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 of November 1857, Nusbaum received from Moses Herz and J. K. Hubard, of Norfolk, in Virginia, a conveyance of a stock of goods then contained in store No. 14, in the said town of Norfolk, to secure to said Nusbaum the payment to him of the sum of $3970.50, as appears by a copy of said conveyance fded and marked G, which stock of goods is one of the four before mentioned, the same having been previously sold by Nusbaum to Herz. The complainants also allege, that on the 13th of November 1857, the said Nusbaum conveyed, byway of mortgage, all his stock of goods in the town of Easton, aforesaid, to John Bowes, of the city of Baltimore, to secure a pretended indebtedness by said Nusbaum to said Bowes, of $3100, and on the 16th day of said month of November, Nusbaum, by absolute bill of sale, conveyed to the said Bowes, in satisfaction of another pretended indebtedness to him of $2950, all his, the said Nusbaum’s interest in the stock of goods which had been conveyed to him, as aforesaid, by Herz & Hubard, as appears by a copy of said conveyance from Nusbaum to Bowes, filed and marked D. The two conveyances to Bowes the complainants say they believe and charge were made by Nusbaum and accepted by Bowes without consideration and fraudulently, and for the purpose of hindering, and delaying, and defrauding the complainants, who were at the date of said deeds, and still are, creditors of the said Nusbaum. The bill also alleges, that Nusbaum «has no properly or assets of any kind, other than that which he has conveyed and mortgaged, as hereinbefore stated.” The complainants pray that the two deeds or conveyances to Bowes may be declared void. And in regard to the stock of goods included in the first of them, the further prayer of the bill is, that a writ of injunction might be issued, and a receiver appointed; which last mentioned prayer the court granted. — 321 — The question before us, it will be seen, is not whether, upon final hearing, the first conveyance to Bowes should be declared void, and perpetually enjoined, or whether, after the filing of an answer, and upon a motion to dissolve the injunction, the motion should or should not prevail, but it is whether, upon the case made by the bill, a preliminary injunction should have been issued, and a receiver appointed ? To such a question, in view of the caution and sound discretion proper to bo exercised, we must say wo think the circumstances disclosed by the bill did not justify the order passed by the court, from which this appeal is taken. We have said the promissory notes claimed by the complainants to be due them, are not evidence in support of the injunction. Their only claim, therefore, requiring examination, is that stated in the bill to be $134.02, on open account.; the proof of which rests alone upon the affidavit of one of the complainants, swearing to the truth of the statements and averments of the bill. No account is produced, verified or sustained, either in the whole or in part, by the oath of a clerk, which speeie.s of proof jt canpot be very difficult to furnish in a regular city mercantile establishment. And when the propriety of granting the injunction is based upon a claim having no more proof than is here given, it is a circumstance not to be entirely disregarded, that Bowes, the mortgagee, whose rights are to be seriously affected by the injunction, has made oath that the consideration in the mortgage “is true and bona fide, as therein set forth.” The statement in the bill is, that on the 28th of October 1857, Nusbaum was the owner of, and carried on, the four stores which have been mentioned, and that the goods and merchandize then in those stores were worth, in the aggregate, about $20,000. Now, excluding the four promissory notes claimed by the appellees, if their open account and ail the mortgages mentioned in the bill, and also the consideration for the absolute bill of sale to Bowes, are all added together, they will amount to the aggregate sum of $14,148.09. Deduct this from the $20,000, and there will remain a balance of assets, belonging to Nusbaum, amounting to $584.1.91. The — 322 — four promissory notes amount to $1911.10. If this should be taken from the above stated balance, there would still be $3940.81 of Nusbaum’s assets, after allowing every claim •against him, mentioned in the bill. (Decided July 20th, 1858.) In Triebert vs. Burgess, et al., 11 Md. Rep., 461, an order appointing a receiver was reversed, because previous notice to the defendants had not been given. The day on which the •present bill was filed, the receiver was appointed, no previous notice of the application having been given to the defendants; for which reason there will be a reversal of the appointment. And believing the bill does not make a proper case for an injunction, the order of the 15th of December 1857, granting the same, must be reversed. Order reversed and cause remanded.