*226The opinion of the court was delivered by
Red field, J.This action is trespass for alleged wrongs to the plaintiff’s person and property, with a count in case for fraudulently procuring the District Court of the United States to adjudge him a bankrupt, and thereby procuring his property to be seized, and his person arrested and committed to jail. The facts come to us on the referees’ report, and questions of law arising therefrom are submitted.
The plaintiff claims that defendant is liable as for a malicious prosecution, in procuring the plaintiff to be adjudged a bankrupt, and the proceedings thereon resulting in the seizure of his property, and the arrest and imprisonment of his body. The report states that the plaintiff was indebted to the defendant, and that he had sold and conveyed his property “for the purpose of placing it beyond the reach of his creditors, especially the defendant,” and that “ the defendant was thereby fully warranted in believing that the plaintiff had committed an act of bankruptcy within the meaning of the bankrupt laws of the United States.” There can be no good reason, then, to question the good faith of the defendant or the validity of the proceedings resulting in the adjudication that plaintiff was a bankrupt under the law of Congress.
The plaintiff insists that the warrant from the District Court for the arrest of the plaintiff was void, and his arrest and imprisonment a trespass. The defendant filed in the District Court an affidavit, stating, among other things, that he “ fears that said Carleton will, upon service of the order to show cause upon said bankrupt petition, immediately leave the district, and put himself beyond the reach of this court.” The report also states that defendant procured said warrant to be issued as aforesaid, “ by making and filing his said petition and further, “ that in the manner of service of said warrant, there was an abuse of process in that the plaintiff was so arrested and committed to jail with undue haste, without giving plaintiff time to communicate with his friends to procure bail, and was committed to jail, and there kept, and subjected to ignominous treatment until the next morning,” &c. If the warrant was legal, and the defendant not answerable for putting the proceedings in motion maliciously and *227without probable cause, he could not be liable for any wrong of the officers of the law in the “ manner of service,” for he had no control of that matter. An officer may so abuse process put into his bands for service, that the law would take from him its protection ; but he cannot shuffle the consequences of his wrongs upon an innocent party.
The bankrupt law provides that “ if it shall appear that there is probable cause for believing that the debtor is about to leave the district, or to remove or conceal his goods and chattels, or his evidences of property, or to make any fraudulent conveyance or disposition thereof, the court may serve a warrant,” &c. Sec. 5024. It will be seen that the warrant may issue if it shall appear that there is probable cause for believing either of several facts named in the statute. The petition stated that the plaintiff had conveyed away his property, and obtained money and promissory notes therefor, and had given out in speeches that said money and notes are beyond the reach of his creditors, and that he ‘•'■fears that the plaintiff will, on the service of the notice to show cause, immediately leave the district.” The warrant recited all the fraudulent acts named in the petition, and stated that there was reason to believe that said bankrupt was about to leave State.-
The court is authorized to issue a warrant for arrest, “ if it shall appear that there is probable cause for believing,” &c. To whom shall it appear ? Obviously to the court. The law does not require the creditor to file his affidavit, though such is, doubtless, the general practice. The court acts with or without evidence ; and the fact that the court issued the warrant is an adjudication that “ it appears ” that there is “ probable cause to believe.” That court is not one of inferior and limited jurisdiction, but of genex-al and, upon this subject, exclusive jurisdiction, and its judgments cannot be collaterally impeached.
It is a well-settled rule of law, that where the court had no jurisdiction of the process, it is nugatory and void, and all persons acting under it are without protection. Such are the cases arising under our and kindred statutes, exempting the person of debtors from arrest in suits upon contract. The exemption is the *228general law, but a proviso allows the arrest of a class of persons, under certain prescribed conditions which are conditions precedent. If process issues against one not of the class named, or without compliance with the prescribed condition, it issues without warrant of law, and the court have no jurisdiction of the process. Aiken v. Richardson, 15 Vt. 500. The case of Grumon v. Raymond, 1 Conn. 39, is a well-reasoned case by Reeve, C. J. That was a general search-warrant without the required affidavit, and the court say : “ It is no uncommon thing, where there is a court of limited jurisdiction, that their jurisdiction depends upon the existence of certain things ; and everything done by the court where these are wanting, is coram non judice ; and the judge and officer are, in such case, liable in.trespass to the person arrested,” for the “ court had no jurisdiction over such a process.” The case of Brackett v. Eastman, 17 Wend. 32, where a person was arrested, not of the class named in the proviso to the exemption statute, is of like import. The court held that no such warrant could bylaw issue ; and being without warrant of law, was void. The case of Smith v. Bouchier, 2 Stra. 993, which Reeve, C. J., calls “ a notable case,” is of the same kind. The Vice Chancellor of Oxford had, by local custom, authority of law to issue a capias, on affidavit of the plaintiff that he believed that the defendant will not appear, but run away. The affidavit in that case was, that he suspected, instead of believed ; and the court held that the filing of the prescribed affidavit was a condition precedent to the issuing of the capias, and that the Vice Chancellor had no legal authority to issue the warrant, and therefore had no jurisdiction of the process, and that all acts done under it were trespasses. But in this case no affidavit is prescribed nor required, but the court may issue the warrant if it appears to the court that there is probable cause for believing, &c. ; and having done so, the act is legal, though there may have been error in judgment.
II. Was this warrant and the arrest procured by the defendant, without probable cause and with malice ? The defendant states in his petition, which is sworn to, that he “fears that said Carleton will, upon the service of the order to show cause, imme*229diately leave the district, and put himself beyond the reach of this court.” And the referees have found that at the time the same was made and filed, the defendant did not have any good reason to believe or “ fear ” that plaintiff would “ leave the district.” The plaintiff insists that the legal intendment from the facts thus stated is, that defendant acted without probable cause, and with malice. Waiving the inquiry whether the want “ of any good reason to believe or fear,” is the legal equivalent of the terms, “ without probable cause,” we find no statement in the record that the defendant, in what he did, was instigated by malice ; and it is well-settled law, especially in this State, that in an action for malicious prosecution, the plaintiff cannot recover without proof of both the want of probable cause and malice. That matter has been quite recently before this court in the case of Driggs v. Burton, 44 Vt. 145, and the authorities thoroughly canvassed. Wheeler, J., in that case, after carefully collating the authorities, thus states the rule of law: “ Want of probable cause and malice are each essential to the' cause of action, and each must be proved, and proof of neither, as a matter of law, will supply proof of the other.”
Evidence of the want of probable cause may be, and often is, strong evidence of malice; still, malice must, as an essential, substantive fact, be found. “ The question of malice in the defendant’s mind in doing the act, is a distinct issue in the action.” Red field, C. J., in Barron v. Mason, 31 Vt. 202; and Holt, C. J., is reported to have said in 10 Mod. 208, that the “ action ought not to be maintained without rank and express malice and iniquity.” Although the common-law rule, as expressed by Lord Holt-, has been somewhat modified, still, dishonesty and had faith must be established as the groundwork of recovery in this class of actions. The case of Granger v. Hill, 33 E. C. L. 328, decides that a capias used as a threat, to compel a person to surrender the register of his boat, which was entirely beyond the scope of the process, was an illegal act. We have been referred to Sonnehorn v. Stuart & Co. 2 Wood, C. C. 599. In that case the defendants, pretending to be creditors, procured the plaintiff to be declared a bankrupt, and his property seized and business de*230stroyed. It turned out that they were not creditors of the plaintiff, and had no right- to proceed against the plaintiff in the bankrupt court, and all their acts were wrongful, and the court held that the defendants must respond for all the actual damage their acts and proceedings had caused the plaintiff. This rule of law is, probably, well founded as applied to that case. Justice Bradley, sitting as Circuit Judge, in his charge to the jury, says: “ A want of probable cause is evidence of malice.” To this we entirely accede ; but when he adds — “ sufficient to sustain the action,” if he means, as a rule of law, that in actions for malicious prosecution the “ sufficiency ” of evidence to prove malice is to be taken from the jury and determined by the court, his dictum is directly opposed to repeated adjudications in this state, and the well-settled rule in the courts of England. See Barron v. Mason and Driggs v. Burton, supra. The plaintiff claims that the defendant has the burden of proof upon him, not only to show a legal process, but that there was a probable cause for its issue.
In an action requiring, as Lord Holt insists, “ proof of express malice and iniquity,” it would seem a strange rule in either moral or legal ethics, that the accused, must take the burden of the negative, and disprove the charge. We are cited to the case of Cooper v. Wakley, 3 C. & P. 470. That was an action for libel. The defendant pleaded only the truth of the words published, and thereby admitted the publication. The court held that defendant took the initiative, and the burden of proving his plea, as he had admitted on the record the publication of the libel. This is now a well-settled rule of practice, that has no analogy to the plaintiff’s claim.
The defendant stated in his petition that he “feared ” that plaintiff would escape from the State when he was made aware of the proceedings against him in bankruptcy; and he detailed certain facts, in which his apprehensions may have been based. The defendant did not act dishonestly and in bad faith, unless he consciously falsified in his statement; he may have “feared,” when the referees, in now reviewing the case, see no good reason for it. The timid passenger often “ fears ” when the experienced mariner *231sees no good reason for it. This case does not show that the defendant did not “ fear” what he stated in his petition. If the adjudication of the court was not conclusive in this matter, there are not sufficient facts reported on which plaintiff can stand in this suit for malicious prosecution.
The judgment of the County Court is reversed, and judgment for the plaintiff for the smaller sum.
As to costs, the defendant, having prevailed on his exceptions, will recover cost as a matter of right in this court; and he is allowed costs that have accrued in litigating the item on which he has prevailed, and the fees of the referees will be apportioned by the clerk in the same ratio.