Page:United States Reports, Volume 1.djvu/166

Rh 

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. WEAVER. This cafe was brought before the court upon a doubt entertained by Mr. Preʃident SHIPPEN, of the power of a fingle judge to allurd a remedy in the cafe of attachments, fimilar to that ufually given in cafes ‘‘ arrefts– In the latter cafe, the caufe is ftill continued in court by ordering a common appearance ; but in attachments the defendant being abfent, cannot enter a common appearance, or give a warrant of attorney for that purpofe : Therefore all that can be done, where no caufe of action can be fhewn, is to diffolve the attachment, which it is  the power of the court from whether the writ