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the case had been decided in the
plaintiff's favor, but had no know-
ledge of the particulars, or that the
plaintiff was by such decision enti-
tled to the rents due that day, col-
lected such rents. On the oth of
April, a judgment was entered in
conformity with the decision, and
was made to bear date of the day
the decision was announced. The
defendant was not under any in-
junction in the action, and the de-
cision did not direct an injunction.
Upon these facts, a motion to pun-
ish the defendant for collecting
those rents, as for a contempt, was


5. Counterclaim.

Vide COUNTERCLAIM, (ante.)

6. Discovery.
1. On an application for a discovery
of books, in order to enable the
plaintiff to prepare his complaint,
if it appear that the plaintiff is
seeking to recover moneys received
by the defendants, as his factors and
agents, selling his goods, and they
have not rendered accounts of sales
in full, the Court will order them
to render such account or give a copy
of their book showing such sales
from the time of the last account
of sales rendered. The plaintiff,
upon those facts, is entitled to such
account of right. Ruberry v. Binns
et al.,...


2. But under color of an application
for such a purpose, the plaintiff is
not entitled to examine the defen-
dants' books at large, or to have
copies of them, for the purpose of
seeing whether they conflict with
the accounts of sales heretofore


3. Clerk

1. Duty of, to enter judgment and
attach together and file the papers
constituting the judgment roll

, and
the party cannot be compelled to
do it, or to cause it to be done.
Heinemann v. Waterbury, .....686

4. Contempt

1. Where by a judgment or decree
a defendant is required to execute
an assignment or conveyance to the
plaintiff, and an instrument in proper
form is tendered to him, he is bound
to execute it, although it has not
been submitted to the Court or
Judge for approval. Hilliker, Re-
ceiver, v. Hathorne,.. ..710

2. It is, however, proper that such a
judgment should provide for the
settlement of the form of the instru-
ment by a Judge or Referee, and if
the defendant is in doubt respecting
the propriety of the form of the in-
strument proposed, he should apply
to the Court to have it

3. On a motion to punish a defend-
ant for a contempt in not execu-
ting the assignment tendered, where
the judgment did not provide any
mode of settling the form thereof,
it appeared that the defendant acted
in good faith, under the advice of
counsel deeming him not bound to
sign the instrument in the form
tendered; the motion was discharg-
ed without costs, on the defendant's
executing the instrument.

4. In an action by a Receiver, on
behalf of a judgment creditor, to
set aside an assignment of a lease,
the Court, on the 27th of March,
announced its decision that the as-
signment was void; that the plain-
tiff is entitled to an assignment
thereof as Receiver, and to the
rents thereafter to accrue from the
tenants in possession. On the 1st
of April, one of the defendants, who
had heard, in general terms, that

Bosw.–Vol. V. 95

7. Exceptions.
Vide NEW TRIAL, 1, 3, 4, 6, 7.

8. Joinder of Causes of Action.

Vide JOINDER, (ante.)

9. Injunction.

1. Where a party obtains the privi-
lege of building a party wall, one-
half on his own lot and one-half on
the lot of another, and covenants
that he will build such wall, but
does not extend the wall so far as,
by his covenant, he is bound to do,
and thereupon the other party enters
upon the ground and begins to ex-
tend the wall upon the land of each
to the stipulated point or line, the
latter will not be restrained by an
injunction, at the instance of such
party in default, from making the
extension. The Rector, &c., of the
Church of the Holy Innocents v.


2. Even if, in such case, the party
extending the wall has not obtained
a strictly legal title to any of the
ground of the other, or to the use
thereof, still a Court of equity will
not restrain him from doing what
ought to be done, and what the
other was bound to do for

3. But, where the point, or line, to
which the party wall was to be ex-
tended by the party covenanting
is in dispute, and it is not clear
what, in that respect, is the true
construction of the covenant, and
where, also, the extension of the
wall, as attempted by the other, will
require the cutting away of a stone
stoop or portico and do permanent
injury to the building of the former,
the Court will interpose by injunc-
tion pendente lite, and restrain the
extension until the right can be
ascertained and settled by the aid
of such extrinsic facts as may be
properly proved to aid in determin-
ing the true meaning and effect of
the covenant.


of an injunction a copy of the affi-
davit on which it is granted be
served therewith, is satisfied by the
service of copies of whatever pa-
pers were laid before the Judge,
and on which he ordered the injunc-
tion whether the allowance was
upon a summons and a complaint
duly verified or upon affidavits com-
monly so called. Leffingwell

, Re-
ceiver, v. Chave et ux., ..703

5. An injunction order may be al-
lowed and signed by the Judge, and
be delivered to the officer before
the service of the summons upon
the defendant; but the service of
the order upon the defendant before
the summons is served, is irregular
and is ineffectual. (Code, $8 220 and
6. The neglect to file the papers
upon which an injunction is granted
within the time prescribed by the
rules of Court, may be excu

cused, and
it does not render the service of the
injunction a nullity or require that
it be set aside....

10. Judgment.

1. Set aside to allow an appeal to be



2. Duty of the Clerk to enter judg-


3. The question whether, when a
judgment by default has been di-
rected to stand as security, but the
defendant suffered to defend, a
second judgment should be entered
on a subsequent recovery of ver-
dict or decision by a Referee in
favor of the plaintiff

, discussed by
HOFFMAN, J. Heinemann v. Water-


4. Requiring execution of an instru-
ment should prescribe some manner
of settling the form of such instru-

Vide title JUDGMENT.

4. The provision of section 220 of the
Code requiring that on the service

11. Judgment Roll

18. Service of Papers.
Vide INJUNCTION, 4, 5.

19. Stay of Proceedings.

1. Upon the filing of the decision
of a Referee determining the cause,
it is the duty of the clerk to enter
the judgment directed by such de-
cision; and if the prevailing party
does not choose to furnish to the
clerk a judgment roll

, it is the duty
of the clerk to collect from the files
such papers as constitute such roll,
and attach thereto a copy of the
judgment. (Code, $ 281.) Heine-
mann v. Waterbury,..
2. It is optional with the prevailing
party to furnish a judgment roll or
not, and he cannot be compelled by
an order of the Court to cause a
judgment roll to be


12. Jurisdiction of General Term.

1. In an action in which a divorco
has been granted and a reference
had to settle the amount of alimony,
on which reference the testimony
is very voluminous, and the amount,
reported to be just, large, and the
defendant's counsel alleging errors
committed by the Referee, and being
in doubt whether, under a system
of practice recently introduced, it is
necessary, in order to review the
proceeding, to make a case and move
thereon to set aside the report and
for a new trial or further hearing
before the Referee, or whether he
can move on the report and testi-
mony and his exceptions, the Court
will extend the time and stay the
plaintiff's proceedings to enable the
counsel to determine his course, and
prepare his papers. Forrest v.

2. It seems in such case that the
review of the proceedings on such
a reference is by a hearing of the
exceptions on the testimony, report
and minute of proceedings annexed
thereto, and that no formal case is
necessary. (Rule of Court, No.

Vide APPEAL, 5.

13. Mistrial.

Vide APPEAL, 1, 2, 3.

14. New Triah

Vide New TRIAL, (ante.)

15. Order Appealable.

20. Time, Extension of.

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the plaintiff or his attorney for the
security of the defendant, and exe-
cuted by any persons possessing the
requisite qualifications, agreeing
that the plaintiff shall pay to the
defendant the damages he may sus-
tain, is an undertaking. "on the part
of the plaintiff” within the mean-
ing of section 222 of the Code,
requiring security on granting an
injunction. It is not necessary that
it should be executed by the plaintiff
or his agent or attorney Leffing-
well, Rec'ur, v. Chave et ux., ...703

2. Such undertaking must be given
in form absolute and binding either
the plaintiff, or some one or more
who undertake for him, absolutely
for the payment of such damages;
and it may, if the Judge require
sureties, also bind others as sureties
in form and in terms as sureties.
There hould be a principal and the
Judge may require sureties; but
such principal may be one who un-
dertakes on behalf or for the plain-
tiff, without the latter being a party
to the instrument....


23. Verdict.

sion of time discharges surety. Wil-
son v. Roberts, ....



1. A Mutual Insurance Company
took up a subscription, by which
the subscribers agreed to give their
notes for premiums in advance of
insurance to be effected by them,
the subscription not to be binding
until the sum of $300,000 was sub-
scribed. That sum was in form
subscribed, the defendants being
subscribers, and the defendants
voluntarily gave their notes for the
amount of their subscription. All
parties acted in good faith, and
without any fraud, misrepresenta-
tion or concealment: Held, that
such notes were, in the hands of the
Company, valid binding notes, which
the Company had a right to nego-
tiate for the purpose of paying
claims or otherwise, in the course of
its business, notwithstanding it ulti-
mately appeared that some of the
subscriptions were not valid binding
subscriptions, and notwithstanding,
if the notes had not been given,
the defendants might have legally
refused to give them on the ground
that the condition of the subscrip-
tion had not been in fact satisfied.
Holbrook v. Basset et al., .......147
2. Where an Insurance Company, in
order to raise money for the imme-
diate purposes of its business, bor-
rowed notes from its friends and
they were discounted and the money
paid over and so used, and by the
agreement the Company were to
pay such notes and to secure that
payment were to deposit and did
deposit with the plaintiffs, as Trus-
tees, certain negotiable notes re-
ceived in its business, as collateral
security, with authority to sell such
collateral securities or any portion
thereof at public or private sale at
the option of the Trustees: Held,
that a sale was not the only mode
in which the securities could be

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rendered available. The power so 6. Transfer by an agent for collec-
given was not exclusive of every tion, as security for his own pre-ex-
other authority. The Trustees had isting debt, does not confer title as
a right to receive payment of such against his principal. Scott v. Ocean
collateral notes and to enforce pay- Bank,

ment by action. Nelson et al. v.

.178 7. When it is proved that it is the

uniform practice of an Insurance
3. Where promissory notes Company to transfer notes, negotia-
pledged as security, the transaction ted in its business, by an indorse-
ex vi termini imports authority to ment in this form, “For the Com-
collect. Superadding a power to pany, A. B., President," such proof
sell, which without express agree- is prima facie evidence of authority
ment would not exist, does not take in the President to indorse notes
away the right to receive and to held by the Company, by way of
compel payment.....

id transfer; and such indorsement is

sufficient to confer the title on one
4. Where negotiable notes are by who receives a note from the Com-
express agreement pledged as col- pany in good faith, and advances to
lateral security to secure the pay- them money thereon. Scott et al.
ment of money by the pledgor v. Johnson,

which he agrees to pay, the pledgee
may sue in his own name on such 8. Subscription notes may be trans-
notes, although the indorsement ferred by such a Compan" as secu-
made thereon to carry the agree-

rity for a loan..
ment into effect is in terms “pay to
A. B.” (the pledgee) "for account 9. Transfer to a bona fide lender
of C. D.” (the pledgor.) Such an without notice is valid, even though
indorsement is not inconsistent with made without a previous resolution
the lien of the pledgee and the right of the Board of
of the latter to collect the notes and
to apply them to the account of the 10. Where a promissory note, payable
pledgor by discharging the debt they to the order of the Atlas Mutual
were pledged to secure. .id Insurance Company, was transferred

and delivered to the plaintiffs as se
5. Where a note is given to an In- curity for a debt due to them by the
surance Company for the nominal Company, and the indorsement was
premium upon an open policy,

in form, “Pay... .for account
which policy was to attach to all

of the Atlas Mutual Insurance Com-
risks that might thereafter be in- pany, G. H. T., Secretary," the re-
dorsed thereon and risks on which

strictive form of the indorsement
the agreed premium amounted to forms no obstacle to the plaintiffs'
one-third of the note were so in- recovery on the note against the
dorsed, and afterwards another risk

maker. The collection of the note,
at an agreed rate of premium on all

and the application of it to the pay-
goods shipped by the maker by a

ment of the debt of the Company,
vessel named and for a specified would be according to the right of
voyage, was indorsed on the policy, the plaintiffs, and it would be a
the maker agreeing afterwards to payment for account of the Com-
report the amount of the invoice; pany. Smith et al. v. Hall, ....319
such note is a note for valuable con-
sideration, and in the absence of 11. The owner of a promissory noto
any evidence of the amount of the can maintain an action on it, under
shipment last mentioned the maker i the Code, in his own name against
is liable for the full amount of the the makers, although not so indorsed
note. that he can sue as indorsee by the

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