# Vienne v. McCarty

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VIENNE verʃus M‘CARTY, furviving Partner.
A
SHIPPEN Preʃident:— The firft point to be confidered in this cafe, is, whether the Court think themfelves authorized to enquire into the caufe of action in the cafe of attachments, as they do in cafes of Copias, where the defendant's perfon is taken into cuftody ? The reafon of enquiring into the caufe of action on writs iffued againft the perfon, is to prevent a vexatious plaintiff from imprifoning the body of the defendant without cauʃe In the cafe of attachments, though the reafon may not perhaps be fo forcible, as the perfonal liberty of the defendant is more precious than his property, yet the abufe of the procefs of law may be as great, and the neceffity of providing againft a wanton and groundlefs feizure of the defendant's effects, as obvious. In the cafe of ʃpeciƒic articles attached, a ftranger's fhip, or other effects, may be taken out of his hands, and detained for fuch a length of time as to ruin his voyage, and embarrafs his affairs beyond redrefs. So, in the cafe of debts attached, his property may be locked up, his remittances prevented, and the injury nearly as great as in the other cafe. The bail marked by an attorney, or ​
1785.
a malicious plaintiff, may be out of all bounds difproportioned to the debt ; and if there was no way of examining into the juftice or extent of the demand, a defendant might be at the mercy of the plaintiff, to be ruined at his pleafure. All thefe mifchiefs may be prevented without injury to any one, by an enquiry made by the Court into the caufe of action, in the fame manner that it is every day done in cafes of Copias: and we think the fpirit of the law, and found reafon, point out the neceffity of fuch an interpofition.
The caufe of action fhewn in this cafe, is a bill of exchange drawn by James Cummins, with a proteft for non-payment, and this would undoubtedly be a fufficient caufe of action againft James Cummins, his executors, or adminiftrators ; but to make it amount to a caufe of action againft William M‘Carty, the furviving partner of James Cummins, it being the feparate debt of James Cummins, contracted before the partnerfhip, fomething more muft be fhewn—all that is fhewn is, that he has a fum of money in his hands, recovered in two actions one againft John Nixon, as adminiftrator of James Cummuns the other againft Miƒƒlin and Butler, both fums recovered by M‘Carthy as furviving partner of Cummins. This is an action at common law, and I am at a lofs to find out upon what principle it can be fupported. I have heard of no cafe which gives a creditor an action againft the debtor of his debtor;– there is no privity between the parties. An attachment will lie againft the debtor himfelf, and that attachment may be laid in the hands of a third perfon as garnifhee ; but to bring the action originally againft that perfon, is, I believe, without example, unlefs fome particular lien appears on the goods or money in his hands ; and no lien appears in favor of this creditor which does not exift in favor of every other private creditor of Cummins. Befides, there appears to have been a verdict of a Jury, and a judgment of a court of law, upon the very point on which the plaintiff founds his demand. If the adminiftrator of Cummins could not retain this money againft the furviving partner (the adminiftrator being the proper reprefentative of all the creditors) how can a fingle creditor maintain an action, for that very money ?
We are therefore of opinion, that no fufficient caufe of action appears againft the defendant, and adjudge that the money and effects of the defendant be difcharged from the attachment.