McClenachan v. McCarty
M‘CLENACHAN et al. verʃus M‘CARTY.
T
HIS was a Foreign Attachment, in which judgment was entered at the third term; and a writ of inquiry being afterwards executed, a motion was made, on behalf of the Defendant, to quafh the return, becaufe the Sheriff and Inqueft has refufed to hear his evidence at the time of executing the writ.
On the argument the nature of the evidence that had been excluded, was ftated, and Ingerʃoll, in fupport of the motion, contended– 1ft, That, upon general principles, both parties are entitled to be heard before the Inqueft; and that, although they are bound to find fome damages, yet, if there is no proof of any being fuftained, they will find no more than a fingle penny ; and that merely to fatisfy the form of the proceeding. The writ commands the Inqueft diligently to enquire what damages &c fo that to inform their confcienous, they ought certainly to hear the allegations of both parties ; and if they affefs the damages too high, or too low, their return will be fet afide, which proves that the Court has a fuperintending power over Juries of Inquiry. 2 Lill. Abr. 721. 2. Sayre's Law oƒ Dawn. 123. 193. 203. 233. It is a maxim, indeed, that damages cannot be affeffed without a Jury. 3 Bl. Com. 395. 396. 7.
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and it clear that under the rules at Niʃi Prius, a Defendant may fubmit to judgment being entered, and yet conteft the matter before the Jury of Inquiry, foas to affect the quantum of damages, for which the judgment fhall ftand.– 2dly, The cafe of a Foreign Attachment makes no exception to the general rule. In London only actions of debt can be brought within the cuftom ; fo that the judgment being compleat, no damages are to be affeffed. There are many other points in which the Cuʃtom oƒ London differs from the practice under our attachment law. Lands, and, in fhort, every other fubject of property, are liable in Pennʃylvania to an attachment; being as much fo in his abfence, as the Defendant's perfon would be, if he were here. But the Cuʃtom oƒ London proceeds only on the fuppofition of a debt due from the Garnifhee to the Defendant. Hence the analogy between the cuftom there, and our practice, is very trifling. The act of Affembly does not prefcribe a writ of inquiry ; nor does the Freeholders law, upon a judgment by default after fummons ; yet, in both cafes, writs of inquiry are uniformly iffued to affefs damages; and for the plain reafon already affigned, that damages cannot be affected without the intervention of a Jury. Befides, it has been the uniform practice under the attachment law to give notice of executing the writ ; which neceffarily implies a right to controvert the quantum of damages ; and the queftion is not whether the evidence would have availed, but whether it ought to have been heard.
Wilʃon and Wilcocks for the Plaintiffs.–It is in the power of the Defendant to appear, and entitle himfelf to a trial in Court; but it would be unjuft in this manner to permit him to draw the decifion of an import queftion from the proper tribunal. Admitting, however, that the law is what the Defendant's counfel ftates, where a party is completely in Court, and afterwards fuffers judgment to go be default, it is applicable to the cafe of an attachment, the object of which is to comel an appearance. The cuftom of London, which is certainly the ground-work of our attachment law, admits not fuch privilege as the Defendant now claims. In London the Plaintiff is not obliged to execute a writ of inquiry, or to prove his debt in Court, but merely to fwear to it; nor does any expreffion in our act of Affembly enjoin the execution of a writ of inquiry ; but that, as well as the notice in office, depends entirely upon ufage ; for, the only trial mentioned in the act is on the ʃcire ƒacias between the Plaintiff and Garnifhee. Nor does the Legiflature precipate the caufe: judgment cannot be entered ‘till the third term, and twelve months afterwards are given to obtain a trial upon the merits. In this action, likewife, the Plaintiff acquires no general lien by his judgment, as in other actions, but can only iffue execution againft the property attached: fo that, upon the whole there can be no reafon, on principals of equity, that the Defendant fhould be head without putting in fpecial bail. The Freeholders act can furnifh no argument; for the law in that cafe, prefcribes a mode by which
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the Defendant fhall be brought into Court ; but, in an attachment, the Defendant is never in Court until bail is filed.
SHIPPEN,Preʃident.– This is motion to fet afide the inquifition of a Jury of Inquiry in a foreign attachment, on the ground of the Defendant's evidence being refufed to be heard before the Sheriff and Inqueft, on the execution of the writ of inquiry.
On the part of the Plaintiffs two point have been made and argued:––
1ft,That on the execution of writs of Inquiry generally, no evidence on the part of the Defendant ought to be heard, as by fuffering judgment to go by default, he had admitted the Plaintiffs caufe of action ; and that, therefore, evidence on the part of the Plaintiffs only fhould be heard.
2dly, That, although it were admitted, that, generally, on executing writs of Inquiry, after an interlocutory judgment, fuch evidence might be heard ; yet, in thofe cafes were writs of Inquiry are, executed to afcertain the Plaintiff's demand, after judgment on ƒoreign attachments, no fuch evidence fhould be admitted ; becaufe the foreign attachment iffues only to compel an appearance, and the defendant had it in his power, even after the return of the Inquifition, by entering fpecial bail, to try the caufe iin the ufual manner, before a Court and jury.
As to the firʃt point, the law feems fettled, that, after a judgment be default, the Defendant has a right to offer his evidence to the Jury of Inquiry to combat the Plaintiff's proofs ; and that where the Sheriff refufes to hear the evidence on both fides, the Court will direct a new writ of Inquiry.
As to the ʃecond point, it will be neceffary to confider the law of attachment of 1705, and the practice under it, together with the reafons and extent of that practice.
The Legiflature, in framing this act, certainly took for their mode the Cuftom of London, concerning foreign attachments ; the principles of the law and mode of proceeding are in many refpects conformable to that Cuftoms; and the difference appears to be lefs in the act itfelf, than in the practice under it. In London the proceeding is by plaint againft the Defendant, fupported by the oath of the Plaintiff. On this is founded the attachment and proceedings againft the Garnifhee ; but no further proceedings is had againft the Defendant till he enters fpecial bail, and then a declaration is filed and a trial had in the ufual way. The practice under our act is firft to obtain judgment againft the Defendant, then to file a declaration againft him according to the nature of the demand; if in debt, the judgment ftands for the fum declared for, without even an oath to fupport it ; if in caʃe, a writ of Inquiry iffues for a Jury to afcertain the demand, and then the ʃcire ƒacias iffues againft the Garnifhee. No actual Notice is given to the Defendant of the executive of the writ of Inquiry; his attendance is never expected, and
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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.
Rule difcharged.