Shrewsbury v. Pearson

12 S.C.L. 331

Opinion

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. • ■ ■