
    Willington versus Stearns.
    A debtor, who has been discharged from imprisonment on execution upon taking the poor debtor’s oath, pursuant to St. 1816, c. 55, is not liable to arrest on mesne process in a suit upon the former judgment; and a service by such arrest only may be pleaded in abatement of the writ.
    It was held, that St. 1787, c. 29, § 3, requires a technical conviction of peijury, in order to avoid the effect of taking the oath, and a replication was adjudged bad, because it did not allege such a conviction, and because it did not specify wherein the debtor had sworn falsely.
    Debt upon a judgment. The defendant pleads in abatement of the writ, that it was served only by the arrest of his body ; and avers that he had been committed to jail by virtue of the writ of execution which had issued upon the judgment, and that he had been admitted to, and had taken the oath prescribed by, the statute (1816, c. 55) for the relief of poor prisoners committed on execution for debt, and had thereupon been discharged from his imprisonment according to law.
    The plaintiff replies, that in the proceedings set forth at large in the plea, the defendant “ fraudulently intending and contriving to defraud the plaintiff, and unjustly to avoid the payment of the just debt, &c., did wittingly and wilfully swear falsely, in taking the oath by law prescribed in such case, &c., when in truth and in fact the said Stearns was not entitled to take the said oath, or to have the benefit thereof. And this,” &c.
    To this replication there was a general demurrer.
    
      Lincoln and J. Davis, in support of the demurrer.
    The Si. 1787, c. 29, § 4, provides only that a judgment shall remain good against any estate of a debtor who has been discharged from prison upon taking the oath, and it is by virtue of this provision, that the creditor has any remedy against such debtor. If he intends to avail himself of this remedy, he must bring himself within the provision, and take out a precept that is not directed against the body. The design of the statute was, to exempt the body from any future arrest for the same demand. It is true, that it speaks only of an exemption from arrest on execution, but it would be too absurd to say that the body shall be liable to be taken on mesne process, when it cannot be afterwards taken on execution. The writ was wrong, in being directed against the body of the defendant, and the officer having no authority to make the arrest except in consequence of this wrong direction, the service is void. The plea in abatement is therefore good. Cooke v. Gibbs, 3 Mass. Rep. 196 ; Gage v. Graffam, 11 Mass. Rep. 181 ; Lawrence v. Smith, 5 Mass. Rep. 362.
    The question then is, whether the replication contains any thing that avoids the plea. By the 3d section of the statute, it is provided, that if the prisoner shall be convicted of having sold, leased, or otherwise conveyed, concealed, or disposed of, or intrusted any part of his estate, contrary to his oath, he shall be liable to the pains and penalties of wilful perjury, and shall receive no benefit from his oath. The replication should show that the defendant has been convicted upon a criminal prosecution for perjury. The record of such conviction is the only evidence of that fact to which the Court will listen. To try the question of perjury in this action would be an unusual course, and would be attended with inconvenience. But be this as it may, the replication is bad, because it merely says that the defendant wittingly and wilfully swore falsely. To make such false swearing perjury, the fact sworn to should be material to the issue. It should be alleged that the defendant swore falsely as to some of the particulars contained in the oath prescribed by the statute.
    
      J. W. Hubbard, contra.
    
    The plea is bad, because the exemption in the statute relates to the ultimate process only. The right which every creditor has to arrest the debtor on mesne process must be taken away by express words. The plea contains no objection to the writ, but merely to the service. The writ, then, must be taken to be good, and the service, being according to the writ, is good likewise. In Cooke v. Gibbs, there is a dictum of Parsons C. J., that a writ against the estate and body, in a case like the present, may . pan plea be abated ; but the form of the writ being prescribed by statute, Sedgwick J. expresses a doubt whether a plaintiff has a right to vary from that form.
    The service in this case may be compared to an attachment of goods exempted from attachment, or to an arrest of a soldier on duty, or of a member of the legislature while attending the General Court; in which instances the service would be improper, and the party injured would have his remedy, but still the service would be sufficient. The statutes exempt a debtor from imprisonment on execution for a debt not exceeding the sum of five dollars ; it is nevertheless customary to arrest such debtor on mesne process.
    The replication is sufficient. The statute does not mean a technical conviction of perjury; for if the debtor were con victed and punished, the creditor would be without remedy until the term of punishment had expired. He might also be defeated of his remedy by a refusal of the public prosecutor to prosecute, or of the grand jury to find a bill. The statute says, if the debtor shall be convicted of swearing falsely ; it does not say, if he shall be convicted of the crime of perjury. If he swears falsely at all, it must be to some material fact, for no part of the oath is immaterial. The plaintiff may not be able to state the particular fact to which the debtor has sworn falsely, for, although he may know that the debtor has property, he may not know in what manner he has concealed or disposed of it. The Court may try the fact of peijury in this action, as well as any other fact that may be put in issue. The debtor may be convicted by his own confession, as he is here by the demurrer.
   Per Curiam.

The first question is, whether the plea is sufficient ; and we think it is. The legal consequence of being admitted to the poor debtor’s oath, as it is usually called, is, that the body of the debtor is never afterwards liable to arrest upon the same demand, although the judgment remains good against his estate. If an arrest on mesne process were permitted, the debtor might be obliged to go to jail ; which would be virtually a repeal of the statute. It is said, that the plea air leges the service to be bad, but makes no objection to the writ tself, and that the writ being good, and the service according to the writ, the service must be good. But this does not follow, however it may be so far as regards the protection of the officer. Whether it would have been proper to have varied the form of the writ, it is not necessary to decide ; but the intention of the legislature was, to liberate the body from being liable to arrest, and the service by arrest was no service.

Then, with regard to the replication, there are two valid objections to it. The first is, that it does not specify in what the debtor swore falsely ; the second, that it does not state that the debtor had been convicted of swearing falsely. It has been argued, that the statute does not mean a technical conviction of perjury, but we think this is not the proper construction. The legislature impose heavy penalties on the delinquent. He is subjected to the pains and penalties of wilful perjury; which shows that a technical conviction is to be understood ; and it is likewise provided that he shall receive no benefit from his oath; which in itself is a heavy penalty. In a civil action, the jury might be willing to find that the debtor swore falsely, upon less evidence than they would require in a criminal prosecution, and he would thus lose the advantage of a trial on a criminal process.

Replication adjudged bad. 
      
      
        Foord’s case, 5 N. Hamp. R. 313. In New Hampshire it is held, that a debtor’s body is not exempted from arrest in that State, although he has been committed on execution in Massachusetts for the same debt, and been there discharged, upon taking the poor debtor’s oath. Hubbard v. Wentworth, 3 N. Hamp. R. 43. See also Woodbridge v. Wright, 3 Conn. R. 523; Atwater v. Townsend, 4 Conn. R. 47; Smith v. Healy, 4 Conn. R. 49; Morris v. Eves, 11 Martin's Louisiana R. 731.
     
      
       See Metcalfs Digest, 261 note.
     