
    Samuel C. Tibbals vs. Edward K. Sargeant and Mary Cook.
    A motion for the appointment of a receiver is a special motion, of which the opposite party is entitled to notice.
    The circumstances relied on in this case to excuse want of notice, held not to amount to an excuse for the omission.
    Where a complainant seeks to take the control of property from those having the legal right of possession, delay on his part in advancing his cause, or in making his application, is an objection to the appointment of a receiver.
    The bill in this case was filed on the 9th day of April., 1862, for a settlement of partnership accounts, an injunction to prevent the partnership property from being diverted from the payment of the partnership debts, and for the .appointment of a receiver. An injunction issued on filing the bill, and due notice was given that an application would ,be made to the Chancellor, on the 16th of April, for the. appointment of a receiver.
    This application was not made pursuant to the notice, because of the absence of the Chancellor, and an agreement was made between the counsel of the parties that the motion should be renewed at a future time (not specified) on written briefs.
    On the 31st of July, 1862, defendants’ counsel, being requested to furnish a brief for the motion to be made on the following day, declined to do so, and required notice of the motion. Notice was then given, on the 31st of July, that the motion would be made on the 1st of August, at ten A.M.; and at that time the motion was made, and an affidavit of the complainant’s solicitor was read showing the above facts. The motion was resisted by defendants’ counsel for want of due notice.
    
      C. S. Green, for the motion.
    
      A. W. Bell and Dalrymple, contra.
   The Chancellor.

The motion for the appointment of a receiver must be denied.

1. Due notice of the application has not been given. It is a special motion, of which the defendant is entitled to notice. The circumstances stated in the affidavit do not amount to an excuse for the omission. Notice was originally given for the sixteenth of April. The motion not being then heard, counsel agreed to submit written briefs, without any agreement as to the time. So the matter slept until two days since, without briefs being furnished, or so far as appears, without any reference being made to the subject on either side. A brief was then requested from the defendants’ solicitor for to-day. On notice of the application being required, one day’s notice was given. After so long delay, and no apparent want of good faith upon the part of the defendants’ counsel, I cannot act upon the original notice.

2. The delay in renewing the motion raises the presumption that there is no pressing necessity for the appointment of a receiver, and in the absence of affidavits showing the existence of any immediate necessity, justifies the court in withholding its action. The bill was filed on the ninth of April. The subpoena was returned on the twenty-first of April. The answers were filed on the eighteenth of June. No replication has been filed. Where a complainant seeks to take the control of property from those having the legal right of possession, delay on the part of the complainant in advancing his cause or in making his application is an objection to the appointment of a receiver. Edw. on Receivers 49.

The application is denied without reference to the merits of the case, as they appear upon the pleadings, and without prejudice to the renewal of the application, if deemed advisable before final hearing.  