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 9th 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 denied. .id
5. Counterclaim. Vide COUNTERCLAIM, (ante.)
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.,.
8. Joinder of Causes of Action.
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. Keech,.. ...691
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 him...id
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. ..id
4. The provision of section 220 of the Code requiring that on the service
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, §§ 220 and 99.).....
6. The neglect to file the papers upon which an injunction is granted within the time prescribed by the rules of Court, may be excused, and it does not render the service of the injunction a nullity or require that it be set aside...
18. Service of Papers.
Vide INJUNCTION, 4, 5.
1. In an action in which a divorce 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. Forrest, ..672
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'vr, 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 should 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....
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
rendered available. The power so given was not exclusive of every other authority. The Trustees had a right to receive payment of such collateral notes and to enforce pay- ment by action. Nelson et al. v. Wellington, ...178
3. Where promissory notes are pledged as security, the transaction ex vi termini imports authority to collect. Superadding a power to sell, which without express agree- ment would not exist, does not take away the right to receive and to compel payment..... ...id
4. Where negotiable notes are by express agreement pledged as col- lateral security to secure the pay- ment of money by the pledgor which he agrees to pay, the pledgee may sue in his own name on such notes, although the indorsement made thereon to carry the agree- ment into effect is in terms "pay to A. B." (the pledgee) "for account of C. D." (the pledgor.) Such an indorsement is not inconsistent with the lien of the pledgee and the right of the latter to collect the notes and to apply them to the account of the pledgor by discharging the debt they were pledged to secure. .id
5. Where a note is given to an In- surance Company for the nominal premium upon an open policy, which policy was to attach to all risks that might thereafter be in- dorsed thereon and risks on which the agreed premium amounted to one-third of the note were so in- dorsed, and afterwards another risk at an agreed rate of premium on all goods shipped by the maker by a vessel named and for a specified voyage, was indorsed on the policy, the maker agreeing afterwards to report the amount of the invoice; such note is a note for valuable con- sideration, and in the absence of any evidence of the amount of the shipment last mentioned the maker is liable for the full amount of the note. ...id
7. When it is proved that it is the uniform practice of an Insurance Company to transfer notes, negotia- ted in its business, by an indorse- ment in this form, "For the Com- pany, A. B., President," such proof is prima facie evidence of authority in the President to indorse notes held by the Company, by way of transfer; and such indorsement is sufficient to confer the title on one who receives a note from the Com- pany in good faith, and advances to them money thereon. Scott et al. v. Johnson, ..213
10. Where a promissory note, payable to the order of the Atlas Mutual Insurance Company, was transferred and delivered to the plaintiffs as se- curity for a debt due to them by the Company, and the indorsement was in form, "Pay... ... ... for account of the Atlas Mutual Insurance Com- pany, G. H. T., Secretary," the re- strictive form of the indorsement forms no obstacle to the plaintiffs' recovery on the note against the maker. The collection of the note, and the application of it to the pay- ment of the debt of the Company, would be according to the right of the plaintiffs, and it would be a payment for account of the Com- pany. Smith et al. v. Hall,....319
11. The owner of a promissory note
can maintain an action on it, under the Code, in his own name against the makers, although not so indorsed that he can sue as indorsee by the
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