Page:United States Reports, Volume 1.djvu/253

242 

1788.

even fubfequent to that claufe it is faid, as the Deponent believes; an expreffion which manifeftly relates to the firft part of the fection, and neceffarily connects the whole, If, indeed, the Court were to inveftigate the facts, both parties are entitled to a hearing, and a new and preliminary fcene of litigation would be opened, involved in endlefs difficulties. The Legiflature, therefore, wifely made the filing the affidavit beƒore the writ iffued, the conclufive teft for holding the Defendant to bail ; and, from the circumftances under which the law was paffed, we are authorized to affert, that without thefe eafy exceptions, the privilege itfelf would never have been granted.

But, if the doctrine which the oppofite fide advance is allowed, the 2d and 3d Sections of the act, would contradict each other, inftead of holding that clear and fair meaning, which, taken according to their diftinct objects, they naturally prefent. For, fhould any one, contrary to the fpitir of the 1ʃt Section, iffue a Capias againft a freeholder, then the 3d Section  provides a remedy, by directing the Court to ftay all proceedings againft the Defendant, until they examine his circumftance, and if they find he is fuch as the act intended to be exempted, they are required to abate the writ. But this is in the cafe of an arreʃt in the firʃt inʃtance, and not of a Capias founded upon an Aƒƒidavit previouʃly ƒiled, according to the terms of the 2d Section; which terms make a Condition precedent, and, being complied with, the moft wealthy freeholder is fubject to an arreft ; nor can the Court afterwards interfere to relieve him.

For the Deƒendant.– The Act of Affembly upon this fubject is clearly divided into two parts ; firʃt, it treats of thofe cafes which depend implicity on the affidavit of the party, ftating the facts ucomplicated with law ; and ʃecondly, it treats of thofe cafes, which depend on their refpective circumftances, when brought into queftion before the Court. The prefent cafe does not come within the firft clafe, but is fairly within the fecond ; for, having enumerated all the exceptions which may he proved by the oath of the party, or fome perfon for him, the act goes on to ftate the exceptions which are to be made appear ƒrom Records or otherwiƒe; and, the very laft of thefe, is the inftance on which the controverfy arifes.

The Defendant's objection being thus warranted by the letter of the law, will be fupported, likewife, by the principle and reafon of the thing. For, would it not be abfurd to leave it to an illiterate, though honeft, man, to determine what conftitutes a legal reʃidence? or, to fuffer an unprincipled, though cautious, Plaintiff, to take advantage of a fhort abfence, to juftify his fwearing, that the Defendant has not been reʃident  within the State, for two years before the arreft ? If the Court cannot an all develops the circumftances, it will make no difference in the cafe, whether the abfence is for a year, or a day ; on a party of pleafure, or a journey of bufinefs ; the privilege of the moft fubftantial freeholder, muft lie forever at the mercy of his antagonift ; and even a continental officer, difpatched upon the duties of his profeffion to anoter ftate, will be equally ble