The opinion of the Court was by
Shepley J.The suit of the plaintiff against Jackson was founded upon a contract; and in such cases it is provided by St. c. 195, that “ no person shall be arrested or imprisoned on mesne process ” except “ when he is about to depart and establish his residence beyond the limits of this state with property or means exceeding the amount required for his own immediate support.” And the oath of the creditor, his agent, or attorney, is required to be certified on such process in proof of the facts to authorize the arrest. The affidavit in this case states “ that the debtor within named is about to change his residence and abscond beyond the limits of the State.” There is a material difference between a change of residence, and the establishment of a residence without the limits of the State. The former may be temporary and within the State, the latter requires, that it should be permanent and without the State. To allege that he had absconded beyond the limits of the State, would tend, rather to disprove than to prove, that he was about to establish a residence. The facts stated in the affidavit might be true, and yet the debtor might not be about to establish his residence beyond the limits of the State. If a strict compliance were not required, it would be easy to evade the provisions of the statute and to make use of process to arrest in many cases, for which no provision was made. It was decided in Whiting v. Trafton, 16 Maine R. 398, that, when the arrest was unauthorized, no action could be maintained against the sheriff for neglecting to take sufficient bail.
Nonsuit confirmed.