S. & J. F. Jenkins v. Wilde, 2 Paige Ch. 394

S. & J. F. Jenkins v. Wilde

2 Paige Ch. 394 | New York Court of Chancery | 1831

The Chancellor

ordered the injunction to be set aside for irregularity. He said the statute was imperative ; and that the master had no authority in such a case to allow an injunction to stay the proceedings on a judgment, except upon the terms prescribed by the statute. That it was the duty of the master to ascertain from an examination of the bill, the situation of the suit at law ; and if no issue had been joined, he should, in his certificate, direct a provision to be inserted in the injunction according to the thirty-third rule, permitting the party to proceed to judgment; unless it was a bill of discovery merely. That where the suit at law was at issue, it was the master’s duty to take from the complainant a bond and security, as required by the 139th section of the statute ; and to specify in his certificate that such bond was to be filed with the proper officer before the issuing of an injunction. That if a verdict had been obtained in a personal action, the master should ascertain the amount of the debt or damages recovered by the verdict, and of the probable costs in the suit, and should specify in a certificate the sum to be deposited. If the ver diet was in a real or mixed action, he should take from the complainant a bond and security, as required by the 144th section. And if a judgment had been rendered in the cause, the master should direct the full amount of the judgment and costs to be deposited ; and should also take a bond and security for the payment of the plaintiff’s damages, by reason of the injunction, and such costs as might be awarded to him in this court. That no one but the chancellor or vice chancellor, before whom the bill was filed,, had a jight to take a bond and security in lieu of the actual deposit of the money, after verdict or- judgment. And that even the court could not dispense with the security in any of *396the cases mentioned in the 5th article, (2 R. S, 188,) unless there had been actual fraud in obtaining the verdict or judgment. The Chancellor further statéd,' that in every case where* an injunction .was obtained' contrary to the statute, or to the thirty-third rule of the court, the defendant might apply and have it set aside for irregularity, with costs. And that if the register "or clerk, with whom the bill was filed, discovered that the master had allowed an injunction contrary to the provision of the statute or to the standing .rules, he might decline to -enter an order'for the injunction on the master’s- certificate, and refer the question to the court.