
    Roberts vs. Shell.
    When a capias ad satisfaciendum issues, and the defendant discharges himself by taking the insolvent debtor’s oath, the costs cannot be taxed against the plaintiff in such capias ad satisfaciendum; they must be taxed with other costs in the cause.
    
      Rivers and Combs, for plaintiff in error.
   Green, J.

delivered the opinion of the court.

The record shows that the defendant was taken in custody, by virtue of a ca. sa. issued by a justice of the peace of Giles county, at the suit of the plaintiff; that he gave bond and security in pursuance of law, to appear at the next county court and pay the money, take the oath of insolvency, or surrender his property. The defendant appeared according to the condition of the bond, and took the oath of an insolvent debtor and was discharged, and a judgment rendered against the plaintiff for the costs. An appeal in error was taken to the circuit court, where the judgment was affirmed, and an appeal to this court.

This court has decided in such a case as this, that it is erroneous to give the defendant costs. No fault is imputable to the plaintiff in suing out his ca. sa. by which the defendant was taken in custody. The law gave him the privilege of discharging himself by taking the oath of insolvency; but it did not mean that he should have this privilege atthe' expense of the creditor. The costs of the proceedings should have been taxed with the other costs of the cause.

The judgment will therefore be reversed, and the plaintiff in error go hence, and recover the costs of this court and of the circuit court.

Judgment reversed.  