Kunckel et al. v. Baker

Kunckel et al. v. Baker. Practice. — Special cowrts. A special court will not be ordered, on the ground, that one of the plaintiffs has assigned al his interest to the other, and that the latter is about to depart from the country. This, was an application for a special court, founded on the act passed the 10th of April 1782. Kunckel, the petitioner, set forth in his affidavit, that one of the plaintiffs, Boom, with whom he had been in partnership, had dissolved their connection, since the commencement of the action, and that the outstanding debts had been assigned to Kunckel, so as to vest in him the whole interest in the event of the action. It was also stated, that Kunckel was about to depart from the United States ; but that Boom had no such intention. Rawle, for the plaintiff. Bradford, for the defendant. The Attorney- General, for the defendant, objected, that, by thus assigning the interest in an action to a going foreigner, a special court, and an early judgment, might always be within reach, to the prejudice not only of the defendants but of other creditors. And upon this ground, the Court unanimously refused the prayer of the petition. See McCarty v. Nixon, write, p. 78; Ex parte Holker, 2 Dall. 111 [MAJORITY] The plaintiff’s counsel then moved, that he ought not to be deprived of his bail, by this application ; which, requiring a declaration to be previously filed, amounted to an acceptance of a common appearance, In the justice of this motion, the Court concurred, and accordingly, directed a rule to be entered, that the defendant give bail in two months, or a procedendo. ia) The practice is now well settled to be otherwise. It has been repeatedly determined, that filing a declaration is not a waiver of special bail. See Caton v. McCarty, 2 Dall. 141; 1 Yeates 103.