SMITH KIMBALL AND WIFE vs. J. MOLONY, 3 N.H. 376 (1826) - Opinion

Trespass for arresting and imprisoning the wife of Smith Kimball, on the 18th January, 1823, and detaining her in prison forty days.

The defendant pleaded in bar, that on the 14th January, 1823, he sued out a writ against the plaintiffs, as follows:

“ State of New-Hampshire.

u Strafford, ss.

} Seal. ⅜

,, m jr _ ___ fe To the sheriff of any county, &e.

“ Greeting.

“ We command you to attach the goods or estate of Smith < < Kimball, and Judith, wife of said Smith, &e., and for want “ thereof to take the bodies of the said Smith and Judith,-&c. <« to answer unto John Molony, &e. in a plea of the case, for “ that the said Smith and Judith, at said G. on the 4th April, “ 1821, by their promissory note of that date, by them sub- “ scribed, for value received, jointly and severally, promised “ the plaintiff, to pay him, or his order, $40, on demand with !í interest; yet, &e. To the damage, &c.”

That he delivered the said writ to Caleb Kimball, a deputy sheriff, who, by virtue thereof, arrested the plaintiffs, and committed them to prison, and made due return of the said writ, with his doings thereon.

To this plea the plaintiffs demurred; and the defendant joined in demurrer.

delivered the opinion of the court.

It is well settled, that whenever a judgment has been rendered against a husband, and wife, they may be both taken in execution. Moor 704, Bardolph vs. Perry and wife.—5 Binney 45.—Yelverton 106, note.—Cro. James 203, Hales vs. Whyte.—1 Ventris 51, Jackson vs. Gubree.—4 Mass. Rep. 659, Haines vs. Corliss.—3 Wilson 124.—2 Strange 1167, Pitts vs. Miller et ux.—1 Wilson 149.—4 East 521.

It was decided long since, that when a husband and wife were in prison, upon an execution, and the wife was suffered to escape, the sheriff was answerable for the whole debt; although the husband remained in prison. 1 RolWs Jib. 810.

In the case of Eastman vs. Thrasher and wife, Rockingham, February term, 1818, tfce action was debt upon a judgment recovered against Thrasher and his wife. The defendants pleaded in bar, that the plaintiff sued out execution on the said judgment and caused the wife to be arrested and detained in custody forty-eight, hours, when she was discharged with the consent of the plaintiff; and this was held, upon demurrer, to be a good bar.

With regard to the right of a wife, to be discharged, when arrested upon mesne process, in England, the authorities do not agree. It has sometimes been held, that when arrested with her husband, she is not entitled to be discharged. 1 Ventris 49.—1 Taunt. 254, Roberts vs. Mason and wife. Others have held, that she is, in all cases, entitled to be discharged, unless in cases, where she has practised a fraud in holding herself out as a single woman. Tidd’s prac. 173.—1 East 16, Pitt vs. Thompson.—6 D. & E. 451, Waters vs. Smith.—7 East 582.-4 B. * P. 54.—3 Brod. & Bing. 92.—5 D. & E. 194, Partridge vs. Clark.—2 Marshall 40, Prichard. vs Cowlan.—1 Levintz 216.—2 W. Bl. 720.—2 Wilson 124.

Ei, si is unnecessary to decide, in this case, what are the rights and privileges of married ladies, in this respect, among us; because admitting, that they are privileged from arrest, on mesne process, it is very dear, that trespass doss not lie for an arrest in shell a case. 2 W. Bl. 1085, Crossby vs. Shaw.—2 N. H. Rep. 469 & 294.—18 Johns. 52.—1 Salkeld 1.—11 Johns. 433.—1 Chitty 129.—3 D. & E. 183.

We are therefore of opinion, that there must be