13 Cal. 588 | Cal. | 1859
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
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.
