Strong v. Barlow

¶1Tbe defendant in tbe original action was not an inhabitant of tbis state, nor within tbe state at tbe time of serving tbe writ, nor afterwards, before the judgment was rendered, and had no notice of the suit; — therefore, tbe action ought to have been continued to the next term, agreeably to tbe provision of tbe statute in that case provided. And tbe appearance of Jabez Barlow, in tbe manner that be did, could not take tbe case out of tbe reason of that provision; for be was considered simply as a debtor to Strong, who was tbe defendant in tbe action; and it does not appear that be was ever authorized by Strong to act as bis agent or attorney; nor did be plead in tbe name or behalf of Strong, but in bis own name.— Tbe statute respecting absent and absconding debtors, when first made, extended only to tbe goods and effects of such debtors, left in trust with some agent, attorney, or trustee; who was supposed to be authorized by such debtor, to transact his affairs; but tbe paragraph that respects persons indebted to such absconding debtor, was added on the revisal of tbe laws in tbe year 1784, and they cannot be supposed to have any authority from tbe defendant in such action, unless they produce it in court; and therefore ought not to be admitted to appear and defend, to prevent a continuance of tbe cause; otherwise, tbe absent party might be subjected to unreasonable demands, by a collusive appearance and defense, and tbe true intent of tbe statute, for giving time for notice, be eluded.