Anonymous

8 How. Pr. 134

Opinion

Anonymous.

In an action against husband and wife, for a tort committed by the wife, neither can be arrested.

At Chambers,

October 1852.

Upon an application to Mr. Justice Campbell, for an order of arrest against a husband and wife, in an action for an assault and battery charged to have been committed by the wife alone, he was of opinion that the general words of the Code permitting the arrest of a female for “ a willful injury to person, character or property ” (§ 178), have not altered the rule of the common law, which exempts a married woman from arrest in all cases whatever; and he was also of opinion that the Code in its reasonable construction, does not authorize the arrest of the husband in any action founded solely either upon the contract or tort of the wife. He therefore denied wholly the application.

The other judges upon consultation approved his decision.