Shrewsbury v. Pearson ( 1821 )

Mr. Justice Gantt

delivered the opinion of the court.

Whatever the practice may have been in relation to motions of this kind, it cannot be denied but that a judge, in a doubtful case, may and ought to refuse a metion to quash an attachment by affidavit before him. Whether the defendant was in the state at the time the attachment issued, constituted a fact which might have been pleaded in abatement ; it was certainly competent in the plaintiff to deny the existence of such fact, and if the court found that the question was one of doubt, it would have been a departure from duty to have decided it without the intervention qfa jury. On this ground J think the discretion exercised by the judge below was-correct and proper.-

The same may be said in relation to the second ground ; questions of qonbt and difficulty are not to be decided hastily upon motion. Here it was alleged that the defendant had been guilty of a fraudulent concealment of his property ; if such was the fact, he was not entitled to the benefit of the act, and this constituted a fact which the court ought not to have decided. • ,

The motion is refused.

justices Johnson, Huger, Colcock and Richardson, concurred. • ■ ■