Dewey, J.

We have not found it necessary to consider the

question whether the defendants were not so far acting judicially, in the matter before them, as to be protected from all claims for damages resulting from mere error of opinion, and where no fraud or corruption is imputed. Our attention has been particularly called to the construction of the provisions of the Rev. Sts. c. 98, and the supplementary act of 1844, c. 154, and in reference to the duty of the magistrates, on a *451hearing upon an application of a poor debtor who is desirous of taking the oath prescribed in such cases, when the creditor has availed himself of the privilege, given by statute, of alleging specific charges of fraud against the debtor, and the magistrates, upon the hearing thereof, are of opinion that the charges of fraud are not maintained, and the creditor has appealed from such judgment to the court of common pleas. The precise point of the inquiry is this : Are the magistrates to proceed to the administration of the poor debtors’ oath, when the creditor claims an appeal ? Looking merely at the provisions of Rev. Sts. c. 98, §§ 6—10, there would seem to be no room for doubt in the matter. The course of proceeding, and the duties to be performed by the magistrates, áre plainly stated, and would seem to require the administration of the oath in all cases where, in their opinion, the party is entitled to take the same. The difficulty arises from the attempt to engraft upon the old and familiar system of proceedings, on a poor debtor’s application to take the oath, certain new and more stringent provisions in regard to his fraudulent acts, accompanied with the provision that either party may appeal from the adjudication of the magistrates to the court of common pleas. The argument is strongly pressed upon us, that § 32 of c. 98, by giving the right of appeal to the creditor, necessarily operates to supersede all further jurisdiction on the part of the magistrates, and precludes all further proceedings by them as to administering the oath to the debtor, and filing a certificate of the same. No such effect is directly declared by the statute; but it is contended that, upon general principles applicable to appeals which are legally taken, it supersedes all further action in the court appealed from. Ordinarily, this is undoubtedly the case; yet the court appealed from is sometimes authorized to render judgment and issue execution, though the appeal is carried forward. It is so in the case of exceptions in matter of law, when they are deemed frivolous by the court. It may be said that, in the case specified, this course of proceeding is expressly authorized by statute, and that in the present case, no similar provision is found. This is so ; and therefore the authority to administer the oath and *452file the certificate, notwithstanding the appeal, must here he derived from inference rather than from direct enactment. The genera] purpose of the statute is that of releasing the body from imprisonment, where the debtor has no property, and has been guilty of no fraud. The whole course of recent legislation has been to facilitate the discharge of poor debtors entitled to take the oath; and this is particularly true as to the reduction of the period of time during which the debtor may be confined, before he is allowed to take the oath.

It is said, however, on the part of the plaintiff, that the entire benefit of the provisions of the statute which denies a discharge to fraudulent debtors, and gives to the creditors a right of appeal on the question of fraud, cannot be attained without the detention of the body of the debtor in imprisonment, or, if he be at large, under a bond conditioned for his surrender. This is true; and to some extent, the benefits of an appeal may be lost by permitting the discharge of the debtor before the hearing on the appeal. But it is to be remembered that he is only to be thus set at liberty, after a hearing and adjudication in his favor by two magistrates of the county. Again; without the present detention of the body of the debtor, the creditor might, if he sustained his case, upon the hearing of the appeal, in the court of common pleas, derive a substantial benefit in the reversal of the judgment of the magistrates, as he thereby acquires the right to make a subsequent arrest of the body of the debtor, and the debtor is made subject to punishment for the fraud, if duly convicted thereof in the court of common pleas.

It must be conceded, nevertheless, that without the detention of the body of the debtor to abide the final judgment on the question of fraud, the creditor has not, to the fullest extent, the benefits of an appeal. But, on the other hand, we are to look at the consequences of a construction of the statute, which wordd give it the effect contended for by the plaintiff; and if we find such construction attended with still greater objections, and occasioning an extended imprisonment of the debtor, continuing, it may be, for years, we are not to disregard such considerations, when inquiring into the probable

*453design of the legislature in making the provision for an appeal. The ground assumed by the plaintiff is, that upon an appeal being taken by him, the magistrates cannot administer the oath to the debtor, or properly file the certificate of such oath. What is the consequence of this doctrine ? The practical effect would be, that instead of that prompt discharge which the policy of our legislature clearly indicates, a procrastina tion for a very extended period is placed in the power of the creditor. Every creditor may allege fraudulent acts to have been committed by his debtor, and, having made this allegation, he may exercise his right of appeal, although he produced not a tittle of evidence before the magistrates, to sustain his charge; and thus the debtor, however honest and however proper a subject for the oath and a certificate entitling him to discharge from imprisonment, must be delayed of his discharge, and, if unable to give bonds for the prison limits, must be confined in close prison until the convenient time arrives for a hearing in the court of common pleas, and even beyond this, as the case may be carried to the supreme judicial court on exceptions taken to the ruling of the court of common pleas in matter of law. Thus years may elapse before the time arrives for taking the oath, and obtaining the discharge of his body from imprisonment. We cannot suppose that the legislature intended to introduce such a change in the system of imprisonment of poor debtors, and one so much at variance with the general course of legislation on this subject. We have come, therefore, to the opinion, that it is the duty of the justices convened on the petition of a poor debtor seeking to take the oath, when specifications of fraud are filed by the creditor, to pass upon such allegations of fraud, and, if they find them unsupported by proof, to declare their judgment to that effect, by administering the oath to the debtor and filing the proper certificate, although an appeal be taken by the creditor; and that upon such proceedings being had, the debtor may properly be discharged from imprisonment; and that if he is at large on bail when the oath is taken, his bail will be thereby discharged from their liability. Declaration adjudged had.