Brent v. Taylor

6 Md. 58 | Md. | 1854

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 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 party of his property without notice, or what the law declares to be equivalent to notice. An eminent jurist has said, that all judgments rendered anywhere against a party who had no notice of the proceeding, are rendered in violation of the first principles of justice, and are null and void. 2 Kent, 109. This right, given in terms to others, is not denied to this party, and cannot be taken away by construction.

The filing out of the short note and sending a copy with the attachment, to be put up at the court house door, as a means of notice to the debtor, is indispensable under the act. of 1795, ch. 56; Stone vs. Magruder & Brooke, 10 G. & J., 383; and we think that it is equally important in cases under the act of 1842. It was said in argument that the scire facias clause in the writ of attachment can accomplish all or more than the short note will probably effect. This may be so, but not necessarily, and the same argument might be used, and with greater reason, against the employment of the short note in attachments against absconding or non-resident debtors, yet the law will not dispense with this means of notice as to them. Again, the sheriff is required to make the writ known, not to the debtor, but to the party in whose hands the attachment may be laid, and this may not be the debtor, but some other person in whose possession her credits or property may be found, and condemnation may be obtained without any knowledge, on her part, of the pendency of the proceedings. As far as this record discloses, if Mrs. Magruder had had no other means of knowledge, the property in this case might have been condemned, notwithstanding this clause in the writ, for it does not appear by the return of the sheriff that she had the benefit of it, either as debtor or as the party in whose possession the property was found.

The objection is not obviated by the fact that the party appeared voluntarily. The want of the short note is fatal to the proceedings. Without it they are coram npnjudice and void. 6 Gill & Johns., 335, Wever vs. Baltzell. Ibid., 345, Bruce vs. Cook. 10 Do., 386. 5 H. & J., 132.

It is proper to say that we do not agree with the appellant that the property of the debtor cannot b.e taken in limine, but only after petition, answer and proof of the claim. This migh.t — nay probably in most cases would — defeat the very object of the party in suing out the attachment. It is sufficient if the creditor lay a foundation for the writ, by affidavit and the proper voucher, according to the present practice.

As the objection which we have noticed is fatal to the proceedings, the judgment must be reversed without a procedendo.

Judgment reversed and procedendo refused.