Majority
p. 420West, President of the Tenth Ward Bank, v. Swan. August 22. 1840.
Headnote
Practice. Receiver.Receiver refused before answer where there was no specific charge of insolvency or infringement of an injunction.
Motion for a receiver of certain sterling bonds before answer.
The affidavit on which the application was founded merely showed that the defendant was not deemed a responsible man by those who knew him.
The defendant deposed to his own solvency ; and added that he was worth, as he believed, ten thousand dollars after all his debts and liabilities were paid.
Mr. Clarke, in support of the application.
Mr. Howe, contra.
I think the rule is not to appoint a receiver before answer, especially where one is not prayed for in the bill: unless it clearly appears that there is danger to the property or fund by the insolvency of the party having possession of it or from some other cause: Edwards on Receivers, 15, 16. Here, the facts in the affidavit on which this motion is founded are explained by the affidavit on the part of the defendant; and they show no greater danger to the pro
p. 421
perty in the hands of the defendant now than there was when the same was first entrusted with him. There has been no . .... intervening insolvency and no attempt or design is shown, on the part of the defendant, to violate or disregard the injunction. It seems to me, therefore, premature to appoint a receiver, After the defendant shall have answered the bill or suffered it to be taken as confessed the complainant will be at liberty to renew his motion—or, perhaps, more properly, to ask for an order requiring the defendant to deposit the bonds in question in this cause in court for safe keeping pending the litigation.
Motion denied. Costs to abide the event of the suit.