Page:United States Reports, Volume 1.djvu/258

Rh 

1788.

which the Capias is grounded, ought to be made appear to the Juftice who grants the writ; but, in the latter part, when the disjunction of the claufe occurs, the expreffion is general, if the Plaintiƒƒ can make appear ƒrom records or otherwiʃe, without faying to whom he fhall make his allegation appear. At firft, indeed, I thought this might alfo relate to the Juftice who grants the writ ; but on a further confideration of the fubject. I am convinced, that unlefs the legiflature intended fomething more, it would never have been provided by the third fection, that the Court fhall ftay all proceedings againft the Defendant, till they eamine his circumʃtances ; for it would have been ufelefs and nugatory to direct that examination, if they were, neverthelefs, bound by the contents of the affidavit.

Befides, upon the principles of common juftice, it is material, that he Court fhould have the power of making an enquiry into the facts ; for, though the Plaintiff's opinion is taken, in the firft inftance, to afcertain whether there is a fufficient eftate left for the payment of his demand ; yet, it would be unreafonable to deprive the Defendant of his privilege, if he could, afterwards, fhew, that independent of a trifling mortgage or judgment, an ample fecurity was left for his adverfary's debt. Nor is the equity of the cafe lefs applicable upon the queftion of reʃidence ; for, an occafional abfence of a month, or a week, might with fafety be made the foundation of the affidavit required by the act ; and, yet who will fay, that is law or reafon, this ought to work a disfranchifement of the Defendant?

The law is explicit, that if the Court find the Defendant is fuch, as by the act is intended to be exempted, the writ fhall be abated:  this, furely, alfo implies fomething beyond a mere enquiry, whether an affidavit has been previoufly filed. If the is fuch “ as by the act is intended to be exempted,” is a fentence materially to be regarded in the claufe ; for, otherwife, it would have been fufficient to fay, that if no affidavit is filed, nor any mortgage or judgment is produced, the Defendant fhall be difcharged from the action.

It is evident, upon the whole, that the Legiflature did not mean to fubject a citizen of large eftate to the procefs of a Capias, on an account of a fhort abfence from the ftate ; and, therefore, we are of opinion, that they have left a controuling power in the Court to enquire into the circumftances of the cafe, and to relieve a Defendant from an arreft, if we think he was intended to be exempted, although the words, that he has bot been reʃident may be inferted in the Plaintiff's affidavit.

The Defendant was, accordingly, allowed to controvert the fact, of his not being refident in the State for two years before the writ iffued. JAMES See poft the fame cafe.