Page:United States Reports, Volume 1.djvu/359

348 

1788.

HIS caufe came again before the Court, in confequence of the former decifion, that, on the rule to fhew caufe why the writ fhould not be quafhed, ‘‘ the Defendant may controvert the fact of his not being reʃident in the State for two years next before the writ iffued,” which was ftated in the depofition filed on the part of the Plaintiff, in order to ground a Capias againft him, notwithftanding his being a freeholder. See ant 241.

Sergeant now produced an additional affidavit, fetting forth, that the Defendant had left this State, and refided in Georgia (Where it has a confiderable property) for upwards of fifteen months, next before the writ iffued.

In oppofition to which Lewis examined a witnefs, who provoke that the Defendant had a real eftate in Cheʃter county, whereupon a wife and feveral children conftantly refided ; that he had expreffed an intention of felling his property in Georgia; that he never meant permanently to refide there, but went thither upon particular bufinefs ; and that as foon as that was tranfacted he defigned to return to his eftate and family in Pennʃylvania.

were unanimoufly clearly of opinion, that, upon thefe circumftances, the Defendant ought to be confidered as a refident to the State of Pennʃylvania, and was entitled to his privilege as a freedholder.

Whereupon the rule to fhew caufe why the writ fhould not be quafhed, was made abfolute. 

ULE to fhew caufe why the Capias iffued in this cafe fhould not be quafhed, the Defendant being a freeholder. As the Plaintiff had delayed iffuing procefs until within three or four days of the term, he could not iffue a fummons, (which, muft be, at leaft, ten days before the return) but he had directed the Sheriff to accept the Defendant's appearance, by an indorfement on the Capias.

Heatly, in fhewing caufe againft the rule, obferved, that the words of the Act were, that a freeholder fhould not be arrefted or detained ; that it was fanctioned by an uniform practice in fimilar cafes.

Todd infifted, for the Defendant, that in no cafe, upon no terms, fhall a Capias iffue againft a freeholder, unlefs he is brought within the exception of the Act. SHIPPEN