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Page:United States Reports, Volume 2.djvu/221

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ar; Snrasus Conner or Pemyylwnie. j Y793· * •·/vs) I Fi·rzr:taar.¤ verfu: CALDWELL. = HIS fuit was inftituted bythe plaintiff] for the ufe qf // ASQ E 4 T 1lIs:re £9‘_7abn/`wr againll: Andrew Caldwell, the furviva / ing partnerof Andrew and _7n.·ner Caldwell. Vanre, Caldwell, 35: R- and Vnnee, had alligned toMaare if yobryén, a debt due to them Q _ from Andrew, audtzamer Caldwell, and thofe ailignees employ- ed the plaintiff as cir agent to recover the amount. The de-` #4 fendant, accordingly, gave Fitzgerald a note dated the 8th of April, 1782, for {gong 5 1, “ provided fo much appeared due to Vance E9' Ca. on a fettlement of accounts.” The mat- ter in difpute was agreed to be referred ; and the referees re- ported •• that there was a fum of £4,¤I6 rg .4 due, on the 8th of April 1782, from Andrew and june: Cntllwell, to Ro- bert Vance, furviving partner 8tc. and further that there was a fum of éogoog _; 1 due from the defendant to the plaintid, on a note m Andrew and fume: Caldwell, to the plaintilli dat- ed the Sth of April, 1782.,, Upon this report, judgment nf was entered ; and, afterwards, it was agreed, “ that the judgment fo entered fhould be abfolute; but that it {hould wait the trial of certain foreign attachments (which had been laid, before the commencement of this fuit, by fuppofed creditors of Vance E9' Cv. upon their eifeéts in the hands of the defendant) - and that if any thing {hould bc recovered thereon againft Andrew Caldwell, t.he fame {hould be defalked out of the faid fum, for which judgment was rendered, and execution i{l`ue for the reli- due only.” It appeared, that the attachments in queltion had been laid by the defendant himfelf, inthe name of another pcrfon, and without any authority, but what might be in- ferred from ageneralcorrefpondence; and, in one inftance, an · iifue being formed and tried, on the plea of nuldr bonu, the verdiél was in favor of the garniihee. On the gth of zfbril 1793, the defendant’s Counfel (Serjmnr, Lrgrrybll, and }ll•K.·nn) moved to {lay further proceedings, up- · on payment of the principal fum found due by the referees, and coils. The motion was oppofed by Tilglunnrz, Wileocler, and Lewit for the plaintiff ; who contended, that under the circum- ltances of this cafe, interell ought to be allowed. M·Kmm, Claief jrylire. It is clearly the general rule that a garnifhee is not liable for interell, while he is rcllrained from the payment of his debt, by the legal operation of a foreign at- tachment. But it is faid by the plaintilf’s Counfel, and Iaf- {ent to the propolition, that if there is any fraud, or collufion; nay, if there is any uzircafonable delay occalioncd by the con- duil: l