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 (b).

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 the plaintiff, shewing that his horses were always ready, would not be entitled to the same profit as if they were used.

(a) 1 J. Wils. 473, n.

(b) Anderson v. Wallace, 2 Molloy, 540.

(c) Jeremy, Eq. Jur. 337; Anon. 1 Vez. 477; Lawson v. Morgan, 1 Price, 303.

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 (b), 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;

Read v.
Bowers, 4 Bro. 440. In the
latter case, the bill charged the in-
solvency of the defendant, and the
probable loss of the partnership
effects through his acts, and on
motion "it was prayed that an in-
junction may be awarded against
the defendant to restrain him from
collecting or receiving any more of
the debts now due and owing to the
said copartnership, or any of them,
or any sum of money on account
thereof; which, on hearing the said
plaintiff's said affidavit and the six
clerk's certificate read, is ordered ac-
cordingly, until the defendant shall

fully answer the plaintiff's bill, and this Court make other order to the contrary." R. L. 1793, B. 10. In the case of waste and other cases of an analogous nature, the Court will grant the injunction without notice, and before appearance, and before subpoena served, provided the plaintiff makes an early application to the Court. 1 Newl. Pr. 219. But in general, if the motion is made after appearance, notice is necessary. Ibid. and see Jeremy, Eq. Jur. 337. As to waste between tenants in common of real estate, see 7 Ves. 589; 16 Ves. 128.

(b) 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 (b).

The general rule is, that, for the purpose of obtaining or continuing an injunction, affidavits cannot be received in contradiction 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).

SECTION VI.

Of the Right to a Receiver.

Ir 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 (g).

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.

(b) 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)1 Swanst. 254, note (b); Farrer v. Hucthinson, 2 You. & C. 706. (g) 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 (b). 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.

(b) Waters v. Taylor, 15 Ves. 10; Harrison v. Armitage, 4 Madd. 143. See Skip v. Harwood, 1 Dick, 114.

(c) Oliver v. Hamilton, 2 Anst. 453. One would have thought that embezzlement was sufficiently gross. (d) Harding v. Glover, 18 Ves. 281; Estwick v. Conningsby, 1 Vern. 118. In Skip v. Harwood, a receiver was appointed of the brewery. "It was ordered that it should be referred to the Master to appoint a proper person to be a receiver of the stock, goods, &c., of the brewing trade, and the debts due to the partnership. That the defendant be restrained from receiving any debts due or to become due in the said trade. That the Master do allow the receiver a reasonable salary for his care, he giving security, &c. That such receiver do act as broad clerk in the said brewing trade, and collect and get in the debts according to the custom and usage

R

of the trade, and out of the money to be received on account of the said debts, &c., that the said receiver do pay the excise and the charges &c., in the said brewing trade. That the said receiver be at liberty to bring actions for such debts as are now or shall become due, as occasion shall require; and the persons in whose names such actions shall be brought, are to be indemnified against any costs and damages on account thereof, out of the stock, goods, and effects in the said trade. The stock, goods, and money in the hands of the receiver, to be applied as the Court shall direct. The books relating to the trade to be in his custody. In the meantime the defendants to be restrained from alienating, disposing, or removing any of the utensils or dead stock belonging to the said trade." R. L. 1748, B. 517.

(e) Peacock v. Peacock, 16 Ves, 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 (b), 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 exclude 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.

(b) Harding v. Glover, supra.
(c) The dissolution which takes

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.