
    The State against Gee.
    No person is entitled to the privilege of the prison-bounds, who is not entitled to the benefit of the insolvent debtor’s act. A person, therefore, who is convicted of killing a negro, and committed till he pays his fine, is not entitled to the benefit of insolvent debtor’s act , consequently, not entitled to the privilege of the prison» hounds.
    THE prisoner, Gee, was indicted, under the negro act, for the murder of a negro boy, named Sawney, the property of Abraham Cohen, by shooting with a gun loaded with shot. The jury, after the clearest evidence for the prosecution, brought him in guilty of toilful murder 5 and being unable to pay the fine of 7001. currency, imposed by the clause of that law, the court sentenced him, agreeably to the terms of the act, to seven years’ imprisonment, and to be kept at hard’ labour during that time.
    On the adjournment day of the sessions, the prisoner was brought up, and a motion made by
    Falconer, to admit him to prison-bounds, preparatory to his taking the benefit of the insolvent debtor’s act ; and for that purpose cited the first clause of the act, passed in 1788, for establishing the bounds of prisons and gaols, &c. which enacts, that all prisoners, confined on mesne process in any civil action, shall, on complying with the terms of that act, be entitled to the rules, limits and bounds, therein contained. He next cited the 6th clause of the act, to this effect: That if any person confined in gaol, on mesne process or execution, shall deliver up his estate and effects, as therein mentioned, he shall be entitled to the benefit of the insolvent deb tor’s act. He then quoted the latter part of the first clause of the act, passed in 1787, for “ recovering fines and “ forfeited recognisances $” which, after prescribing the mode in which they shall be recovered, enacts, that if the party, forfeiting such recognisances, hath no property, on which a levy can be made to the amount, he shall be committed to gaol on a capias ad satisfaciendum, until the forfeiture, costs, and charges are paid ; entitled, however, to the privilege of insolvent debtors. This, he therefore contended, was such a privilege as the prisoner, in the present .instance, was' entitled to ; and if entitled to it, he was equally, in the first instance, entitled to prison-bounds, until
    
      he could make the necessary arrangements required by the insolvent debtor’s law.
    
      Pinckney and Ford, for the prosecution,
    argued, that the prosecutor had one-half of the 700/. currency, and, until he was satisfied, the prisoner could not be released on that ground. That imprisonment and hard labour were inflicted on him as punishments for the atrocity of the offence, which had deserved death. That the frequency of the offence was owing, in a great measure, to the nature of the punishment, which was only a pecuniary fine where the party was able to pay, and imprisonment and hard labour where he was not able ; and that, therefore, the law, which was a penal one, ought to have a rigid construction. They also argued, that none of the acts or clauses of the acts, quoted by the prisoner’s counsel, applied in the present case, for that the law, establishing prison-bounds, &c. passed in 1788, related only to prisoners confined in civil cases, on mesne process, or executions only, and not to cases where fines were imposed for offences, or imprisonment inflicted as the punishment. That the insolvent debtor’s law, in like manner, was only extended to persons in gaol for debt, on mesne process or execution, and such as were desirous of surrendering up all their estates for the benefit of their creditors, and particularly excluded persons confined for wilful mayhem, or wilful and malicious trespass, from the benefit of that law; and that the law for recovering the forfeited recognisances, was particularly confined to recognisances before magistrates, agreeable to the act, and to no other kind of forfeiture whatever ; and that the benefit of the insolvent debtor’s law, mentioned in the latter part of the first clause of that act, could only be extended to persons confined in gaols on ca. sa. in pursuance of that act only. That there was a difference between a penalty and a fine : the first was fixed by law, and the other discretionary in the court; and that this was a penalty, and not a fine, and did not therefore come under the act,
   Bay, J.

No person is entitled to the benefit of the prison-bounds, who is not entitled to the benefit of the insolvent debtor’s act. This is agreeable to the very letter and spirit of all the acts which have been quoted. The insolvent debtor’s law is penned with great caution, and appears, from the preamble, to be intended only for the benefit of those who, by accident, losses, or other misfortunes, are rendered incapable of paying their debts, and by that means had become objects of compassion. But the 8th clause expressly excludes, from the privilege of that act, all those against whom damages have been recovered for wilful mayhem, or wilful and malicious trespass, or for damages done to a freehold, &c. and, also, all those who have lost money to a certain amount by gambling practices, &c. There is no mention of criminal prosecutions, or persons convicted of crimes and misdemeanors, in this act. They therefore depend upon the principles of common law, unless otherwise altered by some statute. But, surely, if persons sued and impleaded in civil actions, where damages are recovered in cases of mayhem, wilful and malicious trespass, or the like, are excluded expressly, there cannot be room for extending the indulgence, by implication or construction, to those fined and imprisoned in consequence of criminal prosecutions. Besides, it is clear from the very words of the law, for ascertaining prison-bounds, &c. that it is extended to persons confined on mesne process, or execution only, therefore excludes every other idea ; and the proviso, in the law for recovering forfeited recognisances, particularly relates to those species of forfeiture only, and to those who are imprisoned in pursuance of the terms of that law, and does not by any means extend to the present case. Therefore, *

Let the prisoner be remanded.  