Prader v. Purkett
Before: Baldwin
Synopsis
Even if a Chancellor has no power, under the 116th Section of the Practice Act, to require an undertaking upon the issuance of the restraining order, still, having taken jurisdiction of the general subject of litigation, he has power, aside from the statute, to order such undertaking, or to make any other order in the progress of the case, for the furtherance of the objects of the litigation, and the protection of its subject matter.
An undertaking in such case, reciting, that it is made in pursuance of the order of Court requiring a bond in the suit in which a restraining order was already in force, sufficiently expresses a consideration. The order for the bond and the undertaking must be taken together.
The pendency of a suit between parties at the time of issuing a restraining order, is sufficient to give the Court jurisdiction to issue the order. And the regularity of its exercise cannot he collaterally impeached.
Where there are several obligees in such an undertaking promising to pay “said parties enjoined,” etc. suit may be brought in the name of one alone, if he be beneficially entitled to the fruits of the recovery.
Summers v. JS’aris7i, (10 Cal. 350,) affirmed.
Baldwin, J. delivered the opinion of the Court— Terry, C. J. concurring.
This is an action on an undertaking executed in a chancery case, pursuant to the order of the Judge for a temporary injunction. It is objected that the statute does not provide for an undertaking in such a case. But whether this point be sustained [591]by a right interpretation of the statute or not, we think that as the Chancellor had taken jurisdiction of the general subject, he had power to make this order as any other order in the progress of the case, for the furtherance of the objects of the litigation, and the protection of the subject matter of it.
2. It is next objected that the paper is void because expressing no consideration. But taking the order and the undertaking together, we think it does sufficiently express the consideration.
3. The order under which this undertaking was executed was made on the 29th of September, 1856, and we understand that at that time there was a suit pending between the parties mentioned in the complaint. This was enough to give the Court jurisdiction and the regularity of the exercise of it cannot bo collaterally impeached.
4. The suit was properly brought in the name of the party beneficially entitled to the fruits of recovery, though there were several obligees, as we held in the case of Summers v. Parish, (10 Cal. 350.)
We think the demurrer was improperly sustained.
Judgment reversed, and cause remanded.
On rehearing, Baldwin, J. at the July Term, 1860, delivered the opinion of the Court—Field, C. J. and Cope, J. concurring.
We passed on this case at a former term. We have since reviewed the opinion, at the instance of the Respondent’s counsel. We see nothing to change the judgment before directed; and nothing in the points, which are purely technical, requiring further elaboration. The former opinion is adopted as explanatory of the grounds of our decision.
Judgment reversed, and cause remanded.
See Browner v. Davis Martin et al. 14 Cal.; Prader v. Grim & Cooper, ante.
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