Nusbaum v. Stein

Eggleston, j., delivered the opinion of this court. The bill in this case was filed in the circuit court for the city of Baltimore, on the 15th of December 1857, by Myer Stein ³¹⁸ and others, complainants, against Joseph Nusbaum and John Bowes, defendants; upon which day the court ordered an injunction and appointed a receiver. From this order, after filing their answers, the defendants appealed. It is well settled, “that the granting or refusing of injunctions is a matter resting in the sound discretion of a court of equity.” 2 Story’s Eq., secs. 863, 959, (a.) This learned author, in sec. 959, (b,) maintains the necessity for upholding' the authority of the courts to grant injunctions in a variety of cases, for the purposes of social justice.

But he then says: “At the same time, it must be admitted that the exercise of it is attended with no small danger, both from its summary nature and its liability to abuse. It ought, therefore, to be guarded with extreme caution, alld applied only in very clear cases; otherwise, instead of becoming an instrument to promote the public as well as private welfare, it may become a means of extensive, and, perhaps, of irreparable injustice.” See the authorities referred to in the note to this section, including a quotation from Mr. Justice Baldwin’s decision, in Bonaparte vs. Camden & Amboy Rail Road Co., in whicli ho says: “There is no power, the exercise of which requires greater caution, deliberation, and sound discretion, or more dangerous in a doubtful case, than the issuing an injunction.” See, also; N. Y. Printing & Dying Establishment vs. Fitch, 1 Paige’s Ch. Rep., 98. In the case of the Union Bank of Maryland vs. Ann Poultney & J. M. Ellicott, 8 G. & J., 332 , an appeal was taken from an order granting an injunction.

The appellate tribunal held, that the complainants, by their bill, had not shown themselves entitled “to the high and extraordinary power of a court of equity, which had been exerted in their behalf.” And that there was “no such evidence of their alleged claims as ought to have been produced to satisfy the conscience of a court of chancery of their existence.” The bill stated the claims to be certificates of deposit, but they were not produced as exhibits. The court said: “To warrant a court of chancery in issuing an injunction, strong prima facie evidence of the facts on which the complainants’ equity rests, must be pre* ³¹⁹ seuted to the court, to induce its action. In such a proceeding, the mere oath of the parly as to the existence of a debt, of which he holds in his possession the written evidence, and makes no exhibition thereof, should not be regarded by the chancellor as any proof of the debt. Where the existence of the debt depends on a written instrument, whereof the complainant, is presumed to be possessed, it should be exhibited with the bill, or a satisfactory reason assigned for its non-production.” In the present case, the complainants allege Nusbaum to be indebted to them in the sum of $2045.12, of which $134.02 is charged as being due on open account, for merchandize sold and delivered to-him, and the balance is stated to be due on four promissory notes; but not one of them has been exhibited, nor has any reason or excuse been assigned for such failure to produce them.

And, according to the doctrine held in the case last referred to, these notes cannot be regarded as any proof of indebtedness on the part of Nusbaum. They must, therefore, be considered as if they were not before us; thus leaving the complainants with no further claim than that of $134.02, on open account, on which they can base any title to an injunction. The bill states, that on the 28th of October 1857, Nusbaum was the owner of, and carried on, four stores, one in the city of Baltimore, one in Norfolk in the State of Virginia, one in the State of Ohio, and one in the town of Easton in Talbot county in Maryland. That the goods and merchandize then in said stores were worth, in the aggregate, about $20,000.

That on the 5th of November 1857, the said Nusbaum conveyed, by way of mortgage, to A. Brown Davidson, to secure to him the payment of $5396.72, his, the said Nusbaum’s, stock of goods in'the city of Baltimore, and, on the 21 st day of the same month, (November,) Nusbaum conveyed, byway of mortgage, the same stock of goods to Orem &, Hopkins, to secure to them the payment, of the sum of $2567.25, as appears by copies of said mortgages filed as exhibits. That, on the said 5lh of November, Nusbaum conveyed and transferred to said Davidson all his, Nusbaum’s, stock of goods in the ³²⁰ the State of Ohio, as a further security for his debt to Davidson. That the conveyances to Davidson, and Orem & Hopkins, the complainants do not mean to impeach in this suit, but refer to them as necessary to a full disclosure of their case. The bill further states, that on the 10th