So where the representatives of a deceased partner had enjoined the surviving partner from selling the joint property at public sale; it was held that it should be dissolved, there being no charge of fraud, insolvency, or misconduct against the survivor, but a mere allegation of a refusal to account, and no proof that the account had been withheld an unreasonable time.1

§ 24. A firm, being indebted to A., agreed that B., one of the firm, should take a lot of land and pay the debt of A. The land was conveyed to A., to hold until B. should pay him; and A. leased it to B. at a reut which would in six years pay the debt. When the first rent fell due, A. distrained slaves of B., on the premises, which B. had before the transaction mortgaged to C., to secure a debt. C. filed a bill against A. and B., to restrain the sale under the distress, and have them applied to his debt, and charging a combination between A. and B. to defraud him of his debt, and also alleging the sufficiency of the land to pay A.'s debt. Pending the bill, the slaves were sold on motion of A., and the money placed in the hands of a receiver. A. then objected to the jurisdiction of the court. Held, the charge of fraud authorized the bill; also the charge that the land was sufficient to pay A.'s debt, on the principle of marshalling assets; and A. had waived objection to the jurisdiction by moving for the sale of the slaves.2

25. An injunction was granted, on the application of one partner, against the other's receiving any more of the partnership funds, and a receiver appointed; the latter being in contempt, and not appearing after personal service."

§ 26. The principles, that an injunction should not be granted unless there is danger of irreparable loss, and that

Shad v. Fuller, Charl. R. M.

501.

Henley v. Perkins, 6 Gratt. 615.

3 Read v. Bowers, 4 Bro. Ch. 326, 441.

a prayer for equitable relief comes too late after a judgment at law, have no application to a bill in equity for an account and settlement of a copartnership, brought by one of the partners, who alleges that he was the lessee of the partnership property, and had paid out more than he had received; and that another partner, who held the legal title to the property, which equitably belonged to the company, had recovered judgment in ejectment against the complainant, both for the premises and for mesne profits.1

§ 27. Bill, to restrain a suit on a bond, in favor of surviving partners against the representatives of a partner deceased. It appeared, that the articles of partnership provided for an annual settlement, and for payment to the representatives of one deceased of an allowance in lieu of profits since the last annual account, proportioned to the amount of his share of profits during two years next preceding. The suit was brought for repayment of the share of the partner deceased, according to the articles. But it appeared that the parties had omitted for several years to settle the annual accounts, and had engaged in business to which the agreement was not equitably applicable; and an injunction was ordered upon the prosecution of the suit, before settlement of transactions pending at the death of the deceased partner, which resulted in a loss.2

§ 28. The plaintiff had received money by bill of exchange which belonged to the defendant, but detained it upon pretence of some accounts between them, and, being sued at law, brings a bill to stay that suit, and on account of the defendant's alleged insolvency the money was brought into court. Prayer for relief, upon an agreement made at the termination of a partnership; for the plaintiff, being at Leghorn, had entered into a partnership with Lee and Canham, in thirds, and being desirous to break off, it was agreed that

1 Wells v. Strange, 5 Geo. 22.

2 Jackson v. Sedgwick, 1 Swanst.

27,000 pieces of eight should be paid the plaintiff, which was done; and that the plaintiff should be indemnified from any trouble growing out of the partnership, and in 1664 an instrument was executed accordingly. After this, the plaintiff formed a new partnership with James and John Gold, and was forced by sentence of the court at Florence to pay custom to the Great Duke for goods imported during the former partnership, and is also sued by Mico for a partnership debt. To which the defendant said that there were no customs due after seven years, and that Mico's pretences were groundless, and that there had been a reference of all differences to arbitrators, before whom the matter of the customs was not stood upon. Cur. 1. Let the plaintiff receive back so much of the money brought into court as may be adequate to the sum paid on the sentence for custom, the justice whereof is not examinable here. 2. Let the defendant take the rest, subject to the covenants of saving the plaintiff harmless against Mico, &c.1

§ 29. It is ground for injunction that A., one of the defendants, has agreed to do a specific thing, and B., the other defendant, holds a covenant of A., taken in behalf of the plaintiff, according to a prior understanding, and also holds a specific fund, which puts it in the power, and makes it the duty, of one of the defendants to see that the agreement is carried into effect by the other; the plaintiff alleging that B. intends to pay out the fund contrary to the understanding.'

30. Equity cannot restrain one joint devisee or one tenant in common from entering upon the land, at the suit

of another.3

§ 31. One tenant in common may enjoin another from cutting saplings and any timber trees or underwood at unseasonable times, which the law regards as destruction; but not pure

1 Gold v. Canham, 2 Swanst. 343 n.; 1 Cas. in Ch. 311.

2 Ashe v. Johnson, 2 Jones Eq. 149.

Baldwin v. Darst, 3 Gratt. 132.

equitable waste, as in the cutting of timber generally. Lord Eldon says: "I never knew an instance of an application to stay waste by one tenant in common against another, one tenant in common having a right to enjoy as he pleases." But in a later case it is held, that, if one co-tenant, while in possession of the whole estate by consent of the others, threaten to commit wilful waste, which would work irremediable mischief, he may be restrained by injunction.'

§ 32. After a lease to a railroad company from five out of six tenants in common, at a rent three times as large as the former rent, the company, against the wishes of A., the remaining tenant, who, in the language of the court, "kept the company at arm's length," made a railroad upon the land, which at law was held an ouster. Held, A. should not be enjoined from removing the rails.3

§ 33. An injunction lies to restrain the sailing of a ship, until security is given in behalf of one one-part owner against the others, where the respective shares are not apparent and their amount is a subject of dispute, and for this reason the Court of Admiralty would decline to interfere. But the plaintiff must have acted promptly.

Hole v. Thomas, 7 Ves. 589.

2 Twort v. Twort, 16 Ves. 128. 3 Durham, &c. v. Wawn, 3 Beav. 119.

Haly v. Goodson, 2 Meri. 77; Christie v. Craig, ibid. 137.

CHAPTER XXII.

OFFICERS.

§ 1. EQUITY has undoubted jurisdiction to interfere by injunction, where public officers are proceeding illegally and improperly, under a claim of right, to do any act to the injury of the rights of others. "It is not the mere fact that a public officer is attempting to exercise a void authority which induces a court of equity to restrain him; but, notwithstanding he is a public officer, that he is about, by such exercise, to do an act which brings the case within its peculiar jurisdiction; for example, an act in breach of trust, in derogation of a contract which ought to be specifically performed, or an act of irreparable mischief to the real estate of another."2

1 a. "The limits within which this court interferes with the acts of a body of public functionaries are perfectly clear and unambiguous. So long as those functionaries strictly confine themselves within the exercise of those duties which are confided to them by the law, this court will not interfere. The court will not interfere to see whether any alteration or regulation which they may direct is good or bad; but if they are departing from that power which the law has vested in them if they are assuming to themselves a power over property which the law does not give them-this court no longer considers them as acting under the authority of their com mission, but treats them, whether they be a corporation or individuals, merely as persons dealing with property with

Cooper v. Alden, Harring. Ch. 72; Mohawk, &c. v. Archer, 6 Paige, 83. See Tunstall v. Boothby, 10

Sim. 542; Conover v. Mayor, &c., 25 Barb. 513.

2 Per Ames, J., Greene v. Mumford, 5 R. I. 475.