and the petitioner, Benjamin Sangar, had not given to him the said Mr. Brooks any authority to receive the costs payable under the said order of the 1st of June, 1836, as aforesaid. That during the progress of these causes the said solicitors of the petitioner, Benjamin Sangar, had from time to time received from the lastnamed petitioner, or on his account or behalf, several large sums of money, and retained or applied the same in or towards payment of the costs in these causes incurred by or on account of the last-named petitioner. That by means of the sums which had from time to time been paid to or received by the said firm of Brooks and Grane, and applied to the payment of the said petitioner's bills due to that firm, the said firm of Brooks and Grane had been fully paid and satisfied all the costs ever justly and legally due from the said petitioner to the said firm of Brooks and Grane, including the costs up to the 6th June, 1822. That the said firms of Brooks, Grane and Cooper, and Brooks and Cooper, claimed large sums to be due to them for costs incurred on behalf of the petitioner, Benjamin Sangar, in the prosecution of these causes. That by the deed of dissolution of the partnership between the said Brooks, Grane and Cooper, it was provided that certain papers, which included the papers in these causes, should be handed over to the said Brooks and Cooper without prejudice to the lien of the said Brooks, Grane and Cooper thereon for the balance due to them from the petitioner, Benjamin Sangar, and that the said Brooks and Cooper should be at liberty to receive any debts due from, amongst others, the petitioner, Benjamin Sangar, to the said Brooks, Grane and Cooper. That by the deed of dissolution of the partnership between the said Brooks and Cooper, it was provided that the said papers in these causes should be left in the possession of the said Mr. Brooks, but without prejudice to the liens thereon of the said Brooks, Grane and Cooper, and Brooks and Cooper; and by the last-mentioned deed it was also provided that

neither of them, the said Brooks and Cooper, should receive any debt due to the said Brooks, Grane and Cooper, or to the said Brooks and Cooper, except upon the joint receipt of them the said Mr. Brooks, and the petitioner, Thomas Cooper. That the petitioner, Benjamin Sangar, had received notice of the last-mentioned provisions as to the receipt of debts. That if the said Mr. Brooks should receive the said sum of 2897. 11s. without the concurrence of the said Mr. Grane and the petitioner, Thomas Cooper, and should not pay the same over to the said firms of Brooks, Grane and Cooper, and Brooks and Cooper, in liquidation of their claims against the said petitioner, Benjamin Sangar, in the proportions in which the said respective firms and the partners therein were entitled thereto, the last-named petitioner might, as he apprehended, after such notice as aforesaid, remain liable to the said Mr. Grane, and the petitioner, Thomas Cooper, for any balances which upon a settlement might be found due to the said respective firms from the petitioner, Benjamin Sangar. That the petitioner, Thomas Cooper, claimed that a certain part of the taxed costs of applying for the said order of the 1st of June, 1836, which application was made during the partnership of Brooks and Cooper, belonged to Brooks and Cooper; and the petitioner, Thomas Cooper, submitted and insisted that inasmuch as the said order of the 1st of June, 1836, was not passed and entered until long after the dissolution of the said partnership of Brooks and Cooper, on the 10th of November, 1836, the said Mr. Brooks ought with referrence to the provisions as to receipt of debts contained in the said dissolution deed between himself and the petitioner Thomas Cooper, to have arranged that the said costs so due to the said Brooks and Cooper should be received upon the joint receipt of the said Mr. Brooks and the petitioner, Thomas Cooper; and the last-named petitioner also claimed and insisted that the other sums of costs therein mentioned being in point of fact applicable to the

payment of the costs due from the petitioner, Benjamin Sangar, to the said dissolved firms of Brooks, Grane and Cooper, and Brooks and Cooper, and those firms having still liens upon the papers and funds in those causes for the costs due to them respectively, the said Mr. Brooks ought in like manner to have arranged for those sums being received upon the joint receipt of the said Mr. Brooks, and the petitioner, Thomas Cooper. And the said petition prayed that the said order, dated the 1st day of June, 1836, so far as the same directed the payment of the costs, and the costs, charges, and expenses which the Master should certify to be due to the petitioner, Benjamin Sangar, to be made to the said Mr. Brooks, and which costs, and costs, charges, and expenses, the Master by his said Report of the 24th of July, 1837, had certified to be the sum of 2891. 11s., might be discharged or varied, and that in lieu thereof the Accountant-General of this Honorable Court might be ordered to carry over the said sum to an account in these causes, to be entitled the Account of the plaintiff Benjamin Sangar's costs, and that except such carrying over being made, the other parts of the said order of the 1st of June, 1836, might be carried into execution in the same manner as they would have been if the said sums so carried over had been paid to the said Mr. Brooks, &c.

Mr. Wakefield, Mr. Cooper, and Mr. Girdlestone, for the petitioners. Mr. Knight Bruce, Mr. Jacob, and Mr. Rogers, for the respondents, when the petition had been read, took an objection that Thomas Cooper ought not to have been associated with the plaintiff Sangar in such a petition. They principally relied on the circumstance, that the petitioner, Thomas Cooper, was in partnership with Brooks at the date of the order of the 1st of June, 1836.

The VICE-CHANCELLOR was clearly of opinion that the objection was valid; and dismissed the petition with costs on the ground of misjoinder.

His Honor noticed another defect in the above mode of proceeding as regarded the petitioner, Thomas Cooper, who, he remarked, to avail himself effectually of the stipulations in the dissolution deed referred to in the petition, should have filed his bill. His Honor added, that supposing the last deed, which dissolved the partnership between Brooks and Cooper, specifically mentioned amongst the debts payable only on the joint receipt, the costs which were the subject of the petition, that all the petitioner, Thomas Cooper, would be entitled to by application in those causes, was the common stop order to prevent payment ad interim, and that for ulterior relief recourse must be had to an original bill, setting forth the covenants in the instruments putting an end to the partnership, and the violation actual or threatened, and all the material circumstances attending it.

The ensuing are, it is believed, all the cases touching this species of misjoinder. The earliest is a remarkable one; The King's Attorney and the Queen Dowager and her Trustees for her Jointure v. Tarrington, Hardres, 219; Troughton v. Getley, 1 Dickens, 382; Gemmel v. Block, 2 Dickens, 513, and Mattison v. Mattison, there cited. It is said, upon reference recently made to the Register's Book, to have been ascertained that in each of these cases the bill, although dismissed as to one plaintiff, was sustained as to the other. Harrison v. Hogg, 2 Vesey, jun. 323; Morley v. Lord Hawke, cited in Small v. Attwood, 2 Younge & Jervis, 520; Maud v. Acklom, 2 Simons, 331; Cuff v. Platell, 4 Russell, 242; Knye v. Moore, 1 Simons & Stuart, 61; Cholmondeley v. Clinton, 2 Jacob & Walker, 1, 135; S. C. 4 Bligh, O. S. 1, 81; Exeter College v. Rowland, 6 Maddock, 94; Aylwin v. Bray, in Small v. Altwood, 2 Younge & Jervis, 517, 518; Makepeace v. Haythorne, 4 Russell, 244; King of Spain

v. Machado, ibid. 225; Dunn v. Dunn, 2 Simons, 329; Bill v. Cureton, 2 Mylne & Keen, 503, 512; Denton v. Davy, 1 Moore P. C. C. 15, 41; Raffety v. King, 1 Keen, 601, 619; and Cowley v. Cowley, V. C., June, 1838.

WILLIAM BOOKLESS, on behalf of himself and other Creditors of HENRY BOOK LESS, deceased, v. WILLIAM CRUMMACK.

V. C. April 13, 1837.

cution de bonis

propriis of the executor.

Costs at law

to the creditor

down to time of

costs of the ap

THE Various affidavits, by which the notice of motion pre- Injunction sently set forth was supported, in substance stated: That against creditor, whose judgment Anne Bookless was a creditor of the above-named Henry was such as ultimately to enBookless, and that the defendant, W. Crummack, was his title him to exeexecutor, and that the said Anne Bookless, on the 29th day of April, 1836, commenced an action at law in the Court of King's Bench against the said defendant for the recovery of her debt, and that the defendant pleaded in notice of the insuch action that he had fully administered all and singular Junct junction to be the goods and chattels which were of the said Henry cutor,-also Bookless, deceased, at the time of his death, and which plication in had ever come to the hands of him the said defendant, as executor, to be administered, and that he the defendant had not, nor at the time of the commencement of the said action, or at any time since, had any goods or chattels which were of the said Henry Bookless, deceased, at the time of his death, in the hands of him the said defendant, as executor as aforesaid, to be administered. That on the by the executor's solicitor, 25th day of June, 1836, and just previously to the time when the Summer Assizes were held for the county of York, in which county the venue in the said action was

laid, and at which assizes such action was about to be tried, the bill of complaint in this cause was filed by or on behalf of the said plaintiff against the said defendant, by or by the direction or authority of William Jackman,

equity.

It is not a

sufficient ground for depriving a plaintiff of the

conduct of a

creditors' suit that the proceedings up to the decree have

been conducted

with the view of obtaining an injunction against creditor proceeding at law.

a