MCCLENACHAN v. MCCARTY
1 U.S. 375

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U.S. Supreme Court

MCCLENACHAN v. MCCARTY, 1 U.S. 375 (1788)

1 U.S. 375 (Dall.)

McClenachan et al.
v.
McCarty

Court of Common Pleas of Philadelphia County

December Term, 1788

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 [1 U.S. 375, 377]


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