Wolfe v. Claflin & Co.

Blandford, Justice.

1. As a general rule, a party must pursue his legal remedies to their available extent before he can apply to a court of equity for relief; but this rule is subject to some exceptions. ■ Where a party shows that his rights are in peril and he is in danger of losing them; that he had sold goods to the defendant upon the faith of the latter’s representations, which were false and fraudulent, and afterwards rescinded the contract and claimed the goods as his own; and that the defendant had given certain mortgages on the goods to persons residing in another State; we think this makes out such a case as falls within the ruling in the ease of Cohen vs. Meyers, Cohen & Co., 42 Ga. 46. In that case this court held that a creditor, although not a judgment creditor, might, under certain circumstances, resort to equity. And that case is sustained by the rulings in Cohen & Co. vs. Morris & Co., 70 Ga. 319; Johnson & Co. vs. O’Donnell & Burke, 75 Ga. 456; Orton et al. vs. Madden et al., 75 Ga. 83.

2. It is further insisted in this case that the allegations in the bill were not sustained by affidavits or proof submitted to the chancellor on the hearing; and therefore that he committed error in granting the injunction and appointing a receiver. "We think that in a case of this sort, the chancellor may look to the whole ease, its general countenance and bearing, and after having considered the case as presented by the bill, together with such proofs as may be submitted to him, should, if he believes the ends of justice require, put his hands upon the fund in question and keep it in statu quo until a jury can pass upon the case. And only a very strong case would authorize this court to interfere with the discretion of the court below in so doing. ¥e think this position is fully sustained by the authoi'ities cited by counsel for the defendant in error. Wachtel vs. Wilde, Jr., & Co., 58 Ga. 50; Albany and Renssellaer Iron and Steel Co. vs. Southern Agricultural Works, 76 Ga. 169. We think, therefore, that the chancellor committed no error in granting the injunction and appointing the receiver; that this is a proper case to be held up until the matter can be investigated before a jury. And while great harm might come to these complainants, the defendants in error, if the injunction were not granted and a receiver appointed, we cannot see any harm that can come to the plaintiffs in error, inasmuch as the complainants were required to give bond and security to the plaintiffs in error, for all damages that might he sustained hy them in consequence of this proceeding in the event the same should not appear to he well-founded.

Judgment affirmed.