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from custody and entitled to the benefit of the said act forthwith, as to the several debts and sums of money due or claimed to be due on the 22nd day of May, A.D. 1844, being the time of making the order vesting the estate and effects of the now plaintiff pursuant to the said statute in that behalf, from the now plaintiff to the several persons named in the schedule as creditors, or claiming to be creditors for the same respectively, or for which such persons gave credit to the now plaintiff before the said time of making such vesting order, and which were not then payable; as to the future claims of any surety or bail for the now plaintiff named in the said schedule, so made as aforesaid, as a contingent creditor of the now plaintiff; and as to the claims of all other persons not then known to the now plaintiff, who might be indorsees or holders of any negotiable security set forth in the said schedule so sworn as aforesaid. And the plaintiff further says, that she was, to wit, on, &c., and before the said time when, &c., by virtue of the said order of adjudication of the said Court, so made as aforesaid, discharged out of the said custody in Ireland aforesaid. And the plaintiff further saith, that the said G. H., so being such sheriff as in the said plea mentioned, took and arrested the now plaintiff at the said time when, &c., as in the said plea mentioned, at the request and by the direction of the now defendant, after she the now plaintiff had so as aforesaid become entitled to the benefit of the said act, by the said adjudication with respect to the said debt, damages, costs, and charges, in the said plea mentioned, and with respect to the said judgment for the same debt, damages, costs, and charges, in the said Court of our said Lady the Queen, &c. And the plaintiff further says, that afterwards and during the time that she the now plaintiff was so as aforesaid a prisoner in the custody of the said G. H., at the suit of the now defendant, to wit, on, &c., by a certain order then made in the said action at the suit of the now defendant against the now plaintiff, by the Honourable Mr. Justice Maule, then being

a justice of the Court of our Lady the Queen, before the justices of the Bench at Westminster, and entitled to act as a Judge of the said Court of our Lady the Queen, before the Queen herself, under and by virtue of the statute in such case made and provided, being the Court out of which the said writ of capias ad satisfaciendum in the said plea mentioned issued, it was ordered, upon hearing the attorneys or agents on the part of the now defendant and the now plaintiff, and upon reading the affidavit of, &c., that the now plaintiff should be discharged out of the custody of the said sheriff, as to the said action, she having previously to her arrest been discharged under the provisions of the said first mentioned act of Parliament, as to the judgment debt and costs in the said action. And the plaintiff further says, that afterwards and before the commencement of this suit, to wit, &c., the plaintiff was duly discharged from the said custody by virtue of the said last mentioned order. Verification.

General demurrer and joinder.

E. V. Williams, in support of the demurrer. The point attempted to be raised by this demurrer, is, whether to a justification in trespass under a ca. sa. out of one of the Courts at Westminster, it is a good replication to say, that the party was discharged from the judgment debt by the Court for the relief of insolvent debtors in Ireland. It is conceived, however, that it will not be necessary to argue that question, for even supposing that the party had taken the benefit of the English Insolvent Act, a ca. sa., which was warranted by the judgment, would be a sufficient justification to all parties acting under it. While the writ is in force, the defendant cannot be liable in trespass, though if he had maliciously sued it out, he might be liable in case. Tarlton v. Fisher (a), decided that a sheriff is not liable to an action for false imprisonment, for arresting a

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(a) 2 Doug. 671.

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certificated bankrupt, a peer, or an insolvent debtor. [Pollock, C. B.-There was a case before us in last Term, Yearsley v. Heane and Another (a), in which the question arose, whether upon the construction of the 5 & 6 Vict. c. 116, an insolvent who had obtained his discharge from arrest under that act could bring an action against the party subsequently arresting him. Parke, B.-Under the old law the remedy would have been by auditâ querelâ. In this case the Judge only directs the party to be discharged, he does not set aside the writ as irregular.]

The Court then called on

Martin, contrà. The question turns upon the meaning of the Irish Insolvent Act, 3 & 4 Vict. c. 107. The 81st section enacts, "that no person who shall have so become entitled to the benefit of this act by any such adjudication as aforesaid shall at any time thereafter be imprisoned by reason of the judgment so as aforesaid entered up against him or her according to this act, unless by the special order of the said Court, as herein-before mentioned, or for or by reason of any debt or sum of money or costs with respect to which such person shall have become so entitled, or for or by reason of any judgment, decree, or order for payment of the same; but that upon every arrest or detainer in prison upon any such judgment so entered up as aforesaid, or for or by reason of any such debt or sum of money or costs, or judgment, decree, or order for payment of the same, it shall be lawful for any Judge of the Court from which any writ or process shall have issued in respect thereof, and such Judge is hereby required, upon proof made to his satisfaction that the cause of such arrest or detainer is such as herein-before mentioned, to release such prisoner from custody, unless it shall appear to such Judge, upon inquiry, that such adjudication as aforesaid was made without due notice, where notice is by this act required, being given to

(a) See note A. at the end of this case.

or acknowledged by the plaintiff in such writ or process, or being by him dispensed with by the acceptance of a dividend under this act, or otherwise; and at the same time, if such Judge shall in his discretion think fit, it shall be lawful for him to order such plaintiff, or any person or persons suing out such writ or process, to pay such prisoner the costs which he shall have incurred on such occasion, or so much thereof as to such Judge shall seem just and reasonable, such prisoner, in case of his or her having been arrested upon mesne process by special order as hereinbefore mentioned, causing a common appearance to be

entered for him in such action or suit." The 82nd section enacts, "that after any person shall have become entitled to the benefit of this act by any such adjudication as aforesaid no writ of capias ad satisfaciendum, fieri facias, or other writ of execution against the body, goods, or chattels of such prisoner shall issue on any judgment obtained against such prisoner for any debt or sum of money with respect to which such person shall have so become entitled, nor in any action upon any new contract or security for payment thereof, except upon the judgment entered up against such prisoner according to this act, and by special order of the said Court obtained for that purpose as hereinbefore mentioned; and that if any suit or action shall be brought, or any scire facias be issued, against any such person, his heirs, executors, or administrators, for any such debt or sum of money, or upon any new contract or security for payment thereof, or upon any judgment obtained against or any statute or recognizance acknowledged by such person for the same, except as aforesaid, it shall be lawful for such person, his heirs, executors, or administrators, to plead generally that such person was duly discharged according to this act by the order of adjudication made in that behalf, and that such order remains in force, without pleading any other matter specially, whereto the plaintiff or plaintiffs shall or may reply generally, and deny the matters pleaded as aforesaid, or reply any other matter or

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thing which may shew the defendant or defendants not to be entitled to the benefit of this act, or that such person was not duly discharged according to the provisions thereof, in the same manner as the plaintiff or plaintiffs might have replied in case the defendant or defendants had pleaded this act, and a discharge by virtue thereof, specially." As the statute declares that "no writ of capias ad satisfaciendum shall issue," the act of issuing it in direct violation of the statute, is an illegal act, and the writ itself is void. This case is distinguishable from Whitworth v. Clifton (a), and Barker v. St. Quintin (b), inasmuch as a sheriff is bound to obey the order of the Court, and may therefore justify under a void writ, but it is different with respect to the plaintiff who sues out process at his peril. In Parsons v. Loyd (c), Gould, J., says, "If a man be unjustly imprisoned, it would be very strange indeed, if the law did not give him an action for false imprisonment." [Pollock, C. B.-That case, when examined, only comes to this, that a plaintiff who causes the defendant to be arrested under a void writ, which is the same as no writ at all, is liable in trespass.] There is no distinction between a void writ, and a writ prohibited by act of Parliament. Barker v. Braham (d), decided that trespass would lie against an attorney as well (as against his client) who sues out at the suit of the client an illegal writ of ca. sa.: there De Grey, C. J., says, "We are all of opinion that trespass vi et armis, well lies against both the defendants. It is certain that the plaintiff hath received great injury in her person and liberty, because she hath been imprisoned by and under colour of a capias ad satisfaciendum illegally taken out against her, which is the same thing as if such writ had never been taken out at all.” A party who sues out a writ in defiance of an act of Parliament, is in the same situation as if he had acted without a writ. [Parke, B.-Suppose the plaintiff wished