
    
      FISK vs. FISK.
      
    
    Appeal from the court of the first district.
    a petition to icmore a case to the court of the V. S. need not be filed per-sonallj. The' party is
    notprecluded by the acts of the attorney, appointed by the court to defend him, in his at-sence,
    
      
       This case was determined in June, 182*3, and accidentally omitted.
    
   Porter, J.,

delivered the opinion of the , court. This case comes up on an appeal taken from an order of the court below, trans-ferrmg the cause to the district court of the ⅜ United StatGS.

I he action was commenced by attach-merit, on the 12th of February; on the 14th an attorney ivas appointed to defend the absent debtor, who on the same day applied to the court and obtained a delay of sixty clays to file his answer, and correspond with the defendant.

On the 7th of April, the attorney for the absent debtor made an application to be allowed the further time of thirty days to answer, which application was sustained by the court, but afterwards the order granted on it was set aside, on a rule taken by the plaintiff’s counsel.

On the 16th. the court directed, that the appointment of the attorney to represent the absent debtor, be rescinded, and that the defendant, having authorised Messrs. Watts and Lobdell to appear as Ins attorneys in this case, they have leave to appear as such.

They accordingly did so, and presented a petition to remove the cause to the district court of the United States for Louisiana, on the ground that the defendant was a citizen oi Massachusetts, and the plaintiff of Louisiana,

The court directed it to be transferred as prayed for, and the plaintiff appealed.

The correctness of the decision of the judge a quo, is contested on two grounds :

1. That this was a plea iu abatemeni, and that being put in by an attorney of the court, its jurisdiction was acknowledged.

2. That the acts of the attci icy appointed .by the court to defend the absent debtor-amounted to an appearance, and that the ‘application of the defendant came too late,

I. The first objection, we are clear, is un* tenable: it is drawn from a system of law which is not ours; it has no support in authority, and the reasons on which it is founded, give it no recommendation with us. At common law, the defendant must plead to the jurisdiction of the court in propria persona, for he cannot plead by an attorney without leave of the court first had ; which leave acknowledges the jurisdiction, and tins leave is presumed to be obtained, because it cannot be supposed an officer of the court would put in a plea without its permission, 1 Bacon's Ab. 2. In point of fact, this reason completely fails with us, for no leave of the court is necessary to enable an attorney to answer. By our law no such exception is made to the power of those who represent others in court; it does not distinguish between pleas of this kind and any others. Partida 3, tit. 5, law 1; Cur. Phil, litigantes, p. 1, § 10.

II,. The second ground is not so free from difficulty ; the application to remove is stricti Now, the attorney appointed to defend has no authority to comply with the last conditionj and if he had, the cases are few in which he could find security, >uris. Each stale has a niihi to declare what J . . shall amount to an appearance in its courts, and if that which was done by the attorney appointed by the roii’i, is under our law an appearance by the defendant, the application to remove came too late. But without a clear and positive provision, it cannot be considered, such, because it would be contrary to the truth of the case, and because it would be concluding the defendant’s right by an agent, to whom he had given no authority. In relation to the point under consideration, the adoption of such a principle would in almost every case deprive a defendant of the privilege of removing his canse : and this we cannot suppose the legislature of our state contem-⅜;plated. The act of congress, which confers this right, prescribes two conditions for the exercise of it: First, That the defendant shall at the time of entering Ins appearance in the state court, file his petition to that eíleet; and, Secondly, offer good and sufficient security for appearing in the court to which he prays a removal,

Maybin for the plaintiff, Waits Sr Lobdeli for the defendant,

The laws of the United States evidently contemplate an appearance by the defendant; our act of the assembly proceeds on the idea, that he is absent, and has left no person to represent him; it therefore appoints an attorney to watch over his interests. The protection which it thus affords, was intended for his benefit, and not to prevent the exercise of rights which jpither the laws of the United States or of this state, conferred on him. Acting on this principle, we held in the case of Stockton & al. vs. Nasbuck & al., that the attorney appointed to defend an absent debtor, could not, by pleading to the merits, waive the want of citation. 10 Martin, 472; 2 Binney’s Laws U. S. 61, sect. 12; 1 Martin, 516. The giving bond to the sheriff was not an appearance in court; and on the whole we are of opinion, the judgment of the district court should be affirmed with costs.  