Commonwealth versus Stephen Badlam.
A married woman may be imprisoned without her husband, upon an execution against both, provided it is not done by collusion between the creditor and the husband.
On a writ of habeas corpus directed to the keeper of the gaol in Suffolk, to bring up the bodyaof Mary Woodman, it -appeared that she was imprisoned upon an execution issued against her husband and herself, upon a judgment recovered against them by Philip Wentworth, for a debt contracted by her previously to the marriage. The husband was not within the Commonwealth when the judgment was recovered, nor when the wife was committed.
B. Parsons now contended,
that a married woman cannot
lawfully be imprisoned for debt. The husband has all her property, and she ought therefore to be protected so long as the marriage continues.
Upon mesne process, it is clear, that a wife cannot be com mitted without her husband : nor with him, according to some of the authorities. Edwards v. Rourke, 1 T. R. 486.
Our statute of 1784, c. 41, allowing debtors the liberty of *369the jail-yard upon their giving bond, and St. 1784, c. 87, providing for their discharge upon their swearing that they have no property, repeal the supposed common law right to imprison a feme covert for debt; for a feme covert cannot give a valid bond, and the presumption of law is, that she has no property of her own. Here it is not pretended that the wife has any separate property, and she is entitled to be discharged. Sparkes v. Bell, 8 Barn. & Cressw. 1.
Imprisonment for debt is at variance with the principles of the constitution.
S. D. Parker, for the defendant.
Per Curiam.
The law is settled in England, that a wife cannot be legally arrested ón mesne process, and if she is arrested, she may be discharged on common bail. The law is different in the case of an execution, unless the wife is committed by collusion between the creditor and the husband. In New York the law agrees with that of England. We find no precedent which will authorize us to liberate this woman.
It is urged that imprisonment for debt is unconstitutional ; and that it is contrary to the unalienable rights of man ; and other arguments have been used, which would be more properly addressed to a legislative body than to a court of justice.
The immemorial practice in this Commonwealth has been to imprison for debt, and there is nothing against it in our constitution.
The prisoner will be remanded.