1788.
or could not, recover it from him, will, I think, make no material difference as to the prefent motion. It muft, however, be obferved, that, if he can claim this money at all, it muft be under the execution, and as execution creditors are faved, it would be very queftionable whether the Commiffioners could recover it from him. If they could not, then the creditors at large muft be poftponed to him and the other judgment creditors ;– if they could recover it, then it would not only be a vain thing to order the money into his hands, as he muft, be a circuity of action, be obliged to refund it, but it would, in fact, be ordering it into the hands of a perfon not intitled to receive it: And the confequence would be, that the real execution creditor, whofe claim is faved by the act, would infallibly be cut out of his preference.
Whether this is, or is not, a bona ƒide debt, is not the fubject of our prefent enquiry. If any fraud could be proved, this Court would certainly on motion fet afide both the execution and the judgment, but that could not be for the benefit of the prior judgment creditor, whofe claim is founded upon the execution; but for the benefit of the creditors at large under the Commiffion ; who my ftill have a remedy by action, if they can fhew the execution to have been collufive and unfair.
The only queftion, however, now before us, is whether a prior judgment creditor fhall come in under this execution, which we think he cannot as it would defeat the exprefs intent of the bankrupt law.
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.
and
