dissenting. Harrison sued Renfro, by petition in debt, and attached two slaves in the possession of his mother, the defendant here. Upon proof of publication, at the April term, 1846, he obtained judgment by default against the original defendant, and also against the defendant here, upon her interplea. The verdict and judgment thus obtained against Mrs. Renfro having been reversed by this court at the January term, 1847, a second trial of the issue between her and the plaintiff took place at the spring term, 1848, and resulted again in a verdict against her. A new trial was granted, however, the propriety of which the state of the record does not enable us properly to consider. The defendant in the original suit, and against whom the judgment by default for the debt and damages continues unreversed, having died in the month of May, 1847, at the October term, 1848, the interpleader moved the court to stay all further proceedings and allow' her the possession of the attached slaves. The court having adjudged accordingly, and dismissed the suit, the plaintiff excepted, and lias brought the case hero.
As reliance to sustain the judgment below seems mainly to be cast upon the opinion of a former bench of this court, in the case of Swearingen v. The Administrator of Eberius, an expression of the respectful disconcurrence which is entertained with the reasoning and conclusion of the able Judge who prepared it, might perhaps well enough bo foregone by demonstrating the want of sufficient analogy between that ease and the present one, to invest it with the authority here claimed for it. It is, however, deemed most appropriate to remark, that being unable to perceive less legal merit in commencing and maintaining a proceeding by attachment than in the more ordinary manner, any valid reason why such a suit should not, in the very words of the statute which authorizes it, ‘‘be proceeded on to final judgment in like manner as in ordinary actions,” has not been to my mind rendered apparent by the argument here. It is true that no execution could issue against a deceased defendant, but that, it is apprehended, does not meet even the general question, much less the special one now under consideration. Unless indeed equity would be powerless, after years of diligence and expense, to enforce a lien thus sought to be perfected, it is of course readily perceived how the final judgment, which is alone sought, might be thereby rendered available to the plaintiff. The dismissal of such a suit consequently, even had no judgment been rendered against the original defendant, could alone be predicated upon a more restricted estimate of the powders and duties of a Chancellor, than is entertained by the author of this dissent.
In this case, however, there was and is a specific and formal judgment against the original defendant, so that the only question which remained for adjudication, at the time the suit was dismissed, was between living parties on the interploa of the defendant here. The court before whom that issue was pending, was certainly not only competent to determine it, but, it -would seem, even peculiarly appropriate that it should retain the suit for the purpose of doing so. It would thereby not only more readily than in any other manner settle the question as to the ownership of the property, thus removing the impediment which would otherwise exist to a safe and proper administration upon the effects of the deceased, hut if the verdict of the jury was again adverse to the claim of the defendant, again found the property to have been properly attached by the plaintiff, and of course subject to his lieu, the 54th, 55th and 56th sections of the Snd article of the Administration law would furnish either to the administrator in discharging, or to the *323Chancellor in enforcing it, an appropriate analogy, and a safe and an equitable guide. It is thought, therefore, for the reasons thus stated, that the judgment of the Circuit Court should be reversed and the cause remanded for the further and final proceedings thus intimated.