Fromberger v. Karsner 1 Houst. 290, 6 Del. 290

John H. Fromberger v. George W. Karsner.

No writ of copias ad satisfaciendum can issue on a joint judgment against several defendants, two of whom were free white citizens of the State, notwithstanding the other defendant in the judgment was a non-resident, and the other two were not arrested under the writ and took no exceptions to it, without an affidavit of fraud filed.

Harr in trespass for false imprisonment, to which the defendant pleaded a justification, that under a judgment *291in the Superior Court for New Castle County in favor of Rathmell Wilson for the use of the defendant, against Fromberger and two others, a writ of copias ad satisfaciendum, was issued to the sheriff of the county, by virtue of which Fromberger, one of the joint defendants in the judgment and writ, who was a non-resident, was arrested and detained as alleged in the narr. The replication to the plea was that at the time of the issuing of the ca. sa. Samuel Higgins, one of the defendants against whom it issued, was a free white citizen of the State, resident therein, and that no affidavit was made before issiiing the writ as required by law; to which the defendant entered a general demurrer.

Rodney, for the defendant:

The plaintiff by his replication assumes that a ca. sa. cannot issue against one of two persons in a joint judgment. But the question is, is the replication an answer to the plea of justification? The fact of Fromberger’s non-residence is admitted, by the pleadings in the case. The judgment is against several, and the ca. sa. issued against them all, following the judgment. The replication is in relation, however, to only one of them, and the first question to be determined is, does such a replication meet the plea of justification ? I submit that it does not.

James A. Bayard, for the plaintiff:

The defendant justifies the arrest of Fromberger under the judgment against the three joint defendants in it. Fromberger being a nonresident was arrested under the ca. sa. which issued against them all, and the question is, can a person under our statute, who has a judgment against three persons, one of whom is a non-resident, issue a ca. sa. upon it, which, of course, must follow the judgment and issue against them all, without an affidavit of fraud ? We maintain that he cannot; and such a writ is not only voidable, but absolutely void by the express terms of the statute, when issued against a citizen of the State without such affidavit. There *292is a distinction in this respect in pleading between a voidable and a void process, the latter constituting no legal justification for the arrest, while the former does.

Rodney:

The other two defendants in the judgment make no objection to the ca. sa. and have not been arrested under it. No one has been arrested but Fromberger, who is a non-resident, and who cannot in his own right claim to be exempt from such a writ. Can he, then, avail himself of the exemption of the other defendants, when he has no claim to'be exempt himself, and they take no exception to the process and have not been affected by it ?