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3 Edw. Ch. 420

West v. Swan

New York Court of Chancery

Decided August 22, 1840

New York Court of Chancery · decided 1840-08-22

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.

Cited by 2 later decisions — most recently July 1890

2 state decisions

Good law ✅— No negative treatment on recordhow we know

Decided 1840-08-22

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The Vice-Chancellor :

¶1I 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*421perty 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.

¶2Motion denied. Costs to abide the event of the suit.

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