Ryland, J.,
delivered the opinion of the court.
From the foregoing statement, it will be seen, that old Mrs. Withers, to whom, during her life, the negro boy attached in this action, together with others, had been willed by her husband, with power to divide them among her five youngest children, lived with William Maddox, her son-in-law; that the negroes were with her; that a few days before the negro was attached as the property of John E. Shropshire, Mrs. Withers had allotted the boy to her daughter, Martha Shropshire, wife of John E. Shropshire; that at the time of the division of the negroes, Martha Shropshire and her husband were living in Mississippi; that they knew nothing about this division.
Wm. Maddox, for whose use this suit was brought, and who, it seems, made the affidavit in order to get the attachment, was, himself, summoned as garnishee.
It also appears, that Shropshire never had possession of the negro.
This whole proceeding stands before us in an unfavorable light. An old lady, the mother, living with her son-in-law, under the wdl of her husband divides the negroes in her possession, at the house of this son-in-law, without notifying her absent daughter, Martha Shropshire, who, in all probability, greatly needed this small assistance, her husband, át the time, being insolvent. In a day or Uto after this is done, this said son-in-law, Maddox, has the negro, allotted to his wife’s sister, seized by the sheriff without that sister’s knowing anything of sueh division, and he, himself, summoned as garnishee !!
During the progress of this suit, the whife of John E. Shropshire, by her next friend, Staunton Buckner, claimed the negro boy thus attached as her property, and was permitted to file her interpleader, setting up said claim. Issue was taken on this interplea, and found for the claimant, and judgment was rendered in her favor.
The plaintiff in the action moved in arrest of this judgment; his motion was overruled and excepted to. The plaintiff also moved the court below to set aside the general judgment which was rendered for the plaintiff in the suit against John E. Shropshire, and to render a special judgment against the negro boy, the property attached. This motion was also overruled and excepted to.
It appears from the record and proceedings below, that the defendant, Shropshire, appeared to the action, by. attorney, and filed his plea. It was then proper to render a general judgment; the court properly overruled this last motion.
It is the opinion of this court, that the wife cannot appear and file her interplea in this action at law; that the court below had no authority to prevent such a proceeding; but the claimant should have asserted her right to tlie negro in the court of ehaneery. There was, at that time, sueh a court, and to that jurisdiction she should have resorted.
The court should have arrested the .judgment on the interplea, and for failing to do so, its judgment, by the concurrence of the other judges is reversed.