
    George Myers and James Galloway, Jr. v. Edward Farrington and others.
    Where there is a misjoinder of complainants in chancery, the court may, ao cording to its discretion, and the circumstances of the case, dismiss the hill, as to all the complainants, or only as to those who are improperly joined.
    This is a bill in chancery, reserved in Fairfield county.
    The bill sets forth, that on the 14th day of April, 1837, Henry P. Galloway, and Henry T. Myers, by the name and ■style of Galloway and Myers, made to the defendant Farring-_ ton - their promissory note for one thousand and forty dollars, payable six months after date, which note the complainants ■signed with the said Galloway and Myers, but it is alleged that they were securities merely, and that this fact was well known to the defendant Farrington.
    It is further stated that on'or about the 21st of October, 1839, the said Galloway and Myers paid to Farrington the sum of one hundred and fifty-six dollars, that being the amount of interest which would accrue on the 14th April, 1840 ; in con sideration whereof Farrington agreed to extend the time of payment upon said note until the said 14th April, 1840, or that ■some other agreement or arrangement was made for the extension of time, at or about that time ; and that this agreement to extend the time of payment was made without the know! edge or assent of the complainants.
    It is further stated, that on the 9th day of September, 1840, .an action was commenced at law, by the said Farrington against the said Galloway and Myers, and the complainants jointly, upon .said note; that the complainants in that action attempted to defend themselves upon the ground that the time of payment had been extended by Farrington the creditor, to Galloway and Myers the principal debtors, but that this defense was overruled by the supreme court upon the ground that the suit was upon a joint note against all the makers, and judgment was therefore rendered against all the defendants at the November term, 1841, for the sum of $1,138.80 and costs. It is further stated, that execution had been taken out upon this judgment, and was then in the hands of the sheriff, who was about to levy the same upon the property of the complainant George Myers.
    The prayer of the bill is for an injunction, etc.
    This bill was filed the 15th July, 1842, in the court of common pleas of Fairfield county, and an injunction allowed.
    On the 9th September, 1842, the defendant Farrington filed his answer. In this answer he admits the execution of the •note as stated, and that at the time he supposed that the consideration of the note was for the benefit of Galloway and Myers ; but as the .complainants signed the note as joint makers with Galloway and Myers, he considered, as between himself and the complainants, they were principal debtors. He admits, as charged in the bill, that in 1839 he agreed to extend the time of payment until the following April, in consideration that the said Galloway and Myers then paid him the interest in advance up to that time, and paid him some further consideration, but the amount of this admitted consideration he does not recollect. He denies, however, that this agreement for the extension of time was without the knowledge and assent of the complainant George Myers, but alleges that it was made with his assent and at his solicitation.
    He further admits the recovery of the judgment, the issuing of execution, and that the sheriff was about to levy the same upon the property of George Myers, when restrained by an injunction, procured, as he believes, at the instance of the complainant Myers.
    There are other matters and things set forth in the answer, of which it is unnecessary to take notice, as they have not been considered by the counsel or the court.
    To this answer there was no replication, nor is there any evidence in the case, except that which is contained in the answer, so far as the same is responsive to the bill, and in the answer of complainants to interrogatories filed by the defendant Earrington.
    
      Henry Stanbery (attorney general), and P. Van Trump,. for complainants.
    
      H. H. Hunter, for defendants.
   Hitchcock, C. J.

This is a joint bill filed by the complainants, George Myers and James Galloway, jr., to enjoin a judgment at law recovered against them jointly with Galloway and Myers, upon a promissory note. The ground upon which relief is sought is, that the complainants were mere sureties upon the note, which fact was known to the payee, and that after the note became due he extended the time of payment to the principal debtors, upon sufficient consideration, without the knowledge or assent of the sureties.

The fact is, that after the .note upon which this judgment was recovered fell due, Earrington did, for a sufficient consideration, extend the time of payment as charged in the bill. But it is equally clear that this was done with the assent and at the request of the complainant Myers. This is not controverted, and it seems to be admitted by counsel, that as to him, the bill must be dismissed, and the injunction dissolved. But. there is nothing in the case to show, nor is it even pretended, that the complainant Galloway ever assented to, or had any knowledge of, this agreement for the extension of time. So far as he is concerned, having been deprived of making a defense at law, he would have been entitled to relief in chancery. But having, in the case before us, come into court in connection with one who is entitled to no relief, what shall be the consequence ? It is a clear case of misjoinder, or improper joinder of parties complainant. It is so admitted to be by counsel, and the questions argued are whether the bill shall be dismissed as to both the complainants, or whether it shall be dismissed as to Myers, with a decree in favor of Galloway, or whether it shall be dismissed as to Myers, and leave given the complainant Galloway to amend.

On the part of the defendant it is insisted that, where there is a misjoinder of complainants, the bill should be dismissed; and to sustain this position, counsel cite the following authorities : 3 Paige’s Rep. 336 ; 2 Sanford’s Ch. Rep. 250; 5 Simmon’s Rep. 395; 9 Simmon’s Rep. 299.

But it is claimed by the complainants’ counsel, that this is never done, unless the defect is apparent upon the face of the bill, and a demurrer is interposed. It seems to us it would not do to say that a bill would not be dismissed on account of the misjoinder of parties, where an answer had been filed. In the case before the court, the bill, upon its face, contains sufficient matter of equity to justify the action of court. It must have been sustained on demurrer. The court would not, of course, dismiss a bill on account of a misjoinder of complainants. Whether it should be done or not, must depend upon the equity of the case, as disclosed at the hearing. If, upon hearing, the court are satisfied that ultimate justice cannot be done, except by the dismissal of the whole bill, there certainly can be no substantial objection to its being done. „

In the case before the court, had Galloway alone filed the bill,, the judgment, as to him, might have been enjoined. But in that case, if the statement in the bill be true, the defendant Farrington might have collected his judgment; for the bill shows that the sheriff was about to levy the execution upon the property of •the complainant Myers, and it is admitted on all hands that Myers was both legally and equitably bound by this judgment. The property of Galloway was not threatened with an execution. It was in no immediate danger. But, under these circumstances, Galloway has seen proper to connect himself with Myers, and, by so doing, has prevented proceedings against the property of Myers. It was, as it seems to the court, an improper interference, in no way justified by the circumstances of the case.

In consequence of this interference, it is argued by the counsel for the defendant that the injunction should be dissolved, the bill dismissed, and a decree entered against both the complainants for the amount of the judgment enjoined, according to the provisions of the statute. It seems to the court, however, that this would be inflicting too severe a penalty upon Galloway, for his unadvisedly joining with Myers in the prosecution of this suit.

On the part of the complainants, we are urged to dismiss the bill as to Myers, continue it as to Galloway, and to permit him to amend, by making Myers a party defendant.

But when we consider the injury which has been done to the defendant Farrington by the prosecution of the suit, in delaying him in the collection of a judgment to him honestly due, we are not disposed to extend any particular favor to one who has been instrumental in procuring this state of things. .This is an injunction case — a case by which a judgment at law has already been delayed for a period of more than seven years — and we would not willingly do anything to create further delay, or take any course which may, by possibility, interfere with any claim which the defendant Farrington may legally have jipon the injunction bond. #

Upon full consideration, we have been brought to the conclusion that justice will be done to these parties by dissolving the injunction and dismissing the bill at the costs of complainants; the dismissal as to Galloway to be without prejudice, and to allow the defendant Farrington to take a decree against the complainant Myers for the amount due upon the judgment at law. A decree may be taken accordingly.  