. The act contemplates, a prosecution ojn which the party may be adjudged to suffer the penalties of perjury, in addition to which he is to be deprived of all benefit from the oath or affirmation. If this section has any influence it would be to show that in the contemplation of the legislature such conviction is necessary previous to the establishment of the absolute nullity of the oath-or affirmation. The court, however* does not mean to indicate that the effect of the» oath and of the discharge granted by the magistrates might not be controverted in any proceeding against the parties, either in law or equity, other than in a suit on the bond for keeping the prison rules.
.Certificate. — This cause came on to be heard on the transcript of the record from the circuit court for the district 6f Rhode-Island, containing the noinfé on which the judges of that coupt were divided in opinion, and was argued by counsel,. On consideration whereof this court is of opinion that the replica-b° °f the plaintiff is insufficient to avoid the plea of the defendant. All which is ordered to be certified to the said circuit court.