
    Vance v. McLaughlin’s Adm’r.
    October Term, 1851,
    Richmond.
    (Absent Cabell, P.)
    1. Foreign Attachment — Wife’s Interest as Legatee in Hands of Executor. — A wife’s interest as legatee in her father’s estate, in the hands of the executor, may be subjected by the creditor of her husband, by a proceeding by foreign attachment, when the husband resides out of the state.
    2. Same — Same—Service of Process — Death of Husband Pending Proceedings. — Though the service of process upon the executor creates a lien upon the wife’s interest in favour of the creditor, yet if the husband dies pending the proceedings, leaving his wife surviving him, the lien of the creditor is defeated, and the property belongs to the wife.
    3.Decrees — Irregularities—When Immaterial. — Irregularities in a decree which do not injure the appellant are not sufficient grounds for reversing it.
    This was a proceeding by foreign attachment in the County court of Hampshire, commenced in April 1830 by William Vance against John Collins as an absent debtor and William McLaughlin executor of Daniel McLaughlin deceased, as a home defendant, in which the plaintiff sought to subject the interest of the defendant Collins in right of his wife, in the estate of her *late father Daniel McLaughlin, to the satisfaction of his debt. The bill was afterwards amended and all the legatees of Daniel McLaughlin were made parties; and an account of the administration of William McLaughlin on the estate of his testator was taken, which ascertained the amount in his hands to which Collins and wife were entitled, to be 106 dollars 85 cents with interest on 88 dollars 2 cents a part thereof, from the 21st of September 1833 until paid.
    In 1834, though the death of the executor William McLaughlin was not suggested, the suit was revived against Daniel McLaughlin as administrator de bonis non with the will annexed of Daniel McLaughlin deceased. And in 183V there was a decree against Collins for the amount of the debt due the plaintiff, viz: 80 dollars 39 cents, with interest on 75 dollars a part thereof, from the 14th of May 1817 until paid; and there was a personal decree against Daniel McLaughlin the administrator for the amount reported to be in the hands of William McLaughlin due to Collins and wife. Drom this decree McLaughlin applied to the Circuit court of Hampshire for an appeal, which was allowed.
    In 1838 the cause came on to be heard in the Circuit court, when the decree of the County court was reversed, and the cause was retained for further proceedings. Whilst the case was pending in the Circuit court the defendant Collins died, leaving his wife surviving him. And without a revival of the cause against the representatives of Collins and William McLaughlin, it came on to be heard in September 1840, when the Court dismissed the bill, with costs to the defendant Daniel McLaughlin -administrator of William McLaughlin executor of Daniel McLaughlin. And it appearing that the plaintiff had issued execution upon the decree of the County court, and made the money out of the defendant Daniel McLaughlin before the appeal was allowed, *the Court gave McLaughlin a decree against him for the sum of 125 dollars 27 cents, the amount so made, with interest thereon from the 21st day of April 1837, that being the return day of the execution. From this decree Vance applied to this Court for an appeal, which was allowed.
    Cooke, for the appellant.
    Patton, for the appellee.
    
      
      (iarnisliment — Personal Representatives. — But that a personal representative cannot be garnisheed, see Whitehead v. Coleman, 31 Gratt. 784, and foot-note.
      
    
    
      
       I us band and Wife — Separate Earnings of Wife— Rights of Husband’s Creditors. — Creditors of the husband have a right to seize the earnings of the wife by process against the husband, before they are reduced into possession by the husband; but are liable to be defeated in such proceeding by the death of the husband before they are reduced to possession, as in such case they would survive to the wife. Bailey v. Gardner, 31 W. Va. 94, citing the principal case at pages 98, 99, 5 S. E. Rep. 638. See monographic note on “Husband and Wife’’ appended to Cleland v. Watson, 10 Gratt. 159.
    
    
      
      Decrees — Irregularities—When Immaterial. — Irregularities in a decree which do not injure the appellant are not sufficient grounds for reversing it. This proposition of the principal case is cited and approves in Dower v. Church, 31 W. Va. 51; Elliot v. Trahern, 35 W. Va. 647, 14 S. E. Rep. 237, and in Miller v. Rose, 21 W. Va. 292, it is said: “It is well settled that to entitle-a party to obtain and prosecute a writ of error or appeal in this court, he must not only be a party to the controversy, but the record must affirmatively show that he has been prejudiced by the order, judgment or decree from which the writ of error or appeal is taken. Supervisors v. Gorrell, 20 Gratt. 484; Shrewsbury v. Miller, 10 W. Va. 115; Richardson v. Donehoo, 16 W. Va. 685.” See also, Eib v. Pindall, 5 Leigh 109.
      See monographic note on “Decrees” appended to Evans v. Spurgin, 11 Gratt. 615.
    
   DANIEL, J.,

delivered the opinion of the Court.

The Court is of opinion, that the rights and interests of the absent defendant Collins in and to the share of his wife in the personal estate of her father in the hands of the executor William McLaughlin, were liable to be proceeded against and charged by the creditors of said Collins, by way of foreign attachment; and consequently that the proceedings in this case were properly commenced.

The Court is however also further of opinion, that the commencement of such proceedings by the creditor of the husband are not in legal contemplation equivalent to the reduction into possession by the latter of the subject sought to be charged, but creates only a lien in favour of the creditor, which is liable to be defeated by the husband’s dying pending the proceeding, leaving his wife surviving him. That by the death of Collins during the progress of the suit the whole right to his wife’s share in the property or balance in the hands of the executor of her father devolved on her; and that the right of the creditor Vance to have his demand satisfied out of it, terminated with the life of his debtor.

The Court is also further of opinion, that though it was not regular to render a final decree- without first reviving the cause against the representative of Collins, or to give a decree for costs in favour of Daniel McLaughlin as administrator of William McLaughlin executor of *Daniel McLaughlin, yet that these irregularities do not under the circumstances of the case constitute sufficient grounds for the reversal of the decree.

The Court is therefore of opinion, to affirm the decree with costs &c. to the ap-pellee.

Decree affirmed.  