Whiteside v. Oakman — 1 U.S. 294

Majority

p. 305

Whiteside v. Oakman.

Syllabus

Foreign attachment.

It is too late, to move to quash a foreign attachment, after judgment has been regularly entered upon it.

This was a foreign attachment, returnable to December term, 178'7, in which judgment had been entered agreeable to the act of assembly.

Ingersoll now moved, for a rule to show cause why the attachment should not be quashed; observing, that if the same thing might be done in'a circuitous manner, he supposed it could not, in this way, be deemed too late ; for, upon entering special bail, the plaintiff might be called on to show cause of action ; and attachments are often set aside, where no cause is shown.

It is very late to move for a rule of this nature. If tHere is a mistake in the proceedings, but not on the merits, a rule to show the cause of action may be required, after special bail is entered. We should be afraid, however, of introducing so dangerous a practice as would be countenanced by granting the present motion.

*Ingersoll said, that, if the court were of opinion, that he was toe late, ho should not certainly press the question; but waive his motion; which was accordingly done.^[1]

(a) (a) In Penman v. Gardner, 4 Yeates 6 , a rule was granted to show cause of action, at the third term, and after judgment entered, notice having been given of the intended motion, before judgment. The court said in that case, “ The general rule laid down in Whiteside v. Oakman, we adopt. But there certainly may be just exceptions to it, ip some instances which may be put. Suppose, a foreign attachment levied, which is wholly unwarranted, of which the defendant should have no notice, until judgment was obtained, and he should immediately apply to the court, would not the court grant him redress ?” See also Miles v. McFarland, stated in Sergeant on Attachments, p. 138; Kearney McCullough, 5 Binn. 389 .