The opinion of the court was delivered by
Royce, J.The affidavit offered in evidence by the plaintiff, was correctly excluded. It neither proved the fact put in issue by the plea and replication, nor was it such as the statute expressly required. This is evident, unless it can be maintained that, within the meaning of the recent statute, being about to leave the state, and, to abscond from it, are to be regarded as equivalent or synonymous expressions. But it is clear that the latter expression should be applied in its popular and correct sense, — that which it has uniformly received under other statutes, especially the trustee act of 1797. In the construction of that act, an open and undisguised departure or removal from the state, was never allowed to have *503the effect of absconding from it, so as to authorize a resort , to the trustee process.
But the plaintiff moved for judgment non obstante veredicto; and this leads to a different and more important view of the case. Such a motion is founded solely upon what appears to the court upon the record; as where the cause of action is confessed by the defendant’s plea, and a defence, radically defective, is set up. Willes’ R. 360; 1 Sw. Dig. 779; 6 Cowen, 225. The record here consisted of the declaration, the pleadings, and the verdict; the pleadings alleging, on the part of the plaintiff, that an affidavit of the requisite description was filed, but the verdict finding the contrary. It then stood, that the writs issued upon contracts made after the first day of January, 1839, without an affidavit, as required by the statute. The first inquiry, then, is, whether the writs, so far as they professed to authorize an arrest of the debtor, were void, or merely voidable. If they were void for that purpose, the arrests made under them may, as against the plaintiff at least, be treated as mere trespasses. And hence, for the purposes of this action, the defendant might well say, that, by endorsing the writs as bail, he acquired no legal control of his supposed principal, nor any legal power to surrender him. And this would furnish an ample defence to the present action. But if they were only irregular and voidable, then, as no measures were taken to avoid them, or to vacate the arrests, the defendant did acquire the usual rights of bail. In support of the latter proposition, the case has been likened to those where the party was entitled to a personal exemption from arrest. But we think the question should rather depend upon the intrinsic validity of the process in this instance. By the 63d section, chapter 28th of the Revised Statutes, the arrest or imprisonment of our own resident citizens, for contracts made after the first day of January, 1839, is, in general terms, prohibited. But this is qualified by a proviso, that a writ founded upon such a contract, may issue, as an attachment, against the body of the debtor, upon the filing of the affidavit there prescribed. There is, then, no longer any general authority in magistrates, or clerks, to issue writs upon such contracts, in the form of a capias against the person. The right only exists sub modo in a particular class of cases, and *504is then derived from the proviso, in opposition to the enacting clause. It would, therefore, seem to result, that, without a compliance with the proviso, there can be no competent jurisdiction to issue such a writ. In this view of the case it becomes analogous, not only to the case cited in the argument, of Adkins v. Brewer, 3 Cowen, 206, but to many others, which have proceeded on the ground, that jurisdiction of the process was equally essential, as jurisdiction of the parties, and the subject-matter. In Morgan v. Hughes, 2 T. R. 225, it was decided that trespass might be maintained against a justice of the peace, who had issued a criminal warrant to apprehend the plain tiff, without a previous complaint oh oath. In Barker v. Braham & Norwood, 3 Wils. R. 368, trespass and false imprisonment was held to lie against the creditor and her attorney, for having prayed out, and caused to be enforced, a writ of execution against an administratrix, as for her own debt, without any suggestion upon the record of a devastavit. The case of Smith v. Bauchier et al., 2 Str. R. 993, is yet more directly in point. By the local custom, a debtor might be arrested upon mesne process, provided the creditor first made oath, that he believed the debtor would not appear to the action, but would run away. In that case, the creditor made oath that he suspected the the debtor would not appear, &c. And it was adjudged that the warrant to arrest was void, and that the plaintiff and magistrate were both liable in trespass and false imprisonment. To the same effect is the case of Grumon v. Raymond & Betts, 1 Conn. R. 40. In accordance with these and similar authorities, we are disposed to regard the arrests of Ithiel S. Richardson as illegal acts, from which the plaintiff can claim no benefit.
There is, however, another ground upon which the defence may be sustained. It will be perceived, upon inspection of the statute, that the proviso before mentioned applies, in terms, only to the original writ, or mesne process ; for that alone can properly be styled “ a writ on a contract, made after the first day of January,” &c. — which the plaintiff is to pray out, and which is to issue as “ a writ of attachment against the body of the defendant.” And hence it is only by implication from this and other parts of the statute, that a writ of execution, in any case falling within the 63d sec-*505lion, can go against the body. When the original writ has properly issued, as a capias, under the proviso to that section, the execution is allowed to follow, in like form. This must have been intended by the legislature ; for otherwise, the right to arrest upon the first process would be but a vexatious and useless right.* But if the writ has not so issued, the execution must be governed by the general enactment of the section, since there is, then, no ground for implying an exception. Now if we admit that the acquiescence of the debtor so far validated his arrest upon the plaintiff’s writs, as to give to this defendant, for the time being, a rightful custody of his person, and the power to surrender him, it does not follow that the present action should be supported. Courts are at liberty to consider the effect of surrendering the principa!; and if they perceive that it could be of no benefit to the creditor, they will not require it, but release the bail. This happens when the surrender cannot legally be followed by further proceedings against the body of the principal. Trinder v. Shirley, 1 Doug. 45; Postel v. Williams, 7 J. R. 517; Kane v. Ingraham, 2 Johns. Ca. 403; Seaman v. Drake, 1 Caines’ R. 9; Olcott v. Lilly, 4 Johns. R. 407; 1 Johns. Ca. 28; Laflin v. Fowler, 18 Johns. R. 335; Dunham v. Macomber, 5 Wend. 113; Russell v. Champion, 9 Wend. 462; Champion v. Noyes, 2 Mass. R. 481; Harrington v. Dennie, 13 do. 93. It is true, that, according to the English and New York practice, the bail have to seek relief in such cases, by motion. But in Massachusetts and this state, any sufficient ground for discharging the bail is considered a proper matter to be pleaded. 2 and 13 Mass. R. above cited; Van Ness v. Fairchild, 1 D. Chip. 153; Mattocks v. Judson, 9 Vt. R. 343.
The application of what has been said to the case before the court is sufficiently obvious. We are not to infer, from any thing appearing in the case, that the debtor has ceased to be a resident citizen of this state; nor can his aequies*506cence in the unauthorized form and service of the original writs, be held to legalize a mode of enforcing the judgments against him which the statute forbids. The plaintiff could, therefore, have derived no advantage from the surrender of the debtor, since he was not entitled to charge him in execution. Judgment of county court affirmed.
This intention, was subsequently expressed. See act of 1843, (Para, laws, No. 9. p. 8,) in which the word “ writ,” in the 63 Sec. Ch. 28 Rev. Stat. is declared to extend to, and include, writs of execution. . — Reporter.