If an imprisoned debtor fraudulently obtains a judgment in his
favor, in consequence of which he goes at large, the sheriff cannot
retake him on suspicion that the judgment is fraudulent, nor be
liable for an escape on the proof of such fraud.
A debtor who has departed from the prison rules under a judgment
of discharge granted in due form by a competent tribunal has not
committed an escape even to charge himself, much less will it
impose on his security a liability for the debt.
This was an action of debt brought by the plaintiff against the
defendant, in the Circuit Court of
Page 14 U. S. 448
Rhode Island on a bond dated 31 August, 1810, with a condition
that if Simon Smith, a prisoner in jail, at the suit of the said
Philip Ammidon, shall
"continue and be a true prisoner in the custody, guard, and
safekeeping of Roger Allenton, keeper of the said prison, &c.,
within the limits of the said prison until he shall be lawfully
discharged, without committing any manner of escape or escapes
during the term of his restraint, then this obligation to be void.
. . ."
The defendants pleaded, severally, two several pleas:
First. That said Simon did remain a true prisoner until lawfully
discharged, and made no escape.
Second. That after notifying his creditors, he did take the oath
provided by the law of the State of Rhode Island for the relief of
poor prisoners confined for debt before proper authority, which
oath is as follows:
"That he had not any estate, real or personal, in possession,
remainder, or reversion over ten dollars, and that he had not,
since the commencement of the said suits against him or at any
other time, directly or indirectly sold, leased, or otherwise
conveyed or disposed of to or entrusted any person or persons
whomsoever with all or any part of the estate, real or personal,
whereof he hath been the lawful owner or possessor with any intent
or design to secure the same or to receive or to expect any profit
or advantage therefrom for himself or any of his family, nor had he
caused or suffered to be done anything whatsoever whereby any of
his creditors may be defrauded. "
Page 14 U. S. 449
To the first plea the plaintiff replied that he did not remain a
true prisoner until lawfully discharged, &c. To the second he
replied that after the commencement of the action on which he was
imprisoned, and after the contracting of the debt on which the
action was brought, the said Simon was seized and possessed of real
estate to the value of $40,000, and that, fraudulently contriving
with his sons Darius and Simon, Jr., his sureties in said bond, to
defraud him of his said debt, did lease, sell, and convey to said
Darius and Simon, Jr., and his other children, all his said real
estate, and did entrust them with it, for his and their benefit
with intent to defraud the plaintiff, and that he might be admitted
to the benefit of the oath mentioned in said plea; that said Simon
did entrust with said Darius and Simon, Jr., and his other
children, all his estate, both real and personal, of the value of
$50,000, with the advice, counsel, and assistance, and under the
direction of said Darius and Simon, Jr., and his other children,
with an intent and design to secure the same to the said Darius and
Simon, Jr., and his family, to defraud the plaintiff of his said
debt, and he avers that the said Simon did falsely and fraudulently
take said oath, with intent willfully, falsely, and fraudulently to
hinder, delay, and defraud the plaintiff of his just debt aforesaid
and avoid the payment thereof, and thereby hinder, delay, and
defraud the other creditors of the said Simon of their just debts.
And this he is ready to verify, wherefore he prays judgment,
&c. In his replication to
Page 14 U. S. 450
the pleas of the two sureties, the plaintiff adds an averment
that the said Simon took the said oath, they, the defendants, well
knowing that the same was false and fraudulent, and that the said
Simon did willfully, falsely, and fraudulently take the said oath
with intent thereby to hinder, delay, and defraud the plaintiff of
his just debt aforesaid and avoid the payment thereof, and thereby
hinder and defraud the other creditors of the said Simon of their
just debts.
To this replication the defendants demurred, and the plaintiff
joined.
On the argument of this demurrer, the judges of the circuit
court were divided in opinion whether the replication was
sufficient to avoid the plea, which division of opinion was
certified to this Court.
Page 14 U. S. 457
MR. CHIEF JUSTICE MARSHALL, 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 percentum on the
principal sum for his damages,"
and the principal and his sureties, shall be committed to
close
Page 14 U. S. 458
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 time 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 entrusted his or her estate
or any part thereof directly or indirectly contrary to his or her
oath or affirmation, he, or she, shall not only be liable to the
pains and penalties of willful 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 defense, that it is
Page 14 U. S. 459
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 bond was 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
Page 14 U. S. 460
by allowing the prisoner the liberty of the prison yard, not
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,
and 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
Simms v.
Slacum, 3 Cranch 300, and although the question was
not there decided, because in 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 v. Slacum has been
revised, and the Court feels no
Page 14 U. S. 461
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 Rhode Island enacts that if any prisoner shall be convicted of
having disposed of any part of his estate contrary to his oath or
affirmation, "he shall not only be liable to the pains and
penalties of willful perjury, 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 on
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 of Rhode Island
containing the points
Page 14 U. S. 462
on which the judges of that court were divided in opinion and
was argued by counsel. On consideration whereof this Court is of
opinion that the replication of the plaintiff is insufficient to
avoid the plea of the defendant. All which is ordered to be
certified to the said circuit court.
Certificate for the defendant.
