Opinion
Spring Sessions, 1837.
LIBEL for divorce. Summons issued and returned "non est inventus;" alias summons issues and returned "non est inventus."
J. A. Bayard, for the motion.
Wales and Macbeth, contra.
The defendant was a resident of the county, but kept out of the way of the sheriff. He had brought a suit to the present term against the administrator of his wife's father, to recover her distributive share of his estate.
Bayard, now moved the court to stay proceedings in that suit until he appeared to this libel.
It was resisted by Wales and Macbeth, of counsel for defendant; who admitted that he had notice of the libel suit. The sheriff proved the use of extraordinary diligence to serve the summons; but had not been able to find Baldwin, though he knew of his having been in the county.
The Court made the order. The whole proceeding is in this court and under our control: it is not reasonable that this man should be permitted to prosecute his suit and get possession of his wife's fortune, while he stands out and refuses to appear to her suit for divorce. He asks justice; and he must not refuse to do justice.
Proceedings stayed.