Page:United States Reports, Volume 1.djvu/259

248 

1788.

UDGMENT being entered by default at the firft term, Miƒƒlin had obtained a rule to fhew caufe why it fhould not be opened, upon the affidavit of a third perfon, that the Defendant was bed-ridden, and that there was a juft and confcionable defence.

Todd afterwards oppofed the action as grounded upon the affidavit of a third perfon.

But :– A third perfon fully acquainted fully acquainted with the circumftances ought certainly to be admitted to make the affidavit of a defence when the party himfelf from extreme ficknefs is incapable of making it ; but when he is prefent, and fubject to no difability, it is regularly incumbent upon him to do it. This, however, is a cafe under very particular circumftances ; and the judgment ought to ftand as a fecurity ; but that the Defendant muft be let into a trial, upon an iffueable plea. 

N a rule to fhew caufe, why auditors fhould not be appointed, under the Act of Affembly, the Defendant's depofition was read, wherein he fwore, that no queftion of depreciation could arife in this caufe.

.– The words are fo very general and comprehenfive, that, if the fpirit and intention of the law, expreffed in the preamble and other fections, were not to be confidered, they would include every cafe arifing between the periods mentioned in the act. But it is inconfiftent with the Conftitution, and with juftice, that the trial by Jury fhould be taken away in this manner ; and, therefore, the Courts of Juftice have always determined, that auditors fhall be appointed only where there is a difpute about the depreciation.

The rule difcharged, Hallowell, for the Plaintiff–Sergeant, for the Defendant. 

HE cafe was this : Hoe and Harriʃon of  Virginia being indebted to Wallace and Smith, Wallace, as furviving partner of Smith iffued a foreign attachment againft them, and attached their effects in the hands of Fitzʃimmons entered fpecial bail. The caufe then proceeded, till judgment was finally obtained