Voshell v. Hynson

Bowie, C. J., delivered the opinion of this Court. There is no subject on which this Court has recently, more fully and frequently announced the principles which should govern the action of Courts of Equity, than on the' exercise of the power of appointing receivers and issuing injunctions to preserve property. From Blondheim vs. Moore, 11 Md. Rep., 365 , to Haight & O’Connell vs. Burr, 19 Md. Rep., 136 , the essential averments of a bill praying for a receiver and injunction, and the course to be pursued, have been broadly and emphatically prescribed. In the case first mentioned, the late learned Chief Justice reduced the result of previous decisions to these five propositions : 1st.

The power of appointment is a delicate one and to be exercised with great circumspection. 2nd. It must appear the claimant has a title to the property, and the Court must he satisfied by affidavit that a receiver is necessary to preserve the property. 3rd. There is no case where the Court appoints a receiver merely because the measure can do no harm. 4th. That fraud or imminent danger, if the intermediate-possession should not be taken by the Court, must be clearly-proved. ⁹³ 5th.

That unless the necessity he of the most stringent character, the Court will not appoint until the defendant is first heard in response to the application. The last two propositions were cited with approbation in Haight & O’Connell vs. Burr, as rules, deduced from an examination of all the cases, to which the Courts should adhere. This appeal is not only taken from the order appointing the receiver and granting the injunction, hut also from the order refusing to discharge the receiver and dissolve the injunction upon motion to that effect, after answers filed on oath and testimony taken. The bill in this case is framed after that in Rose & Gauss vs. Bevan, 10 Md. Rep., 470 , where it was said “the hill undoubtedly makes a good case,” and the Court below refers to that case, as its authority for its action in this.

The question is not here, as in that, whether the “receiver was originally properly appointed and the injunction properly issued. There, as in the case of Haight & O’ Connell vs. Burr, the appeal being from the appointment of the receiver and issuing of the injunction, the Court assumed the allegations of the hill to be true and sustained the action of the Court below. Hero, the answers being filed and testimony taken upon the motion to discharge and dissolve, we have to inquire whether the propositions above laid down can he sustained so as to justify the Court below in refusing to discharge the receiver and continue the injunction. There is no fraud imputed in the hill to any of the parties.

The allegation that the defendant, Yoshell, has been permitted to use and dispose of the goods, and is disposing of