The daily exchange. [volume] (Baltimore, Md.) 1858-1861, 1858-04-13
[RepOrted for The Daily Exchanged
COURT OF APPEALS OF MARYLAND.
nErIAIpIn TEn, 1877


ly and entirely to pending the appeal.
If on such appeal the order is affirmed, and the
thing on which the writ was intended to operate,
lists in specie n the hands of the defendant, the inunc
ton is restored to its original vgor but if the thing
has been consumed or disposed of the complainant's
remedy is on the Injunction bond.
The power OF appointing receiver is a delicate
and to be exercised with great circumspection:
it must appear that the claimant has title to the
property and the court must be satisfied by affi-
davit that receiver is necessary to preserve it.
The court never appoints receiver merely be-
cause the measure can do no harm: fraud or immi-
nent danger of the intermediate possession should
not be taken by the court must be clearly proved,
and unless the necessity be of the most stringent
character the court will not appoint until the de-
tendant is first heard in response to the appica-
tion
A bill which AYERS that the compainants an
formed and belere certain facts upon which an in
junction and receiver are prayed, does not make
such of fraud and imminent danger to justi-
fly the court in granting the injunction appoint
ing a receiver without notice to the defendants.
The appeals in these were taken from
ders of the Circuit Court for Baltimore city grant
ing an injunction and appointing receiver, upon
bills filed by the appellees. The facts of the
stated in the opinion of this court. The cause
was argued before LIE GRAND, c. j.; Tuck & BAR
Toll, Judges.
Chief Justice lie GRAND delivered the opinion of
the court
''The original and amended bill shows these facts:
that Blondheim being heavily indebted and insolv-
ent on the 7th of May 1857, executed bill of sale
of certain property therein specified for the con-
sideratiOn of S3 900 to Simon Goodman, and that
the 10th of June, 1857, he executed deed of
trust to Rosenberg of all his stock in trade for the
benefit of such of his creditors should release
him In 80 days, providing by the same that the trus
tees should not be liable for any loss deteriora-
tion but what might be occasiOned by his will
full commission neglect.
'There were two bills filed, an original and amend
ed BILL the object of both being the same, namely to
4 Il.
made by Blondheim, as made with the design to
hinder, delay and defraud creditors, and also to
procure an Injunction and the appointment of re-
ceiyer. Injunction was granted and receiver ap-
pointed.
''Rosenberg failed to answer either bill and Blond
helm and Goodman failed to answer the amended
bill. An appeal has been taken in each case. 1t
is contended on the part of the appeees that ap
peal will not lie until after answer filed. This is
undoubtedly the under the decisions constituting
the act of 1885, ch. $50, and think the law is not
changed in this respect by the act of 1858, ch. 374
This latter act only provides the effect and conse-
quences OF an appeal when taken from the orders
specified in it and that bond shall be given 1t does
not contemplate change in the circumstances ne
cessary preliminariy to appeal under the act of
1885, If this be so then the appeal of Blondheim,
Goodman and Rosenberg from the action of the
court on the amended bill must be dismissed. This
confines to the made by the original bill
But before proceed to examine its averments
we shall state what we consider to be the operation
of appeal under the act of l853 chapter 374.--
We do this because it is but proper the profession
should understand the view of the appellate court
in regard to statute which is daily acted upon,
affecting, as it does, most materially the business of
a commercial and manufacturing community. That
act is as follows:
"That in all cases where an appeal is taken from
an order of court having equity jurisdiction either
granting injunction appointing a receiver, or
from order refusing to dissolve Injunction the
operation of such an order shall not be STAYED in
fnlnS hn apt
bond with security to indemnify the other party
from all loss and injury ,chich such party may sustain
Gy reason Of such appeal and the staying Of the OPP
GRAFTON of such order-such bond to be approved by
the judge granting the injunction, the clerk of
the court where the proceedings are pending, and
upon the giving of such bond the appeal shall stoy
the operation Of all such orders an the
appeals do from final decrees'
''It is not to be presumed that the Legislature
meant nothing by this act To our mind, if the
English language means nything, this act distinct
ly provides than appeal in the cases authorized
by it (where bond is given) shall stay the opera
tion of all such orders IN the same manner appeals
do from final decrees.' What is this manner? 1t is
nothing than this: Everything is stayed, sus-
pended, until Judgment shall be pronounced by the
appellate tribunal; that is to say, the operation
and effect of the injunction wholly and entirely
| ceases Such was the effect and operation of an
appeal under the act of 1885, ch. $780, except in the
| case Of an injunction to stay waste. The act OF
1853 does away with the exception. If on an appeal
from an order granting an injunction this court
should affirm the order, and the thing which the
injunction was intended to operate should exist in
SPECIE in the possession of the defendant then the
injunction is restored to its original vigor if the
| thing has been consumed disposed of, then the
| complainant must proceed or the bond which is
given for the express purpose of indemnifying him
| from all loss and injury which he may sus
| tain because of the appeal. We are unable
! to give any other meaning to the act. The obec
ton, that before the bond can be made available
practically, to the indemnfcatiOn of the aggrevcd
| party, the obgors may become insolvent, however
true, can nevertheless have no weight in the con-
struction of the act 1t is an objection which would
apply with equal force to any other bond. The act
! provides that the bond shall be approved by the
Judge granting the ORDER and we are bound to as
sumo this power will be exercised with every
| caution and not until the court is fully certified o
| its sufficiencv If this does not guarantee in
Identification to the party, then, the failure il
owing to the nadequacy of our legislation and tn,
mutabity of human affairs. The foresight of maj
| is not competent to guard against all future con
! tinpencies We NAV add that when all thing
are calmly considered, perhaps, it will b.
| found that under our acts of Assembly and th
decisions thereon, the creditor has a very decided
advantage over his debtor. He is permitted t.
| state his own in his own way, restrained onl,
by his conscience, and upon such statement, if full
enough, to break up the business of his debtor. l
the latter appeal from the order, although his con
science has been probed, yet he has no benefit from
| his own testimony: His case is tried and determn
|
the least of it, does not look much like equality.
| To deny an appeal to the defendant until he shal
have answered the bill, and then to say the answe
shall not at all be looked to is not withou the ap
pearance of trifiing; it is to command act which
| when performed, is to be taken as wholly void G
value The only reason we can imagine for such
procedure is that it enables the complainant t
| fish out case from the answer of the defendan
so as to furnish him with the aids necessary to ote
his case if need be. 1t is species of iugglery no
altogether worthy of commendatOn. tits, however
the law, and we are bound by it.
| '.The Injunction was granted and the receiver ap
| pointed on the application of the complainant
without notice to defendants or a rule for them
show cause
'sThe actual averments of the original bill 9TH
only one properly before US, may be thus stated
1t is alleged that BlOndheim had purchased of tn
companants goods to the value of 81 .lS3 SO, par
of which amount he has paid. although at the time
filing the bill there due oft S3l997; that he owe
to other creditors large sums, amounting in the ag
gregate to the sum of twelve or fourteen Thousand
dollars; that Blondheim being so indebted and hops
lessly insolvent, he the 18th of May 1857, execI
ted and delivered to Goodman deed of certai
furniture, together with the whole stock of read
made clothing in store, and dwelling No. 81 Er
taw street, for the consideration, 'as is pretend
ed by the deed aforesaid of three thousand do
lars 1t further alleges and charges as 70
lows that the complainants are informe
and believe that the said Simon Goodma
came from Germany here about twelve months age
that since he came to this country he has been a
employees; that he is the brother of the wife of sal
Hertz Blondheim; that when he came to this countr
he was without any considerable means with whic
to purchase the amount of goods which by the dee
he is said to have purchased for cash.. The bill
tnues that the complainants are Informed and b.
lieve that Goodman is an unmarried man; that th
property is now, and has been since the making
the deed, in possession of Blondheim, and that he
selling and disposing of the same in the course
his business, and has been replacing the goods
: sold therefrom with others purchased on credit.
at is only necessary to refer to few authoritie
to exhibit the law applicable to a like this. III
chancellor in the of Clark ct al. Us. Ridgely
al. Nd. Ch. Dec. rs, in the case of Thompson u
Difenderfer, ibid. 4S9, and in the of Wake
admr., Us. House, Nd. Ch Dec. 80, has brougl
together the leading decisions wherein the doctrir
applicable to the appointment of receiver is cea
ly laid down. Without quoting at large, from the
referred to and approved by him, it is suficer
to say they will be found to establish the follown
DrOpositiOns