Brent v. Taylor

Tuck, J., delivered the opinion of this court. The. questions arising on this record relate to the validity of proceedings under the Sth section of the act of 1842, ch. 293, which authorises an attachment against the properly of a marr.ied woman, trading as a feme sole. The appellant claims the property as trustee for the benefit of creditors under a deed executed by the husband and wife. Several propositions were presented in the court below, and argued here, but as we think that the objection raised by the third prayer is fatal to the plaintiff’s right to recover, we shall not express any opinion upon the others.

The proceedings under this act are required to be “by attachment from the county court to compel payment, upon petition and proof of claim, according to the circumstances of each case, according to the course of the attachment law.” We are of opinion that the provisions of the acts relating to attachments should be observed, as far as the same are not inconsistent with the design and purposes of this act of Assembly. The proceeding and the judgment are in rem, and not in personam. The object is, not to compel the appearance of the debtor with a view to a judgment against her, nor to seize her property by way of execution, but to obtain a lien on property acquired in a specified manner, with a view to the payment of the claim, if it should appear that the party is indebted as charged. Hence the capias under the former, or summons under the present practice, is not necessary.

But the act does not deny to the feme covert ⁶⁹ debtor the right of protecting her estate against claims of this kind. On the contrary, she is entitled to the same means of becoming acquainted with the existence of the proceedings as are secured to other debtors, “according to the course of the attachment laws.” It would be a harsh construction to place upon this act to say, that while it professes to encourage the skill, industry and personal labor of married women, by allowing them to hold separate estate thereby acquired, they shall be liable to have it wrested from them by an ex-parte proceeding, when all other persons are protected by the very laws according to which the creditor is required to proceed against her. It confers the privilege of trading as a feme sole, but, at the same time, her creditor is distinguished above those of other persons, by having the benefit of a summary process by way of attachment and lien, for the recovery of his demand, without the delays and embarrassments attending the ordinary forms of judicial proceedings, and he cannot reasonably complain if his debtor be allowed an opportunity of challenging the justice of his claim. It is manifestly unjust to deprive a