This is a case in which a creditor has obtained leave of court, according to our practice, to defend an action to preserve the benefit of his attachment. This he did not do until after the first term, when the defendant was defaulted, and after a continuance of the action, which became necessary by reason of the proceedings against the trustee.
The attaching creditor then offered a plea in abatement, to which the obvious objection was interposed, that it was too late; such pleas being required by the rule to be filed within the first four days of the term at which the defendant is required to appear.
Is there anything in the peculiar attitude in which the defending party stands before the court that should exempt him from the operation of the rule ? He could as well have entered his appearance at the first term as at the second, for anything that appears. He is here at a late day, by means of a rule which he obtained for striking off a default that had been entered, and which, but for the proceedings against the trustee, would, at that time, have concluded the rights of all the parties by a judgment to which the plaintiff became entitled.
There seems, in short, to be no evidence of diligence, which, if successful, would have placed the party in a position in which he would not have needed any indulgence in this particular; the failure of which, through misfortune and inevitable accident, might, perhaps, have entitled him to the consideration ordinarily extended by courts in favor of the rights of parties who have unsuccessfully endeavored to bring themselves within the rules.
"We think, therefore, that the plea cannot be received. Perhaps, however, the rights of the attaching creditor
Plea dismissed.