| Md. | Dec 11, 1866
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.
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 them, is denied by the defendants’ answer. It is also denied that the defendant, Yoshell, is in possession of the goods.
The hypothesis, “that if the goods and chattels levied upon as aforesaid, he not taken from the possession of the
The answers of the defendants, being upon oath, must be conclusive on these points at thi-s stage of the proceedings, unless they -are overcome by the testimony. Hamilton vs. Whitridge, 11 Md. Rep., 128. Bouldin & Others vs. Mayor and City Council of Baltimore, 15 Md. Rep., 21, 22. Code Public General Laws, Art. 16 sec. 103.
There is conflicting and contradictory evidence with regard to the possession of the property, but not such as to discredit the answers. The allegation of the disposal of the property by Voshell is wholly -unsupported. It is immaterial to inquire on this appeal into the value of the property, — whether it is more or less than the incumbrances which are prior to the judgments and executions of the complainants. That is a proper subject for consideration upon final hearing. The argument of the appellees, upon that branch of the cause, anticipates the question.
We are also precluded, by the progress of the case, from considering the question of the appointment of a receiver without notice to and hearing of the defendants. The rule laid down in the cases cited, that -the Court will not appoint until the défendant is first heard, unless the necessity be of the most stringent character, is one which can only he enforoed upon appeal from the order appointing the receiver.
The case of Rose & Gauss vs. Bevan, relied on by the Court below for its action in this respect, although cited by the appellees in Blondheim vs. Moore, and decided only the term before, was not referred to by the Court as one of the cases from which the leading propositions were deduced, and in that case, although the circumstances were equally stringent, a contrary course was adopted.
We cannot forbear to remark, that the propriety of such a course is made manifest by the extraordinary assumption
The order of the Court below of the 24th of February, 1866, granting an injunction and appointing a receiver-, and also the order of said Court “continuing said order until final hearing or further order/’ are reversed with costs of this appeal to the appellants, and the cause remanded.
Orders reversed and cause remanded*