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Page:United States Reports, Volume 2.djvu/283

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Sornun Counr or Peomjjlvamb. 277 I defendants; but being of opinion, that, at all events, the a&ion 1797, Q could not be maintained in the plaintii`f’s name, they direfled `/VJ * a non-fuit; which was, accordingly, entered. UG`lleaeLr, Rawleaud Hallowell, for the Plaintidi Ingerjrll, Lewis and Dallas for the defendants. M*Cn·rr ver/ur Eaten. $0 ec HIS afticn was brought to September term, I789, by the 5·wh_ T plaintiff, as furviving partner of Cummings, to recover a. de t due to the partnerlhip. On the 4:h of Mareb Z793, the l O• matters in difpute were referred; on the 21fi: of january r79_g, 3 I there was a report filed, finding £t6; o_/i 1. in favor ofthe plaintiff ; and thereupon judgment nyi was entered. Bot, it (lil- appeared, that a Foreign Altaebmeut had been iffued, in the Pbi- Iadeybluh Common Pleas, returnable to Llarrb term t 793, in the name of Elizabeth Pringle, adminiltratrix of j"al=o Pringle, againfl: William M‘C¤rty·, the prefent plaintiff, for a debt due by him in his feparate, individual capacity, to the decealed intcitate; and that the attachment had been ferved upon effeéis Src. in the hands of Emlen, the prefent defendant, who was a debtorto the partnerfhip of .M•Cart_y Es" Cummings, but did not owe any thing to M ‘Uart_y in his fepatate right. On the 24th of fanuaey I79S, E. Yi`@bz·:rm St Wr7¢ubr, for the defendant, obtained a rule to (hew cautiz, why the execution in tl1is a€tion, fhould not be (layed, until an indemnification is had againft the foreign attachment of Pringle, adminiftratrix er. .M‘Carty. And, after argument, upon a cafe, fiating the pre- ceding fa&s, (Iugerfall appearing for the plaintiff`) the judges delivered their opinions, feriatim, to the following efi·`e&: · M¢Ke.m, Cbiffzyfice. The quefiion in this caufe, is-·whe- ther the debt due from Emlen to the late partnerfhip of 1bl*Ca:·ty E9' Cummingr, has been fecured by the foreign attachment, iu favor of M*Carty’s feparate creditor, or can only bc difcharged by a payment to the furviving partner? Two objeéiions are urged againfi the claim under the attach- ment :-1li. That the prefent aelion was commenced by the furviving partner, before the attachment was laid; and a debt in fuit is not attachable. 2d. That the attachment is brought to recover a debt due from }|{*Car{v in his feparate capacity ; whereas the debt attached is due from the garnithcc to the com- pany of M ‘C.1rly C9 Cummings; and the partnerfhip debts (which, it is {aid, are not yet fcttlcd) mult firfi be paid out of the partner- fhip funds. But, it is to be obferved on thc_/ivy} objefiion, that, although a debt in fuit is not attachablo in England, becaufe the fupetior Courts