The opinion of the court was delivered by
Ross, J,Were the facts set up in the defendant’s notice and proved by him on the trial, a justification of the trespass and imprisonment complained of ? This is the only question raised by the exceptions. By § 75, ch. 33 of the Gen. Sts., it is enacted : “ No female shall be arrested or imprisoned by virtue of any mesne process which shall issue in any action founded on contract, nor by virtue of any execution which shall issue on a judgment recovered in any such action.” This language is very comprehensive, and covers every possible action founded on a contract, whether at law or in equity. From the bill in chancery, the petition for the writ of ne exeat, and from the writ itself, it is apparent that the sole foundation for issuing the writ, was an alleged contract by which the plaintiff agreed, in consideration that the defendant and his wife would not oppose the probate and establishment of a certain instrument as the last will and testament of Andrew R. Adams, deceased, to pay into the estate of Andrew R. Adams five hundred dollars, which sum, by the provisions of the will, would enure to the benefit of the wife of the defendant. The writ of ne exeat, as at present used in this country, is a mesne process, issuing from the court of chancery, to hold a party to *713equitable bail, that he may not depart from the realm, or the jurisdiction of the court, but be present with his body, to answer any decree which the court of chancery may make in the case against him, and commanding the arrest and imprisonment of the defendant, if he or she fails to furnish such bail. It can be properly issued by the court, only in those cases where the person of the defendant can be touched by the decree, either by attachment or on execution. 3 Bl. Com. 213 ; 3 Dan. Ch. Pr. 1801; Seymour v. Hazard, 1 Johns. Ch. 1. On the petition of the plaintiff to this court for a writ of habeas corpus, the writ of ne exeat, relied upon by the defendant as a justification for the arrest and imprisonment of the plaintiff, was held to have been issued without authority, and against the statute heretofore named, and therefore void. It would seem to follow, logically, that a writ issued without authority, and for that reason void, could not be a justification to a plaintiff who procured and used the writ to make an arrest and imprisonment. It is now well settled, since the passage of the act of 1839, exempting males from arrest in actions founded upon contract, unless a proper affidavit is filed with the authority issuing the writ, that if a plaintiff procures and uses a capias against the body of a male citizen, in an action founded on contract, without having filed the required affidavit, or after having filed an insufficient affidavit, he is guilty of trespass for false imprisonment. Aiken v. Richardson, 15 Vt. 500 ; Admr. of Whitcomb v. Cook, 39 Vt. 585. In Aiken v. Richardson, the action was scire facias against the defendant as bail on two writs of attachment which had issued against the body of one Ithiel S. Richardson subsequently to the passage of the act of 1839, on an affidavit which did not fully comply with the requirements of the statute. If the writs were merely voidable because of the defect in the affidavit, the defendant, who was bail on the writs, could-not avail himself of the defect in the affidavit, to exonerate himself from his liability as such bail. If, however, the writs, so far as they ran against the body of Ithiel S. Richardson, were void because of the defect in the affidavit, the defendant would be discharged from his liability as such bail. The court held the writs, so .far as they authorized the arrest of the body of Ithiel S. Rich*714ardson, void, and that the act of arresting him on said writs, was an act of trespass. Judge Royce, after stating the substance of the statute, says : “ 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 is 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 argument of Adkins v. Brewer, 3 Cow. 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.” The learned judge then proceeds to cite several cases which support this doctrine, among which is Grumon v. Raymond & Betts, 1 Conn. 40, in which the authorities are reviewed at length, and concludes : “ In accordance with these and similar authorities, we are disposed to regal'd the arrests of lthiel S. Richardson as illegal acts, from which the plaintiff can claim no benefit.” By “ jurisdiction of the process,” must be meant, jurisdiction of it in the particular case or class of cases under discussion. The magistrate issuing the writs on which lthiel Í5. Richardson was arrested, had jurisdiction to issue writs of capias, but not to issue them in the particular cases in which he did isspe them. It is claimed by the defendant that, inasmuch as the court of chancery has general jurisdiction to issue writs n,e exeat, and on his application the court did grant the writ on which he arrested the plaintiff, ho ought to be protected. But we are unable to distinguish this case in principle, from the case of Aiken v. Richardson, under the statute of 1839. In regard to females there were no excepted cases, as there were in regard to males, in which any court, however extensive its jurisdiction, could, by the exercise of discretion, or upon, the filing of an affidavit in an action founded upon a contract, lawfully cause a female to be arrested and imprisoned. If the court of chancery had had jurisdiction of the process in this class of cases, but through an error of judgment, erroneously made use of it in the particular case, *715the process would, doubtless, protect the party who procured and used it. We are unable to understand how the fact that the court of chancery has more extensive .)urisdiction than a justice of the peace, can give any greater vitality or protective power to a party using it, to a process issued in a case in which the court has no jui’isdiction of the process, than the same process would have had if iosued by a justice of the peace under like circumstances. It is not the extent of the jurisdiction of the court, which gives to the process power to protect the party using it, but the fact that the court, having jurisdiction of the parties and the subject-matter, has also jurisdiction of the process. As the court of chancery had no jurisdiction of the process which it issued against the plaintiff, it cannot protect the defendant in causing the plaintiff’s arrest and imprisonment.
Judgment affirmed.