1847. NEWTON V. BOODLE. Volume IX. void?] A defendant's liability to costs is by stat. 23 H. 8. c. 15. s. 1., which gives, in case of a nonsuit, or verdict for the defendant, the same process to the defendant for his costs against the plaintiff as the plaintiff, if he had recovered, would have had against the defendant. The object was to make the remedies for each party co-extensive. But, if the plaintiffs had recovered in their action here, the husband alone would have had the fruits of the judgment. In Cassidy v. Steuart (a) the history of the writ of ca. sa. was much discussed; and the Court clearly held that it could issue only where there could be a capias ad respondendum. Formerly, neither writ lay except in cases vi et armis. In the decisions upon applications to discharge married women, the principle of the process itself has not been discussed. [Wightman J. In Finch v. Duddin (b) husband and wife recovered against husband and wife for battery of the female plaintiff by the female defendant: the latter alone was taken in execution; and the Court refused, on motion, to discharge her. Now suppose there son assault demesne had been pleaded, and the verdict had been for the defendants: could not the female plaintiff have been taken in execution? Or do you say that the law is not the same with respect to plaintiffs as with respect to defendants?] The wife here did not appear to be in fault. [Wightman J. referred to Chambers v. Donaldson (c).] The common law capias after judgment was a capias pro fine, that is, for the fine due to the king; Com. Dig. Execution, (B 1.), (B 2.): the plaintiff, when he failed in his suit, was amerced to the king pro falso clamore; 2 Tidd's Practice, 976. (9th ed.): the modern process for costs has been substituted for (b) 2 Str. 1237. (a) 2 M. & G. 437. 1847. NEWTON V. BOODLE. this, and was probably intended to go no farther. Now Queen's Bench. the plaintiff's wife here would not have been liable to a capias pro falso clamore. Thus, when a feme covert, against whom assize was brought jointly with her husband, on his making default, confessed the ouster and pleaded in bar, and the plea was found against her, still, being a feme covert, she was not imprisoned; 1 Rol. Abr. 220. tit. Amercement (C), pl. 5. [Patteson J. How is that distinguishable from a case of violence by the wife?] In an Anonymous (a) case in Cro. Car., baron and feme were sued in trespass for an assault and battery by the feme; and, on a verdict of Guilty, it was resolved that the quòd capiatur should be against the baron only. This last case is relied on by Blackstone in 3 Com. 414. it goes farther than is necessary for the plaintiff here; but it shews, at least, that the liability of a feme covert to be taken in execution was matter of doubt. And, wherever, in the old books, it is laid down that she shall be taken in execution, it will be found that she has been considered to be in some way personally in fault. [Coleridge J. In Cro. Car. you will find a case of Mayo v. Cogshill (b), where, in ejectione firme against baron and feme, the baron was found Not guilty, and the feme Guilty: and it was held that a judgment quòd capiantur against the two was right.] There is a somewhat similar case in 1 Rol. Abr. 221. tit. Amercement (D), pl. 9., where both pleaded Non est factum to a deed of the wife made before coverture, and it was found against them; and it was held that both should be imprisoned. But in each case the feme was personally implicated; as in Bro. Abr. tit. Imprison (a) Cro. Car. 513. (b) Cro. Car. 406. Volume IX. 1847. NEWTON v. BOODLE. ment, pl. 5., pl. 45. This distinction is illustrated by Beynon v. Jones (a), where the Court of Exchequer held that a feme covert should not be discharged out of execution on a judgment in an action commenced against her dum sola, though she had no separate property. There Cowling, contrà. The essence of the complaint is that the plaintiff's wife has been arrested without reasonable or probable cause. But judgment has been entered against the two: the ca. sa. conforms with the judgment: and the Court of Common Pleas has refused to set the ca. sa. aside; Newton v. Rowe (b). Tindal C. J. asked whether it would not have been error if a writ had issued against the present plaintiff only; and he said that the proper course, for disputing the legality of this writ, would be a writ of error. But, while it stands, it justifies all acting under it. Even if the writ had appeared, on the record, to be against a peer, this action would not lie, whatever ground might be afforded for a writ of error; Countess of Rutland's Case (c). The cases of the class including Cassidy v. Stewart (d) have no application: it was there decided, on motion, that a ca. sa. against a member of the House of Commons, issued during the time of privilege, was irregular; but the question in this action is whether the defendant is liable in an action for taking the plaintiff's wife under the writ, which had not been set aside. In Holiday v. Pitt (e) the defendant, under stat. 12 & 13 (a) 15 M. & W. 566. (c) 6 Rep. 52 b. ; S. C. Moore, 765. 10 Q. B. 411. 453, 454. (d) 2 M. & G. 437. See p. 439, note (b). (b) 7 M. & G. $29. See Gosset v. Howard, W. 3. c. 3. s. 2., was discharged on motion, in analogy The to the ancient writ of privilege. [Coleridge J. But, further, the writ is valid. It conforms with the judgment, as it ought to do; 10 Vin. Abr. 553. tit. Execution (Q), pl. 4; ib. 554. (R), pl. 2, 4, 5; ib. 555. (T), pl. 1, 2. These last indeed are cases where the feme is a defendant; but, where she is joined as plaintiff with - her husband, and they fail, the right of the defendant to costs must rest on the same ground as that of plaintiffs to damages. In Whiting v. Reynel (b) debt was brought against the Marshal for the escape of a feme covert who had been committed in execution upon a judgment recovered against her and her husband: and it was urged that only case lay for the damages, if any, the baron being "the sole and principal debtor:" but the Court held that debt or case lay at the election of the plaintiff, "because the feme was only committed to prison, and not the baron, and she is the sole debtor who is imprisoned:" but it was not suggested that the imprisonment was invalid. In Berriman v. Gilbert (c) the plaintiff recovered against baron and feme on the contract of the feme dum sola; and both were taken in execution: and the Court refused to discharge the feme. In Pitts v. Meller (d) the Court refused (in default of evidence of collusion) to discharge a wife, taken with her husband (a) 9 Bing. 412. 414. (b) Cro. Jac. 657. (d) 2 Str. 1167. Queen's Bench. 1847. NEWTON V. BOODLE. in execution of a judgment in trover against the two. Stat. plaintiffs, if they had succeeded. In Hoad v. Matthews (h), though there was a conditional order for the discharge, the arrest must have been considered legal, otherwise the discharge must have been granted of course. (a) 2 Str. 1237. (c) 3 Wils. 124. (e) 8 B. & C. 1. (h) 2 Dowl. P. C. 149. (b) 1 Wils. 149. (g) 15 M. & IV. 566 |