
    IRELAND vs. BRYAN & AL.
    Service at the last place of residence is bad.
    Wife cannot appear in court without the assent of the husband.
    Appeal from the court of the third district.
   Porter, J.

delivered the opinion of the court. This action was brought against the defendants as endorsers of a promissory note. Certain dilatory exceptions were pleaded in the answer, which the court sustained, and dismissed the petition. The plaintiff appealed.

That which related to the husband, was bottomed on the defective service of the petition.

The return of the sheriff is in the following words: "Served the same day, by leaving a copy of this citation, with a certified copy of the plaintiff's petition, at the last place of residence of defendant; ever the age of fourteen, years, to wit, Mrs. Bryan.

This return is defective. The statute requires copies of petition and citation to be left at the usual, not at the last place of abode of defendant. The mode of service pursued here would be satisfied, if the party had resided 20 years since in the house at which copies were left, which was clearly not the intention of the legislature. The expressions used in the act, evidently contemplate a temporary absence; and the provision was introduced on the presumption that the party sued, would receive intelligence from citation being made where he usually resided. It by no means follows, that a man’s last place of residence in this state, is his usual one. This point has already been decided in the case of of Baldwin vs. Martin & al. Vol. 1, 519.

East'n District.

April 1825.

Smith for the plaintiff, M'Caleb for the defendants.

The exception presented on the part of the wife, is, that she has not been authorised by her husband, or the judge, to sue, or be sued, and that of course she could not legally be considered before the court. The soundness of this position has been admitted by the counsel for appellant, and it is sanctioned by positive provisions of the code. Civ. Code, 28, art. 21 & 23.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be affirmed with costs.  