Page:United States Reports, Volume 1.djvu/389

378 

1788.

is in moft cafes impoffible. It feems to be a mode adopted, not for a trial of the merits, but only to conform to the nature of an action on the cafe, which requires a Jury of Inquiry to afcertain the fum for which execution is to iffue; and it may be confidered as a proceeding to inform the confcience of the Court, in the room of the fupoofed oath in the action of debt. In its nature it appears to be an ex parte proceeding, and not within the reafon of the rules in executing writs of Inquiry on Judgments by default ; where the Defendant has regular notice, and has not other opportunity of making a defence.

The attachment law, and all proceedings under it, fuppofe the Defendant to be an abfent perfon, and he has, in truth, no day in Court, till he enters fpecial bail, and thereby diffolves the attachment ; or comes in afterwards, when the money is recovered from the Garnifhee, to difprove the debt, which is done by a ʃcire ƒacias ad disprobandum debitum; in either of which cafes, he puts the Plaintiff upon the legal proof of his demand, and is admitted to make full defence. The right of making that defence before the Jury of Inquiry has no foundation either in the act or the practice undeer it.–The law fuppofes, from his abfence, that he is then incapable of making a defence ; and, for that reafon, has afforded him ample time and opportunity afterwards to do it; nor does it accord with legal ideas that he fhould have this opportunity of trying his caufe, and alfo another afterwards upon entering fpecial bail.

It has been faid, that notice of executing thefe writs of Inquiry has been ufually fet up in the Prothonotary's and Sheriff Offices; and that this notice would be vain, if the party might not appear and make his defence. This practice of putting up notices, muft have been introduced by the Gentlemen of the Law ex mojore cautea. If it were a new cafe, we fhould perhaps think it nugatory; as a perfon abroad cannot be fuppofed to take notice of a paper put up in the office, which he could never fee. However, as it is the practicel it is proper it fhould be continued; and it may, at leaft, ferve the purpofe of giving the Garnifhee, or the Attorney in fact, of the Defendant, an opportunity of knowing, and apprizing his confiftuent, of the nature of the Plaintiff's demand, that he may be prepared to defend himfelf againft it.

Upon the whole, we are of opinion, that the refufing to admit the Defendant in the attachment to produce his evidence before the Jury of Inquiry, is not a fufficient reafon for fetting afide the Inquifition.



N a rule to fhew caufe why the Judgment confeffed by warrant of Attorney in this cafe fhould not be opened, Fiʃher ftated that feveral partial payments had been made by the Defendant, which