|
1©4 BINNEY'S CASE.-2 BLAND
ing the amendment. Bliss v. Boscawin, 2 Ties. cf: B. 102; Eden D~j.
87; Pratt v. Archer, 1 Cond. Chan. Rep. 221; Davis v. Davis, 2
Cone. Chan. Rep. 526; Poavell v. Zassalette, 4 Cond. Chan. Rep.
260.
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 pretentious set forth; and also that bod3 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 con-
trov ersy; for, where the legal capacities of parties are different,
such capacities must be considered as if they were several persons.
Coppin v. Coppin, Select Ca. Chan. 30; S. C. 2 P. Fill. 295; Sal-
mon v. The Ha7nborough Company, 1 Ca. Chan. 204; 3lelioru.cchi v.
Royal Exch. Assu. Comp. I Eq. Ca. Abr. 8, p. 8; Johnson v. 31-ills,
I Ties. 283; Tl?cc,r°d v. Northumberland, Anstr. 477; Rain v. Hughes,
7 T. R. 350, n; Lyle v. Rodgers, 5 IV, heat. 407.
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 Smith, and Phinea4 Janney are the directors of
the said company;" and a writ of subpoena 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 inte-
rest 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. Salmon v. The
Hamboroiuth Company, 1 Ca. Chan. 204. It appears that Isaac
McCord has no other concerti with this matter than as a contrac-
tor with, or agent of The-Chesapeake and Ohio Canal Company;
and yet a subpoena 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,
'without prejudice to the case as regards all others. But it
1©9 happens, unfortunately, in this case, that if the bill were to
be dismissed as against these defendants, who have no interest is
the case, there would be no defendant in Court, and the whole
suit would be totally broken up.
Where there are a plurality of defendants, they may join in
making answer to the bill, or they may answer separately, or they
may make a joint and several answer as best suits their conveni.-
|
