case the queen against CANTUELL alias SANGWAY if in ex come a capias with a  penalty issue where it ought to be a capias only the court will discharge the  penalty but not abate the writ SC salk the defendant be excommunicate below  pro jactitatione maritagii and take up upon a five process of excommunicate to  take in hand in which there be a proclamation with modern er p a penalty and  be bring up by habeas corpus and the writ of excommunicate to take in hand be  return that be the writ on which she be take Chesshyre take exception first  that this be none of the nine case specify in the statute Elizabeth c it ought  to have be a simple capias and not a capias with a penalty per curian all we  can do be to discharge the penalty second that there be no addition as the  statute require per curian this be not one of the nine case mention by the  statute there needs no addition and if it have require a addition they doubt  at first whether they can relieve her upon motion but that it ought to be  plead but upon consideration they incline to think that they may relieve her  upon motion the fault appear on the record before they it be say at the bar  that if a plea be necessary here it will be a mischievous case for here she be  excommunicate at the suit of her husband and he will not join in the plea with  her holt chief justice answer that a femecovert may plead alone in a criminal  matter as this be as if she be attaint of felony she may plead a pardon but be  agree that when husband or wife be take upon a capias utlagatum the wife shall  be discharge and he say that the reason of the addition be requisite by the  statute in the nine case and none other be in order to a proclamation and  penalty modern but that to a imprisonment by virtue of a excommunicate to take  in hand there be no occasion for it gold justice until the case of Hugh v  Bender W Jones a the law be hold that if one be take upon a process of  outlawry with a penalty he shall be discharge but in that case and since it  have be hold that she ought to be discharge of the penalty only cro car b and  it be say that they be Willing to absolve her below but that they must have  her in person to give caution de to appear order church the court answer that  that need not be for they may take a bind with a penalty reasonable from other  person with condition that she shall submit herself though it be true the most  usual way be to take juratory caution and the court declare they can not  discharge her by law and so she be remand holt chief justice here will not  determine whether the writ be with proclamation and penalty when it ought not  so to be make the whole nought or only quoad the proclamation and penalty