The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-07-26

denomnated an ORDER" q. l0O;) yet, upon the
same authority, Gan application for an order Ii .
notion" Is. 40l; or, what rs the same thing. mo-
ton is an application for an order and not Tor tH0
ORDERS Now, the defendants counsel, when he in
ssts that there are two ORDERS either insists that the
motion for an injunction, (Which, under the code is
but one motion,) is an application for two orders
the order for the injunction and the order for the Sc
curity-whch proposition is certainly in direct con-
ct with lha definition of the Code; else he insists
that on moving for an injunction, the plaintiff makes
two motiors-frst for the injunction, and then to
give the security. But il is manifest that he does
not move - give the security. He would rather. il
be could, of course be relieved from it, but the Code
says, the Judge shall require him to give it. There
Is anothtr ground upon which the defendant rests his
motion. and that is, that it is o distinct notion
wholly independent of the original motion for the in
junction and not an attempt to modify the order then
made. He conceiyes that independently of the pro-
visions OF the statute, the Court possesses the power
and may and ought, whenever it ap ,ears that the
defendant is not sufficiently Unidentified against the
consequences of an Injunction, to require further
Indemnity Until the rules, however of Chancellor
Waworth, made in 1880, il had never been the prac-
lice OF the Court of Chancery to require security on
the granting OF an injunction or after it had been
granted The practice was then first established by
the thrty-irst Of those rules, which substantial
ly, and almost literally. the the 222d section
OF the Code. No provision was made by the rule,
any more than by the Code for cases where security
was neglected to be taken, or where insufficient
curty was taken. The Chancellor afterwards estab.
shed the practice that IN cases where 1t was neg
lected to be taken, the party liable to be in
jured, might make special application to the
Court for relief. This he did expressly as a
supplement to the rule. (Cayuga Bridge Company
vs. Magee, Paige, R., 1921 But he never went any
further He altered the rule or practice so as
to allow party, where security had be IN taken but
thought to be insufficient to apply to the Court
for better security In such cases. the party left
to the very obvious and eXpedient course of moving
to dissolve the injunction; and then if the
titled him to it, Of asking for better security in
the injunction was continued. The Code has not
materially altered the practice in cases Of Injunction
QLinden vs.. Fritz Code Prep &c., Linden vs.
Hepburn, Sandf S G. r. 66S, Prac. r. so Corn
ing vs. Troy Iron Factory 1t has, however, made
I. this difference, which s against the defendants
motion, viz, that it has changed flexible rule of
practice into an unbending regulation Of law; and
has put it out Of the power OF courts to do either
more or less than the statute prescribes If before
the Code, court of equity would not allow such
motion, because it was against the practice, it
not and ought not to do it now because the practice
not only remains unaltered but the Code has under
taken 10 regulate specially the subject of Eunctions
and security and has not thought proper to provide
for any such notion and the Court therefore now,
even if it would, could not allow it. Without con-
sdering therefore, many of the views presented by
the case and urged upon the argument am Of opin-
ion that the motion should be denied, with costs.