Opinion
July 20, 1878.
In replevin brought by husband and wife, judgment was entered for the defendant for return and restoration, and costs: Held, that the defendant's execution for costs should run against both husband and wife.
REPLEVIN. On motion for execution.
Sayles Greene and Francis Colwell, for plaintiffs.
Charles Hart and Tillinghast Ely, for defendant.
This is an action of replevin by husband and wife for carriages and harnesses alleged in the writ to belong to the wife, but which had been attached by the defendant, a deputy sheriff, in an action against the husband, as his property. The jury found that certain of the chattels replevied belonged to the wife and the others to the husband, and assessed damages in favor of the plaintiffs for the taking and detention. The court thereupon entered up judgment under the statute for the plaintiffs for damages as assessed and costs, and for the defendant for return and restoration and costs. The question is, whether the execution in favor of the defendant for his costs shall run against both husband and wife or against the husband alone. The opinion of the court is, that according to the weight of authority, the execution for costs as well as for return and restoration, should issue against both. Freeman on Executions, §§ 22, 128, 459; Hall v. White, 27 Conn. 488; Commonwealth v. Badlam, 9 Pick. 361.
Execution accordingly.