
    J. P. Chatzel & Co. vs. John & Curtis Bolton.
    '¿aere, If when an attachment is levied on tile property'of one copart» * ner, or joint. qwner, the whole of the property may be taken into possession and sold, and the whole deliverecllo (hepurchaser? 
    
    But when the funds are reduced to mo/ie’y,' the court willorily órdet so much to lie paid ovejas belongs to the partner sued, and mayn't their discretion order séeurityto bb given .for that moiety, »átii'seíliewe¡ít between the partners. _ .,
    The pendency of asuit in another .state is noreason^.of itself, for the delay of a pause in'this state; but when it is'' obvious to’ the court; that their deersion will affect rights to be ascertained by the 'determination VC such suit, and where such rights ar^invplyed in-the causa here, they will grant a reasonable time to obtain such, determination. ,.
    
    ’ Tried before Mr. Justice Huger,.who made; the following report: , ■ f
    “This was an application to th e court fpr certain funds, which had been paid into court by John Robertson as Guar-mishce. It appeared that J 1\ Gkalzel, John Woodward, Alexander Cranston, and Andrew Alexander had been partners in trade in Lexington,- -Kentucky, under the firm of Chatzel, §* Co. It also appeared that A- Cranston and A. Alexander were partners in t3.-p.de in New-York under the firm of Alexander, Cranston,. 8p Co. .-The first copartnership.- was dissolved on the 1st November^ Subsequent itó this dissolution, the New-York house filed.- a bill in the circuit court of the United States for Kentucky, against the Kentucky house. After hearing the bill and answer, the circuit court appointed Chattel to collect the funds, and pay them away, in conformity to an account to be stated by commissioners appointed for that purpose. Before these funds were all collected, John and-Curtis Bolton, who are creditors of the firm in New-York, attached funds belonging to the Kentucky firm, in the hands of Robertson in Charleston, who paid the same into court. The question was involved in some diffi-' culty. It did not and could not appear to what portion of this fund the New York firm was entitled, before the accounts of the Kentucky firm were, stated, and only so much as they might be entitled to, was subject to the attachment of the Boltons. It had been decided that these funds were liable to this attachment, but not to what amount the Boltons were entitled. (See the case in 2 Cord’s Rep. 478.) The creditors of the Kentucky firm, had a prior claim to the creditors ot any individual of that firm; to order, therefore, the whole of these funds to be paid to the Boltons, was to postpone the creditors of the firm, to the creditors of an individual of that firm. I, therefore, refused the application on the part of the Boltons, for the whole amount; but as it appeared to be admitted that the New York firm would in all probability b.e entitled to a moiety, of these funds and they must continué unproductive as long as they remained in court, and would be as safe in the hands of the Boltons, provided ample security were taken for their forthcoming, should it hereafter appear, on the settlement of the concerns of the Kentucky firm, that so much would not be due to the New York firm, I gave the order complained of; an order, as I supposed, at the hearing of this case, suggested and desired by the counsel for the Boltons, with which, if they did not approve, they were not bound to comply, and with which if they did comply would seem to imply consent.”
    t A motion was made to set aside the decision of his honor, and the brief states, that: “ J. 8s C. Bolton in pursuance of the decision of this court in their favor, in May term. 1823, applied in the' January term, 1823, to have the money, which had been paid into court by the guarnishee, paid over to them. The presiding judge refused it, and gave the counsel of J. P. Chatzel h Co. until the next term. In the October term following, the same motion was made, but further time was given. On the 24th February 1824, a indiion to the sanie eifect was again made, whereupon it was again refused, and time granted, until the May term, following; when the application was renewed before his Hon, Judge’ Huger, who refused the motion, but gave leave to J. & C. Bolton, to enter an order to take out. one half of the amount on giving security. ,
    From this order an appeal is nqwjnade upon the following'g'rbiihds':
    1st. Because the order should have embraced the whole fund in couft, arid.'eould not upon any known principles of Jaw, have been limited to a moiety of the sum attached.
    ' 2d. Because the act does not justify the demand of security, inasmuch as the three requisites prescribed by the 3d clause of the attachment act, (P. L. 188, and 1 Brev. 35, 83,) where the attaching creditor receives the property attached on giving security, had been fully satisfied. The three particulars of the condition of the recognizance are:
    1st. That the attaching creditor should prosecute his suit with effect. This, I. fe C. Bolton had done; for the} had established their debt, and entered a judgment on 17th June 1820.
    2d. That the property attached should be forthcoming, if the absent debtor should appear. within a year and a day, and discharge himself of the plaintiff’s demand. This Alexander Cranston.& Co. the absent debtors had not done.
    3d. That if the absent debtor should not so appear, the balance of property so attached and delivered on security,should be delivered over to the clerkofthe court, after payment of such sum, as should be awarded to them by the judgment of the court. Now, the whole fund attached, (viz. 
      $ 4,390 17,) was less than the amount of the judgment, (viz: ‡ 6,108 93.)
    • It is therefore,'insisted, tbatthe plaintiffs ought not to be required ‘to .give any .security, having in a case perfectly analogous to that contemplated in the 3d section complied with all the requisitions of the Taw.” ,
    
      Argued, 3d March 1825.
    
      Grimke, for the motion.
    It has been decided ;that this -property is liable to attachment; and it is not affected by_ the proceedihgsinKentucky..( 1 Jolm. Ca. 345.9 John. Rep. 220.) If the other party claim, they must shew that they have used due diligence. Attachment is a substitute for bail.- The judgment is already taken, and has the efficacy of any other judgment. (3 Bos. and■ Pul. 288. 2 John. Ch. Ca. 548.) ■No reason for giving parties time. They are in default..
    
      PeUgru, Attorney General, contra.
    By the decree in Kentucky, appointing Chatzel receiver, all cither persons are 'enjoined from receiving. Hanna is put in -the -place of Chat-a el. On the subject of delay referred to former case,' in 2 .V‘ Cord’s Rep. 478. rlhe decision there is,-that the rights of one partner may be attached subject tb -the rights of others. It is decided that the corpus may be sold. Can execution creditor against one joint owner, take -property from the-possession of the other?-(46 Johns. 106 note.) Result seems to be that the interest of a joint owner may bo sold, whatever it may amount to, after settlement df concern-No mode in which one joint owner can divest the possession of the other. Possession ’should';Bot he changed until the right be'determined. 1(16 John. 102. Smith’s Case.-) Attachment discharged asbeing on joint-prcjpe'rty.- (1' Gallison -367.■) Partnership'goods not allowed to-be'taken out of thefposses-sión of the other partners for the debt of one. The sale amounts tó nothing but an assignment of the partners interest and the purchaser comes into his shoes.
    
      Grimke, in reply.
    Cited (2 Bacon Jib, new ed.) various authorities to shew that the sheriff seizes the .whale of joint ■ -property, and delivers the whole, which constitutes vendee jbi-nt tenant, This «money is in’ the «place of the property. Expressly that case -in ‘2 Datl. >277, Top-hum vs. 'Chapmasa^ shews attaching creditor'may 'have fights' paramount to. those of the assignee or party. •
    
      
      
        ) See on this litigated subject, Heydon vs. Heydon, 1 Salk. 392. Buckhust vs. Clenkard, 1 Show. 173. Jackey vs. Butler, 2 Lord Raymond, 871. Eddie vs. Davidson, Doug. 650. Fox vs. Hanbury, Cowp. 445. I East, 363. I Comyns, 277. Pierce vs. Jackson, 6 Mass: Rep. 242. Fisk vs. Heroich, 6 Mass 271. Phillips vs. Bridge, 11 Mass. Rep. 242. Goodwyn vs. Richardson, 11 Mass. Rep. 469. M'Coomb vs. Hudson, 2 Dull. 73, Viene vs. M‘Carty, 1 Dall 154. Sergeants Law of attachments 78,80. Uceas vs. John. 4 Dall. 435. 1 Binn. 191. Wallace vs. Patterson, 2 Harr and M'Hen. 463. Church vs. Knox, 2 Conn. Rep. 514. Gilmore vs. N. A. Land Comp. Peters-460. Shaver vs. White 6 Munf. 110.
      How the interests of it’he different (partners,'-típi ^rf-one being levied on, Witt be regarded in equity, as against, execution, and attaching creditors, besides the above cases, see Taylor vs. Fields, 4 Ves. 396. West vs. Skipp, 1 Ves.239. Dutton vs. Morrison, 17 Ves 201.
      
      See all the cases and comments upon thefrfrul Montaguon Partnership, 39. Watson 72.
      
    
   ConcoeK, J,-

In discussing tbflfct «ground of objection to the decision of the presiding judge below, the ¡plairittiPs counsel have presented a question of ño ordanary difficulty, it is contended that when an attachment is levied on the property of the copartner or joint owner, the «whole of the property may «be «taken into possession' :and ’sold, and the whole of course delivered to th’e purchaser;'thus divesting the copartner Or joint owner, Who naay he iii the possession, Of such «possession, «against his will and id -opposition to «his interest. And it is concluded from this doctrine, «.that '-the court in the casé hefore us, is bound by analogy to order 'the-whole of the money to he delivered >to the «plaintiffs in'tliis action, and let them account to ,the house‘-in Kentucky ¡far* their share of it. it is «however not ne'cessary to Ipvesti'g'aie this subject, in order to decide this ease; 'for supposing the plaintiff’s counsel to heiri'ght, it does not'follow that the court should -order'the whole of'thi's money 'to be -paid to this clients. The ground of 'necessity may «excuse the «law. for divesting one of his possession «.under the fcircumstances of this case, and «even for selling'his ¡property ¡at dess than tits full value; but when ■ it is «reduced 'to money, «it .is not ¡easy'to discover any reason which would authorize the court to pay over to the creditor of his copartner, that portion of the proceeds which belonged tó him. The law will not interfere with the rights of third persons, farther than is indispensably necessary to the administration of justice. It may say to him, who is- divested oflns'possession,fforthepurposeofcompelling a payirient-ef his copartners debts-, ¡you have by yotír own act, subjected your sfelf'to'this inconvenience or loss. But I can-find no satisfactory r eason why "he should be sent to .the creditor of his copartner for-his share of -the proceeds,of ¡the' property. His property being taken 'from him'by 'the'Iaw, he may say with great force, to the law I look for its valué. If I have subjected mySelf to a partial loss and some inconvenience, it doesnol, therefore, followthatl am to be subjected to still greater inconvenience, and perhaps to a total loss. There can be no doubt that the pendency of a suit in another state, is no reason of itself for the delay of a cause in this; but when it is obvious to the court'that their decision will affect rights to be ascertained by the determination of such suit, and where such, rights are 'involved in the cause here, they will grant a reasonable time to the parties interested to obtain such determination. Much time has already been given to. the house of Chatzel & Co. but they again present a strong claim to further indulgence, and the court can only grant it on conditions. The plaintiffs on their part have.substantiated their debt, which exceeds the whole amount oí the fund attached; they have complied with the requisitions of the attachment act, and consequently are entitled to the money. While, therefore, the court is disposed to grant further indulgence to the house in Kentucky, they cannot bo unmindful of the strong claim of the plaintiffs; but as they are unable to make a final determination on the respective claims of the parties in- interest, they conceive they cannot make a more just and reasonable order, than that which was made by the presiding judge below. They, therefore, dismiss the motion and confirm, the order made by the circuit judge..  