¶1The opinion of the court was delivered by
¶2This is an audita querela, brought to set aside an execution in the defendant’s favor against the plaintiffs, issued on a judgment of Windsor county court, March Term, 1845. The objection to the execution is, that it wrongfully issued against the bodies of the complainants; and the declaration states, that it was placed in the hands of an officer, and that the plaintiffs were in danger of being arrested and committed to jail thereon. To this declaration there is a demurrer.
¶3It appears, that in 1843 the complainants became bail for one Johnson, on a justice’s writ in favor of the defendant, upon which the body of Johnson was arrested. Judgment against Johnson was obtained, execution issued, a non est return made thereon, and a scire facias issued against the complainants, returnable before the justice who rendered the original judgment, an appeal to the county court was taken, and final judgment as above stated. The only question is, whether the execution was properly issued against the bodies of the complainants; and we are all clearly of opinion it was not.
¶4The act of becoming bail for a defendant, by indorsing the name on the back of a writ, in the manner required by our statute, is as truly a contract between the bail and the creditor, as is the bond taken in England and most of the states by the sheriff, on arresting the body on mesne process. In the latter case it is in form a contract between the bail and the sheriff, but may be assigned, on forfeiture, to the creditor. It is as perfect a contract, in substance, as *387the act of entering into a recognizance, on an appeal, or review, of an action; or as is a jail bond, entered into after commitment, on mesne or final process; and as such falls within section sixty three of chapter twenty eight of the Revised Statutes, — which provides that no person, who is a resident citizen of this state, shall be arrested or imprisoned by virtue of any mesne process, issued in any action founded on contract, express or implied, entered into after January 1, 1839; nor by virtue of an execution issued upon any judgment founded upon such contract, unless in certain cases, upon affidavit that the party is about to abscond, &c.
¶5It is true, the contract is of a peculiar nature, is conditional, and a remedy upon it is to be enforced by scire facias, as an incident to the original judgment; but in form and in substance it is as much a contract, as a blank indorsement of a note. The judgment, being rendered upon this contract, is directly within the words of the statute.
¶6It is a stronger case than that of Sawyer et al. v. Vilas, 19 Vt. 43, where a judgment rendered upon breach of a jail bond, subsequent to January 1, 1839, was regarded as a contract within the statute; and debt being brought uponsuch judgment, and judgment rendered thereon for the plaintiff, it was held, that the execution issued upon this last judgment, which run against the bodies, should be set aside on audita querela.
¶7There is assuredly less reason for holding that a judgment, whether founded upon a tort, or contract, being a proceeding in invitum, and depending altogether for its validity upon the judicial sanction given to it by a court of justice, is a contract; than that the voluntary indorsement of one’s name on the back of a writ, which, by virtue of our statute, is made to import a contract on the part of the bail, upon certain conditions and contingencies, to pay to the creditor and plaintiff in the suit the amount in damages and costs, which the judgment therein may show to be his due, should be so considered.
¶8The result is, the judgment of the county court is affirmed,