| Me. | May 15, 1828
delivered the opinion of the Court.
By the first section of the act, for the relief of poor debtors, Stai, 1822, ck. 209, it is provided, “ that no person shall be liable to be arrested or committed to prison on any execution issued upon any judgment founded on contract, or on any execution issued upon any judgment founded on a former judgment rendered in any suit upon contract, unless the debt or damage in the original judgment, shall exceed the sum of five dollars.” The declaration in the writ, upon which the body oí the present plaintiff was arrested and committed to prison, was upon a note of hand, dated .August 25ih, 1826, for the sum of throe dollars ; the plaintiff therefore, in that action, knew that the judgment he could recover, as debt or damage, must necessarily be under five dollars; and this is also manifest from tile writ itself.
The first question presented is, was the arrest and imprisonment warranted by law? it may be important to inquire for what purpose the body of a debtor is arrested upon mesne process. In England, from whence our laws and forms of judicial proceedings had their origin, the object of the arrest is to compel his appearance in court at the return of the writ; for without his appearance, judgment could not be rendered against him. In this State, as judgments may in all cases, after the service of the writ, be rendered upon his default, there is no occasion for process to compel his appearance merely. The object of the arrest and imprisonment of his body, or admitting him to bail on mesne process here, is, that the creditor muy coerce payment, by taking his body in execution. This is the purpose of the arrest; and unless this can be attained, it is unreasonable and unnecessary. It was manifestly the intention of the legislature to exempt the debtor’s body from the power and control of his creditor, for debts of this small amount. If liable for arrest for such debts upon mesne process, it cannot be contended that he is not entitled to
It is contended that the arrest is justified by the statute prescribing the forms of writs. The statute prescribes the form of a capias in original writs ; but it does not determine in what cases it may be lawfully used. It must be intended to mean that in ail cases, where the body of the debtor may be taken to satisfy the execution, it may first be taken on mesne process, for the security of the creditor. The body of a debtor in execution, who has been liberated from prison, upon taking what is called the poor debtor’s oath, is exempted from being again taken in execution upon the same judgment. And if this judgment be sued, it has been clearly held that he cannot be taken upon mesne process thereon. In 1. Pick. 500, the court say, “ if an arrest on. mesne process were permitted, the debtor might be obliged to go to jail, which would, be virtually a repeal of the statute.” And it would be equally so in the case before us. We "are well satisfied that the arrest of the plaintiff, at the suit of the defendant, was not warranted by law. Whether an arrest upon mesne process,, where the judgment subsequently rendered was less than five dollars, might not be justified, if it could be made to appear that the plaintiff had á reasonable expectation of recovering more, is a question, we are not now called upon to decide.
The second question arising in this cause is, whether trespass is the proper remedy. We are of opinion that it is.' It is the proper remedy for executing legal process in an unlawful manner. It lies, if one arrest another not liable to arrest. In Parsons v. Lloyd, 3. Wils. 341, the plaintiff had been arrested and imprisoned on a capias irregularly issued, at the suit of the defendant. Trespass was sustained against him, notwithstanding it was insisted that it should have