James Vann v. Lewis Frederick.
The wife of the absent defendant in attachment cannot appear and plead to the declaration.
Tried before Mr. Justice Richardson, at Edgefield, Spring Term, 1831.
This was an action, by foreign attachment, on a promissory note, dated in 1812, and due in 1813, commenced by attaching in the hands of the administrator, the distributive share of defendant’s wife in her father’s personal estate. The declaration was filed, and the rule to plead within a year and a day published ; but before the rule expired, Mary Frederick, the wife, appeared in open Court, and submitting an affidavit of the presumptive death of the defendant, moved for leave to appear and plead to the declaration.
The presiding Judge refused the motion, which was now renewed in the Court of Appeals.
Bauskett, for the motion.
The second section of the attachment act, P. L, 188, requires that the wife shall be served with a copy of the declaration; and the provision is unmeaning, if the wife cannot appear and plead to it. It has been decided, it is true, that the defendant cannot appear and plead without putting in special bail; but that is a rule adopted by the Court ex necessitate, because the appearance by defendant dissolves the attachment. The wife, however, cannot dissolve the attachment otherwise than by replevying under the eighth section, P. L. 189; and there is, therefore, no reason to exact an impossibility, to wit, the absent debtor’s putting in special bail, before the wife or attorney is permitted to defend the action. The wife in the *304present case does not seek to dissolve the attachment, or to impair its lien; she asks only to defend an action, barred on its face by the statute of limitations, and which would never probably have been brought, but for the absence of the defendant. The attachment act was intended to secure the property of the absent debtor to his creditors, not to deprive him of an opportunity of resisting an unrighteous demand.
If, however, the wife could not plead to the action, she was unquestionably intitled to plead the husband’s death, and that his marital right had never attached upon her share of her father’s estate.
Butler, contra.
Cited and relied upon the cases of Acock v. Linn & Lausdown, Harp. 368, and Fife & Co. v. Clarke, 3 M‘C. 347. The defendant cannot appear and plead without putting in special bail; and it would be a strange anomaly, if the wife or attorney were in a better situation.
Harper, J.
delivered the opinion of the Court.
The first question made in the case is, in reality, whether the absent defendant can appear and plead without putting in special bail. Apart from the shewing, of the husband’s death, the wife could only appear as attorney to represent and defend him. This question has been fully settled by the cases of Acock v. Linn & Lansdown, State Rep. 368, and Fife & Co. v. Clarke, 3 M‘C. 347, in which it is held that he cannot appear. The condition of putting in special bail before the party shall be allowed to plead, is not prescribed by the express terms of the' attachment act, but was established by practice, and the analogy of law. The eighth section oe the act applies, only where a person shall be desirous to appear to the action as attorney, for the purpose of procuring the delivery of the goods to himself ; in whiel/. case he must give bail to pay the condemnation money.
Whether the wife may suggest the death of the husband in order to abate the suit, is not in question on this motion ; nor is it material, for if he be dead, any judgment obtained against him will be a nullity. If the wife claims the property attached, as having survived to her upon her husband’s death, she may file her suggestion making the claim, and have her right tried. But the present motion must be dismissed.
Motion refused.