New-York tribune., 1867-08-15


January plaintiff deposited with defendants. as sddf
tOnal security $4,000 cash and 80 shares OF racine
Mail steamship COmpanys stock, of the yalue OF slV'
All the foregoing allegations are substantially ddHieVou
PlaintifT says that the close Of tie day Of ie
2ith OF January he piainf han Iuy e3nps.d Int eS
contract his part and had requested the defcndansn 70
carry The 1900 shares oi preferred STOCK sgreed Upon
Pl4n'n further alleges th2t on atiu lill uy VI
1867. at about $3.50 O'clock he notice 10 INC deehu
ants that the day be- would take up 2FO shares o.
the preferred stock and pay fOr the same ana wOul9
leave the whole OF the additional security ~ delehhaS
haGds collateral 10 the remaining 5000 shares ne a.o
alleges that on the day he notified the deiehoans
that the next day he would take up and pay for an add
required to make the margin perfectly secure ana
would leaVe all the additional securities collateral "
the remaining 5,JDO shares
He also alleges that by the custom Of the market he had
until q ocl.k the Zjth 0 January 10 do TINS and hat
ne was ready and willing the said 2jth at II O'Clock, "a
do 49, notified the defendants to mat effect when de-
fondants replied they had sold a sail VOO stss OK tns
preferred stock and they thercuoh rendered MN az sc-
count of sales which they claim to De surety Tue ana a-
ourate aud which showed large balance IN Their favor
making good which they claimed tbe risht ."
sell the 100 land grant bonds and tte 65 shares OF uo
cic Mail Steamship stock, pledged IS before statHu
Plaintiff however alleges thi account Of deendaDts 10
be incorrect and untrueuntrue in the, tat deichnah
sold the said preferred stock not IN legitimate way ana
much below the market value and he further says fhat
the stock had been estimated at fair market value. tho
margin IN their hands at the time they sold ns Peieried
stock amply sufficient, and more than sufficient td
have enabled defendants To carry the said 10000 shares y
preferred stock All these allegations are absolutely ahd
positively denied by defendants.
so that, the principal question IN the case whether
the defendants acted legally aud fary ~ selling ana as
posing Of the 10000 shares OF the preferred stocA OF me
which sale they claim 10 have large Dltah9e esa,st
plaintiff or whether they cOnnyed "a Dieak down the
market value Of said stock and sold the sah 5eoIe in
below it, market value and tha by reason teitO ne ~
not IN their debt ana that therefore he Is entitled 10 nave
an accounting, and TO have Tetu Ell =" MN 1e - linu
Grant bonds ana the sc shares OF Tie Pacific Mall steam
hip CODpany's stock
sum due by him lO defendants ne u Teady ana Whs
To pay the and now offers 20 do 50 and receive 0aoH
his pledges In the time he prayed Tor ald ad re-
NE g,'r .osin NJ the said 100 Land Crab
ap.il ~
Tie motion now before me IS one on the part of tho do
PENDANTS 10 set aside that injunction. dnd allow sdu Io
PENDANTS to sell and dispose ~ the Land Grant DOn1s ana
fine Pacidc Mail Steamship Company stock 70
able defendants to satisfy their alleged balance due ny
plaintiff Ia them and for the purposes OF TINS lnOtOh
they rely mainly upon two facts
FIRST They say that the statements presented by them
strong and overwhelming that the Court wOu1 DO
! fully Justified Ia dissOlvng the injunction
Sec0nd They alege that In former action IN the Su
prme Court of this District which action was discOntin-
ued before this suit commenced; motion wac made
10 set aside similar injunction ard was granted. ana
afterward affirmed at General Term on behalf OF defend
ants and they contend that the decision that mo-
ton by the Supreme Court should bind this Court or at
lea in great measure warrant me IN granting their
| mo Ion here
The prayer OF that complaint shows that the plaintiff
demanded, final relief that the defendants pretended
sales OF the plaintiffs preferred stock be declared null and
void and that the defendants DE required 90 return tho
l0,OOO shares 10 the plaintiff. and to recover hedVy
| damages.
That action get the preferred stock back again
to repudate sales by the defendants and compel
them replace It, and then that they should be com'
/
ground Plaintiff, I'm that action did not oher a. he does
in this. to pay them balance If any should be found
their favor but claimed that they had unawtuy dealt
the preferred stock on the ground That their trans
| acdO In II was fraudulent. 80
This action brought for the recovery Of the coaterals
two lots of bonds and the other OF Pacific MAIL
shares put mp as pledge o security under & hT % aa
pledge Defendants admit that they were put IN as
collateral pledges aud they have accordingly rendered.
AN account but plaintiff denies that account ana states
facts going show that the account should De nfos
gaed In order to ascertain whether anything Is due them
he
simply privilege of paying any balance found aXast
him and redeening the pledged colaterais and " my
mind the remedy ne seeking il the allie cations in
his complaint be true, is the correct remedy
Tbey claim thaf paintif owes CO or $4,000 Plaind
denies that it is such sum- bur says Whatever tns
amount NAV he entitled to ask that be nrst tscer
tanned by the Court what he does owe m anythlnyJ ia
that he may have chance TO pay IT. pledger has
right 10 an account and have decree OF competene
70 settle the same, II that account De dsluDea
This he has right TO ask l"lard's L9uiiy J41spra
dence 49, see the numerous oases el.su ~ m no' no -
Court OF Equity has always jurisdiction OF smch cIams
ndge Jury and sheriff. when there is any dispute about
tho subject pledged il the right Of the party To be heard
| M open Court before his property Is sacrificed
prudent pawnee, where there question about the
bupgs his action In eaaity 10 fOreclose the pledge
and have It sold, and have the amount due him deter
| there is a question to the amount, and wants TO
redeem his property and Is ready 10 pay ne ne ] ma5
nIh@d Tehsr to come INTO court O' hi1i'' 1D1 '- ~ r
THAI % WSea TSs 81 be esT e iG by the action viii fail unless
there be an injunction pending the suit. and where
tue plaintiff gives security, temporary INJUNCTION
should be granted, otherwise the whole object Of the
r6e pledge Of 10000 of Chicagoand North Western
Railroad Preferred stock pledge by written tn
strument with waiver In it while the pledge OF tho
property the palntlh now seeking 10 recover was
simple pledge with waiVera new agreement 50 Iar as
these securities are concerned
The 10000 shares OF preferred stock that plaintiff put in
the first pledge against the SoO0o was pledged W th
condition and %aiIeT Inc Gona9n az ION wa, TO AGGp lps
value Of the stock on the default OF that condoh the
pledge would be forfeited and the parties rights As
pledges 90 enforce IL would Immediately arise Il may
be well 10 examine hastily here what are the nights or
parties In this action even the defendans DE coirec!
IN their views III saying that the landgiat Oohds anu
the Pacific Mail stock were part ana parcel OF Ie OrS
In the trs place II there waiver the agreement,
his rights demand satisfaction, and give the
and then give him notice OF sale before they sell ais
pledge. Without these three things ne cannot sen ilrs
there must be a demand; secondly 1t must be demand
reasonable in time and thirdly there must De notice IN
tins the defendants TESTIFY posvSly there VIZ "a
demand and notice. but this Is as positively denied oy
plaintiff. =
sell unless there be waiver without first calling upon
the person. II he is within reach aud requiring him 70
make his pledge good and then giving him notice before
he sells; waiver V notice Is not waiver OF demand a
NewYOrk H. 4i9, Wilson agt LteJ Ia that case II was
held expressly that where there was contract saying
ize a sale without demand and without calling on me
person fulfill The borrower agreed that the vendor
out demand OF payment and the law OF this Court Is tha
where was waiver OF the notice only demand
was not waived. 4
The rule that a demand is necessary Notwithstanding
the waiver OF notice. is held also in Lewis Ag Varnum
l2 Abbott $685. and In the very recent OF Genet agt
| Howlaud As Barbour, 560 The notice given was ncs
equivalent to a demand. The demand must be require
ment to pay and redeem and reasonable time for pay.
nent and redemption must be allowed. In q n y, S6i
GMIliken agt DE Bowl there was a consignment OF
ton aud the cOnsignee keep the margin good and
10 held that the consgnee could not sell IN that case
that he must demand the margin before selling He had
leave by contract sell without notice but there was
not enough. Demand was not waived The question in
that case was whether demand was necessary and ths
| necessity was declared by the Court.
! I'm Andrews agt Clarke. g BoswOrth, $751; il held