8. The best reason, perhaps, for setting aside the decree dismissing the bill is, that the Judge erred in listening to the application and granting the order to dismiss it. At the time of the application it had been fully shown by the bill, answers, affidavits, and depositions taken, what the character of the transactions were between Newell and McGreal. In addition to this, the complainants had asked, in the bill, that the property of the firm might be given to the creditors. They had asked for the appointment of a receiver, and prayed that the property might be delivered over to him. They had executed an assignment on their part to the receiver, that he might the better collect the assets. The creditors had paid a consideration for the protection of their interest through this suit. It was too late, therefore, for the complainants to recall what they had done. Hunt v. Rousmanier's Administrators, 5 Cond. Rep. 401.
9. What the complainants had done was equivalent to the execution of a power of attorney, coupled with an interest; and had all the effect of a contract or deed, with a trust ingrafted on the instrument. It was not revocable even by the death of the party. The trust had been created; the trust-fund had been placed in the hands of the receiver under the order of the court; and no imposition on the complainants, nor collusion on their part, should have been permitted by the court to work a devastavit on the property placed in the custody of the court for the benefit of the creditors. The doctrine implied in the language of the court, in the case of Williamson v. Wilson, (1 Bland. 418,) well applies to this case.
In aid of this would also come the rule, 'That a naked license is not revocable where it has been once acted on, or where an encouragement to spend money has been given, and the expenditure has taken place.'
Even in an action at law, where one man says to another, 'Bring the suit in my name; let the property recovered by applied to the discharge of my indebtedness to you,' has always been held to operate as an equitable assignment, not revocable. Canfield v. Munger, 12 Johns. Rep. 346. The creditor has also, in such case, the right to continue the name of the assignor as a party to the suit, notwithstanding the nominal plaintiff should attempt to countermand the license.
10. In general, persons not parties to a suit in equity, cannot come in and ask for relief or protection. There are exceptions, however, to this rule. Creditors are quasi parties to a suit brought for the dissolution of a copartnership, an accounting, and the distribution of the partnership property. They are entitled to come in under the decree for distribution, and prove up their demands before the master; and they thus become incidentally the objects of protection by the court. In the case of a creditor's bill suit, it is not necessary that all the creditors should be made parties complainants. It is sufficient that one creditor files the bill, with the suggestion that others who voluntarily come in and share the expenses, may participate of the proceeds on distribution. All the creditors, thus contributing, are entitled to equal favor, and it would not be insisted that collusion, between the complainant and defendants on the record, would be allowed by the court to work a defeat of the objects of the bill, by hastily dismissing the cause.
11. The bill in this case sets forth the names of the creditors prayed to be made the beneficiaries, and the respective amounts due each. The answer of the defendant, Newell, admitted them as stated in the bill. It is insisted, that this alone gave the demands of the creditors the effect of a judgment and lien on the assets in the hands of the receiver, the same as on a decree for an accounting, and the report of a master as to amounts due creditors, in a case where they had not been in form made parties to the suit. In such case, after decree for accounting, and the establishment of the demands of creditors on reference to a master, the suit cannot be dismissed by the consent of complainants and defendants. Lashley v. Hogg, 11 Vesey, Jr. 602. What the creditors were entitled to by way of decree, as shown by the bill and answer, it is urged, could not be defeated by the fraud or collusion of the parties named as complainants and defendants on the record.