1788.
The law declares that if any Freeholder exempted ƒrom erro, by virtue of this act, fhall happen to be taken by a writ of arreft, the Court fhall abate the writ. But, if an affidavit has been filed agreeably to the 2ʃection, no man can be a Freeholder exempted by the act from arreft ; and, confequently, the Capias, in this cafe, fhall be maintained. The act was evidently the refult of a compromife between contending parties ; one fide obtained a general claufe exempting Freeholders from arreft ; and the other fide, guarded againft this privilege by a Provifo, which, in fact, puts it in the power of any perfon to compel a Freeholder to give bail. But if the Court can enquire into the facts in all cafes, this provifion is a mere fnare ; for fhould the weight of affidavits be eventually againft the Plaintiff, he will not only lofe his action, but be condemned in treble cofts.
Upon the firʃt argument, SHIPPEN, Preʃident, obferved, that there was confiderable ambiguity in the Act of Affembly ; and that he was not fatisfied with refpect to the meaning of the exprefion “ where the Plaintiff can make appear from records, or otherwife,” as it was not fpecified to whom the exception fhould be made appear. He faid that in feveral cafes (one of which he remembered was on Mr. Levy's motion) it had been determined that the fecond fection of the act was disjoined ; and that no affidavit was neceffary to fupport the exception founded upon a judgment, which was the legal teft of its own exiftence, and no other evidene would be received to prove it. He added, at the fame time, that the words , as the Deponent believes, clearly related to the Defendant's not having a fufficient eftate left to fatisfy the Plaintiff's demand ; that it is not neceffary to fet forth the facts in the affidavit is required to hold the Defendant to bail ; that if, indeed, the whole of the fecond fection were connected, it would amount to a condition precedent, and a pofitive affidavit would preclude the Court from any enquiry into the facts ; but, he continued, that the fection was not only disjoined by the words of the act ( in the firft place admitting proofs ƒrom records or otherwiʃe) but alfo by the reafon and propriety of the cafe, which will not permit a Plaintiff, in his own favor, to determine what conftitutes a legal refidence.
Smith, the Prothonotary, being afked as to the Practice, faid, that in fome cafes the affidavits were filed before, but, more frequently, after the iffuing of the writ. If the fuggeftion was, that the Defendant intended to go abroad, the affidavit had always been filed in the firft inftance ; but with refpect to the cafe of reʃidence, he did not recollect any inftance, before the prefent, where that was done.
The president now delivered the opinion of the Court.
SHIPPEN, Preʃident.– We have found fome difficulty in obtaining a fatisfactory idea of the meaning of the fecond fection of this act. It would feem, by the former part, that the exception, upon
