M'Carty v. Emlen

2 U.S. 277, 2 Dall. 277

• Court: Supreme Court of the United States
• Decided: March 1, 1797
• Status: Published

Opinions

M‘Kean, Chief Justice.

The question in this cause, is—whether the debt due from Emlen to the late partnership of M'Carty & Cummings, has been secured by the foreign attachment, in favor of M'Carty's separate creditor, or can only be discharged by a payment to the surviving partner ?

Two objections are urged against the claim under the attachment:—1st. That the present action was commenced by the surviving partner, before the attachment was laid ; and a debt in suit is not attachable. 2d. That the attachment is brought to recover a debt due from M'Carty in his separate capacity ; whereas the debt attached is due from the garnishee to the company of M‘Carty & Cummings; and the partnership debts (which, it is said, are not yet settled) must first be paid out of the partnership funds.

But, it is to be observed on the first objection, that, although a debt in suit is not attachable in England, because the superior Courts of that country, will not, in the plenitude of their authority, permit subjects depending before them, to be affected by the process of inferior tribunals, exercising a jurisdiction by special custom; yet, here the same cause does not operate; as the Supreme and County Courts have a co-ordinate, concurrent jurisdiction in other suits, as well as in cases of attachment; and, of course, the effect is not, necessarily the same. But, on general principles of justice and reason, it would be difficult to satisfy the mind, why money should not be attached in the hands of a debtor, as well after, as before, the person to whom it is due, has sued for it. If justice and reason are not opposed to it, public policy and convenience strongly recommend it. Many foreigners, resident abroad, enjoy an extensive credit from one class of citizens in this country, on account of the debts which are known to be due to them from another class ; and if nothinmore were necessary to shelter such foreigners from the effects of an attachment, than to bring suits against their debtors, it is obvious that the fund, which constitutes the principal security of the American Trader, might be easily and irretrievably withdrawn.

The Court are, therefore, unanimously of opinion, that the debt due from Emlen to M‘Cartyand Cummings, might lawfully be attached, notwithstanding the suit previously instituted by the surviving Partner to recover it.

On the second objection, it must be observed, as a general rule, that partnership effects are first to be appropriated to the payment of partnership debts : but this, like every other general rule, admits of exceptions ; and it is hardly, indeed, susceptible of a strict application in any cases, but those of bankruptcy, insolvency, and execution. The consequence of its application to partnerships, would be highly injurious to trade, and embarrassing to justice. A partner may owe separate debts ; and his property may consist of partnership stock ; yet, if the objection prevails, it is impossible to conceive when the separate creditors will be able to make that property responsible. While the partnership continues, how shall they compel a disclosure and liquidation of all the debits and credits of the company ? And even when a partnership is dissolved, where will separate creditors find the inclination, or the power, to scrutinize and close the records of a long and complicated mercantile connection ? But the law is happily otherwise : For, it has been, repeatedly, settled here, as well as in England, that a Partner may be sued for separate debts; that the partnership effects may be taken in execution and sold by moieties; and that the purchaser of the moiety, under the execution, shall be considered as Tenant in common with the partner, owning the other moiety. The case in Doug. 650, is, in my judgment, conclusive upon this point.

The result of the view, which I have taken upon the subject, is ; that the Defendant in this action, is liable as Garnishee in the foreign attachment, to pay to the representative of John Pringle, one moiety (or whatever may have been M‘Carty’s partnership proportion) of the debt due to M'Carty and Cummings.