
    Edward Shrewsbury vs. Benjamin Pearson.
    'The court in a doubtful case, will not, on motion, set aside a foreign attachment, on affidavit that the debtor was m the state at the time of issuing the attachment; nor upon affidavit that the debtor within a year and a day had taken the benefit of the insolvent debtor’s act, which act prohibits any suit from being brought against such debtor for a year and day, and which year and day had not expired before the suing out of this attachment. — 
    
    IMioTION to set aside a foreign attachment at October Term, 1820, for Charleston district, before Mr. Justice Bay, who refused the motion. This was therefore an ap*r plication to reverse that decision.
    The grounds taken below were :
    1st. That the defendant was within the state when the attachment issued; and,
    2d. That no suit could be commenced against the defendant for a year and a day, after having taken the benefit of the insolvent debtor’s act, which time had not elapsed before the suing out the attachment in this case.
    To support the first ground, certain affidavits were produced, tending to prove that the defendant arrived in Charleston on the morning of the day, and before the in tachment issued.
    On the part of the plaintiff, it was contended that the fact of the defendant being in the state or not, when the attachment issued, should be left to the jury to determine, and time was required to shew that the defendant was not witlpn the limits of the state at th^t time.
    On the second ground, it was said in behalf of the plaintiff, that the defendant had been' guilty of fraud in concealing property which ought to have been given up.
    
      
      
         See Havis vs. Trapp, and Grisham vs. Deale, (2 Nott & M'Cord, 130,) and Degnan vs. Wheeler & Co. (Do. 323.) Our court seems to have made a difference between domestic and foreign attach, menta; in the former holding that the attachment cannot be set aside by motion, and in the latter, in the last mentioned case, they were equal. ly divided, whether-on motion a foreign attachment could be quashed, in the case just reported, the last question seems not to be decided. It seems to be the decision of a particular case, under its own circumstances ; but it was thought best to publish it. — 1Í.
    
   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. • ■ ■  