¶1delivered the opinion of the court.
¶2Whatever 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.-
¶3The 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. • ,
¶4The motion is refused.