As Boughton is not a party to this cause, an order can not be made to compel him to pay the amount of the notes into this court. If he consents to pay it in, I will authorise him to do so. Let an injunction, therefore, issue, upon his paying the amount into court.
Another petition was now presented by the complainants, . . • stating that the money had been paid into court, m pursuance of the authority so given by the chancellor, and that an injunction had been issued, and praying that the money might be paid out of court to the complainants; on the ground that *308it clearly appeared from the answer that, they were entitled to it.
Mr. Roosevelt for the petitioners, referred to the case of Clarkson against De Peyster, see p. 274 of this volume, and the authorities there cited, to show that when it clearly appeared from the answer, that the complainants were entitled, the court would interfere on petition, and not compel the party to wait until the regular hearing of the cause.
Mr. Hopkins for the defendant Graves insisted, that the first order was ex parte and irregular. The money paid into court, admitting the order to have been regular, must stand on the same footing as the mortgage, and that being a chose in action, could not be attached on execution, even by the aid of a bill in chancery. The language used in Hadden vSpader had been limited by subsequent decisions, made in this court. Donovan v. Finn, p. 59 of this volume. At all events, the point was a proper subject for argument, when the cause should be regularly brought to a hearing upon the pleadings and proofs. The case was not one of clear right ; and it was to cases of that kind, that the interference on petition was restricted.
Mr. Roosevelt in reply. Motions for injunctions are Usually exparte. It is not customary to give notice of them, unless under very special circumstances. At all events, whether the first order was irregular, or not, the objection can not be made on this motion. The defendant has had ample time, and if he conceived the order improper, he should have moved to vacate it. Until vacated it is the order of the court, and binding upon all parties. Its merits can not be discussed upon a collateral motion.
The Court thought, that the case did not come within the principle of the rule adopted in Clarkson v. De Peyster ; and that the right to this money, was a question involved in the merits of the cause, which must be determined at the hearing. This part of the application was therefore denied, as premature ; but an order was made, that the assistant register should invest the fund and make it productive, to abide the final decision of the cause.