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In ordinary cases, however, the Court will grant an injunction to restrain the working of stage-coaches in a manner inconsistent with the terms of an agreement. Thus, in Williams v. Williams (a), the plaintiff and defendant had been partners in stage-coaches; and by an agreement on the dissolution of their partnership, it was stipulated that the business, so far as it was carried on between Newbury and London, should belong to the plaintiff, and that the defendant should not carry on the business of coach proprietor between Newbury and London. The defendant afterwards set up a stage-coach, which began its journey at a place a few miles distant from Newbury, but travelled through Newbury to London. And on a bill filed, and an affidavit, Lord Eldon granted an injunction to restrain the defendant from carrying on the business between Newbury and London. So, where a company in which A. and B. were partners, contracted with the Postmaster-General for the service of the mail, each partner supplying horses for a distinct part of the road, but in consequence of the bad manner in which A. horsed the coach, the Postmaster had been frequently obliged to suspend the contract; it was held, that B. might maintain an injunction against A. to restrain him from interfering with B.'s portion of the road, on the ground of the irreparable injury to the partnership, which would ensue from such interference (6).
II. Before we conclude this section, a few remarks should be made on the mode of obtaining and supporting an injunction.
Where the plaintiff's case is not of such an urgent nature as to require the most summary interference, or if it be of that description, and he should not seek immediate protection, it is usual for him to defer making his application until after the defendant has filed his answer (c). But where the object of the plaintiff is to prevent irreparable mischief, as, for instance, if the defendant is insolvent and is wasting the effects of
that a question might arise, whether (6) Anderson v. Wallace, 2 Molthe plaintiff, shewing that his horses loy, 540. were always ready, would not be en- (c) Jeremy, Eq. Jur. 337; Anon. titled to the same profit as if they i Vez. 477; Lawson v. Morgan, 1 were used.
Price, 303. (a) 1 J. Wils. 473, n.
the partnership, a special injunction may be granted on motion before answer, supported by affidavit, as in other cases of waste (a).
It is, however, to be observed, that many acts may be committed productive of great inconvenience and even of loss, but which are not therefore in the nature of waste. In the case of Cofton v. Horner (6), the plaintiff and defendant agreed to dissolve partnership, and that the defendant on payment of half the value of the effects should take the whole. The defendant accordingly took possession of the partnership property, but failed to make payment, and had begun to pull down part of the buildings. The plaintiff filed his bill for an account, and for an injunction from collecting the debts, &c., and from committing waste on the partnership premises. He then moved for an injunction before answer, on the usual affidavit; but the Court of Exchequer held, that the conduct of the defendant did not amount to waste, and dismissed the application.
In a suit for an account of partnership transactions, and upon a motion for an injunction before answer, to restrain the defendant from acting as a partner, it is a complete bar to the motion, if the defendant aver by affidavit, that the plaintiff has possessed himself of the partnership books, and that for such reason the defendant is unable to account properly, or to put in a full answer; accordingly in such case, notwithstanding palpable misconduct on the part of the defendant, the injunction
(a) Lawson v. Morgan, supra; fully answer the plaintiff's bill, and Read v. Bowers, 4 Bro. 440. In the this Court make other order to the latter case, the bill charged the in- contrary.” R. L. 1793, B. 10. In solvency of the defendant, and the the case of waste and other cases of probable loss of the partnership an analogous nature, the Court will effects through his acts, and on grant the injunction without notice, motion “it was prayed that an in- and before appearance, and before junction may be awarded against subpæna served, provided the plainthe defendant to restrain him from tiff makes an early application to collecting or receiving any more of the Court. 1 Newl. Pr. 219. But in the debts now due and owing to the general, if the motion is made after said copartnership, or any of them, appearance, notice is necessary. or any sum of money on account Ibid. and see Jeremy, Eq. Jur. 337. thereof; which, on hearing the said As to waste between tenants in plaintiff's said affidavit and the six common of real estate, see 7 Ves. clerk’s certificate read, is ordered ac- 589; 16 Ves. 128. cordingly, until the defendant shall (6) 5 Price, 537.
will be refused (a). When a special injunction has been obtained, as the injunction by the terms of the order is to continue until answer or further order, the defendant may apply to dissolve it, either upon putting in his answer, or upon affidavit before answer (6).
The general rule is, that, for the purpose of obtaining or continuing an injunction, affidavits cannot be received in con. tradiction to assertions positively made by the answer (c). To a certain extent, however, there is an exception to this rule in cases of waste (d), and of misconduct in partners analogous to waste (e). In these cases affidavits filed prior to the answer may be read against the answer.
Affidavits filed subsequently to the answer may be read in support of an allegation in the bill, not contradicted by the answer (f).
Of the Right to a Receiver.
It seems clear that the party who seeks the benefit of a receiver, whether he desires to continue or to dissolve the partnership, should be able to prove such a case to the Court as would authorize a decree for a dissolution. It has been decided that the Court will not upon motion appoint a receiver of the partnership, unless it appear that the plaintiff will be entitled to a dissolution at the hearing (9).
It has been laid down by Lord Eldon, that in the ordinary course of trade, if any one of the partners seek to exclude another from taking that part in the concern which he is entitled to
(a) Littlewood v. Caldwell, 11 Price, 97.
(6) 1 Newl. Ch. Pr. 226.
(c) Id. 227; Morgan v. Goode, 3 Mer. 10.
(d) Smythe v. Smythe, 1 Swanst. 252. But not where the title to the property is in dispute. Norway v.
Rowe, 19 Ves. 144.
(e) Charlton v. Poulter, 19 Ves. 148; Peacock v. Peacock, 16 Ves. 49; Lawson v. Morgan, 1 Price, 303.
(f) i Swanst. 254, note (6); Farrer v. Hucthinson, 2 You. & C. 706.
(9) Goodman v. Whitcomb, 1 Jac. & Walk. 689.
take, the Court will grant a receiver (a). Where, therefore, such a course would be for the benefit of the excluded person, the Court would appoint a receiver, even with a view to the continuation of the partnership. But, generally, in thus interposing between the parties, the Court looks to a dissolution and general winding up of the affairs (6). And in one case it is reported, that upon a motion by a partner for a receiver during the partnership, by reason of his copartner having embezzled the partnership funds, the Court thought that the receiver of the stock of a subsisting partnership, where the trade is going on, could not be appointed unless upon the very grossest abuse, for it must destroy the trade (c).
Where a dissolution is intended, or has already taken place, a Court of equity will appoint a receiver, provided there be some breach of the duty of a partner, or of the contract of partnership (d). Thus, if in breach of moral obligation, one partner unjustly takes possession and refuses to give security to his copartner for his share of the stock, monies, and securities (e) ;
(a) 1 Swanst. 481.
of the trade, and out of the money (6) Waters v. Taylor, 15 Ves. 10; to be received on account of the Harrison v. Armitage, 4 Madd. 143. said debts, &c., that the said receiver See Skip v. Harwood, 1 Dick. 114. do pay the excise and the charges
(c) Oliver v. Hamilton, 2 Anst. &c., in the said brewing trade. That 453. One would have thought that the said receiver be at liberty to embezzlement was sufficiently gross. bring actions for such debts as are
(d) Harding v. Gloper, 18 Ves. now or shall become due, as occa281; Estwick v. Conningsby, 1 Vern. sion shall require; and the persons 118. In Skip v. Harwood, a re- in whose names such actions shall ceiver was appointed of the brewery. be brought, are to be indemnified « It was ordered that it should be against any costs and damages on referred to the Master to appoint a account thereof, out of the stock, proper person to be a receiver of goods, and effects in the said trade. the stock, goods, &c., of the brew- The stock, goods, and money in the ing trade, and the debts due to the hands of the receiver, to be applied partnership. That the defendant be as the Court shall direct. The restrained from receiving any debts books relating to the trade to be due or to become due in the said in his custody. In the meantime trade. That the Master do allow the defendants to be restrained from the receiver a reasonable salary for alienating, disposing, or removing his care, he giving security, &c. any of the utensils or dead stock beThat such receiver do act as broad longing to the said trade.” R. L. clerk in the said brewing trade, 1748, B. 517. and collect and get in the debts (e) Peacock v. Peacock, 16 Ves, according to the custom and usage 49; Milbank v. Revett, 2 Mer, 405.
or if he in any respect behaves unrighteously against the interest of the other partner, a receiver will be appointed (a). So also, if in breach of the contract of partnership he carries on the trade with the partnership effects on his separate account after the dissolution (6), and thus or in any other manner excludes his copartner from that share to which he is entitled in winding up the concern, a receiver will be appointed (c).
On these latter considerations a receiver was appointed in the case of Wilson v. Greenwood (d). There, certain partners had entered into an agreement, by which, upon the bankruptcy of one of them, his share was to be valued and assigned to the remaining partners, for a consideration payable by instalments, and upon the footing of this arrangement the remaining partner continued to trade with the partnership effects; upon a bill filed by the assignee of the bankrupt partner against the solvent partner, praying for a sale of the partnership effects, a division of the proceeds, and a receiver, Lord Eldon granted a receiver upon motion made before answer; observing, that the Court would here apply the principle on which it proceeds in all cases where some members of a partnership seek to es. clude others from that share to which they are entitled, either in carrying on the concern, or winding it up when it becomes necessary to sell the property (e).
In this case there being no imputation of misconduct, or suspicion of insolvency against the partners defendants, one of them, with the consent of the plaintiffs, was made receiver, but without salary, and upon giving security for the management, &c.
The same rules which prevail respecting the appointment of a receiver in a suit between partners, are applicable in a suit
(a) “If partners quarrel, and one of them behaves unrighteously against the interest of the other, a receiver will be appointed. But if partners quarrel, a receiver will not merely on that account be appointed.” D. Lord Eldon, Texiere v. Da Costa, in Chancery, Nov. 1815, Cooke's MSS.
(6) Harding v. Glover, supra.
place on the refusal of an appointee under a will to become partner, is clearly not a dissolution arising from the exclusion of the appointee by the surviving partners, and will therefore be no foundation for a receiver. Kershaw v. Matthews, 3 Russ. 62.
(d) 1 Swanst. 483.
(e) Wilson v. Greenwood, 1 Swanst. 471.