108 BINNEY'S CASE.

new frame and direction to be given to the writ of injunction itself;
there the very prayer for such an amendment carries with it a tacit
admission, that the basis of the injunction, which had been pre-
viously granted, is substantially wrong; and therefore, upon grant-
ing the amendment the injunction is gone of course, unless ex-
pressly saved by the terms of the order granting the amendment, (p)
This bill has, however, not only omitted to bring before the
court, those who, it appears from its statements, have an interest in
the claims and pretensions set forth; and also that body who is
charged to be the cause of all the alleged injury; but it has brought
before the court certain persons, who in the capacities in which
they stand here, have not the least interest in the matter in contro-
versy; for, where the legal capacities of parties are different, such
capacities must be considered as if they were several persons, (q)
It is stated, that 'Charles F. Mercer, is the president of the said
company, and Joseph Kent, Andrew Stewart, Peter Lenox, Fred-
erick May, Walter Smithy and Phineas Janney are the directors of
the said company;' and a writ of subpaena is prayed against the
said president and directors; so that, by this description of person,
those individuals have been called here, in their natural capacities,
to answer this bill. But, in those capacities, they have no interest
in the matter, as is manifest, from the very sum and substance of
the charges; and therefore, they ought not, as such, to have been
% made parties; and if they had, on that account, demurred to the
bill, their demurrer must have been sustained.(r) It appears that
Isaac McCord has no other concern with this matter than as a con-
tractor with, or agent of The Chesapeake and Ohio Canal Company;
and yet a subpaena has been expressly asked for against him by
name; and he has been brought here as a defendant. Agents and
servants of the principal may be served with the injunction and
made to obey it; but they should not be made parties to the suit.
Persons who stand thus uninterested in the matter in controversy
cannot be made parties to the suit. Where a person who has no
interest in the matter has been improperly associated with others
as a defendant, the bill may be dismissed as to him, with costs;

(p) Bliss v. Boscawin, 2 Ves. & B. 102; Eden Inj. 87; Pratt v. Archer, 1 Cond.
Chan. Rep. 221; Davis v. Davis, 2 Cond. Chan. Rep. 526; Powell v. Lassalette, 4
Cond. Chan. Rep. 260.—(q) Coppin v. Coppin, Select Ca. Chan. 30; S. C. 2 P.
Will. 295; Salmon v. The Hamborough Company, 1 Ca. Chan. 204; Meliorucchi v.
Royal Exch. Assu. Comp. 1 Eq. Ca. Abr. 8, p. 8; Johnson v. Mills, 1 Ves. 283;
Ward v. Northumberland Anstr. 477; Rann v. Hughes 7 T. R. 350, n.; Lyle v. Rod-
gets, 5 Wheat. 407.—(r) Salmon v. The Hamborough Company, 1 Ca. Chan. 204.