'■■7 ..,,' ' UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY tr* A TREATISE ON THE LAW AND PRACTICE AS TO RECEIVERS APPOINTED BY THE HIGH COURT OF JUSTICE. A TEEATISE ON THE LAW AND PRACTICE AS TO RECEIVERS APPOINTED BY THE HIGH COURT OF JUSTICE. WILLIAM WILLIAMSON KERR, A.M. Oxon. of Lincoln's inn, barrister-at-law. SECOND EDITION. LONDON : WILLIAM MAXWELL & SON, 8, BELL YARD, TEMPLE BAR, |?ato gookscllcrs unb publishers ; MEREDITH, RAY, & LITTLER, MANCHESTER; HODGES, FIGGIS, & CO., AND E. PONSONBY, DUBLIN; C. F. MAXWELL, MELBOURNE AND SYDNEY. 1882. T LONDON : BRADHURY, AGNEW, & CO., PRINTERS, WlllTEIRIARS. 33t <5> SUMMAEY OF CONTENTS. PAGE Table of Cases cited ....... vii Statutes referred to ...... xv CHAPTER I. Principles on which a receiver is appointed by the High Court of Justice 1 — 10 CHAPTER II. In what cases a receiver will be appointed . . 11 — 87 Section 1. — In the case of infants . . . . 11, 12 Section 2. — In the case of executors and trustees . 12 — 20 Section 3. — Pending litigation as to probate . . 20 — 29 Section 4. — In cases between mortgagor and mortgagee 29 — 39 Section 5. — In cases between debtor and creditor . 39 — 46 Section 6. — In the case of public companies . . 46 — 58 Section 7. — In cases between vendor and purchaser . 58 — 61 Section 8. — In cases between covenantor and covenantee 61,62 Section 9. — Between tenant for life and remainderman 62, 63 Section 10. — In partnership cases .... 63 — 78 Section 11. — -In cases of lunacy ..... 78,79 Section 12. — In the case of tenants in common . . 79 — 82 Section 13. — In the case of parties in possession of real estate under a legal title ..... 82 — 87 CHAPTER III. Over what property a receiver may be appointed . 88 — 93 CHAPTER IV. Who may be appointed receivers .... 94 — 100 VI CONTENTS. CHAPTEE V. paou ilODl "i PHI IPPOINTMBNT OF a RECEIVER . . • 101 117 CHAPTEE VI. Effect of the appointment of, and possession of a 1.1 I 1 lVI'li 118—137 CHAPTER VI I. Powers lnd duties of a receiver .... 138 loo CHAPTER VIII. Liabilities of a receiver 159 — 163 CHAPTER IX. Salary and allowances of a receiver . . . 164 — 172 CHAPTER X. Accounts .......•• 173 — 185 CHAPTER XI. Discharge of a receiver ...... 186 — 192 CHAPTER XII. Liabilities and rights of sureties .... 193 — 196 CHAPTER XIII. Managers and consignees 197 — 204 GENERAL INDEX 206 TABLE OF CASES CITED. Abbott v. Stratten, 45 Aberdeen v. Chitty, 5, 37 Ackland v. Graven er, 29, 30 Ames v. Birkenhead Docks, 45, 47, 50, 51, 52, 89, 90, 96, 107, 119, 124, 126, 127, 135 Ampthill, Re, 90 Anderson v. Anderson, 149 v. Guichard, 28 — r. Kemshead, 45, 87, 107 Angell v. Smith, 40, 118, 124, 129, 133 Anglo-Italian Bank v. Davies, 106 Anon., 14, 95, 110, 129, 130, 131, 147, 151, 155, 167, 186, 190 — v. Jollands, 96, 181, 182 — v. — Lindsay, 93, 149 Archdeacon v. Bowes, 34 Armstrong v. Armstrong, 156 Arnold v. Mayor, &c, of Gravesend, 46 Aston v. Heron, 118, 124, 131, 135, 163 Atkinson v. Henshaw, 20 Att.-Gen. v. Day, 99, 108 — v. Mayor of Galway, 105 — v. Gee, 99 — v. Haberdashers' Company, 191 — v. Lewis, 167 — v. Vigor, 152, 153 Averall v. Wade, 193 Bagot v. Bagot, 18, 98, 108, 109 Bailey v. Ford, 69 Bainbridge v. Blair, 13, 105, 188 Bainbrigge v. Baddeley, 84, 85 — v. Blair, 13, 14, 102,114, 123, 190 Baldwin v. Booth, 70, 73 Balfe v. Balfe, 155 Ball v. Oliver, 20, 22 Banks v. Banks, 96 Barkley v. Lord Reay, 13, 92, 200 Barr v. Barr, 22 Bartley v. Bartley, 1 7 Barton v. Rock, 28 Bates v. Brothers, 32, 92 Bathe v. Bank of England, 17 Baxter v. West, 6, 10, 68, 69 Baylies v. Baylies, 9, 14, 109, 148 Beamish v. Austen, 6, 30 Beaufort, Duke of, v. Berty, 12 Beaumont v. Beaumont, 18 Beddgelert Railway Co., lie, 54 Bell's Estate, Re, 179 Bennett v. Colley, 19 — v. Robins, 143 Bentinck v. Willink, 200 Berkeley v. King's College, 91 Berney v. Sewell, 29, 31, 32, 35, 40 Bertie v. Lord Abingdon, 63, 122, 174, 189 Bertrand v. Davies, 121, 123, 190, 204 Beytagh v. Concannon, 113, 177 Billinghurst, Re, 79 Birch, Re, 78 — v. Oldis, 136, 143, 157 Birmingham & Litchfield Railway Co., Re, 54 Bishop's Waltham Railway Co., Re, 45 Blackborough v. Ravenhill, 102 Blackett v. Blackett, 21, 198 Blackmore v. Yates, 53 Blakeney v. Dufaur, 4, 64, 74, 77, 94,95 Blakeway v. Blakeway, 110 Blanchard v. Cawthorn, 88, 89 Blois v. Betts, 116, 193 Blunt v. Clitherow, 153 Boehm v. Wood, 60, 120, 123 Booth v. Coulton, 102 Bord v. Tollemache, 36, 38, 109 Bothomley v. Fairfax, 116 VIM l \r.i !•: OF ' \SK> CITED. q ■. !'.., . on Railway Co., 47, 53, 5ft, 57 i. 1 10 II. nn. 9, 69 I tl I lantwil Colliery l, 114, 198 Braham v. I ord Strathmore, l s ^ adon, l 13, l 1 1. 196 r. Preston, l I. 90 oan p. Kenny, l 15 Hales, 11 p. M:m-el. 63 9 v. Needham, L51, 167, L68, 17". 181, L82 Britton p. M'Donnell, L34, L86 I Wickham, L35 debank p. East London Rail- way Co., 122, 154 i -..IT Brooke p. < looke, 12 Brooker, 14, loi ks p. Greathed, 129, 130, 133, 134 . 73 U ■. Reed, 13, 14 Brownhead p. Smith. IT:'., 181 n p. Connick, 35, 40, 41, 128 Bull, lo. 119 Bull ■-. Bryant, 106 Bunburj v. Bunbury, 92, 200 Burrow es p. Molloy, 36 Bury p. Newpoi t, 97 Butler, Re, 121, L23, 133 — p. Freeman, 11 ■I p. Monkhouse, 29 Bywater, Be, 101 ( Iaellard v. ' iaillard, 102 Campbell p. Conipagnie Gdnirale de Bell . I, 128 Candler p. < Sandler, 90 fail, le V. Ml ( iarron [ron Co. a, 93 Carrow p. Ferrier, 28, 82, *4, 85 aajor p. Strode, 15 1 102 Be. 170 < !balie '-.I ring, 103 Chalk p. Elaine, Chamb 1 1 dson, 200 — v. Goldwin, 31, 203 Chaplin v. Y* on , 10, 73, 38, 198 I i ■in. in v. Beach, 70, 72, 73, 75 ( ihaytor p. Maclean, 111, 157 Chinneri p. Evans, 38 Clark p. Dew, 85 Clayton, Ex parte, 112, 167 i llegg p. Edmondson, 77 — r. Fishwick, 74 Clements r. IVresfonl. 181 Cochrane, Ex parte, 125, 129, 130, L32 Cockburn p. Raphael, 113, 201 Codrington v. Johnstone, 123, 141, 142, 203 — v. Parker, 32 Colebourne v. Colebourne, 14, 102, 104 ( iollins p. Young, To ( lolmore v. North, 113 Comyn v. Smith, 156 ConnoT r. ( lonnor, 23 Consl r. Harris, 66, 74 Contract Corporation v. Tottenham and Hampstead Junction Railway Co., 52 Cook v. Sharman, 169 Cooke v. < rwynn, 106 Cookes v. Cobkes, 95, 97, 109, 110 Coope p. Creswell, 10, 35, 40 ( Jooper, Ex parte, 156 Cooper v. Reilly, 88 ( !on oran v. Witt, 10 ( Jormicks, Re, T ll Courand v. Hanmer, 92, 167 Cowan's Estate, Re, 132 Coward v. ( lhadwick, 103 Cowbridge Railway Co., Re, 46 ( !o3 p. < lhampneys, 100 Cranmerv. Griffith, 132 ( 'miner, A'.'- parte, 167 Craw-shay v. Maule, 73 Ciemen v. ffawkes, 29, 107 Creuze v. Bishop of London, 110 Crewe r. [;ord Edleston, 37, 47, 90 Crisp p. Plate], 157 ( 'miiin /■. McCarthy, 157 ( Jrosbie v. Barry, 151 Crow?-. Wood, "8, 127 ( Sullen p. Dean, &c, of Killaloe, 88 ( !upi1 p. Jackson, 1, 6, 30 Curling v. Lord Townshend, 8 I) \en; r. John, 78, 146 Dalmer v. Dashwood, 35, 37 Daly v. Blake, 124 TABLE OF CASES CITED. IX Darner v. Lord Portarlington, 188 Dancer v. Hastings, 143, 147 Davenport v. Moss, 124 Davis v. Amer, 75 — v. Barrett, 108 — v. Dnke of Marlborough, 9, 35, 37, 41, 89, 109, 123, 141, 187, 190 Davy v. Gronow, 188 Dawson v. Yates, 60, 107 Day v. Croft, 18, 164, 171, 173, 175 Dease v. Beilly, 181 De Feucheres v. Dawes, 27 Defries v. Creed, 118, 124, 127 Delany v. Mansfield, 121 Delfosse v. Crawshay, 157, 161 Delia Carnea v. Hayward, 98, 143 De Tastet v. Bordieu, 73 Devey v. Thornton, 23 Dew v. Clark, 23 De Winton v. Mavor, &c, of Brecon, 47,51, 89, 127, 170, 199 Dickins v. Harris, 17 Dillon v. Mountcashell, 12, 16 Dimes v. Steinberg, 23 Dixon v. Smith, 130, 131 — ■ v. Wilkinson, 157, 161, 176 Doe v. Read, 151 — v. St. Helens, &c, Railway Co., 46 Dowling v. Hudson, 103 Dresser v. Morton, 111 Drever v. Maudsley, 161, 176 Drewry v. Barnes, 48, 89 — v. Darwin, 92 Duffield v. Elwes, 146 Dumville v. Ashbrook, 49, 89 Durnford v. Lane, 147 Eagle, Be, 112 Eastern Union Railway Co. v. Hunt, 52 Edwards v. Edwards, 28, 118, 127 Empringham v. Short, 133 Estwick v. Coningsby, 72 Evans, Ex parte, 45, 119 — v. Coventry, 2, 4, 5, 7, 8, 14, 67,73 — v. Matthias, 139, 142, 148 — v. Puleston, 7 — v. Taylor, 149 Evelyn v. Lewis, 118, 125, 128, 129, 135, 157 Everett v. Belding, 9 — v. Prvthergh, 7, 16 Eyre v. M'Do'nnell, 149 Eyton v. Denbigh, &c, Railway Co., 47, 132 Fairburn v. Pearson, 69, 75 Faith v. Dunbar, 17 Fall v. Elkins, 9 Farquharson v. Balfour, 204 Faulkner v. Daniel, 33, 92 Feistel v. King's College, 91 Fitzgerald v. Fitzgerald, 166 — v. Stewart, 162 Fitzpatrick v. Eyre, 145 Fletcher, Ex parte, 98 Fletcher v. Dodd, 152, 181, 182 Flight v. Camac, 122 Forbes v. Hammond, 202 Forrest v. Elwes, 203 Forster v. Manchester & Milford Railway Co., 129, 132 Foster v. Foster, 183 Fountaine v. Carmarthen Railway Co., 56 Fowler v. Haynes, 130, 133 — Be, 63 Frank, Be, 79 Fraser v. Burgess, 123, 203 — v. Kershaw, 70, 71 Free v. Hinde, 61 Freeland v. Stansfield, 70, 71 Fripp v. Bridgewater, &c, Railway Co., 124, 135 — v. Chard Railway Co., 46, 47, 48, 49, 50, 95 _ Furness v. Caterham Railway Co., 50, 55 Gardner v. Blane, 12, 96, 114 — v. London, Chatham & Dover Railway Co., 47, 52, 53, 198 Garland v. Garland, 97, 98, 99 Gawthorpe v. Gawthorpe, 2, 14, 15 George v. Evans, 58 Gibbins v. Howell, 148 — v. Mainwaring, 103 Gibbons v. Fletcher, 89 Gibbsu David, 59 Gladdon v. Stoneman, 1 6 (ilossop v. Harrison, 196 Gomme v. West, 1 29 Gooch v. Haworth, 130, 132 TABLE OF CASES CITED. . /.'.. 101 .in hi i'. Whitconib, 9, 66, 68, 69, 7-\ 7 1 Qowai tt, 13] I il.l\ \ I 'll,l]'llll. 6 -. ni Railway ( !o. p. East London Railway < !o., 55 a v. ( ireen, 138 — p. Pled ;er, KM Grenfell •. Dean and Canons of Windsor, 91 Adderley, 63, 120, 122 Grc> ille p. Fleming, :; , I Griffin i>. Bishop's Castle Elailway Co, 17 Griffith ,-. Griffith, 9, 189, 194 ( Irimston p. Timins, 10 — ,■. Turner, 21, 26 ( Iroora p. Blake, 1 21 p. Bing, 102 Gozden p. Badcock, 102, 183 EL v. H., 14, 103 Elaberahon p. < lill, 29 Hacket p. Snow, 36, 105 Haigh p. Grattan, 167 P. Hale, 74 Hall p. II. ,11, 64, 65, 66, (57, 73,75 — p. Burt, 6, 30 — ?•. Jenkinson, 59 Hamilton v. Brewster, 193 — p. Lighten, 156 Bamp p. Robinson, 7 Il.m-uii p. Walker, 92 Barding p. Glover, 69, 70, 72 11 rgra i e p. Bargrave, 8U Barris, Ex part* , 1 16 Han LI!, 1-1, 192 — p. 1 luignan, 121 Hart v. Denham, 18, 198 — r. Eastern Onion Railway Co., — -. Talk, 15, 103, 108 H.ut/ p. Schradei ,64 Bathornthwaite p. Russell, 1 l Bawkes p. Bolland, !) Bawkiiu p. Gathercole, 91, 92, 125, 128, 129, 135 1 1 j ward, Ex parU , 1 25 Beald p. Bay, I Berbert v. Gre< n B( rman v. Dunbar, 169, 19] Berricka, Be, 195 Bervey p. Fitzpatrick, 28 Bibberl p. Bibbert, 11 l, 201 Bicks r. 11 irks, II, 178, 182 Hiles v. Moore, 31, 32, 33, 105,106 Bill r. Bibbitt, 9 — p, K irwan, 61 — v. Paul, 89 — v Rimmell, 103 Binton v. Galli.92,93 Bitchen p. Birks, 25, 83 Bobhouse p. Ilnlleombe, 140, 144 Bobson v. Shearwood, 140, 141, 143 1 [odson p. Watson, 92 Boffman p. Duncan, 77, 94, 95 Bollier p. Sedges, 141 Bolmes p. Bell, 37 Bopkins p. Worcester and Birming- ham Canal Co., 36, 47, 51 » Borlock p. Smith, 120 Hun ell v. Witts, 70 Boskins v. Campbell, 188 Boulditch v. Lord Donegal, 92, 93 Howard v. Papern, 14 Bughes p. Hughes, 142, 143 Buguenin v. Basley, 58, 85 Bull & Hornsea Railway Co., Re, 45 Hunt v. Priest, 129 Hunter v. Pring, 117 Butchinson v. Massareene, 123, 124 Button v. Beet on, 180 Hyde o. Warden, 94, 102, 108, 114 Imperial Mercantile Credit As- sociation v. Ncwry & Ar- magh Railway Co., 50, 55, 56 Ireland v. Eade, 156, 157, 169 Jacklin v. Wilkins, 103 Jeiferys v. Dickson, 38 — v. Smith, 73, 76, 81 Jenkins v. Briant, 183 Johnesv. Claughton, 128, 130, 131, 135 Johnson, Re, 7, 15 — v. Bayley, 103 Jolly v. Arbuthnot, 38, 143 Jones v. Frost, 26 — v. Goodrich, 21, 27 — v. Jones, 26 — v. PhippB, 151 — v. Pugh, 40 TABLE OF CASES CITED. XI Keene v. Riley, 39 Kelly v. Hutton, 88 — v. Staunton, 30 Kelsey v. Kelsey, 29 Kennedy v. Lee, 59 Kershaw v. Matthews, 74 Keys t'. Keys, 92, 93 Kittin v. Kittin, 11 Kilkenny, Earl of, Re, 156 Kinderley v. Jervis, 45 King v. Abbotson, 16 — v. King, 20 — v. O'Brien, 149 Kingston v. Cowbridge Railway Co., 50 Knapp v. Williams, 47, 89 Knight v. Lord Plymouth, 159 Lane v. Sterne, 124, 135, 136 — v. Townsend, 194 Langford v. Langford, 93 Langham, Re, 78, 153 Langley v. Hawke, 16 Langton v. Langton, 35, 128 Largan v. Bowen, 39, 187 Latimer v. Aylesbury & Bucking- ham Railway Co., 50 Lavender v. Lavender, 189 Law v. Garrett, 7, 8, 76 Law v. Glenn, 38 Lechmere v. Brasier, 40 — Charlton's Case, 99 Leeming, Re, 101 Lees v. Jones, 76 — v. Waring, 131 Leggv. Matthiesen, 46, 49, 51, 53 Lespinasse v. Bell, 108 Lewis v. Zouche, 38, 130 Ley v. Ley, 110 Littleboy v. Spooner, 183 Lloyd,'.Re, 21, 23, 94, 98, 189 — v. Mason, 123, 139 — v. Passingham, 85, 106 Locke v. Ash, 179 Lockey, Re, 189 Logan v. Princess of Coorg, 92, 200 London & South Western Bank v. Facey, 103 Long v. Storie, 91 — Wellesley's Case, 99 Lonsdale, Earl of, v. Church, 171 Ludgater v. Channell, 183, 185 Lymbery v. Helsham, 88 M'Dermott v. Kealey, 147 Macdonaghs, Re, 195 M'Donnell v. Clarke, 129, 132 — v. White, 119, 141 Macleod v. Phelps, 59, 123 Madgwick v. Wimble, 64, 73 Major v. Major, 7, 27 Malcolm v. O'Callaghan, 166, 167, 168, 169 Manchester & Milford Railway Co., Re, 90, 197, 199 Manly v. Hawkins, 6 Mann v. Stennett, 196 Manners v. Furze, 113, 114 Mansfield. Lord, v. Hamilton, 124, 151, 152 Marr r. Littlewood, 24, 26, 169 Marsden v. Kaye, 68 Marshall v. Colman, 68 — v. Holloway, 202 Massey v. Banner, 159 Maund v. Allies, 77 Maunsell ». Egan, 105 Mayer, Re, 26 Mead v. Lord Orrerv, 112 Meaden v. Sealey, 37, 103, 109 Meagher v. O'Shaugnessy, 149 Metcalfe v. Pulvertoft, 5, 61 — v. Archbishop of York, 62, 91 Micklethwaite v. Micklethwaite, 5, 42 Middleton v. Dodswell, 5, 13, 14, 19, 107 Midland Wagon Co. v. Potteries, Shrewsbury & North Wales Railway Co., 54 Miller v. Elkins, 152, 156 Mills v. Frv, 145, 157 Mitchell v."Condy, 189 — v. Duke of Manchester, 143 Montgomery, Re, 151, 167, 168, 170 Mordaunt v. Hooper, 85 Morison v. Morison, 166, 200, 202 Morris v. Elme, 148, 152, 201 Morton v. Woods, 143 Mountfort, Ex parte, 11, 101 Munns v. Isle of Wight Railway Co., 60, 90 Murray v. Cockerell, 80 Murrough v. French, 187, 188 Ml taiu.k ov c \sr.s rrrrcn. Na* I 157 v. Bealing, 1 16 \ • Pink, 123, 154 Newman p. Mills, I 15, 186 m p. Bur) , 169 Newton p. Ricketl khouse, 17. 18, B9, 103 Norway p. Roti 79 Noth ; tor, 1 i. 23, l H> O'K bkfi '. Armstrong, 193, L9 1 Oldfield v. Oobbett, 5, 14, 16, 39j : p. Lowther, 2, 16 Ornisby, Be, 168 ( taborni p. Han ej . 60, 105 ( i\. rington v. Ward, 27 Owen ■-. Homan, 2. 4, 39, 40, 41, L18 I'a- \n b p. Bate, 89 — p. Vaughan, 89 — p. Wright, 18, 166 ."1 Parker, Be, 22 — r. Pocock, 135 — r. I iiniii. L56 ,21, 22, 25, 26, 83 Paynl . 134, 180, 188 ck, 7". 7 1, 75 ■. FT tchi r, 29, 31 Peek p. Trinamaran Iron Co., 198 Pemberton p. MM lill, 17 . v. Todd, 121, 122 Perkins v. Deptford Pier < '■•., 53 ] Hotels Co., 99, 1 10 Philippe v. Atkinson, 7<>. 71 Bonltbee, 121, 122 Pilkingto n v. Baker, 96, 169 Pine] . 100 Pitt v. Bonner, 180 — v. 142,143 : ■ tt p. Dillon, 36 Pi dmoTe v. « tunning, 20 -. p. P - onby, 1 86 p. Wood, 1 12 3, 7!». B0, 106 Postlethwaite v. Maryborough Har- I • . .7. 90 ite ». Barnes, 17 Potto i '•. Jackson, B p. Leighton, L67, 178,181,182 — v. Warwick and Birmingham Canal Co., 17,49,50,51,89, 96, 130, 132 Powysr. Blagrave, 63, 95, 96, 107 Prebble r. Boghurst, 8 Preston p. Corporation of Yarmouth, 89 Price V. Williams, .'57 Pritchard p. Fleetwood, 6, 8, 86 Purcell v. Woodley, 181 Qrj \i;iii-i i r. Beckford, 31 Quin '•■ Holland, 184 Radcliffb, Ex parte, 79 Raincock v. Simpson, 142 Rainsdon, Ee, 17 Ramsbottom v. Freeman, 103 Bamsden v. Fairthorpe, 11, 81 Randfield v. RandhVld, 125, 131, 134, 139 Rawes v. Rawes, 141 Rawson p. Raynes, 194, 195 Read v. Bowers, 64 Real and Personal Advance Co. v. Macarthy, 5, 8, 87 Reed v. Harris, 28 Reeves v. Cox, 119 — v. Neville, 186 Reid p. Middleton; 37, 140, 141 Rendall®. Rendall, 21, 23,24 Reynolds, Be. 101 Rhodes ». Mostyn, 35, 45 Richards v. Chave, 20 — v. Perkins, 15 — v. Richards, 130 Richardson v. Ward, 186, 187 Riches v. Owen, 62 Rickman v. Johns, 50 Ridgway v. Roberts, 90 Rigge r. Bowater, 123 Roberts v. Eberhardt, 65, 68, 72, 76, 82 Robinson v. Hadley, 106 Rock v. Cooke, 136 Rowe v. Wood, 31, 34, 35, 72,74, 76 Rowland v. Williams, 76, 77 Rowth ». Howell, L59 Royle, Ex parte, 166 TABLE OF CASES CITED. Xlll Russell r. East Anglian Railway Co., 53, 55, 125, 126, 129, 130, 131, 132, 133, 135, 136, 137 — v. Russell, 141 Rutherford v. Douglas, 23 — v. Wilkinson, 202 Sadleir v. Greene, 169 Salt v. Cooper, 119 — v. Lord Donegal, 121 Salway v. Salway, 159, 160 Sandford v. Ballard, 79, 80 Sankey v. O'Malley, 187 Sargant v. Read, 64, 77, 94, 95, 107 Scott v. Hastings, 45 — v. Platel, 95, 180 Scurrah v. Scurrah, 79 Seagram v. Tuck, 161 Seaman, Re, 78 Searle v. Smales, 80 Seymour v. Vernon, 121 Shaftesbury, Earl of, v. Duke of Marlborough, 89 Shakel v. Duke of Marlborough, 62 Sharp v. Carter, 120 — v. Wright, 176 Shaw v. Rhodes, 157, 161, 171, 178 — v. Simpson, 204 — v. Wright, 119 Shee e. Harris, 86, 105 Shelley v. Pelham, 143 Sheppard v. Oxenford, 15, 67, 73, 74, 76, 77, 197, 199, 200 Shewell v. Jones, 177 Shore v. Shore, 63, 171 Shuff v. Holdway, 147 Silver v. Bishop of Norwich, 5, 29, 35, 43, 44, 91 Simmons v. Rose, 194 Skerrett's Minor, 159 Skinners' Society v. Irish Society, 4, 5, 6, 7, 9 Skip v. Harwood, 3, 120 Small v. Marwood, 13 Siuith v. Cowell, 106 — v. Lord Effingham, 38, 130 — v. Hurst, 44 — v. Jeyes, 68, 70, 72, 73 — v. Lyster, 80, 81, l!i<> — v. Smith, 13, 16, 18, 92, 93 — v. Vauglian, 186 Sollory v. Leaver, 29 Sprunt v. Pugh, 180 Stack, Re, 134, 186 Stainton v. Carron Co., 16 Stanlev v. Coulthurst, 189 Steer v. Steer, 198 Stillwell v. Wilkins, 58, 85 Stilwell v. Mellersh, 187 Stone, Re, 103 — v. Wishart, 97 Stratton v. Davidson, 104 Street v. Anderton, 80 Sturch v. Young, ■!'.) Sutton v. Jones, 95, 96, 97 — v. Rees, 129, 132 Swaby v. Dickon, 151, 168, 170 Swale v. Swale, 18 Swan's Estate, Re, 196 Sweet v. Partridge, 40 , Sykes v. Hastings, 95,^96, 169 Symons r. Symons, 147 Tait v. Jenkins, 13 Talbot, Earl of, v. Hope Scott, 8, 15, 82, 83 Tanfield v. Irvine, 35, 36, 103 Tatham v. Parker, 133 Taylor v. Allen, 17 — v. Eckerslev, 61, 94, 102, 108, llo", 118, 119 — v. Emerson, 36 — v. Oldham, 97 — v. Taylor, 25 Tempest v. Ord, 152, 153 Tew v. Lord Winterton, 183 Tewart v. Lawson, 188 Tharp, Re, 202 — v. Tharp, 110 Thomas v. Brigstocke, 120, 122, 126, 186 — v. Davies, 5, 105 — v. Dawkins, 110 Thompson v. Selby, 7 ThornhiU v. Thornhill, 146 Thurgood, Ex parte, 131 Thurlow v. Thurlow, 184 Tichborne v. Tichborne, 25, 26 Tidd v. Lister, 18 Tillett v. Pearson, 44 Tink v. Rundle, 135 Topping v. Searson, 9, 40 Townsend v. Somerville, 131 Townson v. Tickell, 13 Trade Auxiliary Co. v. Vickers, 7* Transatlantic Co. v. Pietroni, 7, 20 \l\ TABLE OF casks CITED. In. 1 36 Tullett i. Armstrong, •_' Turner v. Major, 7<'> — f. Turner, I •'!•"> Tylee p. Tylee. 92,93, n I v. Fain Lough, i V w\ 9. Burnett, lm ban ••. Vaugban, 1 16, 193 p. Duprw . W ldmorx '•• Trevanion, 125 Walker v. Bell, L33 — p. Wild, 195 — r. WooUaston, 20 Walsh p. Walsh, 129, 132, 133 Walton p. Johnson, 154 Walworth p. Holt, 67 Ward, fie, 112 — P. Swift, 125, 130, 152, 171, 182 Ware p. Aylesbury & Buckingham Railway Co., 60 u. Ex parte, 78 Wastell p. Leslie, L54, 177 Waterford & L Railway Co., Ee, 54 Waterlow p. Sharp, 50 Waters p. Taylor, 05, 69, 152, 197, 198 Watkine p. Brent, 20, 21, 23 ■ lin p. Lawson, 104 WeUs r. Kilj.in, 44,40, 118, 128 — r. Wales, 177 . p. Westby, 17 White p. Baugh, 159, 160 — p. James, 6, 30 — v. Bishop "i Peto rborough, 36. 9 1 — r. Smale, <',, :>,>) Whitehead p. Lynes, 180 Whitelaw p. Sandys, 11 Whitfield, Ex parte, 101 Whitley p. Lowe, 121 Whit worth p. Gaugain, 45, 87 _ v. Whyddon, 5, 13, 21, 23 Wickens p. Townsend, 118, 124, 157, 101 Wickham v. New Brunswick, &c, Railway < !o., 45, 53 Wildridge p. M'Kane, 102 . Wild v p. North Hants Railway Co., 51 Wilkins v. Lynch, 148 — v. Williams, 99, 109 Wilkinson p. Bewick, 161 — v. Colley, 151 Williams, Ex parte, 71 — v. Ayleshury & Bucking- ham Railway Co., 60 Wil liner v. Kidd, 137 Wilson v. Greenwood, 71, 74, 77, 94, 95 — v. Poe, 97, 98, 109 — v. Wilson, 9, 15, 36, 114 Windham v. Giubelei, 141 Wise v. Berestbrd, 88 Wood v. Hitchings, 6, 9, 20, 22, 26, 108, 141 — v. Wood, 161 Woods v. Creaghe, 196 Woodyatt v. Gresley, 19, 86 Wr.n p. Kirton, 159 Wright r. Mitchell, 134 — v. Vernon, 2, 5, 105, 106 Wrixon v. Vize, 121 Wynne v. Lord Newhorough, 98, 99, 109, 147, 149, 152 Yetts v. Palmer, 17 STATUTES REFERRED TO. PAGE 13 Eliz. c. 20 91 12 Cur. 2, c. 24 12 29 Car. 2, c. 2, ss. 2, 4 147 4 Geo. 2, c. 28, s. 1 151 43 Geo. 3, c. 84 91 57 Geo. 3, c. 99 91 2 & 3 Wm. 4, c. 33 92 3 & 4 Wm. 4, c. 27, s. 40 38 4 & 5 Wm. 4, c. 82 92 1 & 2 Vict. c. 110 92 8 & 9 Vict. c. 16, ss. 42, 44 56 ss. 53, 54 48 10 & 11 Vict. c. 16, ss. 86, 87 48 15 & 16 Vict. c. 80 146, 153 c. 86, s. 59 107 20 & 21 Vict. c. c. Vict. c. Vict. c. Vict. c. ss. 41 30 & 31 Vict, c 21 & 22 27&28 28 & 29 PAGE 77, ss. 70, 71 24, 25 85, s. 21 17 95, ss. 21, 22 25 112, s. 4 45,55 , 42, 45, 46 . 127, s. 4 57, 101 53, 101 198 33 & 34 36&37 38 & 39 44 & 45 Vict, c Vict. c\ Vict. c. Vict, c s. 23 20 66, s. 16 s. 25, subs. 31 . 41, s. 19 s. 24 58 57 1 81 53 38, 39 158, 171 A TREATISE ON THE LAW AND PRACTICE AS TO RECEIVERS APPOINTED BY THE HIGH COURT OF JUSTICE CHAPTER I. PRINCIPLES ON WHICH A RECEIVER IS APPOINTED BY THE HIGH COURT OF JUSTICE. The jurisdiction of the Court of Chancery to appoint a Cha P- *• receiver was assumed for the advancement of justice, and Jurisdic- tion, was founded on the inadequacy of the remedy to be obtained in the courts of ordinary jurisdiction. If the remedy afforded by the courts of ordinary jurisdiction was inade- quate for the purposes of justice, the Court of Chancery would, on a proper case being made out, ex debito justifies, appoint a receiver (a). The Courts of Common Law had not, under the former procedure, jurisdiction to appoint a receiver. But by the Judicature Act, 1873, 36 & 37 Vict. c. 66, s. 16, all the jurisdiction of the Court of Chancery was transferred to the High Court of Justice ; and by s. 25, sub-s. 8 of that («) G Eq. -1 \~i. per I riffard, L. J. See Cupit v. Jackson, 13 Pii. 734. B 2 APPOINTMENT Chap. i. Art it is declared, that a receiver may be appointed by an interlocutory order of the court in all ruses in which it shall appear to the court to be just and convenient that such order should he made ; and that any such order may ho made either unconditionally, or upon such terms and con- ditions as the court shall think fit. The effect of the sub- section is to enlarge very much the powers which the Court of Chancery formerly possessed (b). Under this enact- ment, there is no limit to the power of the court to appoint a receiver on an interlocutory application, except that such power is only to he exercised, where "just or convenient" (c). Naton of A receiver is an indifferent person between the parties appointed by the court to collect and receive the rents, issues, and profits of land, or the produce of personal estate, or other things in question pending the suit, which it does not seem reasonable to the court that either party should do ; or where a party is incompetent to do so, as in the case of an infant () ; so, also, an equitable mortgagee may have a receiver appointed If the payment of interest on his security be in arrear (c) ; so, also, if a person takes the conveyance of a Legal estate, subject to equitable interests, lie must satisfy these equitable interests, or submit to the appointment of a receiver (//). Conduct of The court, on the application for a receiver, always makL^he looks to the conduct of the party who makes the applica- ' 1,|ll ',' li "" tion, and will refuse to interfere unless his conduct has looked to. ' been free from blame (e). Parties who have acquiesced in property being enjoyed against their own alleged rights cannot come to the court for a receiver (/). Pleadings, The record should be in such a state as will enable the C " judge to determine who is to take out of court the fund which the appointment of the receiver shall have brought into court (g). But if the court sees that there is a case upon the record for the appointment of a receiver, it is no sufficient answer that the record is not perfect as to par- fa) See Cupii v. Jaclcson, 13 (d) Pritchard v. Fleetwood, 1 Pri. 734 ; White v. Hmale, 22 Mer. 54. Beav. 7:3 ; White v. James, 2G (c) See Baxter v. Wed, 28 L. B( av. 191 ; Hall v. Bart, 2 J. & J. Ch. 169. Comp. Woodv. Hitch- II. 76. mgs, 2 Beav. 21)7. (,,) See Cupii v. Jackson, 13 (/) Norway v. Howe, 19 Ves- Pri. 734. Manly v. Hawkins, 1 144; Gray v. Chaplin, 2 Russ. 1). & Wal. 363. Beamish v. 147; Skinners' Society v. Irish „, I. K M . 9 Eq. 361. Society, 1 M. & C. 102. (I,) White v. Smale, 22 Beav. (;/) Gray v. Chaplin, 2 Russ. 73, mfra, p. 30. 147. ifra, p. 37. OF RECEIVER. ticulars, and is not in the shape in which the court may Chap. I. find it necessary that it should be placed in order to administer complete justice. If the objection is a formal one, and such as may be removed by amendment, it will ^ not stay its hand on account of any such objections. Objections to the bill on the ground of misjoinder, multi- fariousness, or want of parties, are no answer on the application for a receiver, if a case for the appointment of a receiver be shown (It) . If the subject of the suit in respect of which a receiver is sought is a matter of public interest, the Attorney- General should be made a party (?) . When the original bill had been answered, it was held that the pendency of a plea to the amended bill did not prevent a motion for a receiver (k). If certain allegations in the statement of claim and affi- davits are relevant to the relief asked, the court will not on motion allow exceptions to be taken to them (I). Where, for instance, on bill for a receiver alleging that the executor was of bad character and drunken habits, the court would not, on the motion for a receiver, allow exceptions for scandal and impertinence (m). If a receiver is asked for generally, the court may grant the prayer as far as is proper, or in a limited form (n). The court has jurisdiction to appoint a receiver, pending Receiver J appointed litigation in a foreign court (o). pending litigation (h) Evans v. Coventry, 5 D. M. (Z) Everett v. Prythenjh 12 in a foreign court & G. 918. Hamp v. Robinson, Sim. 365. 3 D. J. & S. 109. Re Johnson, 1 (m) lb. Ch. 325. 00 Major v. Major, 8 Jur. (i) Gray v. Chaplin, 2 Russ. 799. 147 ; Shmneri Society v. Irish (o) Transatlantic Co. v. Pie- Society, 1 M. & C. 162. troni, John. 607; see Evans v. (k) Thompson v. Selby, 12 Sun. Puleston, W. N. (1880) 89 Law v. mo. Garrett, 8 Ch. D. il. 8 APPOINTMENT c*»p- [■ The court 1ms jurisdiction to appoint a receiver pending Receiver reference to arbitration, if a proper case be made out for pending reference doing so. (p.) I'll.' appointment of a receiver operates as an injunction. Order for An order for an injunction is always more or less included operates as in :in onl{ ' r tor !l receiver. It is not necessary, if a receiver an injunc- be appointed to go on and grant an injunction in terms ; but in cases where persons in a fiduciary character have misconducted themselves, the court will often grant an injunction as well us a receivor, not because an injunction is necessary to prevent a party from receiving when a receiver is once appointed, hut for the purpose of marking its sense of the conduct of the parties who have mis- conducted themselves (q). The court may abstain from appointing a receiver on not ap- the submission of the defendant to submit to a certain pointed it' . . . . _ - .,, ,« defendant order (r) to pay the monies into court {s), to deal with the ^certain monies as the court shall direct (0 , or to pay an occu- order - pation rent (it). w nat the The order appointing a receiver should state distinctly order for a on tne f ace f ft over w h a t property the receiver is ap- receiver directs. pointed (x), or else refer to the pleadings or some document in the cause which describes the property (y). It usually directs the receiver to pass his accounts from time to time {p) Law v. Garrett, 8 Cli. D. 3 Sw. i73. 2(5 ; see Potter v. Jackson, W. N. (0 Talbot v. Hope Scott, 4 K. (1878) 131. & J. 141. (ry) Evans v. Coventry, 3 Drew. (») Porter v. Lopes,! Ch. D. 82. 358 ; Real and Personal Advance (r) Pritchard v. Fln Deer. 41n,414, 415. I!. 861 : Bovoker v. Henry, 6L.T. 10 APPOINTMENT OF RECEIVER. ( -' |ii i'- ■• The costs of the motion for a receiver are sometimes reserved until the hearing (g), even although the applica- tion is refused (h). The costs of an unsuccessful motion 7 for the appointment of a receiver are costs in the cause (i). N. s. 43 ; see Morg. & Dav. on Ch. 169 ; Coops v. Creswell, 12 Costs, 31, 32. W. R. 299. (;/) Chaplin v. Young, 6 L. T. (i) Corcoran v. Witt, 13 E<[. N. S. '.»7. 53j cotnp. Grvmston v. Timms, 18 (/<) Baxter v. fPert, 28 L. J. W. R. 747, 781. CHAPTER II. IN WHAT CASES A RECEIVER WILL BE APPOINTED. SECTION 1.— IN THE CASE OF INFANTS. The court will, upon a proper case being made out, Chap. II. protect the estate of an infant by appointing a receiver (a). '.. Where infants are concerned, the court considers chiefly what would be most beneficial to their interests (b). The court will protect the estate of an infant, even against his father (c). If an infant has or becomes possessed of an estate, a receiver will be appointed if it appear that his father is insolvent or of bad character, or that there is danger of the rents being lost (d). In a case where the mother of infants was dead, and the father was a man of irregular habits who had married his servant, the minors being entitled to real estate in right of their mother, a receiver was appointed (t 7 ). If there be no testamentary guardian appointed by the testator (/), or if the testamentary guardian appointed by the will declines to act (g), a receiver will be appointed on a proper case being made out. The appointment, how- ever, of a testamentary guardian of an infant by his father (a) Butler v. Freeman, Amb. P. W. 704 ; Ex.yarlc Mountfort, 303. 15 Ves. 449, n. (b) Ramgden v. Favrthorpe, 1 (e) lie Cormicks, 2 Ir. Eq, N. R. 389 ; sec Whitelaw v. 2G4. iiamhjs, 12 Ir. Eq. 393. (/) Hicks v. Hicks, 3 Atk. (c) Butler v. Freeman, Amt>. 273. 3').3. (.) Browell v. Reed, 1 Ha. 434; 2 Mac. & G. 52. but see Tait v. Jenkins, 1 Y. & (,„) Smith v. Smith, 2 Y. & C. C. C. 492. C. 301 ; see Bainbridge v. Blair, (q) Small v. Marwood, 9 B. & 4 L. J. Ch. N. S. 207. C. 300 ; Townson v. Tickell, 3 B. (n) WTiitworth v. Whyddon, 2 & Aid. 31. Mac. & G. 52. (/■) Browell v. Eeed, 1 I la. o) Barkley v. Lord Reay, 2 434. for a re- ceiver. 1+ EXECUTORS Chap. II. \ 01 . ; s i ( a sufficient cause for the appointment of a Sort. •_'. l 1 receiver thai the trustees or executors are poor or in menu circumstances (s), or that being trustees for sale, they have let the purchaser Into possession before they received the purchase monies, for the court will not necessarily infer this to he misconduct (t). Nor is it a sufficient cause for the appointment of a receiver that one of several trustees is inactive ()i), or has gone abroad (.<). Miscon- If anv misconduct, waste, or improper disposition of the duct, &c, J . a -rouiul assets can be shown (//), or if it appear that the trust pro- perty has been improperly managed, or is in danger of being lost (z), there is a case for a receiver. If it can be satisfactorily established that parties in a fiduciary posi- tion have been guilty of a breach of duty, there is a suffi- cient foundation for the appointment of a receiver (a). Where a portion of a trust fund has been lost, that loss is prima facie evidence of a breach of duty on the part of the trustees, sufficient to authorise the interference of the court by the appointment of a receiver (b). So also it was held to be a good ground for the appointment of a receiver that an executor or trustee had omitted to raise a certain sum as he should, according to the will of his testator, (s) Anon., 12 Ves. 4; Howard Colebournev. Cohboumc, ib. 690 ; v. Papera, 1 Madd. 142 ; see Gawthorpe v. Gawthorpe, W. N. Eathornthwaite v. Russell, 2 Atk. (1878), 91. 126. (") Evans v. Coventry, 5 D. M. (/) Browell v. I leed, 1 Ha. 434. & G. 918 ; see Baylies v. Baylies (,ij Browell v. /.'" ; I, tt, I L. J. Ch. X. S. 272. Nothard v. Proctor, 1 Ch. D. 4. (;.) Middleton v. Dodswell, 13 (b) Evans v. Coventry, 5 D. M. \Y . 266; 11. v. //., l Ch. 1>. 276; & G. 918. AND TRUSTEES. 15 have done for the maintenance and education of infant c ]» a P- }}■ Sect. 2. legatees (c). " To authorise the court," said Alderson, — B. (cl), " to appoint a receiver, it is enough to say that the executor has not done what he could to get in the personal estate of the testator ; that he has left a con- siderable portion of it outstanding on improper securities ; and that he has not raised a certain sum, as according to the testator's will he should have done, in order that the parties might know what they had to look to " ( the fact that the party who had obtained administration of the testator's real and personal estate was an uncertificated bankrupt, and was not appointed to his office by the testator, but had taken out administration to the widow of the testator, was held not a sufficient reason to induce the court to appoint a receiver before answer, where several of the parties interested declined to join in the application. Poverty, Although it is not a sufficient cause for the appointment of a receiver that an executor or trustee is poor or in mean when a e'reumstances (o), the case is different if an executor or ground for a receiver, administrator be proved to be of bad character, drunken habits, and great poverty (7)). So also where the execu- trix and guardian of infant children, married a man in necessitous circumstances, a receiver was appointed (q). (k) Chuhhni v. Stoneman, 1 L. J. Ch. N. S. 271. Madd. 143 n. ; Langley v. Hcmke, (n) 2 Y. & C. 361. 5 Madd. 46 ; Stainton v. Carron (0) Sv/pra, p. 14. Co., 18 Beav. 146, 161. (p) Everett v. Prythergh, 12 (I) Oldfield v. Cobiett, 4 L. J. Sim. 368 ; see King v. Abbot8on> Ch. N. S. 272. 7 L. J. Exch. N. S. 6. (m) Langley v. Hawke, 5 (q) Dillon \. Lord Mountcashell, Madd. 46 ; Oldfield v. Cobbett, 4 4 Bro. P. C. 306. AND TRUSTEES. ] 7 So also a receiver was appointed in a case where a wife cba P- Ir - . .... Sect - 2. was an executrix, and the husband, besides being in indif ferent circumstances, was out of the jurisdiction, because in a case where the husband is out of the jurisdiction, there is no remedy, if the wife waste the assets (r) : but if a woman who has been deserted by her husband has obtained an order for the protection of her property under the 21st section of the Divorce and Matrimonial Causes Act, 20 & 21 Vict. c. 85, the court will not interfere (s). In a case where a married woman, whose husband was of unsound mind, was appointed executrix along with another person as her co-executor, and it appeared that the co-executor, who had taken out probate, could not sell the estate or collect the assets, a receiver was appointed (t). Although it is not a sufficient ground for the appoint- Sole exe- ment of a receiver that one of several trustees may have abroad. gone abroad (u), the case is otherwise if a sole executor resides abroad (r), or be abroad, and the beneficiaries under the will are unable to obtain an account from the person left in control of the property during the executor's absence (x). If all the cestuis qui trustent, or parties beneficially Receiver interested in an estate, concur in the application for a n consent receiver, and the trustee consents, the court will make the of partiea - order (y). So also in a case where it appeared that one (r) Taylor v. Allen, 2 Atk. (v) Wesiby v. Westby, 2 Coo. 213 ; see Pemberton v. M'Gill, 3 C. C. 210 ; see Noad v. Back- W. E. 557. house, 2 Y. & C. C. C. 529. (s) Bathe v. Bank of England, (x) Dickins v. Harris, 14 L. T. 4 K. & J. 464 ; see Re Rainsdon, N. S. 98 ; see Faith v. Dunbar, 4 Drew. 447 ; Postgate v. Barnes, Coop. 200. 9 Jur. N. S. 456. (y) Brodie v. Barry, 3 Mer. (t) Yetts v. Palmer, 9 Jur. N. 696 ; see Bartley v. Hartley, 9 S. 954. Jur. 224. (u) Supra, p. 14. 18 EXECUTORS M - trustee had disclaimed, and thai all the other parties Sect. 2. desired it. and the other trustee consented, the court ordered that there should be a receiver (z). So also in a case where there were two executors and trustees, and one had died and the survivor refused to act, the persons beneficially interested were held entitled to tho protec- tion of the court by the appointment of a receiver (a). The fact that the trustee who had died may have advanced monies out of his own pocket to an annuitant under the will, in the expectation of repayment out of the assets, was not considered a sufficient ground for his representatives to resist the appointment of a receiver, in the event of the assets proving deficient (&). Other cases In a case where two out of three trustees chose to act separately, and took securities in their own name, omitting that of the dissentient trustee, a cestui que trust was held entitled to a receiver (c) ; and the court will grant a receiver at the instance of the cestui que trust, where the single trustee, or all the trustees, are out of the jurisdic- tion (tc). A receiver will necessarily be appointed where the co-trustees cannot act through disagreement among themselves (c). So also where the trustees had to manage a business and were themselves not qualified to do so, but could not agree in appointing some person as manager, a receiver was appointed (/). In Tidd v. Lister (g), there had been four trustees, one in which a receiver will be appointed. (z) Beaumont v. Beaumont, C. C. C. 529 ; Smith v. Smith, 10 cited, 3 Mer. 696. Ha. App. 71. (a Pakru r v. Wright, 10 Beav. (e) Baijot v. Bagot, 10 L. J. Cli. 237. N. S. 11G ; Day v. Croft, Lewin (/,) lb. on Trustees, 843. twale v. Swale, 22 Beav. (/) Hart v. Denharn, W. N. 584. (1871), 2. (d) Noad v. Backhouse, 2 Y. & (g) 5 Madd. 433. AND TRUSTEES. 19 of whom was dead and another was abroad, and the third Cha P- n. Sect. 2. had scarcely interfered in the trust ; the business of the trust fell almost exclusively on one trustee, and upon the consent of the acting trustee Sir J. Leach considered he was justified in appointing a receiver (/&). So also a receiver was granted on the misconduct of one trustee, the other executors consenting to the order (?'). A receiver will also be appointed when the property of a debtor has been vested in trustees for the benefit of his creditors, and the appointment is necessary for the protection of the property (k). In the case of misconduct by trustees, the court will Implied appoint a receiver as well where the trust arises by impli- cation as where it is expressed. If, for example, a tenant for life of leaseholds is bound to renew, he is in such case clothed with the character of a trustee ; and if by his threats or acts he manifests an intention to suffer the lease to expire, the court will appoint a receiver in order to provide a fund for renewal (I). A similar order for the appointment of a receiver of the rents and profits of an estate for the purpose of accumulating a fund, was made where the tenant for life had fraudulently obtained a sum of stock to which the trustees of the settlement were entitled (m). In a case where a testator had bequeathed the residue of his real and personal estate to his widow, stating in his will that he had done so "in perfect confidence that she will act up to those wishes which I have communicated to her in the ultimate disposal of my property after my decease," the (h) 1 Ha. 434, ytr Wigram. (1) See Bennett v. Colley, 2 M. (i) Middleton v. Dodswell, 13 & K. 233. Ves. 268. ( m ) Woodyattv, Gresley, 1 Sim. (k) Waterhw v. Sharp, W. N. 180. (\mi), 64. C 2 20 i SCECITORS A.ND TRUSTEE8. Chap. 11. ■ pending - tnga abroad. court being satisfied on the evidence that the bequest had been made on the faith of a promise made by her that she would dispose of the property in favour of the plaintiff's, the natural children of the testator, and that an implied trust was accordingly raised in their favour, granted a receiver of the real and personal estates on the death of the widow against the heir-at-law of the real estates and the second husband of the widow (n). If one of the next of kin of a foreigner were to obtain administration here ponding proceedings abroad to ascertain who the next of kin are, a bill for a receiver will lie at the suit of a party claiming as next of kin (o). SECTION 3.— PENDING LITIGATION AS TO PROBATE. During a litigation in the Ecclesiastical Court of pro- bate or administration, the Court of Chancery would entertain a bill for the mere preservation of the property of the deceased till the litigation was determined, and appoint a receiver, although the Ecclesiastical Court by granting an administrator might have provided for the collection of the effects pendente lite (p). It was, indeed, (n) PodTtwre v. Gunning,*! Sim. 644. (o) Transatlantic Co. v. Pietroni, John. 604 (j)) King v. King, 6 Ves. 172 ; Atkinson v. Henshaw, 2 V. & B. 85 ; Ball v. Oliver, ib. 96 ; Wat- v. Brent, 1 M. & C. 102 (over ruling the distinction taken by Lord Erskiue in Richards v. Chave, 12 Ves. 465) ; Wood v. Hitchinys, 2 Beav. 289, on appeal 4 Jur. 858. The jurisdiction was originally assumed by the Court of Chancery, under the impression that the Ecclesiastical Court had no power to name an administrator to collect the pro- perty of a deceased person pending a contest in that court. When, however, it was decided in Walker v. Wollaston, 2 P. W. 576, that the Ecclesiastical Court had that power, the Court of Chancery followed the course usually adopted by it, and did not on that account abandon its jurisdiction, but continued to PENDING LITIGATION AS TO PROBATE. 21 a matter of course, where no probate or administration c ^ ia P- j- 1 - had been granted, for the Court of Chancery to appoint a receiver, pending a bond fide litigation in the Ecclesiasti- cal Court to determine the right to probate or administra- tion, unless a special case were made out for not doing so (q). In cases where the representation was in contest, and no person had been appointed executor or adminis- trator, the court would interfere not because of the contest, but because there was no proper person to receive the assets (■/■). In Whitworth v. Whyddon (s), where the person named as executor in the will was in possession of the property of his testator, the court would not take the property from him and burden the estate with the expenses of a receiver, inasmuch as the property was of trifling value, and no sufficient ground had been shown to warrant the interference of the court. In a case where two suits had been instituted for the protection of the estate of a deceased person pendente lite in the Ecclesiastical Court (one in the Rolls and another in a Vice-Chancellor's Court), it was held that the fact that the plaintiff in the first suit had failed to establish the will in the Ecclesiastical Court formed no valid reason why a receiver should not be appointed in that suit, or confer any equity to the appointment of a receiver in the second suit appoint a receiver in aid of the (?•) Wathins v. Brent, 1 M. & Ecclesiastical Court for the pro- C. 102; Grimstonv. Turner, 18 tection of the personal property TV. R. 724. Before the grant of of the deceased : Jones v. Godrich, administration, a receiver and 4 Jur. 98, per Lord Cottenham. manager may be appointed to (q) Rendall v. Rendall, I 1 1 a. cany on the business of an in- 154, per Wigram, V. C. ; Grimston testate; Blackett v. Blackett, 19 v. Turner, 18 W. R. 724 ; Parkin W. R. 559; see Rendall v. v. Seddons, 10 Eq. 30 ; Re Lloyd, Rendall, 1 Ha. 154. L2 Ch. 1). 148. (s) 2 Mac. & G. 55. PENDING LITIGATION Chap u. instead, the receiver being merely for the security of the s estate (£). The Court of Chancery will appoint a receiver pendente lite of the rents of real estate, if neither the devisee nor the heir-at-Jaw is in actual possession (?/). The Chancery division of the High Court of Justice will not generally interfere with the proceedings of another court which has power to do complete justice, hut, under the peculiar circumstances of the case, the court may think it right to appoint a receiver in the Chancery suit (x). Pending proceedings in the Probate Division, an action for the appointment of a receiver of a testator's real estate will he transferred to that division (y). Death of In a creditor's action for administration against an execute, execu t r i Xj a decree had been made and a summons taken defendant. ou j. f or a receiver ; but pending the summons the sole defendant died. The court on the application of the plaintiff appointed an interim receiver, whose powers were to extend for ten days after the appointment of an adminis- trator de bonis non, the plaintiff undertaking to use all possible speed in obtaining the appointment of such ad- ministrator and to accept short notice of motion to dis- charge the receiver (z). Receiver If probate or administration had been granted, the suit to re- circumstance that a suit was pending in the Ecclesiastical call pro- Court to recall or revoke probate or administration, was not bate. of itself a sufficient ground for the Court of Chancery, as of course, to interfere to prevent the parties to whom probate or administration had been granted, from using (t) Wood v. Hitchings, 4 Jur. D. 4. 858. (y) Burr v. Burr, W. N. (187(3) (u) Parkin v. Seddons, 16 Eq. 44. 3G. (2) Re Parker, 12 Ch. D. 293. (z) Nothard v. Proctor, 1 Ch. AS TO PROBATE. 23 those powers which it conferred upon them. If probate or Chap. II. administration had been properly granted, the Court of — Chancery would not appoint a receiver pending litigation in the Ecclesiastical Courts to recall, or revoke probate or administration, unless a special case were made out for doing so (a). The general principle was stated by Turner, L. J., in Devey v. Thornton (b) to be that where there is a legal title to receive, the court ought not to interfere, unless where the legal title is abused, or there is proof that it is in danger of being so. But if a fair prima facie case of fraud were made out (c), or if it were made to appear that the legal right to receive the assets was being abused, or was in danger of being abused, whether from insolvency or otherwise (d), the court would appoint a receiver. So also would it appoint a receiver, if it appeared from all the circumstances of the case that there was no executor or administrator in existence with the right and power to act as such, notwithstanding there was no ground laid for interference in respect of any improper conduct of the parties (2 ; Connor v. Connor, 16 necessary to establish by evidence L. JTCh. 371 ; Newton v. Bichette, strong presumption against the 11 Jur. 662 ; Rendall v. Eendall, will : Dew v. Clarke, 1 Sim. & 1 Ha. 154; see Whitworth v. St. 114, per Sir J. Leach. Wfyjddon, 2 Mac. & G. 52. (d) Ball v. Oliver, 2 V. & B. (b) 9 Ha. 221). 96 ; Connor v. Connor, 16 L. J. (c) Rutherford v. Douglas, 1 Ch. 371 ; Newton v. Bieketts, 11 Sim. & St. Ill n. ; Watkins v. Jur. 662 ; Devey v. Thornton, 9H&. Brent, 1 M. & C. 102 ; Dimes v. 229 ; sec Re Lloyd, 12 Cli.D. 448. Steinberg, 2 Sm. & G. 75. In (-■) Watkins v. Brent, 1 M. & order to interfere against the C. 97. 24 PENDING LITIGATION Chap. 11. treated himself as not being complete executor, a receiver b. 8. was appointed {ee). "It," said Wigram, in Rendall v. ll.iuhill (/), "the question whether the party claiming to be executor is so de ,/'">v or not, a receiver will be appointed." So, also, in Mairr v. IAttlewood (g), Lord Cottenham appointed a receiver upon the application of the actual executor, pending a suit to annul probate, upon the ground that the opposing party by having given notice to the debtors to the estate not to pay to the plaintiff, the actual executor, had destroyed the effect of the probate, and produced by his own act an incapacity on the part of the executor to proceed under the probate in collecting and preserving the assets (h). Probate j n the Probate Act, 20 & 21 Vict. c. 77, which abolishes Act the testamentary jurisdiction of the Ecclesiastical Courts, and establishes a Court of Probate, it is enacted by clause 70, that pending any suit touching the validity of a will, or for obtaining, recalling, or revoking any probate or grant of administration the Court of Probate may appoint an administrator of the personal estate of the party deceased ; and that the administrator so appointed shall have all the rights and powers of a general administrator other than the right of distributing the residue of such personal estate (i). The 71st clause empowers the Court of Pro- bate to appoint a receiver of the real estate of any deceased person pending a suit touching the validity of his will by which his real estate may be affected ; and it is declared that the receiver so appointed shall have power to receive the rents and profits of the real estate, v, [b. ; see Newton v. Ricketts, (h) 1 Ha. 156, per Wigram, llJur. 662. V.C. (/) 1 Ha. 155. (i) Sec also 21 & 22 Vict. c. 95, 2 M. & C. 454. B. 21. AS TO PROBATE. ZQ and to let and manage the same (k). There is nothing in Chap. II. , . Sect. 3. the Probate Act which ousts the original jurisdiction of the Court of Chancery. If an administrator, ad litem, has not been appointed by the Probate Court, the Court of Chancery will, as a matter of course, appoint a receiver : but if an administrator, ad litem, has been appointed by the Court of Probate, the Court of Chancery will not appoint a receiver unless a special case be made out, for the administrator can do everything that is necessary for the protection of the property (Z). As soon as the Court of Chancery finds anyone clothed by the Court of Probate with the character of an adminis- trator, even although he is only appointed pendente lite, it will discharge the order for a receiver, and will allow the administrator to receive the estate, but it will hold its hand over his dealings with it, and make such orders upon him, as it may think proper (in). The Court of Probate will appoint an administrator pendente lite, if it is just and proper to do so, although a receiver has been appointed by the Court of Chancery in a suit pending between the same parties, and affecting the same property as the testamentary or administration suit (w). The Court of Probate has power under 20 & 21 Vict. c. 77, s. 70, to appoint an administrator pendente lite in contested testamentary and administration suits on the application of a party, who is not a party to such suit. In an administration suit, accordingly, which was likely (k) See Neale v. Bailey, 23 W. Hitchen v. Birks, lo Eq. 471 ; E. 418; see also 21 & 22 Vict. c. Parkin v. Serfdom, 16 Eq. 34. 95, ss. 21,22; see as to costs of Per Lord Penzance, 1 Pr. administrator and receiver, Taylov & Div. 7;*3. v. Taylor, 6 Pr. D. 29. (n] richbomev.Tichbo7>ne,lFr. /) Veret v. Vuprez, 6 Eq. 330; & Div. 730. &c, 26 PENDING LITIGATION Chap. ii. to be protracted, the Court of Probate appointed an admi- _^l_L_nistr;itor pendente tit,', at the instance of a creditor who was not a party to the suit (o). In a case where pending litigation between the parties interested, a receiver had been appointed by the Court of Chancery, with authority to collect the outstanding per- sonal estate until administration, and with liberty to apply for letters of administration, a general grant of adminis- tration was made to the receiver (p). Pleading, To warrant the application for a receiver, it must clearly appear that there is a bond fide litigation pending in the proper court, respecting probate or administration. The statement of claim should distinctly allege the pendency of such a suit (q), or that such a suit is impending (r), or that a caveat has been entered (s). The mere loose alle- gation that the plaintiff is proceeding to obtain letters of administration is not enough (t). The court will not interfere on the ground that there is a question depending, on the result of which it might appear that the plaintiff was interested (»)• A bill for a receiver pending a litigation as to probate, ought not to seek discovery in reference to the merits of the litigation ; for a plaintiff cannot by one bill obtain specific relief, and also discovery on a matter distinct from that specific relief (x). But the mere fact of discovery being sought by the bill will not prevent the appointment of a receiver, where there is a clear title to relief (y). In (o) TicKb1 prised in plaintiff's security, as to part of which he was ^hap. n - legal and as to part equitable mortgagee (u). The court will not appoint a receiver at the instance of Receiver • ii-i • not a P" a second mortgagee or equitable incumbrancer, against a pointed prior legal mortgagee in possession, as long as anything pffo°le^al remains due to him on the mortgage security. A prior mortgagee . . m posses- legal mortgagee in possession, having anything due to sion at suit him, is entitled to retain that possession until he is fully mortgagee, paid. When a prior mortgagee is in possession, a receiver will not be appointed against him except on his own con- fession that he has been paid off, or on his refusal to accept what is due to him (x). If he swear that some- thing is due to him on the mortgage security, no receiver will be appointed against him (y), and the only course is to pay him off according to his own statement of the debt (z). ■ It is not necessary, in order to save his pos- session, that he should be able to state with any great precision what sum is due to him. It is enough if he can swear that something is due to him (however small it may be) on the security (a). If he distinctly says by his answer that something is due to him, the court will not try the truth of the statement by affidavits against the answer (6). If, however, he will not state that something is due to him, the court will appoint a receiver (c). The state- ment must, in order to satisfy the court, be a distinct and (u) Pease v. Fletcher, 1 Ch. D. 557. 273. («) Chambers v. Gokhrin, cited (x) Berney v. Sewell, 1 J. & 13 Ves. 378 ; Quarrell v. Bedford, W. 649 ; Hilesx. Moore, 15 Beav. 13 Yes. 378. 180. (b) Rowe v. Wood, 2 J. & W. (y) Cliatnbers v. Gold/win, cited 558. 1 ?> Yes. 378 ; Quarrell v. Bedford, (c) Chambers v. Gold win, 16 Ves. 378. cited 13 Ves. 378 ; Quarrell v. (z) Berney v. Sewell, ] J. & W. Bedford, 13 Ves. 378 ; Rowe v. 647 ; Rowe v. Wood, 2 J. & W. Wood, 2 J. &W. 558. 32 BETWEEN MORTGAGOR Chap. ii. positive statement. It is not enough that it should merely amounl bo a vague assertion (d), or that he should say in general terms Unit he believes that when the accounts are taken, Borne particular sums, and parts of other sums will be found due, without supporting the statement by any accounts which will serve to test its truth (e.) Nor can the incomplete state of his accounts be admitted as an excuse for his not being able to say that something is due to him. If a mortgagee in possession keep his accounts so negligently that neither he, nor a subsequent incum- brancer, nor the owner of the estate can ascertain what is due, the court may assume that nothing is due, and appoint a receiver (/). Time, however, may be given him to make an affidavit of the debt (g). The rule that a receiver will not be granted against a prior legal mortgagee in possession as long as anything remains due on the mortgage security, applies equally, whether the priority is original or has been acquired sub- sequently by an assignment of the mortgage (h). Where, accordingly, as between two equitable incumbrancers, the one later in date had acquired the legal possession, the court would not, at the suit of the one who was prior in date, appoint a receiver (i). The rule that a receiver will not be appointed against a prior legal mortgagee in possession, only applies as long as anything is due with reference to which the mortgagee has a right to retain possession (/,•). It is not the rule of (d) Hiles v. Moore, 15 Beav. Ves. 462. 181. (A) Berney v. Sewell, 1 J. & (e) Hiles v. Moore, 15 Beav. W. 648 ; Hiles v. Moore, 15 181. Beav. 181 ; Bates v. Brothers, 17 (/) Codrington v. Barker, 16 Jur. 1174 ; 2 Sm. & G. 509. Ves. 469 ; Hiles v. Moore 1 5 (i) Bates v. Brothers, ib. Beav. 180. (/>") Codrington v. Parker, 16 g Codrington v. Parker, 16 Ves. 469. AN T D MORTGAGEE. 33 the court that a third mortgagee, who has advanced his Chap. II. *= ° Sect. 4. monies with notice of the second mortgage, and who has taken possession, and has then bought up a first incum- brance, can retain it as against the second mortgagee, after the first mortgage has been paid off (u). The rule that a receiver will not he appointed against a prior legal mortgagee in possession, has been held to apply in favour of persons in possession entitled to a mortgage and prior charges on the estate, though they had applied part of the rents in payment of the interest on those charges, instead of discharging the principal of the mort- gage ; it being the proper course, as between the tenant for life, and the owners of the inheritance, to keep down such interest out of the rents, and not to treat the surplus rents, after payment of the interest of the unpaid part of the principal, as applicable to the discharge of such unpaid principal (x). In order to deprive an equitable mortgagee of his right to a receiver, the possession of the party must be such a possession as invests him with a title to receive the rents and profits. A mere possession as tenant is not sufficient. An incumbrancer who is in possession, not in that character, but as tenant, cannot set up his possession as tenant as a reason against the appointment of a receiver. A second mortgagee having sold part of his mortgage to the tenant in possession of part of the premises, applied for a re- ceiver ; the tenant in possession objected on the ground that the rent which he was to pay was just equal to the interest he was entitled to receive on his share of the money due on the mortgage, and that therefore it would but increase the expense by his paying into court as rent (u) Ililes v. Moore, 15 fieav. (x) Faulkner v. Daniel, 3 Ha. 181. 204n.,10L. J. Ch.N. S. 34. D 34 BETWEEN MORTGAGOR Chap. II. Sect i. In parti- cular cases receiver appointed against legal mort- gagee in possession. what he must receive hark as interest. -But it was held that the defendant could not unite his two characters of mortgagee and tenant, and that his position being as tenant could not be set up against the other mort- gagee (//). Although a receiver will not, as a general rule, be ap- pointed against a prior legal mortgagee in possession, the court may, if a case of gross mismanagement of the estate he made to appear, deprive a mortgagee of possession by appointing a receiver ; but to warrant such an inter- ference the mismanagement must be of a clear and specified nature (z). In Rowe v. Wood (a), a motion for the appointment of a receiver upon a mortgagee of mines, who had become a partner by purchasing shares in them, upon the ground of mismanagement, and excluding the mortgagor from interference was refused ; it not being shown and the mortgagee not admitting that the mort- gage was satisfied. It was also said that the rights and duties of a person in that situation were not to be governed solely by principles applicable to one who stands simply in the character of a mortgagee or partner, and that if a first mortgagee in possession can in any case be deprived of that possession on the ground of mismanage- ment, it must be mismanagement of a clear and specified nature. Though it could not appoint a receiver, the court, however, ordered that the plaintiff had a clear right, subject to the equities which might ultimately be declared between the parties to insist that regular accounts should be kept of all receipts, payments and transactions relative to the mine, to have constant access for the purpose of (y) Archdeacon v. Bowes, '■'> Anst. 752. (-.) Rowe v. Wood, 2 J. &W.553. (a) lb. AND MORTGAGEE. 35 inspecting the accounts ; and declared, also, that subject to c J ia P- II- those equities he had a clear right to control the working ■ of the mine, and that if he was impeded in the exercise of any of those rights he should come to the court again (b). Although an equitable mortgagee or incumbrancer Receiver , • i i appointed cannot have a receiver appointed against a prior legal aga inst mortgagee in possession, the case is different if the prior ^™°[ ga e g g e a e leo-al mortgagee is not in possession. If an incumbrancer if not in 000 * _ possession. having a prior legal estate be not in possession, whether from refusing to take possession or from being otherwise out of possession, an equitable incumbrancer having a charge subsequent in date may have a receiver, without prejudice, however, to the right of the person having a prior legal estate to take possession, if he think fit (c). If a mortgagee will not take possession, a receiver will be appointed without his consent. The court will not allow a prior legal incumbrancer to object to the appoint- ment of a receiver by anything short of a personal assertion of his legal right, and on taking possession himself (d). If care be taken that a prior mortgagee is ^ not prejudiced, he has nothing to do with the motion for a receiver. He may enter as mortgagee ; and the ap- (h) Rowe v. Wood, 2 J. & W. was appointed at the suit of a 559. puisn6 incumbrancer, and the (c) Bryan v. Cormick, 1 Cox, first legal incumbrancer was not 422 ; Dalmer v. Dashwood, 2 entitled to take possession be- Cox, 383; Davis v. Duke of cause he Mas by the terms of his Marlborough, 2 Sw. 135; Berney security obliged before doing so v. Sewell, 1 J. & W. 648 ; Tan- to give three months' notice after field v. Irvine, 2 Euss. 151 ; default made in payment of the Rhodes v. Mostyn, 17 Jur. 1007 ; mortgage money. comp. Coopev. Creswell, L2 W. II. (d) Silver v. Bit-hop of Nor- 299; see Langton v. Langton, wich, 3 Sw. 114 n. 7 D. M. & (J. 30, where a receiver D 2 ;;p) BETWEEN MORTGAGOR Chap. it. pointment of a receiver will not prejudice that right. The habit of the court on such a motion is not to look at mortgagees further than to see that they arc not pre- judiced (e). The court may in a suit instituted by a puisne mort- gagee appoint a receiver, although the first mortgagee has by his deed of security a power to appoint one (/). The appointment of a receiver may be made at the suit of a puisne mortgagee or other legal incumbrancer, for the purpose of keeping down the interest, even though the applicant be unable at the time to enforce the usual mortgagee's remedies, as if he have covenanted not to call in the mortgage debt during a certain time (r/) ; and though by the transaction itself the security gave the creditor no right to be considered as a mortgagee of the estate, but only made the rents a fund for payment of interest and of the premiums upon a policy of insurance, out of the produce of which the principal was to be paid (h). Arrears of It is enough to grant a receiver at the suit of a second '"omtffor or P uisn e mortgagee that the payment of interest is in receiver. arrear (0, or that there is reason to apprehend that the property is insufficient to pay the charges, or is in danger of being evicted {e.g., for non-payment of head rent) (k). Tarties. To a bill by second or third mortgagees for a receiver, (e) Norway v. Rowe, 19 Ves. Dillon, 1 Hog. 201 ; Tanfield v. L53, per Lord Eldon. Irvine, 2 Russ. 151; Wilson v. (/) Bord v. Tollemache, 1 N. Wilson, 2 Keen, 249; see Hop- j{ 177. kins v. Worcester and Birming- ((j) Burrowes v. Molloy, 2 J. & ham Canal Co., 6 Eq. 447. L. 321. (/■") Herbert v. Greene, 3 Ir. Ch. (h) Taylor v. Emerson, 4 Dr. & 273 ; see PlasJcett v. Dillon, 1 War. 122. Hog. 201 ; Hacket v. Snow, 10 Ir. (i) White v. Bishop of Ptter- Eq. 220. borough, 3 Sw. 109 ; Plaskett v. AND MORTGAGEE. 37 it is not necessary to make the first mortgagees parties c ^ ha P- ll - to the suit (I). A mortgagee of turnpike or other tolls, may come to the Mortgagee court for a receiver, instead of taking steps to obtain pos- &c>> may session at law (m). " Under an ordinary mortgage," said J^* re ~ Turner, L.J., (n) "the mortgagee when he enters into pos- session holds for his own benefit. Under a mortgage of this description he becomes, when he enters into possession, liable to the other mortgagees to the extent of their inte- rest. This liability would entitle him, upon possession taken to come to the court to have it ascertained what is due upon the other mortgages, and for a receiver to aid him in the due application of the tolls ; and if this court can be called upon to appoint a receiver immediately after the possession recovered at law, it can hardly be necessary that the proceedings at law should first be taken." A receiver may be appointed on the application of an Equitable equitable mortgagee in a foreclosure suit or other suit may h a ve a, for enforcing his security against the mortgagor in pos- receiver - session having the legal estate (o). So, also, a receiver may be appointed on the application of an equitable mortgagee against a person in possession under agree- ment of assignment from a person having the legal title (p). In Holmes v. Bell (q), a receiver of the rents and profits of an estate belonging to the defendants as tenants in common, was appointed at the suit of equitable mort- (l) Dalmer v. Dashicood, 2 Cox, 255 ; Aberdeen v. Chitty, 3 Y. & 383 ; Davis v. Duke of Mud- C. 379 ; Meade n v. Se/ihnj, 6 Ha. borough, 1 S\v. 77 ; but see I'riee 620 ; see Vrowe v. Halliday, 2 v. Williams, ( loop. 31. Ridg. P. C. 58. (m) Lord Crewe v. Edleston, 1 (p) Reid v. Middleton, T. & R. D. & J. 93. 455. (n) lb. 100. (?) 2 Beav.298. o Reid v. Middleton, T. & E. 38 BETWEEN MORTGAGOH ca»p. ir. Form of order for receiver at Miu of sub- sequent iiu-iini- branc< rs. Receiver is in law the agent of the mortgagor within 3 & •1 Will. 4, c. 71. In what cases a mortgagee may ap- point a receiver. gagees, though one of tin' mortgagors was out of the juris- diction, the whole of the vents being received by the other. If a receiver is appointed on behalf of one of several incumbrancers, the order generally contains a declaration that the appointment of the receiver is to be without prejudice to the rights of, or is not to affect the prior in- cumbrancers on the estate, who may think proper to take possession of the estates and premises by virtue of their respective securities ; and usually directs that the receiver do, out of the rents and profits to be received by him, keep down the interest and payments in respect of such incumbrancers, according to their priorities, and be allowed the same in passing his accounts (r). When an estate is mortgaged and a receiver is appointed at the suit of mortgagees, the receiver is, in law, the agent of the mortgagor, the owner of the estate subject to the mortgage, and payment by him in pursuance of the order is payment by the legal agent of the party liable to pay within the 40th section of 3 & 4 Will. 4, c. 27 (s). The security sometimes contains a power for the mort- gagee to appoint a person to be receiver of the mortgaged property in order to secure to the mortgagee the regular payment of his interest out of the rents and profits of the estate (<). A receiver, so appointed, is in possession as the agent of the mortgagor (tt). Under the provisions of 44 & 45 Vict. c. 41, s. 19, sub-s. 3, a mortgagee, where the mortgage is made by deed, has power, when the mortgage money has become due, to (r) Set. on Deer. 414 ; see Lewis v. Zovche, 2 Sim. 388 ; Smith v. Lord Effingham, 2 Beav. 232. (s) Chinnery v. Evans, 11 H. L. 134. (<) S,e Jolly v. Arbvihnot, 4 D. & J. 224 ; Bord v. Tollemache, 1 N. R. 177 ; Jeffreys v. Dickson, 1 Ch. 190. (tt) Jefferys v. Dickson, ib. ; Law v. Glenn, 2 Ch. 641,#erRolt, L. J. AND MORTGAGEE. 39 appoint a receiver of the mortgaged property or of any part Chap. II. thereof, unless a contrary intention is expressed in the mortgage deed. A mortgagee entitled to appoint a receiver shall not appoint a receiver until he has become entitled to exercise the power of sale conferred by the Act, but may then by writing under his hand appoint such person, as he thinks fit to be receiver (u). The receiver so appointed shall be deemed to be the agent of the mortgagor, and the mortgagor shall be solely responsible for the receiver's acts or defaults, unless the mortgage deed otherwise provides (x). The receiver may be removed and a new receiver may be appointed from time to time by the mortgagee by writing under his hand (y). SECTION 5.— IN CASES BETWEEN DEBTOR AND CREDITOR. General creditors may, like specific appointees of pro- Receiver perty, have a receiver of the property of a debtor (y y) . In JS" S a case accordingly where it is made to appear that an J™ 1 ^ executor or devisee of the real estate is wasting the real or personal estate, a receiver will, it would seem, be ap- pointed at the instance of simple contract creditors (z). So also where upon bill by creditors claiming satisfaction out of real and personal assets, it app eared that the real estate must eventually be responsible, as there was no personal (w) 44 & 45 Vict. c. 41, s. 24, 1036 ; Oldfield v. Cobbett, 4 L. J. sub-s. 1. Ch. N. S. 272; see Largan v. (x) lb. sub-s. 2. Bowen, 1 Sch. & Lef. 296. (y) lb. sub-s. 5. (--) See Kecnc v. Riley, 3 Mer. (ll'j) Owen v. Soman, 1 11. L. 136. 40 i'i. i u i.i-n DEBTOfl Chap. II. estate to bo applied to discharge the debts, a receiver was appointed (a). So also in a case where a bill was filed by creditors for satisfaction out of the personal assets, and if those were not sufficient, out of the real estate, descended to an infant heir, the court appointed a receiver of the real estate descended (/>), If the real estates over which a receiver is sought are in mortgage, but the mortgagee is not in possession, a receiver will be appointed on the application of creditors, without prejudice to the right of the mortgagee to take posses- sion (c). Though general creditors may, like specific appointees of property, have a receiver of the property of the debtor, a strong case must be made out to warrant the inter- ference of the court. The court will not, unless a clear case be established, deprive a person of property in which the claimant has no specific claim, in order that if he establish his claim as a creditor, there may be assets wherewith to satisfy it (d). The anomalous nature of the right when the plaintiff is claiming as a general creditor of a married woman, and is seeking payment out of her separate estate, and the inability of the court to govern the proceedings in equity in such a case by rules strictly conformable to those which regulate an action at law may ' warrant the interim interference by a receiver. But a chance of doing a wrong to the defendant in such a case is certainly much greater and more apparent than when a (a) Jones v. Pugh, 8 Ves. 71 ; v. Braiser, 2 J. & W. 287. Chalk v. Raine, 13 Jur. 981 ; see (c) Bryan v. Cormick, 1 Cox, Coope v. Greswell, 12 W. R. 299 ; 422; see Berney v. Sewell, 1 J. & Topping v. Searson, 6 L. T. N. S, W. (548, supra, p. 35. 150, ('0 Owen v. Homan, 4 H. L. (//) Sweet v. Partridge, 1 Cox, 1036. 133, 2 Dick. 696 ; see Lechfnere AND CREDITOR. 41 right asserted is a right against some specific fund or ^P- * L estate (e). The doctrine of the court as to entertaining applications Receiver for a receiver at the suit of equitable creditors, has been ^Hurt of thus stated by Lord Eldon in Davis v. Duke of Marl- equitable d * creditors. borough (/) : " The rule I take to be that the court will on motion appoint a receiver for an equitable creditor, or a person having an equitable estate, in this sense without prejudice to persons who have prior legal estates, that it will not prevent their proceeding to take possession if they think proper (g) ; and with regard to persons having prior equitable estates, the court takes care not to disturb prior equities, and for that purpose directs inquiries to determine priorities among equitable incumbrancers, per- mitting legal creditors to act against the estates at law, and settling the priorities of equitable incumbrancers. Provided it is satisfied in that stage that the relief prayed by the bill will be given when a decree is pronounced, the court will not expose parties claiming that relief to the danger of losing the rents, by not appointing a receiver of an estate on which it is admitted they cannot enter." In favour of equitable creditors the court will appoint a receiver over property against which legal creditors might obtain execution. If courts of law hold that certain pro- perty may be taken on legal execution, courts of equity cannot consistently hold that it is not to be taken on equitable execution. There is no principle on which, supposing a legal creditor to have the right to take an estate in execution, it should not equally extend to an (e) Owen v. Hainan, 4 H. L. the leave of the court. Bryan 1 ( >36. v. Cormick, 1 Cox, 422 ; Awjelx (/) 2 Sw. I37, L38. Smith, 9 Ves. :>:j.">. () Oliver v. Loniher, 28 W. R. Wells v. Kilpin, ib. 381. (a) Arnold v. Mayor, <(-r., of (r) Bryant v. Bull, 10 Ch. D. Gravesend, 2 K. & G. 574 ; see S. 153. < '., 2 Jur. N. S. 706, as to right of ('0 Swpra, p. 29. mortgagee, after the Corporation (/) Doe v. St. Helen's, &c, Act, against a receiver appointed Railway Co., 2 Q. B. 304. at suil of judgmenl creditor dj) Fripp v. Chard Railway Co., COMPANIES. "*< So, also, and upon the same principle, a man who has ( *Jg J L sold land to a railway company in consideration of a rent- - charge, may come to the court for a receiver (h). So, also, and upon the same principle, a mortgagee of turnpike (i), dock (j ), and market (k) tolls, has a right to come to the court to have a receiver appointed. The court has jurisdiction to appoint a receiver at the suit of a mortgagee of tolls, independently of any Act of Parliament (I) . The appointment of a receiver at the suit of a mortgagee of tolls, is one of the oldest remedies of the court (m). It is not necessary that the Act should give the court power to appoint a receiver to enable the court to do so. When an Act of Parliament authorises a mortgage, it authorises, as incident to it, all necessary remedies to compel payment, and in the case of tolls a power to appoint a receiver (n). The fact that a precise and specific remedy may be 11 Ha. 241 ; Potts v. Warwick appointment is made. Griffin and Birmingham Canal Co., Kay, v. Bishop's Castle Railway Co., 15 146; Ames v. Birkenhead Docks, W. R. 1058; see Fripp v. Chard 20 Beav. 342 ; Boiven v. Brecon Railway Co., 11 Ha. 241. Railway Co. , 3 Eq. 541 ; Gardner (h) Eyton v. Denbigh, &c, Rail- v. London, Chatham and Dover way Co., 6 Eq. 14. Railway Co., 2 Ch. 201 ; Hopkins (i) Knapp v. Williams, 4 Ves. v. Worcester and Birmingham 430 n , per Lord Loughborough ; Railway Co., 6 Eq 447 ; see as to Lord Crewe v. Edleston, 1 D. & J. form of order Set. on Deer. 423 ; 109. Postlethwaite v. Maryport Har- (j) Ames v. Birkenhead Docks, hour Trustees, W. N. (1869), 37. 20 Beav. 342. A railway mortgage debenture (k) De Winton v. Mayor of holder is entitled to a receiver of Brecon, 26 Beav. 533. the tolls of the undertaking, and (I) Il>. not merely of the profits. The (m) Hopkins v. Worcester and order for the appointment of a Birmingham Canal Co., 6 Eq. 447. receiver should follow the terms (n) De Winton v. Minim- of of the mortgage deed as to the Brecon, 20 Beav. 541. property in respect of which the 4S COMPANIES. Chap. [I. pointed out by the Act of Incorporation, which provides that persona aggrieved by any order of the managers of the corporate body, may appeal to the quarter sessions, does not deprive a party of his right to a receiver; nor docs a proviso in the Act of Incorporation, that no suit should he commenced against any person for anything done in pursuance of the Act, until a certain notice had been given, apply to a suit for a receiver (o), nor does a proviso in the Act of Incorporation of a railway company, that a committee of twelve of the proprietors of the com- pany should be elected at every annual meeting to manage the affairs of the company, deprive a mortgagee of his right to a receiver of the rates, tolls, and dues of the com- pany (j>). Nor is the jurisdiction to appoint a receiver at the suit of a mortgagee taken away by the fact that there is a provision by statute for the appointment of a receiver through the medium of two justices of the peace (q). Nor is it any objection to the appointment of a receiver, that the company has duties to perform, the neglect of which might subject them to indictment, for the order of the court always gives the parties liberty to apply, whereby such consequences may be averted (r). Pleading. A mortgagee of the tolls of a company seeking to obtain the appointment of a receiver must sue on behalf of himself and all other mortgagees who have an interest identical with his own, or arc in the same class with him- (o) Drevrry v. Barnes, 3 Russ. the suit of mortgagees by two 104. justices of the peace. A pro- (p) Fripp v. Chard Railway vision to the same effect is con- Co., 11 Ha. 241. tained in 10 & 11 Vict. c. 16, ss. (q) lb. 259. By the Lands 86, 87. Clauses Act, 8 & 9 Vict. c. 16, (r) Fripp v. Chard Railway Co., bs. 53, 54, provision is made for 11 Ha. 259. the appointment of a receiver at COMPANIES'. 40 self (s). Where such a suit has been instituted, a mort- c g H?- J 1 - gagee holding a mortgage in the statutory form of a debenture of the company is not entitled to sue out execu- tion on a judgment which he has obtained at law in an action on the same instrument, except as a trustee for himself and all other debenture holders entitled to be paidpm pass a with him (/), and that being the opinion of the court, an enquiry was directed upon the petition for leave to issue execution, and in the suit whether it would be for the benefit of the debeuture holders that any pro- ceedings should be taken by the receiver for the purpose of making such judgment available for the benefit of such creditors (u). In a case where a mortgagee of turnpike tolls, under an Act of Parliament which provided that there should be no priority among the mortgagees, took possession on not being paid, and retained the whole proceeds in discharge of his own demand, a receiver was appointed (v). A receiver may be appointed in a suit instituted by one of several mortgagees on behalf of himself and all others, though the others do not concur in the appli- cation (x). The Court will not, at the suit of mortgagees, sanction Provisions inserted in the appointment of a receiver of a public company, esta- the order, blished by the legislature for a particular object, without providing as far as possible for the future working and continuance of the undertaking sanctioned by the legis- (s) Potts v. Warwick and Bir- („,) Bowen v. Brecon Railway minr/ham Canal Go., Kay, 142 ; g _ 3 £q_ 55]^ Frijjp V. Chard Railway Co., 11 („) Dnmville v. Ashbrooke, 3 Ha. 241 ; Legg v. Matthieson, 2 Russ. 99n. Giff. 71. (-) Fri ,ppv. Chard Railivay Co., (/) Bowen v. Brecon Railway 11 Ha. 241. Co., 3 Eq. 541. 50 COM TAN IKS. Chap. n. lature (v). The order will also be without prejudice to Sect. ii. the rights of prior incumbrancers. Receiver o! The Court of Chancery has, even after a receiver of the chattels of , . , . arailway t"" s bas been appointed, appointed a receiver 01 the com P an y- chattel property of a railway company, on a motion by a debenture bolder, when the company had by a deed as- signed their rolling stock and chattels to trustees for the general benefit of creditors iz). Judgment All ordinary judgment creditor of a railway or canal a '-mi. any company has a right, as between himself and the company may have a j- ^ j n ^ possession of the land and not interfering with receiver. ox o the working of the canal or railway, to take the profits realised by its use in the only way in which the responsi- bilities imposed by the legislature on such companies for the benefit of the public allow them to use it, and in the assertion of that right to have the protection of a Court of Equity, by the appointment of a receiver of the tolls and traffic receipts (a). When the unpaid vendor of land taken by a railway company has commenced an action against the company to enforce his lien, the court will not appoint a receiver before judgment has been obtained in the action, even though the company admit their liability (&). Frvppv.Chard Railway Co., («) Furness v. Caterham Rail- 11 Ha. 265; Potts v. Warwick way Co., 25 Beav. 614 ; Potts v. and Birmingham Canal Co , Kay, Warwick and Birmingham Canal 147 ; Ames v. Birkenhead Docks, Co., Kay, 145; Imperial Mercan- 20 Beav. 350 ; seeas to form of tile Credit Association v. Newry the order, Fri/pp v. ' 'hard Railway, and Armagh Railway Co., &c, Ir. 11 Ha. 265, Set. on Deer. 423 ; L. R. 2 Eq. 531, per Christian, Pottv. Warwick awl llirmiugham L. J.; Kingston v. Cowbridge Canal Co., Kay, 143. Railway Co. 41 L. J. Ch. 152. (,-. ) Waterlow v. Sharp, W. N. (b) Latimer v. Aylesbury and (18(57; 'il; see Rickman v. Johns, Buckingham Railway Co., 9 Ch. El- 4b*. 17 W. R. 928. D. 385. COMPANIES. 51 As between a judgment creditor and a mortgagee of the c ^ a P- \ L undertaking, who had obtained his mortgage before the Priorities recovery of the judgment, the right of the mortgagee is between paramount (c). When accordingly a receiver has been and ^j appointed at the instance of a mortgagee, his right is "! ent cre " prior to the claim of a judgment creditor under an elegit, whose whole interest in the land can be that only which subsists subject to the right of the receiver and the provi- sions of the railway acts. Notwithstanding that a receiver may have been appointed at the instance of a mortgagee, a judgment creditor may also have a receiver appointed ; but the receiver who has been appointed at the instance of a judgment creditor, takes without prejudice to the right of a receiver appointed at the instance of a mort- gagee (d). The fact that judgment may have been ob- tained before the appointment of a receiver at the instance of the mortgagee, does not vary the rule. If the mort- gagee is not in possession by his receiver at the time when execution is issued, the judgment crediter may, under the provisions of the Common Law Procedure Act, take the rates and tolls then due ; but as to the rates and tolls thereafter to become due, he will be stopped at any (c) Legg v. Matthieson, 2 Gift'. was afterwards appointed at the 71; Wildy v. North Hants Rail- suitofa mortgagee, it was ordered way Co., 16 W. E. 409, supra, that notice of the order should P- 45. be given to the judgment creditor, (d) Potts v. Warwick and Bvr- and that he should be at liberty, mmgham Canal Co., Kay, 145 ; though not a party to the cause, Ames v. Birkenhead Docks, 20 to appear at the hearing of the Beav. 332 ; see Hopkins v. Wor- motion, or to give such notice of and Birmingham Canal Co., motion to discharge or vary the 6 Eq. 447. In a case where a order as he may be advised. De judgment creditor under an elegit Winton v. Mayor, dr., of Brecon, was in possession, and a receiver 26 Beav. 539. 52 COMPANIES. Ch&P- "• time bv the mortgagee entering into possession by his Sect. (>. receiver (e). So also when a judgment creditor applied for a receiver against a company which had concluded an agreement with another company to work their line, a receiver was appointed without prejudice to the working agreement (/). In determining their respective rights between a mort- gagee of a railway, canal, or other undertaking, and a judgment creditor, it is necessary to hear in mind that the effect of a mortgage of the undertaking and tolls is to carry the tolls, the unpaid calls, and probably all the pro- perty of the company, as proprietors of the undertaking, which any one is at liberty to use on paying toll, but not the stock or chattels of the company, as carriers of pas- sengers or goods for hire, or the soil of the undertaking itself (g). A mortgage of an undertaking, within the terms of the Companies Clauses Act, carries only the tolls and sums of money arising or authorised to be received by virtue of the Act, i.e., the profits arising from the use of the undertaking as a going concern (h). The mortgage of an undertaking does not carry with it the lands of the company, unless it appear from the deed or act that it was the intention of the parties that the land should pass. The mortgage debentures of a railway or other company do not constitute an equitable charge on the lands of the (e) Ames v. Birkenhead Docks, Railway Co., 7 Exch. 265 ; Eas- 20 Beav. 352. tern Union Railway Co. v. Hart, (/) Contract Corporation v. 8 Exch. 116. Tottenham and Hampstead June- (h) Gardner v. London, Chat- tion Railway Co., W. N. (1868) ham, and Dover Railway Co., 2 242. Ch. 201 ; Bowen v. Brecon Rail- (y) Hart v. Eastern Union way Co., 3 %. 548. COMPANIES. 53 company, so as to give the holders a right to restrain the c ^ a P' j- 1 - sale of the lands by judgment creditors, or any title to the proceeds of the land when sold (i). Where, accordingly, a railway company, within the terms of the Companies Clauses Act, being indebted in a sum of money to their contractors for work done, had granted to them as a security for the debt a charge upon their surplus land, it was held that the mortgagees of the undertaking had no charge upon such lands, but that the contractors or their assignees were entitled to have a receiver appointed (k). So also it was held that the mortgagee of the tolls of an undertaking cannot have an injunction and receiver against judgment creditors who are about to take under an elegit the lands of the company (I). The mortgage of a railway undertaking includes, it would seem, the interest of the company in the works, rails, and fixtures as incident to the working of the railway (m). A judgment creditor has been restrained at the suit of a mortgagee, from taking under his elegit the works, rails, &c, &c, as incident to the working of the railway (n). Under an elegit it seems that the chattels and rolling Ri s nt of i judgment stock of a railway company could be seized by the judgment creditor to creditor (o). But now under the 4th Section of the Kail- f a C C om- eS way Companies Act, 1867, 30 & 31 Vict. c. 127, made P an y- 30 & 31 perpetual by 38 & 39 Vict. c. 31, the plant and rolling yict. c. 127 ; 38 & 39 Vict. c. (i) Wickham v. New Brum- ham, and Dover Railway Co., 2 wick, &c, Railway Co., 1 P. C. 64. Ch. 201. (k) Gardner v. London, Chat- (n) Legg v. Matthieson, 2 Giff. ham, and Dover Railway Co., 2 Ch. 71. 201. (o) Russell v. East Anglian {I) Perkins v. Deptford Pier Railway Co., 3 Mac. & G. 125 ; Co., 13 Sim. 277. Bowen v. Brecon Raihvay Co., 3 (m) Legg v. Matthieson, 2 Gift'. Eq. 548 ; see Blackmore v. Yates, 71 ; see Gardner \. London, Chat- L. R. 2 Exch. 225. 54 COMPANIES. < -' l <>) 1 - ii. stock of a railway company may not be taken in execu- ti,.n (p) where the judgment on which execution issues is recovered in an action on a contract entered into after the passing of the Act, or in an action not on a contract com- menced after the passing of the Act ; but the person who has recovered any such judgmenl may obtain the appoint- ment of a receiver, and if necessary, of a manager of the undertaking (q) of the company, on application by petition in a summary way to the Court of Chancery (qq) ; and all money received by such receiver or manager shall, after due provision for the working expenses of the railway, and other outgoings in respect of the undertaking, be applied and distributed under the direction of the court in payment of the debts of the company, and otherwise according to the rights and priorities of the persons for the time being interested therein, and on payment of the amount due to every such judgment creditor as aforesaid, the court may, if it think fit, discharge such receiver or manager. AYhen a railway company, which had granted to another railway company a right of easement over their line in (») The rolling stock and plant commenced, the Act does not of a railway company, whose apply, and no receiver will be railwav has once been opened for appointed. Be Birmingham and traffic, are protected from being Litchfield Junction Bailway Co., taken in execution even when the 18 Ch. D. 155, so also where it traffic on the railway lias ceased, appeared that the undertaking in consequence of the, railway was worked at a loss, a receiver being in need of extensive repairs was not appointed, Be Waterford and there is no probability that d-c. Bailway Co. I. L. R. 5 Ch. the traffic will be resumed, 584. Midi,*,,'! Wagon Co. v. Potteries, (qq) See 3 Ch. xxxv. for rules Shrewsbury and North Wales under which application under Bailway Co. 29 W. R. 78. the Act are regulated ; see also (q) Where there is in fact no Be Beddgelert Bailway Co. 19 W. undertaking, as, for instance, R. 427. where the railway has not been COMPANIES. 55 consideration of a rent, had recovered judgment against the Cha P- H. J ° . ° Sect. 6. . defendant company for arrears of rent, a receiver of the — — tolls of the defendant company, appointed at the instance of the holders of debenture stock of the company, must pay the rent as working expenses before making any payment to the holders of debenture stock (r). The appointment of a receiver is the only remedy open Right of to the holders of mortgage debentures of a railway ; the creditor to right to foreclosure or sale is denied to them (s) ; but a have a sale - judgment creditor of a railway company may, under the provisions of 27 & 28 Vict. c. 112, s. 4, have an order for the sale of the railway (t). The position of a statutory, bond, or debenture holder of Statutory bondholder a company, under the Companies Clauses Act, or other as distin- Act, must be carefully distinguished from the position of a f rom a L mortgagee. A statutory, bond, or debenture holder is not mortgagee. entitled to an equitable charge on the tolls and traffic receipts of the undertaking, or to have a receiver appointed over such tolls and receipts, for the purpose of paying his claim («). In Russell v. East Anglian Railway Co. (x), where a receiver had been appointed by consent at the suit of a bondholder of a railway company, Lord Truro held that the order for a receiver ought not to have been made, and permitted the execution creditor to levy under his writ of fi.fa., against the goods of the company, notwithstanding the possession of the receiver (y) ; and there can be (r) Great Eastern Railway Co. magh Railway Co. dr., It., L. R. v. East London Railway Co., 44 2 Eq. 524 ; see Bowen v. Brecon L. T. N. S. 903. Railway Co., 3 Eq. 548, per Lord (s) Furness v. Caterham Rail- Hatherlcy. way Co. 25 Beav. 614. (z) 3 Mac. & G. 151. (t) Supra, p. 45. (y) See Bowen v. Brecon Rail- (?/) Imperial Mercantile Credit way, 3 Eq. 548. Association v. Newry and Ar- 56 COMPANIES. Chap. ll. no doubt that if the judgment creditor had in that Feet. 6. J case asked Leave to issue an elegit against the land of the railway, as well ;is a //./f judgment and execution againsl the company, may on b on d- behalf of himself and all other bondholders, file a bill for a holder. receiver (a) : but he is not bound to bring a suit on behalf of himself and all the others. A statutory, bond, or deben- ture holder, who has recovered judgment and execution against the company, is not a trustee of the monies he may recover under the execution for himself and all other debenture holders. If he gets paid under his execution by the company before any of the other bondholders inter- vene or come into competition with him, he may keep what he has got, and cannot be brought back again (b). The proper mode of giving effect to the non-priority clauses between bondholders in the Companies Clauses Act, would seem to be to let it operate after the bond- holders come into competition with each other, but not to the undoing of past transactions. The priority spoken of in the 44th section of the act is not priority existing by the bond, but priority to be acquired by execution ; pri- ority not between bonds which are no charges, at all, but between executions (c). Under The 42nd section of the Companies Clauses Act, limits Companies Clauses Act and diminishes the intrinsic rights of mortgagees, imposing (z) Imperial Mercantile Credit (b) lb. 543 ; see Fountain e v. Association v. Newry and Armagh Carmarthen Railway Co., 5 Eq. Railway, dx., It. L. R. 2 Eq. 539, 324, per Lord Hatherley. per Christian, L. J. (c) Ir. L. R. 2 Eq. 543, per (n) lb. 526, per Christian, L.J. Christian, L. J. COMPANIES. 57 on them the principle of non-priority (d). After a bill Clap. II. has been filed by all the holders of mortgage debentures - . , mortga- and a receiver has been appomted, a single mortgage gee s can- debenture holder, who has recovered judgment against ™ iori ty e as the company on his debenture, is not entitled to sue out aga ^* her execution on his judgment or otherwise than as a trustee for himself and the other mortgage debenture holders (e). The intent of the Act being that parity of possession shall be given to those who have parity of security, a mortgage debenture holder is not entitled as soon as he can recover judgment, to acquire an advantage over the other mort- gage debenture holders (/). In a case where a receiver had been appointed in a suit instituted on behalf of all the mortgage debenture holders of a company, and judg- ment was afterwards recovered against the company by one of the mortgage debenture holders, inquiry was directed whether it would be for the benefit of the deben- ture holders that any proceedings should be taken by the receiver for the purpose of making the judgment available for them (g). By the Mortgage Debenture Act 1865 & 1870, 28 & 29 Mortgage Vict. c. 78, ss. 41, 42, 45, 46, as amended by 33 & 34 ZtT" Vict. c. 20, in default of payment and interest, due on a mortgage debenture issued by a compauy under the Acts, a receiver may be appointed. The priority of mortgagees and bond and debenture stock Priority of mortgagees holders of a railway company against the company, and a nd bond- the property from time to time of the company, over all u ° K ] e e r rs 30 & other claims, on account of any debts incurred or engage- 31 Vlct - c - ments entered into after August, 1867, has been declared (d) Ir. L. R. 2 Eq. 534, per Co. 3 Eq. 541. Christian, L. J. (/) lb. 550. (e) Bowen v. Brecon Railway (g) lb. 551. 58 COMPANIES. Chap, u 1) V 30 & 81 Vict. c. 127. s. 2:5: which however provides Sect. 6. * , r - that tins priority shall not affect any claim against the company in respect of any rent-charge granted or to he granted in pursuance of the Lands Clauses Consolidation Acts, 1845 and 1860 ; or in respect of any rent or sum reserved by or payable under any lease granted or made to the company by any person in pursuance of any Act relating to the company, which is entitled to rank in priority to, or pari passu with, the interest on the mort- gages, bonds, or debenture stock. SECTION 7.— IN CASES BETWEEN VENDOR AND PURCHASER. The court will, upon a proper case being made out, interfere upon motion and appoint a receiver, in cases between vendor and purchaser. In a case, accordingly, where, on a bill impeaching a sale of land on the ground of fraud, and alleging gross inadequacy of consideration and undue influence taken of the ignorance of the vendor, the court was of opinion, from the materials before it, that it was hardly possible the transaction could stand at the hearing, a receiver was appointed in a suit instituted against the devisees of the party charged with fraud (/<). So also where it appeared that the defendants had obtained the conveyance of the legal estate from the plaintiff upon a strong suspicion of abused confidence, a receiver was appointed (i). In George v. Evans (/,-), where a bill was filed by a cestui que trust to set aside a purchase by a trustee (h) Stillwell v. JVilkins, Jac. Ves. 107. 282. (A) 4Y. &C. 211. (t) Hufjucnin v. Bailey, 13 BETWEEN VENDOR AND PURCHASER. 59 from him, the motion for the appointment of a receiver < JjP- l _ L was refused, though the trustee admitted the purchase of - the trust property ; the ground of the decision being, though the case was one of suspicion, that the court could not interfere till the purchase-deed was actually set aside, no clear evidence having been given to show that the pro- perty was likely to perish from the neglect or misconduct of the defendant. So also in a suit by the purchaser of a coal mine to rescind the contract on the ground of fraudulent representation, it being essential that the mine should be kept going, the court upon the application of the purchaser appointed a receiver and manager until the hearing (kk). If a fair prima facie case for the specific performance of a contract be made to appear, the court may interfere upon motion and appoint a receiver (I). In a case accord- ingly, where the bill alleged that the defendant had taken possession, that he was insolvent, and had attempted to sell and convey the estate, a receiver was appointed (11). So also where an agreement was entered into by the defend- ant for the sale of an estate to A., the purchase to be com- pleted and the purchase-monies to be paid on or before the expiration of five years, and in the meantime interest to be paid half-yearly by A., with power to the defendant to avoid the contract in the event of the interest being in arrear for twenty-one days ; and the defendant afterwards virtually agreed with the plaintiff, who had advanced monies to A., to enable him to pay arrears of interest, to extend the term for payment of the half-yearly interest, (kk) Gibbs v. David. 20 Eq. 962. 373. (U) Hall v. JcnJcinson, 2 V. & [l) See Kennedy v. Lee, 3 Mer. B. 125. 448; M'Cloud v. Phelps, 2 Jur. 60 BETWEEN YKMMik Chap. Ti. j m t notwithstanding the agreement re-entered as for a Sect 7. ° forfeiture, the court, upon a bill for a specific performance, appointed a receiver (m). So also on the application of the unpaid vendor of land to a railway company, a receiver was appointed (n). So also a receiver was ap- pointed on motion of the vendor, pending a reference to the Master as to title in a suit for the specific performance of a contract for the sale of an estate, which consisted of buildings and offices, on which it would be necessary to effect insurances, and of ornamental grounds which required considerable expenditure and attention (o). So also a re- ceiver may be appointed against a purchaser in possession who deals with the land in a manner contrary to former usage, or to the usual course of husbandry, at the suit of the vendor and before specific performance (p). So also, where, pending a suit instituted by a married woman against her husband, praying the execution of a post- nuptial settlement and for an injunction to restrain him from selling or encumbering, the husband sold the estate, comprised in the settlement, to the plaintiffs, for valuable consideration, and the plaintiffs thereupon filed a bill alleging that the settlement was void against them as being voluntary, and charging that the defendant was taking advantage of the legal estate to prevent the pur- chaser proceeding at law, and praying, amongst other things, a receiver, the court being satisfied, upon the pleadings, that the decree would be in favour of the plain- tiffs, and that the contract would be enforced, granted the (m) Dawson v. Yates, 1 Beav. E. 819 ; Ware v. Aylesbury and 301. Buckingham Railway Co., ib. (n) Munns v. Isle of Wight (o) Boehm v. Wood, 2 J. & W. Railway Co. 5 CL 414 ; see 236. Will in his v. Aylesbury and (p) Osborne v. Harvey, 1 Y. & Buckingham Railway Co., 21 W. C. C. C. 116. AND PURCHASER. 6] motion for a receiver (q) So also in an action to enforce Chap. n - Sect. 7. specific performance of a parol agreement to execute a bill of sale of personal chattels, the court being satisfied that there was evidence of immediate danger to the chattels in question, appointed a receiver (qq). In a case where a purchaser was discharged on a report that a good title could not be made out, and there was no fund in court to pay him his interest and costs, a receiver was appointed over the lands, with directions to apply the rents in discharge of his interest and costs (/•). SECTION 8.— IN CASES BETWEEN COVENANTOR AND COVENANTEE. The court will interfere in cases between covenantor and covenantee, and appoint a receiver, where a fair prima facie case is made out for the specific performance of the covenant. In a case, for instance, where a tenant in tail in remainder, upon an advance of money to him by the plain- tiff, had agreed to repay it after the death or failure of issue of his brother, the tenant in tail in possession, and had secured the money by a mortgage of the estate, and cove- nanted to levy a fine and suffer a recovery to give effect to the mortgage, but on coming into possession refused to perform his covenant, the court on bill for specific per- formance, appointed a receiver of the rents (rr). So also where the defendant, on an advance of money being made to him, agreed to execute a mortgage of certain lands, but afterwards refused to perforin his agreement, and there was an arrear of interest due on the money advanced, on (q) Metcalf v. Pulvertoft, 1 V. D. 302, 5 Oh. D. 741. & B. 181. (r) Hill v. Kirwan, 1 Hog. 175. (qq) Taylor v. Eckersley, 2 Ch. (rr) Free v. Hind, '2 Sim. 7. 62 BETWEEN COVENANTOR AND COVENANTEE. Chap. ii. 1 > 1 1 1 for specfic performance, the motion for a receiver was granted (s). So also where ill a case which took place between bhe years 1811 — 1817, when the incumbent of a 1m nelice might charge his benefice, an incumbent duly- charged his benefice with an annuity, and covenanted that if he should afterwards be preferred to any other benefice he would charge the same with an annuity to the same amount ; but afterwards, on being preferred to another benefice, refused to fulfil his covenant, the court held that the covenant constituted a good equitable charge, which attached on the new benefice, and granted a receiver (<). The court will interfere, when necessary, to prevent irreparable mischief from breach of covenant, although the property may have to be distributed in bankruptcy, and though the Court of Bankruptcy may be able to give the same relief (u). Where, accordingly, inspectors appointed by a deed of inspectorship, registered under the Bank- ruptcy Act, 1861, filed a bill against the debtor, alleging that he was dealing with his assets in a manner contrary to the covenants of the deed ; that they were unable to prevent his proceedings, and that irreparable mischief would result from them a receiver was appointed (x). SECTION 9.— BETWEEN TENANT FOR LIFE AND REMAINDERMAN. If the tenant for life does not keep down the interest of mortgages, and other incumbrances on the estate, the remainderman may apply to have a receiver appointed, (s) ShaJcel v. Duke of Marl- 553. borough, -1 Madd. 4(J.'5. (u) Miches v. Owen, 3 Ch. 821. t) Metcalf v. Archbishop of (x) lb. York, 6 Sim. 2-15 ; 1 M. & C. BETWEEN PARTNERS. 63 with power to keep down the interest, and remit to the °| a P- H- tenant for life the surplus rents (y). Where leasehold houses are vested in trustees on behalf of a tenant for life and remainderman, and the tenant for life is allowed by the trustees to receive the rents hut does not keep the houses in a proper state of repair according to the covenants in the lease, the court will at the instance of the trustees appoint a receiver of the rents for the purpose of enforcing the proper repair of the houses (z). Where there was a limitation of a term to raise por- tions for younger children, and afterwards the estate was limited to A. B. for life, with remainder over, and a decree had been made to sell the term for raising portions, and A. B., the tenant for life, would not produce the title deeds, so that it was impossible to make out a title, and proceed to a sale, an order was made for a receiver of the rents and profits of the estate {zz). SECTION 10.— IN PARTNERSHIP CASES. Where an application is made for a receiver in partner- Principles ship cases, the court is always placed in a position of very rece iver is great difficulty : on the one hand, if it grants the motion, a PP° mted - the effect of it is to put an end to the partnership, which one of the parties claims a right to have continued ; and on the other hand, if it refuses the motion, it leaves the defendant at liberty to go on with the partnership business at the risk, and probably at the great loss and prejudice of the dissenting party. Between these diffi- (y) 1 Sch. & Lef. 407; see 495 ; Shore v. Shore, 4 Drew, 501. Gresley v. Adderley, 1 Sw. 579 ; (z) Re Fowler, 16 Ch. D. 723. Bertie v. Lord Abingdon, '■'> Mer. (zz) Brigstock v. Mansel, 3 500 ; Powys v. Blagrave, Kay, Madd. 47. (i4 BETWEEN PARTNERS. Chap. ii. oulties it is not very easy to select the course which is 10. . best to be taken, hut the court is under the necessity of adopting some mode of proceeding to protect, according to the best view it can take of the matter, the interests of both parties (u). In granting or refusing an order for a receiver in part- nership cases, the court does not act on the same principles on which it grants or refuses an order for an injunction. In granting a receiver of a partnership, the court takes the affairs of the partnership out of the hands of all the partners, and entrusts them to a receiver or manager of its own appointment. In granting an injunction, the court does not take the affairs of the partnership into its own hands, but only restrains one or more of the partners from doing what may be complained of. The order for a receiver excludes all the partners from taking any part in the management of the concern ; the order for an injunc- tion merely restrains one of the partners who may have acted in breach of the partnership articles, or may have otherwise misconducted himself, from continuing to act in the way complained of (b). It therefore does not follow that because the court will grant an injunction, it will also appoint a receiver, or that because it refuses to ap- point a receiver, it will also decline to interfere by injunc- tion (c). In every case where complaints are made of breaches of articles, it must be seen whether they are urged with a view of making them the foundation of a (a) Madgwick v. Wimble, 6 (c) See Read v. Bowers, 4 Bro. Beav. 500, per Lord Langdale ; C. C. 441 ; Hartz v. Schrader, 8 si- lllnknu'.ji v. Dii/tan; In Beav. Ves. 31*7 : Hall v Hall, L2 Beav. 42; Sargant v. Bead, 1 Ch. D. 414, 3 Mac. & G. 79, where 600. although an injunction was (b) See HaU v. Hall, 3 Mac. & granted, a receiver was refused. G. 86. BETWEEN PARTNERS. 65 dissolution, or of a decree enforcing and carrying on the SJ^xJ" partnership, according to the original terms, and pre ■ venting, by proper means, those breaches recurring which have before happened by reason of the conduct of the parties (b). It is not according to the practice of the court, where it Receiver it not the object of the suit to obtain a dissolution ol pointed un- a partnership, but, on the contrary, to continue the part- i^Vbe " nership, to grant in the course of that suit, the appoint- sou s ht - ment of a receiver and manager (c). The court does not interfere for the management of a partnership, except as incidental to the object of the suit/ to wind up the con- cern and divide the assets (d) . If the court were not to adopt such a rule, it might be called upon to make itself the manager of every trade in the kingdom (e) . Cases, however, may arise in which a partner was so conducting himself, that unless a manager was appointed before the hearing, the partnership concern might in the meantime be destroyed. In such case the court would appoint an interim receiver and manager (/). A receiver would also, there is no reason to doubt, be appointed, although the dissolution of the partnership were not sought, in a case where the question was one of the receipt of money only, and where, if the money were allowed to be received by the parties, it would not be applied to its proper purposes, and thus at the hearing I I (b) Hall v. Hall, 3 Mac. & G. (d) Waters v. Taylor, 15 Ves. 86 ; see Goorhnan v. Whitcomb, 1 13. J. & W. 593. 0) Goodman v. Whitcomb, 1 (c) Goodman v. JVhitcomb, 1 J. & W. 592 ; Roberts v. Eber- J. & W. 580 ; Hall v. Hall, 3 hardt, Kay, 148. Mac. & G. 79 ; Roberts v. Eber- (f) Hall v. Hall, 3 Mac. & G. hardt, Kay, 148. 91. F ,;,; . >vi:i:\ P LRTNERS. ca»p. 11. there would be a failure of ju itice, unless tlio court inter- posed in the meantime In Const v. Harris (h), Lord Eldon said that a receiver might be appointed in a suit where a decree could be made for carrying ou the concern according to the terms of some specific instrument, which by the agreement of the parties was to regulate the mode of its being carried on, as will as in a suit for wholly putting an end to the concern; and a receiver was appointed in that case, al- though a dissolution was not sought by the bill. The case itself was a peculiar one. The proprietors of a theatre had executed a deed by which they covenanted and agreed that the profits of the theatre should be exclusively appro- priated to particular purposes, and that the treasurer for tlu' time being should be irrevocably directed so to apply the profits. Koine years afterwards the parties entitled to seven-eighths of the theatre entered into an agreement which provided in some respects for a different application of the profits, and otherwise affecting the rights of a party interested in the remaining one-eighth, who was not con- sulted on the subject; and upon the application of that party for the specific performance of the covenants and agre< ments of the original deed, a receiver was appointed. The receiver was a receiver wholly unconnected with the management. His office was purely a ministerial one. lie was to receive all that persons paid for their entrance to the tin litre, and to apply it according to certain terms and \. provisions which the parties themselves had agreed on (i). It is not r It is not n , in order to induce the court to appoint a receiver, that the action should expressly pray for a dissolution. It is enough that it be plain that it is , (rj) Hall v. Ha«,3Mac. & G. 90. (*) See Hull v. Hull, 3 Mac. & '(/,: T. 8 !:. 517. G. 90. BETWEEN PARTNERS. 67 necessary to put an end to the concern (k). If such be 9, hap \ I J" J L . Sect. 10. the case, the case stands upon precisely the same basis as if the action had been brought exclusively for the purpose of should the dissolution and the winding-up of the concern (I). The ^JJ^ 18 " court will, in all cases, entertain an application for a receiver, if the object of the suit is to wind up the partner- ship affairs, and the appointment of the receiver is sought ^.with that view. Thus in Shejyxtrd v. Oxenford (m), a bill was filed on behalf of himself and other shareholders, by a shareholder in the National Brazilian Mining Company, against the defendant, its sole director and manager, praying for an account of monies received and paid by the directors on behalf of the association, and of its debts, and the payment thereof out of the assets of the company, and for a division of profits among the shareholders. The bill also prayed for an injunction to restrain the defendant from selling the property, and for a receiver to get in the debts owing to the company, and all remittances made to it from abroad, and generally to conduct the business and affairs of the association, until the accounts should be taken. No dissolution was expressly asked for, but the whole object of the suit evidently was to wind up the company, and have its assets applied in liquidation of its liabilities ; and on a motion by the plaintiff for an injunction and a receiver, an injunction was granted, and a receiver and manager was appointed as prayed by the bill. The defendant, who had gone out to the Brazils after the bill had been filed, was appointed receiver and manager out there (n). Again, in Evans v. Coventry (o), the members of two societies, or rather, it would seem, of one society having ' X (jfc) Wallvorth v. Holt, 4 M. & (to) 1 K. & J. 491; C. 619. 00 lb. 501. (1) Hall v. Hall, 3 Mac. & G. (o) 5 D. M.&G. 911, reversing 89. 3 Drew. 75. i- 2 68 BETWEEN PARTNERS. Chap. II. two branches of business, viz.. a loan branch and an insu- Sect. 10. ranee branch, filed a l>ill for the purpose of having the rands of the societies made good by the defaulting directors, and of having the accounts investigated, the affairs of the societies wound up, if necessary, and their assets in the meantime protected by the appoint- ment of a manager and a receiver. It was proved that some of the funds had already been made away with by the secretary ; and a manager and receiver was appointed to protect what remained until the hearing of the cause, upon the ground that the plaintiffs had an interest in the funds in question, and that the funds were in danger of being lost. It does not appear very distinctly what the manager as distinct from the receiver was expected to do. The Vice-Chancellor refused the motion mainly on the ground that he could not take upon himself the manage- ment of such societies even until the hearing of the cause. The Court of Appeal did not allude to this. The mere The mere fact that the action may pray a dissolution is the action not a sufficient ground for the appointment of a receiver, ^solution un ^ ess a state of facts is shown as will, if proved at is not ^he hearing, entitle the plaintiff to a decree for dis- enough, un- less there solution (p). The court will not upon motion appoint 1)6 9. CtlSC ,,'lu. a receiver, unless it sees that there is an actual present dissolution arising from the acts of the parties, or that at the hearing it will dissolve the partnership. If there has ( been no misconduct, or no such violation of the articles as to entitle the plaintiff to a dissolution, a receiver will not be appointed (q). If, however, the court sees its way to a dis- solution at the hearing, there is a case for a receiver (/•). (p) Goodman v. Whitcomh, 1 J. (q) Baxter v. West, 28 L. J. & W. 589; Smith v. Jeyes, 4 Ch. 169. Beav. 503 ; Roberts v. Eberhardt, (r) Marsden v. Kaye, 30 L. T. Kay, 148. 197. BETWEEN PARTNERS. 69 If the case made stands in such a state that the court Chap. n - beet. 10. cannot see whether or not there shall he a decree for dis- - solution at the hearing, it will not take into its own hands the conduct of a partnership which only may he dissolved (s). If the partnership is a continuing one and may continue, a receiver will not be appointed. If partners agree upon a term for the partnership to continue, neither partner can dissolve the partnership until the end of the term. But if there he misconduct, the court can and will before the term expires appoint a receiver, and will, though disinclined to such orders, appoint a receiver on inter- locutory application, But the case then to be made must not be one raising merely a question whether there is or is not misconduct as between the partners. The court must, especially if there be no term, see its way to a dissolution at the hearing (t). The question whether there is or is not a term, is one proper at the hearing, and is not one that the court will try on an interlocutory application. If there is not sufficient to enable the court upon the interlocutory application to say that at the hearing it will appear there Avas a term, a receiver will not be appointed (u). The court will not, as a matter of course, appoint a Receiver „ , t . i . t n not ordered receiver of the partnership assets, even where a case tor in ev dissolution is made (x). The very basis of a partner- case wl ' , ' 1 ' e : 1 ( 'll>>G J 01* ship contract being the mutual confidence reposed in each dissolution . , . , .,, is made. other by the parties {y), the court will not appoint a (s) Goodman v. JVhiteomb, 1 J. (») Baxter v. West, 28 L. J. & \V. 592. Ch. 169 ; see S. C. at the hearing, (t) Baxter v. West, 28 L. J. 1 Dr. & Sm. 175; Bowker v. Ch. 169 ; see Waters v. Taylor, Henry, 6 L. T. N. S. 43. 15 Ves. 25 ; Bailey v. Ford, 13 (x) Harding v. Glover, 18 Ves. Sim. 495; 12 L. J. Ch. 482; 281; Fairbum v. Pearson., 2 Bowker v. Henry, 6 L. T. N. S. Mac. &. G. 145. 43. (.'/) Phillips v. Atkinson, 2 Bro. 70 BETWEEN PARTNERS. Chap. ii. receiver in a suit between members of tho partnership Si ■ t. 10. , „ ., . , » , firm, unless sonic special ground for its interference be established (z). It must appear that the member of the firm against whom the appointment of a receiver is sou-lit has done acts which are inconsistent with the duty of a partner, and are of a nature to destroy the mutual confidence which ought to subsist between the parties (a). Death or The death or bankruptcy of one of the members of a bankruptcy . „ . ,„ n^i • , . <> firm is not of itself a ground for the appointment ot a ' '* receiver as against the surviving or solvent partner or :I : "" l partners. The mutual confidence which the members of for .t re- ceiver, the firm reposed in each other at the date of the contract, and which formed the very basis of the partnership contract, is not as regards the surviving or solvent partner or partners affected by the death or solvency of one of the members of the firm (b). If a partner dies (c), or becomes bankrupt (d), a right to wind up the partnership concern and collect the assets is by law vested in the surviving (e), or solvent (/) partner or partners, as the case may be. Before the court will interfere and appoint a receiver, some breach or neglect of duty on their part must be established (g). C. C. 272; sue Peacock v. Pea- (e) Collins v. Young, 1 Macq. ', L6 Ves. 51. 385 ; see Phillips v. Atkinson, 2 (.] Hardmg v. Glover, 18 Ves. Bro. C. 0. 272. 281. (/) Freehold v. Stansfield, 2 (") Smith v. Jeyes, 4 Beav. Sm. & G. 487 ; Fraser v. Ker- 505 ; see Peacock v. Peacock, 1G shaw, 2 K. & J. 499. Vi ~. 51 ; Chapman v. Peach, 1 (g) Collins v. Young, 1 Macq. J. & W. 594 n. 385 ; see Baldwin v. Booth, W. N. (h) See' Phillips v. Atkinson, 2 (1872), 229. The Court of Pro- Bro. ('. < '. 272. bate will not appoint a receiver (c) Collins v. Young, 1 Macq. pendente lite against a surviving 385. partner, unless under very special (d) Fraser v. Kershaw, 2 K. & circumstances. Ilorrell v. Witts, J. 499. I Pr. &Div. 103. BETWEEN PARTNERS. 71 The reasoning on which the court proceeds in refusing Cha P- n - to appoint a receiver at the suit of one member of a firm against another, does not apply to the case of persons who acquire an interest in the partnership assets by events over which the parties, have no control. If a member of a firm dies, or becomes bankrupt, the partnership is determined, as far as his representatives or assignees in bankruptcy are concerned. The representatives of a deceased partner and the assignees of a bankrupt partner are not strictly partners with the surviving or solvent partner or partners ; but are only tenants in common with them to the extent of the interest which the partner whom they represent had in the partnership assets at the time of his death or bankruptcy, as the case maybe (h). It is consequently a matter of course to appoint a receiver when all the partners are dead, and a suit is pending between their representatives (?) ; or when such appoint- ment is sought by a partner against the representatives or assignees in bankruptcy of his late co-partner (k). Fraser v. Kershaw (I) is a good illustration of the doctrine. There one partner had become bankrupt; the share of the other partner had been taken in execution under aji.fa. for a separate debt, and had been assigned to his creditor by the sheriff. The creditor as the assignee of the sheriff of all the share and interest of the non- bankrupt partner, claimed the right of winding-up the affairs of the partnership, and to exclude the assignees of the bankrupt partner from interfering. But on bill filed (h) Ex parte JFilliams, 11 Ves. C. C. 272. 5, 6 ; Wilson v. Greenwood, 1 (h) Freeland v. Stansfield, 1-6 Sw. 480 ; Fraser V. Kershaw, 2 Jur. 792 ; 2 Sm. & G. 479. K. &J. 499. (1) 2 K. & J. 496. (i) Phillips v. Atkinson, 2 Bro. ceiver. BETWEEN PARTNERS. Chap. II. by them against the judgment creditor, the court granted Sect. lo. . . jo > t> — an injunction and appointed a receiver, holding that the right of the non-bankrupt partner to wind up the affairs was personal to himself and was not transferable, and did not, therefore, pass with his shares and interest in the partnership assets. Misconduct The ground on which the court is most commonly asked of partner a ground to appoint a receiver is where by the misconduct of a partner his right of personal intervention in the partner- ship affairs has been forfeited, and the partnership funds are in danger of being lost. Mere quarrels and disagree- ments between the partners, arising from infirmities of temper, are not a sufficient ground for the interference of the court (m). The due winding up of the affairs of the concern must be endangered to induce the court to appoint a receiver (n). The non co-operation of one partner, whereby the whole responsibility of management is thrown on his co-partner is not sufficient (o). Where, however, a partner has so misconducted him- self as to show that he is no longer to be trusted ; as, for example, if one partner colludes with the debtors of the firm, and allows them to delay paying their debts ( p) ; or is carrying on a separate trade on his own account. with the partnership property (q) ; or if a surviv- ing partner insists on carrying on the business and employ- er) See Goodman v. Whitcomb, 148 ; see Eowe v. Wood, 2 J. & 1 J. & W. 593 ; Chapman v. W. 556, where one partner de- Beach, ib. 594 n. ; Mavshall v. clined to advance more money to Colman, 2 J. & W. 26G ; Smith work a mine. v. Jerjes, 4 Beav. 504. (p) Estwick v. Conningsby, 1 («) See Goodman v. JVhitcomh, Vern. 118. 1 J. & W. 593; Smith v. J eyes, 4 (q) Harding v. Glover, 18 Ves. Beav. 505. 281. (o) Roberts v. Eberhardt, Kay, BETWEEN PARTNERS. 73 iuw therein the assets of his deceased partner (r) ; or if in clia P- n - ° . . Sect - 10 - the opinion of the court a case has arisen for the inter- position of the court to secure the interest of a deceased partner against loss (s) ; or where the partnership property being abroad, one of the partners goes off in order to do what he likes with it (t) ; or if the persons having the control of the partnership assets have already made away with some of them (») ; or if there has been such mis- management as to endanger the whole concern (v) ; or if one of the partners has acted in a manner inconsistent with the duties and obligations which are implied in every partnership contract (w) ; — in all such cases a receiver will be appointed. The unwillingness of the court to appoint a receiver at the suit of one member of a firm against another, being based on the confidence originally reposed in each other by the parties, the ground of the rule has no longer any place if it appear that the confidence has been mis- placed (x). Where accordingly a defendant, by false and fraudulent representations, induced the plaintiff to enter into partnership with him, and the plaintiff soon after- wards on discovering the fraud filed a bill praying that the partnership might be declared void and for a receiver, the court on motion ordered that a receiver should be appointed (y). (r) Madgwick v. Wimble, 6 v. Smith, 1 J. & W. 298 ; Hall v. Beav. 495 ; see Crawshay v. Hall, 3 Mac. & G. 79 ; see Maule, 1 Sw. 507. Chaplin v. Young, 6 L. T. N. S. (s) Baldwin v. Booth, W. N. 97. (1872), 229. (»") Smith v Jeyes, 4 Beav. (t) Sheppard v. Oxenford, 1 K. 505. & J. 4!) I. (x) See Chapman v. Beach, 1 (u) Evans v. Coventry, 5 D. M. J. & W. 594 n. & G. 911. (y) See Ex parte Broome, 1 (r) See Dc Tastet v. Bordieu, Hose, 69. cited 2 Bro. C. C. 272 ; Jeffreys 74 BETWEEN PARTNERS. Chap. it. There is a case for a receiver, even although there be 1 no misconduct endangering the partnership assets, if one partner excludes another partner from the management of the partnership affairs (#). This doctrine is acted on where the defendant contends that the plaintiff is not a partner (a), or that he has no interest in the partnership assets {b). In Hale v. Hale (c), where the defendant sought to exclude the plaintiff from all interest in the partnership assrts, and relied on illegality as a defence to the suit, a receiver was appointed. In that case the plaintiff and defendant had carried on the bitsiness of brewers for many years in partnership together. The plaintiff filed a bill for a dissolution, and the defendant then denied the plaintiff's right to any account or relief whatever, on the ground that he being a spiritual person was not competent by law to engage in any trading concern, and claimed the whole property himself. A receiver and manager was appointed on the ground that the defendant insisted on a legal objection as destroying all right of his co-partner to a share in the profits, although the plaintiff was only a dormant partner, and the defendant's management of the business was in no way complained of (d). (•.) See Wilson v. Greenwood, 1 («) Peacock v. Peacock, 16 Ves. Sw. 481 ; Goodman v. Whitcomb, 49 ; Blakeneyv. Dufav/r, 15 Beav. 1 J. & W. 592 ; Rowe v. Wood, 40. 2 J. & W. 558 ; Const v. Harris, (h) Wilson v. Green-wood, 1 Sw. T. & II. 525. A dissolution which 471, where the plaintiffs were takes place on the refusal of an the assignees of a bankrupt part- appointee under a will to become ner. See also Ckgcj v. Fish- a partner is not a dissolution wick, 1 Mac. & G. 294, win-re arising from the exclusion of the the plaintiff was the administra- appointee by the surviving part- trix of a deceased partner. ner, and will not therefore be a (c) 4 Beav. 369. foundation for a receiver. Ker- (d) See also Sheppard v. Oxen- shau v. Matthews, 2 Iluss. 62. ford, 1 K. & J. 492, where a BETWEEN PARTNERS. 75 Inasmuch as the court will not appoint a receiver Cha P- n - 11 Sect. 10. against a partner unless some special ground for doing so can be shown, it follows that in a firm of several members there is more difficulty in obtaining a receiver than in a firm of two. For the appointment of a receiver operating in fact as an injunction against the members, there must be some ground for excluding all who oppose the applica- tion. If the object is to exclude some or one only from intermeddling, the appropriate remedy is rather by injunc- tion than by a receiver (e). "Where a partnership is alleged on the one side, and Course of i-i in i . . -, court where denied on the other, and a motion is made for a receiver, the part- the court if it directs an issue as to partnership, or no denied' '* partnership, usually declines to appoint a receiver until that question is determined (/). Another case in which the court may be called upon to Receiver appoint a receiver, is where the partners have by agreement w^repart- divested themselves more or less of their right to wind up ° ers have ° r by agree- the affairs of the concern. In Davis v. Amer (g), for in- ment di- stance, the plaintiff and defendant on dissolving partner- themselves ship appointed a third person to get in the assets of the °* windiS- partnership, and agreed not to interfere with him. After U P- the agreement had been partially acted on, one of the partners died, and disputes arising between the executors of the deceased partner and the surviving partner, the latter got in some of the debts of the firm in violation of the agreement. On a bill filed by the executors of the deceased partner for an injunction and a receiver, the court on motion appointed a receiver, but declined to receiver was appointed, although (/) Peacock v. Peacock, 16 Ves. the legality of the partnership 49 ; CJiapman v. Beach, 1 J. & was denied. W. 594 n. ; Fail-hum v. Pearson, (e) See Hall v. Hall, 3 Mac. & 2 Mac. & G. 111. G. 79. (. 359. (g) Street v. A nderton, 4 Bro. C. C. 414 ; Murray v. Cockered, W. N. (1866), 223. (h) Smith v. Lyster, 4 Beav. 227. TENANTS IN COMMON. 81 life, the court appointed one of the disputants, who had an clia P- n. „ ,.„ , , . , . , Sect. 12. estate for hie, and another person nominated by the other parties, joint receivers of the whole estate (i). If a re- ceiver has been appointed for the benefit of two infant tenants in common, he will not be discharged as to the share of one of them who has attained his full age. The object of appointment having been to protect the pro- perty during the infancy of both, and the purpose for which the receiver was appointed not having therefore been fully accomplished, the application for his discharge should be delayed until both are of age (k). The one who since the appointment of a receiver has become adult, may, however, apply for the payment of his share to himself (I). If the interest in land in which parties take as tenants Tenancy in in common, is in the nature of a trade, a receiver will be whentne appointed or refused on the same principles as in part- J nter e stm x land is in nership cases. Mines, for instance, are to be considered tbe nature in the nature of a trade ; and where persons have different interests, it is to be regarded as a partnership ; and the difficulty of knowing what is to be paid for wages, and the expenses of management, gives the court a jurisdiction as to the mesne profits which it would not assume in other lands (m). There are two ways in which a mining concern may be viewed ; it may be a mining concern really held as pro- perty by parties who have acquired it for the purposes of trade, as in a case where an estate containing mines has descended from the owner to two co-heirs ; and such owners, though they did not acquire it for mining pur- (i) Ramsden v. Fawthorpe, 1 (!) lb. N. E. 389. (m) Jefferys v. Smith, 1 J. & W. (k) Smith v. Lynter, 4 Eeav.227. 298. 82 TENANTS IN common. Chap. ii. poses, ninv nevertheless agree to work the mines together Sect. 12. ' with their joml properly. That would be working the mines in partnership. There would be a partnership in the working though not in the hind. The other case would be one in which the whole property was intended to be used as a partnership concern. In either case a receiver may be appointed upon the same principles as in oilier partnership cases (n). SECTION 13.— IN THE CASE OF PARTIES IX POSSESSION OF REAL ESTATE UNDER A LEGAL TITLE. The Court of Chancery would not, at the instance of a In what ii ■ i i • i cases a person alleging a mere legal title against another party who j ■ t was in possession of real estate, and who also claimed to beappoin- hold by a like legal title, disturb that possession by ted by the * . . . Court of appointing a receiver. There being open to the plaintiff a ancery. ^\ inu \ adequate remedy at law, he had no equity to come to the court for relief. The court would not interfere with a legal title, unless there was some equity by which it could affect the conscience of the party in possession. There • might be cases in which the court would interfere to prevent absolute destructive waste, where the value of the properly would be destroyed, if steps were not taken, or where the contest lay between a person having a well established pedigree, and a person without any reasonable appearance of title ; but as a general rule, where one person was in possession of the rents and profits of an estate, claiming to be the holder by a legal title, and another person claimed to hold by a like legal title, the former could not be ousted in the Court of Chancery until that legal title had been finally determined at law (<>). The fact that (n) Roberts v Eberhwrdt, Kay, (o) Ewrl Talbot v. Hope Scott, L59, per Lord Hatherley. 4 K. & J. 112 ; Carrowv.Ferrier, POSSESSION UNDER A LEGAL TITLE. 83 the estates might be of great value made no difference in ^-.n. the principle : nor could the argument that immediate - injury would be occasioned in the loss of the rents and profits in case a receiver was not appointed be listened to. The court might be inflicting as much injury by granting a receiver as by withholding one (p). If the devisee of an estate obtained possession by the tenants attorning to him, he held the estate till some other person could show that he, as heir or otherwise, had a better right to posses- sion (q). Unless there were a case of collusion between the devisee and the tenants, in inducing them to attorn to him, there was no equity for a receiver (r). Nor was the fact that some of the tenants might not have attorned to the devisee in possession a ground for granting a receiver of such rents (s). In a case accordingly, where a bill was filed alleging that the plaintiff claiming a certain peerage was entitled to certain estates, as having been inalienably annexed to such peerage by Act of Parliament, and praying for a receiver of the rents and profits of the estate as against the devisee of the late holder of the peerage, who had got into possession of the estates a demurrer was allowed (t). So, also, in a case where a party was in possession of property under a will, which he had esta- blished against the heir at law in a suit to which the plaintiff was not a party, and the plaintiff claiming as devisee under a prior will, and impugning the validity of the will under which the defendant claimed, had recovered a verdict at law, but the verdict had not been confirmed by judgment, the court would not at the instance of the 3Ch. 720; Hitchen v. Bvrks, 10 (7) lb. 117. Eq. -IT! ; Parkin v. Seddons, in (r) Lb. I lit. Eq. 36. (s) lb. 120. (p) Earl Talbot v. Hope Scott, (t) lb. 96. 4 K. & J. II!). Q 2 84 POSSESSION Chap. it. plaintiff appoint a receiver, inasmuch as the possession of the defendant was not shown to have been obtained by violence or wrong, and he was in possession under the BanctioD of the court (u). The fact that the legal estate might be outstanding in trustees was immaterial to the question (■>■). The existence of outstanding terms made no difference as to the appoint- ment of a receiver, the course of the court being merely to put the outstanding terms out of the way, and not to treat them as introducing new equities (y). It was also immaterial to the question that the posses- sion might be vacant, and that the court might not be asked to turn anyone out of possession. The law looked on a person in possession of real estate as entitled to keep it till some one else would show a better title. Though the court would interfere to protect personal estate pending litigation as to probate, the case was different where real estate was the subject of contest (z). The fact that the party by whose decease the succession had opened might have been a lunatic did not affect the principle. Nor was any equity raised by the circumstance that the person who had been solicitor to the committee of the deceased lunatic was acting as the solicitor of the party who had got possession, and had induced the tenants to attorn to him, nor by the circumstance that some of the tenants had been induced to attorn by the party who had taken possession, granting them leases on very favourable terms (a). In what The Court of Chancery would, however, interfere with cases the (u) BainbrigcjR v. Baddeley, 3 Ch. 728, per Lord Hatlierley. Mac. & G. 413. (») lb. 729. (.,) lb. (a) lb. 720. (*/) lb. Carrow v. Ferrier, 3 UNDER A LEGAL TITLE. 8o the possession of a party holding under a legal title, by Cna P- H- appointing a receiver, if a good equitable case were made to appear. If the court was satisfied, upon the pleadings and chancery the materials it had before it, that the relief prayed by the wou r . ' L J J appoint a bill would be given at the hearing, and that it was neces- receiver against the sary, expedient, or equitable that the property in question legalestate. should be secured until the hearing, there was a case for a receiver (b). A receiver, accordingly, would be appointed against a party having the legal title, if a case of fraud were made out to the satisfaction of the court (bb). Where, for example, a man who had taken a lease of copyholds daring the widowhood of a woman who was entitled thereto for her widowhood, had concealed the death of the widow, and taking advantage of the loss of the court rolls, pretended that the premises were freehold, and had de- scended to him as heir, Lord Hardwicke granted a receiver ((■). So, also, in a case where a bill was filed impeaching a sale of land on the ground of fraud, and alleging gross inadequacy of consideration and undue influence, the court appointed a receiver in a suit instituted against the devisees of the party charged with fraud (cc). So, also, where a woman entitled to a life interest in certain real estates and a particular sum of stock, and a rentcharge issuing out of her husband's estates, fraudulently obtained a transfer of the stock, and sold it out, and afterwards assigned her life interest in the real estate and the rentcharge to her son for value, but with notice of the fraud, a receiver of the rents of the real estate, and the rentcharge so assigned, (b) Mordaunt v. Hooper, Ami). Yes. .">!). 311 ; Clark v. Dew, 1 R. & M. (c) Mordaunt v. Hooper, Ami.. 103; Bainbrigge.y. Baddeley, 3 311; but see Carrow v. Ferrier, 3 Mac. & G. 420. 3 Ch. 729. (/-/,) Hugueninv.Basley,lZVe (cc) Stilhcell v. Wilkins, Jac 10."» ; Lloyd v. Passingham, 16 282. 86 possession Qhap. H. was appointed al the suit, of the parties interested in the Set. 18. slock after her death (d). Another case in which the court would interfere and appoinl a receiver against parties holding under a legal title, was where trustees or executors had improperly managed the trust estate (<■). 'The disinclination of the Court of Chancery to appoint a receiver where the property was in possession of a party having the legal estate, was felt in those cases only in which the estate of the party in possession was prior to that of the parties in litigation. Where the right to the possession was the subject of dispute, and the plaintiff having an equit- able interest claimed the legal estate from the defendant in possession, the court would if it saw clearly that the plaintiff had the right, and that the ultimate decree would be in his favour, appoint a receiver. A receiver, accordingly, would be appointed pending a suit for specific perform- ance against a party holding under a legal title, if the court were satisfied that the decree would be in favour of the plaintiff, and that it was expedient or equitable that a re- ceiver should be appointed (/). So, also, and upon the same principle, where a person took a conveyance of a legal state, subject to equitable interests, if he did not satisfy, those interests, he had to submit to the appointment of a receiver (g). If, for example, the mortgagee of a legal estate, subject to an equitable rentcharge, refused to pay the rentcharge, a receiver would be appointed (/*). So also, where a judgment creditor had obtained possession of land under an elegit, a receiver was appointed at the suit of (,l) Woodyattv. Gresley, 8 Sim. (r. & War. Beav. 550. 276 ; Cullen v. Dean, &c. of OVER WHAT A RECEIVER MAY BE APPOINTED. 89 of the office are considered necessary to the due discharge chap. III. of the duties (/). There may be a receiver of the office of Master Forester of a Royal Forest (g). In Palmer v. Vaughan (h), the profits of an office of clerk of the peace having been assigned for the benefit of creditors, a re- ceiver was appointed pending the question as to the validity of the assignment. A receiver will be appointed over pensions which may Pensions. be lawfully assigned (i). There may be a receiver of a government pension for past services (k). There cannot, however, be a receiver of a pension granted as well to sup- port the grantee in the performance of future duties as for past services (/). A receiver will be appointed of heir-looms or of articles Heir-looms, specifically bequeathed by will (m). There can be no receiver of rates which are to be Rates, assessed at a future period, for until the assessment there is nothing to collect (w). The case of tolls is different from the case of rates. Tolls being a fixed payment and in the nature of a rent, there may be a receiver of the tolls of turnpike roads, or of canal or railway, dock or market companies (o). The appointment of a receiver of (/) See Palmer v. Bate, 6 of Marlborough, Set. on Dec. 421. Moo. 28 ; Hill v. Paul, 8 01. & (n) Drewry v. Barnes, 3 Euss. Fin. 307. 94 ; see Preston v. Corporation of {(j) Blanchard v. Oawthorne, 4 Yarmouth, 7 Ch. 655; but see Sim. 566. Gibbons v. Fletcher, 11 Ha. 251 ; (h) 3 Sw. 173. per Lord St. Leonards. (i) Heald v. Eay, 3 Giff. 467. (o) Knapp v. Williams, 4 Ves. (k) Noad v. Backhouse, 2 Y. & 429 n. ; Bumville v. Ashbrooke, C. C. C. 519. 3 Euss. 98 n.; Drewry v. Barnes, (I) Davis v. Duke of Marl- 3 Euss. 105; Potts v. Wwrwi.k borough, 1 Sw. 74, 71) ; see 2 and Birmingham Canal Co., Kav, Beav. 549. 142; Ames v. Birkenhead Docks, Earl of Shaftesbury v.Duh 20 Beav. 332; De JFinton v. 90 ove WHAT A RECEIVER Chap, in. a pui.iic undertaking which is carried on by trustees or others empowered by statute, does not supersede the powers of the Act or make the future management illegal, as being carried on by unauthorised persons. The man- agement remains in the hands of the trustees or others empowered by statute to manage it; a receiver does no more than take the rates, tolls, and taxes, and pay the expenses of the undertaking and the interest of the mort- gages, and then pay the surplus into court (p). Ships. A receiver may he appointed of the freight of a ship (7), and of the machinery of a steam vessel (r). So, also, a receiver may he appointed when an action of co-ownership is brought by the owner of one moiety of a vessel against the owner of the other moiety (s). In a case where the legal title to a ship was in question, and the plaintiff had no equitable as distinct from a legal title, a receiver was refused, hut an order was made. by which the legal proceedings for ascertaining the title were accelerated, and the court took possession of the ship, giving each party liberty to apply for the possession and use upon giving security to deal with her as the court should direct (f). Business <>i' A receiver may be appointed of the profits of the husi- solicitor. „ .. . ness of a solicitor (11). Mayor, <(■<-., of Brecon, 2(> Beav. 20 Beav. 350. 533; Lord Crewe v. Edleston, 1 (q) Set. on Dec. 423. D.& J. 93; Postlethwaitev. Mary- (r) Brenan v. Preston, 2 1). ( Harbour Trustees, W. N. M. & G. 831 ; 10 Ha. 334. (1869), 37; Munns v. Isle of (s) Re Ampthill, 5 Pr. & Div. Wight Railway Co., 5 Ch. 418 ; D. 224. see a.- to form of order, Re Man- (/) Ridgway v. Roberts, 4 Ha. ■ , and Milford Railway Co., 1<>(;. Set. on Dec. 422. («) Candler v. Candler, Jac. - p) Ames v. Birkenhead Docks, 22~>. MAY BE APPOINTED. 91 The question as to whether a receiver can he appointed Chap. Iil. of the profits arising from the fellowship of a college has Pellow- 10 A slaps, &c. been the subject of conflicting decisions. In one case (x), a motion for a receiver was refused with costs. But in a later case (y), the court held that there might be a receiver both of past and future appropriations in respect of the profits of a fellowship, the duties being so light that no questions of public policy could interfere with the validity of the assignment. So also a receiver has been appointed of the profits of a canonry of a collegiate church, to which no cure of souls belonged, but only the duty of a certain residence and of attendance on divine service, the perform- ance of which duty by the canon was of no benefit to the public (z). There cannot be a receiver of the profits of an eccle- Ecclesiasti- cal bene- siastical benefice, for a beneficed clergyman is prohibited fices. by the statute 13 Eliz. c. 20 from charging the fruits of his living (a). The statute of Elizabeth was repealed by the statute 43 Geo. 3, c. 84, which was passed in the year 1803, and so the law remained till the year 1817, when by the statute 57 Geo. 3, c. 99, the charging ecclesiastical benefices was again prohibited, and the statute of Eliza- beth was revived ; so that between the years 1803 to 1817 there was no law prohibiting a clergyman from charging his ecclesiastical benefice (b) ; and a receiver was accord- ingly, on several occasions in cases arising between those years, appointed over an ecclesiastical benefice (c). The (./) Berkeley v. King's College, ]>. M. & G. 1 ; Bee Long v. Storie, in Beav. 602. :: Deg. & Sm. 309. (//) Feistel v. A'/;"/".-- College, (l>) Metcalft v. Archbishop of ib. 491. York, 1 M. & C. .V>:3. (•.) Grenfellv. Dean and Canons (c) Silvery. Bishop of Norwich, <,/ Windsor, -1 Beav. 5 1 1. '■'> Sw. L12 n. ; Whitev. Bishopof (a) Hawkins v. Gathercole, 6 Peterborough, 3 Sw. In'.); Met- '•'•J OVEU WHAT A RECEIVEB Chap. in. policy of the statute 18 Eliz. c. '20, which was revived by 57 Geo. 8, c. 99, has not hern in any way affected by 1 & 2 Vict. c. 110. A judgment does not create a charge upon a benefice giving a right to a receiver under 1 & 2 Vict. c. 110. The judgment creditor of a beneficed clergyman is prevented by the statute of Elizabeth from suing in equity, to have his judgment made a charge under statute 1 & 2 Vict. c. 110, and cannot have a receiver appointed over the profits of the benefice (c) Property in It is not necessary, in order to authorise the court to forei tT ii parts. appoint a receiver, that the property in respect of which he is to be appointed should be in England, or indeed in any of her Majesty's dominions (d). Thus, persons have been appointed to receive the rents and profits of real estates, and to convert, get in, and remit the proceeds of property and assets, when such property is situate in Ireland (e), in the West Indies (/), in India (g), in Canada (h), in China (i), in Italy (k), in America (I), in New South Wales (})>), in Jersey (w). Although the court has no power of sending its officers to places beyond the jurisdic- calfex. Archbishop of York, 1 M. & (g) Logan v. Princess of Coorg, C. 553 ; Courand v. Hanmer, 9 Set. on Deer. 447 ; Keys v. Keys, Beav. 3. ib. ; 1 Beav. 425. (c) Hawkins v. Gathercole, 6 D. (/?) Tylee v. Tylee, Set. on M. & G. 1 ; Bates v. Brothers, 2 Deer. 449. Sin. & G. 509. (?') Hodson v. Watson, Set. on (d) Houlditch v. Lord Donegal, Deer. 448. 8 Bligh, 344. (k) Ilinton v. Galli, 24 L. J. (e) Houlditch v. Lord Donegal, Ch. 121 ; Dreary v. Darrein, Set. 8 Bligh, 344 ; Set. on Dee. 450 ; on Deer. 448. see 2 & 3 Will. 4, c. 33 ; 4 & 5 (I) Hanson v. Walker, Set. on Will. 4, c. 82. Deer. 448. (/ ) Bunbury v. Bunbury, 1 (m) Set. on Deer. 448. Beav. 336; Barkley v. Lord (n) Smith v. Smith, 10 Ha. Reay, 2 Ha. 308 ; Faulkner v. App. 71. Daniel, 3 Ha. 204. MAT BE APPOINTED. 93 tion to enforce its orders and decrees, a party to the cause Cba P- HI. who resists them will be guilty of contempt (o). A man will not, however, be appointed receiver of an estate which is out of the jurisdiction, unless he be within the reach of the court, or have submitted himself to, or be amenable to its jurisdiction (p). The course which the court usually adopts where an estate is in a foreign country or out of the jurisdiction, is to appoint a receiver in this country, with power, if it be found expedient, to appoint an agent, with the approba- tion of the judge, in the country where the estate is situate, to collect the estate and remit the same to the receiver in this country (q). The receiver or his agent will recover possession of the estate according to the laws of the country in which it is found (?•). The receiver will, when necessary, be empowered to sell lands abroad, according to a scheme approved by the judge (s). (o) Longford v. Langford, 5 L. Keys v. Keys, 1 Eeav. 425 ; Smith J. Ch. X. S. 60. v. Smith, 10 Ha. App. 71 ; Hinton (p) See Langford v. Langford, v. Galli, 24 L. J. Ch. 211 ; Set. 5 L. J. Ch. N. S. 60 ; Houlditch on Deer. 448. v. Donegal, 8 Bligh, 344 ; Carron (r) Smith y. Smith, 10 Ha. Iron Co. v. Maclaren, 5 H. L, App. 71. 436. (s) Tylee v. Tylee, Set. on Deer. (?) — v - Lindsay, 15 Ves. 91 ; 449. CHAPTER IV. WHO .MAY BE APPOINTED RECEIVEKS. Chap. iv. A receivek should, as a general rule be a person wholly Party to disinterested in the subject-mutter of the, suit, hut it is action. competent to the court, upon the consent of the parties, to appoint as receiver a person who is mixed up in the subject- matter of the suit, if it is satisfied that the appointment would be attended with benefit to the estate. In a suit accordingly to dissolve a partnership, one of the partners was appointed receiver (a). So also a retired partner who had advanced all the capital and was liable to the partner- ship debts, was appointed receiver (b). A party to the action will not be appointed receiver without the consent of the other party unless a very special ease is made out (c). But if the court is satisfied that the appointment of a party to the action would be beneficial to the estate, he will be appointed receiver, though the other party does not consent (d). In urgent cases, when the order has been made ex parte the plaintiff has been appointed receiver (e). So also on the application of an unpaid vendor of the property of a company in voluntary (a) Wilson v. Greenwood,! Sw. (d) Sargant v. Read, 1 Ch. D. 171, 483 ; Blakeney v. Dufaur, 15 600. Beav. 40, 44. (e) Taylor v. Eckershy, 2 Ch. (6) Hoffman v. Duncan, 18 D. 302 ; Hyde v. Warren, 1 Exch. Jur. 69. D. 309. < Re Lloyd, 12 Ch. 1). 151. WHO MAY BE APPOINTED RECEIVERS. 95 liquidation, and unable from insolvency to carry on its Chap. IV. works, the unpaid vendor was appointed receiver (/). A party to the action will not be appointed receiver unless upon his undertaking to act without salary (g). When a party to the cause has been appointed receiver he does thereby lose his privilege as such party in the cause {It). It is not according to the course of the court to appoint Trustee. a trustee receiver. A person on whom the character and duties of a trustee are substantially imposed, and who is directly connected with the management of the estate, cannot in general be appointed a receiver {%). The court on appointing a receiver looks to the trustee to see that the receiver is doing his duty. The cestui que trust, if he is to have a receiver, is entitled to the superintendence of the trustee as a check (A). The two characters of trustee and receiver are in fact incompatible, and in addition to this, the appointment of a trustee as receiver would be in violation of the fundamental rule of equity that a trustee cannot derive any benefit from the discharge of his duty as trustee (/). The court will even remove a receiver whose private interests are in conflict with his duties, though his acts have for the most part been for the general good of the property, and though a majority, both in number and value, of the incumbrancers, desire that he should be retained (m). if) Boyle v. Bettws Llantwil (i) Sutton v. Jones, 15 Ves. Colliery Co., 2 Ch. D. 726. 587. (. Mountford, 15 Ves. 445, 449. (c) Be Leeming, 20 L. .1. Ch. (/) Re Byicater's Estate, 1 .Fur. 550 ; Re Reynolds, 19 L. T. 311 ; N. S. 227 ; Brooker v. Brooker, 3 The Lord Chancellor <>f Ireland Sm. & G. 475. 102 MODE OF amp. v. of a receiver should be made in chambers (//). If the Where the application is in a cause, and it is the first application in application t | u , cailse f or t | u , appointment of a receiver in the place of should be L L made. a person already in possession, it must be made in open court, and cannot be made in chambers : but where the application is not an original application for the appoint- ment of a receiver in the cause, but is only an application 7 to supply the place of a receiver already appointed, it should be made in chambers (h). !,',! 'lit "of A plaintiff should indorse his writ with a claim for a rc- ^ Vlit - ceiver, where the obtaining it is a substantial object of the action (/). But a receiver may be appointed although not claimed by the indorsement of the writ (A). Appoint- The application for a receiver is usually made on motion, ment made . . a /7 on motion but the appointment may be obtained on petition (t). of petition. ^ n application for a receiver may be made to the court or a appliea- judge by any party. If the application be by the plaintiff, it receiver. ma y ^ e ma de either ex parte or with notice, and if it be by any other party, then on notice to the plaintiff and at any time after appearance by the party making the application (;»). An application ex parte for a receiver before appearance is irregular, unless a case of urgency be made to appear («). But if the case is urgent or there is evidence of immediate danger to the property in question, the application may be made on ex parte motion (o). (g) Blackborough v. Ravenhill, L. J. Ch. N. S. 207. 1G Jur. 1085 ; 22 L. J. Ch. 108. (m) Ord. (187f)) LIT. 4. (h) Grote v. Bing, 20 L. T. 124 ; (n) Caillard v. Caillard, 25 1 W. R. 80 ; 9 Ha. App. 50 ; Beav. 312. Booth v. Coulton, 16 W. R. 685. (o) Taylor v. Eckersley, 2 Ch. D. (i) Colebourne v. Colebourne, 1 302 ; Hyde v. Warden, 1 Exch. Ch. D. G90. D. 309 ; Gash v. Parker, 12 Ch. (k) Norton v. Gover, W. N. D. 294. In a proper case the (1877), 200. Court will on ex parte motion (I) See Bairibrigge v. Blair, 4 appoint a receiver on the death APPOINTMENT. 103 A receiver may under very special circumstances be chap, v. appointed even before service of writ in the action (p). Leave may be had in cases where the circumstances are urgent to serve the defendant with notice of motion for a receiver before the expiration of the time fixed for appear- ance. The notice of the motion must be served on the defendant personally (q), and the fact of leave having been obtained must be mentioned in the notice of motion (r). The order will be granted on affidavit of service of notice of the motion (t). The application for a receiver cannot be granted before appearance on notice of motion served personally, unless such service be by special leave of the Court («). Leave to serve defendant with notice of motion for a receiver before appearance does not include leave to give short notice of motion. Short notice of motion cannot be given without express leave for that purpose (x). The rule which requires previous notice to be served on a defendant who has not appeared is subject to an exception where the defendant has absconded to avoid service, and his residence is unknown (?/). So, also, it was under the old practice held to be subject to an exception where the defendant was out of the jurisdiction and could not be served (z). But inasmuch as under the new practice an of the former receiver. Re Stone, (») Bamsbottom v. Freeman, 4 I. R 9 Eq. 404 ; see Johnson v. Beav. 145. Bayley, Set. on Deer. 411. (as) Hart v. Tall; 6 Ha. 611. (p) H. v. H., 1 Ch. D. 276; (y) Bowling v. Hudson, 14 Set. on Deer. 410. Beav. 423 ; London and South- (7) Hill v. Rimmell, 2 M. & G. Western Bank v. Facey, 19 W. K OF Chap. V. Receiver appointed at any SJ rji- of the suit. Receiver appointed at hearing, though not prayed for. order may now be made for service of the bill on a party who is out of the jurisdiction (a), a receiver will not, there is reason to believe, be appointed before service of the bill, where a party whose interest is sought to be affected by the decree is out of the jurisdiction (&), unless his residence be unknown, or the circumstances of the case be urgent. The leave of the court, however, is necessary, it would seem, to serve personally a party out of the jurisdiction with notice of motion in the cause, although such party has been served with a copy of the bill and appearance has been entered for him (c). If a defendant has made an affidavit in the cause, although no formal appearance be entered, he will be considered to have appeared for the purpose of appointing a receiver (d). The application for a receiver may be made at any stage of the action, according as the urgency of the case requires it. Under the old practice a receiver was not appointed before decree, unless the bill prayed such appointment, and leave to amend would not in general be given (c). But although under the new practice, if the appointment of a receiver is a substantial object of the action, the writ should be so indorsed ; the indorsement may be amended under Ord. 1875, iii. 2, and upon such amendments the appointment of a receiver may be obtained (/). A receiver might under the old practice be appointed at the hearing, although not prayed by the bill, if the facts stated were sufficient to authorize the appointment, and the L. T. N. S. 763. (d) Vann v. Barnett, 2 Bro. C. C. 158. (e) Pure v. Clegg, 7 Jur. N. S. 1130, 9 W. R. 216. (/) Coleboume v. Colebourv,e, I Ch. D. 690, (a) Ord. X. r. 2 ; Morg. Ch. Ord. 457. (b) See titration v. Davidson, 1 R. &M. 484 ; Brown v. Blount, 2 R. & M. 83. (c) Green v. Pledger, 3 Ha. J 65 ; see Weguelin v. Lawson, 8 APPOINTMENT. 105 urgency of the case required it (g). A receiver might also Chap. V. under the old practice be appointed on motion after decree, in cases of urgency (It). A receiver, for instance, was appointed after decree in a case where a person not being a party to the cause had been so long in possession without accounting that there was danger of his acquiring an absolute title by adverse possession (i). So, also, a re- ceiver was appointed after decree in a case where the mort- gagee in possession had not shown clearly that anything was due upon his mortgage, and the next estate being a life estate, was in danger of being lost by the delay, and the possible inability of the first mortgagee to refund if he should be ordered to do so (k). So, also, a receiver was appointed after decree in a case where the application could not have been made at the hearing (I). So, also, a re- ceiver was appointed after decree in a case where it appeared by the report that the circumstances would at the hearing have entitled the party to a receiver (m). So, also, a receiver was appointed in a case where, after a decree for sale, the defendant by neglecting to bring in the deeds had prevented the plaintiff from obtaining the benefit of the decree (//). The application for a receiver might be granted after decree, although it had been previously refused, if a state of facts entitling the party to a receiver were made to appear on the proceedings in the cause (o). (K OF ( -' 1 ' :, i'' v - A receiver might be appointed after decree, although by the decree further consideration generally (p) } or the matters in question between the plaintiff and tho parti- cular defendant, were reserved (q). If no subsequent circumstances have occurred render- ing the appointment of a receiver necessary for the pro- tection of the estate or otherwise, a receiver would not, it would seem, be appointed after decree (r). Re CI Under the new practice a receiver may he appointed after s " judgment (s). In an action accordingly hy a creditor against a debtor, in which the plaintiff has obtained final judgment, the court has power, in order to satisfy the judgment, to grant equitable execution against the defendant by appointing a receiver upon motion in that action, although the writ may not have been indorsed with a claim for a receiver. It is unnecessary in such case to bring another action for the purpose (t). Receiver Before the hearing of the cause, the court will not hear not ap- a mo tion for a receiver founded upon evidence which has pointed before been taken in the cause (u). Under the old practice a defendant could not apply for a 1 on receiver before decree (x). But under the new practice a evidence in v ' L the cause, defendant may before judgment apply for a receiver (y) ; tion for" notwithstanding that the plaintiff has already served notice receiver f motion for the like purpose. In such a case one order may be made by defendant. ( ^ ffiZgg y Moore, 15 Beav. 544 ; Smith v. Covell, 6 Q. B. 175. Div. 75. v. Gwynn, 3 Atk. 689. (u) Lloyd v. Passingkam, 3 (r) Wright v. Vernon,^ Drew. Mer. 697. 121. (x) Robinson v. Hadley, 1 1 (»•) Anglo - Italian Bank v. Beav. 614; Hiles v. Moore, 15 Dames, 9 Ch. D. 286 ; see Bull v. Beav. 175. Bryant, 10 Ch. D. 153. (u) Porter v. Lopes, 7 Ch. D. (0 Salt v. Cooper, 16 Ch. D. 358. APPOINTMENT. 101 will be made on the two motions, but the conduct of the Chap. V. proceedings will in general be given to the plaintiff (z). The application for a receiver must be supported by Affidavits. evidence showing that the appointment is necessary (a). If the application is made before decree, the affidavits must be founded on the allegations in the statement of claim. If statements not founded on the allegations in the statement of claim are introduced into the affidavits, the court will not attend to them (b). Where the case made by the statement of claim fails, it seems that the plaintiff will not be allowed to rely as a ground for a re- ceiver, upon the equity confessed by the answer (c). If the application was made before answer, the practice formerly was that the plaintiff could rely on the admis- sions contained therein, and could not enter into evidence in opposition thereto ; but now, upon any application for a receiver, or to discharge an order appointing a receiver, the answer for the defendant is for the purpose of evidence on such application to be regarded merely as an affidavit of the defendant ; and affidavits may be received and read in opposition thereto (/). The person who is to fill the office of receiver is gene- Nomina- l-ally selected in proceedings in the judge's chambers, but C e°ver. l ° if both parties agree upon a proper person, the court will at once insert his name in the decree (g). Where, in con- sequence of the urgency of the case, an order was made (z) Sargant v. Read, 1 Ch. D. L. 674. 600. (/) 15 & 16 Vict. c. 86, s. 59. (a) See Middleton v. Dodswell, (g) Anderson v. Kemshead, 16 13 Ves. 269. Beav. 345 ; Powys v. Blagrave, (b) Dawson v. Yates, 1 Beav. 18Jur. 464; Ames v. Birkenhead 3C6. Docks, 20 Beav. 332. (c) Crcmen v. Hawkes, 2 J. & 108 MODE OF Chap, v. f or ( i lr appointment of a receiver ex parte, the plaintiff was appointed a receiver (//). ^ If the person to be Dominated receiver is not named in the oidcr, the appointment is made in chambers. For this purpose a copy of the order is left there, and a sum- mons to proceed thereon is issued and served on all parties interested in the usual manner (i). On the return of the summons, or at an adjournment thereof, the party having (he conduct of the proceedings (k) brings into chambers evidence showing the nature and value of the property over which the receivership is to extend, and the fitness of the person proposed by him as receiver (I). If the party proposed as receiver is objectionable, any person interested in the proceedings may propose that some other person be appointed. A stranger to the suit cannot, it may be observed, propose a receiver (m). The proposal must come from a party interested (w). The most fit person should be appointed without regard to the party by whom he has been proposed (o). In making the selection the circumstances of the case and the interests of all parties must be taken into consideration ( p) ; but (h) Taylor v. Eckersley, 2 Ch. motion. Hart v. Tulle, 6 Ha. D . 302 ; Hyde v. Warden, 1 Excli. 611 . D. 309. In Davis v. Barrett, 13 (I) See as to forms, Dan. Ch. L. J. Ch. 304, the defendant, a Forms, 1663. mortgagee, was appointed re- (m) Att.-Gen. v. Day, 2 Madd. ceiver. 246. (i) Ord. XXXY. rr. 15, 16. (n) lb. ; Bagot v. Bagot, 2 See as to the form of the sum- Jur. 1063. mons, Dan. Ch. Forms, 1659, (o) Lespinasse v. Bell, 2 J. & 1666. W. 436. (/,) Where a receiver had heen (p) Wood v. Hitchings, 4 Jur. appointed in two administration 858. If a married woman desires suits, the carriage of the ap- a receiver over her separate es- poiniin.Mii was given to the tate, she may appoint whom she plaintiff who first gave notice of pleases. An affidavit by her APPOINTMENT. 109 other tilings being equal, that is, supposing the parties Chap. V. equally interested, and that the persons proposed on both sides are unobjectionable, the person proposed by the party having the conduct of the proceedings is usually preferred (q). In the appointment of a receiver consider- able attention will be given to the recommendations of a testator (r). If the estate be in mortgage, the preference will be given to the person proposed by the mortgagee, unless there is some substantial objection to him, though the person proposed by the mortgagor may be more expe- rienced in the duties of the office. It was said to be an indulgence in the mortgagee to suffer the owner of the estate to appoint a receiver (s). A party to the cause may propose himself as receiver, if leave to that effect be given and embodied in the decree or order (t). If leave to that effect be not embodied in the decree or order, a party to the suit cannot propose himself (u). The judge in chambers can, however, give leave, if the question has not been disposed of in court. If the leave has been refused, a subsequent order to that effect can be obtained on summons at chambers (x). husband that the person proposed appointment of a receiver by the by her is unfit, cannot he attended first mortgagee, and the suit for to. Bagot v. Bagot, 2 Jar. 1063. the appointment of a receiver ((]) Wilson v. Poe, 1 Hog. was instituted by a second mort- 322 ; Dan. Ch. Pr. 1587 ; see gagee. Baylies v. Baylies, 1 Coll. 537; (!) Meaden v. Sealey, 6 Ha. Bordr. Tollemache, I X. Et. 177. 620 ; Chokes v. CooJces, 2 D. J. & (r) Wynnev. Lord X> wborough, S. 526 ; Set. on Deer. 411, 412. 15 Ves. 2*:;. (u) Doris v. Duke of Marl- (s) Wilkins v. Williams, 3 borough, 2 Sw. 118. Yes. 588 ; see Bord v. Tollemache, (x) See as to form of summons, 1 N. R. 177, where the deed Dan. Ch. Forms, 1661. contained a provision for the 1 ]() MODE OF Chap. v. A.ocordiiig to the old practice of the court, when the appointment of a receiver rested with the Masters, the settled rule and practice was not to entertain any objec- tion to the report of the Master which was not founded on principle (//). The court would not interfere with the discretion of the Master in the appointment of a receiver, unless some substantial objection could be shown to the appointment (z). Under the new practice the Court of Appeal acts precisely on the same principles which the court had acted on during the time when the old practice was in force, and will not entertain an application bringing in question the decision of the judge as to the most fit person to be appointed receiver, unless the appointment be open to some overwhelming objection in point of choice, or some objection fatal in point of principle (a). It is a substantial objection to the appointment of a receiver that he has an undue partiality for one of the parties (/>) ; but if an order be made without any objection on the part of any of the parties, by which liberty was given to one of the parties to propose himself as receiver, the question is one not of principle, but a question of dis- cretion under all the circumstances of the case ; and if the judge appoints one of them as receiver, the Court of Appeal will not interfere with that discretion (c). It is no objection to the appointment of a party to the suit as (//) Ley v. Ley, 25 L. J. Ch. (a) Ley v. Ley, 25 L. J. Ch. GOO ; Coolces v. Coolces, 2 D. J. 600 ; Coulees v. Cookes, 2 U. J. & & S. 530 ; see Blah way v. Blake- S. 530 ; Perry v. Orit ntal HoU h way, 2 L. J. Ch. N. S. 75. Co., 5 Ch. 421 ; Nothard v. (z) Oreuzev. Bishop of Lon 'on, Proctor, 1 Ch. D. 4. 2 Bro. C. C. 253 ; Thomas v. (b) Blakeway v. Blakeway, 2 Dawkin, 1 Ves. Jr. 452 ; Bowers- L. J. Ch. N. S. 75. hank v. Colasseau, 3 Ves. 164; (c) Cookes v. Cookes, 2 D. J. & Anon., ib. 515 ; Tharp v. Tharp, S. 530. 12 Ves. 317. APPOINTMENT. 1 1 I receiver, if leave to that effect has been given in the Chap. V. decree or order, that there may be disputes and differences between the parties (d). "Where a receiver has been appointed, the court will not remove him on the mere ground of his being an illiterate person, unless some other reason can be given, such as mismanagement, dishonesty, or incompetency to manage the estate (e). In pronouncing the decree the court may, either upon the Receiver on case stated in the bill, or upon that case and a petition con f esiso . presented by the plaintiff for the purpose, as the case may require, order a receiver of the real and personal estate of the defendant against whom the bill has been ordered to be taken pro confesso, to be appointed with the usual directions (/). Where a bill is taken pro confesso, no proceeding is to be taken, and no receiver appointed under the decree ; and no sequestrator under any sequestration issued in pursuance thereof, shall take possession of or in any manner inter- meddle Avith any part of the real or personal estate of a defendant, and no other process is to issue to compel per- formance of the decree without leave of the court to be obtained on motion, with notice served on such defendant or his solicitor, unless the court dispense with such service (). With the view of reducing the amount of the recognizance, part of the estate may be ordered to be paid into court for safe custody, and security be required only for the rest (q). With the same view the receiver may also be restricted from getting in mortgage debts (r). (A) Old. XXIV. r. 1. (p) Fisher on Mortg. 1, p. 380. (1) Mead v. Lord Orrery, 3 (q) Poole v. Wood, Set. on Atk. 237 ; Set. on Deer. 426 ; Deer. 426 ; Ex parte Clayton, 1 see Re Ward, 31 Beav. 1. Russ. 476 ; see Re Eagle, 2 Ph. (m) Ord. XL! I. r. 13. 201. («,) Ord. XXIV. r. 1. (»•) Fisher on Mori. 1, p. 380. (o) S.t. mi Deer. 426. APPOINTMENT. 113 It is not regular to take as security for a receiver an Chap. V. assignment of a mortgage belonging to him (s) instead of the usual security. A transfer of Government stock, however (t), and the security of a guarantee society (»), have been accepted as security for a receiver. Where a person resident in Ireland is appointed re- ceiver by the court here, the security taken is a judgment confessed by him and his sureties in the Court of Queen's Bench there hi favour of the Master of the Rolls and senior Yice-Chancellor here, and such judgment is duly docketed and registered there so as to give a lien on the real estates of the receiver and sureties (x). The sureties must be persons resident in England, even where the property to be collected is out of the country (y). Where the property of which a receiver has been ap- pointed has increased in value during the receivership, additional security has been required to be given by him (z). Upon any event, such as death or bankruptcy, happening which would prevent the recognizance being effectually put in force against them, an order will be made at chambers on summons directing the receiver to give a new- security (a). The court will not dispense with the usual security, even with the consent of the parties interested (b). But if the parties interested are competent to assent and agree to appoint a receiver of their own authority and not by the (s) Mead v. Lord Orrery, 3 (y) Coclcbwm v. Raphael, 2 Sim. Atk. 237. & St. 453. (t) Betagh v.Concannon, Smith (») Dan. Ch. Pr. 1585. on Rec. p. 17. ("■) Set, on Deer. 427. (u) Colmm-e v. North, 42 L. J. (b) Manners v. Fume, 11 Beav. Ch. 4. 30. (s) Set. on Deer. 127. I 1 I MODE OF Chap. V. authority of the court, the court may allow him to act < wit without recognizance (c). In a case where a testator had by his will appointed a receiver, stating that he intended by the appointment to give him a pecuniary benefit, he was appointed receiver on his own personal recognizance (d) \ and even in a case where all the parties were not competent to consent, the circumstance that the receiver had been employed by the testator to manage the estate was held to be a reason for dispensing with sureties and appointing him receiver on his own personal recogni- zance (e). In a late case, however, the court would not dispense with the usual security, some of the parties being not sui juris, and, therefore, incapable of giving consent (/). It is not unusual, where no salary is given to the receiver, to dispense with the security (g). So also security will be dispensed with where the party appointed receiver will alone have to incur expense (//)• Where the person proposed as receiver has been chosen, the amount of his security wall be fixed, and the persons proposed to be his sureties approved. The partners in trade of the receiver, persons in partnership together with him, and the solicitor in the cause, are usually rejected as sureties for a receiver (?). Interim I 11 ur g en * cases where there is evidence of immediate danger to the property, an interim receiver will be ap- receiver without ■ ecurity (c) Manners v. Furze, 11 Beav. (/) Tylee v. Tylm, 17 Beav. 31 ; see Bairibrigge v. Blair, 3 583. Beav. 424. (g) Gard/ner v. Blanc, 1 Ha. (,/) Hibbert \. Hibbert, 3 Mer. 381 ; see 24 W. R. 234. 681. (h) Hyde v. Warden, 1 Exch. (c) Carlisle v. Berkeley, Amb. D. 309 ; Boyle v. Bettws Llantwit, 599; -<•<■ Wilson v. Wilson, 11 Colliery Co., 2 Ch. D. 726. Jin 71)3. (/) Dan. Ch. Pr. 1587. APPOINTMENT. I 1 5 pointed without security for a limited period or until a Chap. V. receiver should he appointed under a reference to chambers for that purpose (k). After the approval of the person proposed as receiver Recogni- • « ZclDCG 01 and the persons proposed as his sureties, the receiver s rece iver solicitor prepares the draft recognizance, and engrosses ^ sure_ it after it has been settled by the Chief Clerk (I). The recognizance must then be taken before some person authorized to administer oaths in Chancery (m) ; and each surety must also make an affidavit that he is worth the amount for which he is bound after payment of all his just debts (n). If any doubt as to the sufficiency or solvency of the surety exist, the opposing solicitor has a right to attend at the time appointed for acknowledging the recognizance, and examine the sureties on these points (o). The recognizance and an office copy of the affidavit of the sureties having been left at chambers, a memorandum of the allowance of the recognizance is written in the mar- gin of the recognizance, and signed by the Chief Clerk (p). The recognizance is then sent from the chambers to the enrolment office in Chancery and a receipt taken for it from the Clerk of Enrolments (q). The recognizance must be enrolled within six months from the acknow- ledgment thereof (/•) ; but under special circumstances, Leave may be had from the court to enrol it nunc pro (Jc) Taylor v. Eckenley, 2 Ch. (o) Smith on Rec. 18. D. 302, 5 Ch. 1). 741 ; Cash v. (p) Dan. Ch. Pr. 1588 ; see a? Parh /-, 12 ( !h. D. 293. to form, of memorandum, Dan. Ch. (0 Dan. Ch. Pr. 1587. Forms, 1(571. (to) lb. { MODE ov chap. V. tunc (s), though not, it would seem, to the prejudice of intervening incumbrancers (/). The appointment of a receiver is not however completed by the enrolment of the recognizance. A further order must be made at chambers appointing the person approved at chambers receiver pursuant to the order, and fixing the periods at which he is to pass his accounts and pay the balances due from him thereon (w). To obtain this order a further summons which is issued and served in the ordinary manner is usually necessary (x). The order is drawn up by the Registrar in the usual manner, and com- pletes the appointment. Completion When the receiver is named in the order made on the of appomt- application to appoint a receiver, his appointment is receiver, usually made conditionally upon his giving security. A copy of the order is left at chambers, and a summons to settle the security is issued and served on the parties interested (y) ; and thereupon the amount of the security to be given will be settled upon the like evidence, and the recognizance will be approved, completed and enrolled in the manner before described {z). The Chief Clerk will then issue a certificate that security has Jbeen given, and this, when adopted by the judge and filed, completes the appointment, and no further order is necessary. On an application at chambers to appoint a receiver, the expense of a certificate in addition to an order may be saved by the recognizance being completed and enrolled before an order is drawn up. In such case the recognizance (s) Ord. XLTI. r. 12 ; Vaughan to form, Dan. Ch. Forms, 1672 ; v. Vaughan, 1 Dick. 90. Set. on Deer. 410. (i) Bothomley v. Fairfax, 1 P. (as) Dan. Ch. Pr. 1588. W. 340 ; Blois v. Betts, 1 Dick. (,/) lb. 336; Set. on Deer. 426. (z) Supra, p. 114; Dan. Ch. (u) Dan. Ch. Pr. 1588; see as Pr. 1588. APPOINTMENT. 1 1 7 should recite that the judge has approved the proposed chap. v. receiver subject to his giving security, instead of reciting the order directing a receiver to be appointed ; and the order should, after reciting that the recognizance has been enrolled, appoint a receiver and fix the days for hina to bring in his accounts and pay the balance (a). The costs incurred with reference to the completion of the security of the receiver and subsequent thereto, are in the first instance paid by the receiver, and will be allowed him in passing his first account (&). (a) Dan. Ch. Pr. 1589. as receiver, and afterwards, on (b) lb. ; see as to costs where discovering the nature of the an ignorant person had been in- office, refused to enter into the duced by the misrepresentations recognizance, Hunter v. Pring, 8 of the plaintiff to consent to act Ir. Ecp 102. CHAPTER VI. Chap. VI. Parties to the suil removed from pos- session. Parties re- moved from pOSSe:-:- i "11 by the ap- pointment. EFFECT OF THE APPOINTMENT OF AND POSSESSION OF A RECEIVER. In appointing a receiver the court takes possession of the property over which the receiver is appointed, hy the hands of its officer. A receiver duly appointed by the court is, from the date of his appointment, an officer and representative of the court (a), hut he is not legally clothed with that character, nor able to perform its duties until he has given security and his recognizances are perfected (&). When however, as will he done in urgent cases, an interim receiver is appointed for a limited time without security, he becomes an officer of the court and is legally clothed with that character from the date of his appoint- ment (c). The effect of the appointment of a receiver is to remove the parties to the action from the possession of the pro- perty. If at the time a receiver is appointed, a party claiming a right in the same subject-matter under a title paramount to that under which the receiver is appointed, is in possession of the right which he claims, the appoint- ment of the receiver leaves him in possession (d), but (a) Angel v. Smith, !) Ves. :>,:>,:> ; Aston v. Heron, 2 M. & K. 391 ; Owen v. Homan, 4 H. L. L032. //) // '/V/< n& v. Townst nd, 1 R. & M. 361 : Defries v. Creed, 34 L. J. Ch. (!07 ; Edwards v. Edwards, 2 Ch. D. 29E ('■) Taylor v. Eckershy, 2 Ch. D. 302, 5 Ch. 1). 741. ( Ch. Salt v. Cooper, 16 Ch. D. 546. D. 741. [mes v. Birkenhead, Docks, (*') Ex parte Evans, 13 Ch. I). 20 Beav. 350. 2W2. 120 EFFECT OF chap. VI. any way affect the right to the property. The court Righi nol in an action for a receiver deals with the possession theap- "^ only, until the right can be determined, if the right pointment. | u< t i u , subject-matter in dispute between the parties, or until the incumbrances have been cleared off, if the appointment has been made at the suit of an incum- brance)-. Where the right is the subject-matter in dispute, the receiver merely holds the property for whosoever may ultimately appear to be entitled to it. If the appointment has been made on the application of an incumbrancer, the court restores the possession to him from whom it was taken, after the charge has been cleared off. The title is in no way prejudiced in theory or principle by the appoint- ment (k). In Gresley v. Adderley (I), a receiver was ap- pointed to keep down the interest of the incumbrances affecting the estates of a minor ; and a mortgagee of a term of 100 years which expired shortly after the appoint- ment of the receiver, having applied for payment of the charge out of the rents so received, was refused, on the ground that when the court interposed to receive the rents beyond what was required for keeping down the interest on incumbrances, all the surplus rents after pay- ment of interest were received for the benefit of the heir. The same principle was acted on in Thomas v. Brig- stocke (m), where a mortgagee petitioned to be paid the rents of the mortgaged premises which had been paid into court by a receiver in a suit to which the mortgagee was (/.•) Sharp v. Carter, 3 P. W. sion after the date of his dis- 379 ; Skip v. Harwood, 3 Atk. charge, his possession is the pos- 5G4 ; Berlin v. Wood, T. & R. session of the party entitled : 345; Wells v. Kilpin, 18 Eq. Horlockr. Smith, 11 L. J. Ch. 157. 298. Where an order for the (I) 1 S\v. 573. discharge of a receiver has been (m) 4 Russ. 65. made 3 and he continues in posses- THE APPOINTMENT. 121 no party, lie having given notice to the tenants not to pay Chap. VI. their rents ; it was held that his notice to the tenants could not divest the possession of the receiver, which was the possession of those who claimed under the will of the mortgagor. So, also, the appointment of a receiver will not prevent the operation of the Statute of Limitations against the rightful owner out of possession not being a party to the suit (n) ; or interrupt the possession of a stranger so as to prevent the Statute of Limitations con- ferring a title on him (u). The possession of the court by its receiver is the pos- ^ session of all parties to the suit according to their titles (p). \ The appointment of a receiver is not for the benefit of \ the plaintiff merely, but for all other persons who may \ establish rights in the cause. Monies in the hands of a receiver are in custodia legis for whoever can make a title to it (q). The appointment of a receiver, however, is for the benefit of incumbrancers only so far as expressed to be for their benefit and as they choose to avail them- selves of it (r). If a mortgagee claiming under a title (n) Harrison v. Duignan, 2 cies of insurance, the direction Dr. & War. 295. Comp. Wrixon must be taken to be for the bene- v. Vize, 3 Dr. & "War. 123. tit of all parties who, in the (o) Groom, v. Blake, 6 Ir. C. L. result of the decision, should 401 ; 8 Ir. C. L. 432. See as to prove to be parties really inte- payment by a receiver taking rested, and the outgoings must the demand out of the Statute of be borne accordingly : Seymour Limitations, Whitley v. Lowe, 25 v. Vernon, 19 L. T. 58. Beav. 421 ; 2 D. & J. 704. (r) Gresley v. Adderley, 1 Svv. (p) Re Butler, 13 Ir. ( !h. 456 ; 579 ; Salt v. Lord Donegal, LI. & Bertrand v. Jh/rijs, 31 Beav. 43(5 ; G. temp. Sug. 91; Penney v. see Penney v. Todd, 26 W. R. Todd, 26 W. R. 502. Comp. 502. Piddock v. Boulthee, 16 L. T. (q) Delcmey v. Mansfield, 1 N. S. 837. A person who is not Hog. 235. Where a receiver is a party to the action is not en- ordered tn keep up certain poli- titled to apply by motion for 122 EFFECT OF Chap. VI. paramount to that under which the receiver'was appointed Buffers the receiver to pay away the surplus rents to the b< oeficial owner, or to apply them for purposes other than the satisfactiou of his security, he is not entitled to a retrospective account of rents and profits (s). Encumbrancers may or may not avail themselves of the order by applying to the receiver. If they apply to him they will he paid (heir interest, or if he refuses or neglects to pay them, they may complain to the court of such aeglect or refusal ; hut if they neglect to apply for the interest;, it is to he presumed that they are satisfied with the security they have both for interest and principal (t). The direction given by the court to the receiver to keep down the interest of the incumbrances, has not the effect of an appropriation of the rents and profits to that specific purpose. It is given without the least view to the inte- rests of the real and personal representatives. It is given partly in justice to the incumbrancers, that they may not be injured by the act of the court in taking possession of the nuts and profits to which they had a right to resort for payment of their interests, partly for the benefit of the estate itself, lest the incumbrancers, having their interest stopped, might be induced to resort to proceedings in- jurious to those who stand behind them (u). payment of money to him by a Russ. 64; Flight v. Comae, 1 i Lver appointed in the action, W. R. 664. even though hie claim is made in (t) Bertie v. Lord Abingdon, 3 I a debt properly pay- Mer. 567; Penney v. Todd, 26 able out of the funds in the re- W. I!. 502. Comp. Piddock v. ceiver'e hands: Brocklebank v. BouWaee, 16 L. T. N. S. 837. Railway Co., 12 Ch. (u) '■'> Mer. 567 ; see Flight v. I). 839. Camac, 4 W. R. 664. Com]!. ' ley v. Adderley, 1 S\v. Piddock v. Boultbee, 16 L. T. Thomas v. Brigstoch , 1 X. S. 837. THE APPOINTMENT. 123 When the party entitled to an estate over which a chap. VI. receiver has been appointed is ascertained, the receiver Receiver will be considered as his receiver (x). Where accordingly co " siderecl J as agent of a receiver was appointed in a suit for specific performance party en- at the suit of a vendor, and the purchaser was compelled to accept the title, it was held that the receiver must be considered as his receiver (y). In a case however where a receiver had been appointed in consequence of the in- ability of the vendor of an estate, sold under a decree, to make out his title, the court was of opinion that the ex- penses of a receiver ought not to be borne by the pur- chaser, and directed that they should be repaid to him out of a fund in court, together with the costs of the application (z). A receiver appointed by the court, being appointed on Loss arising behalf and for the benefit of all persons interested, parties f a °^ ^ " so _ to the suit (a), if a loss arises from the default of a licitormust be borne receiver appointed by the court, the estate must bear by the it as between the parties to the suit (&). The rents and profits of the estate over which a receiver Rents, &c. has been appointed are, as far as respects parties to the! suit, bound from the date of the order for the appoint- i ment (c). If a solicitor in the cause has received rents ' without the authority of the court, he must pay them over (x) Bothm v. Wood, T. & R. v. Blair, 3 Beav. 421 ; Bertrand 345 ; Re Butler, 13 Ir. Ch. 45(5; v. Dorics, 31 Beav. 436; Fms, ,- see Bigge v. Bowater, 3 Bio. C. v. Burgess, 13 Moo. P. C. 314; C. 365. see Neate v. Pink, 3 Mar. & G. (;/) Boehm v. Wood, T. & R. 47(5. 345; sec Be Butler, 13 Ir. Ch. (/*) Hutchinson v. Massareene, 45(5. 2 Ba. & Be. 55. ( ) WCleod v. Phelps, 2 Jar. (c) Lloyd v. Mason, 2 M. & C. i)(J2. 487 j Codrington v. Johnstone, I (a) Davis v. Duke of Mori- Beav. 520. borough, 2 Sw. I L8 ; Bainbriggi I 12 I POSSESSION OF Chap. vi. (to the receiver appointed therein, although he may not have been actually clothed with the character of receiver I at the time the rents were received. The solicitor cannot* ] he permitted to set up a lien on them tor his costs (c). J If the tenanl for life of a mortgaged estate with power to lr.'ise. exercise the power pending a foreclosure suit, and nt'ter the appointment of a receiver, the lessees are con- sidered as againsl prior incumbrancers, as tenants from year to year to the receiver (th. The order appointing a receiver is however an order for the benefit of the parties to the suit (e). The order on J tenants to pay their rents to the receiver a ttache s all rents I in their hands unpaid at the time of service. As to rents S which have been paid by them prior to the service, they [are not answerable (/). int. if. i- v When the court has appointed a receiver and the re- \ ceiver is in possession, his possession is the possession of nil the court, and may not he disturbed without the leave of sionof the the court (g). Where the court has taken possession of receiver. p r0 p er ty by its receiver, if anyone, whoever he he, disturb the possession of the receiver, it holds that person as guilty of a contempt of court, and liable to be imprisoned for that I) contempt (h). The court will not allow the possession of ^ its receiver to be interfered with or disturbed by anyone, («•) Wickens v.Tovmsend,! R. (J) Daly v. Blake, cit. Smith on M. 361. The retainer of his Rec. 27. debt by an executor against a (g) Angel v. Smith, 9 Ves. receiver appointed by the court 335; Hutchinson v. Massareenc, i- improper ; Davenport v. Moss, 2 Ba. & Be. 55 ; Aston v. Heron, J 4 W. R. 453. 2 M. & K. 391 ; Ames v. Bvrken- (,i) Lord Mansfieldv. Hamilton, head Docks, 20 Beav. 353 ; Defries ■l S. h. & Lef. 28. v. Creed, 34 L. J. Oh. 607. '/',/..- v. Creed, 34 L. J, (h) Fripp v. Bridgewater, dec, Ch. 60V Railway Co., 3 W. R. 35(5 j Lane RECEIVER. 125 whether claiming paramount to or under the right which pfliap. VI. the receiver was appointed to protect (?'). A man who thinks he has a right paramount to that of the receiver,, must, before he presumes to take any steps of his own ) motion, apply to the court for leave to assert his right J against the receiver (k). A receiver, indeed, appointed to "get in property part of which he finds in the possession of another receiver, ought not to take proceedings to deprive the latter of such possession without the authority of the court. He, or the parties at whose instance he was ap- pointed, should ask for the direction of the court how to proceed (/). It is immaterial that the order appointing a receiver J may have been improper or erroneous. It is not compe- / tent for anyone to interfere with the possession of a re- ceiver on the ground that the order appointing him ought not to have been made. It is enough that it be a subsist- ing order. Parties who feel aggrieved by an order of the court must take a proper course to question its validity, but while it lasts it must be obeyed (m). The court requires and insists that applications should "* be made to it for permission to take possession orStny pro- perty of which the receiver has taken, or is directed to take, possession. The rule is not confined to property v. Sterne, 3 Giff. 629; Ex parte (A) lb. ; Hawkins w.Gatlier cole, Hay mini, W. N. (1881), 115; 1 Drew. 17 ; Randfield v. Band- see as to form of order for com- field, 1 Dr. & Sm. 314 ; see as to mittal for obstructing a receiver, receiver in bankruptcy, Ex parte Set. on Deer. 1587. Cochrane, 20 Eq. 282. (i) Evelyn v. Lewis, 3 Ha. (J) Ward v. Swift, 6 Ha. 312. 475; Wadmore v. Trevanion, cit. (m) Russell v. East Anglian ib. 473; Russell v. East Anglian Railway Co., 3 Mac. & G. 117; Railway Co., 3 Mac. & G. 114; Ames v. Birkenhead Docks, 20 see as to receiver in bankruptcy, Beav. 353. /•;, partt Cochrane, 20 Eq. 282. 12G POSSESSION ()!•' Chap. V* actually in the hands of a receiver. The court will not permil anyone, without its sanction and authority, to inter- cept or prevent payment to the receiver of any property which lu' lias been appointed to receive, though it may not bo actually in his bands (n). The possession of a re- ceiver appointed over an estate is not affected by notice given by a mortgagee who alleges that his title is prior to that nmler which the receiver claims to the tenants to pay their rents to him (o). A receiver appointed by the court cannot, on the ground that his appointment has been improper, he called upon to interplead in a court of law; hut he may, if sum- moned, appear for the purpose of asserting his right, and denying the right of any other court to interfere with his possession (}>). If a receiver improperly submit to an order made by a court of law, and pay money in his hands contrary to the order of the court, the person to whom it has been paid will be ordered to repay it, and the receiver may be liable to pay the costs of the motion. The court never allows any person to interfere either with the money or property in the hands of its receiver without leave, whether it is done by the consent or submission of the receiver, or by com- pulsory process against him. All monies which come to the hands of a receiver by the order of the court, enabling him to receive, and entitling him to give a good discharge to the persons paying them, are monies belonging to the court, and the receiver can only discharge himself by paying them in obedience to the direction and order of /? ri) Ames v. Birkenhead Docks, (p) Russell v. East Anglian ^ il). Railway Co., 3 Mac. & G. 115, (a) Thomas v.Brigstock, 4 Rim 123. 64. receiver. RECEIVER. 127 the court. A judgment creditor cannot, without leave, jchap. VI. attach under a garnishee order under the Common Law ' Procedure Act, 1854, monies in the hands of a receiver, which have been directed to be paid by him to the judg- \ ment debtor (q). It is not necessary to wait for the pass- ing of a receiver's accounts before applying to the court to prevent him from misapplying monies in his hands (r). The rule that the possession of a receiver may not be what con- disturbed without leave, does not however apply, as far at ^^ least as third parties are concerned, until a receiver has ance . oi a been actually appointed, and is in actual possession. It is not enough that an order has been made directing the appointment of a receiver. Until the appointment has been perfected, and the receiver is actually in possession, a creditor is not debarred from proceeding to execution. The order appointing a receiver is for the benefit of parties to the suit. It does not affect third parties until the ap- pointment is completed and perfected (s). Nor is there disturbance of a receiver unless the order for the appointment of a receiver states so distinctly on the face of it, over what property the receiver is appointed, that it may be known what is the property that he is in possession of (t). Hence, where a receiver was appointed "of the income of the outstanding trust property in the pleadings mentioned," and the receiver entered into and remained in possession of the real estate for several years, and the tenants attorned to him, an application to restrain the legal owner from proceeding against the tenants with- out the leave of the court was refused with costs. The (fj) De Winton v. Mayor, dee., Ch. 607 ; Edwa/rds v. Edwards, of Brecon, 28 Beav. 200, 203. 2 Ch. D. 291. (r) 11). (0 Crow v. Wood, 13 Beav. («) Defries v. Creed, 34 L. J. 271. 128 POSSESSION OF Chap, vi. appointment should have been over the rents of the par- ticular property, and should have been followed by a direction to the owner to deliver possession, or that the tenants should attorn (»). To constitute disturbance of a receiver, it is not neces- sary that the party complained of should he about to turn him out of possession. The court will not allow the first step to be taken in an action of ejectment against a receiver, by any party, without an application having been first made to the court for permission to do so (./■). Parties who If {l t the time a receiver is appointed a party claiming a ° r™," 11 er right in the same subject-matter is in possession of the paramount right which he claims, the appointment of the receiver ceiver must leaves liim in possession of the right, and does not the court, interfere with the exercise of it (y). If, on the other hand, the claimant was out of possession, he must apply to the court before he institutes any legal proceedings affecting the possession which the receiver has acquired {z). The rule applies even to cases where the receiver has been appointed without prejudice to the right of persons having prior charges (a).. The rule applies to cases where a receiver has been appointed over the estate of a tenant in possession. The appointment of a receiver as against the estate of a tenant does not affect the rights of the landlord, but he will not be permitted to exercise those rights (c) lb. ; supra, p. 8. gagees of the company between (.v) Hawkins v. Gathercole, 1 the presentation of the petit inn Drew. 18. and the winding-up order : Ga/m/p- (y) Johnes v. Claughton, Jac. Jiell v. Compagnie de Bellegarde, 2 573 ; Evelyn v. Lewis, 3 Ha. 472 ; Ch. D. 181. Wells v. Kilpin, 18 Eq. 298. (a) Evelyn v. Lewis, 3 Ha. 472. The right of the official liquidator {a) Bryan v. Cormick, 1 Cox, under a winding-up order is 422 ; see Langton v. Langton, 1 paramount to that of receivers D. M. & Ci. 30. appointed on behalf of mort- RECEIVER. , 129 without first obtaining the leave of the court. Before Cha P- VL distraining he should come to the court and ask for authority to distrain, notwithstanding the presence of a receiver (b). Parties whose rights are interfered with by having a ' receiver put in their way, may on making a proper appli- cation to the court, obtain all that they may justly require (c). The court has the power, and will always take care to give a party who applies in a regular manner for the protection of his rights, the means of obtaining justice, and will even assist him in asserting that right and having the benefit of it (d). The proper course for a party to adopt who claims a right paramount to that of the receiver, or rather to that of the party obtaining the receiver, and is prejudiced by having the receiver put in his way, is to apply to the court for leave to proceed, notwithstanding the possession of the receiver, or to come in and be examined pro interesse ^ suo (e). The application may be made on summons by (b) Sutton v. Bees, 9 Jur/N. S. landlord has no priority over 456 ; see M'Donnell v. Clarke, 2 other creditors in the proceeds of Hog. 109 ; Walsh v. Walsh, 1 Ir. the sale: Sutton v. Bees, 9 Jur. Eq. 209. Where, however, a N. S. 456. receiver is placed over the estate (c) Angel v. Smith, 9 Ves. 335 ; . of an inheritor, or superior land- Bussell v. East Anglian Bailway lord, and the lands are occupied Co., 3 Mac. & G. 117. by under-tenants, the interme- (d) Evelyn v. Lewis, 3 Ha. 475 ; diate tenant may distrain the Hawkins v. Gathercole, 1 Drew, occupiers for rent, without any 17 ; Ex parte Cochrane, 20 Eq. order for the purpose. Furlong 282 ; Forster v. Manchester and on Land and Ten. 741. Where Milford Bailway Co., 49 L. J. Ch. a receiver is appointed of lease- 454. holds, and the landlord gives him (e) Hunt v. Priest, 2 Dick, notice of a claim for rent, but 540; Gomme v. West, ib. 472; takes no other steps, and the re- Anon., 6 Ves. 287; Angel v. ceiver sells the furniture, the Smith, 9 Ves. 335; Brooks v. 130 POSSESSION OF Chap. VI. motion or on petition (/), with notice (. Beav. 16 W. E. 928 ; Forster v. Man- 428; Potts v. Warwick and Bir- Chester cmd Milford Railway Co., mingham CanalCo., Kay, I 12. 4U L. J. Ch. 454. RECEIVER. 133 held that a receiver ought not to have been appointed, Chap, vi . leave was given at the same time to the execution creditor to levy, notwithstanding the appointment (u). In cases where the court is not satisfied that a receiver ought to have been appointed, the court may also, in order that the execution creditor may not suffer loss by the possession of the receiver, in case it shall appear in pro- ceedings taken by the creditor that his right ought not to have been interfered with by such possession, order that the receiver keep within the bailiwick for a certain period sufficient property to answer the demand ; or it will be ordered that the petitioner may levy 7 unless the amount of the demand be paid into the bank to the credit of the cause, within a week from the service of the order, the money to remain in the bank subject to the order of the court, and the receiver to be at liberty to pay it in (./•). If incumbrancers come in for examination pro interesse suo, and it turns out upon inquiry that their claim is made out, they are entitled to have the rents and profits which have been received and which are to be received by the receiver, applied in payment of their incumbrances, after paying the costs of the application (y). If there is a doubtful question, and the question to be tried is a pure matter of title, the court will give the claimant leave to bring ejectment, taking care, however, to protect the possession by giving proper directions (z). (») Russell v. East Anglian Tatham v. Parker, 1 Sin. & (i. Railway Co., 3 Mac. & G. 125 ; see 506; see IValsh v. Walsh, 1 Ir. Fowler v. Haynes, 2 N. R. 156. Eq. 209. (.<•) Russell v. East Anglian (z) Angel v. Smith, 9 Ves. 335 ; Railway Co., 3 .Mac. & C. 151, Brooks v. Greaihed, 1 J. & \Y. L53. 178; Empringham v. Short, 3 Ha. (y) Walkerv. Bell, 2 Madd. 21 ; 470 ; Re Butler, L3 Ir. ( !h, 457. UU APPOINTMENT OF chap. vr. it is not the course of the court, unless it is perfectly clear that there is no foundation for the claim, to refuse liberty in any case to try a right which is claimed against its receiver (a). In ii case where a prior incumbrancer had delayed too long in pursuing his remedies, the court refused his appli- cation that a receiver who had been appointed at the suit of a second incumbrancer should apply the rents according to their priorities, but leave was given to bring ejectment. The ground of the decision was that the prior mortgagee had no right to that relief by petition which he had sought, but had not followed up in another proceeding. But no costs were given against the prior incumbrancer (b). Where a receiver has beeu appointed over the estate of a tenant for life, the remainderman has a right immedi- ately on the death of the tenant for life to go into posses- sion without making any application to the court (c). To whom When money comes into the hands of a receiver thThands appointed in a foreclosure suit, and no particular direction of -. a re " has been given for its application, it belongs in the first ceivcr ap- D x L pointed in instance to the plaintiff who will be entitled to receive it on sure suit the dismissal of the bill (d). An order for payment may dismissal ^ e ma( l e on motion after the suit is out of court by the of bm - dismissal of the bill (e). Committal A man who disturbs or interferes with the possession of disturb- a receiver is guilty of a contempt, and is liable to be com- ancc of re- m ^ e d (/). Ill extreme or aggravated cases the court will for the purpose of vindicating its authority order a (a) EamdfieU v. Randjield, 3 213. D. F. & J. 772. (2. The attornment {(j) The attornment to a re- creates a tenancy between the ceiver appointed by the Court of tenant and receiver only, and Chancery constitutes a tenancy doesnot enure for the person who by estoppel between the tenant may ultimately he found to be and receiver which the court entitled to the legal estate, so as applies to the purpose of col- to enable him to distrain, ib. lecting and securing the rents (//) Supra, p. IK!, till ;i decree can be pronounced. (/') Dan. Ch. Pr. 1">!»1 ; see as taking care that the tenants shall to form of notice to tenant to 1-10 r<»\\ ERS AM» DUTIES 0ha P- v " the tenant should be served with notice of motion to attorn and pay within a limited time after the service of the order to he made on the motion ( /'). The person served may appear on the motion and inform the Court whether he is in possession as tenant or not (k). If he does not appear, the order will he made upon an allidavit of service of the notice of motion, orders, certifi- cate, and notice to attorn, and on proof by affidavit of the refusal to attorn (I). The order will he made without costs in cases where the tenant had reasonable ground for refus- ing to attorn {in). A copy of the order indorsed in the usual manner is then served personally upon the person thereby directed to attorn (n) : and upon production to the record and writ clerk of an affidavit of such service, and of an affidavit by the receiver of non-compliance, he will seal an attach- ment against the party in contempt. The attachment is prepared, issued, and executed in the ordinary man- ner (0). In cases where it does not clearly appear what is the nature of the interest of the person in possession of pro- perty, it is not necessary to make him a party to the suit. The court will upon the allegation that he is a tenant treat him as a tenant, and require him to attorn, unless he can satisy the court that he holds the possession in some attorn, Dan. Ch. Forms, 1675 ; as Shearwood, 19 Beav. 575 ; see as to form of attornment, ib. 1676. to form of allidavit in support of (j) See as to form of notice motion to attorn, Dan. Ch. Forms, of motion for tenant to attorn 1(179. and pay rent, ib. 1677. (m) Hobhouse v. Hollcombe, 2 (k) Reid v. Middleton, T. & R. Peg. & S. 208. Comp. Hobson v. 457 ; Hobhouse v. Hollcombe, 2 Shearwood, 19 Beav. 575. Deg. & S. 208. (n) Dan. Ch. Pr. 1591. (!) Dan. Ch. 1591 ; Hobson v. (o) Ib. OF RECEIVER. 141 other character (_/)). In Reid v. Middleton (q), it appeared cha P- U I - that the tenant in possession had not agreed to pay any specific rent, and an order was made in consequence, that an occupation rent should be settled by the Master, and that the tenant should pay the arrears and future payments of such occupation rent , If a judgment creditor be in possession under his judg- ment, the court cannot order him to attorn (r). The court will, on the petition of the lord, order the Delivery of steward of a manor who holds the court rolls as the lord's C0U1 agent, to deliver them up to the receiver (s). A receiver is entitled to all the rents in arrear at the R ents m date of his appointment (t), and to all the rents which arrear > &c - accrue during the continuance of his receivership ; an order may be obtained on motion or summons with notice to the tenant for payment thereof by him to the receiver, notwithstanding that he may not have attorned. The tenant will have to pay the costs of the application (it). A person who admits a sum of money to be due from him to the estate, cannot dispute the right of the receiver to collect it (r). (p) Reid v. Middleton, T. & E. their rents to the receiver is 455. served on them, the person en- (q) lb. titled to receive such rent and (/•) Da/vis v. Duke of Marl- arrears is bound from the date of borough, 2 Sw. 118. the order for a receiver, "when he (s) Rawes v. Rawes, 7 Sim. has notice of such, order. Ilollier 624; Windham v. Giubelei, 40 v. Hedges, 2 Ir. Ch. 376. L. J. Ch. 505. (") Hobson v. Shearwood, 19 (/) Codrington v. Johnstone, 1 Beav. 575; see as to form of Beav. 524 ; M'Donnell v. White, notice of motion for summons II ELL. 570; seeRussellv. Russell, Dan. Ch. Form?, 1680. 2 Ir. Ch. 574. Although 1he (r) JVoodv. Hitchings, 2 Beav. tenants are only responsible from 294. the time when the order to pay I 12 POWERS AN'h DUTIES Chap. VIL Although B receiver is entitled to all arrears of rent at the date of his appointment, produce which has been already separated from the estate before the date of the order, though not yet converted into money, does not belong to the receiver. Where, therefore, a manager was appointed of a "West Indian estate, with directions to receive and remit the rents and produce, the consignees were not ordered to pay into court the surplus monies arising from the produce of the estate which had been severed and shipped by the mortgagor to the consignees, but had not been received by them at the date of the order (w). Duty of "When the order directs that the receiver shall keep down receiver to take proper the interest of incumbrancer, or make any other payments, ceipts. Y ie must, of course, comply with that order, and the sums so paid by him will be allowed in his accounts. He must, however, take proper receipts from the persons to whom he makes such payments, and it must be remembered that in passing his accounts he will be subject to the rules to which all other accounting parties are subject (x), and he will only be allowed to discharge himself by affidavits as to those payments which are under 40s. ; for all other payments he must produce proper vouchers (y). Distress. After the tenant has attorned to the receiver, and so created a tenancy between him and the receiver (z), the receiver may distrain upon the tenant in his own name, and on his own authority, without leave obtained from the court (a). Before attornment the receiver must dis- ci/) Codrington v. Johnstone, 1 E. & B. 602. Beav. 520. (") Raincock v. Simpson, ci*-. (./■) Dan. CI). Pi-. 1598. 1 Dick. 120 ; Pitt v. Snowden, 3 ( y ) lb. Atk. 750 ; Hughes v. Hughes, 3 (z) See Evans v. Mathias, 7 Bro. C. C. 86; I Ves. Jr. 161 ; OF RECEIVER. 143 train in the name of the person having the legal Cha P- YIL estate {b). Leave that the receiver may distrain in the name of the person having the legal estate may always be obtained from the court on motion or petition (c). If there is any doubt who has the legal right to the rent, the receiver should make an application to the court for directions thereon ; but in cases where there is no doubt who has the legal right to the rent, the leave of the court to dis- train in the name of the person having the legal estate, does not seem to be necesary (d). If, however, the person having the legal estate is a trustee, and the receiver is a solicitor, the court is unwilling to give him power of instituting proceedings against a tenant for arrears of rent if the trustee is opposed to the proceeding. A reference to the Master as to the propriety of proceed- ing in the name of the trustee was refused in such a case (e). Instead of moving that he may have liberty to distrain in the name of the party having the legal estate, the re- ceiver may obtain an order on motion or summons, with notice to the tenant for payment, notwithstanding that he may not have attorned (/), or he may move that the Dancer v. Eastings, 4 Bing. 2; 120; Mitchell v. Duke of Man- 12 Moo. 34 ; Bennett v. Robins, Chester, 2 ib. 787; Hughes v. 5 C. & P. 370 ; sic Jolly v. Ar- Hughes, 1 Ves. Jr. 161 ; 3 Bro. buthnot, 4 D. & J. 239; Morton C. C. 85. See as to form of v. Woods, L. R. 3 Q. B. 668. A order, Set. on Deer. 437. receiver may employ a bailiff to (J) Pitt v. Snowden, 3 Atk. make a distress, Dancer v. Hast- 750 ; Brandon v. Brandon, 5 ings, 4 Bing. 2 ; 12 Moo. 34 ; Madd. 473. see Birch v. Oldis, Sail. & Sc 145. (e) Delia Cainea v. Hayward, (b) Hughes v. Hughes, 3 Bro. M'Clell. & Y. 272. ('. ('. L5 ; 1 Ves. Jr. 161. (/) Hobson v. Skearwood, It) (c) Shelley v. Pelham, 1 Dick. Beav. 57.". ; supra, pp. 139, 1 W. I A \ POWERS A.ND DUTIES Cba P- V1L tenants do attorn, and the distress may afterwards be made in his name. This will ho ordered on motion, and if the tenants oppose on the ground of the pendency of an action commenced before the appointment of the receiver for the same rent, the motion will he ordered to stand over until the action has been tried (g). In Brandon v. lU-n (//), it was said to he the practice for the receiver to distrain upon his own discretion for rent in arrear within the year ; hut as to rent in arrear for more than a year that an order from the court was necessary. Brandon v. Brandon was, it must he observed, a case in which the legal estate was in trustees, and a motion was made that the receiver might he at liberty to distrain in the name of the trustees, so that the statement as laid down by Leach, M.R., must perhaps he taken as referable to cases where the legal estate is outstanding, and there has been no attornment to the receiver. As a receiver is entitled to all arrears of rent, he may, it would appear, if there has been attornment, distrain without obtaining the leave of the court for all arrears accrued during the tenancy. An application for leave to distrain is made in chambers and ordinarily by summons, but it is not usual to draw up an order in such cases, the minute made by the chief clerk of the directions given being deemed sufficient (?'). In a case where a plaintiff upon whose application the receiver has been appointed, was proceeding both at law and in equity, the court would not give leave to the receiver (). If a receiver grants a lease for a longer period than three years, the lease will be binding as between him and the party who takes the lease, because the latter cannot be suffered to repudiate his agreement and say that the lease is invalid on the ground that it was not made by the person having the legal estate or power of leasing (c). As however between the lessee and the owner of the legal (v) M'Dermott v. Kealey, Jac. C'h. 303. 374 ; Symons v. Symons, 2 Y. & (z) Anon., ib. C. 1. (a) Shuffv. Holdway,Dm. Ch. (»•) l V"es. Jr. 138. Pr. 1597. (.<•) li'ijnncv. Lord Newborongh, (h) 29 Car. 2, c. 2. ib. 164. (c) Dancer v. Hastings, 4 (//) Durnford v. Lane, 2 Madd. Bing. 2 ; 12 Moo. 34. 148 POWEKS AND DUTIES Chap. VII. estate the lease lias, iitlhe absence of special circumstances, no binding force, even though it may have been made with the sanction of the judge. The powers of the receiver are limited to the receiving proposals, and making arrange- ments as to the leasing of the property, and granting the parol leases before referred to. He has no power to transfer the legal estate in the property over which he has been appointed receiver, nor can such a power be given to him by the judge (\ the judge, either absolutely or in case the parties differ ; or to save expense, the chief clerk endorses a minute of the approval on the summons, and adjourns the matter till the draft lease has been brought in for approval. Upon the draft lease, or a certified copy of the order (if any), approving the agreement, being left at chambers, a summons is taken out to settle the draft lease (o) ; or if no order has been drawn up, an appointment for this purpose is given. The summons or appointment is then served on the parties interested. The draft lease is then settled either by the judge or his chief clerk, with the assistance, if necessary, of one of the conveyancing counsel. The draft is then engrossed, and an affidavit verifying the engross- ment of the lease, and of the counterpart (if any), is brought in, and the chief clerk signs a memorandum of allowance in the margin of each engrossment. An affidavit is then made verifying the engrossment with the draft as settled. A copy of the affidavit is left at chambers, with the engrossment and draft (p). The chief clerk then signs the memorandum in the margin of each engrossment, and issues his certificate that the lease has been settled, or if an order approving the agreement has been drawn up, an order is made approving the agreement and the lease. TLe certificate is completed in the usual way (q). Dan. Ch. Forms, 1070, 1071, verifying engrossment of lease 1685. and counterpart, ib. 1073. (o) See as to form of summons (q) See as to form of certificate to settle draft lease, ib. 968, of settlement of lease, ib. 1075 ; L072. as to minutes of order approving (p) See as to form of amda\ it the agreement and the lease to OF RECEIVER. 151 A receiver appointed by the court with a general cba P- VIL authority to let the lands from year to year, has thereby *°™™ £ to also an implied authority to determine such tenancies by gi ve notice regular notices to quit (r). In Mansfield v. Hamilton (s) to qiut- Lord Redesdale said that the tenants of an estate being under the circumstances of the case tenants from year to year to the receiver, he would not turn them out without notices to quit. If a tenant hold on after regular notice to quit given to him by a receiver, the Court will give the receiver leave to sue the tenant for double the yearly value of the premises, under the 4 Geo. 2, c. 28, s. 1 (t). As a general rule, a receiver must do no act which may Receiver o _ ^ must not involve the estate in expense without the sanction of the involve court. It is not proper for a receiver to defend actions expense, which may be brought against him without the sanction of the judge (u). In a case where a receiver had, without the authority of the court, defended an action arising out of a distress made by him upon a tenant of the estate for rent, and was unsuccessful, the court refused to allow him his costs of the action (v). But if he defends an action brought against him successfully, without putting the estate to the expense of an application to the court, which he might have made for his own benefit, he has the same right to be indemnified as if he had applied to the court (w), be issued in pursuance thereof, (u) Anon., 6 Ves. 287 ; Swaby [} K 1076. v. Dickon, 5 Sim. 029. The re- (r) Doe v. Read, li> East 01 ; ceiver should nut wait to apply He v. Barry, Jon. & C. 10G ; for leave to defend an action till Wilkinson v. 5 Burr, just before trial. Anon., Ves. 2697 ; see Jones v. Phipps, L. R. 286. 3 Q. B. 57-'. ('') ' s '"'"'';/ v - Dickon, 5 Sim. (s) -l Soh. & Lef. 30. 629 ; see R Montgomery, 1 .Mull. (t) Wilkinson v. Colley, 1 Burr. 419. (w) Bristowe v. Needkcm, 2 152 POWERS AND DUTIES Chap. VII. Nor can a receiver bring ejectment without the leave of the court (.c). A motion, however, on the part of tho tenants of an estato to restrain a receiver from doing acts which are within his authority, will be rejected with costs, as they have no sufficient interest to support it (//). Power o! A receiver may lay out small sums of money in custom- to repaira. ary repairs, or may allow the same to tho tenant, but ho may not apply monies in repairs to any considerable extent without a previous application to tho jndge (z). It appears to havo been formerly tho rule that a receiver could not lay out any monies on the estate at his own dis- cretion and without the leave of tho court (a). Tho rulo is not so strict now as it formerly was, but, as a general rulo, a receiver should not, it would seem, expend at his own discretion, more than 30L a year without tho sanction of tho jndge (/>). If, however, more has been expended by him than a receiver is authorised to do at his own discre- tion, tho course of tho court is to direct an inquiry into the circumstances of the expenditure, and to allow tho amount Pli. 190- If the possession of a 563 J IVatcrs v. Taylor, 15 Ves. tenant under the receiver is dis- 25. turbed, and no application is (") Fletcher v. Ikxkl, 1 Ves. made to the emit to prevent Jr. 85 ; Morris v. EVme, ib. 139 ; thai disturbance, the tenant is see Tempest v. Ord, 2 Mer. 56. entitled to the costs of protect- (/>) Dan. Ch. Pr. 1698, n. tag his <»wn possession. Miller Where the amount proposed to v. Elhms, 'A L. J. Ch. 128. be expended by the receiver is (r) Wynne v. Lord New- small, the sanction of the judge borough, 1 Ves. Jr. 164 ; 3 Bra will be given on production to the ('. ('. NT; Wardv, Swift, 6 Ha. chief clerk of a letter from the 312; see Mansfieldv. Hamilton, receiver stilting the propriety of i> Sell. & he!'. 28. the intended expenditure, and (//) Wynne v. Lord Nev;- the maximum amount to. be borough, 3 Bro. C. C. 87. laid out, ib, (:.) Att.-Gen. v. Vigor, 1 1 Ves OF RECEIVER. 153 bo expended, if upon inquiry the expenditure has been Chap. VI1 - reasonable, and be found to Lave been beneficial to the estate (c). Since the 15 & 1G Vict. c. 80, application as to repairs aroto the judge in chambers, where the matter is inquired into without previous order before the repairs unautho- rised to be done (d). If from their amount, or the circumstances under which the monies for repairs are claimed, the receiver feels any difficulty in allowing them, he should apply to tho plaintiff's solicitor to obtain the sanction of the judge. In order to obtain it, the plaintiff's solicitor takes out a summons to the effect that the receiver appointed in the cause may bo directed to execute the repairs specified in tho affidavits, and to expend monies not exceeding a certain specified sum of money, the estimated cost thereof, and that ho may bo allowed the amount he may so expend in passing his accounts in the cause. The summons is supported by evidence that the tenants aro not liable to do the repairs, that the repairs should bo made, and that the amount proposed to be expended is fair and reasonable. Tho order is drawn up by tho registrar in the usual way. An order may bo obtained in chambers that the re- Various ap- ceiver should cut and sell timber, and employ it, if neces- !,''',' sary, in repairs (e). Tho court, before giving liberty to JJJg"^ cut timber for repairs, will direct inquiries (/). Where estate, there is a receiver, a sale of timber is generally under his direction (fj). (c) 111 nut v. Clitherotv, <"> Yes. the receiver liberty to expend 799; Att.-Gen. v. Vigor, 11 Vea. monies in repairs, Set. on 563; Tempest v. Orde, 2 Mer. Deer. 438. 56. Comp. Re Lcmgham, t I'll. (') Set, on Deer. 439. 209. (J) ll>. ('/) See as to order giving (>!) lb. 15 I POWERS ANIi DUTIES Chap. vii. .\ receiver may obtain an order to grant a license to win Mini gel clay and brick earth on the estate, and manu- facture the same into bricks (//). Equity Where the estate of a stranger has come into the pos- Bession of a receiver in the cause, and has been held with I '., „ the acquiescence of such of the parties to the suit as were possession not U nder disability, and no objections have been raised i v or ' on behalf of any of the parties under disability, the trans- action is binding on the parties ; and the receiver in the cause will be ordered to pay the arrears of rent, and will be held responsible for dilapidations, the amount of which particulars shall be ascertained upon inquiry (i). This will be ordered on petition of the owner of the estate, though not a party to the suit (j ). Lcs co of If after a receiver has been appointed, a person has s i on entered into an agreement with a receiver to take the "' "" '."' ve '' lease of a farm, an action need not be brought to restrain restrained ° ! "- the lessee from committing waste. The court will, on the nutting , . . . waste. application of the plaintiff m the cause, grant an injunc- tion on motion in a summary way, though he was not a party to the suit (k). An incumbrancer on an annuity which a receiver in the cause was ordered to pay to a lady, was refused an order for the payment of the annuity on petition. The incum- brancer not being a party to the suit, the court held that a bill must be filed (I). Duty of The receiver is the officer upon whom the performance leaseholds, of the obligations imposed by the possession of the land is (h) Set. on Deer. 439. (k) Walton v. Johnson, 15 (t) Neate v. Pink, 15 Sim. Sim. 352 ; see Casamajor v. 452 ; 3 Mac. & G. 484 ; eomp. Strode, 1 Sim. & St. 381. Brocklebank v. East /.'union Rail- (I) Wastell v. Leslie, cited 15 , Co., 12 Ch. D. 839. Sim. 453. OF RECEIVER. 155 devolved. A receiver over leaseholds is bound in the first cha P- VH. place, out of the sub-rents, to discharge the head-rent where the right of the landlord is unquestionable and un- disputed, without an order from the court for that pur- pose. If in consequence of his default the landlord is compelled to institute proceedings for the recovery of the rent, the receiver is held liable for costs, if rents have reached his hands. The rents should be, in the first place, appropriated in payment of the head-rent. When that is discharged, whatever surplus remains should be distributed according to the interest of the parties in the cause, and the order of the court. If the receiver pursues a different course, and if in paying away the rent received he choose to speculate upon obtaining other funds wherewith to pay the head-rent, he does not act in accordance Avith the order of the court, and will be compelled by the court to pay the arrears of head-rent (;»). If any dispute or uncertainty as to the amount of rent due to the head landlord exist, the safer course is to apply for a reference to ascertain the amount ; or the receiver may wait until the landlord makes an application on the subject, when he should appear by his solicitor, state the fact, and have the order shaped accordingly («). When the receiver is informed by the tenants that the Duty of defendants have interfered with the rents, it is his duty to when'tiie move for an attachment : and it is sufficient if he swear * enai \ te a '' Q interfered that he had the information from the tenants, and that wit h. he believes it (o). The interference of the owner of the inheritance with the rents does not exempt the receiver from being charged with the whole amount, but he must (m) Balfe v. Balfe, 1 Ir. Ch. (v) lb. 365. (o) Anon., 2 Moll. 499. 150 POWERS AND DUTIES Chap. VII. diBoharge himself by showing what the owner of the in- heritance received, or hindered him from getting (jj). Duty of xiio receiver ought not to intcrfero in any litigation roceivernot . to interfere between tho parties. If lie docs so bo will not bo the parties, allowed tho costs of a motion for such a purpose It is the duty of a receiver to receivo tho rents and collect tho monies without raising any controverted question between the parties (q). Applica- All applications to tho court in respect of estates in the respect of hands of a receiver should, as a general rule, be made on In^tildba l^half of persons beneficially interested in the estate, and made by not by the receiver. A receiver ought not to present a the persons . . . . .... _„ beneficially petition or originate any proceedings m the cause (r). If not by 4e an application to the court become necessary, the receiver receiver, should apply to the party conducting the proceedings, or probably to any other party in the suit, at whose instance he may have been appointed, to make the necessary appli- cation. If after he has done so no application be made, and no proper means be taken to relieve the receiver from his difficulty, he may apply himself and will be entitled to his costs (s). In a case where a receiver had incurred costs in the execution of his duties, and the parties to tho (j>) Hamilton v. Lighton, 2 Moll. 499. . (7) Comyii v. Smith, 1 Hog. 81. (r) Miller v. Elkins, 3 L. J. Ch. 128 ; Ireland v. Eade, 7 Beav. 55 ; Parker v. Dunn, 8 Beav. 498 ; Ex parte Cooper, 6 Ch. D. 255. The receiver of the estate of a lunatic should not present a petition without the concurrence of the committee. Re Earl of Kilkenny, 7 Ir. Eq. 594. A receiver by proving without leave against the estate of a bankrupt legatee, a debtor to the estate, thereby discharges the debt and entitles the legatee whose bankruptcy has been an- nulled to his legacy, Armstrong v. Armstrong, 12 Ecp 614. (.--■) Ireland v. Eade, 7 Beav. 55 ; Parker v. Dunn, 8 Beav. 498 ; see Miller v. Elkins, 3 L. J. Ch. 128. OF RECEIVER. 15? suit had neglected for a long time to provide for them, it cha P- VIL was held that he was justified in presenting a petition for payment (t). It must, however, he ohserved, that in several cases to be found in the books, receivers have even originated proceedings in their own name without any observa- tions having been made as to the impropriety of such a course («■). In some cases, indeed, it is necessary that the receiver should join in the proceedings. Thus, if the receiver pay monies in his hands to the solicitors of the plaintiff, who are also his own solicitors, without any previous instruc- tions as to the specific application of the monies, the monies are to be considered to be paid to them as the solicitors of the receiver and not of the plaintiffs ; and the receiver must be a party to an application for payment of the monies into court by the solicitors (v). A party to a cause does not by being appointed receiver thereby lose his privilege as a party to the cause, and may apply to the court, as if he did not hold the office («?). A receiver appointed by a mortgagee under the provisions Towers and 1 L ^ duties of of 44 & 45 Vict. c. 41 (x), shall have power to demand and receiver (t) Ireland v. Each, 7 Beav. the purpose, but that if the case 55. is not urgent, he should apply (u) See Mills v. Fry, Coop. to the court. Nangle v. Lord 107 ; Widens v. Townsend, 1 E. Fingal, 1 Hog. 142. & M. 361 ; Birch v. Ohlis, Sau. (v) Chater v. Maclean, 1 Jar. & Sc. 146 ; Cmnin v. M'Carthy, N. S. 175 ; see Delfosse v. Craw- Fl. & K. 49 ; Evelyn v. Lewis, 3 shay, 4 L. J. Ch. N. S. 32 ; Ha. 472 ; see also Shaw v. Dixon v. Wilkinson, 4 Drew. Rhodes, 2 Russ. 539. It was 614 ; 4 D. & J. 508. said in an Irish case, that a (w) Crisp v. Platel, 2 Ph. receiver may file a hill to re- 229. strain waste if the case is urgent, (x) Supra, pp. 38, 39. without waiting for an order for 158 POWERS AND DUTIES OP RECEIVER. Chap, vn. recover all the income of the property of which he is ap- appointed pointed receiver by action, distress or otherwise in the !'\ mortga- gee under name either of (he mortgagor or of the mortgagee to tho full y ict i .'' I] extent of tin' estate or interest which the mortgagor could dispose of and to give effectual receipts accordingly for the same (//), and a person paying money to the receiver shall not be concerned to enquire whether any case has happened to authorise tho receiver to act (z). The receiver shall, if so directed in writing by the mort- gagee, insure and keep insured against loss or damage by lire, out of the money received by him, any building, effects or property, comprised in the mortgage, whether affixed to the freehold or not, being of an insurable nature (a). The receiver shall apply all money received by him as follows, namely : 1. In discharge of all rents, taxes, rates and outgoings whatever affecting the mortgaged property ; and 2. In keeping down all annual sums or other payments and the interest on all principal sums, having priority to the mortgage in right whereof he is receiver ; and 3. In payment of his commission and of the premiums on fire, life or other insurances, if any, properly payable under the mortgage deed or under the Act, and the costs of executing necessary or proper repairs directed in writing by the mortgagee ; and 4. In payment of the interest accruing due in respect of any principal money due under the mortgage ; 5. And shall pay the residue of the money received by him to the person who but for the possession of the receiver would have been entitled to receive the income of the mort- gaged property or who is otherwise entitled to that property ( h ) . (,i) 44 & 45 Vict. c. 41, s. 24, (a) Ik sub-s. 7. sub-s. 3. (6) lb. sub-s. 8. (z) lb. sub--. 1. CHAPTER VIII. LIABILITIES OF A RECEIVER. A receiver is responsible for any loss occasioned to the Ciiap. VIII. estate from his wilful default (a). If he places the monies received by him in what he knows to be improper hands, he will have to answer the loss out of his own pocket (b). A receiver, however, is not expected any more than a trustee or executor, to take more care of the property entrusted to him than he would of his own (c). If he deposits the monies for safe custody with a banker in good credit, to be placed to his account in the character of receiver, he will not be answerable for the failure of the banker (d). The money must, however, be deposited to the account of the receiver in that character, or be other- wise earmarked. If a receiver pays money which comes into his hands as receiver to his private account with a banker, and not to a separate account as receiver, or other- wise mixes up the money which he collects as receiver with his own money, he shall be liable for the loss if the banker fails (e). (<;."•>; (/<) Knight v. Lord Plymouth, //>47 ; 13 L. J. Ch. 43.3 ; 3 L. T. J. Ch. N. S. 32 ; see Dixon v. 157 ; see Shun- y. Rhodes, 2 Russ. Wilkinson, 4 Drew. 614 ; 4 D. & 539 ; Wilkinson v. Bewick, 4 .Tur. J. 508. X. S. 1010. (0 Seagram v. Tuck, 18 Ch. D. (o) Wood v. Wood, 4 Russ. 296. 558. (/,/) II). (p) Wickens v. Tovmsend, 1 R. (w) Drever v. Maxidsley, 8 Jur. & M. 361. 162 11 LBILITIKS Chap. VIII. jf tj 10 receiver has paid monies to the wrong person, and is afterwards obliged to pay the amount into court, and after due application thereof a surplus remains, the court will not pay such surplus over to the person to whom the former payment was wrongfully made without satisfy- ing the receiver's demands (q). If, however, the wrongful payment he made by the receiver's agent, the receiver cannot have the benefit of such payment against the surplus, except subject to the liabilities of the agent to the person to whom the wrongful payment was made ; and the accounts cannot be opened between those parties on petition of the executor of the receiver praying for repayment from the person wrongfully paid, or on default from the rents of the estate (r). A receiver appointed by a Colonial Court is liable to be sued by the person to whom the produce of the estate has been directed to be paid for an account of such produce ; and the consignees of the produce to whom express directions have been given for its application are liable to be sued on the allegation that they are colluding with the receiver for the purpose of satisfying the claim against him out of monies in their hands received from the estate and due to the plaintiff (s). Upon motion on behalf of a late ward of court charging that the accounts formerly passed were such as should not bind the applicant and stating errors and neglect, the receiver was ordered to account again from the begin- ning (t). rfrweiver Although the court will not allow the possession of its (y) Gurden v. Badcock, 6 Beav. Sim. 333. 162. (0 Wildridge v. M'Kcme, 2 (/•) lb. L57. Moll. 545. (a) Fitzgerald v. Stewart, 2 OF RECEIVER. 163 receiver to be disturbed without leave (u), the court in its Chap.YHl. discretion will, if the misconduct of a receiver in the t0 third parties for performance of his duty becomes the subject of proceed- misconduct ings in another court, either itself take cognizance of the c ; se f ^[ s complaint, or leave the matter to be dealt with upon such duties, proceedings. There is a clear and well recognised dis- tinction between cases where the jurisdiction of the court, or the validity and propriety of its orders or process is disputed, and cases where the authority of the court is admitted, but redress is sought against its officer for irregularity or excess in the performance of its orders. In the former case the court has no choice, but must draw the whole matter over to its own cognizance. In the latter case, the court has an indisputable right to assume the exclusive jurisdiction : but may, if it think fit, on the circumstances being specially brought before it, permit other courts to proceed for punishment or redress (x). (u) Swpra, p. 124. 396 ; see Chalie v. Pickering, 1 (x) Aston v. Heron, 2 M. & K. Keen, 749. M 1 CHAPTER TX. SALARY AND ALLOWANCES OF A RECEIVER. Cbap. tx. A receiver will, unless it is otherwise ordered, or unless lie consents to act without a salary, be allowed a proper salary, or have allowances made to him for his care and pains in the execution of his duties (a). The amount of the salary or allowance is not in general fixed until the passing of the first account, when the receiver will be allowed either a percentage upon his receipts, or a gross sum by way of salary (b). Under very special circumstances an order has been made that the receiver should be allowed such salary as the judge might on passing each account think reason- able (c). The allowance to a receiver of the rents and profits of a landed estate is generally 51. per cent, on the gross amount received. This allowance may, however, be in- creased if there is any special difficulty in the collection ; or diminished, or a fixed salary allowed where the rental is considerable (d). The subject of the proper amount to be allowed to a receiver was considered in Day v. Croft (e). Lord Langdale having inquired of the Masters what were the principles on which they acted and the practice adopted (a) Ord. XXIV. 1. (d) Set. on Deer. 425 ; Dan. (//) Dan. Ch. Pr. 1594. Ch. Pr. 1594. (c) Neave v. Douglas, 26 L. J. (e) 2 Beav. 491. Ch. 756. SALARY AND ALLOWANCES OF RECEIVER. 165 on this point in their several offices, thus states the result Cba P- IX - of his inquiries : — " The Masters have each of them been good enough to furnish me with a certificate ; and I find that there is no general rule which universally prevails as to the allowance to a receiver. Where the receipts consist of freehold and leasehold estates, 5/. per cent, on the amount received is most frequently allowed. If there be any special difficulty in collecting the rents on account of the sums being extremely small, or of the payments being frequent, as weekly payments, then the allowance is increased. On the other hand, if there should be very great facility in receiving the rents, then less than 51. per cent, is allowed. One of the Masters has certified to me a case where, after consideration, he allowed only 4/. per cent, on the receipt of rents and profits of freehold and leasehold estates. Another Master has certified to me a case in which the sum paid to the receiver amounted to 300/. for the first year ; the receiver was afterwards allowed 150/. only for a succession of years ; which was afterwards reduced to 50/. a year for the receipt of the same rents. It cannot, therefore, be considered as a universal or general rule that 5/. per cent, should be allowed even upon the receipts of rents and profits. It may be increased if there be any extraordinary difficulty, or diminished if there be any extraordinary facility in the collection. With respect to other receipts, each Master considers himself bound to have regard to the degree of facility or difficulty there may be in receiving them. They have sometimes allowed 2{I. per cent., but for gross sums of money this has been very much reduced, and l£/. per cent, has been allowed on many occasions. It appears, therefore, that the Masters, as they ought, consider upon each occasion what is fit, or proper to be allowed, having regard to the degree of difficulty or L86 SALARY AND ALLOWANCES chap, ix. facility experienced by the receiver." In the case in which these observations were made, an objection was taken to an allowance which had been made to the receiver of 51. per cent, on certain large sums of money which had been paid to him for redemption of annuities, for interest upon mortgages and annuities, and it appearing that the parti- cular circumstances and the particular nature of the items had not been brought to the attention of the Master, Lord Langdale thought there was sufficient in the case to warrant an order to review the report. The practice of the Master's office as above stated is generally followed in the judge's chambers in fixing the salary or making an allowance to a receiver. A receiver is entitled out of the funds to his costs, charges, and expenses properly incurred in the discharge of his ordinary duties, or in extraordinary services which have been sanctioned by the court (/). In a case where a receiver has paid sums out of his own pocket in satis- faction of legacies, he will be reimbursed (g). So also in a suit to administer a West Indian estate, a consignee appointed by the court who had become in advance to the estate was held entitled to repayment out of the corpus of the estate, in priority to the costs of the suit (//). It is not necessary for a receiver to apply to the court for the payment of his costs, charges, and expenses properly incurred in the discharge of his duties (i). A receiver, it may be observed, has not such a vested (/) Malcolm v. O'Callaghan, 3 (g) Palmer v. Wright, 10 Beav. M. & C. 52 ; Fitzgerald v. Fit?.- 236, gerald, 5 Ir. Eq. 525. In bank- (h) Morison v. Morison, 7 D. ruptcy the receiver is entitled to M. & G. 215. his costs, next after the costs of (i) Fitzgerald v. Fitzgerald, 5 realizing the estate. Ex 'parte Ir. E<|. 525. Royle, 23 W. R. 908. OF RECEIVER. 167 right to the collection of monies payable in respect of the Cha P- Ix - estate as will entitle him to prevent the money being paid into court without passing through his hands, where poundage may be saved by a direct payment into court. Lord Langdale accordingly made an order on the petition of some of the parties interested, that a debtor who was willing to pay the amount of his debt to the Accountant- General at once, might be at liberty to do so (k). A receiver may be entitled to allowances beyond his salary for any extraordinary trouble or expense he may have been put to in the performance of his duties (/), or in bringing actions, or defending legal proceedings which have been brought against him (m). Where, for example, an adverse application had been made against a receiver by a party to the cause, which was refused with costs, the applicant being wholly unable to pay those costs, it was held that the receiver was entitled to be indemnified, and have his costs as between solicitor and client out of the fund in hand, although it belonged to incumbrancers (n). So also where a receiver defended an action at law, and the defence was completely successful, the extra expenses were allowed, although the receiver had acted without the leave of the court (o). But if any extraordinary expenses have been incurred by the receiver, allowances for them will not be in general (k) Haigh v. Grattan, 1 Beav. Beav. 3. The receiver should 201 ; Weale v. Ireland, 5 Jur. not wait to apply for leave to 405 ; see as to practice in lunacy, defend an action till just before Ex parte Clayton, 1 Russ. 476 ; trial. Anon., 6 Ves. 286. Ex parte Crannier, ib. 477, n. (n) Courand v. Hanmer, 9 (/) Potts v. Leifjhton, 15 Ves. Beav. 3 ; see Att.-Gen. v. Lewis, 276. 8 Beav. 179. (m) Re Montgomery, 1 Moll. (o) Bristmm v. Needham, 2 Ph. 419 ; Bristmm v. Needham, 2 Ph. 190; see Malcolm v. O'Callaghan, 190; Courand v. Hanmer, 9 3 M. & C. 58. L68 SALAItt AM' ALLOWANCES (li:i r- 1X sanctioned, unless they have been incurred with the ap- probation of the court or judge (p), or unless the estate has been benefited thereby (q). Where accordingly a receiver, without the leave of the court, defended an action arising out of a distress for rent made hy him, and compromised it on the terms of the plaintiff abandoning it, and each party bearing his own costs, he was disallowed his costs (r). So also where the receiver of a lunatic's estate instituted proceedings in a wrong form of action, which he aban- doned, and then adopted a form in which he succeeded, he was refused the costs of the abandoned proceedings, al- though the Master reported that he had acted bond fide (s). The receiver is not entitled to be reimbursed the ex- penses of journeys to and residence in a foreign country for the purpose of prosecuting proceedings for the recovery of property belonging to the estate before the tribunals of that country, unless he has the express sanction and authority of the court for such journeys and residence (t). If, however, the result of the suit be successful, and it appear that the success has been due to or has arisen from the presence of the receiver, it may be in the opinion of the court inequitable for the parties to take the benefit of the exertions of the receiver without defraying the ex- penses which had attended them, although no previous authority for incurring them had been given (u). The fact that some of the parties interested may have given (p) Re Ormsby, 1 Ba. & Be. 629. 18!). (s) Re Montgomery, 1 Mull. (7) Bristowe v. Needham, 2 Ph. 419. 190 ; Malcolm v. O'Callayhan, 3 (t) Malcolm v. O'Callarjhav, 3 M. & C. 58. M. & C. 52. (/•) Swaby v. Dickon, b Sim. (a) lb. 58. OF RECEIVER. 169 him authority, furnishes no ground for the court to allow Chap. IX. his expenses out of the estate (.r). If the property in dispute is small, the court may ap- point a receiver without a per-centage (y). If a trustee (z), or party interested, ask leave to pro- pose himself as receiver, he will be usually required to act without salary, unless by consent (a). In a case, how- ever, where a testator had appointed as trustee and executor a person who for many years had been the paid receiver and manager of his estate, the court appointed him as receiver at a salary, the tenant for life being an infant (b). Where a receiver is served with a petition in the cause, he should not appear, and will get no costs of appearance if he does so (c). But where the receiver had incurred costs which the parties had long neglected to provide for, he was allowed to petition for the payment (d). If a receiver suffer any costs to accrue which ought to have been prevented, he will have to pay them out of his own pocket (e). The costs of drawing out a scheme of the estate and of the holdings of the tenants are chargeable, if at all, as part of the receiver's costs, and not of the solicitor's ; but it seems that no allowance would be made to the receiver for such an item where he is paid by a per-centage, (x) Malcolm v. (PCallaghan, 61. (c) Herman v. Dunbar, 23 (y) Man- v. Littli wood, 2 M. & Beav. 312. C. 458. (l1 Ireland v. Eade, 7 Beav. (z) Sykes v. Hastings, 11 Ves. 55; supra, pp. 156, 157. 363 ; PilMngton v. Baker, 24 W. (e) Cook v. Sharman, 8 Ir. R. 234 ; supra, p. 96. Eq. 515. See, as to costs which (a) Set. on Deer. 426 ; supra, will or will not he allowed to a pp. 95, 96. receiver in Ireland, Sadleir v. (b) Newport v. Bury, 23 Beav. Greene, 2 Ir. Ch. 330. 30. 70 SALARY AMI ALLOWANCES Chap, ix. though it may be necessary for the due performance of his duties (/' ). If the exertions of a receiver have been successful in creating a benefit to the estate, allowance will be made to him for the costs to which he has been put (g), hut no costs will be allowed of a defence improperly made (h), or of a proceeding improperly taken and abandoned, though the receiver acted bondjide and succeeded in a subsequent proceeding (i). In a case where the receiver of a lunatic's estate had instituted proceedings which, being wrong in form, he abandoned and afterwards took proper proceed- ings which were successful for the estate, the court refused to allow him the costs of the abandoned proceedings, although the Master reported that the receiver had acted bond fide and ought to be allowed the costs (k). If a receiver, without the leave of the court, pay out monies to a judgment creditor of the party, over whose estate he has been appointed receiver under an order of a • Court of Common Law, he will not be allowed the same in his accounts, if the monies are not repaid by the judg- ment creditor. He will also, along with the judgment creditor, have to pay the costs of the motion (»/). A receiver may, on its being ascertained to be for the benefit of the estate, be entitled to an allowance for money laid out on the estate without previous order (>?). In a case where the receiver's default in bringing in his accounts on the appointed days was known to the parties, (/) lie Catlin, 18 Beav. 511. 419. (g) Bristowe v. Needham, 2 (k) lb. I'h. L90j supra, p. 151. (m) De Wintonv. Mayor, <&c, (h) Swaby v. Dickon, 5 Sim. of Brecon, 28 Beav. 204. 681 ; supra, p. 168. (n) Hwpra, pp. 1">2, 153. i) Ri Montgomery, 1 Moll. OF RECEIVER. 171 and the accounts had been passed and poundage allowed cha P- IX - without objection, no loss having been sustained by the receiver's fault, and no balance being due from him, the court would not afterwards listen to an applica- tion to strike out his allowance of poundage and costs at the instance of parties who had the benefit of his services (o) ; but the amount of the allowance made to a receiver may be reconsidered, where, though an objec- tion was originally made, the particular circumstances of the case and the nature of the items were not taken into consideration (_/>). A receiver, though he passes his accounts and pays his Receiver balances regularly, is not entitled to make interest tor his ma ke in- own benefit of monies which come into his hands in his ^hmoes in character of receiver, during the intervals between the hand - times of passing his accounts (q). If it is necessary, from the condition of the estate, not Life estate , . i • subject to from the conduct oi the parties, to have a receiver ap- expenses of pointed over the estate of a tenant for life of real estate, receiver - it is an expense to which the estate for life is inherently subject. It is the right of the remainderman to have a receiver appointed, and to have the ordinary expenses of such appointment paid out of the life estate (r). A receiver appointed by a mortgagee under the pro- Allowances of receiver visions of 44 and 45 Vict. c. 41, shall be entitled to retain, appointed out of any money received by him, for his remuneration j^, 01 "*" and in satisfaction of all costs, charges, and expenses under 44 & 45 Vict. incurred by him as receiver, a commission at such rate, c. 41. (o) Ward v. Swift, 8 Ha. 139 ; Church, 3 Bro. C. C. 40 ; infra, but see infra, p. 182. p. 17 s . (//) Day v. Croft, 2 Beav. 488. (r) Shore v. Shore, 4 Drew. (q) Shaw v. Rhodes, 2 Rubs. 510. 539 ; see Earl of Lonsdale v. L72 SALARY ASH ALLOWANCES OF RECEIVER. Chap. IX. no t exceeding five per centum on the gross amount of all money received, as is specified in his appointment, and if no rate is specified, then at the rate of five per centum on that gross amount or at such rate as the court thinks fit to allow on application made by him for that purpose (s). (s) S. 24, 8ub-s. 6. CHAPTER X. ACCOUNTS. Under the old practice the accounts of a receiver were chap. X. required to be delivered annually (a) ; but under the Delivery of present practice the judge, to whose chambers the cause accounts - is attached, may, at his discretion, fix a longer or shorter period for a receiver to leave and pass his accounts (b). The accounts must be delivered at the judge's chambers on the days appointed for the purpose (c). The accounts should be made out in the prescribed Form of form ((/). In the first account he passes, the receiver should state in the column for observations how each tenant holds, and every alteration should be noticed in the subsequent accounts. In this column also should be entered any remarks the receiver may think proper to make as to the arrears of rent, the state of repairs, or otherwise (82 ; Dan. Ch. Pr. 1606 j as to proceedings by sci. fa., il>. ... i to form of summon . Dan. 1606 — 1609. ACCOUNTS. 185 without deciding which of these parties are primarily liable, cha P- x - will order on petition that the deceased receiver's recogni- zance may be enforced against his real and personal repre- sentatives and sureties, notwithstanding an alternative prayer that the personal representatives may pass the accounts (q). It was laid down by Shadwell, V.-C, on the authority of the registrars, to be the practice not to put the recogni- zance in suit against the surety in default of the receiver paying what was due from him without the amount being first ascertained, except where the receiver had absconded ; and that a breach of the recognizance by non-payment of the balance reported due from the receiver ought to be shown as a ground for granting an application for liberty to put the recognizance in suit (/•) ; but Lord Truro thought that the recognizance may also be enforced against the surety in the case of a deceased receiver without ascertaining the amount due, when there is no means of ascertaining or enforcing the claim. The case of an absconding receiver, as put by the registrars, he regarded as only an example of an exceptional case in which it was difficult to ascertain the amount due (s). (q) Ludgater v. Ohannell, 3 (r) lb. ; 15 Sim. 480. Mac. & G. 175. (s) lb. ; 3 Mac. & G. 180. CHAPTER XL DISCHARGE OF A RECEIVER. Chap. XL To DIVEST the possession of a receiver, an application to the Court for his discharge is in general necessary (a). The appointment of a receiver, however, made previous to a decree, will be superseded by it, unless the receiver is expressly continued (b). So, also, an injunction to put a purchaser into possession is in itself a discharge of the order for a receiver as to the lands mentioned in the in- junction (c). So, also, where the estate expires over which a receiver has been appointed, the reversioner or remain- derman need not apply to have the receiver discharged, for the legal estate vesting in possession, and there being an indisputable right to enter, it is not necessary that there should be an order discharging the receiver (//). Dischai AY hen a receiver has been appointed and has given .^ security, he cannot be discharged upon his own application ;, . l ' 1 ' , "' a ' without showing some reasonable cause why he should put the parties to the expense of a change (e). If, however, he can show reasonable cause for his discharge, he will be allowed to deduct the costs of and incidental to the appli- cation for discharge out of the balance in hand (/). Infir- (a) Thomas v. Brigstocke, 4 () Smith v. Vaughan, Ridg. R. 3:35. temp. Hard. 251. by v. Ponsonby, 1 (/) Richardson v. Ward, 6 lh>'j t . 321 ; Anon., 2 Ir. Eq. 410. Madd. 266. DISCHARGE OF A RECEIVER. 187 mity, which prevents the receiver from properly performing Clap. XI. his duties, and ill health increased by the anxieties of the duties of his office, afford a sufficient excuse for his dis- charge (g). A receiver who wishes to he discharged, and cannot show any reasonable cause for putting the parties to the expense of a change, will not be discharged at his own request, unless on the terms of his paying the costs of the appointment of another receiver and consequent thereon. A receiver ought not to present a petition to be dis- charged to come on with the cause on further directions, as the Court will make an order on further directions without any such petition. The costs of the petition will he refused (h). A receiver is generally continued until the decree, but Discharge if the right of the plaintiff ceases before that time, the on sa ti s fac- receiver may be discharged, and cannot be continued at tlon of m_ the instance of a defendant (i). In a case, accordingly, where a receiver had been appointed at the suit of an annuitant, and the plaintiff had been satisfied by the pay- ment of his demand, Lord Eldon held that the order for a receiver must be discharged, although the discharge was opposed by two creditors having prior annuities to the plaintiff. ' ' With the right of the plaintiff to have a receiver," he said, " must fall the rights of the other parties. It would be most extraordinary, if because a receiver has been appointed on behalf of the plaintiff a defendant is entitled to have a receiver appointed on his behalf" (/<•). In ((/) Richardson v. Ward, s DISCHARGE Chap. XI. Discharge of receiver nil his con tinuance being an- necessary. Other causes for discharg- ing a re- ceiver. other cases, however, of a somewhat Bimilar character, pro- ceedings have been staved without prejudice to the order appointing a receiver (/). If, during the course of the proceedings, the continuance of a receiver becomes unnecessary, he will be discharged. Thus, in a case where a receiver had been appointed in consequence of the misconduct and incapacity of trustees under a will, he was ordered to be discharged on the ap- pointment of new trustees who undertook to account half- yearly in the same way as a receiver and agreed to act without a salary (m). So, also, in a case where a receiver who had been appointed by reason of the executors having refused to act under a testator's will, quitted his place of residence in the vicinity of the estates in respect of which he had been appointed receiver, the Court, on the consent of the other parties to the cause, and the executors expressing their willingness to act, made an order that the receiver should pass his accounts (n). So, also, in a case where a receiver had been appointed at the suit of an annuitant, he was discharged on the payment of the arrears of the an- nuity, there being no reason, under the circumstances of the case, why he should be continued (o). So, also, a re- ceiver was discharged, when the object of his appointment has been fully effected (p). A receiver is liable to be discharged for irregularity in carrying in his accounts, and for making it necessary for compelling him to do so, and for so passing his accounts (/) Vamer v. Lord Portarling- ton, -1 I'll. 34 ; Paynter v. Garew, 18 Jur. 419 ; see Mwrrough v. French, 2 Moll. 498. (m) Bainbrigge v. Ilhiir, 3 Beav. 421, 423. (?<) Davy v. Gronvw, 14 L. J. Ch. 134. (o) Brdham v. Strathmore, 8 Jur. 567. ( p) Tewart v. Lawson, 18 Eq. 490; see Hoskinx v. Cam/pbell, W. N. (1869), 59. OF A RECEIVER. 189 that the amount of the balance in his hands cannot be cha P- XI - ascertained (q). So, also, a receiver will be removed, if his conduct has been such as to impede the impartial course of justice (r), or if his appointment as receiver has been an improper one (s). It seems that a charge of misbehaviour against a receiver for suffering the owner of the estate to remain in part possession to the prejudice of the estate, will not be ad- mitted as a reason for discharging the receiver, because the parties themselves have caused the loss by not com- pelling the owner by the authority of the Court to deliver up possession to the receiver (t). Where a receiver becomes bankrupt, he will be dis- charged and a new receiver appointed (»). If a receiver has been wrongly appointed over property of a person not a party to the cause, he will be discharged, although there has been an abatement by the death of a sole defendant (x). Where a receiver had been appointed in an administra- tion suit, another receiver, who would act at a lower salary, was, on the application of a mortgagee of a tenant for life of the property, ordered to be substituted for him (y) . In the case of an infant, it is not right to vacate the Discharge „ . ■ i j ■ f i l w i . of receiver recognizance of a receiver appointed m his beiialt on nis over estate coming of age, and the receiver passing his accounts, for of mfant - defalcations are sometimes found after a great length of time ; and if it be proved twenty years after that a re- ceiver has not accounted for what he has received, the {([) Bertie v. Lord Abingdon, 400. 8 Beav. 53. (u) Dan. Ch. Pr. 1614. (r) Mitchell v. Condij, W. N. (x) Lavender v. Lavender, I. R. (1873), 232. 9 Eq. 593. (a) Re Lloyd, 12 Ch. D. 448. (y) Stanley v. Coulthwrst, W. (t) Griffith v. Griffith, 2 Ves. N. (1868), 305. 190 DISCH ^.RGE Chap. XI. Disci a of receiver i.t' estates decreed to be sojd. Receiver not dis- charged until ba- lance due to him on his ac- counts shall he paid. Receiver qoj dis- charged on application of one party only. money might be recovered under the recognizance if it has not been vacated (z). Lord Kenyon held that a re- ceiver should not have his recognizance discharged till one year after the infant lias attained his ago of twenty-one nnd Lord Eldon approved of the rule (a). Where estates have been decreed to he sold, the receiver will he continued until the conveyances are executed under the decree, in order that he may collect the arrears of rent (h). In this case the party refused to execute a conveyance, as there were arrears of rent due, and ho would therehy extinguish his remedy, but the Court directed the receiver to be continued in regard to those rents down to the day of executing the conveyance before the purchaser should be let into possession, and directed the tenants to be compelled to pay their arrears in the name of the receiver according to the course of the Court (c) . A receiver will not be discharged until he shall have received from the parties interested in the estate the balance that shall be found due on him on passing his accounts (//). A receiver being appointed for the benefit of all the parties interested, he will not be discharged merely on the application of the party at whose instance he was appointed (e) ; nor where a receiver has been appointed on behalf of infant tenants in common, will he be dis- charged as to the share of one of them who has attained twenty-one (/). (-.) Anon., cited, 2 Madd. Ch. 298. (a) lb. (/,) Quinn v. Holland, Ridg. temp. Hard. 295. (c) II.. ('A. made by petition of course : lb., (/) Dan. Ch. Pr. 161 1. n. ; see, as to form of summons (/,•) Att.-Gen. v. Haberdashers' to vacate recognizance, Dan. Ch. Company, -1 Jur. 915. Forms 1702. (/) Herman v. Dunbar, 23 (n) Reg. L5th March, I860, r. Beav. 312. 36; Dan. Ch. Pr. 161 I. recogni- zance. [92 DISCHARGE OF \ RECEIVER. chap. xi. fche person entitled to it, where the order directs such pay- ment to the Secretary of the Master of the Rolls, who, if the evidence of payment is satisfactory, makes a note of it, and marks the order with his initials. The order must then be taken to the Enrolment Office, and the recogni- zance will be ma iked as vacated (o). Receiver A receiver who has heen discharged and does not pay been dis- in his balance as directed, is subject to the order of c ^gednot ^^ an( j t ^ e order ^foh [ B founded on it, and will be his balance ordered to pay in the balance with the amount of his disallowed _ , salary and salary and interest at five per cent, on both sums, from the teresl m day first appointed, as well as the costs of the motion (p). Deposit of Where a receivership has been completed, the book con- receiver- 4. ammg th e accounts is to be deposited in the Clerk of ship book. o Records and Writs Office (q). (o) Dan. Gh. Pr. 1614 2n - (p) Harrism v. Boydell, 6 Sim. (?) 0r y a (c) Set. on Deer. 117. surety for his discharge, O'Keefe (. by surety to attend the passing (g) Dan. Ch. Pr. 1615 ; see, as of a receiver's accounts, Dan. to form of summons, Dan. Ch. Ch. Forms, 1696. Forms, 1673. (Jc) Simmons v. Rose, cit. Dan. (//) Dan. Ch. Pr. 1615 ; see Ch. Pr. 1616. tlso O'Keefe v. Armstrong, 2 Tv. AND RIGHTS OF SURETIES. 1 U-» The surety is answerable to the extent of the amount of cha P- xn the recognizance for whate\ er sum of money, whether Extent of & . , ,. -m liability of principal, interest, or costs, tne receiver has become liable sur ety. for, including the costs of his removal, and of the appoint- ment of a new receiver in his place (I). In a case however where a receiver had been bankrupt with the knowledge of all parties for a considerable time, during which no steps were taken to compel the passing of his accounts, the surety was excused the payment of interest (m). Where an action is brought against the surety upon the Course for the surety recognizance, the proper course for him to pursue appears to parsu8 to be to apply to the court by motion or summons, with ^^ . g notice to the parties interested in the suit to stay the brought . against proceedings on the recognizance, offering at the same time him n to pay the amount due from the receiver, but not exceed- * e a ^" ing the penalty of the recognizance, into court (»). The surety must pay the costs of the application, and of the proceedings in consequence of it (o). If the receiver's account has not been taken, the application should also pray an inquiry as to what is due from the receiver. The court may, it would seem, upon an application of this kind, indulge the surety by allowing him to pay the balance in instalments (p). Pavment by the surety to the solicitor prosecuting the Sureties J •> " should not proceedings is insufficient. In a case where a surety wlien pay the (I) MauTisell v. Egan, 3 J. & 528 ; Dan. Ch. Pr. 1616 ; sec, as L. 251 ; Be Mac Donaghs, I. R. to notice of motion on summons 10 Eq. 269; see Dawson v. by surety to stay actions on the Baynes, 2 Russ. 466 ; Be hockey, recognizance, Dan. Ch. Forms, 1 Ph. 509. 1699. (m) Dawson v. Baynes, 2 Russ. (o) Walker v. Wild, 1 Madd. 466 ; see R Hi nicks, 3 Er. Ch. 628. L87. (P) T1 '- (n) Walker v. Wild, 1 Madd. 196 LIABILITIES AND RIGHTS OF SURETIES. Chap. XII. sued upon his recognizance, had paid the amount to the monies to solicitor prosecuting Mir proceedings, and then applied to thesohci- nave ]^ s recognizance vacated, and served the petition on tor oi the ° A plaintiff, the plaintiff who did not appear, the court would not order the recognizance to he vacated, hut directed the plaintiff to he served with notice that an order should he made on a certain day, that the recognizance should he vacated, unless he should show cause to the contrary (<]). Suretypay- If a surety has been called upon to pay anything on for receiver account of the receiver, he is entitled to he indemnified entitled to f or wua £ j ie ] ias pgjfl f or the receiver out of any balance be mdem- l J nificd. which may be coming to him in the suit. Therefore where a receiver had borrowed money from his surety to make necessary payments, it was held that the surety was entitled to he repaid the amount lent out of the balance in court, reported due to the receiver (>•). Upon the same principle the share of a receiver in property which was being administered by the court, was held liable to make good to the surety the amount paid by him for the re- ceiver, although it was not included in a mortgage which the receiver had given the surety as an indemnity (s). Right of ^ surety who pays the debt of his principal has the surety who j 1. j i x has paid same right against his co-surety that he has against the due by the principal, and will be permitted to put the recognizance in enforefre- Suit aS a g ainst tlle CO-SUrety (t). cognizance against his ( r/ ) Mann v. Stennett, 8 Beav. & J. 524. co-surety. lgg ^ Woo fa v< Creaghe, 2 Hog. (r) Glossup v. Harrison, 3 V. 51 ; Be Swan's Estate, I. E. 4 &B. 134; Coop. 61. Eq. 209. (s) Brandon v. Brandon, 3 D. CHAPTER XIII. MANAGERS AND CONSIGNEES. Wheke a receiver is required for the purpose not only ch ap.XIII. of receiving rents and profits, or of getting in outstanding Manager. property, but of carrying on or superintending a trade or business, he is usually called a manager or a receiver and manager. The appointment of a manager implies that he has power to deal with the property over which he is appointed manager, and to appropriate the proceeds in a proper manner (a). "Where the court appoints a manager of a business or in what undertaking, it in effect assumes the management into its poi^f " own hands ; for the manager is the servant and officer of the court, and upon any question arising as to the character or details of the management, it is the court must direct and decide. Managers, when appointed by the court, are responsible to the court, and no orders of any of the parties interested in the business over which they are appointed managers, can interfere with this re- sponsibility. The court will in no case assume the man- agement of a business or undertaking except with a view to the winding-up and sale of the business or undertaking. The management is an interim management, its neces- sity and its justification spring out of the jurisdiction to liquidate and soil ; the business or undertaking is man- («) Sheppardv. Oxenford, 1 K. Milford Railway Co., 14 Ch. I). & J. 500 ; Be Manchetter and 648, 653. 198 MANAGERS Chap.XIII. aged and continued in order that it may be sold as a going concern, and with the sale the management ends (6). A manager may be appointed to carry on a private trade or business so as to wind it up for the benefit of the parties interested. In Steer v. Steer (c), a manager was appointed to carry on the business of an intestate, there being no existing representative to his estate (d). Where trustees have to manage a business, but are not themselves qualified to do so, and do not agree in appoint- ing a manager, a receiver and manager of the business will be appointed (e). The cases in which managers are generally appointed are partnership cases. The principles on which the court acts in appointing managers in such cases have been already pointed out (/). Minin(T In an action by debenture holders of a mining company company. a g a i ns t the company for foreclosure, the court appointed a manager (/), Lord Gifford, M.K., j^^be said it had been only done under special circumstances, s iveu - and that in general, to warrant such a course, it should appear that no manager could be found who would give security, or that the person proposed was fit to be appointed without security. Under the circumstances, however, he made the order for the appointment without security with the consent of such of the parties as could consent, but on a subsequent application in the same cause security was required (z). A manager or consignee in England, unless he is the trustee or other legal personal representative of the pro- perty, is required to give the usual security to account for what he may receive (a) ; and ordinarily the person appointed to act abroad as manager must give the like security of persons resident in this country (b). The manager of a West India estate is not required to give security faithfully to manage. Having a discretion given him to expend monies on the estate, he is only re- quired to give security to account for what he shall receive, and to consign so far as the due management of the estate permits (c). In a case where a testator had directed that a particular person should be appointed receiver of his estate, and was possessed of no real estate, except an estate in the West Indies, the party named was appointed manager and consignee upon entering into a personal recognizance to account for the produce (d). (x) Set. on Deer. 450. 2 Sim. & St. 453. (y) lb. 451. (.) Morris v. Elme, 1 Ves. Jr. (z) lb. 139. (a) Ord. XXIV. 1. (<1) Hibbert v. Hibbert, 3 Mer. (b) lb. Cockburn v. Raphael, 681. 202 MANAGERS Chap.xill. Aji executor or trustee maybe appointed consignee (e). Executor The appointment of a defendant who is an executor or l "' ,n . 1>Uc trustee, to be a consignee with the usual profits, is a may be ^ x appointed matter tor the discretion of the court; but when such a consignee. , n , , discretion has been exercised and an appointment made under it lias been acted on, the court will not afterwards withdraw its sanction from the appointment (/). nee A consignee appointed by the court, like any other net answer- . . „ , able for the servant or agent of the court, not aflected with fraud or ttecourt i 111 l"'°l ,( ' 1 ' conduct, is not answerable for the wisdom, cor- rectness, or propriety of the orders which he receives, or for the directions by which his acts are sanctioned (g). Consignees Consignees appointed by the court in an administra- charge on tion suit have a charge on the property for payments 'I'.'.Vv'for sanctioned by the court in priority to incumbrances payments cre ated before the suit, and will be allowed interest on authorised by the the balance due to them (It). In Re TJiarp (r), Lord St. Leonards allowed a consignee appointed by the court to be reimbursed from English estates of the same owners, though not a receiver of the rents. Manager Xhe court, in dealing with property in a colony, may in the event provide against the inconveniences likely to arise from the dlathofthe death, absence, or incapacity of the manager in existence, present or appointed by the court, by appointing another manager manager. to act in such event (k). In Forbes v. Hammond (1), a reference was granted to approve of a proper person to succeed the consignee of a West India estate in the event of his death, he being in a (e) Marshall v. Holloway, 2 Sw. M. & G. 214. 4132. (i) 2 Sm. & G. 578. (/) Morison v. Morison, 4 M. (/;) Rutherford v. Wilkinson, & C. 216. Set. on Deer. 450. (y) lb. 7 D. M. & (i. 223. (0 1 J. & W. 88. (h) II'. 2 Sm. & G 5fi4 : 7 D. AND CONSIGNEES. 203 dangerous state of health, but this was clone unwillingly, chap.xiil. because the person chosen might cease to be a proper per- — son before the commencement of his office. The order seems to have been made only on the consideration that the question must again come before the court on the report. A receiver or manager of a West India estate who has Manager not entitled been appointed at the instance of a mortgagee is not to crops entitled to the produce of crops severed and shipped to the heforehis consignee of the mortgagor prior to his appointment as a PP oint " receiver and manager, although they had not, at the time of the order, been received by the consignee (m). The manager of a West India estate is entitled to a Commis- commission so long as he is resident in the island or manager. colony, and is personally acting in the management of the estate («). The commission is the reward of his personal care and attention (o). If he is absent from the island or Allow - ances. colony, he is not entitled to the commission himself, but he may be allowed such sums as he has really paid to others for the management of the estate during his absence, provided such payments be in themselves reason- able (p). Where the court has taken possession of an estate by a Manager or consignee manager or consignee, it will, as against all parties for will not whose benefit the possession has been held, refuse to permit chared its officers to be discharged until the amount due to them untl1 tl,e ° amount has been paid (q). A manager is entitled to his ordinary due to them has commission and allowance, and also to a hen on the estate been paid. (m) Codrvngton v. Johnstone, 1 (p) Forest v. Elwes, 2 Mer. Beav. 520. 69. (n) Forest v. Elwes, 2 Mer. 69. (7) Fraser v. Burgess, 13 Moo. (0) Chambers v. Goldvrin, 9 P. C. 346. Ves. 273. 20 1 MANAGERS AM> CONSIGNEES. Chap. XIII. as against all persons interested in it, for the balance, what- ever ii may be, that shall be found due to him on taking his accounts (r). Where a balance is found due to a consignee on a final settlement of accounts, he cannot be discharged until that balance is paid, and it' payment cannot be made without interfering with the inheritance or corpus of the estate, the court would be justified in resorting to it for the purpose of doing justice to the consignee («). But the case is different where, pending the consigneeship, an order is sought by a consignee that the balance found due to him should be paid out of the corpus. A consignee cannot, during the continuance of his office, come to the court from time to time, as often as there is a balance in his favour, and ask for payment out of the corpus of the estate (t). (r) Bertrand v. Varies, 31 consignees of West India estates Beav. 436. were entitled to be reimbursed (s) Fcvrqvkarsm v. Balfour, 8 out of monies which had been Sim. 213. awarded under the Act for the (t) lb. ; see, as to cases in Abolition of Slavery, ib. ; Shaw which the question was whether v. Sirnson, 1 Y. & C. C. C. 732. GENERAL INDEX. ABATEMENT, of rents of tenants by receiver, 149 of suit does not suspend the authority of a receiver, 145 ACCOUNTANT TO THE CROWN, cannot be a receiver, 99 ACCOUNTS, form of receiver's, 173, 174 delivery of, 173 mode of passing, 174, 175 how to compel the leaving and passing, 175, 179, 180 parties interested may attend passing, 174, 175 entitled to copies of, 176 allowance of, 176 certificate of, 176, 177 receiver neglecting to leave or pass, must pay interest on the balance, and will lose his salary, 180, 181, 182, 192 receiver ordered to pass, although bill has been dismissed, 180 of deceased receiver, 183 as to passing with infants after coming of age, 182, 190 as to opening with a ward of court, 162 ACQUIESCENCE, a bar to the appointment of a receiver, 6 ACTION AT LAW. See Damages. receiver should not bring or defend without leave, 145, 146, 151, 152 for double rent or double yearly value, 151 ADMINISTRATION. Sec Probate. decree, receiver appointed after, in suit commenced by summons, 101 ADMrXISTUATOR. See Executor. receiver appointed against, of foreigner, at suit of one of next of kin, pending proceedings abroad, 20 receiver appointed at -nil of, against a judge in a colony who claimed t<> !>..• official administrator of a person who had died there, 28 20G GENERAL [NDEX, AFFIDAVITS, on application for receiver, 107 verifying the accounts, 176 ALIMONY, wife \vln> lias obtained order for, may have a receiver, 46 ALU > W A N ( ' ES. See Salary. to a receiver, 164, 165, 166, 170, 173 for extraordinary trouble, &c, 167, 168 not made, if accounts are not passed, 175, 176, 177, 180, 181 for repairs, 152 of manager of a West India estate, 203 of receiver appointed by mortgagee under statutory authority, 171, 172 ANNUITY, receiver appointed of arrears of, 6 APPEARANCE, receiver appointed before, 102, 103 APPOINTMENT OF RECEIVER, general object of the, 2 a matter for the discretion of the court, 3, 4, 5 conduct of party who seeks the, looked to on the application, 6 order for, not made on submission of defendant, 8 pending litigation in a foreign court, 7, 20, 28 must be iu an action, 101 exceptions, 101 may be made in a suit commenced by summons, 101 when application for, should be made in chambers, 102 is made on motion or petition, 101, 102 application for, may be made by defendant, 102, 106 application for, should be made on notice, 102 exceptions, 102, 103 application for, may be made at any stage of the suit, 104 if sought before decree or judgment, should be prayed, 104 indorsement on writ, on application for, 102, 104 operates as a delivery of land in execution, 119 made at hearing, though not prayed for, 104, 105 may be made after decree or judgment, though not prayed for, 105, 106 on bill pro confesso, 111 costs of motion for, 9, 10 completion of, 116, 117 certificate of, 116, 117 costs of, to be paid by receiver, 1 I 7, 1 75 effect of, L18, 119 GENERAL INDEX. 207 APPOINTMENT OF RECEIVER— continued. operates as an injunction, 8, 64 right not affected by, 119, 120, 121 parties in possession having paramount claims, not affected by, 128 parties not in possession having paramount claims, may obtain leave to enforce them notwithstanding the, 128, 129, 130 ARBITRATION, receiver appointed pending, 8 ARREARS, of annuity may be a ground for a receiver, 6 of rent-charge may be a ground for a receiver, 6 of interest, a ground for a receiver at suit of equitable mort- gagee, 6 or second or puisne* mortgagee, 36 of rents, receiver entitled to, 141, 142 receiver cannot forgive tenants, 149 ATTACHMENT, against receiver for not accounting, 179, 180 against third persons for interfering with possession of receiver, ° 124, 155 against tenants for not attorning, 1 40 ATTORNEY. See Solicitor. ATTORNMENT, of tenant to receiver, effect of, 139, 140 AUTHORITY, extent of, of receiver, 156 BAILIFF, cases in which receiver may employ, 143 BALANCE, receiver bound forthwith to pay in, 178 not allowed to make interest on, 171 ordeT to lodge or invest, when and how to be obtained, 173, 174, 17:), 180 BANKRUPT, receiver will be discharged, 189 receiver, sureties allowed to attend passing accounts of, 194 BANKRUPTCY, receiver appointed in, 119, 124 possession by, 119, I -i i BARRISTER, may be receiver, 98 208 GENERAL [NDEX. BENEFICE, receiver nol appointed of profits of ecclesiastical, 91, 92 CANONRY IX A COLLEGIATE CHURCH, receiver appointed of profits of, 91 CERTIFICATE, of the completion of the appointment of receiver, 110, 117 of allowance, of accounts, 17<>, 177 CHAMBERS, in what cases application for receiver may lie made in, 101, 102 receiver is generally nominated in, 107, 108 CHIEF CLERK, of a judge cannot be receiver, 98 COLLEGE FELLOWSHIP, receiver may be appointed of profits of, 9 1 COLONIES, receiver appointed of property in the, 92,93 manager of property in the, may be appointed, 199, 200 COMMITTAL, for disturbance of receiver, 134, 135, 136 of receiver for not obeying the order of the court, 179, 180 COMPANIES, receiver appointed over tolls of, 47, 48 at suit of mortgagee, 46, 47, 48 form of order, 47, 49 under Mortgage Debenture Acts, 57 at suit of judgment creditor, 50, 51 at suit of statutory bondholder, 55 judgment creditor may have a receiver of tolls of, notwithstanding a receiver appointed at suit of mortgagees, 51 priorities between mortgagees and judgment creditors of, 51 statutory bondholder of, as distinguished from a mortgagee, 55 mortgage of tolls of, what it conveys, 52, 53 does not convey the lands of the, 52 judgment creditor may not take the chattels and rolling-stock of railway, 54 rights of statutory bondholder of, 55, 56 priority does nol exist between mortgagees of, 56, 57 priority in favour of mortgagees and statutory bondholders of railway, 57 receiver appointed of chattels of railway, 50 receiver appointed of, until meeting, 78 GENERAL INDEX. 209 CONSIGNEE, appointment of, 200 must give security, 201 who may be appointed, 201, 202 mortgagee of West India estate will not be appointed, 99 not answerable for orders of the court, 202 has a charge on the property for payments sanctioned by the court, 202 not discharged, until accounts are paid, 203, 204 CONTEMPT, interference with possession of a receiver is a, 124, 125, 126 may be punished by committal, 134 usually punished by making tbe party pay costs, 135 party in, restrained from interfering witb possession of receiver, 135 interference by sheriff with possession of receiver a, 136, 137 of receiver in not obeying the order of the court, 179, 180 CORPORATION. See Companies. receiver appointed of property of municipal, 46 manager of, not appointed, 199 COSTS, of motion for receiver, 9, 10, 25 of appointment of receiver are paid by the receiver, and credited to him on passing his accounts, 117 what, allowed to receiver, 166, 167, 168, 169 what, not allowed to receiver, 151, 166, 167, 168, 169, 170 of discharge, when receiver entitled to, 187 of parties attending the passing of the accounts, 175 of parties claiming under a title paramount to the receiver, 132 of order that tenant shall pay rents, 141 of protecting his possession, in what cases tenant entitled to, 151 of four day order, receiver must pay, 179 receiver appointed to secure payment of, 46, 61 party in contempt for disturbance of receiver ordered to pay, 135 of defending actions without leave, when allowed, 151, 168 COURT ROLLS, order for delivery of, to receiver, 141 COVENANT, receiver appointed in cases of breach of, 61, 62 COVENANTOR ant- COVENANTEE. See COVENANT. p •Jill GENERAL DTDEX. CREDITORS, receiver appointed in Buitsby, 39, 40 equitable creditors, 4 1, 4-2, 43 judgment creditors, 44, 46 DAMAGES, receiver allowed to proceed at law for, against a party who had irregularly put a writ of fi. fa. in execution against him, 180 DECREE, receiver appointed after, 105, 10(5 receiver appointed before, 104 pro confesso, receiver appointed after, 1 1 1 DEFENDANT, receiver appointed on application of, 1<>6 DEVISEE, of real estate, receiver not appointed against, 83 DISCHARGE OF RECEIVER, in what cases unnecessary, 186 on his own application, 186 on satisfaction of incumbrances, 187 on his continuance being unnecessary, 188 causes for, 188, 189 over estate of infant, 189 of estates decreed to be sold, 190 not ordered, until balance due to him be paid, 190 or on application of one party only, 190 mode of application to, 191 service of application to, 191 order to, 191 vacating recognizance on, 191 DISTRESS, when receiver may distrain, 142, 144 when receiver should apply for leave to distrain, 143, 144 application for leave to distrain, how made, 144 receiver may employ a bailiff to make a, 143 abatement of suit does not affect power of, 145 when rescued, 145 DISTURBANCE, of a receiver, what constitutes, 127, 128 may be punished by committal, 134 how in general punished, 135, 136 DUTY OF RECEIVER, 138 to require parties to deliver up possession, 138, 139 GENERAL INDEX. 211 DUTY OF RECEIVER— continued. to require tenants to attorn, 139, 140 to take proper receipts, 142 over personal property, 145 not to institute proceedings without leave, 145, 151 as to letting estates, 146, 147, 148, 149 not to involve the estate in expense, 151 not to defend actions at law without leave, 151 over leaseholds, 154, 155 not to interfere between the parties, 156 not to petition or originate proceedings in the cause, 156, 157 when tenants are interfered with, 155, 156 appointed by mortgagee under statute try authority, 157, 158 EAST INDIES, receiver of estates in, 92 ECCLESIASTICAL BENEFICE, receiver not appointed of profits of, 91 E( CLESIASTICAL COURT, appointment of receiver pending proceedings in, 20, 21, 22 EJECTMENT, receiver cannot bring, without leave, 152 cannot lie brought against the receiver without leave, 128 when leave will be given to bring, against receiver, 133 ELEGIT CREDITOR. See Judgmknt Creditor. may obtain leave to sue out his elegit against property in posses- sion of a receiver, 132 ENTRY AND DISTRESS, receiver not appointed, where the party or a trustee for him has the power of, 29 unless a special case be made nut, 29, 30 EQU ITABLE CREDITO I i S, receiver appointed at suit of, 41, 42, 43 EQUITABLE ESTATE, person having an, when entitled to a receiver, 6, 33, 37, 84, 85 EQ C IT A RLE MORTGAGEE, receiver appointed at suit of, 6, 37, 38 EVIDENCE, on motion for receiver, 107 EX ECUTION, by f>. fa. againsl receiver for non-payment of balance is im proper, 180 p 2 212 GENERAL INDEX. EXECUTION CREDITOR, may obtain leave to levy on property, notwithstanding the pos- session of a receiver, 132, 1:5:5 EXE( !UTORS. Sec Trustee. iim river not in general appointed against, 12, 13, 14 in what cases a receiver appointed against, 14, 15, 16, 17, 22 of deceased receiver may apply for leave to pass his accounts, 183 FELLOWSHIP, in a college, receiver may he appointed of, 91 FOREIGN COUNTRIES, receiver may he appointed of property in, 02, 93 manager may he appointed of estates in, 199, 200 leases hy receiver of estates in, 148, 149 FOREIGN COURT, appointment of receiver pending litigation in, 17, 20, 28, 76 FRAUD, receiver appointed in cases of, 58, 61, 85 receiver and consignees may he sued on the ground of, 162 GUARDIAN, receiver of estate of infant appointed, though there he a, 12 same person may he appointed receiver and, 101 HEAD RENT, should he paid by receiver, 155 consequences of receiver not paying, 155 HEARING, receiver appointed at the, 1 04 HEIR AT LAW, receiver not appointed against, at suit of devisee, 83 unless in special cases, 85 HEIR LOOMS, receiver of, 89 INCUMBRANCERS, possession of receiver, how far for benefit of, 121, 122 right of prior, to apply to the receiver, 122 prior, must apply to the court for leave to proceed against receiver, 128, 129 proceedings by prior, 129, 130 proceedings by subsequent, 45 who make out their claim have a right to have the rents and profits applied by the receiver in discharge of their claim, 133 GENERAL INDEX. 213 INFANT, receiver appointed over estate of, 11, 12 notwithstanding there be a testamentary guardian, 12 not unless an action be brought, 101 receiver passing accounts with, immediately on their coming of age, 162, 182, 189 recognizance of receiver ought not to be vacated, till one year after coming of age of, 190 INJUNCTION, appointment of receiver operates as, 8, 64 cases in which ordered, as well as receiver, 8, 64 may be ordered though receiver refused, 64 may be refused, though receiver appointed, 75 application for, to restrain a receiver from paying monies to a person, or to restrain a person from receiving monies from a receiver, is irregular, 130 INTERESSE SUO, examination when directed, 129, 131 course of proceeding on examination, 129, 130, 131, 133 INTEREST, receiver not entitled to make, on balances, 171 receiver chargeable with, on 1 lalances not paid in, 1 80, 1 8 1 , 1 82, 192 from what period accrues, 181, 182 general order as to, 180, 182 chargeable at what rate, 180, 181, 182 payable by executors of deceased receivers, 183 receiver appointed to secure payment of, 61 INTERFERENCE, by third parties with possession of receiver, 124, 125, 1^0 proceedings in such case by the receiver, 134, 135 INTERIM receiver, 22, 65, 114, 118 JUDGMENT, receiver may be appointed after, 106 JUDGMENT CREDITORS, take what under an execution, 45, 51, 52 receiver appointed at suit of, 44, 45, 46 of companies may have a receiver, 50, 53, 54 of companies, and mortgagees, priorities between, 51, 52 of companies, what they take, 51, 52, 53 may bring an action against a receiver appointed in a suit insti- tuted by incumbrancers, and the incumbrancers to have debt paid out of the surplus, 133 may obtain a garnishee order, 132 may have an order foi ale, !■">, 55 in possession not required to attorn, 11) •J 14 GENERAL INDEX. JURISDICTION, to appoinl a receiver, I, 2, 24, -17, 48 pending litigation in a foreign court, 7, 20, 28 pending litigation as to probate, 20 of the Court of Chancery, to give redress to parties for the mis- conduct of a receiver in the exercise of his duties, 102, 163 LANDLORD, cannot distrain on land of a tenant over which a receiver lias l.r.-n appointed without leave, I 28 priority as between creditors and, in particular cases, 129 LEASEHOLDS, duty of receiver over, 154, 155 LEASES, power of receiver as to granting, 146, 147, 148 mode of granting, of property under the management of a receiver, 149, 150 duty of receiver as to, 147, 148, 149 as to renewal of, 148 should he signed hy the person having the legal estate, 148 LEGAL ESTATE, receiver not appointed against owner of, 82, 83 except in special cases, 59, 60, 84, 85, 86 receiver appointed against purchaser of, subject to equitable interests, 86 LETTING ESTATES. Sec Leases. power of receiver as to, 146, 147, 148, 149 LIABILITIES, of receiver, 159 for monies deposited with a banker, 159, 160 for monies not properly paid, 160, 161, 162, 170 for monies lost through his conduct, 159, 162 to third parties for misconduct in the exercise of his duties, 162, 163 of sureties, 189 LIQUIDATOR, appointed receiver, 99 right of, paramount to that of receiver, 128 LOSS, receiver how far liable for, 159 not unless occasioned by default, 159, 160, 161 when he deposits monies in the hands of a banker who fails, 159, 160 GENERAL INDEX. 215 LOSS — continued. solicitor who acts as receiver, liable for, 161 arising from default of the receiver must he home by the estate, 123 LUNACY, when a receiver will be appointed in cases of, 78, 79 receiver may be appointed on petition without bill filed, 101 MANAGEMENT OF ESTATE, applications as to, by the receiver made in chambers, 146, 153, 154 mode of proceeding in chambers with reference to, 153 MANAGER, in what cases appointed, 107, 198, 199 mode of appointment of, 200 in partnership cases, 65, 198 in the case of mines, 76, 198 of a private trade, 198 of a railway company, 54, 198, 199 of property abroad and in foreign parts, 199, 200 security by, 201 new, appointed in the event of the death of the present one, 202 commission and allowances of, 203 not discharged until his accounts are paid, 203, 204 MARKET, manager of, not appointed, 199 MARRIED WOMAN, may appoint whom she pleases receiver of her separate estate, 108 MEMBER OF PARLIAMENT, may be a receiver, 99 MINES, receiver appointed in the case of, 76, 81 MISCONDUCT, of receiver, remedies open to third parties for, 162, 163 MONIES. See Balanck. in hands of receiver appointed in a foreclosure suit belong to plaintiff on dismissal of the bill, L34 improperly paid by the receiver musl he replaced by him, 126, 127, 170 MORTGAGE DEBENTURE ACT, right t<> receiver under, 57 216 GENERAL INDEX. MORTGAGOB AND MORTGAGEE, mortgagee having legal estate cannot have a receiver, 29 exceptions to rule, 2!), 30 mortgagee of tolls may have a receiver, 37, 46, 47 Becond mortgagee cannot have a receiver against prior mortgagee in possession, 31, 32, 33 excepl in special eases, 34 second mortgagee may have, a receiver, without prejudice to prior incumbrancers, 34, 35, 30 second mortgagee may have a receiver, if prior legal mortgagee is not in possession, 35 equitable mortgagee may have a receiver, 37 receiver appointed under powers in a mortgage deed, or under statutory authority, 38, 39 powers and duties of, 157, 158 puisne mortgagee may have a receiver, though first mortgagee has by his deed of security a power to appoint one, 36 arrears of interest on mortgage a ground for a receiver, 36 nominee of mortgagee usually appointed receiver, 109 receiver is in law the agent of the mortgagor, 38, 39 form of order for receiver at suit of subsequent incumbrancers, 38 mortgagee claiming under a title paramount to that under which the receiver was appointed must apply to the receiver for payment, 121, 122 NEWSPAPER, manager of, appointed, 192 NEXT FRIEND, of infant cannot be receiver, 97 NOTICE, receiver not appointed except on, 102, 103 unless in special cases, 102, 103, 104 to cpait, receiver may give, 151 OFFICE, of receiver, nature of, 2 OFFICER, in the public service, in what cases a receiver will be appointed of the salary of, 88 ORDER, for receiver, what it should direct, 8, 9 on parties to deliver up possession, 9, 138, 139 on tenants to attorn, 9, 139 on tenants to pay rents to receiver, 141, 143 GENERAL INDEX. 217 on receiver to pay in balance, 179, 180, 183 • for receiver binds rents and profits from date of the order, 123 operates for benefit of parties to the suit, 124 PARTIES, on the application for a receiver, 7 by second or third mortgagees, 37 to suit removed from possession by appointment of receiver, 118, 119 receiver appointed on behalf of all interested, 121, 122, 190 to suit by incumbrancer to establish his priority, 129, 130 to suit by judgment creditor to have his debt paid out of the surplus, after payment of prior incumbrancers, 130 PARTNERS, principles on which receiver appointed between, 63, 64, 75 receiver not appointed between, unless a case for dissolution be made out, 64, 66, 67, 69 misconduct of one partner a ground for a receiver between, 65, 66, 72, 73, 74 death or bankruptcy of one partner, not of itself a ground for a receiver, 70, 71 when aground for a receiver, 70, 71, 72 death of both a ground for a receiver, 7 1 receiver appointed between, where they have by agreement divested themselves of the right of winding up, 75, 76 of mining partnerships, 76, 77 order appointing a receiver between, 7 7 partner appointed receiver, 77 PARTY to action, not in general appointed receiver, 94 must obtain leave to propose himself as receiver, 109 if appointed, will not be removed on light grounds, 110 when appointed must act without salary, 95, 169 does not thereby lose his privileges as party to the cause, 95, 157 PAYMENT, of balance by receiver how made, 178 how enforced at suit of parties interested, 179, 180 by tenants pending or after appointment of receiver, 123, 124 by receiver of monies under an order of a court of* law is im- " proper, 126, 127 PEER, cannot be a receiver, 99 PENSION, in what cases a receiver will be ap] ted of, 89 218 GENERAL INDEX. PERSONAL AUTHORITY, <>f i> r,-i\ er, I 53 PERSONAL ESTATE, receiver appointed on bill of Bale of real estate of deceased debtor, when there is no personal estate, 40 PERSONAL 'PROPERTY, duty of receiver appointed over, l 15 PERSONAL REPRESENTATIVES, of deceased receiver may apply for liberty to pass accounts, L83 PETITION, receiver no1 appointed on, without action pending, 101 except in the case of lunatics, 101 or in cases within the Railway Companies' Act, 1867, 101 or in cases within Mortgage Debenture Acts, 1 U 1 application by a person who is not a party to the cause should be by, 130, 154 PLAINTIFF, may in special cases be appointed receiver, 107, 108 PLEADING, on application for a receiver, 6, 7 pending litigation as to probate, 26, 27, 28 where suit is instituted by an equitable creditor, 44 where suit is instituted by the mortgagee of the tolls of a company, 48, 49 POSSESSION, how receiver is put into, 138, 139 where owner is in possession, 138, 139 where tenants are in possession, 139 parties to suit removed from, by appointment of receiver, 118, 119 of receiver, disturbance of, a contempt, 124, 125, 126, even though he may have been improperly appointed, 125 party having paramount claims may obtain leave to enforce his right notwithstanding, 128, 129 equity where estate of stranger comes into, 154 is possession of all parties according to their titles, 121, 122 m bankruptcy, 119, 124 POUNDAGE. See Allowances. — Salary. GENERAL INDEX. 219 PROBATE. receiver appointed pending suit as to grunting, 20, 21, 22 as to recalling or revoking probate, 22, 23, 24 power of court of probate to appoint an administrator, and receiver pending litigation as to, 24, 25, 26 costs of appointment of receiver pending litigation as to, 25, 28 PRO CONFESSO, receiver on bill, 111 PRO IXTERESSE SUO, practice as to going in to be examined, 129, 130, 131 PURCHASER. See Vendor and Purchaser. QUIT, notice to, given by receiver, 151 RAILWAY COMPANY. See Companies. manager of, in what cases appointed, 54, 198, 199 RATES, receiver not granted of future, to be assessed by commissioners, 89 REAL ESTATE, receiver of, not appointed, where there is a trustee having the legal estate or power of entry and distress, 2 9 unless in special cases, 29, 30 receiver appointed on bill for sale of, where personal estate is exhausted, 40 receiver appointed against purchaser of legal estate in, subject to equitable interests, 6, 86 receiver not appointed against legal estate in, at the suit of a party claiming under a mere legal title, 82, 83, 84 unless in special cases, 58, 84, 85, 86 receiver appointed at instance of purchaser of, against a post- nuptial settlement, 60 at instance of vendor of, where purchaser was in embarrassed circumstances, 59 against tenant in tail who has covenanted to suffer a reco- very, but refuses to do so, 61 where there was a covenant to convey by way of securing a debt, 61 where receiver appointed as between tenants in common of, 79, 80 as between partners in, 76, 81, 82 RECEIPTS, duty of receiver to keep, | 12 220 GENERAL INDEX. RECEIVER, jurisdiction to appoint a, 1 nature of the office of, 2 object of appointment of, 2 mode of appointment of, L01, L02, 103, L04, L05 appointment of, a matter of discretion, 3 principles on which appointed, 3, 4, 5, 6 order for, operates as an injunction, 8, •'> I may be refused, though injunction is ordered, 64 not appointed <>u submission of defendant to terms, 8 appointed in lieu of sequestration, 40 in bankruptcy, possession of, 11!), 124 Avliai order for, should direct, 8, 9 time when application for, may be made, 102, 103, 104 who may be, 94, 9. r >, 96, 97, 98, 99 nomination of, 107, 108, 109 consideration looked to in selecting a, 98, 108 is generally chosen in chambers, 108 person named by party having the conduct of the proceedings is generally appointed, 108, 109 when appointed will not be removed on light ground, 110 duly appointed is an officer of the court, 118, 124 protected in the discharge of his office, 124, 125, 126 may not be interfered with without leave, 125, 126 effect of appointment of, 118, 121 right not affected by appointment of, 120, 121, 122 considered agent of party entitled, 123 appointment on behalf of all parties interested, 121, 122 appointment of, does not stand in the way of the legal rights of parties having paramount claims, 128, 129, 130, 131, 132 duty of, 138, 139, 142 must take proper receipts, 142 must not involve the estate in expense, 151 should not interfere in any litigation between the parties, 156 should not originate proceedings in the cause, 156, 157 may in some cases file a bill to restrain waste, 157 duty of, when tenants are interfered with, 155 cannot be tenant either personally or through the medium of a trustee of the estate over which he is receiver, 149 what payments he may make without a special order, 152, 155 notice to quit by, under what circumstances it ma} be given, 151 may employ bailiff to distrain, 143 cannot bring ejectment without leave, 152 power of, as to repairs, 152, 153 as to granting leases, 146, 147, 148 GENERAL INDEX. 221 RECEIVER — continued. should apply to the judge as to the management of the estate, 146, 153, 154 bound forthwith to pay into court all balances in his hands, 161, 178 may not make interest on the balance in hand, 171 liabilities of, 159, 160, 161 to third parties for misconduct, 162, 163 salary and allowances of, 164, 165, 166, 167, 168, 169 accounts of, 173, 174 passing, 174, 175, 176 discharge of, 186, 187, 188, 189 not removed except for substantial reasons, 110, 111 monies due by, a debt of record, 161 RECEIVER GENERAL OF COUNTY, cannot be receiver, 99 RECOGNIZANCE, receiver required to enter into, 112, 113, 114 where dispensed with or modified, 113, 114, 115 mode of acknowledging, 115, 116 as to enrolling, 115, 116 when and how put in suit, 183, 184, 185 as to vacating, 191 course of surety where an action is brought against biru on the, 195 REMOVAL OF RECEIVER, not ordered except on substantial grounds, 110, 111 ordered where his private interests are in conflict with his duties, 95, 96 RENEWAL OF LEASES, duty of receiver as to, 148 RENT, receiver entitled to arrears of, 141, 142 may apply by summons thai tenant pay the, 141 in what cases party in possession charged with occupation, 141 receiver cannot raise or abate the, 149 RENT CHARGE, in what cases owner of, may have a receiver, 30 person who has sold land to a railway company in consideration of, may have a receiver, 47 owner of, must obtain leave to distrain, if a receiver be in pos- session, 132 RENTS AND PROFITS, bound from date of order for appointment of receiver, L23, 124 222 GENERAL 1N1>K\. REPAIRS, receiver cannot lay out money at his own discretion in, 152 monies expended by him in, may be allowed, 152, 153 receiver should apply to the judge in chambers, as to, 153 RESCUE, of distress, remedy in ease of, 145 s.\ I. .\ i;v. See Allowances. of receiver, 1 6 1, 1 65, 166 time df fixing amount of, 164 in what cases a receiver will he appointed without, 95, 9(5, 169 in what cases a receiver cannot he appointed over the, of a per- son, 88 disallowance of, of receiver, 186, 187, 192 SCIRE FACIAS, on recognizance, proceedings by, 184 SECURITY, receiver required to give, 112, 113, 114 in what cases dispensed with, 114 SELECTION, of person to be receiver, 107, 108, 109 S FENESTRATION, receiver appointed in lieu of, 46 against estate of receiver, 180 SHERIFF, may not disturb the possession of a receiver, 136, 137 will he restrained from compelling a receiver to interplead, 137 order where property in possession of a receiver had been taken by the sheriff, 136, 137 SHIP, receiver appointed of freight of, 90 SOLICITOR, in the cause cannot be receiver, 98 may he receiver in what cases, 98 receiver should not employ as his, the solicitor of the plaintiff, 176 receiver appointed of profits of business of, 90 acting as receiver liable for loss, 1(!1 S I ' E< IIFIC PERFORMAN( ! E, receiver appointed pending suit for, 59, 60, 86 GENERAL INDEX. 223 STATUTE OF LIMITATIONS, not affected by appointment of receiver, 1 2 1 SUMMONS, receiver may be appointed in a suit commenced by, 101 SURETY, for receiver, who may not be, 114 objection to person proposed as, 113, 114 not discharged at his own request, 193 unless under special circumstances, 193 on discharge of, fresh recognizance necessary, 193 bankruptcy or death of, without leaving property, 193, 194 order on discharge of, 194 extent of liability of, 195 allowed to attend passing accounts of bankrupt receiver, 194 putting recognizance in suit against, 184, 185 may apply to stay proceedings against him on the recognizance, 195 paying monies for receiver entitled to be indemnified, 196 to whom he should pay monies, 195, 196 TENANTS, must attorn to the receiver, 139, 140 how receiver may proceed against, when rents in arrear, 141, 142, 143 TENANTS IN COMMON, in what case a receiver may be appointed between, 79, 80, 8 1 receiver appointed between infants, not discharged on one of them coming of age, 80, 81 TENANT FOR LIFE, peceiveT appointed against, 03 must pay costs "I' the receiver, 171 uii the death of, the possession of the receiver is at an end, 13 1. 186 TEX A XT IX TAIL, receiver appointed against, who covenanted to suffer a recovery and M'lw ed to do -", 61 TIMBER, recen ei should apply tn the judge in chambers fur leave to cut, 1 53 TOLLS, i/l' an undertaking, receiver may be appointed of, :!7. 4 7, 48 mortgage of, what it sonveys, 52, 53 TRUSTEE, receivet not appointed against, on light grounds, 12, 13, I I 224 GENERAL INDFA'. TRUSTEE— continued. misconduct of, a ground foi a receiver, 14, 15, 18 bankruptcy of, when a ground for a receiver, 15, 16 poverty, &c, of, when a ground for a receiver, 16, 17 sole, abroad, when a ground for a receiver, 17, 18 receiver appointed on consent of, 18, 1!) receiver appointed against, where 1 rust arises by implication, 19, 20 cannot be a receiver, 95, 06 unless in special eases, [)G appointed receiver must act without salary, 96 excepl in special cases, 96, 97 TURNPIKE TOLLS, receiver appointed over, 89, 90 UNPAID VENDOR, receiver at suit of, 50, 60 VACATING RECOGNIZANCE, 191, 196 VENDOR AND PURCHASER, receiver where appointed in cases between, 58, 59, 60, 61 VOUCHERS, receiver must keep, 142 WARD OF COURT, as to opening accounts of receiver with, 162 WASTE, in what cases receiver may file a bill to restrain, 157 lessee of land in possession of receiver restrained on motion from committing, 154 WEST INDIES, receiver appointed of estates in the, 92, 200 WRIT OF POSSESSION, in what cases it may be obtained by a receiver, 1 38 THE END. I l'Y. .V.VF.W. we 00., I'HIVITIIS. WHITEFRIAES .1/ uc SOUTHEl --GIONAL LIBRARY FAr AA L ^60 094 3