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
