Page:United States Reports, Volume 1.djvu/252

Rh 

1788.

Verdict for the Plaintiff ; owing, I believe, to fome flight teftimony, that feemed to repel the idea of the Defendant's having repaid the money.

When Howell offered himfelf as witnefs, Levy objected that he was interefted, inafmuch as his judgment fee depended on his fuccefs in the caufe. But the objection was over-ruled by the court. 

UDGMENT had been entered by non ʃum Inƒormatus in this caufe, as the Defendant did not appear on the day of trial. But Sergeant now moved to open the judgment, upon an affidavit that the Defendant had notice of the trial for the 17th, inftead of the 13th, and that there was a juft and confcionable defence.

Lewis, for the Plaintiff, faid, that he did not mean to conteft the matter, but he wifhed it to be fettled, whether the miftake of an Attorney, was, in fuch cafes, fufficient to fet afide a judgment.

On a miftake of this kind, evidently appearing, we cannot refufe the motion. 

Rule had been obtained to fhew caufe why the Capias, which iffued in this cafe, fhould not be quafhed, the Defendant being a freeholder in the country of Cheʃter.  It appeared, that, with the Prœcipe for the writ, an affirmation of one Rumƒord Davis,  was filed in the Prothonotary's Oƒƒice, fetting forth, that “ the Defendant had not been Refident in this State or two years before the date of the writ;” and, it was contended, that this was fufficient, under the Act of Affembly, to repel the Defendant's claim of privilege. 1 St. Laws 139.

The queftion, therefore, was, whether the Court could, notwithftanding the affirmation field beƒore the writ iffued, enquire into the matter of reʃidence ; in order to determine, on all the cirucmftances of the cafe, whether the Defendant was within the exceptions of the act? It was twice argued, on th 21ft and 23d of May, by Sergeant for the Plaintiff, and Lewis for the Defendant ; and the fubftance of both arguments was as follows

For the Plaintiƒƒ.– The Act of Affembly refts the proof exclufively on the Affidavit of the party, or fome perfon form him ; requiring only that he fhould make the fact, which defeats a freeholder's privilege from arreft, appear to the Juftice who grants the writ. Nor will the fection admit of the divifion for which the adverfe counfel contend ; becaufe, though there is a claufe providing that things fhall not be proved by affidavit, which, in their nature, eftablifh a higher degree of proof ; as judgments, mortgages &c. yet, Rh