This 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 quash the return,
because the Sheriff and Inquest had refused to hear his evidence at
the time of executing the writ.
On the argument the nature of the evidence that had been
excluded, was stated, and Ingersoll, in support of the motion,
contended 1st, That, upon general principles, both parties are
entitled to be heard before the Inquest; and that, although they
are bound to find some damages, yet, if there is no proof of any
being sustained, they will find no more than a single penny; and
that merely to satisfy the form of the proceeding. The writ
commands the Inquest diligently to enquire what damages &c. so
that to inform their consciences, they ought certainly to hear the
allegations of both parties; and if they assess the damages too
high, or too low, their return will be set aside, which proves that
the Court has a superintending power over Juries of Inquiry. 2
Lill. Abr. 721. 2. Sayre's Law of Dam. 123. 193. 203. 233. It is a
maxim, indeed, that damages cannot be assened without a Jury. 3 Bl.
Com. 395. 396. 7.
Page 1 U.S.
375, 376
and it is clear that under the rules at Nisi Prius, a Defendant
may submit to judgment being entered, and yet contest the matter
before the Jury of Inquiry, so as to affect the quantum of damages,
for which the judgment shall stand. 2ndly, The case of a Foreign
Attachment makes no exception to the general rule. In London only
actions of debt can be brought within the custom; so that the
judgement being compleat, no damages are to be assessed. There are
many other points in which the Custom of London differs from the
practice under our attachment law. Lands, and, in short, every
other subject of property, are liable in Pennsylvania to an
attachment; being as much so in his absence, as the Defendant's
person would be, if he were here. But the Custom of London proceeds
only on the supposition of a debt due from the Garnishee to the
Defendant. Hence the analogy between the custom there, and our
practice, is very trifling. The act of Assembly does not prescribe
a writ of inquiry; nor does the Freeholders law, upon a judgment by
default after summons; yet, in both cases, writs of inquiry are
uniformly issued to assess damages; and for the plain reason
already assigned, that damages cannot be assessed without the
intervention of a Jury. Besides, it has been the uniform practice
under the attachment law to give notice of executing the writ;
which necessarily implies a right to controvert the quantum of
damages; and the question is not whether the evidence would have
availed, but whether it ought to have been heard.
Wilson and Wilcocks for the Plaintiffs. It is in the power of
the Defendant to appear, and entitle himself to a trial in Court;
but it would be unjust in this manner to permit him to draw the
decision of an important question from the proper tribunal.
Admitting, however, that the law is what the Defendant's counsel
states, where a party is completely in Court, and afterwards
suffers judgment to go by default, it is not applicable to the case
of an attachment, the object of which is to compel an appearance.
The custom of London, which is certainly the ground-work of our
attachment law, admits no such 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 swear to it;
nor does any expression in our act of Assembly enjoin the execution
of a writ of inquiry; but that, as well as the notice in office,
depends entirely upon usage; for, the only trial mentioned in the
act is on the scire sacias between the Plaintiff and Garnishee. Nor
does the Legislature precipitate the cause: judgment cannot be
entered 'till the third term, and twelve months afterwards are
given to obtain a trial upon the merits. In this action, likewise,
the Plaintiff acquires no general lien by his judgment, as in other
actions, but can only issue execution against the property
attached: so that, upon the whole, there can be no reason, on
principles of equity, that the Defendant should be heard without
putting in special bail. The Freeholders act can furnish no
argument; for the law in that case, prescribes a mode by which
Page 1 U.S.
375, 377
the Defendant shall be brought into Court; but, in an
attachment, the Defendant is never in Court until bail is
filed.
Shippen, President. This is a motion to set aside the
inquisition of a Jury of Inquiry in a foreign attachment, on the
ground of the Defendant's evidence being refused to be heard before
the Sheriff and Inquest, on the execution of the writ of inquiry.
On the part of the Plaintiffs two points have been made and argued:
1st, That on the execution of writs of Inquiry generally, no
evidence on the part of the Defendant ought to be heard, as by
suffering judgment to go by default, he had admitted the Plaintiffs
cause of action; and that, therefore, evidence on the part of the
Plaintiffs only should be heard. 2ndly, That, although it were
admitted, that, generally, on executing writs of Inquiry, after an
interlocutory judgment, such evidence might be heard; yet, in those
cases where writs of Inquiry are executed to ascertain the
Plaintiff's demand, after judgments on foreign attachments, no such
evidence should be admitted; because the foreign attachment issues
only to compel an appearance, and the Defendant has it in his
power, even after the return of the Inquisition, by entering
special bail, to try the cause in the usual manner, before a Court
and Jury. As to the first point, the law seems settled, that, after
a judgment by 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 refuses to hear the evidence on both
sides, the Court will direct a new writ of Inquiry. As to the
second point, it will be necessary to consider the law of
attachments of 1705, and the practice under it, together with the
reasons and extent of that practice. The Legislature, in framing
this act, certainly took for their model the Custom of London,
concerning foreign attachments; the principles of the law and mode
of proceeding are in many respects conformable to that Custom; and
the difference appears to be less in the act itself, than in the
practice under it. In London the proceeding is by plaint against
the Defendant, supported by the oath of the Plaintiff. On this is
founded the attachment and proceedings against the Garnishee; but
no further proceeding is had against the Defendant till he enters
special bail, and then a declaration is filed and a trial had in
the usual way. The practice under our act is first to obtain
judgment against the Defendant, then to file a declaration against
him according to the nature of the demand; if in debt, the judgment
stands for the sum declared for, without even an oath to support
it; if in case, a writ of Inquiry issues for a Jury to ascertain
the demand, and then the scire facias issues against the Garnishee.
No actual Notice is given to the Defendant of the execution of the
writ of Inquiry; his attendance is never expected, and
Page 1 U.S.
375, 378
is in most cases impossible. It seems to be a mode adopted, not
for a trial of the merits, but only to conform to the nature of an
action on the case, which requires a Jury of Inquiry to ascertain
the sum for which execution is to issue; and it may be considered
as a proceeding to inform the conscience of the Court, in the room
of the supposed oath in the action of debt. In its nature it
appears to be an ex parte proceeding, and not within the reason of
the rules in executing writs of Inquiry on Judgments by default;
where the Defendant has regular notice, and has no other
opportunity of making a defence.
The attachment law, and all proceedings under it, suppose the
Defendant to be an absent person, and he has, in truth, no day in
Court, till he enters special bail, and thereby dissolves the
attachment; or comes in afterwards, when the money is recovered
from the Garnishee, to disprove the debt, which is done by a scire
facias ad disprobandum debitum; in either of which cases, he puts
the Plaintiff upon the legal proof of his demand, and is admitted
to make a full defence. The right of making that defence before the
Jury of Inquiry has no foundation either in the act or the practice
under it. The law supposes, from his absence, that he is then
incapable of making a defence; and, for that reason, has afforded
him ample time and opportunity afterwards to do it; nor does it
accord with legal ideas, that he should have this opportunity of
trying his cause, and also another afterwards upon entering special
bail.
It has been said, that notice of executing these writs of
Inquiry has been usually set up in the Prothonotary's and Sheriff's
Offices; and that the notice would be vain, if the party might not
appear and make his defence. This practice of putting up notices,
must have been introduced by the Gentlemen of the Law ex majore
cautela. If it were a new case, we should perhaps think it
nugatory; as a person abroad cannot be supposed to take notice of a
paper put up in the office, which he could never see. However, as
it is the practice, it is proper it should be continued; and it
may, at least, serve the purpose of giving the Garnishee, or the
Attorney in fact, of the Defendant, an opportunity of knowing, and
apptizing his constituent, of the nature of the Plaintiff's demand,
that he may be prepared to defend himself against it.
Upon the whole, we are of opinion, that the refusing to admit
the Defendant in the attachment to produce his evidence before the
Jury of Inquiry, is not a sufficient reason for setting aside the
Inquisition.
Rule discharged.
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