Magee v. Callan

16 F. Cas. 382, 4 D.C. 251, 4 Cranch 251

• Court: U.S. Circuit Court for the District of District of Columbia
• Decided: November 15, 1832
• Status: Published

Opinion

The CouRT

(Morsell, J., contra, or at least doubting,)

refused to permit one of the defendants to appear and give bail, unless bail and appearance be entered for both.

The joint effects are attached to compel the appearance of both; and ought not to be given up without the appearance of both ; and the defendants cannot be permitted to appear without good bail.

On the next day, Mr. Marbury offered an ex parte affidavit of Mr. J. P. Ingle, the clerk of the canal company, that the company had no joint effects of the defendants in their hands, but had the separate effects of each; and moved again to appear and give bail for Clements alone, so as to discharge his separate effects, and contended that he had a right, in this manner, to show that no joint effects were attached; and that, in an attachment against a partner for his separate debt, his share or interest in the joint effects may be attached. Campbell v. Morris, 3 Har. & McH. 553, and Wallace et al. v. Patterson et al. Garnishees of Eyre, 2 Har. & McH. 463.

The CouRT, however, (Morsell, J., absent,) said that the affidavit of Mr. Ingle could not be received as sufficient evidence to the Court, in this stage of the cause, that the effects in the hands of the Canal Company, are not joint effects. The plaintiff had a right to have that question tried, either upon interrogatories, or by a jury, upon the issue of milla bona ; and this Court could not, in this manner, deprive him of that right.

Bail was then given for both, and the attachment dissolved.