THE LAW 
 
 OF 
 
 KECEIYERSHIPS 
 
 AS ESTABLISHED AND APPLIED 
 IN THE UNITED STATES, GREAT 
 BRITAIN AND HER COLONIES, 
 
 WITH 
 
 PROCEDURE AND FORMS 
 
 BY 
 JOHN W. SMITH, Esq. 
 
 OF THE CHICAGO BAB 
 
 SECOND EDITION 
 
 LAWYERS' CO-OPERATIVE PUBLISHING CO. 
 ROCHESTER, N. Y. 
 
 1900
 
 Entered according' to Act of Congress in the year cijrhteen hundred ninety-seven, by 
 
 THE LAWYERS' CO-OPERATIVE PUBLISHING CO. 
 
 In the Office of the Librarian of Congress, at Washington, D. C. 
 
 Entered according to Act of Congress in the year nineteen iiundred, by 
 
 THE LAWYERS' CO-OPERATIVE PUBLISHING CO. 
 
 In the Office of the Librarian of Congress, at VVasliington, D. C. 
 
 T 
 \9oo 
 
 E. R. ANDREWS, PRINTER, ROCHESTER, N. Y.
 
 PREFACE. 
 
 Perhaps no other branch of the law more forcibly illustrates the 
 constant and steady growth of remedial jurisprudence, and its 
 adaptation to the ever changing conditions of business institutions 
 and methods than that of receivership. The crowning feature of 
 equity jurisprudence, in general, is its power under all circum- 
 stances of meteing out even and exact justice ex foi'o conscieiiticB 
 to all parties in interest, untrammeled by legal forms and distinc- 
 tions. It draws to itself all parties and interests, and gives to each 
 protection pendente lite, adjudicates and determines their equitable 
 rights and enforces them to the extent of the property or fund 
 subject to distribution. The basic principle in the law of receiver- 
 ship is in the power of the chancellor, through a receiver, to seize 
 property, the subject-matter of litigation, preserve it pending suit, 
 and finally distribute the same, or tlie proceeds, according to the 
 equitable rights of the parties concerned. As it is the inefficiency 
 of the common law remedies that affords a field for the exercise of 
 chancery jurisdiction, so the latter is rendered more efficient, com- 
 prehensive and expeditious by the aid of the law of receivership. 
 It has been said that receivership is of recent origin, but it is more 
 correct to say that its extended application is comparatively recent. 
 The great increase in recent years in the number of private corpor- 
 ations, caused by the advantages of concentrated capital, has been 
 instrumental in largely extending the law of receivership. This 
 growth has been augmented by the difficulties encountered by the 
 courts through the ordinary avenues and instrumentalities in 
 affording adequate relief under the varied and conflicting interests 
 involved. The difficulties thus encountered developed the law of 
 corporate receivership, and its extension in this direction has had a 
 stimulating effect in its application to other equitable proceedings, 
 such as creditor's actions, partnership dissolutions and mortgage 
 foreclosures. 
 
 It has been the purpose of the writer to indicate as carefully, 
 briefly and concisely as possible the scope of the law of receivership 
 as it now exists, in its application to the several proceedings in 
 which it has been employed. At the same time it has been deemed 
 of equal importance to indicate, in the same manner, the limita- 
 
 735991
 
 IV PREFACE. 
 
 tions and restrictions courts have deemed necessary to impose upon 
 the exercise of jurisdiction in this regard. 
 
 An earnest effort has been made to discover and state tlie under- 
 lying principles by which the courts have been governed in estab- 
 lishing any given proposition or doctrine, in the belief that the mere 
 abstract statement of the law upon any subject is more effective and 
 of greater utility to the court and practitioner if in the same con- 
 nection may be seen the principles upon which a decision is based, 
 and the leading facts upon which it is made. Bat for this the 
 notes herein would seem out of proportion. 
 
 It is a fruitless task, in some cases, to attempt to reconcile con- 
 flicting decisions, but generally a careful examination will show 
 differentiating facts and circumstances in the cases or lines of cases, 
 and this results in the establishment of general rules and exceptions 
 which have been followed out herein as carefully as possible. 
 Equitable principles are seldom matters of dispute, but the applica- 
 tion of those principles to the varying facts and circumstances 
 arising in litigation taxes courts and lawyers to the utmost. 
 
 If we have not been mistaken the profession demands in a text- 
 book not only the carrying out of the principles above indicated, 
 but also insists upon a reference to all the decided cases. It may 
 be that the case requires, and the time at the lawyer's disposal 
 justifies, a personal examination of all the adjudged cases upon the 
 questions involved. 
 
 Having prepared this work along the lines thus indicated, the 
 author trusts it may meet the requirements of the profession. 
 
 J. W. S. 
 Chicago, Feb. 15, 1897. 
 
 In recognition of the very gratifying reception my effort to pre- 
 sent the law of this subject has met with from the profession, I 
 have prepared a supplement to the original work, covering the 
 later decisions to January 1, 1900, and enlarging upon some points 
 where further study made it seem to me desirable. This Supple- 
 ment follows the chapters and sections of the original work and 
 may be referred to from it. 
 
 J. W. S. 
 Chicago, May, 1900.
 
 TABLE OF CONTENTS. 
 
 CHAPTER I. 
 
 GENERAL NATURE AND FEATURES OP THE LAW. 
 
 § 1. Origin of the law ; its growth 2 
 
 g 2. Is ancillary and provisional 3 
 
 ^ 3. Receiver defined ; liquidators 3 
 
 § 4. Generally, in what cases appointed 6 
 
 (a) Where parties entitled to custody are incompetent. 
 
 (i) Over infants' estates. 
 
 (2) Over lunatics' estates. 
 
 (3) Over decedents' estates. 
 
 (b) Where parties entitled to custody are competent, but are other- 
 
 wise disqualified. 
 (T) Over copartnership property. 
 (S) Over property of tenants in common. 
 (3) Over properly claimed by different persons. 
 
 (c) Where parties in custody are violating fiduciary duties and 
 
 trust relationship. 
 (1) Over trust or quasi trust property. 
 (3) Executors and administrators. 
 
 (3) Mortgagors in possession. 
 
 (4) Judgment debtors. 
 
 (5) Vendees in possession. 
 (C) Fraudulent purchasers. 
 
 (7) Annuities. 
 
 (8) Life tenants in possession. 
 
 (9) Corporate officers. 
 
 (10) Assignees in bankruptcy and insolvency. 
 
 (d) Where the ordinary process is insufficient. 
 
 (1) Creditors' suits, supplementary proceedings. 
 (S) Separate estates of married women. 
 (3) Statutory proceedings to wind up corporations. 
 § 5. Rules governing the appointment 10 
 
 (a) Appointment rests in the sound discretion of the court. 
 
 (b) Must be reasonable possibility of plaintiff's recovery. 
 
 (c) Must be a necessity of preserving property. 
 
 (d) Defendant must be heard or have an opportunity. 
 
 (i) Exception : Final relief. 
 (S) Exception : Where all parties before court. 
 (3) Exception : Where defendant absconded. 
 {4) Exception : Where imminent danger of loss. 
 V
 
 vi TABLE OF CONTENTS. 
 
 I 6. Functions of the receiver 20 
 
 (a) Source of power ; nature and extent. 
 
 (b) Trustee for all parties ; responsibility. 
 
 (c) Care and custody of property. 
 
 § 7. Effects of appointment 23 
 
 (a) Places property in custodia legis. 
 
 (b) Receiver not permitted to be sued. 
 
 (c) Determines no rights, and affects no liens. 
 
 § 8. Kinds of receivers 25 
 
 § 9. At what stage appointed 26 
 
 (a) There must be a suit pending. 
 
 (b) Before answer, when. 
 
 (c) After decree and sale, when. 
 
 (d) After appeal, when. 
 
 §10. Application for ; allegations ; who appointed 27 
 
 (a) By whom application made. 
 
 (b) Exercise of care by the courts. 
 
 (c) Allegations ; averments. 
 
 (d) Receiver must be disinterested. 
 
 (e) Subsequent receivers, ancillary. 
 
 CHAPTER 11. 
 
 MATTERS RELATING TO THE APPOINTMENT. 
 
 § 11. Scope of the bill of petition 32 
 
 § 12. Time when appointed - 33 
 
 (a) Early English practice. 
 
 (b) Modern English practice, adoption of. 
 
 (c) After decree. 
 
 (d) After appeal. 
 
 § 18. Must be suit pending — 35 
 
 § 14. Rules governing appointment ; general principles 37 
 
 § 15. Grounds upon which jurisdiction is entertained 37 
 
 (a) Preservation of property. 
 
 (b) Danger of loss. 
 
 (c) Fraud. 
 
 (d) Insolvency. 
 
 (e) Plaintiff's title. 
 
 (f) Remedy at law. 
 
 § 16. Jurisdiction not entertained 45 
 
 § 17. Effects of appointment 45 
 
 (a) Places property in custodia legis. 
 
 (b) Removes defendant from possession and custody. 
 
 (c) Property not to be interfered with by other courts. 
 
 (d) Does not change the title or ultimate right of possession. 
 
 (e) Custody of receiver coextensive with jurisdiction of court. 
 
 (f) Leaves the rights of all parties in statu quo. 
 
 (g) Receiver's rights relate to date of appointment. 
 (h) Extent of power as to property.
 
 TABLE OF C0:N TENTS. Vll 
 
 § 18. Courts exercising jurisdiction 54 
 
 § 19. Conflict of jurisdiction 56 
 
 § 20. Scope of jurisdiction 58 
 
 § 21. Wiio appointed 59 
 
 (a) His position as to court. 
 
 (b) Is a trustee as to parties. 
 
 §23. Form and scope of order G3 
 
 (a) Should specifically describe the property. 
 
 (b) Should embody power to preserve property. 
 
 (c) Should embrace all power necessary as to possession. 
 
 (d) But caution to be exercised as to property in the hands of 
 
 third persons, etc. 
 
 (e) Order relates back to the date of granting. 
 
 (f) Assignment not necessary to pass title. 
 
 (g) Order subject to modification. 
 
 (h) Order not subject to collateral attack, 
 (i) Nor affected by irregularity or error, 
 (j) Is subject to revocation. 
 
 (1) Where it was a nullity. 
 
 (S) Where the appointment secured by collusion. 
 
 (<?) When the appointment emprovidently made. 
 
 {4) When the court had no jurisdiction. 
 
 (5) Application for vacation must be in apt time, 
 (k) Order appointing may be appealed from, when. 
 (1) Effect of appeal from order. 
 
 (2) Appeal before possession. 
 
 (S) Receiver's functions suspended pending appeal. 
 § 23. Bond 73 
 
 (a) Required in all cases. 
 
 (b) Runs to whom, 
 
 (c) Sureties, who may be; discharge of. 
 
 (d) Suit on bond. 
 
 (e) Liability of sureties. 
 
 CHAPTER III. 
 
 RECEIVER'S POWERS. 
 
 § 24. Generally 81 
 
 § 25. Source of power; incidents 82 
 
 (a) Power should be embraced in order. 
 
 (i) Application to court for instructions, English rule. 
 American rule. 
 
 (b) Practice of the court. 
 
 (c) Power of statutory receivers, express or implied. 
 
 (d) Powers being limited is notice to all. 
 
 (e) Powers remain during continuance of suit. 
 
 (f) Irregular appointment, confirmed how.
 
 vui TABLE OF CONTENTS. 
 
 § 26. Power to borrow money - — 85 
 
 (a) When to carry on business, 
 
 (b) To complete road, etc. 
 
 § 27. Power to loan money — 87 
 
 (a) Must have specific power. 
 
 (b) Cannot loan to himself or to his firm. 
 
 (c) Conversion by firm. 
 
 (d) When liable for interest. 
 
 § 28. Power to compromise debts 88 
 
 (a) May do so under direction of court. 
 
 (b) May be given general power to. 
 
 (c) No power where defendant has fraudulently transferred. 
 
 (d) No authority to commute debts. 
 
 (e) No authority to accept stock when. 
 
 § 29. Power to employ counsel - 89 
 
 (a) Must have general or special power. 
 
 (b) Who employed. 
 
 (i) Not counsel of either party. 
 
 (2) Third parties no voice in selection. 
 
 (3) Complainant's counsel when pioper. 
 
 (4) When plaintiff's counsel cease to be such. 
 
 § 30. Power to sue... 91 
 
 (a) All suits under direction of court. 
 
 (b) Rights of action available to debtor are to him, etc. 
 
 (c) Leave of court necessary. 
 
 (d) Necessary allegations. 
 
 (e) Power to avoid what contracts. 
 
 § 31. Power to make repairs 93 
 
 (a) Without order power limited. 
 
 (b) Power liberal when repairs permanent. 
 
 § 32. Power to purchase supplies, labor, etc 94 
 
 § 33. Power to continue business 96 
 
 § 34. Power to sell, purchaser's title, etc _ 98 
 
 (a) Right to sell real and personal estate. 
 
 (i) Order of court directing. 
 {£) Must describe property. 
 
 (b) Evidence of title; purchaser's requirement. 
 
 (c) Sale not subject to collateral attack. 
 
 § 35. Power to perform existing contracts; limitations 102 
 
 (a) Generally such power not granted. 
 
 (i) It would be a payment. 
 
 (5) Receiver agent of court and not of owner. 
 (3) Would be a preference as to creditors. 
 
 (b) May complete under order of court. 
 
 § 36. Power to lease 104 
 
 (a) When he may do so. 
 
 (b) Power to cancel lease when.
 
 TA.BLE OF CONTENTS. IX 
 
 § 37. Power over property in foreign jurisdiction 108 
 
 (a) English rule. 
 
 (b) American rule. 
 
 § 38. Power to impeach fraudulent acts of debtor Ill 
 
 § 39. Power to collect unpaid stock subscriptions 115 
 
 § 40. Power to issue certificates 117 
 
 § 41. Power to appeal 117 
 
 § 42. Miscellaneous powers 119 
 
 CHAPTER lY. 
 EECEIVER'S POSSESSION. 
 
 § 43. How disturbed 121 
 
 § 44. Not disturbed by court of co-ordinate jurisdiction 122 
 
 § 45. Not to be disturbed by levy 126 
 
 § 46. Not to be disturbed by strikes, conspiracies, etc 180 
 
 (a) Courts will not enjoin employees from quitting service. 
 
 (b) Bat will enjoin conspiracies. 
 
 § 47. Leave of court, when required 132 
 
 § 48. Duty of receiver to take possession of property 133 
 
 § 49. As against public improvements 135 
 
 § 50. Duty as to operating a new business 135 
 
 § 51. As to tenants _ 136 
 
 §52. As to whom restored _ 136 
 
 § 53. Extent of 136 
 
 § 54. As to taxes. 137 
 
 § 55. As to set-off 138 
 
 § 56. As to exemptions 139 
 
 S 57. As to executors and administrators ._ 139 
 
 CHAPTER Y. 
 
 RECEIVER'S TITLE. 
 
 § 58. Defined 140 
 
 § 59. By possession 142 
 
 § 60. In supplementary proceedings 143 
 
 § 61. In statutory proceedings 144 
 
 § 62. In actions pendente lite 145 
 
 § 63. To choses in action due from nonresidents. / 145 
 
 § 64. To choses in action generally 146 
 
 § 65. To real estate in foreign states 147 
 
 § 66. To real estate generally 148 
 
 6^ 67. Extent of 149 
 
 §68. Subject to allliens, etc 150
 
 X TABLE OF CONTENTS, 
 
 CHAPTER VI. 
 
 SUITS BY RECEIVERS— DEFENSES TO. 
 
 § G9. Authority of the court Decessary. 153 
 
 (a) Where decree authorizes suit. 
 
 (b) Where debt is due the receiver officially. 
 
 (c) Where suit is in the court appointing. 
 
 (d) Where waste is being committed. 
 
 (e) Where the statute authorizes suit. 
 
 (f) Leave is in the discretion of the court. 
 
 § 70. Receiver's right to sue limited 156 
 
 (a) To the rights of action of the person for whom appointed. 
 
 (b) Except when by statute he represents creditors. 
 
 (c) Except where the act complained of is ultra vires. 
 
 (d) Except in supplementary proceedings. 
 
 § 71. Receiver's authority must be shown 158 
 
 (a) That his principal had a valid cause of action. 
 
 (b) The time and mode of appointment. 
 
 (c) His qualification by giving bond when required, 
 
 (d) Permission to sue. 
 
 § 72. Receiver's power to sue in his own name 160 
 
 (a) Must be so empowered by court, or 
 
 (b) Authorized by statute. 
 
 (c) When not so authorized must sue in name of principal. 
 
 § 73. Power of receiver to sue in foreign jurisdiction 163 
 
 (a) Generally. 
 
 (b) Early English doctrine, 
 
 (c) Later English doctrine. 
 
 (d) Early doctrine in United Stater. 
 
 (e) Later doctrine in United States. 
 
 § 74. Power to sue in foreign jurisdiction as to realty 170 
 
 § 75. Power of receiver to sue in matters of fraud, trusts, etc _ 171 
 
 § 76. Suits against officers of corporations 172 
 
 § 77. Suits against stockholders on unpaid subscriptions 173 
 
 § 78, Suits against stockholders on statutory liability 177 
 
 § 79. Suits to invalidate liens - 178 
 
 § 80. Suits on debtor's bond, replevin, distraint, etc 179 
 
 § 81, Defenses to actions brought by receivers — setoff , 180 
 
 CHAPTER YII, 
 
 SUITS AGAINST THE RECEIVER. 
 
 § 82. Generally - 182 
 
 § 83. Order of court necessary 183 
 
 ^ 84. Exceptions to the rule _-- 186 
 
 (a) Not necessary in United States courts. 
 
 (b) Receiver operating railroad in foreign state. 
 
 (c) In cases of garnishment, when.
 
 TABLE OF CONTENTS. Xl 
 
 (d) Where suit is to fix damages merely. 
 
 (e) Where levy and sale by judgment creditor. 
 
 (f) Where receiver has sold property illegally. 
 
 (g) Where he defends without objection. 
 
 ^ 85. In what court receiver may be sued 190 
 
 § 86. Suits against receiver for negligence 192 
 
 § 87. When suits against him may be enjoined 193 
 
 § 88. Receiver's defenses 194 
 
 § 89. Character of judgment against receiver 195 
 
 § 90. Receiver a party when necessary 196 
 
 § 01. Receiver may be restrained 197 
 
 § 92. Effect of discharge of receiver as to suits against him.- 197 
 
 CHAPTER YIII. 
 LIABILITY OF RECEIVER. 
 
 § 109. Generally 199 
 
 (a) When liable. 
 
 (b) When not liable. 
 
 § 110. Must obey orders of court 205 
 
 § 111. Liability for use of property, money, etc., contempt-.- 206 
 
 § 112. As common carrier 208 
 
 § 113. As common carrier for personal injuries.- 209 
 
 § 114. As common carrier for damages _ 211 
 
 § 115. Corporation in hands of receiver not liable 213 
 
 § 116. Liability for use of receivership funds 214 
 
 § 117. For default of another 216 
 
 § 118. For supplies, labor, etc , - 217 
 
 § 119. For money deposited in bank _ - 218 
 
 § 120. For costs and expenses 219 
 
 § 121. For rents .- 220 
 
 § 122. On unexpired leases - 221 
 
 § 123. Adoption of lease by receiver 222 
 
 § 124. Liability on leases made without order of court --- - 224 
 
 § 125. On contracts other than leases - -. 224 
 
 § 126. On contracts of predecessor 225 
 
 § 127. Order of payment; preferred payments 228 
 
 (a) As between judgment creditor and mortgagee. 
 
 (b) In proceedings for foreclosure of railways. 
 
 § 128. When personally liable 228 
 
 § 129. Liability for attorney's fees - 230 
 
 § 130. For disobeying orders of court --- -. 231 
 
 § 131. To account- --- 232 
 
 S 132. Order on receiver to pay; effect of -.. 232 
 
 § 133. Effect of discharge --- 233 
 
 § 134. Liability for unjust freights exacted 233 
 
 § 135. Power of court over executors of receivers 233 
 
 § 136. Liability for contempt of court -- 234
 
 XU TABLE OF CONTENTS. 
 
 CHAPTER IX. 
 
 CREDITOR'S BILLS. SUPPLEMENTARY PROCEEDINGS AND 
 PROCEEDINGS IN AID OF EXECUTION. 
 
 § 146. General nature of remedy 235 
 
 (a) Chancery jurisdiction. 
 
 (b) Based on inadequacy of common law remedies. 
 
 (i) Common law remedies must be exhausted. 
 {2) Claim must be reduced to judgment. 
 (5) Execution returned nulla bona. 
 (4) Exception to rule as to exhaustion of legal remedies. 
 § 147. Classes of creditor's proceedings 240 
 
 (a) In equity to annul fraudulent transfers. 
 
 (b) Creditor's bills proper. 
 
 (c) Supplementary proceedings, statutory. 
 
 § 148. Fraudulent conveyances 241 
 
 (a) Effect generally. 
 
 (b) Rule as to execution. 
 
 (i) Exception in case of lien by attachment. 
 
 (2) of debtor's insolvency. 
 
 (3) of fraudulent conveyances. 
 
 (4) of levy on property conveyed. 
 
 (5) of an absconding debtor. 
 
 (6) of insolvent's estate. 
 
 (7) of waiver by debtor. 
 
 § 149. Jurisdiction in matters of assignment 249 
 
 (a) Where assignment is fraudulent. 
 
 (i) Where the debtor is to continue business, 
 
 (2) Where benefit to debtor reserved. 
 
 (3) possession to remain with debtor. 
 
 (4) debtor to derive personal benefit from partnership 
 
 assets. 
 
 (5) intentional omission of assets. 
 
 (6) fictitious liabilities. 
 
 (b) Where assignment is valid, but assignee fails or refuses to act. 
 
 (1) Where the assignee fails or refuses to carry out the trust. 
 
 (2) Where the assignee is guilty of mismanagement. 
 
 P 150. Supplementary proceedings 251 
 
 § 151. Necessity of ofiicers retaining execution, statutory period 252 
 
 (a) When required. 
 
 (b) When not required. 
 
 § 152. Practice in code states 254 
 
 § 153. Appointment of receiver, order, duties, etc 255 
 
 § 154. Receiver's powers in supplementary proceedings 256 
 
 § 155. Functions 258 
 
 § 156. Right to sue and be sued 260 
 
 § 157. Order of appointment 261 
 
 § 158. Power in foreign jurisdiction .-- 262
 
 TABLE OF contents; XlU 
 
 § 159. Priorities under creditor's bills 263 
 
 § 100. Courts reluctant to appoint where legal title involved 264 
 
 CHAPTER X. 
 
 RECEIVERSHIP IN FORECLOSURE OF MORTGAGES. 
 
 § 170. Generally 266 
 
 § 171. Usual grounds for invoking jurisdiction 26G 
 
 (a) Where mortgage provides for receiver. 
 
 (b) Where statute provides for receiver. 
 
 (c) Where security is inadequate. 
 
 (d) Where waste is being committed. 
 
 (e) Where mortgagor is guilty of fraud. 
 
 § 172. When appointed 267 
 
 (a) Where rents and profits are pledged. 
 
 (b) Where security is inadequate. 
 
 (c) Where trustee refuses to take possession. 
 
 (d) Where there are equitable grounds for appointment. 
 
 (e) Where statute provides for appointment. 
 
 (f) Necessity for appointment to be clearly shown. 
 
 (g) Where there is a contest as to property mortgaged. 
 
 (h) Where the mortgagor or his grantee are guilty of fraud, 
 (i) Where the mortgagor is committing waste, 
 (j) Where default in interest and property indivisible. 
 § 173. When not appointed 278 
 
 (a) Where legal title is in mortgagee and he has a legal remedy. 
 
 (b) Where by the terms of the mortgage the right is not given. 
 
 (c) Where by statute mortgagor entitled to possession until sale. 
 
 (d) Where plaintiff's allegations are denied or amount due is disputed. 
 
 (e) Where insolvency of mortgagor or his grantee not shown. 
 
 (f) Where right of plaintiff to foreclosure not clearly shown. 
 
 (g) Where plaintiff has no equitable standing in court. 
 
 (h) Where, pending appeal, appeal bond affords protection, 
 (i) Where defendant secures plaintiff by deposit, etc. 
 (j) Where receivership property is a statutory homestead, 
 (k) Where plaintiff guilty of laches. 
 § 174. Inadequacy of security as ground for 287 
 
 (a) Two elements. 
 
 (1) Insufficiency of property to pay debts. 
 (S) Insolvency of mortgagor or his grantee. 
 
 (b) One element not sufficient. 
 
 (c) Presumption as to adequacy. 
 
 (d) Rule in N. J., Cal.. S. C, la. and Mich. 
 
 (e) Inadequacy has reference to plaintiff's indebtedness alone. 
 
 (f) Rule relaxed when other equitable grounds shown. 
 
 (g) English practice as to rents collected before and after time for 
 
 redemption.
 
 XIV TABLE OF CONTENTS. 
 
 § 175. Same subject continued 294 
 
 t^ 176. Over what appointed .-- 295 
 
 § 177. When appointed 297 
 
 (a) Before decree. 
 
 (b) After decree. 
 
 § 178. General rules applicable 299 
 
 § 179. Relative rights of senior and junior mortgagees 299 
 
 (a) English rule. 
 
 (b) American rule. 
 
 § 180. Application of parties other than mortgagees 302 
 
 (a) In behalf of wife. 
 
 (b) In behalf of annuitants. 
 
 (c) In behalf of bondholders. 
 
 (d) In behalf of vendors. ' 
 
 CHAPTER XL 
 
 RECEIVERSHIP IN PARTNERSHIP MATTERS. 
 
 §190. Power to appoint 305 
 
 §191. When appointed - 30S 
 
 (a) Where partnership agreement or duty is violated. 
 
 (b) Where one partner is guilty of fraud. 
 
 (c) Where there is serious disagreement between partners. 
 
 (d) Where one partner is guilty of mismaoagement. 
 
 (e) Where there is a violation of dissolution agreement. 
 
 (f) Where one partner misappropriates firm property. 
 
 (g) Where there is insolvency of limited partnership, 
 (h) Where plaintiff is entitled to to a dissolution. 
 
 (i) Where upon dissolution partners cannot agree, 
 (j) Where partner in charge after dissolution is insolvent, 
 (k) Where there is an exclusion of one partner from profits. 
 (1) Where both partners are dead, 
 
 (m) Where surviving partner is guilty of mismanagement. 
 §192. When not appointed.. 308 
 
 (a) Where there is a mere disagreement between partners. 
 
 (b) Where existence of partnership is not established. 
 
 (c) Where the only ground is unprofitable business. 
 
 (d) Where defendant is responsible and charges not established. 
 
 (e) Where plaintiff is in possession and charge. 
 
 (f) Where plaintiff's allegations are fully denied. 
 
 (g) Where it does not appear that a dissolution will result, 
 (h) Where a receiver is not necessary. 
 
 § 193. Prerequisites to appointment 309 
 
 (a) Copartnership must be established, and, 
 
 (b) A substantial violation of agreement or duty shown. 
 
 §194. Who appointed 311 
 
 § 195. Appointment in case of retiring partner 313 
 
 8 196. In case of assignment by insolvent partner 315-
 
 TABLE OF CONTENTS. xv 
 
 ^197. In case of dissolution by death 316^ 
 
 § 19S. On application of creditors... 318 
 
 §199. In case of limited partnership 319 
 
 g 200. In case of expiration of partuership 321 
 
 ^ 201. In case of exclusion of partner 321 
 
 §202. In case of fraud by one partner 323 
 
 § 203. Where one partner is mismanaging business. 324 
 
 §204. On ground of insolvency 326 
 
 § 205. Where dissolution has taken place 329 
 
 § 206. Before dissolution 333 
 
 §207. On miscellaneous grounds ., 335 
 
 § 208. Appointment refused when 335 
 
 § 209. Receiver's power and duty 336 
 
 (a) Power depends on scope of order. 
 
 (b) Legal title to property does not vest in him. 
 
 (c) Cannot loan receivership fund to himself or his firm. 
 
 (d) Is representative of all parties in interest. 
 
 (e) Must use ordinary care and reasonable diligence. 
 
 (f) May maintain actions in other states when. 
 
 (g) Has no greater power than partners had. 
 
 §210. Effect of appointment... 338 
 
 § 211. Receiver as manager 339 
 
 CHAPTER XII. 
 
 RECEIVERSHIP OF CORPORATIONS. 
 
 §220. Jurisdiction 342 
 
 §221. Statutory power 345 
 
 §222. Exercise of power discretionary. 347 
 
 §223. Power to appoint, limitation of 349 
 
 §224. Application; by whom made ._ 350 
 
 (a) Stockholders. 
 
 (b) Sureties for corporation. 
 
 (c) Minority stockholders. 
 
 (d) Defendant. 
 
 (e) Directors. 
 
 (f) Judgment creditors. 
 
 (g) But not by corporation. 
 
 § 225. Grounds for appointment 355 
 
 (a) Statutory grounds. 
 
 (b) Default in mortgage indebtedness. 
 
 (c) Mismanagement. 
 
 (d) Insolvency and officers ceasing to act. 
 
 (e) When corporation dissolved. 
 
 (f) When charter repealed. 
 
 (g) When declared bankrupt. 
 
 (h) Neglect of majority to elect officers. 
 
 (i) When necessary to resort to unpaid subscriptions.
 
 xvi TABLE OP CONTENTS. 
 
 (j) When charter rights are violated, 
 (k) Judgment creditors. 
 §226. When not appointed 363 
 
 (a) Unless proceeding is to dissolve corporation. 
 
 (b) Mere disagreement not sufficient. 
 
 (c) Where no effort to secure redress through company. 
 
 (d) Law affords adequate remedy. 
 
 (e) Repairs are required by law. 
 
 (f) Defendant foreign corporation without property. 
 
 (g) Title to premises in litigation. 
 
 (h) In foreclosures, right to foreclose not clear. 
 
 (i) No showing of danger or loss. 
 
 (j) After payment of mortgage, no excess. 
 
 (k) Relative indebtedness small. 
 
 (1) Applicant a secured creditor. 
 
 (m) Possession rightfully in mortgagee. 
 
 § 227. Fraud as ground for appointment 366 
 
 §228. Insolvency as ground for appointment 367 
 
 §229. In foreclosure proceedings -- 371 
 
 §230. Effects of appointment 371 
 
 (a) Liens remain unimpaired. 
 
 (b) Possession of property protected. 
 
 (c) As against interference from other courts. 
 
 (d) As to unfriendly litigation. 
 
 (e) Effect as to unexpired leases. 
 
 (f) Effect as to predecessor's contracts. 
 
 (g) As to corporate powers, 
 (h) As to owner's control. 
 
 (i) Abatement of pending actions. 
 § 231. The receiver's relationship. 375 
 
 (a) Agent of the court. 
 
 (b) Trustee of creditors. 
 
 (c) Representative of corporation as to title. 
 
 §232. The receiver as manager 377 
 
 §233. Receiver's powers and duties 380 
 
 (a) Power to borrow money. 
 
 (b) To purchase rolling stock. 
 
 (c) To make needful repairs. 
 
 (d) To compromise. 
 
 (e) To sue. 
 
 (f) To redeem. 
 
 (g) To pay taxes, 
 (h) To lease. 
 
 (i) To mortgage, 
 
 (j) To Invest. 
 
 (k) To contract. 
 
 (1) To sell. 
 
 (m) To make assessments. 
 
 (n) Duly to appeal.
 
 TABLE OF CONTENTS. xvii 
 
 .§234. Liability of receiver 391 
 
 (a) On his contracts. 
 
 (b) For rent. 
 
 (c) For interest. 
 
 (d) For debts incurred. 
 
 (e) Personal liability for torts. 
 
 (f) Official liability for torts and damages. 
 
 (g) Extent of liability. 
 
 (h) Liability for loss in management, 
 (i) Liability on order of court. 
 §235. Suits by receiver of a corporation 397 
 
 (a) Generally. 
 
 (b) When he may sue in his own name. 
 
 (i) Where assets have been assigned. 
 (S) Where decree so empowers. 
 (3) Where statute authorizes it. 
 §236. To recover stock subscriptions 402 
 
 (a) As a general rule he may recover. 
 
 (b) When so empowered corporation excluded. 
 
 (c) Extent of power in collusive transactions. 
 
 (d) Extent of liability governed by indebtedness. 
 
 (e) Court must first determine corporate indebtedness. 
 
 (f) In what action to be recovered. 
 
 §237. To avoid fraudulent transfers 406 
 
 §238. To recover illegal dividends 408 
 
 § 239. Leave of court to sue required 410 
 
 § 240. Suits by foreign receiver of corporation 411 
 
 (a) By, for foreign corporation dissolved. 
 
 (b) By, as against creditor of same state. 
 
 (c) By, where recovery not in conflict with law of forum. 
 
 (d) By, as to property reduced to possession. 
 
 (e) By, to recover assessment on premium note. 
 
 (f) Necessary allegations. 
 
 § 241. Collateral attack of receiver 415 
 
 §242. Receiver's possession ^ 416 
 
 CHAPTER XIII. 
 RECEIVERSHIPS OF NATIONAL BANKS. 
 
 §252. Appointment and power under Act of Congress 419 
 
 (a) Provisions of National Banking Act. 
 
 (b) Powers of comptroller under. 
 
 (c) Jurisdiction of courts. 
 
 §253. Power of comptroller to appoint 425 
 
 (a) Failure to keep stock at minimum required. 
 
 (b) Failure to keep surplus good. 
 
 (c) Failure to keep reserve good. 
 
 (d) Failure to keep place for redemption of notes. 
 
 B
 
 xvm TABLE OF CONTENTS. 
 
 (e) Holding its stock over for six months as security. 
 
 (f) Failure to pay for stock — impairment of. 
 
 (g) Improperly certifying check. 
 
 (h) Nonpayment of circulating notes. 
 
 (i) Dissolution of corporation and forfeiture. 
 
 (j) Failure to pay judgment for thirty days. 
 
 (k) When it has become insolvent. 
 
 §254. Power of receiver of national banks 426 
 
 §255. Receiver's title. National banks ..., 42& 
 
 § 256. Receiver's liability 432 
 
 §257. Suits by receiver 432 
 
 § 258. Liability of stockholders 437 
 
 (a) Liability. 
 
 (b) Defense. 
 
 § 259. Illegal preferences _ 445 
 
 §260. Liability of directors 448 
 
 CHAPTEK XIY. 
 
 RECEIVERSHIP OF RAILWAYS. 
 
 §270. General— attitude of courts 452' 
 
 §271. Notice of application 454 
 
 §272. When appointed 456 
 
 (a) When road unlawfully leased. 
 
 (b) When default in payment of mortgage indebtedness. 
 
 (c) When diversion of income and revenues. 
 
 (d) When default in payment of interest. 
 
 (e) When mismanagement, squandering funds, etc. 
 
 (f) AVhen neglect to elect officers. 
 
 (g) When statutory cause. 
 
 §273. When not appointed 465 
 
 (a) When no notice of application. 
 
 (b) When Insolvency alone not sufficient. 
 
 (c) When right to foreclose doubtful. 
 
 (d) When application by minority bondholders. 
 
 (e) When default in interest insufficient. 
 
 (f) When plaintiff has adequate remedy at law. 
 
 (g) When trustees have ample power. 
 
 (h) When rights of third parties are prejudiced. 
 
 (i) When disagreement as to management alone. 
 
 § 274. Powers of railway receiver 471 
 
 § 275. Power to pay unsecured claims 472 
 
 (a) Mortgage by implication subject to claims for labor and supplies. 
 
 (b) Limitations as to preferred claims. 
 
 §276. Grounds upon which preferred claims allowed 476 
 
 (a) Payment a necessity to lienholder. 
 
 (b) Payment as a condition to relief asked.
 
 TABLE OF CONTENTS. xix 
 
 (c) Division of income a ground for allowance. 
 
 (d) When allowed by statute. 
 
 (e) Classes of claims preferential. 
 
 {!) Operating expenses. 
 (2) Construction account. 
 § 277. Scope of implied power as to operating expenses 482 
 
 (a) Application as to railroads. Preferential debts. 
 
 (b) Not extended to private corporations generally. 
 
 §278. Preferential claims, basis of 485 
 
 (a) Not based on liens. 
 
 (b) Not a condition of equitable relief. 
 
 § 279. Rule in Federal courts 486 
 
 (a) Inherent power of court to pay operating expenses. 
 
 (b) Is not a condition to equitable relief. 
 
 (c) Lien not a matter of contract. 
 
 (d) When receiver appointed at instance of general creditor. 
 
 (e) When receiver appointed at instance of mortgagee. 
 
 (f) Limitations in such case. 
 
 (i) Tendency not to enlarge scope. 
 {2) Payment does not depend on order. 
 (-3) Must accrue within reasonable time. 
 
 (4) Necessity of notice. 
 
 (5) Confined to operating expenses generally. 
 i6) Equitable nature of such claims. 
 
 § 280. Application to rolling stock and car trusts 491 
 
 (a) Receiver not adopting contract must pay reasonable price for use. 
 
 (b) Receiver if adopting must pay contract price. 
 
 (c) Contract price is not necessarily an equitable price. 
 
 (d) Vendor-lessor entitled to a return. Demand. 
 
 §281. Claims not preferential 498 
 
 (a) Advances to complete road. 
 
 (b) Damages from operation, fire, etc. 
 
 (c) Attorneys' fees before appointment of receiver. 
 
 (d) Goods sold subsequent to mortgage. 
 
 (e) Locomotives sold to company. 
 
 (f) Construction of such contract. 
 
 §282. Extent of power of railway receivers 500 
 
 §283. General scope of his power 501 
 
 (a) Preservation of receivership property. 
 
 (b) Collection of outstanding indebtedness. 
 
 (c) Reduce to possession property of company. 
 
 (d) Disaffirm unlawful acts of officers and directors. 
 
 (e) May restrain unlawful acts. 
 
 (f) Defend suits and proceedings when. 
 
 (g) Traffic arrangements and facilities. 
 
 (h) As to unfurnished or incomplete contracts, 
 (i) As to unexpired leases. 
 §284. Limitations on receiver's power 507
 
 XX TABLE OF CONTENTS. 
 
 § 285. Liability of railway receivers 503 
 
 (a) Receiver acting as carrier governed by general rules. 
 
 (1) Corporation liable under statute. 
 
 (5) Receiver not liable on executory contracts. 
 
 (b) Railroad not liable when. 
 
 (c) When receiver personally liable. 
 
 (d) When receiver officially liable. 
 
 (e) Liability measured by that of corporation. 
 
 ^ 286. Effect of discharge as to liability 517 
 
 § 287. Receivers' certificates 522 
 
 CHAPTEK XY. 
 
 RECEIVERSHIP IN DECEDENTS' ESTATES. 
 
 § 300. Pertaining to decedents' estates 526 
 
 (a) General. 
 
 (b) Contests over wills. 
 
 §301. As to executors and administrators 528 
 
 (a) When appointed. 
 
 (i) Violation of trust; waste, etc. 
 
 (S) Insolvency of executor; waste, etc. 
 
 (S) Removal from state. 
 
 (4) Death of; refusal to act. 
 
 (5) Property devised belonging to another. 
 
 (6) Misapplication of executors; fraud. 
 
 (7) No one competent to act. 
 
 (S) Contest between foreign and local administrator. 
 (9) Nonresident executor. 
 
 (10) Property in foreign country. 
 
 (11) Bankruptcy of executor. 
 
 (IS) Conversion of trust property by executor. 
 
 (13) In matter of fraud. 
 
 (14) Refusal to obey order of court. Illegal trust. 
 
 (b) When not appointed. 
 
 (i) Poverty of executor or administrator. 
 
 (^) Creditor's proceeding pending at death of testator. 
 
 (3) Application of surety on bond, etc. 
 
 (4) When defendant is solvent. 
 
 (5) When complaint not adequate. 
 
 (6) When misapplication not clearly shown. 
 
 (c) Misconduct and refusal to act. 
 
 (d) Where no one competent to act. 
 
 CHAPTER XYI. 
 
 RECEIVERSHIP OVER TRUST PROPERTY. 
 S 305. General 539
 
 TABLE OF CONTENTS. XXl 
 
 I 306. Receiver in lieu of trustee 540 
 
 (a) When appointed. 
 
 (i) In case of misappropriation. 
 
 (2) In case of fraud. 
 
 (3) Disobedience of orders of court. 
 
 (4) Illegal trusts. 
 
 (5) Where necessary to prevent transfer. 
 
 (6) Fraud not always necessary to be shown. 
 
 (7) Where purposes of trust have failed. 
 (5) Conflicting claimants; separate suits. 
 (9) Mixing of trust property. 
 
 (10) When continued. 
 
 (11) Claim against beneficiary. 
 
 (b) When not appointed. 
 
 (i) Failure of proof. 
 
 (5) Where money in hands of bailee. 
 
 (<?) Where debt charged to trustee personally. 
 
 (4) Where trustee is statutory. 
 
 (5) Where trustee acts under marriage settlement. 
 
 (6) Where other parties interested than cestui que trust. 
 
 (7) Discretion of trustee. 
 
 §307. Fraudulent assignments 543 
 
 §308. Testamentary trustees 544 
 
 § 309. Infants' estates 545 
 
 § 310. Lunatics' estates 547 
 
 CHAPTER XYII. 
 
 MISCELLANEOUS RECEIVERSHIPS. 
 
 § 315. As between vendor and vendee 548 
 
 § 316. Between creditor and debtor 549 
 
 § 317. In partition suits and between tenants in common 549 
 
 § 318. In suits for specific performance 551 
 
 § 319. As between lessor and lessee 551 
 
 I 320. In ejectment suits 551 
 
 § 321. In alimony suits 553 
 
 § 322. For building and loan associations 553 
 
 § 323. Grounds for appointment 554 
 
 CHAPTER XYIII. 
 
 REMOVAL AND DISCHARGE OF RECEIVER. 
 
 § 330. Removal and discharge 557 
 
 (a) Notice of application. 
 
 (b) Application for removal. 
 
 (c) Application, by whom made. 
 
 (d) Grounds for removal.
 
 XXU TABLE OF CONTENTS. 
 
 (e) Removal not subject to appeal ; effect of appeal. 
 
 (f) Effect of removal and discbarge. 
 
 (g) Grounds for refusal to discbarge. 
 
 CHAPTEE XIX. 
 
 CLAIMS AGAINST RECEIVERSHIP FUNDS. 
 § 340. Claims against receivership funds 568 
 
 (a) Receiver disinterested as between claimants. 
 
 (b) Must pay parties named. 
 
 (c) Proof of claims; order of court. 
 
 (d) Validity of claims. 
 
 § 341. Character of claims allowed 571 
 
 (a) Attorney's and counsel's fees. 
 
 (b) Personal property tax. 
 
 (c) Surety not entitled when. 
 
 (d) Creditors holding collaterals. 
 
 (e) Operating expenses. 
 
 (f) Statutory liens. 
 
 (g) Judgment creditor's liens. 
 
 § 342. Preferred claims; grounds for allowance 574 
 
 § 343. Nature of preferred claims 576 
 
 CHAPTER XX. 
 
 RECEIVER'S COMPENSATION. 
 § 350. Compensation 582 
 
 (a) Must be reasonable. 
 
 (b) Fixed on commission basis, percentage. 
 
 (c) Sometimes a salary. 
 
 (d) When compensation refused. 
 
 (e) When to be paid by plaintiff. 
 
 (f) Does not depend on result of litigation. 
 
 (g) Priority of payment of. 
 (h) Additional allowances, 
 (i) Statutory compensation, 
 (j) Order fixing not revoked. 
 
 CHAPTER XXI. 
 
 REPORTS, ACCOUNTS AND DISTRIBUTION. 
 
 § 355. General — Reports and accounts 592 
 
 § 356. Rules applicable to 593 
 
 (a) Must be to court appointing. 
 
 (b) Reference to master. 
 
 (c) Objections to master's findings. 
 
 (d) Objections to master's findings and exceptions. 
 
 (e) Appeal not allowed as a rule. 
 
 (f) Effect of approval.
 
 TABLE OF CONTENTS. xxill 
 
 § 357. Order of distribution 594 
 
 ^ 358. What embraced in order of distribution 595 
 
 (a) Attorney's fees. 
 
 (b) Notes secured by invalid mortgage. 
 
 (c) Debts due contractors. 
 
 (d) Rents and profits. 
 
 (e) Expenses and advancements. 
 
 (f) Money paid by sureties. 
 
 (g) When on judgments. 
 
 (h) Where collaterals are held. 
 
 CHAPTEE XXII. 
 
 PRACTICE AND PLEADING. 
 
 § 370. General 601 
 
 § 371. Suit pending 602 
 
 § 372. Prayer for receiver 603 
 
 § 373. Necessary parties; allegations 603 
 
 § 374. Notice of application 603 
 
 § 375. At what stage of suit application made. 604 
 
 § 376. When application granted before answer 604 
 
 § 377. Bond of receiver required 604 
 
 §378. Effect of giving bond 604 
 
 § 379. Form of bond 605 
 
 § 380. How liability enforced 606 
 
 § 381. The order appointing 606 
 
 § 382. Scope of order ..607 
 
 § 383. Findings embodied in order 607 
 
 § 384. Aifidavits, when basis of order 607 
 
 § 385. Reference to master or referee 608 
 
 § 386. Examination of debtor under code proceedings 608 
 
 § 387. Statutory proceedings 609 
 
 § 388. National banks 609 
 
 § 389. Mortgage foreclosures 609 
 
 § 390. Suits by receiver 610 
 
 § 391. In what name to sue 611 
 
 § 392. Necessary allegations 611 
 
 § 393. Form of allegations 611 
 
 § 394. Limitations on power to sue 611 
 
 § 395. Suits against receiver ; leave to sue 612 
 
 § 396. Actions against receiver under void appointment 615 
 
 § 397. Form of judgment against receiver 617 
 
 § 398. Proceedings in original cause when 617 
 
 § 399. Right of set-off.. 618 
 
 § 400. Petition of receiver for authority 618 
 
 § 401. Application for directions 619 
 
 § 402. Receiver as manager 619 
 
 fc; 403. Interpleader by receiver 619
 
 XXIV TABLE OF CONTENTS. 
 
 § 404. Possession as to third parties 620' 
 
 § 405. Acts outside of receiver's duty 622 
 
 § 406. When receiver refuses to act 622 
 
 § 407. Leave to compromise 623 
 
 I 408. Power to enforce assessments 623 
 
 S 409. Leave to sell 625 
 
 § 410. Leave to contract debts and liens. 625 
 
 § 411. Leave to issue certificates 626 
 
 § 412. Trust property held by receiver 627 
 
 § 413. Effect of receiver's discharge pending action... 629 
 
 § 414. Order of discharge 629 
 
 § 415. Conflicting claims; how determined... 630 
 
 § 416. Receiver's accounts 631 
 
 § 417. Appeal by receiver 632 
 
 § 418. Deed by receiver 632 
 
 CHAPTER XXIII. 
 FORMS. 
 
 No. 1. Complaint for dissolution of copartnership.. 636 
 
 2. " against insolvent corporation 637 
 
 3. " allegation — Copartnership 638 
 
 4. " " — Foreclosure proceedings 639 
 
 5. " against corporation for fraud and accounting 640 
 
 6. Affidavit for appointment in foreclosure 641 
 
 7. " for appointment, general 642 
 
 8. Notice " " " 642 
 
 9. Order appointing receiver general 643 
 
 10. " " " — Manufacturing corporation 644 
 
 11. " " " — Railroad foreclosure 645 
 
 12. " " " " " Short form 648 
 
 13. '• " " " " Trustees 650 
 
 14. " " " — Partnership 651 
 
 15. " " " — Joint business. 652 
 
 16. " " " to manage mine.. 653 
 
 17. " " *' because of misconduct of corporate officers. 
 
 654 
 
 18. " " '* of specific personal property. 655 
 
 19. " " " without prejudice to encumbrancers.. 655 
 
 20. " " " of rents and profits 656 
 
 21. " to show cause why not appointed 657 
 
 22. Bond of receiver 658 
 
 23. '• " " Another form 659 
 
 24. '• " " Short form ,.'. 660 
 
 25. Assignment to receiver 660 
 
 26. Notice by receiver to creditors and debtors of appointment 662 
 
 27. Order on creditors to exhibit claims 662 
 
 28. " appointing special commissioner to report claims 662 
 
 29. " " commissioner or referee to report claims 663-
 
 TABLE OF CONTENTS. XXV^ 
 
 30. Order to pay claims accruing prior to appointment 664 
 
 31. " requiring defendant to turn over books, etc 665 
 
 33. Petition by recei ver to compel delivery of assets 665 
 
 33. Affidavit for motion to compel tenants to pay 666 
 
 34. " for order to stay actions 667 
 
 35. Petition by receiver for leave to defend 968 
 
 36. " by " " " tosettle traffic balances 669 
 
 37. Order to " to settle traffic balances 670 
 
 38. " " pay rent 670 
 
 39. Petition by receiver for leave to sell 671 
 
 40. Order to " " " to pay claim 671 
 
 41. " for sale of perishable property 672 
 
 42. " confirming sale 672 
 
 43. Petition for order on purchaser to complete purchase 972 
 
 44. Order " " " " " 673 
 
 45. Petition for leave to pay counsel 673 
 
 46. Order granting " employ counsel. 674 
 
 47. Petition for leave to pay claims 674 
 
 48. Notice for instructions to receiver 674 
 
 49. Petition" " " " to pay 675 
 
 50. " " " '• " " surrender, etc 676 
 
 51. Notice of petition for leave to distribute 676 
 
 52. Petition of receiver for leave to account and be discharged 677 
 
 53. Receiver's account 677 
 
 54. " " —Objections to 678 
 
 55. Notice of motion for revocation of appointment __ 679 
 
 56. Order discharging receiver 679 
 
 57. " removing and appointing substitute 780 
 
 58. Notice of motion to discharge 680 
 
 59. Order to show cause why should not be discharged _. 681 
 
 60. Notice of motion for discharge 681 
 
 61. Order on receiver to pay over funds to successor 681 
 
 62. Affidavit to show cause in contempt proceedings 682 
 
 63. " " continue actions against receiver 682 
 
 64. Petition by receiver to be substituted in action 683 
 
 65. Order to sheriff to withdraw levy 684 
 
 66. Order to receiver to sue 684 
 
 67. Complaint on receiver's bond by creditor 684 
 
 68. Declaration on assessment — National bank 685 
 
 69. " " promissory note 687 
 
 70. Petition of receiver of national bank to compromise 689 
 
 71. Order on " " " " " " 691
 
 OA.SES CITED. 
 
 Duplicate citations of unofficial reports in whicli cases 
 may be also found have been limited to the Lawyers' 
 Eeports, Annotated ("L. K. A.") and the Lawyers' Edi- 
 tion ("L. ed.") of the reports of the Supreme Court of 
 the United States. But inasmuch as the reporters of the 
 "National System" mav be sometimes more accessible 
 than some official rej^orts, a table is published on the 
 following page to show what cases they include. By means 
 of the blue labels on the Reporter volumes or the " Blue 
 Label Book," published for that purpose, cases therein 
 published can be readily found in the reports.
 
 iXVlU 
 
 REPORTER CITATIONS. 
 
 Slale or Territory. 
 
 Every Case in Official 
 Reports from 
 
 Reporter where 
 Found. 
 
 Alabama 
 
 t Arizona 
 
 Arkansas 
 
 California 
 
 Colorado (Sup. Ct.) 
 t " (App. Ct.) 
 
 Connecticut 
 
 J Dakota 
 
 Delaware 
 
 Florida 
 
 Georgia 
 
 Idaho 
 
 Illinois 
 
 Indian Ter 
 
 Indiana (Sup. Ct.).. 
 t " (App. Ct } . 
 
 Iowa' 
 
 Kansas (Sup. Ct.)... 
 I Kansas (App. Ct.). 
 
 Kentucky 
 
 Louisiana 
 
 Maine 
 
 Maryland 
 
 Massachusetts 
 
 Michigan 
 
 Minnesota 
 
 Mississippi 
 
 Missouri 
 
 Montana 
 
 Nebraska 
 
 Nevada 
 
 New Hampshire. . . 
 New^ Jersey 
 
 New 3Iexico 
 
 New^ York 
 
 New York 
 
 Supreme, 
 
 Superior, 
 
 and 
 
 Lower 
 
 Courts. 
 
 Norih 'Carolina 
 
 X North Dakota , 
 
 Ohio ' 
 
 X Oklahoma 
 
 Oregon 
 
 Pennsylvania 
 
 Rhode Island 
 
 South Carolina 
 
 X South Dakota 
 
 Tennessee (Sup. Ct.) 
 
 Texas (Sup. Ct. ) 
 
 " (Ct. App.) Crim. Cases... 
 Court of Criminal Appeals 
 
 (Civ. App.) 
 
 Supreme Court 
 
 XV. S. Cir. Cts. of App 
 
 tU. S. Cir. and Dist. Cts 
 
 Utah 
 
 Vermont 
 
 Virginia 
 
 X Washington State 
 
 Washington Ter 
 
 West Virginia 
 
 Wisconsin 
 
 Wyoming 
 
 U. S. 
 
 81 Ala., p. 1 
 
 1 Ariz., p. 1 
 
 47 Ark., p. 1 
 
 64Cal., p. 1 
 
 7 Colo., p. 1 
 
 1 Colo. App., p. 1 
 
 53 Conn., p. 1 
 
 1 Dak., p. 1 
 
 6 Del. Ch. 7 Houst. . 
 
 23 Fla., p. 1 
 
 77 Ga., p. 794 
 
 2 Idaho, p. 1 
 
 114111., p. 1 
 
 1 Indian Ter., p. 1 
 
 102 Ind., p. 1 
 
 1 Jnd. App., p. 1 
 
 51 Iowa, p. 1 
 
 30 Kan., p. 1 
 
 1 Kan. App., p. 1 
 
 84 Ky., p. 203 
 
 39 La. Ann., p. 1 
 
 77 Me., p. 408 
 
 64 Md., p. 1 
 
 139 Mass., p. 1 
 
 41 Mich., p. 1 
 
 26 Minn., p. 1 
 
 64 Miss., p. 1 
 
 89 Mo., p. 1 
 
 4 Mont., p. 1 
 
 8 Neb., p. 294 
 
 17Nev., p. 1 
 
 63 N. H., p. 44G 
 
 47 N. J. L.,p. 349 
 
 40 N.J. Eq., p. 345.... 
 3N. M., p. 1 
 
 99 N. Y., p. 1 
 
 21 Abb. N. C. 
 
 14 CivU Proc. 
 
 1 Con. Sur., p. 1, 
 U Daly, p. 497. 
 6 Dem. Sur., p. 413. 
 
 48 Hun, p. 304. 
 6N. Y.Cr. R. 
 
 56 N. Y. Super. Ct., p. 1. 
 1 Silvernail, p. 1. 
 
 96 N. c, p. 1 :. 
 
 IN. D., p.l 
 
 laOhteat., p. 1 
 
 1 Okl., p. 1 
 
 11 Or., p. 1 
 
 110 Pa. St., p. 1 
 
 15 R. L, p. 1 
 
 26S. C, p. 1 
 
 IS. D.,p.l 
 
 85Tenn. Sup., p. 1 
 
 66 Tex., p. 1 
 
 21 Tex. App., p. 1 
 
 31 Tex. Cr. R.,p. 1 
 
 1 Tex. Civ. App., p. 1.. 
 
 106 U. S., p. 1 
 
 1 C. C. A., p. 1, & ) 
 lU. S. App., p. 1 i •••• 
 
 No official repoi'ts 
 
 3 Utah, p. 1 
 
 58 Vt., p. 1 
 
 82 Va., p. 964 
 
 IWash. St., p.l 
 
 2 Wash. T., p. 1 
 
 29 W.Va., p. 1 
 
 46 Wis., p. 1 
 
 3 Wyo., p. 1 
 
 SOUTHERN 
 PACIFIC 
 
 SOUTHWESTERN 
 PACIFIC 
 
 ATLANTIC 
 
 NORTHWESTERN 
 
 ATLANTIC 
 
 SOUTHERN 
 
 SOUTHEASTERN 
 
 PACIFIC 
 
 NORTHEASTERN 
 
 SOUTHWESTERN 
 
 NORTHEASTERN 
 
 U 
 
 NORTHWESTERN 
 PACIFIC 
 
 SOUTHWESTERN 
 SOUTHERN 
 
 ATLANTIC 
 
 u 
 
 NORTHEASTERN 
 
 NORTHWESTERN 
 u 
 
 SOUTHERN 
 
 SOUTHWESTERN 
 
 PACIFIC 
 
 NORTHWESTERN. 
 
 PACIFIC 
 
 ATLANTIC 
 
 PACIFIC 
 NORTHEASTERN 
 
 NEAY YORK 
 
 SUPPLEMENT 
 
 SOUTHEASTERN 
 NORTHWESTERN 
 NORTHEASTERN 
 PACIFIC 
 
 ATLANTIC 
 
 u 
 
 SOUTHEASTERN 
 NORTHWESTERN 
 SOUTHWESTERN 
 
 SUPREME COURT 
 
 FEDERAL 
 (( 
 
 PACIFIC 
 
 ATLANTIC 
 
 SOUTHEASTERN 
 
 PACIFIC .- 
 
 u 
 
 SOUTHEASTERN 
 NORTHWESTERIS 
 PACIFIC
 
 C^SES CITED. 
 
 (References are to pag-es.) 
 
 A. 
 
 ■p. Jolland, 8Ves. Jr. 72.. 
 
 60, 215, 546 
 
 V. Lindsey, 15 Ves. Jr. 91 . . 
 
 105, 108 
 Abbey®. International & G. N. R. 
 Co. 5 Tex. Civ. App. 
 
 261 125,416 
 
 Abbott ». Downer, 54 Iowa, 687.. 
 
 230, 589 
 V. Stearns, 139 Mass. 168... 224 
 Aberdeen v. Chitty, 3 Younge & 
 
 C 379 296 
 
 Abrams «. Cureton, 74 K C. 523. . 160 
 
 Acker, Re, 66 Fed. Rep. 290 131 
 
 Ackerman v. Halsey, 37 N. J. Eq. 
 
 356 -484,436 
 
 Acme Copying Co. v. McLure, 41 
 
 ill. App. 397 631 
 
 Adair u. Wright, 16 Iowa, 385. .. 
 
 35, 283, 287 
 Adair County v. Ownby, 75 Mo. 
 
 282-..118, 203, 214, 215, 232 
 Adams?). Bowe, 12 Abb. N. C. 322. 252 
 
 «. Hackett, 7 Cal. 187 338 
 
 V. Haskell, 6 Cal. 475 200 
 
 ?j. Howard, 22 Fed. Rep. 656. 142 
 V. Johnson ("Bowden v. 
 Johnson"), 107 U. S. 
 
 251, 27L. ed. 386 
 
 426, 437-439, 444 
 
 V. Larimore, 51 Mo. 130 616 
 
 V. Mercantile Trust Co. 66 
 
 Fed. Rep. 617 345 
 
 V. Spokane Drug Co. 57 
 Fed. Rep. 889, 23 L. R. 
 
 A. 334.. ....138,151 
 
 v. Woods, 8 Cal. 152. 9 Cal. 
 
 24 338 
 
 v. Woods, 8 Cal. 306 89, 90 
 
 ®. Woods, 15 Cal. 206. 200 
 
 Addison v. Burckmyer, 4 Sandf. 
 
 Ch. 488.. 315 
 
 V. Lewis, 75 Va. 701.477, 499, 574 
 
 Adee«. Bigler, 81 N. Y. 349 
 
 239, 248, 354 
 Adkin v. Thornton, 19 Ga. 325.178, 385 
 Adkins «. Edwards, 83 Va. 316... 
 
 27, 35. 604 
 Adler v. Fen ton, 56 U. S. 24 How. 
 
 407, 16L. ed. 636 238 
 
 Adler v. Milwaukee Patent Brick 
 
 Mfg. Co. 13 Wis. 57.343. 352, 354 
 
 Adsit V. Butler, 87 N. Y. 585 259 
 
 Ahlhauser v. Butler, 50 Fed. Rep. 
 
 707. 123,124 
 
 «. Doud, 74 Wis. 400.42, 237, 246 
 Aiken v. Colorado River Irrig. Co. 
 
 72 Fed. Rep. 591- 66 
 
 Aikin v. Jones, 93 Tenn. 353, 25 
 
 L. R. A. 523 392 
 
 Aikins ®. Blain, 13 Grant Ch. 
 
 (Ont.)646 296 
 
 Ainsley, Be, 1 Edw. Ch. 576 89, 90 
 
 Akers v. Veal, 66 Ga. 302 594, 632 
 
 Alabama Iron & R. Co. v. Anniston 
 Loan & T. Co. 57 Fed. 
 
 Rep. 25 207,525 
 
 Alabama Nat. Bank v. Mary Lee 
 Coal & R. Co. (Ala.^ 19 
 
 So. 404 290 
 
 Albany City Bank v. Dorr, Walk. 
 
 Ch. 317 254 
 
 V. Schermerhorn, 9 Paige, 
 372. ...67, 85, 127, 186. 
 
 188. 373, 416 
 V. Schermerhorn, Clarke, 
 
 Ch. 366 ...47. 61, 261 
 
 Albany City Ins. Co. v. Van Vran- 
 
 ken, 42 How. Pr. 281.. 160 
 Albert Average, etc., Re, L. R. 5 
 
 Ch. App. 597 560 
 
 Albright v. Albright, 91 N. C. 220 544 
 Alexander «. Mannine, 58 Miss. 634 55 
 
 V. Merry, 9 Mo. 524 74 
 
 t. Pendleton, 12 U. S. 8 
 
 Cranch, 462, 3 L. ed. 624 178 
 v. Relfe. 9 Mo. App. 133, 
 Rev'din74Mo. 495.... 
 114,157,160,163,172,375, 
 376, 387, 397, 400, 408, 410 
 7). TollestonClub, 110 111, 65 113 
 Alexandria Palace Co., Re, L. R, 
 
 21 Ch. Div. 149. .-176. 409 
 Alford V. Berkele, 29 Hun, 633... 331 
 Allen v. Central R. Co. 42 Iowa, 683 
 125, 130, 183, 188, 190, 
 
 191, 209, 373, 418, 511 
 t). Chadburn, 3 Baxt, 225.. 72 
 
 V. Curtis, 26 Conn. 456 351 
 
 V. Dallas & W, R. Co, 3 
 
 Woods. 316 
 
 34, 69, 371, 358, 458, 462. 464 
 
 XXIX
 
 XXX 
 
 CASES CITED. 
 
 Allen V. Dillingham, 60 Fed. Rep. 
 
 176 513 
 
 V. Hawley, 6 Fla. 143 
 
 97, 306, 311. 340, 619 
 
 v. Kinyon, 41 Mich. 281 622 
 
 13. Montgomery, 48 Miss. 106 245 
 
 V. Tritch, 5 Colo. 222 251 
 
 Alley V. Caspari, 80 Me. 234 51, 168 
 
 Allison V. Coal Creels & N. R. Coal 
 
 Co. 87Teun. 60 578 
 
 V. "Weller, 6 Thomp. & C. 
 
 291 258 
 
 Allright V. Herzog, 12 111. App. 
 
 557 244 
 
 Allyn V. Boorman, 30 Wis. 684... 314 
 Alspaugh V. Adams, 80 Ga. 345... 197 
 American Asso. v. Hurst, 59 Fed. 
 
 Rep. 4 124 
 
 American Bank v. Cooper, 54 Me. 
 
 438 69,85 
 
 V. Wall, 56 Me. 167 440 
 
 American Bridge Co. v. Heidel- 
 bach, 94 U. S. 798, 24 
 L. ed. 144.270, 272, 282, 
 
 297, 358, 462, 479. 575 
 American Biscuit Co. v. Klotz, 44 
 
 Fed. Rep. 721.. 45, 348, 355 
 American Const. Co. v. Jackson- 
 ville, T. & K. W. R. Co. 
 
 52 Fed. Rep. 937 
 
 82, 122, 372 
 American File Co. v. Garrett, 110 
 U. S. 288, 28 L. ed. 149 
 103. 107, 204, 231, 223, 506 
 American Ice Mach. Co. v. Pater- 
 son Steam Fire Engine 
 & Mach. Co. 33 N. J. 
 
 Eq. 73 847 
 
 American Ins. Co. ». Schmidt, 19 
 
 Iowa, 503 404 
 
 American Loan & T. Co. v. East & 
 W. R. Co. 46 Fed. Rep. 
 
 101 .577. 579 
 
 V. Toledo. C. & S. R. Co. 29 
 
 Fed. Rep. 416.-311,358, 
 
 364, 366, 454, 459, 468. 471 
 
 American Nat. Bank n. National 
 
 Ben. & 0. Co. 70 Fed. 
 
 Rep. 430 .356,401,417 
 
 Ames ». Ames, 148 111. 331. 550 
 
 V. Birkenhead Docks. 30 
 
 Beav. 333 
 
 85, 134, 132, 133, 615 
 V. Union P. R. Co. 60 Fed. 
 
 Rep. 971... -30, 95, 345, 506 
 V. Union P. R. Co. 63 Fed. 
 
 Rep. 7 131 
 
 ». Union P. R. Co. 73 Fed. 
 
 Rep. 49 490 
 
 Ames Iron Works «. Warren, 76 
 
 Ind. 513 Ill 
 
 Ammant v. New Alexandria & P. 
 Turnp. Road, 13 Serg. 
 
 &R.310 454 
 
 Amory v. Amory, 95 U. S. 186, 24 
 
 L.ed.438. 411 
 
 Amy V. Manning, 149 Mass. 487.. 
 
 145, 357, 263. 401 
 
 Anderson v. Anderson, 35 Beav. 190 334 
 
 V. Guichard, 9 Hare, 375... 33 
 
 V. Tompkins, 1 Brock. 456. 316 
 
 Andrews v. Paschen, 67 Wis. 413 
 
 139 179 
 V. Powys, 2 Bro. P. C. 504.' 465 
 ®. Rowan, 38 How. Pr. 126 
 
 66, 139, 256 
 V. Sraith,19Blatchf. 103.137, 183 
 V. Stanton, 18 111. App. 163 
 
 183, 190 
 
 Angela. Smith, 9Ves. Jr. 335 
 
 35, 131. 126, 139, 130. 
 133, 184, 186, 379, 418, 615 
 
 Angell V. Draper, 1 Vern. 399 
 
 337, 345, 349 
 Anglo-Italian Bank ». Davies, L. 
 
 R. 9Ch. Div. 375... 65, 417 
 Anglo-Moravian Hungarian Junc- 
 tion R. Co., lie, L. R. 1 
 Ch. Div. 130, 45 L. J. 
 
 Ch.ll5- 230 
 
 Anhauser-Busch Brew. Asso. v. 
 
 Clayton, 56 Fed.Rep. 759 393 
 
 V. Morris, 36 Neb. 31. 393 
 
 Anonymous, 1 Atk. 49 36 
 
 2 Atk. 15. 24, 49. 126. 141 
 
 3 Ves. Jr. 515. 56, 60, 63 
 
 6 Ves. Jr. 287 
 
 130, 153. 186, 195, 279 
 12 Ves. Jr. 4.. .33, 268, 529, 533 
 Ansell t). Robson, 2 Cromp. & J. 
 
 610 223,496 
 
 Anthony v. Wood, 96 N. Y. 185- . 246 
 Appleton ®. Turnbull, 84 Me. 72.. 406 
 
 Arenz®. Weir, 89 111. 25 
 
 175, 177, 178, 385, 405 
 
 Argall V. Pitts, 78 N. Y. 243 267 
 
 Armstrong, Be, 41 Fed. Rep. 381. 447 
 V. Armstrong, L. R. 12 Eq. 
 
 614 155 
 
 V. Chemical Nat. Bank, 41 
 
 Fed. Rep. 334 446,447 
 
 V. Coopes, 11 111. 560 238 
 
 V. Ettlesohn, 36 Fed. Rep. 
 
 309 434,435 
 
 V. Scott. 36 Fed. Rep. 63... 438 
 V. Trautman, 36 Fed. Rep. 
 
 375.. 434. 435,449 
 
 ©. Warner, 31 Ohio L. J. 
 
 136, 37 Ohio L. J. 100. 138 
 V. Warner, 49 Ohio St. 376, 
 
 17 L. R.A.466 
 
 138, 180, 384, 429, 439
 
 CASES CITED. 
 
 XXXI 
 
 Arnold ». Bright, 41 Mich. 210 313 
 
 V. Penn (Tex. Civ. Anp.) 32 
 
 S. W. 353 -.128, 569 
 
 V. Suffolli Bank, 27 Barb. 
 
 424 192, 197 
 
 Arnot «). Bingham, 55 Hun, 553.. 392 
 Arthur v. Commercial & R. Bank, 
 
 9 Smedes&M. 394 454 
 
 V. Master in Equity, 1 Harp. 
 
 Eq. 47 591 
 
 «. Oakes, 63 Fed. Rep. 310, 
 
 25 L. R. A. 414.. 
 
 121, 130, 181 
 Artisans' Bank v. Treadwell, 34 
 
 Barb. 553 53, 125 
 
 Ashurst V. Lehman, 86 Ala. 370, 
 
 11. 13-15, 18-20, 43 
 Asheville Div. No. 15, S. of T. v. 
 
 Aston, 92 K C. 578.... 401 
 Askew V. La Cygue Exch. Bank, 
 
 83 Mo. 366.. Ill 
 
 Aspinwall v. Butler, 133 U. S. 595, 
 
 33 L. ed. 779 438 
 
 ■2J. Torrance, 1 Lans. 381 384 
 
 Aston V. Heron, 2 Myl. & K. 390. 509 
 
 Astor V. Turner, 11 Paige, 436 
 
 34, 63, 267, 274, 296, 297 
 
 V. Turner, 2 Barb. 444. 
 
 285, 288, 296 
 Atchison v. Davidson, 2 Pinney, 
 
 48 114, 375 
 
 Atchison Board of Education v. 
 
 Scofield,13Kan. 17.... 251 
 Atkins V. Petersburg R. Co. 3 
 
 Hughes, 307 
 
 476, 477, 483, 485 
 V. Wabash, St. L. & P. R. 
 Co. 29 Fed. Rep. 161.. 
 
 60, 354, 560 
 Atkinson v. Henshaw, 2 Ves. & B. 
 
 85 547 
 
 V. Rochester Printing Co. 
 
 114 N. Y. 168 
 
 173, 392, 407 
 
 V. Smith, 89 N. C. 72 
 
 77, 78, 563, 606 
 Atlantic & N. C. R. Co. v. Cowles, 
 
 69N. C.59... 218 
 
 Atlantic Trust Co. v. Consolidated 
 Elec. Storage Co. 49 N. 
 
 J. Eq. 403 .369, 370 
 
 Atlas Bank v. Nahant Bank, 23 
 
 Pick. 480 125, 142, 190, 621 
 
 Atlas Iron Const. Co., Be, 11 N.Y. 
 
 S. R. 801 360 
 
 Attleborough Nat. Bank v. North- 
 western Mfg. & Car Co. 
 
 28 Fed. Rep. 114 127 
 
 Atty. Gen. v. Atlantic Mut. L. Ins. 
 
 Co. 77 N. Y. 336 
 
 84, 357, 379 
 
 Atty. Gen. v. Atlantic Mut. L. Ins. 
 
 Co. 100 N. Y. 279 49, 
 
 141,142,143, 144, 149, 150 
 V. Bank of Columbia, 1 
 
 Paige, 511. 
 
 41, 61, 347, 359, 369, 370 
 V. Bank of Michigan, Harr. 
 
 Ch. 315 344 
 
 V. Chicago & N. W. R. Co. 
 
 35 Wis. 425... 343 
 
 V. Continental L. Ins. Co. 71 
 
 N. Y. 325. 202 
 
 D. Continental L. Ins. Co. 28 
 Hun, 360, 93 N. Y. 630 
 
 144, 416 
 V. Continental L. Ins. Co. 94 
 
 N. Y. 199 100, 101, 389 
 
 V. Continental L. Ins. Co. 62 
 
 How. Pr. 130 572 
 
 «. Continental L. Ins. Co. 31 
 
 Hun, 623... 589 
 
 V. Guardian L. Ins. Co. 93 
 
 N.Y. 631 585, 591 
 
 V. Guardian Mut. L. Ins. Co. 
 
 77 N. Y. 272.. .66, 114, 
 
 129, 157, 171, 356, 372, 
 
 375, 387. 406, 407, 415-417 
 
 V. Guardian Mut. L. Ins. 
 
 Co. 82 N. Y. 336 368 
 
 V. Life & F. Ins. Co. 4 Paige, 
 
 224 84, 569 
 
 V. North American L. Ins. 
 Co. 6 Abb. N. C. 293.. 
 
 193, 194 
 V. North American L, Ins. 
 
 Co. 82 N. Y. 172 
 
 368, 377, 610 
 
 V. North American L. Ins. 
 
 Co. 26 Hun, 294, 89 N. 
 
 Y. 94.. 86, 87, 201, 218. 
 
 368, 373, 388, 394, 583, 585 
 
 «. North American L. Ins. 
 
 Co. 91 N. Y. 57 589 
 
 V. North American L. Ins. 
 
 Co. 29 Hun. 207 591 
 
 V. St. Cross Hospital, 18 
 
 Beav. 601 46, 122 
 
 V. Utica Ins. Co. 2 Johns. 
 
 Ch. 371.. 397 
 
 V. Vigor, 11 Ves. Jr. 563.93, 382 
 Attrill V. Rockawav Beach Improv. 
 
 Co. 25 Hun, 376 
 
 56, 557, 599 
 Attwood V. Rhode Island Agricul- 
 tural Bank, 1 R. I. 376. 177 
 Augusta Ice Mfg. Co. v. Gray, 60 
 
 Ga.344 .355, 608 
 
 Austin V. Daniels, 4 Denio, 299... 173 
 
 V. Figueira, 7 Paige, 56 241 
 
 V. Morris, 23 S. C. 408 528 
 
 V. Munro, 47 N. Y. 360.... 21(>
 
 XXXll 
 
 CASES CITED. 
 
 Averall v. Wade, Flan. & K. 325. 76 
 Avery v. Blees Mfg. Co. 27 N. J. 
 
 Eq.412 363 
 
 V. Boston Safe Deposit & T. 
 Co. 72 Fed. Rep. 700.. 
 
 183, 401 
 
 B. 
 
 Babcock, Re, 115 N. Y. 450 574 
 
 «. Brooks, 9 L. J. (U. C.) 185 162 
 Bacon v. Home, 123 Pa. 452, 2 L. 
 
 R. A. 355 167,412 
 
 V. Irvine, 70 Cal. 221 365 
 
 v. Northwestern Stove Co. 5 
 
 Ohio C. C. 289.. 355 
 
 Bagby v. Atlantic, M. & O. R. Co. 
 
 86 Pa. 291.. 50, 111,167,412 
 Baggott V. Boulger, 2 Duer, 160.. 78 
 Bagley v. Scudder, 66 Mich. 97... 261 
 Bailey v. Belmont, 10 Abb. Pr. 
 
 N. S. 270 29 
 
 V. Ford, 13 Sim. 495 333 
 
 V. Mosher, 63 Fed. Rep. 488 398 
 V. O'Mahony, 1 Jones & S. 
 
 9gQ 29 1''2 
 
 V. Pittsburg Coai R.Co. 139' 
 
 Pa. 213 362 
 
 V. Ryder, 10 N. Y. 623 147 
 
 T. Staley, 5 Gill & J. 432... 244 
 
 Bailie v. Bailie, 1 Ir. Eq. 413 74 
 
 Bain v. Clinton Loan Asso. 112 
 
 N. C. 248 406 
 
 Bainbridge v. Blair, 4 L. J. Ch. 
 
 N. S. 207. 298, 536 
 
 Bainbrigge «. Baddeley, 3 Macn. 
 
 &G. 413 13, 43, 44 
 
 Baines v. Babcock, 95 Cal. 581 405 
 
 V. Story (Cal.) 30 Pac. 777.. 405 
 Baird ». Cumberland & S. R. 
 
 Turnp. Co. 1 Lea, 394. 71 
 Baker v. Backus, 32 111. 79.. 4, 18, 
 21,26,39,40,60,61,321, 
 343, 344, 347, 459, 467, 
 
 589, 602, 603 
 
 V. Bartol, 7 Cal. 551 606 
 
 V. Cooper, 57 Me. 388 
 
 154, 161. 399, 611 
 V. Herkimer, 43 Hun, 86... 248 
 V. Louisiana Portable R. Co. 
 
 34 La. Ann. 754 
 
 343, 346, 363 
 
 V. Pierson, 5 Mich. 456 293 
 
 Balbach ». Frelinghuysen, 15 Fed. 
 
 Rep. 675 439 
 
 Balch V. Wastall, 1 P. Wms. 451.. 249 
 Baldwins. Crawford, 2 Chamb.Ch. 
 
 (Ont.)9 203,214 
 
 V. Hosmer, 101 Mich. 432... 113 
 
 Ball V. Chancellor, 47 N. J. L. 125 78 
 
 V. Oliver, 2 Ves. & B. 96... 547 
 
 Ball V. Tompkins, 41 Fed. Rep. 
 
 486 123,542 
 
 Ballard v. Callison, 4 W. Va. 326. 307 
 
 Ballentine^. Beall, 4 111. 203 244 
 
 Bailing. Ferst, 55 Ga. 546. 263 
 
 Ballou V. Farnum, 9 Allen, 47.209, 511 
 
 V. Jones, 13 Hun, 629 244 
 
 Baltimore v. Chase, 2 Gill & J. 376 598 
 Baltimore & O. R. Co. v. Cannon, 
 
 72 Md. 493.... 346, 348, 366 
 Baltimore & O . Teleg. Co. v. Inter- 
 state Teleg. Co. 54 Fed. 
 Rep. 50, 8 U. S. App. 
 
 340 44, 366 
 
 Baltimore Trust & G. Co. v. At- 
 lanta Traction Co. 69 
 
 Fed. Rep. 358 514 
 
 Bangs V. Duckinfield, 18 N. Y. 
 
 592...356, 383, 391, 415, 624 
 V. Mcintosh, 23 Barb. 591.. 
 84, 92, 159, 343, 346, 347, 
 
 354, 405, 411, 415, 609 
 Bank Comrs. v. Bank of Buffalo, 
 
 6 Paige, 497 344, 374 
 
 Bank of Geneva v. Reynolds, 33 
 
 N. Y. 160 102 
 
 Bank of Mississippi v. Duncan, 52 
 
 Miss. 740. 8, 54 
 
 Bank of Mobile «. Planters' & M. 
 
 Bank, 1 Ala. 109 571 
 
 Bank of Monroe v. Scherraerhorn, 
 
 Clarke, Ch. 214. 
 
 34, 91, 241, 567 
 Bank of Montreal v. Chicago, C. 
 & W. R. Co. 48 Iowa, 
 518.. 86, 117, 380, 491, 
 
 502, 523, 524 
 V. Thayer, 7 Fed. Rep. 622. 230 
 Bank of Niagara, Be, 6 Paige, 213 
 
 90, 589, 599 
 V. Johnson, 8 Wend. 645... 
 
 116, 387 
 Bank of Ogdensburg v. Arnold, 5 
 Paige, 39 -.277, 278, 280, 
 
 286, 300 
 Bank of Poughkeepsie v. Ibbotson, 
 
 24 Wend. 479 178, 449 
 
 Bank of Utica v. Finch, 3 Barb. 
 
 Ch. 293. 297 
 
 Bank of Washington v. Creditors, 
 
 86 N.C. 323.77, 78, 605, 606 
 Banks v. Potter, 21 How. Pr. 469. 
 
 73, 75, 257, 258, 376, 605 
 Baptist Church «. Hetfield, 46 N. 
 
 J. Eq. 502 70 
 
 Barber t. Barber, 62 U. S. 21 How. 
 
 582, 16 L. ed. 226 552 
 
 V. Spencer, 11 Paige, 517... 181 
 Barbour v. National Exch. Bank, 
 
 45 Ohio St. 133 
 
 54, 66, 171, 353
 
 CASES CITED. 
 
 XXXlll 
 
 Barbour v. National Exch. Bank, 50 
 Ohio St. 90, 20 L. R. A. 
 
 192 - 440 
 
 Barclay v. Quicksilver Min. Co. 9 
 
 Abb. Pr. N. S. 283.... 352 
 V. Quicksilver Min. Co. 6 
 Lans. 25.. 110, 113, 167, 
 
 168, 260 
 
 Bard v. Bingham, 54 Ala. 463 42 
 
 Barings. Dix, 1 Cox, Ch. 213.... 332 
 Barker v. Dayton, 28 Wis. 367.-- 
 
 172, 241, 242, 251, 260, 552 
 Barkley v. Board of Levee Comrs. 
 93 U. S. 258, 23 L. ed. 
 
 893 -. 246 
 
 Barnard v. Darling, 1 Barb. Ch. 76. 247 
 
 V. Davis, 54 Ala. 565 42 
 
 Barnes v. Jones, 91 Ind. 161 
 
 306, 307, 323, 332 
 V. Morgan, 3 Hun, 703.239, 251 
 V. Newcomb, 89 N. Y. 108. 
 
 205, 230 
 Barnettt). Nelson, 54 Iowa, 41 -.277, 280 
 
 v. Pool, 23 Tex. 517 171 
 
 Barney v. Griffin, 2 N. Y. 365 250 
 
 Barrett v. Henrietta Nat. Bank, 78 
 
 Tex. 222 427, 430 
 
 V. Mitchell, 5 It. Eq. 501.295, 296 
 Barron ii. Mullin, 21 Minn. 374... 
 
 84, 98, 100 
 
 Barry o. Briegs, 22 Mich. 201 70 
 
 Barter v. Wheeler, 49 N. H. 9 511 
 
 Barth v. American Ins. Co. (Wis.) 
 
 65N. W. 1035 67 
 
 V. Backus, 140 N.Y. 230, 23 
 
 L. R. A. 47 -- 168 
 
 Bartlett v. Keim, 50 N. J. L. 260. 
 
 194, 504 
 V. McNiel, 49 How. Pr. 55, 
 
 60 N. Y. 53- -- 241 
 
 V. West Metropolitan Tram- 
 way Co. 3 Ch. 437 363 
 
 V. Wilbur, 53 Md. 485 112 
 
 Barton v. Barbour, 3 McArth. 212. 
 
 183. 613 
 V. Barbour, 104 U. S. 126, 26 
 L. ed. 672.-85, 93, 125, 
 127, 153, 183, 184, 189, 
 191, 195, 198, 202, 209, 
 212, 230, 231, 380, 388, 
 418, 476, 483, 489, 521, 
 
 523, 577, 613, 615, 620 
 V. Hosner, 24 Hun, 469.114, 251 
 «. Ridgeway, 92 Va. 163--. 215 
 
 V. Wheeler, 49 N. H. 9 396 
 
 Ba.shore v. Whisler, 3 Watts, 490. 100 
 
 Bassett v. Orr, 7 Biss. 296 244 
 
 V. St. Albans Hotel Co. 47 
 
 Vt. 313 245 
 
 Bassick Min. Co. v. Schoolfield, 15 
 
 Colo. 376 595 
 
 G 
 
 Basting v. Ankeny (Minn.) 66 N. 
 
 W. 266 385, 401, 403 
 
 Batchelor ■p. Blake, 1 Hog. 98 193 
 
 Bate V. Graham, UN. Y. 237... 
 
 157, 375 
 Bateman v. San Francisco Super. 
 
 Ct. 54 Cal. 285 552 
 
 Bates V. Wiggin, 37 Kan. 44 372 
 
 Battaile v. Fisher, 36 Miss. 321 .. . 
 
 23 203 206 
 Battershall v. Davis, 31 Barb. '323.' 69 
 
 Battle V. Davis, 66 N. C. 252 
 
 22, 32, 92, 153, 159-162, 
 
 310, 383, 399, 401, 611 
 
 Baxter v. Moses, 77 Me. 465 244 
 
 V. Nashville & H. Turnp. 
 
 Co. 10 Lea, 488 454 
 
 V. Welsh, 1 DeG. & S. 173. 333 
 V. Wheeler, 49 N. H. 9.209, 211 
 Bay V. Cook, 31 111. 336.. 238, 246, 247 
 Bayard v. Hoffman, 4 Johns. Ch. 
 
 450 256, 407 
 
 Bayaud v. Fellows, 28 Barb. 451 . - 
 
 239, 248, 296, 354 
 Bavles a. Kansas P. R. Co. 13 Colo. 
 
 181, 5L. R. A. 480- -88, 391 
 Bay less v. Orne, 1 Freem. Ch. 
 
 (Miss.) 172- - 344 
 
 Bayliss c. La Fayette, M. & B. R. 
 
 Co. 9 Biss. 90. 579 
 
 Beach v. Beston, 45 111. 341 247 
 
 V. White, Walk. Ch. 495... 252 
 Beam v. Bennett, 51 Mich. 148 .-. 237 
 Beard v. Arbuckle, 19 W.Va. 145. 
 
 27, 34, 35, 564 
 Beardsley Scythe Co. v. Foster, 36 
 
 N. Y. 561 244, 248 
 
 Beck V. Burdett, 1 Paige. 305 
 
 236, 244, 252, 256 
 Becker v. Torrance, 31 N. Y. 631. 
 49, 115, 126, 151, 178, 
 
 241 251 258 259 
 Beckwith v. Carroll, 56 Ala. 12-95, 588 
 Beebe v. Russell, 60 U. S. 19 How. 
 
 283. 15 L. ed. 668 71 
 
 Beecher v. Bininger, 7 Blatchf. 
 170.. 13, 18, 40, 43, 48, 
 
 56, 121 
 V. Marquette & P. Rolling 
 Mill Co. 40 Mich. 307.- 
 72, 271, 283, 293. 358, 469 
 Beecher's Estate, i?e,19 N.Y. Supp. 
 
 971---- 143 
 
 Beers v. Chelsea Bank, 4 Edw. Ch. 
 
 277 -- 561 
 
 V. Wabash, St. L. & P. R. 
 Co. 34 Fed. Rep. 244-. 
 
 131, 133 
 Beford v. Mawcatty (Md.) 2 Am. 
 •& Eng. Corp. Cas. N. 
 S. 477 100, 389
 
 XXXIV 
 
 CASES CITED. 
 
 Bell V. American Protective 
 League, 163 Mass. 558, 
 
 28 L. R. A. 453 224 
 
 V. Cbicao;o, St. L. & N. O. 
 R. Co. 34 La. Ann. 785 
 
 417, 501 
 V. Hanover Nat. Bank, 57 
 
 Fed. Rep. 823 138, 151 
 
 V. In(iianapoli.s, C. & L. R. 
 
 Co. 53lnd. 57.. 46. 213, 516 
 V. Shibley, 33 Barb. 610.... 
 
 92, 138, 144, 150 
 Bell, ex rel. Foster, v. Bell, L. R. 
 
 9 Eq. 173 234 
 
 Bell's Appeal, 115 Pa. 88 363 
 
 Bell's Estate, Re, L. R. 9 Eq.. 172. 202 
 Belmont v. Erie R. Co. 52 Barb. 
 
 637 -.343. 344,347, 460 
 
 Belmont Nail Co. i>. Columbia 
 Iron & S. Co. 46 Fed. 
 
 Rep. 8 363, 567 
 
 Belton, Re, 47 La. Ann. 1614, 30 
 
 L. R. A. 648.. 350, 360, 363 
 
 Bennesonw. Bill, 63 111. 408. 
 
 10, 29, 61, 82, 268, 589 
 Bennet v. Musgrove, 2 Ves. Sr. 51 249 
 Bennett v. Bayley, 1 Hayes & J. 
 
 400 17 
 
 V. Chapin, 3 Sandf. 673.... 585 
 
 Benson, Ex parte, 18 S. C. 38 85 
 
 Beut-y. Priest, 86 Mo. 482- 397 
 
 Bentley v. Bates, 4 Younge & C. 
 
 182. 306 
 
 V. Shrieve, 4 Md. Ch. 413 
 
 127, 154, 186 
 Bergen ». Littell, 41 N. J. Eq. 18. 
 
 171, 258 
 Bergin v. Deering, 70 Hun, 379... 127 
 Berlin «. Woolen Mill Co. 43 Wis. 
 
 434 360 
 
 Berney «. Sewell, 1 Jac. & W. 647 
 
 279 299 
 ». Sewell, 2 Jac. & W. 553.' 284 
 
 Berry, Re, 26 Barb. 55.. 
 
 65, 74, 125, 144, 417 
 e. Brett, 6 Bosw. 627... 138, 180 
 
 Berry ■«. Folkes, 60 Miss. 576 307 
 
 ». Gillis, 17 N. H. 9 
 
 103, 107, 233, 507 
 t. Keen, 51 L. J. Ch. 912.. 43 
 Bertrand v. Davies, 31 Beav. 436.. 142 
 Best V. Schermier, 6 N. J. Eq. 154 
 
 279, 292, 296 
 Besuden o. E. Besuden Co. 3 Ohio 
 
 N. P. 165 373 
 
 Beverley ®. Brooke. 4 Gratt. 187.. 
 2, 4, 31. 24. 25. 49. 66, 
 126, 283, 301, 312, 344, 
 
 536, 542 
 
 ®. Scott, 4 Gratt. 212.. 312 
 
 Beverly v. Rhodes, 86 Va. 415 240 
 
 Biddulph V. Hickman, 1 Hog. 244 29 
 Bidlack ®. Mason, 36 N. J. Eq. 330 
 
 51, 113, 167, 168 
 
 Bid well «. Paul, 5 Baxt. 693 398 
 
 Bieder v. Douglas. 35 III. App. 134 345 
 Biers «. Wabash. St. L. & P. R. 
 Co. 34 Fed. Rep. 244. 
 35 Am. & Eug. R. Cas. 
 
 646 504, 507 
 
 Big Creek Stone Co. ®. Seward 
 
 (Ind.)43N. E. 464.374, 403 
 Bigelow ». Andress, 31 III. 333... 
 
 239. 244, 354 
 B. Libby, 117 Mass. 359.... 391 
 
 B. Stringer, 40 Mo. 195 250 
 
 t. Union Freight R. Co. 137 
 
 Mass. 478 471 
 
 Bignell «. Chapman [1892] 1 Ch. 
 59, 01 L. J. Ch. 334, 66 
 L. T. 36, 40 Week. Rep. 
 
 305 587 
 
 Bill 0. New Albany & C. R. Co. 2 
 
 Biss. 390 48, 56, 345 
 
 Billings V. Robinson, 28 Hun, 133, 
 
 Aflf'd 94 N. Y. 415 
 
 116, 117, 156, 158, 176, 
 
 177, 403 
 
 •0. Stewart, 4 Dem. 269 251 
 
 Billingsley w. Bunce, 28 Mo. 547.. 250 
 
 «. Pollock, 69 Miss. 759 392 
 
 Bilton '0. Blakelv, 6 Grant, Ch. 
 
 (Ont.)575 322 
 
 Binnie v. Walker, 25 111. App. 82. 247 
 
 Binninger, Re, 7 Blatchf. 26 57 
 
 Birch «. Oldis, Sauss. & S. 146... 179 
 Bird V. Cockrem, 2 Woods, 32... 
 
 435, 436 
 t). Lamphear, 93 Hun, 567, 
 
 36N. Y. Supp. 1069... 32 
 u. Littlehales, 3 Swanst. 299, 
 
 note 186 
 
 Birdsall v. Colie, 10 N. J. Eq. 63.. 
 
 309, 325, 333 
 Birmingham & L. J. R. Co., Re, 
 
 L. R. 18 Ch. Div. 155.. 403 
 Birt, Re, L. R. 22 Ch. Div. 604... 53 
 
 Bissell «. Saxton, 66 N. Y. 60 79 
 
 Bisson ®. Curry. 35 Iowa, 72 
 
 15, 17, 18, 455, 466, 603 
 Bitting «. Ten Eyck, 85 Ind. 357. 
 
 25, 54, 55 
 
 Bivinst). Marvin, 96 Ga. 268 533 
 
 Black «. Gentery (N. C.) 26 S. E. 43 696 
 «. Ore Knob Copper Co. 115 
 
 N. C. 382 401, 403, 405 
 
 Blackburn & D. B. B. Soc, Re, L. 
 
 R. 43 Ch. Div. 343.... 224 
 Blackett «. B'.ackett, 24 L. T. N. 
 
 S. 276 18 
 
 Blackwell v. Rankin, 7 N. J. Eq. 
 
 153 34a
 
 CASES CITED. 
 
 XXXV 
 
 Blair v. St. Louis, 11. & K. R. Co. 
 
 19 Fed. Rep. 861 574 
 
 V. St. Louis, H. & K. R. Co. 
 
 20 Fed. Rep. 348 
 
 89. 90, 359, 469 
 V. St. Louis, H. & K. R. Co. 
 
 22 Fed. Rep. 471. -.477, 478 
 V. St. Louis, H. & K. R. Co. 
 
 23 Fed. Rep. 021 -..484, 498 
 Blake v. Alabama & C. R. Co. 6 
 
 Nat. Bankr. Reg. 332.. 
 
 127, 183 
 V. State Sav. Bank, 12 Wash. 
 
 619 571 
 
 V. Swain, 10 Allen, 340.... 407 
 
 «. Williams. 6 Pick. 386 110 
 
 Blake Crusher Co. v. New Haven, 
 
 46 Conn. 473.. 112, 122, 372 
 Blakeney o. Dufaur, 15 Beav. 40. 
 
 307, 312, 322, 339 
 Blanck v. Sadlier, 5 App. Div. 81, 
 
 16 Misc. 164 101 
 
 Blandy, Ex parte, 1 Deac. 286 106 
 
 Blatchford v. Newberry, 100 111. 
 
 484 397 
 
 V. Ross. 54 Barb. 42.. 
 
 343, 355, 359, 367, 464, 465 
 
 Bliss «. Doty, 36 Minn. 168. 376 
 
 V. Raynor, 91 Hun, 250 251 
 
 Block V. Estes, 92 Mo. 318 66 
 
 Blondheim i\ Moore, 11 Md. 365_. 
 12-15, 17, 41, 239, 249, 
 293, 324, 466, 469, 603, 
 
 604, 616 
 Bloodgood V. Clark, 4 Paige, 574. 
 
 14. 34, 237, 241, 331 
 Bloomfield ®, Van Slike, 107 Ind. 
 
 480 570 
 
 Blount V. Windley, 95 U. S. 173. 
 
 24L. ed. 424 383, 440 
 
 Bloxan v. Metropolitan R. Co. L. 
 
 R. 3 Ch. App. 387 409 
 
 Blum V. Van Vechten, 92 Wis. 378 339 
 Blumenthal v. Brainard, 38 Vt. 
 402.. 130, 188, 190, 203, 
 208, 209, 211, 395, 418, 
 
 509-511, 516, 251 
 Blunt V. Clitherow, 6 Ves. Jr. 799 
 
 93, 205, 382 
 Rly V. United States, 4 Dill. 464.. 155 
 Board of Public Works v. Colum- 
 bia College, 84 U. S. 17 
 Wall. 521, 21 L. ed. 687 244 
 Bock v. Perkins, 139 U. S. 628, 35 
 
 L. ed. 314 522 
 
 Bocker v. Torrance, 31 N. Y. 631. 147 
 Bockes V. Halhorn, 78 N. Y. 222.. 377 
 f5odkin v. Merrit, 102 Ind. 293.-67, 85 
 
 Boggs V. Brown, 82 Tex. 41 
 
 204. 518. 505 
 Boland v. Whitman, 33 Ind. 64... 92 
 
 Bolles V. Duff. 54 Barb. 215, 37 
 
 How. Pr. 162 60, 299 
 
 V. Duff, 35 How. Pr. 481, 38 
 
 How. Pr. 492 
 
 275, 277, 280, 599 
 Boltz V. Eagan, 34 Fed. Rep. 447. 124 
 Bond V. First Nat. Bank, 5 Colo. 
 
 83.. 121 
 
 V. Slate, 68 Miss. 648 
 
 198, 514, 629 
 Bonner v. Franklin Co-Operative 
 Asso. 4 Tex. Civ. App. 
 
 166.. 233, 513 
 
 V. Hearne, 75 Tex. 242.48, 52, 56 
 
 1). Mayfield, 82 Tex. 234.203, 213 
 
 Boot & Shoe Mfrs. Mut. F. Ins. 
 
 Co. V. Melrose Orthodox 
 
 Cong. Soc. 117 Mass. 
 
 199 161,400 
 
 Booth v. Brown, 62 Fed. Rep. 794 131 
 V. Clark, 58 U. S. 17 How. 
 
 322. 15 L. ed. 164 
 
 4, 22, 50, 83, 109-112, 
 
 145, 160. 165, 169, 263 
 T. Wells, 43 Fed. Rep. 11.. 392 
 Borer v. Chapman, 119 U. S. 587, 
 
 30 L. ed. 533 133 
 
 Borland v. Haven, 37 Fed. Rep. 
 
 304... 405 
 
 Boston & P. R. Corp. v. New York 
 & N. E. R. Co. 13 R. I. 
 
 320.. 275 
 
 Boston, C. & M. R. Co. v. Boston 
 & L. R. Co. 65 N. H. 
 
 393 366 
 
 Boston Dlatite Co. v. Florence Mfg. 
 
 Co. 114 Mass. 69 131 
 
 Bostwick V. Brinkerhoff, 106 U. S. 
 
 3, 27L. ed. 73 71 
 
 V. Elton, 25 How. Pr. 363.. 343 
 
 V. Ishell, 41 Conn. 305 15 
 
 V. Menck, 40 N. Y. 383.... 
 32, 114, 115, 172, 173, 
 198. 241-243, 251, 252, 
 255, 258-260, 375, 376, 
 
 387, 608 
 Bottsford V. Beers, 11 Conn. 369.. 247 
 Boulware v. Davis, 90 Ala. 207, 9 
 
 L. R. A. 601. 
 
 51, 112, 167, 412 
 
 Bound V. South Carolina R. Co. 47 
 
 Fed. Rep. 30. 50 Fed. 
 
 Rep. 312, 51 Fed. Rep. 
 
 58. 58 Fed. Rep. 480... 
 
 95, 484, 498, 523. 572, 579 
 
 Bourdillon v. Dalton, 1 Peake, 
 
 N. P. 238... 223 
 
 Bourdon v. Mantin, 74 Hun, 246. 
 
 203, 219 
 
 Bouton V. Dement, 123111. 143 
 
 263, 406, 408
 
 XXX VI 
 
 CASES CITED. 
 
 Bowden v. Johnson, 107 U. S. 251, 
 
 27 L. ed. 386 119 
 
 V. Morris, 1 Hughes, 380... 155 
 Bowen v. First Nat. Bank, 34 How. 
 
 Pr. 408 119 
 
 V. Parkhurst, 24 111. 257 253 
 
 Bowers v. Durant, 2 N. Y. 8. R. 
 
 127 550 
 
 Bowershank v. Collosseau, 3 Ves. 
 
 Jr. 164 62 
 
 Bowerv Bank Case,5 Abb. Pr. 415. 561 
 Bowhng V. Scales, 2 Tenn. Ch. 63 42 
 Bowling Green Sav. Bank v. Todd, 
 
 64 Barb. 146... 25, 126 
 
 Bowman, Be, 6 S. C. R. Eq. (New 
 
 So. Wales) 84 87 
 
 Bowman v. Bell, 14 L. J. Ch. N. S. 
 
 119. 28 
 
 V. Bell, 14 Sim. 392. 
 
 34, 63, 298. 355 
 
 V. Tallman, 2 Robt. 385.216, 626 
 
 Bowton«. Dement, 123 111. 142... 404 
 
 Boyce «. Burchard, 21 Ga. 74 
 
 42, 306, 307, 325, 328 
 Boyd, Mc parte, 105 U. S. 647, 26 
 
 L. ed. 1200 237 
 
 T. Cook, 40 Kan. 675. 71 
 
 V. Royal Ins. Co. Ill N. C. 
 
 372 160, 163. 399, 411 
 
 Boyle V. Bettws Llanluit Collierv 
 Co. L. R. 2 Ch. Div. 
 
 726.. 61 
 
 V. Townes, 9 Leigh, 158.. 50, 167 
 
 Bovnton v. Foster, 7 Met. 415 564 
 
 Bradley v. Angel, 3 N. Y. 475 180 
 
 V. Converse, 4 Cliff. 375.173, 407 
 V. Farwell, Holmes, 433.173, 360 
 
 Brady «. Fiirlow, 22 Ga. 613 150 
 
 Braham v. Stralhmore, 8 Jur. 567. 562 
 
 Bramley v. Tyree, 1 Lea, 531 71 
 
 Brande v. Bond, 63 Wis. 140.-100, 101 
 Brandt v. Allen, 76 Iowa, 50, 1 L. 
 
 R. A. 653 115, 122, 
 
 172, 173, 386 
 Brant v. Willoughby, 17 Grant, 
 
 Ch. (Ont.) 627 60 
 
 Brassey v. New York & N. E. R. 
 Co. 19 Fed. Rep. 663, 
 22 Blatchf, 72.... 273, 
 
 358, 461, 464 
 Brasted v. Sutton, 30 N. J. Eq. 462 
 
 278, 280, 292 
 Breckenridse v. Brooks, 2 A. K. 
 
 Marsh. 339. 299 
 
 Brenan v. Preston, 2 DeG. M. & 
 
 G. 813 324, 325 
 
 Brewer v. Boston Theatre, 104 
 
 Mass. 378 114, 351, 365 
 
 Briarfield Iron Works v. Foster, 54 
 Ala. 622. ...15, 17, 28, 
 38, 242, 343, 367, 455, 468 
 
 Bridges v. Stephens (Mo.) 34 S.W. 
 
 555 426 
 
 Brien v. Harriman, 1 Tenn. Ch. 
 
 467.. 312, 587 
 
 V. Paul, 3 Tenn. Ch. 357... 
 
 24, 73, 84, 129, 153, 184 
 Briggs V. Penniman, 8 Cow. 387.. 
 
 177, 178, 385 
 V. Spaulding, 141 U. S. 132, 
 
 35 L. ed. 662.. 437, 448, 449 
 D. Stroud, 58 Fed. Rep. 720. 123 
 Brigham v. Luddington, 12 Blatchf. 
 
 287 112, 145, 165, 262 
 
 Bright V. North, 2 Phill. 216. . ..93, 880 
 Brinckerhoflf v. Bostwick, 88 N. Y. 
 
 52 484,436,449, 450, 623 
 
 Brinkerhoff t). Brown, 4 Johns. Ch. 
 
 671. ....244,247 
 
 Brinkman v. Ritzinger, 82 Ind. 358 
 
 34, 63, 286, 297, 298 
 Brisenden «. Chamberlain, 53 Fed. 
 
 Rep. 307. 411 
 
 Bristol, Re, 16 Abb. Pr. 184 
 
 110. 167, 168 
 Bristowe v. Needham, 9 Jur. N. S. 
 
 1168. 587 
 
 V. Needham, 12Phill. Ch.l90 219 
 British Linen Co. v. South America 
 & M. Co. [1894] 1 Ch. 
 
 108 29 
 
 British Nat. L. Assur. Asso., Re, 
 
 L. R. 14 Eq. 492 563 
 
 Broad «. Wickham, 4 Sim. 511 
 
 122. 128, 129 
 Brockert v. Central Iowa R. Co. 82 
 
 Iowa, 369 204, 516 
 
 Brocklebank v. East London R. 
 Co. L. R. 12 Ch. Div. 
 
 839 572 
 
 Brodie v. Barry, 8 Meriv. 695.. 17, 544 
 Bronson v. La Crosse & M. R. Co. 
 67 U. S. 2 Black, 524, 
 
 17 L. ed. 359 71 
 
 Brooks V. Bigelow, 142 Mass. 6,.. 180 
 V. Great head, 1 Jac. & VV. 
 
 322.. 132 
 
 T. Stone, 19 How. Pr. 395.. 244 
 
 V. Wisner, 20 Mo. 503 250 
 
 Broome v. Robinson, 7 East, 385.. 106 
 Brouwer v. Appleby, 1 Sandf. 
 
 158 114 
 
 V. Harbeck, 9 N. Y. 589.... 407 
 V. Hill, 1 Sandf. 629.... 104, 
 
 157, 171. 172, 256, 260, 397 
 
 Browell®. Reed, 1 Hare, 434 546 
 
 Brower v. Brower, 2 Edw. Ch. 621 
 
 593, 631 
 
 Brown, Ex parte. 58 Ala. 536 861 
 
 Ex parte, 15 S. C. 518 
 
 202, 209, 212, 395, 510 
 Be, 3 Edw. Ch. 884 108
 
 CASES CITED. 
 
 xxxvn 
 
 Brown v. Bank of Mississippi, 31 
 
 Miss. 454 245 
 
 V. Brown, 71 Tex. 355 
 
 195, 395, 511, 516 
 V. Carolina C. R.Co. 83 N. C. 
 
 128 46 
 
 V. Chase, Walk. Ch. (Mich.) 
 43.. -.32, 267, 277, 280, 
 
 281, 285, 290 
 V. Chesapeake & O. Canal 
 
 Co. 73 Md. 567 41 
 
 V. Gay, 76 Tex. 444.. 
 
 204, 518, 629 
 V. Gilmore, 16 How. Pr. 527 
 
 115, 158 
 V. Hazlehurst, 54 Md. 26... 
 
 93, 200, 590 
 c. Heathcote, 1 Atk. 162... 383 
 V. Lake Superior Iron Co. 
 134 U. S. 530, 33 L. ed. 
 
 1021 247, 456 
 
 V. Lons:, 1 Ired. Eq. 190... 245 
 V. Maryland, 114 U. S. 605, 
 
 29 L. ed. 235... 272 
 
 V. New York & E. R. Co. 19 
 
 How. Pr. 84 485 
 
 V. Nichols, 42 N. Y. 26.240, 251 
 V. Northrup, 15 Abb. Pr. N. 
 
 S. 333 21, 60 
 
 V. Perry, 1 Ch. (Ont.) 253.. 557 
 
 V. Rauch, 1 Wash. 497 
 
 184, 189, 191, 614 
 
 V. Ring, 77 Mich. 159. 70 
 
 V. Toledo, P. & W. R. Co. 
 
 35 Fed. Rep. 444 
 
 222, 393, 394, 590 
 V. Vandermuelen, 41 Mich. 
 
 418 71 
 
 V. Wabash R. Co. 96 111.297 
 
 395, 516, 519. 520, 630 
 V. Warner, 78 Tex. 543, 11 
 L. R. A. 394... 21, 102, 
 103, 204, 205, 225, 375, 396 
 Brown, Bagley & Dixon, Re, L. R. 
 
 18 Ch. Div. 649 ...223, 
 
 393. 497 
 Brown's Estate, Be, L. R. 19 Ir, 
 
 183 569 
 
 Brownell v. Curtis, 10 Paige, 210. 
 
 406, 408 
 
 V. [Manchester, 1 Pick. 232. 50 
 
 Browninir ». Bettis, 8 Paige, 568.. 262 
 
 V. Hanfoid, 5 Denio, 586... 254 
 
 V. Hart, 6 Barb. 91 408 
 
 Bruce v. Mancliester & K. R. Co. 
 
 19 Fed. Rep. 342... 48, 
 
 56, 57, 122 
 Brundred v. Paterson Mach. Co. 
 
 4 N. J. Eq. 294.... 347, 370 
 Bruns v. Stewart Mfg. Co. 31 Hun, 
 
 316 557 
 
 Brush V. Joy, 113 N. Y. 482, Ov. 
 
 50 Hun, 446 -, 98, 329 
 
 V. Sweet, 88 Mich. 574 409 
 
 Bryan v. Cormick, 1 Cox, Ch. 422. 
 
 130, 300 
 V. Moring, 94 N. C. 694.. 13, 
 
 42, 43, 536 
 Bryan & B. Shoe Co. v. Block, 52 
 
 Ark. 458 102 
 
 Brydon v. Stewart, 2 Macq. H. L. 
 
 Cas. 30 203 
 
 Bryson v. McCreary, 102 Ind. 4.. 296 
 Buchanan «. Berkshire L. Ins. Co. 
 96 Ind. 510.63, 70, 286, 
 
 289, 298 
 V. Comstock, 57 Barb. 568.. 
 
 308. 309, 336 
 
 V. Meisser, 105 111. 638 405 
 
 V. Smith, 83 U. S. 16 AVall. 
 
 309, 21 L. ed. 287 57 
 
 Buck V. Colbath, 70 U. S. 3 Wall. 
 
 334, 18 L. ed. 257.. 122. 522 
 v. Piedmont&A. L. Ins. Co. 
 4Fed. Rep.849..41, 61, 
 
 352, 367, 657 
 Buckeve Engine Co. v. Donau 
 Brew. Co. 47 Fed. Rep. 
 
 6 45, 238 
 
 Buckley v. Baldwin, 69 Miss. 804. 
 
 15, 41, 603 
 
 V. George, 71 Miss. 580 616 
 
 Buckworth «. Morgan, Smith on 
 
 Receivers (Irish) 82 105 
 
 Buell V. Buckingham, 16 Iowa, 284 360 
 Bufkin V. Boyce, 104 Ind. 53.. 54, 
 
 309, 321, 325, 331, 333 
 Buler's Estate, Re, 13 Ir. Ch. N. S. 
 
 456... 25 
 
 Bunde v. Cocke, 128 U. S. 125, 32 
 
 L. ed. 396 441 
 
 Bunn V. Fonda, 2 N. Y. Code Rep. 
 
 70 ..:. 257 
 
 Burch V. Bramley, 20 S. C. 503... 245 
 Burgwyn Bros. Tobacco Co. v. 
 
 Bentley, 90Ga. 508.... 319 
 Burk V. McClain, 1 Harr. &, McII. 
 
 236 165 
 
 V. Muskegon Mach. & F. Co. 
 
 98 Mich. 614 192,417 
 
 Burlingame v. Parce, 12 Hun, 144 
 
 274, 294, 458 
 Burnhara v. Bowen, 111 U. S. 776, 
 28 L. ed. 596 .218,479, 
 483, 489, 495, 523, 575, 576 
 Burns v. Campbell, 3 Jones Eq. 
 
 410 42 
 
 Burrall v. Leslie, 6 Paige, 445.. 55, 376 
 Burroughs v. Gaither, 66 Md. 171 
 
 86, 87, 388 
 Burrows v. Malloy, 2 Jones & L. 
 
 521, 8 Ir. Eq. Rep. 482 278
 
 XXX VIU 
 
 CASES CITED. 
 
 Burt V. Burt, 41 N. Y. 46 536 
 
 Burton v. Burley, 9 Biss. 253 431 
 
 Buswell v. Supreme Silling, O. of 
 I. H. 161 Mass. 224, 23 
 
 L. R. A. 846 113, 169 
 
 Butcbart v. Dresser, 4 DeG. M. & 
 
 G. 542 307, 314 
 
 Butcher v. Harrison, 4 Barn. & 
 
 Ad. 129 - 407 
 
 Butler V. Aspinwall, 33 Fed. Rep. 
 
 217 442 
 
 T. Coleman, 124 U. S. 721, 
 
 31 L. ed. 567 448 
 
 V. Eaton, 141 U. S. 240, 35 
 
 L. ed. 713 ....438, 444 
 
 V. Poole, 44 Fed. Rep. 586. 443 
 V. Sprague, 66N. Y. 392... 
 
 202, 219, 392 
 
 «. Walker, 80 111. 345 177 
 
 Butterworth v. O'Brien, 24 How. 
 Pr. 438, 39 Barb. 192.. 
 
 114, 171, 387 
 
 Butts V. Wood, 38 Barb. 181 360 
 
 Bydon v. Innes, 5 W. W. & A' B, 
 
 (Vict.) 189 47 
 
 Byers v. McAuley, 149 U. S. 608, 
 
 37 L. ed. 867 122, 123 
 
 Byles V. Kellogg, 67 Mich. 318... 
 
 138, 409 
 Bywaler's Estate, Be, 1 Jur. N. S. 
 
 227 34 
 
 C. 
 
 Cadle V. Baker, 87 U. S. 20 Wall. 
 
 650, 22 L. ed. 448.. 425, 434 
 V. Tracy, 11 Blatchf. 101... 
 
 423, 424, 428, 435 
 Cadogan ®. Lyric Theatre, 7 Rep. 
 
 594 [1894] 3 Ch. 338, 63 
 
 L. J. Ch. 775, 71 L. T. 
 
 N. S. 8.. - 256 
 
 Cagill V. Wooldridge, 8 Baxt. 580. 
 
 50, 111, 112, 134, 167, 168 
 Cahn V. Johnson (Tex. Civ. App.) 
 
 33 S. W. 1000 3.54 
 
 Caillard «. Caillard, 25 Beav. 512. 15 
 
 Cain V. Warford, 7 Md. 282 564 
 
 Cairns v. Chabert, 3 Edw. Ch. 312 293 
 Caldwell v. McWhorter, 84 Ky. 
 
 130 160 
 
 Calhoun v. Lanaux, 127 U. S. 634, 
 
 37L. ed. 297 57 
 
 California Nat. Bank Stockhold- 
 ers, Be, 53 Fed. Rep. 38 382 
 Calkins v. Atkinson, 2 Lans. 12.. 
 
 115, 174-176, 384, 386, 403 
 Callaghan v. Callaghan, 8 Ir. Eq. 
 
 572 ■ 77 
 
 Callan v. Wilson, 127 U. S. 540, 32 
 
 L. ed. 223 131 
 
 Callanan v. Shaw, 19 Iowa, 183.. 
 
 44, 70, 274, 277, 284, 291 
 Cameron v. Ilavemeyer, 25 Abb. 
 
 N. C. 438 353, 532, 541 
 
 Cammack v. Johnson, 2 N. J. Eq. 
 
 163 619 
 
 Cammell v. Sewell, 5 Hurlst. & N. 
 
 728 ...50, 134, 414 
 
 Camp V. Barney, 6 Thomp. & C. 
 622, 4 1Iun,373 ...188, 
 195, 204, 209, 229, 418, 
 
 512, 615 
 «. Niagara Bank, 2 Paige, 
 
 283 ^03 219 
 
 Campbell v. Cook,'86"Tex.'"630..' 
 
 395, 513 
 ®. Davis (Tex.) 22 S. W. 244 218 
 V. Erie R. Co. 46 Barb. 540. 2.59 
 V. Eversole (Ky.) 38 S. W.486 696 
 
 V. Fish, 8 Daly, 162 
 
 179, 257, 258 
 «. Foster, 85 N. Y. 361 .... 257 
 V. Lloyd's Bank, 58 L. J. 
 
 Ch.424 26 
 
 V. Lloyds, B. & B. Bank 
 
 [1891] 1 Ch. 136 96 
 
 ■V. McCahan, 41 111. 45 616 
 
 V. Weiss (Tex.) 25 S. W. 1076 233 
 Capital City Water Co. v. Wea- 
 
 therly (Ala.) 18 So. 841 68 
 Capital Mut. F. Ins. Co. v. Boggs, 
 
 172 Pa. 91 .\. 390 
 
 Cardot v. Barney, 63 N. Y. 2S1... 
 198, 202, 204, 209-211, 
 
 229, 395, 512, 516 
 Carew v. Rutherford, 106 Mass. 1. 131 
 
 Careys. Carey, 2 Daly, 424. 553 
 
 V. Houston & t. C. R. Co. 
 
 52 Fed. Rep. 671 345 
 
 Carley®. Graves, 85 Mich. 483... 628 
 
 Carlin v. Jones, 55 Ala. 624 183 
 
 Carlisle v. Southeastern R. Co. 1 
 
 Macn. & G. 689 409 
 
 Carmichael v. Vandebur, 51 Iowa, 
 
 225 --- 564 
 
 Carolina Nat. Bank, £Jx parte, 18 
 
 S. C. 289 85, 381, 502 
 
 Carper v. Hawkins, 8 W. Va. 291 75 
 Can V. Hamilton, 129 U. S. 252, 
 
 32 L. ed. 669.-369, 383, 400 
 v. Hilton, 1 Curt. C. C. 230. 260 
 
 «. Morris, 85 Va. 21.. 
 
 202, 205, 231 
 Carrow v. Ferrier, 37 L. J. Ch. 
 
 569, L. R. 3Ch. 719.. 43, 45 
 
 Carter, Be. 3 Paice. 146. 203 
 
 V. Ford Plate Glass Co. 85 
 
 Ind. 180 359 
 
 V. Hampton, 77 Va. 631.... 240 
 V. Hightower, 79 Tex. 135. 
 
 45, 239
 
 CASES CITED. 
 
 xxxix 
 
 Cartwright v. Dickinson, 88 Tenn. 
 
 476, 7 L. R. A. 706 404 
 
 Cartwright's Case, 114 Mass. 230. 
 
 202, 206, 207 
 Caruthers v. Humphrey, 12 Mich. 
 
 270 283, 293, 460, 469 
 
 Case V. Abeel, 1 Paisce, 393 317 
 
 ». Berwin, 22 La. Ann. 321. 
 
 163, 436 
 «. Citizens' Bank, 2 Woods, 
 23, 100 U. S. 446, 25 L. 
 
 ed. 695 446 
 
 V. Marchand, 23 La. Ann. 60 
 
 67, 425, 427 
 V. New Orleans & C. R. Co. 
 ("Case V. Beaureirard") 
 101 U. S. 688, 25'L. ed. 
 
 1004 240 
 
 V. Small, 4 Woods, 78, 10 
 
 Fed. Rep. 722.427, 443, 449 
 V. Terrell, 78 U. S. 11 Wall. 
 
 199, 20 L. ed. 134 429 
 
 Casey «. Cincinnati Typographical 
 Union Co. No. 3, 45 
 Fed. Rep. 135, 12 L. R. 
 
 A. 193 131 
 
 V. Galli, 94 U. S. 673, 24 L. 
 
 ed. 168 438, 443, 444 
 
 V. La Societe de Credit Mo- 
 
 bilier, 2 Woods, 77 
 
 428, 446-448 
 CQSserly v. Witherbee, 119 N. Y. 
 
 522... 156, 387 
 
 Cassetty v. Capps, 3 Tenn. Ch. 524 551 
 Cassidy v. Meacham, 3 Paige, 311 
 
 45, 238, 252 
 Cassilear v. Simmons, 8 Paige, 273 134 
 
 Castle V. Lewis, 78 N. Y. 137 246 
 
 Cates V. Allen, 149 U. S. 456, 37 L. 
 
 ed. 807 238 
 
 Catlin V. Wilcox Silver Plate Co. 
 123 Ind. 477, 8 L. R. A. 
 
 62.... .111, 167, 168 
 
 Cazet V. Hubbell, 36 N. Y. 677... 102 
 Central Coal & C. Co. v. Southern 
 Nat. Bank (Tex. Civ. 
 
 App.)34 S. W. 383 52 
 
 Central Farmers' Bank v. Beaston, 
 
 7 Gill & J. 421 53. 
 
 Central Nat. Bank v. Connecticut 
 Mut. L. Ins. Co. 104 U. 
 S. 54, 26 L. ed. 693.423,430 
 V. Hazard, 30 Fed. Rep. 484 525 
 V. Hazard, 49 Fed. Rep. 295 
 
 124, 345 
 Central R. & Bkg. Co. v. Farmers' 
 Loan & T. Co. 56 Fed. 
 
 Rep. 357 - 353 
 
 Central Trust Co. v. Charlotte, C. 
 & A. R. Co. 65 Fed. 
 Rep. 264 506 
 
 Central Trust Co. v. Chattanooga, 
 
 R. & C. R. Co. 62 Fed. 
 
 Rep. 950 345 
 
 «. Chattanooga, R. & C. R. 
 
 Co. 68 Fed. Rep. 685, 2 
 
 Am. & Eng. Corp. Cas. 
 
 N. S. 493 187 
 
 V. Chattanooga S. R. Co. 69 
 
 Fed. Rep. 295 487 
 
 V. Cincinnati, I. & M. R. Co. 
 
 58 Fed. Rep. 500. 584 
 
 V. East Tennessee, V. & G. 
 
 R. Co. 30 Fed. Rep. 895 580 
 V. East Tennessee, V. & G. 
 
 R. Co. 59 Fed. Rep. 523 
 
 125, 183. 187, 521 
 «. East Tennessee, V. & G. 
 
 R. Co. 69 Fed. Rep, 353 514 
 «. Ea.st Tennessee, V. & G. 
 
 R. Co. 69 Fed. Rep. 658 488 
 V. Grant Locomotive Works, 
 
 135 U. S. 221, 34 L. ed. 
 
 104 118 
 
 «. Marietta & N. G. R. Co. 
 
 51 Fed. Rep. 15, 16 L. 
 
 R. A. 90_.102, 204, 225, 515 
 V. New York C. & N. R. Co. 
 
 110 N. Y. 250, 1 L. R. 
 
 A. 260 137, 388, 574 
 
 V. Ohio C. R. Co. 23 Fed. 
 
 Rep. 306,23Am.&En2:. 
 
 R. Cas. 666... 502, 505, 619 
 V. St. Louis, A. & T. R. Co. 
 
 40 Fed. Rep. 426 521 
 
 V. St. Louis. A. & T. R. Co. 
 
 41 Fed. Rep. 551 
 
 476, 477, 570 
 V. Seasongood. 130 U. S. 482, 
 
 32L. ed. 985 525 
 
 tj. 'Sloan, 65 Iowa, 655 395 
 
 e. South Atlantic & O. R. 
 
 Co. 57 Fed. Rep. 3.... 345 
 ». Texas & St. L. R. Co. 22 
 
 Fed. Rep. 135. 476 
 
 V. Valley R. Co. 55 Fed. 
 
 Rep. 903 ....499, 597 
 
 V. Wabash, St. L. & P. R. 
 
 Co. 23 Fed. Rep. 858. . 
 
 185, 191 
 V. Wabash, St. L. & P. R. 
 
 Co. 25 Fed. Rep. 69... 599 
 V. Wabash, St. L. & P. R. 
 
 Co. 26 Fed. Rep. 3.... 135 
 V. Wabash, St. L. & P. R. 
 
 Co. 26 Fed. Rep. 12.122, 203 
 V. Wabash, St. L. & P. R. 
 
 Co. 28 Fed. Rep. 871.. 190 
 V. Wabash, St. L. & P. R. 
 
 Co. 29 Fed. Rep. 618.. 355 
 V. Wabash, St. L. & P. R. 
 
 Co. 30 Fed. Rep. 344.. 24
 
 xl 
 
 CASES CITED. 
 
 Central Trust Co. v. Waba.sh, St. 
 L. & P. R. Co. 32 Fed. 
 
 Rep. 187 583 
 
 V. Wabash, St. L. & P. R. 
 Co. 33 Fed. Rep. 566. . 
 
 225, 226, 497 
 V. Wabash, St. L. & P. R. 
 Co. 46 Fed. Rep. 29... 
 
 51, 95, 580 
 V. Wabash, St. L. & P. R. 
 
 Co. 52 Fed. Rep. 908.93, 389 
 Certain Stockholders of California 
 Nat. Bank, Be, 53 Fed, 
 
 Rep. 38 -- -. 88 
 
 Chadbourn v. Henderson, 2 Baxt. 
 
 460 282 
 
 Chafee v. Fourth Nat. Bank, 71 
 
 Me. 514. 111,167 
 
 V. Quidnick Co. 13 R. I. 442 
 112. 121, 
 125, 128, 133, 147, 184, 417 
 Chamberlain, Ex parte, 55 Fed. 
 
 Rep. 708. 127, 129 
 
 V. Greenleaf, 4 Abb. N. C. 92 60 
 V. Greenleaf, 4Abb.N.C. 178 387 
 
 V. Marble, 24 Miss. 586 43 
 
 V. New York, L. E. & W. 
 R. Co. 71 Fed. Rep. 636 
 
 514, 515 
 
 V. O'Brien, 46 Minn. 80 
 
 239, 259, 375 
 V. Rochester Seamless Pa- 
 per Vessel Co. 7 Hun, 
 
 557 126, 357 
 
 Chamberlayne v. Temple, 2 Rand. 
 
 384 249 
 
 Chambers v. Goldwin, 5 Ves. Jr. 
 
 834, note a 299 
 
 V. Jones, 72 111. 275... 616 
 
 V. McDougal, 42 Fed. Rep. 
 
 694 415 
 
 Chandlers. Brown, 77 111. 333... 
 
 117, 175, 403-405 
 V. Cushing- Young Shingle 
 
 Co. 13 Wash. 89 397 
 
 V. Dore, 84 111. 275 175, 405 
 
 v. Keith, 4 Iowa, 99.175, 177, 404 
 «. Siddle, 3 Dill. 477... 167, 175 
 Chapman v. Beach, 1 Jac. & W. 
 
 589. 307, 309, 325, 834 
 
 V. Jeyes, 4 Beav. 503. 325 
 
 V. White, 6 N. Y. 412 219 
 
 Chappell V. Akin. 39 Ga. 177 530 
 
 V. Boyd, 56 Ga. 578 42, 548 
 
 Chase i;. Dana, 44 111. 262. 616 
 
 V. Petroleum Bank, 66 Pa. 
 
 169... 180, 392. 627 
 
 Chase's Case, 1 Bland, Ch. 206... 
 
 14, 42, 43, 126 
 Chattanooga T. R. Co. v. Felton, 
 
 69 Fed. Rep. 273.--132, 557 
 
 Chautauque County Bank o. Ris- 
 
 ley, 19 N. Y. 375 
 
 48, 125, 127, 142, 147, 
 148, 184, 188, 256, 257, 
 263, 264. 418, 614, 615, 620 
 V. White, 6 Barb. 589, Rev'd 
 
 6 N. Y. 236 
 
 83, 250, 260, 263 
 Cheatham v. Hawkins, 76 N. C. 
 
 335 250 
 
 Cheever v. Rutiand'& B. r" Co'sS 
 
 Vt. 653... 272, 291, 459, 464 
 Chemical Nat. Bank v. Armstrong, 
 
 50 Fed. Rep. 798 600 
 
 V. Bailey, 12 Blatchf. 480.. 432 
 V. Colwell, 132 N. Y. 250... 177 
 V. Hartford Deposit Co. 161 
 
 U. S. 1, 40 L. ed. 595.. 422 
 Cheney v. Fisk, 22 How. Pr. 236. 92 
 
 Chesnut v. Pennell, 92 111. 55 175 
 
 Chetwood v. Coffin, 30 N. J. Eq. 
 
 450 267,292, 294, 358 
 
 Chew V. Carlisle, Bright. (Pa.) 36. 131 
 Chicago & A. Oil & Min. Co. v. 
 United States Petroleum 
 
 Co. 57 Pa. 83 10, 12, 
 
 13, 43, 44, 54, 348, 551 
 Chicago & S. E. R. Co. v. Cason, 
 133 Ind. 49.. 15, 18, 19, 
 
 72, 354, 604 
 V. St. Clair (Ind.) 42 N. E. 
 
 225 35 
 
 Chicago, B. & Q. R. Co. v. Bur- 
 lington, C. R. & N. R. 
 Co. 34 Fed. Rep. 481.. 504 
 Chicago Deposit Vault Co. v. Mc- 
 Nulta, 153 U. S. 554, 38 
 
 L. ed. 819 
 
 93, 202, 224, 388, 508. 627 
 Chicago Fire Place Co. v. Tait, 58 
 
 111. App. 293.. 394 
 
 Chicago, M. & St. P. R. Co. v. 
 Keokuk N. L. Packet 
 
 Co. 108 111. 317 
 
 50, 112, 134, 167, 168, 414 
 Chicago Mut. L. Indem. Asso. v. 
 Hunt, 127 111. 257, 2 L. 
 
 R. A. 549 361 
 
 Chicago Title & T. Co. v. Caldwell, 
 
 58 111. App. 219. 72 
 
 1). Smith, 158 111. 417 51, 52 
 
 Child V. Brace, 4 Paige, 309 357 
 
 Childress v. State Trust Co. (Tex. 
 
 Civ. App.) 32 S.W. 330 349 
 Childs V. Clark, 3 Barb. Ch. 52... 220 
 
 V. Hurd, 32 W. Va. 87 272 
 
 Chinnery v. Blackman, 3 Dougl. 
 
 390. 282 
 
 V. Evans, 11 H. L. Cas. 115 278 
 Chipman v. Sabbaton, 7 Paige, 47 
 
 66, 148
 
 CASES CITED. 
 
 Jtli 
 
 Chittenden v. Brewster, 69 U. S. 2 
 
 Wall. 191, 17 L. ed. 839 345 
 
 Chouteau v. Allen, 70 Mo. 290 408 
 
 Christian Jensen Co., lie, 128 N. 
 Y. 550... 24, 53, 65, 68, 
 74, 125, 128, 147, 153, 
 159, 184, 186, 853, 417, 
 
 556, 620 
 Cincinnati Nat. Bank v. Tilden, 50 
 
 K Y. S. R. 306.. 598 
 
 Cincinnati, S. & C. R. Co. v. 
 Sloan, 31 Ohio St. 1... 
 
 70, 71, 364. 471, 558 
 Citizens' Bank v. Levee Steam 
 Cotton Press Co. 7 La. 
 
 Ann. 286 346 
 
 Citizens' Sav. Bank v. Person, 98 
 
 Mich. 173 183 
 
 V. Wilder, 42 X. Y. Supp.481 699 
 City & County Invest. Co., Re, 25 
 
 Week. Rep. 342.. 62 
 
 Re, L. R. 13 Ch. Div. 475.. 118 
 City Ins. Co. v. Commercial Bank, 
 
 68111.348 416 
 
 City Water Co. v. State, 88 Tex. 
 
 600 361, 373, 374 
 
 Clapp V. Clapp, 49 Hun, 195 
 
 133. 212, 587 
 
 Clark, Re. 4 Ben. 88 48, 56, 121 
 
 V. Bergenthal, 52 Wis. 103. 
 
 238, 251 
 V. Binninger, 75 N. Y. 344, 
 
 11 Jones & S. 126.. 232, 234 
 V. Brockway, 3 Keve.=;, 13, 1 
 Abb. App. Dec. 851... 
 
 146, 180 
 V. Clark, 58 U. S. 17 How. 
 
 315, 15L. ed. 77 250 
 
 V. Connecticut Peat Co. 35 
 
 Conn. 303 50, 134, 414 
 
 V. Dew, 1 Russ. & M. 103.39, 43 
 
 D. Dyer, 81 Tex. 339 233, 516 
 
 V. Fisher, Sauss. & S. 684.83, 153 
 
 V. Gilbert, 10 Daly, 316 258 
 
 «. Iselin, 88 U. S. 21 Wall. 
 
 360,22 L. ed. 568 
 
 219, 447, 448 
 V. John A. Logan Mut. L. & 
 Bldg. Asso. 58 111. App. 
 
 311 291 
 
 V. Raymond, 84 Iowa. 257.. 
 
 55, 239, 248 
 V. Raymond, 85 Iowa, 737. 549 
 v. Ridgely. 1 Md. Ch. 70... 
 
 14, 34. 43, 536 
 ?;. Thomas, 34 Ohio St. 46.. 
 
 115, 116 
 Clark & Eininger, Re, 4 Ben. 98.. 127 
 Clarke v. Central R. & Bkg. Co. 
 54 Fed. Rep. 556, 66 
 Fed. Rep. 16. .501, 559, 619 
 
 Clarke v. Hawkins, 5 R. I. 219. 
 
 180, 181 
 V. Hume, 1 Ryan & M. 206. 223 
 B. 'Thomas, 34 Ohio St. 46.. 
 
 174, 177, 403 
 Clason V. Morris, 10 Johns. 540... 383 
 Clavering's Case, Prec. Ch. 535... 201 
 Clegg v. Edmondson, 8 DeG. M. & 
 
 G. 787. 322 
 
 V. Fishwick, 1 Macn. & G. 
 
 264. 308, 323 
 
 Clements v. Empire Lumber Co, 
 
 96 Ga. 319 591 
 
 v. Hall, 2 DeG. & J. 173... 322 
 Cleveland «. Marine Bank, 17 Wis. 
 
 545 354 
 
 Cleveland, C. & C. R. Co. v. 
 
 Kearney, 3 Ohio St. 201 202 
 Cleveland. C. C. & I. R. Co. v. 
 Jewett, 37 Ohio St. 649 
 15, 17, 18, 364, 455, 466, 
 
 471, 603 
 Clinkscales v. Pendleton Mfg. Co. 
 
 9 S. C. N. S. 318 
 
 52, 65, 74, 125 
 Clough V. Thompson. 7 Gratt. 26. 
 
 261, 407 
 Clyburn v. Reynolds, 31 S. C. 91. 
 
 34, 35, 603 
 Clyde V. Richmond & D. R. Co. 56 
 
 Fed. Rep. 541.. 95, 123,217 
 V. Richmond & D. R. Co. 63 
 
 Fed. Rep. 21 393 
 
 Coates V. Cunningham, 80 111. 467 
 
 71. 142. 596 
 Coates Bros. v. Wilkes, 93 N. C. 
 
 376 237 251 
 
 Coburn v. Ames,' 52 CalV385ll.73', 126 
 
 V. Ames, 57 Cal. 201 
 
 22, 557, 558, 598 
 Cochrane, Ex parte. Re Mead, L. 
 R. 20 Eq. 282... 24, 46, 
 121, 128, 129, 132, 184, 620 
 Cockburn v. Raphael, 2 Sim. & 
 
 Stu. 453 76, 108,531 
 
 Cocks V. Varney, 45 N, J. Eq. 
 
 72 246 
 
 Coddington v. Bispham, 36 N. J. 
 
 Eq. 574 240,301 
 
 V. Tappan, 26 N. J. Eq. 141 308 
 Codrington v. Parker, 16 Ves. Jr. 
 
 469 ...284, 299 
 
 Coe V. Columbus, P. & L. R. Co. 
 
 10 Ohio St. 372 
 
 127, 372, 495 
 V. New Jersey M. R. Co. 27 
 
 N. J. Eq. 37, 30 N. J. 
 
 Eq. 21 .• 117, 
 
 221, 224, 393, 492. 497, 524 
 v. New Jersey M. R. Co. 31 
 
 N. J. Eq. 105 477, 485
 
 xlii 
 
 CASES CITED. 
 
 Coeur D'Alene Consol. & Min. Co. 
 V. Miners' Union of 
 Wardens, 51 Fed. Rep. 
 26U, 19 L. R. A. 882.. . 131 
 
 Cofer T. Echerson, 6 Iowa, 502 
 
 32. 42-44 
 Coffin V. Ransdell, 110 Ind. 417.. 
 
 175, 383 
 
 Cohen, Be. 5 Cal. ,594 64, 122 
 
 V. Meyers, 42 Ga. 46 
 
 12. 62, 71, 239 
 
 «. Morris, 73 Ga. 313 239 
 
 Cole V. Cunningham, 133 U. S. 
 
 107. 33 L. ed. 538.-113, 170 
 V. Oil Well Supply Co. 57 
 
 Fed. Rep. 534 123 
 
 V. O'Neill, 3 Md. Ch. 174... 43 
 Coleman v. Glanville, 18 Graut. 
 
 Ch. (Ont.)42 193 
 
 V. Hoff. 45 N. J. L. 7 258 
 
 v. White, 14 Wis. 700 354 
 
 Colemore v. North, 21 Week. Rep. 
 
 43. 42 L. J. Ch. 4 76 
 
 CoUahan v. Reardoa, Sauss. & S. 
 
 682. 153 
 
 Collier «. Sapp. 49 Ga. 93 548 
 
 Collins V. Barker, L. R. 1 Ch. Div. 
 
 578 313,529 
 
 V. Gooch, 97 N. C. 186 391 
 
 V. Stewart, 2 App. Div. 271. 533 
 Colorado Nat. Bank v. Scott, 19 
 
 Abb. N. C. 348 374 
 
 Colt B.Brown, 12 Gray, 233 
 
 138. 180, 384, 440 
 Columbia Book Co. v. DeGolyer, 
 115 Mass. 67.. 122, 190, 
 372, 373, 416, 417, 621, 022 
 Columbian Ins. Co., Be, 30 Hun, 
 
 342.. 234 
 
 Colvin's Estate, Be, 3 Md. Ch. 278 
 
 22, 82, 119, 142, 527, 547, 561 
 Colwell V. Garfield Nat. Bank, 119 
 
 N. Y. 408 72 
 
 Combs t). Smith, 78 Mo. 32 
 
 192, 195, 203, 209 
 
 Comer v. Belden, 8 Daly. 257 567 
 
 V. Bray, 83 Ala. 217 
 
 67, 68, 163, 181, 399 
 Commercial & F. Nat. Bank v. 
 
 Davis, 115 N. C. 226... 392 
 Commercial & S. Bank o. Corbett, 
 
 5 Sawy. 172.. .267, 288, 355 
 Commercial Nat. Bank v. Arm- 
 stronc. 148 U. 8. 50, 37 
 L. edr363, 39 Fed. Rep. 
 
 684 392, 432 
 
 «. Burch, 141 111. 519 
 
 66, 85, 261, 408, 616 
 V. Motherwell Iron & S. Co. 
 95 Tenn. 172, 29 L. R. 
 A. 164 112, 414 
 
 Commissioners v. Lockhart, 3 Ir. 
 
 Eq. Re,p. 515 42, 44 
 
 Com. 1). Eacle F. Ins. Co. 14 Allen, 
 
 344.. .203,206 
 
 V. Franklin Ins. Co. 115 
 Mass. 278 -.21, 203, 204, 
 221, 223, 373, 375, 387, 
 
 393, 396, 493, 496, 507 
 V. Gould, 118 Mass. 300.. 78, 79 
 V. Hide & L. Ins. Co. 119 
 
 Mass. 155 122 
 
 «). Hunt, 4 Met. Ill 131 
 
 «. Lanca.ster Sav. Bank, 123 
 
 Mass. 493 388 
 
 V. Massachusetts Mut. F. 
 
 Ins. Co. 112 Mass. 116. 390 
 «. Order of Vesta, 156 Fa. 
 
 531.... 134, 346, 356, 358 
 V. Phcenix Bank, 11 Met. 129 180 
 V. Ruuk, 26 Pa. 235.192, 195, 229 
 T. Shoe& L. Dealers' F. Ins. 
 
 Co. 112 Mass. 131.. 180, 618 
 «. Young, 11 Fliila. 606.121, 128 
 Commonwealth F. Ins. Co., Be, 32 
 
 Hun, 78 203,214. 
 
 215, 394, 573, 583 
 Comstock v. Frederickson, 51 
 
 Minn. 350 111, 167 
 
 Cone V. Combs, 18 Fed. Rep. 576. 
 
 276, 281, 287, 290, 291, 294 
 V. Paute,12Heisk. 506.11.70, 349 
 Coney, Be, L. R. 29 Ch. Div. 993. 545 
 V. Bennett, 54 L. J. Ch. 1130 
 
 531, 541 
 Congden v Lee, 3 Edw, Ch. 304. 
 
 45, 238, 241 
 Conger «. Sands, 19 How. Pr. 8.75, 257 
 
 Conkling v. Butler, 4 Biss. 22 
 
 48, 56, 345, 593 
 Conley v. Deere, 11 Lea, 274.. .25, 612 
 Connah v. Sedgwick, 1 Barb. 210. 
 
 242. 249 
 Connelly ». Dickson, 76 Ind. 440.. 
 
 26, 34, 35, 63, 298, 603 
 Conner v. Belden, 8 Daly, 257.31.3, 314 
 Connor v. Allen, Harr. Ch. (Mich.) 
 
 371 317 
 
 Conover v. Grover, 31 N. J. Eq. 
 
 539 296 
 
 Conro V. Gray, 4 How. Pr. 166.-. 
 
 347, 355, 359, 362, 465 
 T. Port Henry Iron Co. 12 
 
 Barb. 27 240,362 
 
 Conroy«. Woods, 13 Cal. 626 246 
 
 Consolidated Tank Line Co. v. 
 Kansas City Varnish Co. 
 
 43 Fed. Rep. 204 
 
 362. 363, 367 
 Const. V. Harris, Turn. & R. 496.. 
 306, 307, 315, 322, 323. 
 
 325, 326, 332, 340
 
 CASES CITED. 
 
 xliii 
 
 Continental Trust Co, v. Toledo, 
 St. L. & K. C. R. Co. 
 
 59 Fed. Rt'p. 514 
 
 217. 502, 619 
 Converse v. Dimock, 22 Fed. Rep. 
 
 573-. 344 
 
 Conway, Ex parte, 48 Fed. Rep. 78 124 
 V. Halsey, 44 N. J. L. 402.. 450 
 Conwell V. Lawrence, 46 Kan. 83. 
 
 183, 185 
 Conyers ®. Crosbie, 6 Ir. Eq. 657. 
 
 153. 195. 219 
 Cook D. Citicens' Nat. Bank, 73 
 
 Ind. 256 85, 124,616 
 
 V. Cole, 55 Iowa, 70.72, 180, 230 
 
 V. Cook, 56 Wis. 195 172 
 
 V. Detroit & M. R. Co. 45 
 Mich. 453... 15, 17. 18, 
 
 321, 455, 466, 603 
 V. Johnson, 12 N. J. Eq. 51 247 
 D. Tullis, 85 U. S. 18 Wall. 
 
 332, 21 L. ed. 933 
 
 ..219, 447 
 
 «J. Van Horn, 81 Wis. 291.. 413 
 Cook & Gleason, i?^. 3 Biss. 119.. 127 
 Cook County Nat. Bank v. United 
 States, 107 U.S. 445,27 
 
 L. ed. 537 447 
 
 Cooke v. Gwyn, 3 Atk. 690 34, 298 
 
 r. Orange, 48 Conn. 401... 
 
 112. 113, 122, 167 
 Cookes V. Cookes. 2 DeG. J. & S. 
 
 526 12, 60, 62 
 
 Coolev v. Essex Chosen Freehold- 
 ers, 27 N. J.L. 415.... 210 
 Cooney v. Cooney, 65 Barb. 524.. 
 65, 66, 139, 239. 256, 
 
 257, 261, 608 
 Coope V. Bowles, 42 Barb. 87. 28 
 How. Pr. 10. ..92, 114, 
 138, 154, 156, 157. 159, 
 
 383, 389. 396, 611 
 Cooper V. Berney Nat. Bank, 99 
 
 Ala. 119. 303 
 
 Copeland v. Johnson Mfg. Co. 47 
 
 Hun. 235 359 
 
 V. Stephens, 1 Barn & Aid, 
 
 593.. 223, 496 
 
 Copper Hill Min. Co. v. Spencer, 
 
 25Cal. 11 599 
 
 Corbet «. Johnson, 1 Brock. 77... 64 
 Corhelt v. Woodward, 5 Sawy. 403 360 
 Cor bin v. Berry, 83 N. C. 27... 55, 68 
 V. De la Vergne, 44 N. J. 
 
 L. 70 87 
 
 Corcoran v. Doll, 35 Cal. 476 39 
 
 Corey «. Greene, 51 Me. 114 244 
 
 V. LoTitr, 43 How. Pr. 497, 
 12 Abb. Pr. N. S. 427.. 
 14,21,22, 32, 45, 60,81, 
 
 89, 90, 205, 553 
 
 Cornell v. Radway, 22 Wis. 260.. 247 
 Corn Exch. Bank v. Blye, 101 N. 
 
 Y. 303 ..142. 429,430 
 
 V. Rockwell, 58 111. App. 506 414 
 Corning v. White, 2 Paige, 567... 
 
 241, 256, 376 
 Corran. Ex parte (Cal.) 41 Pac. 464 133 
 Corser v. Russell, 20 Abb. N. C. 
 
 316 233 
 
 Cortleyeu v. Hathaway, 11 N. J. 
 
 Eq. 43 267. 
 
 269, 278, 279, 292, 294, 297 
 
 Corwith?). Culver, 69 111. 502 
 
 175, 178, 385, 405 
 Coughron v. Swift, 18 111. 414.14, 32, 45 
 Covell V. Heyman. Ill U. S. 176. 
 
 28 L. ed,390 122, 123 
 
 Covington Drawbridge Co. v. Shep- 
 herd, 62 U. S. 21 How. 
 
 112, 16 L. ed. 38 
 
 40. 157, 353 
 Cowdrey v. Galveston, H. & H. R. 
 Co. 1 Woods, 331.. 85, 
 86, 94, 95. 484, 587, 593, 594 
 <0. Galveston, H. & H. R. Co. 
 93U. S.3o2,23L.ed.951 
 86,93,190,209, 210,212, 
 
 395, 508, 516, 626, 631 
 Cowles v. Andrews, 39 Ala. 130.. 185 
 
 CoxD. Peters, 13 N. J. Eq. 39 
 
 42, 309, 325, 333 
 
 V. Volkert, 86 Mo. 505 
 
 51, 66, 119, 155, 172, 
 
 180, 181, 337, 383, 384 
 
 Craft V. Bloom, 59 Miss. 69 250 
 
 Cragiew. Hadley, 99 N. Y. 131.431, 450 
 V. Smith, 14 Abb. N. C. 409 450 
 Craighead v. Wilson, 59 U. S. 18 
 
 How. 199, 15 L. ed. 332 71 
 Crandall v. Lincoln, 52 Conn. 73.. 
 
 114. 171, 237 
 Crane©. Ford, Hopk. Ch. 114.. 98, 340 
 v. McCoy, 1 Bond, 422.... 
 
 10. 57, 123 
 Crapo V. Kelly, 83 U. S. 16 Wall. 
 
 610, 21 L. ed. 430 
 
 50, 111, 134, 414 
 Crawford ®. Fickey (W. Va.) 2 
 Am. ife Enij. Corp. Cas. 
 N. S. 417, 23 S. E. 662. 
 
 215, 231, 394, 397 
 
 «. Ross, 39 Ga. 44.. 13, 563 
 
 V. Spurling, 56 Ga. 611.12, 62, 71 
 Crawshay v. Maule, 1 Swanst. 507 
 
 306, 327 
 CraycrofiE v. Morehead, 67 N. C. 
 
 422 13, 544 
 
 Crease®. Babcock, 10 Met. 532.178, 385 
 Credit Co. «. Arkansas C. R. Co. 
 
 15 Fed. Rep. 46 86 
 
 Cremen v. Hawkes, 8 Ir, Eq. 153 45
 
 XllV 
 
 CASES CITED. 
 
 Creuze v. London, 2 Bro. C. C. 
 
 253 -.56, 62 
 
 Crews V. Biircham, 66 U. S. 1 
 
 Black, 352, 17 L. ed. 91 178 
 
 Crine v. Davis, 68 Ga. 138 49, 151 
 
 Crippen v. Hudson, 13 N. Y. 161. 244 
 V. Morrison. 13 Mich. 23... 293 
 Crittenden v. Coleman, 70 Ga. 295 
 
 239, 319 
 Crocker v. Marine Nat. Bank, 101 
 
 ]Mass. 240 435 
 
 Crofts ». Okitield, 3 Swanst. 278, 
 
 note 186 
 
 Crombie v. Order of Solon, 157 Pa. 
 
 588 .- 34 
 
 Cronin v. McCarthy, Flan. & K. 49 155 
 Croustown v. Johnston, 3 Ves. Jr. 
 
 170, 5 Ves. Jr. 277 147 
 
 Crook V. Findlev, 60 How. Pr. 375 562 
 V. Rindskopf, 105 N. Y. 476 250 
 
 Croone v. Bivins, 2 Head, 339 247 
 
 Crosby v. Buchanan, 90 U. S. 23 
 
 Wall. 420, 23 L. ed. 138 71 
 Croton Ins. Co., Be, 3 Barb. Ch. 
 
 642 88. 382, 623 
 
 Crow V. Red River County Bank, 
 
 52 Tex. 362. 296 
 
 V. Wood, 13 Beav. 271.53, 63, 607 
 Crowder v. Moone, 52 Ala. 220... 
 
 15, 17, 36, 603 
 
 Crown V. Brainard, 57 Vt. 625 449 
 
 Cubbedgei\ Adams, 42 Ga. 124.. 245 
 Culver V. Third Nat. Bank. 64 111. 
 
 528.. 175, 178, 385, 405, 449 
 Cumberland Bank v. Haun, 18 N. 
 
 J. L. 222 384 
 
 Cumberland Coal & I. Co. v. Par- 
 ish, 42 Md. 598 408 
 
 V. Sherman, 30 Barb. 553.. 359 
 Camming v. Edgerton, 9 Bosw. 
 
 684 376 
 
 Cummings v. Cummings, 75 Cal. 
 
 434.. 302, 303 
 
 Cumpston v. McNair, 1 Wend. 457. 315 
 Cupp». Campbell, 103 Ind. 213.. 302 
 Currau v. Arkansas, 56 U. S. 15 
 How. 306, 14 L. ed. 706 
 
 360, 361, 428 
 V. Craig, 22 Fed. Rep. 101.. 
 
 189, 194, 202, 230, 231, 395 
 Currey v. Spencer, 5 Inters. Com. 
 
 Rep.66,72N.Y.S.R.108 185 
 Currier v. New York, W. S. & B. 
 
 R. Co. 35 Hun, 355.... 359 
 
 Curtis V. Leavitt, 15 N. Y. 9 
 
 114, 149, 
 157, 171, 375, 376, 410, 610 
 V. Leavitt, 1 Abb. Pr. 274.. 
 
 21, 60, 82, 83 
 «. Mcllhenny, 5 Jones, Eq. 
 
 290 92, 611 
 
 Curtiss V. Brown, 29 111. 229 615 
 
 Cutting V. Damerel, 88 N. Y. 410. 
 
 177, 376. 445 
 V. Florida R. & Nav. Co. 43 
 
 Fed. Rep. 737.120, 203, 233 
 Cuykendall v. Corning, 88 N. Y. 
 
 129 177. 385 
 
 Cuyler v. Moreland, 6 Paige, 273 
 
 118, 244 
 
 D. 
 
 Dacie©. John, McClel. 575. ..156, 160 
 Daggen». Collins, 69 Ala. 324... 127 
 
 Daggett «. Davis, 53 Mich. 35 622 
 
 Dale V. Cooke, 4 Johns. Ch. 11... 181 
 V. Kent, 58 Ind. 584.70, 332. 603 
 Dallard v. Taylor, 1 Jones & S. 496 251 
 Dalmer v. Dashwood, 2 Cox, Ch. 
 
 378 300, 303 
 
 Dalton V. Atlantic, M. & O. R. 
 
 Co. 4 Hughes, 180 213 
 
 Dalyell v. Tyrer, 1 El. Bl. & El. 
 
 906 211 
 
 Dambman v. Empire Mill, 12 Barb. 
 
 341 352 
 
 Dane v. Young, 61 Me. 160 157 
 
 Daniel ». Wharton, 90 Va. 584... 394 
 Daniel Kaine, The, 35 Fed. Rep. 
 
 788 123 
 
 Dann Mfg. Co. v. Parkhurst, 125 
 
 Ind. 317 67 
 
 Danville v. Ashbrooke, 3 Russ. 99, 
 
 note c 462 
 
 Darby v. Gilligan, 37 W. Va. 59.. 
 
 87, 394 
 Darcin v. Wells, 61 How. Pr. 259 
 
 20, 550, 604 
 Darusraont v. Patton, 4 Lea, 597.. 551 
 Davenport v. Alabama & C. R. Co. 
 
 2 Woods, 519, 579 
 
 202, 209, 211, 212. 229, 395 
 «. Buffalo City Bank, 9 
 
 Paige, 15 374, 399 
 
 V. Davenport, 7 Hare, 217.. 13 
 
 V. Kelly, 42 N. Y. 193 
 
 49, 126, 151, 251. 338 
 V. McChesney, 86 N. Y. 242 259 
 Davies v. Cracroft, 14 Ves. Jr. 143 
 
 2u2, 234 
 V. Lathrop, 20 Blatchf. 397. 125 
 Davis V. Alabama & F. R. Co. 1 
 
 Woods, 661 48, 56, 121 
 
 V. Amer, 3Drew. 64 317,330 
 
 V. Barrett, 13 L. J. Ch. N. 
 
 S. 304 295 
 
 V. Bonney, 89 Va. 755 49 
 
 V. Chapman. 83 Va. 67 47 
 
 V. Duncan, 19 Fed. Rep. 477 
 195, 213, 
 229. 395. 396, 516, 518. 630 
 Davis V. Dale, 150 111. 239.... 294, 562
 
 CASES CITED. 
 
 xlv 
 
 Davis V. Duke of Marlborough, 2 
 
 Swanst. 118, 4 21, 
 
 279, 300, 836, 562 
 V. Elmira Sav. Bank, 161 U. 
 
 S. 275, 40 L. ed. 700... 446 
 T. Fiaeslaff Silver Min. Co. 
 
 2 Utah, 91, 26, 36. 603 
 
 V. Gray, 83 U. S. 16 Wall. 203, 
 
 21 L. ed. 447, .21, 
 
 82, 129, 177, 183. 207, 
 344, 399, 401, 503, 560, 615 
 
 V. Grove, 2 Robt. 134 307 
 
 «, Ladoga Creamery Co. 128 
 
 Ind. 222 92, 135, 
 
 153, 159, 183, 383, 384, 399 
 V. Memphis City R. Co. 22 
 
 Fed. Rep. 883 359, 867 
 
 «. Michelbacher (Wis.) 31 N. 
 
 W. 160 191 
 
 V. Newcomb, 72 Ind. 413.. 298 
 V. Parcher, 82 Wis. 495.390, 391 
 
 V. Reaves, 2 Lea, 649. 44 
 
 «. Shearer, 90 Wis. 250 
 
 67, 356, 390, 415 
 
 c. Snead, 33 Gratt, 705 
 
 153, 159, 184, 383, 399 
 V. Stevens, 17 Blatchf. 259. 444 
 V. Stover, 58 N. J. L. 473.. 180 
 V. Stover, 16 Abb. Pr. N. S. 
 
 225 ..216, 626 
 
 V. Talbot, 137 Ind. 235 399 
 
 V. Taylor, 86 Ga. 506 552 
 
 V. United States Electric P. 
 &L. Co. 77 Md. 35.... 
 
 10, 84, 346 
 
 V. Weed, 44 Conn. 569 437 
 
 Dawson v. Raynes, 2 Russ. Ch. 
 
 466.. 79 
 
 «. Sims, 14 Or. 561 246 
 
 Dawson Bank v. Harris, 84 N. C. 
 
 206. 245 
 
 Dawson Mfg. Co. v. Brunswick 
 & A. R. Co. 51 Ga. 136. 
 
 397 507 
 Day, Re, 34 Wis. 638.. 24, 46, 121^ 631 
 V. Brownrigg, L. R. 10 Ch. 
 
 Div. 294 131 
 
 v. Postal Teleg. Co. 66 Md. 
 
 354.... 21, 25, 112, 127, 
 
 132, 165, 169, 183. 393. 412 
 
 •0. Washburn, 65 U. S. 24 
 
 How. 352, 16 L. ed. 712 
 
 238. 244 
 Dayton v. Rorst, 7 Bosw. 115. 31 
 N.Y.435..17, 168, 174. 
 
 175. 177, 403 
 ». Connah, 18 How. Pr. 326 
 
 92, 159 
 W.Wilkes, 17 How. Pr. 510.97, 340 
 
 Dean v. Biggs, 25 Hun, 122 403 
 
 V. Thatcher, 32 N. J. L. 470. 85 
 
 Deane v. Caldwell, 127 Mass. 242. 894 
 Dease v. O'Reilly, 2 Connor, & L. 
 
 441 587 
 
 Decker*. Gardner, 124 N. Y. 334, 
 
 11 L. R. A. 480, Rev'g 
 
 33N. Y. S. R. 541.. 26, 
 
 141, 144, 192, 197, 204. 
 
 456, 514 
 Deelan, Re, 2 Connor & L. 232... 83 
 De Fries v. Creed, 34 L. J. Ch. N. 
 
 S. 607.. -.53. 65, 73, 74, 126 
 Degener v. Stiles, 6 N. Y. Supp. 474 469 
 De Graffenried «. Brunswick & A. 
 
 R. Co. 57 Ga. 22 
 
 129. 183, 417 
 
 De Groot v. Jay, 30 Barb. 483 
 
 128, 129, 184, 613 
 
 Dehon v. Foster, 4 Allen, 545 147 
 
 Delaney «.Tipton, 8 Hay w. (Tenn.) 
 
 14.. 532 
 
 Delano d. Butler, 118 U. S. 634, 30 
 
 L. ed. 260 443,444 
 
 V. Case, 17 111. App. 531... 450 
 De La Vergne Refrigerating Mach. 
 
 Co. V. Palmetto Brew. 
 
 Co. 72 Fed. Rep. 579.. 58 
 Delaware, L. & W. R. Co. v. Erie 
 
 R, Co. 21 N. J.Eq. 299. 
 
 7, 457, 471 
 Demain v. Cassidy, 55 Minn. 320. 
 
 295, 212 
 Deming v. Colt, 3 Sandf. Ch. 284. 321 
 ■c. New York Marble Co. 12 
 
 Abb. Pr. 66_-65, 74, 121, 125 
 De Mott V. Starkey, 3 Barb. Ch. 
 
 403... 157, 260 
 
 Denike v. New York & R. Lime 
 
 &C. Co. 80N.Y. 599..11, 12 
 
 Denison, Re, 114N. Y. 621. 101 
 
 Deniston v. Chicago. A. & St. L. 
 
 R. Co. 4 Biss. 414 485 
 
 Denny v. Bennett, 128 U. S. 503, 
 
 32 L. ed. 496 123, 124 
 
 Derby v. Athol, 1 Ves. Sr. 203 ... 147 
 Des Moines Gas Co. v. West, 44 
 
 Iowa, 23 270, 358, 464 
 
 De Taset v. Bordieu, 2 Bro. C. C. 
 
 272. note. 325 
 
 Detroit First Nat. Bank v. Barnum 
 
 Wire & I. Works. 60 
 
 Mich. 487... 21, 29, 49. 
 
 70, 376. 377, 560 
 Devendorf v. Beardsley, 23 Barb. 
 
 656 180 
 
 «. Dickinson, 21 How. Pr. 
 
 275 4, 21-23, 60, 
 
 83. 118, 200, 219 
 De Visser v. Blackstone, 6 Blatchf. 
 
 235... 25, 128 
 
 Devlin v. Hope, 16 Abb. Pr.314.335, 343 
 V. New York, 4 Misc. 106.. 142
 
 xlvi 
 
 CASES CITED. 
 
 Devoe «. Ithaca & O. R. Co. 5 
 
 Paige, 521 15. 16, 371 
 
 De Walt v. Kinard, 19 S. C. 286.. 43 
 
 Dewey v. Eckert, 02 111. 218 242 
 
 De Wiuton v. Brecon, 28 Beav. 
 
 200 121. 132, 133 
 
 Diamond State Iron Co. v. San An- 
 tonio & A. P. R. Co. 
 
 (Tex. Civ. App.) 33 S. 
 
 W. 9S7. .498, 517, 520 
 
 Dick V. Bailey, 2 La. Ann. 974... 
 
 50, 112, 134, 168 
 ». Laird,4Crancb.C. C.G67- 319 
 V. Striithers, 35 Fed. Rep. 
 
 103 ..161, 400 
 
 Dickerson v. Cass County Bank 
 
 (Iowa) 64 N. W. 395... 
 
 422, 559, 566 
 Dickey v. McCaul, 14 Ont. App. 
 
 166.. 160 
 
 Dickinson v. Legare, 1 Desauss. 
 
 Eq. 537...- 316 
 
 v. Seaver, 44 Mich. 624 409 
 
 Dilling V. Foster, 21 S. C. 334.. 73, 262 
 Dillingham v. Russell, 73 Tex. 47. 
 
 3 L. R. A. 634 187, 521 
 
 V. Scales (Tex. Civ. App.) 24 
 
 S.W. 975 211 
 
 Dillon V. Lady Mount Cashell, 4 
 
 Bro. P. C. 306 529, 546 
 
 Dixon V. Rutherford, 26 Ga. 149.. 99 
 Doane v. Corbin, 44 111. App. 463. 596 
 Dobbin v. Adams, 8 Ir. Eq. 157 .. 43 
 Dobson V. Simonton, 78 IS. C. 63. 465 
 
 Dockray v. Mason, 48 Me. 178 244 
 
 Dodd V. Wilkinson, 41 N. J. Eq. 
 
 566.. 88 
 
 Dodge V. Pyrolusite Manganese 
 
 Co. 69 Ga. 660.239, 248, 354 
 ®. Woolsey, 59 U. S. 18 How. 
 
 331, 15 L. ed. 401 351 
 
 Doe ®. Northwest Coal & T. Co. 64 
 
 Fed. Rep. 928. 465 
 
 Doe, Grimsby, v. Ball, 11 Mees. & 
 
 W. 531 92, 407 
 
 Dollard v. Taylor, 1 Jones & S. 
 
 490 70, 256 
 
 Dollins V. Lindsey, 89 Ala. 217..- 303 
 Dolphin V. Steell, 2 Lack. L. News, 
 
 111 324 
 
 Donald v. Ross-Lewin, 29 Hun. 87. 115 
 Donaldson v. Farwell, 93 U. S. 633. 
 
 23 L. ed. 994 319 
 
 Donlon & M. Mfg. Co. v. Cannella, 
 
 89 Hun, 21.. 293 
 
 Donnell v. While, 11 H. L. Cas. 
 
 570 47 
 
 Donnelly r. West, 24 Hun, 564... 172 
 Dooliltle, lie. 23 Fed. Rep. 545.131. 132 
 V. Bridgman, 1 G. Greene, 
 
 265 246 
 
 Dormueil w.Ward, 108 111. 216.244, 249^ 
 
 Dorn V. Crank, 96 Cal. 383 524 
 
 Dorr «. Noxon, 5 How. Pr. 29 114 
 
 Dorrance v. Jones, 27 Ala. 630 ... 506 
 Dorris v. French, 4 Hun, 292.. 175, 403 
 Dorsey v. Morrison, 48 Md. 401... 162 
 
 v. Sibert,93 Ala. 312 118 
 
 Dougherty v. Jones, 37 Ga. 348... 558 
 V. McDougald. 10 Ga. 121.. 531 
 Douglass V. Cline, 12 Bush, 608.. 
 
 267, 301, 476-478 
 V. Rowland, 24 Wend. 35.. 78 
 Doupe V. Stewart, 13 Grant Ch. 
 
 (Ont.) 637 32a 
 
 Dow v. Mempliis & L. R. R. Co. 
 
 20 Fed. Rep. 260.. 125, 
 
 271-273, 282, 358, 373, 
 
 391, 458, 461, 464, 476, 493 
 
 Dowd V. Stephenson, 105 N. C. 
 
 467.. 428 
 
 Dowell«. Applegate, 153 U. S. 337, 
 
 38 L. ed. 403... 357 
 
 Dowling V. Hudson, 14 Beav. 423. 17 
 
 Downs V. Allen, 10 Lea, 652 
 
 203, 214, 321 
 V. Hammond, 47 Ind. 131.. 
 
 115, 391, 624 
 Downshire v. Tyrell, Haves, 354.29, 61 
 Dows V. Congdon, 28 N.' Y. 123.. 102 
 
 Doyle V. Peckham, 9 R. L 21 407 
 
 Drake v. Thyng, 37 Ark. 228 572 
 
 Drever v. Maudesley, 13 L. J. Ch. 
 
 N. S. 433 201 
 
 Drewry v. Barnes, 3 Russ. 106.-32, 46a 
 V. Darwin, 34 L. J. Ch. N. S. 
 
 121. 108 
 
 Dreyspring ■». Loed (Ala.) 21 So. 73 
 Dronfield S. Coal Co., Re, L. R. 33 
 
 Ch. Div. 511 586 
 
 Drury v. Milwaukee & S. R. Co. 
 74 U. S. 7 Wall. 299. 19 
 
 L. ed. 40 .360, 407 
 
 V. Roberts, 3 Md. Ch. 157.. 
 
 307, 313, 315 
 Duchess of Norfolk's Case, cited 
 in Shelford on Lunacy, 
 
 p. 210 547 
 
 Duckworth, i?e, L. R. 3 Ch. App. 
 
 Cas. 577 ...114, 157 
 
 V. Trallord, 18 Ves. Jr. 283 
 
 17, 33, 545 
 Dudgeon ■». Bowen, Hayes & J. 
 
 717 .203,219 
 
 Duerson v. Alsop, 27 Gratt. 229.. 240 
 Duflfield^. Elwes, 11 Beav. 590... 105 
 Duflfy V. Duncan, 32 Barb. 593, 
 
 Aff'd 35N. Y. 191 215 
 
 Dagger v. Collins, 69 Ala. 324 
 
 25, 121. 154, 186, 417 
 Duncan v. Campau, 15 Mich. 415. 
 
 71, 550
 
 CASES CITED. 
 
 xl^ 
 
 Duncan v. Findlater, 6 Clark & F. 
 
 894. 211 
 
 V. Mobile & O. R. Co. 3 
 
 Woods, 542 485 
 
 Dunham v. Byrnes, 36 Minn. lOfi. 
 
 342, 243. 251, 260 
 V. Cincinnati, C. •& C. R. Co. 
 68 U. S. 1 Wall. 2-)4, 17 
 
 L. ed.584 485 
 
 V. Jarvis, 8 Barb. 88 306 
 
 Dunlap V. Hedges, 35 W. Va. 287 
 
 42, 289, 394 
 Dunlevy v. Tallmadge, 32 N. Y. 
 
 457 244,248 
 
 Dunlop v. Patei-son F. Ins. Co. 12 
 Hiin,627,AfE'd74N.Y. 
 
 145 410 
 
 Dunn, Ex parte. 8 S. C. 207 25, 49 
 
 V. McNaught, 38 Ga. 179... 
 
 307, 331 
 Dunn Mfg. Co. v. Parkhurst, 125 
 
 Ind. 317 101 
 
 Dunphy v. Traveller Newspaper 
 
 Asso. 146 Mass. 495 351 
 
 Durand v. Curtis, 57 N. Y. 7 220 
 
 ?;. Gray, 124 111. 9 
 
 239, 344, 248, 253 
 DurantD, Crowell, 97 N. C. 367.. 
 
 43, 276, 281, 389 
 V. Washington County Su- 
 pers. 1 Woolw. 377 207 
 
 Durbin v. Barber, 14 Ohio, 311... 312 
 Durkin v. Sharp, 88 N. Y. 225... 209 
 Dulton V. Thomas, 97 Mich. 93... 34 
 Duval V. Marshall, 30 Ark, 230... 539 
 Dyer ». Power, 39 N. Y. S. R. 186 
 
 113, 167 
 E. 
 
 EadsD. Ma.son, 16 111. App. 545.. 346 
 Eagle Iron Works, Be, 8 Paige, 
 
 385 55,56, 60-62, 
 
 73, 74, 141, 608 
 
 Earnest. Doris, 103 111. 350 
 
 178, 385, 405 
 Earl of Fingal v. Blake, 3 Moll. 50 44 
 East & West Texas L. Co. v. Will- 
 iams, 71 Tex. 444 71 
 
 Eastern & M. R. Co., Ee, 45 Am. 
 & Eng. R. Cas. 71, L. R. 
 
 45 Ch. Div. 367 483, 579 
 
 Eastern Bank v. Capron, 33 Conn. 
 
 639 .876, 610 
 
 Eastern Nat. Bank ». Vermont Nat. 
 
 Bank, 33 Fed. Rep. 186 433 
 Easton v. Houston & T. C. R. Co. 
 
 38 Fed. Rep. 12 
 
 203. 321, 222 
 V. Houston & T. C. R. Co. 
 
 38 Fed. Rep. 784 
 
 106, 498. 506 
 
 Easton v. Houston & T. C. R. Co. 
 
 40 Fed. Rep. 189 597 
 
 East Tennessee, V. & G. R. Co. v. 
 Atlanta & F. R. Co. 49 
 Fed. Rep. 608, 15 L. R. 
 
 A. 109 48.56, 57, 
 
 123, 124, 344 
 V. Southern Teleg. Co. 112 
 
 U. S. 806, 28 L. ed. 746 357 
 
 Eaton V. Smith, 2 Beav. 336 276 
 
 Eaton & H. R. Co. v. Varnum, 10 
 
 Ohio St. 622 12. 71 
 
 Eddy, Re, 15 R. I. 474.. 569 
 
 V. Laf;iyette, 49 Fed. Rep. 
 
 807 521 
 
 V. Powell, 49 Fed. Rep. 814 395 
 
 Edee v. Strunk, 35 Neb. 307 
 
 200, 405, 411, 415 
 Edgellv. Haywood, 3 Atk. 352... 356 
 Edraeston v. Lyde. 1 Paige, 637... 244 
 Edmunds v. Bird, 1 Ves. & B. 
 
 88-.. 547 
 
 Edrington v. Pridhara, 65 Tex. 613 
 
 67, 85, 139 
 Edwards v. Edwards, L. R. 2 Ch. 
 
 Div. 291 
 
 53, 65, 73, 74, 125, 297 
 
 v. Norton, 55 Tex. 405 
 
 24, 46, 121, 125, 127, 417 
 V. Standard Rolling Stock 
 Syndicate, 1 Ch. 574... 358 
 Egan V. Rooney, 38 How. Pr. 
 
 121.. 91 
 
 Egberts v. Wood, 3 Paige, 517 316 
 
 Eisemann v. Thiel, 1 Cin. Sup. Ct. 
 
 188. 48 
 
 E. L. Cain, The, 45 Fed. Rep. 309 124 
 Elderkin ». Peterson, 8 Wash. 674 
 
 67,85,115.116.123, 177,403 
 Eldred v. Hall. 9 Paige, 640- ..141, 148 
 Elgin Lumber Co. v. Laugman, 23 
 
 111. App. 250 564 
 
 Elkhart Car Works Co, v. Ellis, 
 
 113 Ind. 215 
 
 125, 153, 183, 189, 418. 613 
 Ellershank ®. Russell, 6 Australian 
 
 L. T. (Vict.) 140 44 
 
 Ellett V. Newman, 92 N. C. 519... 
 
 13, 41, 544, 549 
 Ellicott V. United States Ins. Co. 7 
 
 Gill, 307 49, 373 
 
 «. Warford, 4 Md. 80 
 
 22, 35, 60, 142, 564 
 Elliott V. Trahern, 35 W. Va. 
 
 634 155 
 
 Ellis V. Boston, H. & E. R. Co. 107 
 
 Mass. 1 24, 49, 103. 
 
 136, 141, 147, 325, 276, 
 
 373, 396, 478, 489, 507 
 V. Davis, 109 U. S. 485. 27 . 
 L. ed. 1006 122
 
 jilviii 
 
 CASES CITED. 
 
 Ellis V. Little. 27 Kan. 707 98, 
 
 101. 42G-4-28, 430 
 V. Vernon, 4 Tex. Civ. App. 
 
 66 220 
 
 T. Vernon Ice, L. & W. Co. 
 
 86 Tex. 109.. 24, 25.46, 
 
 48, 9."), 96, 125. 127, 184, 417 
 
 V. AVuid, 137 111. 509 367 
 
 Elmira Iron & S. Roll. Mill Co. v. 
 
 Erie R. Co. 26 N.J. Eq. 
 
 284. ...104,225 
 
 Elmira Sav. Bank v. Davis, 142 N. 
 
 Y. 590, 25 L. R. A. 546, 
 
 73 Hun, 357 447 
 
 Elwood V. First Nat. Bank, 41 Kan. 
 
 475 43, 421, 609 
 
 Emack v. Kane, 34 Fed. Rep. 46_. 
 
 130, 131 
 
 Embree v. Shideler, 36 Ind. 423.. 
 
 115, 158, 369 
 Enieric v. Alvarada, 64 Cal. 529.12, 71 
 Emerson v. Partridge, 27 Vt. 8... 500 
 Emerson & Wall's Appeal, 95 Pa. 
 
 250.. .43, 366 
 
 Emmons «. Garnett, 7 Mackey, 
 
 52.. 12. 71 
 
 Empire City Bank, Ee, 10 How. 
 
 Pr. 498 60, 347 
 
 England v. Clark, 5 111. 486 100 
 
 En^le V. Bonneau, 2 Sandf. 279 .. 252 
 Eiipright 1). Nickerson, 78 Mo. 482 406 
 Ericsson v. Brown, 38 Barb. 390. 481 
 Erie R. Co. v. Delaware, L. & W. 
 
 R. Co. 21 N. J. Eq. 282 469 
 T. Ramsey, 45 N. Y. 637... 232 
 Ervin v. Oregon R. & Nav. Co. 27 
 
 Fed. Rep. 625 351 
 
 Erwin v. Davenport, 9 Heisk. 44.. 
 
 201, 211, 229, 395, 510, 515 
 Eskridge v. Rush worth, 3 Colo. 
 
 App. 562 380 
 
 Eslava®. Crampton, 61 Ala. 507.. 
 
 267, 269, 277 
 Espuella Land & C. Co. v. Bindle 
 
 (Tex. Civ. App.) 32 S. 
 
 W. 582 591 
 
 Estabrook «. Messersmith, 18 Wis. 
 
 545 ...406, 408 
 
 Esterland v. Dye, 56 Ga. 284 98 
 
 E.-,tes®. Wilcox, 67 N. Y. 264 248 
 
 Estwick V. Conniugsby, 1 Vern. 
 
 118 .'.306, 324-328, 
 
 330, 335 
 Ettlinger v. Persian Rug & C. Co. 
 
 66 Hun, 94 15 
 
 EuroDean & N. A. R. Co. v. Poor, 
 
 59 Me. 277 360,407,503 
 
 Evani>, Ex parte. L. R. 13 (Jh. Div. 
 
 252.. 52, 53, 63, 74, 125, 417 
 V. Coventry, 5 DeG. M. & G. 
 
 911 41,325. 352, 359 
 
 Evans «. Evans, 9 Paige, 178 
 
 308, 317, 336 
 Evelyn v. Evelyn, 2 Diek. Ch. 800 550 
 V. Lewis, 3 Hare, 472.. 129, 
 
 184, 193, 620 
 Everett v. State, McKaig, 28 Md. 
 
 190 92. 154, 411, 617 
 
 Eversmann v. Schmilt, 53 Ohio St. 
 
 174, 29 L. R. A. 184... 390 
 
 Eyre^). Eyre. 1 Hog. 252 179 
 
 Eyton V. Denbigh, H. & C. R. Co. 
 
 L. Rr6Eq. 488 157 
 
 P. 
 
 Fagan v. Boyle Ice Mach. Co. 65 
 
 Tex. 324 100 
 
 Fairbairn v. Fisher, 4 Jones, Eq. 
 
 390. ...529, 532 
 
 Fairbanks v. Farwell, 141 111. 354 409 
 Fairburn v. Pearson, 2 Macn. & G. 
 
 144. .330, 334 
 
 Fairfield v. Irvine, 2 Russ. 249 300 
 
 V. Weston, 2 Sim. & Slu. 96 
 
 65, 73, 74 
 Falk v. Janes, 49 K J. Eq. 484... 
 
 167, 168 
 Falkenback v. Patterson, 43 Ohio 
 
 St. 359 92. 138, 611 
 
 Falliott V. Ogden, 1 H. Bl. 123... 112 
 Fannin v. Malloy, 1 Jones & S. 382 257 
 Farley v. McConnell, 7 Lans. 428. 76 
 v. St. Paul, M. & M. R. Co. 
 
 4McCrary, 138 507 
 
 Farley v. Shippen, Wythe, 135... 147 
 Farlow v. Kelly, Reported only in 
 
 U. S. Sup. Ct. Rep. 26 
 
 L. ed. 427 118 
 
 Farmers' & M. Bank v. Jenks, 7 
 
 Met. 592. .115. 161. 400, 403 
 Farmers' & M. Ins. Co. v. Needles. 
 
 52 Mo. 17 50. 110- 
 
 112, 165, 169, 412 
 Farmers' & M. Nat. Bank v. Phila- 
 delphia & R. R. Co. 7 
 
 Fed. Rep. 379 485 
 
 Farmers' Bank v. Beaston, 7 Gill 
 
 & J. 421.... 53, 74, 122, 125 
 Farmers' Co-Op. Mfg. Co. v. Drake 
 
 (Ga.) 22 S. E. 1004 98 
 
 Farmers' Loan & T. Co., Ex parte, 
 
 129 U. S. 209, 32 L. ed. 
 
 656 119, 524 
 
 V. Burlington & S. W. R. 
 
 Co. 32 Fed. Rep. 805.. 226 
 v. Central R. Co. 1 McCrary, 
 
 352 593 
 
 V. Central R. Co. 2 McCrary, 
 
 181 183. 198, 2-29, 
 
 233, 395, 586
 
 CASES CITED. 
 
 xlix 
 
 Farmers' Loan & T. Co. v. Central 
 
 R. Co. 7 Fed. Pt.']i. ^'47 
 
 204, b96, 518, 617 
 
 «. Central R. Co. 8 Fed. 
 
 Rep. 60 --.. 587 
 
 V. Central R. Co. 17 Fed. 
 
 Rep. 758. 518, 520. 629 
 
 V. Chicago & A. R. Co. 27 
 
 Fed. Rep. 146. .11. 269. 467 
 V. Cliicago & A. R. Co. 42 
 
 Fed. Rep. 6.. .221. ?,98. 
 
 477, 492, 495, 497, 507 
 V. Detroit, B. C. & A. R. Co. 
 
 71 Fed. Rep. 29 491 
 
 V. Grape Creek Coal Co. 50 
 
 Fed. Rep. 482, 16 L. R. 
 
 A. 603 --..388, 475. 484,523 
 V. Green Bay, W. & St. P. 
 
 R. Co. 45 Fed. Rep. 664 579 
 v. Hotel Brunswick Co. 42 
 
 N. Y. Supp. 350 694 
 
 V. Kan.sa.s City. W. & N. W. 
 
 R. Co. 53 Fed. Rep. 182 
 
 268, 349, 359, 476-477, 
 
 478, 576 
 V. Minneapolis Engine & 
 
 Mach. Works, 35 Minn. 
 
 543.-171, 243, 375, 407, 408 
 V. Missouri, I. & N. R. Co. 
 
 21 Fed. Rep. 271 272 
 
 V. Northern P. R. Co. 58 
 
 Fed. Rep. 257 106, 
 
 393, 497, 498 
 P. Northern P. R. Co. 69 
 
 Fed. Rep. 871 58, 59 
 
 V. Northern P. R. Co. 71 
 
 Fed. Rep. 245... 490 
 
 «. San Diego Street Car Co. 
 
 49 Fed. Rep. 197 
 
 123, 177, 507 
 «. Toledo & S. H. R. Co. 
 
 43 Fed. Rep. 223 373 
 
 Farmers' Nat. Bank v. Backus 
 
 (Minn.) 65 N. W. 255. 
 
 2 Am. & Eng. Corp. 
 
 Cas. N. S. 397 72 
 
 «. Backus (Minn.) 66 N. W. 
 
 5 32, 298 
 
 V. Backus (Minn.) 69 N. W. 
 
 638 696 
 
 Farnham u Campbell, 10 Pai£e,598 35 
 Farusworth v. Western U. Teleg. 
 
 Co. 25 N. Y. S. R. 393, 
 
 6 N. Y. Supp. 735.345, 410 
 
 V. Wood, 91 N. Y. 308 
 
 178, 385, 404 
 Farquaharson v. Kimball, 9 Abb. 
 
 Pr. 385, note 252, 253 
 
 Farrar ®. Ha.selden, 9 Rich. Eq. 331 247 
 V. United Slates, 30 U. S. 5 
 
 Pet. 373, 8L. ed. 159.. 79 
 
 Farrington v. Sexton, 43 Mich. 4')4 
 
 138, 149 
 Farson v. Gorham, 117 111. 137... 71 
 Farweil v. Metcalf, 63 N. H. 276. 
 
 376, 887 
 Fassett v. Tallmadge, 13 Abb. Pr. 
 
 12.. 566 
 
 Faulkner v. Daniel, 10 L. J. Ch.N. 
 
 S.33 303 
 
 V. Hyman, 142 Mass. 53 111 
 
 Favorite «. Deardorfif, 84 Ind. 555 
 
 126, 296, 301 
 Fawcett v. Supreme Sitting, O. of 
 
 I. H. 64 Conn. 170, 24 
 
 L. R. A. 815 113 
 
 Faxon, Ex parte, 1 Low. Dec. 404 
 
 223, 496 
 Fay V. Erie & K. R. Bank, Harr. 
 
 Ch. 194... 347 
 
 Featherstone v. Cooke, L. R. 16 
 
 Eq.301 355 
 
 Fecliheimer v. Baum, 37 Fed. Rep. 
 
 167, 2 L. R. A 153..-. 318 
 Feibelman v. Pacliard, 109 U. S. 
 
 421, 27 L. ed.984 S?"" 
 
 Feldenheimer v. Tressel, 6 Dak. 265 244 
 Fellows V. Ileermans, 13 Abb. Pr. 
 
 N. S. 1 70, 71 
 
 Fenn v. Bolles, 7 Abb. Pr. 202. ... 61 
 Fenner v. Sanborn, 37 Barb. 610. 
 
 146, 147 
 Fenton v. Dublin Steam Packet Co. 
 
 8 Ad. & El. 835 210 
 
 V. Flatrg, 24 How. Pr. 499. 
 
 252, 253 
 T. Lumbermans' Bank, 1 
 
 Clarke Ch. 286.. 543 
 
 Ferguson v. Dent, 46 Fed. Rep. 88 587 
 Ferrior, Be, L. R. 3 Ch. App. 175. 547 
 Fessenden v. Woods, 3 Bosw. 550 
 
 66, 127 
 Fetnam v. Kirby, 4 Ir. Eq. 320.202, 215 
 Fidelity Ins. & S. D. Co. v. Shen- 
 andoah Iron Co. 42 Fed. 
 
 Rep. 372 484, 523 
 
 Fidelity Ins. & T. Co. v. Huber, 
 
 13Phi]a. 52 541 
 
 Fidelity Ins. T. & S. D. Co. v. 
 
 Norfolk &W.R. Co. 72 
 
 Fed. Rep. 704 517 
 
 V. Roanoke Iron Co. 68 Fed. 
 
 Rep. 623 388 
 
 Fidelity Safe Deposit & T. Co. v. 
 
 Armstrong, 35 Fed. 
 
 Rep. 567 
 
 103, 204, 221, 222, 394 
 Fidelity Trust & S. V. Co. v. Mo- 
 bile Street U. Co. 53 
 
 Fed. Rep. 687 129, 419 
 
 Field V. Chapman, 15 Abb. Pr. 
 
 434 253
 
 1 
 
 CASES CITED. 
 
 Field V. Jones, 11 Ga. 413 
 
 122, 127, 197, 417 
 V. Ripley, 20 How. Pr. 26. . 
 
 15, Ki. 18, 33, 45, 4G6, 603 
 
 r. Sands. 8 Bosw. 685 115 
 
 Fifield V. Nortlieru R. Co. 42 N. 
 
 H. 225 202 
 
 Fif Ih Nat. Bank v. Pittsburgh & C. 
 
 S.R.Co. iFed.Ri'p. 190 560 
 Fifty-four First Mortgage Bonds, 
 
 i?c,15S. C. 304 61, 85 
 
 Filkins v. Adams, 60 111. App. 410 
 
 133, 490, 586 
 V. Nunnemacher. 81 Wis. 91 
 
 50. no, 112, 167, 413 
 Fillmore t).IIorton,31 How. Pr. 424 258 
 Finance Co. v. Charleston, C. & C. 
 R. Co. 45 Fed. Rep. 436, 
 
 48 Fed. Rep. 190. 52 
 Fed. Rep. 679 60, 95 
 
 V. Charleston. C. &C. R. Co 
 
 46 Fed. Rep. 428 95 
 
 Finch T. Houghton, 19 Wis. 150.. 
 
 267, 275, 281, 297 
 Fincke v. Funke. 25 Hun. 616. . 142, 336 
 
 Fingal v. Blake. 2 Moll. 78 44 
 
 Finnin v. Malloy, 1 Jones & S. 382 
 
 66, 139 
 First Nat. Bank, Re, 49 Fed. Rep. 
 
 120 441 
 
 V. Armstrong, 36 Fed. Rep. 
 
 59, 42 Fed. Rep. 193... 432 
 V. Colby, 88 U. S. 21 Wall. 
 
 609, 22 L. ed. 687 
 
 398, 428, 448 
 e. Davijs, 114 N. C. 343.... 392 
 «. Dering, 8 N. Y. Week. 
 
 Dig. 261... 253 
 
 V. Gage, 79 111. 207 
 
 244, 253, 269, 277 
 V. Morgan, 132 U. S. 441, 33 
 
 L. ed. 282 424 
 
 V. National Pahquoique 
 Bank, 81 U. S. 14 Wall. 
 
 383, 20L. ed. 840 
 
 401. 422, 429. 433, 436. 437 
 V. Navarro, 43 N. Y. S. R. 
 
 813. 91 
 
 V. Shedd, 121 U. S. 74, 30 
 
 L.ed. 877 98 
 
 v. United States Encaustic 
 Tile Co. 105 Ind. 227.. 
 67. 85, 355, 361, 362, 616 
 First Nat. Bank of St. Albans, He, 
 
 49 Fed. Rep. 120 89 
 
 First Nat. L. Ins. Co. v. Salisbury, 
 
 130 Mass. 303 273,461 
 
 Fischer v. San Francisco Super. 
 Ct. 110 Cal. 129, 2 Am. 
 & Eng. Corp. Cas. N. 
 8. 339 36, 344,379 
 
 Fischer v. Tuolumne County 
 
 Super.Cl. 98 Cal. 67.330, 380 
 Fisher v. Andrews, 37 Hun, 176.. 622 
 Fitch ^.Wetherbee, 110 111. 475.100, 148 
 Fithian v. New York & E. R. Co. 
 
 31 Pa. 114 188 
 
 Fitzgerald v. Hill. 2 Ir. Eq. 398... 77 
 Fitzpatrick «. Hawkshaw, 1 Hog. 
 
 82.. 17 
 
 Flagler v. Hunt, 32 N. J. Eq. 518. 
 
 13, 14, 18, 42. 537 
 Flanders?). Batten, 50 Hun, 542.. 253 
 Fleischaeur v. Dittenboefer, 17 
 
 Jones & S. 311 185, 192 
 
 Fletcher, Ex parte, 6 Ves. Jr. 427 
 
 54, 61, 547 
 
 Ex parte, 1 Deac. & Ch. 318 106- 
 
 v. Dodd. 1 Ves. Jr. 85.-203, 215 
 
 Flint?). Webb, 25 Hun, 263.251,254, 608 
 
 Flint & P. M. R. Co. v. Dewey, 14 
 
 Mich. 477 408. 503 
 
 Floods. Aldborough. 8 Ir. Eq. 103 587 
 Florence Gas, E. L. & P. Co. v. 
 
 Ilanby. 101 Ala. 15.. 67. 104 
 Florida v. Anderson, 91 U. 8. 667, 
 
 23L. ed. 290... 99. 389 
 
 Florida Const. Co. v. Young, 11 
 
 U. S. App. 683... 71 
 
 Flower C.Cornish, 25Minn.473-406, 408 
 Fluker v. Emporia City R. Co. 48 
 
 Kan. 577 365 
 
 Fogarty v. Burke, 2 Drury & W. 
 
 580 238 
 
 Fogg V. Supreme Lodge. U. O. of 
 
 G. L. 159 Mass. 9.53, 387, 570 
 Folger v. Columbian Ins. Co. 99 
 
 Mass. 276 188, 343, 412 
 
 V. Hoagland, 5 Johns. 235.. 207 
 Folliott®. Ogden, 1 H. Bl. 123... 164 
 
 Folsom V. Evans. 5 Minn. 418 54 
 
 Foot V. Glenn, 52 Fed. Rep. 529.. 177 
 
 Ford V. Cobb, 20 N. Y. 348 144 
 
 V. Judsonia Mercantile Co. 
 
 52 Ark. 426. 6 L. R. A. 
 
 714 372 
 
 V. Kansas City & I. S. L. R. 
 
 Co. 52 Mo. App. 439.. 
 
 346, 360 
 Fordyce v. Dixon, 70 Tex. 694... 565 
 V. Withers, 1 Tex. Civ. App. 
 
 540 187 
 
 Foreman v. Central Trust Co. 30 
 
 U. S. App. 653, 71 Fed. 
 
 Rep. 776 490 
 
 Forgay v. Conrad, 47 U. S. 6 How. 
 
 201, 12 L. ed. 404 71 
 
 Forsaith Mach. Co. v. Hope Mills 
 
 L. Co. 109 N. C. 576.- 
 
 68, 99, 595 
 Fort Dodge v. Minneapolis & St. 
 
 L. R. Co. 87 Iowa, 389. 381
 
 CASES CITED. 
 
 Fort Payne Furnace Co. v. Fort 
 Pavne Coal & I. Co. 96 
 
 Ala. 472 38, 
 
 39, 242, 347, 364, 367, 542 
 
 Fort Wayne, M. & C. R. Co. v. 
 
 Mellett, 92 Ind. 535... 
 
 24,46, 121, 
 
 126, 127. 132, 183, 345, 622 
 
 Fosdick V. Schall, 99 U. S. 235, 25 
 
 L. ed. 339 
 
 95, 107, 119, 212, 217, 
 268, 272. 348, 349, 388, 
 476, 477, 479, 484, 489, 
 492, 497. 500, 523, 575, 576 
 v. Southwestern Car Co. 99 
 U. S. 256, 25 L. ed. 344 
 
 494, 497 
 
 Foster, Be, 7 Hun, 129- 234 
 
 V. Barnes. 81 Pa. 377 101 
 
 V. Fowler, 60 Pa. 27 454 
 
 V. Townshend, 2 Abb. N. C. 
 
 29 114, 172 
 
 Fountain Ferry Turnp. Road Co. 
 
 V. Jewell, 8 B. Mon. 142 344 
 Fowler, Be, L. R. 16 Ch. Div. 723 545 
 V. Jarvis-Conklin M. T. Co. 
 2 Am. & Eng. Corp. 
 
 Cas. N. S. 391 36 
 
 Fox, Be, 51 Fed. Rep. 427 124 
 
 V. Adams, 5 Me. 245. 165 
 
 V. Hale& N. Silver Min. Co. 
 
 (No. l)108Cal.475 353 
 
 V. Hempfield R. Co. 2 Abb. 
 
 U. S. 155 127 
 
 ». Mensch, 3 Watts & S. 444 100 
 V. Toronto & N. R. Co. 29 
 
 Ch. (Ont.) 11 134, 162 
 
 Francis v. Lawrence, 48 N. J. Eq. 
 
 508 246 
 
 Frank v. Morrison, 58 Md. 423. .. 
 
 92 115 
 
 116, 162, 174, 175, 399, 403 
 
 V. New York, L. E. & W. 
 
 R. Co. 122 N. Y. 197.. 
 
 203, 204, 222, 224, 393 
 V. Robinson, 96 N. C. 32... 250 
 
 V. Stapler, 83 Ga. 429 64 
 
 Frankle v. Jackson, 30 Fed. Rep. 
 
 398.. 162, 515 
 
 Franklin Bank, Be, 1 Paige, 85... 607 
 
 Be, 1 Paige, 249 219 
 
 Franklin Trust Co. v. Northern 
 Adirondack R. Co. 42 
 
 N. Y. Supp. 211 697 
 
 Franklyn v. Sprague, 10 Hun, 589 202 
 Fraser v. Kershaw, 2 Kay & J. 496 
 
 325, 328 
 Frayser v. Richmond & A. R. Co. 
 
 81 Va. 388 125, 297. 417 
 
 Frazier v. Fredericks, 24 N. J. L. 
 
 162 110 
 
 Fredenbeim v. Rohr, 87 Va. 764 . 
 
 15. 17, 54, 603 
 Freedmau's Sav. & T. Cu. t\ Earle, 
 110 U. S. 710, 28 L. ed. 
 
 301 __ 251 
 
 V. Shepherd, 127 U. S. 500, 
 
 32 L. ed. 166 
 
 271, 276, 281. 479', 575 
 Freeland ». Freeland, 102 Mass. 475 407 
 •y. Stansfeld. 2 Smale & G. 
 
 479.. 325, 328 
 
 Freeman v. Howe, 65 U. S. 24 How. 
 
 450, 16 L. ed. 749 122 
 
 V. Winchester, 10 Smedes 
 
 & M. 577.-92, 161, 400, 401 
 Freiberg v. Stoddard, 161 Pa. 259. 392 
 Frelinghuysen v. Baldwin, 12 Fed. 
 
 Rep. 395- 424, 435, 436 
 
 v. Colden, 4 Paige, 204 274 
 
 French v. Dauchy, 57 Hun, 100.77, 606 
 V. Gifford, 30 Iowa, 148.15, 
 17-19,343,344,346,361, 
 
 371, 455, 466, 602, 603 
 
 V. Gifford, 31 Iowa, 428 587 
 
 Fricker v. Peters, 21 Fia. 254 
 
 15, 17-19, 603, 604 
 Frisbee^J. Timanus, 12 Fla. SOU.. 552 
 Frisbie v. Bateman, 24 N. J. Eq. 
 
 28. 279, 292, 297 
 
 Frost V. Spitley, 121 U. S. 556. 30 
 
 L. ed. 1012 178 
 
 Frostburg Bldg. Asso. ■». Stark, 47 
 
 Md. 338 556 
 
 Fry V. Charter Oak L. Ins. Co. 31 
 
 Fed. Rep. 197 169 
 
 V. Evans, 8 Wend. 530 440 
 
 Fullers. Jewett, 80 N. Y. 46 
 
 204, 209, 210 
 
 V. Ledden, 87 111. 310 
 
 175, 178, 385, 405 
 v. Stilglitz, 27 Ohio St. 355. 167 
 Fullerton v. Fordyce, 121 Mo. 1.. 
 
 187. 395 
 
 Furlong v. Edwards, 3 Md. 99 
 
 13, 264, 296. 303 
 Fussell V. Gregg, 113 U. S. 550, 28 
 
 L. ed. 993 179 
 
 Fuszez). Stern, 17111. App. 429.236, 247 
 
 a 
 
 Gabert v. Olcott (Tex.) 22 S. W. 
 
 286- 144 
 
 Gadsden v. Whaley, 14 S. C. 210. 
 
 92, 119. 158 
 
 Gage«. Smith, 79 111. 219 241 
 
 Gailher v. Stockbridge, 67 Md. 222 
 103. 106, 204, 221, 222, 
 
 224, 393 
 Galen v. Brown, 22 N. Y. 37 150
 
 lii 
 
 CASES CITED. 
 
 Gall V. Balis. 72 Mo. 429. 397 
 
 Giillagher v. Rosenfielil, 47 Minn. 
 
 507 171 
 
 Galloway v. Campbell, 142 I nil. 324 
 
 08. 551 
 Gall achat, Ex parte. 1 Hill, Eq. 148 530 
 Galvestou, H. & II. R. Co. v. Cow- 
 drey, 78 U. S. 11 AVall. 
 
 459, 20 L. ed. 199 
 
 270. 282, 479 
 Galway v. United States Steam 
 Sugar Ref. Co. 36 Barb. 
 
 286 347 
 
 V. United Slates Steam Sugar 
 
 Ref. Co. 13 Abb. Pr. 211 352 
 Garden City Bkg. & T. Co. v. Geil- 
 
 fuss, 86 Wis. 622.. 128, 184 
 
 Gardiner v. Howell, 60 Ga. 11 62 
 
 V. Tyler, 2 Abb. App. Dec. 
 
 247 583 
 
 Gardner v. Commercial Nat. Bank, 
 
 95 111. 298 250 
 
 V. Howell, 00 Ga. 11 12, 71 
 
 V. London, C. & D. R. Co. 
 L. R. 2 Ch. App. 201 . . 
 
 379, 452, 457 
 V. Ogden, 22 N. Y. 327.. .. 147 
 V. Smith, 29 Barb. 08_..171, 257 
 Garland v. Garland, 2 Ves. Jr. 137 
 
 59, 01, 62, 90 
 Garretson v. Weaver, 3 Etlw. Ch. 
 
 385 307, 309,325, 333 
 
 Garver v. Kent, 70 Ind. 428. 
 
 125, 153, 158, 159, 
 161, 162, 183, 399, 400, Oil 
 Gaskins v. Balls, L. R. 13 Ch. Div. 
 
 324 131 
 
 Gaslight & Bkg. Co. v. Haynes, 7 
 
 La. Ann. 114 _ 
 
 115, 116, 176. 397, 403 
 Gaslight Improv. Co. v. Terrell, L. 
 
 R. 10 Eq. Cas. 168 360 
 
 Gaich V. Fitch, 34 Fed. Rep. 566. 438 
 Gates V. Bucki, 53 Fed. Rep. 966. 
 
 123, 124 
 V. Chicago, St. P. & K. C. 
 
 R. Co. 82 Iowa, 528... 381 
 Gay V. Briarfield Coal & I. Co. 94 
 Ala. 312, 16 L.R. A. 564 
 
 123, 124, 127 
 
 Gayle v. Johnson, 80 Ala. 388 22 
 
 Gaylord v. Fort Wavne, M. & C. 
 
 R. Co. 6 Biss. 286 
 
 48, 56. 345 
 Gelpecke v. Milwaukee & H. R. 
 
 Co. 11 Wis. 454.. 
 
 121, 179, 345 
 Genet v. Foster, 18 How. Pr. 50.. 257 
 George v. St. Louis Cable & VV. R. 
 
 Co. 44 Fed. Rep 117... 573 
 V. Williamson, 26 Mo. 190.. 240 
 
 Georgia u. Atlantic & G. R. Co. 3 
 
 Woods, 434 388 
 
 Geortner v. Canajoharie, 2 Barb. , 
 
 625.. .315, 318 
 
 Gephart v. Starrett, 47 Md. 396-.. 75 
 Gere v. Dibble. 17 How. Pr. 31... 
 
 25. 49, 126, 127, 151, 244 
 Germania Nat. Bunk v. Case, 99 
 U. S. 028, 25 L. ed. 448 
 
 425. 438, 444, 445 
 Germantown Pass. R. Co. v. Fit- 
 
 ler, 60Pa. 124 406 
 
 Gerould v. Wilson, 81 N. Y. 573. 
 
 76, 77 
 Gest V. New Orleans, St. L. & C. 
 R. Co. 30 La. Ann. pt. 
 I. 28.... 48, 57, 372, 375, 416 
 Getsch V. Mclihargey, 09 Mich. 
 
 377. 232 
 
 Getzlerw. Saroni, 18 111.511 239 
 
 Gibbes «. Greenville & C. R. Co. 
 
 15 S. C. 304, 518 
 
 ...61, 66,209 
 
 Gibbins v. Mainwaring, 9 Sim. 77. 17 
 Gibbons v. Farwell, 63 Mich. 344. 622 
 Gibbs». David, L. R. 20 Eq. 373. 551 
 
 V. Thayer, 6 Cush. 30 407 
 
 Gibert v. Washington City, V. M. 
 & G. S. R. Co. 33 Gratt. 
 
 586, 645 ...63, 524, 574 
 
 Gibson V. Lowell, 19 Grant, Ch. 
 
 197. 137 
 
 V. Martin, 8 Paige, 481 
 
 15, 16, 18, 33 
 V. Peters, 150 U. S. 342, 37 
 
 L. ed. 1104 433 
 
 Gilbert v. Mickle, 4 Sandf. Ch. 
 
 357 131 
 
 Gildersleeve v. Lester, 68 Hun, 532 
 
 529. 540 
 
 Giles w. Stanton, 86 Tex. 620 483 
 
 Gill V. Balis, 72 Mo. 424 
 
 114, 155, 163. 399. 409, 411 
 
 Gillet V. Fairchild, 4 Denio. 80 • 
 
 92, 119, 159, 171, 172, 411 
 
 V. Moody, 3 N. Y. 479 
 
 104. 114, 149, 157, 171- 
 173, 250. 2f>0, 375, 406, 410 
 Gillett V. Phillips, 13 N. Y. 114... 
 
 114, 171, 173, 180. 387 
 Gilman v. Illinois & M. Teleg. Co. 
 91 U. S. 603, 23 L. ed. 
 
 405 270- 
 
 272, 282, 297, 479, 575 
 V. Ketch um, 84 Wis. 60, 23 
 
 L. R. A. 52 113, 167, 412 
 
 Gindratw. Dane, 4 Cliff. 200_-172, 397 
 Girard L. Ins. A. & T. Co. v. 
 Cooper, 51 Fed. Rep. 
 332, 4 U. S. App. 031.. 
 
 104, 594, 598
 
 CASES CITED. 
 
 liii 
 
 Girard L. Ins. Co. v. Cooper, 162 
 U. S. 529, 40L. e(1.10G3 
 
 93, 891, 394 
 Gladden v. Stoneman, 1 Madd, 142, 
 
 note. ...--529-532 
 
 Glenn v. Biisey (D. C.) 3 Cent. 
 
 Kep 288, note 883 
 
 V. Bussev, 5 Mackey, 283--. 158 
 
 V. Gill, 2 jMd. 1 127 
 
 V. Liggett, 47 Fed. Rep. 478 
 
 123, 127 
 V. Marbury, 145 U. S. 499, 
 
 36 L. ed. 790 401, 404 
 
 V. Reniple, 80 Ala. 159 404 
 
 V. Williams, 60 Md. 98 404 
 
 Glenny v. Langdon, 98 U. S. 20, 
 
 25 L. fd. 43 
 
 103, 106, 107. 204. 221, 
 
 223, 252, 260, 506 
 Gleuville Woolen Co. v. liipley, 48 
 
 N. Y. 206 91 
 
 Glinest). BiiigliamplonTrustCo.68 
 
 Hun, 511 70 
 
 V. Supreme Silting, O. of I. 
 
 H. 50 N. Y. S. R. 743- 600 
 Globe Ins. Co. Be, 6 Paise, 102- - 406 
 Goddard v. Sliles, 90 N. Y. 199-.- 876 
 Godfrey v. Ohio & M. R. Co. 116 
 
 Ind. 30.. 516, 566 
 
 Goisset). Beall, 5 Wis. 224 -- 122 
 
 Gold Hunter Min. & S. Co. v. 
 Holleman, 2 Idaho, 839 
 
 36, 603 
 
 Gooch V. McGee, 83 K C. 59 454 
 
 Goodale v. 15th Dist. Ct. of San 
 
 Francisco, 56 Cal. 26.- 550 
 Gooderham v. Toronto & N. R. 
 
 Co. 29 Ch. (Ont.)ll..- 162 
 Good heart v. Raritan Min. Co. 8 
 
 N. J. Eq. 78 370 
 
 Goodman v. Jedidjah Lodge No. 
 7, L O. of B. B. 67Md. 
 
 117.-- 346 
 
 V. Whitcomb, 1 Jac. & W. 
 
 589-- ---306, 809, 
 
 822, 825, 334, 340 
 
 Goodwin v. Jones, 3 Mass. 517 109 
 
 Goodyear v. Betts, 7 How. Pr. 187 
 
 13, 18, 242, 243 
 Gordon v. Newman, 62 Fed. Rep. 
 
 686 - 525 
 
 Gorton t\ M)i.s.sey, 12 Minn. 147 239 
 
 Gottlieb V. Miller, 154 111. 44 409 
 
 Gould t). Tryon, Walk. Ch. 353-- 238 
 Goulding v. Bain, 4 Sandf. 716--. 
 
 808, 309, 323, 884 
 Gouthwaile v. Rippon, 1 Beav. 54 28 
 V. Rippon, 8 L. J. Cli. N. S. 
 
 139 -.- 264 
 
 Gouverneur v. Warner, 2 Sandf. 
 
 624 122,127 
 
 Gowan v. Jeffries, 2 Ashm. 296... 
 
 306, 807, 322 
 Graff V. Bonnett, 31 N. Y. 9, 25 
 
 How. Pr. 470 257 
 
 Graham v. Chapman, 83 N. Y. S. 
 
 R. 849 - 209 
 
 V. Fuller Electrical Co. 75 
 
 Ga. 878 12. 48, 66 
 
 V. Graham, 2 Vict. Rep. (E.) 
 
 145 61, 97, 536 
 
 V. La Crosse & M. R. Co. 10 
 
 Wis. 459 251 
 
 «. Nonkes [1895i"i'ChV 66^ " 
 64 L. J. Ch. N. S. 98-. 78 
 Graham Button Co. v. Spielmann, 
 
 15 N. J. Eq. 120 92, 407 
 
 Grandln v. La Bar, 2 N. D. 206.-. 
 
 15, 17, 6'03 
 Grand Tower Min. & T. Co. v. 
 
 Sfhirmer, 64 III. 106 616 
 
 Grant v. Bryant, 101 Mass. 567. -_ 586 
 v. Davenport 18 Iowa, 179- 
 
 82, 121, 410 
 V. Phoenix Mut. L. Ins. Co. 
 106 U. S. 429, 27 L. ed. 
 
 257 71, 118 
 
 «. Ph(jsnix Mut. L. Ins. Co. 
 121 U. S. 105, 30 L. ed. 
 
 905 
 
 274, 276, 281,282, 289, 298 
 
 V. Walsh, 81 Hun, 449 392 
 
 V. Webb, 21 Minn. 39 70 
 
 Grantham v. Lucas, 15 W. Va. 425 
 
 10, 12, 261 
 Gratz V. Bavard, 11 Serg. & R. 41. 308 
 
 Grave «. Bunch, 83 Ind. 4 802 
 
 Gravenstine's Appeal, 49 Pa. 310. 
 
 361, 602 
 Gray v. Davis, 1 Woods, 420, Aff'd 
 83 U. S. 16 Wall. 203, 
 
 21 L. ed. 447 173 
 
 V. Gaither, 74 N. C. 237-.- 
 
 529-531 
 
 V. Lewis, 94 N. C. 392 
 
 153. 160, 168, 399, 411 
 c. Oxnard Bros. Co. 31 N. 
 
 Y. S. R. 968 297 
 
 Graydon v. Church, 7 Mich. 36-.- 
 
 112, 167, 170 
 Great Luxembourg R. Co. «. Mag- 
 nay. 25 Beav. 586.. 360, 503 
 Great Western Teleg. Co. v. Burn- 
 ham, 79 Wis. 47. -.390, 414 
 V. Gray, 122 111. 630.. .115- 
 
 117, 175, 176, 408, 407 
 Greaves©. Gouge, 69 N. Y. 154- - 
 
 851, 865, 623 
 Greeley v. Provident Sav. Bank, 
 
 98 Mo. 458 -- 187, 573 
 
 V. Providcpt Sav. Bank, 103 
 
 Mo. 212 66, 586
 
 liv 
 
 CASES CITED. 
 
 Green v. Bostwick, 1 Sandf. Ch. 
 
 185.21.22,143, 154, 33G. 337 
 
 V. Green, 2 Sim. 430. 122 
 
 «. Gross. 12 Neb. 117. 167 
 
 V. llanbcrry. 2 Brock. 403.. 534 
 V. Hicks, 1 Baib. Ch. 309.. 114 
 V. Van Buskirk, 72 U. S. 5 
 Wall. 307, 18 L. cd. 599 
 
 499, 500 
 V. Van Buskirk, 74 U. S. 7 
 
 Wall. 139, 19 L. ed. 109 111 
 «.Walkill Nat. Bank, 7 Hun, 
 
 63 373,423 
 
 «. Winter, 1 Johns. Ch. 60. 
 
 92, 153, 159, 383 
 Greenawalt «. Wilson, 52 Kan. 109 
 
 67, 85. 616 
 Greene v. Kernan, 1 Hayes & J. 
 
 401 - 17 
 
 V. Sprague Mfg. Co. 52 
 
 Conn. 330 389, 396 
 
 Greenway v. Thomas, 14 111. 271. 
 
 239, 242 
 Greenwood v. Algesiras R. Co. 
 [1894] 2 Ch. 205, 63 L. 
 J. Ch. N. S. 670 ....85, 380 
 «. Brodhead, 8 Barb. 593... 319 
 
 V. Curtis, 6 Mass. 358 165 
 
 Gregory v. Gregory, 1 Sweeny, 
 
 613 310, 339 
 
 V. Gregory, 1 Jones & S. 86. 
 
 42-44 
 V. Patchett, 33 Beav. 595... 351 
 Gresley v. Adderly, 1 Swanst. 573 _ 
 
 142, 337 
 Greville v. Fleming, 2 Jones & L. 
 
 335 11 
 
 Gridley v. Connor, 2 La. Ann. 87. 311 
 Griesel v. Schmal, 55 Ind. 475.181, 415 
 
 Griffin v. Cha.se, 36 Neb. 328 392 
 
 V. Nitcber, 57 Me. 260 244 
 
 Griffith V. Griffith, 2 Ves. Jr. 400. 
 
 77, 122 
 
 Griggs V. Becker, 87 Wis. 213 414 
 
 Grinaston v. Turner, 22 L. T. N. 
 
 S. 292_... 37 
 
 Griswold, Be, 13 Barb. 412 160 
 
 Gross V. Daly, 5 Daly, 542 246 
 
 Grote«. Bury, 1 Week. Rep. 92... 27 
 Guardian Sav. Inst. Be, 78 N. Y. 
 
 408 632 
 
 V. Bowling Green Sav. 
 
 Bank, 65 Barb. 275.... 119 
 Gue V. Tide Water Canal Co. 65 
 U. S. 24 How. 257, 16 
 
 L. ed. 635 454 
 
 Guerrant v. Fowler, 1 Hen. & M. 
 
 5 147 
 
 Guillander v. Howell. 35 N. Y. 657 111 
 Guinness i). Land Corp. of Ireland, 
 
 L. R. 22 Ch. Div. 349. 409 
 
 Gumbel v. Pitkin, 124 U. S. 131, 
 
 31 L. ed. 378.. 123. 124, 597 
 
 Gunby v. Thompson, 56 Ga. 316.. 
 
 12, 42, 62, 71, 548 
 
 Gunn ®. Blair, 9 Wis. 352 41 
 
 Gurden v. Badcock, 6 Beav. 157.. 234 
 
 Gurney v. Atlantic & G. W. R. Co. 
 
 58 N. Y. 358 485 
 
 Gutsch V. Mcllhargey, 69 Mich. 
 
 377 202.622 
 
 Guy V. Doak, 47 Kan. 236.. 26, 36, 603 
 ®. Ide, 6 Cal. 99 283, 292 
 
 H. 
 
 H's Estate, Be, Bv. H, L. R. 1 Ch. 
 Div. 270, 45L.J.Ch. 749 
 
 18, 33 
 Haar v. Consolidated Carson River 
 Dredging Co. 43 N. Y. 
 
 S. R. 1 366 
 
 Haas V. Chicago Bldg. Soc. 89 111. 
 
 498 15, 35, 63, 277, 
 
 280, 281, 298, 358, 603, 604 
 Haben v. Harshaw, 49 Wis. 379.. 387 
 Hackensack Water Co. i). DeKay, 
 
 36 N. J. Eq. 548 100 
 
 Hackett v. Snow, 10 Ir. Eq. Rep. 
 
 220 .277,297 
 
 Hackley 7) . Draper, 4 Thomp. & C. 
 
 614." 102, 189 
 
 V. Draper, 60 N. Y. 88, 2 
 
 Hun, 523.-101,102.157,171 
 V. Swigert, 5 B. Mon. 86 .. 125 
 Hade v. McVay, 31 Ohio St. 231.. 
 
 138, 180, 383, 440 
 Hagan v. Lucas, 35 U. S. 10 Pet. 
 
 400, 9 L. ed. 470 122 
 
 V. Walker, 55 U. S. 14 How. 
 
 29, 17 L. ed. 312 240 
 
 Hagedon v. Bank of Wisconsin, 1 
 
 Pinney, 61 372, 416 
 
 Hagenbeck v. Hagenbeck Zoologi- 
 cal Arena Co. 59 Fed. 
 
 Rep. 14 542, 545 
 
 Hager v. Stevens, 6 N. J. Eq. 374. 
 
 39, 41, 347 
 Haggarty v. Pittman, 1 Paige, 298 
 
 239, 536 
 Haggerty v. Byrne, 75 Ind. 499... 302 
 
 Haight V. Burr, 19 Md. 130 
 
 39, 40. 307, 323, 466 
 Haines v. Carpenter, 1 Woods, 262 
 
 534, 536 
 
 Hake v. Buell, 50 Mich. 89 622 
 
 Hale V. Clauson, 60 N. Y. 339 101 
 
 V. Frost, 99 U. S. 389. 25 L. 
 
 ed. 419 212, 477, 576 
 
 1). Hale, 4 Beav. 369 311 
 
 V. Nashua & L. R. Co. 60 
 N. H. 333 489
 
 CASES CITED. 
 
 iv 
 
 Haley, Ex parte, 99 Mo. 150 55 
 
 Hall V. Astoria Veneer Mills & L. 
 
 Co. 5 Ry. & Corp. L. J. 
 
 412 358 
 
 V. Donovon (Mich.) 69 N. W. 
 
 643. 695 
 
 V. Hall, 3Macn. & G. 79... 
 
 308, 309. 340 
 V. Kirby, Exch. 11 (June, 
 
 1831, unreported) 28 
 
 V. Merrill, 9 Abb. Pr. 121.. 126 
 V. Sampson, 35 N. Y. 274.. 150 
 1). Slipp, 1 N. B. Eq. 37.... 585 
 V. Sullivan R. Co. 2 Redf. 
 
 Ry. Cas. 621 461 
 
 V. United States Ins. Co. 5 
 
 Gill, 484... .175. 403 
 
 Hall & S. Co. , lie, 69 Fed. Rep. 425 52 
 Halletl's Estate, lie, L. R. 13 Cli. 
 
 Div. 696... 628 
 
 Hallowell v. Bayliss, 10 Ohio St.537 407 
 Halpin v. Mutual Brew. Co. 91 
 
 Hun, 220. .359, 567 
 
 Hamburgh Mfg. Co. v. Edsall, 8 
 
 N. J. Eq. 141 11, 12 
 
 Hamill v. Hamill, 27 Md. 679 331 
 
 Hamilton v. Accessory Transit Co. 
 
 B Abb. Pr. 255 343 
 
 1). Accessory Transit Co. 26 
 
 Barb. 46_ 470 
 
 T. Austin, 36 Hun, 138 272 
 
 T. Brewster, 2 Moll. 407 77 
 
 v. Choteau, 6 Fed. Rep. 339. 123 
 Hamilton-Brown Shoe Co. v. Mer- 
 cer, 84 Iowa, 239 123 
 
 Hamlin v. McGillicuddy, 82 Me. 
 
 268 244 
 
 ©.Wright, 23 Wis. 491 ..114, 
 
 242, 251, 259, 260, 376, 387 
 Hammer v. Kaufman, 39 111. 87.. 62 
 Hammock v. Farmers' Loan & T. 
 Co. 105 U. S. 77, 26 L. 
 
 ed. 1111 54. 55, 492 
 
 Hancock «. Sears, 93 N. Y. 79. .. 257 
 «.Wooten, 107 N. C. 9,11 L. 
 
 R. A. 466 245 
 
 Hand v. Dexter, 41 Ga. 454.. .344, 362 
 V. Savannah & C. R. Co. 10 
 
 S. C. 406- 381 
 
 V. Savannah & C. R. Co. 17 
 
 8. C. 219.... .502, 508 
 
 Handy v. Cleveland & M. R. Co. 
 
 31 Fed. Rep. 689 507 
 
 Hanker. Blattner, 34 III. App. 394. 625 
 Hanna v. Hanna, 89 N. C. 68... 11, 28 
 V. State Trust Co. 70 Fed. 
 Rep. 2, 30 L. R. A. 201 . 
 
 388, 490 
 Hannah v. Moberly Bank, 67 Mo. 
 
 678 ...172, 404, 405 
 
 V. Chase, 1 Bland, Ch. 213. 338 
 
 Hanon v. Weil, G9 Miss. 476 71 
 
 Hanover F. Ins. Co. v. Germania 
 F. Ins. Co. 33 Hun, 
 
 539 61,62 
 
 Hanson v. Stevenson, 1 Barn. & 
 
 Aid. 303 _. .223, 496 
 
 Hardee v. Sunset Oil Co. 56 Fed. 
 
 Rep. 51 359, 365 
 
 Hardin v. Hardin, 34 S. C. 77 292 
 
 V. Sweeney (Wash.) 44 Pac. 
 
 138 399 
 
 Harding v. Glover, 18 Ves. Jr. 281 
 306. 307, 314, 315, 318, 
 
 325, 327, 330, 333 
 
 V. Nettleton, 86 Mo. 658 
 
 183, 192, 511 
 
 Hardt w. Levy, 72 Hun, 225 319 
 
 Hardy v. McClellan, 53 Miss. 507. 
 
 26, 36, 602 
 
 V. Tilton, 68 Me. 195 373 
 
 Hardwickt). Hook, 8Ga. 354_.161, 
 
 162, 399, 401 
 Hargrave v. Hargrave, 9 Beav. 549. 550 
 Hariand v. Bankers' & M. Teleg. 
 Co. 33 Fed. Rep. 199, 
 contra, 32 Fed. Rep. 
 305. .141, 142, 153, 161, 
 178, 179. 386. 400, 611, 612 
 Harman v. Foster, 1 Hog. 318... 
 
 202, 215 
 
 v. Hoskins, 56 Miss. 142 250 
 
 ■». McMullin, 85 Va. 187.. 4, 120 
 w.Wagener, 33 S. C. 487.528, 535 
 Harmon v. Kentucky Coal, I. & 
 D. Co. 15 Ky. L. Rep. 
 
 12 365 
 
 Harper v. Union Mfg. Co. 100 111. 
 
 225 178, 385, 405 
 
 Harrell v. Kent, 71 Ind. 602.. 159, 
 
 161, 383, 400, 611 
 Harris, Ex parte (Be Lewis), 45 L. 
 
 J. Bkr. 71 155 
 
 V. Beauchamp [1894] 1 Q. B. 
 801, 63 L. J. Q. B. 480. 
 
 45, 59, 238 
 V. Hicks (Tex. Civ. App.) 34 
 
 S.W. 983.... 533 
 
 V. Lester, 80 111. 307.... 261, 616 
 V. People (111. App.) 13 Nat. 
 
 Corp. Rep. 31. 564 
 
 V. Rivers, 53 Ind. 216 181 
 
 V. Summer, 2 Pick. 129 250 
 
 Harrison v. Boydell, 6 Sim. 211.. 215 
 V. Maxtell, 44 N. J. L. 316. 256 
 V. Slerry, 9 U. S. 5 Cranch, 
 
 289, 3 L. ed. 104 
 
 165, 170, 316 
 
 V. Tenant, 21 Beav. 482 333 
 
 Harrison Wire Co. v. Wheeler, 11 
 
 Fed. Rep. 206 123 
 
 Harrup v. Winslet, 37 Ga. 655.. 39, 44
 
 Ivi 
 
 CASES CITED. 
 
 Hart V. Clfirke, 19 Rcav. ^49 306 
 
 1). lU'spess, 89 (la. 87 41 
 
 V. SI earns, 4 N. Y. Week. 
 
 l)il,^ 510.. 254 
 
 V. Tiinnis. 3 E<lw. Ch. 226. 288 
 Hartell v. Tili,^liMian, 99 U. S. 547, 
 
 25 L. ed. 357._202, 2:50, 231 
 Hartford Deposit Co. «. Clieinical 
 Nat. Bank, 58 111. App. 
 
 256 394 
 
 Hartz^. Schrader, 8 Ves. Jr. 317. 317 
 Harvey v. Allen, 16Blat(;hf .29.428, 448 
 
 ?). Lord, 11 Biss. 144 427,489 
 
 V. Lord, 10 Fed. Rep. 237.. 155 
 V. Varney, 104 Mass. 436--. 
 
 145, 262, 336 
 Harwell v. Potts, 80 Ala. 70.... 36, 602 
 Hastings fl. Wilson, Holt, N. P.290. 106 
 Hatch V. Bancroft-Thompson Co. 
 
 67 Fed. Kep. 802 345 
 
 Hatcher v. jNIat-sey, 66 Ga. 66 543 
 
 Platfield^J.Cumniings, 140Ind.547. 357 
 Haugan ©.Netland, 51 Minn. 552. 
 
 15, 17, 358 
 Havemeyer w.San Francisco Super. 
 Ct. 84 Cal. 327.352, 354, 
 
 357, 361 
 
 Havens v. Hussy, 5 Paige, 30 316 
 
 Hawes v. Contra Ccsta VVater Co. 
 ("Hawes v. Oakland"), 
 104 U. S. 450, 26 L. ed. 
 
 828 343, 351, 365 
 
 Hawkins v. Glenn, 131 U. S. 319, 
 
 33 L. ed. 185 390, 414 
 
 Haxtun v. Bishop, 3 Wend. 13.376,401 
 Hay V. Alexandria & W. R. Co. 4 
 
 Hughes, 373 272 
 
 Hayden v. Chicago Title & T. Co. 
 
 55 111. App. 24! 631 
 
 Hayden v. Thompson. 71 Fed. Rep. 
 60, 2 Am. & Eng. Corp. 
 
 Cas.N. S. 511 
 
 398, 399, 402, 408. 409, 435 
 Hayes v. Beardsley, 136 N. Y. 299 447 
 V. Brolzman, 46 j\Id. 519..;. 
 
 92, 154, 155, 399 
 V. Buckley, 53 How. Pr. 173 256 
 V. Dickinson, 9 Hun, 277.. 296 
 V. Heyer. 3 Sandf. 284 .220, 307 
 V. Heyer, 4 Sandf. (^h. 485. 
 
 308, 313, 315 
 
 V. Kenyon, 7 R. I. 136 
 
 173, 383, 384, 387, 397, 407 
 V. Shoemaker, 39 Fed. Rep. 
 
 219 442 
 
 Haynes v. Brooks, 116 N. Y. 487. 259 
 V. Mc Dermott, 3 N. Y. S. R. 582 91 
 Haywood v. Collins, 60 111. 328... 616 
 ». Lincoln Lumber Co. 64 
 
 Wis. 639 172, 173. 
 
 355. 359, 360, 362, 367, 408 
 
 Hazard v. Durant, 19 Fed. Rep. 
 
 471.. 112, 160, 165 
 
 Hazelrigg v. Bronaugh, 78 Ky. 62 
 
 121, 'l32, 147, 183, 416 
 Hazeltine v. Granger, 44 Mich. 503 
 
 271, 283, 293, 469 
 Hazleton v. Wakemau, 3 How. Pr. 
 
 357 102 
 
 Heacock v. Durand, 43 111. 230... 244 
 
 Mead v. Miller, 45 Minn. 446 383 
 
 Heard v. Murray, 93 Ala. 127... 15, 40 
 Heath v. Missouri. K. C. & T. R. 
 
 Co. 83 Mo. 617.184, 374, 375 
 Heathcot v. Ravenscroft, 6 N. .T. 
 
 Eq. 113 42, 306, 316 
 
 Heatherton v. Hastings, 5 Hun, 459 
 
 97, 340, 619 
 Heavilon v. Farmers' Bank, 81 Ind. 
 
 249 32, 274, 277, 608 
 
 Hedges v. Paquett, 3 Or. 77 
 
 346, 363, 367 
 
 Heermans v. Clarkson, 64 N. Y. 171 120' 
 
 Heffron v. Flower, 35 111. App. 200 589 
 
 V. Milligan, 40 111. App. 291 93 
 
 V. Rice, 40 111. App. 244 
 
 201, 583, 631, 632 
 V. Rice, 149 111. 216. . .86, 87, 584 
 Hoflebower v. Buck, 64 Md. 15... 308 
 Hefner «. Northwestern Mut. L. 
 Ins. Co. 123 U. S. 747, 
 
 31L. ed. 309... 'J4 
 
 Hegewisch v. Silver, 140 N. Y. 414 
 
 53, 75, 411 
 v. Silver, 50 N. Y. S. R. 448 159 
 Heidritter v. Elizabeth Oil Cloth 
 Co. 112 U. S. 294, 28 L. 
 
 ed. 729... 57,123, 127 
 
 Heiman v. Fisher, 11 Mo. App. 275 
 
 141. 148 
 Heine «. Board of Levee Comrs. 
 86 U. S. 19 Wall. 655, 22 
 
 L. ed. 223 2-16 
 
 Heineman v. Hart, 55 Mich. 64,.. 406 
 Heiusheimer «. Dayton R. Co. 3 
 
 Rv. & Corp. L. J. 268. 273 
 Heise v. Starr, 44 111. App. 406.588, 593 
 Heisen v. Binz (Ind.) 45 N. E. 104 6!i8 
 Heiman v. FisLer, 11 Mo. App 275 126 
 tlelme v. Littlejohn, 12 La. Ann. 
 
 208 92, 153-155,159, 317 
 
 Helmore v. Smith, L. R. 35 Ch. 
 
 Div. 449 .122, 135 
 
 Heman B. Britton, 88 Mo. 549 115 
 
 Hendee v. Connecticut &, P. R. R. 
 
 Co. 26 Fed. Rep. 677.. 435 
 V. Conned icut & P. R. R. 
 
 Co. 23 Blatchf. 453.424, 436 
 Henderson v. McVay, 32 Ala. 471. 245 
 V. Meyers, 11 Phila. 616.... 88 
 V. Walker, 55 Ga. 481 ..183. 
 
 191, 202, 209, 211, 395, 512
 
 CASES CITED. 
 
 Hendricks v. Robinson, 2 Johns. 
 
 Ch. 296 'j:',9,l'44 
 
 Hendrix v. American Mortg. F. L. 
 
 Co. 95 Ala. 313 17 
 
 Henn v. Walsh, 2 Edw. Ch. 129.. 
 
 97, 306-309, 325, 333 
 Henningw. Raymond, 35 Minn. 303 
 
 51, 161, 162, 167, 337, 401 
 Henry v. Henry, 10 Paige, 314.314, 319 
 
 V. Henry, 103 Ala. 582 
 
 219, 230, 410, 584, 590 
 
 V. Kaufman, 24 Md. 1 23 
 
 v. Martin, 88 Wis. 367 628 
 
 Henshaw v. Wells, 9 Humph. 568 
 
 27, 267, 281, 301, 354, 355 
 
 Herbst, Re, 63 Hun, 247 186 
 
 Herman v. Fisher, 11 Mo. App. 
 
 275 25 49 
 
 Hermanos, Re. L. R. 24 Q. B. Div. ' 
 
 640... 330 
 
 Hermandez v. Drake, 81 111. 34 — 
 
 261, 616 
 Herndon v. Hurler, 19 Fla. 397... 118 
 
 Herrick v. Miller, 123 Ind. 304 
 
 294, 375, 389. 568 
 Herring ». New York, L. E. & W. 
 R. Co. 105 N. Y. 340. 
 26, 82, 142, 145, 198, 352, 454 
 
 Herron v. Vance, 17 Ind. 595 
 
 153, 159, 183, 383, 400 
 
 Hersey v. Veazie, 24 Me. 9. 351 
 
 Hervey v. Filzpatrick, Kay, 421 . 531 
 V. Illinois M. R. Co. 28 Fed. 
 
 Rep. 169 ...363, 476 
 
 v. Rhode Island Locomotive 
 Works, 93 U. S. 664, 23 
 
 L. ed. 1003 500 
 
 Hesing v. Attv. Gen. 104 111. 292. 397 
 
 Hewett?). Adams, 50 Me. 271 158 
 
 V. Adams, 54 Me. 208„.-403, 405 
 V. Murray, 54 L. J. Ch. 572, 
 
 go T 'p 380 75 
 
 Heyert). Alexander, 108 ill". 385 1. 413 
 Hibernia Nat. Bank v. Lacombe, 
 
 84 N. Y. 367 
 
 110, 113, 167, 168, 412 
 Hickling®. Wilson, 104 111. 54... 405 
 Hicks t). Hicks. 3 Atk. 274... .202, 215 
 V. International & G. N. R. 
 
 Co. 62 Tex. 38.. 46, 518, 520 
 Higgins, Re, 27 Fed. Rep. 443... 
 
 122, 131,132 
 
 ». Bailey, 7 Robt. 613 339 
 
 V. Gillesheimer, 26 N. J. 
 
 Eq. 308. 113, 115, 
 
 149, 251, 259 
 
 V. Taft. 4 App. Div. 62 
 
 400, 402, 410, 435 
 
 V. Wright, 43 Barb. 461... _ 613 
 
 Rinrlitower v. Thornton, 8 Ga. 486 362 
 
 Hilbert, Bkc parte, 11 Vcs. Jr. 397 93 
 
 lliles V. Cn.se, 14 Fed. Rep. 141... 498 
 
 V. (Jase, 9 Biss. 549 580 
 
 V. Moore, 15 Beav. 175 299 
 
 Hill®. Arnold, 79 Ga. 367. 534 
 
 V. Boston, 122 Mass. 344... 210 
 V. Corcoran, 15 Colo. 272.. 124 
 V. Dobie. 8 Taunt. 325,. 223, 496 
 V. Hart-Davis, L. R. 21 Ch. 
 
 Div. 798 131 
 
 V. Nautilus Ins. Co. 4Sandf. 
 
 Ch. 577 352, 355 
 
 V Parker, 111 Mass. 508... 
 128, 185. 188, 1S9, 
 202, 207, 231, 417, 418. 621 
 «. Robertson, 24 Mis.«. 368.. 
 
 41, 267, 281 
 V. Thompson, 3 Meriv. 622. 13 
 V. Western & A. R. Co. 86 
 
 Ga.284 41, 146, 
 
 153. 155, 259, 355, 376, 409 
 Hillier ®. Allegheny County Mut. 
 
 Ins. Co. 3 Pa. 470 180 
 
 Hilton ®. Guyot, 159 U. S. 113, 40 
 
 L. ed. 95 113 
 
 Hinkley v. Blethen, 78 Me. 221. _. 
 
 366, 471 
 Hinckley v. Gilman, C. & S. R. 
 Co. 100 U. S. 153, 25 L. 
 ed. 591... 118, 203, 206, 
 207, 218, 394, 583, 594, 631 
 
 V. Pfister, 83 Wis. 64 
 
 343, 353. 354 
 Hinton v. Galli, 24 L. J. Ch. 121, 
 
 2Eq. 479 108 
 
 Hirshfeld v. Kalischer, 81 Hun, 
 
 606 418 
 
 Hitchcock V. St. John, 1 Hoffm. 
 
 Ch. 511 316 
 
 Hitchcock Mfg. Co., Re, 1 App. 
 
 Div. 164 360, 361 
 
 Hitchen v. Birks, L. R. 10 Eq. 
 
 471... 536 
 
 Hitz V. Jenks, 123 U. S. 297. 31 L. 
 
 ed. 156 432, 433 
 
 Mlawaceki v. Bohman, 51 Wis. 92 43 
 Ihmrv. Harshow, 49 Wis. 379... 376 
 Hoare v. Stephens, L. R. 32 Ch. 
 
 Div. 194. 294 
 
 Hobart®. Ballard, 31 Iowa, 521.. 
 
 308, 309, 334 
 
 T. Bennett, 77 Me. 401 399 
 
 V. Frost, 5 Duer, 672 159 
 
 ■V. Gould, 8 Fed. Rep. 57... 440 
 V. John.son, 8 Fed. Rep. 493 443 
 Hobhouse v. Hollcombe, 2 DeG.& 
 
 S. 208 . 136 
 
 Hoboken Bldg. Asso. v. Martin, 13 
 
 N.'J. Eq. 427.. 556 
 
 Hodges V. New Eniiland Screw 
 
 Co. 1 R. I. 312 397 
 
 Hodson V. Warner, 60 Ind. 214... 549
 
 Vlll 
 
 CASES CITED. 
 
 Hoerle ». IMcIllmrgy, 29 Jones & 
 
 S. 184.. 600 
 
 Hoffman v. Duncan, 17 Jur. 825. 308 
 
 V. Schoyer, 143 111. 598 51 
 
 Hoge V. liollister. 8 Baxt. 533.... 287 
 Hogg V. Ellis. 8 How. Pr. 473.321, 331 
 Hogsett®. Ellis, 17 Mich. 363.... 
 
 283. 293, 460, 469 
 Holbrook v. American F. Ins. Co. 
 
 6 Paige, 220.... 
 
 138. 180, 377, 395, 589 
 t). Ford, 153 111. 633.... 413, 417 
 Holcomb V. Johnson, 27 Minn. 
 
 353 204,205,261, 615 
 
 Holden v. MciVIakin, 1 Par. Sel. 
 
 Eq. Cas. 270. 71 
 
 V. Upton. 134 Mass. 177 173 
 
 Holdredge v. Gwynne, 18 N. J. 
 
 Eq. 26.. 239, 354 
 
 Holland v. Cork & K. R. Co. 2 Ir. 
 
 Eq. Rep. 417. 264 
 
 V. Levviston Falls Bank, 52 
 
 Me. 564 367 
 
 Hollenbeck v. Donnell, 94 N. Y. 
 342, Rev'g 29 Hun, 94. 
 270, 
 272, 273, 276, 278, 280, 
 285, 286, 288, 293. 457, 608 
 HoUins V. Brierfield Coal & I. Co. 
 150 U. S. 371, 37 L. ed. 
 
 1113 238 
 
 Holme V. Littlejohn, 12 La. Ann. 
 
 298.... -899, 401, 410 
 
 Holmes t). Bell, 2 Beav. 298 296 
 
 V. Holmes, 29 N. J. Eq. 9.. 553 
 V. Knapp Electrical Works, 
 
 59 111. App. 58 67 
 
 V. Marshal], 78 N. C. 262.. 250 
 T. Millage [1893] 1 Q. B. 551 45 
 v. Newcastle-upon Tyne Ab- 
 batoir Co. L. R. 1 Ch. 
 
 Div. 682.. 409 
 
 V. Penney. 3 Kay & J. 90.. 407 
 V. Remsen, 4 Johns. Ch. 460, 
 
 20 Johns. 229.. 109, 112, 167 
 D. Sherwood, 3 McCrary, 
 405, 16 Fed. Rep. 725.. 51 
 
 Holt 7). Thomas, 105 Cal. 273 445 
 
 Home Provident Safety Fund 
 Asso., Be, 129 N. Y. 
 288, Rev'g 39 N. Y. S. 
 
 R. 437 
 
 134, 200, 371, 395, 597 
 Honegger v. Wettstein, 15 Jones & 
 
 S. 125,94N.Y.252..194, 197 
 Hood, JEx parte (Ala.) 18 So. 176. 560 
 V. First Nat. Bank, 29 Fed. 
 
 Rep.55 .- 28 
 
 Hooper x. Central Trust Co. 81 
 Md. 559. 29 L. R. A. 
 262 ..388, 523 
 
 Hooper v. Winston, 24 111. 353. .22, 
 
 60, 82. 83. 93, 203, 205. 632 
 Hoopes V. Tuckerman, 3 Sandf. 
 
 311 110. 167, 168 
 
 Hoover v. Montclair & G. L. R. 
 
 Co. 29 N. J. Eq. 4.... 
 
 86, 93, 
 
 117. 380, 475, 489, 491. 524 
 
 Hope Mut. L. Ins. Co. v. Taylor, 
 
 2 Kobt. 278 112. 165 
 
 Hopfensack v. Ilopfensack, 61 
 
 How. Pr. 498 588 
 
 Hopkins v. Connel, 2 Tenn. Ch. 
 
 323 211, 229, 395 
 
 V. Taylor, 87 111. 436 388 
 
 «. Worcester & B. Canal Co. 
 
 L. R. 6 Eq. 437 2, 461 
 
 Hopkins' Appeal, 90 Pa. 69.. 360 
 
 Hopper «. Lovejoy, 47 N. J. Eq. 
 
 573, 12 L. R. A. 588... 92 
 Hoppes«. Hoppes. 123 Ind. 397.. 302 
 Horner v. Henuiug, 93 U. S. 228, 
 
 23 L. ed. 879 
 
 178, 395. 398. 399, 405, 449 
 V. Zimmerman. 45 111. 14 .. 244 
 Hornsby v. Eddy, 56 Fed. Rep. 
 
 461 29.203, 512, 514 
 
 Horn Silver Min. Co. ». Ryan, 42 
 
 Minn. 198 397 
 
 Horton v. White, 84 N. C. 297.. 27, 43 
 Hospes V. Almstedt, 13 Mo. App. 
 
 270, Aff'd83 Mo. 473.. 205 
 Hottenstein v. Conrad, 5 Kan. 249 71 
 
 V. Conrad, 9 Kan. 435 
 
 54, 159, 308 
 
 Houchin v. Turner, 89 Ga. 26 366 
 
 Houlditch V. Lord Donegal, 1 
 
 Realty, 402. 890 33, 536 
 
 Houston «. Levy, 44 N. J. Eq. 6.. 240 
 Houston & T. C. R. Co. «. Kelly, 
 (Tex. Civ. App.) 35 S. 
 
 W. 878. 520 
 
 V. Roberts (Tex.) 19 S. W. 
 
 512 192 
 
 Hovey v. Blakeman, 4 Ves. Jr. 
 
 606... 234 
 
 V. McDonald, 109 U. S. 150, 
 
 27 L. ed. 888-. ..70, 73, 119 
 
 How «. Jones, 60 Iowa, 70 . 
 
 282. 594, 632 
 Howard v. Glenn, 85 Ga. 238.362, 403 
 V. LaCrosse & M. R. Co. 
 
 Woolw. 49 363 
 
 V. Lowell Mach. Co. 75 Ga. 
 
 325 .70, 558 
 
 e. Papera, 1 Madd. 142 (Am. 
 
 ed. 86) 529, 532 
 
 ». Turner, 155 Pa. 349 391 
 
 v. Whitman. 29 Ind. 557.. . 
 
 359, 616 
 Howe V. Deuel, 43 Barb. 504.. 343, 344
 
 CASES CITED. 
 
 lix 
 
 Ho\?e V. Gibson, 3 Tex. Civ. App. 
 
 263 ._202.211 
 
 V. Hardin.ir, 76 Tex. 17.102, 225 
 
 V. Joues, 57 Iowa, 130 
 
 15, 17, 18, 455, 466, 603 
 
 V. Jones, 60 Iowa, 70. 117 
 
 V. Jones, 71 Iowa, 92 117 
 
 V. Wiiimey, 66 Me. 17 244 
 
 Howell V. Harvey, 5 Ark. 270 323 
 
 V. Hough, 46 Kan. 152 46 
 
 V. McDowell, 47 N. J. L. 359 257 
 V. Ripley, 10 Paige, 43._22, 
 
 49, 63, 267, 296, 300, 376 
 Howes «. Davis, 4 Abb. Pr. 71... 591 
 Howlett v. Central Carolina Land 
 & Improv. Co. 56 Fed. 
 
 Rep. 161 123, 124, 345 
 
 V. New York, W. S. & B. 
 R. Co. 14 Abb. N. C. 
 
 328 508 
 
 Hoyle V. Plattsburg & M. R. Co. 
 
 54 N. Y. 314 360, 
 
 407, 492, 503 
 Hoyt V. Stoddard, 2 Allen, 442... 
 
 103, 107, 224 
 0. Thompson, 5 N. Y. 320, 
 19 N. Y. 207, 3 Sandf. 
 416._.50, 114, 142, 168, 173 
 Hubbard v. Camperdown Mills, 25 
 
 S. C. 496 89. 90 
 
 V. Guild, 1 Duer, 662 
 
 61, 308, 315 
 «. Hamilton Bank, 7 Met. 
 
 340 371 
 
 V. Hubbard, 14 Md. 356.... 
 
 239, 243, 354 
 V. New York, N. E. & W. 
 Invest. Co. 14 Fed. Rep. 
 
 675 359 
 
 Hubbell V. Avenue Invest. Co. 
 
 (Iowa) 66 N. W. 85.... 298 
 V. Dana, 9 How. Pr. 424... 
 
 189, 418, 613 
 V. Moulson, 53 N. Y. 228 .. 276 
 7). Syracuse Iron Works, 42 
 
 Hun, 182. 171, 179 
 
 Hudson V. Piets, 11 Paige, 180 ... 
 
 66, 139, 256 
 Hugh V. McRae, Chase Dec. 466.. 
 
 353, 354, 371 
 
 Hughes V. Hall, 5 Munf. 431 147 
 
 p. Hatchett, 55 Ala. 631 
 
 38, 39, 548 
 V. Williams, 6 Ves. Jr. 459. 62 
 Hughitt V. Hayes, 136 N. Y. 163.. 
 
 440, 618 
 Hugonin v. Basely, 13 Ves. Jr. 105 
 
 26, 33, 41, 43, 44, 536, 545 
 Huidekoper v. Hinckley Loco- 
 motive Works, 99 U. S. 
 258, 25 L. ed. 344.. 107, 576 
 
 Huiskamp v. Moline Wagon Co. 
 121 U. S. 310, 30 L. ed. 
 
 971 376, 387 
 
 Hulbert v. Young, 13 How. Pr. 
 
 413 159 
 
 Huling V. Farwell, 33 111. App. 238 631 
 Hull V. Carnley, 11 N. Y. 502.... 150 
 
 v. Caughy, 66 Md. 104 71 
 
 V. Thomas, 3 Edw. Ch. 236 128 
 
 Hulse 1). Wrieht (Ohio) 61 239 
 
 Hulst, Re, 7 Ben. 17 56, 121 
 
 Humphrey v. Hurd, 29 Mich. 44_. 293 
 Humphreys v. Allen, 101 III. 490.. 
 
 117, 474, 525 
 «. Hopkins, 81 Cal. 551, 6 
 L. R. A. 792.... 49, 50, 
 
 110, 112, 135, 168, 414 
 
 Hun v. Cary, 82 N. Y. 70 397 
 
 Hungerford v. Gushing, 8 Wis. 320 15 
 Hunt v. Columbia Ins. Co. 55 Me. 
 
 290... 50, 110-112, 167, 169 
 V. Fields, 9 N. J. Eq. 36... 246 
 D. Jackson, 5 Blatchf. 349.. 110 
 V. Le Grand Roller Skating 
 
 Rink Co. 143 111. 118.. 356 
 «. Wolfe, 2 Daly, 303 ...22, 344 
 Hunter v. Hunter, 4 W". W. & A'B 
 
 (E.)17 60, 61 
 
 V. Peaks, 74 Me. 363 4 
 
 v. Potts. 4 T. R. 182... -109, 164 
 Hupfeld V. Automaton Piano Co. 
 
 66 Fed. Rep. 788 187 
 
 Hurd V. Elizabeth, 41 N. J. L. 1.. 
 
 50, 111, 112, 167, 169 
 Hurlbut V. Marshall, 62 Wis. 590. 354 
 
 Hurn V. Keller, 79 Va. 415 240 
 
 Hursh V. Hursh, 99 Ind. 500.. 267, 280 
 
 Hurt V. Clarke, 56 Ala. 19 387 
 
 Hutchinson v. Brand, 9 N. Y. 208 253 
 V. Green, 6 Fed. Rep. 833.48. 56 
 
 V. Hampton, 1 Mont. 39 588 
 
 V. Massareene, 2Ball&B. 54 336 
 Hutton V. Hey wood, L. R. 9 Ch.229 65 
 V. Lockridge, 27 W. Va. 428 
 
 17, 34, 564 
 Hybart, Re, (N. C.) 25S. E. 963.. 695 
 Hyde v. Lynde, 4 N. Y. 387.. 104, 
 "113, 114, 144, 149, 157, 
 172, 180, 256, 260, 283, 397 
 «. Warden, L. R. 1 Exch. 
 
 Div. 399 61 
 
 Hyde Park Gas Co. v. Kerber, 5 
 
 111. App. 132... 41, 354, 367 
 Hyman v. Kelly, 1 Nev. 179... 63, 
 
 267, 281, 283, 285 
 
 Iddings v. Bruen, 4 Sandf. Ch. 417, 
 223 
 
 22, 23, 47, 66, 149, 154. 336
 
 Ix 
 
 CASES CITED. 
 
 Iglehart v. Bierce, 3G III. 133 
 
 112, 101. 1(J7, 401 
 Illinois C. R. Co. v. Tin rill ("Ca- 
 wdod Patent"), {>4 U. 8. 
 
 695, 24 L. ed. 238 191 
 
 Illinois Trust & Sav. Bank v. First 
 Nat. Bank, 15 Fed. Rep. 
 
 858 - - 432 
 
 V. Pacific R. Co. 99 Cal. 407 
 
 118, 594 
 v. Pacific R. Co. (Cal.) 47 
 
 Pac. GO. 696 
 
 ». Smith, 21 Blatcbf. 275... 202 
 Importers' & T. Nat. Bank v. 
 Peters, 123 N. Y. 272. 
 
 392, 628 
 Ind V. Kidd, 63 L. J. Q. B. 726... 569 
 Ingersoll v. Cooper, 5 Blackf. 426. 
 
 161, 399, 400 
 
 Ingraham v. Geyer, 13 Mass. 146. 165 
 
 Innes «. Latisintr, 7 Paige. 583.319,320 
 
 International & G. N. R. Co. v. 
 
 Herndon (Tex. Civ. 
 
 App.)33S. W. 377.... 573 
 
 V. Ormond, 62 Tex. 274 
 
 518, 520, 565 
 International Improv. Fund v. 
 Greenough, 105 U. S. 
 
 527, 26 L. ed. 1157 
 
 118, 230, 572, 583 
 International Trust Co. v. Ameri- 
 can Loan & T. Co. 
 (Minn.) 65 N. W. 78, 
 Rev'd on Rehearing in 
 
 65 N. W. 632 356. 402 
 
 Interstate Nat. Bank v. O'Dwyer 
 
 (Tex.) 38 S. W. 368-... 698 
 Investment Co. v. Ohio & N. W. 
 
 R. Co. 36 Fed. Rep. 48 524 
 
 Ireland v. Eade, 7 Beav. 55 153 
 
 V. Nichols, 37 How. Pr. 222 552 
 Ireland, Fitzpatrick, v. Eyre, 1 
 
 Hog. 171 129 
 
 Irons V. Manufacturers' Nat. Bank, 
 
 6 Biss. 301.421. 422. 446, 609 
 e. Manufacturers' Nat. Bank, 
 17 Fed. Rep. 308, 27 
 
 Fed. Rep. 591. 443 
 
 Irwin V. Everson, 95 Ala. 64 
 
 308, 334, 335 
 Isham V. Ketchum, 46 Barb. 43... 160 
 Ishmael v. Parker, 13 111. 324.239, 244 
 
 J. 
 
 Jackson v. Cadwell, 1 Cow. 622.157, 260 
 V. DeForest, 14 How. Pr. 81 
 97, 307, 309, 325, 333, 
 
 340, 619 
 e. Garnsey, 16 Johns. 184.. 
 
 157. 260 
 
 Jackson v. Hooper (Ala.) 18 So. 
 
 251 36, 290, 298 
 
 V. Laheu, 114 111. 287, 0-7.. 
 
 121, 122, 339, 416 
 V. McLean, 36 Fed. Rep. 213 359 
 V. Roberts, 31 N. Y. 304.1 15, 391 
 V. Sheldon, 9 Abb. Pr. 127. 
 
 239. 300, 307, 320 
 Jackson Marine Jns. Co., Ee, 4 
 
 Sandf. Ch. 559.. 347 
 
 Jacobs «. Gibson. 9 Neb. 380 
 
 11, 267, 349 
 
 V. Turpin,83Ill. 424 610 
 
 Jacobsous. Allen, 20 Blalchf. 525. 
 
 177 385 
 
 V. Landolt, 73 Wis. 142 ' 
 
 24, 132, 372, 558 
 Jacquin v. Buisson, 11 How. Pr. 
 
 385 308, 317 
 
 Jaflfrey v. Brown, 29 Fed. Rep. 477 
 
 318, 319 
 
 V. Raab, 72 Iowa, 335 588 
 
 James v. James Clement Co. 8 N. 
 
 Y. S. R. 490 184 
 
 James River & K. Co. v. Little- 
 
 john, 18 Graft. 53 35 
 
 Janeway v. Green, 16 Abb. Pr. 215 540 
 Jay, Ex parte, L. R. 9 Ch. 133... 4 
 
 V. DeGroot, 2 Hun, 205 391 
 
 Jay's Case, 6 Abb. Pr. 2y3..._189, 194 
 Jefferys v. Smith, 1 Jac. & W. 298 
 
 61, 306 
 Jeffreys v. Coleman, 20 Fla. 536.. 118 
 
 Jenkins ®. Briant, 7 Sim. 171 234 
 
 «. Hinman, 5 Paige, 309.277,280 
 
 V. Jenkins, 1 Paige, 243 
 
 42, 462, 529 
 
 Jenks V. Horton. 96 Mich. 13 293 
 
 Jenner-Fust v. Needham, L. R. 31 
 Ch. Div. 500, Aff'd L. 
 R. 32 Ch. Div. .')82.293, 294 
 Jennings v. Baddeley, 3 Kay & J. 
 
 78.. 332 
 
 V. Philadelphia & R. R. Co. 
 
 23 Fed. Rep. 569 57, 169 
 
 V. Simpson, 12 Neb. 558 595 
 
 Jerome v. ]\IcCarter, 94 U. S. 737 
 
 24 L. ed. 138 64, 
 
 86, 93, 345, 380, 485, 523, 524 
 Jervis v. White, 6 Ves. Jr. 738, note 33 
 Jessup V. Atlantic & G. R. Co. 3 
 
 Woods, 441 477 
 
 Jewett V. Miller, 10 N. Y. 402.... 389 
 V. Palmer, 7 Johns. Ch. 65 
 
 157, 260 
 V. Valley R. Co. 34 Ohio St. 
 
 601 177 
 
 Johns V. Johns, 23 Ga. 31 
 
 18, 34, 42. 73, 532, 604 
 Johnson, Ex parte, 19 S. C. 492.. 
 
 202, 209, 510
 
 CASES CITED. 
 
 Ixi 
 
 Johnson, Ee, 46 Fed. Rep. 480... 124 
 
 V. Bilker, 38 III. 98 61(5 
 
 V. Cochrane, 91 Hun, 163.- 35 
 
 V. Farnum, 56 Ga. 144 
 
 239. 248, 354 
 V. Gunter, 6 Bush, 524.139, 205 
 V. LHllin, 5 Dill. 65, 103 U. 
 
 S. 800, 26 L. ed. 533.-. 442 
 V. Martin, 1 Thomp. & C. 
 
 504... 58,73-75 
 
 v. Parker, 4 Bush, 149 51 
 
 V. Powers, 21 Neb. 292 
 
 15, 198, 200, 203, 231, 610 
 V. Powers, 13 Fed. Rep. 315, 
 Aff'd 136 U. S. 156, 35 
 
 L. ed. 112 239 
 
 V. Stewart, 41 Ga. 549 139 
 
 V. Tucker, 2 Tenn. Ch. 398 278 
 Johnston v. Charlottesville Nat. 
 
 Bank, 3 Hughes, 657.. 428 
 
 1). Hanner, 3 Lea, 8 71 
 
 ■B. Keener, 23 111. App. 220. 337 
 
 ». Riddle, 70 Ala. 219 296 
 
 Jollet V. Deponthieu, 1 H. Bl. 132, 
 
 note 109 
 
 Jolly t\ Arbuthnot, 4 DeG. & J. 224 154 
 Jones V. Bank of Leadville, 10 
 
 Colo. 464 
 
 26, 36, 354, 371, 603 
 V. Browse, 32 W. Va. 444.. 
 
 125, 184, 417 
 V. Dougherty, 10 Ga. 273... 
 
 34, 73, 250, 462 
 
 V. Graves, 20 Iowa, 596 17 
 
 V. Green, 68 U. S. 1 Wall. 
 
 330, 17 L. ed. 553.. 238, 244 
 V. Kilbrelh, 49 Ohio St. 401 392 
 V. La Touche, 2 Sugden's 
 
 Dec. 671 262 
 
 V. Lisson, 6 Gray, 296 390 
 
 «. Keen, 115 Mass. 170 583 
 
 V. Schael, 45 Minn, 379 
 
 26, 36, 321, 602 
 
 V. Smith, 10 Hare, 71 531 
 
 V. Smith, 40 Fed. Rep. 314. 562 
 
 Jordan t-. Real, 57 Ga. 602 548 
 
 V. Miller. 75 Va. 442. .307, 311 
 V. National Shoe&L. Bank, 
 
 74 N. Y. 467 440 
 
 V. Sharlock, 84 Pa. 366.. 180, 439 
 
 V. Wells, 3 Woods, 527 
 
 183, 185, 194, 209, 213 
 
 Joseph V. Levi, 58 Miss. 843 250 
 
 Joslyn V. Athens Coach & C. Co. 
 
 43 Minn. 534 567 
 
 Jourdan v. Long Island R. Co. 42 
 
 Hun, 657 93 
 
 «. Long Island R. Co. 6 N. 
 
 Y. S. R. 89 389 
 
 Journeay v. Brown, 26 N. J. L. Ill 
 
 71, 243 
 
 Joy V. St. Louis, 138 U. S. 1, 34 L. 
 
 ed. 843 453 
 
 Judd V. Bankers' & M. Teleg. Co. 
 
 31 Fed. Rep. 182 
 
 48, 56, 121, 252 
 T. Bankers' & M. Teleg. Co. 
 
 24 Blatchf. 420 345 
 
 Julliard ^). May, 130 111. 87 413 
 
 Justice V. Kirlin, 17 Ind. 588. 161, 400 
 J. W. D^nn Mfg. Co. v. Parkhurst, 
 
 125 ind. 317... 136 
 
 J. W. French, The, 13 Fed. Rep. 
 
 916 123 
 
 K. 
 
 Kain v. Larkin, 131 N. Y. 300 243 
 
 ®. Smith, 80 N. Y. 458, 
 
 Rev'g 11 Hun, 552 
 
 204, 209-212, 228, 229, 
 
 395. 412, 516 
 
 Kaiser t). Kellar, 21 Iowa, 95 
 
 22, 23, 60, 214 
 Kanaga v. Taylor, 7 Ohio St. 134. 167 
 Kansas & G. S. L. R. Co. v. Dor- 
 
 ough, 72 Tex. 108 516 
 
 Kansas P. R. Co. v. Bayles, 19 
 
 Colo. 348 373 
 
 1). Wood, 24 Kan. 619.. 204, 513 
 Kansas Rolling Mill Co. v. Atchi- 
 son, T. & S. F. R. Co. 
 
 31 Kan. 90 71 
 
 Karn v. Rorer Iron Co. 86 Va. 754 
 
 117, 484, 523, 586 
 Katsch v. Schenck, 18 L. J. Ch. 
 
 N. S. 386 -307-309 
 
 Katz®. Brewington, 71 Md. 79... 307 
 Kean v. Colt, 5 N. J. Eq. 365... 18, 40 
 Kearnev, Ex parte, 20 U. S. 7 
 
 Wheat. 38, 5 L. ed. 391 207 
 
 Kedian v. Hoyt, 33 Hun, 145.. 216, 626 
 Keeler v. Brooklyn Elev. R. Co. 9 
 
 Abb. N. C. 166 465 
 
 Keen v. Breckenridge, 96 Ind. 69 
 125, 153, 159, 183, 184. 
 
 189, 383, 417, 613 
 Keene v. Gaehle, 56 Tex. 343... 
 
 204, 229 
 
 V. Snowden, 56 Me. 343 195 
 
 Keeney v. Home Ins. Co. 71 N. Y. 
 
 396 ...26, 142, 145, 337 
 
 Keep V. Michigan L. S. R. Co. 6 
 
 Chicago L. N. 101 
 
 270, 273. 359 
 Kehler v. Jack Mfg. Co. 55 Ga. 
 
 639 239 
 
 Kcllett«, Ralhbun, 4 Paige, 110.. 215 
 Kelly V. Alabama & G. R. Co. 58 
 
 Ala. 489. 
 
 272. 361, 453, 457, 463
 
 Ixii 
 
 CASES CITED. 
 
 Kelly p. Crapo, 45 N. Y. 86 
 
 110, 167. 168 
 V. Green Bay & M. R. Co. 5 
 
 Feci. Rep. 846 498 
 
 V. Rutledge, 8 Ir. Eq. 238-- 29 
 Kellopg v_ Culler, 47 Wis. 649 ... 251 
 Kenedy v. Benson, 54 Fed. Rep. 
 
 836 161 
 
 Kennebec & P. R. Co. v. Portland 
 
 & R. R. Co. 54 Me. 181 114 
 Kennedy v. Cresweli, 101 U. S. 
 
 641, 25L. ed. 1075 240 
 
 V. Gibson, 75 U. S. 8 Wall. 
 
 498, 19 L. ed.476 
 
 88, 155, 382, 399, 401. 
 411, 423, 424, 426, 427, 
 
 429, 434-438, 443 
 V. Indianapolis, C. & L. R. 
 Co. 3 Fed. Rep. 99.... 
 
 127, 183, 190, 191 
 V. St. Paul & P. R. Co. 2 
 Dill. 448, 5 Dill. 519... 
 
 39, 86, 381, 475, 523 
 
 «. Thorp, 51 N. Y. 174 
 
 115, 256, 260 
 Kennesaw Mills Co. v. Walker, 19 
 
 S. C. 104 251 
 
 Kenney v. Ranney, 96 Mich. 617. 
 
 183, 189, 202, 622 
 Keokuk N. L. Packet Co. v. Dav- 
 idson, 13 Mo. App. 561 
 
 66, 85, 372, 567 
 Kerchner v. Fairley, 80 N. C. 24 
 
 267, 276, 281, 289 
 
 Kerlin v. Ewen, 149 Pa. 58. 585 
 
 Kerr v. Brandon, 84 N. C. 128 61 
 
 «. Little, 39 N. J. Eq. 83... 95 
 V. Little, 42 N. J. Eq. 538.. 226 
 
 V. Porter, 6 Gill, 404 308, 309 
 
 ®. White, 7 Baxt. 294 54 
 
 Kershaw v. IMatthews, 2 Russ. 62. 322 
 Ketchum v. Durkee, 1 Barb. Ch. 
 
 480 249 
 
 V. Ketchum, 1 Abb. Pr. N.S. 
 
 157 160 
 
 Keyser®. Hitz, 57 N. Y. 339 437 
 
 V. Hitz, 133 U. S. 138, 33 L. 
 
 ed. 531 441, 443 
 
 Kilbourne v. Fay, 29 Ohio St. 264 
 
 261. 407 
 Kilbreth v. Root, 33 W. Va. 600.. 308 
 
 Kildare v. Eustace, 1 Vern. 419 147 
 
 Kilgore v. Hair, 19 S. C. 486 61 
 
 Killmer v. Hobart, 8 Abb. N. C. 
 
 426 122 
 
 ». Hobart, 58 How. Pr. 452 
 
 50, 112, 134, 168 
 Kimball v. Gafford, 78 Iowa, 65.. 392 
 V. Goodburn, 32 Mich. 10.. 
 
 26, 354, 371 
 V. Lee, 40 N. J. Eq. 403.. 88, 572 
 
 Kincaid v. Dwindle, 59 N. Y. 553 374 
 Kingi). Armstrong, 50 Ohio St. 222 440 
 V. Barnes, 51 Hun, 550.310, 347 
 V. Cutts, 24 Wis. 627... 22, 
 
 153, 161, 162, 399, 400, 410 
 
 V. Donnelly, 5 Paitre, 46 544 
 
 V. Goodwin, 130 IlT. 102... 376 
 
 V. Gunnison. 4 Pa. 171 100 
 
 V. King, 6 Ves. Jr. 172.... 547 
 V. Ohio & M. R. Co. 7 Biss. 
 
 529 128 
 
 D. Wooten, 54 Fed. Rep. 612, 
 
 2 U. S. App. 651 ..122, 137 
 Kingsley v. First Nat. Bank, 31 
 
 Hun, 329 407 
 
 Kinney v. Crocker, 18 Wis. 74.57, 
 125, 130, 188, 190, 191, 
 209, 418, 511, 521, 613, 615 
 
 V. Paine, 68 Miss. 258 392 
 
 Kinsela v. Cataract City Bank, 18 
 
 N. J. Eq. 159 392, 624 
 
 Kipp V. Hanna, 2 Bland, Ch. 28. 44 
 Kipper «. Glancey, 2 Blackf. 356. 247 
 Kirby v. Ingersoll,l Dougl. (Mich.) 
 
 477 -307, 315, 316, 332 
 
 ■». Kirby, 1 Paige, 261 552 
 
 V. Schoonmaker, 3 Barb. Ch. 
 
 46.. 315 
 
 Kirchner v. Fairley, 80 N. C. 24.. 358 
 Kirkpatrick v. Corning, 37 N. J. 
 
 Eq. 54 196 
 
 V. Corning, 38 N. J. Eq. 234 337 
 V. McElroy, 41 N. .J. Eq. 
 
 539 51, 317, 318 
 
 Kitchen v. St. Louis. K. C, & N. 
 
 R. Co. 69 Mo. 324.-408,503 
 Kittanning Ins. Co., He, 146 Pa. 
 
 102 355 371 
 
 Klebisch». Seidlerrs? K Y.' S. R. 
 
 503 229 
 
 Klee ». E. h' Ste'e"le'CoV"(Minn.) 
 
 62 N. W. 399 356 
 
 Klein v. Jewett, 26 N. J. Eq. 474. 
 202, 209, 211-313, 395, 
 
 509, 516 
 Kneeland v. American Loan & T. 
 Co. 136 U. S. 89, 34 L. 
 
 ed. 379 51, 95, 151, 
 
 217, 221. 226, 371,372, 
 393. 481, 484, 487, 491, 
 493, 496, 497, 523, 576, 580 
 V. Bass Foundry & Mach. 
 Works, 140 U. S. 592, 
 
 35 L. ed. 543 
 
 95, 203, 217, 577, 578 
 V. Luce, 141 U. S. 491, 35 L. 
 
 ed. 830- -.117, 523, 525, 578 
 Knight V. Duplessis, 1 Ves. Sr. 
 
 334 539 
 
 V. Duplessis, 3 Ves. Sr. 360. 
 
 43, 274, 284
 
 CASES CITED. 
 
 Ixiii 
 
 Knight V. Knight, 3 P. Wms. 331. 64 
 V. Lord Plymouth, 3 Atk. 
 
 480 301. 204, 218 
 
 V. Plymouth, 1 Dick. 120... 391 
 
 V. Nash, 22 Minn. 452 70 
 
 Kniffhton v. Young, 22 Md. 359.. 32 
 Kuolie V. Baldridge, 73 Ind. 54-.. 338 
 Knott V. Morris Canal & Bkg. Co. 
 
 4 N. J. Eq. 423 84 
 
 Knowles v. Clayton, 3 L. J. Ch. 
 
 181 550 
 
 V. Scott.'ei'fi" t"'n." S. 135 229 
 Koehler v. Black River Falls Iron 
 Co. 67 U. S. 2 Black, 
 
 715, 17 L. ed. 339 360 
 
 Koontz V. Northern Bank, 83 U. 
 S. 16 Wall. 196, 21 L. 
 
 ed. 465 100, 625, 633 
 
 Kortright v. Cady, 21 N. Y. 366.. 276 
 Kounze v. Omaha Hotel Co. 107 
 U. S. 378, 27 L. ed. 610 
 
 276, 281, 289 
 Kreisle v. Campbell (Tex.) 33 S. 
 
 W. 852 187 
 
 Krippendorf v. Hyde, 110 U. S. 
 
 276, 28 L. ed. 145 123 
 
 Kron V. Dennis, 90 N. C. 327 552 
 
 ?j. Smith, 96 N. C. 386 66 
 
 Kronbergw. Elder, 18 Kan. 150.. 
 
 50, 110, 112 
 Kuhl V. Martin, 26 N. J. Eq. 60.. 263 
 
 La Chaise v. Lord, 1 Abb. Pr. 213. 319 
 V. Lord, 10 How. Pr. 461.. 239 
 Lacombe v. Millikin, 36 La. Ann. 
 
 367.. 387 
 
 Ladd v. Harvey, 21 N. H. 514... 
 
 355, 545, 603 
 Ladue v. Detroit & M. R. Co. 13 
 
 Mich. 380.283, 293, 460, 469 
 La Follett«. Aiken, 36 Ind. 1_.156, 180 
 Lake v. De Lambert, 4 Ves. Jr. 
 
 593 539 
 
 Lake Superior Iron Co. v. Brown, 
 
 44 Fed. Rep. 539 345 
 
 Lamar Ins. Co. v. Gulick, 103 111. 
 
 41 ...117, 175,403, 405 
 
 Lamb v. Ewing, 54 Fed. Rep. 273. 127 
 Lammon ■». Giles, 3 Wash. Terr. 
 
 117 15, 291, 588.603 
 
 Lamphear v. Buckingham, 33 
 
 Conn. 238 209,229, 511 
 
 Lancashire v. Lancashire, 9 Beav. 
 
 120 43 
 
 Land Financiers' Asso. Re, L. R. 
 
 10 Ch. Div. 269 560 
 
 Lane« Capscy, 3 Ch. 411.156, 184, 185 
 V. Cotton, 1 Ld. Raym. 646. 211 
 
 Lane v. Jilacon & A. R. Co. 96 Ga. 
 
 630... 237 
 
 V. Morris, 8 Ga. 468 177 
 
 V. Sterne, 3 Giff. 629 ...121, 128 
 
 Lane's Appeal, 105 Pa. 49 362 
 
 Lanfear ». Summer, 17 Mass. 110. 500 
 Langdon v. Lockelt, 6 Ala. 737... 137 
 V. Vermont & C. R. Co. 53 
 
 Vt. 328 525 
 
 V. Vermont & C. R. Co. 54 
 
 Vt. 593 355, 503, 619 
 
 Langford, Me, 57 Fed. Rep. 570_. 133 
 V. Langford, 5 L. J. Ch. N. 
 
 S. 60 128, 147, 295, 417 
 
 Langham Skating Rink Co., Re, 
 
 L. R. 6 Ch. Div. 102.. 25 
 
 Langley v. Hawk, 5 Madd. 46 531 
 
 Langstaff v. Fenwick, 10 Ves. Jr. 
 
 405 299 
 
 Lanier -v. Gayoso Sav. Inst. 9 
 
 Heisk. 506 138, 180 
 
 Lansing v. Lansing, 45 Barb. 182. 215 
 Largan v. Bowen, 1 Sch. & Lef. 
 
 296 560 
 
 La Societe Francaise v. 15th Judi- 
 cial Dist. Ct. 53 Cal. 
 
 495 11, 12, 343, 
 
 344, 346, 347, 352, 371, 495 
 Latham v. Chaffee, 7 Fed. Rep. 525 13 
 Lathrop v. Knapp, 37 Wis. 215.. 
 
 401, 403 
 V. Knapp, 37 Wis. 307.153, 155 
 Laughlin v. United States Rolling- 
 Stock Co. 64 Fed. Rep. 
 
 25.. 388, 525 
 
 Laurel Springs Land Co. v. Foug- 
 
 eray, 50 N. J. Eq. 756. 367 
 Law V. Ford, 2 Paige, 210.306- 
 
 308, 314, 317, 325, 331. 333 
 V. Garrett, L. R. 8 Ch. Div. 
 
 26 ...310, 330 
 
 V. Mills, 18 Pa. 185... .110, 111 
 Lawrence v. Bank of the Repub- 
 lic. 35 N. Y. 320 259 
 
 V. Greenwich F. Ins. Co. 1 
 
 Paige, 587.352, 353, 362, 465 
 V. Nelson, 21 N. Y. 158.... 180 
 Lawrence Iron Works Co. v. Rock- 
 bridge Co. 47 Fed. Rep. 
 
 755 42 
 
 Leach v. Kelsey, 7 Barb. 466. .157, 
 
 260, 406, 408 
 Leadbetter ®. Leadbetter, 135 N. 
 
 Y.290....- 150 
 
 Leadville Coal Co. v. McCreery, 
 141 U. S. 475, 35 L. ed. 
 
 824 344 
 
 Leary v. ShalTer, 79 Ind. 567 302 
 
 Leather Mf rs. Nat. liank v. Cooper, 
 120 U. S. 778, 30 L. ed. 
 816 434
 
 Ixiv 
 
 C'ASEiJ CITED. 
 
 Leathers v. Shiphiiilders' Bank, 40 
 
 Me. 3SG a?;}, 374 
 
 Lcalhes ». Lealhes, Weekly Notes, 
 
 1882. p. 71.._.531. r)41, 545 
 Leavitt v. DcLuunay, 4 Saiulf. Ch. 
 
 '-'81 407 
 
 V. Palmer, 3 N. Y. 19.. 104, 
 
 157. 172, 256, 260 
 V. Yates,4Edw. Ch. 134.18, 
 
 18, 25, 163, 173, 352, 375, 610 
 Lebanon Trust & S. D. Bank's 
 Assigned Estate, Ee, 166 
 
 Pa. 622 302 
 
 Leddell v. iStarr, 19 N. J. Eq. 159 354 
 
 Lee V. Clarv, 38 Mich. 223 271, 283 
 
 Leeds v. Gi'flord, 41 N. J. Eq. 464 301 
 Leeming, Be, 20 L. J. Ch. N. S. 
 
 550 .- 37 
 
 Lehigh Coal & Nav. Co. v. Central 
 
 R. Co. 43 Hun, 546 
 
 346, 352. 353, 363 
 V. Central R. Co. 29 N. J. 
 
 Eq.252 481 
 
 V. Central R. Co. 41 N. J. 
 
 Eq. 167, 35 N. J. Eq. 
 
 426, 38 N. J. Eq. 175.. 
 
 84. 95, 101, 185, 197, 
 
 205, 226, 373, 502, 613, 619 
 
 Lehman v. McQuowu, 31 Fed. 
 
 Kep. 138 594 
 
 V. Tallaha,ssee Mfs:. Co. 64 
 Ala. 567-. 267,^272, 276, 
 
 280, 359 
 Leifchild's Case, L. R. 1 Eq. 231. 
 
 114, 157 
 Leighton v. Harwood, 111 Mass. 67 622 
 Lei'tch V. Hollister, 4 N. Y. 211 .. 250 
 L'Engle v. Florida C. R. Co. 14 
 
 Fla. 266... .118. 561 
 
 Lenoir v. Linville Improv. Co. 117 
 
 N. C. 471 - .354, 394 
 
 Lenox v. Notrebe, Hempst. 225.. 
 
 10, 13. 18, 43 
 Lent V. McQueen, 15 How. Pr. 313 247 
 Leniz V. Flint & P. M. R. Co. 53 
 
 Mich. 444.. 138, 149 
 
 Leonard v. Brooklyn, 71 N. Y. 498 454 
 
 V. blorrs, 31 Ala. 488 
 
 161, 162. 399, 400 
 v. Wallace, 44 N. Y. 294... 142 
 V. Whaley, 91 Hun, 304 ... 551 
 LeRoy v. IJogers, 3 Paiu;e. 237 ... 147 
 Leslie v. Goodhue, 69 Hun, 71 ... 99 
 Levenson v. ELson, 88 N. C. 184.13, 43 
 Levi V. Columbia L. Ins. Co. 1 
 
 Fed. Rep. 206.... 123 
 
 V. Karrick, 13 Iowa, 344 45 
 
 V. Karrick, 15 Iowa, 444... 564 
 
 Levy V. Cavauagh, 2 Bosw. 100 .. 49 
 
 V. Ely, 15 How. Pr. 3v.5 ... 239 
 
 Lewis V. Adams, 70 Cal. 403... 50, 135 
 
 Lewis V. Campau, 14 Mich. 458... 70 
 V. Gnmiiard, 17 N. J. Eq. 
 
 425 167 
 
 ®. Lanphere, 79 111. 187 242 
 
 V. Lewis, 20 Mo. App. 546. 564 
 V. Rol)eri8on, 13 Smedes & 
 
 M. 558 403 
 
 V. Singleton, 61 Ga. 161 47 
 
 Lewis's Petition, lie, 52 Kan. 660. 
 
 41, 362 
 Lewis & F. Mfg. Co.. Re, 34 N.Y. 
 
 Sunp. 983 52 
 
 Lexington Life, F. & M. Ins. (!o. 
 
 ». Page, 17 B. Mon. 412 403 
 Lloyd, He, L. R. 12 Ch. Div. 447. 61 
 V. Passingham, 16 Ves. Jr. 
 59.... 14, 33,41, 43,44. 
 64. 264, 274, 284, 348, 537 
 t). Trimleston, 2 Moll. 78... 44 
 Libby v. Rosekrans, 55 Barb. 202. 
 
 4, 100, 114, 375, 377 
 Liberty Female Collesje Asso. v. 
 
 VVatkins, 70 Mo. 13 ... 177 
 Lichtenstein v. Dial, 68 Miss. 54.. 582 
 Life Asso. of America, lie, 96 Mo. 
 
 63o 272 
 
 V. Rundle ("Relfe v. Run- 
 die"), 103 U. S. 222, 26 
 
 L. ed. 337 170, 412 
 
 Liggett v. Glenn, 4 U. S. App. 438, 
 
 51 Fed. Rep. 381 
 
 48, 56, 345, 404 
 
 Lilly ». Dunn, 96 Ind. 220 296 
 
 Lincoln v. Filch, 42 Me. 256, 456. 
 
 138, 376 
 Lindsay v. American Mortg. Co. 97 
 
 Ala. 411 10, 293, 604 
 
 V. Jackson, 2 Paige, 581 ... 180 
 Lionberger v. Broadway Sav. Bank, 
 
 10 Mo. App. 499 404 
 
 V. Rowse, 43 Mo. 67. 388 
 
 Litchfield Bank v. Peck. 29 Conn. 
 
 384... 92, 177, 180, 383, 610 
 Little V. Dusenberry, 46 N. J. L. 
 614.. 184, 192, 193, 209, 
 
 210, 229, 395, 516 
 V. Garahrant, 90 Hun, 404.. 408 
 Littlejohn v. Turner, 73 Wis. 124. 
 
 128, 184 
 Little Rock Waterworks Co. v. 
 Barrett, 103 U. S. 576, 
 
 26L. ed. 523 34 
 
 Little Warrior Coal Co. v. Hooper 
 (Ala.) 2 Am. & Eng. 
 Corp. Cas. N. S.365... 
 
 357, 361 
 Litzenberger «. Jarvis Conkling 
 Trust Co. 8 Utah, 15.. 
 
 483. 568. 573 
 Livermore v. Bainbridge, 49 N. Y. 
 
 130 234
 
 CASES CITED. 
 
 Ixv 
 
 Livermore w. Camden County 
 
 Chosen Freeholders, 29 
 
 N. J. L. 24', 210 
 
 Livingston v. Bank of New York, 
 
 5 Abb Pr. 338. 370 
 
 ■V. Cleaveland, 5 How. Pr. 
 
 396- 252, 253 
 
 V. Peltitrrew, 7 Lans. 405 .. 202 
 Loaiza v. San Francisco Super. Ct. 
 
 85 Cal. 11, 9 L. R. A. 37 
 
 126, 355 
 Locke V. Covert, 42 Hnn, 484. .203, 219 
 Lockey, He, 1 Pliill. Ch. 508, 14 L. 
 
 J. Cb. N. S. 164 79 
 
 Lockhart v. Gee, 3 Tenn. Ch. 332. 70 
 Lofsky V. Monjer, 3 Saudf. Ch. 69 
 
 267, 296, 301 
 Log V. Bean, L. R. 26 Ch. Div. 306 131 
 
 Logan V. Logan, 22 Fla. 561 247 
 
 V. McCall Pub. Co. 140 N. 
 
 Y. 447 263 
 
 London & M. Bank, Be, L. R. 6 
 
 Ch. App. 206 120 
 
 London & S. W. Bank v. Facey, 
 
 19 Week. Rep. 676, 24 
 
 L. T. N. S. 126 17 
 
 Long V. Forest, 150 Pa. 413, 23 L. 
 
 R. A. 33 ..170, 413 
 
 V. Majfstre, 1 Johns. Ch. 
 
 3i5-.. 268 
 
 V. San Francisco Super. Ct. 
 
 102 Cal. 449 '. 357 
 
 Long Dock Co. v. Mallery, 12 N. 
 
 J. Eq. 431-. ..358, 461 
 
 Longshore Priming & Pub. Co. v. 
 
 Howell (Or.) 28 L.R. A. 
 
 464 132 
 
 Lonsdale v. Church, 3 Brace, 41.. 315 
 Loomis V. McKenzie, 31 Iowa, 425 
 
 306, 308, 334 
 
 Loos, Be, 50 Hun, 67 184, 417 
 
 V. Wilkinson, HON. Y. 195, 
 
 1 L. R. A. 250. 259 
 
 Lorch V. Aultman, 75 Ind. 162... 
 
 25, 101, 126, 137 
 Lore V. Dlerkes, 16 Abb. N. C. 47 259 
 
 Losconibe v. Russell, 4 Sim. 11 334 
 
 Loltimer v. Lord, 4 E. D. Smith, 
 
 183 4, 11, 22, 
 
 73, 74, 89, 125, 258, 307, 321 
 Louisiana Nat. Bank v. Whitney, 
 
 121 U. S. 284. 30 L. ed. 
 
 961 118 
 
 Louisiana Sav. Bank & S. D. Co., 
 
 Be, 35 La. Ann. 196... 465 
 Louis Snyder's Sons Co. ®. Arm- 
 strong, 37 Fed. Rep. 18 
 
 384, 440 
 Loui.sville & St. L. R. Co. v. South- 
 worth, 38 111. App. 225 
 
 69, 589 
 
 B 
 
 Louisville Bkg. Co. v. Paine, 67 
 
 Miss. 678. 392 
 
 Louisville, E. & St. L. R. Co. v 
 
 Wilson, 138 U. S. 501, 
 
 34 L. ed. 1023.. 
 
 201. 205, 572, 579 
 Louisville, N. A. & C. R. Co. v. 
 
 Cauble, 46 Ind. 277 
 
 204, 513, 516 
 Louisville Nat. Bank v. Loving, 82 
 
 Ky. 370 397 
 
 Louisville Water Co. v. Hamilton. 
 
 81 Ky. 517 454 
 
 Loveday v. D'Esterre, 1 Hayes & 
 
 J. 151 28 
 
 Lovenson v. Elson, 88 N. C. 183.. 544 
 Lovettw. Slocumb, 109 N. C. 110. 13 
 Low V. Buchanan, 94 111. 81 
 
 50, 173, 174, 179, 385', 405 
 
 V. Burrows, 13 Cal. 188 135 
 
 V. Holmes, 17 N. J. Eq. 148 550 
 
 Lowe V. Pioneer Threshing Co. 70 
 
 Fed. Rep. 646 354 
 
 V. Stephens, 66 Ga. 607.597, 600 
 
 Lowells. Doe, 44 Minn. 144 
 
 11, 295, 349, 358 
 Lowenstein v. Finney, 54 Ark. 124 67 
 Lowry v. Hall, 2 Watts & S. 129.. Ill 
 
 V. Smith, 9 Hun, 514 101 
 
 Low Street Bldg. Asso. No. 6 v. 
 
 Zucker. 48 Md. 448 556 
 
 Lucas V. Harris, L. R. 18 Q. B. 
 Div. 127, 56 L. J. Q. B. 
 N. S. 15,55L. T. 685.- 
 
 15, 18, 45 
 Ludgater v. Channel!, 15 Sim. 479, 
 
 3Macn. &G 175 
 
 77. 78, 234, 606 
 Lund V. SkanesEnskildaBank, 96 
 
 111. 181 406 
 
 Luudy Granite Co., Be, L. R. 6 
 
 Ch. 463 .233, 497 
 
 Lupton V. Stephenson, 11 Ir. Eq. 
 
 484.. 59, 60 
 
 Lusk V. Hastings, 1 Hill, 656 91 
 
 Lutt «. Grimont, 17 111. App. 308. 
 
 85, 533, 541 
 Lycoming F. Ins. Co. v. Langley, 
 
 63 Md. 211 !;390, 414 
 
 V. Wright, 55 Vt. 526 
 
 51, 111, 112, 167, 369, 413 
 Lyman v. Central Vermont R. Co. 
 
 59 Vt. 167 
 
 125. 188, 190, 203, 209, 
 229, 395, 418, 510, 521, 614 
 Lyme v. Lockwood, 2 Moll. 498.. 03 
 Lynch v. Johnson, 48 N. Y. 27... 
 
 240, 241, 251 
 Lynde v. McGregor, 13 Allen, 173 407
 
 Ixvi 
 
 CASES CITED 
 
 M. 
 
 Mabry v. Harrison, 44 Tex. 286.. 593 
 
 ». Ross. 1 IIei.sk. 709 70 
 
 McAlpin V. Jones, 10 La. Ann. 552 
 
 50. Ill, 112, lU, 167 
 McArdle v. Barney, 50 How. Pr. 
 
 97 - -. 564 
 
 McArthur v. Montclair R. Co. 27 
 
 N. J. Eq. 77 580, 591 
 
 McCann®. Randall, 147 Mass. 81. 146 
 McCarthy v. Lavasche, 89 111. 270 
 
 175. 178, 385, 405 
 V. Peake, 9 Abb. Pr. 164, 18 
 
 How. Pr. 138 15, 
 
 16, 18, 33, 48, 56, 466, 599 
 Macartney v. Walsh, Hayes, 29 
 
 note 93, 382 
 
 McCarty v. Stanwix, 16 Misc. 132. 310 
 McCarty's Appeal, 110 Pa. 379__. 
 
 115, 172, 397 
 
 McCaslin v. State, 44 Ind. 151 548 
 
 McCay«. Black, 14 Phila. 635 .. 
 
 202 205 
 McClure v. Campbell. 71 Wis. 350 
 
 50, 11], 112, 167 
 
 V. McLane, 39 Tex. 81 100 
 
 McCombs V. Mcrryhew, 40 Mich. 
 
 721 119 
 
 McConnel v. Dickson, 43 111. 109.. 
 
 244, 248 
 McConnell v. Scott. 15 Ohio, 401. 353 
 McCord V. Weil, 33 Neb. 868, 29 
 
 Neb. 682 28, 42, 70 
 
 McCormick v. Hadden. 37 111. 370. 500 
 McCosker v. Brady, 1 Barb. Ch. 
 
 329 562 
 
 McCracken v. Ware, 3 Sandf. 688. 
 
 306, 307. 334 
 McCrasker v. Brady, 1 Barb. Ch. 
 
 329 544 
 
 Macready v. Schenck, 41 La. Ann. 
 
 456 79 
 
 McCulloch V. Norwood, 58 N. Y. 
 562, Modifying 4 Jones 
 
 & S. 180 196, 374 
 
 McCullough V. Clark, 41 Cal. 298. 251 
 V. Merchants Loan & T. Co. 
 
 29 N. J. Eq. 217.. ..61, 562 
 McDermott v. Clary, 107 Mass. 501 207 
 McDermutt ». Strong, 4 Johns. Ch. 
 
 687.. ..237, 244 
 
 McDonald v. Dougherty, 11 Ga. 
 
 570 73 
 
 V. RossLewin, 29 Hun, 87. 
 
 309, 385 
 V. Trojan, 56 Hun, 648, 
 
 (mem.) 336 
 
 V. Webster, 2 Mass. 498 384 
 
 McDonough v. Phelps, 15 How. 
 
 Pr. 372 404 
 
 McDougald v. Dougherty, 11 Ga. 
 
 586 462 
 
 McDowell V. Cochran, 11 HI. 31.. 
 
 238. 244, 246, 247 
 McElvey v. Lewis. 76 N. Y. 373.. 
 
 307, 331 
 McElwain v. Willis, 9 AVcnd. 548. 
 
 238, 248, 252 
 McEvers v. Lawrence, Hoffm. Ch. 
 
 172. 195 
 
 McGean v. Metropolitan Elev. R. 
 
 Co. 133 N. Y. 9 46 
 
 McGee v. Cowperthwaite, 10 Ala. 
 
 966 - 932 
 
 McGeorge «. Big Slone Gap Im- 
 
 prov. Co. 57 Fed. Rep. 
 
 262.. 344.348,349, 366 
 
 McGoldrick v. Slevin, 43 Ind. 522. 
 
 239, 354 
 McGowan v. Myers, 66 Iowa, 99.. 
 
 122, 339, 416 
 McGuin V. Fretts, 13 Ont. Rep. 
 
 699_ 160 
 
 McHenry v. New York, P. & O. R. 
 
 Co. 25 Fed. Rep. 114.. 268 
 Mcllhenny ®. Binz. 80 Tex. 1 
 
 95,99.354,371,389,478, 
 
 482, 483, 577 
 Mcllrath v. Snure, 22 Minn. 391.. 
 
 148, 383 
 Mcintosh V. Elliott, 2 Grant Ch. 
 
 396... 234 
 
 V. Perkins. 13 Mont. 143... 335 
 Mack ».DeBardeleben Coal & I. Co. 
 
 90 Ala. 396, 9 L. R. A. 
 
 650 365 
 
 McKaig V. James, 66 Md. 583.255, 537 
 
 Miickie V. Cairns, 5 Cow. 547 250 
 
 McKellar ». Rogers, 20 Jones & S. 
 
 360 286 
 
 McKinney v. Ohio & M. R. Co. 22 
 
 Ind. 99 204, 512 
 
 McKinnon v. Wolfenden, 78 Wis. 
 
 237 .. 118 
 
 McLain v. Wallace, 103 Ind. 562. 392 
 McLane v. Placerville & S. V. R. 
 
 Co. 66 Cal. 606. _ 95, 96, 
 
 459, 462, 465, 483. 489, 
 
 491, 502 
 McLaren v. Milwaukee First Nat. 
 
 Bank, 76 Wis. 259.. 376, 387 
 McLean v. Lafayette Bank, 3 Mc- 
 Lean, 503 17, 467 
 
 V. Presley, 56 Ala. 211 278 
 
 McLean County Precinct v. De- 
 posit Bank, 81 Ky. 254. 246 
 McLeod V. Evans, 66 Wis. 401... 628 
 McMahon v. Allen, 35 N. Y. 403. 407 
 V. McClernan, 10 W. Va. 
 
 419 ..-.312, 340 
 
 V. Macy, 51 N. Y. 155 444
 
 CASES CITED. 
 
 Ixvii 
 
 McMabon v. North Kent Iron- 
 works Co. [1891] 2 Ch. 
 148 41 
 
 McMasters v. Campbell, 41 Mich. 
 
 513 --- 409 
 
 McMillan v. Richards, 9 Cal. 410. 292 
 McMinnville & M. R. Co. v. Hug- 
 gins, 7 Coldw. 217 70 
 
 V. Huggins, 3 Baxt. 177 
 
 104, 105, 107, 388. 508 
 
 McNab«. Heald, 41 111. 326 244 
 
 McNair v. Pope, 96 N. C. 502. ..42, 43 
 McNairy v. Eastland, 10 Yerg. 
 
 310 245 
 
 i). Pope, 96 N. C. 502 13 
 
 McNeil V. Colquhoon, 2 Hayw. 
 
 (N. C.)24 105 
 
 McNulta V. Ensch, 134 111. 46.. 
 
 396, 516 
 V. Lochridge, 141 U. S. 327, 
 
 35 L. ed. 796 187, 
 
 192, 195, 395 
 V. Lockridge, 137 111. 270, 
 Aff'g 32 111. App. 36, 
 Aff'd 141 U. S. 327, 35 
 
 L. ed.796 192,203. 
 
 396, 516, 522 
 .^laders v. Whallon, 74 Hun, 372-. 
 
 241, 242 
 Madgwick t). Wimble, 6 Beav. 495. 
 
 305, 308 
 Magan v. Fallan. 5 Ir. Eq. 490 ... . 234 
 Magee v. Cowperthwaite, 10 Ala. 
 
 966 118, 584 
 
 Magrath v. Veitch, 1 Hog. 110 53 
 
 Maguire v. Allen, 1 Ball. & B. 75. 
 
 17, 19, 465 
 Mahon v. Crothers, 28 N.J. Eq. 
 
 567 ..279, 358 
 
 Maiders v. Culver, 1 Duv. 164 408 
 
 Main v. Ginthart, 92 Ind. 180 302 
 
 Maish v. Bird, 59 Iowa, 307 17, 296 
 
 Makins v. Ibotson [1891] 1 Ch. 
 130, 60 L. J. Ch. 164, 
 
 63L. T. 515 26, 96, 358 
 
 Malaney v. Atkins, 1 Lack. L. 
 
 News, 252 184 
 
 Malcolm v. ISIontgomery, 2 Moll. 
 
 500 28 
 
 Malone v. Buice, 60 Ga. 152 545 
 
 Mallory, lie, 18 N. Y. S. R. 88... 125 
 V. Craige, 15 N. J. Eq. 73. . 240 
 Manchester v. McKee, 9 111. 511.. 244 
 V. Parkinson, 58 L. J. Q. B. 
 
 262 44 
 
 V. Tibhitts, 121 N. Y. 223.. 150 
 Manchester & L. Dist. Bkg. Co. v. 
 Parkinson, L. R. 22 Q. 
 
 B. Div. 173 238 
 
 Manchester & M. R. Co., Be, L. 
 
 R. 14 Ch. Div. 645.... 363 
 
 Manchester Locomotive Works v. 
 Truesdale, 44Minn. 115, 
 
 9 L. R. A. 140 227, 
 
 484, 499 
 Mandeville ■». Avery, 20 N. Y. S. 
 
 R. 801. 259 
 
 V. Avery, 124 N. Y. 376... 
 
 173, 259, 375, 410 
 Manley v. Rassiga, 13 Hun, 288.. 
 
 22, 92, 114, 252, 259, 375 
 Manlove v. Burger, 38 Ind. 211 _. 
 153, 154. 158, 161, 162, 
 391, 396, 399. 400, 611, 625 
 
 V. Naw, 39 Ind. 289 158 
 
 V. Naylor, 38 Ind. 424 158 
 
 Mann v. Bruce, 5 N. J. Eq. 413.. 162 
 
 V.Cooke, 20 Conn. 178 404 
 
 V. Currie, 2 Barb. 294.. 174, 386 
 V. Pentz, 3 N. Y. 415, Ov. 2 
 Sandf. Ch. 257.... 47, 
 65, 74. 114, 116. 141, 
 
 144, 176, 259, 336, 403 
 V. Poole (S. C.) 26 S. E. 229. 696 
 
 V. Stcnnett, 8 Beav. 180 79 
 
 Manners v. Furzee, 11 Beav. 30.. 73 
 Manning v. Evans, 19 Hun, 500.. 143 
 V. Manning, 1 Johns. Ch. 
 
 527 203, 215 
 
 V. Monaghan, 1 Bosw. 459, 
 
 23 N. Y. 539 202 
 
 Manufacturers' Nat. Bank, Be, 5 
 
 Biss. 506. 155 
 
 V. Baack, 8 Blatchf. 137... 424 
 Mapes V. Scott, 4 111. App. 
 
 268.. 43 
 
 March v. Eastern R. Co, 40 N. H. 
 
 567 351 
 
 V. Wright, 46 111. 488 500 
 
 Marine & River Phosphate Min. & 
 
 Mfg. Co. V. Bradley, 105 
 
 U. S. 175. 26 L. ed. 
 
 1034 98 
 
 Market Nat. Bank v. Pacific Nat. 
 
 Bank, 102 N. Y. 464.. 173 
 V. Pacific Nat. Bank, 30 
 
 Hun, 50.... 446 
 
 Marr v. Bank of West Tennessee, 
 
 4 Coldw. 471 360 
 
 Marsh v. Sevmour, 97 U. S. 348, 
 
 24 L. ed. 963. 191 
 
 Marshall v. Farmers' & M. Sav. 
 
 Bank, 85 Va. 676, 2 L. 
 
 R. A. 534 408 
 
 V. Lockett, 76 Ga. 289 
 
 24, 46. 121, 129 
 V. Otto, 59 Fed. Rep. 249.. 566 
 Marten v. Van Shaick, 4 Paige, 
 
 479 97, 306-308. 
 
 314, 325, 331, 333, 340, 619 
 Martin v. Atchison, 2 Idaho, 590 
 
 125, 183, 185, 189, 615
 
 Ixviii 
 
 CASES CITED. 
 
 Martiu v. Black, 9 Paisre, 641 
 
 103, 107, 131, 323, 495, 
 
 496, 506 
 
 V. Burgwyn, 88 Ga. 78 
 
 63, 239, 607 
 
 V. Davis, 21 Iowa, 535 
 
 127, 154, 186 
 V. Martin, 14 Or. 165. -.582, 632 
 V. New York, S. & W. K. 
 
 Co. 36 N. J. Eq. 109- - 508 
 
 V. Potter, 11 Gray, 37 111 
 
 V. Smith, 21 Jones & S. 
 
 277..-- 307.331 
 
 V. Tarver, 43 Miss. 517 455 
 
 Marton, Ex parte. 11 Ves. Jr. 397 93 
 
 Mart, The, 22 Abb. N. C. 227 355 
 
 Marvin Safe Co. v. Ward, 46 N. 
 
 J. L. 19 210 
 
 Marvine v. Drexel, 68 Pa. 362-.. 530 
 Marx V. Spauiding, 35 Hun, 478. 254 
 Mason v. Dawson, 15 Misc. 595-- 307 
 V. Equitable League Sup. 
 
 Ct. 77 Md. 483 343, 346 
 
 V. Westoby, L. R. 32 Ch. 
 Div. 206, L. R. 42 Ch. 
 
 Div. 590 277, 300,355 
 
 V. Weston, 29 Ind. 561 251 
 
 Massachusetts Mut. L. Ins. Co. v. 
 Chicago & A. R. Co. 13 
 
 Fed. Rep. 857.- 123 
 
 Massey, Ee, L. R. 9 Eq. 367. 586 
 
 V. Banner, 4 Madd. 416 207 
 
 v. Massey, 1 Cbeves Eq. 159 591 
 Massie v. Watts, 10 U. S. 6 Cranch, 
 
 148, 3 L. ed. 181 147 
 
 Master v. Kirton, 3 Ves. Jr. 75. . 334 
 Mathews «. Neilson, 3Edw. Ch.346 532 
 Mathis V. Pridham, 1 Tex. Civ. 
 
 App. 58 174,384, 399 
 
 Matthews v. Albertson, 24 Md. 527 449 
 V. Cooper, 49 N.Y. S. R. 792 49 
 Mattingly v. Nye, 75 U. S. 8 Wall. 
 
 370, 19L. ed. 380 239 
 
 Maunsell v. Egan, 8 Ir. Eq. 373--. 79 
 May V. First Nat. Bank. 123 111. 551 413 
 V. Greenhill, 80 Ind. 124-.. 
 
 239, 245, 248, 354 
 
 V. May, 11 Paige, 201 102 
 
 V. Printup, 59 Ga. 129_--48, 345 
 Mayer v. Western Car Co. 102 U. 
 
 S. 1, 26 L. ed. 59 -.494, 497 
 Maynard v. Bailey, 2 Nev. 333--. 
 
 17, 18, 604 
 V. Bond, 67 Mo. 315- -25, 49 
 52, 65, 74, 134, 135, 136, 
 141, 147, 148, 373, 373, 
 
 375, 416, 417 
 Mayo V. McPhaul, 71 Ga. 758-... 44 
 Mays V. Rose, 1 Freem. Ch. (Miss.) 
 
 703 -10,13, 
 
 15, 18, 25. 40, 4.1, 264, 348 
 
 Mays V. Wherry, 3 Tenn. Ch. 34-. 45 
 Maysville & L. R. (:!o. v. Puu- 
 
 nelt, 15 B. Hon. 47---- 13 
 Maxwell ». Peters Co. (Ala.) 13 So. 
 
 419 -- 343 
 
 Mead v. Orrery, 3 Atk. 385 73 
 
 Meadow Valley Min. Co. v. Dodds, 
 
 6 Nev. 363- ..13, 71 
 
 Means' Appeal, 85 Pa. 75 
 
 175, 363, 403 
 Meara v. llolbrook, 30 Ohio St. 
 
 137.-195, 303, 309, 213, 
 
 339, 395, 510. 516 
 Mechanics' Bank v. Dakin, 51 N. 
 
 - Y. 519 -- 346 
 
 Mechanics' Nat. Bank v. Lan- 
 
 dauer, 65 Wis. 44 
 
 190, 191, 196, 599 
 Medeker v. Parker, 70 Ind. 509 _ . - . 302 
 Meeker v. Sprague, 5 Wash. 343.- 191 
 Meier v. Kansas P. R. Co. 5 Dill. 
 
 476 -...22, 563 
 
 Meinhard v. Strickland, 29 S. C. 491 239 
 Meisser v. Thompson, 9 111. App. 
 
 368. 405 
 
 Melaney v. Atkins, 4 Pa. Dist. R. 
 
 644 185 
 
 Melendy v. Barbour, 78 Va. 544.. 
 
 118, 135, 137, 153, 184. 
 
 190, 191, 303, 311, 395, 
 
 417, 516, 531 
 Mellan v. Moline Malleable Iron 
 
 Works, 131 U. S. 353, 
 
 33 L. ed. 179- 101 
 
 Melvin v. Robinson, 31 Fed. Rep. 
 
 635. 133, 124 
 
 Memphis & C. R. Co. v. Hoechner, 
 
 67 Fed. Rep. 456 501 
 
 Memphis & L. R. R. Co. v. String- 
 fellow, 44 Ark. 323.214, 516 
 Mercantile Ins. Co. v. Jaynes, 87 
 
 III. 199.. ..374, 386 
 
 Mercantile Invest. & Gen. T. Co. 
 
 ■». River Plate Trust L. 
 
 & A. Co. 3 Ch. 303... . 366 
 Mercantile Trust Co. v. ^Ina Iron 
 
 Works, 4 Ohio C. C. 
 
 579.. 69. 348 
 
 V. Kanawha & O. R. Co. 39 
 
 Fed. Rep. 337 30 
 
 V. Kanawha & O. R. Co. 50 
 
 Fed. Rep. 874 533, 578 
 
 V. Kanawha & O. R. Co. 58 
 
 Fed. Rep. 6 535 
 
 V. Lamoille Valley R. Co. 
 
 16 Blatchf. 834. 57 
 
 V. Missouri, K. & T. R. Co. 
 
 36 Fed. Rep. 231, 1 L. 
 
 R. A. 397 272, 358, 463 
 
 V. Missouri. K. & T. R. Co. 
 
 41 Fed. Rep. 8 63
 
 CASES CITED. 
 
 Ixix 
 
 Mercantile Trust Co. v. Pittsburg 
 & W. R. Co. 29 Fed. 
 
 Kep. 730 85, 196, 476 
 
 V. St. Louis & S. F. R. Co. 
 
 71 Fed. Rep. 601 517 
 
 Mercer v. Houston Guano & W. 
 
 Co. (Ga.) 22 S. E. 638. 42 
 Merchants' & M. Bank v. Griffith, 
 
 10 Paige, .519 564 
 
 Merchants' & M. Nat. Bank v. 
 
 Kent, 43 Mich. 292 
 
 26, 36, 46, 60, 90, 91, 
 
 278, 560, 589, 602 
 Merchants' & P. Line ®. Waganer, 
 
 71 Ala. 581 351, 365 
 
 Merchants" & P. Nat. Bank v. Ma- 
 sonic Hall, 63 Ga. 549, 
 
 65 Ga. 603 48, 344. 421 
 
 Merchants' Bank v. Stevenson, 5 
 
 Allen, 401 178. 385 
 
 Merchants' Ins. Co., Ec, 3 Biss. 162 
 
 25, 48, 57 
 Merchants' Nat. Bank v. Landauer, 
 
 68 Wis. 44, 227 
 
 V. McLeod, 38 Ohio St. 174. 
 50, 51,60,112, 113, 167, 
 
 169, 413, 415 
 V. Northwestern Mfg. & Car 
 
 Co. 48 Minn. 361 
 
 115, 116, 176, 363, 373, 374 
 
 o. Paine, 13 R. I. 593 247 
 
 Meredith Village Sav. Bank v. 
 Simpson, 22 Kan. 414. 
 
 50, 183, 186, 191, 417 
 Meridian News & Pub. Co. v. Diem 
 & W. Paper Co. 70 
 
 Miss. 695. 15, 41, 
 
 97, 603, 604 
 Merrell v. Pemberton, 62 Ga. 29,. 
 
 97, 291, 340 
 Merrick v. Peru Coal Co. 61 111. 472 367 
 
 Merrill, Be, 54 Vt. 200. .184, 190 
 
 V. Commonwealth Mut. F. 
 Ins. Co. (Mass.) 44 N. E. 
 
 144 373 
 
 V. Elam, 2 Tenn. Ch. 513.. 
 
 34, 63, 84, 355 
 
 V. Lake, 16 Ohio, 405 193 
 
 V. Ressler, 37 Minn. 82 259 
 
 Merritt, Be, 5 Paige, 125, Aff'd 16 
 
 Wend. 405 92, 
 
 153, 159. 162, 184, 197, 383 
 «. Gibson, 129 Ind. 155, 15 
 
 L. R. A. 277... 41, 296, 298 
 V. Sawyer, 6 Thonip. & C. 160 257 
 
 V. Seaman, 6 N. Y. 168 440 
 
 Merriwether v. Garrett, 102 U. S. 
 
 472,26 L. ed. 197 246 
 
 Merry v. Freinon, 44 Mo. 518 246 
 
 Mersey Docks & H. Co. v. Gibbs, 
 
 L. li. 1 H. L. HI.. 211, 213 
 
 Mersey R. Co., Be, L. R. 37 Ch. 
 
 Div. 610 57 
 
 Metcalf V. Del Valle, 64 Hun, 245, 
 
 137 N. Y. 545. 259 
 
 Methodist Book Concern v. Hud- 
 son, 1 How. Pr. N. S. 
 
 517 ....253, 254 
 
 Metropolitan Bank, Be, L. R. 2 Ch. 
 
 Div. 366,45 L.J. Ch. 252 120 
 Metropolitan Eiev. R. Co. v. 
 Kneeland,120N.Y. 134, 
 
 8 L. R. A. 253. 367 
 
 Metropolitan Trust Co. v. Tona- 
 wanda, S. & C. R. Co. 
 
 103 N. Y. 245 
 
 193, 197, 473, 475, 478, 489 
 Metz V. Buffalo, C. & P. R. Co. 58 
 
 N. Y. 61 46, 
 
 204, 213, 214, 512 
 
 Metzner v. Bauer, 98 Ind. 425 
 
 51, 113, 167 
 Meyer v. Johnston, 53 Ala. 237... 
 86, 96, 381. 453, 475, 485, 
 
 489,491, 524 
 v. Lexow, 1 App. Div.. 116. 206 
 V. Western Car Co. 102 U. 
 
 S. 1, 26 L. ed. 59 
 
 393, 489, 491 
 Miami Reporting Co. v. Gano, 13 
 
 Ohio, 269 399, 401 
 
 Michoud V. Girod, 45 U. S. 4 How. 
 
 503, 11 L. ed. 1076 359 
 
 Mickles v. Rochester City Bank, 11 
 
 Paige, 118.. 361 
 
 Micklethwaite w. Rhoades,4Sandf. 
 
 Ch.434 41 
 
 Micou V. Moses, 73 Ala. 439.11, 26, 242 
 Middle District Bank, Be, 1 Paige, 
 
 585 ISO, 181 
 
 Middlesex County Freeholders v. 
 State Bank, 28 N.J. Eq. 
 
 166 61 
 
 V. State Bank, 29 N. J. Eq. 
 
 268, 30 N.J. Eq. 311-41, 417 
 Middleton v. Dodswell, 13 Ves. Jr. 
 266, 18 Ves. Jr. 268.... 
 368, 538, 534, 536, 545. 546 
 V. Sherburne, 4 Younge & 
 
 C. 358... 536 
 
 T. Taber (S. C.) 24 S. E. 282 249 
 Midland R. Co. v. Ambergate, N. 
 B. & E. J. R. Co. 10 
 
 Hare, 359 8 
 
 Mikkelson v. Truesdale (Minn.) 65 
 
 N. W. 260 ... 514 
 
 Milbank v. Revett, 2 Meriv. 405.. 
 
 307, 322, 550 
 
 Miller v. Bowles, 58 N. Y. 253.. 3, 18 
 
 V. David.son, 8 111. 518, 242, 244 
 
 V. Franklin Bank, 1 Paige, 
 
 444 440
 
 Ixx 
 
 CASES CITED. 
 
 Miller v. Jones, 39 111. 54... 60. 61, 
 
 122, 307, 308 
 V. Lehman. 87 Ala. 517 .... 12 
 V. Loeb, 64 Barb. 454.-184, 
 
 195, 198 
 V. MacKenzle, 29 N. J. Eq. 
 
 292 115, 171, 242, 251 
 
 V. Miller, 7 Hun, 208 244 
 
 V. Sherry, 69 U. S. 2 Wall. . 
 237. 17 L. ed. 827.. 251, 256 
 
 V. Sliriner. 86 Ind. 493 16 
 
 D. While, 50 N. Y. 137.... 444 
 Milliken v. Anghinhaugh. 1 Penr. 
 
 & W. 117 --. 165 
 
 Millikin v. Barrow, 55 Fed. Rep. 
 
 148 -- 123 
 
 Millis V. Pentelow. 92 Hun, 284 .. 252 
 
 Mills V. Argall, 6 Paige, 577 320 
 
 V. BuUer. 118 U. S. 655, 30 
 
 L. ed. 266 441, 442 
 
 V. Pittman, 11 Paige, 490 .. 43 
 V. Scott, 99 U. S. 25, 25 L. 
 
 ed.294 175, 177, 404 
 
 V. Stewart, 41 N. Y. 384... 177 
 
 Milne v. Moreton, 6 Binn. 353 
 
 110, 113, 165. 500 
 Miltenberger v. Logansport. C. & 
 S. W. R. Co. 106 U. S. 
 286, 27 L. ed. 117.. .86, 
 203, 217, 218, 301, 348, 
 380, 388, 393, 476, 479, 
 483, 491, 493, 495, 497, 
 
 523, 525, 575, 577 
 Milwaukee & M. R. Co. v. How- 
 ard, 131 U. S. Appx. 
 Ixxxi, 18 L. ed. 252... 
 
 268, 349 
 «. Milwaukee & W. R. Co. 
 
 20 Wis. 175 409 
 
 V. Soulier, 69 U. S. 2 Wall. 
 510, 17 L. ed. 900 ..10, 
 12, 118, 198, 268, 275, 
 
 349, 454, 460, 599 
 Milwaukee & St. P. R. Co. v. Mil- 
 waukee & M. R. Co. 20 
 
 Wis. 165.. 56, 345 
 
 Milwaukee Mut. F. Ins. Co. v. 
 Sentinel Co. 81 Wis. 
 207, 15 L. R. A. 627... 374 
 Minchin v. Second Nat. Bank, 36 
 
 N. J. Eq. 436 345 
 
 Miner v. Belle Isle Ice Co. 93 Mich. 
 97,17 L. R. A. 412.... 
 
 359, 362, 367 
 Minkler v. United States Sheep Co. 
 , 4 N. D. 507, 2 Am. & 
 Eng. Corp. Cas. N. S. 
 
 368 44,239, 357 
 
 Minneapolis Baseball Co. v. City 
 Bank (Minn.) 69 N. W. 
 331 697 
 
 Minnesota Thresher Mfg. Co. v. 
 Langdon, 44 Minn. 37. 
 114," 115, 171, 173. 175. 
 176, 362, 373, 374. 403, 
 
 408, 409 
 Minor, Ex parte, 11 Ves. Jr. 554.. 100 
 Minuse v. Cox, 5 Johns. Ch. 447.. 215 
 Mississippi Mills v. Bauman (Tex. 
 
 Civ. App.) 34 S. W. 681 101 
 V. Cohn, 150 U. S. 202, 37 
 
 L. ed. 1052 244 
 
 Missouri, K. & T. R. Co. v. Lacy 
 (Tex. Civ. App.) 35 S. 
 
 W. 505 100 
 
 V. McFadden (Tex.) 33 S. W. 
 
 853 520 
 
 V. Stouer, 5 Tex. Civ. App. 
 
 50_... 233, 513 
 
 v. Wylie (Tex. Civ. App.) 33 
 
 S. W. 771 513 
 
 Missouri P. R. Co. v. Humes, 115 
 
 U. S. 572, 29 L. ed. 463 516 
 V. Texas P. R. Co. 30 Fed. 
 
 Rep. 167. 203. 209, 511 
 
 V. Texas P. R. Co. 41 Fed. 
 
 Rep. 311 183, 195, 
 
 203, 217, 521 
 V. Texas & P. R. Co. 31 Fed. 
 Rep. 862. 28 Am. & Eng. 
 
 R. Cas. 1 233, 507 
 
 V. Texas & P. R. Co. 31 Fed. 
 
 Rep. 864 618 
 
 Mitchel V. Lister, 21 Ont. Rep. 22 330 
 
 Mitchell, Ex parte, 12 S. C. 83 ... 570 
 
 «. Barnes, 22 Hun, 194. .41, 171 
 
 V. Barllett. 51 N. Y. 447-.. 267 
 
 V. Bunch, 2 Paige, 606 ..50, 147 
 
 Mitford V. Mitford, 9 Ves. Jr. 100. 383 
 
 Mitz V. Buffalo. C. & P. R. Co. 58 
 
 K Y. 61 516 
 
 Mizell «. Herbert, 12 Smedes & M. 
 
 550 ^39 
 
 Moak V. Coates733" Barb." 498'.'.-.. 
 
 66, 148, 256 
 Mobile & O. R. Co. v. Davis, 62 
 
 Miss 271 519 
 
 Moies V. O'Neill, 23 N''j.'Eq'."207 
 
 308. 332 
 Moise v. Chapman, 24 Ga. 249.180, 384 
 MoUan v. Griffith, 3 Paige, 402... 181 
 
 Moncure v. Hanson, 15 Pa. 385 
 
 261, 407 
 Monitor Furnace Co. v. Peters, 40 
 
 Ohio St. 575 114, 023 
 
 Montgomery v. Knox, 20 Fla. 372 
 
 18, 352 
 
 ». Merrill, 65 Cal. 432 295 
 
 «. Merrill, 18 Mich. 338---- 49 
 «. Petersburg Sav. & I. Co. 
 70 Fed. Rep. 746, 30 U. 
 S. ^pp. 511 590
 
 CASES CITED. 
 
 Ixxi 
 
 Mooer v. Cable, 1 Johns. Ch. 385. 299 
 Mooney v. British Commercial L. 
 Ins. Co. 9 Abb. Pr. N. 
 
 S. 103... 101 
 
 Moore v. Church, 70 Iowa, 208... Ill 
 
 V. Duffy, 74 Hun, 78 149 
 
 «. Mercer Wire Co. (N. J.) 
 
 15 Atl. 305 128, 129, 
 
 133, 150 
 V. O'Loghlin, 3 L. R. Ir. 
 
 405 90 
 
 V. Taylor, 40 Hun, 56. 67, 68, 91 
 
 V. Williams, 62 Hun, 55 392 
 
 Moran v. Johnston, 26 Gratt. 108- 
 
 27, 34, 35, 74 
 V. Lydecker, 27 Hun, 582.. 
 
 379, 380 
 1). Sturges, 154 U. S. 256, 38 
 
 L. ed.981..57, 122. 123, 183 
 Moravian Soc, Re, 26 Beav. 101.. 276 
 Mordaunt v. Hooper, Ambl. 311.43, 44 
 Moreton v. Harley, 2 W. «& W. 
 
 (E.)74, 79 568 
 
 Morey». Grant, 48 Mich. 326 
 
 305, 321, 339 
 Morford v. Hamner, 3 Baxt. 391.. 551 
 
 Morgan v. Hardee, 71 Ga. 730 584 
 
 V. Neville, 74 Pa. 51 167 
 
 V. New York & A. R. Co. 
 
 10 Paige, 290 
 
 144, 177, 346, 352, 369 
 
 V. Oliver, 11 Ky. L. Rep. 513 598 
 
 V. Potter, 17 Hun, 403. ...53, 75 
 
 Morgan's Louisiana & T. R. & S. 
 
 S. Co. V. Texas C. R. 
 
 Co. 137 U. S. 171, 34 
 
 L. ed. 625 477, 523, 580 
 
 Moriarty -o. Kent. 71 Ind. 601.153, 
 
 159, 161, 162, 183, 383, 400 
 Morison v. Morison, 7 DeG. M. & 
 
 G. 214 93, 380 
 
 Moritz V. Miller, 87 Ala. 331 
 
 15, 17, 18, 19, 20, 293, 
 
 455, 603, 604 
 Morrill v. Noyes, 56 Me. 458._372, 375 
 Morris v. Branchaud, 52 Wis. 187. 
 
 278, 281, 286, 290 
 
 v. Elme, 1 Ves. Jr. 139 105 
 
 v. Morris, 5 Mich. 171 409 
 
 V. Taylor, L. R. 32 Ir. 14.. 543 
 . V. Willard, 84 N. C. 293.13, 544 
 Morrison v. Buckner, Hempst. 442 
 10, 14, 32, 45, 266, 268, 
 271, 274, 277, 282, 284, 
 
 348, 459, 462, 464 
 V. Menhaden Co. 37 Hun, 
 
 524 124 
 
 V. Shuster, 1 Mackey, 190.. 
 
 239, 248 
 V. Skerne Iron Works Co. 
 
 60 L. T. N. S. 588.... 135 
 
 Morrow v. San Francisco Super 
 
 Ct. 04 Cal. 383 405 
 
 Morrow Slioe Mfg. Co. v. New 
 Englaiui Shoe Co. 57 
 Fed. Rep. 698, 24 L. R. 
 A. 417, 60 Fed. Rep. 341 238 
 
 Morse v. Brainard, 41 Vt. 551.209, 212 
 
 V. By am, 55 Mich. 594 283 
 
 ®. Hannibal & St. J. R. Co. 
 
 72 Mo. 585 587 
 
 Moseby d. Burrow, 52 Tex. 396 
 
 50, 110, 170, 171, 412 
 
 Moshier v. Meek, 80 111. 79.. 244 
 
 Moss V. McCullough, 5 Hill, 131.. 444 
 Mott ». Dunn, 10 How. Pr. 225.. 239 
 Movius V. Lee, 24 Blatchf. 291, 30 
 
 Fed. Rep. 298 
 
 428, 436. 437, 440, 449 
 Moyer v. Dewey, 103 U. S. 301, 
 
 26 L. ed. 394 252, 260 
 
 MoyersD. Coiner, 22 Fla. 422. ..15, 18 
 Mulcahy ». Strauss, 151 111. 70. _. 
 
 51, 125, 183, 190, 418 
 Mulford V. Stalzenback, 46 111. 306 616 
 Mullen V. Jennings. 9 N. J. Eq. 
 
 192 14 
 
 Multnomah County v. Oregon Nat. 
 
 Bank, 61 Fed. Rep. 912 393 
 Mumford v. Murray, 6 Johns. Ch. 
 
 17 215 
 
 V. Nicoll, 20 Johns. 611 315 
 
 Murray v. American Surety Co. 2 
 Am. & Eng. Corp. Cas. 
 
 N. S. 350 357 
 
 V. American Surety Co. 70 
 
 Fed. Rep. 341 67, 422 
 
 V. Lylburn, 2 Johns. Ch. 443 384 
 
 v. Mumford, 6 Cow. 441... 317 
 
 V. Murray (Cal.) 47 Pac. 37 694 
 
 V. Vanderbilt, 39 Barb. 585. 168 
 
 Murrell«. McAllister, 79 Ky. 311. 156 
 
 Murrough v. Trench, 2 Moll. 497. 560 
 
 Murtha«. Curley, 90 N. Y. 372.. 259 
 
 Musgrave v. Morrison, 54 Md. 161. 162 
 
 Musgrove v. Nash, 3 Edw. Ch. 172 
 
 232 593 
 
 Myers v. Estell, 48 Miss. 372 ' 
 
 2. 11, 13, 24. 267, 268, 
 277, 280, 285, 290, 348, 349 
 Mygatt V. Wilcox, 45 N. Y. 309.. 
 
 216. 626 
 Myton V. Davenport, 51 Iowa, 583 
 
 277, 280, 282, 302 
 
 N. 
 
 Nagle V. James, 7 Abb. Pr. 234.. 
 
 252 254 
 Naglee «. Minturn, 8 CjiI. 540...! 338 
 Nanglo V. Fingall, 1 ilog. 142.... 155
 
 Ixxii 
 
 CASES CITED. 
 
 Nash V. Hughes, 1 Hayes & J. 400 17 
 Nathan v. W hillock, 9 Paice, l")'*. 
 
 178, 175, 403, 404, 407 
 Natkins v. Wortbington, 2 Bland, 
 
 Ch. 609. 62 
 
 National Bank v. Kennedy, 84 U. 
 S. 17 Wall. 19, 21 L. ed. 
 
 554 438.485, 436 
 
 t). Mechanics' Nat. Bank, 94 
 
 U. S. 487, 24L. ed. 1T(!_ 488 
 V. Sprague, 20 N. J. Eq. 170 1)9 
 ®. Trimble, 40 Oliio St. 629- 171 
 National E.\change Bank v. Beal, 
 
 50 Fed. Rep. 355 48 
 
 «. Peters, 44 Fed. Hep. 13.. 
 
 398, 399 
 National Funds Assur. Soc., Re, 
 L. R. 10 Ch. Div. 118,. 
 
 176, 387, 409 
 National Mechanics' Bkg. Asso. v. 
 Mariposa Co. 60 Barb. 
 
 423 238 
 
 National Pahquioque Bank v. 
 Bethel First Nat. Bank, 
 36 Conn. 325, 81 U. S. 
 14 Wall. 383, 20 L. ed. 
 
 840.. 423 
 
 National Park Bank v. Goddard, 
 131 N. Y. 494, 62 Hun, 
 
 31 98 
 
 National Secur. Bank v. Butler, 
 129 U. S. 223, 32 L. ed. 
 
 682 428, 446 
 
 V. Price, 22 Fed. Rep. 697.. 446 
 National Shoe & L. Bank v. Me- 
 chanics' Nat. Bank, 89 
 
 N. Y.467 448 
 
 National Trust Co. «. Miller, 38 N. 
 
 J. Eq. 155 51, 157, 169 
 
 V. Nider, 33 N. J. Eq. 155. 169 
 National Tube Works Co. v. Bal- 
 lou, 146 U. S. 577, 36 
 
 L. ed. 1070 238 
 
 Naumberg v. Hyatt, 24 Fed. Rep. 
 
 898 189 
 
 Naylor c. Sidener, 106 Ind. 179.. 
 
 12, 28, 71. 307 
 Neale v. Bealing, 3 Swanst. 804.. 105 
 V. Cunningham, 1 H. Bl. 
 
 1B2, note 109 
 
 Neall®. Hill, 16 Cal. 145 66, 
 
 343, 344, 347, 371 
 Neel V. Carson (Ky.) 37 S. W. 949 697 
 Neeves®. Boos, 86 Wis. 313__ 66, 
 
 71,85. 616 
 Nelson v. Burrows, 9 Abb. N. C. 
 
 280 450 
 
 «. Conner, 6 Rob. (La.) 339. 
 
 48. 127 
 
 V. Hayner, 66 111. 487 308 
 
 Nesbitt ». Turrentine, 83 N. C. 535 68 
 
 Nettles®. Marco, 33 S. C. 47 404 
 
 Nevitt V. First Nat. Bank, 91 Hun, 
 
 43 406 
 
 New V. Nicoll, 73 N. Y. 127 395 
 
 V. Wright, 44 Miss. 202 
 
 800. 308, 824. 325 
 New Albany v. Burke, 78 U. S. 11 
 
 Wall. i)6, 20 L. ed. 155. 428 
 Newberry v. Trowbridge, 13 Mich. 
 
 263 100 
 
 New Birmingham Iron & L. Co. v. 
 Blevin.s(Tox. Civ. App.) 
 34 S. W. 828... 55, 853, 354 
 Newbold v. Peoria & S. R. Co. 5 
 
 111. App. 8G7 117, 523 
 
 New Brunswick State Bank «. 
 Fir.m Nat. Bank, 34 N. 
 
 J. Eq. 450 .82, 92 
 
 Newcomb v. Almy, 96 N. Y. 308. 
 
 180. 181, 61 ' 
 Newell V. Fisher, 24 Miss. 392... 
 
 161, 191, 400 
 V. Schnull, 73 Ind. 241. ..16, 17 
 V. Smith, 49 Vt. 255....... 
 
 209, 229. 395, 511 
 New Foundland R. Const. Co. v. 
 Schack, 40 N. J. Eq. 
 
 232. 370. 467 
 
 Newgass v. Atlantic & D. R. Co. 
 
 72 Fed. Rep. 712 489 
 
 New Haven Horse Nail Co. v. 
 Linden Spring Co. 142 
 
 Mass. 349. 405 
 
 New Jersey* N. Y. R. Co., Re, 
 
 29 N. J. Eq. 67.. 373 
 
 New Jersey Protection & L. Bank 
 
 v. Thorp, 6 Cow. 46.113, 170 
 Newman t>. Chapman, 2 Rand. 93. 872 
 V. Davenport, 9 Baxt. 538.. 
 
 202, 227 
 V. Hammond, 46 Ind. 119.. 55 
 
 V. Willetts, 52 HI. 98 
 
 239, 240. 242, 244, 245,. 247 
 New Orleans v. Morris, 105 U. S. 
 
 600, 26 L. ed. 1184.... 454 
 New Orleans Gaslight Co. v. Ben- 
 nett, 6 La. Ann. 456 
 
 115, 116, 174, 176, 897, 403 
 
 Newport «. Berg, 23 Beav. 30 60 
 
 Newport & C. Bridge Co. v. Doug- 
 lass, 12 Bush, 673 267 
 
 Newton v. Bennet, 1 Bro. C. C. 359 215 
 V. Bronson, 13 N. Y. 587... 147 
 1). Chicago, R. L & P. R. 
 
 Co. 66 Iowa, 422 381 
 
 1). McKay, 80 Mich. 380.... 298 
 
 ®. Sly. 15 Mich. 391 293 
 
 New York & W. U. Teleg. Co. v. 
 Jewett. 48 Hun, 565, 
 Aff'dllS N. Y. 166--- 
 
 198, 233, 557, 564, 565
 
 CASES CITED. 
 
 Ixxiii 
 
 New York Breweries' Co. ». Hig- 
 
 gins, 79 Tlun, 250 392 
 
 New York, P. & O. R. Co. v New 
 
 York, L. E. & W. R. 
 
 Co. 58 Fed. Rep. 268.. 
 95, 100, 107, 123, 224, 506 
 New York Security & T. Co. v. 
 
 E(Hiitable Mortg. Co. 71 
 
 Fed. Rep. 550 58 
 
 New York Security Co. v. Com- 
 
 mnnweiilth Nat. Bank, 
 
 2 Hun, 287 422 
 
 Nichols V. Perry Patent Arms Co. 
 
 11 N. J. Eq. 126 
 
 10, 41, 347, 359, 369 
 
 V. Smith, 115 Mass. 3B2 
 
 202, 211, 511 
 Niemann v. Niemann, L. R. 43 
 
 Ch. Div. 198.... 89, 97, 337 
 Nillink v. Morris Canal & Bkg. Co. 
 
 4N. J. Eq. 377 126 
 
 Nimocks «. Cape Fear Shingle Co. 
 
 HON. C. 230 12, 71 
 
 Noble V. Halliday, 1 N. Y. 330... 133 
 
 Noe «. Gibson, 7 Paige, 513 
 
 46, 127-129, 133. 
 
 184, 190, 221, 416. 620, 621 
 Nonotuck Silk Co. v. Flanders, 87 
 
 Wis. 237 628 
 
 Noonan ». McNab. 30 Wis. 277.. 339 
 Norcutt V. Dodd, 1 Craig & Ph. 
 
 100 407 
 
 Norris v. Johnson, 34 Md. 485 
 
 178, 385, 449 
 
 V. Lake, 89 Va. 513 
 
 10, 13, 14, 43 
 North American Gutta Percha Co., 
 
 Be, 17 How. Pr. 549... 
 
 25, 126, 137 
 North Carolina R. Co. v. Drew, 3 
 
 Woods, 691 41,273, 461 
 
 V. Swasey, 90 U. S. 23 Wall. 
 
 405, 23 L. ed. 136 71 
 
 V. Wil.son, 81 N. C. 225 545 
 
 Northern P. R. Co. v. Lamont, 69 
 
 Fed. Rep. 23.. 483, 488, 490 
 V. St. Paid, M. & M. R. Co. 
 
 47 Fed. Rep. 530, Aflf'd 
 
 4U. S. App. 149 40 
 
 North London R. Co. v. Great 
 
 Northern R. Co. L. R. 
 
 11 Q. B. Div. 30 5, 356 
 
 North River Bank, lie, 60 Hun, 
 
 91 392 
 
 North Slate Copper & G. Min. 
 
 Co. V. Field, ()4Md. 151 343 
 Northumberland A; D. Dist. Bkg. 
 
 Co., lie, 2 DeG. & J. 
 
 508 -- 00 
 
 North Wales Gunpowder Co., Be 
 
 [1892J 2 Q. B. 220 5 
 
 Northwestern Iron Co. v. Lehigh 
 Coal & I. Co. (Wis.) 66 
 
 N. W. 515 584 
 
 Northwestern Mut. L. Ins. Co. v. 
 Park Hotel Co. 37 Wis. 
 
 125 267 
 
 Norway v. Rowe, 19 Ves. Jr. 144. 
 
 13, 307 
 Norwood, Ex parte, 3 Biss. 304.. 167 
 Nothard v. Proctor, L. R. 1 Ch. 
 
 Div. 4, 45 L. J. Ch. 302 56 
 Noyes v. Blakeman, 6 N. Y. 580. 
 
 216, 626 
 V. Rich, 52 Me. 115. 74, 
 
 136, 142, 360, 387, 417, 508 
 Nusbaum t). Stein, 12 Md. 315... 
 
 15, 239, 248, 603 
 Nussbaum v. Price, 80 Ga. 205. .66, 549 
 Nutting V. Colt, 7 N. J. Eq. 539.. 
 
 308, 309 
 
 O. 
 
 Oakes v. Myers, 68 Fed. Rep. 807. 137 
 Oakey t). Bennett, 52 U. S. 11 How. 
 
 33. 13 L. ed. 593 170 
 
 Oakford v. Robinson, 48 111. App. 
 
 270 296 
 
 Oakley v. Paterson Bank, 2 N. J. 
 
 Eq. 173 11, 20, 41, 
 
 84. 346, 347, 367, 370, 608 
 Oak Pits Colliery Co., Be, L. R. 
 
 21 Ch. Div. 322 
 
 103, 107, 204, 221, 
 223, 224, 387, 393. 497, 507 
 O'Brien v. Chicago, R. I. &■ P. R. 
 
 Co. 53" Barb. 568 351 
 
 V. Coulter, 2 Black f. 421... 247 
 Ocean Nat. Bank v. Olcott, 46 N. 
 
 Y. 12 248 
 
 O'Connor, Be, 47 N. Y. S. R. 415. 200 
 «. Long Island Traction Co. 
 
 IS^Misc. 501 353 
 
 V. Malone. 1 Ir. Eq. 20 83 
 
 V. Witherby, 111 Cal. 523.. 438 
 O'Farrell v. McCan, 7 Ir. Eq. 63. . 77 
 
 Ogden V. Arnot, 29 Flun, 146 337 
 
 V. Chalfant, 32 W. Va. 559. 42 
 V. Saunders, 25 U. S. 12 
 Wheat. 213,6 L.ed. 606 
 
 110, 165 
 V. Warren, 36 Neb. 715.... 331 
 Ogdensburg Bank v. Arnold, 5 
 
 Paige, 40 272, 274, 292 
 
 Ogilvie ®. Ogilvie, 1 Bradf. 356... 215 
 Oglesby v. Attrill, 105 U. S. 605, 
 
 26 L. ed. 1180 343 
 
 Ohio & M. R. Co. V. Anderson. 10 
 
 III. App. 313... 214 
 
 V. Davis, 23 Ind. 553 
 
 46, 202, 213, 214, 511
 
 Ixxiv 
 
 CASES CITED. 
 
 Ohio & M. R. Co. V. Fitch, 20 Ind. 
 
 498 -57, 204, 345, 512 
 
 V. Nickless, 71 Ind. 271.... 4iy 
 
 V. Nickless, 73 Ind. 383 520 
 
 V. Russell, 115 111. 52 
 
 195, 204. 374. 513 
 Ohio Falls Car Mfg. Co. v. Ccnlnil 
 Trust Co. 71 Fed. Rep. 
 
 91J 490 
 
 Oil Run Petroleum Co. v. Gale, 6 
 
 W. Va. 525 15 
 
 O'Keefe v. Armstrong, 2 Ir. Ch. 
 
 115 77 
 
 Olcott w. Heermans, 3 Hun, 434.. 119 
 Old Dominion S. S. Co. v. Mc- 
 
 Kenna. 30 Fed. Rep. 48 131 
 Oldham v. First Nat. Bank, 84 N. 
 
 C. 304... 13, 294 
 
 Olds V. Tucker, 35 Ohio St. 584.. 
 
 184, 190 
 Oliver v. Decatur, 4 Cranch, C. C. 
 
 458 279, 292 
 
 V. Victor, 74 Ga. 543... 239, 319 
 Olivier v. Townes, 2 Mart. (N. S.) 
 
 93 110, 165, 500 
 
 Olmstead v. Distilling & C. F. Co. 
 
 67 Fed. Rep. 24, 2 Am. 
 
 & Eng. Corp. Cas. N. S. 
 
 392 397 
 
 v. Distming" & C.' F.' CoV 73 
 
 Fed. Rep.44.. 58,99, 101, 693 
 Olmsted v. Rochester & P. R. Co. 
 
 106 N. Y. 673... 347 
 
 Olney -c. Baird, 15 Misc. 385 361 
 
 V. Tanner, 10 Fed. Rep. 101, 
 Aff'd 18 Fed. Rep. 636. 
 
 50, 115, 252, 259, 260 
 V. Tanner, 21 Blatchf. 540.. 112 
 Olyphant v. Atwood, 4 Bosw. 459 
 
 110, 167, 168 
 «. St. Louis Ore & S. Co. 22 
 
 Fed. Rep. 179 234 
 
 «. St. Louis Ore & S. Co. 28 
 
 Fed. Rep. 729 
 
 103, 104, 183, 190 
 V. St. Louis Ore & S. Co. 39 
 
 Fed. Rep. 308 180 
 
 O'Mahoney v. Belmont, 62 N. Y. 
 
 133 
 
 48, 53, 63, 345, 372, 607, 616 
 V. Belmont, 5 Jones & S. 380 123 
 
 V. Rollins, 85 N. C. 485 56 
 
 Ordway v. Central Nat. Bank, 47 
 
 Md. 217 437 
 
 O'Reilly v. Alderson, 8 Hare, 101. 276 
 O'Reily, Ex parte, 1 Ves. Jr. 112. 377 
 Original Hartleypool Colleries Co., 
 
 The, 51 L. J. Ch. 508.. 194 
 Original Vienna Bakery C. & N. 
 Co. V. Heissler, 50 111. 
 App. 406 348 
 
 Orphan Asylum v. McCartee, 
 
 llopk. Ch. 429_ 
 
 12, 14, 18, 302, 542, 545 
 
 Orton V. Madden. 75 Ga. 83 39, 239 
 
 V. Smith, 59 U. S. 18 How. 
 
 263, 15L. ed. 393 178 
 
 Osborn v. Bank of United States, 
 22 U. S. 9 Wheat. 738, 
 
 6L. ed. 204 434 
 
 V. Byrne, 43 Conn. 155 180 
 
 V. Montelac Park, 89 Hun, 
 
 167, 35N.Y. Supp. 610. 51 
 
 V. Heyer, 2 Paige, 342 57, 60 
 
 Osborne v. Ilarvey, 1 Younge & 
 
 C. 42 28 
 
 V. Moss, 7 Johns. 161. ..157, 260 
 Osgood V. Ogden, 3 Abb. App. 
 
 Dec. 425 171, 376 
 
 V. Ogden, 4 Keyes, 70. 
 
 114, 171, 180 
 
 V. Laytin, 3 Keye.s, 521 171 
 
 V. Laytin, 48 Barb. 404, 5 
 Abb. Pr. N. S. 9.. 114, 
 174, 177, 251, 384, 380, 397 
 V. Laytin, 3 Abb. App. Dec. 
 
 418. 173, 409 
 
 V. Maguire, 61 N. Y. 524... 
 
 110, 142, 144, 167, 168, 180 
 Otis, Be, 101 N. Y. 580_.103, 221, 224 
 
 ■V. Gross, 96 111. 612 202, 392 
 
 Outcalt V. Disborough, 3N. J. Eq. 
 
 214 ■ 13 
 
 Overton v. Bigelow, 10 Yerg. 54.. 279 
 V. Memphis & L. R. R. Co. 
 
 10 Fed. Rep. 866. 
 
 453, 454, 456 
 Overton Bridge Co. v. Means, 33 
 
 Neb.857 454 
 
 Owen, Ex parte, L. R. 13 Q. B. 
 
 Div. 113 308 
 
 ®. Dupignac, 9 Abb. Pr. ISO 254 
 «. Homan, 3 Macn. & G. 
 378, 20 L. J. Ch. N. S. 
 314, 4 H. L. Cas. 997.. 
 
 10, 12, 33, 42-44, 268 
 V. Kellogg, 56 Hun, 455. .48, 570 
 «. Smith, 31 Barb. 641 142 
 
 P. 
 
 Pacific Bank «. Robinson, 57 Cal. 
 
 520 251 
 
 Pacific Nat. Bank v. Eaton. 141 
 
 U. S. 227, 35 L. ed. 702 441 
 Pacific R. Co. V. Ketchum, 95 U. S. 
 
 1, 24 L. ed. 347 35, 54 
 
 V. Wade, 91 Cal. 455, 13 L. 
 
 R. A. 754 
 
 128, 183, 190, 191, 521, 598 
 Packer v. Rochester & S. R. Co. 17 
 
 N. Y. 295 276
 
 CAbES CITED. 
 
 lxx\ 
 
 Padgett V. Lawrence, 10 Paige, 
 
 170, 870 157, 2G0 
 
 PiigetJ. Golden, 2 Stark. 309 100 
 
 V. McKee, 3 Bush, 135 171 
 
 V. Vankiik, 1 Brewst. 290_. 
 
 309, 325, 334 
 
 Paige V. Smith, 99 Mass. 395 
 
 130, 188, 189, 202, 209, 
 211, 395, 509, 511, 516, 622 
 Paine v. Lake Erie & L. R. Co. 31 
 
 Ind. 283 360, 407. 503 
 
 «. Lester, 44 Conu. 196.. 113, 107 
 V. McElroy. 73 Iowa, 81 . -35, 293 
 Palen v. Biishuell. 13 N. Y. Supp. 
 
 785 69 
 
 Palestine v. Barnes, 50 Tex. 538--. 454 
 Palmer v. Clark, 4 Abb. N. C. 25. 
 
 363, 608 
 
 V. Colville, 63 Hun, 536 252 
 
 V. Scriven, 21 Fed. Rep. 354. 
 
 183, 185, 191 
 V. Thayer, 28 Conn. 237.... 407 
 
 V. Trilby, 136 Pa. 556 200 
 
 V. Wright, 10 Beav. 234 530 
 
 Palys V. Jewett, 32 N. J. Eq. 303. 
 132. 184, 185, 191, 417, 
 
 521, 613 
 Paradise®. Farmers' & M. Bank, 5 
 
 La. Ann. 710 167 
 
 Parcels v. Johnson, 87 U. S. 20 
 
 Wall. 653, 22 L.ed. 410. 71 
 
 Pardon v. Dwire, 23 111. 572 616 
 
 Pare v. Clogg, 7 Jur. N. S. 1136. . 28 
 Parish v. Murphree, 54 U. S. 13 
 
 How. 99, 14 L. ed. 67-- 256 
 Park V. New York, L. E. & W. R. 
 Co. 57 Fed. Rep. 799.. 
 
 95, 506 
 Parker v. Browning, 8 Paige, 388. 
 115, 121. 122. 126, 149, 
 
 184. 189, 417, 509, 622 
 
 V. Dunn, 8 Beav. 497 83, 153 
 
 t. Grammer, Phil). Eq. 28.. 544 
 V. Moore, 3 Edw. Ch. 234.. 
 
 32, 44, 238 
 V. Nickerson, 187 Mass. 487 
 
 161, 400, 404 
 
 V. Parker, 82 N. C. 165 550 
 
 V. Pocock, 30 L. T. N. S. 
 
 458 143 
 
 «. Stoughton Mill Co. 91 
 
 Wis. 174 390, 412, 414 
 
 Parkhurst v. Kinsman, 2 Blatchf. 
 
 78 13 39 
 
 «. Muir77"N.'.T."Eq'3b7V.. 308 
 Parkin v. Beddons, 16 L. R. Eq. 
 Cas. 34, 42 L. J. Ch. 
 
 470 37, 43 
 
 Parmley v. Tenth Ward Bank, 3 
 
 Edw. Ch. 295 ....14. 32, 45 
 Parr v. Bell, 9 Ir. Eq. 55. -.129, 184, 193 
 
 Parshall v. Tillou, 13 How. Pr. 7-. 244 
 Parsons v. Charter Oak L. Ins. 
 Co. 31 Fed. Rep. 305.. 
 
 169. 412, 470 
 V. Lyman, 5 Blatchf. 170. .. 123 
 v. Monroe Mfg. Co. 4 N. J. 
 
 Eq. 187 347. 309, 370 
 
 Paschal v. Acklin, 27 Tex. 173-.. 171 
 
 Pasco V. Gamble, 15 Fla. 562 293 
 
 Patrick v. Eells, 10 Kan. 680 196 
 
 Patten v. Accessory Transit Co. 4 
 Abb. Pr. 235, 13 How. 
 Pr. 502- -.277, 280, 296, 343 
 
 V. Dcshon, 1 Gray, 325 224 
 
 Patterson Bros. v. Goorley, 14 
 
 Misc. 56 251 
 
 Patton V. Royal Baking Powder 
 
 Co. 114 N. Y. 4 216, 626 
 
 Patz V. Brewington, 71 Md. 79... 322 
 
 Paulson V. Ward, 4 N. D. 100 239 
 
 Pauly D. State Loan & T. Co. 56 
 
 Fed. Rep. 430... 438 
 
 Paxton ®. Steele, 86 Va. 311 88 
 
 Payne v. Atterbury, Harr. Ch. 
 
 (Mich.) 414 552 
 
 V. Baxter, 2 Tenn. Ch. 517.. 
 
 47. 125, 129, 184, 186 
 
 V. Drewe. 4 P^ast, 538 123 
 
 1). Gardiner, 29 N. Y. 146 ,. 433 
 V. Hook, 74 U. S. 7 Wall. 
 
 425, 19 L. ed. 260 54 
 
 V. Sheldon, 63 Barb. 169-. 
 
 244, 247 
 
 Peabody v. Flint, 6 Allen, 53 351 
 
 Peace and Waller, Be, L. R. 24 
 
 Ch. Div. 405 249 
 
 Peacock v. Peacock, 16 Ves. Jr. 49 
 
 307-309, 314, 317, 334 
 V. Pittsburg Locomotive & 
 Car Works, 52 Ga. 417 
 
 70, 230 
 
 Peak®. Ellicott, 30 Kan. 156 393 
 
 Peale V. Phipps, 55 U. S. 14 How. 
 
 375, 14 L. ed. 461 127 
 
 Pearce v. Gamble, 72 Ala. 341 337 
 
 V. Jennings, 94 Ala. 524.. 44, 549 
 Pearson v. Kendrick (Miss.) 31 So, 
 
 37.. 694 
 
 Pease v. Scranton, 11 Ga. 33 245 
 
 Peay v. Morrison, 10 Gratt. 144... 247 
 Peck V. Beloit School Dist. No. 4, 
 
 21 Wis. 517 356,415 
 
 V. Crane, 25 Vt. 146. 372 
 
 V. Jen n ess, 48 U. S. 7 How. 
 
 612, 12 L. ed. 841 122 
 
 V. Trimsaran Coal, I. & S. 
 Co. L. R. 2 Ch. Div. 
 
 115 36, 33, 39, 96 
 
 Peebles, 7?^. 2 Hughes, 394. 137 
 
 Peillon, Ex parte, 3 Thomson 
 
 (Nova Scotia) 405 36
 
 Ix.wi 
 
 CASES CITED. 
 
 PeirsoU v. Elliott, 31 U. S. 6 Pet. 
 
 95, S L. ed. 332 178 
 
 Pelzer v. Huglies, 27 S. C. 408.. 
 11, 13, 44, 47, C4, 243, 
 
 250, 528 
 Pendleton v. Johnson, 85 Ga. 840.. 42 
 
 V. Perkins, 49 Mo. 565 247 
 
 V. Russell, 144 U. 8. 640, 36 
 L. ed. 574, Aflf's? 106 N. 
 Y. 619.... 153, 155, 196, 374 
 Penn v. Callioun, 121 U. S. 251, 30 
 
 L. ed. 915 580 
 
 V. Lord Baltimore, 1 Ves. 
 
 8r. 444 147 
 
 «. Whitehead, 12 Gratt. 74.. 
 
 264, 580 
 Penn Bank, Warner, v. Hopkins, 
 
 111 Pa. 328 398 
 
 Penn Mut. L. Ins. Co. v. Heiss, 141 
 
 Fil. 35 477 
 
 «. Semple, 38 N. J. Eq. 314. 564 
 Pennsylvania & D. R. Co. v. Leuf- 
 
 fer, 88 Pa. 168 481 
 
 Pennsylvania Co. v. American 
 Const. Co. 2 U. S. App. 
 606, 55 Fed. Rep. 131.. 458 
 V. Jacksonville, T. & E. W. 
 R. Co. 55 Fed. Rep. 131, 
 2U. S. App. 606 ...11, 359 
 V. Jacksonville, T. & K. W. 
 
 R. Co. 66 Fed. Rep. 421 588 
 Pennsylvania Finance Co. v. 
 Charleston. C. & C. R. 
 Co. 46 Fed. Rep. 508. 
 48 Fed. Rep. 188, 52 
 Fed. Rep. 526, 678.... 
 202, 204. 212, 478, 498, 
 499, 519, 573, 575, 578. 596 
 Pennsylvania R. Co. v. Jones, 155 
 U. S. 333, 39 L. ed. 176 
 
 515, 516 
 Pentz I). Hawley, 1 Barb. Ch. 122. 
 
 115. 117. 176, 403 
 People V. Albany & S. R. Co. 38 
 
 How. Pr. 228.. .- 15 
 
 V. Albany & S. R. Co. 7 
 
 Abb. Pr. N. S. 265, 
 
 Aff'd57N.Y. 161 -.467, 603 
 
 V. Albany & S. R. Co. 55 
 
 Barb. 344.. 17, 18, 455, 
 
 466, 603 
 V. American Loan & T. Co. 
 
 37 N. Y. Supp. 780.... 392 
 V. American Loan & T. Co. 
 
 2 App. Div. 193-.....- 392 
 V. American Steam Boiler 
 
 Ins. Co. 147 N.Y. 25.. 346 
 V. American Steam Boiler 
 Ins. Co. 3 App. Div. 
 504, Aff'g 14 Misc. 162. 
 
 225, 396, 571 
 
 People 1). Allan tic Mut. L. Ins. Co. 
 
 15 Hun, 84 379 
 
 V. Bank of Dansville, 39 
 
 Hun, 187.... 392, 627 
 
 V. Beveridge Brew. Co. 91 
 
 lluu, 313 489 
 
 V. Brutf, 9 Abb. N. C. 153. 
 
 367, 465 
 V. Buffalo Stone & C. Co. 
 
 131 N. Y. 140, 15 L. R. 
 
 A. 240 357 
 
 «. Bushwick Chemical Co. 
 
 45 N. Y. S. R. 329.... 563 
 V. Central City Bank, 53 
 
 Barb. 412, 35 How. Pr. 
 
 428 57, 121 
 
 V. City Bank, 96 N. Y. 32 _. 393 
 1). Columbia Car Spring Co. 
 
 12 Hun, 585 .593, 632 
 
 V. Commercial Alliance L. 
 
 Ins. Co. 91 Hun. 389.. 573 
 V. Equitable Mu*. F. Ins. 
 
 Co. 1 App. Div. 93.... 369 
 V. Erie R. Co. 3G How. Pr. 
 
 129 460 
 
 V. Globe Mut. L. Ins. Co. 91 
 
 N. Y. 174 396 
 
 V. Jones, 33 Mich. 303.. 202, 
 
 234, 588 
 V. Judge, 31 Mich. 456. 
 V. Knickerbocker L. 
 
 Co. 101 N. Y. 636- 
 V. Knickerbocker L. 
 
 Co. 106 N. Y. 
 
 Rev'g 43 Hun, 574... 
 V. Knickerbocker L. Ins. 
 
 Co. 31 Hun, 622 593 
 
 V. Mechanics' & T. Sav. Inst. 
 
 92 N. Y. 7 3fl2 
 
 V. Merchants' & M. Bank, 
 
 78 N. Y. 269 202, 
 
 392, 628 
 V. Merchants' Bank, 92 Hun, 
 
 159 481 
 
 V. Murdock, 50 111. App. 311 77 
 V. Mutual Ben. Asso. 39 
 
 Hun, 40- 583 
 
 V. Mutual Trust Fund L. 
 
 As.so. 31 Abb. N. C. 
 
 279. 
 
 V. National' Trust Co. 82 N. 
 
 Y. 283 Sm, 495 
 
 V. New York, 10 Abb. Pr. 
 
 111. Rev'd 8 Abb. Pr. 7 552 
 
 V. Norton, 1 Paige, 17 
 
 l7, 18, 331, 466 
 ■V. O'Brien, 111 N. Y. 1. 3 
 
 L. R. A. 255- 603 
 
 v. Remington, 59 Hun, 282, 
 
 Aff'd 126 N. Y. 654 
 
 (mem.) 569, 570 
 
 Ins. 
 
 Ins. 
 619, 
 
 36 
 569 
 
 196 
 
 346
 
 CASES CITED. 
 
 Ixxvii 
 
 People V. Rogers, 2 Paige, 103... 122 
 V. St. Clair Circuit Judge, 
 
 31 Mich. 456..-. 15 
 
 V. St. Nicholas Bank, 3 App. 
 
 Div. 544 394 
 
 V. St. Nicholas Bank, 76 
 
 Hun, 522 82, 618 
 
 ». St. Nicholas Bank, 77 
 
 Hun, 159 392 
 
 «. St. Nicholas Bank. 83 N. 
 
 Y.522.... 120 
 
 V. San Francisco Super. Ct. 
 
 100 Cal. 105 357 
 
 V. Security L. Ins. & A. Co. 
 
 78 N. Y. 114. G18 
 
 V. Third Ave. Sav. Bank, 50 
 
 How. Pr. 22 564 
 
 V. Universal L. Ins. Co. 30 
 Hun, 142. ...106, 116, 
 
 203, 222, 393, 626 
 V. Universal L. Ins. Co. 42 
 
 Hun, 616. 569 
 
 V. Washington Ice Co. 18 
 
 Abb. Pr. 382. 346 
 
 V. Yoakum (Tex. Civ. App.) 
 
 25 S. W. 1001 
 
 202, 212 
 People, exrel. Atty. Gen., «. Secur- 
 ity L. Ins. & A. Co. 23 
 Hun, 596, 71 N. Y. 226 
 
 144, 347, 368 
 Atty. Gen., v. Security L. 
 Ins. & A. Co. 79 iST. Y. 
 
 267 
 
 82, 368, 377, 619 
 Davis, V. Sturlevant, 9 N. 
 
 Y. 266 85, 232 
 
 Fitch, V. Mead, 29 How. Pr. 
 
 360 ..237, 251 
 
 Grissler, v. Dudley, 58 N. 
 
 Y. 323 506 
 
 Newcorab, v. McCall, 94 N. 
 
 Y. 587... 290 
 
 Tremper, v. Brooks, 40 Mich. 
 
 333 .129, 183 
 
 Williams, v. Hulburt, 5 How. 
 
 Pr. 446... 66 
 
 Wright, v. Weiglev, 155 111. 
 
 491 ...."' 
 
 237, 356, 361, 415, 417 
 People's Bank v. Fancher, 21 N. 
 
 Y. Supp. 545_ 42 
 
 V. Winslow ("Poo pie's Bank 
 «. Calhoun") 102 U. S. 
 
 256, 26 L. ed. 101 121 
 
 People's Equitable Mul. F. Ins. 
 Co. «. Babbitt, 7 Allen, 
 
 225 -. 390 
 
 People's Home Sav. Bank v. San 
 Frjincisco Super. Ct. 
 103 Cal. 27 357 
 
 Peoria & P. U. R. Co. v. Chicago, 
 P. & S. W. R. Co. 127 
 U. S. 200, 32 L. ed. 
 
 110 ..103. 224, i)4. 497 
 
 Perego v. Bonesteel, 5 Biss. (19.127, 183 
 Perkins v. Taylor, 19 A bb. Pr. 146 . 234 
 Perrin v. Lepper, 56 Mich. 351 _ . 
 
 531, 532, 53;i 
 Perry v. Oriental Hotels Co. L. R 
 
 5 Ch. App. 420... 12, 60, 63 
 V. Turner, 55 Mo. 418.. 178, 
 
 385, 449 
 Persee, Re, 8 Ir. Eq. 111. .129, 184, 193 
 Peters v. Foster, 56 Hun, 607.113, 
 
 167, 425, 437, 438 
 Peters Bldg. Asso. No. 5. v. 
 
 Jaecksch, 47 Md. 448.. 556 
 Petersburg Sav. & I. Co. v. Del- 
 latorre, 70 Fed. Rep. 
 
 643 490, 588 
 
 Petersen v. Chemical Bank, 32 N. 
 
 Y. 21 110, 167, 168 
 
 Petri V. Commercial Nat. Bank, 
 142 U. S. 644. 35 L. ed. 
 
 1144 -. ..434, 435 
 
 Peltibone v. Drakeford, 37 Hun, 
 
 628 259 
 
 Peyton v. Lamar, 42 Ga. 131 245 
 
 Pfetz V. Pfelz, 14 Md. 376.. 45 
 
 Phelau V. Eaton, 3 Vict. Rep. 13. 542 
 «. Ganebin, 5 Colo. 14.. 121. 
 
 183. 188, 418 
 Phelps V. Borland, 103 N. Y. 40(). 163 
 
 V. Foster, 18 111. 309 249 
 
 V. McCann, 123 N. Y. 641.. 
 
 167, 412 
 V. Masterton, 3 Robt. 527... 625 
 Philadelphia & R. R. Co., Re, 14 
 
 Phila. 501 86 
 
 V. Com. 104 Pa. 80.137, 388, 516 
 Philadelphia Invest. Co. v. Ohio &, 
 N. W. R. Co. 36 Fed. 
 
 Rep. 48 474 
 
 V. Ohio & N. W. R. Co. 41 
 
 Fed. Rep. 378.... 502, 504 
 V. Ohio & N. W. R. Co. 56 
 
 Fed. Rep. 696 597 
 
 Philadelphia Mortg. & T. Co. v. 
 Goos (Neb.) 66 N. W. 
 
 843 298 
 
 Philadelphia Nat. Bank «. Dowd, 
 38 Fed. Rep. 172, 2 L. 
 
 R. A. 480 430 
 
 Philips V. Atkinson, 2 Bro. C. C. 
 
 272 ..308, 317 
 
 Phillips®. Eiland, 52 Miss. 721. _. 
 
 267, 277, 280, 303, 548, 551 
 V. Hunter, 2 H. Bl. 402.109, lOt 
 V. Smoot, 1 Mnckcy, 478-53, 126 
 V. Trc/X'vaiit, 67 N. C. 370. 
 
 325. 328
 
 Ixxviii 
 
 CASES CITED. 
 
 Phinizy v. Augusta & K. R. Co. 
 
 56 Fed. R(^p. 273 29 
 
 V. Augusta & K. R. Co. 62 
 
 • Fed. Rep. 771 502 
 
 Phceni.x Foundry & Mach. Co. v. 
 North River Const. Co. 
 
 33 Hun, 156. 417 
 
 Phoenix Ins. Co. v. Abbott, 127 
 
 Mass. 558... 146 
 
 Phoenix Mut. L. Ins. Co. v. Grant, 
 
 3 McArth. 220 34, 292 
 
 Phoenix Warebousing Co. v. Bad- 
 ger, 6 Hun, 293 46, 
 
 160, 176, 403 
 Plckersgill v. Myers & L. F. Ins. 
 
 Co. 99 Pa. 602 192 
 
 Pickett V. Filer, 40 Fed. Rep. 313. 124 
 V. School Dist. 25 Wis. 553. 360 
 
 Pierce v. Brewster, 32 111. 268 250 
 
 1). O'Brien, 129 Mass. 314... 51 
 
 Piety v. Stace, 4 Ves. Jr. 620 315 
 
 Pignolet V. Bushe, 28 How. Pr. 9. 
 
 44, 550 
 Pilkington v. Baker, 24 Week. 
 
 Rep. 234 586 
 
 Pillsbury v. Kingon, 33 N. J. Eq. 
 
 287 92, 406, 407 
 
 Pillsworth V. Hopton, 6 Ves. Jr. 
 
 51 13 
 
 Pincke, Ex parte, 2 Meriv. 452.54 
 
 60, 90, 547 
 Pingree v. Detroit, L. & N. R. Co. 
 
 66 Mich. 148 622 
 
 Pini V. Roucoroni, 1 Ch. Div. 633. 
 
 307, 325, 328 
 PiscataquaF. &M. Ins. Co. v. Hill, 
 
 60 Me. 178. ...114, 157, 404 
 
 Pitcher v. Hellier, Dick 580 546 
 
 Pitman. Be, 1 Curt. C. C. 186 207 
 
 Pitt V. Snowden, 3 Atk. 750 154 
 
 Pittman v. Tounshend, 1 W. W. 
 
 & A'B. (Vict.) 140.... 27 
 Pittsburg Carbon Co. v. McMillin, 
 119 N.Y. 46, 7 L. R. A. 
 46. ..114, 149, 171. 172, 
 
 259, 375, 377, 410, Oil 
 Pittsfield Nat. Bank v. Bayne, 140 
 
 N. Y. 321 587 
 
 Piza V. Butler, 90 Hun. 254 370 
 
 Plankinton Bank, Be, 87 Wis. 378. 392 
 
 Plait, Be, 52 How. Pr. 468 191 
 
 Be, 1 Ben. 534 88. 382 
 
 V. Archer, 9 Blatchf. 559.. 48, 57 
 V. Beach, 2 Ben. 303 ...423, 
 
 424. 434, 436 
 V. Beebe, 57 N. Y. 339.423, 
 
 425, 437 
 V. Cad well, 9 Paige, 386... 252 
 ■V. Crawford, 8 Abb. Pr. N. 
 
 S. 297 92, 423, 425. 
 
 426, 434, 436 
 
 Piatt V. Hunter, 11 N. Y. Week. 
 
 Dig. 300 250 
 
 V. Munroe, 34 Barb. 293... 11 
 V. Philadelphia & R. R. Co. 
 
 54 Fed. Rep. 509 30 
 
 V. Philadelphia & R. R. Co. 
 
 65 Fed. Rep. 668... 502, 61H 
 Plewes V. Baker, L. R. 16 Eq. 564. 330 
 
 Poage V. Bell, 3 Rand. 586 14, 32 
 
 Poague V. Greenlee, 22 Gratt. 724. 120 
 Poland V. Lamoille Valley R. Co. 
 
 52 Vt. 144 
 
 476, 481, 489, 574 
 
 Pond V. Cooke, 45 Conn. 126 
 
 50, 111, 112, 134, 168, 414 
 V. Framingham & L. R. Co. 
 
 130 Mass. 194 
 
 343, 363, 453, 459 
 Ponder «. Calterson, 127 Ind. 434. 
 
 162. 410 
 
 V. Tate, 96 Ind. 330 280 
 
 Pondir v. New York. L. E. & W. 
 
 R. Co. 72 Hun, 384 566 
 
 Pope V. Ames. 20 Or. 199.. 52. 125, 147 
 V. Cole. 64 Barb. 406, 55 N. 
 
 Y. 124. 251 
 
 V. Solomon, 36 Ga. 541 247 
 
 Pope's Case, 30 Fed. Rep. 169 
 
 395. 512. 510 
 Popper V. Scheider, 7 Abb. Pr. N. 
 
 S. 56 308, 309, 334, 336 
 
 PoTtv. Russell, 36 Ind. 60.. 359 
 
 Porter v. Kingman, 126 Mass. 141 
 
 183, 190, 621, 631 
 V. Lones.L. R.7Ch.Div.358, 
 
 37 L. J. N. S. 824 33 
 
 V. Pittsburg Bessemer Steel 
 Co. 120 U. S. 649, 30 L. 
 
 ed. 830 477 
 
 V. Sabin. 149 U. S. 473, 37 
 L. ed. 815.... 114, 122, 
 123, 126, 128, 183, 184, 409 
 V. Williams, 9 N. Y. 142... 
 65, 66, 74, 114. 142-144, ■ 
 147-149, 157, 162, 171, 
 172. 241, 251, 256. 258- 
 261. 263, 375, 376, 410, 609 
 Port Huron & G. R. Co. v. St. 
 Clair Circuit Judge, 31 
 
 Mich. 456 363 
 
 Portman v. Mill, 8 L. J. Ch. N. S. 
 
 161 ...21, 49 
 
 Port Royal & A. R. Co. v. King, 
 93 Ga. 63, 24 L. R. A. 
 
 730... 113, 345 
 
 Post V. Dorr, 4 Edw. Ch. 412 
 
 296, 300, 301 
 Postlewait v. Howes, 3 Iowa, 366. 246 
 Potter V. Bunnell, 20 Ohio St. 150 
 
 194, 202, 510, 516, 613 
 V. Dear, 95 Cal. 578 405
 
 CASES CITED. 
 
 Ixxix 
 
 Potter V. Merchants' Bank, 28 N. 
 
 Y. 641 54, 92 
 
 V. Spa Spring Brick Co. 47 
 
 N. J. Eq. 442.. 
 
 24, 46, 121, 120. 132 
 Potts, Re, [1893] 1 Q. B. G48, 22 
 
 L. J. Q. B. 392 15, 17 
 
 V. Leightou, 15 Ves. Jr. 273 
 
 203, 215, 587 
 V. New Jersey Arms & O. 
 
 Co. 17 N. J. Eq. 576... 372 
 Pouder v. Kitzinger, 102 Ind. 572. 302 
 Poughkeepsie v. Ibbotson, 24 
 
 Wend. 473 385 
 
 Pound, Be, L. R. 42 Ch. Div. 402 
 
 358, 366 
 Pountain, Be, L. R. 37 Cb. Div. 
 
 609 547 
 
 Powell V. Dayton, S. & G. R. Co. 
 
 16 Or. 33 204. 515 
 
 V. Quiun, 49 Ga. 523 39, 40 
 
 Powell Duffryn Steam Coal Co. v. 
 Taff Vale R. Co. L. R. 
 
 9 Cb. App. 331. 130 
 
 Powers V. Hamilton Paper Co. 60 
 
 Wis. 23 157 
 
 V. Lougbridge, 38 N. J. Eq. 
 
 396. ...201, 204, 205 
 
 Poyle V. Townes, 9 Leigh, 158 134 
 
 Poylhress v. Poytbress, 16 Ga. 406 543 
 
 Pratt V. Jewett, 9 Gray, 34.. 351 
 
 V. Underwood, 4 N. Y. Civ. 
 
 Proc. 167. 311 
 
 Pray v. Jersey City, 32 N. J. L. 394 210 
 Premier Steel Co. v. McEIwaine- 
 Richards Co. (Ind.) 43 
 
 N. E. 876 128 
 
 Prentiss v. Brenuan, 1 Grant, Ch. 
 
 484... 325, 335 
 
 Prescott V. Pfeiffer, 57 Mich. 21 
 
 259, 376 
 Pressley v. Harrison, 102 Ind. 14. 602 
 
 V. Lamb, 105 Ind. 171 
 
 55, 66. 67. 70, 85, 365, 616 
 Preston v. Colby, 117 111. 477.-244, 248 
 V. Loughran, 58 Hun, 210.. 
 
 128, 184 
 V. Wilcox, 38 Mich. 578. .. . 245 
 Price V. Abbott, 17 Fed. Rep. 506. 
 
 424, 425, 434-436, 443 
 
 V. Doudy, 34 Ark. 285 
 
 267, 277, 280 
 V. Forrest (N. J.) 35 Atl. 
 
 1075 699 
 
 «. Price, 23 N. J. Eq. 428.. 529 
 V. White, 1 Bail. Eq. 240... 584 
 V. Whitney, 28 Fed. Rep. 
 
 297... 443 
 
 Prime, Be, 1 Barb. 306 274 
 
 Prince George's County Comrs. v. 
 
 Clarke, 36 Md. 206 137 
 
 Pringle v. Woo I worth, 90 N. Y. 
 
 502,592 49,192, 374 
 
 Priutup, Ex parte, 87 Ala. 148 
 
 183, 185 
 
 Probst V. Welden, 46 Ark. 409 ... . 250 
 
 Prosser v. Edmunds, 1 Younge & 
 
 C. 481 409 
 
 Providence Rubber Co. v. Good- 
 year, 76 U. S. 9 Wall. 
 788, 19 L. ed. 566 191 
 
 Prudential Assur. Co. v. Knott, L. 
 
 R. 10 Ch. 142. 131 
 
 Prytherch, Be, L. R.42Ch.Div. 590 277 
 
 Pudney v. Griffiths, 6 Abb. Pr. 211 252 
 V. Griffiths, 15 How. Pr. 410 254 
 
 Pugh V. Hurtt, 52 How. Pr. 22... 
 
 51, 107, 113 
 
 Pugsley V. Aikin, 11 N. Y. 494... 506 
 
 Pullan V. Cincinnati & C. A. L. R. 
 
 Co. 4 Biss. 35 
 
 10, 13, 288, 282. 284, 463, 468 
 
 PuUiam v. Osborne, 58 U. S- 17 
 
 How. 471, 15 L. ed. 154 123 
 v. Stebbins, 51 Fed. Rep. 10 240 
 
 Purviancew. Emley, 126 Ind. 419. 302 
 
 Putnam «. Man, 3"Wend. 202.... 254 
 V. New Albany & S. C. J. R. 
 Co. ("Burke v. Smith") 
 83 U. S. 16 Wall. 395, 
 
 21 L. ed. 363 404, 428 
 
 V. Ruch, 54 Fed. Rep. 216. 361 
 
 Pyles V. Riverside Furniture Co. 
 
 30 W. Va. 123.-366,470,542 
 
 Pyrolusite Manganese Co., Be, 29 
 
 Hun, 429 346, 347 
 
 Q- 
 
 Quarmann v. Burnett, 6 Mees. & 
 
 W. 509 ....210 
 
 Quarrell v. Beckford, 13 Ves. Jr. 
 
 377 284 
 
 Queen I). Lincolnshire & D. County 
 Judge, L. R. 20 Q. B. 
 Div. 167 543 
 
 Queenan v. Palmer, 117 111. 619.. 405 
 
 Questel v. Questel, Wright (Ohio) 
 
 492... 553 
 
 Quiggley v. Trumbo, 56 Cal. 626. 55 
 
 Quincy v. Cheesemau, 4 Sandf. 
 
 Ch. 405 
 
 41, 267, 278, 285, 288 
 
 Quincy, M. & P. R. Co. v. Hum- 
 phreys, 145 U. S. 82, 36 
 
 L. ed. 632 95, 
 
 102, 106, 203, 221-224, 
 355, 393, 394, 477, 497, 506 
 
 Quinlivan v. English, 44 Mo. 46.. 308 
 
 Quiun V. Brittain, 3 Edw. Ch. 314 
 
 264. 296, 299. 300, 303 
 
 V. Gunn, 1 Hog. 75 17
 
 Ixxx 
 
 CASES CITED. 
 
 R. 
 
 Radebans;!! ». Tacoma & P. R. Co. 
 
 ^ 8 Wash. 570- -67, 85, 492, 493 
 Radford v. Folsora, 55 Iowa, 276.. 
 
 215, 394. 588 
 Rasfsdale v. Holmes, 1 S. C. 91... 245 
 Ra'ht V. Attiill, 100 N. Y. 423, 42 
 
 Hun, 414. 
 
 192, 197, 388, 473, 484. 488 
 Railway Co. v. Blak'e, 1 Macq. 461 359 
 
 liainoock v. Simp.son, Dick. 120 154 
 
 Hatnbaut v. Maytield, 1 llawk.s, 85 245 
 Ramsey v. Erie R. Co. 38 How. 
 
 Pr. 193 460, 470 
 
 Ranee's Case. L. R. Cli. 104.. 176, 409 
 Randall ";. Morrell, 17 N. J. Eq. 
 
 343... 42. 307, 325, 328, 334 
 Randfield v. Randfield, 3 DeG. F. 
 
 & J. 766.. 130, 184, 185, 418 
 Randle v. Carter, 62 Ala. 95_38, 39, 536 
 Raud, McN. & Co. v. Mutual F. 
 
 In.s. Co., Parker. 58 111. 
 
 App. 528 67, 390, 414 
 
 Ranger v. Champion Cotton-Press 
 
 Co. 52 Fed. Rep. 609. .34, 353 
 Rankin v. Rothschild, 78 Mich. 10 34 
 Rankine«. Elliott, 16 N. Y. 377.. 
 
 115, 175, 176, 384, 403 
 Ranney V. Peyser, 83 N. Y. 1.... 300 
 
 Rapelye v. Prince, 4 Hill, 119 78 
 
 Rappw. Reehling, 122 Ind. 255.16, 550 
 Ratclille v. Graves, 1 Vern. 196.. 215 
 Rathbone v. Parkersburg Gas Co. 
 
 31 W. Va. 798 40, 347 
 
 Rawnsley v. Trenton ]Mut. L. Ins. 
 
 Co. 9 N. J. Eq. 95.370. 467 
 
 Ray V. Macomb, 2 Edw. Ch. 165.89, 90 
 
 V. Ossulstou, 2 Strange, 1107 207 
 
 Raymond v. Palmer, 35 La. Ann. 276 387 
 
 Raynor v. Pacific Nat. Bank, 93 
 
 N. Y. 371 448 
 
 Read v. Bowers, 4 Bro.C.C.441.324, 326 
 
 V. Brayton, 72 Hun, 633 184 
 
 Readings. Waterman, 46 Mich. 107 
 
 271, 283, 469 
 Real Estate Associates, Re, 58 Cal. 
 
 356.... ...73, 84 
 
 Real Estate Associates v. San Fran- 
 cisco Super. Ct. 60 Cal. 
 
 223... 54 
 
 Receivers of Philadelphia & R. R. 
 
 Co., lie, 14 Phila. 501 _. 363 
 Redmond «. Enfield Mfg. Co. 13 
 
 Abb. Pr. N. S. 332.-40, 359 
 
 Reed v. Axtell, 84 Va. 231 
 
 125, 153, 184, 191 
 
 V. Pelletier, 28 Mo. 173 250 
 
 Reedert). Dargan, 15 S. C. 185... 293 
 Rees V. Watertown, 86 U. S. 19 
 
 Wall. 107, 22 L. ed. 72. 245 
 
 Reese v. Bradford, 13 Ala. 837.... 245 
 
 Reg. V. Bayly, 4 Ir. Eq. 142 78 
 
 V. Kendrick, 5 Q. B. 49.... 131 
 V. Parncll, 14 Co.x, C. C. 508 131 
 Regenstcin v. Pearl stein, 30 S. C. 
 
 192 52, 65, 74, 125, 239 
 
 Regent's Canal Ironworks Co., lie, 
 
 L. R. 3Ch. Div. 411... 388 
 Reid V. Middleton, Turn. & R. 455 
 
 136, 296 
 V. Reid, 38 Ga. 24.10, 12, 62, 71 
 Reinach v. Atlantic & G. W. R. Co. 
 
 58 Fed. Rep. 33 345 
 
 Relf V. Columbia L. Ins. Co. 11 
 
 Mo. App. 374 388 
 
 Reliance Lumber Co. v. Brown, 4 
 
 Ind. App. 92 42 
 
 Remick v. Bard?^ of West Union, 13 
 
 Ohio, 298 399 
 
 Remington, Re, 7 Wis. 643.... 238, 254 
 Remington Paper Co. v. Louisiana 
 
 Printing & Pub. Co. 56 
 
 Fed. Rep. 287 123 
 
 Renaud v. O'Brien, 35 N. Y. 99.. 253 
 Rendall». Rendall, 1 Hare, 152.. 
 
 530, 534, 547 
 
 Renfro v. Goetter, 78 Ala. 314 185 
 
 Renton v. Chaplain, 9 N. J. Eij. 62 
 
 308, 316, 325, 333 
 Republican Mountain Silver Mines 
 
 V. Brown, 58 Fed. Rep, 
 
 644, 24 L. R. A. 776.343, 351 
 Republic L. Ins. Co. v. Swigert, 
 
 135 111. 150, 12 L. R. A. 
 
 328-... 21, 83, 113, 116, 
 
 149, 156, 157, 173, 176, 
 
 376, 385, 403, 404, 406-409 
 Reyburn v. Consumers' Gas Fuel 
 
 & L. Co. 29 Fed. Rep. 
 
 561 95, 96 
 
 Reynolds «. Adden, 136 U. S. 353, 
 
 34 L. ed. 362 170, 412 
 
 V. Austin, 4 Del. Ch. 24.... 313 
 V. Cleveland, 4 Cow. 282... 315 
 v. Pettyjohn, 79 Va. 327.23, 195 
 «. Quick, 128 Ind. 316. ..41, 296 
 V. Stockton, 140 U. S. 254, 
 
 35 L. ed. 464... 
 
 48. 155, 183. 198, 357 
 
 Rhawn v. Pearce, 110 111. 350 
 
 112, 113, 170. 413 
 Rheinsteiu v. Bixby, 92 N. C. 307.13, 39 
 Rhodes v. Cousins, 6 Rand. 188.. 
 
 239, 248, 249 
 «. Ililligops(Ind.)45N.E.666 698 
 
 V. Lee, 32 Ga. 470 308 
 
 Rice». Hartman, 84 Va. 251 240 
 
 V. St. Paul & P. R. Co. 24 
 Minn. 464. ...14, 32, 33, 
 
 45, 276, 460, 468, 469 
 t. Wood(Ark.)3lL.R.A.609 244
 
 CASES CITED. 
 
 Ixxxi 
 
 Rich V. Levy, 16 Md. 74.. 239, 248, 354 
 V. Loutrel, 18 How. Pr. 121 
 
 25, 126, 137 
 Richards v. Barrett, 5 111. App. 
 
 510 --- 542 
 
 V. Bauerman, 65 N. C. 162.. 309 
 V. Chave, 12 Ves. Jr. 462... 547 
 V. Chesapeake & O. R. Co. 
 
 1 Hughes, 28 60 
 
 V. Goolds, 7 Ir. Eq. 209.... 83 
 V. New Hampshire lus. Co. 
 
 43 N. H. 263 360, 407 
 
 V. People, 81 III. 551 
 
 66, 85, 121, 123. 147, 
 
 372, 416, 501, 616 
 Richardson v. Hoyt, 60 Iowa, 70. 394 
 
 V. Wiu-d, 6 Madd. 266 77 
 
 Richmond v. Irons, 121 U. S. 27, 
 
 30 L. ed. 864. 
 
 424, 438. 441, 443, 444 
 Richter v. Schroeder, 110 HI. 112. 596 
 Rickard v. Schley, 27 W. Va. 617. 
 
 Ricks V. Broyles, 78 Ga. 610...^.! 
 
 201, 218, 391 
 
 Rider v. Bagley, 84 N. Y. 461 
 
 11, 267, 270, 296, 302, 349 
 
 V. Morrison, 54 Md. 429 162 
 
 V. Vrooman, 12 Hun, 299.. 
 
 300, 303 
 Ridgeway v. First Nat. Bank, 78 
 
 Ind. 119.. 298 
 
 Ridgway v. Symons, 4 App. Div. 98 398 
 Riggs V. Whitney, 15 Abb. Pr. 388 
 
 24, 184, 620 
 Rinn v. Astor F. Ins. Co. 59 N. Y. 
 
 147 198 
 
 Rio Grande R. Co. v. Vinet, 132 U. 
 
 S. 478, 33 L. ed. 400... 123 
 Risk V. Kansas Trust & Bkg. Co. 
 
 58 Fed. Rep. 45 371 
 
 Ritterband v. Maryult, 13 N. Y. 
 
 Leg. Ob. 158 252, 254 
 
 Roben,son v. Ross, 40 Ga. 375... 12, 71 
 
 Roberdeau v. Rous, 1 Atk. 544 50 
 
 Roberson v. Roberson, 3 Lea, 50.. 71 
 Robert v. Hodges, 16 N. J. Eq. 
 
 299 246 
 
 Roberts v. Albany & W. S. R. Co. 
 
 25 Barb. 663.. 240 
 
 V. Armstrong, 2 Moll. 352.. 105 
 t>. Eberhardt or Everhardt, 
 
 1 Kay, 148 .306, 
 
 308, 309, 315, 332, 335, 340 
 V. Hill, 24 Fed. Rep. 571, Ov. 
 
 23 Fed. Rep. 311.. 446, 447 
 V. Hill, 23 Blatchf. 312 .... 428 
 Robertson v. Bullions, 11 N. Y, 
 
 253 344 
 
 Robinson, Kc parte, 6 McLean, 
 
 355 123 
 
 V 
 
 Robinson v. Atlantic & G. W. R. 
 
 Co. 66 Pa. 160 
 
 24, 25, 46, 125, 137, 
 129, 184, 186, 188, 190, 
 373, 417, 501, 620, 621, 631 
 V. Bank of Attica, 21 N. Y. 
 
 406 173, 407 
 
 V. Growder, 4 McCord, L. 
 
 519 165 
 
 V. Dickey (Ind.) 42 N. E. 638 68 
 V. Hadley, 11 Beav. 614, 18 
 
 L. J. Ch. N. S. 428 -.27, 354 
 V. National Bank, 95 N. Y. 
 
 637 178 
 
 ®. Ross, 40 Ga. 375 62 
 
 V. Smith, 3 Paige, 22. 351 
 
 V. Taylor, 42 Fed. Rep. 803 61 
 «. Turrentine, 59 Fed. Rep. 
 
 554 441 
 
 Rochat V. Gee, 91 Cal. 355 118, 594 
 
 Rochester v. Bronson, 41 How. Pr. 
 
 78 209, 346, 374 
 
 Rockwell V. Merwin, 8 Abb. Pr. 
 
 N. S. 330 159 
 
 V. Merwin, 45 N. Y. 166... 
 
 92. 200. 411, 415 
 Rodbourn v. Utica, I. & E. R. Co. 
 
 28 Hun, 369 261, 461 
 
 Rogers «. Corning, 41 Barb. 229.. 121 
 V. DeForest, 7 Paige, 272.. 29 
 V. Dougherty, 20 Ga. 271.. 
 
 15, 17, 467, 603 
 
 V. Haines, 96 Ala. 586 412 
 
 v. Lafayette Agri. Works, 
 
 52 Ind. 296 359 
 
 V. Marshall, 6 Abb. Pr. N. 
 
 S. 457 552 
 
 V. Mobile &0. R.Co.(Tenn.) 
 13 Am. & Eng. R. Cas. 
 
 442 46 
 
 V. Mobile, etc. R. Co. 17 
 
 Cent. L. J. 290 313 
 
 V. Wendell, 54 Hun, 540... 
 
 216, 217, 230, 395, 625 
 V. Wheeler, 43 N. Y. 598.. . 
 
 128. 184, 211, 396 
 Rollins V. Henry, 77 N. C. 467... 
 
 42, 43, 289, 552 
 Rollwagen i). Rollwagen, 37 N. Y. 
 
 S. R. 393 551 
 
 Roman v. Woolfolk, 98 Ala. 319.. 
 
 351. 365 
 Rome & D. R. Co. v. Sibert, 97 
 
 Ala. 393... 600 
 
 Rose®. Bcvan.lOMd. 466.... 337, 364 
 Rosenberg v. Moore, 11 Md. 376. . 
 
 339, 248, 249 
 Rosenblatt v. Johnston, 104 U. S. 
 
 462, 26 L. ed. 832.. 422, 429 
 Ross V. Bridge, 15 Abb. Pr. 150, 24 
 
 How. Pr. 163 566
 
 Ixxxii 
 
 CASES CITED. 
 
 Ross Mehan Brake Shoe Foundry 
 Co. ■». Southern Mal- 
 leable Iron Co. 72 Fed. 
 
 Rep. 957 401, 403 
 
 Rounds V. McCormick, 114 111. 252 405 
 Rouse V. Hornsby, 67 Fed. Rep. 
 
 219 - 514 
 
 V. Redinger, 1 Kan. App. 355 513 
 
 Rovfev. Rand. Ill Ind. 206 583 
 
 V. Wood, 2 Jac. «& W. 553.. 
 
 284, 335 
 Rowell V. Chandler, 83 111. 288... 175 
 Rowth ». Howell, 3 Ves. Jr. 565.. 
 
 201. 218 
 Roxbury v. Central Vernaont R. 
 
 Co. 60 Vt. 121 
 
 190, 202, 212, 615 
 
 Royal Bank of Scotland v.Cuthbert 
 
 (Stein's Case), 1 Rose, 
 
 Bank Cases, Appx. 472, 
 
 2 Rose, Bank Cases, 78. 109 
 
 Ruck V. "Williams, 3 Hurlst. & N. 
 
 308 210 
 
 Rudd V. Robinson, 54 Hun, 339.. 
 
 171, 173, 407 
 Rufifner v. Mairs, 33 W. Va. 655.. 
 
 70, 603, 604 
 
 Ruggles ». Brock, 6 Hun, 164 
 
 117, 177, 403 
 Ruuk V. St. John, 29 Barb. 585... 
 
 110. Ill, 113, 167, 168 
 Runyon v. Farmers' & M. Bank, 
 
 4N. J. Eq. 480.. 00, 84. 114 
 Russell V. Bristol, 49 Conn. 251... 
 
 389, 396 
 V. Chicago Trust & Sav. 
 Bank, 139 111. 538, 17 
 
 L. R. A. 345 
 
 22, 253, 263, 376 
 V. Clark, 11 U. S. 7 Cranch, 
 
 69, 3L. ed. 271 240, 246 
 
 V. East Anglian R. Co. 3 
 
 Macn. &G. 104 
 
 34, 85. 124. 127-129, 
 
 132, 184. 190, 621 
 V. Texas & P. R. Co. 68 Tex. 
 
 646 24, 46, 65, 125, 501 
 
 V. White. 63 Mich. 409 66 
 
 Rust V. United Waterworks Co. 
 
 70 Fed. Rep. 129.. 398, 412 
 Rutherford v. Jones, 14 Ga. 521.. 550 
 Ruttert). Tallis, 5 Sandf. 611.... 
 52. 53, 65, 74, 124, 125, 
 261. 307. 315, 372, 375, 417 
 Ryall V. Larkin. 1 Wils. 155, Bull- 
 
 er'sN. P. 181 384 
 
 Ryan v. Hays, 62 Tex. 42.. 46, 212, 
 
 233, 395, 516, 517, 520, 565 
 V, Kingsbery, 88 Qa. 361.-- 
 
 121, 122 
 V. Morrill, 83 Ky. 352. ..87, 337 
 
 Ryan v. Rand, 20 Abb. N. C. 313 
 
 216, 395, 626 
 Ryckman v. Parkins, 5 Paige, 543 
 
 89, 90 
 Ryon V. Thomas, 104 Ind. 59.594. 632 
 
 S. 
 
 Sacker, Re, L. R. 22 Q. B. Div. 179 401 
 
 Sacramento P. li. Co. v. San Fran- 
 cisco Super. Ct. 55 Cal. 
 453 459, 462, 465 
 
 SaflEord v. Douglas, 4 Edw. Ch. 538 376 
 
 V. People, 85 111. 558 
 
 120, 345, 418 
 
 Sage V. Memphis & L. R. R. Co. 
 125 U. S. 361. 31 L. ed. 
 
 694 
 
 68, 69, 247, 268, 272, 
 282, 348, 349. 359, 303, 
 455, 456, 458, 479, 562. 575 
 
 Sagory v. Dubois, 3 Sandf. Ch. 466 
 
 116, 175, 362. 403. 404 
 
 St. Albans First Nat. Bank, Be, 49 
 
 Fed. Rep. 120 382 
 
 St. Clair County v. Lovingston, 85 
 U. S. 18 Wall. 628, 21 
 L. ed. 813 71 
 
 St. George's Estate, Be, L. R. 19 Ir. 
 
 566 563 
 
 St. Joseph & D. C. R. Co. v. Smith, 
 
 19 Kan. 225 46, 50, 
 
 125, 183, 189, 191, 418, 614 
 
 St. Joseph & St. L. R. Co. «. Hum- 
 phreys, 145 U. S. 105, 
 
 36 L. ed. 640 
 
 103, 106, 221, 222. 393, 497 
 
 St. Louis V. St. Louis Gaslight Co. 
 
 II Mo. App. 337 588 
 
 St. Louis & C. R. Co. V. East St. 
 
 Louis &C. R. Co. 39 111. 
 App. 354, Aff'd 139 111. 
 
 401 325 
 
 St. Louis & S. Coal & M. Co.. v. 
 Edwards, 103 111. 472. 
 
 41, 347. 355, 367 
 V. Sandoval Coal & M. Co. 
 
 III 111. 32-_68, 85, 142, 
 148, 161, 173, 399, 400, 616 
 
 St. Louis & S. F. R. Co. v. John- 
 ston. 27 Fed. Rep. 243.. 203 
 
 St. Louis, A. & T. H. R. Co. v. 
 Cleveland, C. C. & L. R. 
 Co. 135 U. S. 658, 31 L. 
 ed. 833.. 95, 373, 481, 
 
 579, 580 
 
 St. Louis, A & T. R. Co. v. Whit- 
 
 aUcr. 68 Tex. 636 374 
 
 St. Louis Car Co. «. Stillwater 
 Street R. Co. 53 Minn. 
 139- 295
 
 CASES CITED. 
 
 Ixxxiii 
 
 St. Louis, K. C. & C. R. Co. v. 
 
 Dewes, 23 Fed. Rep. 519 460 
 St. Louis S. W. R. Co. V. Hol- 
 
 brook, T6 Fed. Rep. 113 491 
 St. Louis Trust Co. ■». Riley, 70 
 Fed. Rep. 33, 30 L. R. 
 
 A. 456 --- 491 
 
 St. Nicholas, The, 49 Fed. Rep. 
 
 676 183, 192 
 
 St. Paul Title Ins. & T. Co. v. Di- 
 agonal Coal Co. (Iowa) 
 
 6i N. W. 606-.- 589 
 
 Sales V. Lusk, 60 Wis. 490 
 
 11, 300, 349 
 Salisbury v. Metropolitan R. Co. 
 
 38 L. J. Ch. 349 409 
 
 Salt V. Coomv, L. R. 16 Ch. Div. 
 
 544 249 
 
 Salter v. Bowe, 33 Hun, 236 259 
 
 Salway v. Salway, 3 Russ. & M. 
 
 215 23,201, 207 
 
 San Antonio & G. S. R. Co. v. 
 Davis (Tex.) 2 Am. & 
 Eag. Corp. Cas. N. S. 
 374.-42, 73, 239, 344, 
 
 361, 374 
 Sanders v. Christie, 1 Grant, Ch. 
 
 137. 355, 535, 557 
 
 V. Partridge, 108 Mass. 556. 224 
 Sanderson v. Stockdale, 11 Md. 
 
 563 247 
 
 Sandfordw. Ballard, 30 Beav. 109- 42 
 V. Ballard, 33 Beav. 401_..- 550 
 «. Clark, 38 N. J. Eq. 265-- 
 
 301, 204 
 V. Sinclair, 8 Edw. Ch. 393. 
 
 15, 16, 34 
 
 V. Sinclair, 8 Pais;e, 373 
 
 15, 18, 33, 363, 466 
 Sands v. Roberts, 8 Abb. Pr. 343- 
 
 66, 139 
 V. Sanders, 28 N. Y. 416--. 
 
 115, 369, 391, 634 
 
 V. Sweet, 44 Barb, 108 391 
 
 Saokey «. O'Maley, 3 Moll. 491.. 563 
 Sargant v. Read, L. R. 1 Ch. Div. 
 
 600,45L. J. Ch. 206-27, 313 
 Saunders v. Kempner (Tex. Civ. 
 
 App.).33 S. W. 585.-33, 67 
 V. Williams, 5 N. H. 313.50, 110 
 Savage v. Medbury, 19 N. Y. 32-. 
 
 158, 309, 383, 390 
 V Murphy, 34 N. Y. 508--. 356 
 Savannah v. .lessup, 106 U. S. 563, 
 
 27 L. ed. 276.. 118, 127, 183 
 Saverios v. Levy, 1 N. Y. S. R. 
 
 758 309, 336 
 
 Sawyers. Harrison, 43 Minn. 297- 698 
 V. Hoag, 84 U. S. 17 Wall. 
 610, 21 L. ed. 731 ..157, 
 
 404, 405, 446 
 
 Saxbey v. Easterbrook, L. R. 8 C. 
 
 P. Div. 339 131 
 
 Saylcs V. National Water Purify- 
 ing Co. 41 N. Y. S. R. 
 
 856 144 
 
 Saylor v. Mockbie, 9 Iowa, 309- . 
 
 307, 311 
 Scammon v. Kimball, 92 U. S. 363, 
 
 23 L. ed. 483.-180,383, 
 
 440, 618 
 Schalucky v. Field, 124 111. 617... 405 
 Schell V. Hu.seman (C. P.) 1 Ohio 
 
 L. D. 120- -. 59 
 
 Schenck v. Consumers' Coal Co. 26 
 
 Abb. N. C. 356 574 
 
 V. Ingrahara, 5 Hun, 397... 593 
 
 Schenk v. Peay, 1 Dill. 267 73, 84 
 
 Scheubert «. Ilonel, 50 111. App. 
 
 597, 152 111. 313 253 
 
 Schieffelin v. Stewart, 1 Johns. Ch. 
 
 618... 215 
 
 Schiele v. Healy, 61 How. Pr. 73. 250 
 
 Schier v. Lamb, 134 Mass. 275 400 
 
 Schindelholz v. Cullam, 55 Fed. 
 
 Rep. 885 417 
 
 Schlect's Appeal, 60 Pa. 172 12, 43 
 
 Schmid v. New York, L. E. & W. 
 
 R. Co. 32Hun, 3.85...- 
 
 519, 520, 629 
 Schmidlapp v. Currie, 55 Miss. 597 387 
 Schmittler v. Simon, 101 N. Y. 557 
 
 216, 626 
 
 Schoharie©. Pindar, 3 Lans. 8... 76 
 Schoonover v. Hinckley, 48 Iowa, 
 
 83....117. 174,177, 385. 
 
 386, 403 
 Schrader v. Manufacturers' Nat. 
 
 Bank, 133 U. S. 67, 33 
 
 L. ed. 564 444 
 
 Schreiber v. Carey, 48 Wis. 208.. 
 
 34, 267, 274, 281, 289, 
 
 397, 298 
 Schultz V. Phenix Ins. Co. 77 Fed. 
 
 Rep. 375 -. 698 
 
 Schuyler Steam Tow Boat Co. , Re, 
 
 43 N. Y. S. R. 163... 53, 74 
 Re, 136 N. Y. 169, 20 L. R. 
 
 A. 391, 64 Hun, 386... 
 
 52, 57, 65, 74, 123, 135, 
 
 127, 139, 417 
 Schwartz v. Keystone Oil Co. 153 
 
 Pa. 383 .-394, 584, 585, 587 
 
 Scott, Ex parte, 1 Rose, 446 106 
 
 1). Armstrong, 146 U. S. 499, 
 
 36 L. ed. 1059 
 
 138, 151, 180, 383, 439, 439 
 V. Beechcr, 4 Price, Exch. 
 
 Rep. 346 530 
 
 V Clinton & S. R. Co. 6 Biss. 
 
 539 276 
 
 V. Delahunt, 65 N. Y. 128.. 489
 
 Ixxxiv 
 
 CASES CITED. 
 
 Scott V. Depeyster, 1 Edw. Ch. 513 360 
 V. Duncombe, 49 Barb. 73-. 92 
 
 «. Elmore, 10 Hun, 68 
 
 66, 142, 148 
 V. Farmers' Loan & T. Co. 
 
 69 Fed. Rep. 17.. 472 
 
 V. notcbkls8(Cal.)47 Pac. 45 693 
 
 V. McMillen, 1 Litt. 302 247 
 
 V. Neely. 140 U. S. 106, 35 
 
 L. ed. 358 238 
 
 V. Nesbitt, 14 Ves. Jr. 438.. 96 
 
 V. Nevins, 6 Duer, 672 257 
 
 V. Rainer Power & R. Co. 13 
 Wash. 108, 2 Am. &. 
 Eng. Corp. Cas. N. S. 
 
 401 ....393, 514, 517 
 
 V. Scott, 13 Ir. Eq. 212 .... 552 
 
 V. Soarles, 5 Sraedes & M. 25 54 
 
 V. Ware, 65 Ala. 174.70, 276, 280 
 
 Scouton V. Beuder, 3 IIow. Pr. 185 144 
 
 Scoville V. Thayer. 105 U. S. 143, 
 
 26 L. ed. 968. 404, 405 
 
 Screven v. Clark. 48 Ga. 41 . . ..92, 
 
 153, 159, 383, 399, 410, 411 
 
 Scripps V. King, 103 111. 469 238 
 
 Scruggs V. Memphis & C. R. Co. 
 108 U. S. 368, 27 L. ed. 
 
 756 38 
 
 Scudder v. Anderson, 54 Mich. 122 622 
 Seagram v. Tuck, L. R. 18 Ch. 
 
 Div. 296- 78 
 
 Sea Ins. Co. v. Slebbins, 8 Paige, 
 
 565 267, 274, 277- 
 
 280, 284. 288, 290, 299 
 
 Seaman, Be, 2 Paige, 209 203 
 
 Searle v. Choate, L. R. 25 Ch. Div. 
 
 723 184, 194 
 
 Searles v. Jacksonville, P. & M. R. 
 
 Co. 2 Woods. 621 471 
 
 Seattle, L. S. & E. R. Co., Re, 61 
 
 Fed. Rep. 541 503 
 
 Second Nat. Bank v. Dunn, 97 N. 
 
 Y. 156 123, 124 
 
 Second Ward Bank v. Upmann, 12 
 Wis. 499... 45, 59, 238, 
 
 254 255 
 Secor V. Toledo, P. & W. R. Co. 7 
 
 Biss. 542 128 
 
 Securities & Properties Corp. v. 
 Brighton, Alhambra, 62 
 
 L. J. Ch. 566 ...95, 96 
 
 Security Life Ins. & A. Co., Be, 31 
 
 Hun, 36. 585 
 
 Security Sav. & T. Co. ■». Piper 
 
 (Idaho) 40 Pac. 144.356, 417 
 Sedgwick v. Meuck, 6 Blatchf. 
 156, 1 Nat. Bankr. Reg. 
 
 230 ...48, 56, 121 
 
 e. Place, 3 Ben. 360 57 
 
 Seibert v. Seibert, 1 Brewst. 531.. 
 
 307, 315 
 
 Seidenbach v. Denklespeil, 11 Lea, 
 
 297 78 
 
 Seighortner v. Weissenborn, 20 N. 
 
 J. Eq. 172 332 
 
 Seigniousv. Pate, 32 S. C. 134... 293 
 Sellers v. Phoenix Iron Co. 13 Fed. 
 
 Rep. 20 359, 367 
 
 Semple v. Eubanks (Tex. Civ. 
 
 App.)35S. W. 509-... 52 
 0. Flynn (N. J.) 8 Cent. Rep. 
 
 549 310 
 
 Seney v. Wabash W. R. Co. 150 U. 
 S. 310, 37 L. ed. 1092.. 
 
 103, 106, 497 
 Senior v. Pierce, 31 Fed. Rep. 627 
 
 123, 124 
 
 Sercomb v. Catlin, 128 111. 556 
 
 47, 113. 133, 147, 372, 417 
 Sere v. Pitot, 10 U. S. 6 Cranch. 
 
 332. 3L. ed. 240 408 
 
 Seventh Nat. Bank v. Shenandoah 
 Iron Co. 35 Fed. Rep. 
 
 436 484 
 
 Sewell V. East Cape Mat Beach Co. 
 
 50 N. J. Eq. 717 353 
 
 Seymour v. Milford & C. Tump. 
 
 Co. 10 Ohio, 476 454 
 
 V. Sturges, 26 N. Y. 134 ... 404 
 
 V. Wilson, 16 Barb. 294 114 
 
 V. Wilson, 15 How. Pr. 355 258 
 Shackelford v. Shackelford, 32 
 
 Gratt. 481 ...76, 563 
 
 Shainwald v. Davids, 69 Fed. Rep. 
 
 687 52 
 
 V. Lewis.' 8 Fed. Rep.' 878". '. 
 
 89, 91 
 
 V. Lewis, 7 Sawy. 148 
 
 242, 249 
 Shakel v. Duke of Marlborough, 4 
 
 Madd. 463. 296 
 
 Shand v. Hanley, 71 N. Y 319... 264 
 Shannon v. Davis, 64 Miss. 717... 
 
 533, 537 
 V. Hanks, 88 Va. 338...... 
 
 26, 35, 42, 61. 62, 70, 603 
 
 V. Wright, 60 Md. 520 
 
 307. 324, 325, 528 
 Shattuck V. Cassidy, 3 Edw. Ch. 
 
 152 147 
 
 Shaughnessy v. Rensselaer Ins. 
 
 Co. 21 Barb. 605. 
 
 369, 383, 397 
 Shaw V. D wight, 27 N. Y. 244.... 247 
 «j. Glen, 37N. J. Eq. 32.... 92 
 V. Norfolk County R. Co. 5 
 
 Gray, 162 458. 462, 465 
 
 V. Rhodes, 2 Russ. 539 215 
 
 . Shore, 5 L. J. Ch. N. S. 
 
 79 295 
 
 V. Wrigh't'"3 Ve's''j'r'2'2'.'."47^ 301 
 
 Sheeks v. Klotz, 84 Ind. 471 298
 
 CASES CITED. 
 
 Ixxxv 
 
 Sheldon v. Adams, 18 Abb. Pr. 
 
 405, 27 How. Pr. 179, 
 
 41 Barb. 54 --. 558 
 
 Shepherd v. Pepper, 133 U. S. 626, 
 
 33 L.ed. 706 275 
 
 Shepley v. Atlantic «fe St. L. R. Co. 
 
 55 Me. 395 
 
 273, 458, 461, 462, 464 
 Sheppard v. Oxenford, 1 Kay & J. 
 
 491- 306, 325, 335, 836 
 
 Sherman v. Clark, 4 Nev. 138 
 
 14, 32, 45 
 V. Willett, 42 N. Y. 146.... 276 
 Sherry v. Perkins, 147 Mass. 212. 
 
 130, 131 
 Sherwood v. Milford State Bank, 
 
 94 Mich. 78_ 392 
 
 Shields v. Coleman, 157 U. S. 168, 
 
 39 L. ed. 660 345 
 
 Shipman v. ^tna Ins. Co. 29 Conn. 
 
 245 407 
 
 Shirley v. Watts, 3 Atk. 200 
 
 237 245 249 
 Shockley v. Fisher, 75 Mo" 498... 406 
 Shoemaker t). Smith, 74 Ind. 71.. 
 
 308, 321, 382 
 Shotwell V. Smith, 8 Edw. Ch. 
 
 588 267, 274, 277, 
 
 280, 285, 292. 294, 459, 464 
 Showalter v. Laredo Improv. Co. 
 
 83 Tex. 162 
 
 53, 115. 362, 403, 405 
 Shreve t». Hawkinson, 34 N. J. Eq. 
 
 413 105, 107 
 
 Shrewsbury R. Co. v. Chester R. 
 
 Co. 14 L. T. 217. 7, 8 
 
 Shulte V. Hoffman, 18 Tex. 578.. 63, 75 
 Shultz V. Hoagland, 85 N. Y. 464. 250 
 Sickles «. Herold, 149 N. Y. 332, 
 
 Mod. 15 Misc. 116 433 
 
 Sidenberg v. Ely, 90 N. Y. 257... 293 
 Silkstone & D. Coal & I. Co.. He, 
 
 L. R. 17 Ch. Div. 158.. 224 
 Sill V. Worswick, 1 H. Bl. 690... 
 
 109, 164 
 Silver v. Bi-shop of Norwich, 3 
 
 Swanst. 112, 7iote 44 
 
 Silverman v. Kuhn. 53 Iowa, 436. 264 
 V. Northwestern Mut. L. 
 
 Ins. Co. 5 111. App. 124 269 
 Silver Valley Mines, Re, L. R. 21 
 
 Ch. Div. 381 118 
 
 Simmons v. Henderson, 1 Freem. 
 
 Ch. (Miss.) 493 34, 73 
 
 «. Wood, 45 How. Pr. 268.. 
 
 15, 100, 603, 632 
 Simmons Hardware Co. v. Waibel, 
 
 1 S. D. 488, 11 L. R. A. 
 
 267 10, 12, 40, 348, 542 
 
 Simon v. Schlo8.s, 48 Mich. 233... 
 
 307, 308, 313, 315, 329 
 
 Simpkins v. Smith & P. Gold Co. 
 
 50 How. Pr. 56 170. 416 
 
 Simpson v. Ottawa & P. R. Co. 1 
 Ont. Ch. Chamb. 99.. 
 
 12, 59, 60 
 
 V. Robert, 35 Ga. 180 295 
 
 v. Warren, 55 Me. 18... 261, 407 
 Sims V. Adams, 78 Ala. 395. 
 
 15, 18, 20, 542 
 Siney v. New York Consol. Stage 
 Co. 18 Abb. Pr. 435, 28 
 
 How. Pr. 481 ..91, 599 
 
 Singerly v. Fox, 75 Pa. 112 
 
 50, 111. 134. 
 142, 162, 168. 180, 337, 410 
 Skeelew. Stauwood, 33 Me. 309_. 239 
 
 Skerretts, lie, 2 Hog. 192. 202 
 
 Skiddy v. Atlantic. M. & O, R. 
 
 Co. 3 Hughes, 320 
 
 477, 483, 577, 607 
 
 Skiles V. Houston, 110 Pa. 254 439 
 
 Skinner v. Maxwell, 68 N. C. 400, 
 
 66 N. C. 45 
 
 14. 22, 24. 25, 46, 124, 
 125. 132, 184, 372, 374, 417 
 Skinner's Co. v. Irish Soc. 1 Myl. 
 
 &C. 162. 44 
 
 Skip V. Harwood, 3 Atk. 564 
 
 11, 24, 49, 122, 126, 
 128, 141. 142, 252, 268, 337 
 Slater Mut. F. Ins. Co., Be, 10 R. 
 
 I. 42 391 
 
 Slattery v. St. Louis"& N." 6" 
 
 Transp. Co. 91 Mo. 217. 397 
 Slee V. Bloom, 5 Johns. Ch. 366.. 
 
 343. 344 
 
 V. Bloom, 19 Johns. 456 374 
 
 Sleeper v. Iselin, 59 Iowa, 379 
 
 277, 280 
 
 Slemmer's Appeal, 58 Pa. 168 
 
 805, 308, 309, 311, 325. 334 
 Sloan V. Central Iowa R. Co. 62 
 
 Iowa, 728 202, 209, 
 
 211, 395, 511. 514, 519. 630 
 
 V. Moore, 37 Pa. 217. ..310, 337 
 
 Smart v. Flood, 49 L. T. 467.. .78, 232 
 
 Smith, Ex parte, 23 Ala. 94 54 
 
 V. Allen, 2 E. D. Smith, 259 73 
 
 V. Bell, 107 Pa. 352. 391 
 
 V. Buchanan, 1 East, 6 109 
 
 V. Burton, 67 Vt. 514 98 
 
 V. Butcher, 28 Gratt. 144. . . 70 
 V. Chicago & N. W. R. Co. 
 
 23 Wis. 267 170 
 
 V. Coliyer, 8 Ves. Jr. 89.... 13 
 V. Cowell, L. R. 6 Q. B. Div. 
 
 75 249 
 
 V. Danvers, 5 Sandf. 669... 337 
 V. Danzig, 64 How. Pr. 320 
 
 347, 465 
 V. Dixon, 4 Week. Rep. 259 28
 
 Ixxxvi 
 
 CASES CITED. 
 
 Smith V. Earl of Effingham, 2 
 
 BoHV. 232 ....197, 620 
 
 V. Felton, 43 N. Y. 419.... 180 
 v. Ft. Scott. H. & W. R. Co. 
 
 99 U. S. 398. 25 L. ed. 
 
 437 238 
 
 «. Fox, 48 N. Y. 674_. 180 
 
 V. Gordou, 6 Law Rep. 313. 223 
 v. Hopkins, 10 Wash. 77, 97 
 
 68, 398 
 
 ®. Hurd, 12 Met. 371 397 
 
 V. Jeyes, 4 Beav. 503... 305, 
 
 307. 309, 325, 328, 330. 332 
 
 «. Kelley, 31 Hun, 387 
 
 29«. 548. 551 
 V. Lansing, 22 N. Y. 521 .. . 360 
 ®. Longmire, 1 Am. Insolv. 
 
 Rep. 426 246 
 
 V. Los Angeles County 
 
 Super. Ct. 97Cal. 348.. 239 
 
 V. Lowe, 1 Edw. Ch. 33 
 
 308, 331, 334 
 
 V. Lyster, 4 Beav. 227 
 
 547, 550 
 V. McCullough, 104 U. S. 25, 
 
 26 L. ed. 637... 
 
 53, 104, 508, 525 
 V. Mclver, 22U. 8. 9 Wheat. 
 
 533. 6L. ed. 152 122 
 
 ®. McNamara, 15 Hun, 447. 
 
 121. 122 
 «. Manhattan Ins. Co. 4 
 
 Hun, 127 570 
 
 ». Manufacturer's Nat. 
 
 Bank, 9 Nat. Bankr. 
 
 Reg. 128 155 
 
 D. Mosby, 9 Heisk. 501 180 
 
 V. Mules. 9 Hare, 556 334 
 
 V. New York Consol. Stage 
 
 Co. 18 Abb. Fr. 419, 18 
 
 How. Pr. 377, 28 How. 
 
 Pr.208-25,26. 60, 62,65, 
 89, 90, 125. 380, 416, 619 
 «. Perth Amboy Brick Co. 
 
 47 N. J. Eq. 442 571 
 
 «. Port Dover & L. H. R.Co. 
 
 12 Ont.App. 288,25 Am. 
 
 &Eng. R. Cas. 639.... 
 
 11, 12, 467, 470 
 
 v. Reid, 134 N. Y. 578 241 
 
 «. Smith,2 Younge&C. 351, 
 
 10 Hare, Appx. Ixxi. 44, 
 
 274, 284. 586 
 v. Thompson, Walk. Ch. 
 
 (Miss.)l .45, 238, 252 
 
 V. Tiffany, 13 Hun, 671 
 
 277, 280, 297, 298 
 
 «. Tozer, 42 Hun, 22 
 
 146-148, 262 
 V. Trenton Delaware Falls 
 
 Co. 4N. J. Eq. 505...- 120 
 
 Smith V. Uniled States Exp. Co. 
 
 18.5 111. 279.... 183 
 
 «. Weeks, 00 Wis. 94 
 
 238. 241, 251 
 v. Wells, 20 How. Pr. 158.. 
 
 13, 43. 352, 355 
 
 V. Westerfield. 88 Cal. 374.. 357 
 
 V. Wright, 1 Abb. Pr. 243.. 315 
 
 Smith's Appeal, 104 Pa. 381. .111, 112 
 
 Smith Charities 1). Connolly, 157 
 
 Mass. 276 272 
 
 Smyth v. New Orleans Canal & 
 Bkg. Co. 141 U. S. 661, 
 
 35 L. cd. 893__ 288 
 
 Snedaker, Re, 4 Nat. Bankr. Reg. 
 
 44 301 
 
 Snively v. LoomisCoal Co. 69 Fed. 
 
 Rep. 204 388 
 
 Snow V. Winslow, 54 Iowa, 200.. 
 
 22. 525 
 Snyder v. Armstrong, 37 Fed. Rep. 
 
 18 138 
 
 Sobernheimer i). Wheeler, 45 N. J. 
 
 Eq. 614 
 
 43. 113, 167, 169, 337 
 Sohier v. Lamb, 134 Mass. 275.... 161 
 Sollory ». Leaver, L. R. 9 Eq. 22. 
 
 14, 32, 45 
 
 Solomons v. Ross, 1 H. Bl. 131 
 
 109, 164 
 Sorley v. Brewer, 18 How. Pr. 
 
 276 239 
 
 Sortwell V. Jewett, 9 Ohio, 181... 167 
 Southard v. Benner, 72 N. Y. 424 
 
 173, 261, 407 
 South Bend Toy Mfg. Co. v. Da- 
 kota F. & M. Ins. Co. 3 
 
 S. D. 205 171 
 
 V. Pierre F. & M. Ins. Co. 4 
 
 S. D. 173... 381 
 
 South Carolina R. Co., Re, 11 Chi- 
 cago Leg. News, 8 358 
 
 V. People's Sav. Inst. 64 Qa. 
 
 18.. 48 
 
 Southern Bank «. Ohio Ins. Co. 22 
 
 Ind. 181. - 49 
 
 Southern California R. Co. v. 
 Rutherford, 62 Fed. 
 
 Rep. 796... 131 
 
 Southern Development Co.w. Hous- 
 ton it T. C. R. Co. 27 
 
 Fed. Rep. 844 392 
 
 Southern Exp. Co. e Western N. 
 C. R. Co. 99 U. S. 194, 
 
 25 L. ed. 320 
 
 102, 103, 129, 183, 196, 
 204, 221, 225, 373, 396, 
 
 493, 505, 511. 515 
 Southern P. R. Co. v. Maddox, 75 
 
 Tex. 300... 191, 521 
 
 Spahr«. Nicklaus, 54 Ind. 221... 181
 
 CASES CITED. 
 
 Ixxxvii 
 
 Spalding «. Com. 88 Ky. 138.. 125, 183 
 v. People, 7 Hill, 301, 10 
 
 Paige, 284... 207 
 
 Sparhawk v. Yerkes, 143 U. S. 1, 
 
 35 L. ed. 915 103, 
 
 106, 107, 231, 233, 493, 506 
 
 Spears, Grant, 16 Mass. 9 175, 354 
 
 Special Bank Comrs. v. Cran>ton 
 
 Sav. Bank, 12 R. I. 497 586 
 V. Franklin Inst, for Sav. 11 
 
 R. I. 557. 583, 632 
 
 Speed t). May, 17 Pa. 91 110 
 
 Speights V. Peters, 9 Gill, 472 
 
 14, 33, 45, 306, 307, 310, 
 
 311, 322, 325, 330, 335 
 Spencer v. Cuvler, 17 How. Pr. 
 157, 9 Abb. Pr. 382.... 
 
 237, 241, 251-253 
 V. World's Columbian Ex- 
 position (HI.) 45 N. E. 
 
 250. 697 
 
 Sperling v. Levy, 10 Abb. Pr. 426 
 
 253 254 
 Spindle v. Shreve, 111 U. S. 542^ 
 
 28 L. ed. 512 238 
 
 Spinning v. Ohio L. Ins. «& T. Co. 
 
 3 Disney, 368... 
 
 24, 48, 56, 138, 129. 132, 416 
 Spokane v. First Nat. Bank, 68 
 
 Fed. Rep. 983 431 
 
 Spokane County v. Clark, 61 Fed. 
 
 Rep. 538 393 
 
 Spooner «. Bay St. Louis Syndi- 
 cate, 44 Minn. 403... 33, 33 
 
 Sprague v. Smith, 39 Vt. 431 
 
 130, 208-211, 511 
 Spratt V. Ahearns, 1 Hayes & J. 
 
 800 28 
 
 Springhead Spinning Co. v. Riley, 
 
 L. R. 6Eq. 551.. _. 130, 131 
 Springs v. Bowery Nat. Bank, 63 
 
 Hun, 505 405. 411, 415 
 
 Stafford v. Union Bank, 57 U. S 
 16 How. 140, 14 L. ed. 
 
 878 73, 84 
 
 Stairley v. Rabe, McMuIl. Eq. 22. 
 
 529, 534, 546 
 
 Stanley v. Bunce, 27 Mo. 269 350 
 
 V. National Union Bank, 115 
 
 N. Y. 123 66, 85, 616 
 
 Stanton v. Alabama & C. R. Co. 31 
 
 Fed. Rep. 585 314. 524 
 
 V. Alabama & C. R. Co. 3 
 
 Woods, 506.. 
 
 86, 93, 234, 380, 523 
 V. Andrews, 18 111. App. 
 
 553. 569 
 
 V. Wilkinson, 8 Ben. 357... 
 
 163, 404, 435, 435, 437 
 
 Staples V. May, 87 Cal. 178. 
 
 202, 231, 332, 295, 632 
 
 Stark V. Burke, 5 La. Ann. 740... 
 
 115, 116, 174, 346, 347, 
 
 374, 403, 465 
 V. Burke, 9 La. Ann. 341... 177 
 Starr v. Rathbone, 1 Barb. 70.. 45, 238 
 State V. Buchanan, 5 Harr. & J. 
 
 317 131 
 
 V. Burnham, 15 N. H. 396.. 131 
 
 V. Butler, 15 Lea, 113 589 
 
 V. Chehalis County Super. 
 
 Ct. 8 Wash. 210 49 
 
 V. Clinton & P. H. R. Co. 
 
 21 La. Ann. 156 181 
 
 V. Commercial & Sav. Bank, 
 
 37 Neb. 174 383 
 
 V. Commercial State Bank, 
 
 28 Neb. 677.. 54 
 
 V. Delafield, 8 Paige, 537. .. 40 
 V. East Line & R. R. R. Co. 
 
 (Tex. Dist. Ct.) 48 Am. 
 
 «feEDg. R Cas. 656.-578, 599 
 D. Edgefield & K. R. Co. 6 
 
 Lea, 353 507 
 
 V. Exchange Bank, 34 Neb. 
 
 198 54 
 
 V. Foot, 37 S. C. 340.. 245 
 
 V. Gibson, 21 Aik. 140.. 23, 
 
 77-79, 202, 605 
 
 V. Glidden, 55 Conn. 46 131 
 
 V. Jacksonville, P. & M. R. 
 
 Co. 15 Fla. 201 15, 
 
 16, 48, 55, 111. 169, 345, 
 
 354, 372, 454, 466, 603 
 V. Jacksonville, P. & M. R. 
 
 Co. 16 Fla. 708 99, 389 
 
 V. Johnson, 13 Fla. 33... 73, 616 
 V. McMinnville & M. R. Co. 
 
 6 Lea, 369 105 
 
 V. Merchants' Ins. & T. Co. 
 
 8 Humph. 353.- 344 
 
 V. Miller, 54 Kan .344 345 
 
 V. Minneapolis & St. L. R. 
 
 Co. 88 Iowa, 589 214 
 
 V. Northern C. R. Co. 18 
 
 Md. 193 273. 461, 462 
 
 V. Phoenix Bank, 33 N. Y. 
 
 9. 69 
 
 V. Port Royal & A. R. Co. 
 
 (S. C.)23 S. E. 380.... 
 
 488, 524 
 
 V. Rivers, 66 Iowa, 653 132 
 
 V. Rives, 5 Ired. L. 297 454 
 
 V. Ross, 122 Mo. 435 67 
 
 V. Scarritt (Mo.) 30 S. W. 
 
 1026. 67 
 
 V. Snohomish County Super. 
 
 Ct. 7 Wash. 77 49, 127 
 
 V. State Bank, 40 Neb. 192. . 407 
 
 V. Stewart, 59 Vt. 273 131 
 
 V. Wabash R. Co. 115 Ind. 
 
 460 213. 510
 
 Ixxxviii 
 
 CASES CITED. 
 
 State V. Williams, 2 Specrs, L. 
 
 26 207 
 
 V. Wilmer, 65 Md. 178 268 
 
 V. Wnodfin, 5 Ired. L. 199.- 207 
 State, ex rel. Arasterdamsch Trus- 
 tees Kantoor,^). Spokane 
 County Super. Ct. 
 (Wash.) 47 Pac. 31-... 695 
 Brittin, v. New Orleans, 43 
 
 La. Ann. 829 15, 604 
 
 Collins, V. Gooch, 97 N. C. 
 
 186 201. 218, 546 
 
 Fichtenkamp, «. Garabs, 68 
 
 Mo. 289 163 
 
 Iloflfman, v. Scarritt, 128 
 
 Mo. 331 356, 415 
 
 Independent Dist. Teleg. 
 Co. V. Silver Bow 
 County 2d Jud. Dist. 
 Ct. 15 Mont. 324, 27 L. 
 
 R. A. 392 353, 362, 363 
 
 Klotz, ». Ross, 118 Mo. 53.. 124 
 Merriam, «. Ross, 122 Mo. 
 435, 23 L. R. A. 534... 
 
 371, 345, 355 
 Pettenp^er, v. Claypool, 13 
 
 Ohio St. 14 . 558 
 
 Rogers, v. Oborn, 86 N. C. 
 
 432.. 62 
 
 Shepard, «. Sullivan, 120 
 
 Ind. 197 92, 179, 611 
 
 Washington County Comrs. 
 V. Marietta & C. R. Co. 
 
 35 Ohio St. 154 193 
 
 State Bank v. First Nat. Bank, 34 
 
 N. J. Eq. 450 110, 
 
 174, 412, 414 
 ®. Bank of New Brunswick, 
 
 3 N. J. Eq. 266 
 
 138, 180, 384 
 State Invest. & Ins. Co. tJ.San Fran- 
 cisco Super. Ct. 101 Cal. 
 
 135-. 357 
 
 State Journal Co. v. Common- 
 wealth Co. 43 Kan. 93 
 
 358, 362, 560 
 State Trust Co. ■». National Land 
 I. & Mfg. Co. 72 Fed. 
 
 Rep. 575 58, 61 
 
 Staton ». Pittman, 11 Gratt. 99... 
 
 261, 407 
 
 Steel ». Holladay, 19 Or. 517 587 
 
 Steel Brick Siding Co. v. Muske- 
 gon Mach. & F. Co. 98 
 
 Mich. 616 192 
 
 Steele v. Aspy, 128 Ind. 367- .13, 
 
 28. 43, 549 
 «. Cobbam, L. R. 1 Cb. App. 
 
 325 - --530, 581 
 
 V. Grosimith, 19 Grant Ch. 
 
 141- 322 
 
 Steele v. Sturgps, 5 Abb. Pr. 442.. 
 
 52, 57, 74, 125, 257, 417 
 
 V. White, 2 Paige, 478 118 
 
 Steere v. Iloaglaiid, 39 111. 264 246 
 
 Steinhoff v. Brown, 11 Grant Ch. 
 
 114.-- --. 301 
 
 Stenhouse v. Davis, 82 N. C. 432.. 532 
 Stephens d. Bernays, 41 Fed. Rep. 
 401, 44 Fed. Rep. 642-. 
 
 176, 384, 436, 437, 440 
 
 V. Bernays, 119 Mo. 143 437 
 
 V. Follett, 43 Fed. Rep. 
 
 842 - 441 
 
 v. Kaga, 142 Ind. 533 552 
 
 V. Overstolz, 43 Fed. Rep. 
 
 771 398, 399. 449 
 
 V. Perrine, 143 N. Y. 476... 
 
 172, 173, 410 
 «. Schuchmann, 32 Mo. App. 
 
 338-- 439, 440 
 
 Sterling v. Wynne, Hayes & J. 
 
 817- 220 
 
 Stevens v. Davison, 18 Gratt. 819 
 
 359, 454, 456 
 «. Union Trust Co. 5 Hun, 
 
 498 525 
 
 Stevenson v. Palmer, 14 Colo. 
 
 565- 373 
 
 Steward v. Stevens, Harr. Ch. 
 
 (Mich.) 109 45, 238, 252 
 
 Stewart v. Armstrong, 56 Fed. 
 
 Rep. 167.. -- 574 
 
 V. Beebe, 28 Barb. 34... 55, 
 
 92, 405, 411 
 
 v. Fagan, 2 Woods. 215 244 
 
 V. Johnston. 87 Ga. 97 605 
 
 V. Lay, 45 Iowa, 604. -.115- 
 
 117, 176, 177, 403 
 V. Lehigh Valley R. Co. 38 
 
 N. J. L. 504 407, 503 
 
 Stewart's Estate, Re, 8 N. Y. Civ. 
 
 Proc. 354 259 
 
 Stillman v. Dougherty, 44 Md. 
 380-.115, 117, 174, 176; 
 
 177, 403 
 
 V. Stillman, 7 Baxt. 169 553 
 
 Stilwell V. Williams, 6 Madd. 49, 
 
 Aff'din Jac. 280 41, 43 
 
 Stilzer v. La Rose, 79 Ind. 435.. 
 
 67, 68 
 Stirlen v. Jewett, 63 111. App. 55.. 
 
 253, 254 
 Stirm V. Erman trout. 89 Ind. 214.. 296 
 
 Stith». Jones, 101 N. C. 360 
 
 40, 68, 528, 550 
 Stockbridge v. Beckwiih, 1 Del. 
 Ch. 72, 2 Am. & Eng. 
 Corp. Cas. N. S. 554.. 
 
 413, 414 
 Stockman v. Wallis, 30 N. J. Eq. 
 
 449 267, 275, 294. 358
 
 CASES CITED. 
 
 Ixxxix 
 
 Stockton V. Central R. Co. 50 N. 
 
 J. Eq. 489.. 364 
 
 e. Harmon, 32 Fla. 312.--. 15 
 «. Mechanics' & L. Sav. 
 Bank, 32 N. J. Eq. 163. 
 
 180, 393 
 Stoffel V. Sellers, 142 Ind. 301.... 571 
 Stokes V. New Jersey Pottery Co. 
 
 46 N. J. L. 237 157. 
 
 171, 377, 610 
 Stone ». Byrne,5 Bro. P. C. 213.. 118 
 «. Chisf^lm, 113 U. S. 302, 
 
 28 L. ed. 991 449 
 
 V. Dodge, 96 Mich. 514, 21 
 
 L. R, A. 280.. 138 
 
 V. Manning, 3 111. 530 244 
 
 V. Wishart, 2 Madd. 63.-61, 
 
 90. 546 
 Stonebridge, Re, 37 N. Y. S. R. 
 
 617, Aff'd 128 N. Y. 618 85 
 
 V. Perkins. 141 N. Y. 1 407 
 
 Storm u Waddell, 2 Sandf. Ch. 494 
 47, 48, 56, 65, 74. 124, 
 251, 256, 259, 338, 373, 376 
 Story «. Furman, 25 N. Y. 214.. 
 
 178, 384 
 Stout V. Lye. 103 U. S. 66, 26 L. 
 
 ed. 428.. 122 
 
 Strang «. Allen. 44 111. 428 631 
 
 Stratton «. California Land & T. 
 
 Co. 86Cal. 353 134 
 
 Strauss v. Carolina Interstate Bldg. 
 & L. Asso. 117 N. C. 
 308, 30 L.R. A. 693.391, 595 
 Street v. Anderton, 4 Bro. C. C. 
 
 414 ...42, 550 
 
 «. Maryland C. R. Co. 59 
 
 Fed, Rep. 25 525 
 
 Streit V. Citizens' F. lus. Co. 29 N. 
 
 J. Eq. 21.. 347 
 
 Stringer's Case, L. R. 4 Ch. 475.. 
 
 176, 409 
 Strong V. Carlyle Press. 1 Ch. 268. 
 
 358, 560 
 
 ®. McCogg, 55 Wis. 624 353 
 
 V. Southworth, 8 Ben. 331.. 
 
 155, 427, 437, 438 
 Stuart V. Boulware, 133 U. S. 78, 
 
 33 L. ed. 568 -.230, 572. 582 
 «. Grough, 14 Ont. Rep. 255 160 
 V. Hayden, 72 Fed. Rep. 402 442 
 
 Stumps. Rogers, 1 Ohio, 533 353 
 
 Sullivan Electric Light & P. Co. 
 V. Blue (Ind.) 41 N. E. 
 
 805 36 
 
 SumsioD V. Creenwell, 31 "Week. 
 
 Rep. 399 295 
 
 Sunflower Oil Co. v. "Wilson, 142 
 U. 8. 313, 35 L. ed. 
 
 1025 103, 106, 204, 
 
 221, 384, 386, 493, 497, 507 
 
 Supreme Sitting, O. of I. H. «. 
 Baker, 134 Ind. 293. 3 
 
 L. R. A. 210 28. 72, 
 
 351, 355, 359, 362, 363, 
 
 364, 378 
 Susquehanna Canal Co. v. Bon- 
 ham, 9 Watts & S. 27. 454 
 Sussex County Chosen Freehold- 
 ers V. Strader, 18 N. J. 
 
 L. 108 210 
 
 Sutlifif V. Atwood, 15 Ohio St. 186. 506 
 Sutro V. Wagner, 23 N. J. Eq. 388 
 
 306. 324, 325, 328 
 Sutton V. Jones, 15 Ves. Jr. 584 . . 
 
 60, 546 
 V. Rees, 9 Jur. N. S. 456... 132 
 Suydam v. Bank of New Bruns- 
 wick, 3 N. J. Eq. 114. 
 
 88, 104 
 V. Dequindre, Harr. Ch. 347 250 
 v. Northwestern Ins. Co. 51 
 
 Pa. 394_... 245 
 
 Swaby v. Dickon, 5 Sim. 629.. 105, 
 
 153, 159, 184, 193, 219, 383 
 Swan, Re, 150 U. S. 637, 37 L. ed. 
 
 1202 .57, 183 
 
 V. Mitchell, 82 Iowa, 307... 
 
 282 291 293 
 Swan Land & C. Co. v. Frank, 148 
 
 U. S. 612, 37L. ed. 581. 238 
 Swann v. Clark, 110 U. S. 602, 28 
 
 L. ed. 256 117 
 
 Swartoutw. Schwerter, 5 Redf. 497 259 
 Sweny v. Ferguson. 2 Blackf. 129. 246 
 Swift I). Thompson, 9 Conn. 63... 407 
 Swing V. Townsend, 24 Ohio St. 1 
 
 73,84 
 v. White River Lumber Co. 
 
 91 Wis. 517. 415 
 
 Sykes v. Hastings, 11 Ves, Jr. 363 
 
 60, 546 
 Sylvester v. Reed, 3 Edw. Ch. 296. 532 
 Syracuse City Bank v. Tall man, 
 31 Barb. 201... 11. 269, 
 
 274, 276, 277, 280, 297 
 Syracuse Sav. Bank v. Hess, 23 
 
 N. Y. Week. Dig. 280. 203 
 
 Tait D. Jenkins, 1 Younge & C. 
 
 Ch. 491-. 546 
 
 Talbot V. Hope Scott, 4 Kay & J. 
 
 96 .43. 44 
 
 Talcott V. Hess, 31 Flun, 282 250 
 
 Talladega Mercantile Co. v. Jenifer 
 
 Iron Co. 102 Ala. 259.. 
 
 183, 185 
 Talmage v. Pell, 7 N. Y. 328. 347. 
 
 114, 157. 171, 173, 406
 
 xc 
 
 CASES CITED. 
 
 Turns V. Bullitt, n^^ Pa 808_..261, 407 
 Tautield v. Irvine, 2 Hiiss. "249 ... 17 
 Tanner v. Hicks, 4 Smedes & M. 
 
 294 303 
 
 Tapley*. Martin, 11(5 Mass. 27r,.. 423 
 Tappan v. Evans, 11 N. H. 312..- 245 
 Tale«. McCormick, 23 Hun. 218. 220 
 Tavistock Iron Works Co., Be, 24 
 L.T. 605, 19Week.Kep. 
 
 672_ 563 
 
 Taylor v. Baldwin, 14 Abb. Pr. 
 
 10(5 129, 184 
 
 V. Boardman, 25 Vt. 581.-- 
 
 50, 111, 134, 414, 500 
 V. Bowker, 111 U. S. 110, 
 
 28 L. ed. 308.-239, 244, 357 
 V. Carryl, 61 U. S. 20 How. 
 
 583, 15L. ed. 1028.122. 127 
 V. Columbia Ins. Co. 14 
 
 Allen, 353 51, 111, 169 
 
 c. Eokersley, L. R. 2 Ch. 
 Div. 302, 45 L. J Cli. 
 527, 34 L. T. 637.. .18, 
 
 26, 61, 551 
 e. Geary, Kirby (Conn.) 313. 165 
 
 V. Gillean, 23 Tex. 508 
 
 122, 127, 416 
 V. Hutchinson, 25 Gratt. 536 312 
 V. Life Asso. of America. 3 
 Fed. Bep. 465, 13 Fed. 
 
 Kep. 493.-.. 59, 76 
 
 «. Mayo, 110 U. S. 330, 28 
 
 L. ed. 163 125 
 
 V. Neate, L. H. 39 Ch. Div. 
 
 538 97, 340 
 
 V. Philadelphia & R. R. Co. 
 
 7 Fed. Rep. 377- -..86, 475 
 V. Pliiladelphia & R. R. Co. 
 
 9 Fed. Rep. 1 492, 497 
 
 V. Secor ("State R. Tax 
 Cases") 92 U. S. 575, 23 
 
 L. ed. 663 246 
 
 Taylor Orphan Asylum, Ee, 36 
 
 Wis. 552 360 
 
 Teal V. Walker, 111 U. S. 250, 28 
 
 L. ed. 418 272, 282 
 
 Tefft V. Sternberg, 40 Fed. Rep. 7. 
 
 123. 124 
 Teller v. Randall, 40 Barb. 242... 115 
 
 Tempest «. Ord, 2 Meriv. 55 200 
 
 Temple v. Williams, 91 N. C. 82.. 546 
 Ten Broeck v. Orchard, 74 N. C. 
 
 409 289 
 
 Terhune v. Bell (N. J.) 6 Cent. 469 171 
 Terrell v. Goddard, 18 Ga. 664... 
 
 306, 307, 322 
 
 V. IngersoU, 10 Lea, 77 214 
 
 Terry v. Bamberger, 44 Conn. 
 
 558. - 411 
 
 «. Bamberger, 14 Blatchf. 
 
 234 172, 383, 398. 503 
 
 Terry v. Bank of Central New 
 
 York, 15 How. Pr. 445 563 
 V. Dubois, 32 Week. Rep. 
 
 415 593 
 
 V. Martin (N. M.) 32 Pac. 
 
 157 96, 135, 596 
 
 Tewart v. Law.son, L. R. 18 Eq. 
 
 490 562 
 
 Texas & P. R. Co. v. Adams, 78 
 
 Tex. 372 204. 518, 566 
 
 V. Bailey, 83 Tex. 19.._214, 565 
 V. Bledsoe, 2 Tex. Civ. App. 
 
 88 213 
 
 V. Boyd, 6 Tex. Civ. App. 
 
 205 214 
 
 V. Collins, 84 Tex. 121 
 
 192, 204. 213. 214, 514 
 V. Comstock, 83 Tex. 537 .. 
 
 204, 518 
 V. Cox. 145 U. S. 593, 36 L. 
 
 ed. 829 395, 514, 522 
 
 V. Gay, 86 Tex. 571, 25 L. 
 
 li. A. 52 -...67, 68. 85, 617 
 
 V. Geiger, 79 Tex. 13 
 
 203, 209, 518, 566 
 V. Huffman, 83 Tex. 286... 
 
 519. 566 
 V. Johnson. 151 U. 8. 81. 38 
 
 L. ed. 81 187. 521 
 
 V. Miller, 79 Tex. 81, 11 L. 
 
 R. A. 395 518 
 
 V. Thedens (Tex. Civ. App.) 
 
 21 S. W. 132.. 213 
 
 V. Watts (Tex.) 18 S.W. 312 
 
 565, 569 
 
 V. White. 82 Tex. 543 565 
 
 Texas & St. L. R. Co. v. Rust, 17 
 
 Fed. Rep. 275 391 
 
 Texas C. R. Co. v. Morgan's Lou- 
 isiana & T. R. & S. S. 
 Co. 137 U. S. 199, 34 L. 
 ed 635 95 
 
 Texas P. R. Co. iy."GriffinV76 Tex. 
 
 441 518. 519. 565 
 
 «. Johnson, 76 Tex. 421.209. 
 
 518, 519, 565, 566, 569, 629 
 V. Manton (U. S. Sup. Ct.) 
 Advance Sheets, Feb. 1, 
 
 1897, p. 235 696 
 
 V. Overheiser, 76 Tex. 437.. 518 
 Texas Trunk R. Co. v. Johnson, 
 
 86 Tex. 421 214 
 
 V. Lewis, 81 Tex. 1 
 
 57, 124, 372-374. 501 
 
 V. State, 83 Tex. 1 345. 453 
 
 Thacher v. Bancroft, 15 Abb. Pr. 
 
 245 160 
 
 Tharpe v. Tharpe, 12 Ves. Jr. 317 
 
 56, 59, 62 
 Thatcher v. West River Nat. Bank, 
 
 19 Mich. 196 423
 
 CASES CITED. 
 
 XCl 
 
 Thayer v. Butler, 141 U. S. 284, Sr) 
 
 L. ed. 711 438, 441 
 
 V. Clark, 4 Abb. App. Dec. 
 
 8!)I 78 
 
 V. Swift, Harr. Cb. (Mich.) 
 
 480 45, 238, 252 
 
 Thomas v. Brigstocke, 4 Hnss. 64. 
 
 142, 301, 387 
 V. Cincinnati, N. O. & T. P. 
 R. Co. 62 Fed. Kep. 17, 
 
 803_...131, 416 
 
 V. Davies, 11 Beav. 29 
 
 34. 03, 298 
 V. Dawkln, 1 Ves. Jr. 452.56, 62 
 V. Hubbell, 15 N. Y. 407... 78 
 V. Nantahala Marble & T. 
 
 Co. 58 Fed. Rep. 485.. 550 
 V. Femberton, 7 Taunt, 206 
 
 223, 496 
 ». Peoria & R. I. R. Co. 86 
 
 Fed. Rep. 808 95, 
 
 227, 228, 394, 476, 478, 575 
 V. Thomas, Flan. & K. 621. 129 
 V. Torrance, 1 Chamb. Ch. 
 
 (Ont.)9 153 
 
 V. Western Car Co. 149 U. S. 
 
 95, 37 L. ed. 663 
 
 95, 107, 393, 493, 497, 578 
 V. West Jersey R. Co. 101 
 
 U. S. 71, 25 L. ed. 950. 105 
 V. Whallon, 31 Barb. 172.. 
 
 92, 158, 180, 391, 624 
 V. Williams, L. R. 14 Ch. 
 
 Div. 864_. 131 
 
 Thompson v. AVe^ County, 115 U. 
 S. 550, 29 L. ed. 472. . 
 
 238, 245 
 v. Brown, 4 Johns. Ch. 619, 
 
 680 240, 246 
 
 V. DitTenderfer, 1 Md. Ch. 
 
 -489 39, 40, 239 
 
 V. Gloucester City Sav. In.st. 
 
 (N. J.)8 Atl. 97... 202, 595 
 
 «. Gould, 20 Pick. 135 100 
 
 V. Greeley, 107 Mo. 507 
 
 172, 173, 346, 397, 401, 408 
 
 V. Holladay, 15 Or. 34 
 
 56, 67, 85, 120, 123 
 V. Huron Lumber Co. 4 
 
 Wash. 527, 600.... 585, 595 
 V. McCleary, 159 Pa. 189... 
 
 24,25.46, 125. 127, 620 
 V. McKim, 6 Elarr. & J. 302 118 
 
 V. Meisser, 108 111. 359 405 
 
 V. Natchez, W. & S. Co, 68 
 
 Miss. 428 278 
 
 V. Phojnix Ins. Co. 186 U. S. 
 
 297, 34 L. ed. 413 
 
 128, 126. 128, 183 
 V. Schloetzel, 2 S. D. 395.. 
 
 423, 424 
 
 Thompson v. Scott, 4 0111. 409, 508 
 
 127,129,183,189.195,395.418 
 «. SherranI, 22 How. Pr. 
 
 155, 85 Barb. 593 552 
 
 V. Shirley, 69 Fed. Rep. 484 
 
 293, 587 
 V. Tower Mfg. Co. 87 Ala. 
 
 733 ..15, 603 
 
 V. Willamette S. M. L. & 
 
 Mfg. Co. 15 Or. 604 ... 590 
 Thomson v. Dean, 74 U. S. 7 Wall. 
 
 842, 19 L. ed. 97 71 
 
 V. MacGregor, 81 N. Y. 592. 
 Rev'g 13 Jones &S. 197 
 
 78, 79, 231, 606 
 Thorn v. Nine Reefs, 67 L. T. 93. 41 
 Thornhill v. Thornhill, 14 Sim. 
 
 600 93, 382 
 
 Thornton v. Highland Ave. »& B. 
 R. Co. 94 Ala. 353 .... 
 
 95, 395, 572 
 V. Washington Sav. Bank, 
 
 76 Va. 432.... 132, 148, 417 
 Thuemmler v. Barth, 89 Wis. 
 
 381 628 
 
 Thurber v. Blanck, 50 N. Y. 80.. 246 
 Thurman ■». Cherokee R. Co. 56 
 
 Ga. 376 -.202, 209, 512, 516 
 
 V. Morgan, 79 Va. 367 78 
 
 Thurmond vAieese, 3 Ga. 449... 247 
 Thurston v. Roseufield, 42 Mo. 474 
 
 111, 167 
 
 Tibballs v. Llbby, 87 111. 142 
 
 175, 178, 385, 405 
 V. Sargeant, 14 N. J. Eq. 449 15 
 
 Tidd V. Lister, 5 Madd. 433 546 
 
 Tiffany v. Lucas, 82 U. S. 15 Wall. 
 
 410, 21 L. ed. 198 447 
 
 Tilford V. Burnham, 7 Dana, 110. 256 
 Till, Ex parte, L. R. 16 Eq. 97... 129 
 Tillinghast v. Champlin, 4 R. I. 
 173... 47, 142, 149, 153, 
 
 154, 336, 337 
 Tillman, Ex parte, 93 Ala. 101.. 52, 571 
 Tillotson 1). Wolcott, 48 N. Y. 188 
 
 66, 139, 256, 257 
 Tink V. Rundle, 10 Beav. 318.... 
 
 122, 129, 184, 193 
 Tippecanoe County Comrs. v. 
 Lucas, 98 U. S. 108, 23 
 
 L. ed. 822 71 
 
 Tippecanoe Twp. v. Manlove, 39 
 
 Ind. 249 369 
 
 Titherington v. Hodge, 81 Ky. 286 389 
 Titus V. Fairchild, 17 Jones & S. 
 
 211 ..76, 77 
 
 Tobey v. Russell, 9 R. I. 58 
 
 115, 177. 403 
 Toby V. Oregon Pac. R. Co. 98 
 
 Cal. 490... 35 
 
 Todd V. Lee, 15 Wis. 365 239
 
 XCll 
 
 CASES CITED. 
 
 Todd V. Rich, 2 Tenn. Ch. 107. _. 
 
 Gl, 300, 313, 325 
 Toldervy v. Colt, 1 Yoiiiif^e & C. 
 621, 5 L.J. Exch. 25... 
 
 43, 274. 284 
 Toledo, A. A. & N. M. R. Co. v. 
 Penusylvania Co. 54 
 Fed. Rep. 730. 19 L. R. 
 
 A. 395.. 130 
 
 Toledo, W. & W. R. Co. v. Beggs, 
 
 85 111. 80. 374 
 
 1). Milligan, 52 Ind. 505. .. 181 
 Toller V. Carteret, 2 Vern. 494... 147 
 
 Tolman v. Jones, 114 HI. 155 415 
 
 Tome 1). King, 64 Md. 166.... 300, 588 
 Tomlinson v. Ward, 2 Conn. 396. 
 
 32, 73, 74, 309, 332 
 Tomlinson & W. Mfg. Co. v. 
 
 Shatto, 34 Fed. Rep. 
 
 380.. 246, 248, 253 
 
 Tophara v. Chapman, 1 Mill, 
 
 Const. 283 165 
 
 Toronto Gen. Trust Co. v. Chicago, 
 
 B. & Q. R. Co. 123 N. 
 
 Y. 37 113, 167, 168, 412 
 
 Towle V. American Bldg. L. & I. 
 
 Soc. 60 Fed. Rep. 131. 
 
 41, 367, 369, 555, 556 
 Towne v. Campbell, 35 Minn. 
 
 231.. 262 
 
 Townsend v. Coxe, 151 111. 62 413 
 
 V. Townsend, 60 Mo. 246.. 564 
 Tracy v. First Nat. Bank, 37 N. 
 
 Y. 523- ...92, 119, 157, 
 
 160, 171, 177, 196, 428 
 «. Talmage, 14 N. Y. 162.. 173 
 Trade Auxiliary Co. «. Vickers, L. 
 
 R. 16 Eq. 303. 355 
 
 Traders' Mut. F. Ins. Co. v. Stone, 
 
 9 Allen, 483 890 
 
 Tradesman's Pub. Co. «. Knox- 
 
 ville Car- Wheel Co. 95 
 
 Tenn. 634, 31 L. R. A. 
 
 593 ...393, 491 
 
 Travelers' Ins. Co. v. Brouse, 83 
 
 Ind. 62 63, 298 
 
 Trayhern v. Mechanics' Nat. Bank 
 
 57Md. 590. 595 
 
 Treadwell v. Salisbury Mfg. Co. 7 
 
 Gray. 393 460 
 
 Trentman v. Eldridge, 98 Ind. 
 
 525 302 
 
 Trenton Bkg. Co. v. Woodruff, 3 
 
 N. J. Eq. 210 299 
 
 Triebert «. Burgess, 11 Md. 456.. 
 
 15, 466, 467 
 Trimble «. Woodhead, 102 U. S. 
 
 647, 26 L. ed. 290.. 252, 260 
 Trimm v. Marsh, 54 N. Y. 59y... 276 
 Tripp V. Boardman, 49 Iowa, 410 
 
 84, 101 
 
 Tripp V. Chard R. Co. 21 Eng. L. 
 & Eq. 53. 17 Jur. 887, 
 
 92 L. J. Ch. 1084 
 
 33. 60, 267 
 
 V. Cook, 26 Wend. 152 11 
 
 Trippe v. Iluncheou, 82 Ind. 
 
 307.. 444 
 
 Trissilian v. Canifife, 4 Ir. Ch. N. 
 
 S. 399 295 
 
 Trueman, Hooke, ». Piper, L. R. 
 
 14 Eq. 278 230 
 
 Truman v. Redgrave, L. R. 18 
 
 Ch. Div. 547.... 96, 301, 3.'i8 
 
 Try V. Try, 13 Beav. 422 121 
 
 Tucker v. Gilman, 45 N. Y. 193. 
 
 175, 403 
 Tuckerman v. Brown, 33 N. Y. 
 
 297.. 114, 375, 376, 387, 610 
 
 Tudes V. Hood, 29 Kan. 49 251 
 
 Tufts V. Little, 56 Ga. 139 42. 548 
 
 Tully V. Herrin, 44 Miss. 626.. 50, 110 
 Tumliu '0. Vanhorn. 77 Ga. 315.. 548 
 Tunnesma v. Schuttler, 114 111. 
 
 156.. ._ 237 
 
 Turgeau v. Brady, 24 La. Ann. 
 
 348 69 
 
 Turnbull v. Prentiss Lumber Co. 
 55 Mich. 387. ...15, 17, 
 
 19, 43, 455 
 Turner v. Adams, 46 Mo. 95.. 245, 246 
 V. Cros.s, 83 Tex. 218. 15 L. 
 R. A. 262.... 192, 204. 
 
 211, 213, 233, 395, 513 
 V. First Nat. Bank, 26 Iowa, 
 
 562 423, 442 
 
 V. First Nat. Bank. 30 Iowa, 
 
 191 564 
 
 «. Hannibal & St. J. R. Co. 
 
 74 Mo. 602.. 214, 516 
 
 V. Indianapolis, B. & W. R. 
 
 Co. 8Biss. 315. 527 
 
 202, 212. 393. 478, 481, 574 
 V. Peoria & S. R. Co. 95 111. 
 
 135 231. 485. 522, 523 
 
 t>. Richardson, 7 East. 335.. 
 
 103, 106, 493, 496 
 
 V. Turner, 15 Jur. 298 129 
 
 Turnipseed v. Kentucky Wagon 
 
 Co. (Ga.) 23 S. E. 84. . 242 
 Tuscaloosa Mfg. Co. v. Cox, 68 
 
 Ala.^71-. 351 
 
 Tvedt V. Miickel (Minn.) 69 N. W. 
 
 475 698 
 
 Twigg V. Fifield, 13 Ves. Jr. 517.. 100 
 Twilty V. Logan, 80 N. C. 69.. 43, 289 
 
 Tylee ». Tylee. 17 Beav. 583 73 
 
 Tyler, IIx parte, 149 U. S. 181. 37 
 
 L. ed. 694 183. 187 
 
 Ee, 149 U. S. 164, 37 L. ed. 
 689... -24, 46, 122, 124, 
 
 127, 129, 137
 
 CASES CITED. 
 
 xcm 
 
 Tyler v. Hamilton, 62 Fed. Rep. 
 
 187 .- 612 
 
 V. Pea It, 30 Mich. 68 245 
 
 tJ.Wbitaey, 13 Abb. Pr. 465. 
 
 252, 253 
 V. Willis, 33 Barb. 327. _75, 253 
 Tysen v. Wabash R. Co. 8 Bi.ss. 
 247.. .11, 268, 269, 273, 
 
 366, 460, 463, 468 
 
 u. 
 
 Uhl V. Dillon, 10 Md. 500 239, 248 
 
 Underwood v. Siitcliflfe, 77 N. Y. 
 58, Rev'g 10 Hun, 453. 
 75, 114, 172, 173, 251, 
 
 256, 257, 259, 260 
 
 Union & T. Co. «. Southern Cali- 
 fornia Motor Road Co. 
 51 Fed. Rep. 107. 95 
 
 Union Bank, Be, 37 N. J. Eq. 424. 
 
 201, 203, 204, 216, 590 
 
 Union Cattle Co. v. International 
 Trust Co. 149 Mass. 
 492 416 
 
 Union Loan & T. Co. v. Southern 
 California Motor Road 
 Co. 51 Fed. Rep. 106, 
 49 Fed. Rep. 267.-333, 599 
 
 Union Mut. L. Ins. Co. v. Union 
 Mills Plaster Co. 37 Fed. 
 Rep. 286, 3 L. R. A. 
 
 90.. 283,393, 358,461 
 
 V. University of Chicago, 6 
 Fed. Rep. 443 133 
 
 Union Nat. Bank v. Bank of Kan- 
 sas City, 136 U. S. 323, 
 34 L. ed. 341.... 23, 24, 
 48, 126, 128, 141, 148, 
 
 183, 371 
 
 Union P. K. Co. «. Myers (" Pa- 
 cific R. Removal Cases") 
 115 U. S. 1, 29 L. ed. 
 319 .- 434 
 
 Union Trust Co. v. Atchison, T. 
 
 6 S. F. R. Co. (N. M.) 
 
 42 Pac. 89 477 
 
 V. Chicago & L. II. R. Co. 
 
 7 Fed. Rep. 513.... 524, 636 
 V. Illinois M. R. Co. 117 U. 
 
 S. 434, 39 L. ed. 963... 
 86,95,107, 117,303,381, 
 388, 456, 476, 479, 483, 
 483, 489, 491, 495, 497, 
 502, 522, 523. 525, 575, 
 
 576, 599 
 
 V. Morrison, 125 U. S. 591, 
 
 31 L. ed. 825...477, 499, 575 
 
 V. Rockford, R. I. & St. L. 
 R. Co. 6 Biss. 197.. 48, 
 
 56, 57, 345 
 
 Union Trust Co. v. St. Louis, I. M. 
 
 & S. R. Co. 4 Dill. 114 
 
 11, 271, 
 
 273, 292, 348, 358, 461, 
 
 463, 469 
 V. Souther, 107 U. S. 591,27 
 
 L. ed. 488 203, 217, 
 
 218, 348, 388, 476. 479, 
 
 485. 489, 575, 576 
 V. Thomason, 25 Kan. 1. 512 
 v. Walker, 107 U. S. 596, 27 
 
 L. ed. 490 483 
 
 v. Weber, 96 111. 346 25, 
 
 136, 137, 141, 142 
 United Electric Security Co. v. 
 Louisiana Electric light 
 Co. 68 Fed. Rep. 673, 
 
 71 Fed. Rep. 615 
 
 228, 349. 35», 360 
 United States v. Church of Jesus 
 Christ of L. D. S. 5 
 Utah, 361, 6 Utah, 9... 
 
 43, 114, 173, 352, 584 
 V. Giles, 13 U. S. 9 Cranch, 
 
 212, 3 L. ed. 708 79 
 
 V. Hudson, 11 U.S. 7 Cranch. 
 
 32, 3L. ed. 359 207 
 
 V. Ingate, 48 Fed. Rep. 353. 238 
 v. Kane, 33 Fed. Rep. 748. 
 
 130, 131 
 V. Knox, 103 U. S. 422, 26 
 
 L ed. 316 437 
 
 V. Knox, 111 U. S. 784. 28 
 
 L. ed. 603 ....894, 433 
 
 V. Mann, 2 Brock. 9 207 
 
 V. Masich, 44 Fed. Rep. 10. 
 
 291, 299, 300, 303 
 V. Walker, 109 U. S. 258, 27 
 
 L. ed. 937 357 
 
 V. Wilson, 118 U. S. 86, 30 
 
 L. ed. 110 179 
 
 United States Bung Mfg. Co. v. 
 Armstrong,'34 Fed . Rep. 
 
 94 439 
 
 United States Rolling-Stock Co., 
 
 Be, 57 How. Pr. 16.... 391 
 United States Trust Co. v. Harris, 
 
 SBosw. 75 180 
 
 V. New York, W. S. & B. 
 R. Co. 25 Fed. Rep. 
 
 797 476,485, 489, 498 
 
 V. New York, W. S. & B. 
 
 R. Co. 35 Hun, 341.... 347 
 t». New York, W. S. & B. 
 R. Co. 101 N. Y. 478.. 
 145, 267, 270, 346, 347, 
 
 352, 591, 608 
 V. Wabash & W. R. Co. 150 
 U. S. 287, 37 L. ed. 
 
 1085 95, 103, 106, 
 
 231, 224, 272, 497
 
 XCIV 
 
 CASES CITED. 
 
 Upton V. nansbrouiib, 3 Biss. 417. 175 
 V. TribilcocUrsU U. S.45, 23 
 
 L. ed. 203 157 
 
 Utica Ins. 0>. v. L\ nrli, 11 Paige, 
 520.--.fc"G, 87, 203, 206, 
 
 388, 394, 589 
 
 Vail V. Hamilton, 85 N. Y. 453... 
 
 114, 171, 387, 406, 407 
 Valentine v. Juch. 4(5 N. Y. S. K. 64 268 
 
 Van Allen, Me, 37 Bar!). 230 
 
 180, 181, 377. 619 
 V. American Nat. Bank, 52 
 
 N. Y. 6 219 
 
 Van Alslyne v. Cook, 25 N. Y. 496 
 
 49, 65, 74, 124. 147, 151, 
 
 259, 321, 381, 3^8. 372, 373 
 Van Antwerp -b. Hulburd, 7 
 
 Blatchf.426.... 425 
 
 V. Hulburd, 8 Blatchf. 282. 
 
 427, 430 
 Vanatta v. New Jersey Mut. L. 
 
 Ins. Co. 31 N. J. Eq. 15 180 
 Van Bentbii3sen v. Central N. E. 
 
 & W. R. Co. 45 N. Y. 
 
 S. R. 16.... 358 
 
 Van Cott V. Van Brunt, 2 Abb. N. 
 
 C. 283, 82 N. Y. 535... 114 
 Vanderbilt v. Central R. Co. 43 N. 
 
 J. Eq. 669 
 
 223. 370, 379, 395, 417, 579 
 Vanderwerken v. Glenn, 85 Va. 9. 
 
 362, 403, 404 
 Van Dyck v. McQuade, 85 N. Y. 
 
 616 .138, 180 
 
 Van Glahn v. De Rosset, 81 N. C. 
 
 407.. 354 
 
 Van Hook v. Whitlock, 3 Paige, 
 
 409 178, 385 
 
 Van Husan «. Kanouse, 13 Mich. 
 
 303 283, 293, 460, 469 
 
 Vann ®. Barnett, 2 Bro. C. C. 158 33 
 Van Pelt v. United States Metallic 
 
 Spring B. & S. H. Co. 
 
 13 Abb. Pr.N. S. 331.. 344 
 Van Rensselaer v. Emery, 9 How. 
 
 Pr. 135 22, 60, 197, 
 
 307, 309, 416, 630 
 Van Roun v. San Francisco Super. 
 
 Ct. 58 Cal. 358 126 
 
 Van Syckle v. Richardson, 13 111. 
 
 174.. 238 
 
 Van Wageman v. Clark, 22 Hun, 
 
 497.-115. 175, 176. 362, 403 
 Van "Wagoner®. Paterson Gaslight 
 
 Co. 23 N. J. L. 283.... 
 
 138, 180, 181. 347, 383, 384 
 Varey v. Giles, 9 Ga. 253. 368 
 
 Varnum v. Leek, 65 Iowa, 751... 550 
 Vatable v. New York, L. E. & W. 
 
 R. Co. 96 Hun, 49 485 
 
 Vaughan v. Vaughau, Dick. 90... 76 
 
 V. Vincent, 88 N. C. 116 550 
 
 Vause V. Woods, 46 Miss. 120 
 
 15, 17, 43. 44, 264 
 Venable v. Smith, 98 N. C. 523. _. 319 
 Venango Nat. Bank ». Taylor, 56 
 
 Pa. 14 383, 447 
 
 Vermont & C. R. Co. v. Vermont 
 C. R. Co. 46 Vt. 792, 50 
 Vt. 500... 24, 66, 67.86, 
 128, 132, 147, 355, 356, 
 
 372, 383, 415. 417, 489 
 Vernon v. Kinzie, 2 U. C. Jur. 40 
 
 531, 540 
 Verplanck v. Mercantile Ins. C'o. 
 
 2 Paige, 438 15-20. 
 
 82-84,331,344,347,360, 
 364, 417, 455, 466, 471, 603 
 Verplank v. Caines, 1 Johns. Ch. 
 
 58 11. 268, 348, 545 
 
 Very». McHenry, 29 Me. 208.... 110 
 V. Wat kins, 64 U. S. 23 How. 
 
 469, 16 L. ed. 522 22 
 
 Vette V. Leonore, 42 Mo. Aop. 
 
 217... 120 
 
 Vicksburg & M. R. Co. v. Phillips, 
 
 64 Miss. 108 245 
 
 Vilas V. Page, 106 N. Y. 451. 
 
 216,229,381,395,492, 626 
 
 Viles V. Bangs, 36 AVis. 131 387 
 
 Vincent v. Parker, 7 Paige, 65 45 
 
 Virginia, T. & C. Steel & I. Co. v. 
 
 Wilder, 88 Va. 942 
 
 45, 54, 72, 354, 366, 604 
 
 Vogel, Be, 7 Blatchf. 20 127 
 
 Von Roun v. San Francisco Sup. 
 
 Ct. 58Cal. 358-...25, 49, 73 
 Voorhees v. Howard, 4 Abb. App. 
 
 Dec. 503 244 
 
 V. Seymour, 26 Barb. 569.. 
 
 73. 74, 7.5, 257 
 Vose V. Grant, 15 Mass, 505.. 175, 409 
 
 V. Reed, 1 Woods, 647 
 
 10, 12, 14. 18, 269, 273, 470 
 VoshellB. Hynson, 26 Md. 83.... 
 
 15, 39. 40, 467, 603 
 Vrooman v. Turner, 69 N. Y. 285 629 
 Vulliamy v. Noble, 3 Meriv. 614.. 
 
 818, 327 
 
 W. 
 
 Wabash R. Co., Be, 24 Fed. Rep. 
 
 217... 416 
 
 V. Dvkeman, 133 Ind. 56..- 
 
 15, 17-19, 27, 454, 455, 604 
 T. Stewart, 41 111. App. 640. 605
 
 CASES CITED. 
 
 xcv 
 
 Wabash, St. L. & P. R. Co. v. Cen- 
 tral Trust Co. 22 Fed. 
 Rep. 272, 23 Fed. Rep. 
 863, 23 Fed. Rep. 513.. 
 
 29, 222, 3o5, 871, 391 
 Wachtel v. Wilde, 58 Ga. 50,-239, 248 
 Waddle v. Hudson, 96 Mich. 432. 92 
 Wade V. Ringo, 62 Mo. App. 414. 184 
 
 Wagar v. Stone, 36 Mich. 364 
 
 270. 282, 293, 460, 469 
 Wager v. Hall, 83 U. S. 16 Wall. 
 
 584,21 L. ed. 504 446 
 
 Wagner v. Coen (W. Va.) 23 S. E. 
 
 735 319, 540 
 
 Waite, Re, 99 N. Y. 433 
 
 51, 110, 111, 167, 168, 412 
 Wakeman v. Price, 3 N. Y. 334.. 102 
 
 Walker, Ex parte, 25 Ala. 21 
 
 10, 580, 586 
 
 V. Bell, 2Madd. 21 301 
 
 V. Cronin, 107 Mass. 555... 131 
 
 V. Drew, 20 Fla. 908 532 
 
 V. Flint, 2 McCrary, 343. 7 
 
 Fed. Rep. 430 123, 127 
 
 V. George Taylor Commis- 
 sion Co. 56 Ark. 1 122 
 
 V. House, 4 Md. Ch. 89 
 
 14, 306, 808, 811, 317 
 
 v. Morris, 14 Ga. 8-28 23 
 
 Wall 1). Pulliam, 5 Heisk. 365 201 
 
 V. Young (N. J. Ch.) 38 Atl. 
 
 526 570 
 
 Wallace v. Loomis. 97 U. S. 146, 
 
 24 L. ed. 895... 
 
 86, 94, 117, 203, 217, 
 218, 880, 381, 388, 474, 
 483, 485, 489, 491, ;,^3, 
 
 524, 577 
 V. McConnell, 38 U. S. 13 
 
 Pet. 151, 10 L. ed. 102. 123 
 ©. Milligan, 110 Ind. 498... 
 116, 156, 178, 179, 383. 
 
 885, 386 
 V. Patterson, 2 Harr. & McH. 
 
 468 ..110, 165 
 
 V. Yeager, 4 Phila. 251 336 
 
 Walling V. Miller, 108 N! Y. 178. 
 25, 46, 48, ]01,12">, 127, 
 
 184, 202, 231, 372 
 Wall Street F. Ins. Co. v. Loud, 
 
 20 How. Pr. 95... 
 
 267, 275, 277. 294, 358 
 WaLsh V. Byrnes, 89 Minn. 527... 
 
 259, 375 
 V. Raymond, 58 Conn. 251. 
 
 89. 90, 596 
 Walter?). Lane, 1 McArth. 275... 256 
 vValterst). Ang'o American Mortg. 
 & T. Co. 50 Fed. Rep. 
 
 316 343, 344, 355, 562 
 
 V. Taylor, 2Ves. & B. 304.. 334 
 
 Walters v. Walters, 11 Tr. Y.q. 335. 79 
 
 V. Whitlock, 9 Fla. 86 112 
 
 Walton V. Grand Belt Copper Co. 
 
 56 Hun, 211 417 
 
 Walworth v. Holt, 4 Myl. & C 
 
 619 340 
 
 Wambaugh v. Gates, 8 N. Y. 138. 100 
 Wannemaker v. Hitchcock, 38 
 
 Fed. Rep. 583 584, 565 
 
 Waples-Platter Co. v. Mitchell 
 (Tex. Civ. App.) 85 S. 
 
 W. 200. 319, 324 
 
 Ward V. Arredondo, 1 Hopk. Ch. 
 
 218 147 
 
 V. Chamberlain, 67 U. S. 2 
 
 Black, 430, 17 L. ed.319 178 
 
 V. Farwell, 97 111. 593 85 
 
 V. GrLswoldville Mfg. Co. 16 
 
 Conn. 593 354 
 
 V. Moflfett, 38 Mo. App. 395 281 
 
 V. Morrison, 25 Vt. 593 500 
 
 V. Petrie, 86 N. Y. Supp. 940 243 
 V. Sea Ins. Co. 7 Paige, 294. 347 
 V. Segar, 60 III. App. 424.. 361 
 V. Swift, 6 Hare. 3U9... 121, 
 
 122. 129. 153, 159, 184. 383 
 Warden v. Leavenworth, 3 Edw. 
 
 Ch. 258 262 
 
 V. Union P. R. Co. 103 U. S. 
 
 051. 26L. ed. 509.. 407, 503 
 Wardle v Hudson, 96 Mich. 432. 
 
 383, 891, 611 
 v. Townsend, 75 Mich. 385, 
 
 4 L. R. A. 511. 
 
 869, 390, 391 
 
 Waret). Ware, 42 Ga. 408. 530 
 
 Waring v. Robinson, 1 Hoflfm. Ch. 
 
 582 386, 888, 339 
 
 Warishoffer v. North River Const. 
 Co. 6 N. Y. Civ. Proc. 
 
 113 347 
 
 Warner v. Gouverneur, 1 Barb. 36 
 
 267, 
 277, 280, 288. 290. 292, 294 
 V. Jaffray, 96 N. Y. 248... Ill 
 V. Rising Fawn Iron Co. 3 
 
 Woods. 514. 
 
 278, 276, 301, 359, 461 
 Warren v. Bunch, 80 Ga. 124.186, 595 
 V. Fake, 49 How. Pr. 430.. 
 
 355. 359 
 V. Sprague, 11 Paige, 200. .89, 90 
 V. Union Nat. Bank, 7 Phila. 
 
 156 Ill, 169 
 
 Wartman?),, Wartman, Taney. 362 208 
 Warwick v. Hammell, 32 N. J. 
 
 Eq. 427 277. 280 
 
 Washington, A. & G. R. Co. v. 
 Brown, 84 U. S. 17 
 Wall. 418, 21 L. ed. 675 
 
 209, 515, 516
 
 XCVl 
 
 CASES CITED. 
 
 Washington City & P L. R. Co. 
 V. Southern Maryland 
 
 R. Co. 55 Md. 153 564 
 
 Washington. G. & A. R. Co. v. 
 Washington, 74 U. S. 
 7 Wall. 577, 19 L. ed. 
 
 275 118 
 
 Washington Iron Works Co. v. 
 
 Jensen, 3 Wash. 584... 296 
 Washington L. Ins. Co. v. Fleisch- 
 
 ner. 10 Hun. 130 300 
 
 Washington Nat. Bank v. Eckels, 
 
 57 Fed. Rep. 870 424 
 
 Wason V. Frank (Colo. App.) 44 
 
 Pac. 378-. 398, 399, 402. 410 
 Waterbury ». Merchants' U. Exp. 
 
 Co. 50 Barb. 157 
 
 343, 344, 347, 352 
 Waterhouse B. Comer, 55 Fed. Rep. 
 149, 19 L. R. A. 403... 
 
 127, 131, 132 
 V. Jamieson, L. R. 2 H. L. 
 
 (Sc.)29 - 120 
 
 V. Jamieson, 2 Pat. H. L. 
 
 (Sc.)1892 157 
 
 Waterman v. Sliipman, 55 Fed. 
 Rep. 983. 64 Pat. Oflf. 
 
 Gaz. 713. 149 
 
 Waters «. Barton, 1 Coldw. 450.. 
 
 50, 111, 134, 414 
 V. Carroll, 9 Yerg. (Tenn.) 
 
 102. 4, 60, 62 
 
 V. Dashiell, 1 Md. 455 407 
 
 V. Taylor, 2 Yes. & B. 299. 249 
 V. Taylor, 15 Ves. Jr. 10.97, 317 
 Watkins. Ee, L. R. 15 Ch. Div. 
 
 253. 65, 74 
 
 V. Minnesota Thresher Mfg. 
 
 Co. 41 Minn. 150 416 
 
 V. National Bank of Law- 
 rence, 51 Kan. 254 
 
 348, 366, 421 
 V. Pinkney, 3 Edw. Ch. 533 
 
 48, 56 
 Watson V. Arundel, 9 Ir. Eq. 324. 61 
 V. Jones, 80 U. S. 13 Wall. 
 
 679, 20 L. ed. 666 123 
 
 Watts V. Waddle, 31 U. S. 6 Pet. 
 
 400, 8L. ed. 442 171 
 
 Waugh«. Carver. 2 H. Bl. 235.. . 310 
 Waverly Nat. Bank v. Halsey, 57 
 
 Barb. 249 250 
 
 Wayne Pike Co. v. Hammons, 129 
 
 Ind. 368.. 355, 359, 362, 367 
 
 «. State, 134 Ind. 672 
 
 125, 153, 183, 401 
 Webb V. Cashel, 11 Ir. Eq. 558... 77 
 V. First Baptist Church, 90 
 
 Ky. 117 40 
 
 Weber v. Spokane Nat. Bank, 50 
 
 Fed. Rep. 735 428 
 
 Webster v. Clark, 25 Me. 313 244 
 
 V. Couch, 6 Rand. 519.... 14, 32 
 Weed V. SmuU, 3 Sandf. Ch. 373. 343 
 
 V. Love, 50 N. Y. 571 177 
 
 V. Weeks, 106 N. Y. 626... 
 
 101, 103, 104, 105, 107 
 Weems v. Lathiop, 43 Tex. 207. .65, 78 
 Welder ®. Maddox, 66 Tex 372... Ill 
 Weigh tman v. Hatch, 17 111. 271.. 
 
 242, 247 
 
 Weil V. Tyler, 38 Mo. 545 74 
 
 Weill V. First Nat. Bank, 106 N. 
 
 C. 1 92, 154, 411 
 
 Weinrich v. Koeliing, 21 Mo. App. 
 
 133 139 
 
 Weis®. Goetier, 73 Ala. 259 13, 26 
 
 Weise v. Welsh, 30 N. J. Eq. 
 
 431 550 
 
 Welch V. Ileury, 33 Kan. 435.... 287 
 Welles V. Graves, 41 Fed. Rep. 459 
 
 155, 449 
 T. Larrabee, 36 Fed. Rep. 
 
 866, 2L. R. A. 471.... 443 
 V. Stout, 38 Fed. Rep. 68, 
 
 807 155, 439, 440, 443 
 
 Wellman v. Harker, 3 Or. 203.... 308 
 Wells ». Higgins, 132 N. Y. 458.. 
 
 203, 220 
 Wendler Mach. Co., lie, 2 App. 
 Div. 16, 37 N. Y. Supp. 
 
 444. 101 
 
 Wenner v. Thornton, 98 111. 156.. 
 
 261, 616 
 
 Werborn v. Kahn, 93 Ala. 201 
 
 15, 538, 549 
 Werner v. Murphy, 60 Fed Rep. 
 
 772.... 183 
 
 Wesson v. Chapman, 77 Hun, 144, 
 
 593 523,525 
 
 West«. Chasten. 12 Fla. 315 
 
 18, 39, 41, 44, 64, 307, 
 
 313, 315, 324 
 
 «. Conant, 100 Cal. 231 292 
 
 «. Eraser, 5 Sandf. 653..... 73 
 e. Swan, 3 Edw. Ch. 420. .34, 42 
 
 V. Weaver, 3 Heisk. 589 54 
 
 Western Canada & I. Co. Ee, 8 
 Prec. Rep. (Ont.) 263.. 
 
 220, 233 
 Western Div. of North Carolina 
 R. Co. V. Drew, 3 Woods, 
 
 391 362 
 
 Western N. C. R. Co. v. Rollins, 
 
 82 N. C. 523.. - 353 
 
 Western Pennsylvania R. Co. v. 
 
 Johnston, 59 Pa. 290 .. 477 
 Western U. Telep. Co. v. Atlantic 
 & P Teleg. Co. 7 Biss. 
 
 367 345 
 
 Weston V. Loyhed, 30 Minn. 221 . 
 
 376, 387
 
 CASES CITED. 
 
 xcvii 
 
 Wetter v. Schlieper, 7 Abb. Pr. 
 
 92 91,567 
 
 V. Schlieper, 4 E. D. Sraitb, 
 707 307 
 
 Wheeler v. Braham, 3 Campb. 
 
 340. _. 223 
 
 V. Lampman, 14 Johns. 481. 254 
 V. Pullman Iron & S. Co. 
 143 III. 197, 17 L. R. A. 
 
 818 356 
 
 V. Thayer, 121 Ind. 64 404 
 
 V. Walton & W. Co. 72 Fed. 
 
 Rep. 966 574 
 
 Wheelock v. Kost, 77 111. 296 . . . _ 446 
 Whelpley v. Erie R. Co. 6 Blatchf. 
 
 271 10, 466, 471 
 
 Whipple V. Pope, 33 111. 334 250 
 
 Whitiiker v. Cohen, 69 L. T. 451.. 543 
 V. Sparkman, 30 Fla. 347 . - 118 
 White V. Baugh, 2 Bligh, N. S. 
 
 181- 207 
 
 V. Colfax, 1 Jones & S. 297 
 
 307, 314, 315, 325, 328, 329 
 
 V. Griggs, 54 Iowa, 650 
 
 35, 277, 280, 282, 292, 293 
 V. Haight, 16 N. Y. 310.... 397 
 
 V. Jones, 38 111. 159 616 
 
 V. Joy, 13 N. Y. 83 ....159, 411 
 V. Lincoln, 8 Ves. Jr. 371.. 587 
 
 V. Low, 7 Barb. 204 92, 159 
 
 V. Pulley, 27 Fed. Rep. 441. 272 
 
 V. Russell, 79 III. 155 . 246 
 
 V. White, 7 Gill & J. 210... 171 
 White's Bank v. Farthing, 101 N. 
 
 Y.344.... 264 
 
 Whitehead v. Hale (N. C.) 24 S. E. 
 
 360 291 
 
 V. Hellen, 74 N. C. 679.. 253, 254 
 
 V. Wooten, 43 Miss. 523 
 
 15,17,73, 266, 271, 277, 
 280, 297, 371, 459, 462, 
 
 464, 467, 603 
 Whitehouse v. Fellow es, 10 C. B. 
 
 N. S. 765... 213 
 
 Whitelaw v. Sandys, 12 Ir. Eq. 
 
 393 18, 19 
 
 Whiteley v. Learoyd, 56 L. T. 846 
 
 531 , 541 
 Whiteside v. Prendergast, 2 Barb. 
 
 Ch. 471 75, 76, 561 
 
 Whitesides v. Lafferty, 3 Humph. 
 
 150 .307, 312, 313 
 
 While Water Valley Canal Co. v. 
 Vallette, 62 U. S. 21 
 How. 414, 16 L. ed. 154 
 
 41, 303 
 Whitewright v. Stimpson, 2 Barb. 
 
 379 320 
 
 Whitfield, K.iparte, 2 Alk. 315... 36 
 V. Lord I..e Despencer, Cowp. 
 
 754 211 
 
 o 
 
 Whiting V. Bank of United States, 
 38 U. S. 13 Pet. 6, 10 L. 
 ed 33 71 
 
 Whitley v. Challis"[1892] 1 ChV64 
 
 96, 295 
 Whitman v. Robinson, 21 Md. 30. 
 
 306, 309, 310 
 Whitney*. New York & A. R. Co. 
 66 How. Pr. 436, 32 
 
 Hun, 164. 15 
 
 V. Ruckman, 26 Cal. 447... 552 
 
 Whittemore, Be, 157 Mass. 46 596 
 
 V. Amoskeag Nat. Bank, 134 
 U. S. 527, 33L. ed. 1002 
 
 424, 435 
 Whittlesey v. Delaney, 73 N. Y. 
 571. .157, 171, 375, 377, 
 
 387, 406, 610 
 V. Frantz, 74 N. Y. 456.... 
 
 85, 174, 403 
 Whitwell V. Warner, 20 Vt. 425.. 360 
 Whitworth v. Woflford, 73 Ga. 
 
 259. 552 
 
 Wickens v. Tounshend, 1 Russ. & 
 
 M. 361.... 53 
 
 Wickham v. Hull, 60 Fed. Rep. 
 
 326 122, Ul 
 
 Wickersham's Case, L. R. 8 Ch. 
 
 831, 28 L. T. 653 337 
 
 Wicks V. Sears, 4 Lea, 298 599 
 
 Wiggins V. Armstrong, 2 Johns. 
 
 Ch. 144.. 239, 244, 248, 249 
 Wilcox V. Pratt, 52 Hun, 340 .... 322 
 Wildridge v. McKane, 2 Moll. 
 
 545 201 
 
 Wildy V. Mid Hants R. Co. 16 
 
 W<ek. Rep. 409 358 
 
 Wilkins?). Thorne, 60 Md. 253... 343 
 V. Williams, 3 Ves. Jr. 515.56, 62 
 Wilkinson v. Culver, 23 Blatchf. 
 
 416 112 
 
 V. Culver, 25 Fed. Rep. 639 414 
 V. Dobbie, 12 Blatchf. 298.. 13 
 e. Dodd, 40N. J. Eq. 124-- 88 
 V. North River Const. Co. 
 
 66 How. Pr. 423. -.185, 417 
 V. Rutherford, 49 N. J. L. 
 
 241 155, 161, 399 
 
 Willard v. Decatur, 59 N. H. 137.. 339 
 Williams, Ex parte, 11 Ves. Jr. 5. 
 
 318, 327 
 V. Babcock, 25 Barb. 109... 
 92, 180, 369, 383, 391. 
 
 611, 624 
 V. Benedict, 49 U. S. 8 How. 
 
 Ill, 12 L. ed. 1008.... 123 
 V. Brown, 4 Johns. Ch. 682 244 
 V. Filzliugh, 37 N. Y. 444.. 147 
 V. Halliard, 38 N. J. Eq. 378 450 
 V. Hintermeister, 26 Fed. 
 
 Rep. 889 169, 412
 
 XCVlll 
 
 CASES CITED. 
 
 Williams v. Hogebooni, 8 Paij^e, 
 
 469... 253, 253 
 
 V. Hdlibtird, Walk. Ch. 
 
 (Mi8s.)28 252 
 
 ■V. Hutchinson, 26 Fla. 513. 118 
 
 ■c. Ives, 49 111. 512 253 
 
 «. Jenkins, 11 Ga. 595 
 
 17. 19, 42, 73, 550 
 «. Michener, 11 N. J. Eq. 
 
 520. 246 
 
 e. Morgan, 111 U. S. 684, 28 
 
 L. ed. 559. 118, 119 
 
 V. Noland, 2 Tenn. Ch. 151 
 
 279, 358 
 V. Robinson, 16 Conn. 517- . 
 
 280 358 
 
 V. Sexton, 19 Wis. 43 ' 238 
 
 V. Thorne, 70 K Y. 270... . 239 
 V. Traphagen, 38 N. J. Eq. 
 
 57 ..1B9, 180, 405 
 
 «. Wilson, 4 Sandf. Ch. 379 
 
 306, 311, 325, 326, 340 
 Williamson v. Gerlach, 41 Ohio St. 
 
 684 .- .- 301 
 
 V. Monroe, 3 Cal. 383..-308, 334 
 V. New Albany, etc., R. Co. 
 
 1 Biss. 198 11, 268, 
 
 271, 276, 292, 458, 463, 469 
 V. Washington Citv, V. M. 
 & G. S. R. Co." 33 Gratt. 
 
 624 ..11, 297, 476, 477 
 
 V. Wilson, 1 Bland, Ch. 418 
 2, 12, 20, 22, 42, 60, 61, 
 62, 65, 73, 142, 306, 307, 
 
 325, 326, 333 
 
 Williamson's Case, 26 Pa. 1 129 
 
 Willink V. Morris Canal & Bkg. 
 Co.4N. J. Eq. 377.... 
 
 196, 383 
 Willis V. Corlies, 2 Edw. Ch. 281. 
 
 40, 43, 321, 362, 536 
 
 V. Sharp, 46 Hun, 540 537 
 
 V. Sharp, 124 N. Y. 406.... 
 
 200, 203, 206, 569 
 V. Sharp, 113 N. Y. 591, 4 
 
 L. R. A. 493 216, 626 
 
 Willison*. Salmon,45N. J. Eq. 257 144 
 Willitts ^.Waite, 25 N. Y. 577.... 
 
 50, 111, 168 
 Wills V. Lufif, L. R. 38 Ch. Div. 
 
 197, 57 L. J. Ch. 563... 35 
 Wilmer v. Atlanta & R. Air Line 
 R. Co. 2 Woods, 421... 
 48, 56, 123, 127, 142, 
 276, 344, 358. 359, 459, 
 
 461, 464 
 Wilmington Star Min. Co. v. Allen, 
 
 95 111.288 369 
 
 Wilson V. Allen, 6 B^rb. 542 
 
 47, 65, 73, 74, 125, 141, 
 
 142, 144, 171. 261, 400 
 
 Wilson V. Aultman & T. Co. 91 Ky. 
 
 299.. .- 296 
 
 t). Barney, 5 Hun, 257 
 
 67, 69, 562 
 
 V. Coburn, 35 Neb. 530 392 
 
 V. Davis, 1 Mont. 98. ..12, 70, 71 
 V. Fletcher, 11 N. J. Eq. 71. 325 
 V. Greenwood, 1 Swanst. 471 
 307, 308. 312, 315. 322, 
 
 325, 340 
 «. Martin-Wilson Automatic 
 Fire Alarm Co. 149 
 
 Mass. 24 146 
 
 «. Martin-Wilson Automatic 
 Fire Alarm Co. 151 
 Mass. 515, 8 L. R. A. 309 400 
 
 V. Poe, 1 Hog. 322 60, 90 
 
 V. Robertson, 21 N. Y. 587. 250 
 
 V. Welch, 157 Mass. 77 
 
 75, 159, 161, 162, 181, 
 
 400, 401, 410, 611 
 
 t. Welsh, 70 Ind. 428 399 
 
 V. Wilson, 1 Barb. Ch. 592. 
 
 47, 143, 148 
 
 Wilson's Case. 1 H. Bl. 691 109 
 
 Wilson Cotton Mills v. Randleman 
 Cotton Mills, 115 N. C. 
 
 478 588 
 
 Winans v. Gibbs & S. Mfg. Co. 48 
 
 Kan. 777 167 
 
 Winbourn's Case, 30 Fed. Rep. 
 
 167. 516, 595 
 
 Winchester Electric Light Co. ». 
 Gordon (Ind.) 42 N. E. 
 
 914 36 
 
 Winchester Wagon Works & Mfg. 
 Co. V. Carman, 109 Ind, 
 
 31 549 
 
 Wincock». Turpin, 96 111.135 
 
 175, 178, 385, 405 
 Winfield v. Bacon, 24 Barb. 154.. 
 
 197, 198, 416, 619 
 
 Wing®. Champion, 1 Tenn. Ch. 515 547 
 
 V. Disse, 15 Hun, 190... 142, 256 
 
 «. Dodge, 80 111. 564. -.261, 616 
 
 Winkler v. Winkler, 40 111. 179... 
 
 14, 32, 45 
 Winslow V. Nayson, 118 Mass. 411 207 
 Winters v. Armstrong, 37 Fed. 
 
 Rep. 508 177, 404, 428 
 
 V. Sowles, 38 Fed. Rep. 700 441 
 Wisconsin M. & L. F. Ins. Co. 
 Bank v. Manistee Salt & 
 L. Co. 77 Mich. 76.-138. 149 
 Wiser v. Blachly. 1 Johns. Ch. 607 76 
 Wiswall V. Sampson, 52 U. S. 14 
 How. 52, 14L.ed. 323.. 
 24. 46, 48, 49, 121, 125- 
 127, 129, 141, 183, 186, 
 188, 189, 190, 300, 345, 
 373, 417, 418, 615, 620, 621
 
 CASES CITED. 
 
 xcix 
 
 Witters v. Sowles, 32 Fed. Rep. 
 130, 772, 31 Fed. Rep. 1 
 
 123, 124, 443, 449 
 Woerishoffer v. North River Const. 
 
 Co. 99 N. Y. 398 • 
 
 24, 128, 129, 352, 353. 418 
 Wolbert v. Harris, 7 N. J. Eq. 605 
 
 97, 307, 322, 340 
 
 Wolfe*. Claflin, 81 Ga. 64.. 239 
 
 Wood V. Ely the, 46 Wis. 650 85 
 
 ®. BreweP, 9 lad. 86_. 71 
 
 V. Dummer, 3 Mason, 308.. 
 
 175, 237, 354 
 J. Guarantee Trust & S. D. 
 Co. 128 U. S. 417, 32 
 L. ed. 472.95, 484, 523, 577 
 V. Hutchings, 2 Beav. 289.. 530 
 V. New York & N. E. R. Co. 
 
 70 Fed. Rep. 741 . . . .487-490 
 V. Oregon Development Co. 
 
 55 Fed. Rep. 901 563 
 
 V. Standard Mut. L. S. Ins. 
 
 Co. 154 Pa. 157 624 
 
 V. Truckee Tump. Co. 24 
 
 Cal. 474. 454 
 
 V. Wood, 4 Russ. 558- 202 
 
 Woodburn v. Smith (Ga.) 22 S. E. 
 
 964 99 
 
 Wooden v. Wooden, 3 N. J. Eq. 
 
 429. ..14, 32 
 
 Wooding V. Wooding, 10 Wash. 
 
 531 68 
 
 Woodruff V. Erie R. Co. 93 N. Y. 
 
 609. ...103,203, 
 
 204, 220, 221, 224, 381, 
 
 393, 489, 495, 502, 506 
 V. Jevpett, 115 N. Y. 267, 
 Rev"d in 37 Hun. 205_. 
 192, 195, 198, 229, 233, 
 
 395, 559 
 Woods t). Creaghe, 1 Hog. 174... 562 
 V. Ellis. 85 Va. 471.53. 65, 73, 74 
 Woodward ». Brooks, 128 111. 222, 
 3 L. R. A. 702. ...113, 
 
 167, 170, 412, 413 
 
 V. Roane, 23 Ark. 526 110 
 
 V. Scbatzell, 3 Johns. Ch. 
 
 415 326 
 
 ». Wiuehill (Wash ) 44 Pac. 
 
 860 49, 220, 297 
 
 Woodworth v. Ellsworth, 4 Colo. 
 
 580 428 
 
 Woolly V. Holt, 14 Bush, 788 
 
 267, 277, 280 
 Woolscy V. Cummings Car Works, 
 
 33 N. J. Eq. 432 632 
 
 Woolvcrton v. George II. Taylor 
 
 Co. 43 III. App. 424... 176 
 Word V. Word, 90 Ahi. 81. ...15, 
 
 17, 307, 323, 325, 455 
 Wordle v. Lloyd, 2 Moll. 38"^ 132 
 
 Wormser v. Merchants' Nat. Bank, 
 
 49 Ark. 117... 136, 295, 366 
 
 Worrill v. Coker, 56 Ga. 666 548 
 
 Woven Tape Skirt Co., Re, 12 
 Hun, 111, 85 N. Y. 506. 
 
 122, 585, 590 
 Wray v. Hazlett, 6 Phila. 155.. .. 184 
 V. Jamison, 10 Humph. 186. 
 
 161, 400, 401 
 Wreck Recovery & Salvage Co., 
 Be, L. R. 15 Ch. Div. 
 
 353 97 
 
 Wren v. Kirton, 11 Ves. Jr. 377.. 
 
 201, 207 
 Wright V. McCormack, 17 Ohio 
 
 St. 86 177 
 
 V. Merchants' Nat. Bank, 1 
 
 Fiipp. 568 421, 422 
 
 V. Nostrand, 94 N. Y. 31.. 
 173, 242, 243, 252. 257, 
 
 259,260, 375 
 
 V. Null, 1 H. Bl. 136 164 
 
 V. Strong, 3 How. Pr. 112.. 246 
 
 V. Vernon, 1 Drew. 68. 35 
 
 5. Vernon, 3 Drew. 112 
 
 34, 63, 298 
 
 Wring V. Disse, 15 Hun, 191 143 
 
 Wrixson v. Vize. 5 Ir. Eq. 276... 83 
 Wyatt V. Ohio & M. R. Co. 10 111. 
 
 App. 289 ..183, 191 
 
 WyckofE V. Scofield, 103 N. Y. 
 
 630 .-93,382, 626 
 
 Wynn v. Lord Newborough, 3 
 Bro. C. C. 88...92, 153, 
 
 159, 383 
 Wynne v. Heck, 92 N. C. 414.... 160 
 V. Lord Newborough, IVes. 
 
 Jr. 164 105 
 
 V. Lord Newborough, 15 
 Ves. Jr. 283... 56. 59, 60-62 
 
 Y. 
 
 Yardley v. Clothier, 49 Fed. Rep. 
 
 337 138, 384, 439 
 
 v. Dickson, 47 Fed. Rep. 
 
 835 436 
 
 Yates V. Lansing, 9 Johns. 395... 207 
 
 Yeager v. Wallace, 44 Pa. 294 
 
 82, 141, 145, 161, 162, 
 
 262, 396. 399-401, 611 
 Yoakum v. Dunn, 1 Tex. Civ. 
 
 App. 524 202, 212 
 
 V. Selph, 83 Tex. 607.. 192, 
 
 204, 211, 213, 514 
 
 Young. Re, 7 Fed. Rep. 855 
 
 189, 194, 613- 
 V. Buckett, 51 L. J. Ch. 504. 323 
 V. Clapp, 147 111. 176.... 22, 
 
 47, 50, 262, 263, 376
 
 CASES CITED. 
 
 Young V. Farwell, 139 111. 326.-.. 405 
 V. Frier, 9 N. J. Eq. 465. .239, 249 
 V. Montgomery & E. R. Co. 
 2 Woods, 606-.48, 123, 
 127. 183, 345, 372, 557, 558 
 V. Northern Illinois Coal & 
 
 . I. Co. 9 Biss. 305 272 
 
 «. Rollins, 85 N. C. 485. ... 
 
 48, 56, 345. 604 
 V. Rollins, 90 N. C. 125.172. 370 
 V. Wempe, 46 Fed. Rep. 354 
 
 437, 438 
 V. Wright, 8 P. R. (New 
 
 Brunswick) 198 36 
 
 Yore V. San Francisco Super. Ct. 
 108CaI.431.-.-67, 346, 
 
 356, 361, 415 
 
 York & M. L. R. Co. v. Winans, 
 58 U. S. 17 How. 30, 15 
 L. ed. 27 105 
 
 Yuba County v. Adams, 7 Cal. 35. 
 
 127, 137, 373 
 
 Zabriskie v. Cleveland, C. & C. R. 
 
 Co. 04 U. S. 23 How. 
 
 381, 16 L. ed. 488 351 
 
 Zell Guana Co. v. Heatherly, 38 
 
 W. Va. 416 238. 239 
 
 Zieverink v. Kemper, 50 Ohio St. 
 
 208 355
 
 LAW OF 
 
 RECEIVERSHIPS. 
 
 CHAPTER I. 
 
 GENERAL NATURE AND FEATURES O^ THE LAW. 
 
 § 1. Origin of the law; its growth. 
 
 § 2. Is ancillary and provisional. 
 
 § 3. Receiver defined; liquidators. 
 
 g 4. Generally, in what cases ap- 
 pointed. 
 (a) Where parties entitled to cus- 
 tody are incompetent. 
 (1) Over infants' estates, 
 (f) Over lunatics' estates. 
 {3) Over decedents' estates. 
 •(b) Where parties entitled to cus- 
 tody are competent, but are 
 otherwise disqualified. 
 (1) Over copartnership property. 
 {£) Over property of tenants in 
 
 common. 
 (5) Over properly claimed by 
 differeut persons. 
 (c) Where parties in custodj' are 
 violating fiduciary duties and 
 trust relationships, 
 (i) Over trust or quasi trust 
 
 properly. 
 {2) Executors and administra- 
 tors. 
 
 (3) Mortgagors in possession. 
 
 (4) Judgment debtors. 
 
 (5) Vendees in possession. 
 (G) Fraudulent purchasers. 
 
 (7) Annuities. 
 
 (8) Life tenants in possession. 
 ii>) Corporate officers. 
 
 (10) Assignees in bankruptcy and 
 insolvency, 
 ^.d) Where the ordinary process is 
 insutficient. 
 (1) Creditors' suits, supplement- 
 ary proceedings. 
 {S) Separate estates of married 
 
 women. 
 (3) Statutory proceelings to 
 wind up corporations. 
 ^5 5. Rules governing the appointment. 
 
 (a) Appointment rests in the sound 
 
 discretion of the court. 
 
 (b) Must be reasonable possibility 
 
 of plaintiff's recoverj\ 
 
 (c) Must be a necessity of preserv- 
 
 ing property. 
 
 (d) Defendant must be heard or 
 
 have an opportunity. 
 (1) Exception; Final relief. 
 
 ' Where all parties 
 before court. 
 
 (2) 
 (3) 
 
 * Where defendant 
 absconded. 
 (4) " Where imminent 
 danger of loss. 
 § 6. Functions of receiver. 
 
 (a) Source of power; nature and 
 
 extent. 
 
 (b) Trustee for all parties ; respon- 
 
 sibility. 
 
 (c) Care and custody of property. 
 § 7. Effect of appointment.
 
 2 
 
 RECEIVERSHIPS. 
 
 (a) Places property in cvHodia 
 
 ler/is. 
 
 (b) Receiver not permitted to be 
 
 sued.' 
 
 (c) Determines no rights, and af- 
 
 fects no li<^as. 
 § 8. Kinds of receivers. 
 § 9. At what stage appointed. 
 
 (a) There must be a suit pending. 
 
 (b) Before answer, when. 
 
 (c) After decree and sale, when. 
 
 (d) After appeal, when. 
 
 § 10. Application for; allegations;who 
 appointed. 
 
 (a) B}'^ whom application made. 
 
 (b) Exercise of care by the courts. 
 
 (c) Allegations, averments. 
 
 (d) Receiver must be disinterested. 
 
 (e) Subsequent receivers, ancil- 
 
 lary. 
 
 § 1. Origin of the law ; its growth. 
 
 The law of receiverships, like all other branches of remedial 
 jurisprudence, is a growth, an evolution, and, in its application, 
 has for its purpose the protection and preservation of the prop- 
 erty which forms the subject-matter of the litigation, until the 
 final adjudication of the rights of the parties litigant. In its 
 original exercise the appointment of a receiver was pnrely an 
 incidental power of the court of chancery, put into operation as 
 part and j)ai*cel of the great body of equitable jurisprudence, in- 
 tended to secure justice by more complete and adequate reme- 
 dies where the strict and unelastic rules and practice prevailing 
 in the common law courts were insufficient.' 
 
 This branch of the law, however, has grown along with the 
 other branches of equitable jurisdiction and has been extended 
 and brought into exercise in nearly every species of chancery 
 proceeding, as well as in many common law actions. Perhaps 
 no other branch of jurisprudence more fitly represents the grad- 
 
 » Chancellor Bland in 1826 says : " It 
 is a power of the court of chancery of 
 England which appears to have been 
 frequently called into action during 
 more than a century past. All the 
 leading principles in relation to it were 
 well established there long before our 
 revolution; and it was then, and has 
 ever since been considered, there and 
 here, as a power of as great utility as 
 any which belongs to a court of chan- 
 cery. And that it is so will appear 
 very evident from a review of the na- 
 ture and the variety of the exigencies 
 in which it has been called into action, 
 
 either to prevent fraud, to save the sub- 
 ject of litigation from material injury, 
 or to rescue it from inevitable destruc- 
 tion." Williamson v. Mfoc?/*, 1 Bland, 
 Ch. 418. See also Myers v. Estell, 48 
 Miss. 401 ; Beverley v. Brooke, 4 Gratt. 
 187 (208). Vice Chancellor Giffard, in 
 Hopkins v. Worcester <& B. Canal Co. L. 
 R. 6 Eq. 437, 447, says in regard to the 
 appointment of receivers: " That is 
 one of the oldest remedies in this 
 court," and is a remedy which a court 
 of chancery will always grant ex debito 
 justiticz, upon a proper showing.
 
 GENERAL NATURE AND FEATURES OF THE LAW. 3 
 
 nal (growth and adaptation of equitable principles to the ever 
 changing conditions of social progress and civil and counnercial 
 advancement. 
 
 Especially has the law of receiverships been pnt into operation 
 and its efficient remedial action been fully demonstrated in the 
 winding up of corporations and the administration of their assets. 
 By several acts of Parliament, in England, and statutory enact- 
 ments in nearly all of the states in this country the original law 
 of receiverships as administered in the courts of chancery, and 
 those exercising chancery powers, has been enlarged in its scope 
 and extended in its application to many subjects not theretofore 
 embraced in its exercise, and the powers, duties, and liabilities of 
 the receiver have been largely increased. Much of this legisla- 
 tion, however, has been but placing in statutory form the princi- 
 ples of equity jurisdiction and practice existing long prior thereto. 
 
 § 2. Is ancillary and provisional. 
 
 The law of receiverships is peculiar in its nature in that it be- 
 longs to that class of remedies which are wholly ancillary or pro- 
 visional, and the appointment of a receiver does not affect, either 
 directly or indirectly, the nature of any primary right but is 
 simply a means by which primary rights may be more efficiently 
 preserved, protected, and enforced in judicial proceedings. It 
 adjudicates and determines the rights of no party to the proceed- 
 ing and grants no final relief directly or indirectly.^ In this re- 
 spect its effects are analogous to the law in relation to injunction 
 and interpleader, and sometimes, as will be seen, an injunction 
 will afford an adequate remedy without interfering with the pos- 
 session of the propert3^ It leaves the parties as they have placed 
 themselves, as determined by the final judgment or decree of the 
 court. 
 
 § 3. Receiver defined; liquidators. 
 
 A receiver may be defined as a person appointed by the court, 
 as a quasi ofiicer or representative of the court, and therefore 
 occupying a disinterested position as between the parties, whose 
 function it is to hold, manage, control, and deal with the property 
 
 'Pom. Eq. Jur. g§ 171, 1319, 1330; 
 Miller v. Bowles, 58 N. Y. 203.
 
 4 RECEIVERSHIPS. 
 
 "whicTi is the subject-matter of, or involved in the litigation; in 
 case there is no person entitled competent to thus hold it ; or, 
 where two or more litigants are equally entitled, but it is not 
 just and proper, under existiiig circumstances, that either of 
 them should retain it under his control; or where a person is 
 legalh^ entitled to the j^ossession, but there is danger of his mis- 
 applying or misusing it; or, under some particular circumstances, 
 in suits to foreclose mortgages.' A receiver is an indifferent 
 person between the parties to a cause, appointed by the court to 
 receive and preserve the property or fund in litigation pendente 
 lite, when it does not seem reasonable to the court that either 
 party should hold it.^ 
 
 Under the provisions of section 92, chapter 89 of the Compa- 
 nies act of 1862 provision is made in England for the appoint- 
 ment of a liquidator or liquidators, for the purpose of the wind- 
 ing up of companies and associations thereunder : (1) When the 
 company has passed a resolution requiring the company to be 
 wound up ; (2) when the company does not commence its busi- 
 ness within a year from its incorporation, or suspends its business 
 for a whole year ; (3) when its members are reduced in number 
 to less than seven ; (4) when the company is unable to pay its 
 debts ; (5) whenever the court is of the opinion that it is just 
 and equitable that the company should be wound up. The pow- 
 ers of the official liquidator under the above act are : (a) To bring 
 or defend any action, suit, or prosecution, or other legal proceed- 
 ing, civil or criminal, in the name and on behalf of the company; 
 (b) to carry on the business of the company so far as may be 
 necessary for the beneficial winding up of the same ; (c) power 
 to sell the company's assets and effects; (d) to do all acts and to 
 execute in behalf of the company all deeds, receipts, and other 
 documents, and if necessary to use the company's seal ; (e) and, 
 generally, to do and perform all other acts and things that may be 
 
 'Pom. Eq. Jur. § 1330; Kerr, Re- erley v, Brooke, 4 Gratt. 208; Lottimer 
 
 ceivers, p. 3. v. Lord, 4 E. D. Smith, 183; Lihhy v. 
 
 ^High, Receivers, 3d ed. § 1; Booth Bosekrans, 55 Barb. 202; Waters v. Car- 
 
 V. Clark, 58 U. S. (17 How.) 331, 15 roU,9 Yerg. (Tenn.) 102; Devendorfv. 
 
 L. ed. 167; Hunter v. Peaks, 74 Me. Dickinson, 21 How. Pr. 275; Harman 
 
 363; Gluck & Becker Receivers, § 1; v. McMvllin, 85 Va. 187; Davis v. Duke 
 
 Ex parte Jay, L. R. 9 Ch. 133; of Marlborough, 2 Swanst. 125. 
 Baker v. Backus, 32 111. 79; Bev-
 
 GENERAL NATURE AND FEATURES OF TUE LAW. 5 
 
 necessary for winding up the affairs of the company and distrib- 
 uting its assets.' It is also provided by the act (§ 96) that the 
 liquidator may exercise the above enumerated powers without 
 the sanction or intervention of the court where the order for his 
 appointment so provides. "While it is true that the appointment of 
 a liquidator, under the provisions of the above act, does not abol- 
 ish the office of a receiver, and under peculiar circumstances receiv- 
 ers are still appointed by the courts, yet so far as corporations and 
 associations embraced in the act are concerned, the official liqui- 
 dator, with largely increased powers and duties, has superceded 
 the receiver in England, but the functions of his office are such, 
 and the decisions of the courts relating thereto so highly instruct- 
 ive and important, that they may be regarded and are treated 
 Iieroin as contributions to the general and growing body of the 
 Jaw of receiverships. Under the Winding-up Act of 1890, after 
 an order has been made for winding up the company, the court 
 has no power toi appoint a provisional liquidator other than the 
 official receiver.^ As to tlie general power to ap^Doint receivers, 
 see Judicature Act of 1873. 
 
 In this country by the codes of civil procedure, and amenda- 
 tory statutes in states not adopting the code practice, the func- 
 tions, powers, and duties of the receiver have been greatly in- 
 creased and extended, and especially so in their application to 
 corporations, and the administration of their affairs in cases of 
 insolvency, breach of corporate powers and duties, and the more 
 effectual and speedy collection and distribution of assets.^ 
 
 'Ch. 89, Vol. XIV. Rev. Stat. p. features of this subject are noted 
 
 202 (25 & 26 Victoria to 28 & 29 Vic- la this connection for reference 
 
 toria, A. D. 1862-1865). merely. 
 
 ^ Re Worth Wales Qunx)oicder Co. Alabama: Code, § 1686. 
 
 [1892] 2Q.B.220; under the Judicature Arkansas: Gantt's Dig. of Stat. 
 
 Act of 1873, § 25, cl. 8, the court has (1874) «:§ 4809, 4810; Sandell & 
 
 most ample power in the appointment Hill, Dig. of Stat, ij 5964. 
 
 of receivers, and may do so whenever California: Code Civ. Proc. g^ 564, 
 
 it is just or convenient, or as construed 565, 566. 
 
 by the court, just and convenient. "Colorado: King's Code Civ. Proc. 
 
 North London Railway v. Great (1880) § 138; 3Iills' Ann. Code, 
 
 Northern, Railway L. R. 11 Q. B. § 163. 
 
 Div. 30. Connecticut: Gen. Stat. g§ 1318, 
 
 2 The statutory provisions of the 1319, 1320, 1321. 1322, 19J2, 
 
 several states applicable to the maia 1852, 2823.
 
 RECEIVERSHIPS. 
 
 § 4. (xouerally, in what cases appointed. 
 
 Independent of statutory provisions, a court of equity, or a 
 common law court exercisin<^ equity powers, will appoint a re- 
 ceiver in four diiferent classes of cases. 
 
 Delaware: Laws, pp. 686, 715, 718. 
 Florida: Code Civ. Proc. (1870) 
 
 g 192; Rev. Stat. g§ 1211, 2107, 
 
 2154, 2157, 2192. 
 Georgia: Code (1882) §g 3098, 3149, 
 
 274, 1486, 3149a, 3216. 
 Idaho: Rev. Slat. ^§ 4329, 2479. 
 Illinois: Kurd's Stat. 1895, chap. 32, 
 
 § 25; chap. 73, § 15. 
 Indiana: 2 Davis' Rev. (1876) ^ 199; 
 
 Rev. Stat. 1894 (Burns), §§1236, 
 
 3435-3439, 4807-4870, 4954, 
 
 8125-8127. 
 Iowa: 2 Miller's Rev. Code (1880), 
 
 §2903; McClain's Ann. Code, 
 
 §§ 4113-4115, 4188, 4279, 4370, 
 
 1817, 457. 2585. 
 Kansas: Dassler's Comp. Laws 
 
 (1881), §254; Gen. Stat. §§4590; 
 
 4.591, 4319, 3«3. 
 Kentucky: Bullitt's Code (1876), 
 
 §§ 298, 299; Carroll's Code, 
 
 298, 218, 302. 
 Maine: Rev. Stat. p. 406, §§ 46-48; 
 
 423, §71; 432, §121; 455, §67; 
 
 457, § 76; 458, § 83; 478, §§ 47- 
 
 49; Statutes, 1885-1895, 318, § 5. 
 Maryland: Pub. Gen. Law, 389-391, 
 
 §§ 268-275. 
 Massachusetts: Pub. Stat. 569, f 42; 
 
 Stat. 1883, chap. 223; Stat. 1882, 
 
 chap. 22; Pub. Stat. 687, 837; 
 
 Supp.Pub. Stat. 1882-1888,180, 
 
 293, 513, 137, 543, 15, 124, 125. 
 Michiejau: Howell's Ann. Stat. 
 
 §§ 4263, 4293, 4323, 6624, 7936, 
 
 8064, 8065, 8067, 8111, 8112, 
 
 8158, 8386, 8634, 8744, 8746, 
 
 8748, 8749c, Supp. 4323i^ 
 
 4d23h\ 32510. 
 Minnesota: Stat. §§ 5212, 3432, 
 
 3434, 3435, 4241, 4246, 4810, 
 
 5492,5897, 5899, 5906, 5972,6238. 
 
 Mi.<=souri: Rev. Stat. (1879) §§ 3116, 
 
 3660. 
 Mi.ssLssippi: Ann. Code, §§ 119, 
 
 574-582. 581. 
 Montana: C. C. & Stat. Civ. Code, 
 
 §§ 727, 830, 832; Code Civ. 
 
 Proc. §§ 950-956, 2251. 
 Nebraska: Comp. Stat. 1224, 1169, 
 
 1179, 121. 
 Nevada: Gen. Stat. §§ 2997, 3168. 
 New Jersey: Rev. of N. J. 187, 
 
 §§ 60-62; 121, § 92; 189, § 72; 
 
 1281, § 1; 188, §61; 189, §72; 
 
 394, § 26; 1348, §§ 4, 5; 943, 
 
 § 160; 196, §106; Supp. 915, 
 
 §§ 11-15. 
 New York: Bliss' Ann. Code, 995- 
 
 1002, 1014-1027. 2815-2322, 
 
 2331, 2745-2750. 
 North Dakota: Rev. Code, §§ 5-302, 
 
 5403, 5705, 5770, 5779, 5780, 
 
 5568-5570. 
 North Carolina: Code Civ. Proc. 
 
 197, 290; Code, vol. 1, §§ 379, 
 
 668. 494. 
 Ohio: Rev. Stat. §§ 5587, 5539, 
 
 7609, 7601, 8248, 5670, 5656, 
 
 5705, 5484, 3416. 
 Oklahoma: Stat, tl 4101-4106, 
 
 4144-4150; §§ 266-272. 
 Oregon: Hill's Ann. L. 694, 695?i, 
 
 696?i, 697tt, 698?i, 699. 
 Pennsylvania: Brightley's P. D. 
 
 427, 118; 1776,^§ 23. 
 Rhode Island: Gen. L. 694-699. 
 South Carolina: Gen. Stat. & Civ. 
 
 Code; Code Civ. Proc. §§ 265, 
 
 318. 
 Tennessee: Code, §§ 4518, 4716, 
 
 3716, 4162, 4516, 2735. 
 Texas: Sayles' Tex. Civ. Stat. vol. 1, 
 
 art. 1461-1469, 1470, 1470i.
 
 GENERAL NATURE AND FEATURES OF THE LAW. "i 
 
 (a) Where pakties entitled to custody are incompetent. 
 Where there is no person competent bj reason of interest, 
 or otherwise, to take the custody and management of the prop- 
 erty which constitutes the subject-matter of judicial action. 
 This may occur (1) in regard to infants' estates, where there is no 
 trustee, and where there is no guardian, or if a guardian, by rea- 
 son of inadequate power, he is unable to j^roperly preserve, care 
 for, or manage his ward's estate ; (2) in regard to lunatics' estates, 
 where no person will act as a committee or conservator ; (3) in 
 regard to decedents' estates, where by reason of litigation con- 
 cerning the admission of the will to probate, or where by reason 
 of delay, from whatever legal cause, in the appointment of an 
 executor of the will or administrator of the estate, and where 
 there is danger of loss, misapplication, or misuse of the property 
 pending such delay.' 
 
 (b) Where parties entitled to custody are competent, but 
 
 ARE otherwise DISQUALIFIED. 
 
 Where all the parties may be equally entitled to the pos- 
 session and custody of the property or fund, but where it is not 
 proper, owing to the nature of the contention, or of the relation 
 of the parties that either of them should have possession or cus- 
 tody.^ This may occur: (1) in matters growing out of, or in- 
 volved in the dissolution of a copartnership ; (2) in partition pro- 
 ceedings between tenants in common ; (3) between claimants to 
 land under legal title, where gross fraud, great danger or violent 
 possession is alleged.' 
 
 ' Pomeroy's Equity Jur. § 1332. foundation of the remedy is of course 
 
 ^ Mr. Pomeroy, in bis Equity Juris- the danger, yet it is not always essen- 
 
 prudence (Vol. 3, § 1333), says that lial that there should be any element 
 
 the second class of cases is based upon of actual fraud or breach of trust, 
 
 the fact that all the parties are clearly * In Delaware, L. & W. R. Co. v. Erie 
 
 entitled to the possession of the prop- B. Co. 21 N. J. Eq. 298, where two 
 
 erty which is the subject-matter of the railway companies had agreed to use 
 
 controversy, but it is not just and a railway station jointly, it is said 
 
 proper from the nature of the dispute that no doubt seems to have been en- 
 
 and of their relations to each other tertained in Shrewsbury R. Co. v, 
 
 that either of them should be allowed Cheater R. Co. 14 L. T. 217-433, that 
 
 to retain the possession and control the court of chancery had power to 
 
 during the litigation. While the prescribe rules for the use of such sta-
 
 S RECEIVERSHIPS. 
 
 (c) Where parties in custody are violating fiduciary du- 
 ties AND TRUST RELATIONSHIPS. 
 
 ^Yhere tlie person lioldino; property occupies a position of 
 trust, or a qtcasi trust relationship, and is violating his fiduciary 
 duties by waste, misuse, or misapplication. This may occur: (1) 
 in tlie case of trustees ; (2) executors and administrators ; (3) 
 mortgagors in possession where the security is inadequate and the 
 mortgagor is insolvent, or is committing waste ; (4) judgment 
 debtors where the judgment creditor has an equitable lien, but is 
 unable to enforce his judgment by the ordinary process; (5) 
 vendees of land in possession, where an action is brought to 
 enforce a specific performance of the contract of sale ; (6) pur- 
 chasers of property where by reason of fraud an action is brought 
 to rescind ; (7) delinquents, in an action brought by annuitants 
 to enforce payment of arrears ; (8) life tenants in possession in an 
 action by the remainderman usually founded on waste ; (9) 
 
 tion and to appoint a receiver. See also 
 the case of Midland B. Co. v. Atnber- 
 gate, W. &B. &E.J.B. Go. 10 Hare, 359. 
 ' 'In the case before me," the chancellor 
 says, "these parties possess a com- 
 mon interest in this property. They 
 are tenants in common of an ease- 
 ment, and if the court cannot protect 
 the one against the injustice of the 
 other, the party whose rights are in- 
 vaded is clearly without any adequate 
 remedy ; for it is certain that either of 
 these companies thus situated can so 
 act with respect to the common ease- 
 ment as to render it worthless to the 
 other and bring upon the other incal- 
 culable mischief. The general cog- 
 nizance in equity in cases of this kind 
 where property is enjoyed in common 
 will not, it is presumed, be disputed 
 by any one, and I can perceive no 
 reason why this power should not ex- 
 ist where two railroads are such ten- 
 ants in common, as well as in other 
 cases. In truth, as these companies, 
 although technically private corpora- 
 tions, are in some measure public 
 
 agents, there exists in such cases as 
 the present an additional reason why 
 a judicial control should be extended 
 as far as possible over their conduct 
 towards each other. I have no doubt 
 as to the jurisdiction of this court 
 over this subject, and I shall not scru- 
 ple therefore to exercise it to the full- 
 est extent that the circumstances of 
 the case may now or at any other 
 time hereafter appear to require." 
 
 In Bank of Mississippi v. Duncan, 
 52 Miss. 740, it is held that where the 
 court takes the fund from a defend- 
 ant pending litigation and afterwards 
 becomes satisfied it cannot grant re- 
 lief and dismisses the bill, it still has 
 power to retain the bill for the pur- 
 pose of repairing the injury. 
 
 In Midland B. Co. v. Ambergate, N. 
 & B. & E. J. B. Go. 10 Hare, 359, the 
 court refused to restrain one railway 
 company from using the station of an- 
 other under an agreement which was 
 made between the two companies. 
 
 See also Shrexcshury B. Co. v. Cites- 
 ter B. Co. 14 L. T. 217-433
 
 GENERAL NATURE AND FEATURES OF THE LAW. & 
 
 officers of a corporation in an action bj stockholders charging 
 mismanagement or acts ultra vires / (10) assignees and otlier 
 persons in bankruptcy proceedings.' 
 
 (d) Where the ordinary process is insufficient. 
 
 4. Where, after the rendition of a judgment, it becomes neces- 
 sary to carry into effect the judgment or decree of the court and 
 in which the ordinary officers of the court, or the legally consti- 
 tuted authorities, cannot efficiently act or properly perform the 
 duties imposed. This condition of things may occur: (1) in 
 creditors' suits, supplementary proceedings, or proceedings in 
 aid, which are designed to reach equitable interests where com- 
 mon law writs are inadequate, and where fraudulent conveyances 
 and obstructions intervene; (2) in suits designed to reach the 
 separate estate of married women, where such estate is not held 
 by legal title, or is held by trustees for their separate use.^ 
 (3) Where statutory suits and proceedings are instituted for the 
 purpose of winding up corporations and other associations of 
 statutory origin by reason of their forfeiture of charter, insolv- 
 ency, or acts ultra vires .^ 
 
 There are many statutory proceedings where a receiver is pro- 
 vided for, and where his services are peculiarly efficient, as in 
 winding up proceedings of corporations, by reason of insolvency 
 or forfeiture of their charter. In such cases the receiver is 
 selected by reason of his special fitness and qualifications for the 
 
 ' Pdmeroy, Eq. Jur. § 1334, and could not otherwise be efficiently 
 
 cases there cited. Under this topic executed by ordinary process. Among 
 
 the authorities are very numerous the most important cases in which a 
 
 and are not here noted, but will be receiver may thus be appointed are 
 
 found under the sub topics in their creditors' suits, and suits to enforce 
 
 proper connection hereafter. equitable liens; suits to enforce the 
 
 "^ In speaking of this class of cases contracts of married women against 
 
 Mr. Pomeroy on Equity Jurisprud- their separate estates; and suits or 
 
 ence (Vol. 3, § lo3o) says in some in- proceedings, generally statutory, for 
 
 stances a receiver appointed on mo- the winding up of corporations. In 
 
 tion pending the action is continued the states adopting the reform pro- 
 
 in his office after the decree. In cedure the code of procedure gener- 
 
 others he is appointed after the decree ally contains provisions for the ap- 
 
 when no appointment would be made pointment of a receiver, 
 
 until after the hearing. In all in- ^ See Receivers of Corporations, 
 
 stances the object of a receiver is to Railways, etc., chaps. XII. and XIV., 
 
 carry into effect a special decree which post.
 
 10 
 
 RECEIVERSHIPS. 
 
 duties assigned to him, as well as the magnitude, frequently, of 
 the business intrusted to his management, and where the ordinary 
 officers of the law could not be expected to act with efficiency. 
 
 § 5. Rules governing the appointment. 
 
 The exercise of the extraordinary power of the court in the 
 appointment of a receiver is attended with such consequences, 
 and may end in such extreme, not to say oppressive, results that 
 judges and courts in all cases are extremely cautious in the 
 administration of this branch of equity jurisdiction. In the 
 appointment of a receiver, which operates in the nature of an 
 equitable execution, and, in its effects, is practically a sequestra- 
 tion, there has been established certain well defined and salutary 
 rules that operate as a protection to the parties whose interests 
 are to be affected, and as a guide to the chancellor in making the 
 appointment. These rules are well-nigh universal, and, it is 
 believed that no case will arise where their recognition will be 
 attended with other than useful results, both to the practitioner 
 and the court. Being founded upon the experience and judg- 
 ment of a large number of careful and discriminating judges, 
 called upon to administer this branch of remedial jurisprudence, 
 they cannot be otherwise than founded in justice, and a careful 
 and discriminating regard for the rights and interests of the 
 parties litigant is j)romoted thereby. 
 
 (a) Appointment rests in the sound discretion of the court. 
 
 Independent of statutory enactments, the appointment of a 
 
 receiver rests in the sound judicial discretion of the court, or 
 
 chancellor, and as a result calls for the exercise on his part of the 
 
 greatest care and circumspection.* Judicial discretion is not the 
 
 ^Davis V. United States Electric P. 
 & L. Co. 77 Md. 35; Owen v. Roman, 
 3 Macn. & G. 378. 20 I;. J. N. S. Ch. 
 314, 15 Jur. 389, Affirmed in 4 H. L. 
 Rep. 997; Norris v. Lake, 89 Va. 513; 
 Grantham v. Lucas, 15 W. Va. 425; 
 Crane v. McCoy, 1 Bond. 422; Vose v. 
 Beed, 1 Woods, 647; Pullan v. Cin- 
 cinnati & C. A.L.B. Co. 4 Biss.35; Ben- 
 neson v. Bill, 62 111. 408; McJiols v. 
 Perry Patent Arms Co.U N.J. Eq. 126; 
 
 Ex parte Walker, 25 Ala. 81, lOi; Lenox 
 V. Notrehe, Hemp. 225; Morrison v. 
 Buckner, Hemp. 442; Simmons Hard- 
 ware Co. V. Waihel, 1 S. D. 488, 11 L. 
 R. A. 267; Mays v. Bose, Freem. Ch. 
 (Miss.) 703; Chicago & A. Oil & Min. 
 Co. V. United States Petroleum Co. 57 
 Pa. 83; Whelpley v. Erie B. Co. 6 
 Blatchf. 271; Milwaukee & M. B. Co. v. 
 Sautter, 94 U. S. 2 Wall. 510, 17 L. ed. 
 900; Beid v. Beid, 38 Ga. 2'i;Verplank
 
 GENERAL NATURE AND FEATURES OF THE LAW. 
 
 11 
 
 mere will or caprice of the cliancellor who is called upon to act, 
 but is broader and more comprehensive. It means, in this con- 
 nection, the judicial action of the chancellor, based upon a care- 
 ful consideration of the facts and circumstances of the particular 
 case, the rights and interests of the respective parties, and the 
 general . principles of equity jurisprudence applicable thereto. 
 Some courts have gone to the extent of holding that the appoint- 
 ment of a receiver rested so largely in the determination of the 
 appointing court that the action was not a matter of review in 
 the upper courts except where there appeared to be an abuse ol 
 the discretion. Judicial discretion, in the restricted sense in 
 which it is sometimes used, in its logical results, places the court 
 in a position of responsibility which, in most cases, it will not 
 willingly assume, and in some cases it should not be permitted to 
 assume.' 
 
 V. Gaines, IJohns. Ch. bl ; LoUimer v . 
 Lord, 4 E. D. Smith, 183; Syracuse 
 City Bank v. Tallman, 31 Barb. 201; 
 Sales V. Lusk, 60 Wis. 490; Rider v. 
 Bagley, 84 N. Y. 461; Lowell v. Doe, 
 44 Minn. 144; Myers v. Estell, 48 Miss. 
 373, 404; Cone v. Pauie, 13 Heisk. 
 506: Jucohs v. Gibson, 9 Neb. 380; La 
 Societe Frangaise D'ejmr genes v. 15th 
 Judicial List. Ct. 58 Cal. 495; Ashursi 
 V. Lehman, 86 Ala. 370; Pelzer v. 
 Hughes, 27 S. C. 408; Micou v. Moses, 
 73 Ala. 439; Pennsylvania Co. v. Jack- 
 sonville, T. & K. W. B. Co. 55 Fed. 
 Rep. 131 [2 U. S. App. 606]; William- 
 son V. New Albany dc. B. Co. 1 Biss. 
 198; Tyson v. Wabash B. Co. 8 Biss. 
 247; Union Trust Co. v. St. Louis, L. 
 M. & 8. B. Co. 4 Dill. 114; Oakley v. 
 Paterson Bank, 2N. J. Eq. 173; Farm- 
 ers' Loan. & T. Co. v. Chicago & A. B. 
 Co. 27 Fed. Rep. 146; Skip v. Bar- 
 wood, 3 Atk. 564; Greville v. Fleming, 
 2 Jones & L. 335 (Sugden's Dec); 
 Smith V. Port Lover & L. II. B. Co. 
 12 Ont. App. 288, 35 Am. & Eng. R. 
 Cas. 639; Uamburgh Mfg. Co. v. Ed- 
 tall, 8N. J. Eq. 141 ; Ilanna v. Ilanna, 
 89 N. C. 68; Williamson v. Washington 
 
 City, V. M. & G. S. B. Co. 33 Gratt. 
 624; Denike v. NewTork & B. Lime <& 
 C Co. 80 N. Y. 599. 
 
 'Judicial discretion has been de- 
 fined to be a discretion to be exer- 
 cised in discerning the course pre- 
 cribed by the law; never the arbitrsiry 
 will of the judge. Trip}] v. Cook, 26 
 Wend. 152; Piatt v. Munroe, 34 Barb. 
 293. According to Coke, discernere 
 per legem, quid sitjustum; perceiving 
 by or through (or according to) the 
 law what would be just. Anderson's 
 Dictionary, p. 363. Judicial discre- 
 tion as contradistinguished from the 
 private discretion of the judge is 
 wholly different. Of the latter Lord 
 Camden says: "The (private) discre- 
 tion of a judge is the law of tyrants; 
 it is always unknown; it is different 
 in different men; it is casual, and de- 
 pends upon constitution, temper and 
 passion. In the best it is oftentimes 
 caprice; in the worse it is every vice, 
 folly, and passion to which human 
 nature can be liable." 
 
 While the appointment of a receiver 
 rests in the discretion of the court, yet 
 it is such discretion as will be subject
 
 12 
 
 RECEIVERSHIPS. 
 
 (b) Must be reasonable possibility of plaintiff's recovery. 
 
 It must appear affirmatively that there is a reasonable possi- 
 bility that the plaintiff, asking for a receiver, will ultimately suc- 
 ceed in obtaining the general relief sought by his suit.' As ap- 
 
 to review by a higher court. La Societe 
 Franciiise D'ejMtrgenes v. 15th Jxdicidl 
 Did. Ct. 53 Cal. 495; Mihoaukee & M. 
 R. Co. V. Soutter. 69 U. S. 2 Wail. 510, 
 17 L. ed. 900; Grantham v. Lucas, 15 
 "W. Va. 425; WiJuon v. Davis, 1 Mont. 
 98; Emmons v. Garnett.TMPiCkey , 52. 
 However, the appellate court will not 
 interfere with such discretion where 
 the evidence is conflcting, unless it is 
 shown that the discretion is abused; 
 JS'aylor v. Sidener, 106 Ind. 179; Sim- 
 mons Hardicare Co. v. Waibel, supra; 
 Graham v. Fuller Electrical Co. 75 Ga. 
 878; Reid v. Reid, 38 Ga. 24; Gunhy 
 V. T/(6»w;;.w?i, 56 Ga. 316; Crawfordv. 
 Spurting, 56 Ga. 611; Gardner v. How- 
 ell, 60 Ga. 11; Nimocks v. Cape Fear 
 Shivc/le Co. 110 N. C. 280; Robenson 
 V. Ros>i, 40 Ga. 375; Cohen v. Meyers, 
 42 Ga. 46 ; Emeric v. Alvarada, 64 Cal. 
 529; SchlecVs Appeal, 60 Pa. 172; Den- 
 ike v. Neto York & R. Lime & C. Co. 80 
 N. Y. 599; Meadow Valley Min. Co. 
 V. Dodds, 6 Nev. 262; Eaton & H. R. 
 Co. V. Varnum, 10 Ohio St. 622; Mays- 
 ville & L. R. Co. v. Punnett, 15 B. 
 Mon. 47. In Alabama it is held that 
 the appellate court will not review 
 this discretion except in statutory 
 cases. Miller v. Lehman, 87 Ala. 517. 
 The discretion is to be governed by 
 a view of the whole circumstances of 
 the case. Omen v. Roman, 3 Macn. 
 & G. 378, 412 (4 H. L. Cas. 1033); 
 Smith v. Port Dover & L. H. R. Co. 25 
 Am. & Eng. R. Cas. 639; Hamburgh 
 Mfg. Co. V. Edsall, 8 N". J. Eq. 141; 
 Vose V. Reed, 1 "Woods, 647; Perry v. 
 Oriental Hotels Co. L. R. 5 Ch. App. 
 420; Cookes v. Cookes, 2 DeG. J. & S. 
 526; Williamson v. Wilson, 1 Bland, 
 
 Ch. 418. In Orphan Asylum See. v. 
 McCartee, Hopk. Ch. 435. the court 
 say: "It is said that the appointing 
 of a receiver rests in discretion. 
 This proposition does not teach much. 
 A receiver is proper if the fund 
 is in danger, and this principle rec- 
 onciles the cases found in the 
 books. There is no case in which the 
 court appoints a receiver merely be- 
 cause the measure can do no barm. 
 
 * * * As this case now stands be- 
 fore the court the fund appears to be 
 entirely safe in the hands of the trus- 
 tee." Blondheim v. Moore, 11 Md. 
 865; Smith v. Port Dover & L. H. R. 
 Co. 25 Am. & Eng. R. Cas. 639. In 
 Chicago & A. Oil & Min. Co. v. United 
 States Petroleum Co. 57 Pa. 83, the 
 court say: "The appointment of a 
 receiver is the exercise of a power in 
 aid of a proceeding in equity and is 
 the subject of sound discretion. The 
 court must be convinced that it is 
 needful and is the appropriate means 
 of securing a proper end. Such an 
 appointment is a strong measure and 
 is not to be exercised doubtingly. 
 
 * * * The plaintiff must show a 
 clear right in such a case, or a prima 
 facie, with such attending circum- 
 stances of danger or probable loss as 
 will move the conscience of a chan- 
 cellor to interfere." In Simpson v. 
 Ottawa & P. R. Co. 1 Ont. Ch. Chamb. 
 126, the court say: "I agree that 
 where the court cannot interpose 
 usefully it should not interfere at all, 
 and that it should interfere only so far 
 as it can interfere usefully." 
 
 Wwen V. Homan, 3 Macn. & G. 378, 
 412, Affirmed in 4 H. L. Cas. 997;
 
 GE^^ERAL NATURE AND FEATURES OF THE LAW. 
 
 13 
 
 plied to tlie plaintiff in this class of cases it is what has been, not 
 inaptly, termed a locus standi in court. If the evidence is con- 
 
 Bainbrif/ge v. Baddeley, 3 Macn. & G. 
 413. The Lord Chancellor in this case 
 said: "This court ought not, in any 
 case, to disturb the possession of a 
 party who stands upon his legal title 
 without a reasonable probability that 
 the plaintiff will ultimately succeed. 
 I consider, therefore, that one indis- 
 pensable ground for the exercise of 
 the jurisdiction is the reasonable 
 probability shown to the court that 
 the parties claiming to disturb the 
 possession will ultimately e.stablish a 
 title to it." In Oicen v. Roman, supra, 
 the court said: "The granting a re- 
 ceiver is a matter of discretion to be 
 governed by a view of the whole cir- 
 cumstances of the case; one most ma- 
 terial of which circumstances is the 
 probability of the plaintiff being ul- 
 timately entitled to a decree. In this 
 case many of the important points 
 arise upon the construction of the 
 deeds, and not upon disputed facts; 
 and I repeat that in my opinion that 
 construction is attended with too 
 much doubt and difficulty to entitle 
 the plaintiff to a receiver." See also 
 Blondheim v. Moore, 11 Md. 365; 
 Mays V. Rose, Freem. Ch. (Miss.) 718; 
 Bheinstein v. Bixbey, 92 N. C. 309; Lev- 
 enson v. Elson, 88 N. C. 184; Goodyear 
 V. Belts, 7 How. Pr. 187; Flagler v. 
 Blunt,Z2'Si.S. Eq.518; Leavitt v. Yates, 
 4 Edw. Ch. 162; BeecJier v. Bininger, 
 7Blatchf. 170; Smithy. Wells, 20 How. 
 Pr. lo8; Steele v. Aspy, 128 Ind. 367. 
 The rule is the same as in case of 
 an injunction asked; the plaintiff must 
 first establish a locus standi in court 
 Davenport v. Davenport, 7 Hare, 217 
 Outcalt V. Dishorough, 3 N. J. Eq, 
 214; mil V. Thompson, 3 Meriv. 622 
 Pillstcorth V. Ilopton, 6 Ves. Jr. 51 
 Smith V. Colly er, 8 Ves. Jr. 89: Nor- 
 
 way v. Ro^i-e, 19 Ves. Jr. 144; Ashurst 
 V. Lehman, 86 Ala. 370; Pelzer v. 
 Hughes, 27 S. C. 408; Lovett v. Slo- 
 cumb, 109 N. C. 110; Weis v. Goetter, 
 72 Ala. 259 (See Statute); Norris v. 
 Lake, 89 Va. 513. 
 
 "The authority of the court to pre- 
 serve the property the subject of liti- 
 gation pending the action until final 
 judgment and then apply it, as jus- 
 tice may require, is too manifest to 
 admit of question, and such authority 
 should be exercised when it appears 
 that there is reasonable ground to be- 
 lieve that the plaintiff may recover, 
 and the interference of the court is 
 necessary to protect the property in 
 question pending the controversy." 
 Grayer off v. Morehead, 67 N. C. 432; 
 Morris V. Willard, 84 N. C. 293; Leven- 
 son V. Elson, 88 N. C. 182. If the de- 
 fendant demands aflirmative relief he 
 must show an apparently good title, 
 either not controverted or not un- 
 equivocally denied. Lovett v. Slo- 
 cumb, 109 N. C. 110; McNairy. Pope, 
 96 N. C. 502; Bryan v. Moring, 94 N. 
 C, 694; Oldham v. First Nat. Bank, 84 
 N. C. 304; Wilkinson v. Dobbie, 12 
 Blatchf. 298. 
 
 As illustrating the caution the courts 
 exercise in cases where there is a dis- 
 pute between plaintiff and defendant 
 as to title, see Lenox v. Notrebe, 
 Hemp. 225; Parkhurst v. Kinsman, 8 
 Blatchf. 78; Ellelt v. Newman, 92 N. 
 C. 519; Myers Y. Esteil, 48 Miss. 401: 
 PuUan V. Cincinnati tfe G. A. L. R. 
 Co. 4 Biss. 35; Crawford v. Ross, 39 
 Ga. 44; Chicago & A. Oil & Min. Co. 
 V. United States Petroleum Co. 57 Pa. 
 83; Furlong v. Edwards, 3 Md. 99; 
 Latham v. Chaffee, 7 Fed. Rep. 525; 
 BeecJier v. Bininger, 7 Blatchf. 173.
 
 14 
 
 RECEIVERSHIPS. 
 
 flieting, or the legal questions involved are douhtfnl in the matter 
 of their determination, the application will be refused, as in a 
 foreclosure proceeding where the right to foreclose is doubtful, 
 or in a proceeding involving the legal construction of deeds. 
 
 (c) Must be a necessity of pkeseeving property. 
 The court must be satisfied that a receiver is necessary to 
 preserve the property, and thus adequately to protect the rights of 
 the parties interested therein.' If the plaintiff has an adequate 
 remedy at. law then a receiver will not be appointed.'* This prin- 
 ciple is but the application in receivership matters of a general 
 principle in equity jurisprudence. 
 
 (d) Defendant must be heard or have opportunity. 
 The court will not appoint a receiver until the defendant, 
 
 ' Clark V. Ridgely, 1 Md. Ch. 70; 
 Orphan Asyhim Soc. v. McCartee, 
 Hopk. Ch. 429; Chase's Case, 1 Bland, 
 Ch. 213; Blondheim v. Moore, 11 Md. 
 305; Walker v. House, 4 Md. Ch. 
 89; Bloodgoodv. Clark, 4 Paige, 574; 
 Lloyd V. Passingham, 16 Ves. Jr. 59-70. 
 Lord EldoD in this case said: " The 
 court must not only be satisfied of 
 the existence of fraud, but it must be 
 morally sure that upon the hearing of 
 the cause the party would upon the 
 circumstances be turned out of pos- 
 session, and not only that, but it 
 must see some danger to the immedi- 
 ate rents and profits." The chancel- 
 lor in Clark v. Ridgely, supra, said: 
 "Indeed, it is believed the authority 
 and duty of the court to appoint, or 
 not appoint, a receiver depends upon 
 the question whether the property is 
 or is not in danger in the hands of 
 the party who may at the time be in 
 possession. . . . There is no case 
 in which the court appoints a receiver 
 merely because the measure can do no 
 harm," The Chief Justice in Blond- 
 heim V, Moore laid down as a fourth 
 rule that should govern the court in 
 the appointment of a receiver the 
 following: " That fraud or imminent 
 
 danger if the intermediate possession 
 should not be taken by the court must 
 be clearly proved." 
 
 " There should, however, be a con- 
 currence upon two grounds — a rea- 
 sonable probability of success on the 
 part of complainant, and that the 
 subiect-matter in controversy is in 
 danger." Ashurst v. Lehman, 86 Ala. 
 870; Norris v. Lake, 89 Va. 513; 
 Skinner v. Maxwell, 66 N. C. 45; 
 Flagler v. Blunt, 82 N. J. Eq. 518. 
 Waste on the part of the party in 
 possession is suflicient to justify the 
 appointment. Vose v. Beed, 1 Woods, 
 647. 
 
 ^Wooden v. Wooden, 8 N. J. Eq.429; 
 Mullen V. Jennings, 9 N. J. Eq. 192 
 Speights v. Peters, 9 Gill, 473; Bice v. 
 St. Paul & P. B. Co. 24 Minn. 464 
 Co7'ey V. Long, 43 How. Pr. 497 
 Parmly v. Tenth Ward Bank, 8 Edw. 
 Ch. 895; Winkler v. Winkler, 40 111 
 179; Coughron v. Swift, 18111. 414; Or 
 phan Asylum Soc. v. McCartee, Hopk 
 Ch. 429 ; Webster v. Couch, 6 Rand. 519 
 Poege v. Bell, 3 Rand. (Va.) 586; Sher- 
 man V. Clark, 4 Nev. 138; Morrisony, 
 Buckner,}lem]). 442; Sollory v. Leaver ^ 
 L. R. 9 Eq. 23.
 
 GENERAL NATURE AND FEATURES OF THE LAW. 
 
 15 
 
 or party in possession of the property, has been heard, or has had 
 an opportunity to be heard in response to the application/ It is 
 
 ' Moritz V. Miller, 87 Ala. 331 
 Thompson v. Tower Mfg. Co. 87 Ala. 733 
 Ashurst V. Lehman, 86 Ala. 370 
 Sims V. Adams, 78 Ala. 895; Croicder 
 V. 31oore, 53 Ala. 220. See Heard v. 
 Murray, 93 Ala. 127; Werborn v. 
 EaJm, 93 Ala.201 ; State, Brittin,v. New 
 Orleans, 43 La. Ann. 829; Whitney v. 
 NeiD York &A. B. Go. 66 How. Pr. 436, 
 32 Hun, 164; People v. Albany, & S. R. 
 Co. 38 How. Pr. 228; Field v. Ripley, 20 
 How. Pr. 26: Lammon v. Giles, 3 
 Wash. Terr. 117; Grandin v. La Bar, 
 2 N. D. 206; Stockton v. Harmon, 32 
 Fla. 312; Fricker v. Peters, 21 Fla. 
 254; Moyers v. Coiner, 22 Fla. 422; 
 State V. Jacksonville, P. & M. R. Co. 
 15 Fla. 201, 280; Wabash R. Co. v. 
 Dykeman, 133 Ind. 56; Verplanck v. 
 Mercantile Lis. (70.2 Paige, 438; Frtnch 
 V. Gifford, 30 Iowa, 148; Bisson v. 
 Curry, 35 Iowa, 72; iZbw?e v. Jones, 
 57 Iowa, 130; Saas v. Chicago Bldg. 
 Soc. 89 111. 498; Railway Co. v. Jew)e«, 
 37 Ohio St. 649; Briar field Iron Works 
 Co. V. i^osit^T-. 54 Ala. 622; Word v. 
 TTor^i, 90 Ala. 81; Cook v. i)e^/-oj/f cfc 
 i¥. i?. C(?. 45 Mich. 453; Turnbull v. 
 Prentiss Lumber Co. 55 Mich. 387; 
 Haugan v. Netland, 51 Minn. 552; 
 Fredenheim v. iJo^r, 87 Va. 764; Ett- 
 linger v. Persian Rug & C. Co. 66 Hun, 
 94; Johnson v. Powers, 21 Neb. 292 
 (See Code); Fricker v. Peters, 21 Fla. 
 254; Lucas v. 5arm, L. R. 18 Q. B. 
 Div. 127, 56 L. J. Q. B. N. S. 15, 55 
 L. T. 685; Re Potts [1893] 1 Q B. 648, 
 22 L. J. Q. B 392;Vause v. Woods, 46 
 Miss. 120; Oil Run Petroleum Co. v. 
 Gale, 6 W. Va. 525; People v. St. Clair 
 Circuit Judge, 31 Mich. 456; Bostwick 
 V. Isbell, 41 Conn. 305; Hungerford v. 
 Gushing, 8 Wis. 320; Levoe v. Ithaca 
 & 0. R. Go. 5 Paige, 521 (See Stat.); 
 Nusbaum v. Stein, 12 Md. 315; Voshell 
 
 V. Hynson, 26 Md. 83; 3Iaysv. Rose, 1 
 Freem. Ch. 703; Tibballs v. Sargeant, 
 14 N. J. Eq. 449; Whitehead v. Woolen, 
 43 Miss. 523; Meridian News & Pub. 
 Co. V. Diem & W. Paper Co. 70 Miss. 
 695; Buckley v. Baldwin, 69 Miss. 804; 
 Sandford v. Sinclair, 8 Paige, 373; 
 Gibson v. Martin, 8 Paige, 481 ; Jifc- 
 Car% V. Pm^e, 9 Abb. Pr. 164, 18 
 How. Pr. 138 ; Sandford v. Sinclair, 3 
 Edw. Ch. 393. 
 
 Where in an action to quiet title to 
 real estate and enjoin the defendant 
 from tilling the land in question, 
 the plaintiff's equities are denied 
 by answer, and are without support 
 from evidence extrinsic to the com- 
 plaint, a receiver should not be ap- 
 pointed, even after notice and hear- 
 ing; much less should the defendant 
 be dispossessed summarily by expiarte 
 proceedings. The practice of appoint- 
 ing receivers ex parte is not tolerated 
 by the courts except in cases of 
 gravest emergency and to prevent 
 irreparable injury. Grandin v. La 
 Bar, 2 N. D. 206. 
 
 A court is not justified in appoint- 
 ing a receiver ex parte when the com- 
 plaint does not show that the property 
 or any part of the same is about to be 
 wasted, misappropriated or removed 
 beyond the jurisdiction of the court; 
 and that delay in granting relief 
 might entirely defeat the object of 
 the suit. Chicago & S. E. R. Co. v. 
 Cason, 133 Ind. 49. 
 
 See also jBfondAezOTV. Moore, 11 Md. 
 365; Triebert v. Burgess, 11 Md. 4.52; 
 CaiUardv. Caillard, 25 Beav. 512; Rog- 
 ers V. Dougherty, 20 Ga. 271 ; Simmons 
 V. Wood, 45 How. Pr. 268; Verplnnck 
 V. Mercantile Ins. Go. 2 Paige, 438. 
 One served with notice cannot com- 
 plain that others have not been
 
 16 
 
 RECEIVERSHIPS. 
 
 a well establishei principle in equity jurisprudence that the court 
 will not encourage ex i)aHe proceedings, and a departure from 
 this principle requires a state of facts showing the greatest 
 emergency. 
 
 The exceptions to the above rule are : (1) Where the appoint- 
 ment of a receiver is prayed for as a measure of final relief.' In 
 such case the bill of complaint or petition, with the service of the 
 writ, are supposed to be notice. 
 
 served. Ba'p]p v. Reeliling, 122 Ind. 
 255. 
 
 As to the early chancery practice 
 in New York in corporation proceed- 
 ings involving a receivership, see 
 Bevoe v. Ithaca & 0. B. Co. 5 Paige, 
 521. 
 
 The law requiring notice has a 
 much greater force when applied to 
 a receivership over a corporation 
 where large and conflicting interests 
 are often involved, and where the 
 entire property, business and assets 
 may be taken from the company and 
 placed in the hands of a receiver, and 
 result in the utter destruction of the 
 property and dissolution of the com- 
 pany. Of the appointment of a re- 
 ceiver in such a case without notice, 
 Mr. Justice Swayne, in Verplanck v. 
 Mercantile Ins. Co. supra, says: "It 
 is not a common law receivership to 
 protect the fund pending litigation; 
 but the receiver is a statutory assignee 
 vested with nearly all the powers and 
 authority of the assignee of an in- 
 solvent debtor. It would therefore 
 be a violation of one of the funda- 
 mental principles of justice to appoint 
 such a receiver without any restric- 
 tion of his powers on an ex jmi-te ap- 
 plication, and thus to condemn and 
 deprive a company of its chartered 
 privileges unheard." 
 
 "A. case of great urgency should be 
 made to appear to justify such an 
 appointment without notice, and, 
 -whenever an injunction or restraining 
 
 order is sufficient to protect the rights 
 of the plaintiff no receiver should be 
 appointed. The appointment of a 
 manager of a line of railroad is an 
 extraordinary exercise of power. 
 Such appointment should be made 
 only in extreme cases, clearly justi- 
 fying such action." State v. Jackson- 
 ville, P. & M. B. Co. 15 Fla. 201. 
 
 Where an absent defendant has 
 been advertised to appear within a 
 certain time limited for defendant's 
 appearance an order for appointment 
 of a receiver before the expiration of 
 the time limited is irregular, except 
 under special circumstances. Sand- 
 ford V. Sinclair, 3 Edw. Ch. 393. See 
 also Gibson v. Martin, 8 Paige, 481; 
 Field v. Ripley, 20 How. Pr. 26; 
 McCarthy v. Peake, 9 Abb. Pr. 164. 
 
 1 JVewell V. Schnull, 73 Ind. 241. 
 The process which brings the defend- 
 ant into court is sufficient notice 
 where the final relief prayed for is the 
 receivership. This case was under a 
 statute as follows: "That receivers 
 shall not be appointed by any court, in 
 any case, until the adverse party shall 
 have appeared and answered in the 
 action pending, or shall have had 
 reasonable notice of the pendency of 
 the action, and the application for 
 such appointment." It has also been 
 held that where the record is silent as 
 to notice of application the court will 
 presume the trial court gave proper 
 notice. Miller v. Shriner, 86 Ind, 
 493.
 
 GENERAL NATURE AND FEATURES OF THE LAW. 
 
 17 
 
 (2). "Where all parties are before the court consenting to the 
 appointment, or at least before the court in person or by attor- 
 ney.' In such case, of course, the object sought by the service 
 of notice is accomplished by the presence of the parties. 
 
 (3.) Where the defendants, or parties in interest, have absconded, 
 or are beyond the jurisdiction of the court, or cannot be found.* 
 Of course under such circumstances it would be unreasonable to 
 require notice, and the rule is not obligatory. 
 
 (4.) Where there is imminent danger of loss, or great damage, 
 or irreparable injury or the gravest emergency.' Sometimes it 
 
 ' Brodie v. Barry, 3 Meriv. 695; 
 Duckworth v. Trafford, 18 Ves. Jr. 283; 
 Neipell V. SchnuU, 73 Ind. 241; Fitz- 
 Patrick v. Hawkshaw, 1 Hog. 88; 
 McLean v. Lafayette Bank, 3 McLean, 
 503; Haugan v. Netland, 51 Minn. 
 552. In this case the court say: 
 " The general rule is to proceed only 
 after notice, but this rule is not in- 
 flexible so as to prevent the court 
 from proceeding in cases where it is 
 impracticable to give legal notice, as 
 in the case of absconding or nonresi- 
 dent defendants, but subject to proper 
 limitations the court may in such 
 cases proceed without notice and 
 leave the party to move to vacate the 
 order if he chooses to come in and 
 submit to the jurisdiction of the 
 court." 
 
 '^Hendrix v. American Mortg. F. 
 L. Co. 95 Ala. 313; Verjjlanck v. Mer- 
 cantile Ins. Co. 2 Paige, 438; People v. 
 Albany & S. B. Co. 55 Barb. 344; 
 French v. Gifford, 30 Iowa, 148; Bis- 
 son V. Curry, 35 Iowa, 72; Howe v. 
 Jones, 57 Iowa, 130; Cleveland, C. O. 
 & I. B. Co. V. Jewett, 37 Ohio St. 649; 
 Briarjield Iron Works Co. v. Foster, 54 
 Ala. 622; Word v. Word, 90 Ala. 81; 
 Moritz v. Miller, 87 Ala. 331; White- 
 head v. Woolen, 43 Miss. 523; Vause v. 
 Woods, 46 Miss. 120; Cook v. Detroit 
 & M.R. Co. 45 Mich. 453; Turnhull 
 V. Prentiss Lumber Co. 55 Mich. 387; 
 2 
 
 Wabash B. Co. v. Dykeman, 133 Ind. 
 56; Haugan v. Netland, 51 Minn. 552; 
 Dowling v. Hudson, 14 Beav. 423; Ma- 
 guire v. Allen, 1 Ball. & B. 75; Na^ 
 V. Hughes, 1 Hayes & J. 400; Bennett 
 V. Bayley, 1 Hayes & J. 400; Greene 
 V. Kernan, 1 Hayes & J. 401 ; Gibbins 
 V. Mainwaring, 9 Sim. 77; Tanfield v. 
 Irvine, 2 Russ. 149; Quin v. Gunn, 
 1 Hog. 75; London cfe 8. W. Bank v. 
 Facey, 19 W. R. 676. 24 L. T. N. S. 
 126; People v. Norton, 1 Paige, 17; 
 see Williams v. Jenkins, 11 Ga. 595. 
 
 If the proceeding is against a cor- 
 poration and the officers cannot be 
 found so as to be served with notice, 
 the court, in the exercise of its discre- 
 tion, may appoint. Dayton v. Borst, 
 7 Bosw. 115. 31 N. Y. 435 (Affirmed 
 on other grounds); Maish v. Bird, 59 
 Iowa. 307. 
 
 Quite frequently the statute pre- 
 scribes the circumstances under which 
 a receiver may be appointed without 
 notice. Jones v. Graves, 20 Iowa, 596 
 Hutton V. Lockridge, 27 W. Va. 428 
 Maynard v. Railey, 2 Nev. 323 
 Blondheim v. Moore, 11 ]\Id. 365 
 Orowder v. Moore, 52 Ala. 220; Frieker 
 V. Peters, 21 Fla. 254; Whitehead 
 V. Woolen, 43 Miss. 523; Rogers v. 
 Dougherty, 20 Ga. 271. See N. Y. 
 Code Civ. Proc. § 714. 
 
 ^ Fredenheim v. Rohr, 87 Va. 764; 
 Re Potts [1893] 1 Q. B. 648; Grandin
 
 18 
 
 RECEIVERSHIPS. 
 
 ceems imperative that this exception be enforced as when, by no- 
 tice, the very purpose of a receiver may be rendered wholly 
 nugatory ; at other times, however, notice may be given, and a 
 
 V. LaBar, 2 N. D. 206; People v. 
 Norton, 1 Paige, 17; Verplanck v. 
 Mercantile Ins. Co. 2 Paige, 438; Tay- 
 lor V. Eckersley, L. R 2 Cli. Div. 302; 
 Be H. E. V. H. L. R. 1 Ch. Div. 276, 
 45 L. J. Ch. 749; Fricker v. Peters, 21 
 Fla. 254; Whitelaw v. Sandys, 12 Ir. 
 Eq. 393; Wabash E. Co. v. Dykeman, 
 133 Ind. 56; Baker v. Backus, 32 111. 
 79; Chicago <& S. E. R. Co. v. Cason, 
 133 Ind. 49; Moyers v. Coiner, 22 Fla. 
 422; Beecher v. Bininger, 7 Blatchf. 
 170; Montgomery v. Knox, 20 Fla. 372; 
 West V. Chasten, 12 Fla. 315; Blackett 
 V. Blackett, 24 L. T. N. S. 276; Ashurst 
 V. Lehman, 86 Ala. 370; Moritz v. Mil- 
 ler, 87 Ala. 331 ; Mays v. Rose, Freem. 
 Ch. (Miss.) 703; Sims v. Adams, 78 
 Ala. 395; Vose v. Reed, 1 Woods, 647; 
 Goodyear V. Beits,Tilo'w. Pr.l87; Flag- 
 ler V. Blunt, 32 N. J. Eq. 518; Orphan 
 Asylum Soc. v. McCartee, Hopk, Ch. 
 429; Eean v. Colt, 5 N. J. Eq. 365; 
 Leavitt v. Tates, 4Edw. Ch. \Q2\ Lenox 
 V. Notrebe, Hemp. 225; Maynard v. 
 Railey, 2 Nev. 313; Johns v. Johns, 23 
 Ga. 31; Cleveland, C. C. & L R. Co. v. 
 Jewett, 37 Ohio St. 649 ; Sandford v. 
 Sinclair, 8 Paige, 373 ; Gibson v. Mar- 
 tin, 8 Paige, 481; McCarthy v. Peake, 
 9 Abb. Pr. 164; Field v. Ripley, 20 
 How. Pr. 26; Lucas v. Hariis, 56 L. 
 J. Q. B. N. S. 15. 
 
 Iq Wabash R. Co. v. Dykeman, 133 
 Ind. 56, the Rev. Stat. 1881, § 1230, 
 provided that the receivers should not 
 be appointed either in term or vaca- 
 tion in any case until the adverse 
 party should have appeared or should 
 have had reasonable notice of the ap- 
 plication for such appointment except 
 upon sufficient cause shown by affi- 
 davit. The statute being silent as to 
 what should constitute a sufficient 
 
 cause, the court held that the "suffi- 
 cient cause" required by the statute 
 to be shown must be. First, for the 
 appointment of a receiver at all. 
 Second, for not giving notice of the 
 application to the adverse party. The 
 statement in the verified complaint 
 that there was an emergency for the 
 immediate appointment of a receiver 
 without notice was not a sufficient 
 showing. This was a mere statement 
 of opinion, the facts on which the 
 opinion was founded should have 
 been pleaded in order to enable the 
 court to judge of its correctness. 
 Verplanck v. Mercantile Ins. Co. 2 
 Paige, 438-451; French v. Gifford, 
 30 Iowa, 148; Moritz v. Miller, 87 
 Ala. 331. The court adopts the lan- 
 guage of Gluck & Becker on Receivers 
 of Corporations which is as follows: 
 "Courts of Equity are exceedingly 
 unwilling to appoint a receiver on an 
 ex parte application. It is now the 
 settled practice not to appoint a re- 
 ceiver ex parte and thereby deprive 
 the corporation of the possession of 
 its property before it has had an op- 
 portunity to be heard in relation to its 
 rights, except in those cases where it 
 is. out of the jurisdiction of the court 
 or none of its officers can be found ; 
 or where, for some other reason, it be- 
 comes absolutely necessary for the 
 court to interfere before there is time 
 to give notice to the corporation to 
 prevent the destruction or loss of 
 property." The court also refers to 
 the following cases as sustaining the 
 proposition: People v. Albany & S. 
 R. Co. 55 Barb. 344. 369; Bisson v. 
 Curry, 35 Iowa, 72; Howe v. Jones, 57 
 Iowa, 130; Cleveland, C. C. & L R. Co, 
 V. Jewett, 37 Ohio St. 649; Cook v. De-
 
 GE^^EKAL NATURE AND FEATURES OF THE LAW. 19 
 
 temporary injunction granted pending a hearing and in this way 
 preserve the rights of all parties. Frequently statutory provisions 
 are made for emergency matters of this character, and especially 
 60 in regard to injunctions. 
 
 Where no notice is required to be given to the adverse party 
 of the application for a receiver, by reason of danger or otherwise 
 it is not sufficient to make the bare allegation in the bill or peti- 
 tion of danger, loss or emergency, but the facts on which the 
 allegation is based must be stated so as to enable the court to 
 judge of its correctness.' Besides the general allegation would 
 be bad pleading, in that it would be at most a conclusion. 
 
 troit <& M. B. Co. 45 Mich. 45H; Turn- 
 bull V. Prentiss Lumber Co. 55 Mich. 
 387, and other cases. 
 
 In Whitelawa v. (Sandys, supra, the 
 court upon the application of the 
 plaintiff appointed a receiver over the 
 land of a minor defendant before his 
 appearance or answer on affidavit that 
 the rents could not be enforced from 
 the undertenants of the minor, and 
 that his interest was in danger of 
 being evicted, the head landlord hav- 
 ing served ejectment for nonpayment 
 of the head rent. 
 
 In People v. Norton, stqjra, the 
 court say: "As a general rule a re- 
 ceiver should not be appointed with- 
 out notice to the opposite party; but 
 that rule must be subject to ex- 
 ceptions in special cases where irre- 
 parable injury would be sustained by 
 one or both parties by such delay. 
 Sandford v. Sinclair, 8 Paige, 373; 
 Gibson v. Martin, 8 Paige, 481. 
 
 "In Maguire v. Allen, 1 Ball & 
 B. 75, a receiver was appointed 
 on the application of the plaintiff 
 where the defendant had absconded 
 to prevent service of the subpoena to 
 appear and answer the bill. In these 
 causes the defendant who had travers- 
 ed the finding of the jury, had left the 
 state and was not expected to return 
 for several months and had no resi- 
 
 dence or place of business where a 
 subpoena could be served. His solici- 
 tor who was employed on the traverse, 
 on being applied to refused to appear, 
 or do anything in this case on the 
 ground that he was not authorized; 
 and it was necessary that the receiver 
 should be appointed without delay to 
 collect the rents of the tenants which 
 might be lost by a delay of a few days. 
 Under these circumstances, I think 
 these are proper cases for the court, in 
 the exercise of a sound discretion, to 
 dispense with the formality of a notice 
 and make ex parte orders for the ap- 
 pointment of receivers; saving to the 
 defendant the right hereafter to apply 
 for relief against the order if he can 
 show any good reason on the merits 
 for discharging the same." 
 
 ' Verplanck v. Mercantile Ins. Co. 2 
 Paige, 438; French v. Gifford, 30 luwa, 
 148; Lindsay v. American Mortg. Co. 
 97 Ala. 411; Wabasli B. Co. v. 
 Bykeman , 133 Ind. 56 ; Chicago & S. E. 
 B. Co. V. Cason, 133 Ind. 49; Moriiz v. 
 Miller, 87 Ala. 331 (See Code); Will- 
 iams V. Jenkins, 11 Ga. 595; Ashurst 
 V. Lehman, 86 Ala. 370; Fricker v. 
 Peters, 21 Fla. 254. 
 
 In Verplanck v. Mercantile Ins. Co. 
 supra, Chancellor Walworth says: "In 
 every case where the court is asked to 
 deprive the defendant of the possession
 
 20 RECEIVERSHIPS. 
 
 § 6. Functions of* the receiver. 
 
 The functions of a receiver relate to and embrace the due exe- 
 cution and performance of the duties and obligations resting 
 upon him by virtue of his office, taking into consideration the 
 attitude he sustains to the court making the appointment, the 
 parties before the court, concerning whose rights the court is 
 called upon to adjudicate, and the nature and character of the 
 property placed in his possession, custody or control. 
 
 (a) Source of power ; nature and extent. 
 He derives his power, primarily, from the court, and his official 
 action, duties and responsibilities are measured by the scope of 
 the order which, after his qualification, constitutes him receiver, 
 and such supplementary orders and directions as he may subse- 
 quently receive in the due administration of the estate or matters 
 in controversy. His discretionary powers are limited, as a rule, 
 to those acts and transactions which are incident to the general 
 scope of authority given to him. He is an officer of the court, 
 and in this sense has been considered, truly and properly, the 
 hand of the court, and as such he has been held bound to render 
 to the court a strict account of his official action.' As courts of 
 equity, and those exercising equitable jurisdiction, have extended 
 their jurisdiction, along with the general growth of remedial 
 jurisprudence, the functions of the receiver have been increased 
 very materially as compared with receivershijDS in the earlier 
 stages of English and American courts.* As we have already 
 
 of his property without a hearing or equal interest with them, collecting 
 an opportunity to oppose the applica- and appropriating the proceeds of 
 tion, the particular facts and cir- sale and that they are insolvent, it 
 cumstances which render such a sum- will justify the appointment of a Te- 
 rnary proceeding proper should be set ceiver without notice. Sims v. Adams, 
 forth in the bill or petition on which 78 Ala. 395. 
 
 such application is founded. The See also Darein v. Wells, 61 How. 
 
 facts must be stated on which the Fr. '2^9 ; Oakley v. Faterson Bank, 2 ]>i. 
 
 opinion is founded to enable the J. Eq. 173. 
 
 courts to judge of the correctness." ' Chancellor Bland, in Williamson v. 
 
 An allegation on information and Wilson, 1 Bland, Ch. 418; Verplanck 
 
 belief is insufficient. Moriiz v. Miller, v. Mercantile Ins Co. 2 Paige, 438. 
 supra. Where the affidavits show that *"In the progress and growth of 
 
 defendants are disposing of the prop- equity jurisdiction, it has become 
 
 erty in which complainant's claim an usual to clothe such officers with
 
 GENERAL NATURE AND FEATURES OF THE LAW. 21 
 
 seen,' both in England and this country, the law of receiv^ership 
 has been extended by statutory enactment to many subjects, not 
 previously embraced in the ordinary chancery jurisdiction, and 
 the powers, duties and relationship of the receiver have been 
 likewise greatly increased, and in many cases, particularly with 
 regard to insolvent corporations, he is vested with all the prop- 
 erty and effects of the corporation, the power to sell and dispose 
 of the same and distribute the proceeds to its creditors and stock- 
 holders. This class of receivers we have termed statutory receiv- 
 ers, as distinguished from common law receivers, the functions of 
 which are sui generis. 
 
 (b) Trustee for all parties ; responsibility. 
 The receiver, occupying a position of perfect independence, so 
 far as the parties are concerned, appointed by the court by reason 
 of such relation, and reflecting as he does the impartiality of the 
 court as between conflicting interests, is not the agent or special 
 representative of the contestants or either of them. JSTeither the 
 law nor the court will permit him in his administration to mani- 
 fest the slightest inclination towards one party or the other. He 
 is a trustee of the strictest character, conserving the interests of 
 all parties with special favors for none,"^ and the property and 
 
 much larger powers than were for- applied to the dissolution of corpora- 
 
 merly conferred." Mr. Justice Swayne tions, where by the act of dissolution 
 
 in Davis v. Oray, 83 U. S. 16 Wall. the corporation in effect makes an as- 
 
 203, 219, 21 L. ed. 447, 452. signment for the benefit of its credit- 
 
 ' Ante, § 3; see also post, chapter ors, in which case the receiver takes 
 
 on Railways. only the rights of the corporation 
 
 ^ Detroit First Nat. Bank. v.Barnum such as could be asserted in its own 
 
 WireiS: Iron Works, Q^'M\ch.4:^l; Davis name, and therefore in such case is 
 
 V .Dukeof Marlborough, 2^^?irx?,\..10S; the representative of the corporate 
 
 Brown v. Warner, 78 Tex. 543, 11 L. body itself and not of its creditors or 
 
 R. A. 394; Com. v. Franklin Ins. Co. shareholders. Rejmblic L. Ins. Co. 
 
 115 Mass. 278; Day v. Postal Teleg. Co. v. Swigert, 135 111. 150, 13 L. R. A. 
 
 66 ild . 354 ; Green v. Bosiwick, 1 Sandf . 328. 
 
 Ch. 185; Devendorf v. Dickinson, 21 The receiver does not in any special 
 How. Pr. 275; Port man v. Mill, 8 L. .J. sense represent the party upon whose 
 Ch. N. S. 161; Curtis v Leavilt, 1 motion he is appointed, more than 
 Abb. Pr. 274; Brown v . Northrup, 15 any other party to the cause. He 
 Abb. Pr. N. S. 333; Corey v. Long, 43 owes an equal duty to all, and is re- 
 How. Pr. 497. sponsible to the court alone. Baker 
 
 Tliere apiiears to be a limitation to v. Backus, 32 111. 79 ; Beverley v. Brooke, 
 
 the rule announced in the text when 4 Qratt. 208; BYrst Nat. Bank v. Bar-
 
 22 
 
 RECEIVERSHIPS. 
 
 funds conlided to his care are in custodia legis, and these it is 
 his duty to guard and preserve with scrupulous care.' This posi- 
 tion of trust and independence he continues to occupy until the 
 litig-ation is brought to an end, and it is judicially ascertained to 
 whom the property or its possession rightfully belongs, after which 
 he becomes the representative of sucli successful party ;'' or 
 where the property is sold for the benefit of creditors, he is the 
 hand of the court and the agent of the creditors in the distribu- 
 tion of the proceeds. He is in no sense, however, the represen- 
 tative of those who are not parties to the suit, or become such 
 during its progress.^ JN either is he, without the direction of the 
 court, to interfere with or meddle in the litigation of the parties. 
 
 num. Wire & Iron Works, 60 Mich. 487; 
 Union Nat. Bank v. Bank of Kamas 
 City, 136 U. S. 323, 34 L. ed. 341 ; Lot- 
 timer V. Lord, 4 E. D. Smith, 183; 
 SnoiD V. Winslow, 54 Iowa, 200. 
 
 He is not to be controlled by the 
 representatives of any party to the 
 suit, Iddings v. Bruen, 4 Sandf. Ch. 
 417. 
 
 His powers and duties are measured 
 by the order of court making the ap- 
 pointment and the established rules 
 and practice of such court. Battle v. 
 Davis, 66 N. C. 252. 
 
 See also Skinner v. Maxwell, 66 N. 
 C. 45, 68 N. C. 400; Booth v. Clark, 
 58 U. S. 17 How. 323, 15 L. ed. 164; 
 Green v. Bosticick, 1 Sandf. Ch. 185; 
 Hunt V. Wolfe, 2 Daly, 303; Van Rens- 
 selaer V. Emery, 9 How. Pr. 135; Corey 
 V.Long, 43 How. Pr. 497; Devendorfv. 
 Dickinson, 21 How. Pr. 275; Kaiser v. 
 Kellar, 21 Iowa. 95; Snow v. Winslow, 
 54 Iowa, 200; Hooper v. Winston, 24 111. 
 353; Ellicott v. Warford, 4 Md. 80; 
 Williamson v. Wilson, 1 Bland, Ch. 
 418; Coburn v. Ames, 57 Cal. 201. 
 
 Where property is placed in the 
 hands of a receiver, upon a decree 
 for the plaintiff, tl e receiver's duties, 
 as such, are at an end, and he holds 
 merely as trustee for the plaintiff, and 
 
 the goods can be levied on in his 
 hands, for the plaintiff's debts. Very 
 v. Watkins, 64 U. S. 23 How. 469, 16 
 L. ed. 522. And see Lottimer v. Lord, 
 4 E. D. Smith, 183; Re Cohin' s Estate, 
 
 3 Md. Ch. 278; Ellicott v. Warford, 4 
 Md. 80; King v. Cutts, 24 Wis. 627; 
 Meier v. Kansas P. R. Co. 5 Dill. 476. 
 
 ' Ashurst V. Leliman, 86 Ala. 370; 
 Qayle v. Johnson, 80 Ala. 388; Skin- 
 ner V. Maxwell, 66 N. C. 45. 68 
 N. C. 400; Battle v. Davis, 66 N. C. 
 252; Corey v. Long, 43 How. Pr. 497; 
 Devendorf v. Dickinson, 21 How. Pr. 
 275; Hunt v. Wolfe, 2 Daly, 303; Co- 
 burn v. Ames, 57 Cal. 201; Hooper v. 
 Winston, 34 111. 353. 
 
 * See note 1 above. 
 
 2 Howell v. Ripley, 10 Paige, 43. In 
 a case where a creditor's bill is filed 
 in behalf of the complainants therein, 
 and not in behalf of other creditors, 
 the receiver is not necessarily a trus- 
 tee for the benefit of all creditors, 
 but for the benefit of those creditors 
 in whose behalf he is appointed. 
 Young v. Clapp, 147 111. 176; Russell 
 V. Chicago Trust & Sav. Bank, 139 111. 
 538, 17 L. R. A. 345; Bostioick v. Menck, 
 
 4 Daly, 68 ; Manley v. Rassiga, 13 Hun, 
 288.
 
 GENERAL NATURE AND FEATURES OF THE LAW. 23 
 
 (c) Cake and custody of the property. 
 The receiver, occupying the pecuKarly responsible position that 
 he does, both in his attitude to the court and the parties before 
 tlie court, is required to exercise great care and circumspection 
 over the funds or property entrusted to him, or whatever other 
 interests that may come to him as receiver.' Except in a few 
 exceptional cases, he is selected not only because of his ability, 
 honesty and integrity, but because of his not being interested in 
 any manner in the subject-matter of the litigation. Neither will 
 he be permitted to become interested in the property in his 
 charge as receiver during the progress of the litigation, nor use 
 such property or funds for purposes of his own personal gain, 
 and all interest and profits derived from the funds or property 
 must be strictly accounted for.'' However proper liis intentions 
 may be, he is liable for loss or waste growing out of the careless 
 management of his trusts. 
 
 § 7. Eifects of appointment. 
 
 The primary and proximate effects that follow the appointment 
 of a receiver are : 
 
 (a) Places property in custodia legis. 
 
 The property, funds, or whatever may be the subject-matter 
 of the litigation that come to the hands of the receiver are in 
 custodia legis, diudi being so, will not be permitted to be interfered 
 with, either by the parties to the suit, strangers to the suit, or 
 other courts of co-ordinate jurisdiction. The underlying reasons 
 for this rule are apparent and need not be elaborated in this con- 
 nection. See "Receiver's Possession." 
 
 (b) Receiver not permitted to be sued. 
 
 Neither will the court permit its receiver to be sued or har- 
 rassed l;y litigation witliout its express permission, to be granted 
 only in exceptional cases for judicious and special reasons. The 
 
 ' Walker v. Morris, 14 Ga. 323; Henry Bruen, 4 Sandf. Ch. 417; Reynolds v. 
 
 V. Kaufman, 24 Md. 1; State v. Gib- Pettyjohn, 79 Va. 327; Kaiser v. Keller, 
 
 son, 21 Ark. 140; Devendorf v. Dick- 21 Iowa, 95. See further Receiver's 
 
 inson, 21 How. Pr. 275; Salway v. Liability. 
 
 Salway, 2 Russ. & M. 215; Iddings v. ^ Baitaile v. Fisher, 36 Miss. 321.
 
 24 RECEIVERSHIPS. 
 
 court first obtaining jurisdiction and appointing a receiver retains 
 that jurisdiction, as a rule, for all purposes, settling and adjusting, 
 in the same suit, all conflicting interests of whatsoever nature 
 between the parties that grow out of or relate to the subject 
 matter in controversy.' It may, however, permit a jury to be 
 called to pass upon disputed questions of fact, or may refer the 
 matter to a common law court and jury for settlement and 
 adjudication, but, in such case, the court retains the property or 
 funds under its control. 
 
 (c) Determines no rights and affects no liens. 
 The custody of the receiver is that of the law, and in its 
 nature is provisional and suspensive, leaving the rights of all 
 parties concerned to be controlled by the ultimate judgment of 
 the court. The appointment, in and of itself, determines the 
 rights of no one, and does not disturb, or in any wise affect the 
 legal or equitable standing of any party to the suit, or strangers 
 thereto. And while the custody of the property, or fund, may 
 be transferred, all liens upon or rights therein remain unchanged, 
 and, if the property be sold prior to the final determination of 
 the respective rights therein the status of the parties to the pro- 
 ceeds is preserved and protected." This is accomplished by suit- 
 
 ' " By the order of appointment the v. North River Const. Co. 99 N. Y. 398; 
 
 court takes the whole subject into its Re Day, 34 Wis. 638; Marshall v. Lock- 
 
 own hands; and ultimately disposes ett, 76 Ga. 289; Re Christian Jensen 
 
 of all questions, whether legal or Co. 128 N. Y. 550; Re Tyler, 149 U. 
 
 equitable, growing out of the pro- S. 164, 87 L. ed. 689; Edwards v, 
 
 ceeding." Beverley y. Brooke, iGratt. Norton, 55 Tex. 405; Ellis v. Vernon 
 
 187. That the court will not permit Ice L. c&TF. Co. 86 Tex. 109; Russell v. 
 
 the possession of its receiver to be in- Texas & P.R. Co. 68 Tex. 646; Robinson 
 
 terfered with without its permission, v. Atlantic & O. W. R. Co. 66 Pa. 160; 
 
 see Vermont & C. R. Co. v. Vermont Thompson v. McCleary, 159 Pa. 189. 
 
 C. R. Co. 46 Vt. 792; Russell v. And see further "Suits against Ke- 
 
 East Anglian R. Co. 3 Macn. & ceiver." 
 
 G.104;ExparteCoc7ira7ie,L.'R.20Eq. ^Miller v. Bowles, 58 N. Y. 253; 
 
 282; Spinning v. Ohio L. Ins. & T. Co. Myers v. Estell, 48 Miss. 372; Central 
 
 2 Disney, 368; FortWayne, M. & C. R. Trust Co. v. Wabash, St. L. & P. R. Co. 
 
 Co. V. Mellett, 92 Ind. 535; Skinner v. 30 Fed. Rep. 344; Union Nat. Bank-v. 
 
 Maxwell. 68 N. C. 400; Rotter v. Spa Kansas City Bank. 136 U. S. 223, 34 L. 
 
 Springs Brick Co. 47 N. J. Eq. 442; Jo- ed. 341; Skip v. Hanoood, 3 Atk. 564; 
 
 cobson V. Landolt, 73 Wis. 142; Riggsv. Anon. 2 Atk. 15; Wiswall v. Sampson, 
 
 Whitney, 15 Abb. Pr. 388; Brien v. 55 U. S. 14 How. 52, 14 L. ed. 322; 
 
 PaMi, 3 Tenn. Ch. 357; Woerishoffer Ellis v. Boston, B. &E. R. Co. 107 Maaa.
 
 GENERAL NATURE AND FEATURES OF THE LAW. 
 
 25 
 
 able and proper provisions in the decree or judgment. All liens 
 are protected and preserved, but the right to enforce such liens 
 is suspended pending the receivership. 
 
 § 8. Kinds of receivers. 
 
 Receivers are sometimes designated as General Receivers, 
 Receivers Pendente Lite, Special Receivers, Interim Receivers, 
 Managers, Ancillary Receivers, and in England, Liquidators. 
 The purposes in all cases being the same, though the methods of 
 accomplishment may differ, and though the functions of the 
 receiver may vary in different cases, no good result, but confusion 
 ratlier, follows the application of the several names to the re- 
 ceiver, and so far as the general treatment of the subject is con- 
 cerned, no nominal distinction will be observed. Receivers may 
 be general as to property and special as to power, or vice versa. 
 Nearly all receivers are pendente lite, and with equal propi'iety 
 might be called interim, while a manager is only in tlie exercise 
 of an enlarged power, for the accomjjlishment of the same end.' 
 
 1; Maynard v. Bond, 67 Mo. 315; 
 Herman v. FisJier, 11 Mo. App. 275; 
 Ex parte Dunn, 8 S. C. 207; Beverley 
 V. Brooke, 4 Gratt. 187; Bitting v. Ten, 
 Eyck, 85 Ind. 357; Leavitt v. Yates, 4 
 Edw. Ch. 138; EUicott v. Warford, 4 
 Md. 80. 
 
 That ihe receiver's possession 
 is the possession of the court, 
 see Skinner v. Maxwell, 68 N. C. 
 400; Robinson v. Atlantic & G. W. 
 B. Co. 66 Pa. 160; Day v. Pos- 
 tal Teleg. Co. 66 Md. 354; De 
 Visser v. Blackstone, 6 Blatchf. 235; 
 Re Buler's Estate, 13 Ir. Ch. N. S. 
 456; Re Merchants' Ins. Co. 3 Biss. 
 165; Mays v. Rose, Freem. Ch. (Miss.) 
 703; Angel v. Smith, 9 Ves. Jr. 335. 
 
 That he takes the property subject 
 to all liens thereon, see Boicling Oreen 
 Sav. Bank v. Todd, 64 Barb. 146; Rich 
 V. Loutrel, 18 How. Pr. 121; Gei'e v. 
 Dibble, 17 How. Pr. 31; Re North 
 American Qutta Rercha Co. 17 How. 
 Pr. 549; Smith v. Neic York Consol. 
 Stage Co. 18 Abb. Pr. 419, 432; Conley 
 
 V. Deere, 11 Lea, 274; Von Roun v. 
 Super. Ct. 58 Cal. 358; Union Trust 
 Co. V. Weber, 96 111. 346; Lorch v. 
 Aultman, 75 Ind. 162. And while 
 the liens are not suspended or in any 
 manner interfered with, yet the right 
 to enforce such liens by ordinary 
 process is suspended. Ellis v. Vernon 
 /ce,Z.c6TF.Cb.86Tex.l09. Andseealso 
 Walling v. Miller, 108 N. Y. 173; RMn- 
 son V. Atlantic & O. W. R. Co. 66 Pa. 
 160; Thompson v. McCleary, 159 Pa, 
 189; Diigger v. Collins, 69 Ala. 324. 
 See further Chap. II, § 17. 
 
 ' As we have seen, a liquidator is 
 a statutory receiver, with enlarged 
 powers conferred by Act of Parlia- 
 ment. See ante, % 3. And may be 
 appointed generally or for a special 
 purpose. Re Langham Skating Rink 
 Co. L. R. 6 Ch. Div. 102. 
 
 A receiver pendente lite is a mere 
 temporary officer and does not possess 
 the power of a permanent receiver, 
 or any legal power except such as is 
 specifically conferred upon him by the
 
 26 
 
 RECEIVERSHIPS. 
 
 § 0. At what stage appointed. 
 
 (a) It is a prerequisite that there shall be at the time of maldng 
 application a suit actually pending.' 
 
 (b) And there must be a strong special ground to induce the 
 courts to appoint a receiver before answer/ 
 
 (c) After decree and sale a receiver may be appointed if it is 
 necessary to secure complete justice to the parties.' 
 
 court. His functions are limited to the 
 care and preservation of the properly. 
 
 Decker v. Gardner, 124 N. Y. 334, 
 11 L. R. A. 480; Herring v. New York, 
 L. E. & W. B. Co. 105 N. Y. 372; 
 Keeney v. Home Ins. Co. 71 N. Y. 396. 
 
 In cases of danger or loss the court 
 may appoint an interim receiver until 
 such time as a receiver may be ap- 
 pointed in due course of law. Taylor 
 V. Eckersley, L. R. 2 Ch. Div. 302, 45 
 L. J.Ch. 527; 34 L. T. 637. 
 
 A manager appears to be a person 
 appointed to carry on a business pen- 
 dente lite. Smith v. New York Consol. 
 Stage Co. 18 Abb. Pr. 419, 433. The 
 purpose is to enable the company's 
 business to be sold as a going con- 
 cern, the current expenses, wages, etc., 
 being provided for by the plaintiff. 
 3Inkins v. Ibotson [1891] 1 Cla. 133, 60 
 L. J. Ch. 164, 63 L. T. 515; Peek v. 
 Trinsmaran Iron Co. L. R. 2 Ch. Div. 
 115. And it seems that such a man- 
 ager will be appointed where it is nec- 
 essary to preserve the security though 
 the business is not mortgaged. Camp- 
 bell V. Lloyd's Bank, 58 L. J. Ch. 424. 
 
 ' The appointment of a receiver 
 prior to filing a bill is a nullity. 
 
 Jones V. Schall, 45 Mich. 379; Mer- 
 chants & M. Nat. Bank v. Kent, 43 
 Mich. 292; 0^^y v. Doak, 47 Kan. 236 
 Hardy v. McClellan, 53 Miss. 507 
 Jones v. Bank ofLeadville. 10 Colo. 464 
 Kimball v. Goodburn, 32 Mich. 10 
 Baker v. Backus, 32 111. 79; Davis v 
 Flagstaff Silver M. Co. 2 Utah, 92. 
 
 » Baker v. Backus, 32 111. 79; Weis 
 
 v. Goetter, 72 Ala. 259; Hugonin v. 
 Basely, 13Ves. Jr. 105; Micou v. Moses, 
 72 Ala. 439. 
 
 * Connelly v. Diekson,76 Ind. 440. In 
 this case the court say: " The debtor 
 who remains in possession after the 
 sale of his land certainly owes some 
 duties to the purchaser. He has 
 charge of the property and without 
 doubt may be restrained from com- 
 mitting actual waste; but mere per- 
 missive waste may be no less harm- 
 ful. Sometimes, too, injunction does 
 not afford adequate relief against 
 waste. . . . Under our statute 
 the judgment debtor or owner in 
 possession holds the land itself con- 
 ditionally for the purchaser, that is to 
 say, as trustee for him; and for the 
 reasonable rents and profits is con- 
 ditionally accountable or liable to 
 him. . . . Our decision is that 
 where it is shown that the property is 
 in the hands of a tenant who is under 
 contract to pay a stipulated rent 
 which has not been paid to the judg- 
 ment debtor or to the owner of the 
 land and that the latter is insolvent 
 and cannot redeem, the court may 
 appoint a receiver to collect such 
 rents and to hold the same until the 
 end of the year, if a redemption is not 
 sooner made, to be paid over to the 
 debtor if he redeems and otherwise 
 to the purchaser." 
 
 And after decree a receiver m.ay be 
 appointed though not prayed fur in 
 the bill. 
 
 Shannon v. Hanks, 88 Va. 338.
 
 GENERAL NATURE AND FEA.TURES OF THE LAW. 27 
 
 (d) Or after appeal where the bond affords no adequate pro- 
 tection. ' 
 
 § 10. Application for ; allegations ; who appointed. 
 
 (a) By whom application made. 
 As a general rule and in the ordinary course of practice the 
 appointment of a receiver is made on the application of the plain- 
 tiff in the suit. To this rule, however, there may be exceptions, 
 as where the application is made by both plaintiff and defendant, 
 but tlie conduct of the proceedings, in general, will be given to 
 the plaintiff.'' And while it may not be entirely regular for one 
 defendant to apply for a receiver as against a co-defendant,^ yet 
 on a cross-bill he may do so,* but even that has been held not to 
 be necessary/ 
 
 (b) Exercise of caee by the courts. 
 In passing upon the application, by whomsoever made, the 
 court mil carefully scrutinize the application and the effects of 
 the appointment upon all parties concerned.^ The appointment 
 is usually an incident only to the main purpose of the bill or 
 petition, and is, in effect, the sequestration of the defendant's 
 property in advance of a hearing and adjudication of the rights of 
 
 ' Beard v. Arhuckle, 19 W. Va. 145; unit is thereby detached from the 
 
 Adkinsv. Edwards, SZY a. ^\Q, Moran main road. In such case not only 
 
 V. Johnston, 26 Gratt. 108. the parties to the suit are affected, but 
 
 * Sargant v. Read, L. R. 1 Ch. Div. a large number of employes are dis- 
 600, 45 L. J. Ch. 206. turbed in their relations with their 
 
 ^ Robinson v. Hadley, 11 Beav. 614; employer, and the general public, 
 
 18 L. J. N. S. Ch. 428. But see Sar- along the line of road, are liable to be 
 
 gantv. Read, L. R. 1 Ch. Div. 600. greatly inconvenienced by the dis- 
 
 * Orote V. Bury, 1 W. R. 92. turbance to their shipping facili- 
 '^ Sarga7itv. Read, supra; HenshawY. ties. Wabash R. Co. v. Dykeman 
 
 Wells, ^ 'E.uva^ih.bQS; Hortony. White, 133 Ind. 56. Courts in some cases 
 
 54 N. C. 297; Pittman v. Tounshend, have been made the instruments of 
 
 1 W. W. & A 'B. (Victoria), 140. perpetrating great wrongs, not only 
 
 ' In granting the order of appoint- upon the public, but those having 
 
 raent of a receiver the court will scru- large pecuniary interests in corpora- 
 
 tiuize not only the rights of the mov- tions where the real purpo.ses of the 
 
 ing party, but the injuries that may plaintiff in makingtheapplicationbave 
 
 be suffered by the adverse party and been cleverly concealed at the time of 
 
 the public at large. This is particu- the appointment, and on)}' discovered 
 
 larly the case where a line of railroad when the effects were disastrous and 
 
 forming part of a system operated as » beyond remedy.
 
 28 RECEIVERSHIPS. 
 
 the parties, and the right of the plaintiff to recover upon the main 
 
 features of the bill or petition must be clearly established. Thus in 
 a foreclosure proceeding the right to foreclose must be apparent 
 before the right to a receiver will be acted upon. It would seem, 
 however, that in case of waste or imminent danger of loss the 
 court will act with greater freedom. In its effect the appoint- 
 ment is not unlike the statutory attachment, so far as the 
 seizure and preservation of the property is concerned, and the 
 ultimate right of the successful party is carried back to the date 
 of the order. 
 
 (c) Allegations, averments. 
 By whomsoever the application is made it is necessary that the 
 proper averments shall be clear and distinct,' but the sufficiency of 
 the averments of the bill may be supplemented by affidavits or 
 oral testimony." The court, as a rule, will decline to appoint a re- 
 ceiver on an interlocutory application in the absence of a prayer 
 asking for such relief,' but this rule is not an unbending rule 
 where the facts appearing clearly justify the appointment." In 
 all cases the application must be made in a reasonable time,' 
 unless the allegations contained in the bill are supplemented by 
 affidavits showing an excuse for the delay or circumstances justi- 
 fying the intervention of the court." 
 
 (d) Receiver must be disinterested. 
 Inasmuch as the receiver must be an indifferent person as be- 
 tween all parties, and holds the property for the benefit of all, it 
 
 'Allegations that the plaintiff has ^Naylor v. Sidener, 106 Ind. 179. 
 
 reason to believe that the property in- ^Pare v. Clegg, 7 Jur. N. S. 1136. 
 
 volved in the litigation will be wasted *Malcolm v. Montgomery/, 2 Moll. 
 
 if a receiver be not appointed are not 500; Osborne v. Harvey, 1 Youngeifc C. 
 
 sufficient. Banna v. Banna, 89 N. C. 42; Bowman v. Bell, 14 L. J. N. S. Ch. 
 
 68; Briarfleld Ironworks Co. v. Foster, 119. But it is not necessary to pray 
 
 54: A]a.Q22; Supre7ne Sitting Order of I. for a receiver in a supplemental bill 
 
 .ff. v.i?a^e?-,134Ind.293,20L. R.A. 210; where the original bill contains such 
 
 I^aylor V. Sidener, lOQ Ind. 179; Steele V. a prayer. Ball v. Kirby, Exch. 11 
 
 Aspy, 128 Ind. 367 Amendments to (June, 1831, unreported.) 
 
 the petition in furtherance of justice ^Bood v. First Nat. Bank, 29 Fed. 
 
 va&y be made, however, if an oppor- Rep. 55. 
 
 tunity be given to answer the same, ^Loveday v. D'Esterre, 1 Hayes & J. 
 
 there being so abuse of the judicial 151; Spratt v. AJiearns, 1 Hayes & J. 
 
 discretion. McCm-d v. Weil, 29 Neb. 800; Bood v. First Nat. Bank, 29 Fed. 
 
 682; but see Gouthwaite v. Bippon, 1 Rep. 55. 
 Bea V. 54; Smith v. Bixon, 4 W. R. 259.
 
 GENERAL NATURE AND FEATURES OF THE LAW. 29 
 
 is not proper that he should be interested in the property, 
 which is the subject-matter of the litigation, nor be interested 
 in the result of the litigation.' There are cases, however, 
 where the receiver may be a party and interested in the 
 result of the litigation, but in such cases he is usually selected 
 by agreement and acts without compensation. The court 
 being free from all bias, and meting out justice fairly and 
 impartially to all parties concerned, it is equally imperative 
 that its officers shall be equally free and independent and 
 capable of acting without the slightest cause for suspicion of 
 personal interest. It is not only necessary that the receiver shall 
 not be an interested party in the litigation but the court will not 
 knowingly permit its receiver to occupy a position where adverse 
 criticism may be rhade in reference to his acts. Cases sometimes 
 occur, however, where, owing to the peculiar nature of the busi- 
 ness, it is difficult to procure a competent and proper person to 
 act who is wholly disinterested in the business, and in such case 
 the general rule is applied with less stringency. 
 
 (e) Subsequent keceivers; ancillaey. 
 
 While the general rule is that but one receiver will be ap- 
 pointed,^ yet subsequent receivers for the same fund may be 
 appointed for special purposes, subject however to the powers of 
 the receiver previously appointed,' but their necessity must be 
 clearly shown.* 
 
 Ancillary receivers are sometimes appointed to protect prop- 
 
 ^ Detroit First Nat. Bank v. Barnum pointed, is no answer to an applica- 
 
 Wire & I. Works, 60 Mich. 487. He tion for a similar appointment in a 
 
 should not be a party to the suit unless subsequent suit by other parties; but 
 
 his appointment is consented to. Ben- the same receiver will be appointed in 
 
 neaon v. Bill, 62 111. 408; nor is a mas- the subsequent suit, 
 
 ter in chancery proper whose duty it is Rogers v. DeForest, 11 Paige, 272. 
 
 to pass upon the accounts of the re- ^Bailey v. Belmont, 10 Abb. Pr. N. 
 
 ceiver. Id. See further Chap. H. § 21. S. 270; British Linen Co.v. South Am- 
 
 - Wabash, St. L. & P. B. Co. v. Central erica & M. Co. [1894] 1 Ch. 108; Baiky 
 
 Trust Co. 22 Fed. Rep. 272 ■,Biddulph v. v. O'Mahoney, 1 Jones & S. 2b9. 
 
 Hickman, 1 Hog. 2^4:; Downshire v. * Wabash, St. L. (& P. R. Co. v. Central 
 
 Tyrrell, Hayes, 354; Kelly v. RuUedge, Trust Co. 22 Fed. Rep. 372. But see 
 
 8 Ir. Eq. 228. Phinizy v. Augusta & K. B. Co. 56 
 
 The fact tliat a receiver of the es- Fed. Rep. 273. 
 tate of a debtor has been already ap-
 
 30 
 
 RECEIVERSHIPS. 
 
 erty beyond the jurisdiction of the first receiver.' The ancillary 
 receiver is not necessarily the same person as the receiver in the 
 original proceeding, yet if consistent with interests of all parties 
 the management of the estate will be more efficiently managed by 
 60 doing. The tendency of courts is to recognize the rights of a 
 foreign receiver under a species of comity and thus, to some ex- 
 tent, avoid the necessity of ancillary receivers. 
 
 ^Platt V. Philadelphia & B. R. Co. 
 54 Fed. Rep. 569; Mercantile Trust 
 Co. V. Kanawha & 0. R. Go. 39 Fed. Rep. 
 337. Such receiver's appointmenl 
 should be without prejudice. 
 
 In Piatt V. PhiUi. & R. R. Co. 54 
 Fed. Rep. 569, it was held that the 
 Circuit Court would follow the gen- 
 eral practice in the Federal courts in 
 granting an ancillary receivership on 
 ex parteapplication,butwithout preju- 
 dice to the full consideration of the 
 legality of the practice on subsequent 
 motion to dissolve the order. 
 
 In Clyde v. Richmond & D. R. Co. 55 
 Fed. Rep. 539, ancillary receivers were 
 appointed in South Carolina, the orig- 
 inal proceeding being in Virginia and 
 it was held that the latter court was the 
 proper forum in which a petition should 
 be filed by a creditor asking for relief. 
 The petition however was retained in 
 South Carolina on the ground of the 
 
 claim being a meritorious one, in or- 
 der to assist the petitioner in enforcing 
 the payment of his claim. 
 
 In A)nes v. Union P. R. Co. 60 Fed. 
 Rep. 966, it was held that the receivers 
 of a railroad system, appointed in 
 several circuits, should report to and 
 be governed by the Circuit Court 
 sitting in the district of their original 
 appointment in all matters relating to 
 their general management of the trust, 
 their general accounting, and the gen- 
 eral operation of the road within the 
 circuit. But the Circuit Court, sitting 
 in other districts with the same re- 
 ceivers, were subsequently appointed, 
 had jurisdiction to determine the 
 validity and amount of claims of 
 citizens thereof against, the receivers 
 and the corporation; and citizens of 
 one district will not be required to go 
 into another district to assert their 
 claims.
 
 CHAPTER 11. 
 
 MATTERS RELATING TO THE APPOINTMENT, 
 
 § 11. Scope of the bill or petition. 
 § 12. Time when appointed. 
 
 (a) Early English practice. 
 
 (b) Modern English practice, 
 
 adoption of. 
 
 (c) After decree. 
 
 (d) After appeal. 
 
 § 13. Must be suit pending. 
 
 § 14. Rules governing appointment ; 
 general principles. 
 
 § 15. Grounds upon which jurisdic- 
 tion is entertained. 
 
 (a) Preservation of property. 
 
 (b) Danger of loss. 
 
 (c) Fraud. 
 
 (d) Insolvency. 
 
 (e) Plaintiff's title. 
 
 (f) Remedy at law. 
 
 § 16. When jurisdiction not enter- 
 tained. 
 § 17. Effect of appointment. 
 
 (a) Places property in custodia 
 
 legis. 
 
 (b) Removes defendant from pos- 
 
 session and custody. 
 
 (c) Property not to be interfered 
 
 with by other courts. 
 
 (d) Does not change the title or 
 
 ultimate right of possession. 
 
 (e) Custody of receiver coexten- 
 
 sive with jurisdiction of 
 court. 
 
 (f ) Leaves the rights of all parlies 
 
 in statu quo. 
 
 (g) Receiver's rights relate to date 
 
 of appointment. 
 (h) Extent of power as to prop- 
 erty. 
 
 § 18. Courts exercising jurisdiction, 
 g 19. Conflict of jurisdiction. 
 § 20. Scope of jurisdiction. 
 § 21. Who appointed. 
 
 (a) His position as to court. 
 
 (b) Is a trustee as to parties. 
 § 22. Form and scope of order. 
 
 (a) Should specifically describe 
 
 the properly. 
 
 (b) Should embody power to pre- 
 
 serve property. 
 
 (c) Should embrace all power 
 
 necessary as to possession. 
 
 (d) But caution to be exercised as 
 
 to property in the hands of 
 third persons, etc. 
 
 (e) Order relates back to the date 
 
 of granting. 
 
 (f) Assignment not necessary to 
 
 pass title. 
 
 (g) Order subject to modification, 
 (h) Order not subject to collateral 
 
 attack, 
 (i) Nor affected by irregularity 
 
 or error. 
 (j) Is subject to revocation, 
 (i) Where it was a nullity. 
 (^) Where the appointment se- 
 cured by collusion. 
 (S) When the appointment em- 
 providently made. 
 
 (4) When the court had no ju- 
 
 risdiction. 
 
 (5) Application for vacation 
 
 must be in apt time, 
 (k) Order appointing may be ap- 
 pealed from, when. 
 (1) Effect of appeal from order.
 
 32 
 
 RECEIVERSHIPS. 
 
 (J) Appeal before possession. 
 (2) Receiver's functions sus- 
 pended pending appeal. 
 §23. Bond. 
 
 (a) Required in all cases. 
 
 (b) Runs to whom. 
 
 (c) Sureties, who may be, dis- 
 
 charge of. 
 
 (d) Suit on bond. 
 
 (e) Liability of sureties. 
 
 § 11. Scope of the l)ill or petition. 
 
 In order to autliorize the appointment of a receiver the bill or 
 petition must lay a foundation for it by stating the facts which 
 show its necessity or propriety.' And owing to the nature of the 
 remedy and the results that usually follow the appointment, a 
 strong case must be made in order to justify the court in exercis- 
 ino" its jurisdiction, and it must appear that there is no other safe 
 ■or expedient remedy.'' The primary purpose in all cases is pro- 
 tecting and securing the property which is the subject-matter of 
 the litigation.^ If the plaintifE has an adequate remedy at law,* 
 
 ^Tomlinson v. Ward, 2 Conn. 396. 
 In this case the court say: "Courts of 
 equity have undoubtedly a power to 
 appoint receivers in proper cases. But 
 the facts should be stated in the bill 
 which show the necessity or propriety 
 of the appointment; so that the other 
 party may answer them." The alle- 
 gations must not be based on mere be- 
 lief. Cofer V. Echerson, 6 Iowa, 502; 
 Heavilon v. Farmers' Bank, 81 Ind. 
 249. 
 
 It is not an abuse of discretion for 
 the court on motion for the appoint- 
 ment of a receiver ^^endente lite, to re- 
 fuse to hear affidavits presented after 
 the expiration of ample time limited 
 by such court in which such affidavits 
 might have been presented. Farmers' 
 Mat. Bank v. Backus (Minn.) 66 N. 
 W. 5. 
 
 The appointment of a receiver in a 
 regular proceeding for that purpose 
 upon a hearing cannot form the basis 
 of an action for damages against the 
 applicants. Saunders v. Eempner 
 (Tex. Civ. App.) 32 S. W. 585. 
 
 A receiver pendente lite is properly 
 appointed in an action to recover 
 money improperly appropriated by 
 
 defendant, although he is shown to 
 have considerable property, where he 
 has properly interests in another state, 
 and has been trying to dispose of his 
 property in the state where the action 
 is brought. Bird v. Lanpliear, 92 
 Hun. 567, 36 N. T. Supp. 1069. 
 
 ^Speights v. Peters, 9 Gill, 472. "It 
 is a high power never exercised where 
 it is likely to produce irreparable in- 
 justice or injury to private rights or 
 where there exists any other safe or 
 expedient remedy." Winkler v. Wink- 
 ler, 40 111. 179; Coughron v. Swift, 18 
 111. 414; Webster v. Couch, 6 Rand. 
 (Va.) 519; Poage v. Bell, 3 Rand. (Va.) 
 586; Wooden v. Wooden, 3 N. J. Eq. 
 429; Morrison v. Buckner, Hemp. 
 442; Corey v. Long, 43 How. Pr. 497; 
 Rice V. St. Paul & P. B. Co. 24 Minn. 
 464; Sherman v. Clark, 4 Nev. 138; 
 Parmley v. Tenth Ward Bank, 3 Edw. 
 Ch. 295; Brown v. Chase, Walk. Ch. 
 43 ; Spooner v. Bay St Louis Syndicate, 
 44 Minn. 403; SoUoryy. Leaver, L. R. 
 9 Eq. 22; KnigJiton v. Toung, 22 Md. 
 S59. 
 
 ^Battle v. Davis, 66 N. C. 252. 
 
 *Sallory v. Leaver, L. R. 9 Eq. 22; 
 Brewry v. Barnes, 3 Russ. 100; Par-
 
 MATTERS RELATING TO THE APPOINTMENT. 
 
 33 
 
 or if it does not appear that the appointment is demanded in order 
 to afford adequate protection to the parties the court will not act. 
 The action of the court based upon the ground that no one will 
 be seriously injured thereby is an unjustifiable exercise of juris- 
 diction by a court of equity. 
 
 § 12. Time when appointed. 
 
 (a) Under the early English practice it was not considered 
 proper to appoint a receiver prior to the answer of the defendant.' 
 This rule, however, has been abrogated by the modern English 
 practice (1) where the defendant has in answer to plaintiff's ap- 
 plication filed an affidavit wliich, so far as the application is con- 
 cerned, is to be treated as an answer, (2) and where fraud is clearly 
 proved by affidavit, or where imminent danger would ensue un- 
 less the property is taken under the care of the court.'' The ap- 
 pointment is usually made on an interlocutory application.' 
 
 (b) The modern English practice in regard to the appointment, 
 before answer, has been adopted in this country where the plain- 
 
 ker V. Moore, 3 Edw. Ch. 234; Spooner 
 V. Bay St. Louis Syndicate, 44 Minn. 
 403; Rice v. St. Paul <& P. B. Co. 24 
 Minn. 464. 
 
 1 Vann v. Barnett, 2 Bro. C. C. 158. 
 
 ^Duckworth v. Trafford, 18 Ves. Jr. 
 283; Lloyd v. Passingham, 16 Ves. Jr. 
 70; Hugnonin v. Basely, 13 Ves. Jr. 
 105; Anon. 12 Ves. Jr. 4; Jervis v. 
 White, 6 Ves. Jr. 738, note. The Lord 
 Chancellor in Owen v. Homan, 4 H. 
 L. Gas. 997, said: " In all cases, there- 
 fore, where the court interferes by ap- 
 pointing a receiver of property in the 
 possession of the defendant before the 
 title of the defendant is established 
 by decree it exercises a discretion to 
 be governed by all the circumstances 
 of the case." But it seems that a 
 court will not appoint a receiver be- 
 fore a hearing, where the purpose is 
 to carry into effect a foreign decree. 
 Iloulditch V. Donegall, Beatty (Jr.) 
 390. 
 
 ^ Tripp V. CJuird R. Co. 17 Jur. 887, 
 22 L. J. Ch. 1084; Peek v. Trimmran 
 3 
 
 Coal, Iron & S. Co. 45 L. J. Ch. 281; 
 Porter v. Loi^es, L. R. 7 Ch. Div. 358, 
 37 L. J. N. S. 834; Anderson v. 
 Guichard, 9 Hare, 275. And the ap- 
 pointment may be before service in case 
 of bankruptcy and consequent loss of 
 the estate. Re H.'s Estate, H. v. H. L. 
 R. 1 Ch. Div. 276, 45 L. J. Ch. 749: 
 The court will not appoint without 
 notice to defendant, before the time 
 for his appearance has expired, unless 
 he has withdrawn himself from the 
 jurisdiction, or the property is in dan- 
 ger of being lost, or some other special 
 circumstance exists making an imme- 
 diate appointment necessary. Sand- 
 ford v. Sinclair, 8 Paige, 373; Gibson 
 v. Martin, 8 Paige, 481; McCarthy v. 
 Peake, 9 Abb. Pr. 164, 18 How. Pr. 
 138. 
 
 The court will not appoint on an ex 
 parte application before the appear- 
 ance, or until defendant has made de- 
 fault after service of process, except in 
 cases of emergency. Field v. Ripjley, 
 20 How. Pr. 26.
 
 24: 
 
 RECEIVERSHIPS. 
 
 tiff satisfies the court that he has an equitable claim to the prop- 
 erty in controversy, and that a receiver is necessary to preserve 
 Buch property from loss or serious damage.' But as we have seen, 
 except in rare instances notice should be given of the intended 
 application." 
 
 (c) After decree and upon motion a receiver may be appointed 
 where the case is urgent,' and even where no receiver is prayed 
 
 ^Bloodgood v. Clark, 4 Paige, 574; 
 Johns V. Johns, 23 Ga. 31: Jones v. 
 Dougherty, 10 Ga. 273; Bank of Mon- 
 roe V. Seller merhorn, 1 Clarke, Ch. 
 214. Where an absent defendant has 
 been advertised to appear within a 
 certain time, an order for the appoint- 
 ment of a receiver, obtained by the 
 plaintiff ex parte, before the expira- 
 tion of the time limited for defend- 
 ant's appearance, is irregular, except 
 under special circumstances. Saiid- 
 for V. Sinclair, 8 Edw. 393. If, how- 
 ever, on tiling an answer the bill and 
 answer taken together show that a re- 
 ceiver ought not to have been ap- 
 pointed, a motion to discharge by de- 
 fendant is proper. Phmnix Mut. L. 
 Ins. Co. V. Orant, 3 Mc. Arth. 220; 
 Allen V. Dallas & W. R. Co. 3 Woods, 
 332. 
 
 It is not necessary to show that 
 there is property to come into the 
 hands of a receiver as a prerequisite 
 to the appointment. Dutton v. 
 Thomas, 97 Mich. 93; Rankin v. Roths- 
 child, 78 Mich. 10. 
 
 In Clark v. Ridgely, 1 Md. Ch. 70, 
 the court say: "A receiver should not 
 be appointed before the coming in of 
 the answer, and although the rule 
 has been broken through, the ground 
 which will induce the court to disre- 
 gard it must be very strong and spe- 
 cial." It must clearly appear that the 
 property is in danger. West v. Swan, 
 3 Edw. Ch. 420. And where the mo- 
 tion to appoint is on bill and answer, 
 and the answer denies the material 
 
 allegations of the bill the motion will 
 be refused. Simmons v. Henderson, 1 
 Preem. Ch. (Miss.) 493. 
 
 A receiver cannot be appointed over 
 a solvent corporation upon the bill of 
 a minority stockholder before the time 
 to answer has expired, because of 
 abuse of authority by the president, or 
 his refusal to account for moneys in 
 his hands or to allow the complainant 
 to inspect the books, where his acts 
 are approved by the majority of the 
 stockholders. Ranger v. Champion 
 Cotton Press Co. 52 Fed. Rep. 609. 
 
 Where the bill of complaint is fully 
 responded to by the answer and no 
 further proof is offered by plaintiff 
 there are no grounds for the appoint- 
 ment of a receiver. Crombie v. Order 
 of Solon, 157 Pa. 588. 
 
 =8ee § 5, 1[ (d). 
 
 The appointment of a receiver in 
 the trial court cannot be questioned 
 in the appellate court if the appoint- 
 ment was by consent. Little Rock 
 Waterworks Co. v. Barrett, 103 U. S. 
 576, 26 L. ed. 523. 
 
 ^ Cooke V. Owyn, 3 Atk. 690; Schrei- 
 her V. Carey, 48 Wis. 208; ReBywaler's 
 Estate, 1 Jur. N. S. 227; Bowman v. 
 Bell, 14 Sim. 392; Thomas v. Davies, 
 11 Beav. 29; Merrill v. Elam, 2 Tenn. 
 Ch. 513 ; Hutton v. Lockridge, 27 W. 
 Va. 428; Beard v ArMickle, 19 W. Va. 
 145; Aston v. Turner, 11 Paige, 436; 
 Wright v. Ver7ion, 3 Drew, 112; Moran 
 V. Johnston, 26 Gratt. 108; Connellys. 
 Dickson, 76 Ind. 440; Brinkman v. 
 Bitzinger, 82 Ind. 258; Clyburn v. Rey-
 
 MATTERS RELATING TO THE APPOINTMENT. 
 
 35 
 
 for/ The court will retain jurisdiction until complete justice is 
 done between the parties. 
 
 (d) And after decree and an appeal from such decree a receiver 
 may be appointed,'' but only where the supersedeas, or appeal 
 bond, does not cover the rents and profits. 
 
 § 13. Must he suit pending. 
 
 It is a prerequisite to the appointment of a receiver that there 
 
 nolds, 31 S. C. 91; Shannon v. Hanks, 
 
 88 Va. 338; Eaas v. Chicago Bldg. Soc. 
 
 89 111. 498; Adkins v. Edwards, 83 Va. 
 316. 
 
 In England after a judgment for 
 foreclosure absolute a receiver will 
 not be appointed. Wills v. Lttff, L. 
 R. 38 Ch. Div. 197, 57 L. J. Ch. 563. 
 
 When a mortgagor has a right of 
 possession of mortgage premises until 
 the expiration of the statutory period 
 of redemption a receiver of the crops 
 grown on the premises should not be 
 appointed. White v. Origgs, 54 Iowa, 
 650; Paine v. McElray, 78 Iowa, 81. 
 
 Upon the appointment of a receiver 
 in a creditor's suit, the defendant is 
 not entitled to the rents and profits of 
 his real estate during the time allowed 
 for a redemption from a sale on ex- 
 ecution, but they go to the receiver 
 immediately. Farnham v. Campbell, 
 10 Paige, 598. 
 
 ' Wright v. Vernon, 1 Drew, 68; Con- 
 nelly V. Dickson, 76 Ind. 440; Clyburn 
 V. Reynolds, 31 8. C. 91; Shannon v. 
 Eanks, 88 Va. 338. But, where a re- 
 ceiver is asked for after decree there 
 must be a strong case made out. 
 Adair v. Wright, 16 Iowa, 385. and 
 see Haas v. Chicago Bldg, Soc. 89 111. 
 498. 
 
 "^Adkin v. Edwards, 83 Va. 316; 
 Beard v. Arbuckle, 19 W. Va. 145; 
 Moran v. Johnston, 26 Gratt. 108; James 
 River &E. Co. v. Littlejohn, 18 Gratt. 
 53.' 
 
 The court will appoint a receiver, 
 pendente lite, upon a showing, after 
 trial and before entry of decree, that 
 the property is deteriorating in value 
 and that large expense is being in- 
 curred in maintaining and repairing 
 the property; and in such case will 
 order a sale of the property, and after 
 a conflrmation of the sale require the 
 receiver to pay the amount in his 
 hands to the plaintiff. Toby v. Oregon 
 Pacific R. Co. 98 Cal. 490. 
 
 A receiver may be appointed after 
 the rendition of a decree where oc- 
 currences arise which threaten the ef- 
 fectiveness of such decree. Chicago 
 & 8. E. R. Co. V. St. Clair (Ind.) 42 
 N. E. 225. 
 
 The supreme court of the United 
 States will not appoint a receiver in a 
 case on appeal to that court, where 
 no irregularities in the sale are shown, 
 and the decree for s^le was by con- 
 sent, and the property is in the hands 
 of the purchaser. Pacific R. Co. v. 
 Eetchum, 95 U. S. 1, 24 L. ed. 347. 
 
 A receiver of specific real estate 
 cannot be appointed pending an ap- 
 peal from a judgment setting aside 
 the probate of a will, under N. Y. 
 Code Civ. Proc. § 713, authorizing 
 the appointment of a receiver after 
 final judgment to preserve, pending 
 an appeal, the property which is the 
 "subject" of the action. Johnson' v. 
 Cochrane, 91 Hun, 163. 36 N. Y. Supp. 
 287.
 
 36 
 
 RECEIVERSHIPS. 
 
 shall be a suit pending in which the application is made ; other- 
 wise the order appointing will be void.' 
 
 ^Ex parte Whitfield, 2 Atk. 315; 
 Anoii. 1 Atk. 489, 578 ; Ex parte Peil- 
 lon, 2 Thomson (Nova Scotia) 405; 
 Young v. Wright, 8 P. R. (New Bruns- 
 wick) 198; Harwell v. Potts, 80 Ala. 
 70; Croicder v. Moone, 52 Ala. 220; Ouy 
 V. Doak, 47 Kan. 236; MercJiants & M. 
 Nat. Bank v. Kent, 43 Mich. 292. 
 Nor, does the subsequent filing of a 
 bill validate the appointment. Har- 
 weli V. Potts, ante ; Oold Hunter Min. 
 & S. Co. V. Holleman, 2 Idaho, 839; 
 Jones v.Schall, 45 Mich. 379; Hardy 
 V. McClellan, 53 Miss. 507. 
 
 Courts have no power to appoint a 
 receiver except in a suit pending un- 
 less in cases of idiots, lunatics and in- 
 fants. Jones V. Bank of Leadville, 10 
 Col. 464; Davis v. Flagstaff S. V. Co. 
 2 Utah, 91; Hardy v. McClellan, 53 
 Miss. 507. 
 
 As we have already seen, § 5, T[ (d), 
 the defendant must have notice of the 
 application. See also as to notice the 
 following cases: 
 
 Appearance by defendant in an ac- 
 tion solely for the appointment of a 
 receiver does not authorize an appoint- 
 ment without notice at chambers, un- 
 der Ind. Rev. Stat. 1894. § 1244, pro- 
 viding that receivers shall not be 
 appointed in term or vacation until 
 the adverse party shall have appeared 
 and had reasonable notice of the ap- 
 plication, although the appointment 
 might be made in open court. Win 
 chaster Electric Light Co. v. Gordon 
 (Ind.) 42 N. E. 914. 
 
 Sulficient cause within the meaning 
 of lud. Rev. Stat. 1894, § 1244, for- 
 bidding the appointment of a receiver 
 without notice to the adverse party, 
 except upon sufficient cause shown by 
 aflSdavit, is not shown where it af- 
 firmatively appears that notice could 
 easily have been given, and it does not 
 
 appear, either by aflBdavit or by veri- 
 fied complaint, that irreparable oi 
 other damage would have resulted 
 from giving the same. Sullivan Elec- 
 tric Light & P. Co. v. Blue (Ind.) 41 
 N. E. 805. 
 
 A liberal construction will be given 
 to a complaint in determining its suf- 
 ficiency so far as it relates to the ap- 
 pointment of a temporary receiver 
 pending the action, but it must state a 
 cause for such appointment ; and if 
 the application is made without no- 
 tice, the cause for an appointment 
 without notice must appear either in 
 the verified complaint or by afiidavit, 
 under Ind. Rev. Stat. 1894. § 1244, 
 providing that a receiver shall not be 
 appointed without notice of the ap- 
 plication to the adverse party, except 
 upon sufficient cause shown by affi- 
 davit. Sullivan Electric Light & P. 
 Co. V. Blue (Ind.) 41 N. E. 805. 
 
 A mere interlocutory application 
 for a receiver pending suit is not 
 within the provision of Alabama 
 chancery practice rule 77, requiring a 
 note of submission for the hearing. 
 Jackson v. Hooper (Ala.) 18 So. 254. 
 
 A new receiver may be appointed 
 without notice to an intervening pe- 
 titioner, where there is nothing to 
 show unfitness or incompetency, 
 of the person selected. Fowler v. Jar- 
 vis-Couklin M. T. Co. 2 Am. & Eng. 
 Corp. Cas. N. S. 391. 
 
 The ex parte appointment of a re- 
 ceiver of a corporation is void. People, 
 etc. V. Judge, etc. 31 Mich. 456. 
 
 The appointment without notice is 
 unjustifiable except where it clearly 
 appears that irreparable injury would 
 be done, and in such case a temporary 
 injunction will usually be sufficient. 
 Fischer v. Super. Ct. 2 Am. & Eng. 
 Corp. Cas. N. S. 339.
 
 MATTERS RELATING TO THE APPOINTMENT. 37 
 
 To the above rale there is an exception where a matter is pend- 
 ing in the probate court to set aside a will, and thei-e appears to 
 be no one who has a legal right to deal with the testator's prop- 
 erty.' At one time in Ireland it was the practice of the chancery 
 court in certain specified cases to appoint receivers where no bill 
 was pending, but this exceptional practice grew out of the statute 
 known as 4 & 5 Wm. lY chap. 78, § T ; 5 & 6 Wm. lY c. 55, § 31. 
 
 § 14. Rules governing appointment; general principles. 
 
 Courts of chancery, and courts exercising chancery jurisdic- 
 tion, when called upon to exercise the extraordinary power of 
 appointing a receiver and thus wresting from a person the pos- 
 session of property in advance of a judicial determination of the 
 conflicting interests therein, or adjudication of the rights of claim- 
 ants thereto, should be governed by certain well defined rules. 
 These by long usage and due regard for the inherent rights of 
 persons, in property, have become universal and everywhere rec- 
 ognized and respected. Chancery jurisdiction, while flexible in 
 its nature and adjusting itself to meet the various conditions that 
 arise in the administration of justice, and affording a remedy 
 therefor, and while it is not enslaved to rules and precedents, as 
 at common law, yet in the very nature of things must take cog- 
 nizance of certain established principles, which have been deemed 
 essential to the due and proper administration of justice and 
 which conduce to the safety and preservation of the rights of 
 litigants, and be governed by them, at least in spirit. Otherwise 
 it would be possible for the chancellor to become a veritable 
 tj^rant. No field of chancery jurisdiction calls for a more zealous 
 recognition of these rules and underlying fundamental principles 
 than that of receiverships. 
 
 § 15. Grounds upon which jurisdiction is entertained. 
 
 The grounds upon which the court is usually asked to exercise 
 its jurisdiction, and appoint a receiver are few in number and, 
 stated in general terms, are as follows : 
 
 ^Grinastonv. Turner, 22 L. T. N. S. 6 S. C. R. Eq. (New So. Wales) 84; 
 292; Parkin v. Seddons, 16 L. R. Eq. Be Leeming, 20 L. J. N. S. Ch. 550. 
 Cas. 34, 42 L. J. Ch. 470; Re Bowman, 
 
 /u
 
 38 RECEIVERSHIPS. 
 
 (a) Preservation of property. 
 The power to ap})oint receivers is, in all cases, exercised with 
 great caution. There must be a ]e<;al or equitable right reason- 
 ably clear and free from doubt, attended with danger of loss. 
 The preservation of the subject of the controversy for the benefit 
 of the party who will ultimately be decreed to have the right 
 thereto is the object of committing it to the custody of the re- 
 ceiver.' The proper caution having been exercised the appoint- 
 ment may be an efficient means of securing a protection to the 
 parties interested which, otherwise, owing to the delays incident 
 to protracted litigation, would be wholly lost, or at least seriously 
 impaired. Proper caution not having been exercised property 
 may be illegally taken from one rightfully in possession, and his 
 property interests sacrificed without any relief whatever. In the 
 one case the court is a shield and protection ; in the other it is an 
 engine of destruction. There is probably no other position in 
 the field of remedial jurisprudence requiring more scrutinizing 
 care on the part of the chancellor than that now under considera- 
 tion. This is all the more urgent from the fact that the ultimate 
 rights of the parties must be prejudged, to some extent, from a 
 partial examination of the circumstances disclosed by the plead- 
 ings and affidavits, often drawn by skillful lawyers, from state- 
 ment more or less colored by interested parties. 
 
 ^Fort Payne Furnace Co. v. Fort ordinarily no indemnifying bonds are 
 
 Payne Coal & I. Co. 96 Ala. 472; required, and the consequences that 
 
 Hngliesv. Haichett, 55 Ala.. 631; Bandle may follow from wresting from the 
 
 V. Carter, 62 Ala. 95. defendant of the property in liti- 
 
 In actions at law property will not gation, are such that the granting of 
 
 be taken from a party in possession, a receiver should, in all cases, be at- 
 
 claiming in good faith the right to it, tended with great care and circum- 
 
 without first exacting from him at spection. Briarfield Iron Works v. 
 
 whose suit it is done ample security Foster, 54 Ala. 622; Fort Payne Fur- 
 
 for the protection of his adversary nace Co. v. Fort Payne Coal & I. Go. 
 
 against injury. In actions of detinue 96 Ala. 472. 
 
 and attachment for the seizure of The appointment of a receiver is 
 
 property an adequate bond with good unnecessary where the property is a 
 
 sureties are required to indemnify the decree of court, of which the receiver 
 
 defendant against loss. Injunctions could not take possession, it being 
 
 and equitable attachments are allowed virtually in the hands of the court, 
 
 only on the same conditions. In ac- Scruggs v. Memphis & C. R. Co. 108 
 
 tions for the appointment of receivers U. S. 5368, 27 L. ed. 756.
 
 MATTERS RELATING TO THE APPOINTMENT. 39 
 
 (b) Danger of loss. 
 Perhaps there is no other single ground upon which the ap- 
 pointment of a receiver is based, more often resorted to, and for 
 which the appointment results in more salutary effects than that 
 of loss or danger to the parties in interest, and especially to the 
 plaintiff who by his action puts the machinery of the court into 
 action. Where the fund or property constituting the subject of 
 contention is of such nature as to be subject to waste, deteriora- 
 tion, or serious injury if left in the possession of the defend- 
 ant ; or where the party in possession is guilty of careless 
 management, or wantonness ; or where by reason of improper 
 care and attention from any one the property is liable to be lost 
 or damaged from any cause, the court in the exercise of its un- 
 •doubted right will, by its receiver, take the property or fund into 
 possession, and preserve the same until sucli time as the riglits 
 ■of the litigants are determined. It not unf requently happens that 
 property and assets, are charged with the payment of debts, and 
 equitably belong to creditors who, by reason of inadequacy of 
 common law remedies, or otherwise, are not afforded complete 
 protection, and are in danger of losing the benefit of the security 
 to which in equity they are entitled, and in all such cases a re- 
 ceiver is proper.' Sometimes the plaintiff may have a lien, or 
 
 ^ParJchurst v. Kinsman, 2 Blatchf. may be irreparable. Bandle v. Car- 
 
 78; Kennedy v. St. Paul & P. R. Co. 2 ier, 62 Ala. 95. 
 
 Dill. 448; Orton v. Madden, 75 Ga. 83; On a bill filed by a stockholder of 
 
 Harrup v. Winslet, 37 Ga. 655; Cor- a company against a director, to take 
 
 coran v. Boll, 35 Cal. 476; Poicell v. charge of moneys alleged to have 
 
 Quinn, 49 Ga. 523; VosJiell v. Hynson, been improperly received and retained 
 
 26 Md. 83; Haight v. Burr, 19 Md. by such director, no apprehension of 
 
 130; Thompson v. Diffenderfer, 1 Md. loss being alleged in the bill, and the 
 
 Ch. 489;TFes^v. Chasten, 12 Fla. 315; answer alleging that the money was 
 
 Baker v. Backus, 32 III. 79; Fort Payne loaned to the director by the board of 
 
 Furnace Co. v. Fort Payne Coal <& I. directors, a receiver will be refused. 
 
 €o. 96 Ala. 472; Hughes v. Eatchett, 55 Eager v, Stevens, 6 N. J. Eq. 374. 
 
 Ala. 631; Peck v. Trimsaran, Coal, A fund will not be taken from one 
 
 Iron cfe 8. Co. L. R. 2 Ch. Div. 115. entitled to its custody and transferred 
 
 Although a court of equity has ju- to a receiver, unless there is imminent 
 
 risdiction to appoint a receiver to pro- danger of loss. Rheinstein v. Bixby, 
 
 tect and take the administration of 92 N. C. 307; Clark v. Dew, 1 Russ. 
 
 the assets into its own hands, it will & M. 103. 
 
 not exercise this jurisdiction unless In an action for an account and for 
 
 there is manifest danger of loss which the cancellation of a deed under
 
 40 RECEIVERSHIPS. 
 
 an equitable claim to the property, or other interest therein, and 
 in either case the right to a receiver is enforced where loss is 
 imminent. 
 
 It will be seen that the danger of loss here spoken of may be 
 occasioned by the peculiar nature of the subject-matter of the 
 litigation itself, or by reason of the acts or conduct of the person 
 in custody or possession. It may also result from the insolvency 
 or bankruptcy of the defendant in possession and his inability to 
 financially respond for any damage or loss of the property or 
 funds. It will not be availing, however, if the threatened dan- 
 ger is remote, or if the danger is past.' 
 
 (c) Fjbaud. 
 Another ground upon which the court is frequently asked to 
 intercede and appoint a receiver is fraud ; and the fraud contem- 
 plated in this connection may be consummated fraud, or contem- 
 plated fraud. Courts of equity are peculiarly fitted for the 
 detection of fraud and restoring the parties to their rights, and 
 as an efficient means of such restoration a receiver is most usually 
 appointed in such cases." The allegations of fraud must be spe- 
 
 ■which defendant claims to be the pointed of the tolls of a bridge, see 
 owner of the land which includes a Covington Drawbridge Co. v. SJiepherd, 
 mine, where there is some danger of 62 U. S. 21 How. 112, 16 L. ed. 38. 
 loss of the tolls received f rom operat- ^ Kean v. Colt, 5 N. J. Eq. 365; 
 ing the mine, an order taking the Beecher v. Binniger, 7 Blatchf. 170. 
 operation of the mine from the de- The court in Mays v. Bose, Freem, 
 fendant and placing it exclusively un- Ch. (Miss.) 703, say the danger of loss 
 der a receiver should not be granted may arise " from neglect, waste, mis- 
 where a bond, properly secured, to conduct or insolvency of the def end- 
 account for and pay over the pro- ant." 
 
 ceeds as the court might thereafter ^Redmond v. Enfield Mfg. Co. 13 
 
 direct, would furnish sufficient secur- Abb. Pr. N. S. 332; Powell v. Quinn, 
 
 ity. Stith v. Jones, 101 N. C. 360. 49 Ga. 523; Baker v. Backus, 32 111. 
 
 Pending the litigation, unless there 79; State v. Delafield, 8 Paige, 527; 
 
 is some evidence that the property is Thompson v. Diffenderfer, 1 Md. Ch. 
 
 in danger or there is clear proof of 489; Uaight v. Burr, 19 Md. 130; 
 
 fraud in obtaining possession thereof, Vosliell v. Hynson, 26 Md. 83; Webb v. 
 
 a receiver will be refused. \Yillis v. First Baptist Church Trustees, 90 Ky. 
 
 Codies, 2 Edw. Ch. 281. 117; Northern P. B. Co. v. St. Paul, 
 
 See also, Bathbotie v. Parkersburg M. & M. R. Co. 47 Fed. Rep. 536, 
 
 Gas Co. 31 W. Va. 798; Mays v. Rose, affirmed in 4 U. S. App. 149; Heard 
 
 Freem. Ch. (Mi.ss.) 703. v. Murray, 93 Ala. 127; Siminons 
 
 As to when a receiver may be ap- Hardware Co. v. Waibel, 1 S. D. 488,
 
 MATTERS RELATING TO THE APPOINTMENT. 
 
 41 
 
 cific and not vague or too general,* and the participation of the 
 plaintiff in the fraud is fatal to the application," A concise state- 
 ment of the principles governing the appointment of receivers 
 has been given as follows : The plaintiff must show (1) that he 
 has a clear right to the property itself, or (2) that he has some 
 lien upon it, or (3) that the property constitutes a special fund to 
 which he has a right to resort for the satisfaction of his claim. 
 In addition to this he must show (1) that the possession of the 
 property was obtained by the defendant by fraud, or, (2) that 
 the property itself, or the income arising from it is in danger of 
 loss." ^ 
 
 (d) Insolvency. 
 
 Another ground upon which the courts base the appointment 
 of a receiver in certain cases is that of insolvency of the defend- 
 ant. This basis for the action of the court most usually arises in 
 cases of insolvent banks,* corporations," mortgagors,* fraudulent 
 
 11 L. R. A. 267; Meridian News & 
 Pub. Co. V. Diem & W. Paper Co. 70 
 Miss. 695; Buckley v. Baldwin, 69 
 Miss. 804; Re Lewis' Petition, 52 Kan. 
 660; Ellett v. Newman, 92 N. C. 519; 
 Nichols V. Perry Patent Arms Co. UN. 
 J. Eq. 126; Micklethwaite v. Ehoades, 
 4 Sandf. Ch. 434; Ounn v. Blair, 9 
 Wis. 352; West v. Chasten, 12 Fla. 
 315; Lloyd v. Pasdngham, 16 Yes. Jr. 
 59; St. Louis & S. Coal Min. Co. v. 
 Edwards, 103 111. 472; Stihcell v. Wil- 
 liams, 6 Madd. 49, affirmed in Jac. 
 280; Hugnonin v. Boseley, 13 Ves. Jr. 
 105; Mitchell v. Barnes, 22 Hun, 194; 
 Towle V. American Bldg. & Invest. Co. 
 60 Fed. Rep. 131. 
 
 ^ Blondheim v. Moore, 11 Md. 365; 
 Oakley v. Patterson Bank, 2 N. J. Eq. 
 173. 
 
 ^ Eager v. Stevens, 6 N. J. Eq. 374; 
 Hyde Park Gas Co. v. Kerber, 5 111. 
 App. 132. 
 
 ^ Mays V. Rose, Freera. Ch. (Miss.) 
 V03. 
 
 ^Eill V. Western & A. R. Co. 86 Ga. 
 284; Atty. Oen. v. Bank of Columbia, 
 1 Paige, 511. 
 
 ^Middlesex County Bd. of Chosen 
 Freeholders v. State Bank at New 
 Brunswick, 30 N. J. Eq. 311; North 
 Carolina S. G. C. B. Co. v. Drew, 3 
 Woods, 691; Buck v. Piedmont & A. 
 L. Ins. Co. 4 Fed. Rep. 849; White- 
 water Valley Canal Co. v. Vallette, 62 
 U. S. 21 How. 414, 16 L. ed. 154; 
 Nichols V. Perry Patent Arms Co. 11 
 N. J. Eq. 126; Evans v. Coventry, 5 
 DeG. M. & G. 911. 
 
 « Merritt v. Oibson, 129 Ind. 155, 15 
 L. R. A. 277; Hart v. Eenpess, 89 Ga. 
 87; McMahon v. North Kent Ironworks 
 Co. [1891] 2 Ch. 148; Reynolds v. Quick, 
 128 Ind. 316; Thorn v. Nine Reefs, etc. 
 67 L. T. 93; Brown v. Chesapeake & 
 0. Canal Co. 73 Md. 567; Quincy v. 
 Cheeseman, 4 Sandf. Ch. 405; Ulll v. 
 Robcrtxon, 24 Miss. 368. See further 
 Mortgages, Insolvency
 
 42 
 
 RECEIVERSHIPS, 
 
 j-)nrcliasers,' trustees,' partners,' judf^ment debtors,* executors and 
 administrators/ joint tenants,' dower matters.' But there must 
 be coupled with the allegation of insolvency, also the additional 
 allegations showing plaintitf's right of recovery or probability of 
 recovery, and that such recovery will be wholly lost or substan- 
 tially impaired by reason of the insolvency/ As in the case of 
 fraud, so also in matters of insolvency the allegations must be 
 specific." Insolvency as a ground of appointment is predicated 
 upon the general doctrine of probable loss. 
 
 ' Flagler v. Blunt, 33 K J. Eq. 518; 
 Tufts V. Little, 56 Ga. 139; Ounby v. 
 Thompson, 56 Ga. 316; Chappell v. 
 Boyd, 56 Ga. 578; Pendleton Bros. 
 V. Johnson, 85 Ga. 840; Ahlhauser v. 
 Doud, 74 Wis. 400. 
 
 « Bowling v. Scales, 2 Tenn. Ch. 63. 
 
 'Bard v. Bingham, 54 Ala. 463; 
 Randall v. Morrell, 17 N. J. Eq. 343; 
 Barnard v. Davis, 54 Ala. 565; Peo- 
 ple's Bank v. Fancher, 21 N.Y. Supp. 
 545; Boyce v. Burchard, 21 Ga. 74; 
 WHlinmson v. Wilson, 1 Bland, Ch. 
 418; Heathcot v. Bavenscroft, 6 N. J. 
 Eq. 113. 
 
 That a former trader is engaged in 
 collecting what became due him while 
 in business, and to the bank of which 
 he is president after the sale of his 
 business and stock of goods, does not 
 make him a trader within Ga. Code, 
 §§ 3149a et seq., providing for the ap- 
 pointment of a receiver for an insolv- 
 ent trader on a bill filed by his 
 creditors. Mercer v. Houston Guano & 
 W. Co. (Ga.) 123 S. E. 638. 
 
 A suit by a corporation for the pur- 
 pose of obtaining an injunction does 
 not prevent another court from ap- 
 pointing a receiver on the ground of 
 insolvency. San Antonio, etc. O. D. 
 R. Co. v. Davis, 2 Am. & Eng. Corp. 
 Cas. N. S. 374. 
 
 * Shannon v. Hanks, 88 Va. 338; 
 Bunlap v. Hedges, 35 W. Va. 287; 
 McCord v. Weil, 33 Neb. 868; Oyden 
 V. Chalfant, 32 W. Va. 559. 
 
 ^ Johns V. Johns, 23 Ga. 31; Jenkins 
 V. Jenkins, 1 Paige, 243; Williams v. 
 Jenkins, 11 Ga. 595. 
 
 ^Street v. Anderton, 4 Bro. C. C. 
 414. 
 
 Sandford v. Ballard, 30 Beav. 109; 
 Bryan v. Moring, 94 N. C. 699. 
 
 ' Chase's Case, 1 Bland, Ch. 206. 
 
 * Gregory v. Gregory, 1 Jones & S. 
 86; Chase's Case, 1 Bland, Ch. 206; 
 McNair v. Pope, 96 N. C. 502; Rol- 
 lins V. Henry, 77 N. C. 467; Law- 
 rence Iron Works Co. v. Rockbridge Co. 
 All Fed. Rep. 755; Owen v. Homan, 
 4 H. L. Cas. 997, 3 Macn. & G. 378; 
 Commissioners, etc. v. Lockhart, Ir. 
 Rep. 3 Eq. 515; Cofer v. Echerson, 6 
 Iowa, 503; Cox v. Peters, 13 N. J. Eq. 
 39. 
 
 » West v. Swan, 3 Edw. Ch. 420. 
 
 See further on subject of insolvency, 
 Corporations and Railways. 
 
 Where a bill was filed by a pur- 
 chaser at a sheriff's sale, alleging ir- 
 reparable mischief from defendant's 
 insolvency and for injunction, and it 
 appeared that the defendant entered 
 by virtue of a lease made before the 
 sheriff's sale, a receiver was not ap- 
 pointed, it being inconsistent with the 
 prayer of the bill. Burns v. Camp- 
 bell, 3 Jones Eq. 410. 
 
 A decree appointing a receiver need 
 not contain a finding of insolvency, 
 where the application forthe appoint- 
 ment alleges insolvency and the an- 
 swer admits it. Reliance Lumber Co.
 
 MATTERS RELATING TO THE APPOINTMENT. 
 
 43 
 
 (e) Plaintiff's title. 
 
 It is also a well established rule in the appointment of receiv- 
 ers where tlie matter of title is involved in the issue that the 
 plaintifE b}' his bill, petition or other showing, must establish in 
 himself a strong presumptive title,' or a strong presumption 
 against the defendant's title,'' and there must be coupled with 
 this showing a danger of loss or injury, or insolvency/ And 
 where it appears that the title to the property is in dispute and 
 this is an issue in the case, and the rights of all parties therein 
 are threatened, or where the property is in Tnedio, a receiver 
 should be appointed/ But where the case involves simply a dry 
 legal title, a court of equity will refuse to interfere and leaves 
 the plaintifE to his remedy at law,^ and this too though the prop- 
 erty may be vacant/ The rule has sometimes been stated as fol- 
 
 V. Brown, 4 Ind. App. 92; Turnhull 
 V. Prentiss Lumber Co. 55 Mich. 397. 
 ^Durant v. Crowell, 97 N. C. 367; 
 McNairv. Pope, 96 N. C. 502; Bryan v. 
 Mormg, 94 N. C. 694; Twitty v. Logan, 
 80 N. C. 69; Leveson v. Elson, 88 N. C. 
 182; Horton v. White, 84 N. C. 297; Ash- 
 nrst V. Lehman, 86 Ala. 370; Emerson 
 and Wall' s Appeal, 95 Pa. 250; Schlect's 
 Appeal, 60 Pa. 172; Chicago & A. Oil 
 & Min. Co. V. United States Petroleum 
 Co. 57 Pa. 83; Sobernheimer\. WJueler, 
 45 N. J. Eq. 614; Beecher v. Binnin- 
 ger, 7 Blatchf. 170; Steele v. Aspy, 128 
 Ind. 367; Vause v. Woods, 46 Miss. 
 120; Norris v. Lake, 89 Va. 513; El- 
 wood V. Greenleaf First Is at. Bank, 41 
 Kan. 475; Cole v. O'Neill, 3 Md. Cli. 
 174; Clark v. Ridgely, 1 Md. Ch. 70; 
 Mapes V. Scott, 4 111. App. 268; Cofer 
 V. Echerson, 6 Iowa, 502; Chase's 
 Case, 1 Bland. Ch. 206; Smith v. Wells, 
 20 How. Pr. 158; Willis v. Corlies, 2 
 Edw. Ch. 287; Gregory v. Gregory, 1 
 Jones & S. 1; Lloyd v. Passingham, 16 
 Ves. Jr. 59; Bambrigge v. Boddeley, 3 
 Macn. & G. 413; Owen v. Homan, 3 
 MacD. »fc G. 378, 4 H. L. R. Cas. 997; 
 Lancashire v. Lancashire, 9 Beav. 120; 
 
 Talbot V. Hope Scott, 4 Kay & J. 96; 
 Parkin v. Seddons, L. R. 16 Eq. 34; 
 De Walt V. Einard, 19 S. C. 286. 
 
 -^Stilioell V. Williams, 6 Madd. 49; 
 Eugnonin v. Bosely, 13 Ves. Jr. 105; 
 Mapes V. Scott, 4 111. App. 268. 
 
 ^ Cases under note 1 above. 
 
 * Graham v. Fuller Electrical Co. 
 75 Ga. 878; United States v. Church of 
 Jesus Christ of L. D. 8. 5 Utah, 361 ; 
 Hlaicacek v. Bohman, 51 Wis. 92; 
 Owen V. Homan, 4 H. L. Cas. 997, 17 
 Jur. 861; Mills v. Pittman, 1 Paige, 
 490; Chamberlain v. Marble, 24 Miss. 
 586; Berry v. Eeen, 51 L. J. Ch. 912. 
 See Rollins v. Henry, 77 N. C. 467. 
 
 ^ Mapes V. Scott, 4 111. App. 268; 
 Lenox v. Notrebe, Hempst. 225. 
 
 « Carrow v. Ferrior, dl L. J. Ch. 569, 
 L. R. 3 Ch. 719; Talboi v. Hope Scott, 4 
 Kay & J. 96, 4 Jur. N. «. 1172, 27 L. J. 
 Ch, 273; Lancashire v. Lancashire, 9 
 Beav. 120, 15 L. J. Ch. N. S. 54; Mor- 
 daunt V. Hooper, Ambl. 311; Dobbin 
 V. Adams, 8 Ir. Eq. 157; Clark v. Dew, 
 
 1 Russ. & M. 103; Knight v. Duplcssis, 
 
 2 Ves. Sr. 360; Toldervy v. Colt, 1 
 Young & C. 621, 5 L. J. Exch. Eq. 
 25.
 
 44 
 
 RECEIVERSHIPS. 
 
 lows : Where the issue is simply a question of title between the 
 plaintiff and defendant and in the absence of fraud, serious injury 
 or imminent danger of loss, the court will refuse to interfere until 
 the plaintiff has lirst established in a common law proceeding his 
 legal right.' In other cases the general rule has been stated that 
 to entitle the plaintiff to relief he must show a reasonable proba- 
 bility of recovery, based on a strong title in himself, and this 
 must be coupled with imminent danger of loss,^ and suit be 
 brought within a reasonable time.' 
 
 (f) Remedy at law. 
 
 "Where the plaintiff may be able to obtain ample redress and 
 protection by the usual course of legal proceedings a court of 
 equity will not appoint a receiver." This of course is based upon 
 the general principle of equity jurisprudence that a court of 
 equity refuses to lend its aid and grant relief where the common 
 law courts can furnish adequate remedy. 
 
 ' See cases in note 1, p. 43 ; also Lhyd 
 V. Passingham, 16 Ves. Jr. 59 ; and see 
 specially Talbot v. Hope Scott, 4 Kay 
 & J. 96; Davis v. Reams, 2 Lea, 649; 
 Vause V. Woods, 46 Miss. 120; Earl of 
 Fingal v. Blake, 2 Moll. 50; SmitJi v. 
 Smith, 2 Younge & C. 351, 10 Hare 
 Appx. Lxxi; Silver v. Bishop of Nor- 
 wich, 3 Swanst. 112 n; Pignoleh v. 
 BusJie, 28 Hows. Pr. 9 ; Eipp v. Hanna, 
 2 Bland's Ch. 26; Harrup v. Winslet, 
 37 Ga. 655; West v. Chosten, 12 Fla. 
 315; Callanan v. Shaw, 19 Iowa, 183. 
 
 * See note 1, p. 43; also Mayo v. Ma- 
 Phaul, 71 Ga. 758; Fingal v. Blake. 2 
 Moll. 78; Lloyd v. Trimleston, 2 Moll. 
 78; Mordaunt v. Hooper, Ambl. 311; 
 Bainbrigge v. Baddeley, 3 Macn. & G. 
 414; Owen v. Homan, 3 Macn. & G. 
 378; Gofer v. Echerson, 6 Iowa, 502; 
 Gregory v. Gregory, 1 Jones & S. 1; 
 Chicago & A. Oil & Min. Co, v. United 
 Stales Petroleum Co. 57 Pa. 83; and 
 see a clear statement of the doctrine 
 of the text by Lord Erskine in Hug- 
 
 nonin v. Basely, 13 Ves. Jr. 105; and 
 see Lord Truro in Bainbrigge v. Bad- 
 deley, ante. 
 
 ^Skiimer's Co. v. Irish Soc. 1 Myl. 
 & C. 162, Commissioners, etc. v. Lock- 
 hart, Ir. R. 3 Eq. 515. 
 
 '^ Pearce v. Jennings, 94 Ala. 524; 
 Pelzer v. Hughes, 27 S. C. 408 (see stat- 
 ute); Baltimore & 0. Teleg. Co. v. In- 
 terstate Teleg. Co. 54 Fed. Rep. 50; 
 Ellershank v. Russell, 6 Australian L. 
 T. (Victoria) 140; Manchester, etc. v. 
 Parkinson, L. R. 22 Q. B. Div. 173, 58 
 L. J. Q. B. 262; Parker v. Moore, 3 
 Edw. Ch. 234; Minkler v. United States 
 Sheep Co. 3 Am. & Eng. Corp. Cas. 
 N. S. 368. 
 
 The court has no right to appoint a 
 receiver merely because under the cir- 
 cumstances of the case it would be a 
 more convenient mode of obtaining 
 satisfaction of a judgment than the 
 usual modes of execution. It is other- 
 wise, however, if there is a threatened 
 fraudulent conveyance to make way
 
 MATTERS RELATING TO THE APPOINTMENT. 45 
 
 § 16. When jurisdiction not entertained. 
 
 Tliere are many cases which are not susceptible of being classi- 
 fied where courts in the exercise of a sound judicial discretion 
 have refused to appoint a receiver, as where the person in posses- 
 sion of the fund or property is not a party to the suit, or where 
 he claims under the plaintiff;' or where the property and owner 
 are beyond the jurisdiction of the court ;' or where the plaintiffs 
 claims are mere open accounts, no liens existing ;' or where the 
 plaintiff is a trust or monopoly engaged in the conduct of busi- 
 ness in restraint of trade ;* or where the receivership is sought to 
 be extended over the future earnings of a judgment debtor ;^ or 
 over a pension fund/ The list of such refusals might be extended 
 indefinitely, but most of such cases are sui generis and do not in- 
 volve general and well established principles and will not be con- 
 sidered. 
 
 § 17. Effects of appointment. 
 
 The results that follow the appointment of a receiver are 
 numerous. Some of the most usual may be enumerated as fol- 
 lows : 
 
 (a.) By the appointment and the taking of possession, through 
 
 with the debtor's property. Harris v. Ch. (Mich.) 169; Buckeye Engine Co. 
 
 BeaucJuunp [1894] 1 Q. B. 801, 63 L. v. Donau Brew. Co. 47 Fed. ilep. 6. 
 
 J. Q. B. 480. It makes no difference in rule that the 
 
 See also Carrow v. Ferrior, L. R. 3 common law proceeding may be diffl- 
 
 Ch. App. 719; Pfeiz v. Pfetz, 14 Md. cult. Cremen\. .Saw^-e5, 8 Ir. Eq. 153, 
 
 376; WinkUr v. Winkler, 40 111. 179 503. 
 
 (Inj.); Coughron v. Swift, 18 111. 414 See also note 2, § 11. 
 
 (Inj.); Sherman v. Clark, 4 Nev. 138; ^Mays v. Wherry, 3 Tenn. ch. 34; 
 
 Parmley v. Tenth Ward Bank, 3 Edw. Levi v. Earrick, 13 Iowa, 344 ; Vinr 
 
 Ch. 395; Corey v. Long. 43 How. Pr. cent v. Parker, 7 Paige, 65. 
 
 497, 12 Abb. Pr. N. S. 427; Rice v. St. ^Field v. Eipley, 20 How. Pr. 26. 
 
 Paul d P. R. Co.24:mQn.4Qi;S2jeights ^Virginia T. & C. Steel & L Co. v. 
 
 V. Peters, ^G'iW.AlQ; Morrisons. Buck- Wilder, 88 Va. 942; Carter \. High- 
 
 ner, Hempst. 442; Sollory v. Leaver, tower, 79 Tex. 135. 
 
 L. R. 9Eq. 22; Thayer v. Swift, Harr. * American Biscuit Co. v. Elotz, 44 
 
 Ch. (Mich.) 430; Cassidy v. Meaeham, Fed. Rep. 721. 
 
 3 Paige, 311 ; Congden v. Lee, 3 Edw. Hlohnes v. Millage [1893] 1 Q. B. 
 
 Ch. 304; Starr v. Rathbone, 1 Barb. 551 (unless they have been assigned). 
 
 70; Smith Y. Thompson, Walk. Ch. 1; * Lucas v. Harris, L. R. 18 Q. B. 
 
 Second Ward Bank v. Upmann, 12 Div. 127, 56 L. J. Q. B. 15. 
 Wis. 499; Steward v. Stevens, Harr.
 
 46 
 
 KECEIVERSHIPS. 
 
 its receiver, of all the property and effects of the defend- 
 ant, the court secures the power to control, at its discretion, all 
 controversies affecting the property. Otherwise the fruits of the 
 receivership would necessarily be endangered, if not entirely 
 lost.' Also the receiver, as a rule, is empowered to prosecute and 
 defend, under the direction of the court, all pending suits and 
 proceedings, in the name of the original plaintiff or defendant.' 
 After the property has passed into the hands of a receiver the 
 defendant whose property is thus taken will not be permitted 
 to be sued, at least so far as liability growing out of the manage- 
 ment of the receivership property is concerned," except in some 
 
 'The property in the receiver's pos- 
 session must not be levied on. Wis- 
 well V. Sampson, 55 U. S. 14. How. 
 52, 14 L. ed. 322; Robinson v. Atlantic 
 & G. W. B. Co. 66 Pa. 160; Walling 
 V. Miller, 108 N. Y. 173; Thompson v. 
 McCleary, 159 Pa. 189; Ellis v. Ver- 
 non Ice, L. & W. Co. 86 Tex. 109; 
 Rusxell V. Texas & P. B. Co. 68 Tex. 
 646; Edicards v. Norton, 55 Tex. 405; 
 nor distrained for rent due; Marshall 
 V. Lockett, 76 Ga. 289; nor taken by 
 force; Ex parte Cochrane, L. R. 20 Eq. 
 282; Re Day, 34 Wis. 638; Atty. Gen. 
 V. St. Cross Hospital, 18 Beav. 601; nor 
 interfered with by ejectment in an- 
 other court; Potter v. Spa Spring 
 Brick Co. 47 N. J. Eq. 442; Fort Wayne, 
 M. &. C. B. Co. V. Mellett, 92 Ind, 
 535; nor taken for taxes; Be Tyler, 
 149 U. S. 164, 37 L. ed. 689. See also, 
 Eowell V. Hough, 46 Kan. 152; St. 
 Joseph & D. C. B. Co. v. Smith, 19 
 Kan. 225; Brown v. Carolina C. B. Co. 
 83 N. C. 128; Skinner v. Maxwell, 68 
 N. C. 400; Noe v. Gibson, 7 Paige, 513. 
 In McOean v. Metroiwlitan Elev. B. Co. 
 133 N. Y. 9, the court say: "No 
 principle has been more f requentJy as- 
 serted or is so well established as that 
 where a court of equity has jurisdic- 
 tion ovtr a cause for any purpose, it 
 may retain the cause for all purposes 
 and proceed to a final determination 
 of all the matters at issue. To such 
 
 an extent has the doctrine been carried 
 that it has been declared that if the 
 controversy contains an equitable 
 feature, or requires any parely equit- 
 able relief belonging to the exclusive 
 jurisdiction of equity, or pertaining 
 to the concurrent jurisdiction of 
 equity and law, and a court of equity 
 thus acquires a partial cognizance of 
 an action, it may go to a complete ad- 
 judication and establish purely legal 
 rights and grant legal remedies which 
 would otherwise be beyond the scope 
 of its authority." See further title Re- 
 ceiver's Possession. But the court 
 will not draw to itself by means of the 
 receivership jurisdiction to try dis- 
 puted titles to property unless the cir- 
 cumstances are such as to render the 
 common law remedies inadequate or 
 for some reason are unfit for the pur- 
 poses of the particular case. Mer- 
 chants & M. Nat. Bank v. Kent, 43 
 Mich. 292. 
 
 '^Phoinix Warehousing Co. v. Badger, 
 6 Hun, 293. 
 
 ^Hicks V. International & G. N. B. 
 Co. 62 Tex. 38; Byan v. Hays, 62 Tex. 
 42; Ohio & M. B. Co. v. Davis, 23 
 Ind. 554; Bell v. Indianapolis C. & L. 
 B. Co. 53 Ind. 57; Metz v. Buffalo, G. 
 & P. B. Co. 58 N. Y. 61 ; Bogers v. 
 Mobile &0.B. Co. 12 Am. & Eng. R. 
 Cas. 442.
 
 MATTERS RELATING TO THE APPOINTMENT. 47 
 
 cases for the purpose of establishing the amount due, or settling 
 some disputed question of fact. 
 
 (b) The appointment of a receiver removes the parties in pos- 
 session of property, who are parties to the suit, from the custody 
 and control thereof and pending the litigation terminates all rights 
 growing out of such possession.* But, as we have seen elsewhere, 
 one in possession under o, jyrhna facie title cannot be deprived of 
 such possession by a receiver at the suit of creditors of the debtor 
 unless a showing is made of danger of the projjerty being lost, 
 or materially injured, or that the sale to the defendant is fraudu- 
 lent, and that he will be turned out of possession at the hearing," 
 The effect of the appointment of a receiver is to vest in him the 
 title to the personal property, choses in action and equitable in- 
 terests of the debtor, over which the receivership extends without 
 a formal assignment.* This principle, of course, has particular 
 application to creditor's proceedings, and not to mortgage fore- 
 closures or other proceedings relating to specific property. In 
 some cases the defendant is permitted to remain in possession 
 pending the receivership and the receivership is extended to the 
 rents and profits only. 
 
 (c) A court having jurisdiction, and having appointed a re- 
 ceiver over the property which is the subject-matter of the suit, 
 and the receiver having taken possession of such property, no 
 other court of co-ordinate jurisdiction can interfere with the 
 property, or entertain complaints against the receiver or remove 
 
 ^ Payne v. Baxter, 2 Tenn. Ch. 517; is not clear and where the ri|^ht of 
 
 Shaw V. Wright, 3 Ves. Jr. 23; Mc- purchase is set up. Bydon v. Innes, 
 
 Donnell v. White, 11 H. L. Gas. 570. 5 W. W. & A. B. (Victoria Eq.) 189; 
 
 The party in possession is bound to Sercomb v. Catlin, 128 111. 556. 
 turn over to the receiver all goods in ^Tillinghast v. Champlin, 4 R. I. 
 
 his possession upon demand if he 173; Albany City Bank v. Schermer- 
 
 knovrs of the order requiring him to liorn, Clark Ch. 297; Mann v. Pentz, 
 
 do so; he needs no official notice. 2 Sandf. Ch. 257; Storm v. Waddell, 
 
 Lewis V. Singleton, 61 Ga. 164. 2 Sandf. Ch. 494; Iddings v. Bruen, 
 
 A court of equity may call in the as- 4 Sandf. Ch. 223; Wilson -v. Allen, ^ 
 
 sets of the estate from the .personal Barb. 542. 
 
 representative, and place them in a As to the necessity of a formal trans- 
 receiver's hands. Davis v. Chainnan, fer of real estate to the receiver, see 
 83 Va. 67. Toung v. Clapp, 147 111. 176; Wilson 
 
 ^Pelzer v. Hughes, 27 8. C. 408. v. Wihon, 1 Barb. Ch. 592; and see § 
 
 Nor will a tenant be required to at- 22 1" f, note 3. 
 torn to a receiver where the tenancy
 
 48 
 
 RECEIVERSHIPS. 
 
 iiim.' The ground upon which this doctrine is based has peculiar 
 application to cases where a receiver is appointed, but is not con- 
 fined to that class of cases. Practice has demonstrated the 
 reasonableness of the rule and reason suggests the propriety of 
 its enforcement. In a few cases there has been a departure from 
 the doctrine, to some extent, but usually it has been from the 
 lack of an observance of the proper comity between state and fed- 
 eral courts. The great weight of authority, however, is in favor 
 .of the rule. 
 
 (d) The appointment does not in any manner change the title 
 to or right of possession of the property, but merely places in 
 the receiver its custody for the benefit of the party ultimately 
 found to be entitled to it.'' The receiver is a trustee for all parties 
 
 ' Young v. Montgomery & E. R. Co. 
 2 Woods, 606; O'Mahoney v. Belmont, 
 '62 N. Y. 133 ; Slate v. Jacksonville P. 
 & M. B. Co. 15 Fla. 201 ; Oest v. New 
 Orleans, St. L. & G. R.Co. 30 La. Ann. 
 pt. I, 28; Ellis v. Vernon Ice, L. & W. 
 Co. 86 Tex. 109. In this case an 
 officer made a levy before the appoint- 
 ment of a receiver, and sold the prop- 
 erty after the appointment. Held, the 
 sale was void. 
 
 Walling v. Miller, 108 N. Y. 173; 
 Nelson v. Conner, 6 Rob. (La.) 339; 
 Wiswally. Sampson, 55 U. S. 14 How. 
 52, 14 L. ed. 322. See contra, Chau- 
 tauqua Bank v. Risley, 19 N. Y. 369. 
 
 Although the proceedings for the 
 appointment of a receiver were er- 
 roneous, yet if they were not void 
 the possession of the receiver is legal, 
 and he cannot be dispossessed at the 
 suit of another receiver subsequently 
 appointed by a court of coordinate 
 jurisdiction. Bonner v. Hearne, 75 
 Tex. 142. 
 
 See also: Reynolds v. Stockton, 140 
 U. S. 254, 35 L. ed. 464. 43 N. J. Eq. 
 211; Young v. Rollins, 85 N. C. 485; 
 McCarthy v. Peake, 18 How. Pr. 138, 
 9 Abb. Pr. 164; Watkins v. Pinkney, 
 :3Edw. Ch. 533; Storm v. Waddell, 2 
 
 Sandf. Ch. 494; Qaylord v. Fort 
 Wayne, M. & C. R. Co. 6 Biss. 286; 
 Conkling v. Butler, 4 Biss. 22; Bill v. 
 New Albany, &c. R. Co. 2 Biss. 390; 
 Union Trust Co. v. Rockford, R. I. & 
 St. L. R. Co. 6 Biss. 197; Beecher v. 
 Bininger, 7 Blatchf. 170; Piatt v. 
 Archer, 9 Blatchf. 559; Sedgwick v. 
 Menck, 6 Blatchf. 156, 1 Bank Reg. 
 230; Spinning v. Ohio L. Ins. Co. 2 
 Disney, 336; Judd v. Bankers & M. 
 Teleg. Co. 31 Fed. Rep. 182; Davis v. 
 Alabama & F. R. Co. 1 Woods, 661 ; 
 Hutchinson v. Green, 6 Fed. Rep. 833; 
 Bruce v. Manchester & K. R. Co. 19 
 Fed. Rep. 342; May v. Printup, 59 
 Ga. 129; Re Clark, 4 Ben. 88; Liggett 
 v. Glenn, 4 U. S. App. 438, 51 Fed. 
 Rep. 381. But see Wilmer v. Atlanta 
 & R. Air Line R. Co. 2 Woods, 409; 
 Merchants & P. Nat. Bank v. Masonic 
 Hall Trustees, 63 Qa. 549; South Caro- 
 lina R. Co. V. People's Sav. Inst. 64 
 Ga. 18; East Tennessee & G. R. Co. v. 
 Atlanta & F. R. Co. 49 Fed. Rep. 608, 
 15 L. R. A. 109; Eisenmann v. Thiel, 
 1. Cin. Sup. Ct. 188; Re Merchants 
 Ins. Co. 3 Biss. 162. 
 
 ^ Union Nat. Bank v. Bank of Kan- 
 sas City, 136 U. S. 223, 34 L. ed. 341; 
 Owen V. Kellogg, 56 Hun., 455; Na-
 
 MATTERS RELATING TO THE APPOINTMENT. 
 
 49 
 
 concerned, and his appointment being remedial in its nature is 
 effective simply as conserving and enforcing the rights of parties. 
 
 tional Exch. Bank v. Beal, 50 Fed. 
 Rep. 355; Skip v. Harioood, 3 Atk. 
 564; Anon. 2 Atk. 15; Pringlev. Wool- 
 worth, 90 N. y. 502; Wiswallv. Samp- 
 son, 55 U. S. 14 How. 52, 14 L. ed. 
 322; AUy. Gen. v. Atlantic & Mut. L. 
 Ins. Co. 100 N. Y. 21^; Ellis v. Boston, 
 E. d E. R. Co. 107 Mass. 1 ; Maynard 
 y.Bond, 67 Mo. 315; Herman v . Fisher, 
 11 Mo. Mo. App. 275; Portman v. 
 Mill, 8 L. J. N. 8. Ch. 161 ; Detroit 
 First Nat. Bank v. Barnum Wire <& 1. 
 Works, 60 Mich. 487. 
 
 As a rule the receiver takes no title 
 to the property. Matthews v. Cooper, 
 49 N. Y. S. R. 792. 
 
 The receiver is the hand of the law 
 and the law conserves and enforces 
 rights — never destroys them. His ap- 
 pointment determines no right and in 
 no way affects the title of any party to 
 the property in litigation. Von Roun 
 V. San Francisco Sup. Ct. 58 Cal. 358. 
 He holds the property subject to all 
 liens of every kind. 
 
 "While property is in the hands of a 
 receiver, or under the control of the 
 court, no execution can be levied upon 
 it; but the^. fa. creates a lien thereon. 
 Davis V. Bonney, 89 Va. 755. 
 
 A receiver is an officer of the court, 
 but his appointment determines no 
 right, nor does it affect the title of the 
 property in any way; it will not pre- 
 vent the running of the statute of 
 limitations. His holding is the hold- 
 ing of the court for him from whom 
 the possession was taken. He is ap- 
 pointed on behalf of all parties and 
 if any loss arises from deficiency in his 
 accounts the estate must bear it. Elli- 
 cott V. United States Ins. Co. 7 Md. 307. 
 
 If the appointment of a receiver in- 
 terferes with the rights of a stranger 
 
 to the suit, he may apply to the court 
 for the protection of his rights, though 
 he cannot have the benefit of the 
 receivership. Howell v. Ripley, 10 
 Paige, 43. 
 
 A receiver of the effects of an in- 
 solvent auctioneer was appointed. 
 The auctioneer had sold goods for a 
 party and with his knowledge and 
 consent deposited the money arising 
 therefrom to his general account at 
 the bank. After the appointment 
 and notice thereof to the bank, the 
 auctioneer drew a check in favor of 
 this principal for the amount due him 
 and gave him an assignment of an 
 amount on demand equal to the 
 amount of the check. Held, that the 
 principal thereby gained no right to 
 the moneys on deposit, nor of action 
 against the bank. All title to the 
 moneys passed to the receiver on the 
 day of his appointment and by virtue 
 thereof. Levy v. Cavanagh, 2 Bosw, 
 100. 
 
 See Ex parte Dunn, 8 S. C. 207; 
 Beverley v. Brooke, 4 Gratt. 187; 
 Southern Bank v. Ohio Ins. Co. 22 
 Ind. 181; Montgomery v. Merrill, 18 
 Mich. 338; Van Alstyne v. Cook, 25 N. 
 Y. 489; Davenport v. Kelly, 42 N. Y. 
 193; Gerey. Dibble, 17 How. Pr. 31; 
 Becker v. Torrance, 31 N. Y. 631; 
 Crine v. Davis, 68 Ga. 138; State v, 
 Snohomish County Super. Ct. 7 Wash. 
 77; State v. Chehalis County Super. 
 Ct. 8 Wash. 210. 
 
 The appointment of a receiver in a 
 suit to foreclose a mortgage against a 
 lessee will not deprive the lessor of the 
 right to obtain possession of the prem- 
 ises under the forcible entry and de- 
 tainer statute. Woodward y. Wineldll 
 (Wash.) 44 Pac. 860.
 
 60 
 
 RECEIVERSHIPS. 
 
 (e) The right to custody of property relates to the custody of 
 such personal property as is within the jurisdiction of the court 
 making the appointment.' The general doctrine is that the pow- 
 ers of a receiver over the property of the defendant are coexten- 
 sive only with the jurisdiction of the court making the ajjpoint- 
 ment, it being the policy of every government to retain in its owq 
 hand the property of a debtor until all domestic claims against it 
 have been satisfied.* But courts on the ground of comity are dis- 
 posed to permit suits to be brought by a foreign receiver where 
 such suits do not affect the rights of citizens of the state where 
 suit is brought.' This principle of comity is in accordance with 
 
 ^Humphrey v. Hopkins, 81 Cal. 551, 
 6 L. R. A. 792; Booth v. Clark, 58 U. 
 S. 17 How. 322, 15 L. ed. 164; Farm- 
 ers', etc. V. Needles, 52 Mo. 1; Tully v. 
 Eerrin, 44 Miss. 626; Kronberg v. El- 
 der, 18 Kan. 150; Mosehy v. Burrows, 
 62 Tex. 396; Ilunt v. Columbian Ins. 
 Co. 55 Me. 290; Filkins v. Nunne- 
 macJier, 81 Wis. 91; McClure v. Camp- 
 bell, 71 Wis. 350. 
 
 ^Chicago, M. & St. P. R. Co. v. Keo- 
 kuk N. L. Packet Co. 108 111. 317. But 
 where a receiver has reduced the prop- 
 erty to his possession, and in the 
 course of his business as such receiver 
 takes the property into a foreign ju- 
 risdiction he may defend his title to 
 such property as against attaching 
 creditors of such foreign jurisdiction, 
 on the ground that where a legal title 
 to personal property has once passed 
 and become vested in accordance with 
 the law of the state where situated the 
 validity of such title will be recog- 
 nized everywhere. Cammell v. Sewell, 
 5 Hurlst. & N. 728; Mostby v. Burrow, 
 52 Tex. 396; Clark v. Connecticut Peat 
 Co. 35 Conn. 303; Taylor v. Board- 
 man, 25 Vt. 581; Crapo v. Kelly, 83 
 U. S. 16 Wall. 610, 21 L. ed. 430; 
 Waters v. Barton, 1 Coldw. 450; Pond 
 V. Cooke, 45 Conn. 126; Cagill v. Wool- 
 dridge, 8 Baxt. 580; Killmer v. Eobart, 
 
 58 How. Pr. 452; Brownell v. Manches- 
 ter, 1 Pick. 232; McAlpin v. Jones, 10 
 La. Ann. 552; Low v . Burrows, 12 Cal. 
 181; Lewis v. Adams, 70 Cal. 403; 
 Boyle v. Townes, 9 Leigh. 158; Singerly 
 V. Fox, 75 Pa. 114. See contra, Hum- 
 phrey V. Hopkins, 81 Cal. 551, 6 L. R. 
 A. 792; not, however, if the taking of 
 such property to a foreign jurisdic- 
 tion is for an illegal purpose. Dick 
 V. Bailey, 2 La. Ann. 974; Drake, 
 Attach. (5th ed.) § 292. 
 
 Courts are sometimes enabled to 
 reach property of a defendant in a 
 foreign jurisdiction by injunction 
 where the owner of such property is 
 a resident and subject to the jurisdic- 
 tion of the court and amenable to its 
 orders. Mitchell v. Bunch, 2 Paige, 
 606; Roberdeau v. Rous, 1 Atk. 544; 
 Booth v. Clark, 58 U. S. 17 How. 322, 
 15 L. ed. 164; St. Joseph & D. G. R. 
 Co. V. Smith, 19 Kan. 225; Meredith 
 Village Sav. Bank v. Simpson, 22 Kan. 
 414. See Young v. Clapp, 147 111. 
 176; Hoyt v. Thompson, 5 N. Y. 320; 
 Hoyt V. Thompson, 19 N. Y. 207; Wil- 
 litts V. Waite. 25 N. Y. 577. 
 
 ^Olney v. Tanner, 10 Fed. Rep. 101; 
 Merchants Nat. Bank v. McLeod, 38- 
 OhioSt. 174; Hurd^. City of Elizabeth, 
 41 N. J. L. 1; Hunt -v. Columbian Ins. 
 Co. 55 Me. 290; Saunders v. Williams, 5-
 
 MATTERS RELATING TO THE APPOINTMENT. 
 
 51 
 
 the genius of our government and is gradually becoming more 
 firmly established as part of the system of national jurisprudence, 
 and its recognition by courts fosters and sustains the unity and 
 harmony that should everywhere prevail and especially so in all 
 matters pertaining to property rights and commercial relations. 
 The tendency in England, and in this country, as will be seen 
 elsewhere, is in the direction of a recognition of the validity of 
 the transfer of personal property by the owner at the place of his 
 domicil, voluntary or by operation of law, as being effective in 
 all jurisdictions no matter where the property may be located. 
 
 (f) The eifect of the appointment of a receiver is to leave the 
 rights of all parties as they are found at the time of the appoint- 
 ment, with respect to existing contracts, mortgages, liens, etc., 
 out of which their rights have arisen.* This principle is universal 
 
 N. H. 213; Bagby v. Atlantic M. & 0. 
 B. Co. 86 Pa. 291; Johnson v. Barker, 
 4 Bush, 149; Taylors. Columbian Ins. 
 Co. 14 Allen, 353; Bierce v. O'Brien, 
 129 Mass. 814. See note in Alley v. 
 Caspari,^ Am. St. Rep. 178,80 Me. 234. 
 A receiver of an insolvent railroad 
 corporation was appointed in Ken- 
 tuclcy, pending suits upon mortgages 
 of the road and its equipments, in- 
 cluding certain rolling-stock, which 
 was included in the property of which 
 the receiver had been ordered to take 
 possession. Held, that upon princi- 
 ples of interstate comity, the receiver 
 would be allowed to institute, in Ohio, 
 proceedings to obtain possession of 
 the rolling stock, notwithstanding the 
 atlachment. Merchants Nat. Bank v. 
 McLeod, 38 Ohio St. 174; Eobnes v. 
 Sherwood, 3 McCrary, 405, 16 Fed. 
 Rep. 725; Boulware v. Davis, 90 Ala. 
 207, 9 L. R. A. 601; Bvgh v. Hurtt, 52 
 How. Pr. 22; Re Waite, 99 N. Y. 433; 
 Metzner v. Bauer, 98 Ind. 425; Ly- 
 coming F. Ins, Co. v. WrigJit, 55 Vt. 
 52G; Bidlock v. Mason, 26 N. J. Eq. 
 230; National Trust Co. v. Miller, 33 
 N. J. Eq. 155; Uenning v. Raymond, 
 35 Minn. 303. 
 
 ' Central Trust Co. v. Wabash, St. L. 
 & B. R. Co. 46 Fed. Rep. 26; Knee- 
 land V. American Loan & T. Co. 136 
 U. S. 89, 34 L. ed. 379; Hoffman v. 
 Schoyer, 143 111. 598; Cox v. Volkeri, 86 
 Mo. 505; Kirkpatrick v. McElroy, 41 
 N. J. Eq. 539; Mulcahey v. Strauss, 
 151 111. 70. 
 
 A receiver to sequestrate the prop- 
 erty of a corporation and apply it to 
 the payment of corporate debts cannot 
 question the validity of a mortgage 
 executed by the corporation to secure 
 the debt of its president, where none 
 of the creditors represented by him 
 were such at the execution of the 
 morgtage. Osborn v. Montelac Bark, 
 89 Hun, r.7, 35 N. Y. Supp. 610. 
 
 A receiver's possession is subject to 
 all valid and existing liens upon the 
 property at the time of his appoint- 
 ment, and does not devest a lien pre- 
 viously acquired in good faith. Chic- 
 ago Title & T. Co. v. Smith. 158 111. 
 417, 41 N. E. 1076. 
 
 A transfer to a trustee of accounts 
 belonging to a corporation, duly made 
 and noted on the books of the corpo- 
 ration under authority of the board 
 of directors and accepted by the
 
 $2 
 
 RECEIVERSHIPS. 
 
 in its application and in the verj nature of equity jurisprudence 
 could not be otherwise. The adjudication of the rig-hts of parties 
 and the application of adequate remedies through the instrument- 
 ality of courts, is fundamental in its nature. The contractual re- 
 lations of parties fairly made and duly ascertained are not subject 
 to judicial modification or change. 
 
 (g) The rights of the receiver date back to the time of grant- 
 ing the order/ though it has been held that tiie date of filing the 
 
 trustee In writing, with notice from 
 him to the parties whose accounts are 
 assigned, and also to the persons for 
 whom he is acting as trustee, is suffi- 
 cient to vest in the trustee the right to 
 the money derived from the accounts, 
 although on the same day, but subse- 
 quent to such transfer, a bill was tiled 
 for the appointment of a receiver and 
 the winding up of the affairs of the 
 corporation. Chicago Title & T. Co. 
 V. Smith, 153 111. 417, 41 N. E. 
 1076. 
 
 The right of the assignee in bank- 
 ruptcy of a firm to bring any and all 
 suits which concern the estate or trust 
 is not affected by the appointment of 
 a receiver of the property of an in- 
 dividual holding assets of the firm in 
 trust, and the passing of the legal 
 title to such receiver. Shainicald v. 
 Davids (D. C. N. D. Cal.) 69 Fed. 
 Rep. 687. 
 
 A judgment creditor is not affected 
 by the appointment of a receiver for 
 the debtor in proceedings to which he 
 was not a party and in which he was 
 not required to intervene. Central 
 Coal cfe 0. Co. V. Southern Nat. Bank 
 (Tex. Civ. App.) 34 S. W. 383. 
 
 A motion for authority to levy upon 
 property in the hands of a receiver 
 will not be granted except upon no- 
 tice to the claimants of the property 
 who are parties to the original suit, as 
 notice to the receiver is not notice to 
 
 them. Re Hall <& S. Co. (C. C. S. D. 
 Cal.) 69 Fed. Rep. 425. 
 
 The lien of a judgment against a 
 corporation, obtained after the ap- 
 pointment of a receiver, but before 
 the filing of his official bond, is not 
 destroyed by the filling of such bond 
 although his title dates back to the 
 time of the appointment for the pres- 
 ervation and protection of the prop- 
 erty, where the judgment would have 
 been rendered before his appointment 
 but for the interposition of a frivolous 
 demurrer. Be Lewis & F. Mfg. Co. 
 (Sup. Ct.) 34 N. Y. Supp. 983. 
 
 One who purchases property at a 
 time when all the property of the 
 grantor is subject to a judgment lien 
 is, as against a receiver subsequently 
 appointed over the grantor's property, 
 entitled to have the remainder of the 
 property in his hands subjected to 
 the lien in exoneration of that pur- 
 chased by him. Scrapie v. Eubanks 
 (Tex. Civ. App.) 35 S. W. 509. 
 
 ^Pope v. Ames, 20 Or. 199; Ex parte 
 Tillman, 93 Ala. 101; Bonner v. 
 Eearne, 75 Tex. 242; Be Christian 
 Jensen Co. 128 N. Y. 550; Steele v. 
 Sturges, 5 Abb. Pr. 442; Butter v. 
 Tallis. 5 Sandf. 610; Be Schuyler's 
 Steam Tow Boat Co. 136 N. Y. 168, 20 
 L. R. A. 391; Clinkscales v. Pendleton 
 Mfg. Co. 9 S. C. 318; Begenstein v. 
 Pearlstein, 30 S. C. 192; Maynard v. 
 Bond, 67 Mo. 315; Ex parte Evans, L.
 
 MATTERS RELATING TO THE APPOINTMENT. 
 
 53 
 
 bill fixes the rights of the parties.' "While there is not entire 
 harmony in the decisions the weight of authority undoubtedly is 
 that the order appointing the receiver fixes the date from which 
 the property is regarded as being in custodia legis, and from 
 which time it is not subject to levy of execution or attachment* 
 The receiver's right to possession, however, as well as his right to 
 sue are dependent on his giving bond as required by the order of 
 appointment.' 
 
 (h) The projDerty over which the receivership extends varies ac- 
 cording to the nature of the proceeding. Sometimes, as in the case 
 of mortgage foreclosures, it merely extends to the rents and pro- 
 fits of the mortgaged premises, sometimes to the whole property 
 as in partnerships, corporations, etc., and sometimes to only suffi- 
 cient property to satisfy the demand of encumbrancers.* The or- 
 der making the appointment should be specific as to the property 
 intended to be embraced in the receivership.* This is necessary 
 in order that the receiver may be protected, and as notice to third 
 parties. 
 
 R. 13 Ch. Div. 252; Re Birt, L. R. 22 
 Ch. Div. 604; Wickena v. Toiinshend, 
 1 Russ. & M. 361. 
 
 ^Fogg V. Supreme Lodge of JJ. 0. of 
 G. T. 159 Mass. 9. 
 
 An order appointing a receiver can- 
 not, as against strangers to the suit 
 not notified of the application for the 
 order, relate back to the commence- 
 ment of the action in which it is made. 
 Artisans Bank v. Treadicell, 34 Barb. 
 553; Phillips v. Smoot, 1 Mackey, 478. 
 But see Farmers' Bank v. Beaston, 7 
 Gill & J. 421. 
 
 If by an order of court the matter 
 of appointment is referred to a mas- 
 ter, and on the coming in of his re- 
 port recommending an appointment, 
 an order of appointment is made, the 
 first order is regarded as being the 
 date from which the receiver's rights 
 are to be determined. liutter v. Tal- 
 lis, 5 Sandf. 610. 
 
 ^See note 1 above. Contra: Farmers' 
 Bank v. Beaston, 7 Gill & J. 421; De 
 Fries v. Creed, 34 L. J. Ch. N. S. 007; 
 
 Edioards v. Edwards, L. R. 2 Ch. Div. 
 291; Woods v. Ellis, 85 Va. 471. 
 
 ^De Fries v. Creed, 34 L. J. Ch. N. 
 S. C07; Edwards v. Edwards, L. R. 2 
 Ch. Div. 291; Johnson v. Martin, 1 
 Thomp. & C. 504; Morgan v. Potter, 
 17 Hun, 403; Contra, Ex parte Evans, 
 L. R. 13 Ch. Div. 252. 
 
 Where the receiver is ordered to 
 sue, and has done so, and there is an 
 entire want of showing as to his hav- 
 ing given bond, the court will pre- 
 sume that he has complied with the 
 order in this regard. Hedgewisch v. 
 Silver, 140 N. Y. 414. 
 
 *Magrath v. Veitch, 1 Hog. 110; ^ 
 ScJiuyler Steam Toic Boat Co. 43 N. Y. 
 S. R. 163; Showalter v. Laredo Improv. 
 Co. 83 Tex. 162. In a railroad fore- 
 closure the receiver has no custody or 
 control except of the property covered 
 by the mortgage. Smith v. McCul- 
 lough, 104 U. S. 25, 20 L. ed. 637. 
 
 ^Crow V. Wood, 13 Beav. 271; 0' Ma- 
 honey v. Belmont, 02 N. Y. 133.
 
 54 
 
 RECEIVERSHIPS. 
 
 § 18. Courts exercising jurisdiction. 
 
 As a rule courts of original and general jurisdiction only may 
 exercise the power to appoint receivers,' though in some cases 
 appellate courts have been authorized to exercise such power." 
 The power to appoint receivers both in this country and in Eng- 
 land was originally exercised by the courts of chancery as long 
 as they continued to exist, as such, as distinguished from the com- 
 mon law courts, but since the abolition of the chancery courts, the 
 common law courts, exercising chancery jurisdiction, have suc- 
 ceeded to their powers, the remedy remaining as before peculiarly 
 an equitable remedy, and, except where modified by statute, gov 
 erned in all respects by the rules and principles of chancery 
 courts,' 
 
 The application may be heard in chambers,* or by a judge in 
 
 ^Potter V. Merchants Bank, 28 N. Y. 
 641; Fredenheim v. Bohr, 87 Va. 764; 
 Virginia, T. & C. Steel <& I. Co. v. 
 Wilder, 88 Va. 943; Bitting v. Ten 
 Eyck, 85 Ind. 357; Folsom v. Evans, 5 
 Minn. A18; Bank of Mississippi v. Dun- 
 can, 52 Miss. 740; Scott v. Searles, 5 
 Smedes & M. 25; Second Ward Bank 
 V. Uj}mann, 12 Wis. 499. In Illinois, 
 a judge in vacation cannot appoint a 
 receiver. Hammock y. Farmers' Loan 
 & T. Co. 105 U. S. 77, 26 L. ed. 1111. 
 
 ^State V. Exchange Bank, 34 Neb. 
 198; State v. Commercial Slats Bank, 
 28 Neb. Ql'l;Westv. Weaver. 3 Heisk. 
 589; Kerr v. White, 7 Baxt. 394, but 
 see Pacific R. Co. v. Ketchum, 95 U. 
 S. 1, 24 L. ed. 347; Ex parte Smith, 23 
 Ala. 94. 
 
 ^The jurisdiction is based on the 
 inadequacy of the courts of ordinary 
 jurisdiction. Barbour v. National Ex- 
 change Bank, 45 Ohio St. 183. 
 
 As to English statute relating to 
 courts, and particularly to appoint- 
 ment of receivers, see Supreme Court 
 of Judicature Act 1873, 36 & 37 Vict, 
 chap. 66, § 25, par. 8. The United 
 States courts continue to exercise 
 chancery jurisdiction and are gov- 
 
 erned by the principles and practice, 
 to a large extent, of the English court 
 of chancery. Payne v. Rook, 74 U. 
 S. 425, 19 L. ed. 260. See National 
 Banks, Chap, 13. 
 
 As to state courts, see Statutes and 
 Codes of Procedure. 
 
 The appointment is provisional in 
 its nature and an auxiliary proceed- 
 ing. Bufkin V. Boyce, 104 Ind. 53; 
 Eottenstein v. Conrad, 9 Kan. 435; 
 Chicago & A. Oil & Min. Co. v. United 
 States Petroleum Co. 57 Pa. 83. 
 
 To appoint receivers is an ordinary 
 exercise of appropriate chancery ju- 
 risdiction ; and to enforce the bond re- 
 quired from a receiver is a matter in- 
 cidental and ancillary to the appoint- 
 ment, and may appropriately be in- 
 trusted to a court of general chancery 
 powers. Bank of Mississipjn v. Bun- 
 can, 52 Miss. 740. 
 
 The right to appoint a receiver and 
 to vacate the appointment is referable 
 solely to the power which the courts 
 exercise as courts of chancery. Fol- 
 som V. Evans, 5 Minn. 418. 
 
 *Ex parte Fletcher, 6 Ves, Jr. 427; 
 Ex parte Pincke, 2 Meriv. 452; Real 
 Estate Associates v, San Francisco
 
 MATTERS RELATING TO THE APPOINTMENT. 
 
 55 
 
 vacation/ or in open court. Under the earlier practice in this 
 country and in England the matter of appointment was referred 
 to a master in chancery who was directed to hear the application, 
 
 Super. Ct. 60 Cal. 223. Not in vaca- 
 tion, however, by a judge, the court 
 not being in session. Newman v. 
 Hammond, 46 Ind. 119. 
 
 ' Clark V. Raymond, 84 Iowa, 257. 
 
 Under Miss. Code of 1880, a circuit 
 judge has no power to appoint a re- 
 ceiver in a case pending in the chan- 
 cery court, either in vacation or in 
 term time. Alexander v. Manning, 
 68 Miss. 634. 
 
 Under N. C. Acts 1877, chap. 223. 
 modified by 1879, chap. 63, motions for 
 the appointment of a receiver may be 
 made before the resident judge of the 
 district, or one assigned to the dis- 
 trict, or one holding the courts there- 
 of by exchange, at the option of the 
 mover. Corbin v. Berry, 83 N. C. 27. 
 
 Under the constitution and laws of 
 Florida, a receiver cannot be ap- 
 pointed by the judge of one circuit to 
 talie possession of property in another. 
 State v. JacksoiwiUe & P. M. R. Co. 15 
 Fla. 201. 
 
 An order appointing a receiver un- 
 der the N. Y. act of 1848, chap. 26, 
 could be entered by the justice mak- 
 ing it, at any term of the court, in the 
 Bame manner as other orders. Stewart 
 V. Beebe, 28 Barb. 34. 
 
 In Indiana a judge has no power to 
 appoint a receiver during vacation, 
 nor has a clerk any power to approve 
 a receiver's bond in vacation. New- 
 man v. Hammond, 46 Ind. 119. 
 
 For a full discussion of the power 
 of courts in vacation see article by 
 Mr. Duwalt in Chicago Legal News, 
 vol. xxviii., p. 414. 
 
 Where a receiver was appointed by 
 the chancellor upon a creditor's bill, 
 and several other bills were filed be- 
 fore the vice-chancellor by creditors 
 
 of the same debtor, in which suits the 
 receiver in the first suit was made re- 
 ceiver, — held, that the direction as to 
 distribution of the fund belonged to 
 the chancellor. Burrall v. Leslie, 6 
 Paige, 445. 
 
 A change of venue carries with it 
 the appointment of a receiver, and the 
 receiver appointed is the receiver of 
 the court to which the case is taken. 
 Ex parte Haley, 99 Mo. 150. 
 
 A judge in vacation, in Illinois, can- 
 not appoint. Hammock v. Farmers' 
 Loan & T. Co. 105 U. S. 77, 26 L. ed. 
 1111. 
 
 A court commissioner has no juris- 
 diction to appoint a receiver, and a 
 bond given by a receiver so appointed 
 is void. Quiggley v. Trumbo,5Q Cal. 626. 
 
 Where a master is directed to ap- 
 point a receiver, his report of the ap- 
 pointment needs no order of con- 
 firmation ; and such a report cannot 
 be excepted to. Be Eagle Iron Works, 
 8 Paige, 385. 
 
 The words court, judge, and judge 
 in vacation are synonymous. Press- 
 ley V. Lamb, 105 Ind. 171. But see, 
 Hammock v. Farmers' Loan & T. Co. 
 105 U. S. 77, 26L. ed. 111]. 
 
 The powers of the courts of Indiana 
 in appointing receivers are the same 
 under the code as under the general 
 rule of equity. The power will be 
 exercised for the same purposes, and 
 in the same emergencies. Bitting v. 
 Ten Eyck, 85 Ind. 357. 
 
 A receiver may be appointed by the 
 judge in vacation under the Texas 
 statute giving the "judge," and not 
 the "court," power to appoint re- 
 ceivers. New Birmingham Iron & L. 
 Co. V. Blevins (Tex. Civ. App.) 34 S. 
 W. 828.
 
 66 
 
 RECEIVERSHIPS. 
 
 and make a recommendation as to the propriety of granting the 
 same as well as the proper persons to be appointed.' 
 
 § 19. Conflict of jurisdiction. 
 
 As a general rule one court will not interfere with the juris- 
 diction of another court, when the latter has full power to act 
 and do complete justice." Where two persons on the same day 
 
 ^ Re Eagle Iron Works, 8 Paige, 385; 
 Wynne v. Lord Neicboroiigh, 15 Ves. 
 Jr. 283; Tharpe v. Tharpe, 12 Ves. Jr. 
 317; Wilkins v. Williams, 3 Ves. Jr. 
 588; Anon. 3 Ves. Jr. 515; Oarland v. 
 Oarland, 2 Ves. Jr. 137; Thomas v. 
 Dawkin, 1 Ves. Jr. 452; Creuze v. Lon- 
 don, 2 Prov. C. C. 253. And when 
 the master on due investigation has 
 made his recommendation, the court 
 requires strong ground to interfere 
 therewith. lie Eagle Iron Works, 
 ante; Tharpe v. Tharpe, ante, and fur- 
 ther cases above cited in this note. 
 
 2 Union Trust Co. v. Roekford, R. I. 
 &St.L. R. Co. 6 Biss. 197; Gaylordv. 
 FortWayne, M. <& C. R. Co. 6 Biss. 
 286; Conklin v. Butler, 4 Biss. 22; Bill 
 V. New Albany & G. R. Co. 2 Biss. 
 390; Beecher v. Bininger, 7 Blatchf. 
 170; Sedgicick v. Menck, 6 Blatchf. 158; 
 Storm, v. Waddell, 2 Sandf. Ch. 494; 
 Watkina v. Pinkney, 3 Edw. Ch. 
 533 ; Bruce v. Mancliester & E. R. Co. 
 19 Fed. Rep. 342; Judd v. Batikers & 
 M. Teleg. Co. 31 Fed. Rep. 182; Davis 
 V. Alabama & F. R. Co. 1 Wood, 661; 
 Hutchinson v. Oreen, 6 Fed. Rep. 833; 
 Spinning v. Ohio L. Ins. & T. Co. 2 
 Disney, 336; Re Clark, 4 Ben. 88; Re 
 Eulst, 7 Ben. 17; Liggett v. Glenn, 4 
 U. S. App. 438; Milwaukee & St. P. R. 
 Co. V. Milwaukee & M. R. Co. 20 Wis. 
 165. The cases are not uniform, how- 
 ever, some holding that the institu- 
 tion of the suit, and the appointment 
 of a receiver confers jurisdiction, and 
 Bome holding that these must be fol- 
 lowed by actual possession in order to 
 confer exclusive jurisdiction. East 
 
 Tennessee, V. & G. R. Co. v. Atlanta cfe 
 F. R. Co. 49 Fed. Rep. 608, 15 L. R. 
 A. \Q^;Wilmer v. Atlanta & Air Line 
 R. Co. 2 Woods, 409. The weight of 
 authority, and reason, it would seem, 
 as well, are in favor of the doctrine 
 that when a court has taken cogniz- 
 ance of a controversy, it should, as a 
 matter of right, have jurisdiction for 
 all purposes including the right of 
 possession or control of the res. The 
 contrary doctrine may, and often has, 
 given occasion for criticism of courts 
 for unseemly rivalry and undue haste 
 in obtaining possession of property 
 forming the subject of litigation. The 
 supposed advantage of controling the 
 receivership sometimes manifested by 
 litigants clearly should cease with 
 the entry of the order of appointment. 
 This, of course, presupposes that the 
 interested parties are properly in 
 court. See also, Nothard v. Proctor, 
 L. R. 1 Ch. Div. 4, 45 L. J. Ch. 302; 
 Bonner v. Eearne, 75 Tex. 242. 
 
 Where, under the provisions of New 
 York Laws 1880, chap. 537, a court of 
 one judicial district has power to re- 
 move a receiver appointed in an ac- 
 tion pending in another judicial dis- 
 trict, it has no power to appoint a 
 successor. For this purpose the pro- 
 ceedings must be remitted to the dis- 
 trict in which the action is pending. 
 Attrill V. Rockaway Beach Improv. 
 Co. 25 Hun, 376; McCarthy v. Peake, 
 18 How. Pr. 138, and see, Bill v. 
 New Albany, 2 Biss. 390; O'Ma- 
 hony V. Belmont, 5 Jones & S. 380; 
 Young v. Rollins, 85 N. C. 485.
 
 MATTERS RELATING TO THE APPOINTMENT. 
 
 57 
 
 are appointed receivers it must be determined as a legal rights 
 which is entitled to receive the assets, and the legal right is de- 
 termined by the priority of judicial action, without regard to the 
 time of verification of the papers, or the time of actually getting 
 possession of the assets,' and fractions of a day may be taken into 
 consideration.'^ The court first acquiring jurisdiction will retain 
 jurisdiction for the purposes of administering the estate.' 
 
 ^People V. Central City Bank, 53 
 Barb. 412; Re Schuyler's Steam Tow 
 Boat Co. 136 N. Y. 169. 20 L. R. 
 
 A. 391 ; Heidritter v. Elizabeth Oil Cloth 
 Co. 112 U. S.294, 28 L. ed. 730; TJiiion 
 Trust Co. V. Rockford, R. 1. & St. L. 
 
 B. Co. 6 Biss. 197; Steele v. Sturges, 5 
 Abb. Pr. 442- Texas Trunk B. Co. v. 
 Lewis, 81 Tex. 1. 
 
 Of two courts of concurrent juris- 
 diction the one whose jurisdiction 
 first attaches acquires exclusive con- 
 trol of all controversies respecting it, 
 involving substantially the same in- 
 terests, and the possession of a receiver 
 is the possession of the court appoint- 
 ing him, and cannot be divested by a 
 court of co-ordinate jurisdiction. 
 Bruce v. MancJiester & R. B. Co. 19 
 Fed. Rep. 342. 
 
 As to conflict of jurisdiction be- 
 tween courts, see Gest v. Neic Orleans, 
 St. L. & C. B. Co. 30 La. Ann. pt. 
 1, 28; Jennings v. Philadelphia & R. R. 
 Co. 23 Fed. Rep. 569; Osborn v. Reyer, 
 2 Paige, 342; Pue Mersey R. Co. L. R. 
 37 Ch. Div. 610. 
 
 A receiver appointed by a state 
 court, but who has not qualified until 
 after the United States marshal has 
 assumed possession of property is not, 
 as against the marshal, entitled to pos- 
 session. Moran v. Sturges, 154 U. S. 
 256, 30 L. ed. 981. See also, Re Swan. 
 150 U. S. 637, 37 L. ed. 1202, but, 
 where a receiver of the United States 
 court is appointed over an association, 
 a state court may cancel a mortgage 
 given by such association which has 
 
 been paid. Callioun v. Lanaux, 127 
 U. S. 634, 37 L. ed. 297. 
 
 ''East Tennessee, V. & G. R. Co. v. 
 Atlanta &F. R. Co. 49 Fed. Rep. 608, 
 15 L. R. A. 109; People v. Central City 
 Bank, 53 Barb. 412, 35 How. Pr. 42. 
 
 ^Thompson v. Holladay, 15 Or. 348^ 
 Heidritter v. Elizabeth Oil Cloth Co, 
 112 U. S. 294, 28 L. ed. 730, but see, 
 Buchanan v. Smith, 83 U. S. 16 Wall. 
 309, 21 L. ed. 287; Ohio & M. B. Co. 
 V. Fitch, 20 Ind. 828. 
 
 In a case of doubtful authority it 
 has been held that in matters of bank- 
 ruptcy the federal courts have exclu- 
 sive jurisdiction, so far as the assets 
 of an insolvent corporation are con- 
 cerned. Be Merchants' Ins. Co. 3 Biss. 
 162, and see Brick v. Piedmont & A. 
 L. Ins. Co. 4 Fed. Rep. 849; Piatt v. 
 Archer, 9 Blatchf . 559; Be Binninger, 7 
 Blatchf. 262; Sedgwick v. Place, 3 Ben. 
 360. 
 
 It has also been held that though 
 a receiver of one court may be in pos- 
 session of mortgaged property, a fore- 
 closure may be carried on in another 
 court. Mercantile Trust Co. v. Lam- 
 mlle tfe V. B. Co. 16 Blatchf. 324; Kin- 
 ney V. Crocker, 18 Wis. 74; and where 
 there is a serious conflict of authority 
 between state and federal courts, in 
 actions pending in each by antagon- 
 istic claimants, and there is serious 
 danger of loss the federal court has 
 appointed a receiver to take posses- 
 sion and sell. Crane v. McCoy, 1 
 Bond, 422. 
 
 A receiver appointed by a federal
 
 58 
 
 RECEIVERSHIPS. 
 
 § 20. Scope of jurisdiction. 
 
 The scope of power given to a cliancellor in appointing a re- 
 ceiver varies according to the nature of the proceeding, and will 
 
 court, looking to the winding up of a 
 corporation as insolvent, and paying 
 all its creditors, will not be directed 
 to give up possession of the property 
 to a receiver appointed by the state 
 court in a suit by minority stock- 
 holders to secure proper representa- 
 tion in the management and the pro- 
 tection of their rights, but such minor- 
 ity stockholders will be allowed to 
 become parties to the proceedings in 
 the federal court. De La Vergne Ee- 
 frigerating Mach. Co. v. Palmetto Brew. 
 Co. (C. C. D. S. C) 72 Fed. Rep. 579. 
 
 A temporary receiver appointed by 
 a federal court in a suit to foreclose a 
 mortgage deed of a corporation will 
 not be ordered to deliver up the prop- 
 erty to a receiver previously appointed 
 by a state court, in a suit by simple 
 contract creditors to prevent waste of 
 the corporate property, to which other 
 creditors are not parties, as the two 
 proceedings do not conflict. State 
 Trust Co. V. National Land I. & Mfg. 
 Co. (C. C. D. S. C.) 72 Fed. Rep. 575. 
 
 A United States court cannot, upon 
 an application for delivery to a re- 
 ceiver appointed by a state court of 
 property in the hands of a receiver of 
 the federal court, review the pro- 
 priety and validity of the action of the 
 state court in appointing such receiver. 
 De La Vergne Refrigerating Mach. Co. 
 v. Palmetto Brew. Co. (C. C. D. S. C.) 
 72 Fed. Rep. 579. 
 
 The United States circuit court may 
 have jurisdiction to appoint a re- 
 ceiver of the property of a coip ora- 
 tion which has been dissolved by a 
 state court under a statute providing 
 that such a corporation whose powers 
 have expired shall continue its corpo- 
 rate capacity for two years for the 
 
 purpose of collecting debts due it, 
 and conveying and selling its property 
 and effects, where an appeal has been 
 perfected from the judgment of ouster, 
 but such judgment remains in effect 
 and creditors are about to commence 
 suits by which the property will be 
 wasted. Olmstead v. Distilling & C. 
 F. Co. (C.C.N.D.Ill.) 73 Fed. Rep.44. 
 
 A Federal court in the state in 
 which a corporation was organized, 
 which has appointed a receiver as an- 
 cillary to a receivership of the corpo- 
 ration instituted in another state, has 
 jurisdiction to adjudicate, at the suit 
 of a claimant within the state, the ex- 
 istence and extent of his claim against 
 the corporation, where, as a condition 
 of appointing the receivers, it has re- 
 quired that they appoint a person 
 within the jurisdiction, upon whom 
 service of notices and writs might be 
 made. New York Security & T. Co. 
 V. Equitable Mortg. Co. (C. C. W. D. 
 Mo.) 71 Fed. Rep. 556. 
 
 A United States circuit court will 
 not decline jurisdiction of a motion to 
 remove receivers of railroad property 
 appointed by it, on the ground that 
 the primary jurisdiction is at the home 
 office of the company, or in another 
 district in which a portion of the rail- 
 road lies, where neither of such courts 
 has assumed jurisdiction, and it does 
 not appear that they will do so. 
 Farmers' Loan & T. Co. v. Northern 
 P. B. Co. (C. C. D. Wash.) 69 Fed. 
 Rep. 871. 
 
 That stock of other corporations has 
 been transferred to the receivers of a 
 railroad company does not vest a fed- 
 eral court of a district other than that 
 of the home office of the company 
 with control of such stock, so far as
 
 MATTERS RELATING TO THE APPOINTMENT. 59 
 
 be more fully noticed under appropriate chapters relating to re- 
 ceiverships as ajjplied to corporations, partnerships, etc. It may 
 be stated, in general, that the proceeding being remedial in its 
 nature and an incident to the general powers of courts of chan- 
 cery, the court will be governed by the primary nature of the pro- 
 ceeding and the objects sought to be accomplished thereby, taking 
 into consideration the general principles of equity as administered 
 by courts of chancery or courts of chancery jurisdiction, and such 
 modifications, extensions and limitations as may have been made 
 by statutory enactment.' 
 
 § 21. Who appointed. 
 
 In the selection of a person to act as receiver, the court exer- 
 cises a discretion and such discretion is to be governed by a con- 
 sideration of the following principles : 
 
 (a) The receiver, in certain respects, is an officer of the court, 
 at least occupies a quasi official position. His acts are the acts 
 of the court, and his official conduct is supposed to reflect the will 
 of the court or judge who appoints him, and the power with 
 which he is clothed emanates from the court, as a rule, and to it 
 he must strictly account. 
 
 (b) While he occupies this important relation to the court he also 
 sustains an important trust relationship to the parties in interest. 
 He must therefore be fully competent to perform the important 
 duties assigned to him -^ he must be a person unexceptional to 
 
 to require an application for the re- jurisdiction, but the circumstances 
 moval of the receivers to be made to must be such as to have enabled the 
 it before application to the court of a court of chancery to appoint a re- 
 third district appointing them after ceiver before the act. Harris v. Beau- 
 the original appointment. Farmers' champ Bros. [1894] 1 Q. B. 801. As 
 Loan & T. Co. v. Northern P. R. Co. has been seen elsewhere almost every 
 (C. C. D. Wash.) 69 Fed. Rep. 871. state in the Union, and especially so 
 
 The Ohio court of common pleas in code states, has enlarged the power 
 
 has no jurisdiction of a suit to compel of appointing receivers by statutory 
 
 receivers appointed by the superior enactments, though in many cases it 
 
 court to allow a claim. Scltell v. will be found that the statute is simply 
 
 Huseman (C. P.) 1 Ohio L. D. 120. a re-enactment of a previous power 
 
 See also § 17, T[ c. exercised by the courts. See § 4. 
 
 'Under the English judicature act '^Simpson v. Ottawa & P. B. Co. 1 
 
 of 1873 § 25, sub § 8, a court did not Ont. Ch. Ciiamb. 99; Suptonv. Steph- 
 
 have jurisdiction to appoint a receiver ennon, 11. Ir. Eq. 484; Wynne y. Lord 
 
 by way of equitable execution in case Newhorough, 15 Ves. Jr. 283; Tharpe 
 
 where, prior to the act, no court had v. Tharpe, 12 Ves. Jr. 317; Taylor v.
 
 60 
 
 RECEIVERSHIPS. 
 
 all the parties interested ;' indifferent as to all parties.' As a 
 rule, he slionld not be a creditor nor shareholder nor officer in an 
 action against a corporation/ nor a stockholder or director of an 
 insolvent railroad company ;* nor an ex-agent of the defend- 
 
 Life Association, 3 Fed. Rep. 465, 13 
 Fed. Rep. 493. 
 
 In making the appointment all pri- 
 vate considerations and preferences 
 are not to be considered; "no man 
 and the counsel of no man has a 
 right to complain that he or his par- 
 ticular friend is not appointed a re- 
 ceiver; especially where the assets, as 
 in these banis cases, to be entrusted to 
 his responsibility are counted not by 
 thousands but by hundreds of thou- 
 sands." Be Empire City Bank, 10 
 How. Pr. 498; Williamson v. Wilson, 
 1 Bland. Ch. 418; Smith v. New York 
 Consol. Stage Co. 28 How. Pr. 208; 
 Be Empire City Bank, 10 How. Pr, 
 498, Perry v. Oriental Hotel Co. L. R. 
 5 Ch. App. 420; Cookes v. Cookes, 3 
 DeQ. J. & S. 526; Wynne v. Lord 
 Newhorough 15 Ves. Jr. 283. 
 
 ^Simpson v. Ottawa & P. B. Co. 1 
 Ch. Chamb. 99 ; Brant v. Willoughby, 
 17 Grant Ch. (Ont.) 627; Bichards v. 
 Chesapeake & 0. B. Co. 1 Hughes 28; 
 Wilson V. Poe, 1 Hog. 322; Hooper v. 
 Winston, 24 111. 353 ; Baker v. Backus, 
 32 111. 79; Merchants Nat. Bank v. 
 McLeod, 38 Ohio St. 174; Kaiser v. 
 Eellar, 21 Iowa, 95; Williamson 
 V. Wilson, 1 Bland. Ch. 418; Waters 
 V. Carroll, 9 Yerg. 102; Corey v. 
 Long, 43 How. Pr. 497; Devendorf 
 V. Dickinson, 21 How. Pr. 275; Os- 
 iorn V. Heyer, 2 Paige, 342; Brown v. 
 Northrup, 15 Abb. Pr. N. S. 333; 
 Curtis V. Leavitt, 1 Abb. Pr. 274; Van 
 Bensselaer v. Emery, 9 How. Pr. 135; 
 Ellicott V. Warford, 4 Md. 80. 
 
 ^Hunter v. Hunter, 4 W. W. & 
 A'B. (E) 17; Bolles v. Duff, 54 Barb. 
 215. 37 How. Pr. 162; Atkins v. Wa- 
 bash, St. L. & P. B. Co. 29 Fed. Rep. 
 
 161 ; Be Northum,berland & D. Dist. 
 Bkg. Co. 2 De G. & J. 508; Barbour's 
 Ch. Pr. Vol. I., p. 666. A court will 
 not appoint an executor or trustee of 
 an estate as receiver over the same 
 property, Sykes v. Hastings, 11 Ves. 
 Jr. 363; Sutton v. Jones, 15 Ves. Jr. 
 
 584; V. Jolland, 8 Ves. Jr. 
 
 72, unless the circumstances of the 
 case render it necessary so to do. 
 Netcport v. Bury, 23 Beav. 30; Sykes 
 V. Hastings, supra; but see Bolles v. 
 Duff, 54 Barb. 215; Miller v. Jones, 
 39 111. 54. He should have no per- 
 sonal interest in the property: Bun- 
 yon V. Farmers & M. Bank, 4 N. J. 
 Eq. 480; Williamson v. Wilson, 1 
 Bland. Ch. 418; Ellicott v. Warford, 
 4 Md. 80; but see Atkins v. Wabash, 
 St. L &P. B. Co. 29 Fed. Rep. 161; 
 Tripp v. Chard B. Co. 21 Eng. L. «fe 
 Eq. 53. 
 
 ^Be Northumberland <& D. Dist. Bkg. 
 Co. 2 De G. & J. 508. See Be Eagle 
 Iron Works, 8 Paige, 385; Lupton v. 
 Stephenson, 11 Ir. Eq. 484; Chamber- 
 lain V. Oreenleaf, 4 Abb. N. C. 92; 
 Finance Co. of Pennsylvania v. 
 Charleston, C. & C. B. Co. 45 Fed. 
 Rep. 436; Ex parte Pinke, 2 Meriv. 
 452; must not be partner of plaintiff's 
 solicitor. Merchants <& M. Bank v. 
 Kent, 43 Mich. 293; nor should trus- 
 tees or executors be appointed. Sutton 
 V. Jones, 15 Ves. Jr. 584; Aiion. 3 
 Ves. Jr. 516. 
 
 *Atkins V. WabasJi, St. L. & P. R. 
 Co. 29 Fed. Rep. 161; unless the case 
 is urgent and exceptional, and then 
 only when all the parties consent; nor 
 a party in such action or counsel in 
 the cause; Finance Co. of Pennsylvania 
 V. CluirUston, C. & C. B. Co. 45 Fed.
 
 MATTERS RELATING TO THE APPOINTJMENT. 
 
 61 
 
 ant,' nor an accountant in the office of plaintiff's solicitor ;' nor a 
 party to an assignment in an action brought to set such sssign- 
 ment aside ;' nor a partner in a proceeding to wind up such part- 
 nership ;* nor one of plaintiff's attorneys ;^ nor a master in chan- 
 cery of court.' It has been held, however, that the fact that he 
 is a party to the suit is not a disqualification.' He must not be a 
 person who by his own acts or position stands in an improper re- 
 lation to the cause,* nor a stranger to the court if objected to by 
 either party." A clerk of the court may be appointed, but acts 
 as an individual and not as clerk." 
 
 Rep. 436; Middlesex County Freeholders 
 V. State Bank, 28 N. J. Eq. 166; Mc- 
 CullougTi V. Merchants Loan & T. Go. 
 29 N. J. Eq. 217; nor should an 
 officer of a corporation or other 
 person intimately connected with its 
 management. Baker v. Backus, 32 
 111. 79; Benneson v. Bill, 62 111. 408; 
 Atty. Oen. v. Bank of Columbia, 1 
 Paige, 511; Re Eagle Iron Works, 8 
 Paige, 385; it was done, however, 
 in Oibbs v. Oreenville & C. R. Co. 
 15 S. C. 304, but the propriety of the 
 order does not seem to have been 
 seriously contested, but turned upon 
 the question as to whether the officers 
 were in fact receivers; see also Buck 
 V. Piedemont <& A. L. Ins. Co. 4 Fed. 
 Rep. 849; Albany City Bank v. Scher- 
 merhorn, Clarke Ch. 366; in Re Fifty- 
 four First Mortgage Bonds, 15 S. C. 
 304, the president and directors of a 
 railroad company were ordered to con- 
 tinue in possession and management 
 of a road, not as officers of the road, 
 but as officers of the court. 
 
 ^Graham ^. Graham, 2 Vict. Rep. 
 (E) 145. 
 
 Ulunter v. Hunter, 4 W. W. & A'B 
 (E) 17. 
 
 ^Smith V. Neio York Consol. S. Co. 
 18 Abb. Pr. 419, 28 How. Pr. 208. 
 
 *Todd V. Miller, 2 Tenn. Ch. 107, 
 but see Miller v. Jones, 39 111. 54. 
 
 ^Re Lloyd, L. R. 12 Ch. Div. 447; 
 Garland v. Garland, 2 Ves. Jr. 137; 
 not, however, if both plaintiff and 
 
 defendant's attorneys are appointed. 
 See also Shannon v. Hanks, 88 Va. 
 338; Watson v. Arundel, 9Ir. Eq. 324; 
 Baker v. Backus, 32 111. 79. 
 
 That a temporary receiver is con- 
 nected with the firm of counsel for 
 complainant in the suit in which he 
 was appointed renders him ineligible 
 for the appointpent of permanent re- 
 ceivers. State Trust Co. v. National 
 Land L & Mfg. Co. (C. C. D. S. C.) 
 72 Fed. Rep. 575. 
 
 ^Kilgore v. Hair, 19 8. C. 486; Ex 
 parte Fletcher, 6 Ves. Jr. 427; Stone v. 
 Wishart, 2 Madd. 63; Bemiesonv. Bill, 
 62 111. 408. 
 
 ''DownsJiire v. Tyrrell, Hayes 354; 
 Boyle V. Bettws Llantuit Colliery Co. 
 L. R. 2 Ch. Div. 726; Hyde v. War- 
 den, L. R. 1 Exch. Div. 399; Tayloi-y. 
 Eckersley, L. R. 2 Ch. Div. 302; Rob- 
 inson V. Taylor, 42 Fed. Rep. 803; Re 
 Lloyd, L. R. 12 Ch. Div. 447; Hub- 
 bard V. Guild, 1 Duer, 662; Fenn v. 
 Bolles, 7 Abb. Pr. 202; Hanover F. 
 Ins. Co. V. Germania F. Ins. Co. 33 
 Hun, 539; Jeffery v. Smith, 1 Jac. & 
 W. 298. 
 
 ^Smith v. New York Consol. Stage 
 Co. 28 How. Pr. 208; Williamson v. 
 Wilson, 1 Bland. Ch. 418. See Han- 
 over F. Ins. Co. V. Germania F. Ins. 
 Co. 33 Hun, 539; Wynne v. Lord New- 
 borough, 15 Ves. Jr. 283. 
 
 ^Smith v. New York Consol. Stage 
 Co. 28 How. Pr. 208. 
 
 ^oKerr v. Brandon, 84 N. C. 128;
 
 62 
 
 RECEIVERSHIPS. 
 
 "Where the matter of appointment was referred to a master 
 under the Enijlisli practice his judgment was conchisive unless 
 some substantial proof was given to the contrary/ and his action 
 was never disturbed except on special grounds.* 
 
 The same person will not be appointed receiver in two cases 
 where the suits are conllicting,' nor will the court delegate the 
 appointment of an official liquidator." As a general rule the ap- 
 pointment of a receiver rests in the sound judicial discretion of 
 the court so far as the person selected is concerned, under all the 
 circumstances of the particular case/ but the court will favorably 
 consider the selection of the parties in interest and will invite 
 suiTirestions and recommendations.* 
 
 The same rules which apply to the appointment made by a 
 master, are equally applicable to a selection made by the court, 
 and the discretion given to the court in the selection is rarely 
 interfered with/ 
 
 State, Rogers, v. Oborn, 86 N. C. 432; 
 and so when master in chancery is ap- 
 pointed, Waters v. Carroll, 9 Yerg. 
 102; Hammer v. Kaufman, 39 111, 
 87. 
 
 ^Garland v. Garland, 2 Ves. Jr. 
 137; Creuze v. London, 2 Bro. C. C. 
 253; Thomas v. Dawkin, 1 Ves. Jr. 
 452; Anon. 3 Ves. Jr. 515; Wilkins v. 
 Williams, 3 Ves. Jr. 588; see Wynne 
 V. Lord Neicborovgh, 15 Ves. Jr. 2^3; 
 Hughes v. Williains, 6 Ves. Jr. 453; 
 Tharpe v. Tharpe, 12 Ves. Jr. 
 317. 
 
 Inasmuch as the appointment is pe- 
 culiarly within the judicial discretion 
 of the court appointing, it is rarely 
 that the appellate court will interfere 
 with the selection made. Cookes v. 
 Cookes, 2 De G. J. & S. 526; but see 
 Perry v. Oi~iental Hotel Co. L. R. 5 
 Ch. App. 420; Gardiner v. Howell, 60 
 Ga. 11; Oiinby V. Thompson, 56 Ga. 
 316; Crawfoi-d v. Spurting, 56 Ga. 611; 
 Robinson v. Ross, 40 Ga. 375; C'oAen v. 
 Meyers, 42 Ga. 46; Reid v. Reid, 38 Ga. 
 
 24; Re Eagle Iron Works, 8 Paige, 
 385. 
 
 ^Tharpe v. Tharpe, 12 Ves. Jr. 320; 
 Bowersbank v. Collosseau, 3 Ves. Jr. 
 164; Creuze v. London, 2 Bro. C. C. 
 256; Garland v. Garland, 2 Ves. Jr. 
 137; Anon. 3 Ves. Jr. 515; Wilkins v. 
 Williams, 3 Ves. Jr. 588; Thomas v. 
 Dawkin 3 Bro. C. C. 508; Re Eagle 
 Iron Works, 8 Paige, 385. 
 
 'Re City, &c. Ins. Co. 25 W. R. 342. 
 
 *Re City, &c., Ins. Co. 25 W. R. 342. 
 
 ^ Smith V. NeiD York Consol. Stage Co. 
 28 How. Pr. 208; Williamson v. Wil- 
 son, 1 Bland. Ch. 418; Perry v. Ori- 
 ental Hotels Co. L. R. 5 Ch. App. 420; 
 Cookes V. Cookes, 2 De G. J. & S. 526. 
 
 * Watkins v. Worthington, 2 Bland, 
 Ch. 609; Hanover F. Ins. Co. v. Ger- 
 maiiia F. Ins. Co. 33 Hun, 539. 
 
 ''Cookes V. Cookes, 2 De G. J. & S. 
 526; Perry v. Oriental Hotels Co. L. 
 R. 5 Ch. App. 420; Williamson v. Wil- 
 son, 1 Bland, Ch. 418; Shannon v. 
 Hanks, 88 Va. 338.
 
 MATTERS RELATING TO THE APPOINTMENT. 
 
 63 
 
 § 22. Form and scope of order. 
 
 The form of the order, and its scope, ranst of necessity be 
 shaped with reference to the facts and circumstances of each par- 
 ticular case which renders it impossible to give minute directions 
 in regard thereto. A few general rules and principles applicable 
 to this subject will only be attempted in this connection. 
 
 (a) The order should specifically describe the property over 
 which the receiver is to have custody and control if the property 
 is of such nature as to warrant such a description.' And when a 
 receivership has been placed over specified property it may be 
 enlarged upon the discovery of other property over which the re- 
 ceiver should have custody.* 
 
 (b) The primary object in the appointment of a receiver being 
 the preservation of the ])i'opei'tj pendente lite, it follows that the 
 power of the court in making the order, embraces all acts neces- 
 sary to preserve the property and give it additional value.* " A 
 
 'The order appointing a receiver 
 "of the incomes of the outstanding 
 trust property in the pleadings men- 
 tioned " was held to be insufficient. 
 It should state on the face of it over 
 what property the receiver is ap- 
 pointed that a party may know what 
 it is that the officer of the court is in 
 possession of. Crow v. Wood, 13 
 Beav. 271. "Money deposited or 
 lately on deposit in the hands of the 
 defendants, Belmont and Lucke, to 
 the credit of the defendant, John 
 O'Mahoney," is not sufficient. 0' Ma- 
 honey V. Belmont, 62 N. Y. 133. It is 
 sufficiently specific where it describes 
 the property as "the books, notes and 
 accounts of all kinds of the said de- 
 fendant in the business of selling 
 cigars, snuff, tobacco and other 
 goods." Martin v. Burgwyn, 88 Ga. 
 78. As to form of order of railroad 
 receiver in relation to keeping ac- 
 counts, see Mercantile IVust Co. v. 
 Missouri, K. & T. B. Co. 41 Fed. 
 Rep. 8. 
 
 ^Lyne v. Lockwood, 2 Moll. 498. 
 Sometimes there is no separate order 
 
 appointing a receiver but the appoint- 
 ment is embodied in the final decree. 
 Shidte V. Hoffman, 18 Tex. 578; Bow- 
 man V. Bell, 14 Sim. 392. Sometimes 
 the appointment is interlocutory, and 
 at other times it is after final decree, 
 as in Haas v. Chicago Bldg. Soc. 89 
 111. 498; Bowman v. Bell, 14 Sim. 392; 
 Wright v. Vernon, 3 Drew. 112; 
 Thomas -7. Davies,ll Beav. 29; Hyman 
 v. JSelly, 1 Nev. 179; Asior v. Turner, 
 11 Paige, 436; Howell v. Ripley, 10 
 Paige, 43; Brinkman v. Ritzinger, 82 
 Ind. 358; Connelly v. Dickson, 76 Ind. 
 440; Travelers' Ins. Co. v. Brouse, 83 
 Ind. 62; Buchanan v. Berkshire L. 
 Ins. Co. 96 Ind. 510; Merrill v. Elam, 
 2 Tenn. Ch. 513, but in all cases 
 whenever the appointment may be 
 made the order should specifically de- 
 fine the duties of the receiver. 
 
 ^Gilbert v. Washington City, 8. M. & 
 G. 8. R. Co. 33 Gratt. 586. "A court 
 of equity having in charge the mort- 
 gaged property of a railroad company 
 is authorized to do all acts that may 
 be necessary within its corporate pow- 
 ers to preserve the property and to
 
 64 
 
 RECEIVERSHIPS. 
 
 court of equity in all cases delights to do complete justice and 
 not by halves," is a maxim in equity jurisprudence.' 
 
 (c) The power to appoint embraces all necessary orders as to the 
 custody of the property whether in the immediate possession 
 of the defendant, or his agent, and in proper cases can also order 
 the defendant's agents and employes, although not parties to the 
 record, to deliver specific property to the receiver." 
 
 (d) The court, however, will exercise great caution in framing 
 its orders respecting property in the hands of persons not parties 
 to the suit, or parties who are in possession under a prima facie 
 title.' Courts of equity, except in extreme cases, are averse to ap- 
 pointing receivers in cases where the contest grows out of a ques- 
 
 give to it additional value, not only for 
 the benefit of the lien creditors but 
 also for the benefit of the company, 
 ■whose possession the court has dis- 
 placed by the appointment of a re- 
 ceiver, and by taking into its own 
 hands the property, rights, works and 
 franchises of the company. Any act, 
 it would seem, necessary for the pro- 
 tection and preservation of the prop- 
 erty is a legitimate and proper act, 
 and whatever is manifestly appropri- 
 ate to such preservation and protec- 
 tion or to the enhancement of the 
 value of the property, not in excess 
 of the powers of the corporation will 
 always be upheld and enforced by the 
 courts." See also Jerome v. McCarter, 
 94 U. S. 734, 24 L. ed. 136. 
 
 ^Knight v. Knight, 3 P. Wms. 331; 
 Corbet v. Johnson, 1 Brock. 77; Hefner 
 V. Northwestern Mut. L. Ins. Co. 123 
 U. S. 747, 31 L. ed. 309. 
 
 ^Re Cohen., 5 Cal. 594. In this case 
 an order was entered for a rule on 
 certain persons not parties to the suit 
 to show cause why they should not be 
 attached for contempt in disobeying 
 the order for delivery. They ap- 
 peared in answer to the rule. Ueld, 
 the appearance and answer gave the 
 court full jurisdiction over persons as 
 well as subject-matter. 
 
 While the court has ample power 
 to adjust the rights of all parties, yet 
 the order of appointment should not 
 direct the manner of distribution in 
 advance of a final decree. West v. 
 Chasten, 12 Fla. 315. 
 
 ^Frank v. Stajyler, 83 Ga. 429; Pel- 
 ser V. Hughes, 27 S. C. 409. In this 
 case it appeared that a party was in 
 possession and had prima facie title, 
 and the court refused to punish for con- 
 tempt for refusal to deliver. In a simi- 
 lar case, Lloyd v. Passi?igham, 16 Ves. 
 Jr. 69, Lord Eldon said: "The court 
 must not only be satisfied of the ex- 
 istence of the fraud, but be morally 
 sure upon the hearing of the cause 
 the party would be turned out of pos- 
 session." "Again, upon the question 
 of title, a very important distinction 
 exists between cases where different 
 and hostile equitable interests are in- 
 volved, and where one party has the 
 legal title unquestionably in him, and 
 particularly where with such title he 
 is in possession." Hoffman's Prov. 
 Remedies, § 244. In this class of 
 cases relating to possession under 
 claim of title there must appear dan- 
 ger of loss or material injury if pos- 
 session is permitted to remain in the 
 holder. See Pom. Eq. Jur. Vol. III., 
 § 1334, and cases cited.
 
 MATTERS RELATING TO THE APPOINTMENT. 
 
 65 
 
 tioii of title for the reason that common law courts are the proj^er 
 forums for adjudicating such matters. 
 
 (e) The order of appointment relates back to the date of grant- 
 ing, though it may not be complete until the bond is given. After 
 the granting of the order the subject-matter, or property, over 
 which the receivership extends is m custodia legis and not sub- 
 ject to interference with or levy by execution or attachment.* 
 The receiver rarely takes possession, however, until he has quali- 
 fied by giving bond with surety as required. The order of ap- 
 pointment continues during the pendency of the suit, unless 
 otherwise limited or modified." 
 
 (f ) No formal order of assignment is necessary to pass the title 
 of the defendant to a receiver.' The appointment vests in him 
 the title to the property except such as is exempt from levy and 
 
 'When an order is made for the ap- 
 pointment of a receiver of particular 
 property it amounts to a sequestration 
 by act and operation of laws of such 
 property, and when the receiver is 
 subsequently appointed the title to 
 such property vests by relation from 
 the date of the order to the same effect 
 as if such receiver was named in the 
 order. Van Alstyney. Cook, 25 N.Y. 
 489; Butter v. Tallis, 5 Sandf. 610; 
 Porter v. Williams, 9 N. Y. 142; Fair- 
 field v. Weslon, 2 Sim. & Stu. fc6; 
 Smith V. New York Consol. Stage Co. 
 18 Abb. Pr. 419; Deming v. New York 
 Marble Co. 12 Abb. Pr. 66; Storm v. 
 Waddell, 2 Sandf. Ch. 544; Wilson v. 
 Alle7i, 6 Barb. 542; He Berry, 26 Barb, 
 55; Be Christian Jensen Co. 128 N. Y. 
 550; Be Schuyler Steam Tow Boat Co. 
 136 N. Y. 169, 20 L. R. A. 391; May- 
 nard v. Bond, 67 ]^Io. 315; Begenstein 
 V. Pearlstein, 30 S. C. 192; Clinkscales 
 V. Pendleton Mfg. Co. 9 S. C. 318; Ex 
 parte Evans, L. R. 13 Ch. Div. 252. 
 
 The order appointing a receiver is 
 in reality an equitable execution and 
 relates to the date thereof though it is 
 not perfected by giving of bond until 
 afterwards. Ex parte Evans in Be 
 
 Watkins, L. R. 15 Ch. Div. 252; Rat- 
 ion v. Hayicood, L. R. 9 Ch. 229; 
 Anglo-Italian Bank v. Davies, L. R. 9 
 Ch. Div. 275. And see Contra: Ed- 
 wards V. Edimrds, L. R. 2 Ch. Div. 
 291; DeFries v. Creed, 34 L. J. Eq. N. 
 S. 607; Woods v. Ellis, 85 Va. 471. 
 
 "Weems v. Lathrop, 42 Tex. 207; 
 Williamson v. Wilson, 1 Bland, Ch. 
 418. 
 
 ^"Sales whether made on seizure un- 
 der execution issued after judgment, 
 or on seizure before final judgment 
 on decretal orders which a court has 
 power to make are held to pass title to 
 the property sold, not because the 
 ministerial officer has title but because 
 the law casts upon him, when acting 
 under its authority, the power to make 
 a sale which will bind the owner as 
 fully as would his own act." Bussell 
 v. Texas & P. B. Co. 68 Tex. 646. 
 
 The same rule has been the law in 
 New York before and since the adop- 
 tion of the code. Mann v. Pentz, 2 
 Sandf. Ch. 257; Storm v. Waddell, 2 
 Sandf. Ch. 505; Wilson v. Allen, 6 
 Barb. 542; Cooney v. Cooney, 65 Barb. 
 524. And this rule applies to real 
 estate. Porter v. Williams, 9 N. Y.
 
 66 
 
 RECEIVERSHIPS. 
 
 sale.' The conflict that has been engendered by tlie courts upon 
 this question has arisen from a misconception of the meaning of 
 the word title as applied to a receiver as elsewhere explained.* 
 
 (g) It is proper and is the duty of a chancellor to modify the 
 order if its application is found to operate harshly.' The recitals 
 in an order axQ prima facie true, but are not conclusive, and may 
 be contradicted.'' Prior to a hearing it is error in the court to 
 order payment of the proceeds to certain specified creditors. 
 The order should be to hold the proceeds to await the result of 
 the litigation.^ 
 
 (h) The regularity of the appointment cannot be attacked in a 
 collateral proceeding, but must be impeached, if at all, in a direct 
 proceeding for that purpose.' This doctrine is founded upon 
 
 142. And see § 17, T[ b, note; Idd- 
 ings V. Bruen, 4 Sandf. Ch. 252. The 
 court has power to compel an assign- 
 ment. Chipman v. Sabbaton, 7 Paige, 
 47; Poi-ter v. Williams, 5 How. Pr. 
 441; Fessenden v. Woods, 3 Bosw. 550; 
 People, Williams, v. Hulburt, 5 How. 
 Pr. 446. See Moak v. Coats, 33 Barb. 
 498; Scott v. Elmore, 10 Hun, 68. 
 
 ^Hudson V. Plets, 11 Paige, 180; An- 
 drews V. Rowan, 28 How. Pr. 126; Til- 
 lotson V. Wolcott, 48 N. Y. 188; C'oo7iey 
 V. Cooney, 65 Barb. 524; Finnin v. 
 Malloy, 1 Jones & S. 382; Sands v. 
 Boberts, 8 Abb. Pr. 343. 
 
 « See § 57. 
 
 * Graham v. Fuller Electrical Co. 75 
 Ga. 878; Kron v. Smith, 96 N. C. 386. 
 
 An order appointing a receiver of a 
 corporation will not be vacated be- 
 cause he resides in another state and 
 is not required to give bond within 
 the jurisdiction. Aiken v. Colorado 
 River I. Co. (C. C. S. D. Cal.) 72 Fed. 
 Rep. 591. 
 
 ^Pressley v. Lamb, 105 Ind. 171. 
 
 * Nussbaum v. Price, 80 Ga. 205. 
 On motion to appoint a receiver, an 
 
 order that the president and directors 
 of the Greenville & Columbia R. Co., 
 " continue in possession and manage- 
 ment of the property under the order 
 
 of and subject to this court, and that 
 they make report to the court at such 
 times as it may require," — Held, tO' 
 constitute them receivers. Oibbes v. 
 Greenville <& C. R. Co. 15 S. C. 304. 
 518. 
 
 ® In a suit by the receiver in relation 
 to matters connected with his trust 
 the order of appointment will be con- 
 clusive. Neeves v. Boos, 86 Wis. 313; 
 Vermont & C. R. Co. v. Vermont C. 
 R. Co. 46 Vt. 792; Atty. Gen. v. Guar- 
 dian Mut. L. Ins. Co. 77 N. Y. 272 ; 
 Stanley v. National U. Bank, 115 N. 
 Y. 122; Block V. Estes, 92 Mo. 318; 
 Cox V. Volkert, 86 Mo. 505; Keokuk 
 N. L. Packet Co. v. Davidson, 13 Mo. 
 App. 561; Richards v. People, 81 111. 
 551 ; Commercial Nat. Bank v.- Burch, 
 141 111. 519; Barbour v. National Exch. 
 Bank, 45 Ohio St. 133; Beverley v. 
 Brooks, 4 Gratt. 187; Neall v. Hill, 16 
 Cai. 145. It cannot be attacked in a 
 matter relating to the compensation 
 of the receiver; nor by a creditor who 
 accepts a dividend from the receiver, 
 Greeley v. Provident Sav. Bank, 103 
 Mo. 212; nor by one consenting 
 to the appointment. Russell v. 
 White, 63 Mich. 409. Nor, in the ab- 
 sence of fraud or mistake, can a pur- 
 chaser of the receiver deny the valid-
 
 MATTERS RELATING TO THE APPOINTMENT. 
 
 67 
 
 general equitable principles, but it is not applicable to a case 
 
 ity of his appointment. Stilzer v. La 
 Rose, 79 Ind. 435. See generally Low- 
 enstein v. Finney, 54 Ark. 124; Flor- 
 ence Oas, Elec. L. & P. Co. v. Hanby, 
 101 Ala. 15; Comer v. Bray, 83 Ala. 
 217; Moore v. Taylor, 40 Hun, 56; 
 Case V. Marchand, 23 La. Ann. 60; 
 Eldrington v. Pridham, 65 Tex. 612; 
 Texas, etc. R. Co. v. Gay, 86 Tex. 571, 
 25 L. R. A. 53; Wilson v. Barney, 5 
 Hun, 257. 
 
 The possession of a receiver ap- 
 pointed by the court is the possession 
 of the court; and the right of the court 
 to grant the receivership cannot be 
 questioned in proceedings for con- 
 tempt by disturbing such possession. 
 Albany City Bank v. Schermerhorn, 
 9 Paige, 372. 
 
 The proper record evidence of an 
 appointment as receiver is conclusive 
 evidence of the right to act as such, 
 until it is impeached. It is immate- 
 rial whether the order of appointment 
 was erroneous or improper; while it 
 is a subsisting order the receiver will 
 be sustained in his possession of prop- 
 erty. Vermont & C. R. Co. v. Vermont 
 C. R. Co. 46 Vt. 792; Pressleyv.Lamb, 
 105 Ind. 203; Bodkin v. Merit, 102 
 Ind. 298; First Nat. Bank v. United 
 States Encaustic Tile Co. 105 Ind. 227; 
 TJiompson v. Holladay, 15 Or. 34; 
 Darin Mfg. Co. v. ParkJmrst, 125 Ind. 
 317; Greenawalt v. Wilson, 52 Kan. 
 109; Radebaugh v. Tacoma & P. R. Co. 
 8 Wash. 570; Elderkin v. Peterson, 8 
 Wash. 674. 
 
 The appointment of a receiver can- 
 not be collaterally attacked in an ac- 
 tion by the receiver to recover an 
 assessment, where the court appoint- 
 ing him had jurisdiction of the sub- 
 ject matter and of the parties. Rand, 
 McN. & Co. v. Mutual F. 1. Co. 58 111. 
 App. 528. 
 
 A party to a proceeding for the ap- 
 pointment of a receiver, who contests 
 the application and fails to appeal 
 from the order of appointment, can- 
 not afterwards assert a claim based on 
 the irregularity or wrongfulness of 
 the appointment. Saunders v. Kemp- 
 ner (Tex. Civ. App.) 33 S. W. 585. 
 
 A judgment appointing a receiver 
 in purely statutory proceedings in 
 which such appointment is not author- 
 ized is void, and may be collaterally 
 assailed. Murray v. American Surety 
 Co. (C. C. App. 9th C.) 70 Fed. Rep. 
 341. 
 
 An Insurance company does not 
 have such an interest in an assign- 
 ment by a corporation, by reason of a 
 suit against it on a policy by a re- 
 ceiver to whom the assignee was di- 
 rected to deliver all the property of 
 the corporation, as will authorize it to 
 intervene in the receivership proceed- 
 ings for the purpose of having the ap- 
 pointment of the receiver and all pro- 
 ceedings taken by him set aside. 
 BartJiY. American Ins. Co. (Wis.) 65 
 N. W. 1035. 
 
 A levying creditor cannot intervene 
 to attack the appointment of a re- 
 ceiver on the ground of want of juris- 
 diction. Holmes v. Knapp Electrical 
 Works, 59 111. App. 58. 
 
 If the court had jurisdiction of the 
 snbject-matter the validity of the ap- 
 pointment cannot be questioned in an 
 action by the receiver. Davis v. 
 Slvarer, 90 Wis, 250. 
 
 An erroneous appointment on an 
 inadequate showing will not affect the 
 jurisdiction of the court over the sub- 
 ject-matter. Id. 
 
 Appointment cannot be attacked in 
 a collateral proceeding. State v. Scar- 
 ntt. 30 S. W. Rep. 1026. See State 
 V. Ross, 122 Mo. 435; Yoi'6 v. Superior
 
 68 
 
 RECEIVERSHIPS. 
 
 where the appointment is void for want of jurisdiction over the 
 defendant.' 
 
 (i) Nor is the appointment invalidated by irregularity or error 
 in the proceeding.'^ 
 
 Court, 41 Pac. Rep. 477; Smith v. 
 Hopkins, 10 Wash. 77. 
 
 A judgment creditor not a party by 
 intervention or otherwise cannot ap- 
 pear in the action without leave and 
 move to vacate the order of appoint- 
 ment. Wooding v. Wooding, 10 Wash. 
 531. 
 
 • Texas & P. R. Co. v. Qay, 86 Tex. 
 571, 25 L. R. A. 53; St. Louis & S. 
 Coal & Min. Go. v. Sandoval Coal & 
 Min. Co. Ill 111. 33. 
 
 The appointment of a receiver by a 
 void order does not disqualify him 
 from being appointed under a second 
 order, under Ind. Rev. Stat. 1894, 
 § 1237, providing that no party, at- 
 torney, or "other person interested" 
 in any action shall be appointed re- 
 ceiver therein. Rohinson v. Dickey 
 (Ind.) 43 N. E. 638. 
 
 The appointment of a receiver of a 
 dissolved corporation without notice 
 to it is void where the appointment is 
 made without requiring the complain- 
 ant to give bond, in violation of Ala. 
 Acts. 1894-95, p. 226, although such 
 corporation may have been in con- 
 tempt in joining in a request in an- 
 other court for the appointment of a 
 receiver. Capital City Water Co. v. 
 Weatherly (Ala.) 18 So. 841. 
 
 Goods taken by a receiver under an 
 appointment which is void need not 
 be restored before hearing another ap- 
 plication for the appointment of a re- 
 ceiver, as void appointments may be 
 entirely disregarded and a second ap- 
 pointment made without vacating the 
 first. Robinson v. Dickey (Ind.) 42 N. 
 E. 638. 
 
 An appointment of a receiver upon 
 
 the application of plaintiff is not in- 
 valid because of the erroneous over- 
 ruling of a previous motion by de- 
 fendant to require plaintiff as a non- 
 resident to file a bond for costs under 
 Ind. Rev. Stat. 1894, § 598. Calloway 
 V. Campbell (Ind.) 41 N. E. 597. 
 
 *As where one of the firm is not 
 made a party to the proceeding, it not 
 appearing that he was within the juris- 
 diction of the court, or had a substan- 
 tial interest in the partnership. Stel- 
 zer V. La Rose, 79 Ind. 435. Or where 
 the court fails to require adequate se- 
 curity. Nesbitt V. Turrentine, 83 N. C. 
 535. Nor does the fact that an exe- 
 cution was not sued out and returned 
 nulla bona, in a creditor's proceeding, 
 where no objection was interposed 
 at the time of the appointment, and 
 where according to the facts and ad- 
 missions it would have been an idle 
 ceremony and of no benefit. Sage v. 
 Memphis & L. R. R. Co. 125 U. S. 
 361, 31 L. ed. 694. Nor where the 
 clerk of court is appointed in vio- 
 lation of the statute. Moore v. Tay- 
 lor, 40 Hun, 56. Nor the failure to 
 give notice as required by law. Cor- 
 bin v. Berry, 83 N. C. 27. Nor where 
 the findings of the court are not re- 
 duced to writing until three or four 
 days after the entry of the order. 
 Forsaith Mach. Co. v. Hope Mills L. 
 Co. 109 N. C. 576. Nor where the 
 order did not specify the newspapers 
 in which it was to be published, as 
 required by the code. Re Christian, 
 Jensen Co. 128 N. Y. 550. Nor by 
 reason of defects in the averments of 
 the bill. Comer v. Bray, 83 Ala. 217. 
 See also Stith v. Jones, 101 N. C. 860.
 
 MATTERS RELATING TO THE APPOINTMENT. 
 
 69 
 
 (j) The order of the -court appointing a receiver is subject to 
 revocation and will be revoked under certain circumstances, when 
 the application is made in apt time : 
 
 (i) Where the appointment was a nullity, as where the order 
 was ex jparte and without notice, the insolvency of the corpora- 
 tion defendant not being alleged.* 
 
 (^) "Where the court in making the appointment was imposed 
 upon, the application being collusive as between the plaintiff and 
 defendant." 
 
 iS) Where it appears that the appointment was an invasion of 
 defendant's rights ; that the facts did not justify an appointment 
 and the same was unadvisedly and improvidently made.' 
 
 {Ji) When it appears that the court appointing had no jurisdic- 
 tion of the action.^ 
 
 (5) Delay in making application for the vacation of an order 
 appointing a receiver, will be fatal to the application. It must 
 be made in apt time.^ And so where the applicant has partici- 
 pated in the proceedings pending in which the receiver is ap- 
 pointed.* 
 
 Nor where the receiver neglects to be 
 sworn, as required by statute. Amer- 
 ican Bank v, Uooper, 54 Me. 438. 
 
 ^Turgeau v. Brady, 24 La. Ann. 348. 
 
 ^ Sage v. Memphis & L. B. E. Co. 
 125 U. S. 361, 31 L. ed. 694; State v. 
 Plimdx Bank, 33 N. Y. 9; Wilson v. 
 Barney, 5 Hun, 257. 
 
 ^ Allen V. Dallas & W. R. Co. 3 
 Woods, 316. 
 
 * Mercantile Trust Co. v. ^tna Iron 
 Works, 4 Ohio C. C. 579. 
 
 ^Palen v. BusJmell, 13 N. Y. Supp. 
 785. 
 
 • BattersTiall v. Davis, 31 Barb. 323. 
 In this case a stockholder having 
 joined in an application made to the 
 court by the receiver to sell the assets 
 of the corporation, cannot be permit- 
 ted to question the validity of the re- 
 ceiver's appointment. 
 
 The revocation of the order appoint- 
 ing a receiver is, as a rule, in the dis- 
 cretion of the court, and should be 
 
 granted if the circumstances demand 
 it. 
 
 Where a writ of error is sued out 
 on a judgment for complainant under 
 a bill alleging fraudulent transfers of 
 defendant's property and a superse- 
 deas bond is filed securing complain- 
 ant, a motion to vacate an order ap- 
 pointing a receiver should be granted. 
 Louisville & St. L. M. Co. v. South- 
 worth, 38 111. App. 225. 
 
 Cases may arise in which it would 
 be the duty of the court, on dismiss- 
 ing a bill, to retain the custody of the 
 property and funds in controversy, 
 and to continue the receivership, or 
 even to transfer the receivership to 
 another suit, then pending in the 
 court, between the same parties, and 
 involving their rights and equities in 
 and to the same property; but such 
 transfer could never be ordered unless 
 the second suit presented a state of 
 facts which would have authorized
 
 70 
 
 RECEIVERSHIPS. 
 
 (k) In many of the states an order appointing a receiver can be 
 appealed from.' Tliis is based upon the ground that in its effect 
 the order is final, or at least affects a substantial interest. And 
 frequently the statute authorizes an appeal from an order of this 
 nature." 
 
 the appointment of a receiver in the 
 first instance. Scott v. Ware, 65 Ala. 
 174. 
 
 Where a receiver is appointed in 
 advance of probate to talce rents and 
 profits pending litigation upon a ca- 
 veat to the probate in the prerogative 
 court, and in ejectment by the heirs 
 at law against the devisees in a proper 
 court of law, and afterwards a judg- 
 ment was rendered against the dev- 
 isees, the receiver will be recalled. 
 Baptist Church v. Eetfield, 46 N. J. 
 Eq. 503. 
 
 The rescission of an order appointing 
 a receiver, " without prejudice to any- 
 one, party or claimant," has been held 
 to be no defense to a possessory war- 
 rant for an engine previously sued out 
 against him. He would have sur- 
 rendered it to the company at his own 
 risk. Peacock v. Pittsburg L. & G. 
 Works, 52 Ga. 417. 
 
 Where the appointment of a receiver 
 has been properly vacated by the order 
 of a judge at chambers, the validity 
 of such order does not depend on the 
 mere discretion of the court or judge 
 making the appointment. And where 
 the court, without any new showing 
 or change of circumstances calling for 
 judicial action, directs the order to be 
 set aside as a nullity, it assumes au- 
 thority not warranted by law. Cin- 
 cinnati, S. & C. R. Co. V. Sloan, 31 
 Ohio St. 1. 
 
 A party at whose instance a receiver 
 has been improperly appointed, but on 
 a correct statement of facts, will be 
 charged with the cost of the receiver- 
 ship, and with such rents as the re- 
 ceiver himself would be properly 
 
 chargeable with. Lockhart v. Gee, 3 
 Tenn. Ch. 332. 
 
 It is not necessary to notify the re- 
 ceiver of a motion to revoke the order 
 of appointment. He is entitled to 
 notice only where it is sought to make 
 him liable, or to account, or to make 
 return, Howard v. Lowell Mach. Co. 
 75 Ga. 325. 
 
 The appointment of a permanent 
 receiver by final judgment, under N. 
 Y. Code Civ. Proc. § 713, supersedes 
 the previous appointment of a tempo- 
 rary receiver by the same court in an- 
 other district; and an injunction re- 
 straining the permanent receiver from 
 interfering with the temporary is erro- 
 neous. Glines v. Binghamton Trust 
 Co. 68 Hun. 511. 
 
 ^Wilson Y. Davis, 1 Mont. 98; Cal- 
 lanan v. Shaw, 19 Iowa, 183; Pressley 
 V. Lamb, 105 Ind. 171 (see stat.); Cone 
 V. Paute, 11 Heisk. 506; McMiyinville 
 &M. R. Co. V. Huggins, 7 Coldw. 217; 
 Mabry v. Ross, 1 Heisk. 769; Lewis v. 
 Cavipau, 14 Mich. 458; Barry v. 
 Briggs, 22 Mich. 201; Detroit First 
 Nat. Bank v. Barnum Wire & I. Works, 
 58 Mich. 315; Brown v. Ring, 11 Mich, 
 159; Bollard v. Taylor, 1 Jones & S. 
 496; Fellows v. Heermans, 13 Abb. Pr. 
 N. S. 1; Grant \. Webb, 21 Minn. 39; 
 Knight v. Nash, 22 Minn. 452; Mc- 
 Cord V. Weil, 33 Neb. 868, 29 Neb. 
 682; Hovey v. McDonald, 109 U. S. 
 150, 27 L. ed. 888. 
 
 ^Daley. Kent, 58 Ind. 584; Buchanan 
 V. Berkshire L. Ins. Co. 96 Ind. 510; 
 Shannon v. Hanks, 88 Va. 338; Sf7iith 
 V. Butcher, 28 Gratt. 144; Ruffner v. 
 Hairs, 33 W. Va. 655.
 
 MATTERS RELATING TO THE APPOINTMENT. 
 
 71 
 
 In otlier states, not being a final order, it is not appealable.' 
 And so also where the evidence is conflicting/ But an order 
 based on a motion to vacate the order appointing a receiver is not 
 subject to appeal, or writ of error/ And where the order ap- 
 pealed from is in the discretion of the court granting it, it is not 
 subject to review unless the court has abused its discretion/ 
 
 'Under act of March 3, 1891, 26 
 Stat. 826, chap. 517, § 6, the United 
 States Court of Appeals will not re- 
 view an order for the appointment of 
 a receiver. Florida Constr. Co. v. 
 Toung, 11 U. S. App. 683. The rule 
 is the same under the acts of Congress 
 regarding appeals to the Supreme 
 Court of the United States. Grant v. 
 Plmnix Mut. L. Ins. Co. 106 U. S. 429, 
 27 L. ed. 257. The requirement is that 
 the order from which the appeal is 
 desired must terminate the litigation 
 of the parties on the merits of the 
 case, so that if there should be an af- 
 firmance in the upper court, the court 
 below would have nothing to do but 
 to execute the decree it had already 
 rendered. Id. See also. Whiting v. 
 Bank of U. S. 38 U. S. 13 Pet. 6, 10 
 L. ed. 33; Forgay v. Conrad, 47 U. S. 
 € How. 201, 12 L. ed. 404; Craighead 
 V. Wilson, 59 U. S. 18 How. 199, 15 
 L. ed. 332; Beebe Y.Russell, 60 U. S. 
 19 How. 283, 15 L. ed. 668; Branson 
 V. La Crosse & M. R. Co. 67 U. S. 3 
 Black, 524, 17 L. ed. 359; Thomsons. 
 Bean, 74 U. S. 7 Wall. 342, 19 L. ed. 
 i)7; 8t. Glair County v. Lovingston, 85 
 U. S. 18 Wall. 628, 21 L. ed. 813; 
 Parcels v. Johnson, 87 U. S. 20 Wall. 
 653, 22 L. ed. 410; North Carolina R. 
 Co. V. Swasey, 90 U. S. 23 Wall. 405, 
 23 L. ed, 136; Crosby v. Buchanan, 
 90 U. S. 23 Wall. 420. 23 L. ed. 138; 
 Tippecanoe County Comrs. v. Lucas, 
 93 U. S. 108, 23 L. ed. 822; Bostwick 
 V. Brinkerhoff, 106 U. S. 3, 27 L. ed. 
 73; Wilson y. Davis, 1 Moat. 98; Em- 
 
 mett V. Oarnett,! M&ckey, 53; Meadow 
 Valley Min. Co. v. Dodds, 6 Nev. 261 ; 
 Eaton & H. R. Co. v. Varnum, 10 Ohio 
 St. 622; Cincimiati, S. & C. R. Co. v. 
 Sloan, 31 Ohio St. 1; Holden, &c. v. 
 McMakin,! Par. Sel. Eq. Cas. 270; 
 WoodY. Brewer, 9 Ind. 86; Coates v. 
 Cunningham, 80 111. 467; Kansas 
 Rolling Mill. Co. v. Atchison, T. & 8. 
 F. R. Co. 31 Kan. 90; Boyd v. Cook, 
 40 Kan. 675; Hottenstein v. Conrad, 5 
 Kan. 249; Hanon Y.Weil, 69 Miss. 
 476; Duncan v. Campau, 15 Mich. 415; 
 East & West Texas L. Co. v. Williams, 
 71 Tex. 444. 
 
 ''Naylor v. Sidener, 106 Ind. 179; 
 Journeay v. Brown, 20 N. J. L. Ill; 
 Robenson v. Ross, 40 Ga. 375 ; Cohen v. 
 Meyers, 42 Ga. 46. 
 
 ^ Coates Y. Cunningham, 80 111. 467; 
 Farson v. Oorham, 117 111. 137 (see 
 statute); Hull y. Caughy, 66 Md. 
 104. 
 
 *Neeves Y.Boos, 86 Wis. 313; Fel- 
 lows Y. Heermans, 13 Abb. Pr. N. S. 
 1; Nimocks v. Cape Fear Shingle Co, 
 110 N. C. 230; Gardner v. Iloicell, 60 
 Ga. 11; Crawford v. Spurling, 56 Ga, 
 611; GvnbyY. Thompson, 56 Ga. 316; 
 Reid V. Reid, 38 Ga. 24; Baird v, 
 Cumberland & 8. R. Tump. Co. 1 
 Lea, 394; Bramley v. Tyree, 1 Lea, 
 531; Johnston v. Uanner, 2 Lea, 8; 
 Roherson y . Roberson, 3 Lea, 50; La 
 Societe Francaise D'epergenes v. 15th 
 Judicial Dist. Ct. 53 Cal. 495; Emerie 
 V. Alvarada, 64 Cal. 529; Journeay v. 
 Brown, 20 N. J. L. Ill; Brown v. 
 Vandermuelen, 41 Mich. 418- Beecher
 
 72 
 
 RECEIVERSHIPS. 
 
 (1) The effect of an appeal taken from an order appointing a 
 receiver has given rise to numerous conflicting decisions. It 
 may, liowever, be stated as reasonably clear from the weight of 
 authority : 
 
 (1) That after an appeal and before the receiver has taken pos- 
 session the property is unaffected by the order.' 
 
 (2) "When an appeal has been taken from an order appointing a 
 Teceiver 2)ende7ite lite the power of the court making the order 
 and its officers is suspended in reference to the order appealed 
 from, and the order remains inoperative pending the appeal." On 
 
 V. Marquette & P. Rolling Mill. Co. 40 
 Mich. 307. 
 
 ' Cook V. Cole, 55 Iowa, 70. 
 
 The court cannot, in anticipation of 
 a judgment, make an order continu- 
 ing a receivership after judgment, 
 during the pendency of appeal, which 
 may be taken. Thus, an order en- 
 tered subsequent to the order of ap- 
 pointment, continued the receivership 
 "for thirty days after the entry of 
 judgment in the action, and if an ap- 
 peal shall be taken until thirty days 
 after the decision of the appeal by the 
 General Term, and in like manner 
 until after the decision of any appeal 
 •which might be taken," Held, unau- 
 thorized. Colwell V. Garfield Nat. 
 Bank, 119 N. Y. 408 (see code). 
 
 ^State v. Johnson, 13 Fla. 33: Allen 
 V. Chadburn, 8 Baxt. 225; Chicago & 
 S. R. Co. v. Cason, 133 Ind. 49; Su- 
 preme Sitting of 0. of 1. H. v. Baker, 
 134 Ind. 298, 20 L. R. A. 210; State 
 V. Johnson, 13 Fla. 33. 
 
 When an appeal is taken from an 
 order appointing a receiver and a su- 
 persedeas bond given as required by 
 law the power of the receiver is sus- 
 pended, and the property must be 
 restored. Farmers' Nat. Bank, etc. v. 
 Backus, 2 Am. & Eng. Corp. Cas. N. 
 8 397. 
 
 When an appeal with supersedeas is 
 taken from an interlocutory order 
 
 that part of the case which is appealed 
 is completely removed from the juris- 
 diction of the lower court. Farmers^ 
 N. B. etc. V. Backus, 1 Am. & Eng. 
 Corp. Cas. N. S. 397. 
 
 An appeal from an order appointing 
 operates as a stay upon all proceed- 
 ings under the order. Virginia T. & 
 C. Steel & Iron Co. v. Wilder, 88 Va. 
 942. 
 
 Taking an appeal from an order ap- 
 pointing a receiver pendente lite, and 
 fllinga supersedeas bond in accordance 
 with Minn. Gen. Stat. 1894, t^ 6142, 
 providing that the effect of the appeal 
 with such bond is to "stay all pro- 
 ceedings" on the order and "save all 
 rights affected thereby," suspend the 
 power of the receiver and render the 
 order inoperative pending the appeal, 
 making it the duty of the receiver to 
 restore the possession of any property 
 he may have taken under the order. 
 Farmers' Nat. Bank v. Backus (Minn.) 
 65 N. W. 255. 
 
 A receiver of an insolvent corpora- 
 tion cannot appeal from a decree dis- 
 tributing the assets, as he is not in- 
 jured thereby. CJiicago Title & T. Co. 
 V. Caldwell, 58 Dl. App. 219. 
 
 An order affirming an interlocutory 
 decree of a lower court is only an adju- 
 dication by the appellate court that 
 the action of the court below was not 
 erroneous. The jurisdiction of the
 
 MATTERS RELATING TO THE APPOINTMENT. 73 
 
 the contrary, where the order appealed from is an order of adju- 
 dication in an insolvency proceeding in wliich a receiver was ap- 
 pointed it was held that the functions of the receiver were not 
 suspended.' There is not entire harmony in the cases as to the 
 effect of an appeal in regard to a receivership, but it would seem, 
 however, that in all cases when the order appointing a receiver is 
 appealable, and an appeal is taken, tliat the receivership is sus- 
 pended pending the appeal ; and that when the order appointing 
 is only interlocutory, and the appeal is from the iinal decree, the 
 receivership is not suspended, and especially so if the receiver is 
 2ijpendente lite receiver simj)ly. 
 
 §23. Bond. 
 
 (a) Except in a few cases it is a necessary incident and a re- 
 quirement that the receiver shall give bond, or recognizance, with 
 sureties to be approved by the court or master, as the statute or 
 practice may require, in such amount as shall appear requisite to 
 amply secure all persons whose interests are involved.'' The ap- 
 pointment is not perfected until the person selected has filed the 
 
 court below reverts after the suspen- ^Banks v. Potter, 21 How. Pr. 469; 
 
 sion caused by the appeal. San An- Voorhees v. Seymour, 26 Barb. 569; ife 
 
 to7iio, etc. O. S. R. Co.y. Davis, 2 Am. Eagle Iron Works, 8 Paige, 885; West 
 
 & Eng. Corp. Gas. N. S. 374. v. Fraser, 5 Sandf. 653; Lotlimer v. 
 
 '^ Be Real Estate Associates, 58 Cal. Lord, 4 E. D. Smith, 183; Wilson v. 
 
 356; Coburn v. Ames, 52 Cal. 385; Von Allen, 6 Barb. 542; Fairfield v. Wes- 
 
 Roun V.San Francisco Super. Ct. 58 ion, 2 Sim. & Stu. 96; Williamson v. 
 
 Cal. 358; Swing v. Townsend, 24 Ohio Wilson, 1 Bland, C!h. 418; Tomlinson 
 
 St. 1; Brien V.Paul, 3 Tenn. Ch. 357; v. Ward, 2 Conn. 396; Manners v. 
 
 Schenk v. Reap, 1 Dill. 267; Smith v. Furze, 11 Beav. 30; Tylee v. Tglee, 17 
 
 Allen, 2 E. D. Smith, 2.59; Stafford v. Beav. 583; Simmons v. Henderson, 1 
 
 Union Bank, 57 U. S. 16 How. 135, Freem. Ch. (Miss.) 493; Jones v. 
 
 14 L. ed. 876. And in Hovey v. Mc- Douglierty, 10 Ga. 273; McDonald v. 
 
 Donald, 109 U. S. 150, 27 L. ed. 888, Dougherty, 11 Ga. 570;Williams v. Jen- 
 
 •where an appeal was taken from an kins, 11 Ga. 595; JoJms v.JoJcns, 23 
 
 order appointing a receiver, and a Ga. 'd\; Whitehead v. Woolen, 43 Miss, 
 
 supersedeas filed the property did b2Z\Woodsv. Ellis, 85 Va. ^11; John- 
 
 not pass into the custody of the law son v. Martin, 1 Thomp. & C. 504; 
 
 until the receiver actually took pos- Defries v. Creed, 34 L. J. N. S. Eq. 
 
 session after the affirmance of the su- 607; Edwards v. Edioards, L. R. 2 Ch. 
 
 preme court. Div. 291; Mead v. Orrery, 3 Atk. 235, 
 
 Where a receiver is appointed in but see Dilling v. Foster, 21 S. C. 334; 
 
 two suits, and one is appealed, see Shulle v. Uoff'man, 18 Tex. 678. 
 Lcttimer v. Lord, 4 E. D. Smith, 183.
 
 74 
 
 RECEIVERSHIPS. 
 
 required bond, and when that is done liis appointment operates 
 by relation from the time of making the order.' 
 
 Whatever may have been the early practice in the Eno;lish 
 court of chancery, in exceptional cases, of appointing a receiver 
 without bond by consent of parties, such practice is no longer in 
 force in this country and never was in the Irish court of chan- 
 cery." 
 
 ^Be Schuyler Steam Tow Boat Co. 
 136 N. Y. 169, 20 L. R. A. 391; Be 
 Chrislian Jensen Co. 128 N. Y. 550; 
 Butter V. TalUs, 5 Sandf. 610; Stoi-m 
 V. Waddell, 2 Sandf. Ch. M4;Wilsonv. 
 Allen, 6 Barb. 542; Be Berry. 26 Barb. 
 55 -yVoorliees v. Seymour, 26 Barb. 581; 
 Deming v. Neio Toi'k Marble Co. 12 
 Abb. Pr. 66; Mann v. Pentz, 2 Sandf. 
 Ch. 257; Porter v. Williams, 9 N. Y. 
 142; Van Alstyne v. Cook, 25 N. Y. 
 489; Johnson v. Martin, 1 Thomp. & 
 C. 504; Maynard v. Bond, 67 Mo. 315; 
 Be Eagle Iron Works, 8 Paige, 383; 
 Weil V. Tyler, 38 Mo. 545; Alex-ander 
 V. Merry, 9 Mo. 524; Steele v. Slurgis, 
 5 Abb. Pr. 442; Lottimer v. Lord, 4 
 E. D. Smith, 183; Tomlinson v. Ward, 
 2 Conn. 396; Fairfield v. Weston, 2 
 Sim. & Stu. 95; Clinkscales v. Pendle- 
 ton Mfg. Co. 9 S. C. 318; Begenstein v. 
 Pearlestein, 30 S. C. 192; Ex parte 
 Etans, Be Watkins, L. R. 13 Ch. Div. 
 252. This case is based upon the doc- 
 trine that the appointment of a re- 
 ceiver is in the nature of an equitable 
 execution. Be Schuyler Steam, Tow 
 Boat Co. 43 N. Y. S. R. 163. 
 
 A contrary doctrine is held in, De- 
 fries V. Creed, 34 L. J. Eq. N. S. 607; 
 Edwards v. Edwards, L. R. 2 Ch. Div. 
 291 (see L. R. 13 Ch. Div. 255); Far- 
 mers Bank v. Beaston, 7 Gill. & J. 421; 
 Woods V. Ellis, 85 Va. 471 ; Noyes v. 
 Bich, 52 Me. 115. 
 
 As will be seen the great weight of 
 authority is in favor of the doctrine 
 6tated in the text, and is based upon 
 the following propositions : (1) The 
 
 appointment of a receiver is in the 
 nature of an equitable execution, and 
 relates to the date of the order made. 
 
 (2) If this doctrine were not to prevail 
 endless confusion and waste would 
 ensue from permitting parties with 
 executions and attachments to inter- 
 vene between the date of the order 
 and the perfecting of the same by giv- 
 ing bond, and dissipate the property. 
 
 (3) That inasmuch as the appoint- 
 ment of itself does not disturb exist- 
 ing rights or liens, there can be no 
 valid reason for permitting the cus- 
 tody of the property or fund to be 
 distributed among rival officers and 
 disputing claimants. 
 
 * Bailie v. Bailie, 1 Ir. Eq. 413. 
 
 On appointment the court will re- 
 quire receiver to give bonds. Tomr 
 linson v. Ward, 2 Conn. 396. 
 
 After a decree for the sale of real 
 estate to satisfy creditors having liens 
 thereon, and an appeal from such de- 
 cree by the debtor, the court below, 
 in which the suit was pending, may 
 appoint a receiver to take possession 
 of the property and rent it out, and 
 collect the rents, until the further 
 order of the court; and where, in such 
 case, the sergeant of the city in which 
 the property was located was ap- 
 pointed the receiver, — Held, not nec- 
 essary to require him to give a bond 
 for the faithful performance of his 
 duty, as it was covered by his oflBcial 
 bond. Va. Code 1873, 1124, chap. 
 174, § 5. Moran v. Johnston, 26 
 Gratt. 108.
 
 MATTERS RELATING TO THE APPOINTMENT. 
 
 75 
 
 Prior to the filino^ of a bond by the receiver as required by the 
 order, the receiver is unauthorized to sue/ but this rule does not 
 apply to a case where the order does not require the giving of 
 security," 
 
 (b) In the absence of statutory requirements the bond is given 
 to the people, the state, or the clerk of the court, and must be 
 
 "Where the appointment of a re- 
 ceiver is to obtain a charge upon the 
 defendant's property and not to take 
 possession thereof, or collect rents, 
 the receiver need not give bonds, the 
 receiver and plaintiff undertaking not 
 to act without leave of court. Ilew- 
 ett V. Murray, 54 L. J. Ch. 572, 52 L. 
 T. 380. 
 
 Where the bond given by a receiver, 
 upon his appointment in a suit for an 
 account and settlement of co-partner- 
 nership concerns, is not filed in the 
 proper office, through inadvertauce, 
 the court may direct it to be filed 
 nunc pro tunc. Whiteside v. Pi'ender- 
 gast, 2 Barb. Ch. 471. 
 
 A law (2 Md. Code Pub. Local 
 Laws, 28, 29) requiring the bond of a 
 receiver to be approved by the court, 
 but not making such approval a con- 
 dition precedent. Held, to be only 
 directory, and an approval nunc pro 
 tunc will be valid. Gephart v. Star- 
 rett, 47 Md. 396. 
 
 A special receiver, to whom money 
 is directed to be paid by a decree, 
 ehould be required to give bond with 
 approved personal securitj', with 
 proper conditions, in a penalty to be 
 fixed by the court, before he is author- 
 ized to receive the money, or any part 
 thereof. Carper v. Hawkins, 8 W. Va. 
 291. 
 
 See also note 1, p. 74. 
 
 Where a receiver is appointed over 
 the same property in separate suits, a 
 bond in each action is said not to be 
 imperative. Hanks v. Potter, 21 How. 
 Pr. 409. 
 
 ' Where a receiver brought suit to 
 set aside certain alleged fraudulent 
 conveyances made by a debtor, it ap- 
 peared that the receiver had executed 
 an obligation in the form of a bond, 
 but with only one surety and was 
 without seal. Held, on objection for 
 non-compliance with the order of ap- 
 pointment, that the suit should be dis- 
 missed. Johnson v. Martin, 1 Thomp. 
 & C. 504; Banks v. Hotter, 21 How. 
 Pr. 469; Conger v. Sands, 19 How. 
 Pr. 8; Voorhees v. Seymour, 26 Barb. 
 569. It was subsequently held, how- 
 ever, that an informality in the bond, 
 as that it was not under seal, could 
 only be taken advantage of by a debtor 
 defendant and not by a third person. 
 Moi-gan v. Potter, 17 Hun, 403, citing 
 Tyler Y.Willis, 32 Barb. 327; Under- 
 wood V. Sutcliffe, 10 Hun, 453. 
 
 2 In Wilson v. Welch, 157 Mass. 77, 
 the court say: "The fact that the 
 complainant (receiver) has not given 
 a bond is not a defense to this suit. 
 Any person interested can apply to 
 the court to have this done if thought 
 necessary; but it is not contended 
 that the decree appointing him re- 
 ceiver was on condition that he should 
 first give a bond or that it required 
 him to give a bond." In the absence 
 of direct evidence it is reasonable to 
 assume that the court on entering an 
 order authorizing suit by the receiver 
 ascertained that the plaintiff had duly 
 qualified as receiver. Hcgewisch v. Sil- 
 ver, 140 N.Y. 414.
 
 76 RECEIVERSHIPS. 
 
 approved by the court, or by the clerk of the court, where the 
 latter is permissible, and it is so ordered.' 
 
 The order sliould provide for the amount of the bond, taking 
 into consideration the value of the property to be placed in the 
 receiver's custody and control, and the nature and character of 
 the trust imposed upon him. The bond is at all times subject to 
 the order and direction of the court, and if by death of a surety, 
 or insolvency, or other good cause, the bond is not complete or 
 the security ample the court may, on proper application, order a 
 new bond to be given, or new surety taken.'' 
 
 (c) The sureties must be persons competent to bind them- 
 selves, and be financially responsible for the amount of the re- 
 quired bond. The approval of the sureties being in the discretion 
 of the court, and the object sought being the financial responsi- 
 bility of the persons tendered, it is not absolutely essential in this 
 country that the sureties shall be freeholders,' or even residents 
 of the state or district in which the action is pending." And the 
 surety may be a natural person, or a corporation organized as a 
 guaranty company. A surety may be discharged upon obtaining 
 the verified consent of the receiver and the remaining surety, 
 stating that the discharge shall be without prejudice to other par- 
 
 1 It is desirable in all cases that the form and not of substance does not 
 
 bond should be presented for approval invalidate, it would seem. Schoharie 
 
 and approved at the earliest practi- v. Pindar, 3 Lans. 8; Farley v. Mc- 
 
 cable moment after the entry of the Connell, 7 Lans. 428; Wiser v. Blachly, 
 
 order. And -where by inadvertance 1 John. Ch. 607. 
 the bond is filed in an improper office ^ Aterall v. Wade, Flan. & K. 325; 
 
 ( Whiteside v. Prendergast, 2 Barb. Ch. Shackelford v. Shackelford, 82 Gratt. 
 
 471) or for any other cause the bond 481. 
 
 is not approved at the time of entering 2^Q(jer the English practice sure- 
 
 the order, it may be approved nunc ties were required to be within the 
 
 pro tunc. Vavghanv.Vaughan, Dick. jurisdiction of the court, and under 
 
 90. This is a bond given pursuant to the Irish practice they were required 
 
 an order or judgment of court, and is to be owners of real estate. Cockburn 
 
 part of the machinery by which it is v. Raphael, 2 Sim. & Stu. 453. 
 enabled to carry out its judgment, * Taylor v. Life Association of Amer- 
 
 and is therefore one given in pursu- ica, 3 Fed. Rep. 465; Colemore v. 
 
 ance of law, but is not an official bond North, 21 W. R. 43. 42 L. J. Ch. 4. If 
 
 in a statutory sense. Titus v. Fair- a surety dies insolvent, a new bond 
 
 child, 17 Jones & S. 211; Gerould v. will be required. Avei-all v. Wade, 
 
 Wilson, 81 N. Y. 578. A defect in Flan. & K. 341.
 
 MATTERS RELATING TO THE APPOINTMENT. 
 
 77 
 
 ties as to the past or future liability, accompanied by the declara- 
 tion that they, the receiver and remaining surety, will not rely as 
 a discharge on the vacating of the recognizance as to one of the 
 parties, in any proceeding against them ;' but the court will not 
 vacate the receiver's jecognizance at the time of his discharge, 
 even upon the consent of all parties.' Neither will sureties on 
 the bond be discharged upon their own request,^ unless under- 
 hand practice is proved and the person secured shown to be con- 
 nected with such practice." Where a receiver becomes insane, 
 his sureties may pass the accounts, pay any balance into court, 
 and thus be discharged.* 
 
 (d) It is a necessary prerequisite to a suit on the receiver's 
 bond that there shall have been an order of the court upon the 
 receiver to render an account, and a default by him,* or a rule 
 upon him to pay over. The court will not permit a suit on a 
 receiver's bond merely upon a showing that something is due, 
 but the precise amount must be stated.' The statute of limita- 
 
 » O'Eeeffe v. Armstrong, 2 Ir. Ch. 
 115; Callaghanv. CaUaghan, 8 Ir. Eq. 
 572. 
 
 « Fitzgerald v. Hill, 2 Ir. Eq. 398. 
 
 3 Griffith V. Griffith, 2 Ves. Sr. 400. 
 
 * Hamilton v. Brewster, 2 Moll. 407. 
 
 * Webb v.Cashel, 11 Ir. Eq. 558; Rich- 
 ardson V. Ward, 6 Madd. 266. 
 
 ^Atkinson v. Smith, 89 N. C. 72; 
 Titus V. Fairchild, 17 Jones & S. 211; 
 French v. Dauchy, 57 Hun, 100. 
 
 In the case of Atkinson v. Smith, 
 ante, the court say : " The regular 
 cour.se of procedure, according to well 
 established practice in cases like this, 
 is to proceed against the receiver in 
 the first instance, and if he shall fail 
 in the proper discharge of his duty 
 within the scope of his bond, then to 
 obtain leave to sue upon his bond. It 
 may be that in some cases the surety 
 might by order of court, and upon 
 reasonable notice, be brought into the 
 action in which the receiver had been 
 appointed and proceeded against there- 
 
 in. But this is not the usual course 
 pursued, nor is it to be encouraged, if 
 indeed it could be sustained in any 
 case. Bank of Washington v. Credit- 
 ors, 86 N. C. 323; Gerould v. Wilson, 
 81 N.Y. 573; State v. Gibson, 21 Ark. 
 140; People v. Murdoch, 50 III, App. 
 311. 
 
 "* Ludgater\. Channell, 15 Sim. 479, 
 3 Macn. & G. 175. Here the rule is 
 criticised, and decided that where the 
 receiver has absconded and it there- 
 fore becomes impracticable to ascer- 
 tain what is due from him, suit may 
 be maintained against the sureties. 
 Daniel's Ch. vol. 2. p. 1757 (4th Am. 
 ed.). And where an attachment has 
 beeii '""oued against a receiver and he 
 cone. -Is himself so that service can- 
 not be had upon him, service of the 
 order to put his recognizance in suit 
 may be had upon his solicitor wivh 
 whom he is in communication. 0' Far- 
 veil V. McCan, 7 Ir. Eq. 63.
 
 78 
 
 RECEIVERSHIPS. 
 
 tions is not pleadable to a scire facias upon a receiver's bond,' by 
 reason of the trust relationship which the receiver occupies. 
 
 (e) The principal being held to a strict accountability to the 
 court, it follows that his sureties are also liable strictissimi juris. 
 The scope of their liability, in general, is determined by the 
 terms and conditions of the bond or recognizance, and as a rule 
 the liability is enforced by a common law action on such bond.'^ 
 The extent of the liability may be determined in the proceeding 
 in W'hicli the receiver is appointed, upon notice to the sureties 
 and an opportunity for them to be heard ;" they are not, how- 
 ever, bound by the action of the court in fixing the liability and 
 the amount thereof, when not made parties to the proceeding, 
 and have therefore not been heard." The sureties are liable (1) 
 for all jnoney coming into the hands of the receiver at the time 
 
 ^Reg. V. Bayly, 4 Ir. Eq. 143; Sea- 
 gram V. Tuck, L. R. 18 Ch. Div. 296. 
 The rule barring the application of 
 the statute of limitations is based upon 
 two grounds : (1) the debt is held to 
 be a record, and (2) is due on a trust. 
 "It is important," says Kay, J., in 
 Seagrams. Tuck, "to hold the posi- 
 tion of a receiver to be one in which 
 liability to account would not easily 
 be barred, and so lorg as he was liv- 
 ing he must be held to have been a 
 trustee of the money. Whether the 
 debt is held to be of record or to be 
 one on a trust, either would be an 
 answer to the defense of the Statute 
 of Limitations." 
 
 2 Thurman v. Morgan, 79 Va. 367; 
 Weems v.Lathrop, 42 Tex. 207; Atkin- 
 son V. Smith, 89 N. C. 72; Bank of 
 Washington v. Creditors, 86 N. C. 323; 
 State v. Gibson, 21 Ark. 140; Ludgater 
 V. Channell, 3 Macn. & G. 175. 
 
 In Atkinson v. Smith, ante, the court 
 say: "The well settled practice in 
 cases like this is to proceed against the 
 receiver in the first instance, and if he 
 shall fail in the proper discharge of 
 his duty within the scope of his bond, 
 
 then to obtain leave to sue on the 
 bond." 
 
 ^Ball V. Chancellor, 47 N. J. L. 125; 
 Com. v. Qould, 118 Mass. 300; Nulton 
 v. Isaacs, 30 Gratt. 726. The sureties 
 not being officers of court are not sub- 
 ject to the orders of the court respect- 
 ing the default of the receiver and the 
 payment thereof, unless they have ob- 
 tained possession of the trust fund. 
 Seidenbach v. Denklespeil, 1 1 Lea, 297. 
 
 And see Atkinson v. Smith, 89 N. C. 
 72; Bank of Washington v. Creditors, 
 86 N. C. 323. 
 
 ^ Thomson v. MacOregor, 81 N. Y. 
 592. It may be possible, however, for 
 the sureties to make themselves liable 
 by the terms of the bond, as where 
 there is a special covenant in the bond 
 making an adjudication against the 
 principal binding on the surety. Doug- 
 lass V. Rowland, 24 Wend. 35; Thomas 
 v. Hubbell, 15 N. Y. 407; Thayer v. 
 Clark, 4 Abb. App. Dec. 391 ; Rapelye 
 V. Prince, 4 Hill, 119; Baggoit v. Boul- 
 ger, 2 Duer, 160; Smart v. Flood, 49 
 L. T. 467; limited only by the amount 
 of the bonds. Graham v. Noakes [1895} 
 1 Ch. 66, 64 L. J. Ch. 98.
 
 MATTERS RELATING TO THE APPOINTMENT. 79 
 
 of liis giving bond and what he receives thereafter, but not for 
 acts of the principal prior to the giving of the bond unless the 
 terms of the bond make them so." This liability continues 
 though the order appointing a receiver is subsequently annuled 
 on appeal,'' or the suit discontinued.^ (2) They are also liable for 
 money which the receiver had borrowed from the debtor prior 
 to his appointment, and failed, as receiver, to account for; and 
 (3) for interest on a balance due from the receiver, unless there 
 has been great delay in passing the receiver's accounts ;^ (4) and 
 for costs of proceedings taken to enforce payment of a balance 
 due from the receiver.' 
 
 ' Tlwmson v. MacOregor, 81 N. Y. *Com. v. Gould, 118 Mass. 300. 
 
 592 (reversing 13 Jones &, S. 197); ^Dawson v. Raynes, 2 Russ. Ch. 
 
 Bissell V. Saxion, G6 N. Y. 60; United 466. 
 
 States V. Giles, 13 U. S. 9 Cranch, 212, ^ He Lockey, 1 Phill. Ch. 508, 14 L, 
 
 3 L. ed. 708; Farrar v. United States, J. Ch. N. S. 164; Maunsell v. Egan, 8 
 
 30 U. S. 5 Pet. 373, 8 L. ed. 159. Ir. Eq. 372; Contra Walters v. Walters, 
 
 ■Macready v. Schenck, 41 La. Ann. 11 Ir. Eq. 335. See also Marm v. Sten- 
 
 456. neit, 8 Beav. 189. 
 
 'State V. GibiiO}i, 21 Ark. 140.
 
 CHAPTER III. 
 
 RECEIVER'S POWERS. 
 
 § 24. Generally. 
 
 § 25. Source of power; incidents. 
 
 (a) Power should be embraced in 
 
 order. 
 (1) Application to court for in- 
 structions, English rule. 
 {S) American rule. 
 
 (b) Practice of the court. 
 
 (c) Power of statutory receivers, 
 
 express or implied. 
 
 (d) Powers being limited is notice 
 
 to all. 
 
 (e) Powers remain during continu- 
 
 ance of suit. 
 
 (f) Irregular appointment, con- 
 
 firmed how. 
 § 26. Power to borrow money. 
 
 (a) When to carry on business. 
 
 (b) To complete road, etc. 
 § 27. Power to loan money. 
 
 (a) Must have specific power. 
 
 (b) Cannot loan to himself or to 
 
 his firm. 
 
 (c) Conversion by firm. 
 
 (d) When liable for interest. 
 
 § 28. Power to compromise debts. 
 
 (a) May do so under direction of 
 
 court. 
 
 (b) May be given general power to. 
 
 (c) No power where defendant 
 
 has fraudulently trans- 
 ferred. 
 
 (d) Noauthority tocommutedebts. 
 
 (e) No authority to accept stock 
 
 when. 
 § 29. Power to employ counsel. 
 
 (a) Must have general or special 
 
 power. 
 
 (b) Who employed. 
 
 (i) Not counsel of either party. 
 {2) Third parties no voice in 
 selection, 
 
 (3) Complainant's counsel when 
 
 proper. 
 
 (4) When plaintiff's counsel 
 
 cease to be such. 
 § 30. Power to sue. 
 
 (a) All suits under direction of 
 
 court. 
 
 (b) Rights of action available to 
 
 debtor are to him, etc. 
 
 (c) Leave of court necessary. 
 
 (d) Necessary allegations. 
 
 (e) Power to avoid what con- 
 
 tracts. 
 § 31. Power to make repairs. 
 
 (a) Without order power limited. 
 
 (b) Power liberal when repairs 
 
 permanent. 
 § 32. Power to purchase supplies, 
 
 labor, etc. 
 § 33. Power to continue business. 
 § 34. Power to sell, purchaser's title. 
 
 (a) Right to sell real and per- 
 
 sonal estate, 
 (i) Order of court directing. 
 (f) Must describe property. 
 
 (b) Evidence of title; purchaser's 
 
 requirement. 
 
 (c) Sale not subject to collateral 
 
 attack. 
 § 35. Power to perform existing con- 
 tracts; limitations.
 
 RECEIVER'S POWERS. 81 
 
 <a) Generally such power not § 37. Power over property in foreign 
 granted. jurisdiction. 
 
 (1) It would be a payment. (a) English rule. 
 
 (2) Receiver agent of court and (b) American rule. 
 
 not of owner. § 38. Power to impeach fraudulent 
 (S) Would be a preference as to acts of debtor. 
 
 creditors. § 39. Power to collect unpaid stock 
 (b) May complete under order of subscriptions. 
 
 court. § 40. Power to issue certificates. 
 
 ig 36. Power to lease. § 41. Power to appeal. 
 
 (a) When he may do so. § 43. Miscellaneous powers. 
 
 (b) Power to cancel lease when. 
 
 § 24. Generally. 
 
 The powers of a receiver are derived from two sources, and 
 are to be determined from the nature of the proceeding and the 
 duties imposed upon him, by virtue of his office. As we have 
 seen, the appointment of a receiver is the exercise of a purely 
 provisional remedy by a court of chancery. The courts of chan- 
 cery, both in this country and in England, by a long line of 
 ■decisions reaching back for more than two centuries, have marked 
 out the jurisdiction exercised by courts in this respect and defined, 
 with tolerable accuracy, the cases in which this extraordinary 
 power is exercised.' So that as a primary source of power 
 we are to look to rules of practice as established by courts of 
 equity in the appointment of receivers. In some states and 
 countries where no chancery courts exist as distinctive courts of 
 general jurisdiction, the common law courts of general jurisdic- 
 tion are vested with chancery powers and administer this branch 
 of equity jurisprudence, but are still guided by the general prin- 
 ciples established by the courts of chancery. With the introduc- 
 tion of the code practice in most of the states of this country, and 
 the modifications of the common law practice, by statutory enact- 
 ments in other states and countries the jurisdictions of courts in 
 the appointment of receivers has been somewhat enlarged, as well 
 as the scope and powers of receivers, in some particulars, but the 
 general scope of the law of receivership, practice and powers of 
 receivers remains comparatively unafiiected by the code enact- 
 ments. In many of the states, however, are found special 
 statutes relating to insolvency, corporations and kindred matters 
 
 ' Corey v. Lonr/, iS Abb. Pr. N. S. 427. 
 6
 
 82 
 
 RECEIVERSHIPS. 
 
 wherein are special provisions relating to the appointment of 
 statutory receivers, their functions, powers, duties, and official 
 relations, which are sui generis^ and are treated of herein under a 
 special chapter. Of such character are the Companies Act, and 
 various winding-up acts of England, principally relating to cor- 
 porations, in which the ministerial officer charged with speciiic 
 duties analogous to those of receivers, and designated as liquida- 
 tors, are appointed, sometimes by the corporations, and sometimes- 
 by the courts. 
 
 § 25. Source of power ; incidents. 
 
 (a) Powers should be embraced in order. 
 
 Owing to the nature of the proceeding, and the objects sought 
 to be accomplished by the receivership, and to the fact that the 
 appointment of a receiver rests, in all cases, in the sound judicial 
 discretion of the court, the receiver's powers and duties should be 
 embodied in the order of appointment.' The order of appoint- 
 
 ' Grant v. Davenport, 18 Iowa, 179; 
 Davis V. Gray, 83 U. S. 203, 21 L. ed. 
 447; Hooper v. Winston, 24 111. 353. 
 In this case it was contended that the 
 powers of the receiver were enlarged 
 and extended by stipulation of the 
 parties, and that by reason thereof he 
 was vested with larger discretionary 
 powers than ordinarily attach to a 
 receivership. But the court say: 
 "We do not deny that he had some 
 discretion in this matter, but it was 
 very limited. We hold, being an 
 officer of court, he should have ap- 
 plied to the court for leave to make 
 these expenditures, and he is answer- 
 able to the court for the exercise of 
 all his powers." In Benneson v. Bill, 
 62 111. 408; Teager v. Wallace, 44 Pa. 
 296; People v. St. Nicholas Bank, 76 
 Hun, 522; Verplanck v. Mercantile 
 Ins. Co. 2 Paige, 438, 452; Re Colvin, 
 3 Md. Ch. 278. See discussion of the 
 powers of temporary and permanent 
 receivers in Herring v. New York, L. 
 E. &W. B. Co. 105 N. Y. 340. The 
 
 original order may be enlarged from 
 time to time as the exigencies of the 
 case may require. " Since the re- 
 ceiver is an otflcer, or, as he is some- 
 times called, ' the hand ' of the court,, 
 it would be singular if he could not, 
 at any time, go to it with his com- 
 plaint, or for instructions in regard 
 to any matter touching the fund 
 placed in his custody." People, Atty. 
 Gen., V. Security L. Ins. & Anmtity 
 Co. 79 N. Y. 270; Curtis v, Leavitt, 1 
 Abb. Pr. 274. As to what is em- 
 braced in the scope of the order see 
 Benneson v. Bill, supra; American 
 Const. Co. V. Jacksonville, T. & E. 
 W. B. Co. 52 Fed. Rep. 937. While 
 it is true that the receiver is an ofBcer 
 of the court, yet that fact does not 
 confer upon him any special privi- 
 leges so far as rights of action are 
 concerned over other persons bringing 
 suit. New Brunswick State Bank v. 
 First Nat. Bank, 34 N. J. Eq. 450. 
 Such a receiver has only the power 
 and authority given him in his orders.
 
 RECEIVER'S POWERS. 83 
 
 ment should point out distinctly the general scope of the re- 
 ceiver's powers and duties so that, at least in a general sense, he 
 will be enabled to understand the official duties imposed upon 
 him, and for the faithful discharge of which he is to become 
 responsible. (1) By the earlier English practice the receiver was 
 supposed to occupy a position of such extreme indifference as 
 between the parties that all applications to the court for directions 
 to the receiver were to be made by the proper parties to the suit, 
 and the receiver was not permitted to apply to the court for 
 directions until he had first made request of the plaintiff or 
 defendant to make the desired application and have been refused 
 by him.' (2) This rule of practice, however, has no force in this 
 country, and owing to the fact that the receiver is the instrument 
 or hand of the court, he is privileged, and it is his duty, to apply 
 to the court at any and all times for instructions and directions 
 as to his powers and duties." 
 
 (b) Peactice of the coukt. 
 
 A second source of power of ordinary receivers is to be found 
 in the course and practice of the courts relative to receiverships. 
 The courts exercising chancery jurisdiction have established by 
 long usage and experience certain well defined rules relating to 
 the powers of receivers, and it is to these rules so established that 
 we must usually go to determine the scope of authority of the 
 ordinary receiver.' 
 
 Chautauque County Bank v. White, 6 ' Parker v. Dunn, 8 Beav. 497; Be 
 
 Barb. 589; Republic L. Ins. Co. v. Doolan, 2 Connor & L. 232; Clark v. 
 
 Swigert, 135 111. 150, 12 L. R. A. 328. Fisher, Sausse & Sc. 684; O'Connor 
 
 Whether the order be comprehen- v. Malone, 1 Ir. Eq. 20; Wrixson v. 
 
 sive in regard to the power given the Vize, 5 Ir. Eq. 276; Ricliards v. Goold, 
 
 receiver, or his power be given from 7 Ir. Eq. 209. 
 
 time to time, as occasion requires, the ' Curtis v. Leavitt, 1 Abb. Pr. 274. 
 
 court is in fact the real custodian of * Verplanck v. Mercantile Ins. Co. 2 
 
 the property, and the acts of the re- Paige, 438; Hooper v. Winston, 24 111. 
 
 ceiver are acts of the court designed 353; Chautauque County Bank v. 
 
 to preserve the property for the White, 6 Barb. 589; Booth v. Clark, 58 
 
 benefit of the parties subsequently U. S. 17 How. 222, 15 L. ed. 164; 
 
 shown to be entitled to it. Bemndorf Rejniblic L. Ins. Co. v. Swigert, 135 
 
 V. Dickinson, 21 How. Pr. 275. 111. 150, 12 L. R. A. 528.
 
 84 RECEIVERSHIPS. 
 
 (c) Powers of statutory receivers, express or implied. 
 
 Statutory receivers, or those appointed pursuant to the require- 
 ments of statute, as will be seen elsewhere, derive their general 
 powers wholly from the statute under which they are appointed, 
 and have no powers except those conferred by it, either by ex- 
 press terms or such as can be fairly implied from the general scope 
 of the statute, or as an incident to an express power given." The 
 power thus conferred is deemed delegated and requires careful 
 consideration by the court in its exercise.' 
 
 (d) Power being limited is notice to all. 
 A receiver by virtue of his office is possessed of limited powers 
 and all persons dealing with him must take notice of such limita- 
 tions, and contract with him with such knowledge.* This princi- 
 ple is not peculiar to the law of receivership but applies to judicial 
 sales made by ministerial officers generally. As in dealing with 
 a special agent every one must know that the scope of the receiv- 
 er's powers is limited and special, and his acts at all times subject 
 to modification or annulment. 
 
 (e) Powers remain during continuance of suit. 
 Unless sooner discharged his powers remain during the contin- 
 uance of the litigation, and, as a rule, are not suspended during 
 appeal,* though there are exceptions elsewhere noticed. 
 
 ' Runyon v. Farmers <fe M. Bank, 4 witnesses. Runyon v. Farmers & M. 
 
 N. J. Eq. 480; Aity. Oen. v. Life & Bank, 4 N. J. Eq. 480. 
 
 F. Ins. Co. 4 Paige, 234. See Knott * Oakley v. Pater son Bank, 2 N. J. 
 
 V. Morris Canal & Bkg. Co. 4 N. J. Eq. 173; Davis v. United Slates Flee. 
 
 Eq. 423; Verplanck v. Mercantile Ins. P. & L. Co. 77 Md. 35; Bangs v. Mcln- 
 
 Co. 2 Paige, 452; Atty.Qen. v. Allan- tosh, 23 Barb. 591. 
 
 tic Mut. L. Ins. Co. 77 N. Y. 336. ^ Tripp v. Boardman, 49 Iowa, 410; 
 
 A receiver appointed by a Federal Barrow v. Mullin, 21 Minn. 374; Le- 
 
 court must manage and operate the high Coal & Nav. Co. v. Central R. Co. 
 
 property in accordance with the state 35 N. J. Eq. 426. 
 
 where the property is situated. Act ^Brien v. Paul, 3 Tenn. Ch. 357. 
 
 of Congress, March 3, 1887, § 2. The Although the appeal may suspend or 
 
 power conferred on statutory receiv- vacate the final decree. Merrill v. 
 
 ers may not always be express but Flam, 2 Tenn. Ch. 513; Stafford v. 
 
 may be inferred from the general Union Bank, 57 U. S. 16 How. 140, 14 
 
 scope of the statute, as wbere author- L. ed. 878; Swing v. Townsend, 24 
 
 ity is given to hear and determine the Ohio St. 1; Schenck v. Peay, 1 Dill, 
 
 validity of claims, this embraces im- 270; Re Real Estate Associates^ 58 Cal. 
 
 plied power to administer oaths to 356.
 
 RECEIVER'S POWERS. 
 
 85 
 
 (f) Irregular appointment, confirmed how. 
 The appointment of a receiver regularly and legally made at 
 final judgment or decree vests in him all the powers and duties 
 usually pertaining to his office, though a previous irregular and 
 illegal appointment has been made, during the pendency of the 
 action.' The final action of the court becomes retrospective so 
 far as his acts as receiver are concerned. Nor can his powers and 
 acts be questioned in a collateral proceeding,' except in a case 
 where the court is without jurisdiction in making the appoint- 
 ment.' 
 
 § 26. Power to Iborrow money. 
 
 (a) Where the order of the court gives to the receiver authority 
 to continue in the possession and management of the property, he 
 may in good faith borrow the necessary money for the successful 
 and proper management of such property, and the claim of the 
 lender will be superior to that of bondholders." (b) And in case of 
 
 'Be Stonehridge, 37 N. Y. S. R. 617, 
 AlBrmed without opinion in 128 N. 
 Y. 618; Russell v. East Anglian B. Co. 
 3 MacN. & G. 104; American Bank v. 
 Cooper, 54 Me. 438; Ames v. Birken- 
 head Docks Trustees, 20 Beav. 332; 
 Cook V. Citizens' Nat. Bank, 73 Ind, 
 256; People, Davis, v. Sturtevant, 9 N. 
 Y. 263; Albany City Bank v. Scher- 
 merliorn, 9 Paige, 372; Bichards v. 
 People, 81 111. 551; Lutt v. Grimont, 
 17 111. App. 308. 
 
 ^Edrington v. PridTiam, 65 Tex, 
 612; Wood V. BlytJie, 46 Wis. 650; 
 Keokuk N. L. Packet Co. v. David- 
 son, 13 Mo. App. 561; Dean v. Thatch- 
 er, 32 N. J. L. 470; Mercantile 
 Trust Co. V. Pitt»uurg & W. B. Co. 29 
 Fed. Rep. 732; Ward v. Farwell, 97 
 111. 593; Whittlesey v. Frantz, 74 N. Y. 
 456; Bichards v. People, 81 111. 551; 
 Commercial Nat. Bank v. Burch, 141 
 111. 519; Stanley v. National Union 
 Bank, 115 N. Y. 122; First Nat. Bank 
 V. United States Encaustic Tile Co. 105 
 Ind. 227; Pressley v. Lamb, 105 Ind. 
 171; Bodkin v. Merit, 102 Ind. 293; 
 
 Oreenawalt v. Wilson, 52 Kan. 109; 
 Neeves v. Boos, 86 Wis. 313; Thompson 
 V. Holladay, 15 Or. 34; RadebaughY. 
 Tacoma P. B. Co. 8 Wash. 570; Elder- 
 kin V. Peterson, 8 Wash. 674. 
 
 '^ Texas & P. B. Co. v. Qay, 86 Tex. 
 571, 25 L. R. A. 52; St. Louis & S. 
 Coal & Min. Co. v. Sandoval Coal & 
 Min. Co. Ill 111. 32. 
 
 *Ex parte Carolina Nat. Bank, 18 S. 
 C. 289; Ee Fifty-four First Mortgage 
 Bonds, 15 S. C. 304; Ex parte Benson, 
 18 S. C. 38; Barton v. Barbour, 104 
 U. S. 126, 26 L. ed. 672; Cowdry v. 
 Galveston, H. &H. R. Co. 1 Woods, 331. 
 In this case the court say : ' 'All outlays 
 made by the receivers in good faith in 
 the ordinary course with a view to ad- 
 vance and promote the business of the 
 road and to render it profitable and 
 successful are fairly within the line of 
 discretion which is necessarily allowed 
 to a receiver entrusted with the man- 
 agement of a railroad in his hands." 
 
 Greenwood v. Algesiras R. Co. [1894] 
 2 Ch. 205, 63 L. J. Ch. 670. This case 
 is based upon the fact that there must
 
 86 
 
 RECEIVERSHIPS. 
 
 the foreclosure of a mortgage or trust deed on a railroad, where 
 it is necessary to preserve the road as a going concern, the court 
 may properly order the receiver to complete some inconsiderable 
 portions of the road, and put the road in condition for the trans- 
 action of business, and borrow money for that purpose, and make 
 the certificates a lien superior to that of the first mortgage.' The 
 
 be an emergency, and that the bor- 
 rowing of the money is essential to the 
 preservation of the property. In Bank 
 of Montreal Y. Chicago, C. &W. B. Co. 
 48 Iowa, 518, a receiver was author- 
 ized to issue certificates "for money 
 borrowed, materials furnished, labor 
 performed, or on account of contracts 
 made by him for the construction or 
 completion of said road or any part 
 thereof," and such certificates so is- 
 sued were made a first lien on the road. 
 It was held that certificates issued 
 prior to the furnishing of the material 
 or performance of the labor were void. 
 The furnishing of the material and 
 the performance of the work were pre- 
 requisites to the issuing of certificates. 
 See generally chapter on Receivers' 
 Certificates. This power should be 
 exercised with the acquiescence of 
 all parties concerned, if possible, 
 Wallace v. Loomis, 97 U. S. 146, 162, 
 24 L. ed. 895, 901, and with caution. 
 For a full discussion of the power in 
 its many phases, see, Credit Co. v. Ar- 
 kansas C.B. Co. 15 Fed. Rep. 46; Taylor 
 V. Philadelphia & B. B. Co. 7 Fed. Rep. 
 377; Kennedy v. *Si!. Paul & P. B. Co. 
 2 Dill. 448; Union Trust Co. v. Illi- 
 nois Midland B. Co. 117 U. S. 434, 29 
 L. ed. 963 ; Millenberger v. Logansport, 
 C. & 8. W. B. Co. 106 U. S. 285, 27 L. 
 ed. 117; Jerome v. McCarter, 94 U. S. 
 734, 24 L. ed. 137; Cowdry v. Galves- 
 ton, H. & H. B. Co. 1 Woods, 331; 
 Stanton v. Alabama & C. B. Co. 2 
 Woods, 506; Meyer v. Johnston, 53 Ala. 
 237; Vermont & C. B. Co. v. Vermont 
 C. B. Co. 46 Vl. 792, 50 Vt. 500; Hoover 
 V. Montclair & G. L. B. Co. 29 N. J. 
 
 Eq. 4; Bank of Montreal v. Chicago, 
 C. & W. B. Co. 48 Iowa, 518. 
 
 As to power to mortgage see Bur- 
 roughs v. Gaither, 66 Md. 171. 
 
 And power to invest, see Utica Ins. 
 Co. V. lynch, 11 Paige, 520; but see 
 Atty. Gen. v. North American I. Ins. 
 Co. 89 N. Y. 84. 
 
 In the case of Meyer v. Johnston, 
 supra, the power of the receiver to bor- 
 row money is elaborately discussed 
 after an exhaustive argument by coun- 
 sel, and thereasons both for and against 
 the exercise of this power are clearly 
 stated (p. 346). 
 
 Where a receiver borrowed money 
 and used the same to discharge a valid 
 lien on the property in his care and 
 custody and acted in good faith, it was 
 held proper to allow him credit there- 
 for. Heffron v. Bice, 149 111. 216. 
 
 The power to incur expense does 
 not extend beyond what is absolutely 
 essential to the preservation and use 
 of the property. Cowdrey v. Galves- 
 ton, H. & H. B. Co. 93 U. S. 352, 23 
 L. ed. 951. 
 
 ^Stanton v. Alabama & C. B. Co. 2 
 Woods, 506. 
 
 Whether the court has authority to 
 permit receivers of a railroad to bor- 
 row money to buy rolling stock where 
 there is income from which the rolling- 
 stock might be bought, has been 
 doubted; but where the receivership is 
 nearly at an end, it is inexpedient to 
 make such an order. Be Philadelphia 
 & B. B. Co. 14 Phila. 501. 
 
 See further upon this subject title 
 Railway's and Receiver's Certificates,
 
 RECEIVER'S POWERS. 87 
 
 source of this power is to be found in the inherent right of the court 
 to preserve the receivership property from waste, damage or loss. 
 And in case of public corporations the public have interests that 
 are to be protected. The power to borrow money in all cases 
 presupposes authority from the court given for that purpose, 
 based on specific application either by the receiver or plaintiff ; 
 and the exercise of the power is with great caution. 
 
 The power to mortgage is, in principle, the same as the jDower 
 to issue receiver's certificates and make them a first lien upon the 
 property. There must be the gravest necessity to justify an order 
 of this kind, and more especially so where the property is not 
 •charged with a public trust.' 
 
 § 27. Power to loan money. 
 
 (a) The receiver being in one sense a trustee, and in another sense 
 an oflicer of court, in the absence of specific authority so to do 
 from the court appointing him, has no authority to loan the money 
 in his hands as receiver, (b) And if he has authority to loan, given 
 to him, he cannot loan to himself, or to a firm of which he is a 
 member." But when the receiver's funds have been loaned with- 
 out authority, and a note taken therefor, such want of authority in 
 the receiver is no defense to an action on the note.' (c) And when 
 the money is loaned to a firm of which the receiver is a member, 
 and repaid by the firm to one of its members, who converts such 
 money to his own use, the firm still remains liable for the money 
 loaned.^ (d) Where the receiver has loaned his trust fund to brokers, 
 without authority of the court, but in entire good faith, and has 
 ■charged himself with the amount received as interest, no part of 
 the fund being lost, and no one injured, the receiver is not liable 
 for interest beyond the amount received.^ 
 
 As to the power of the receiver to invest funds belonging to 
 the estate it would seem to be exceedingly questionable. It is, as 
 a, rule, wholly foreign to the functions of a receiver to do more 
 than collect in the estate, preserve the same, and distribute as di- 
 
 ^Burrougha v. Qaither, 66 Md. 171. '^Ryan v. Morrill, 83 Ky. 353. 
 
 ^Ryan v. Morrill, 83 Ky. 353; Darby ^Atty. Oen. v. North American L. 
 
 V. Oilligan, 37 W. Va. 59; Ueffron v. Ins. Co. 89 N. Y. 94 (modifying 86 
 
 Bice, 149 111. 316. Ilun, 294); Utica Ins. Co. v. Lynch, 11 
 
 'Corbin v.De la Vergne, 44 N. J. L. Paige, 530. 
 70.
 
 88 RECEIVERSHIPS. 
 
 reeled by the court, and if he loans out receivership funds even 
 temporarily to his friends, or others, it is a breach of trust. He 
 may not mix the funds with his own and use them, nor make a 
 profit out of them.' 
 
 § 28. Power to compromise debts. 
 
 (a) Where doubtful and disputed claims are presented for allow- 
 ance against the estate over which the receiver is appointed, the 
 receiver, by direction of the court, may allow so much of such 
 claims as he may deem just and equitable.^ (b) And it is proper for 
 the court to give the receiver general power to compromise with 
 debtors to the estate where it appears to him expedient and for the 
 interest of all concerned so to do, such debtors being unable to pay 
 in full.' (c) But the power to compromise a statutory liability is ex- 
 tremely doubtful, and where it appears that the debtor has fraud- 
 ulently transferred his property to avoid his legal obligations, or 
 to shield himself from injury and exposure from litigation, the 
 power to compromise should be withheld from the receiver.* 
 "Where it is sought to establish that the receiver's contract is ille- 
 gal and void as being in violation of the constitution forlndding 
 undue or unreasonable discrimination in freights it must distinctly 
 appear wherein there is want of authority ; it will not be assumed 
 that the contract in question is in violation of authority." (d) A re- 
 ceiver has no authority to commute a debt." (e) And where a part- 
 ner in the absence of special authority, or a special course of 
 
 'Authorities, note 5, p. 87. ' abuse is exercised with caution. And 
 
 ^Be Croton Ins. Co. 3 Barb. Ch. 642. see Kimball v. Lee, 40 N. J. Eq. 403; 
 
 This power will not be granted if the Wilkinson v. Dodd (1886) 40 N. J. Eq, 
 
 debtor has fraudulently conveyed his 123; Dodd v, Wilkinson, 41 N. J. Eq. 
 
 property to avoid liability. Re Cer- 566. 
 
 torn Stockholders of California Nat. *Ee Certain Stockholders of Galifor- 
 
 Bank, 53 Fed. Rep. 38; Suydam v, ma iVa«. ^cttiA;, 53 Fed. Rep. 38. Mr. 
 
 Bank of New Brunswick, 3 N. J. Eq. Justice Ross in this case characterizes 
 
 276. See also Re Piatt, 1 Ben. 534; the compromise with a stockholder of 
 
 Kennedy v. Gibson, 75 U. S. 8 Wall. a bank who has fraudulently disposed 
 
 498, 19 L. ed. 476; Henderson v. Mey- of his property to avoid a legal liabil- 
 
 ers, llPhila. 616; Wilkinson v. Dodd, ity as "a premium on fraud," and 
 
 40 N. J. Eq. 124. A receiver of a contrary to fair dealing and good 
 
 national bank may compromise. See faith. 
 
 U. S. Rev. Stat. § 5234, ^Bayles v. Kansas P. R. Co. 13 Colo. 
 
 ^Re Croton Ins. Co. 3 Barb. Ch. 642. 181. 
 
 This power being subject to great ^Paxton v. Steele, 86 Va. 311.
 
 RECEIVER'S POWERS. 8^ 
 
 dealing, has no power to accept shares in a company even though 
 fully paid up in satisfaction of a debt due the firm, the court has 
 no jurisdiction in winding up the partnership to confer on a re- 
 ceiver greater power than a partner would have had in this- 
 respect.' 
 
 § 29. Power to employ counsel. 
 
 (a) Must have general or special power. 
 
 The receiver, occupying as he does in many cases, an important 
 position of trust, and often attended with difficult questions of 
 doubt as to the most judicious and proper course to pursue, and 
 where the attitude of the parties is often hostile towards each 
 other, it would seem to be not only the receiver's right but his 
 duty to employ counsel to advise him as to the management of 
 the property placed in his hands and as to his duties in the prem- 
 ises.* It is true that he is an officer of the court and has an un- 
 doubted right to apply to the court for direction, but the duties 
 of the court to the public, and other litigants, are such that the 
 gaidance of the court in many of the important details of compli- 
 cated receiverships is not to be expected and would be an impos- 
 sibility. And while the receiver, without an order of court so 
 authorizing him, may be justified in employing counsel, particu- 
 
 ^Niemann v. Niemann, L. R. 43 Ch. a large and unjustifiable extent. Re 
 
 Div. 198. First Nat. Bank of St. Albans, 49 Fed. 
 
 Where the statute provides that Rep. 120. 
 the receiver "upon the order of a court ^Hubbard v. Camperdown Mills, 25 
 
 of record of competent jurisdiction S. C. 496; Walsh v. Raymond, 58 
 
 may sell or compound all bad or Conn. 251; Lotiimery. Lord, 4 E. D. 
 
 doubtful debts," and where it is shown Smith, 183; Corey v. Long, 12 Abb. Pr. 
 
 by the evidence that the claims uncol- N. S. 427 (443). Where the interests of 
 
 lected seem to be valid and enforceable the parties are antagonistic it is inex- 
 
 to a far greater amount than those pedient, as a rule, to employ the 
 
 against the bank, the court will not counsel of either, Adams v. Woods 
 
 authorize the receiver to compromise 8 Cal. 306; Blair v St. Louis, H. & E. 
 
 all claims for and against the bank by R. Co. 20 Fed. Rep. 348; ReAinsley, 1 
 
 surrendering all its remaining assets in Edw. Ch. 576; Ray v. Macomb, 2 Edw. 
 
 consideration of sufficient money to Ch..\Q5; Ryckmany. Parkins, ^V&igQ, 
 
 make a certain dividend, and particu- 543. But see Warren v. Sprague, U 
 
 larly where the cash on hand is suffi- Paige, 200; Smith v. New York Consol. 
 
 cient to make the same dividend. Stage Co. 28 How. Pr. 377, 18 Abb. 
 
 Such a compromise would be a Pr. 431 ; Shainwald v. Lewis, 8 Fed. 
 
 surrender of the rights of the bank to Rep. 878.
 
 •90 RECEIVERSHIPS. 
 
 larly where tlie court is coo^nizant of the duties expected of the 
 receiver, and of the services performed by counsel in his behalf, 
 yet the receiver in every case should see that he is protected in 
 the employment of counsel by the general or some special order 
 of court. The necessity of an order is rendered specially impor- 
 tant to the receiver in view of the fact that compensation of 
 counsel is, in all cases, to be passed upon by the court.' As to 
 the amount of compensation to be allowed, the usual and proper 
 method is to refer the matter to a master to enquire and report 
 what would be a proper fee, and in doing so the reference in no 
 case should be ex jpai'te^ 
 
 (b) Who employed. 
 
 it) As a rule the receiver should not employ as counsel the solicit- 
 or or attorney of either of the parties to the proceeding.^ The pro- 
 priety of enforcing this rule in most cases is apparent, the purpose 
 being to sustain the independent character of the receiver's office 
 and to protect the interests of all parties concerned and divest the 
 receiver of all appearance of favor or partiality. The rule, how- 
 ever, is not an unbending rule, for by consent of all parties the 
 receiver may properly employ the solicitor of either to aid him in 
 the discharge of his duties. (^) In such case a mere stranger has no 
 right to complain, as where a suit is instituted by the receiver 
 through the solicitor of one of the parties to suit in which he is 
 appointed, against a third party.* (<?) And there are cases in which 
 
 'TFa&A V. Baymond, 58 Conn. 251. ^ Adams v. Woods, 8 Cal. 306; Ray 
 
 In this case Mr. Justice Hall says: v. McComb,2'K6.yf. Ch. 165; Re Ains- 
 
 "We cannot conceive that any attor- ley, 1 Edw. Ch. 676; Warren v. 
 
 ney-at-law, whose every act must be Sprague, 11 Paige, 209; Blair v. St. 
 
 •with full knowledge that he is acting Louis, H. & K. R. Co. 20 Fed. Rep. 
 
 for an officer of the court, will com- 348; Ex jx^rte Fincke, 2 Meriv. 452; 
 
 plain that in accepting employment Wilson v. Poe, 1 Hog. 322; Stone v. 
 
 for a receiver he is held to do so with Wishart, 2 Madd. 64; Moore v. 
 
 the understanding that his compensa- O'Loghlin, 3 L. R. (Ir.) 405; Garland 
 
 tion will depend upon the amount that v. Qarland, 2 Ves. Jr. 137; Ryckman v. 
 
 may be allowed him therefor by the Parkins, 5 Paige, 543; Merchants' <& 
 
 court upon the final accounting of the M. Nat. Bank v. Kent, 43 Mich. 292; 
 
 receiver." See also Corey v. Long, 13 Smith v. New York Consol. Stage Co. 
 
 Abb. Pr. N. S. 427 (443); Re Bank, 6 28 How. Pr. 377. 
 
 Paige, 213. *'Warrtn v. Sprague, 11 Paige, 200. 
 
 ^Hubbard v. Camperdown Mills, 25 It is not incumbent on the court, nor 
 
 S. C. 496. can the receiver as a matter of right
 
 RECEIVER'S POWERS. 
 
 91 
 
 the employment of complainant's solicitor by the receiver as his 
 solicitor is commendable as in case of fraudulent transfers of 
 property.* (^) In supplementary proceedings it is held that the du- 
 ties of the plaintiff's attorneys ceased at the time of tfie rendition 
 of the judgment, and that the receiver can employ other counsel.' 
 
 § 30. Power to sue. 
 
 A receiver without the power to sue for and recover the prop- 
 erty or fund over which he is appointed would in many cases de- 
 feat the very purposes for which he is apj^ointed. Conseqently 
 in all forms of receivership this power is recognized and well 
 established. The general rules applicable to the subject are 
 briefly stated as follows : 
 
 require the court even with the consent 
 of all parties, to appoint a particular 
 attorney of his selection. First Nat. 
 Bank v. Navarro, 43 N. Y. S. R. 813; 
 Merchants' & M. Nat. Bank v. Kent, 
 43 Mich. 293. In this case Mr. Justice 
 Cooley says: "We cannot shut our 
 eyes to the fact that the law partner 
 of the solicitor is presumptively as 
 much interested in the proceedings as 
 the solicitor himself, and it would be 
 peculiarly objectionable that he should 
 act in a position requiring impartiality 
 in a case like this where the parties to 
 the suit are manifestly acting in con- 
 cert and adversely to the interest of 
 other persons who cannot watch their 
 proceedings. The practical results 
 would be that the receiver would 
 supervise his own accounts. The 
 practice in equity does not even per- 
 mit the receiver to employ a solicitor 
 in the case as his own counsel, lest it 
 might disarm his vigilance in watching 
 the receiver's proceedings. This rule 
 may no doubt be departed from by 
 consent of all parties concerned; but 
 this must mean by consent of all par- 
 ties concerned in the results of the 
 receivership; and one not a party to 
 the suit may be as much concerned in 
 
 these as the persons who are parties." 
 It is true this case relates to the re- 
 ceivership and not his counsel, but the 
 principle is the same in both cases. 
 
 ^Shainwald v. Lewis, 8 Fed. Rep. 
 878. In this case the court says: 
 "The person who is of all the fittest 
 to advise the receiver, and, if neces- 
 sary, to stimulate his efforts is the 
 solicitor who, with indefatigable in- 
 dustry and tenacity has succeeded in 
 exposini< the fraudulent conspiracy 
 which lies at the foundation of all 
 these proceedings, and has obtained 
 after protracted litigation the decree 
 against respondent. No other counsel 
 could feel the same desire as he that 
 the decree should not prove a brutum 
 fulmen, nor the same interest in baffl- 
 ing the confessed fraudulent machin- 
 ations of the respondent to escape its 
 payment." And see also Wetter v. 
 Schlieper, 7 Abb. Pr. 93; Ba)ik of 
 Monroe v. Schermerhorn, Clarke, Ch. 
 366; Siney v. New York Consol. Stage 
 Co. 28 How. Pr. 481; Eynes v. Mc- 
 Dermott, 3 N. Y. S. R. 583. 
 
 ^ Moore V. Taylor, 40 Hun, 56; Egan 
 V. Rooney, 38 How. Pr, 131 ; Lu.ik v. 
 Endings, 1 Hill, 656. But see Glen- 
 ville Woolen Co. v. liipley, 43 N. Y. 206.
 
 92 RECEIVERSHIPS. 
 
 (a) All suits by him are under the direction and control of the 
 court.' 
 
 (b) The rights of action such as mii^ht have been maintained 
 by the person over whose estate he is appointed are equally avail- 
 able to the receiver/ and are subject to the same conditions and 
 limitations.' 
 
 (c) Leave of court to sue, general or special, is an essential 
 foundation for suit." 
 
 (d) He must also allege and prove his authority to bring suit.' 
 
 (e) The receiver of an insolvent corporation has the right to sue 
 or defend an action to avoid any instrument which is invalid as to 
 creditors, and in such case the adjudication of insolvency and ap- 
 pointment of a receiver, appropriates the property of the debtor 
 to the payment of his debts, and authorizes a receiver of this 
 class as representing the creditors to take such proceedings as the 
 creditors might do if no assignment had been made. A judg- 
 ment as a prerequisite to institute proceedings of this nature is 
 not required.* This rule, however, is not to be extended to the 
 class of receiverships where the receiver represents alike all par- 
 ties to the proceeding.' Nor to suits pending at the time of his 
 appointment, unless he has instructions to participate therein.' 
 
 ^Be Merritt, 5 Paige, 125. Stewart v. Beebe, 28 Barb. 34; Banga 
 
 •'Curtis V. Mcllhenny, 5 Jones, Eq. ^- Mcintosh, 23 Barb. 591 ; WJiite^. Low, 
 290; Falkenhack v. Patterson, 43 Ohio ^ Barb. 204; Piatt v. Crawford, 8 
 St. 359; Coope v. Bowles, 28 How. Pr. ^bb. Pr. N. S. 297; Cheney v. Fisk, 
 10; Davis V.Ladoga Creamery Co. 128 22 How. Pr. 236; Oillet v. Fairchild, 
 Ind. 222; Freeman v. Winchester, 10 4 Denio, 80; Manley v. Rassiga, 13 
 Stnedes & M. 577; New Brunswick Hun, 288; Rockwell v. Merwin, 45 N. 
 State Bank v. First Nat. Bank, 34 N. Y. 166; Potter v. Merchants' Bank, 28 
 J Ea 450 ■^' Y' ^^^ ' ^^y^^^ ^- Oonnah, 18 How. 
 
 Pr. 326; Coope v. Bowles, 28 How. Pr. 
 10; Boland v. Wiitman, 33 Ind. 64; 
 Helme v. Littlejohn, 12 La. Ann. 298; 
 Hayes V. Brotzman, 46 Md. 519; Frank 
 V. Morrison, 58 Md. 423, 
 
 * Graham Button Co. v. Spielmann, 
 50 N. J. Eq. 120; Pillsbury v. Kingon, 
 ^Oreen v. Winter, 1 Johns. Ch. 33 n. J. Eq. 287; Boe, Grimsby, v. 
 60; Wynn v. Neicborough, 3 Bro. C. ^all, 11 Mees. & W. 531; Eopp)er v. 
 C. 88; Battle v. Davis, 66 N. C. 252, Lovejoy, 47 N. J. Eq. 573, 12 L. R. A. 
 Contra, Weill v. First Nat. Bank, 106 588, see Shaw v. Glen, 37 N. J. Eq. 33. 
 N. C. 13; Everett v. State, McKaig, 28 i gee chap. vi. §§ 68. 
 
 Md. 190; Screven v. Clark, 48 Ga. 41. s Qadsden v. Wh'aley, 14 S. C. 210; 
 
 *8cott V. Duncombe, 49 Barb. 73. jr^acy v. First Nat. Bank, 37 N. Y. 
 
 ^Bell V. Shibley, 33 Barb. 610; Wil- 
 liams V. Babcock, 25 Barb. 109; Thomas 
 V. Whallon, 31 Barb. 172; Waddle v. 
 Hudson, 96 Mich. 432; Litchfield v. 
 Peck, 29 Conn. 384; State, Shepard, v. 
 Sullivan, 120 Ind. 197.
 
 RECEIVER'S POWERS. 93 
 
 § 31. Power to make repairs. 
 
 (a) The power of a receiver to make repairs without an order of 
 court authorizing him is exceedingly Kniited," but allowances of 
 courts have become more liberal in this regard where it is shown 
 that the expenditures are for the lasting benefit of the estate,' 
 and where the receiver has acted in good faith and for the best 
 interests of the property intrusted to him, or where it is necessary 
 to act immediately in order to prevent damage.' But it would 
 seem that before the court will make an allowance for such pur- 
 pose without an order previously authorizing expenditures, it 
 must appear that had application been made the court without 
 doubt would have granted the order in the first instance.* 
 
 (b) The power of the court to authorize the receiver to make re- 
 pairs, and charge the expense to the estate, is much more liberal, 
 and indeed must be, in case of receiverships of railways, where 
 not only the interests of the parties are involved, but the con- 
 venience of the public is to be conserved.^ A railroad receiver 
 may contract with another company for exchange of track facili- 
 ties. ° But there is a limitation on the power of the receiver to 
 make contracts, and he has no right to make a contract involving 
 large outlays that may extend beyond the lifetime of the receiver- 
 ship.' 
 
 523. This will be the subject of fur- {note). 'R\\is,eQ,Wyckoffy.Scofield,\QZ 
 
 ther consideration under the title of N. Y. 630. 
 
 Suits by Receivers, chap. vi. The court may leave to the discre- 
 
 ^ Atty Gen. \. Vigor, WYgb. Jr. 5QZ; tion of its receiver the price to be 
 
 Ex parte Marton, Ex parte Hilbert, 11 paid for work which he is authorized 
 
 Ves. Jr. 397; Hooper v. Winstoii, 24 111. to contract for. Oirard L. Ins. A. & 
 
 353. A receiver is not authorized with- T. Co. v. Cooper, 162 U. S. 529, 40 L. 
 
 out a previous order of court to incur ed. 1062. 
 
 any expense on account of property •* Broxcn v. Ilazlehurst, 54 Md. 26. 
 
 in his hands beyond what is absolutely ^ Hoover v. Montclair & G. L. R. Co. 
 
 essential to its preservation and use 29 N. J. Eq. 4; Morison v. Morison, 7 
 
 as contemplated by his appointment. DeG. M.&G. 214; Stanton \. Alabama 
 
 Cowdrey v. Galveston, H. & H. R. Co. & C. R. Co. 2 Woods, 506; Bright v. 
 
 93 U. S. 352, 23 L. ed. 951. North, 2 Phill. 216; Jerome v. McCar- 
 
 ' Blunt V. Clitherow, 6 Ves. Jr. 799 ter, 94 U. S. 734, 24 L. ed. 137. 
 
 (note); Atty Gen. v. Vigor, 11 Ves. Jr. ^ J our dan v. Long Island R. Co. 42 
 
 663; Central Trust Co. v. Wabash, St. Hun, 657, see further under title of 
 
 L. & P. R. Co. 52 Fed. Rep. 908. Railways. 
 
 * Heffron v. Milligan, 40 111. App. ■" Chicago Deposit Vault Co. v. Mc- 
 
 291; Thornhill v. Thornhill, 14 Sim. Nulla, 153 U. S. 554, 38 L. ed. 819. 
 
 600; McCartney v. WaWi, Hayes, 29, In Barton v. Barbour, 104 U. S. 126,
 
 94 RECEIVERSHIPS. 
 
 § 32. Power to purchase supplies, labor, etc. 
 
 In this connection the power of a receiver to purchase supplies, 
 employ labor, and make expenditures, relating, as it does, prin- 
 cipally to railroad receiverships, will be considered only briefly, 
 being dwelt upon more specifically in another connection. It 
 may be stated as a general proposition that the ordinary outlays 
 where the amounts are small, and which are necessary to pre- 
 serve and protect the property from loss or injury, may be made 
 by the receiver as fairly within the line of discretion which is 
 necessarily allowed to him intrusted, as he is, with the faithful 
 and successful management of the property. In cases, however, 
 involving large outlays his business sagacity would suggest, and 
 it is the duty of the receiver to apply to the court for its sanc- 
 tion and authority for the contemplated expenditure.' Assuming 
 this application to have been made it becomes a matter of im- 
 portance to determine the scope of power the court will exercise 
 in authorizing its receiver to make expenditures upon the trust 
 property in the shape^of supplies, labor, improvements, etc. In 
 the great majority of cases it is not necessary that the business of 
 the concern over whose property the receiver is appointed should 
 be continued as a going concern ; on the contrary, experience has 
 demonstrated that, as a general rule, the sooner a conversion of 
 the assets is made, and a distribution of the proceeds effected the 
 better for all concerned. But in the matter of railroad receiver- 
 ships, and others of a quasi public character, it is an important 
 factor that the business of the company shall be kept in oj)era- 
 tion. In fact the only means by which the most valuable part of 
 the property of a railroad corporation can be preserved and saved 
 from ruinous deterioration is by continuing the road in full ope- 
 ration. Both public right and private interest require this. Ob- 
 viously, this cannot be done unless authority exists somewhere to 
 make contracts which shall bind the trust, and by reason and 
 analogy the proper repository of this authority is the receiver. 
 
 26 L. ed. 672, the court says: "It has way until it can be sold to the best 
 
 come to be settled law that a court of advantage of all interested." Wallace 
 
 equity may, and in most cases ought v. Loomis, 97 U. S. 146, 24 L. ed. 895. 
 
 to authorize its receiver of a railroad ' Cowdry v. Galveston, H. & H. R. 
 
 property to keep it in repair, and to Co. 1 Woods, 331. 
 manage and use it in the ordinary
 
 RECEIVER'S POWERS. 
 
 95 
 
 And inasmuch as the law never imposes a duty without giving 
 the person charged with its performance sufficient power to do- 
 his duty, it has become an established rule supported by a long 
 list of precedents that a receiver, of this character, as a necessary 
 incident to the duties imposed upon him, has authority under the 
 direction of the court, to make all such contracts for labor and 
 supplies as are reasonably necessary to enable him to perform 
 the duties of his appointment, and that his contracts for such 
 purpose bind the trust.' The cost of expenditures of this nature 
 
 ' Lehigh Coal & Nav. Co. v. Central 
 R. Co. 41 N. J. Eq. 167, 35 N. J. Eq. 
 426; Fosdick v. Schall, 99 U. S. 235, 25 
 L. ed. 339; Thomas v. Peoria & B. I. 
 R. Co. 86 Fed. Rep. 808; Wood v. Guar- 
 antee Trust & Safe Deposit Co. 128 U. 
 S. 416, 32 L. ed. 473; Reyburn v. Con- 
 mmers' Gas Fuel & L. Co. 29 Fed. Rep. 
 561 ; McLane v. Placerville £ S. V. R. 
 Co. 66 Cal. 606 ; Cowdry v. Galveston, 
 E. & H. R. Co. 1 Woods, 331; Enee- 
 land V. American Loan & T. Co. 136 
 U. S. 89, 34 L. ed. 379; Kneeland v. 
 Bass Foundry & Mach. Works, 140 U. 
 S. 592, 35 L. ed. 543; St. Louis, A. & 
 T. H. R. Co. V. Cleveland, C. C. & L R. 
 Co. 125 U. S. 658, 31 L. ed. 832; 
 Tfiornton v. Highland Ave. & B. R. 
 Co. 94 Ala. 353; Kerr v. Little, 39 N. 
 J. Eq. 83; Beckwith v. Carroll, 56 Ala. 
 12; Union Trust Co. v, Illinois M. R. Co. 
 117 U. S. 437, 29 L. ed. 964; Mcllhenny 
 V. Binz, 80 Tex. 4; Securities and Prop- 
 erties Corp. V. Brighton, Alhamhra, 62 
 L. J. Ch. 566; Thomas v. Western Car 
 Co. 149 U. S. 95, 37 L. ed. 663. If the 
 mortgagee applies for a receiver the 
 rolling stock rentals are before the 
 mortgage, but the rentals for rolling 
 stock are not preferred to the mort- 
 gage where the receiver is not appoint- 
 ed on the application of the mort- 
 gagee. Kneeland v. American Loan & 
 T. Co. 136 U. S. 89, 34 L. ed. 379, see 
 also, Quincy, M. & P. R. Co. v. llum- 
 phreys, 145 U. 8. 82, 36 L. ed. 632. 
 
 The principle has been applied to 
 rentals for rolling stock in addition 
 the cases above cited as follows: 
 Thomas v. Western Car Co. 149 U. S. 
 95, 111, 37 L. ed. 663, 669; Quincy, M. 
 &P. R. Co. V, Humphreys, 145 U. S. 
 104, 36 L. ed. 640; United States Trust 
 Co. V. WabashW. R. Co. 150 U. S. 299, 
 37 L. ed. 1088; Central Trust Co. v. 
 Wabash, St. L. & P. R. Co. 46 Fed. 
 Rep. 29; Park v. New York, L. E. <& 
 W. R. Co. 57 Fed. Rep. m^;New York, 
 P. & A. R. Co. V. New York, L. E. 
 & W. R. Co. 58 Fed. Rep. 278; and to 
 operating expenses generally, as fol- 
 lows: Bound V. South Carolina R. Co. 
 58 Fed. Rep. 480; Clyde v. Richmond 
 &D. R. Co. 56 Fed. Rep. 541; Finance 
 Co. V. Charleston, C. & C. R. Co. 48 
 Fed. Rep. 190; Farmers' Loan & T. 
 Co. V. Grape Creek Coal Co. 50 Fed. 
 Rep. 482, 16 L. R. A. Qd'd; Finance Co. 
 V. Charleston, C. & C. R. Co. 52 Fed. 
 Rep. 679; Union Loan & T. Co. v. 
 Southern California Motor Road Co. 
 51 Fed. Rep. 107; Bound v. South 
 Carolina R. Co. 47 Fed. Rep. 31; Fin- 
 ance Co. V. Charleston, C. & C. R. Co. 
 46 Fed. Rep. 428; Texas G. R. Co. v. 
 Morgan's Louisiana & T. R. & S. S. 
 Co. 137 U. 8. 199, 34 L. ed. 635; Ames 
 V. Union P. R. Co. 60 Fed. Rep. 971. 
 
 The rule laid down in the text is 
 confined to railroad receiverships 
 mainly though not exclusively. Ellis 
 V. Vernon Ice, L. & W. Co. 86 Tex.
 
 ^6 RECEIVERSHIPS. 
 
 is chargeable first to the net income, and if that be not sufficient 
 then upon the property itself or its proceeds.' Expenditures of 
 this nature, however, will not be extended to speculative mat- 
 ters.' 
 
 § 33. Power to continue business. 
 
 The power of the court to authorize a receiver, or receiver and 
 manap^er as he is called in such case in England, to continue the 
 business of the defendant over whose property and business he is 
 appointed, has been recognized, and is supported by authority, 
 independent of the practice as applied to railroad receiverships, 
 and those of statutory origin. The exercise of this power, how- 
 ever, should only be granted in cases where the necessity for so 
 •doing is clearly shown.' There are certain limitations upon this 
 power when applied to the different forms of actions, or objects 
 sought to be accomplished by the proceeding in which the re- 
 ceiver is appointed. Thus in case of a foreclosure of a mortgage 
 unless the mortgage includes the business or good will of the 
 mortofao-or, the court will not continue the business through its 
 receiver.* Nor in a matter involving the violation of a contract 
 
 109; Reyhurn v. Consumers' Oas Fuel delinquents, and thus transforming 
 
 <fc L. Co. 29 Fed. Rep. 561; Securities these courts into commercial agencies. 
 
 and Properties Corp. v. Brighton, Al- Judicious legislation, or possibly 
 
 hambra, 62 L. J. Ch. 566; Scott v. Wes- greater judicial caution would pre- 
 
 bitt, 14 Ves. Jr. 438; Peck v. Trins- vent the undue haste sometimes mani- 
 
 maran Iron Co. L. R. 2 Ch. Div. 115; fested to place the management of 
 
 Makins v. Ibotson [1891] 1 Ch. 133. business concerns, especially corpora- 
 
 ' McLane v. Placerville & S. V. B. tions, under the fostering care of the 
 
 Co. 66 Cal. 606; Meyer v. Johnston, 53 courts. 
 
 Ala. 237; Ellis v. Vernon Ice, L. & W. '^Whitley v. Challis [1892] 1 Ch. 64; 
 
 Co. 86 Tex. 109. Campbell v. Lloyds, B. & B. Bank 
 
 ^Securities and Properties Corp. v. [1891] 1 Ch. 136; Truman y. Redgrave, 
 
 Brighton, Alhambm, 62 L. J. Ch. 566. L. R. 18 Ch. Div. 547; Makins v. Ibot- 
 
 ^As illustrating the growing tend- son [1891] 1 Ch. 133; Peek v. Trina- 
 
 ency of recent times to place the man- maran Iron Co. L. R. 2 Ch Div. 115. 
 
 agement of commercial enterprises A receiver has no authority unless 
 
 under the control of courts of equity expressly authorized by the court, or 
 
 it has been stated that not less than the business is such as to imperatively 
 
 one sixth of the railroads of the require him, to open a drug business 
 
 United States were in the hands of with the property or moneys in his 
 
 receivers. The functions of courts hands and employ therein his son, 
 
 of equity, in many cases, and especi- who is not a druggist, and run a phy- 
 
 ally during panics, are being made to sician's office in connection therewith, 
 
 .-subserve the interests of temporary Terry v. Martin (N. M.) 32 Pac. 157.
 
 RECEIVER'S POWERS. 
 
 97 
 
 will tlie court throngh its receiver set up a new business, or en- 
 gage in the manufacture of proprietory articles, involving secret 
 formulas.' Under the "Companies act" of 1862, which provided 
 that tlie official liquidator should have power, with the sanction of 
 the court, " to carry on the business of the company, so far as may 
 be necessary for the beneficial winding up of the same," it was 
 held that the word " necessary " as used in the act had sole refer- 
 ence to the " beneficial winding up " of the business of the com- 
 pany, and not with a view of its continuance in business, no 
 matter if the continuance of the business would be beneficial to 
 the shareholders.^ And in a partnersliip matter the purpose of a 
 receiver being to wind up the business, the court will not give 
 the receiver authority to continue the business, except where a 
 serious loss is apparent, growing out of a loss of the good will, or 
 injury to the property, as horses in a livery stable, and then it 
 will only be temporary.^ But there are cases of partnership even, 
 where inevitable loss may result from a refusal to authorize the 
 receiver to carry on the business, where the court owing to the 
 nature of the business will not take upon itself the management." 
 
 ^Merrell v. Pemberton, 62 Ga. 29. 
 
 ^Re Wreck, Recovery, and Salvage 
 Co. L. R. 15 Ch. Div. 353. Leave to 
 continue the business was ordered in 
 the following cases: Dayton v. Wilkes, 
 17 How. Pr. 510; Graham v. Qraliam, 
 2 Vict. Rep. 145. 
 
 ^Jackson v. DeForest, 14 How. Pr. 
 61; Marten v. Van Schaick, 4 Paige, 
 479; Allen v. Hawley, 6 Fla. 164; 
 Heatherton v. Hastings, 5 Hun, 459; 
 Henn v. Walsh, 2 Edw. Ch. 130; 
 Wolbert v. Harris, 8 N. J. Eq. 605. It 
 is sometimes necessary for the receiver 
 to complete contracts partially exec- 
 uted. Taylor v. Neate, L. R. 39 Ch. 
 Div. 538. See § 35, supra. See also 
 Meridian News <b Pub. Co. v. Diejn & 
 W. Paper Co. 70 Miss. 605. 
 
 *Waters v. Taylor, 15 Ves. Jr. 10. 
 In this case the Lord Chancellor 
 (Eldon) said: "Then considering the 
 jiature of this property can the plain- 
 
 tiff call upon the court to assume the 
 management of the theatre? . . . My 
 opinion is that this court has no juris- 
 diction to manage this concern merely 
 for the purpose of carrying it on. 
 The court will order it to be sold or 
 foreclosed; will deal with it as prop- 
 erty, but no further. ... I do not 
 see my way to make such an order, 
 and if I did I must, by acting, ruin all 
 concerned. They have still the locus 
 pcenitentim, and if they will not settle 
 their own interests, it is immaterial, 
 whether the consequences shall be 
 produced by their own acts or by 
 mine." See also Niemann y .Niemann, 
 L. R. 43 Ch. Div. 198, where it is 
 held that a receiver will not be ap- 
 pointed over a partnership, and au- 
 thorized to do acts in the nature of a 
 compromise or settlement which the 
 partners were not authorized to do.
 
 98 RECEIVERSHIPS. 
 
 § 34. Power to sell ; purcliaser's title, etc. 
 
 (a) The court bein^ in possession of the property throns^h its 
 receiver, for the benefit of the parties who shall ultimately be 
 found to be entitled to it, or to its proceeds, in a proper case has 
 an undoubted right to order a sale of such property and direct 
 the receiver to bring the proceeds into court to await the final or- 
 der of distribution, and this power with certain limitations ex- 
 tends to both real and personal property. (1) There should in 
 all cases be an order of court of competent jurisdiction directing 
 the sale.* (2) The order should particularly describe the property 
 to be sold," the terms, conditions, and method of sale, and in some 
 states statues have been passed prescribing the manner and regu- 
 lating the methods of such sales. As a rule the sale should not 
 be ordered until a final decree is rendered, for until such time it 
 cannot generally be known that a sale will take place,^ and the 
 receiver being in custody of the property will care for and pro- 
 tect it, and if of such nature as to be practicable will collect and 
 preserve the income therefrom. If, however, the property is 
 liable to deterioration and loss,* or, as in the case of insolvency, 
 will eventually have to be sold, the order on a sufficient showing 
 
 ^ElUs V. Littte, 27 Kan. 707. The the sale is good. Barron v. MuUin, 
 
 want of authority of a receiver to 21 Minn. 374. 
 
 transfer a bond is no defense to an ob- ^Brush v. Jay, 113 N. Y. 482; Ester- 
 
 ligor in such bond where the transfer lund v. Bpe, 56 Ga. 284. 
 is subsequently ralifled by the court. A sale of property by a receiver, in 
 
 Manne & River Phosphate Min. & whose hands it has been placed pend- 
 
 Mfg. Co. V. Bradley, 105 U. S. 175, 26 ing a litigation concerning the rights 
 
 L. ed. 1034. of the parties thereto, may be ordered 
 
 The pendency of a bill of excep- where the income is insufficient to 
 
 tions assigning as error the granting pay the expenses of the receivership 
 
 of an order authorizing a receiver to and the corpus is gradually being 
 
 sell specified property does not, in the diminished, although the interests of 
 
 absence of the supersedeas required the parties therein have not been de- 
 
 by law in such case, prevent the termined. Smith v. Burton, 67 Vt. 
 
 hearing and determination of a second 514. 
 
 application to sell presented by the ^National Park Bank v. Ooddard, 
 
 receiver. Farmers' Co- Op. Mfg. Co. 131 N. Y. 494, 62 Hun, 31. (The text 
 
 V. Drake (Ga.) 22 S. E. 1004. is sustained by the lower court and 
 
 ^Dixon V. Rutherford, 26 Ga. 149. not questioned in the upper court.) 
 
 Where the order directs the sale of all First Nat. Bank v. Shedd, 121 U. S. 
 
 the property of a defendant and the 74, 30 L. ed. 877; Crane v. Ford, 
 
 receiver sells lot 2, being part of it, Hopk. Ch. 114. And the court may
 
 RECEIVER'S POWERS. 
 
 99 
 
 may be made in an interlocutory proceeding prior to the final de- 
 cree. The court should however be careful to see that a proper 
 case is presented for the exercise of such power, and to see par- 
 ticularly that the owner of the property cannot be unduly preju- 
 diced by the sale thereof." In case of sale the receiver retains a 
 lien for the unpaid balance of the purchase money.'' 
 
 (b) The court having power to sell, and having directed the 
 receiver to do so, this carries with it the authority to give the 
 purchaser evidence of the transfer of title, A purchaser under a 
 sale by a receiver having a deed from him is not bound to ex- 
 amine all tlie proceedings in the case in which the receiver is ap- 
 pointed. It is suflicient for him to see that there is a suit in 
 equity, in which the receiver of the property was appointed ; that 
 the court authorized the receiver to sell ; that the sale was made 
 under that authority, and that the sale was confirmed by the 
 court, and that the deed accurately describes the property sold, or 
 interest therein. He is not bound to inquire whether any errors 
 
 order part of the property sold to pay 
 taxes where it can be done by reason 
 of its nature and where it is clearly 
 necessary. National Bank of the 
 Metropolis v. Sprague, 20 N. J. Eq. 
 170. 
 
 A receiver of the property of a cor- 
 poration owning several distilleries 
 whose operation will require the 
 making of contracts for feeding cattle, 
 and the involving of large expense, 
 may be authorized to sell the distillery 
 and hold the proceeds for the benefit 
 of such claims as may be adjudged 
 valid. Olmstead v. Distilling & C. F. 
 Co. 73 Fed. Rep. 44. 
 
 ^Forsaith MacJi. Co. v. Hope Mills 
 Lumber Co. 109 N. C. 576. In this 
 case it appeared that the owner of the 
 property was insolvent and that all 
 its property had to be sold to satisfy 
 the numerous debtors who were parties 
 to the action. Dixon v. Rutherford, 
 26 Ga. 149. The court has power to 
 order the sale to be made at not less 
 than a given price. McIlJienny v, 
 Bim, 80 Tex. 1. 
 
 A receiver making a sale of prop- 
 erty under the order of, and subject to 
 approval by the court, cannot recover 
 of a bidder refusing to complete his 
 bid, the loss resulting from a resale 
 by the receiver upon his own motion, 
 where the sale to the first bidder was 
 never approved by the court, and the 
 second sale was so approved and con- 
 firmed and completed. Leslie v. Oood- 
 hue, 69 Hun, 71. 
 
 '^Florida v. Anderson, 91 U. S. 667, 
 23 L. ed. 290; State v. Jacksonville, P. 
 & M. B. Co. 16 Fla. 708. 
 
 A receiver who takes possession and 
 makes of sale of property, reserving 
 title until the purchaser has fully paid 
 the purchase money and until con- 
 firmation of the sale, may, although 
 actual possession is delivered to the 
 purchaser, maintain an action before 
 confirmation to enjoin interference by 
 an adverse claimant with his posses- 
 sion. Wuodburn v. Smith (Ga.) 22 S. 
 E. 904,
 
 lOU 
 
 RECEIVERSHIPS. 
 
 intervened in the action of the court, or irregularities were com- 
 committed by the receiver in the sale.' Until the confirmation of 
 the sale, however, the receiver is not bound by the sale, the deed 
 issued prior thereto being rendered inoperative if the sale be not 
 confirmed. But after confirmation of the sale all irregularities 
 prior to the execution of the deed are removed." The order of 
 confirmation is a direct adjudication of the regularity of the ac- 
 tion of the receiver,' and no transfer of title is really made until 
 the order of confirmation is granted, on notice to the parties 
 in interest." As to the title and condition of the property the 
 rule of caveat emptor applies,^ and the purchaser takes the prop- 
 erty subject to all liens, or outstanding interests therein," and 
 
 ^Koontz V. Northern Bank, 83 U. S. 
 16 Wall. 196, 21 L. ed. 465; Libby v. 
 Eosekrans, 55 Barb. 219; Brande v. 
 Bond, 63 Wis. 140. A deed made be- 
 fore confirmation is good after the con- 
 firmation. Koontz V, Northern Bank, 
 supra. Before the rights of third 
 parties intervene the court may set 
 aside a sale where the receiver or 
 master deceives the court as to the con- 
 ditions of sale when the purchaser par- 
 ticipates in such deception. Id. 
 
 Want of notice is ground for re- 
 fusal to confirm. Beford v. Mawcatty, 
 2 Am. & Eng. Corp. Cas. N. S. 477. 
 
 ^Koontz V. No7'ihei'7i Bank, 83 U. S. 
 16 Wall. 196, 21 L. ed. 465. 
 
 The purchaser of a note at a re- 
 ceiver's sale is not bound by the re- 
 ceiver's statement of the amount due, 
 but is entitled to recover whatever 
 may be due upon it. Newberry v. 
 Trowbridge, 13 Mich. 263. 
 
 Those who purchased real property 
 taken from citizens during the late 
 war under the plea of their being alien 
 enemies, at sales made by Confeder- 
 ate receivers, obtained thereby no 
 title to it, nor do those claiming un- 
 der them with notice. The possession 
 of all such persons is tortious and 
 they are liable for rents and profits 
 
 and for any damage done to the prop- 
 erty while in their possession. Mc- 
 Clure V. McLane, 39 Tex. 81; Simmons 
 V. Wood, 45 How. Pr. 368. 
 
 ^Brande v. Bond, 63 Wis. 140; Atty. 
 Oen. V. Continental L. Ins. Co. 94 N. 
 T. 199. 
 
 ^Simmons v. Wood, 45 How. Pr. 262; 
 Wambaugh v. Gates, 8 N. Y. 138; Ex 
 parte Minor, 11 Ves. Jr. 554; Twigg v. 
 Fijkld, 13 Ves. Jr. 517; Thompson v. 
 Gould, 20 Pick. 135. 
 
 ^Barron v. Mullin, 21 Minn. 374; 
 England v. Clark, 5 111. 486 ; Bashore 
 v. Wliisler, 3 Walts, 490; Fox v. 
 Mensch, 3 Watts & S. 444; King v. 
 Gunnison, 4 Pa. 171. 
 
 A purchaser of a railroad in the 
 hands of a receiver, whose contract 
 makes it liable for the obligations of 
 the receiver, is liable to pay a judg- 
 ment entered against the receiver on 
 a supersedeas bond which he had ex- 
 ecuted to appeal a judgment against 
 the railroad, — especially where the 
 road was improved and bettered 
 while in the hands of the receiver to 
 an amount in excess of such judg- 
 ment. Missouri, E. & T. R. Co. v. 
 Lacy (Tex. Civ. App.) 35 S. W. 505. 
 
 ^ Fitch v. Wetherbee, 110 111. 475; 
 Hackensack Water Co. v. DeKay,
 
 RECEIVER'S POWERS. 
 
 101 
 
 after sale lie becomes subject to orders of the court.' All sales 
 are subject to the control of the court, and may be set aside for 
 fraud, or mistake." A receiver ordered to sell will be protected 
 by the court in making such sale.* 
 
 (c) The sale of property made by a receiver is not subject to 
 collateral attack.* 
 
 All persons dealing with a receiver are bound to take notice 
 that he is at all times subject to the orders of court, and that all 
 his acts may be annulled or modified by the court at its pleasure/ 
 and particularly so with reference to sales made by him.' 
 
 36 N. J. Eq. 548; Lowry v. Smith, 9 
 Hun, 514; Foster v. Barnes, 81 Pa. 
 377; Lorch v. Aultman, 75 Ind. 162; 
 Dann Mfg. Co. v. Parkhurst, 125 Ind. 
 317. 
 
 ii?e Denison, 114 N. Y. 621. 
 
 ^Atty. Gen. v. Continental L. Ins. 
 Co. 94 N. Y. 199; Hackley v. Draper, 
 60 N. Y. 88, 2 Hun. 523. 
 
 ^Walling v. Miller, 108 N. Y. 173. 
 
 A purchaser of land at a receiver's 
 sale subject to a mortgage of a speci- 
 fied amount cannot refuse to com- 
 plete the sale on the ground that such 
 mortgage was payable in gold, with- 
 out showing that gold coin is of 
 greater value than the other various 
 kinds of money made a legal tender. 
 Blanck v. Sadlier, 5 App. Div. 81, 16 
 16 Misc. 164. 
 
 A sale of goods by the receiver of 
 an insolvent vests the title thereto in 
 the purchaser, free from any claim 
 growing out of the indebtedness of 
 the insolvent. Mississippi Mills v. 
 Bauman (Tex. Civ. App.) 34 S. W. 
 681. 
 
 * Brande v. Bond, 63 Wis. 140; 
 Mellen v. Moline Malleable Iron Works, 
 131 U. S. 353, 33 L. ed. 179. 
 
 The sale of the property of a cor- 
 poration by a receiver to shareholders 
 will not be refused on the ground that 
 the corporation attempted to create a 
 
 trust, and that such shareholders were 
 responsible for its unlawful conduct, 
 as the court cannot assume that im- 
 proper use will be made of the prop- 
 erty by the purchaser, or undertake 
 to control the use after it is sold and 
 and conveyed by the receiver. Olm- 
 stead V. Distilling & C. F. Co. (C. C. 
 N. D. 111.) 73 Fed. Rep. 44. 
 
 It is incumbent upon a receiver on 
 a motion, contested by creditors, for 
 confirmation of the sale of corporate 
 property, to furnish evidence that a 
 mortgage lien subject to which the 
 sale was made was valid. Re Wendler 
 Mack. Co. 2 App. Div. 16, 37 N. Y. 
 Supp. 444. 
 
 * Tripp V. Boardman, 49 Iowa, 410; 
 Mooney v. British Commercial L. Ins. 
 Co.Q Abb. Pr. N. S. 103; Ellis v. Little, 
 27 Kan. 707; but notice must be given 
 to the person whose contract is to be 
 considered. In Lehigh Coal & Nav. 
 Co. V. Central R. Co. 35 N. J. Eq. 
 426, it is said: "Until his contracts 
 are approved or ratified by the court, 
 the court is at liberty to deal with 
 them as to it shall appear to be just, 
 and may either modify them or dis- 
 regard them entirely." See also 
 Weeks v. Weeks, 106 N. Y. 626. 
 
 « Uale V. Clauson, 60 N. Y. 339; 
 Weeks v. Weeks, 106 N. Y. 626; and 
 the court has power even in the ab-
 
 102 
 
 RECEIVERSHIPS. 
 
 § 35. Power to perform existing contracts ; limitations. 
 
 (a) The power to the receiver to carry out contracts existing at 
 the time of his appointment is not, as a rule, granted by the court, 
 except in cases wliere there is a lien upon the receivership 
 property of some nature operating as a security for the perform- 
 ance of the contract. The reasons for this rule are apparent : 
 
 (1) If the receiver could be held to the performance of an un- 
 completed contract, the performance of the contract by him 
 would be equivalent to a payment or satisfaction of the contract 
 indebtedness, and in the absence of adequate funds for that pur- 
 pose, the court will not require him to do so.' The functions of 
 
 sence of fraud to set aside a sale, but 
 the relief is addressed to the sound 
 judicial discretion of the court and no 
 appeal lies from such an order: {Razle. 
 ton V. Wakeman, 3 How. Pr. 357: 
 Wakeman v. Price, 3 N. Y. 334; 
 Bank of Geneva v. Reynolds, 33 N. Y. 
 160; Dows V. Congdon, 28 N. Y. 122; 
 May V. May, 11 Paige, 201) and in 
 such case it is immaterial that there 
 are grantees and bona fde purchasers 
 from the purchaser at such sales. A 
 purchaser at a judicial sale, though a 
 stranger to the judgment or decree, by 
 his purchase, submits himself to the 
 jurisdiction of the court in respect to 
 the sale and purchase and so do all 
 acquiring title from and under him. 
 Cazet V. Hubbell, 36 N. Y. 677; May 
 V. May, 11 Paige, 201. The court, 
 however, will in all cases indemnify 
 the persons who are effected by a 
 vacation or modification of an order 
 of sale or leasing. Weeks v. Weeks, 
 106 N. Y. 626. 
 
 Where a receiver of property, ap- 
 pointed in an action against a cor- 
 poration, fraudulently obtains an 
 order for the sale of a debt due the 
 corporation, an equitable action, at 
 the suit of the creditor, will lie to 
 vacate the order and set aside a sale 
 made in pursuance thereof. The 
 creditor is not limited to a motion in 
 
 the action wherein the receiver was 
 appointed. Hackley v. Draper, .60 
 N. Y. 88. 
 
 A private sale of a judgment by 
 a receiver, to one representing 
 judgment creditors, at a grossly 
 inadequate price, will be set aside 
 as fraudulent. It is not necessary 
 in such a case to show fraud on the 
 part of all the parties to the trans- 
 action. If the receiver acted fraudu- 
 lently, this is enough to warrant 
 vacating the sale; and the fact that he 
 took the precaution of obtaining an 
 order of court authorizing him to sell 
 at private sale will not sustain it. 
 Hackley v. Draper, 4 Thomp. & 0. 
 614.' 
 
 The court may correct a mistake 
 made in the computation of the 
 amount of a receiver's sale, when the 
 record and papers furnish all the ele- 
 ments for the correction. Bryan <& 
 Brown Shoe Co. v. Block, 52 Ark. 458. 
 
 1 Southern Exp. Co. v. Western N. G. 
 E. Co. 99 U. S. 191, 25 L. ed. 319; 
 Central Trust Co. v. Marietta & N. O, 
 B. Co. 51 Fed. Rep. 15, 16 L. R. A. 
 90; Brown v. Warner, 78 Tex. 543, 11 
 L. R. A. 394. See contra, Howe v. 
 Harding, 76 Tex. 17. As to leasehold 
 estates, Mr. Chief Justice Fuller in 
 Quincy, M. <& P. B. Co. v. Humphreys, 
 145 U. S. 83, 36 L. ed. 632. says: "If
 
 RECEIVER'S POWERS. 
 
 103 
 
 the receiver are to marshal the assets and distribute the same to 
 the creditors as directed by the court according to their respective 
 rights and interests. 
 
 (2) The receiver in general is but the agent of the court, and 
 is not the agent of the owner of the property for the fulfillment 
 of his contracts, except where he makes the contracts his own by 
 some act of adoption.' 
 
 (3) If the receiver were required to complete the unfinished 
 contract of the owner the efiiect in many cases would be to make 
 a preference in favor of a simple contract creditor as against a 
 lien holder, and thus change the rights of the parties as they 
 exist at the time of the receiver's appointment.^ 
 
 (b) The court, however, may order the receiver to complete un- 
 
 the order of court under which the re- 
 ceiver acts embraces the leasehold 
 estate it becomes his duty of course 
 to take possession of it. But he does 
 not by taking such possession become 
 assignee of the term in any proper 
 sense of the word. He holds that as 
 he would hold any other personal 
 property for and as the hand of the 
 court and not as the assignee of the 
 term." OaitJier v. Stockbridge, 67 
 Md. 222; Olenny v. Langdon, 98 U. S. 
 20, 25 L. ed. 43; American File Co, t, 
 Garrett, 110 U. S. 288, 28 L. ed. 149; 
 Sparliawk v. Tevkes, 142 U. S. 1, 35 L. 
 ed. 915; Martin v. Black, 9 Paige, 
 641; Com. v. Franklin Ins. Co. 115 
 Mass. 278; Ellis v. Boston, H. & E. R. 
 Co. 107 Mass. 1 ; Fidelity Safe Deposit 
 
 6 T. Co. V. Armstrong, 35 Fed. Rep. 
 566; Ben-y v. Gillis, 17 N. H. 9; Re 
 Oak Pits Colliery Co. L. R. 21 Ch. 
 Div. 322. 
 
 ' Com. V. Franklin Ins. Co. 115 
 Mass. 278; Brown v. Warner, 78 Tex. 
 543, 11 L. R. A. 394; Re Brown. 3 
 Edw. Ch. 384; Turner v. Richardson, 
 
 7 East, 335; Ellis v. Boston, H. & 
 E. B. Co. 107 Mass. 1; Re Otis, 
 101 N. Y. 580; Sunflower Oil Co. 
 V. Wilson, 142 U. 8. 313, 35 L. 
 
 ed. 1025; Hoyt v. Stoddard, 2 Allen, 
 442; Woodruff Y. Erie R. Co. 93 N. Y. 
 609; St. Joseph & St. L. R. Co. v. 
 Humphreys, 145 U. S. 105, 36 L. ed. 
 640; United States Trust Co. v. Wabash 
 Western R. Co. 150 U. S. 287, 37 L. 
 ed. 1085; Seney v. Wabash Western R. 
 Co. 150 U. S. 310, 37 L. ed. 1093; 
 Peoria & P. U. R. Co. v. Chicago, P. 
 & S W. R. Co. 127 U. S. 200. 32 L. ed. 
 110. 
 
 "^ Olyphant v. St. Louis Ore & S. 
 Co. 28 Fed. Rep 729; Southern Exp. 
 Co. V. Western Worth Carolina R. Co. 
 99 U. S. 191, 25 L. ed. 319. In this 
 case there was a contract between a 
 railroad company and an express 
 company by which the latter loaned the 
 former a sum of money to be expended 
 in repairing and equipping the road 
 in consideration of the privileges and 
 facilities of express business over the 
 road. Foreclosure proceedings were 
 instituted and a receiver appointed, 
 who refused to perform the contract. 
 A bill for specific performance of the 
 contract was filed by the express com- 
 pany. The court held that a specific 
 performance if decreed would be a 
 form of satisfaction or payment, and 
 declined to grant the relief.
 
 104 RECEIVERSHIPS. 
 
 finished contracts if by so doing the interests of all parties will be 
 better conserved, and, in such case, whatever is done by the 
 receiver in the performance of such contracts becomes an obliga- 
 tion upon the receivership and its property to be protected by the 
 court.' Even the rights of lien holders may ofen be promoted 
 by such adoption. 
 
 The receiver has no right to impeach or disaffirm the legal and 
 authorized acts of a corporation, as where a corporation had sur- 
 rendered a note upon which the receiver subsequently brought 
 suit, no fraud or mistake of fact being shown,'' for in such a case 
 the receiver is as much bound by the act of the company as the 
 company would be. He may, however, avoid the illegal and un- 
 authorized act of the company." 
 
 § 36. Power to lease. 
 
 (a) It was formerly the law in England that a receiver could not 
 ex mere motu lease the premises which he held as receiver. But 
 in this country it is a common practice for the receiver to apply 
 to the court for leave to lease, and frequently power is given in 
 the order of appointment for such purpose. It is not necessary, 
 however, that the order contain such power." The court may 
 also authorize the leasing of the receivership property beyond the 
 termination of the litigation for the reason that if this power did 
 not exist, and the lease is terminable ijpso facto, on the termina- 
 tion of the litigation tenants could not be obtained at reasonable 
 
 1 Olyphant v. St. Louis Ore & S. * Leavitt v. Palmer, 3 N. Y. 19; 
 
 Co. 28 Fed. Rep. 729; Florence Gas, Gillet v. Moody, 3 N. Y. 479; Brouwer 
 
 E. L. & P. Co. V. Hanby, 101 Ala. 15; v. Hill, 1 Sandf. 629. A receiver in 
 
 Suydam v. Bank of New Brunswick, a foreclosure proceeding has no power 
 
 3 N. J. Eq. 114. But see Elmira lion to contract for municipal aid in the 
 
 <fc S. Boll. Mill Co. V. Erie R. Co. 26 construction by him of the unfinished 
 
 N. J. Eq. 284. portion of a branch road. Smith v. 
 
 ^Eyde v. Lynde, 4 N. Y. 387. As to McGullough, 104 U. S. 25. As to the 
 the right of a receiver of a railroad to liability of the receiver for work par- 
 sever the connection between it and tially completed when appointed and 
 another railroad, for non-payment of continued by the contractor there- 
 the sums agreed to be paid by the after until ordered to suspend, see 
 latter for the privilege of running Oerard L. Ins. A. & T. Co. v. Cooper, 
 over the road,— determined, in a case 51 Fed. Rep. 332, 4 U. S. App. 631. 
 depending upon particular facts, see *Weeksv. TFefA:s, 106 N. Y. 626; ^c- 
 Elmira Iron & 8. Roll. Mill Co. v. Minnville & M. Railroad v. Euggins, 3 
 Erie R. Co. 26 N. J. Eq. 284. Baxt. 177.
 
 RECEIVER'S POWERS. 105 
 
 rentals,* The term for which the lease may be made in many 
 cases is governed by statute, and, as in England and New York, 
 is governed by rules or general orders, but in the absence of gen- 
 eral orders the customary time for which premises of the charac- 
 ter under the receivership are usually rented may be a basis upon 
 which to act. It has recently been adjudicated and deter- 
 mined that the power to lease without notice to the parties, 
 is not a jurisdictional defect rendering the order void,'' yet 
 it would seem that where the lease runs for a term of years, 
 or any considerable period, notice should be given. As to the 
 length of time for which a receiver may lease without an order 
 of court, general or special, there seem to be no well considered 
 cases, though Daniel's Chancery Pleading and Practice says he 
 may " lease for a year certain, or less, or for any term not exceed- 
 ing three years.'' ^ 
 
 In case of a railroad company where no power exists in the 
 corporation to lease its 2:)roperty it is evident no power exists in 
 its receiver to lease,' and all improvements made by such a 
 lessee are at his own risk. 
 
 (b) An important question has frequently arisen as to the power 
 of the receiver to cancel a lease partially expired at the time of his 
 appointment. The ordinary chancery receiver is clothed with no 
 estate in the property but is a mere custodian of it for the court, 
 and where the order of court embraces a leasehold estate it be- 
 
 ^SJireve v. Hawkinson, 34 N. J. Eq. to lease for seven years or pending 
 
 413; Weeks '<r. Weeks, lOQ 'Si. Y. 626. the suit. Buckworthy. Morgan, Smith 
 
 2 Weeks v. Weeks, 106 N. Y. 626. on Recrs. (Irish) 82. 
 
 «2 Daniel's C. P. & P. p. 1750. The See further as to authority to lease 
 
 case upon which Mr. Daniel relies for without order, JV^eale v. Bealiiig, 3 
 
 this statement was decided in Cham- Swanst. 304; Moi-risv. Elme, 1 Ves. jr. 
 
 bers and does not seem to have been 139; Swaby v. Dickon, 5 Sim. 631; 
 
 reported, so that for the facts upon Roberts v. Armstrong, 2 Moll. 352; or 
 
 which it is based or the precedents leave of master, Dujfield v. Elwes, 11 
 
 relied upon, if any, we have no in- Beav. 590; v. Lindsey, 15 Ves. 
 
 formation. Lord Thurlow in Wynne Jr. 91. 
 
 V. Newborough, 1 Ves. Jr. 164, said: '^Statev. McMinnmlle & M. R. Co. 6 
 
 "I do not know how to make a dis- Lea, 369; TJiomas v. West Jersey R. Co. 
 
 tinction between leases for one year 101 U. S. 71, 25 L. ed. 950; York & 
 
 and others," and held the receiver M. L. R. Co. v. Winans, 58 U. S. 17 
 
 could not lease for one year without How. 30, 15 L. ed. 27; McMiniiville & 
 
 application to the master. M. Railroad v. Muggins, 3 Baxt. 177. 
 
 The Irish rule seems to have been
 
 106 
 
 RECEIVERSHIPS. 
 
 comes the duty of the receiver to take possession of it, but he 
 does not by such possession become assignee of the term.' The 
 court does not bind itself or its receiver eo instanti by the mere 
 act of taking possession of the leasehold property. After taking 
 possession of such property the receiver is entitled to a reason- 
 able time in which to ascertain the situation of affairs and deter- 
 mine whether it will be advantageous to the parties in interest, or 
 the estate, for him to retain and use the leasehold property." In 
 all such cases the receiver should act with reasonable promptness, 
 and in the meantime do no act that may be construed as an adop- 
 tion of the lease.' A receiver is not bound to accept property of 
 
 ^Oaither v. Stockbridge, 67 Md. 223; 
 Quincy, M. & P. R. Co. v. Huni'phreys, 
 145 U. S. 82, 36 L. ed. 632. 
 
 Receivers who take possession of 
 cars held by an insolvent railroad 
 company under a lease, with full au- 
 thority to do so, and operate the cars 
 with full knowledge of the lease and 
 the burdens assumed by the company, 
 are bound by the lease as assignees of 
 the company. Easton v. Houston & T. 
 C. R. Co. 38 Fed. Rep. 784. 
 
 ^St. Joseph & St. L. R. Co. v. Humph- 
 reys, 145 U. S. 105, 36 L. ed. 640; Quin- 
 cy, M. & P. R. Co. V. Humphreys, 145 
 U. S. 82, 36 L. ed. 630 ; Turn&r v. Rich- 
 ardson, 7 East, 335; Broome v. Robin- 
 son, cited in 7 East, 339; Sunflower 
 Oil Co. V. Wilson, 142 U. S. 313, 322, 
 35 L. ed. 1025, 1028; Com. v. Franklin 
 Ins. Co. 115 Mass. 278; Spar hawk v. 
 Yerkes, 142 U. S. 1, 35 L. ed. 915; Mw 
 York, P. & 0. Co. V. New York, L. E. 
 & W. R. Co. 58 Fed. Rep. 268; Farm- 
 ers' Loan & T. Co. v. Northern P. R. 
 Co. 58 Fed. Rep. 257; United States 
 Trust Co. V. Wabash Western R. Co. 150 
 U. S. 287, 37 L. ed. 1085; Seney v. 
 WabashWestern R. Co. 150 U. S. 310, 
 37 L. ed. 1092; Gaither v. Stockbridge, 
 67 Md. 222. But see People v. Uni- 
 versal L. Ins. Co. 30 Hun, 142. 
 
 *What acts of the receiver may be 
 
 construed as an acceptance of the lease 
 must, in the very nature of things, be 
 determined from the circumstances 
 surrounding each particular case, and 
 is often a question of much difficulty. 
 In the matter of assignees in bank- 
 ruptcy where the same rules apply, it 
 has been held, that advertising the 
 leasehold for sale with a view of as- 
 certaining its value is not an adoption, 
 but it would be if a bid were accepted. 
 Lord Ellenborough, in Turner v. 
 Richardson, 7 East, 335; or if at the 
 sale the assignee bid in the property, 
 Hastings v. Wilson, Holt, N. P. 290; 
 or conveyed it. Page v. Golden, 2 
 Stark. 309. As to what would be a 
 reasonable time in which to make the 
 election, see Ex parte Fletcher, 1 Deac. 
 & Ch. 318; Ex parte Scott, 1 Rose, 446, 
 Twte; Ex parte Blandy, 1 Deac. 286. 
 
 The general rule as to what con- 
 stitutes an acceptance of a lease by an 
 assignee in bankruptcy is stated by 
 Ch. J. Fuller in Quincy, M. & P. 
 R. Co. V. Humphreys, 145 U. S. 82, 99, 
 36 L. ed. 632, 638, as follows: "If, 
 however, they accepted a bidding, or 
 dealt with the estate as their own, or 
 used it in a manner injurious to the 
 persons otherwise entitled, they are 
 not within this protection. " The same 
 doctrine is held in Glenny v. Langdon,
 
 RECEIVER'S POWERS. 
 
 107 
 
 an onerous and unprofitable nature which would be a burden in- 
 stead of a benefit to the estate.* 
 
 A claim of the lessor for rent accruing before the receivership 
 is not entitled to priority over lien creditors. It is an unsecured 
 liability and must rank along with all other claims of the same 
 class on final distribution of the assets.^ 
 
 98 U. S. 20, 25 L. ed. 43; American 
 File Co. V. Garrett, 110 U. S. 288, 28 
 L. ed. 149; Sparhawk v. Yerkes, 142 
 U. S. 1, 35 L. ed. 915; Martin v. Black, 
 9 Paige, 641; Com. v. Franklin Ins. 
 Co. 115 Mass. 278; Berry v. Gillis, 17 
 N. H. 9; Eoyt v. Stoddard, 2 Allen, 
 442. 
 
 In Re Oak Pits Colliery Co. L. R. 
 21 Ch. Div. 322, Lord Justice Lindley, 
 under the "Companies Act," stated 
 the English rule upon this subject as 
 follows: (1) "If the liquidator has 
 retained possession for the purposes 
 of winding up, or if he has used the 
 property for carrying on the compa- 
 ny's business, or has kept the property 
 in order to sell it or to do the best 
 he can with it, the landlord will be 
 allowed to distrain for rent which has 
 become due since the winding up. 
 ... (2) But if he has kept possession 
 by an arrangement with the landlord 
 and for his benefit as well as for the 
 benefit of the company and there is 
 no agreement with the liquidator that 
 he shall pay rent, the landlord is not 
 allowed to distrain. . . . When the 
 liquidator retains the property for the 
 purposes of advantageously disposing 
 of it, or when he continues to use it, 
 the rent of it ought to be regarded as 
 a debt constructed for the purpose of 
 winding up the company and ought 
 to be paid in full like any other debt 
 or expense properly incurred by the 
 liquidator for the same purpo.se, and 
 in such a case it appears to us that the 
 
 rent for the whole period during which 
 the property is so retained, or used, 
 ought to be paid in full without ref- 
 erence to the amount which could be 
 realized by a distress. . . . But no au- 
 thority has yet gone the length of de- 
 ciding that a landlord is entitled to 
 distrain for or be paid in full rent ac- 
 cruing since the commencement of the 
 winding up when the liquidator has 
 done notliing except abstain from try- 
 ing to get rid of the property which 
 the company holds as lessee. If the 
 landlord had endeavored to reenter 
 and the liquidator had objected, the 
 case might be different." 
 
 ^Sparhliawk v. Yerkes, 142 U. S. 1, 
 35 L. ed. 915; Olenny v. Langdon, 98 
 U. S. 20, 25 L. ed. 43; American File 
 Co. V. Garrett, 110 U. S. 288, 28 L. 
 ed. 149. This species of unprofitable 
 property is termed by Lord Kenyon 
 damnosa hcereditas, cited in 7 East, 
 342. Weeks v. Weeks, 106 N. Y. 626; 
 McMinnville & M. Railroad v. Uug- 
 gins, 3 Baxt. 177; Shreve v. Hankinson, 
 34 N. J. Eq. 413; Weeks v. Weeks, 106 
 N. Y. 626. 
 
 ^Euidekoper v. Hinckley Locomotive 
 Works, 99 U. S. 258, 25 L. ed. 344; 
 Fosdick v. Schall, 99 U. S. 235, 25 L. 
 ed. 339; Union Trust Co. v. Illinois 
 M. R. Co. 117 U. S. 470, 29 L. ed. 975; 
 Thomas v. Western Car Co. 149 U. S. 
 95, 37 L. ed. 603; New York, P. & 0. 
 R. Co. V. Ne^c York, L. E. & W. R. 
 Co. 58 Fed. Rep. 2G8.
 
 108 RECEIVERSHIPS. 
 
 § 37. Power over property in foreign jurisdiction. 
 
 It is exceedingly difficult to reach a proper solution of this 
 question separate and distinct from the cognate question relating 
 to the receiver's right to sue in foreign jurisdictions in which form 
 the rights of the receiver and his power over such property have 
 usually been discussed. It will not be attempted therefore, in this 
 connection, to touch upon the subject except in a brief way." 
 
 It has been the practice in the courts of chancery of England 
 for perhaps a century and a half to appoint receivers for the pur- 
 pose of collecting in the effects of persons, and decedent's estates, 
 situated in foreign countries." Sometimes the practice was to ap- 
 point a receiver resident in the foreign country where the assets 
 were situated, and sometimes to appoint as receiver a resident of 
 England with power to appoint a foreign agent through whom 
 the business was transacted." And the same thing has been done in 
 this country, but, owing to the great variety of decisions, and ap- 
 parent conflict between many of them, growing out of the tech- 
 nical rules of practice relating to parties authorized to sue as well 
 as the relative rights of citizenship in the difl'erent states and the 
 remedies applicable to such relationship the law has been subject 
 to great confusion. Much of this confusion has arisen from the 
 mistaken idea that the title to the property over which the receiver 
 is appointed is vested in the receiver eo instanti on the date of 
 the order, as in bankruptcy and many insolvency proceedings 
 where by deeds of assignment the title to property is vested in the 
 assignee. 
 
 (a) English rule. 
 
 The following propositions may be considered as established 
 in England : 
 
 (1) A valid transfer of personal property according to the laws 
 of the place of residence is valid everywhere and will be enforced. 
 
 (2) The same rules apply to transfers of personal property 
 
 'See Chap. vi. ^Oockburn v. Raphael, 2 Sim. & Stu. 
 
 Wrewry v. Darwin, May 20, 1765, 453; v. Lindsey, 15 Ves. Jr. 91. 
 
 cited in 24 L. J. Ch. 121; Einton v. 
 Qalli, 24 L. J. Ch. 121. 2 Eq. 479.
 
 RECEIVER'S POWERS. 109 
 
 under bankruptcy and insolvency proceedings and by analogy to 
 receiverships. 
 
 (3) That there is no distinction between the transfer of such 
 property by voluntary act of the owner and by operation of law 
 so far as t]ie effects regarding title are concerned. 
 
 (4) That the title to personal property in a foreign jurisdiction 
 will be protected in the assignee as against an English creditor. 
 
 (5) That as to a foreign creditor not subject to English laws he 
 will be permitted to retain property acquired under attachment 
 sul)sequent to the assignment where the local laws confer upon 
 him an absolute title.' 
 
 (b) Ameeican rule. 
 The doctrine of American courts is almost diametrically op- 
 posite that of the English courts in some respects, and may be 
 summarized as follows : 
 
 (1) As to the disposition of personal property the law of the 
 domicil of the owner governs the transfer and if valid at his place 
 of domicil the transfer is valid everywhere, except where the local 
 law makes a preference in favor of its own citizens. 
 
 (2) As to the disposition of personal property by operation of 
 law as in receiverships, the law being local has no extra territorial 
 effect so far as the title is concerned. In such cases the assignee 
 takes the j)roperty subject to every equity of foreign creditors, 
 and subject to all remedies of foreign countries. 
 
 (3) As between the different states in this country there has 
 
 •A full and a very elaborate opinion Holmes v. Remsen, 4 Johns. Ch. 460; 
 
 with an exhaustive review of English Wilson's Case, cited in 1 H. Bl. 691; 
 
 and other foreign authorities upon Solomons v. Roi^a, 1 H. Bl. 131, 
 
 this question is given by Chancellor note, 691; Jollet v. Deponthieu, 
 
 Kent in Holmes v. Remsen, 4 Johns. 1 H. Bl. 132, note, 691; Neale v. 
 
 Ch. 460, 20 Johns. 229, and the au- Cottingham,\ H. Bl. 132, note; Royal 
 
 thorities upon the question will not be Bank of Scotland v. Cuthbert {Stein's 
 
 repeated in the connection. See also Case), 1 Rose Bank Cases, Appx. 
 
 2 Bell's Com. 7th ed. by McLaren 472, 2 Rose Bank Cases, 78; Smith 
 
 p. 568 [680]; and a review of all the v. BucJianan, 1 East, 6. 
 
 authorities both English and American The foregoing cases are principally 
 
 in Story's Conf. of Laws, 8th ed. bankrupt cases but involve the same 
 
 §§ 404-418; Goodwin v. Jones, 3 Mass. principle involved in receivership 
 
 517. And see Sill v. Worswick, 1 H. matters. Booth v. Clark, 58 U. S. 17 
 
 Bl. 690; Hunter v. Potts, 4 T. R. 182; How. 322, 15 L. ed. 164. 
 Phillips v. Hunter, 2 H. Bl. 402;
 
 110 
 
 RECEIVERSHIPS. 
 
 grown up a species of comity, founded upon the doctrine of reci- 
 procity, by means of which foreign assignments and receiverships 
 are recognized and enforced except where the rights of the citi- 
 zens of the state where such foreign assignment is sought to be 
 enforced are prejudiced. In other words, where the foreign law 
 comes in conflict with the law of the forum the latter prevails. 
 This doctrine is based upon principle, inter alia, that where a 
 foreign citizen places his property under the protection of another 
 state he voluntarily submits such property to the remedies that 
 state gives to its citizens. The rule is : Quatenus sine prejudicio 
 vndulgentiwm fieri potest.^ 
 
 ^Booth V. Clark, 58 U. S. 17 How. 
 322, 15 L. ed. 164; Blake v. Williams, 
 6 Pick. 286; Tully v. Htrrin, 44 Miss. 
 626; Very v. McHenry, 29 Me. 208; 
 Oliver j. Townes, 2 Mart. N. S. 93; 
 Frazier v. Fredericks, 24 N. J. L. 162; 
 Milne v. Moreton, 6 Binn. 353; Wood- 
 ward V. Roane, 23 Ark. 526; Speed v. 
 May, 17 Pa. 91; Law v. Mills, 18 Pa. 
 185; Saunders v. Williams, 5 N. H. 
 213; Ogden v. Saunders, 25 U. S. 12 
 Wheat. 213, 6 L. ed. 606; Wallace v. 
 Patterson, 2 Harr. & McH. 463. 
 
 The law of New York is most ably 
 reviewed in the late case of Re Waite, 
 99 N. Y. 433, by Mr. Justice Earl, 
 and the following propositions estab- 
 lished as the law of that state : 
 
 "(1) The statutes of foreign states 
 can have in no case any force or effect 
 in this state ex proprio vigore and hence 
 the statutory title of foreign assignees 
 in bankruptcy can have no recognition 
 here, solely by virtue of the foreign 
 statute. 
 
 (2) But the comity of nations which 
 Judge Denio in Petersen v. Chemical 
 Bank, 32 N. Y. 21, said is a part of 
 the common law allows a certain effect 
 here to titles derived under, and pow- 
 ers created by the laws of] other coun- 
 tries, and from such comity the titles 
 of foreign statutory assignees are 
 recognized and enforced here when 
 
 they can be without injustice to our 
 own citizens, and without prejudice 
 to the rights of creditors pursuing 
 their remedies here under our statutes; 
 provided also that such titles are not 
 in conflict with the laws or public 
 policy of our state. 
 
 (3) Such foreign assignees can ap- 
 pear, and subject to the conditions 
 above mentioned, maintain suits in 
 our courts against debtors of the 
 bankrupt whom they represent, and 
 against others who have interfered 
 with or withheld the property of the 
 bankrupt." The following cases are 
 cited as sustaining the propositions 
 above laid down : Peterson v. Chem- 
 ical Bank, 32 N. Y. 21; Eelly v. Crapo, 
 45 N. Y. 86; Cxgood v. Maguire, 61 
 N. Y. 524; Hibernia Nat. Bank v. 
 Lacombe, 84 N. Y. 367; Re Bristol, 16 
 Abb. Pr. 184; Bunk v. St. John, 29 
 Barb. 585; Barclay v. Quicksilver 
 Min. Co. 6 Lans. 25; Hoopes v, Tuck- 
 erman, 3 Sandf. 311; Olyphant v. At- 
 wood, 4 Bosw. 459; Hunt v. Jackson, 
 5 Blatchf. 349. See also Humphreys 
 v. Hopkins, 81 Cal. 551, 6 L. R. A. 
 792; State Bank v. First Nat Bank, 34 
 N. J. Eq. 450; Farmers' & M. Ins. Co. 
 V. Needles, 52 Mo. 17; Kronberg v. 
 Elder, 18 Kan. 150; Mosebyy. Burrow, 
 52 Tex. 896; Hunt v. Columbian Ins. 
 Co. 55 Me. 290; Filki7is v. Nunne
 
 RECEIVER'S POWERS. 
 
 38. Power to impeach fraudulent acts of debtor. 
 
 Ill 
 
 A court of chancery has no inherent power to invest a receiver 
 with authority to impeach a sale that is fraudulent as to creditors. 
 
 macher, 81 Wis. 91 ; McClure v. Camp- 
 hell, 71 Wis. 350; Taylor v. Boardman, 
 25 Vt. 581 ; Crapo v. Kelly, 83 U. S. 
 16 Wall. 610, 21 L. ed. 430; Watersy. 
 Barton, 1 Coldw. 450; Pon,d v. Cooke, 
 45 Conn. 126; Cagill v. Wooldridge, 8 
 Baxt. 580; McAlpin v. Jones, 10 La. 
 Ann. 552; Singer lyy. Fox, 75 Pa. 114; 
 Comstock V. Frederickson, 51 Minn. 
 350. 
 
 Chief Justice Mitchell in Catlin v. 
 Wilcox Silver Plate Co. 123 Ind. 477, 8 
 L. R. A. 62, states the law upon this 
 subject as follows: 
 
 (1) The rule may be considered as 
 established that a receiver may invoke 
 the aid of a foreign court in obtaining 
 possession of property or funds within 
 its jurisdiction to which he is entitled, 
 but aid will only be extended as 
 against those who were parties to, or 
 in some way in privity with, the pro- 
 ceedings in the course of which his 
 appointment was made, or who are in 
 possession of the property or fund to 
 which the receiver has a right, and 
 not against creditors of a nonresident 
 debtor, who are seeking to subject the 
 property or fund to the payment of 
 their debts, by proceedings only insti- 
 tuted for that purpose. 
 
 Hurd V. Elizabeth, 41 N. J. L. 1; 
 Bunk V. St. Jolin, 29 Barb. 585; Bagby 
 V. Atlantic, M. & 0. B. Co. 86 Pa. 291; 
 Lycoming F. Ins. Co. v. Wriglit, 55 
 Vt. 526; Thurston v. Bosenfield, 42 
 Mo. 474; Willim v. Waite, 25 N. Y. 
 577. 
 
 (2) It follows, hence, that the avail- 
 able legal authority of a receiver is co- 
 exten.sive only with the jurisdiction of 
 the court by which he was appointed 
 
 when the right of precedence or 
 priority of creditors is asserted in re- 
 spect to property or funds of a non- 
 resident debtor, which the receiver 
 has not yet reduced to possession. 
 
 Hunt V. Columbian Ins. Co. 55 Me. 
 290; Warren v. Union Nat. Bank, 7 
 Phila. 156; Booth v. Clark, 58 U. S. 17 
 How. 322, 15 L. ed. 164; Statev. Jack- 
 sonvillle, P. & M. R. Co. 15 Fla. 201; 
 Farmers' & M. Ins. Co. v. Needles, 52 
 Mo. 17; Taylor v. Columbian Ins. Co. 
 14 Allen, 353. 
 
 (3) It is of course well settled that 
 personal property is transferable ac- 
 cording to the law of the owner's 
 domicil, and that a voluntary assign- 
 ment or transfer made without com- 
 pulsion or legal coercion is to be gov- 
 erned everywhere by that law, unless 
 the contract by which the the transfer 
 was made is limited or restrained by 
 some positive enactment of the state 
 in which the property is situate or 
 unless it affects citizens of the latter 
 state injuriously. 
 
 Ames Iron Works v. Warren, 76 lud. 
 512; Martin v. Potter, 11 Gray, 37; 
 Weider v. Maddox, 66 Tex. 372; War- 
 ner V. Jaffray, 96 N. Y. 248; Oreen 
 V. Van Buskirk, 74 U. S. 7 Wall. 139, 
 19 L. ed. 109; Askew v. La Cygne 
 Exch. Bank, 83 Mo. 366; Law v. Mills, 
 18 Pa. 185; Lowry v. Hall, 2 Watts & 
 S. 129; Smith's Appeal, 104 Pa. 381; 
 Chafee v. Fourth Nat. Bank, 71 Me. 
 514; Ouillander v. Howell, 35 N. Y. 
 657; Faulkner v. Hyman, 142 Mass. 
 53; Moore v. Church, 70 Iowa, 208; 
 Re Waite, 99 N. Y. 433. 
 
 (4) Property in a foreign state that 
 has passed from an assignor to an
 
 112 
 
 RECEIVERSHIPS. 
 
 As a rule the ordinary receiver pendente lite in case of corpora- 
 tions is regarded as representing the corporate body itself and not 
 
 fissignee by a voliininry deed, and not 
 by proceedings in imitum by process 
 of law, is distinguished from like 
 property in the hands of a receiver by 
 operation of law, or by an assignment 
 ■made under legal compulsion. Assign- 
 ments of the latter class are held 
 inoperative upon property not situate 
 within the territory over which the 
 laws that make, or compel its debtor 
 •to make them, have dominion. 
 
 Rhaion v. Pearce, 110 111. 350; 
 Smith's Appeal, 104 Pa. 381 ; Walters 
 V. Whitluck, 9 Fla. 86. 
 
 (5) The principles of comity in 
 favor of a foreign receiver in obtain- 
 ing possession of a fund are not only 
 suspended as against a citizen of the 
 -state where the property is situate, 
 but also as against nonresident cred- 
 itors of states other than that of the 
 debtor. There are some cases that 
 hold that if the receiver reduces the 
 property to his possession then in such 
 case his possession will be protected- 
 in a foreign jurisdiction, provided the 
 property is in the foreign jurisdiction 
 for a lawful purpose. 
 
 Cf. Chicago, M. & St. P. R. Co. v. 
 Keokuk N. L. Packet Co. 108 111. 317; 
 Cagill V. Wooidridge, 8 Baxt. 580; 
 Killmer v. Hobart, 58 How. Pr. 452; 
 Pond v. Cooke, 45 Conn. 126; Cook v. 
 Orange, 48 Conn. 401; Blake Crusher 
 Co. v. New Haven, 46 Conn. 473. 
 Contra, Ilumphreys v. Hopkins, 81 
 Cal. 557, 6 L. R. A. 792. 
 
 But not so where the property is in 
 a foreign jurisdiction for an illegal 
 purpose. 
 
 Dick T. Bailey, 2 La. Ann. 974. 
 
 Where a receiver was appointed in 
 New York, and a general assignment 
 •was made to him by the debtor, the 
 ^receiver was permitted to file a bill in 
 
 Michigan to foreclose a mortgage not 
 strictly as receiver, but as assignee. 
 Graydon v. Church, 7 Mich. 36. 
 
 As to the receiver's right to sue in a 
 foreign jurisdiction it has been held 
 that he has no such right in the follow- 
 ing cases: 
 
 Hojye Mut. L. Ins. Co. v. Taylor, 2 
 Robt. 278; Eronberg v. Elder, 18 Kan. 
 150; Commercial Nat. Bank v. Mother- 
 well Iron <fe 8. Co. 95 Tenn. 172, 29 L. 
 R. A. 164; Farmers' & M. Ins. Co. v. 
 Needles, 52 Mo. 17; Brigham v. Lud- 
 dington, 12 Blatchf. 237; Hazard v. 
 Durant, 19 Fed. Rep. 471; Olney v. 
 Tanner, 2i Blatchf. 540; Day v. Postal 
 Teleg. Co. 66 Md. 354; Bartlelt v. Wil- 
 bur, 53 Md. 485; Filkins v. Nunne- 
 macher, 81 Wis. 91; McClure v. Camp- 
 bell, 71 Wis. 350; Booth v. Clark, 58 
 U. S. 17 How. 322, 15 L. ed. 164. This 
 case is the authority for holding that 
 a receiver has no right to sue in a for- 
 eign jurisdiction, on which most of 
 the foregoing cases are based. It was 
 not the law in England when decided 
 [1854], and had not been since the case 
 of Falliott V. Ogden, 1 H. Bl. 123 
 (1789); nor was it the law of conti- 
 nental Europe. The doctrine had 
 been condemned in Holmes v. Remsen, 
 4 Johns. Ch. 460, by Chancellor Kent, 
 and is at variance with the following 
 later cases: 
 
 Boulware v. Davis, 90 Ala. 207, 9 
 L. R. A. 601; Merchants' Nat. Bank 
 V. McLeod, 38 Ohio St. 174; Wilkinson 
 V. Culver, 23 Blatchf. 416; McAlpin 
 V. Jones, 10 La. Ann. 552; Lycoming 
 F. Ins. Co. V. Wright, 55 Vt. 526; 
 Iglehart v. Bierce, 36 111. 133; Gray- 
 don V. Church, 7 Mich. 36; Hunt 
 V. Columbian Ins. Co. 55 Me. 290; 
 Hurd V. Elizabeth, 41 N. J. L. 1; 
 Chafee v. Quidnick Co. 13 R. I. 413;
 
 RECEIVER'S POWERS. 
 
 113 
 
 its creditors or shareholders. He derives his power under and 
 through it, and for the purposes of litigation he takes only the 
 rights of the corporation such as could be asserted in its own 
 name.' But in other cases by virtue of statutory provisions the 
 
 Paine v. Lester, 44 Conn. 196; Cooke 
 V. Orange, 48 Conn. 401; Merchants' 
 Nat. Bank v. McLeod, 38 Ohio St. 174; 
 Bidlack v. Mason, 26 N. J. Eq. 230; 
 Sobernheimer v. Wheeler, 45 N. J. Eq. 
 614; Metzner v. Bauer, 98 Ind. 427; 
 Bunk V. St. John, 29 Barb. 585; Milne 
 V. Moreton, 6 Binn. 353; Barclay v. 
 Quicksilver Min. Co. 6 Lans. 25; Pugh 
 V. Hurtt, 52 How. Pr. 22; Dyer v. 
 Power, 39 N. Y. S. R. 136; Peters v. 
 Foster, 56 Hun, 607; New Jersey Pro- 
 tection & L. Bank v. Thorp, 6 Cow. 46; 
 Hibernia Nat. Bank v. Lacombe, 84 N. 
 Y. 367; Toronto General Trust Go. v. 
 Chicago, B. & Q. B. Co. 123 N. Y. 37; 
 Woodward v. Brooks, 128 111. 222, 3 
 L. R. A. 702; Bhaicn v. Pearce, 110 
 111. 350; SercombY. Catlin, 128 111. 556. 
 
 "The course of modern adjudica- 
 tions," says Pinney, J., in Gilman v. 
 Ketcham, 84 Wis. 60, 23 L. R. A. 52, 
 "is in favor of a liberal extension of 
 interstate comity, and against a narrow 
 and provincial policy, which would 
 deny proper effect to judicial decisions 
 of sister states under their statutes, 
 and rights claimed under them simply 
 because technically they are foreign 
 and not domestic." 
 
 For an instructive case on the law 
 of international comity, see Hilton v. 
 Guyot, 159 U. S. 113. 
 
 As showing the power of the court 
 over property in a foreign jurisdiction 
 where it has jurisdiction over the par- 
 ties, see Cole v. Cunningham, 133 U. 
 S. 107, 33 L. ed. 538; Sercomb v. Cat- 
 lin, 128 111. 556; Alexander v. Tolleston 
 Club. liO 111. 65. 
 
 A foreign receiver of a foreign cor- 
 poration, appointed at the place of its 
 domicil to whom all its assets have 
 8 
 
 been assigned, has been allowed to 
 intervene in Massachusetts and be 
 heard in a proceeding to appoint a re- 
 ceiver in that state. Buswell v. Su- 
 preme Sitting 0. of I. H. 161 ]Mass. 224. 
 But see Fatccett v. Supreme Sitting 0. 
 of I. II. 64 Conn. 170, 24 L. R. A. 815. 
 A receiver of one state will be ap- 
 pointed over a railroad extending into 
 another state by the court of the latter 
 state on grounds of comity. Port 
 Boyal & A. R. Co. v. King, 93 Ga. 
 63, 24 L. R. A. 730. To the same 
 effect is Baldicin v. Hosmer, 101 Mich. 
 432. 
 
 A careful examination of the fore- 
 going cases, taking into consideration 
 the tendency and broader liberality of 
 our modern courts, and the increasing 
 laxity in the application of the doc- 
 trine of stare decisis — now becoming a 
 relic of the past — it is believed will es- 
 tablish the following propositions so 
 far as personal property in a foreign 
 jurisdiction is concerned: 
 
 (1) The distinction between a vol- 
 untary transfer and a transfer by 
 operation of law is a mere legal fiction. 
 
 (2) A recognition of the rights of a 
 foreign receiver coextensive with the 
 recognized rights of the person or cor- 
 poration over whose property he is 
 appointed is conducive to the best in- 
 terests of interstate and international 
 commercial relations, and is in har- 
 mony with the fundamental principles 
 of our government, promoting as it 
 does due and proper respect between 
 the courts of the several states. 
 
 ^Republic L. Ins. Co. v. Swigcrt, 135 
 111. 150, 12 L. R. A. 328; Hyde v. 
 Lynde, 4 N. Y. 387; Higgins v. Gilles- 
 heimer, 26 N. J. Eq. 308. In this case
 
 114 
 
 RECEIVERSHIPS. 
 
 receiver may, as the representative of creditors, disaffirm and im- 
 peach the fraudulent acts of the insolvent debtor or corporation.* 
 This is especially so in an action brought to wind up an insolvent 
 corporation, in which case the receiver, represents the interests of 
 creditors rather than the dead corporation.' The receiver may 
 also disaffirm the unlawful acts of a corporation, as where dividends 
 have been declared in favor of stockholders of an insolvent cor- 
 poration in violation of a statute.* 
 
 the Vice Chancellor says: "The ques- 
 tion in this case is, has the complainant 
 as receiver a right to have them nulli- 
 fied? In the absence of a statutory 
 provision a receiver is a mere instru- 
 ment, or arm of the court, by which 
 he holds the property in dispute for 
 safe keeping and preservation; he is 
 not invested with the legal title; he 
 acts or refrains as the court directs; 
 he is so purely the creature of the 
 court that the property he holds ia 
 esteemed io 'be in custodialegis. . . . 
 It is clear therefore that unless the stat- 
 ute authorizing complainant's appoint- 
 ment as receiver confers upon him the 
 right to maintain this action he cannot 
 maintain it. His right to appear here 
 as a suitor to impeach these convey- 
 ances must appear in the law author- 
 izing his appointment, or he has no 
 such right." See also Seymour v. 
 WiUon, 16 Barb. 294; Oreen v. Hichs, 
 1 Barb. Ch. 309; Dorr v. Noxon, 5 
 How. Pr. 29; Fo:iier v. Townshend, 13 
 Abb. Pr. N. S. 469; Coope v. Bowles, 
 42 Barb. 87; Hyde v. Lynde, 4 N. Y. 
 387; Piscataqua F. & M. Ins. Co. v. 
 Hill, 60 Me. 178; Kennebec & P. R. R. 
 Co. v. Portland & R. R. Co. 54 Me. 
 181 ; Brewer v. Boston Theatre Proprs. 
 104 Mass. 378; Re Duckioorth, L. R. 2 
 Ch. App. Cas. 577; LeifcMld's Case, 
 L. R. lEq. 231. 
 
 ^Pittsburg Carbon Co. v. McMillin, 
 119 N. Y. 46, 7 L. R. A. 46; Vail v. 
 Hamillon, 85 N. Y. 453; Atty. Gen. v. 
 Guardian Mut. L. Ins. Co. 77 N. Y. 
 
 272; Underwood v. Sutdiffe, 77 N. Y. 
 62; Bostwick v. Menck, 40 N. Y. 383 
 Gillett V. Phillips, 13 N. Y. 114 
 Tuckerman v. Brown, 33 N. Y. 297 
 Curtis V. Leavitt, 15 N. Y. 44; Porter 
 V. Williams, 9 N. Y. 142; Talmage v. 
 Pell, 7 N. Y. 347; Gillet v. Moody, 3 
 N. Y. 474; Mann v. Pentz, 3 N. Y. 
 415; Van Cott v. Van Brunt, 2 Abb. 
 JT. C. 283, 83 N. Y. 535; Libby v. 
 Rosekrans, 55 Barb. 217; Osgood v. 
 Laytin, 48 Barb. 464. 5 Abb. Pr. N. 
 S. 9; Barton v. Eosner, 24 Hun, 469; 
 Buttencorth v. O'Brien, 24 How. Pr. 
 438; Manley v. Bassiga, 13 Hun, 288; 
 Osgood V. Ogden, 4 Key 63,70; Brouwer 
 V. Appleby, 1 Sandf. 158; Brouwer v. 
 Hill, 1 Sandf. 629; Hoyt v. Thompson, 
 3 Sandf. 416; Porter v. Sabin, 149 U. 
 S. 473, 37 L. ed. 815; Runyon v. Far- 
 mers' <& M. Bank, 4 N. J. Eq. 480; 
 Monitor Furnace Co. v. Peters, 40 
 Ohio St. 575; Gill v. Balis, 72 Mo. 
 424; Alexander v. Relfe, 74 Mo. 495; 
 Minnesota Thresher Mfg. Co.y. Lang- 
 don, 44 Minn. 37; but see Atchison v. 
 Davidson, 2 Pinney, 48; Hamlin v. 
 Wright, 23 Wis. 492. 
 
 * United States v. Church of Jesus 
 Christ of L. D. 8. 5 Utah, 538; Re 
 Atty. Gen. v. Guardian Mut. L. Ins. 
 Co. 77 N. Y. 272; Crandallv. Lincoln, 
 52 Conn. 73. And.see further Corpo- 
 rations. 
 
 ^Minnesota Thresher Mfg. Co. v. 
 Langdon, 44 Minn. 37; Osgood v. Lay- 
 tin, 48 Barb. 464, Afiirmed in 3 Kejes, 
 521.
 
 KECEIVER'S POWERS. 
 
 115 
 
 § 39. Power to collect unpaid stock subscriptions. 
 
 A receiver of an insolvent corporation being aj^pointed to ad- 
 minister the whole estate so far as it is liable for the j)ayment 
 of its debts has power to enforce payment of arrearages of stock- 
 holders for unpaid stock, such arrearages being properly liable 
 for the payment of the corporation debts.' In a proceeding to 
 
 In Kennedy v. Thorp, 51 N. T. 174, 
 it was held that where a vendor from 
 whom goods had been fraudulently 
 obtained brings suit on the contract 
 and prosecutes it to judgment, neither 
 the vendor or his receiver appointed in 
 supplementary proceedings based on 
 such judgment can set up fraud in the 
 sale. 
 
 In Olney v. Tanner, 10 Fed. Rep. 
 101, affirmed in 18 Fed. Rep. 636, it 
 was held that a receiver appointed in 
 supplementary proceedings is not 
 vested by virtue of his appointment 
 with the title of property fraudulently 
 conveyed by the debtor. The court 
 appointing him cannot put him in 
 possession of such property. It will 
 not authorize his meddling with it nor 
 protect him if he does so. But he may 
 assail the fraudulent transaction by a 
 suit for that purpose to the extent a 
 creditor might do and not otherwise 
 and recover to the extent such creditor 
 might recover. Bostwick v. MencTc, 40 
 N.Y. 383; Brown v. Gilmore, 16 How. 
 Pr. 527; Field v. Sands, 8 Bosw. 685. 
 And in such case if an assignee in 
 bankruptcy of the debtor has been 
 appointed he alone can file a bill to 
 set aside the fraudulent conveyance. 
 Olney v. Tanner, 18 Fed. Rep. 636; 
 Cf. Teller v. Randall, 40 Barb. 243; 
 Becker v. Torrance, 31 N. Y. 637; 
 Miller v. MacKemie, 29 N. J. Eq. 292. 
 But see Higgins v. Qilleslieimer, 26 N. 
 J. Eq. 308; Parker v. Browning, 8 
 Paige, 388. A receiver has power to 
 obtain possession and control of assets 
 
 retained and concealed by the officers 
 of a corporation. Brandt v. Allen, 76 
 Iowa, 50, 1 L. R. A. 653, and in such 
 case defendants will not be heard to 
 say thai the assets are not needed for 
 the payment of the lawful debts of the 
 company. McCarty's Aj)peal, 110 Pa. 
 379. 
 
 Uleman v. Britton, 88 Mo. 549; Sho- 
 walter v. Laredo Improv. Co. 83 Tex. 
 162; Pentz v. Hawley, 1 Barb. Ch. 122; 
 Calkins v. Atkinson, 2 Lans. 12; Farm- 
 ers' & M. Bank v. Jenks, 7 Met. 593; 
 Rankine v. Elliott, 16 N. Y. 377. And 
 suit may be collectively or individ- 
 ually against the shareholders. Van 
 Wageman v. Clark, 22 Hun, 497. 
 And in some states may make assess- 
 ments as in mutual insurance compa- 
 nies. Tobey v. Russell, 9 R. I. 58; 
 Embree v. Shideler, 36 Ind. 423; Mc- 
 Donald V. Ross-Lewin, 29 Hun, 87; 
 Sands v. Sanders, 28 N. Y. 416; Jack- 
 son V. Roberts, 31 N. Y. 304; Downs 
 V. Hammond, 47 Ind. 131; Frank v. 
 Morrison, 58 Md. 423; Stillman v. 
 Dougherty, 44 Md. 380; Elderkin v. 
 Peterson, 8 Wash. 674; Oreat Western 
 Teleg. Co. v. Gray, 123 111. 630; Clark 
 V. Thomas, 34 Ohio St. 46; Merchants' 
 Nat. Bank v. Northwestern Mfg. & 
 Car Co. 48 Minn. 361; Minnesota 
 Thresher Mfg. Co. v. Langdon, 44 
 Minn. 37; Stewart v. Lay, 45 Iowa, 
 604; Gaslight & Bkg. Co. v. Ilaynes, 
 7 La. Ann. 114; New Orleans Gaslight 
 Co. v. Bennett, 6 La. Ann. 457; Stark 
 V. Burke, 5 La. Ann. 740. 
 
 A receiver in ordinary creditors'
 
 116 
 
 RECEIVERSHIPS. 
 
 recover unpaid stoclc in a banking corporation the receiver may 
 proceed in eciuity, he l^eing the representative of the creditors, 
 not on the ground of there being no legal remedy, but upon the 
 ground that the statute gives a new remedy for a new state of 
 things, and in such a proceeding the shareholder is not at liberty 
 to urge, as a defense, that he is deprived of a trial by jury, for the 
 reason that in accepting the franchises of the corporation the 
 shareholder voluntarily subjected himself to the terms and con- 
 ditions accompanying such franchises.' He may also proceed 
 against a bank director to recover a penalty incurred for illegally 
 paying out a portion of the stock of the bank, and, by statute, may 
 sue in his own name." But it has been held in a recent case that 
 the power of a receiver to institute proceedings against the stock- 
 holders of an insolvent corporation to set aside the transactions 
 by which unpaid stock was surrendered and paid up stock issued 
 in lieu thereof, was derived solely from statutory authority, and 
 in the absence of such statutory power the receiver could not pro- 
 ceed.' 
 
 suits has no power to enforce the stock 
 liability of shareholders. Mann v. 
 Pentz, 3 N. Y. 415. Nor has he in a 
 proceeding brought by him to enforce 
 stock liability, where he represents the 
 corporation and the shareholders and 
 not the creditors. Billings v. Robin- 
 son, 28 Hun, 122, affirmed in 94 K 
 Y. 415; Republic L. Ins. Co. v. Swig- 
 ert, 135 111. 150, 12 L. R. A. 328. But 
 see Great Wester7i Teleg. Co. v. Gray, 
 122 111. 630. 
 
 ^Sagory v. DuBois, 3 Sandf. Ch.*466. 
 
 As to the right of the receiver to en- 
 force stock subscriptions see generally : 
 
 Illinois: Great Western Teleg. Co. v. 
 Gray, 122 111. 630. 
 
 Iowa; Stewart v. Lay, 45 Iowa, 604. 
 
 Louisiana: Gaslight & Bkg. Go. v. 
 JIaynes, 7 La. Ann. 114. 
 
 Maryland: Frank v. Morrison, 58 
 Md. 423. 
 
 Minnesota: Merchants'' Nat. Bank 
 V. Northtcestern Mfg. & Car Co. 
 48 Minn. 361. 
 
 New York: Mann v. Pentz, 3 N. Y. 
 415; Billings v. Robinson, 28 
 Hun, 122. 
 
 Ohio: Clarke v. Thotnas, 34 Ohio 
 St. 46. 
 
 Washington: Elderkin v. Peterson, 
 8 Wash. 674. 
 
 *Bank of Niagara v. Johnson, 8 
 Wend. 645. 
 
 ^Republic L. Ins. Go. v. Swigert, 135 
 111. 150, 12 L. R. A. 328. Prior to the 
 adoption of the New York Code it was 
 necessary to enforce such liability by 
 a bill filed in behalf of all the creditors 
 against the corporation, making all 
 the stockholders also defendants. 
 Mann v. Pentz, 3 N. Y. 415, reversing 
 2 Sandf. Ch. 257; Wallace v. Milligan, 
 110 Ind. 498. As to the rule in Louis- 
 iana see Gaslight & Bkg. Co. v. Haynes, 
 7 La. Ann. 114; New Orleans Gaslight 
 Co. V. Bennett, 6 La. Ann. 457; Stark 
 V. Burke, 5 La. Ann. 740. 
 
 See this subject further under title 
 Corporations.
 
 RECEIVER'S POWERS. 117 
 
 § 40. Power to issue certificates. 
 
 As we have seen the receiver has power in case of a raih-oad 
 corporation to pay operating expenses under the direction of the 
 court, and he may issue certificates therefor to such an amount as 
 the court may direct, but he has no right to divert the funds de- 
 rived from the road to other purposes than those considered and 
 passed upon by the court.' Wliere certificates were authorized 
 for a certain amount, the proceeds to be used in defraying operat- 
 ing expenses, and certificates were issued beyond that amount and 
 the proceeds were used in paying coupons due on the bonds of the 
 road, such certificates are void even in the hands of innocent 
 holders, but the hona fide holders of such certificates should be 
 subrogated to the rights of the holders of such coupons as had 
 been paid from the money arising from the sale of the void cer- 
 tificates.'' For further consideration of this subject see Receiver's 
 Certificates, 
 
 § 41. Power to appeal. 
 
 Ordinarily a receiver has no power to appeal from an order di- 
 recting him to turn over property in his hands, but when the 
 order erroneously directs him to turn over more than he has he 
 may appeal from such order. ^ In a matter in which he is a party 
 
 As to what defenses may or may Labor supplies, taxes, »fcc., for rail- 
 not be interposed to actions brought ways: 
 
 by receivers to recover unpaid sub- Union Trust Co. v. Illinois M. R. Co. 
 
 Bcriptions see Shoonover v, Hinckley, 117 U. S. 434, 29 L. ed. 963; Ilumph- 
 
 48 Iowa, 82; Stewart v. Lay, 45 Iowa, reys v. Allen, 101 111. 490. 
 
 604; Oreat Western Teleg. Go. v. Oray, Rolling Stock, Machinery, etc.: 
 
 122111. 630; Lamar Ins. Co. y. Gtilick, Sicann v. Clark, 110 U. S. 602, 28 
 
 102 111. 41; Chandler v. Broion, 77 111. L. ed. 256; Wallace v. Loomis, 97 U. 
 
 833; Billings v. Robinson, 28 Hun, 122, S. 146, 24 L. ed. 895. 
 
 affirmed 94 N. Y. 415; Ruggles v. Repairs: 
 
 Brock, 6 Hun, 164; Pentz v. Haioley, Ilo'jver v. Montclair & O. L. R. Co. 
 
 1 Barb.Ch. 122; Siillman v. Dougherty, 29 N. J. Eq. 4. 
 
 44 Md. 380. Completion of road, connecting 
 
 ^Co6 V. New Jersey M. R. Co, 27 N. lines, etc. : 
 
 J. Eq. 37. Bank of Montreal v. Chicago, C. & 
 
 ^Newhold v. Peoria & S. R. Co. 5 111. W. R. Co. 48 Iowa, 518; Kneeland v. 
 
 App. 367. Luce, 141 U. S. 491. 35 L. ed. 830; 
 
 Receiver's certificates have been au- Earn v. Rarer Iron Co. 80 Va. 754. 
 
 thorized for the following purposes: ^Tlotne v. Jonei\, 60 Iowa, 70; Uowe v. 
 
 JoHGs, 71 Iowa, 92.
 
 118 
 
 RECEIVE KSHIPS. 
 
 he lias no right to appeal without leave of the court.' An appeal 
 by a receiver from a decision against him is not evidence of bad 
 faith on his part, and may be evidence of judicious management." 
 As a general rule it may be stated that he has a right to the same 
 defenses that could have been urged by the person or corporation 
 over whose property he appointed including the rights of appeal,' 
 but in all cases it must be done under the order and direction of 
 the court.* His right to appeal in matters relating to his com- 
 pensation is clear and unquestioned;^ in such case he is in fact a 
 party in interest.' Of course in all cases of appeal by the receiver 
 the question of the nature of the order and whether it is final or 
 simply interlocutory are to be taken into consideration.' He has 
 
 'i?e City & County Invest. Co. L. R. 
 13 Ch. Div. 475; Re Silver Valley Mines, 
 L. R. 21 Ch. Dlv. 381. An appeal will 
 not be dismissed because the receiver 
 did not first obtain leave of the court. 
 The allowance of the appeal is equiv- 
 alent to leave of court to take it. Far- 
 low V. Kelly, reported only in U. S. 
 Sup. Ct. Reports, 26 L. ed. 427. 
 
 ^Bevendorfv. Dickinson, "iX How.Pr. 
 275. "Defendants show no bad faith 
 or mismanagement of the action on 
 the part of the receiver; that he still 
 persevered after being beaten at spe- 
 cial term and appealed to the general 
 term clearly is not such evidence; it 
 is only evidence of perseverance and 
 nothing more. It may be meritorious 
 rather than censurable." 
 
 ^Melendy v. Barbour, 78 Va. 544. 
 If he were not permitted to appeal, 
 injustice to the parties might result. 
 Steele v. White, 2 Paige, 478; Cuyler v. 
 Moreland, 6 Paige, 273 ; Stone v. Byrne, 
 5 Bro. P. C. 213. 
 
 *McKinnon v. Wolfenden, 78 "Wis. 
 237. And seeBorsey v. Sibert, 93 Ala. 
 312. These cases are based upon the 
 idea that the receiver is the agent of 
 court and not a party in interest to 
 the proceeding and therefore not enti- 
 tled to appeal. 
 
 ^Herndon v. Hurter, 19 Fla. 397; 
 
 Magce v. Cowperthtcaite, 10 Ala. 966; 
 Central Trust Co. v. Grant Locomotive 
 Works, 135 U. S. 221, 34 L. ed. 104; 
 Hinckley v. Oilman, C. & S. R. Co. 94 
 U. S. 467, 24 L. ed. 166. He cannot 
 appeal from an order on a motion to 
 vacate the appointment. L'Engle v. 
 Florida C. R. Co. 14 Fla. 266. 
 
 ^Hinckley v. Oilman, C. & S. B. Go. 
 94 U. S. 467, 24 L. ed. 166; Whitaker 
 v. Sparkman, 30 Fla. 347; Cf. Adair 
 Co. v. Ownby, 75 Mo. 282. 
 
 'See Appeals. Also Rocliat v. Gee, 
 91 Cal. 355; Illinois Trust & Sav. Bank 
 V. Facijic R. Co. 99 Cal. 407; Whitaker 
 V. Sparkman, 30 Fla. 347; Hinckley v. 
 Oilman, C. & S. R. Co. 94 U. S. 467, 24 
 L. ed. 166; Washington, 0. & A. R. Co. 
 V. Wasliington, 74 U. S. 7 Wall. 577, 19 
 L. ed. 275; Thompson v. McKim, 6 
 Har. & J. 302. 
 
 As to what are final orders, see Jeff- 
 reys V. Coleman, 20 Fla. 536; Williams 
 y. Hutchinson, 2Q Fla. 513; Williams 
 V. Morgan, 111 U. S. 684, 28 L. ed. 559; 
 Savannah v. Jessup, 106 U. S. 563, 27 
 L. ed. 276; Milwaukee tfc M. R. Co. v, 
 So^itter, 69 U. S. 2 Wall. 510, 17 L. ed. 
 900; Grant v. Phoinix Mut. L. Ins. Co. 
 106 U. S. 429, 27 L. ed. 237; Louisiana 
 Nat. Bank v. Whitney, 121 U. S. 284, 
 SOL. ed. 961; International Improv. 
 Fund v. Oreenough, 105 U. S. 527, 26
 
 RECEIVER'S POWERS. 119 
 
 no right to appeal from an order directing him to close his accounts 
 and pay over.* 
 
 § 42. Miscellaneous powers. 
 
 A receiver of an insolvent corporation who is authorized to sue 
 for and recover "all the estate debts and things in action," be- 
 longing to the corporation may maintain trover for the conversion 
 of the personal property of the corporation before he was ap- 
 pointed receiver.'' The receiver of a bank who has succeeded to 
 all its rights and interests may move to set aside an attachment 
 against such property on the ground of irregularity.' He has no 
 right to summarily eject the occupant of land and take j)ossession 
 of his personalty without a trial of the right of such possessor to 
 such personalty, and an order authorizing him to do so granted 
 on a mere special proceeding will not be sustained." A receiver 
 appointed to sue for and collect such debts as are or may become 
 due and pay over the proceeds to a third person has authority to 
 receive money payable under a contract before it becomes due ; 
 and if they be accepted by the third party he nmj take notes in 
 place of money.^ Having authority to collect rents he has au- 
 thority to collect those which are to become due as well as those 
 which are due." Courts have power to compel a settlement of a 
 claim against property in the hands of a receiver, with or without 
 the consent of the receiver, and in case of his refusal the court 
 may remove him.' 
 
 L. ed. 1158; Williams v. Morgan, 111 ^Olcott v.Heermans, 3 Hun, 434. 
 
 U. S. G84, 28 L. ed. 559; FuscUck v. K'ox v.Volkeri, 86 Mo. 505. 
 
 Schall, 99 U. S. 235, 25 L. ed. 339; Ex ''Guardian Sav. Inst. v. Boicling 
 
 parte Farmers' Loan & T. Co. 129 U. Green Sav. Bank, 65 Barb. 275. 
 
 8. 206, 32 L. ed. 656; Hovey v. Mc- A receiver has no right to interfere 
 
 Donald, 109 U. S. 150, 27 L. ed. 888. in a suit brought by an executor be- 
 
 ^Re Colvin, 3 Md. Ch. 278. If a re- fore the appointment of such receiver, 
 
 ceiver appeals and subsequently anew and then pending, without an order 
 
 receiver is appointed, the new receiver of court. Gadsden v. Whaley, 14 S. C. 
 
 may be substituted in the appellate 210; Tracy v. First Nat. Bank, '67 N. 
 
 court. Bowden v. Johnson, 107 U. S. Y. 523. 
 
 251, 27 L. ed. 386. On a creditor's bill against a dece- 
 
 ^Gillet V. Fairchild, 4 Denio, 80. dent's estate, where the adiiiinistrulor 
 
 ^Bowen v. First Nat. Bank, 34 How. had been removed and the sheriff ap- 
 
 Pr. 408. pointed administrator d. b. n. ; and tlie 
 
 *McC'ombs V. Merryhew, 40 Mich. unadministered assets were not sufli- 
 
 721. cieut to pay the debts of the estate.
 
 120 RECEIVERSHIPS. 
 
 A temporary receiver of a bank has no power without instruc- 
 tions of the court to surrender collaterals pledged as security for 
 a loan and to permit an offset of the amount on deposit in the 
 bank.' He may execute on payment formal satisfaction and dis- 
 charge of mortgages in his hands as receiver, though the amount 
 secured thereby is not due,'' and may have authority under the 
 New Jersey statute to compel a disclosure of the knowledge pos- 
 sessed by any person of the aifairs and transactions of the com- 
 pany defendant, and a creditor may have such disclosures on 
 proper application for that purpose to the receiver.' "Where two 
 or more liquidators have power to accept bills it is doubtful if 
 they have power to delegate to one the right to accept such bills,* 
 and one liquidator has no power to use the seal of the company, 
 even in carrving out an agreement made by both in the absence 
 of resolutions expressly authorizing the same to be used,^ nor has 
 the surviving liquidator power to use such seal. A receiver 
 pendente lite has no power to become a mortgagee of property in 
 his possession as such officer,' nor has he power to subject per- 
 sonal property found upon the premises to a lien for storage ex- 
 penses which will take precedence over a prior mortgage.' A 
 receiver of a railroad corporation has no power beyond the cor- 
 porate powers and duties of the corporation conferred by its 
 charter; nor can the court enlarge or restrict such powers. He 
 is bound by the charter the same as the directory;' nor has a 
 liquidator power to recover in an action by him where the com- 
 pany itself could not have recovered.' A tender cannot be made 
 to a receiver, he not being a contracting party.'" He has no right 
 to discriminate in freight, where such discrimination is prohibited 
 by statute." 
 
 such administrator d. b. n. is not en- '^Re London & M. Bank, L. R. 6Ch. 
 
 titled to receive and bold the remain- App. 206. 
 
 ing assets, because tbey bad once been ^Re Metropolitan Bank, L. R. 2 Cli. 
 
 administered, — a receiver should be Div. 366, 45 L. J. Ch. 525. 
 appointed, as he is the only one with ^Thompson v. HoUadap, 15 Or. 34. 
 
 ample power in such a case. Barman ' Veite v. Leonore, 42 Mo. App. 217. 
 
 V. McMullin, 85 Va. 187. ^Safford v. People, 85 111. 558. 
 
 ^People, etc. v. St. Nicholas Bank, 83 ^ Waterhouse v. Jamieson, L. R. 2 H. 
 
 N. Y. 522. L. (Sc.) 29. 
 
 ■^Heermans v. Clarkson, 64 N. Y. 171. ^^Poague v. Greenlee, 22 Gratt. 734. 
 
 ^ Smith V. Trenton & Delaware Falls ^^ Cutting v. Florida R. <& Nav. Co. 43 
 
 Co. 4 N. J, Eq. 505. Fed. Rep. 747.
 
 CHAPTER lY. 
 
 RECEIVER'S POSSESSION, 
 
 §43. 
 
 §44. 
 
 §45. 
 §46. 
 
 How disturbed. §49. 
 
 Not disturbed by court of co- 
 ordinate jurisdiction. § 50. 
 
 Not to be disturbed by levy. 
 
 Not to be disturbed by strikes, § 51. 
 
 conspiracies, etc. § 52. 
 
 (a) Courts will not enjoin employ- § 53. 
 
 ees from quitting service. § 54. 
 
 (b) But will enjoin conspiracies. § 55. 
 § 47. Leave of court, when required. § 56. 
 § 48. Duty of receiver to take posses- § 57. 
 
 sion of property. 
 
 § 43. How disturbed. 
 
 As against public improve- 
 ments. 
 
 Duty as to opening a new busi- 
 ness. 
 
 As to tenants. 
 
 To whom restored. 
 
 Extent of. 
 
 As to taxes. 
 
 As to setoff. 
 
 As to exemptions. 
 
 As to executors and adminis- 
 trators. 
 
 Modes of interference with the possession of the conrt through 
 its receiver are (1) bj the orders of other courts of co-ordinate juris- 
 diction ;' (2) by the levy of executions and attachments f (3) by 
 strikes f (4) ejectments ;* (5) trespasses f (6) distress for rent ;' 
 
 ^People V. Central City Bank, 53 
 Barb. 412, 35 How. Pr, 428; Deming 
 V. New York Marble Co. 12 Abb. Pr. 
 66; Davis v. Alabama & F. B. Co. 1 
 Woods, 661; Rogers v. Corning, 44 
 Barb. 229; Re Eulst, 7 Ben. 17; Ward 
 v. Swift, 6 Hare, 309; Beecher v. Bin- 
 inger, 7 Blatchf. 170; Gelpcke v. Mil- 
 tcaukee <& E. R. Co. 11 Wis. 454; 
 Smith V. McNamara, 15 Hun, 447; 
 Judd V. Bankers' & M. Teleg. Co. 31 
 Fed. Rep. 182; Hazelrigg v. Bronauyh, 
 78 Ky. 62; Sedgwick v. Menck, 6 
 Blatchf. 156; Peoples' Bank v. Win- 
 slow {"^ Peoples'' Bank V. CaUioun") 102 
 U. S. 256, 26 L. ed, 101; Re Clark, 4 
 Ben. 88; l)e Winton v. Brecon, 28 Beav. 
 200. Contra, Phelan v. Ganebin, 5 
 Colo. 14; Bond v. First Nat. Bank, 5 
 Colo. 83. 
 
 ^Lane v. Sterne, 3 Gifif. 629; Ryanw. 
 Eingsbery, 88 Ga. 361; Uazclrigg v. 
 
 Bronaugh, 78 Ky. 62; Wisicall v 
 Sampson, 55 U. S. 14 How. 52, 14 L 
 ed. 322; Chafee v. Quidnick Co. 13 R 
 I. 442; Edwards v. Norton, 55 Tex 
 405; Bugger v. Collins, 69 Ala. 324 
 Jackson v. Laliee, 114 111. 287; Rich 
 ards V. People, 81 111. 551; Try v. Try^ 
 13 Beav. 423; Com. v. Toung, 11 Phila. 
 606. 
 
 ^Arthur v. Oakes, 63 Fed. Rep. 310, 
 25 L. R. A. 414. 
 
 ^Angel v. Smith, 9 Ves. .Jr. 335; 
 Fort Wayne, M. & C. R. Co. v. Mellott, 
 92 Ind. 535; Potter v. Spa Spring Brick 
 Co. 47 N. J. Eq. 442. 
 
 '^Parker v. Broioning, 8 Paige, 388; 
 Re Day, 34 Wis. 638; Ex parte Coch- 
 rane, L. R. 20 Eq. 282. 
 
 ^Marshall v. Locket t, 76 Ga. 289; 
 Martin v. Black, 9 Paige, 641; Grant 
 V. Davenport, 18 Iowa, 179.
 
 122 
 
 RECEIVERSHIPS. 
 
 (7) force ;' (8) condemnation proceedings y (9) tax officers ;' (10) 
 unlawfully withholding;* (11) garnishment;^ (12) bankruptcy pro- 
 ceedings ;' (13) untrue circulars and publications ;' (14) a subse- 
 quent receiver of another court ;' (15) commencing suits against 
 the receiver without leave of court ;' (16) manufacturing a pat- 
 ented article over which the receiver has control as manager.'" 
 
 § 44. Not disturbed by court of co-ordiuate jurisdiction. 
 
 It has been a rule, with scarcely an exception, since the days of 
 Chief Justice Marshall, that, as between courts of concurrent 
 jurisdiction, the court which first secures possession of the sub- 
 ject-matter of the litigation, will retain jurisdiction." This rule 
 
 ^AUy. Gen. v. St. Cross Hospital, 18 
 Beav. 601 ; Broad v. Wickham, 4 Sim. 
 611. 
 
 ^Tink V. Bundle, 10 Beav. 318. 
 
 ^Be Tyler, 149 U. S. 164, 37 L. ed. 
 689; King v. Wooten, 54 Fed. Rep, 
 612. 2 U. S. App. 651. Contra, Cen- 
 tral Trust Co. V. WabasJi, St. L. & P. 
 B. Co. 26 Fed. Rep. 11. 
 
 *Be Cohen, 5 Cal. 494; Byan v. 
 Kingshery, 88 Ga. 361 ; Qoisse v. Beall, 
 5 Wis. 224; American Const. Co. v. 
 Jacksonville, T. & E. W. B. Co. 53 
 Fed. Rep. 937; Green v. Green, 2 Sim. 
 430; Miller v. Joned, 39 111. 54; Brandt 
 V. Allen, 76 Iowa, 50, 1 L. R. A. 653; 
 Griffith V. Griffith, 2 Ves. Jr. 400; 
 People V. Bogers, 2 Paige, 103. 
 
 f-Bichards v. People, 81 111. 551; 
 Oouverneur v. Warner, 2 Sandf. 624; 
 Walker v. George Taylor Commiiision 
 Co. 56 Ark. 1; Killmer v. Hobart, 8 
 Abb. N. C. 426; Taylor v. Gillson, 23 
 Tex. 508; Borer v. Chapman, 119 U. 
 S. 587, 30 L. ed. 532; McGowan v. 
 Myers, 66 Iowa, 99; Jackson v. Lahee, 
 114 111. 287; Field v. Jones, 11 Ga. 413; 
 Blake Crusher Co. v. New Haven, 46 
 Conn. 473; Cooke v. Orange, 48 Conn. 
 401; Smith v. McNamara, 15 Hun, 
 447; Com. v. Hide & L. Ins. Co. 119 
 Mass. 155; Columbian Book Co. v. De- 
 Oolyer, 115 Mass. 67. See contra. 
 
 Farmers' Bank v. Beaston, 7 Gill & J. 
 421. 
 
 ^Skip V. Harwood, 3 Atk. 564. 
 
 ''Helmore v. Smith, L. R. 35 Ch. 
 Div. 449. 
 
 »Ward V. Swift, 6 Hare, 309. But 
 see Bailey v. O'Mahony, 1 Jones & S. 
 239. 
 
 ^Be Higgins, 27 Fed. Rep. 443; Par- 
 ker v. Browning, 8 Paige, 388. 
 
 'oiJe Woven Tape Skirt Co. 12 Hun, 
 HI. 
 
 ^^Byers v.McAuley, 149 U. S. 608, 37 
 L. ed. 867, Porter v. Sabin, 149 U. 8. 
 473, 37 L. ed. 815; Moran v. Sturges, 
 154 U. S. 2o6, 274, 38 L. ed. 981, 987; 
 Stout V. Lye, 103 U. S. 66, 26 L. ed. 
 428; Ellis v. Davis, 109 U. S. 485, 27 
 L. ed. 1006; Buck v. Colbath, 70 U. S. 
 3 Wall. 334, 18 L. ed. 257; Krippen- 
 dorfv. Hyde, 110 U. S. 276, 28 L. ed. 
 145; Freeman v. Howe, 65 U. S. 24 
 How 450, 16 L. ed. 749; CovellY. Hey- 
 man, 111 U. S. 176, 28 L. ed. 390; 
 Taylor v. Carryl, 61 U. S. 20 How. 
 583, 15 L. ed. 1028; Borer v. Chap- 
 man, 119 U. S. 587, 30 L. ed. 532; 
 Peck V. Jenness, 48 U. S. 7 How. 612, 
 12 L. ed. 841; Smith v. Mclver, 22 U. 
 S. 9 Wheat. 532, 6 L. ed. 152; Hagan v. 
 Lucas, 35 U. S. 10 Pet. 400, 9 L. ed. 
 470; Wickham v. Hall, 60 Fed. Rep. 
 326; Bruce v. Manchester & E. Bail-
 
 RECEIVER'S POSSESSION. 
 
 123 
 
 is founded not only on comity but necessity, for if one could 
 adjudge and another reverse, the contest might go on until par- 
 
 road, 19 Fed. Rep. 342; Briggs v. 
 Stroud, 58 Fed. Rep. 720; The J. W. 
 French, 13 Fed. Rep. 916; Masmchu- 
 setts Mut. L. Ins. Co. v. Chicago <& 
 A. R. Co. 13 Fed. Rep. 857; Harrison 
 Wire Co. v. Wheeler, 11 Fed. Rep. 
 206; Walker v. Flint, 7 Fed. Rep. 435; 
 Union Mut. L. Ins. Co. v. University 
 of Chicago, 6 Fed. Rep. 443; Hamilton 
 V. Chouteau, 6 Fed. Rep. 339; Levi^. 
 Columbia L. Ins. Co. 1 Fed. Rep. 206; 
 Crane v. McCoy, 1 Bond, 422; Par- 
 sons V. Lyman, 5 Blatchf. 170; Ex 
 parte Robinson, 6 McLean, 355. 
 
 Mr. Justice Bradley in Wilmer v. 
 Atlanta & R. A. L. R. Co. 2 Woods, 
 409, in speaking of this rule says: 
 "The test I think is this: not which 
 action was first commenced, nor -which 
 cause of action has priority or superi- 
 ority but which court first acquires 
 jurisdiction over the property. . . . 
 Service of process gives jurisdiction 
 over the person, — seizure gives juris- 
 diction over the property; and, until it 
 is seized, no matter when the suit was 
 commenced the court does not have 
 jurisdiction." See also Covell v. Hey- 
 man. 111 U. S. 176, 28 L. ed. 390; Rio 
 Grande R. Co. v. Vinet, 132 U. S. 478, 
 33 L. ed. 400; Heidritter v. Elizabeth 
 Oil Cloth Co. 112 U. S. 294, 28 L. ed. 
 729; Wallace v. McConnell, 38 U. S. 13 
 Pet. 151, 10 L. ed. 102; Williams v. 
 Benedict. 49 U. S. 8 How. Ill, 12 L. 
 ed. 1008; Payne v. Drewe, 4 East, 538; 
 Pulliam V. Osborne, 58 U. S. 17 How. 
 471, 15 L. ed. 154; Watson v. Jones, %0 
 U. S. 13 Wall. 679, 20 L. ed. 666; 
 O'Mahony v. Belmont, 5 Jones & S. 
 880; Millikin v. Barrow, 55 Fed. Rep. 
 148; Howlett v. Central Caroline Land 
 <fc 1. Co. 56 Fed. Rep. 161; Remington 
 Paper Co. v. Louisiana Printing & 
 Pub. Co. 50 Fed. Rep. 287; Clyde v. 
 
 Richmond <& D. R. Co. 56 Fed. Rep. 
 539; Wilmer v. Atlanta & R. A. L. R. 
 Co. 2 Woods, 426; Young v. Montgom- 
 ery & E. R. Co. 2 Woods, 606; East 
 Tennessee, V. & O. R. Co. v. Atlanta & 
 F. R. Co. 49 Fed. Rep. 608, 15 L. R. 
 A. 109; New York, P. & 0. R. Co. v. 
 New York. L. E. <& W. R. Co. 58 
 Fed. Rep. 268; Coley. Oil Well Supply 
 Co. 57 Fed. Rep. 534; Re Langford, 57 
 Fed. Rep. 570; Re ScMiyler's Steam 
 Tow Boat Co. 136 N. Y. 169, 20 L. R. 
 A. 391; Hamilton- Brown Shoe Co. v. 
 Mercer, 84 Iowa, 539 ; Senior v. Pierce, 
 31 Fed. Rep. 627; Witters v. Sotcles, 33 
 Fed. Rep. 772; Oumbel v. Pttkin, 124 
 U. S. 131, 31 L. ed. 378; Second Nat. 
 Bank v. Dunn, 97 N. Y. 156. 
 
 As to interference with custody of 
 other courts of property in custodia 
 legis, see Briggs v. Stroud, 58 Fed. 
 Rep. 720; Gay v. Brierfeld, 94 Ala. 
 312; Byers v. McAuley, 149 U. S. 614, 
 37 L. ed. 871; Re Schuyler's Steam 
 Tow Boat Co. 136 N. Y. 175, 20 L. R. 
 A. 391; Moran v. Sturges, 154 U. S. 
 274, 38 L. ed. 987; Thompson v. Hal- 
 laday, 15 Or. 54; Rio Grande R. Co. 
 V, Vinet, 132 U. S. 482, 33 L. ed. 401; 
 Thompson v. Phenix Ins. Co. 136 U. S. 
 297, 34 L. ed. 413; Hamilton- Brown 
 Shoe Co. v. Mercer, 84 Iowa, 589; Por- 
 ter V. Sabin, 149 U. S. 480, 37 L. ed. 
 818; Ahlhauser v. Butler, 50 Fed. Rep. 
 707; Glenn v. Liggett, 47 Fed. Rep. 
 474; Ball v. Tompkins, 41 Fed. Rep. 
 490; Gates v. Bucki, 53 Fed. Rep. 967; 
 East Tennessee, V. & G. R. Co. v. At- 
 lanta & F. R. Co. 49 Fed. Rep. 611, 
 15 L. R. A. 109; Denny v. Bennett, 128 
 U. S. 503, 32 L. ed. 496; Mehin v. 
 Robinson, 31 Fed. Rep. 635; Farmers' 
 Loan & T. Co. v. San Diego Street Car 
 Co. 49 Fed. Rep. 197; The Daniel 
 Kaine, 35 Fed. Rep, 788; Tefft v. Stern-
 
 124 
 
 RECEIVERSHIPS. 
 
 ties became exliaustcd and courts were brouo^lit into contempt. 
 The application of this rule is to be made in cases where courts of 
 concurrent jurisdiction appoint receivers for the same property. 
 Apparently a different rule prevails in a contest between receiv- 
 ers and officers holding writs of attachment or executions. In 
 such cases the rule is well-nigh universal that after the appoint- 
 ment of a receiver the property to which the receivership relates 
 is to be deemed in custodia legis, and a levy of an execution or 
 attachment subsequent to such order will not be permitted, as it 
 interferes with the receiver's right of possession.' As we have 
 
 berg, 40 Fed. Rep. 7; State, Klotz, v. 
 Boss, 118 Mo. 53. 
 
 As to interfering with the posses- 
 sion or custody of oificers of other 
 courts, see Senior v. Pierce, 31 Fed. 
 Rep. 627; Qumhel v. Pitkin, 124 U. S. 
 144, 31 L. ed. 378; Witters v. Sowles, 
 32 Fed. Rep. 772; Second Nat. Bank 
 V. Dunn, 97 N. Y. 156. 
 
 As to interfering with process of 
 other courts, see Central Nat. Bank 
 V. Hazard, 49 Fed. Rep. 295; Re John- 
 son, 46 Fed. Rep. 480; Ex parte Con- 
 way, 48 Fed. Rep. 78; Be Fox, 51 Fed. 
 Rep. 427. 
 
 As to interference by state courts 
 with custody of Federal courts and 
 officers, see Benny v. Bennett, 128 
 U. S. 502, 32 L. ed. 496; Ex parte 
 Tyler, 149 U. S. 186, 37 L. ed. 696; 
 Boltz V. Eagan, 34 Fed. Rep. 447; 
 Aldhamer v. Butler, 50 Fed. Rep. 707; 
 American Asso. v. Hurst, 59 Fed. Rep. 
 4; Morrison v. Menhaden Co. 37 Hun, 
 524; Hill V. Corcoran, 15 Colo. 272; 
 Gay V. Brierjidd Coal & I. Co. 94 Ala. 
 312, 16 L. R. A. 564. 
 
 As to interference by Federal court 
 with custody of state courts, see Melvin 
 V. Robinson, 31 Fed. Rep. 635; The E. 
 L. Cain, 45 Fed. Rep. 369; East Ten- 
 nessee, V. & O. R. Co. V. Atlanta & F. 
 R. Co. 49 Fed. Rep. 611, 15 L. R. A. 
 109; Tefft v. Sternberg, 40 Fed. Rep. 
 5; Pickett V. Filer, 40 Fed. Rep. 313; 
 
 Oaies v. Bucki, 53 Fed. Rep. 966; 
 Howlett V. Central Carolina Land & I. 
 Co. 56 Fed. Rep. 162. 
 
 An interference with the receiver's 
 possession will not be permitted on 
 the ground that his appointment was 
 illegal or improvidently made. Cook 
 V. Citizens' Nat. Bank, 73 Ind. 256. 
 This is based upon the ground that 
 the appointment cannot be collaterally 
 attacked. Cf. Ames v. Birkenhead 
 Docks Trustees, 20 Beav. 332; Russell 
 V. East Anglian R. Co. 3 Macn. & G. 
 104. In this case Lord Chancellor 
 Truro said: "I am of the opinion that 
 it is not competent for any one to in- 
 terfere with the possession of a re- 
 ceiver, or to disobey an injunction, or 
 any other order of the court on the 
 ground that such orders were improv- 
 idently made. Parties must take a 
 proper course to question their valid- 
 ity, but while they exist they must be 
 obeyed. 
 
 ^ Texas Trunk R. Co. v. Lewis, 81 
 Tex. 1; Stoi-m v. Waddell, 2 Sandf. 
 Ch. 505; Van Alstyne v. Cook, 25 N. 
 Y. 496 ; Skinner v. Maxwell, 68 N. C. 
 400; Rutter v. Tallis, 5 Sandf. 610; 
 Maynard v. Bond, 67 Mo. 315. 
 
 In an action to recover land covered 
 by a road-bed where a receiver has 
 been appointed the court will not 
 issue a writ of restitution since it 
 would be an interference with the
 
 EECEIVER'S POSSESSION. 
 
 125 
 
 already seen the receivership must of necessity relate to the date 
 of granting the order ; otherwise the purposes of the receivership 
 would be frustrated in many cases. The receivership is, in its na- 
 ture, an equitable execution operating, in its effects, from the date 
 of granting.' Besides, the receiver's possession does not destroy any 
 
 property and be in contempt of the 
 court appointing the receiver. The 
 plaintiff after judgment should apply 
 to the court making the appointment. 
 Abbey v. International & G. N. B. Co. 
 5 Tex. Civ. App. 261. 
 
 The receiver being an officer of 
 court will be protected in his posses- 
 sion and no interference therewith 
 will be permitted without leave. 
 
 It has been held that a failure to 
 obtain leave to sue the receiver does 
 not divest the court of jurisdiction. 
 Failure to obtain leave is a question 
 of contempt and not of jurisdiction. 
 MulcaJiey v. Strauss, 151 111. 70. 
 
 Cf. Wayne Pike Co. v. State, 134 
 Ind. 672; Davis v. Ladoga Creamery 
 Co. 128 Ind. 222; Elkhart Car Works 
 Co. V. Ellis, 113 Ind. 215; Keen v. 
 Breckenridge, 96 Ind. 69; Garver v. 
 Eent, 70 Md. 428; St. Joseph & D. C. 
 R. Co.v. Smith, 19 Kan. 225; Kinney 
 V. Crocker, 18 Wis. 75; Melendy v. 
 Barbour, 78 Va. 514; Beed v. Axtell, 
 84 Va. 231; Jo?ies v. Browse, 32 W.Va. 
 444; Spalding v. Com. 88 Ky. 135; Ly- 
 man v. Central Verm-yrd B. Co. 59 Vt. 
 167; Martin v. Atchison, 2 Idaho, 590; 
 Allen V. Central R. Co. 42 Iowa, 683. 
 But see contra. Barton v. Barbour, 
 104 U. S. 126, 26 L. ed. 672; Taylor v. 
 Mayo, 110 U. S. 330, 28 L. ed. 163 
 (Injunction); Central 2'rust Co. v. East 
 Tennessee, V. & G. B. Co. 59 Fed. 
 Rep. 523; Doio v. MempJds & L. R. R. 
 Co. 20 Fed. Rep. 260; Walling v. Mil- 
 ler, 108 N. Y. 173; Chautauque County 
 Bank v. Bisley, 19 N. Y. 369; Re 
 Christian Jensen Co. 128 N. Y. 550; 
 Smith V. New York Consol. Stage Co. 
 18 How. Pr. 377; Wiswall v. Sampson, 
 
 52 U. S. 14 How. 52, 14 L. ed. 322; 
 Artisans' Bank v. Treadwell, 34 Barb. 
 552; Wilson v. Allen, 6 Barb. 543; 
 Davies v. LatJirop, 20 Blatchf. 397; 
 Steele v. Sturges, 5 Abb. Pr. 442; Ellis 
 V. Vernon Ice, L. & W. Co. 86 Tex. 
 109; Russell v. Texas & P. R. Co. 68 
 Tex. 646; Robinson v. Atlantic <& G. 
 W. R. Co. 66 Pa. 160; Skinner y. Max- 
 well, 68 N. C. 400; Chafee v. Quidnick 
 Co. 13 R. I. 442; Payne v. Ba.rter, 2 
 Tenn. Ch. 517; Olds v. Tucker, 35 
 Ohio St. 584; Thompson v. McCleary, 
 159 Pa. 189. 
 
 Property cannot be levied on and 
 sold so as to confer any right by virtue 
 of such levy and sale. Wiswall v. 
 Samp)son, 52 U. 8. 14 How. 52, 14 L. 
 ed. 322; Edwards v. Norton, 55 Tex. 
 410; Uackley v. Swigert, 5 B. Mon. 
 86. 
 
 ' Clinkscales v. Pendleton Mfg. Co. 9 
 S. C. N. S. 318; Regenstein v. Pearl- 
 stein, 30 S. C. 192; Re Christian Jensen 
 Co. 128 N. Y. 559; Re Schuyler's Steam 
 Tow Boat Co. 64 Hun, 386, 136 N. Y. 
 169, 20 L. R. A. 391; Re Berry, 26 
 Barb. 55; Smith v. New York Consol. 
 Stage Co. 18 Abb. Pr. 420; Atlas Bank 
 V. Nahant Bank, 23 Pick. 480; Re 
 Mallory, 18 N. Y. S. R. 99; Deming v. 
 New York Marble Co. 12 Abb. Pr. 66; 
 Steele v. Sturges, 5 Abb. Pr. 442; Van 
 Alstyne v. Cook, 25 N. Y. 489; Rutter 
 V. Tallis, 5 Sandf. 610; Lotlimer v. 
 Lord, 4 E. D. Smith, 183; Pope v. 
 Ames, 20 Or. 199; Maynard v. Bond, 
 67 Mo. 315; Ex parte Evans, L. R. 13 
 Ch. Div. 252. Contra, Farmers' Bank 
 V. Beaston, 7 Gill & J. 421 ; Edwards 
 V. Edwards, L. R. 2 Ch. Div. 291; 
 Frayser v. Richmond & A. R. Co. 81
 
 126 
 
 RECEIVERSHIPS. 
 
 existing rights, but on the contrary protects and preserves them. 
 A receiver derives his authority from the act of the court and 
 not from the act of the parties at whose suggestion or by whose 
 consent he is appointed ; and the utmost effect of his appointment 
 is to put the property from that time into his custody as an officer 
 of the court for the benefit of the party ultimately proved to be 
 entitled, but not to change the title or even the right of posses- 
 sion in the property/ nor disturb any liens thereon.* 
 
 § 45. Not to be disturbed by levy. 
 
 When a receiver is in possession of property under process or 
 authority of the court, in execution of a decree or decretal order, 
 his possession is not to be disturbed, even by an ejectment under 
 an adverse title without leave of the court,' nor will the court 
 permit property in the hands of its receiver to be levied on and 
 sold under an execution or attachment/ nor replevied from the 
 
 Va. 388; Defries v. Creed, 34 L. J. Eq. 
 N. S. 607; Chamberlain v. Rochester 
 Steamless Paper Vessel Co. 7 Hun, 557 
 (Statutes). 
 
 The giving of bond, however, is a 
 condition precedent to commencing 
 suit. PJiillip V. Smoot, 1 Mackey, 
 478. 
 
 ' Union Nat. Bank v. Bank of Kan- 
 sas City, 136 U. S. 223, 34 L. ed. 341; 
 Skip V. Harwood, 3 Atlj. 564; Anon. 
 2 Atk. 15; Wiawall v. Sampson, 52 
 U. S. 14 How. 52, 14 L. ed. 322; Ellis 
 V. Boston, H. & E. R. Co. 107 Mass. 
 1; Maynard v. Bond, 67 Mo. 315; Eei- 
 man v. Fisher, 11 Mo. App. 275; 
 Thompson v. Phemx Ins. Co. 136 U. S. 
 287, 34 L. ed. 408; Porter y. Sabin, 149 
 U. S. 479, 37 L. ed. 818. 
 
 " Lorch V. Altman, 75 Ind. 162; J. W. 
 Dann Mfg. Co. v. Parkhurst, 125 Ind. 
 317; Favorite v. Deardorff, 84 Ind. 
 555; VanRoun v. San Francisco Super. 
 Ct. 58 Cal. 358; Loaiza v. San Fran- 
 cisco Super. Ct. 85 Cal. 11, 9 L. R. A. 
 37; Coburn v. Ames, 52 Cal. 385; Nil- 
 link V. Morris Canal & Bkg. Co. 4 
 N. J. Eq. 377; Chase's Case, 1 Bland. 
 
 Ch. 206; Bererley v. Brooke, 4 Gratt. 
 187; Skip V. Harwood, 3 Atk. 564; Re 
 North American Outta Percha Co. 17 
 How. Pr. 549; Becker v. Torrance, 31 
 N. Y. 631; Oere v. Dibble, 17 How. 
 Pr. 31 ; Rich v. Loutrel, 18 How. Pr. 
 121; Hall v. Merrill, 9 Abb. Pr. 121; 
 Davenport v. Kelley, 42 N. Y. 193; 
 Bowling Green Sav. Bank v. Todd, 
 64 Barb. 146; Union Trust Co. v. 
 Weber, 96 111. 346. 
 
 ^ Angel v. SmitJi, 9 Ves. Jr. 338; Fort 
 Wayne, M. & C. R. Co. v. 3Iellett, 92 
 Ind. 535; Potter v. Spa Spring Brick 
 Co. 47 N. J. Eq. 442. 
 
 * Parker v. Browning, 8 Paige, 388. 
 The reason for this rule is that a court 
 of equity will not permit itself to be 
 made a suitor in a court of law. 
 Chancellor Walworth in Parker v. 
 Browning says: " Where the prop- 
 erty is legally and properly in the 
 possession of the receiver it is the 
 duty of the court to protect that 
 possession, not only against acts of 
 violence, but also against suits at law; 
 so that a third person claiming the 
 same may be compelled to come in
 
 RECEIVER'S POSSESSION. 
 
 127 
 
 and ask to be examined pro inter esse 
 iuo, if he wishes to test the justice of 
 such claim." See also Fessenden v. 
 Woods, 3 Bosw. 550; Buggen v. Collins, 
 69 Ala. 324 ; Wiswall v. Sampson. 52 
 U. S. 14 How. 52, 14 L. ed. 322; Bob- 
 inson v. Atlantic & O. W. B. Co. 66 
 Pa. 160. In this case the court said: 
 " It was then in gremio legis, in legal 
 custody, and to permit it to be levied 
 on and sold under the process of the 
 court of common pleas would at 
 once raise a conflict of jurisdiction 
 and interfere with the rights of the 
 receiver of the supreme court to 
 manage the property under his ap- 
 pointment." See also Trustee: Mar- 
 tin V. Davis, 21 Iowa, 535; Bentley v. 
 Shrieve, 4 Md. Ch. 412. It has been 
 held, however, that where the lien of 
 a judgment had attached at the time 
 of the appointment of a receiver, the 
 levy and sale by the sheriff do not 
 disturb the receiver's possession and 
 the sheriff is not in contempt of court. 
 Albany City Bank v. Sehermerliorn, 
 9 Paige, 372; State v. Snohomish 
 County Sup. Ct. 7 Wash. 77. But the 
 ■weight of authority as well as reason 
 Is against this position. In addition 
 to cases above cited, see also Langdon 
 V. Lockett, 6 Ala. 727; Taylor v. Oil- 
 lean, 23 Tex. 508; Thompson v. Mc- 
 Cleary, 159 Pa. 189; Couverneur v. 
 Warner, 2 Sandf. 624; Field v. Jones, 
 11 Ga. 413; Walling v. Miller, 108 
 N. Y. 173; Yuba County v. Adams, 
 7 Cal. 35; Noe v. Gib&on, 7 Paige, 513; 
 Nelson v. Connor, 6 Rob. (La.) 339; 
 Qlenn v. Gill, 2 Md. 1 ; Ellis v. Vernon 
 Ice, L. &W. Cb. 86 Tex. 109; Edwards 
 V. Norton, 55 Tex. 405; Bussell v. East 
 Anglian B. Co. 3 Macn. &G. 104; Coe 
 V. Columbus, P. & I. B. Co. 10 Ohio 
 St. 403. 
 
 Following the doctrine of Albany 
 City Bank\. Schermerhorn, is the case 
 of Bergin v. Deering, 70 Hun, 379, 
 where partners disagreeing as to the 
 
 management of their business agreed 
 to the appointment of a receiver, but 
 after the lien of judgment had at- 
 tached the court refused to order the 
 property turned over to the re- 
 ceiver. 
 
 As to the exclusive jurisdiction of 
 the court having property in its pos- 
 session see further: Taylor v. Carryl, 
 61 U. S. 20 How. 596, 15 L. ed. 1032; 
 Peale v. Pldpps, 55 U. S. 14 How. 
 375, 14 L. ed. 461; Ex parte Chamber- 
 lain, 55 Fed. Rep. 708; Heidritter v. 
 Elizabeth Oil Cloth Co. 112 U. S. 303, 
 28 L. ed. 732; Olennv. Liggett, 47 Fed. 
 Rep. 473; Fox v. Hempfield B. Co. 2 
 Abb. U. S. 155; Waterhouse v. Coiner, 
 55 Fed. Rep. 149, 19 L. R. A. 403; 
 Be Clark & Bininger, 4 Ben. 98; 
 LambY. Ewing, 54 Fed. Rep. 273; Be 
 Cook & Oleason, 3 Biss. 119; Oay v. 
 Brierfield Coal & I. Co. 94 Ala. 310, 
 16 L. R. A. 564; BeVogel, 7 Blatchf. 
 20; Be Schuyler Steam Tow Boat Co. 
 64 Hun, 388; Attleborough Nat. Bank 
 V. Northwestern Mfg. & Car Co. 28 
 Fed. Rep. 114; Be Peebles, 2 Hughes, 
 ZM\Walker v. Flint, 2 McCrary, 343, 
 7 Fed. Rep. AZQ;Wilmer v. Atlanta & 
 B. Air Line B. Co. 2 Woods, 421. 
 As to protection of the receiver in 
 custody of property, see Barton v. 
 Barbour, 104 U. S. 29, 26 L. ed. 675; 
 Savannah v. Jesup, 106 U. S. 565, 27 
 L. ed. 277; Blake v. Alabama & C. 
 B. Co. 6 Bank. L. Reg. 332; Perego 
 v. Bonesieel, 5 Biss. 69; Andrews v. 
 Smith, 19 Blatchf. 103; Thompson v. 
 Scott, 4 Dill. 509 ; Kennedy v. India- 
 napolis, C. & L. B. Co. 3 Fed. Rep. 
 99; Young v. Montgomery & E. B. 
 Co. 2 Woods, 606 ; Ellis v. Vernon Ice, 
 L. &W. Co. 86 Tex. 115; Chautauque 
 County Bank v. Bisley, 19 N. Y. 377; 
 Day V. Postal Teleg. Co. 66 Md. 354; 
 Melendy v. Barbour, 78 Va. 557; Fort 
 Wayne, M. & C. B. Co. v. Melletl, 92 
 Ind. 538; Walling v. Miller, 108 N. Y. 
 177; Be Tyler, 149 U. S. 181, 37 L. ed.
 
 128 
 
 RECEIVERSHIPS. 
 
 receiver without leave of court,' nor is the sheriff or other officer 
 in justiiication of his seizure permitted to question the propriety 
 or regularity of the order under which the receiver was ap- 
 pointed." Any unauthorized interference with his possession 
 will suhject the party interfering to an attachment for contempt.' 
 The judgment iu a proceeding for contempt where the person 
 
 695 ; Tliompson v. Phenix Ins. Co. 136 
 U. S. 297, 34 L. ed. 413; Porter v. 
 .Sabin, 149 U. S. 479, 37 L. ed. 818; 
 Union H^at. Bank v. Bank of Kansas 
 City, 136 U. S. 236, 34 L. ed. 346; 
 Preston v. Loughran, 58 Ilun, 216; 
 Bogers v. Wheeler, 43 N. Y. 604; Gar- 
 den City Bkg. & T. Co. v. Geilfuss, 
 86 Wis. 622; Pacific R. Co.-f. Wade, 91 
 Cal. 455, 13 L. R. A. 754; Littlejohn 
 V. Turner, 73 Wis. 124. 
 
 la the case of Woerishoffer v. North 
 River Const. Go. 99 N. Y. 398, the 
 court of appeals sustained an order 
 granting permission to a creditor to 
 proceed to judgment, and permitting 
 such creditor to collect and enforce 
 any judgment it might obtain against 
 property attached before the appoint- 
 ment of an ancillary receiver. 
 
 The permission of a court which 
 has appointed a receiver over property 
 to make him a party defendant to an 
 action in another court to foreclose a 
 mechanic's lien which existed on the 
 property at the time of his appoint- 
 ment, is not a relinquishment of con- 
 trol of the property which authorizes 
 a judgment by such other court direct- 
 ing a public sale of the property by 
 the sheriff with clear title to the pur- 
 chaser. Premier Steel Co. v. McEl- 
 waine- Richards Co. (Ind.)43 N. E. 876. 
 
 Authority should not be given to 
 issue execution against the receiver of 
 an insolvent bank upon a judgment 
 operating merely as an established 
 claim against the assets of the bank 
 
 held by him. Arnold v. Penn (Tex. 
 Civ. App.) 32 S. W. 353. 
 
 ' Com. V. Toung, 11 Phila. 606. 
 When a party claims title paramount 
 to that of the receiver he must apply 
 to the court for leave to proceed to 
 assert his right. De Groot v. Jay, 30 
 Barb. 483. The holder under a valid 
 bill of sale has no right to oust a re- 
 ceiver of his possession. Ex parte 
 Cochrane, Re Mead, L. R. 20 Eq. 282, 
 But if the property does not belong 
 to the receiver's estate it may be re- 
 placed. Hills V. Parker, 111 Mass. 
 508. 
 
 * Russell V. East Anglian B. Co, 3 
 Macn. & G. 104 (113); Re Christian 
 Jensen Co. 128 N. Y. 550. 
 
 ^ Spinning v. Ohio L. Ins. & T. Co. 
 2 Disney, 368; DeVisser v. Blackstone, 
 6 Blatchf. 253; King v. Ohio & M. R. 
 Co. 7 Biss. 529; Secor v. Toledo, P. <& 
 W. B. Co. 7 Biss. 542; Vermont & C. 
 R. Co. v. Vermont C. B. Co. 46 Vt. 
 792; Chafeex. Quidnick Co. 13 R. I. 
 442; Hull v. Thomas, 3 Edw. Ch. 236; 
 Noe V. Gibson, 7 Paige, 513; Langford 
 V. Laugford, 5 L. J. Ch. N. S. 60; 
 Russell V. East Anglian R. Co. 3 Macn. 
 & G. 104; Broad v. Wickham, 4 Sim. 
 511; Skip V. Harwood, 3 Atk. 564; 
 Lane v. Sterne, 3 Qiff. 629. As to 
 the method of procedure by a credi- 
 tor where the receiver refuses to in- 
 stitute proceedings for contempt for 
 a wrongful taking of property, see 
 Moore v. Mercer Wire Co. (N. J.) 15 
 Atl. 305, 737.
 
 RECEIVER'S POSSESSION. 
 
 129 
 
 interfering is found to be guilty is a fine or imprisonment, or 
 both, and not a money judgment/ 
 
 An attempt to disturb tlie possession of the receiver without 
 leave of the court first obtained will be a contempt on the part of 
 the person making it," as seen above, but may be restrained by in- 
 junction,' The reason of this salutary rule is to be found in the 
 necessity of protecting the receiver from litigation and vexatious 
 actions in many jurisdictions, and in the fact that one court with 
 the rights and interests of all parties before it can more equitably 
 and completely administer the assets; and also in that if the prop- 
 erty as a whole is permitted to be taken piece-meal its value will 
 be liable to great depreciation, if not entirely lost. This rule of non- 
 interference with the possession has been carried to the extent of 
 preventing suits against the receiver in the other courts than that 
 in which the receiver is appointed;* but the rule is not to be ex- 
 tended so far as to exempt the receiver from suits in foreign 
 
 ' Edrington v. Pridham, 65 Tex. 
 612; Williamson's Case, 26 Pa. 1. 
 
 ^Southern Exp. Co. v. Western N. C. 
 B. Co. 99 U. S. 191, 25 L. ed. 319; Bob- 
 inson v. Atlantic & G. W.B. Co. 66 Pa. 
 160; Davis Y. Gray, 83 U. S. 16 Wall. 
 204, 21 L. ed. 447; Thompson v. Scott, 
 4 Dill. 508; Be Schuyler's Steam Tow 
 Boat Co. 186 N. Y. 169; Moore v. 
 Mercer Wire Co. (N. J.) 15 Atl. 305, 
 737; DeGroot v. Jay, 30 Barb. 483; 
 DeGraffenried v. Brunswick & A. Co. 
 57 Ga. 22; People, Tremper v. Brooks, 
 40 Mich. 333 : Spinning v. Ohio L. Ins. 
 & T. Co. 2 Disney, 336; Wiswall v. 
 Sampson, 52 U. S. 14 How. 52, 14 L. 
 ed. 322; Ex parte Tyler, 149 U. S. 181, 
 37 L. ed. 695; Angel v. Smith, Q Ves. 
 Jr. 335; Ward v. Swift, 6 Hare, 312; 
 Broad v .Wickkam, 4 Sim. 511 ; Taylor 
 V. Baldwin, \i Abb. Pr. 166; Thomas 
 V. Thomas, Flan. & K. 621 ; Woeris- 
 hoffer V. North Biter Const. Co. 99 N. 
 Y. 398; Atty. Gen. v. Guardian Mut. 
 L. Ins. Co. 77 N. Y. 272. And a per- 
 fion who takes forcible possession of 
 an estate over which a receiver hat 
 9 
 
 been appointed may be committed 
 without an order nisi. Broad v. Wick- 
 ham, 4 Sim. 511. But not so in Ire- 
 land, Fitzpatrick, v. Eyre, 1 Hog. 171. 
 ^Ex parte Chamberlain, 55 Fed. Rep. 
 704; Fidelity Trust & 8.V. Co. v. Mo- 
 bile Street B. Co. 53 Fed. Rep. 687; 
 Marshall v. Lockett, 76 Ga. 289; Angel 
 V. Smith, 9 Ves. Jr. 335; Evely v. 
 Lewis, 3 Hare, 472; Turner v. Turner, 
 
 15 Jur. 218; Tink v. Bundle, 10 Beav. 
 318; Bussell v. East Anglian B. Co. 3 
 Macn. & G. 104; Ex parte Till, L. R. 
 
 16 Eq. 97; Ex parte Cochrane, L. R. 
 20 Eq. 282; Be Persse, 8 Ir. Eq. Ill; 
 Parr v. Bell, 9 Ir. Eq. 55. See, as to 
 receiver's remedy, whether in original 
 action or independent proceeding, 
 Andrews v. Paschen, 67 Wis. 413. As 
 to the proper course of proceeding as 
 to a claimant to the property, see 
 Daniels Ch. Pr. 6th Ed. *1744 & 
 1057. 
 
 *Payne v. Ba.rter, 2 Tenn. Ch. 517; 
 Brien v. Paul, 3 Tenn. Ch. 357; Bussell 
 V. East Anglian B. Co. 3 Macn. &, G. 
 115; Noe v. Gibson, 7 Paige, 515.
 
 130 RECEIVERSHIPS. 
 
 courts where the receiver has, in addition to the ordinary duties 
 of receiver, taken upon himself the duties and responsibilities of a 
 common carrier, and is conducting the business as such carrier.* 
 
 § 4:Q. Not to be disturbed by strikes, conspiracies, etc. 
 
 A question has recently arisen in this country as to what 
 extent the possession and operation of a railroad will be pro- 
 tected by injunction as against the employees of the receiver 
 engaged in, or threatening to engage in, a strike with the object 
 and intent of crippling the property in the custody of the receiver^ 
 and embarrassing the operation of the road. The law upon this 
 subject may be regarded as somewhat in its formative state, and 
 not yet final, but the general scope and tendency is distinctly de- 
 fined and may be stated in general terms as follows : 
 
 (a) A court of equity will not enjoin the employees of a receiver 
 from quitting his service, for the reason that such court cannot 
 indirectly or negatively restrain the violation of a contract and 
 thus compel an affirmative performance. 
 
 (b) A court of equity will enjoin the receiver's employees from 
 combining and conspiring together with the object and intent, 
 not simply of quitting the receiver's service by reason of reduc- 
 tion in wages, but of crippling the property in their hands and 
 embarrassing the operation of the road, the combination and con- 
 spiracy having reference only to acts of violence and intimidation. 
 This is based upon the principles of the common law that a con- 
 spiracy on the part of two or more with the intent by their com- 
 bined power to wrong others, or to prejudice the rights of the 
 public, is illegal, though nothing be actually done in the execution 
 of such conspiracy." 
 
 ^BlumentJialv. Brainard, 38 Yt. 402; authorities are cited as sustaining the 
 
 Sprague v. Smith, 29 Vt. 421 ; Pai(/e v. text : 
 
 Smith, 99 Mass. 395; Kinney v. Crock- Powell Dt/ffryn Steam Coal Co. v. 
 
 er, 18 Wis. 74; Allen v. Central B. Co. Taff Vale R. Co. L. R. 9 Ch. App. 331; 
 
 42 Iowa, 683; Bryan v. Cormick, 1 Cox, Toledo, A. A. & N. M. B. Co. v. Peiin- 
 
 Ch. 422; Ano7i. 6 Ves. Jr. 287; Angel sylmnia Co. 54 Fed. Rep. 730, 19 L. 
 
 \. Smith, 9 Yes. Jr. dS5; Ban field y. R. A. 395; Slierry v. Perkins, 147 
 
 Banfield, 3 DeG. F. & .1. 766. Mass. 212; Springhead Spinning Co. 
 
 *See opinion of Mr. Justice Harlan v. Biley, L. R. 6 Eq. 551 ; United 
 
 in Arthur v. Oakes. 63 Fed. Rep. 310, States v. Kane, 23 Fed. Rep. 748; 
 
 25 L. R. A. 414, where the following Emack v. Kane, 34 Fed. Rep. 46 1
 
 RECEIVER'S POSSESSION. 
 
 131 
 
 Casey v. Cincinnati Typograplncal 
 Union No. 3, 45 Fed. Rep. 135, 12 L. 
 R. A. 193; Walkerv. Cronin, 107 Mass. 
 555; Callan v. Wilson, 127 U. S. 540, 
 32 L. ed. 223; Com.v. HuntAMei. Ill; 
 Slate V. Burnha7n,15 N. H. 396; Beg.Y. 
 Parnell, 14 Cox, C. C. 508; Com., Chew, 
 V. Carlisle, Bright. (Pa.) 36; State v. 
 Stewart, 59 Vt. 273; State v. Buchanan, 
 
 5 Harr. & J. 317; State v. Glidden, 55 
 Conn. 46; Reg. v. Kenrick, 5 Q. B. 49; 
 Carew v. Rutherford, 106 Mass. 1; OW 
 Dominion S. S. Go. v. McKenna, 30 
 Fed. Rep. 48; dsei^T" JD'Alene Consol. 
 
 6 Min. Co. V. Miners' Union of Ward- 
 ner, 51 Fed. Rep. 260, 19 L. R. A. 
 382. 
 
 An act of displaying banners with 
 devices as a means of threats and in- 
 timidation to prevent persons from 
 entering into or continuing in the em- 
 ployment of another was il legal at com- 
 mon law and in Massachusetts by stat- 
 ute. Sherry v. Perkins, 147 Mass. 212; 
 Walker v. Cronin, 107 Mass. 555. And 
 in such case the relief is not confined 
 to a common law action, but may be 
 by injunction. Id. It is a nuisance, 
 such as a court of equity will grant 
 relief against. Gilbert v. llickle, 4 
 Sandf. Ch. 357; Boston Biatite Co. v. 
 Florence Mfg. Co. 114 Mass. 69; Pvxi- 
 dential Assur. Co. v. Knott, L. R. 10 
 Ch. 142; Saxbey v. Easterbrook, L. R. 
 3 C. P. Div. 339; Thomas v. Williams, 
 L. R. 14 Ch, Div. 864; Day v. Brown- 
 rigg, L. R. 10 Ch. Div. 294; Gaskins 
 V. Balls, L. R. 13 Ch. Div. 324; Hill, 
 V. Hart-Davis, L. R. 21 Ch. Div. 798; 
 Loog V. Bean, L. R. 26 Ch. Div. 306. 
 
 It may be stated in general terms 
 that any illegal interference with the 
 receivership property, or the receiv- 
 er's management thereof, or intimida- 
 tion of employees or those desiring to 
 be employed, or acts of violence 
 against him, his receivership property, 
 or his employees in pursuance of a 
 conspiracy will constitute a contempt 
 
 of court and will be punishable as 
 such. 
 
 Re Acker, 66 Fed. Rep. 290; Arthur 
 V. Oakes, 63 Fed. Rep. 310, 25 L. R. 
 A. 414; Ames v. Union P. R. Co. 62 
 Fed. Rep. 7; Waterhonse v. Comer, 55 
 Fed. Rep. 149, 19 L. R. A. 403; Beers 
 V. Wabash, St. L. & P. R. Co. 34 Fed. 
 Rep. 244; Re Higgins, 27 Fed. Rep. 
 443; Re Doolittle, 23 Fed. Rep. 545. 
 
 Giving notice to workmen by means 
 of placards and advertisements that 
 they should not become employees of 
 a person named pending a dispute 
 with such person is illegal and persons 
 so offending will be restrained. 
 
 Springhead Spinning Co. v. Riley, L. 
 R. 6 Eq. 551 ; United States v. Kane, 23 
 Fed. Rep. 748; Emack v. Kane, 34 
 Fed. Rep. 46; Casey v. Cincinnati 
 Typographical Union No. 3, 45 Fed. 
 Rep. 135, 12 L. R. A. 193; Walker v. 
 Cronin, 107 Mass. 555. 
 
 In Ames v. Union P. R. Co. 62 Fed. 
 Rep. 7, it was held to be unnecessary 
 to enjoin an interference with the 
 property or employees of a receiver, 
 inasmuch as the law itself makes it ^a 
 contempt to interfere with such pos- 
 session. 
 
 A receiver may make a reasonable 
 reduction in the wages of his employ- 
 ees. Thomas v. Cincinnati, N. 0. <& 
 T. P. R. Co. 62 Fed. Rep. 17. 
 
 As to the right to compel employees 
 to perform their regular and accus- 
 tomed duty while in the employment 
 of a railroad company, see Southern 
 California R. Co. v. Rutherford, 62Fed. 
 Rep. 796. 
 
 Where employees of a receiver en- 
 gaged in a general strike without 
 grievance of their own, for the pur- 
 pose of obstructing travel and hinder- 
 ing traffic, and their places are filled 
 by others in order to continue the 
 operation of the road, they will not bo 
 reinstated by order of the court. Booth 
 T. Brown, 62 Fed. Rep. 794.
 
 132 
 
 RECEIVERSHIPS. 
 
 § 47. LeaTe of court, Tviien required. 
 
 The possession of the receiver, beinf^ the possession of the 
 court, such possession cannot be interfered with without leave of 
 the court appointing the receiver. Tlie permission of the court 
 is a prerequisite, even where the claimant claims under a right 
 or title paramount to the receiver,' and while the possession does 
 not affect the rights of a landlord, yet he cannot enforce such 
 rights as against a receiver in possession without leave,* nor is it 
 permissible to intercept or prevent payment to a receiver of 
 money he has been appointed to receive.' In general, it is tlie 
 
 But on proper application the court 
 may adjust difficulties between the re- 
 ceiver and his employees, where in the 
 absence of such adjustment there is 
 danger of loss to the receivership 
 property, or the purposes of the re- 
 ceivership may be frustrated. Water- 
 house V. Comer, 55 Fed. Rep. 149, 19 
 L. R. A. 403. 
 
 A receiver of a railroad has no right 
 to refuse freight from a connecting 
 road for the purpose of preventing a 
 strike of his own employees where the 
 employees of the connecting road are 
 on a strike and are attempting to boy- 
 cott it. Beers v. Wabash, St. L. & P. 
 B. Co. 34 Fed. Rep. 244. 
 
 Receivers of a railroad are the sworn 
 officers of the court and their em- 
 ployees are pro hac vice officers of the 
 court and responsible as such. Re 
 Higf/ins, 27 Fed. Rep. 443; Chattanooga 
 Terminal R. Co. v. Felton, 69 Fed. Rep. 
 273. 
 
 A simple request to do or not to do 
 a thing made by one or more of a 
 body of strikers under such circum- 
 stances as are calculated to convey a 
 threatening intimidation, with a de- 
 sign to hinder or obstruct employees 
 in the performance of their duties is 
 not less obnoxious than the use of 
 physical force for the same purpose, 
 and will be punished as a contempt. 
 Re Doolittle, 23 Fed. Rep. 544. 
 
 As to injunctions against strikes 
 and proceedings under interstate com- 
 merce act, see valuable note in Long- 
 shore Printing & Pub. Co. v. Uowell, 28 
 L. R. A. 464. 
 
 ' Bay V. Postal Teleg. Co. 66 Md. 
 354; Ex parte Cochrane, L. R. 20 Eq. 
 282; DeWinton v. Brecon, 28 Beav. 
 203. In Iowa resisting a receiver is 
 a criminal offense. State v. Rivers, 
 66 Iowa, 653; Spinning y. Ohio L. Ins. 
 & T. Co. 2 Disney, 368; Vermont & C. 
 R. Co. V. Vermont C. R. Co. 46 Vt. 
 792; Angel V. Smith, 9 Ves. Jr. 315; 
 Ex parte Cochrane, L. R. 20 Eq. 282; 
 Russell V. East Anglian R. Co. 3 Macn. 
 & G. 104; Ames v. Birkenhead Dock 
 Co. 20 Beav. 332; Skinner v. Maxwell, 
 68 N. C. 400. How to proceed, see 
 Jacobson v. Landolt, 73 Wis. 142. 
 
 2 Sutton v. Rees, 9 Jur. N. S. 456; 
 Ex parte Cochrane, Re Mead, L. R. 20 
 Eq. 282; and the same rule applies to 
 a claimant of real estate. Angel v. 
 Smith, 9 Ves. Jr. 335; Fort Wayne, 
 M. & C. R. Co. V. Mellett, 92 Ind. 535; 
 Potter V. Spa Spriiig Brick Co. 47 N. 
 J. Eq. 442; Palys v. Jewett, 32 N. J. 
 Eq. 302. 
 
 3 Hazelrigg v. Bronaugh, 78 Ky. 62; 
 Thornton v. Washington Sav. Bank, 76 
 Va. 432. Though a person interfering 
 with property in the possession of a 
 receiver does so under a mistake of 
 the law, he will nevertheless be
 
 RECEIVER'S POSSESSION. 
 
 133 
 
 duty of the court in all cases to protect its receiver in the posses- 
 sion of the property over which he is appointed.' And this pro- 
 tection extends to property that may be beyond the jurisdiction 
 of the court, if the court has jurisdiction over the person of the 
 offender.^ 
 
 § 48. Duty of receiver to take possession of property. 
 
 The receiver is sometimes empowered by statute with power 
 to obtain possession of property over which he has been appointed, 
 and on refusal by the party in custody to surrender a warrant 
 may be issued for the purpose of enforcing the orders of court,' 
 but, whether so empowered or not, it is the duty of the receiver 
 to take possession of all the property covered by the order of his 
 appointment, and he cannot assume a position of indifference and 
 allow persons holding property to deliver it to him or not as they 
 see fit. He must use active diligence on his part to secure 
 possession.* 
 
 chargeable with the costs of the pro- 
 ceedings against him for contenipt, 
 though he may be excused from fur- 
 ther punishment. Noe v. Gibson, 1 
 Paige, 513. 
 
 ' Moore v. Mercer Wire Co. (N. J.) 
 15 Atl. 305, 737. Lord Romilly, in 
 De Winton v. Mayor, 28 Beav. 200, 
 says: "I apprehend this is clear: 
 that the court never allows any per- 
 son to interfere, either with money or 
 property in the hands of its receiver, 
 without its leave, whether it is done 
 by the consent or submission of the 
 receiver or by compulsory process 
 against him. The court is obliged to 
 keep a strict hand over property in 
 the hands of a receiver, or which by 
 virtue of the order of the court may 
 come in his hands, in order to pre- 
 serve entire jurisdiction over the 
 whole matter and to do that which is 
 just in the case between the part- 
 ies." 
 
 See also Ames v. Birkenliead Dock 
 Co. 20 Beav. 322; Brookav. Greathead, 
 1 Jac. & W. 178; Wordle v. Lloyd, 2 
 Moll. 388. 
 
 « Chafee v. Quidnick Co. 13 R. I. 
 442; Sercomh v. Catlin, 128 111. 556. 
 
 3 NoUe V. HalUday, 1 N. Y. 330. 
 
 Withholding contracts from a re- 
 ceiver of one of the contracting par- 
 ties cannot be justified upon the 
 ground that they are held as security 
 for commissions earned by the persons 
 who procured them, and wages due 
 them, where such commissions are 
 not payable until collections have been 
 made on the contracts, and no wages 
 are in fact due. Ex parte Corran 
 (Cal.) 41 Pac. 464. 
 
 Withholding contracts from the re- 
 ceiver of one of the contracting par- 
 ties cannot be justified on the ground 
 that they cannot be utilized by the 
 receiver, or that the withholding of 
 them will not injure him or the con- 
 tracting party. ExjMrte Corran (Cal.) 
 41 Pac. 464. 
 
 * Clapp v. Clapp, 49 Hun, 195. 
 
 A receiver is not required to apply 
 to the court to aid him in obtaining 
 possession of property which should 
 be surrendered to him. Filkins v. 
 Adams, 60 111. App. 410.
 
 134 RECEIVERSHIPS. 
 
 But a receiver of an insolvent cannot claim possession of land 
 in which the insolvent had an interest under contract which did 
 not pass the title, in the absence of a provision therein for posses- 
 sion in advance of the conveyance of title ; ' nor is he entitled to 
 the possession of a fund which, prior to his appointment, has 
 been placed in the hands of a trustee, for special purposes, such 
 as a safety and tontine pension fund in case of an insurance com- 
 pany." Where property prior to the appointment has been 
 fraudulently assigned to an insolvent assignee, the plaintiff 
 should have the receivership extended to sucli assignee,' and 
 where complaint is made of an act of the defendant after the 
 decree appointing a receiver but before the appointment is com- 
 pleted, the proper persons to make complaint are the parties to 
 the suit and not the receiver.* 
 
 While the decisions are not entirely harmonious, the weight of 
 authority, as well as reason, is in effect that where the receiver 
 obtains possession such j)OSsession will be protected in foreign 
 jurisdictions. If he obtains possession of property in the state of 
 his appointment and takes it to another state for a lawful pur- 
 pose, his possession will be protected in the latter state as against 
 creditors residing in such state.^ 
 
 ' Stratton v. California Land & 75 Pa. 112; Bich v. Bailey, 2 La. Ann. 
 
 T. Co. 86 Cal. 353. 974; EiUmerv. Hohart, 58 How. Pr. 
 
 ^ Re Home Provident Safety Fund 453; Cagill v.Wooldridge, 8 Baxt. 580. 
 
 Asso. 129 N. Y. 288, reversing 39 Where property has once vested in an 
 
 N. Y. S. R. 437. assignee or receiver by the lav? of the 
 
 2 Cassilear v. Simmons, 8 Paige, 273. state where the property is .situated, 
 
 The court cannot make a summary the law of another state will not 
 
 order on an assignee to turn over prop- divest him of it if he should take it 
 
 erty to a receiver, the assignee acting into such state in the performance of 
 
 under orders of another court. Com. his duty. A receiver appointed by a 
 
 V. Order of Vesta, 156 Pa. 531. court in such a case stands in the 
 
 * Fox V. Toronto & N. B. Co. 29 same position as an assignee or trus- 
 Ch. (Ont.) 11. tee in insolvency. Pond v. Cooke, 45 
 
 * Chicarjo, M. & St. P. R. Co. v. Conn. 126. 
 
 Keokuk H. L. Packet Co. 108 111. 317. See also Cammell v. Sewell, 5 
 
 Where a receiver takes possession of Hurlst. & N. 728; Clark v. Connecti- 
 
 property within the jurisdiction of cut Peat Co. 35 Conn. 303; Taylor v. 
 
 the court appointing him he becomes Boardman, 25 Vt. 581 ; Crapo v. Kelly, 
 
 vested with a special property in it 83 U. S. 16 Wall. 610, 21 L. ed. 430; 
 
 similar to that of a sheriff. Boyle v. Waters v. Barton, 1 Caldw. 450; Ca- 
 
 To2/)/ies, 9 Leigh, 15Q; Singerly v. Fox, gill v. Wooldridge, 8 Baxt. 580; Mc
 
 RECEIVER'S POSSESSION. 135 
 
 Courts will even punish for contempt persons who are not 
 parties to the suit for interfering with the property in the re- 
 ceiver's possession.' While the receiver is not permitted to take 
 possession of the receivership property until he has given bond 
 yet if the possession has been ordered the receiver will be pro- 
 tected.* 
 
 § 49. As against public improvements. 
 
 While the court zealously guards the possession ot receivership 
 property in the interest of the parties to the litigation, yet it will 
 not permit the possession of the receiver to be an obstacle to a 
 public improvement, as, for instance, to prevent the crossing of a 
 road in the hands of a receiver by the tracks of another road.* 
 The court otherwise would overrule the laws of the state and 
 make its will superior to the sovereign power of a co-ordinate 
 branch of the government. 
 
 § 50. Duty as to opening a new business. 
 
 The receiver's possession of property does not justify him, 
 without an order of court expressly authorizing him, or the busi- 
 ness is such as to imperatively require it, to open a business with 
 the property or moneys in his hands.' As we have seen, the 
 ordinary duty of the receiver relates to the preservation and safe 
 keeping of the property or fund, and he has no duty which re- 
 
 Alpin V. Jones, 10 La. Ann. 552. But ^ Central Trust Co. v. Wabash, St. L. 
 see contra, Humphreys v. Hopkins, 81 & P. B. Co. 2G Fed. Rep. 3. In this 
 Cal. 551, 6 L. R. A. 792. This case case Mr. Justice Brewer says: " It 
 is apparently against the weight of is not gracious in the federal court 
 authority, and was by a divided which has taken possession of prop- 
 court, and against principles pre- erty by its receivers to make that 
 viously enunciated by the same court. possession an obstacle to any proposed 
 Low V. Burrows, 12 Cal. 188; Lewis v. public improvement. We should, so 
 Adams, 70 Cal. 403. far as lies in our power, extend every 
 
 ' Helmore v. Smith, L. R. 35 Ch. facility to every proposed public ira- 
 
 Div. 449. In this case a former clerk provement, simply aiming to preserve 
 
 by means of a circular to the custom- the rights which attach to property 
 
 ers interfered with the business of the while it is in our possession, and that 
 
 receiver as manager and was commit- is all." 
 ted for contempt. " Terry v. Martin (N. M.) 32 Pac. 
 
 * Morrison v. Skerne Iron Works Co. 157. 
 60 L. T. N. S. 588.
 
 136 
 
 RECEIVERSHIPS. 
 
 quires him to build up a business for the benefit of the parties in 
 interest. Of course this restriction has no application to the 
 business of a going concern where the chief value arises from its 
 being such, as in the case of a newspaper ; nor to a business quasi 
 public in its nature where public interests are concerned. 
 
 § 51. As to tenants. 
 
 In a case where the receiver is to collect the rents and profits 
 the proper course is to apply for an order on the tenants in pos- 
 session to attorn, and it is not necessary that they should be par- 
 ties to the suit,' but in such case the tenants are not liable for 
 costs.' The power of the court as to the property carries with it 
 the implied power to make all necessary and proper orders upon 
 those who are in custody or charge not inconsistent with their 
 rights of possession, or valid contracts relating thereto. 
 
 § 52. To whom restored. 
 
 After the dismissal of a bill for want of jurisdiction, property 
 left in the hands of a receiver in such case must be restored to the 
 party from whom possession was taken, though the opposing 
 party may have a good claim to the possession by reason of a pur- 
 chase and possession before the bill was filed, and in such case it 
 makes no difference to the receiver that the party to whom he 
 restores the property is insolvent.^ In the very nature of the case 
 the court, without an adjudication, cannot return the property to 
 a person other than the one from whom the possession was taken. 
 
 § 53. Extent of. 
 
 A receiver appointed upon the application of a secured creditor 
 has no right to the custody of funds not arising from the property 
 which has been pledged as security, and which may be applied 
 upon the claims of general unsecured creditors,* if any. The 
 
 ^Reid V. Middleton, Turn. & R. 455. 
 
 ^Hobhouse V. Eollcombe, 2 DeG. & S. 
 208. 
 
 3 Warren v. Bunch, 80 Ga. 124. 
 
 ^ Wormser v. Merchants' Nat. Bank, 
 49 Ark. 117. The right of custody 
 extends only to the property which is 
 the subject-matter of the litigation. 
 In a proceeding under a general cred- 
 
 itors' bill of course the receiver is en- 
 titled to the entire property, as in the 
 case of bankruptcy and insolvency, or 
 proceedings to wind up banks, etc. 
 Noyes v. Rich, 53 Me. 115. But in 
 case of a mortgage foreclosure the 
 right to possession extends only to the 
 property mortgaged. Id.
 
 RECEIVER'S POSSESSION. 
 
 137 
 
 possession in such case is coextensive with the ris^hts or lien of 
 tJie plaintiff, and as to the owner of the property or creditors can- 
 not go beyond that. 
 
 § 54. As to taxes. 
 
 It has been held that the possession of the receiver does not 
 prevent the seizure and sale of such property for unpaid taxes, 
 and in such case if neither the bailiff nor the purchaser was aware 
 until after the sale that it was in tlie hands of a receiver, and in 
 fact had been informed to the contrary in good faith by the per- 
 son in charge, the sale will be iipheld.' The general rule is, how- 
 ever, that the receiver takes the property subject to all existing 
 liens, and such liens are unaffected thereby, and this rule is 
 especially true in the case of taxes where the lien therefor is 
 paramount to all other liens. But notwithstanding the para- 
 mount lien, the officer is not entitled to levy on and sell receiver- 
 ship property. It is his duty to intervene and set up his lien." 
 
 ^Gibsonv. Lovell, 19 Grant Ch.(Ont.) 
 197. 
 
 ^ In King v. Wooten, 2 U. S. App. 
 651, the court say: " The recognized 
 mode of protecting property in the 
 custody of the court is by treating as 
 null all attempts to withdraw it there- 
 from without leave of the court, 
 whether by color of other legal pro- 
 cess or otherwise than by order of the 
 court in possession, and when neces- 
 sary such possession is protected by 
 proceedings to attach and punish for 
 contempt all persons who persist in 
 attempting to disturb the possession 
 of the court." 
 
 Mr. Ch. J. Fuller, in Be Tyler, 149 
 U. S. 164, 183, 37 L. ed. 689, 695, 
 says: "The levy of a tax warrant, 
 like the levy of an or dmnry fieri facias, 
 sequestrates the property to answer 
 the exigency of the writ; but property 
 in the possession of the receiver is al- 
 ready in sequestration, already held 
 in equitable execution, and while the 
 lien for taxes must be recognized and 
 enforced, the orderly administration 
 of justice requires this to be done by 
 
 and under the sanction of the court. 
 It is the duty of the court to see to it 
 that it is done; and a seizure of the 
 property against its will can only be 
 predicated on the assumption that the 
 court will fail in the discharge of its 
 duty, an assumption carrying a con- 
 tempt upon its face." 
 
 Prince George's County Comrs. v. 
 Clarke, 36 Md. 206; Greeley v. Provi- 
 dent Sav. Batik, 98 Mo. 458; Central 
 Trust Co. V. JVew York C. d JST. B. Co. 
 110 N. Y. 250, 1 L. R. A. 260; Yuba 
 County V. Adams, 7 Cal. 35. 
 
 Philadelphia & B. B. Co. v. Com. 
 104 Pa. 80; Union Trust Co. v. Weber, 
 96 111. 346; Be North American Gutta 
 Percha Co. 17 IIow. Pr. 549; Gere v. 
 Dibble, 17 How. Pr. 31; Bich v. Lou- 
 irell, 18 How. Pr. 121; Lorch v. Ault- 
 man, 75 Ind. 162. 
 
 An attempt to seize or sell lands in 
 the custody of receivers of a railroad 
 company, for taxes, without the con- 
 sent of the court appointing such re- 
 ceivers, may be enjoined. Oakes v. 
 Myers 86 Fed. Rep. 807.
 
 138 
 
 RECEIVERSHIPS. 
 
 § 55. As to set-off. 
 
 The receiver lias only tlie ris^hts of the company over whose 
 property he is placed, and all propert}^ rights pass to him as they 
 existed prior to his appointment and are subject to the same 
 equities,' and the right of set-off exists against a note in the hands 
 of a receiver of an insolvent corporation to the same extent as 
 would have existed against it in the hands of the corporation." 
 The receiver can have no greater or better rights than the debtor 
 had.' In a proceeding by receivers if the defendant is entitled 
 to a set-off and holds security from the debtor he must first ex- 
 haust the security and prove up the balance only, and tliis is 
 based upon the principle that equality is equity.* The right of 
 set-off does not exist, however, unless the indebtedness and set-off 
 grow out of the same right. Thus if the receiver sues to recover 
 an unpaid subscription to the capital stock of a corporation, and 
 the set-off grows out of a deposit in the bank, the capital stock in 
 
 ' FaUcenbach v. Patterson, 43 Ohio 
 St. 359; Bellv. Shihley, 33 Barb. 610; 
 Coope V. Boicles, 42 Barb. 87; Lincoln 
 V. FitcTi, 42 Mo. 456. 
 
 ^ Berry v. Brett, 6 Bosw. 627; Hol- 
 brook V. American F. Ins. Co. 6 Paige, 
 220; Colt V. Brown, 12 Gray, 233; Scott 
 V. Armstrong, 146 U. S. 499, 36 L. ed. 
 1059; Armstrong v. Warner, 49 Ohio 
 St. 376, 17 L. R. A. 466; Hade v. Mc- 
 ray, 31 Ohio St. 231. 
 
 2 Wisco7isin M. & L. F. Ins. Co. Bank 
 V. Manistee Salt & L. Co. 77 Mich. 76; 
 Farrington v. Sexton, 43 Mich. 454; 
 Lentz V. Flint & P. M. R. Co. 53 Mich. 
 444; Byles v. Kellogg, 67 Mich. 318. 
 
 See also notes to following § 56. 
 
 ^ State Bank v. Bank of New Bruns- 
 wick, 3 N. J. Eq. 266. 
 
 In Scoit V. Armstrong, 146 U. S. 449, 
 36 L. ed. 1059, it was held that the 
 ordinary equity rule of setoff in case 
 of insolvency is that where the mu- 
 tual obligations have grown out of 
 the same transaction, insolvency, on 
 the one hand justifies the set-off of the 
 
 debt due on the other; and this rule 
 applies to a receiver of an insolvent 
 national bank, as where a customer 
 of a bank gives his note for borrowed 
 money due at a future day and depos- 
 its the amount borrowed to be drawn 
 against, any balance remaining due 
 him on the dissolution of the bank 
 and the appointment of a receiver is a 
 proper off-set to the note to the extent 
 it may go. Cf . Adams v. Spokane Drug 
 Co. 57 Fed. Rep. 889, 23 L. R. A. 334; 
 Bell V. Hanover Nat. Bank, 57 Fed. 
 Rep. 822; Snyder v. Armstrong , 37 
 Fed. Rep. 18; Yardley v. Clothier, 49 
 Fed. Rep. 337; Armstrong Y.Warner, 
 21 Ohio L. J. 136, 27 Ohio L. J. 
 100. The same rule is applicable in 
 a suit by a receiver upon a premium 
 insurance note. Berry v. Brett, 6 
 Bosw. 627. And upon a note due a 
 bank. Van Dyck v. McQuade, 85 N. 
 Y. 616; Lanier v. Gayoso Sav. Inst. 9 
 Heisk. 506; Stone v. Bodge. 96 Mich. 
 514, 21 L. R. A. 280; Van Wagoner v. 
 Paterson Oaslight Co. 23 N. J, L. 283.
 
 RECEIVER'S POSSESSION. 139 
 
 snch case being a trust fund for the benefit of all creditors, the 
 right of set-off does not exist.' 
 
 Where the receiver is directed to pay a certain person an 
 amount of money, the receiver has no right to offset his individ- 
 ual claims against such person. ° This principle is based on the 
 fact that the receiver holds the funds for the court, and no dis- 
 cretion is allowed him as to any application or disjDOsition thereof ; 
 he holds subject to the order of court, to be j)aid out as the court 
 shall adjudge. 
 
 § 56. As to exemptions. 
 
 As we have seen, the taking of possession of property by a 
 receiver does not destroy existing rights in such property, and 
 therefore does not deprive the debtor of his right to exemption 
 given him by the statute.^ 
 
 § 57. As to executors and administrators. 
 
 As a rule an administrator is entitled to the possession of the 
 property of the intestate held by him at the time of his death, 
 but where, prior to administration, the property had been placed 
 in the hands of a receiver on the application of an adverse claim- 
 ant, the receiver will hold possession." 
 
 I Williams v. Trapliagen, 38 N. J. Tillotson v. Wolcott, 48 N. Y. 188; 
 
 Eq. 57. Finnin v. Malloy, 1 Jones & S. 382; 
 
 ^Johnson v. Gunter, 6 Bush. 534. Cooney v. Cooney, 65 Barb. 524; Sands 
 
 3 Weinrich v. Koelling, 21 Mo. App. v. Roberts, 8 Abb. Pr. 343; Hudson v. 
 
 133. The claim for exemption should Plets, 11 Paige, 180; Andi'ews v. Bowan, 
 
 be made when the property is seized, 28 How. Pr. 12G. 
 
 or threatened to be seized. It is held * Johnson v. Stewart, 41 Ga. 549. 
 
 that an individual partner has no 
 
 claim for exemption on partnership 
 
 property.
 
 CHAPTEE y. 
 
 RECEIVER'S TITLE. 
 
 § 58. Defined. § 64. To choses \n action generally. 
 
 § 59. By possession. ^ 65. To real estate in foreign states. 
 
 §60. In supplementary proceedings. §66. To real estate generally. 
 
 § 61. In statutory proceedings. § 67. Extent of. 
 
 §63. In acVwns pendente lite. §68. Subject to all liens. 
 § 63. To choses in action due from 
 nonresidents. 
 
 § 58. Defined. 
 
 The word "title" as used in receivership matters has various 
 significations, and has been the occasion of no little confusion bj 
 those using the term. " Title in modern usage points to the 
 rights rather than the actual ownership)," says Mr. Abbott, " and 
 to say that title is such a claim to the exclusive control and 
 enjoyment of a thing as the law will recognize and enforce, per- 
 haps expresses the idea conveyed by the modern use of the 
 word." The receiver's title has reference more particularly ta 
 the right to the possession and control of the property, real or 
 personal, for the time being, rather than to the ownership thereof. 
 There are cases in matters of insolvency and winding up proceed- 
 ings where the absolute legal title becomes vested in the receiver,. 
 and not unfrequently in the earlier practice the owner was re- 
 quired to execute and deliver to the receiver a formal convey- 
 ance of the property owned by him at the date of granting the 
 receivership. In other cases the receiver is the mere custodian 
 for the time being of the property of the debtor, charged with 
 the duty of caring for the same, collecting the rents in case of 
 real estate, and the income and profits in case of personal prop- 
 erty, and transferring the title as an officer of and as ordered by 
 the court. In this latter case the receiver, strictly speaking, has 
 no title to the property, and where the title of such a receiver is 
 referred to it has reference solely to his right of possession under 
 the order of court, and as an officer of the court, the scope of his 
 authority in all cases being measured by the order of his appoint- 
 ment, having' reference to the character of the property, and the
 
 RECEIVER'S TITLE. 
 
 141 
 
 rights therein of the plaintiffs at -whose instance he is appointed, 
 and the owner over whose property he is placed in custody. In 
 many cases the actual manual possession of the property is not 
 intended to be placed in the receiver, but he is only charged with 
 the collection of the rents and profits, and in such case his posses- 
 sion is only constructive, and rights so far as third parties are 
 concerned are largely dependent on the doctrine of lis pendens.^ 
 
 ' In Union Nat. Bank v. Bank of 
 Kansas City, 136 U. S. 223, 34 L. ed. 
 236, 341, 342, Mr. Justice Gray says: 
 "A receiver derives his authority 
 from the act of the court appointing 
 him and not from the act of the par- 
 ties at whose suggestion or by whose 
 consent he is appointed; and the 
 utmost effect of his appointment is to 
 put the property from that time into 
 his custody as an officer of the court 
 for the benefit of the parly ultimately 
 proved to be entitled, but not to 
 change the title or even the right of 
 possession in the property." Skip v. 
 Harwood, 3 Atk. 564; Anon. 2 Atk. 
 15; Wiswall v. Sampson, 52 U. S. 14 
 How. 52, 14 L. ed. 322; Ellis v. Bos- 
 ton, H. & E. R. Co. 107 IMass. 1; 
 Maynard v. Bo7id, 67 Mo. 315; Hei- 
 man v. Fisher, 11 Mo. App. 275. In 
 Yeager v. Wallace, 44 Pa. 294, it was 
 held that a receiver of partnership 
 effects could not maintain trover for 
 the converted assets of the firm before 
 the appointment, on the ground that 
 the receiver does not become the legal 
 owner of the property which he is re- 
 quired to take in charge. The ap- 
 pointment does not transfer to the 
 receiver the legal rights of the part- 
 nership in any of their choses in pos- 
 session or in action. Wilson v. Allen, 
 6 Barb. 545. In Mann v. Pentz, 2 
 Sandf, Ch. 257, it was held that the 
 effect of the order was to vest the 
 property in the receiver as effectually 
 in equity as if an assignment had 
 been made in due form. The prop- 
 
 erty is transferred by operation of 
 law by means of the order of the 
 court; and equity looking at the sub- 
 stance will hold the transfer accom- 
 plished which has been decreed. In 
 re Eagle Iron Works, 8 Paige, 386; 
 Eldred v. Hall, 9 Paige, 640. In a 
 foreclosure proceeding in Harland v. 
 Bankers & M. Teleg. Co. 32 Fed. Rep. 
 305, it was held that a receiver pen- 
 dente lite is a mere custodian of the 
 mortgaged property. And not being 
 appointed under a statute acquired 
 no title to the property which be- 
 longed to the mortgagee. 
 
 In Union Trust Co. v. Weber, 96 111. 
 346, it is said: " We are aware of no 
 rule of law or any adjudged case in- 
 dependent of a statute that holds the 
 appointment of a receiver transfers 
 the title of real or personal property 
 to the person thus appointed. Nor 
 do we conceive by what means such 
 an appointment can have that effect. 
 That officer by his appointment is 
 authorized to take and hold possession 
 of property under the control and 
 direction of the court." In Atty. 
 Oen. V. Atlantic & Mut. L. Ins. Co. 
 100 N. Y. 279, it was held that under 
 the New York statute (Act 1869, § 7) 
 the title to real estate of the debtor 
 became vested in the receiver by his 
 appointment, as well as personal prop- 
 erty. And if this were not true the 
 receiver is the holder of the equitable 
 title accompanied by possession, and 
 a conveyance could be ordered by the 
 court if necessary. See also Decker
 
 142 
 
 RECEIVERSHIPS. 
 
 § 59. By possession. 
 
 In the absence of a formal transfer or assignment a receiver 
 pendente lite acquires no title in the sense of ownership to the re- 
 ceivership property, and his rio-ht is one merely of possession as 
 an officer of conrt, the leo-al title of the owner remaining nn- 
 aii'ected until transferred by operation of law by decree and sale.' 
 
 V. Gardner, 124 N. Y. 334, 11 L. R. A. 
 480; ^yim| v. Bis^^e, 15 Hun, 190; Os- 
 good V. Mnguire, 6J N. Y. 524; Owen 
 V. Smith, 81 Barb. 641; Atlan Bank v. 
 Nahant Bank, 23 Pick, 480. The 
 power of the court to invest the re- 
 ceiver with the legal as well as the 
 equitable title would seem to be un- 
 questioned. Atty. Gen. v. Atlantic & 
 Mut. L. Ins. Co. 100 N. Y. 279; Chau- 
 taiique County Bank v. Bisley, 19 
 N. Y. 369; Hoyt v. Thomiison, 5 N.Y. 
 320; Scott V. Elmore, 10 Hun, 68 
 Union Trust Co. v. Weher, 96 111. 348 
 Adams v. Hoicard, 22 Fed. Rep. 656 
 Wilmer v. Atlanta & B. Air Line B. 
 Co. 2 Woods. 409; Noyes v. Bich, 52 
 Me. 115; Ellis v. Boston, B. & E. B. 
 Co. 107 Mass. 1. In Coates v. Cun- 
 ningham, 80 111. 467, the court say: 
 " The appoincment of a receiver does 
 not determine any rights nor affect 
 the title of either party in any manner 
 whatever. He is the officer of the 
 court, and his holding is the holding 
 of the court for him, from whom the 
 possession was taken. He is ap- 
 pointed on behalf of all parties, and 
 his appointment is not to oust any 
 party of his rights to the possession, 
 but merely to retain it for the benefit 
 of the party ultimately entitled; and 
 where he is ascertained the receiver 
 will be considered as his receiver. 
 Ellicott V. Warford, 4 Md. 80; Be Col- 
 vin, 2 Md. Ch. 280; Porter v. Williams, 
 9. N. Y. 142. 
 
 Real estate is vested in the receiver 
 only by a conveyance to him. St. 
 Louis & S. Coal & M. Co. v. Sandoval 
 
 Coal & M. Co. Ill III. 32; Chautau- 
 que County Bank v. Bisley, 19 N. Y. 
 369; In re Calvin, 3 Md. Ch. 278; 
 Williamson v. Wilson, 1 Bland. 418. 
 In Tillingliast v. Champlin, 4 R. I. 
 173, it was held that a receiver of a 
 dissolved copartnership appointed by 
 a court of equity is invested with the 
 whole equitable title to the partner- 
 ship property, without an assignment; 
 and in Fincke v. Funke, 25 Hun, 616, 
 it was held that a receiver in a part- 
 nership case pendente lite has no 
 powers except such as have been con- 
 ferred upon him by the order, and is 
 a common law receiver whose duty 
 it is to merely protect the fund pend- 
 ing litigation. The order appointing 
 him makes no change in the title. 
 Keeney v. Home Ins. Co. 71 N. Y. 
 396. In proceedings supplementary 
 to execution, however, and in cases 
 of embarrassed or insolvent corpora- 
 tions, and statutory proceedings, his 
 powers are greater. 
 
 1 Decker v. Gardner, 124 N. Y. 334, 
 11 L. R.'A. 480; Herring v. Neio York, 
 L. E. & W. B. Co. 105 N. Y. 372, 875; 
 Keeney V. Home Ins. Co. 71 N. Y. 396; 
 ( or?i Exchrmge Bank v. Blye, 101 JST. 
 Y. 303; Devlin v. JSfew York, 4 Miss. 
 106; Wilson v. Allen, 6 Barb. 545; 
 Leonard v. Wallace, 44 N. Y. 294; 
 Harland v. Bankers' <& M. Teleg. Co. 
 32 Fed. Rep. 305; Skip v. Earwood, 3 
 Atk. 564; Qresley v. Adder ley, 1 
 Swanst. 573; Thomas v. Brigstack, 4 
 Russ. 65; Bertrandv. Davies, 31 Beav. 
 436; Green v. Bosticick, 1 Sandf. Ch. 
 185; Singerly v. Fox, 75 Pa. 112.
 
 RECEIVER'S TITLE. 143 
 
 "While receivers of this class have many powers and duties pecu- 
 liar to themselves they are such only as flow from the nature and 
 character of the property committed to their charge. Pendente 
 lite receivers of corporations do not represent the corporations in 
 their individual or personal character; nor do they supersede the 
 corporations in the exercise of their corporate functions, except in 
 so far as the custody and preservation of the property is con- 
 cerned. The power of the court to protect the receiver's posses- 
 sion is based upon the fact that the fund or property is in custodia 
 legis rather than the fact of title or ownership. The possession, 
 however, will be protected as jealously as if the absolute title was 
 vested in the receiver, and it is this condition of protection 
 that is sometimes referred to as the receiver's title. It is true that 
 the receiver may be considered as having a special property in 
 the fund or res in the sense that a sheriff, or other officer is said 
 to have, but in all such cases the officer's powers and duties in re- 
 lation to the property are referrable to the peculiar nature of his 
 possession rather than to any interest in or title to the propertv. 
 
 § 60. In sui)i)lemeiitary proceedings. 
 
 The code of procedure in many of the states, regulating pro- 
 ceedings supplementary to execution, vests the title of the judg- 
 ment debtor to both real and j)ersonal j)roperty in the receiver, 
 and no formal assignment is required. The receiver in such case 
 stands in the position of a trustee for the creditors of all the prop- 
 erty the debtor held at the time of the appointment.' The title 
 
 While the appointment of a re- and distribute. Re Beechcr's Estate, 
 
 ceiver may not convey the title yet 19 N. Y. Supp. 971. 
 
 the appointment is in the nature of an When a person wrongfully obtains 
 
 injunction or a writ of sequestration, payment of a debt adversely to the 
 
 preventing any alienation of or inter- rights of a receiver he will be ordered 
 
 ference with the property without the to pay the same to the receiver and in 
 
 con-sent of court. Thus a lease by a default will be committed. Parker v. 
 
 parly to the suit of land in the hands Pocock, 30 L. T. N. S. 458. 
 
 of a receiver made to a third party, ' Porter v. Williams, 9 N. Y. 142; 
 
 however valid between the parties, Manning v. Evans, 19 Ilun, 500; 
 
 confers no rights upon the assignee. Wring v. Disse, 15 Hun, 191; Fessen- 
 
 Thornton v. Washington Sav. Bank, den -v. Woods, 3 Bosw. 550; ^1%. Gen. 
 
 76 Va. 433. v. Atlantic Mut. Ins. Co 100 N. Y. 
 
 A receiver of the property of a 279. 
 
 beneficiary may reach the proceeds of As to the title of receivers indc- 
 
 real estate devised in trust to convert pendent of statutes, see Wihon v. Wit-
 
 144 RECEIVERSHIPS. 
 
 of the receiver in snch a case relates to such indebtedness as may- 
 be due the debtor at the tune of his appointment and not such as 
 may become due thereafter,' and the same rule applies in the case 
 • of a receiver of a corporation, as to property subsequently ac- 
 quired by the corporation." And where the vendor of merchan- 
 dise reserves title thereto until the payment of the purchase price, 
 ,a receiver of the vendee obtains no title to such merchandise and 
 ■ can convey no title thereto.* 
 
 § 61. Ill statutory proceedings. 
 
 Under statutes designed to facilitate the dissohition and wind- 
 ing up of insolvent corporations, both in this country and in Eng- 
 land, provision is usually made for the appointment of statutory- 
 receivers, with enlarged powers and duties. As a rule this class 
 of receivers are invested by law with the title to both the real and 
 personal property of the insolvent corporation, independent of 
 any assignment or formal transfer.^ No general rules, of course, 
 can be laid down concerning statutory proceedings, as all such are 
 governed by the peculiar provisions of the statutes under which 
 the appointment is made and there is no uniformity in their pro- 
 visions. In many states the statute vests the legal title to re- 
 ceivership property in the receiver under supplementary proceed- 
 
 son, 1 Barb. Ch. 592. Cf. Mann v. judgment debtor has in the estate of 
 
 Pentz, 2 Sandf. Ch. 257; Wilson v. which he takes possession (Bell v. 
 
 Allen, 6 Barb. 542; Scouton v. Bender, Shibley, 33 Barb. 614) and that the re- 
 
 3 How. Pr. 185. ceiver's rights in the property are sub- 
 
 This subject will be further dis- ject to all the equities existing against 
 
 cussed under the title"Supplementary the debtor. Hyde v. Lynde, 5 N. Y. 
 
 Proceedings." 392; Ford v. Cobb, 20 N. Y. 348. 
 
 ' Willison V. Salmon, 45 N. J. Eq. ■• Atty. Oen. v. Atlantic Mui. L. Ins. 
 257. It must be a debitum in prmenii. Co. 100 N. Y. 279; Atty. Gen. v. Con- 
 In this case the contract was incom- tinental L. Ins. Co. 28 Hun, 360, 
 plete. affirmed in 93 N. Y. 630; Osgood v. 
 
 « Qabert v. Olcott (Tex.) 22 S. W. McOuire, 61 N. Y. 524; Re Berry, 26 
 
 286 (not officially reported, and re- Barb. 55; People, Atty. Oen., v. Se- 
 
 versed in 86 Tex. 121, on other curity L. Ins. & A. Co. 23 Hun, 596. 
 
 grounds sub nom Olcott v. Qabert). 71 N. Y. 226; Morgan v. New York & 
 
 ^Sayles v. National Water Purify- A. R. Co. 10 Paige, 290; Decker v. 
 
 ing Co. 41 N. Y. S. R. 856, affirmed Gardner, 124 N. Y. 334, 11 L. R. A. 
 
 without opinion in 141 N. Y. 603. 480; Porter v. Williams, 9 N. Y. 142. 
 
 The basis of this decision is that the See further chapter on Corporations, 
 receiver gets no better title than the
 
 RECEIVER'S TITLE. 145 
 
 ings, as seen in the preceding section, but it will be observed that 
 in such case the receiver's title depends upon the provisions of 
 the statute. 
 
 § 62. In actions pendente lite. 
 
 'Receivers j)e7idente lite are mere temporary officers of the court 
 and do not possess the powers of a permanent receiver unless 
 specially conferred upon them by the court. They possess no 
 legal powers, and their functions are limited to the care and j)res- 
 ervation of the projDerty or fund committed to their charge.* 
 The power of appointment of a receiver of this character is an in- 
 cident to the jurisdiction of a court of chancery, and is un- 
 affected by the character of the parties before it, whether an indi- 
 vidual or a corporation, or by the nature of the property,* and is 
 usually brought into exercise in mortgage foreclosure cases. 
 While this class of receivers have many duties and powers pecu- 
 liar to themselves they are such only as flow from the nature and 
 character of the property committed to their charge. Of course, 
 in case of the foreclosure of railway mortgages the powers and 
 duties of the receiver are increased by reason of the public nature 
 of the property and the franchises involved, but the title of the 
 receiver is essentially the same in all cases. 
 
 § 63. To choses in action due from nonresidents. 
 
 A court of equity under its general powers and independent 
 of statutory authority has no power to compel a general assign- 
 ment of all the property, or the choses in action, of a debtor in 
 an action by a judgment creditor to collect his judgment, nor 
 does the title to choses in action due the debtor from persons in 
 a foreign jurisdiction pass to a receiver by virtue of his appoint- 
 ment, nor will a receiver have power to bring suits on such choses 
 in action in a foreign jurisdiction.' As will be seen in the fol- 
 
 ' Herring v. Neic York, L. E. & W. Booth v. Clark, 58 U. S. 17 How. 322, 
 
 R. Co. 105 N. y. 372; Keeiiey v. Home 15 L. ed. 164; Brighnm v. Luddington, 
 
 Jus. Co. 71 N. Y. 396. 12 Blatchf. 237; Yeager v. Wallace, 44 
 
 ^ United States Trunt Co. v. New Pa. 204. 
 
 York, W. S. & B. R. Co. 101 N. Y. Prior to the passage of the Massa- 
 
 478. chusetts statute of 1884, a creditor's 
 
 "^ Amy V. Manning, 149 Mass. 487; suit under the statute could not be 
 
 Harvey v. Varney, 104 Mass. 436; maintained against the judgment 
 10
 
 146 
 
 RECEIVERSHIPS. 
 
 lowing section, the common law of New York is directly con- 
 trary to the principles here laid down. Under the provisions of 
 the code of procedure in that state relating to proceedings sup- 
 plementary to execution it is not within the power of the court 
 to order the debtor to execute deeds of conveyance for real estate 
 situated in another state.' 
 
 § 64. To choses in action generally. 
 
 The rule that a receiver's title dates from the time of granting 
 the order for his appointment does not apply to choses in action 
 in all cases ; thus, where a debtor made an assignment for the 
 benefit of his creditors and subsequently a creditor of such debtor 
 filed a bill to set aside the assignment, in which action a receiver 
 was appointed, and subsequently a decree was rendered setting 
 the assignment aside, it was held that the receiver's title to cer- 
 tain promissory notes given to and lield by the assignees, dated 
 from the time of filing the bill to set aside the assignment ; that 
 the filing of the bill created a lien on the choses in action in the 
 hands of the assignees from that date,' though ordinarily the 
 
 debtor and an assignment compelled 
 to be made by him of his choses in 
 action due from non-resident parties, 
 ■without making such persons parties 
 defendant. PIkeiux Ins. Co. v. Abbott, 
 127 Mass. 558. The statute (1884) in 
 eubstance provides that the fact that 
 the property sought to be reached 
 and applied is in the hands, possession 
 or control of the debtor independently 
 of any other person, or that it is not 
 within the state, shall not prevent the 
 plaintifE from maintaining his bill. 
 Since the passage of this statute it has 
 been held that such intangible prop- 
 erty as letters patent in the possession 
 of the debtor can be reached without 
 making any other person a party de- 
 fendant to the suit, and both before 
 and since the passage of the statute 
 promissory notes have been reached 
 by this process without making the 
 makers of the notes parties. McCann 
 V. Randall, 147 Mass. 81; WiUon v. 
 
 Martin- Wilson Automatic Fire Alarm 
 Go. 149 Mass. 24; Amy v. Manning, 
 149 Mass. 457. 
 
 ^ Smith V. Tozer, 42 Hun, 22. It 
 seems that this inability of the court 
 arises by reason of the provisions of 
 the code vesting the real estate in the 
 receiver from the time of his filing 
 with the clerk of the county where 
 the property is situated, a copy of the 
 order; this could only be construed 
 with reference to property in New 
 York. It was otherwise under the 
 code prior to 1877, Fenner v. San^ 
 born, 37 Barb. 610. 
 
 '^ Clark v. Brockway, 1 Abb. App. 
 Dec. 351. 
 
 Receivers appointed by the court 
 upon a creditors' bill, to take, receive 
 and hold property assigned by an in- 
 solvent bank, acquire all the rights of 
 the assignees under their assignment. 
 Hill V. Western & A. B. Co. 86 Ga. 
 284.
 
 RECEIVER'S TITLE. 147 
 
 receiver's title dates from the time of granting the order, and not 
 from the time of giving the bond/ or of filing the bill. 
 
 § 65. To real estate in foreign states. 
 
 "While the receiver does not become vested with title to real 
 estate situated in a foreign state by virtue of his appointment as 
 receiver, yet the inherent powers of an equity court are such 
 that where the court has jurisdiction of the person, it may re- 
 quire him to transfer to the receiver any property the judgment 
 debtor may own in a foreign state, where such transfer is i^ces- 
 sary to the payment of his debts.'' The principles here an- 
 nounced, it will be observed, are directly opposed to those laid 
 down in a preceding section in force in Massachusetts. In 
 England where the court has jurisdiction of the person, and 
 wliile it cannot send its oflficers into a foreign jurisdiction to 
 carry into effect its orders, yet it has power to enforce obedience 
 to its orders by punishment for contempt ;° and this power exists 
 where the person or corporation committing the alleged contempt 
 is not a party to the suit, provided such party is within the juris- 
 diction of the court appointing the receiver.* 
 
 ^ Maynard v. Bond, 67 Mo. 315; w. Tozer, swpra). Penn v . Lord BalU- 
 
 Pope V. Ames, 20 Or. 199; Re Chris- more, 1 Ves. Sr. 444; Farley v. Sfiip- 
 
 tian Jensen Co. 128 N. Y. 550; Chau- pen, Wythe, 135; Toller v. Carteret, 2 
 
 tauque County Bank v. Risley, 19 N. Vern. 494; Hughes v. Hall, 5 Munf. 
 
 Y. 369; Porter v. Williams, 9 N. Y. 431; Cro7istown v . Johnston, 3 Ves. Jr. 
 
 142; Van Alstyne v. Cook, 25 N. Y. 170, 5 Ves. Jr. 277; Kildare v. Eus- 
 
 489: Bockerv. Torrance, 31 N.Y. 631. tace, 1 Vern. 419; Berby v. Athol, 1 
 
 It would seem, however, that as to Ves. Sr. 203; Guerrant v. Fowler, 1 
 
 choses in action not subject to levy Hen. & M. 5; Massee y. Watts, 10 U. 
 
 and sale, the filing of this bill creates S. 6 Cranch, 148, 3 L. ed. 181; Ward 
 
 a lien and the rights of the parties re- v.Arredondo, 1 Hopk. Ch. 213. 
 
 late to that date. Clark v. Brockway, ^ Langford v. Langford, 5 L. J. Ch. 
 
 supra. N. S. 60; Richards v. People, 81 111. 
 
 ^Mitchell V. Bunch, 2 Paige, 606; 551; Chafee v. Quidnick Co. 13 R. I. 
 
 Le Loy -v. Rogers, 3 Paige, 237; Bailey 442; Delion v. Foster, 4 Allen, 545; 
 
 V. Ryder, 10 N.Y. 623; Fenner v. San- Vermont & C. R. Co. v. Vermont C. B. 
 
 born, 37 Barb. 610; Smith v. Tozer, 43 Co. 46 Vt. 792. 
 
 Hun, 22. And see Newton v. Bron- '^Sercomb v. Catlin, 128 111. 556. 
 
 son, 13 N. Y. 587; Gardner v. Ogden, And it is not necessary that the re- 
 
 22 N.Y. 327; Williams v. Fitzhugh, 37 ceiver shall have reduced the prop- 
 
 N.Y. 444; ^A««McAv. C'amVZ^/, 3 Ed w. erty to his possession. Hazelrigg y. 
 
 Ch. 152. (See limitation by Code of Bronaugh, 78 Ky. 62; Richards v. Peo- 
 
 1877,chap. 417, as determined in Smith pie, 81 111. 551.
 
 148 
 
 RECEIVERSHIPS. 
 
 § 6Q. To real estate generally. 
 
 In proceedings supplementary to execution, where the debtor 
 has made no conveyance of his real estate to the receiver, pursu- 
 ant to an order of court, and independent of statutory enactment, 
 the receiver takes no title in the sense of ownership to real estate 
 of the debtor. In this class of proceedings the receiver's title is 
 a qualified title in the nature of a security for the plaintiff of the 
 judgment, and such title thus qualified and limited, does not 
 exhaust the title of the judgment debtor. Subject to the right 
 of the receiver to resort to the land to pay the judgment the title 
 remains in the judgment debtor, and a conveyance by him trans- 
 fers the title subject to the claim of the receiver.' The court has 
 
 ^Scott V. Elmore, 10 Hun, 68; Wilson 
 V. Wilson, 1 Barb. Ch. 572; Chautauque 
 County Bank v. Eidey, 19 N. Y. 375; 
 Moak V. Coates, 33 Barb. 498; St. 
 Louis & S. Coal & M. Co. v. Sandoval 
 Coal & M. Co. Ill 111. 32. But see 
 Porter v. Williams, 9 N. Y. 142, as to 
 application of the then existing code. 
 
 A land company having conveyed 
 its lands by trust deed to secure its 
 preferred stockholders, allowed its 
 equity to be sold on execution and the 
 time for redemption to pass, all before 
 the filing of a bill in which a receiver 
 of the company was appointed. Held, 
 that the receiver took nothing by his 
 appointment nor by conveyance from 
 the company. Fitch v. Wetherbee, 110 
 111. 475. 
 
 The appointment of a receiver only 
 invests him with the title to such real 
 estate as the debtor has within the 
 state. Smith v. Tozer, 42 Hun, 22. 
 See Code Civ. Proc. § 2468. 
 
 A receiver derives his authority 
 from the court appointing him and 
 not from the act of the parties at 
 whose suggestion he is appointed. 
 The effect is to put the custody in his 
 hands as an officer of the court for the 
 benefit of the party entitled to it, but 
 does not change the title or even right 
 of possession. 
 
 Union Nat. Bank v. Bank of Kansas 
 City, 136 U. S. 223, 34 L. ed. 341; 
 Maynard v. Bond, 67 Mo. 315; Heiman 
 v. Fisher, 11 Mo. App. 275. 
 
 A receiver of a corporation is not 
 authorized to take possession of chat- 
 tel property formerly owned by the 
 company, but which has been sold on 
 execution against it before his ap- 
 pointment. 
 
 Mcllrath v. Snure, 22 Minn. 391. 
 
 The refusal by the defendant in a 
 creditor's bill, to make an assignment 
 to the receiver, in pursuance of an or- 
 der of court, is no ground for a re- 
 fusal by the master, to decide that the 
 property is within the control of the 
 defendant and to order it to be deliv- 
 ered to the receiver. 
 
 Eldred v. Hall, 9 Paige, 640. 
 
 Under the usual order appointing a 
 receiver, in a creditor's bill, thedebtor 
 is bound to execute to the receiver a 
 formal assignment of all his property, 
 although he has stated under oath 
 that he has no property. 
 
 Chipman v. Sabhaton, 7 Paige, 47. 
 
 Where a receiver was appointed in 
 a case in which a large number of im- 
 portant interests were held by various 
 parties, — held, that as he became 
 vested with the title of all the prop- 
 erty involved in the suit, by virtue of
 
 RECEIVER'S TITLE. 
 
 149 
 
 jurisdiction of course by its decree to divest the title of the debtor 
 and vest the same in a purchaser under the decretal sale. In 
 New York the rule is that a receiver of an insolvent person or 
 corporation takes title without a formal conveyance. This how- 
 ever is by reason of the statute.' In a proceeding to dissolve a 
 partnership the receiver takes the equitable title without an as- 
 signment.'' 
 
 § 67. Extent of. . 
 
 The general rule is well established that a receiver takes the 
 title of the corporation or individual whose receiver he is and that 
 any defense which would have been good against the individual 
 or corporation may be asserted against the receiver.' But to this 
 rule there is a well recognized exception which permits a receiver 
 of an insolvent individual or corporation in the interest of cred- 
 itors to disaffirm dealings of the debtor in fraud of their rights," 
 but as we have seen elsewhere this rule is dependent upon stat- 
 utory powers and not upon the inherent equity powers of the 
 court.' Under the Michigan voluntary assignment law the re- 
 ceiver gets no better title than the assignee had.' In general the 
 
 the decree appointing him, he was en- 
 titled to the carriage of the decree into 
 the master's office to compel the deliv- 
 ery of the property to him and that he 
 was responsible for the exercise of his 
 best judgment and good faith to all 
 parties interested and was not to be 
 controlled by any of the parties. 
 
 Iddings v. Bruen, 4 Sandf. Ch. 417; 
 Moore v. Duffy, 74 Hun, 78. 
 
 A license to manufacture or sell a 
 patented improvement, containing no 
 words indicating an intention that it 
 is lassignable, is purely personal, and 
 will not pass to a receiver appointed 
 in proceedings supplementary to exe- 
 cution on the property of the licensee. 
 
 Waterman v. Shipman, 55 Fed. 
 Rep. 982, 64 Pat. Off. Gaz. 713. 
 
 A receiver took property claimed by 
 a stranger, upon which the claimant, 
 to relieve the property, paid a sum of 
 money into court, to abide the further 
 order of the court. Held, that an or- 
 
 der authorizing a suit at law, to try 
 the right to the property, without 
 making any provision for the disposi- 
 tion of the money, was irregular. 
 
 Parker v. Browning, 8 Paige, 388. 
 
 ^Atty. Gen. v. Atlantic Mut. L. Ins. 
 Co. 100 N. Y. 279. 
 
 ^Tillinghast'v. Ghamplin, 4 R. I. 173. 
 
 ^Republic L. Ins. Co. v. Sioigert, 135 
 111. 150, 12 L. R. A. 338; Hyde v. 
 Lynde, 4 N. Y. 387; Uiggins v. Gil- 
 lesheiner, 26 N. .J. Eq. 308. 
 
 '^Pittsburg Carbon Co. v. McMillin, 
 119 N. Y. 46, 7 L. R. A. 46; Gillet v. 
 Moody, 3 N. Y. 479 ; Porter v. Williams, 
 9 N. Y. 142; Curtis v. Leavitt, 15 N. 
 Y. 108. 
 
 ''Chapter on Corporations. 
 
 ^Wisconsin Marine & F. Ins. Co. 
 Bank v. Manistee Salt <£• L. Co. 77 
 Mich. 76; Farrington v. Sexton, 43 
 Mich. 454; Lentz v. Flint & P. M. R. 
 Co. 53 I\Iich. 444; Bylea v. Kellogg, 67 
 Mich. 312.
 
 150 RECEIVERSHIPS. 
 
 rights and powers of the person or corporation over whose prop- 
 erty the receivership extends, measures tlie rights and powers of 
 the receiver in his relation to third parties, and all causes of ac- 
 tion, or defenses, existing in favor of the former are available to 
 the latter. 
 
 § 68. Subject to all liens. 
 
 A receiver appointed under the provisions of section 7, Act of 
 1869 (Stat, of N. Y.) "of all the assets and credits of an insolvent 
 insurance company" is entitled to a surplus arising from a fore- 
 closure of a real estate mortgage, and even if there is no formal 
 conveyance of the land to the receiver.' And so after the sale of 
 property under a chattel mortgage, the receiver is entitled to any 
 surplus arising on such sale, as against the mortgagor, and also as 
 against a judgment creditor who obtained judgment and levied 
 on the property three days prior to the appointment of the re- 
 ceiver." Where it appeared that certain funds were pledged to a 
 person as security for liabilities incurred by him, and prior to re- 
 ducing such funds to his possession the pledgor died, but subse- 
 quently the pledgee did reduce them to his possession, the court 
 refused to order the pledgee to turn over the funds to the receiver, 
 there appearing to be no danger of loss and the liability of the 
 pledgee as indorser still remaining.' And so where a note is 
 given to a company for a particular purpose, a receiver of such 
 company stands in no better position than the company and can 
 treat such note only as the company could have done." And 
 
 ^Atty. Gen. v. Atlantic Mut. L. Ins. pealed from (32 N. Y. S. R. 890), that 
 
 Co 100 N. Y. 279. the mortgagor had no interest in the 
 
 *Leadbetter v. Leadbetter, 125 N. Y. surplus, as against the receiver, after 
 
 290. The principle upon which this default in the payment of the mort- 
 
 case is based is that the mortgagor, 
 
 having made default in the payment '^Brady v. FuHow, 22 Ga. 613. 
 
 of the mortgage had no interest re- *BeU v. Shibley, 33 Barb. 610, and 
 
 maining in the property liable to the authorities cited. The receiver of a 
 
 lien of an execution {Hull v. Carnley, corporation has the same right which 
 
 11 N. Y. 502; Hall v. Sampson, 35 N. it had to perfect title to property in its 
 
 Y. 274; Oalen v. Brown, 22 N. Y. 37; possession under a contract with the 
 
 Manchester v. Tibbetts, 121 N. Y. 223), vendor that title should not pass to it 
 
 and it was determined in the lower until the property was paid for. Moore 
 
 court, in the same case, and not ap- v. Mercer Wire Co. (N. J.) 15 All. 305.
 
 RECEIVER S TITLE. 
 
 151 
 
 generally the receiver takes the property of the debtor subject to 
 all liens attaching thereto at the time of the appointment,' and 
 all equitable defenses and set-offs.' 
 
 ^Kneeland v. American Loan & T. 
 Co. 136 U. 8. 89, 34 L. ed. 379; Becker 
 V. Torrance, 31 N. Y. 631; Scott v. 
 Armstrong, 146 U. S. 499, 36 L. ed. 
 1059; Davenport v. Kelly, 42 N. Y. 
 193; Oere v. Dibbs, 17 How. Pr. 31; 
 VanAlstyne v. Cook, 25 N. Y. 489. 
 
 ^ Adams v. Spokane Drug Co. 57 Fed. 
 Rep. 889 ; Bell v. Hanover Kat. Bank, 
 57 Fed. Rep. 822. A receiver occu- 
 pies tlie position of the debtor so far 
 as the proceeds of the fund or prop- 
 erty are concerned. Crine v. Davis, 
 68 Ga. 138.
 
 CHAPTER YI. 
 
 SUITS BY RECEIVERS— DEFENSES TO. 
 
 § 69. Authorityof the court necessary. 
 Exceptions. 
 
 (a) Where decree authorizes suit. 
 
 (b) Where receivership is of part- 
 
 nership debts. 
 
 (c) Where debt is due the re- 
 
 ceiver officially. § 73. 
 
 (d) Where suit is in the court 
 
 appointing. 
 
 (e) Where waste is being com- 
 
 mitted. 
 
 (f) Where the statute authorizes 
 
 suit. 
 
 (g) Leave is in the discretion of 
 
 the court. 
 § 70. Receiver's right to sue limited. 
 
 (a) Except when by statute he 
 
 represents creditors. § 74. 
 
 (b) Except where the act com- 
 
 plained of is ultra vires. § 75. 
 
 (c) Except in supplementary pro- 
 
 ceedings. § 76. 
 
 § 71. Receiver's authority must be 
 
 shown. § 77. 
 
 (a) That his principal had a 
 
 valid cause of action. | 78. 
 
 (b) The time and mode of ap- 
 
 pointment. § 79. 
 
 (c) His qualification by giving § 80. 
 
 bond when required. 
 
 (d) Permission to sue. § 81. 
 § 72. Receiver's power to sue in his 
 
 own name. 
 
 (a) Must be so empowered by 
 
 court. 
 
 (b) Authorized by statute. 
 
 (c) When not so authorized 
 
 must sue in name of prin- 
 cipal. 
 Power of receiver to sue in for- 
 eign jurisdiction. 
 
 (a) (Jrenerally. 
 
 (b) Early English doctrine. 
 
 (c) Later English doctrine. 
 
 (d) Earlj' doctrine in United 
 
 States. 
 
 (e) Later doctrine in United 
 
 States. 
 
 (f) Present doctrine in United 
 
 States. 
 
 Power to sue in foreign juris- 
 diction as to realty. 
 
 Power of receiver to sue in mat- 
 ters of fraud, trusts, etc. 
 
 Suits against officers of corpo- 
 rations. 
 
 Suits against stockholders on 
 unpaid subscriptions. 
 
 Suits against stockholders on 
 statutory liability. 
 
 Suits to invalidate liens. 
 
 Suits on debtor's bond, replevin, 
 distraint, etc. 
 
 Defenses to actions brought by 
 receivers — set-oflf. 
 
 § 69. Authority of the court necessary. 
 
 The primary purpose in procuring the appointment cf a re- 
 ceiver being the custody and preservation of the tangible prop- 
 erty in the possession of the defendant at the date of the 
 appointment, it has been deemed not only expedient, but an 
 essential prerequisite that the receiver shall have the sanction and
 
 SUITS BY RECEIVERS-DEFENSES TO. 153 
 
 order of the court, whose ministerial officer he is, before institut- 
 ing suits concerning the property over which he is appointed, or 
 for the collection of the assets belonging to the estate. As an 
 officer of the court tlie receiver occupies a position of disinterest- 
 edness, so far as the parties are concerned, and he is also held to 
 a strict accountability for every act that he does in his official 
 capacity, so that ordinary prudence would suggest that he should 
 not involve the estate in what may be expensive litigation witli- 
 out leave of court. Besides, as we have already seen, the discre- 
 tionary powers of the receiver are exceedingly limited, and 
 however able and competent the receiver may be, he is, with few 
 exceptions, purely a ministerial officer, and in all cases will 
 be slow to encroach upon the functions belonging exclusively to 
 the court. So careful were the earlier English courts, in guard- 
 ing the rights and interests of all parties, it was not deemed 
 expedient that the receiver should make application to the court 
 for leave to originate legal proceedings,' or at least without the 
 plaintiff's concurrence." It may be stated as a general rule, and 
 to which there are but few exceptions originating in the increased 
 powers of statutory receivers, that as a condition precedent to the 
 receiver instituting any suit or proceeding he must have the con- 
 sent and authority of the court either general or special,' 
 
 ^Ireland v. Eade. 7 Beav. 55; Clark Winter, 1 Johns. Ch. 60; Wymi v. Lord 
 
 V. Fisher, Sausse & S. 684; Parker v. NewhorougJi, 3 Bro. C. C. 88; Ward v. 
 
 Dunn, 8 Beav. 497. Swift, 6 Hare, 312; Conyers v. CroMe, 
 
 ^CollagJian v. Reardon. Sausse & S. 6 Ir. Eq. 657; Anon. 6 Ves. Jr. 287; 
 
 682. Swaby v. Dickon, 5 Sim. 629; Melendy 
 
 ^Davis V. Ladoga Creamery Co. 128 v. Barbour, 78 Va. 544; Reed v. Axtell, 
 Ind. 222; Keen v. Breckenridge, 96 84 Va. 231; Re Christian Jensen Co. 
 Ind. 69; Elkhart CarWorks Co. v. El- 128 N. Y. 550 (40 N. Y. S. R. 621); 
 Us, 113 Ind. 215; Oarver v. Kent, 70 Pendleton v. Russell, 144 U. S. 640, 36 
 Ind. 428; Moriarty v. Kent, 71 Ind. L. ed. 574; Barton v. Barbour, 104 U. 
 601 ; Barren v. Kent, 71 Ind. 602; S. 126, 26 L. ed. 672. But see Til- 
 Manlovew. Burger, ZS Ind. 2\\; Her- lingJiast v. Charnplin, 4 R. I. 173; 
 ron V. Vance, 17 Ind, 595; Battle v, Thomas v. Torrance, 1 Chamb. Ch, 
 Davis, 66 N. C.252. But see Gray v. (Ont.) 9; Brien v. Paxil, 7 Tenn. Ch. 
 Lewis, 94 N, C. 392 (statutory proceed- 357; King v. Cuits, 24 Wis. 627; Lath- 
 ing). Davis V. Snead, 33 Gratl. 705; rop v. linapp, 37 Wis. 307; IMme v, 
 Screvess v. Clark, 48 Ga. 41; mil v. Littlejohn, 12 La. Ann. 298; Uarland 
 Western & A. R. Co. 80 Ga. 284; Mer- v. Banker's & M. Teleg. Co. 32 Fed. 
 ritt V. Merritt, 16 Wend. 405, affirm- Rep. 305; Wayne Pike Co. v. State, 
 ing /eeil/€rn«, 5 Paige, 125; Greeny. 134 Ind. 672; Glenn v. Bussey, 5
 
 154 
 
 RECEIVERSHIPS, 
 
 Under the Act of Congress of June 3, 1804, it was held that a 
 receiver, appointed by the comptroller of the currency, and where 
 the language of the statute provided that the receiver "may if 
 necessary to pay the debts of such association enforce the indi- 
 vidual liability of the stockholders," must have the consent of the 
 
 Mackey, 233 (assignee); Martin v. 
 Davis, 31 Iowa, 538; Bentlcyv. Shrieve, 
 4 Md. Ch. 412; Dugger v. Collins, 69 
 Ala. 324. 
 
 In England it has been held that a 
 receiver has the right to distrain for 
 rent due without applying to the 
 court for an order to sue, unless the 
 right to the rent is in dispute. Pitt v. 
 Snowden, 3 Atk. 750. And especially 
 so if the tenant has attorned to the re- 
 ceiver. Baincock v. Simpson, Dick. 
 120, note; Jollp v. Arbuthnot, 4 DeG. 
 & J. 224. 
 
 He must not only show leave of 
 court but he must also show the equity 
 of the party whose rights under the 
 order of court appointing him he rep- 
 resents, to maintain the action which 
 he attempts to prosecute. A receiver 
 in general is not clothed with any 
 right to maintain an action which the 
 parties or the estate which he repre- 
 sents could not maintain. Coope v. 
 Bowles, 28 How. Pr. 10. 
 
 In Tiliinghast v. Champlin, supra, 
 the court say: "According to what 
 is understood to have been the old 
 English practice and at all events the 
 most convenient practice, and that 
 generally adopted in this country he 
 may, in order to enable him to per- 
 form his trust suo motu, and without 
 special leave (which he must accord- 
 ing to the present inconvenient prac- 
 tice in England obtain from the court 
 appointing him) bring suits to possess 
 himself of the estate to which he is offi- 
 cially entitled,incurring no risk except 
 as to costs." This case is based upon 
 Green v. Bostwick, 1 Sandf. Ch. 186; 
 Iddings v. Bruen, 4 Sandf. Ch. 424, 
 
 but they do not sustain the doctrine 
 announced. 
 
 In Weill V. First Nat. Bank, 106 N. 
 C. 1, in a supplementary proceeding, 
 the court made an order that the re- 
 ceiver should take charge and custody 
 of all property, choses in action and 
 thingsof value of the defendants, with 
 all the rights, powers and privileges 
 of a receiver under the law. The 
 court say: "While the court may ex- 
 ercise very great control over the re- 
 ceiver and may direct, in appropriate 
 cases, that he shall or shall not do 
 particular things, yet, ordinarily, 
 where he is invested with full power 
 as receiver, he will have authority to 
 bring appropriate necessary actions 
 without special leave or direction of 
 the court." 
 
 In Everett v. State, McKaig, 28 Md. 
 190, where an appeal was allowed 
 from an order appointing receivers, 
 and the appeal was not sustained, it 
 was held that it was the duty of the 
 receivers to institute action on the 
 bond immediately upon the affirmance 
 of the order appointing them, and no 
 order directing them to do so was re- 
 quired. 
 
 In Helme v. Littlejohn, 12 La. Ann. 
 298, where a receiver was appointed 
 to collect partnership assets, the order 
 was held to be sufficient authority to 
 bring suit against a debtor of the part- 
 nership. 
 
 Where the statute gives the receiver 
 authority to sue, special leave is not 
 required. Hayes v. Brotzman, 46 Mo. 
 519; Baker V. Cooper, 57 Me. 388; Man- 
 love V. Burger, 38 Ind. 211.
 
 SUITS BY RECEIVERS— DEFENSES TO. 155 
 
 comptroller, and this must be distinctly averred, and, if put in 
 issue, proved/ 
 
 (a) Where bj the decree it is provided that an administra- 
 tor shall pav a certain sum to a receiver, and that an execution 
 issue therefor, and that in default the receiver enforce the decree 
 against the executor and sureties, the receiver is authorized to 
 sue;^ (b) and where the decree appoints a receiver to collect part- 
 nership debts it is sufficient;' and where the judgment or decree 
 does not expressly authorize the receiver to sue, he may be 
 authorized by a subsequent order;* and it seems that such order 
 may be granted without notice/ (c) No authority to sue is re- 
 quired where the debt is due to the receiver in his official capacity/ 
 (d) Where the receiver prosecutes his suit in the court of his 
 appointment and with its sanction, an express order is not required 
 to be produced;' or (e) where waste is being committed/ (f) 
 Where by virtue of a statute, under the provisions of which 
 the receiver is appointed, the receiver is authorized to sue, no 
 leave of court is required, and none need be shown;' (g) The 
 leave is to be exercised in the sound judicial discretion of the 
 court, or chancellor, and will not be granted where the pro- 
 ceedings probably would be oppressive to those interested in 
 
 ^Kennedy v. Gibson, 75 U. S. 498, 19 waiting for an order for that purpose. 
 
 L. ed. 476; Smith v. Manufacturer's Nangle v. Fingall, 1 Hog. 142. Waste 
 
 Nat. Bank, 9 Bank. Reg. 128; Strong however may be restrained by an or- 
 
 V. SoutJmortJi, 8 Ben. 832; Re Manu- der of court without a bill for that 
 
 facturer's Nat. Bank, 5 Biss. 506; Bly purpose. Cronin v. McCarthy, Flan. 
 
 V. United States, 4 Dill. 464; Harvey v. «fe K. 49. 
 
 Lord, 10 Fed. Rep. 237; Bowden v. ^Hayes v. Brotzman, 46 Md. 519; 
 
 Morris,! Hughes, dSO; Welles V. Grates, Wilkiiison v. Butherford, 49 N. J. L. 
 
 41 Fed. Rep. 464; Welles v. Stout, 38 241. And when the statute provides 
 
 Fed. Rep, 68. that the court may make all "needful" 
 
 '^Elliott V. Trahern, 35 W. Va. 634. orders, the court may under this gen- 
 
 2.ffe?TOev. izMe/o/m, 12La. Ann.298. eral power authorize the receiver to 
 
 *Lathrop v. Knapp, 37 Wis. 307. sue. Gill v. Balis, 72 Mo. 424. 
 
 ^Hill V. Western & A. B. Co. 86 Ga. A receiver appointed by a state 
 
 284. court cannot defend an action in a 
 
 ^Ex parte Harris, Re Lewis, 45 L. J. federal court without the express au- 
 
 Bkr. 71; Armstrong v. Armstrong, L. thority of the court whose officer he 
 
 R. 12 Eq. 614. is, so as to bind any property or effects 
 
 ''Cox V. Volkert, 86 Mo. 505. in his hands as receiver. Pendleton v. 
 
 8If waste is being committed and Russell, 144 U. S. 640, 36 L. ed. 574; 
 
 the case is pressing, a receiver may Reynolds v. Stockton, 140 U. S. 254, 35 
 
 file a bill for an injunction without L. ed. 464.
 
 156 RECEIVERSPIIPS. 
 
 the proceedings, or where it is unlikely that advantage -wonld be 
 derived from the suit ; ' but as a rule permission to sue will be 
 granted unless it is clear that there is no foundation for the suit ; ' 
 and though a receiver may have power to collect a judgment it 
 does not follow that an action thereon should be instituted by 
 him, no sufficient reason being shown why the real parties in 
 interest cannot sue.' 
 
 § 70. Receiver's right to sue limited. 
 
 As a rule the power of the receiver to sue is limited to the 
 rights of the person or corporation over whose property he is 
 receiver, and has no power or authority beyond what such person 
 or corporation could have exercised had the receivership not been 
 granted, for, as we have seen, the appointment does not change 
 the relation of the parties or increase or diminish the rights of 
 any of them.* To this rule there are the following exceptions : 
 (a) Where the receiver by force of some statute is made the rep- 
 resentative of the creditors; (b) Where the act complained of 
 and which is sought to be avoided by the receiver is ultra vires 
 and not binding on the corporation ; (c) Where the receiver is 
 appointed in a proceeding carried on by creditors, usually supple- 
 mentary to execution, in which the receiver is the representative 
 
 • Dacie v. John, McClel. 575. -where there has been no enlargement 
 » Lane v. Capsey [1891], 3 Ch. 411. of their powers by legislative enact- 
 This was a proceeding against the re- ment, that they have such rights of 
 ceiver, but the principle is the same. action only as were possessed by the 
 8 Murrell v. McAllister, 79 Ky. 311. persons or corporations upon whose 
 *Wallacev. Milligan, WO In^. 4SiS; estate they administer." . . . "A 
 La Follett v. Aiken, 36 Ind. 1 ; Cas- receiver mrtute officii, and without re- 
 serly v. Witherbee, 119 N. Y. 522; gard to any expansion of his powers 
 Republic L. Ins. Co. v.Sicigert, 135 111. by statute, or by an authorized decree 
 150, 13 L. R. A. 328. In this case, of court, is only a custodian of prop- 
 Mr. Justice Baker, speaking for the erty. He is ordinarily, in respect to 
 majority of the court, says: "We do his title and in regard to the litiga- 
 not wish to be understood as saying tions in which he may engage, merely 
 that there is no conflict in the authori- the representative of the owners of 
 ties in regard to the matter under con- the property submitted to his control." 
 Bideration; but we think the decided See Billings v. Robinson, 94 N. Y.415j 
 weight of authority sustains the rule Coope v. Bowles, 42 Barb. 87. 
 in respect to the powers of receivers,
 
 SUITS BY RECEIVERS— DEFENSES TO. 
 
 157 
 
 of the creditors alone and for the securing of whose claims he is 
 appointed.* 
 
 * Beptiblic L. Ins. Co. v. Swigert, 135 
 111. 150, 12 L. R. A. 328; Hi/de v. 
 Lynde, 4 N. Y. 387. And see Porter 
 V. Williams, 9 N. Y. 142; Curtis v. 
 Leavitt, 15 N. Y. 44; Alexander v. 
 Relfe, 74 Mo. 495; Farnsworth v. 
 Wood, 91 N. Y. 308; Coope v. Bowles, 
 42 Barb. 87; PiscaJiaqua F. & M. Ins. 
 Co. V. Hill, 60 Me. 178; WaterJiouse v . 
 Jamieson, 2 Pat. H. L. (Sc.) 1812; Be 
 Duckworth, L. R. 2 Ch. App. Cas. 
 577; Leif child's Case, L. R. 1 Eq. 231. 
 In the following cases the receiver 
 was held to represent creditors as well 
 as the company: Upton v. Tribilcock, 
 91 U. S. 45, 23 L. ed. 203; Sawyer v. 
 Eoag, 84 U. S. 610, 21 L. ed. 731; 
 Covington Draiobridge Co. v. ShepJiei'd, 
 62 U. S. 21 How. 112, 16 L. ed. 38; 
 Stokes V. New Jersey Pottery Co. 46 
 N. J. L. 237; National Trust Co. v. 
 Miller, 33 N. J. Eq. 155; Poicers v. 
 Hamilton Paper Co. 60 Wis. 23; Alex- 
 ander V. Relfe, 74 Mo. 495; Atty. Oen. 
 V. Ouardian. Mut. L. Ins. Co. 77 N.Y. 
 272; Whittlesey v. Delaney, 73 N. Y. 
 571; Bane v. Toung, 61 Me. 160; 
 Eyton V. Denbigh, R. & C. R. Co. 
 L. R. 6 Eq. 488. But most of these 
 cases, so far as they relate to the re- 
 ceiver's power to sue, are based upon 
 statutes. 
 
 A receiver of a corporation has a 
 right to redeem from a foreclosure 
 sale of its property in the same man- 
 ner as the corporation would have 
 had, if no receiver had been ap- 
 pointed. Casserly v. Witherbee, 119 
 N. Y. 522. In supplementary pro- 
 ceedings see: Porter v. Williains, 9 
 N. Y. 142; Osborne v. Moss, 7 John. 
 IGl; Jackson v. Oarnsey, 10. John. 184; 
 Jackson v. Cadwell, 1 Cow. 022; Leach 
 V. Kelsey, 7 Barb. 466: Jewett v. Pal- 
 mer, 7 John. Ch. 65; Padgett v. Law- 
 
 rence, 10 Paige, 170; De Mott v. Star- 
 key, 3 Barb. Ch. 403. In fraudulent 
 or illegal acts of corporations see: 
 Oillett V. Moody, 3 N. Y. 479; Leavitt 
 V. Palmer, 3 N. Y. 19; Brouwer v. 
 Hill, 1 Sandf. 629; Hyde v. Lynde, 4 
 N. Y. 392. In Whittlesey v. Delaney, 
 73 N. Y. 571, suit was brought by a 
 receiver to set aside and vacate a 
 judgment recovered against the party 
 for whom he was appointed receiver 
 on the ground that it was without 
 consideration and was obtained by 
 collusion in fraud of the rights of 
 creditors. It was held that the action 
 was properly brought in the name of 
 and by the receiver as the representa- 
 tive, as well of creditors as the debtor. 
 And that it was his duty in behalf of 
 the creditors to resist the judgment 
 and assert the rights of creditors 
 against the fraudulent or illegal acts 
 of the corporation by which their 
 rights were affected. Gillet v. Moody, 
 3 N. Y. 479; Bate v. Graham, 11 
 N. Y. 237; Talmage v. Pell, 7 N. Y. 
 328; Hackley v. Draper, 60 N. Y. 88; 
 Tracy v. First Nat. Bank, 37 N. Y. 
 523. He would have no standing in 
 a court in a case to which he was not 
 a party. 
 
 The court say in Atty. Oen. v. 
 Ouardian Mut. L. Ins. Co. 11 N. Y. 
 272: " It is the settled doctrine that 
 the receiver of an insolvent corpora- 
 tion represents not only the corpora- 
 tion but also creditors and stockhold- 
 ers, and that in his character as trus- 
 tee for the latter he may disaftirm and 
 maintain an action as receiver to set 
 aside illegal or fraudulent transfers 
 of the property of the corporation 
 made by its agents or ollicers, or to 
 recover its funds or securities invested 
 or misapplied.
 
 158 
 
 RECEIVERSHIPS. 
 
 In an action supplementary to execution the receiver is not in 
 a position as representing tlie debtor to impeach a completed sale 
 of the debtor on the ground that it is fraudulent as to creditors, 
 and as a representative of the judgment creditors he can only 
 impeach such sale by an action instituted by him for such pur- 
 pose.' A receiver has no right to interfere with a suit pending 
 at the time of his appointment, without an order of court so 
 directing him,' but the court may, on a summary application, 
 direct the suit to be continued in the name of the receiver, or in 
 the name of the corporation, on its giving security for costs/ 
 
 § 71. Receiver's authority must be shown. 
 
 Inasmuch as the receiver is the representative of the person or 
 corporation whose estate he is to administer, and, as a rule, has no 
 powers or rights beyond his princij^al, it follows (a) that in order 
 to recover he must allege and show a right of action on the part 
 of such person or corporation,* and in addition he must allege and 
 
 ' Brown v. Oilmore, 16 How. Pr. 
 527. 
 
 2 Gadsden v. Whaley, 14 S. C. 210; 
 Tracy v. First Nat. Bank, 37 N. Y, 
 523. 
 
 3 Talmage v. Pell, 9 Paige, 410. 
 *Manlove v. Burger, 38 Ind. 211; 
 
 Manlove v. Naylor, 38 Ind. 424; Bil- 
 lings V. Robinson, 94 N. Y. 415. 
 
 To enable the receiver of a bank to 
 maintain in behalf of its claimants an 
 action against the stockholders for 
 contribution, in which losses by offi- 
 cial mismanagement are alleged as a 
 specific ground for enforcing such 
 liability, it must appear from a judi- 
 cial determination that there has been 
 a loss thus occasioned in the capital 
 stock and that the directors are unable 
 to make good the loss. Hewett v. 
 Adams, 50 Me. 271. 
 
 In order for the receiver to recover 
 an assessment upon a premium insur- 
 ance note he must show the time cov- 
 ered by the policy for which the note 
 was given, and that the losses for 
 
 which the assessment was made oc- 
 curred during the existence of the 
 policy. Embree v. Shideler, 36 Ind. 
 423. In making the assessment the 
 receiver's authority depends not upon 
 the order of court but upon the exist- 
 ence of the facts rendering an assess- 
 ment necessary. The promise of the 
 assured is to pay upon certain condi- 
 tions and the existence of those con- 
 ditions must be shown by the party 
 seeking to enforce the contract. Id. 
 Where there is no averment in the 
 complaint, and therefore no founda- 
 tion laid for the introduction of evi- 
 dence of the liabilities of the company 
 and there was no proof of the exist- 
 ence of any liabilities for the payment 
 of which an assessment was necessary, 
 the plaintiff cannot recover. Id. 
 Thomas v. Whallon, 31 Barb. 172; 
 Savage v. Medbury, 19 N. Y, 32. The 
 complaint must show a right of ac- 
 tion in the receiver. Garver v. Kent, 
 70 Ind. 428; Manlove v. Naw, 39 Ind. 
 289.
 
 SUITS BY RECEIVERS— DEFENSES TO. 
 
 159 
 
 ehow (b) the time and mode of liis appointment ;' and (c) that he 
 has tiled the bond required by the order of appointment, where 
 it is made a condition precedent to liis taking possession that he 
 shall give bond. Mere irregularity in giving bond will not invali- 
 date the proceedings, however ; it is only where there is no at- 
 tempt to give bond, or absence of proof on that subject.^ A de- 
 cree of court appointing a receiver to collect partnership debts is 
 of itself sufficient authority to authorize a suit by the receiver 
 against a debtor of the partnership, and in such case a certified 
 copy of the entry of appointment is all that is required.' It must 
 be alleged (d) that the receiver had leave of court to bring suit.* 
 
 ^Dayton v. Connah, 18 How. Pr. 
 326. It is not sufficient to allege "hav- 
 ing been duly appointed receiver of," 
 etc., and " bringing this suit by order 
 of the supreme court; " it is not neces- 
 sary, however, to set out the grounds 
 on which the appointment was based. 
 Hottenstein v. Conrad, 9 Kan. 435. 
 See also Gillet v. FaircMld, 4 Denio, 
 80; Bangs v. Mcintosh, 23 Barb. 596; 
 Hdbart v. Frost, 5 Duer, 672; Hulhert 
 V. Toung, 13 How. Pr. 413; White v. 
 Joy, 13 N. Y. 83; White v. Low, 7 
 Barb. 204. It will not answer for a re- 
 ceiver merely to describe himself as 
 receiver, or aver that he was duly 
 appointed. 
 
 ^Heyewisch v. Silver, 50 N. Y. S. R. 
 448; Re Christian Jensen Co. 128 N. 
 Y. 550: Wilson v. Welch, 157 Mass. 77. 
 
 ^Helme v. Littlejohn, 12 La. Ann. 
 298. A transcript of the proceedings 
 is not necessary. A certified copy of 
 the entry of appointment established 
 prima facie proof that the court had 
 the proper parties before it at the time 
 of the appointment. 
 
 * Davis V. Ladoga Creamery Co. 128 
 Ind. 222; Keen v. Brecke?iridge,9G Ind. 
 69, 602; Moriartyv. Kent, 71 Ind. 601; 
 Qarver v. K^ent, 70 Ind. 428; Uarrell 
 V. Kent, 71 Ind. 602; Ilerron v. Vance, 
 17 Ind. 595; Coope v. Bowles, 28 How. 
 Pr. 10; Wynn v. Loi'd Newhorough, 3 
 
 Bro. C. C. 88; Qreen v. Winter, 1 
 .Tohns. Ch. 60; Ward v. Sioift, 6 Hare, 
 312; Re Merritt, 5 Paige, 125; Merritt 
 v. Merritt, 16 Wend. 405; Davis v. 
 Snead, 33 Gratt. 705; Screven v. Clark, 
 48 Ga. 41; Swaby v. Dickon, 5 Sim. 
 629; Battle v. Davis, 66 N. C. 252. 
 See as to general authority, Rockwell 
 V. Merwin, 8 Abb. Pr. N. S. 330. 
 
 Where the authority of the plaintiff 
 to sue as receiver, in his own name, is 
 denied, it is incumbent on him to 
 show a valid appointment, by order 
 of the court, vesting in him the title 
 to the choses in action of the firm 
 whose assets he is attempting to col- 
 lect; an order "that A do collect any 
 insurance money due to the firm of B 
 as well as all notes, accounts, and 
 choses in action due to said firm; and 
 also that he sell all property belong- 
 ing to the firm, except the real estate, 
 and that he keep and hold the entire 
 proceeds from said sources until the 
 future order of court; and by like 
 consent it is ordered that the question 
 of the continuance of the temporary 
 injunction and the appointment of a 
 receiver be continued without preju- 
 dice to the ne.xt term," does not vest 
 in A the legal title to the assets; he is 
 not a receiver nor a real party in in- 
 terest, and cannot maintain an action 
 in his own name. Boyd v. Royal Ins.
 
 160 
 
 RECEIVERSHIPS. 
 
 "Where an action is pending at tlie time of the appointment of 
 a receiver, lie may continue sucli action in the name of the corpo- 
 ration which instituted the suit/ but he has no right to interfere 
 in an action until he is made a party to the suit by order of court, 
 ■or by an order directing him to continue in the name of the orig- 
 inal party. 
 
 I 72. Receiver's power to sue in his own name. 
 
 A receiver appointed by a court of chancery, in the absence of 
 statutory power, and in the absence of an assigmnent by the legal 
 owner to the receiver pursuant to the order of court, or other con- 
 veyance of the legal title to the fund or property cannot in his 
 own name maintain a suit in another jurisdiction to recover the 
 receivership property or debts, even when so authorized by the 
 ■decree of appointment,' The power of the receiver to sue in his 
 
 €o. Ill N. C. 372; Battle v. Davis, 66 
 N. C. 253; Oray v. Lewis, 94 N. C. 
 596; Wynne v. Heck, 92 N. C. 414; 
 Ahrams v. Cureton, 74 N. C. 523. 
 
 Where a statute provided that "the 
 receiver has, under the control of the 
 oourt, power to bring and defend ac- 
 tions, to take and keep possession of 
 the property," etc., and the power to 
 ;appoint a receiver is given "when 
 there is property or a fund, the right 
 to which is involved in the action," 
 the receiver has no right even under 
 the order of the court to bring an ac- 
 tion involving title to real estate 
 against third parties, or to submit a 
 -controversy concerning title to real 
 estate with third parties, and thus 
 bind the real parties in interest with- 
 out their consent. He can only bind 
 the interests of such parties by join- 
 ing them with him. Caldwell v. Mc- 
 Whorter, 84 Ky. 130. The point does 
 not seem to have been raised in this 
 case, but it would seem to be an ex- 
 ceedingly doubtful proceeding in any 
 •case for a receiver to undertake to 
 litigate in a court of chancery the title 
 ■oi third parties to real estate, in the 
 
 absence of express statutory power 
 authorizing him so to do, and especi- 
 ally so where he is not in the actual 
 possession of the property about 
 which the title is in controversy. 
 Except in statutory cases a court of 
 chancery is not the proper forum to 
 adjudicate upon legal titles. 
 
 ^Albany City Ins. Co. v. Van Vran- 
 ken, 42 How. Pr. 281; Phanix Ware- 
 housing Co. V. Badger, 67 N. Y. 294; 
 Tracy v. First Nat. Bank, 37 N. Y. 
 523. Otherwise he is a stranger to 
 the proceedings and has no right to 
 be heard therein. Be Oriswold, 13 
 Barb. 412; Ketchum v. Ketchum, 1 
 Abb. Pr. N. S. 157; Isham v. Ketchum, 
 46 Barb. 43; Thacher v. Bancroft, 15 
 Abb. Pr. 245. 
 
 •^Booth V. Clark,b% U.S. 17 How. 322, 
 15 L. ed. 164; Hazard v. Durant, 19 
 Fed. Rep. 471, McGuin v. Fretts, 
 
 13 Ont. Rep. 699; Stuart v. Orough, 
 
 14 Ont. Rep. 255; Bade v. Jo7m, 
 McClel. 575; Dickey v. McCaul, 14 
 Ont. App. 166; Alexander v. Relfe, 
 9 Mo. App. 133 (reversed in 74 Mo. 
 495, upon the application of the stat- 
 ute touching the right of the receiver
 
 SUITS BY RECEIVERS— DEFENSES TO. 
 
 161 
 
 own name has been reco_o;nized however (a) where tlie order of 
 court so directs,' (b) or the statute so authorizes/ (c) But in the ab- 
 sence of such power he must sue in tlie name of the person or 
 corporation over whose property he is appointed/ unless he sues 
 
 to sue in his own name). Yeager v. 
 Wallace, 44 Pa. 294; Battle v. Davis, 
 66 N. C. 252; King v. CiUts, 24 Wis. 
 627; Newell v. Fiaher, 24 Miss. 342; 
 Manlove v. Burger, 38 Ind. 211; Dick 
 V. StrutJiers, 25 Fed. Rep. 103; Ken- 
 edy V. Benson, 54 Fed. Rep. 836; but 
 see contra in Wilkinson v. Rutherford, 
 49 N. J. L. 241, where a receiver was 
 permitted to sue on a negotiable bond 
 when he had been appointed receiver 
 of an insolvent savings institution. 
 The suit was maintained on the ground 
 that he was an assignee by legal in- 
 tendment. 
 
 The Supreme Court of Massachu- 
 setts in a recent case, Wilson v. Welch, 
 157 Mass. 77, says: "Although the 
 practice in this commonwealth has not 
 been uniform (see Farmers' & M. 
 Bank v. Jenks, 7 Met. 592; Boot & 
 Shoe Mfrs. Mut. F. Ins. v. Melrose Or- 
 thodox Cong. Soc. 117 Mass. 199; 
 Sohier y. Lamh, 134 Mass. 275; Par- 
 ker V. Nickerson, 137 Mass. 487), 
 we consider the law to be that a re- 
 ceiver of a corporation appointed by 
 a court of equity cannot bring suit in 
 his own name to recover property of 
 the corporation which has never been 
 in his possession unless he is author- 
 ized no to do by statute, or by the de- 
 cree of a court competent to give him 
 such authority, or unless the title to 
 the property has been conveyed to 
 him. Courts of equity cannot transfer 
 the title to property by decree unless 
 authorized by statute, although they 
 can compel the defendant to transfer 
 the title. Cf. Moriartyy. Kent, 71 Ind. 
 601; Harrell v. Kent, 71 Ind. G02; 
 Garver v. Kent, 70 Ind. 428; Justice v. 
 
 11 
 
 Kirlin, 17 Ind. 588; Harland v. Bank- 
 ers' & M. Teleg. Co. 32 Fed. Rep. 305; 
 Freeman v. Winchester, 10 Smedes & 
 M. 577; Ligersoll v. Cooper, 5 Blackf. 
 426. But see Eenning v. Raymond, 
 35 Minn. 303; Baker v. CooiJer, 57 Me. 
 388. Wray v. Jamison, 10 Humph. 
 186; St. Louis & 8. Coal & M. Co. v. 
 Sandoval Coal & M. Co. Ill 111. 32; 
 Inglehart v. Bierce, 36 111. 133. 
 
 ' There are cases which hold that 
 under proper circumstances, the court 
 appointing a receiver may authorize 
 him to bring and prosecute suits in his 
 own name. 
 
 Manlove v. Burger, 38 Ind. 211; 
 Oarver v. Kent, 70 Ind. 428; Freeman 
 v. Winchester, 10 Smedes & M. 577; 
 King v. Cutts, 24 Wis. 627; Leonard 
 V. Starrs, 31 Ala. 488; Rardioick v. 
 Hook, 8 Ga. 354. 
 
 * Or he may be authorized by statute 
 to sue in his own name, as where the 
 statute provides that the receiver shall 
 "reduce the assets of such corpora- 
 tion to possession, and pay the debts 
 thereof under the same rules pre- 
 scribed for the government of adminis- 
 trators." Manlove v. Burger, 38 Ind. 
 211. 
 
 2 But if the receiver is not author- 
 ized either by statute or in a proper 
 case by the order of court from which 
 he receives his appointment to sue in 
 his own name he cannot do so, but 
 must bring the action in the name of 
 the corporation or party in whom was 
 the right of action before the appoint- 
 ment of the receiver. Yeager v. Wal- 
 lace, 44 Pa. 294; King v. CxUts, 24 
 Wis. 627; Nexoell v. Fisher, 24 Miss. 
 392; Manlove v. Burger, 38 Ind. 211.
 
 162 
 
 RECEIVERSHIPS. 
 
 upon a contract made with himself, or upon an obhi^ation due to 
 him as receiver/ or wliere a tenant has attorned to him/ 
 
 Where a court of chancery in the order of appointment con- 
 fers power on the receiver to sue, he may do so on the principle 
 that the receiver is, by operation of law, subrogated to all the 
 rights of the real parties in interest.^ 
 
 A receiver appointed "to lease or 
 rent the premises, to take care of the 
 same, and to collect, receive and take 
 care of the said rents during the pen- 
 dency of the action," has no right to 
 bring an action in his own name 
 against a tenant for unlawful detainer. 
 King v. Cutts, 24 Wis. 627. But it is 
 otherwise if the tenant holds under 
 the receiver. Ponder y. Catierson, 127 
 Ind. 434. 
 
 A chancery receiver ordered by 
 court to collect the notes and debts 
 due to a partnership which the parties 
 themselves are enjoined from col- 
 lecting may sue in his own name. 
 Leonard v. Starrs, 31 Ala. 488. A re- 
 ceiver of a partnership cannot main- 
 tain trover in his own name against a 
 person who had converted assets of 
 the firm before his appointment; he 
 must sue in the name of the firm in 
 ■whom, was the legal right of action. 
 Teager v. Wallace, 44 Pa. 294. 
 
 At common law a receiver has no 
 power to institute suit as such to set 
 aside a fraudulent conveyance. Por- 
 ter V. Williams, 9 N. Y. 142. To au- 
 thorize a receiver to sue he must have 
 the legal title to the thing in contro- 
 versy. Newell v. Fcsher, 24 Miss. 392. 
 
 ' While the general rule is that a re- 
 ceiver in the absence of a statute or 
 an order of court cannot sue in his 
 own name this rule does not apply 
 to a case where the receiver brings 
 suit upon a contract made with him- 
 self as receiver, or upon an obligation 
 due to him as receiver. Ponder v. 
 Catterson, 127 Ind. 434; Singerly v. 
 Fox, 75 Pa. 112. 
 
 "^Babcock v. Brooks, 9 L. J. (U. C.) 
 185. Where the receiver has reduced 
 the property to possession and it is 
 thereafter stolen from him the title in 
 an indictment may be alleged to be in 
 the receiver. State v. Rivers, 60 lowa^ 
 381. 
 
 ''Hardwick v. Hook, 8 Ga. 354; Wil- 
 son V. Welch, 157 Mass. 77; Frank v. 
 Morrison, 58 Md. 423; Dorsey v. Mor- 
 rison, 48 Md. 461; Musgrarey. Morri- 
 son, 54 Md. 161; Rider v. Morrison, 
 54 Md. 429; Frank v. Morrison, 55 
 Md. 399; Garver v. Kent, 70 Ind. 428; 
 Moriarty v. Kent, 71 Ind. 601; Man- 
 Icoey. Burger, 38 Ind. 211; Eenning v. 
 Raymond, 35 Minn. 303; Leonard v. 
 Storrs, 31 Ala. 488; Frankle v. Jack- 
 son, 30 Fed. Rep. 398. But see Battle 
 V. Davis, 66 N. C. 252. 
 
 In a case where the legal title is in 
 a third person, in whose name the re- 
 ceiver is obliged to prosecute, he must 
 first obtain an order of court for that 
 purpose after notice to such person. 
 Merritt v. Merritt, 16 Weed. 405. 
 
 Where a defendant company after 
 decree appointing a receiver but before 
 the appointment is completed makes a 
 payment alleged to be fraudulent and 
 preferential the proceedings must be 
 by those who are affected by the pay- 
 ment and not by the receiver. Fox v. 
 Toronto & N. R. Co., 29 Ch. (Ont.) 11; 
 Gooderliam v. Toronto & N. R. Co. 29 
 Ch. (Ont.) 11. 
 
 If a bill is filed by a receiver for 
 the creditors and stockholders of a 
 corporation it is not necessary to make 
 the creditors and stockholders parties. 
 Mann v. Bruce, 5 N. J. Eq. 413.
 
 SUITS BY EECEIVERS— DEFENSES TO. 163 
 
 In most of the states by codes V)f procedure, or other statutory 
 provisions, and especially in insolvency proceedings, and proceed- 
 ings for winding up corporations, the receiver is specifically au- 
 thorized and empowered to sue in his own name in all proceed- 
 ings relating to the property over which his receivership extends.' 
 
 § 73. Power of receivers to sue in foreign jurisdiction. 
 
 (a) Generally. 
 The principle involved in the question as to the power of a 
 receiver to sue in a foreign jurisdiction, and to what extent he 
 will be recognized and protected in such foreign jurisdiction ha& 
 been the subject of very much discussion both in this country and 
 in England for nearly two hundred years. It first originated in 
 the discussion of the extra-territorial power of assignees in bank- 
 ruptcy, and has received the consideration of the leading great 
 jurists of both countries." The history of the discussions upon 
 this subject would form sufiicient matter for a volume, but 
 epitomized is as follows : 
 
 (b) Early English doctrine. 
 From about ITll, and for more than fifty years thereafter, the 
 law of England was to the effect that no extra-territorial force was 
 
 A receiver of a firm having power Ficlitenkamp, v. Oambs, 68 Mo. 289. 
 to receive and reduce to his possession The case of IStanton v. Wilkeson, 
 all the firm's assets and choses in action «M^ra,relates to the rights of a receiver 
 may maintain in his own name, with- of a national bank to sue the stock- 
 out joining the firm or its members, an holders of such bank in his own name 
 action on a fire policy payable to the and it is held he has such power under 
 firm. Boyd v. Boyal Ins. Co. Ill N. the provisions of U. S. Rev. Stat. 
 C. 372; Oray v. Lewis, 94 N. C. 396, § 5234; it is also held that the receiver 
 
 ^Alexander v. Relfe, 74 Mo. 495; is not required to proceed in equity 
 
 Oill V. Balis, 72 Mo. 424; Stanton v. but may bring separate actions at law 
 
 Wilkeson, 8 Ben. 357; Oi'ay v. Lewis, to recover the amount due from each 
 
 94 N. C. 392; Case v. Berwin, 22 La. stockholder. 
 
 Ann. 321; Comer v. Bray, 83 Ala. ^ Lord Kaymond, Sir Joseph Jekyl, 
 
 217; Leavitt v. Yates, 4 Edw. Ch. 134. Lord Mansfield, Lord Talbot, Lord 
 
 Where the statute authorizes the Chancellor Camden, Lord Ilardwicke, 
 
 receiver to sue in his own name in Lord Thurlow, and others in England, 
 
 certain enumerated cases, it does not and Chancellor Kent, Mr. Justice 
 
 authorize the receiver to bring suit in Story, Chief Justice Parsons, Mr. Jus- 
 
 his own name against the sureties on tice Wayne, and many others in this 
 
 the bond of his predecessor. State, country.
 
 164 RECEIVERSHIPS. 
 
 to be given to the bankrupt laws of a foreign state, and the rights 
 of an assignee or curator in bankruptcy to recognition in foreign 
 courts was not recognized. Foreign assignees were not recog- 
 nized in England and their local assignees were not supposed to 
 have any rights as against creditors seeking the collection of their 
 debts in foreign countries where some of the property of the 
 bankrupts might be located.* 
 
 (c) Later English doctrine. 
 Commencing with 1764/ and particularly with 1788' and 1789/ 
 the English courts modified the earlier doctrine of that country, 
 to the extent that assignees in bankruptcy were protected in their 
 title and possession of the bankrupt property in foreign countries, 
 and the title and possession of foreign assignees were upheld in 
 England. In either case, however, if by the laws of the foreign 
 country, the title to the property became vested in a creditor 
 through legal proceedings prior to the act of bankruptcy, then 
 such right would be respected, but where the act of bankruptcy 
 was previous to the completion of the judicial act instituted by 
 the creditor, the assignees would hold. The distinction supposed 
 to exist growing out of a vested legal title in the assignee or re- 
 ceiver by means of a formal conveyance and a mere possessory 
 right, in such assignee or receiver, was never recognized in that 
 country, his possession in either case being free from molestation 
 or interference.* The international effect to be given to transfers 
 
 'Burge, Colonial Law, vol. 3, pp. be is governed. They are subject 
 
 907-924 et seq. and cases cited. therefore to such disposition of them 
 
 ^Solomons v. Ross, 1 H. Bl. 133, as that law makes, whether it transfers 
 
 note. the property to the trustees or as- 
 
 ^ Wright v. JVuti, 1 H. Bl. 136. signees, and commits to them only the 
 
 *Folliott V. Ogden, 1 H. Bl. 123. possession and administration, but at 
 
 ^Hunter V. Potts, ^T.'R. 182; Phil- the same time prevents and avoids any 
 
 ip$ V. Hunter, 2 Tenn. 402; Sill v. alienation of them which the debtor 
 
 Worswick, 1 H. Bl. 693; Burge, Colo- might make. It would be a strange 
 
 nial Law, vol. 3, p. 914. anomaly in jurisprudence if the trans- 
 
 The later law of England is the es- fer of personalty by operation of law 
 
 tablished law of Scotland, Ireland, as in bankruptcy proceedings, in- 
 
 Holland, Spain and France, and so solvency proceedings, and the like, 
 
 far as personalty is concerned is based through the instrumentality of an as- 
 
 upon the principle that movables fol- signee or receiver under the order and 
 
 low the person of their owner, and direction of the court, should not be 
 
 are subject to the law by which as effective and valid, to all intents
 
 SUITS BY RECEIVERS— DEFENSES TO. 165 
 
 of property by operation of law throiifrli the instrumentality of 
 assignees and receivers, and the extra-territorial operation of the 
 title of such officers as established in England, and other foreign 
 countries, is based upon the broad and constantly growing system 
 of international comity, and fosters in no little degree the spirit 
 and beneficial results of international commerce. 
 
 (d) Early doctkine in United States. 
 Following the line of decisions of the earlier English courts upon 
 
 the subject the courts in the American colonies prior to the Revo- 
 lution, and many of the state and United States courts since that 
 period, established the doctrine that an assignee or receiver's title to 
 personal property extended only to such property of the debtor as 
 had a situs within the state of the assignee or receiver's appoint- 
 ment, and that beyond the state line lie had no title or right of 
 possession, or at least such as the court would enforce. As a 
 corollary of this doctrine it was held that a foreign receiver could 
 not sue or defend and had no standing in a court of foreign 
 jurisdiction.' 
 
 (e) Later doctrine in United States. 
 
 "While some of the features of the earlier doctrine are still 
 recognized and enforced in some of the American courts upon 
 the principle of stare decisis, yet the modern doctrine as to the 
 receiver's rights to sue in a foreign jurisdiction, and reduce to 
 possession the assets of his principal, or recover his c/ioses in 
 action is well established by the great weight of authority as well 
 
 and purposes, the world over, as in Crowder, 4 McCord, L. 519; Taylors. 
 
 case of succession, or voluntary trans- Geary, Kirby (Conn.) 313; Ingraliam 
 
 fer, when the owner's domicil gov- v. Oeyer, 13 Mass. 146; Fox v. Adams, 
 
 erns the transfer, and where the title 5 Me 245; Ogdcn v. Saunders, 25 U. 
 
 soconveyed is recognized and prevails S. 12 Wheat. 218, 6 L. ed. 600; Uope 
 
 wherever the property may be found. Mut. L. Ins. Co. v. Taylor, 2 Robt. 
 
 '^Greenwood v. Curtis, 6 Mass. 358; 278; Farmers & M. Ins. Co. v. Needles, 
 
 Olivier v. Townes, 2 Mart. N. S. 93; 52 Mo. 17; Brigham v. Luddington, 13 
 
 Burk V. McClain, 1 Harr. & McII. Blalchf. 237; Uamrd v. Durant, 19 
 
 236; Wallace v. Patterson, 2 Harr. & Fed. Rep. 471; Day v. Postal Teleg. 
 
 McH. 463. Milne v. Moreton, 6 Binn. Co. 66 Md. 354; Booth v. Clark, 58 U. 
 
 353; McNeil v. Colquhoon, 2 Hayw. S. 17 How. 322, 15 L. ed. 164; Ilarri- 
 
 (N. C.) 24; Milliken v. Aughinbaugh, son v. Sterry, 9 U. S. 5 Crauch. 289, 3 
 
 1 Penr & W. 117; Ihpham v. Chap- L. ed. 104; Ogden v. Saunders, 25 U. 
 
 man^ 1 Mill, Const. 283; BoUnson v. S. 12 Wheat. 359. 6 L. ed. 656.
 
 166 RECEIVERSHIPS. 
 
 as by reason, though there are still some limitations that will be 
 noticed hereafter. Courts of this country have recognized the 
 justice and cogent reasoning of the modern English courts and 
 jurists and have sought to break away from the docrine of the 
 court in Booth v. ClarJc, which, though not the earliest, yet has 
 been regarded as the leading case upon the subject, sometimes by 
 compelling the debtor to make a formal transfer of his property 
 to the receiver and thus vesting in him the absolute legal title by 
 act of the parties which is recognized and enforced in all juris- 
 dictions. Sometimes the same end has been accomplished by the 
 establishment of a species of interstate comity, by which the 
 judgment, and decrees of other states, and the rights and powers 
 of receivers thereunder have been given an extra-territorial virtue 
 and force, and the right of the receiver to sue and enforce his 
 property rights in a foreign jurisdiction recognized and respected. 
 It is believed that the modern doctrine on this subject will 
 soon become universal, and perhaps be still further extended in 
 the same direction. It would seem that there is no occasion for 
 recognizing a distinction between the rights of a receiver to pro- 
 tection from interference with his possession in whatever juris- 
 diction he may be, whether he has the absolute legal title to the 
 property of the debtor, or has a mere possessory right. In either 
 case the property is in custodia legis. Moreover, it would seem 
 that where a receiver becomes vested by operation of law v/ith 
 the legal title, or right of possession of property or assets, that his 
 rights therein ought to receive the same recognition and protec- 
 tion from all courts no matter where situated and against all 
 persons whomsoever. Such is believed to be in accordance, with 
 the genius of our institutions, if not indeed a constitutional guar- 
 antee. The farthest our courts have gone, as will be seen by a 
 subsequent section, is to recognize the right of the receiver to sue 
 for and recover the receivership property in a foreign jurisdiction 
 except as against creditors of the debtor residing in such juris- 
 diction. This class of creditors have been, and are now, supposed 
 to enjoy unique privileges based solely upon local citizenship, and 
 which are enforcible as against a receiver, wholly at variance 
 with the law applicable to voluntary transfers. If the domicil 
 of the owner carries with it the rights of transfer recognized by 
 the law of his domicil no sound reason is perceived why a dis-
 
 SUITS BY RECEIVERS— DEFENSES TO. 
 
 167 
 
 tinction should be made between a transfer bj operation of law 
 and a voluntary transfer. If the right of possession of the owner 
 of movable property receives the protection of all courts, foreifi;;n 
 as well as domestic, why not award the same protection to liim 
 who succeeds to those rights by operation of law ? 
 
 (f) Present doctrine in United States. 
 
 The great weight of authority in this country at the present 
 time may be stated in general terms as follows: 
 
 (1) The receiver as a strict matter of right, by leave of court, 
 may sue and defend in all courts of the state where he is ap- 
 pointed. 
 
 (2) He will be permitted to sue and defend as a foreign receiver 
 in all courts of other states than that in which he is appointed on 
 the principle of comity,'except where the rights of citizens of the 
 
 ' Phelps V. McCann, 123 N. Y. 641; 
 Toronto Gen. Trust Co. v. Chicago, B. 
 <fc Q. R. Go. 123 N. Y. 87; Re Waite, 
 99 N. Y. 433; Hibernia Nat. Bank v. 
 Lacomhe, 84 N. Y. 367; Osgood v. Mc- 
 Guire, 61 N. Y. 524; Kelly v. Crajw, 
 45 N. Y. 86; Dyer v. Poicer, 39 N. Y. 
 S. R. 136; Pugh v. Hurtt, 52 How. Pr. 
 22; Petersen v. Chemical Bank, 32 
 N. Y. 21; Re Bristol, 16 Abb. Pr. 184 
 Peters v. Foster, 56 Hun, 607; Runkv 
 St. John, 29 Barb. 585; Barclay v 
 Quicksilver Min. Co. 6 Lans. 25 
 Hooper v. Tuckerman, 3 Sandf. 311 
 Olyphant v. Atuood, 4 Bosw. 459 
 Holmes v. Remsen, 4 Johns. Ch. 460 
 Sobernheimer v. Wheeler, 45 N. J. Eq 
 €14; Falk v. Janes, 49 N. J. Eq. 484 
 Hurdv. Elizabeth, 41 N. J. L. 1; Bid- 
 lack V. Mason, 26 K J. Eq. 230; 
 Lewis V. Grognard, 17 N. J. Eq. 425; 
 Comstock V. Frederickson , 51 Minn. 
 350; Henning v. Raymond, 35 Minn. 
 303; Cagill v. Wooldridge, 8 Baxt. 580; 
 Woodward v. Brooks, 128 111. 222. 
 3 L. R. A. 702; Chicago, M. & St. P. 
 R. Co. V. Keokuk N. L. Packet Co. 108 
 111. 317; Iglehart v. Bierce, 36 111. 133; 
 Catlin V. Wilcox Siher-Plate Co. 123 
 Ind. 477. 8 L. R. A. 62; Metzner v. 
 
 Bauer, 98 Ind. 425; Merchants Nat. 
 Bank v. McLeod, 38 Ohio St. 174; 
 Fuller V. Stilglitz, 27 Ohio St. 355; 
 Sortwell V. Jeicett, 9 Ohio, 181 ; Kan- 
 aga v. Taylor, 7 Ohio St. 134; Chafee 
 V. Fourth Nat. Bank, 71 Me. 514; 
 Hunt V. Columbia Ins. Co. 55 Me. 290; 
 Bacon v. Home, 123 Pa. 452, 2 L. R. A. 
 355; Baglyy. Atlantic, M. & 0. R. Co. 
 86 Pa. 291 ; Morgan v. Neville, 74 Pa. 
 51; McAlpin v. Jones, 10 La. Ann. 
 552; Paradise v. Farmers & M. Bank, 
 5 La. Ann. 710; Graydon v. Church, 
 7 Mich. 36; Winans v. Gibbs & S. Mfg. 
 Co. 48 Kan. 777; Boulware v. Davis, 
 90 Ala. 207, 9 L. R. A. 601; Lycoming 
 F. Ins. Co. V. Wright, 55 Vt. 526; 
 Cooke V. Orange, 48 Conn. 401 ; Paine 
 V. Lester, 44 Conn. 196; Thurston v. 
 Rosenfield, 42 Mo. 474 (Assignment); 
 Finer v. Beste, 32 Mo. 240 (Assign- 
 ment); Green v. Gross, 12 Neb. 117 
 (Assignment); Gilman v. Ketcham, 84 
 Wis. 60, 23 L. R. A. 52; {Contra, 
 Filkins V. Nunnemacher, 81 Wis. 91); 
 McClure v. Campbell, 71 Wis. 350; 
 Chandler v. Siddle, 3 Dill. 477; Ex 
 parte Norwood, 3 Biss. 3U4. 
 
 Where the defendant was a citizen 
 of New Jersey and the receiver prose-
 
 168 
 
 RECEIVERSHIPS, 
 
 cuted In behalf of a citizen of New 
 Jersey, the suit was permitted to 
 proceed even if a citizen of the state 
 should be injuriously affected thereby. 
 Falk V. Janes, 49 N. J. Eq. 484. 
 
 But the rule of protecting the citi- 
 zens of the state where suit is brought 
 does not apply to a case where the 
 receiver in the place of his appoint- 
 ment has reduced property in that 
 state to his possession and takes it to 
 a foreign state on legal business. His 
 possession will be protected. CJdcago, 
 M. & St. P. R. (Jo. V. Keokuk N. L. 
 Packet Co. 108 111. 317; Boyle v. 
 Toicnes, 9 Leigh, 158; Singerly v. Fox, 
 75 Pa. 112; Dick v. Bailey, 2 La. Ann. 
 974; Po7id v. Cooke, 45 Conn. 126; 
 Killmer v. Hobart, 58 How. Pr. 452; 
 Cagillv.Wooldridge,9i'Qaxi. 580. But 
 see contra, Humiihreys v. Hopkins, 81 
 Cal. 551, 6 L. R. A. 792, and see note 
 by Mr. Freeman in Alley v. Caspari 
 (Me.) 6 Am. St. Rep. 185. 
 
 The protection given to a foreign 
 receiver of a corporation was recog- 
 nized and enforced in Bidlack v. 
 Mason, 26 N. J. Eq. 230, where the 
 officers of the corporation by fraud or 
 subterfuge were endeavoring to with- 
 hold its property from the receiver, 
 on the authority of Bunk v. St, John, 
 29 Barb. 585; Murray v. Vanderbilt, 39 
 Barb. 140; Hoyt v. Thompson, 5 N.Y. 
 320; Dayton v. Borst, 7 Bosw. 115. 
 
 Allen, J., in Willitts v. Waite, 25 
 N. T. 577, says: "A quasi effect may 
 be given to the law (of a foreign state) 
 as a matter of comity, and interstate 
 or international courtesy, when the 
 rights of creditors or bona fide pur- 
 chasers, or the interests of the state 
 do not interfere by allowing the 
 foreign statutory or legal transferee 
 to sue for it in the courts of the state 
 in which the property is," and that 
 " the slate will do justice to its own 
 citizens so far as it can be done by 
 administering upon property within 
 
 its jurisdiction, and will yield to 
 comity in giving effect to foreign 
 statutory assignments, only so far as 
 may be done without impairing the 
 remedies or lessening the securities 
 which our laws have provided for 
 our own citizens." The rules above 
 announced have been sustained in 
 New York in the following cases: 
 Petersen v. Chemical Bank, 32 N. Y. 
 21; Kelly v. Crapo, 45 N. Y. 86; Os- 
 good V. McOuire, 60 N. Y. 524; Eiber- 
 nia Nat. Bank v. Lacombe, 84 N. Y. 
 367; Be Bristol, 16 Abb. Pr. 184; 
 Bunk V. St. John, 29 Barb. 585; Bar- 
 clay V. Quicksilcer Min. Co. 6 Lans. 
 25; Hooper v. Tuckerman, 3 Sandf. 
 311; Olyphant v. Atwood, 3 Bosw. 459; 
 Be Waite. 99 N. Y. 433; Phelps v. Bor- 
 land, 103 N. Y. 406; Toronto Gen. 
 Trust Co. v. Chicago, B. & Q. R. Co. 
 123 N. Y. 37; Barih v. Backus, 140 
 N. Y. 230, 23 L. R. A. 47. Many of 
 the above cases are assignment cases 
 in which the rights of foreign as- 
 signees were involved, but the princi- 
 ples are equally applicable to re- 
 ceivers. The law upon this subject 
 in Indiana is stated in Catlin v. Wilcox 
 Silver Plate Co. 123 Ind. 477, 8 L. R. A. 
 62, as follows: "The rule may be 
 considered as established that a re- 
 ceiver may invoke the aid of a 
 foreign court in obtaining possession 
 of property or funds within its juris- 
 diction to which he is entitled, but 
 aid will only be extended as against 
 those who were parties to, or in some 
 way in privity with the proceedings 
 in the course of which his appoint- 
 ment was made, or who are in the 
 possession of the property or fund to 
 which the receiver has a right, and 
 not against the creditors of a non- 
 resident debtor who are seeking to 
 subject the property or fund to the 
 payment of their debts by proceedings 
 duly instituted for that purpose." 
 " The available legal authority of a
 
 SUITS BY RECEIVERS— DEFENSES TO 
 
 169 
 
 state of the fonim are prejudiced thereby, or where it would be 
 in contravention of the policy of such state.' 
 
 receiver is coextensive only with the 
 jurisdiction of the court by which he 
 was appointed when the risht of 
 precedence or priority of creditors is 
 asserted in respect to property or 
 funds of a nonresident debtor which 
 the receiver has not yet reduced to 
 possession." Cf. Hunt v. Columbian 
 Ins. Co. 55 Me. 290; Warren v. Union 
 Wat. Bank, 7 Phil a. 156; Booth v. 
 Clark, 58 U. S. 17 How. 323, 15 L. ed. 
 164; State v. Jacksonville, P. & M. R. 
 Co. 15 Fla. 201; Farmers & M. Ins. 
 Co. V. Needles, 53 Mo. 17; Taylor v. 
 Columbian Ins. Co. 14 Allen, 353. 
 
 > Hurdv. Elizabeth, 41 N. J. L. 1; 
 Merchants' Nat. Bank v. McLeod, 38 
 Ohio St. 174; Day v. Postal Teleg. 
 Co. 66 Md. 354; National Trust Co. v. 
 Miller, 33 N. J. Eq. 155. In this case 
 the court says: " Independent of 
 statutory provision and simply as a 
 matter of comity this court will ex- 
 tend its aid to a receiver of a foreign 
 corporation for the purpose of enabl- 
 ing him to get the possession of prop- 
 erty which should in equity be ap- 
 plied in payment of its debts." And 
 where by statute a foreign corpora- 
 tion, doing business in a state, is made 
 subject to the statute concerning do- 
 mestic corporations, the court has the 
 same power over such corporation in 
 matters of insolvency, and the distri- 
 bution of its assets legal and equitable, 
 as over domestic corporations and 
 may appoint an ancillary receiver 
 and invest him with the same power, 
 so far as may be necessary to the col- 
 lection and recovery of its assets,. as it 
 is authorized to grant to a receiver of 
 a domestic corporation. And this 
 power is not dependent upon the 
 statute, but may be exercised on the 
 principles of a just comity. Cf. 
 
 Sohernheimer v. Wheeler, 45 N. J. Eq. 
 614. Williams v. Hintermeister, 26 
 Fed. Rep. 889. 
 
 Following the doctrine announced 
 in the above case of National Trust 
 Co. v. Miller, 33 N. J. Eq. 155, the 
 Supreme Court of Massachusetts in 
 Busicell V. Supreme Sitting 0. of I. H. 
 161 Mass. 224, 23 L. R. A. 846, sus- 
 tained the appointment of a foreign 
 receiver as ancillary receiver in that 
 state, and where it appeared that such 
 receiver in the state of Indiana, the 
 home of the corporation, had been, 
 by an assignment of the corporation, 
 invested with "all the moneys and 
 securities of every kind belonging to 
 the reserve fund . . . and held 
 by each of the branches thereof," it 
 was held that as receiver and assignee 
 in Massachusetts, after deducting all 
 expenses, he should transfer the re- 
 mainder of the reserve and benefit 
 funds in his possession to the receiver 
 in Indiana, if it should appear that 
 the decree of distribution in the latter 
 state protected the certificate members 
 of Massachusetts by placing them on 
 an equality with the other members 
 of the association. (Cf. Parsons v. 
 Charter Oak L. Ins. Co. 31 Fed. Rep. 
 305; Fry v. Charter Oak L. Ins. Co. 
 31 Fed. Rep. 197; Jennings v. Phila- 
 delphia & B. R. Co. 23 Fed.' Rep. 569.) 
 This case probably carries the doctrine 
 of comity to the farthest extent, but 
 the tendency of courts is in the direc- 
 tion of a liberal extension of the doc- 
 trine of interstate comity, and is 
 against a narrow and provincial 
 policy which would deny proper 
 effect to judicial proceedings of sister 
 states simply because they are foreign 
 and not domestic. If it be true that 
 the assets of an insolvent corporation
 
 170 RECEIVERSHIPS. 
 
 § 74. Power to sue in foreign jurisdiction as to realty. 
 
 The I'io-lit of a receiver to sue respecting real estate in a foreign 
 state does not seem to liave been discussed by our courts to any 
 great extent. It may be stated, however, in general terms, that 
 the mere order of appointment of a receiver in one state cannot 
 have the effect of transferring real estate in another jurisdiction, 
 for the reason that as to realty the law of the situs governs its 
 transfer and so far as the title is concerned the decree of a for- 
 eign court could not possibly affect it; so that so far as any right 
 of action in the receiver growing out of the decree of appoint- 
 ment is concerned he has none. It is different, however, where 
 the debtor makes a transfer to tlie receiver in proper form, which 
 is placed of record in the proper office of the county where the 
 real estate is situated; but in such case the receiver's right of ac- 
 tion is based on the assignment and not the decree of appoint- 
 ment.' It is a fundamental rule that as to real estate the lex rei 
 sitae governs not only as to the title but its enjoyment, right of 
 mortgage, pledge, lien, and equitable ownership, and they must 
 of necessity determine the rights of a receiver in regard thereto, 
 except in so far as the rights of the parties may be determined in 
 the court in which the receiver is appointed, where the parties 
 affected are subject to the jurisdiction of such court.'* 
 
 are a trust fund for the benefit of all Bundle "), 103 U. S. 223, 26 L. ed. 
 its creditors alike, it would seem that 337. And as to the right of assignees 
 a foreign creditor should not be per- in insolvency or bankruptcy to sue in 
 mitted merely by reason of his resi- other jurisdictions, see Long v. Tor- 
 deuce, to secure a prior right to its rest, 150 Pa. 413, 23 L. R. A. 33, note; 
 property.oranunequal advantage over Cole v. Cminingham, 133 U.. S. 107, 
 the other creditors, their contractual 33 L. ed. 538; Reynolds v. Adden, 136 
 relations being the same. Such a U. S. 353, 34 L. ed. 362; Wbodwa7'd v. 
 policy is not based upon equitable Brooks, 128 111. 222, 3 L. R. A. 702. 
 principles, and is apparently the Bat see Rhawn v. Pearce, 110 IW.'SdO; 
 essence of selfishness. Smith v. Chicago & N.W. B. Co. 23 
 
 As to the law regarding trustees of Wis. 267. 
 
 a foreign corporation to sue, or be ^Oraydon v. Church, 7 Mich. 36; 
 
 substituted for the corporation, see Simpkins v. Smith & P. Gold Co. 50 
 
 NeiD Jersey Protection & L. Bank v. How. Pr. 56; Moseby v. Burrow, 52 
 
 Thorp, 6 Cow. 46. Tex. 396. 
 
 As to the superintendent of the in- ''Whart. Conf. Law, g§ 286, 287,288, 
 
 surance department of one state ap- and cases cited; Harrison v. Sterry, 
 
 pearing in another state to intervene, 9 U. S. 5 Cranch, 289, 302, 3 L. ed. 
 
 see Life Asso. v. Bundle {" Belfe v. 104, 107; Oakey v. Bennett, 52 U. S.
 
 SUITS BY RECEIVERS— DEFENSES TO. 
 
 171 
 
 § 75. Power of receiver to sue in matters of fraud, trusts, etc. 
 
 Under the direction of the court the receiver may maintain a 
 suit: (1) against the judgment debtor to recover property con- 
 verted by him to his own use after the receivers appointment/ 
 as well as against strangers/ (2) or a bill of discovery under the 
 iS'^ew Jersey statutes/ (3) or to remove fraudulent liens from the 
 debtor's property/ (4) or to reach assets in the hands of a mort- 
 gagee under a mortgage invalid as to creditors/ (5) or to reach 
 concealed assets or misappropriated property/ (6) or for the col- 
 lection of money held in trust for the benetit of the debtor/ (7) 
 or to recover interest illegally paid to a national bank/ (8) or to 
 set aside a conveyance obtained by undue influence, the grantee 
 being insolvent/ (9) or to recover securities of a corporation il- 
 legally transferred/" (10) or to determine the validity of a mort- 
 gage lien uj)on the property/' (1 1) or to set aside a judgment 
 unlawfully obtained against the debtor/' (12) or to set aside a 
 mortgage illegally executed/^ (13) or to restore all property un- 
 lawfully abstracted before his appointment.'* 
 
 11 How. 33, 13 L. ed. 593 (Bankrupt- 
 cy); Barnett v. Pool, 23 Tex. 517 
 (Bankruptcy); Moseby v. Burrow, 52 
 Tex. 396; Paschal v. Acklin, 27 Tex. 
 173; White V. White, 7 Gill & J. 210; 
 Page v. McEee. 3 Bush, 135; Walts v. 
 Waddle, 31 U. S. 6 Pet. 400, 8 L.ed.442. 
 
 ^Gardner v. Smith, 29 Barb. 68. 
 
 ^Wilson V. Allen, 6 Barb. 542; Oillet 
 V. Fairchild, 4 Denio, 82 ; Brouicer v. 
 Hill, 1 Sandf. 629; Porter v. Williams, 
 9 N. Y. 142; Osgood v. Ogden, 3 Abb. 
 App. Dec. 425. 
 
 ^Bergen v. Littell, 41 N. J. Eq. 18. 
 
 '^Miller V. Mackenzie, 29 N. J. Eq. 
 291. 
 
 ^Gallagher v. Rosenficld, 47 Minn. 
 607. 
 
 ^South Bend Toy Mfg. Co. v. Dakota 
 F. & M. Ins. Co. 3 S. D. 205; Gillet 
 V. Moody, 3 N. Y. 479. 
 
 ''Terhune v. Bell (N. J.) 7 Cent. 469. 
 
 ^Barbour v. National Exch. Bank. 
 45 Ohio St. 133; National Bank v. 
 Trimble, 40 Ohio St. 629. 
 
 'Mitchell V. Barnes, 22 Hun, 194. 
 
 ^''Oillet V. Moody, 3 N. Y. 479; Cur- 
 tis V. Leavitt, 15 N. Y. 9, 108; Baiter- 
 tcorth V. O'Brien, 24 How. Pr. 438; 
 Gillet V. Phillii)s, 13 N. Y. 114; Whit- 
 tlesey V. Delaney, 73 N, Y. 571; Atty. 
 Gen. V. Guardian Mut. L. Ins. Co. 11 
 N. Y. 275; Vail v. Hamilton, 85 N. Y. 
 453; Tracy v. First Nat. Bank, 37 N. 
 Y. 523; Crandall v. Lincoln, 52 Conn. 
 73; Osgood v. Ogden, 4 Keyes, 70; Por- 
 ter V. Williams, 9 X. Y. 142; Osgood v. 
 Laytin, 3 Keyes, 521; Pittsburg Carbon 
 Co. V. McMillin, 119 N. Y. 46, 7 L. R. 
 A. 46; Minnesota Thresher Mfg. Co. v. 
 Langdon, 44 Minn. 37; Farmers' Loan 
 & T. Co. V. Minneaiwlis Engine & 
 3Iac7i. Works, (i5 Minn. 543; Ruddv. 
 Robinson, 54 Hun, 339; Tallmage v. 
 Pell, 7 N. Y. 328; Hackley v. Draper, 
 60 N. Y. 88. 
 
 ^Ulubbell V. Syracuse IronWorks, 42 
 Hun, 182. 
 
 ^■Stokes V. New Jersey Pottery Co. 46 
 N. J. L. 237. 
 
 ^^Vail V. Hamilton, 85 N. Y. 453. 
 
 ^*Terry v. Bamberger, 14 Blatcbf.
 
 172 RECEIVERSHIPS. 
 
 A receiver who has been appointed after judgment in an action 
 for a liinited divorce to receive personal property and the rents 
 and profits of real estate may maintain an action to set aside a 
 fraudulent conveyance where he is directed to bring such pro« 
 ceeding, but this case was based on the statutory ground that 
 the receiver was authorized to sue in his own name, and also that 
 he was a trustee of an express trust.' A receiver appointed in a 
 supplementary proceeding in Wisconsin was allowed to bring a 
 suit as receiver to set aside an alleged fraudulent conveyance, 
 compel a conveyance to liim, remove obstructions and settle ad- 
 verse claims, the supplementary proceedings being based upon a 
 judgment for alimony.'' 
 
 § 76. Suits against oificers of corporations. 
 
 A court of general equity jurisdiction has power to authorize 
 a receiver to prosecute a suit against the officers of an insolvent 
 corporation for misconduct;' and where a receiver of a corporation 
 is applied for, partly by reason of the alleged insolvency of the 
 corporation, such receiver may maintain a summary proceeding, 
 entitled in the original action for the purpose of compelling the 
 ofiicers of the company to surrender assets which they are charged 
 with concealing.* In a proceeding by a receiver to recover from 
 the corporate ofiicers the corporation assets it is no defense that 
 such assets are not needed for the payments of debts." The re- 
 
 234; Gillet v. FairchUd (trover), 4 l^.Y.iy%; Pittsburg Carbon Co. v. Mc- 
 
 Denio, 80. Millin, 119 N. Y. 46, 7 L. R. A. 46; 
 
 ^Donnelly v. West, 24 Hun, 564; For- Stephens v. Perrine, 143 N. Y. 476. 
 ter V. Williams, 9 N. Y. 150; Foster v. ^Barker v. Dayton, 28 Wis. 367 (see 
 
 Townshend, 2 Abb. N. C. 29. statute) ; Cf . Cook v. Cook, 56 Wis. 
 
 A receiver of an insolvent corpora- 195. 
 tion in New York is permitted to ques- ^Thompson v. Greeley, 107 Mo. 577; 
 
 tion the fraudulent and illegal acts of Hannah v. Moberly Bank, 67 Mo. 678; 
 
 his principal, the corporation. Cox v. Volkert, 86 Mo. 511 (he does not 
 
 Porter v. Williams, 9 N. Y. 142. He have statutory power in Missouri), 
 
 represents both creditors and stock- See also Haywood v. Lincoln Lumber 
 
 holders. Co. 64 Wis. 639; Alexander v. Relfe, 
 
 Gillet V. Moody, 3 N. Y. 479; Leav- 74 Mo. 495. 
 itt v. Palmer, 3 N. Y. 19; Brouwer v. ^Brandt v. Allen, 76 Iowa, 50, 1 L. 
 
 Hill, 1 Sandf. 629; Hyde v. Lynde, 4 R. A. 653; Young v. Rollins, 90 N. C. 
 
 N. Y. 392; cf. Bostwick v. Menck, 40 125; Gindrat v. Dane, 4 Cliff. 260. 
 N. Y. 383; Underwood v. Sutdiffe, 77 ^McGarty's Appeal, 110 Pa. 379.
 
 SUITS BY RECEIVERS— DEFENSES TO. 
 
 173 
 
 ceiver may avoid all acts of the officers of a corporation, even if 
 authorized by a resolution of the board of directors where such 
 acts are forbidden and unauthorized by law;' or where corporate 
 property is placed in the hands of one of its directors to secure 
 an indebtedness in fraud of the rights of creditors, he may avoid 
 the transfer ;^ and so where a chattel mortgage was not filed as 
 required;^ or where an officer appropriates the corporate property 
 to his own use/ Under a statute which made the ofiicers and 
 directors of a corporation assenting to an indebtedness in excess 
 of the capital stock personally liable for the excess to the credit- 
 ors generally, such excess becomes a trust fund distributable pro 
 rata among all creditors and is recoverable in an equitable pro- 
 ceeding;" he may hold the directors liable for acts ultra vires;' 
 or file a bill against state officials to quiet title;' or to recover ille- 
 gal dividends/ 
 
 § 77. Suits against stockholders ou unpaid subscriptions. 
 
 Where a statute authorizes a receiver to sue, and the court 
 
 ^Hoyt V. Tliompson, 5 N. Y. 320; 
 Leavitt Y.Yates, 4 Edw. Ch. 134; and 
 see Market Nat. Bank v. Pacific Nat. 
 Baixk, 102 N. Y. 464; Talmage v. Pell, 
 7 N. Y. 328; Tracy v. Talmage, 14 N. 
 Y. 162. 
 
 '^Bradley v. Converse, 4 Cliff. 375; 
 Bradley v. Farwell, Holmes, 433; Rudd 
 V. Bobinson, 54 Hun, 339; Southard v. 
 Benner, 72 N. Y. 424; Underwood v. 
 Sutcliffe, 77 N. Y. 58; Haywood v. Lin- 
 coln Lumber Co. 74 Wis. 639; Nathan 
 V. Wliitlock, 9 Paige, 152 ; Robinson v. 
 Bank of Attica, 21 N.Y.406; Atkinson 
 V. Rochester Printing Co. 114 N.Y.168. 
 
 ^Stephens v. Perrine, 143 N. Y. 47G. 
 In all such cases of supplementary 
 proceedings the receiver has a right 
 to prosecute all actions to set aside 
 transfers of property made to defraud 
 creditors. Mandeville v. Avery, 124 
 N. Y. 370; Becker v. Torrance, 31 N. 
 Y. 631 ; Bosticick v. Menck, 40 N. Y. 
 383; Wright v. Nostrand, 94 N. Y. 31 
 (see N. Y. Code Civ. Proc). 
 
 '^Brandt v. Allen, 76 Iowa, 50, 1 L. 
 R. A. 653; Gillet v. 3foody, 3 K Y. 
 479; Oillet v. Phillips, 13 N. Y. 114; 
 Hayes v, Kenyon, 7 R. I. 136; United 
 States V. Church of Jesus Christ of L. 
 I>. S. 5 Utah, 361; Holden v. Upton, 
 134 Mass. 177; Osgood v. Laytin, 3 
 Abb. App. Dec. 418. But see Repub- 
 lic L. Ins. Co. V. Swigert, 135 111. 150, 
 12 L. R. A. 328. 
 
 ^Low v. Buchanan, 94 111. 76. 
 
 ^Austin V. Daniels, 4 Denio, 299; 
 Thompson v. Greely, 107 Mo. 577; 
 Gray v. Davis, 1 Woods, 420, affirmed 
 in 83 U. S. 16 Wall. 203. 21 L. ed. 
 447. 
 
 ''Minnesota Thrasher Mfg. Co. v. 
 Langdon, 44 Minn. 37. 
 
 ^The appointment of a receiver does 
 not preclude the corporation from su- 
 ing to try the legal title to property, 
 (St. Louis & 3. Coal & M. Co. v. San- 
 doval Coal & M. Co. Ill 111. 32) unless 
 the court has forbidden it. Id.
 
 174 RECEIVERSHIPS. 
 
 directs him to do so, a receiver may maintain an equitable pro- 
 ceeding in behalf of all the creditors of an insolvent corporation 
 for an accounting, and to compel its stockholders to contribute 
 unpaid subscriptions to the payment of its debts, and such suit 
 may be brought by the receiver in his own name although neither 
 the statute nor the order in terms directs the suit to be brought.' 
 In such a proceeding it is not competent for a defendant stock- 
 holder to set up as a defense fraud in procuring the appointment, 
 of the receiver, or that the corporation is not indebted. These 
 matters are adjudicated in the action resulting in the appoint- 
 ment of the receiver.'^ A proceeding of this nature may be main- 
 tained by a receiver against stockholders and creditors for the 
 purpose of obtaining an accounting of the amounts due the cred- 
 itors, and to ascertain the individual liability of the stockholders, 
 and compel payment thereof for the purpose of meeting the cred- 
 itors' demands, and in the meantime may restrain the individual 
 creditors from prosecuting separate suits on the individual liabil- 
 ity of the creditors. All equities may be settled and adjusted in 
 one action.^ When a dividend has been declared and received by 
 stockholders the effect of which has been to impair the capital of 
 the company, the receiver may maintain an action against the 
 stockholders and creditors to recover from the stockholders such 
 dividend, when it appears that some of the creditors are prose- 
 cuting suits against the stockholders to secure such illegal divi- 
 dends, and when such ' funds so misappropriated are necessary to- 
 pay the debts of the corporation." 
 
 ' Matliis V. Pridham, 1 Tex. Civ. cover unpaid stock subscriptions wa» 
 
 App. 58; Dayton v. Borst, 31 N. Y. held to be a cumulative remedy mere- 
 
 435; Frank v. Morrison, 58 Md. 423; \j,\n Mannv. (7M7Tie, 3 Barb. 294. In 
 
 Stillman v. Dougherty, 44 Md. 380. a suit by a receiver of an insolvent 
 
 '^ Schoonover v. Hickley, 48 Iowa, 82. bank to recover moneys of the bank 
 
 2 Calkins v. Atkinson, 2 Lans. 13; received by one of its creditors subse- 
 
 Whittlesey v. Frantz, 74 N. Y. 456; quent to his appointment, the proceed- 
 
 Stark V. Burke, 5 La. Ann. 740; New ing is by bill, and not by a petition; 
 
 Orleans Gaslight Co. v. Bennett, 6 La. because the receiver is an officer of 
 
 Ann. 456; Clarke v. Thomas, 34 Ohio court he has no more privileges than 
 
 St. 46. any other suitor. State Bank v. First 
 
 •» Osgood V. Laytin, 48 Barb. 463. JSfat. Bank, 34 N. J. Eq. 450. 
 The provisions of the New York stat- A stockholder liable on his sub- 
 
 ute authorizing receivers of an insol- scription as called for by the directors 
 
 vent corporation to sue for and re- may in equity be compelled to pay tO'
 
 SUITS BY RECEIVERS— DEFENSES TO. 
 
 175 
 
 It may be stated as a general rule that a receiver is authorized 
 and it is his duty to collect the unpaid subscriptions so far as 
 such collection may be essential to the payment of the debts.' 
 But he has no authority to call upon a subscriber for his unpaid 
 balance until the amount of the unpaid balance has been deter- 
 mined by the court and thus the ^ro rata liability of each share 
 fixed.' 
 
 Where corporations have attempted to distribute their stock 
 among their stockholders leaving corporation debts unpaid, the 
 creditors, by proper suits, may compel the stockholders to refund 
 sufficient amount to pay these debts.' And upon the same prin- 
 ciple when stock has not been all paid in the delinquent stock- 
 holders may be compelled to contribute sufficient to pay such 
 debts, and where the statute is silent as to the method to be pur- 
 sued in enforcing such liability, a court of equity is the proper 
 
 the receiver representing the credit- 
 ors, even in the absence of action by 
 the directors, requiring payment. 
 Sagory v. Dubois. 3 Sandf. Ch. 466; 
 Upton V. Hansbrough, 3 Biss. 417. 
 But an assessment or its equivalent is 
 essential to the liability of the share- 
 holder. Chandler v. Siddle, 3 Dill. 
 477. And the stockholder must have 
 been a party to the proceeding in 
 which the receiver was appointed to 
 be held liable in Illinois. Chandler v. 
 Broicn, 77 111. 333; Rowell v. Chandler, 
 83 111. 288; Chandler v. JDore, 84 111. 
 275; Chemut v. Pennell, 92 111. 55; 
 Lamar Ins. Co. v. Gvlick, 102 111. 41 
 (see Statute of 1872, § 25). But see 
 contra, Great Wedern Teleg. Co. v. 
 Gray, 122 111. 630. 
 
 In Wincoclc v. Turpin, 96 111. 135. 
 it is held that where a liability is cre- 
 ated by statute the remedy is at law, 
 and a proceeding in equity will not 
 be entertained unless authorized by 
 Btatute; but if the statute makes the 
 liability joint, then equity would be 
 the proper forum. Cf . Culver v. Hard 
 Nat. Bank, 04 111. 528; Corwith v. 
 
 Culver, 69 111. 502; Tihballs v. Lib- 
 by, 87 111. 142; Arem v. Weir, 89 111. 
 25; McCarthy v. Lavasche, 89 III. 270; 
 Fuller V. Ledden, 87 111. 310. But see 
 Low V. Buchanan, 94 111. 76. 
 
 ^Dayton v. Borst, 31 N. Y. 435; 
 Nathan V. Whitlock, 9 Paige, 152; Dor- 
 ris V. French, 4 Hun, 292; Van Wag- 
 enen v. Clark, 22 Hun, 497; Calkins 
 V. Atkinson, 2 Lans. 12; Tucker v. 
 Oilman, 45 Hun, 193; Rankine v. El- 
 liott, 16 N.Y. 377; Frank v. Morrison, 
 58 Md. 423; Hall v. United States Ins. 
 Co. 5 Gill, 484; Chandler v. Brown, 
 77 111. 333; Means' Appeal, 85 Pa. 75. 
 
 '^Chandler v. Keith, 42 Iowa, 9!); 
 Mills v. Scott, 99 U. S. 25, 25 L. ed. 
 294. 
 
 ^Vose V. Grant, 15 Mass. 505; Spear 
 V. Grant, 16 Mass. 9; Wood v. Bum- 
 mer, 3 Mason, 308; Nathan v. Whit- 
 lock, 9 Paige, 152. In Minnesota, by 
 statute the right to sue in such case 
 passes to the receiver, as the repre- 
 sentative of all the creditors. Minne- 
 sota Thresher Mfg. Co. v. Langdon, 44 
 Minn. 37.
 
 176 
 
 RECEIVERSniPS. 
 
 forum.' But in this proceeding, in the absence of authority to 
 the receiver, except such as belongs to ordinary receivers, and in 
 the absence of statutory power, the creditor and not the receiver 
 is the proper person to sue." An order of court directing a sale 
 of all the assets, property and business of an insolvent corpora- 
 tion, must be construed as applicable only to the sale of such 
 property as belonged to the corpoi'ation, or such causes of action 
 as it might have enforced in its own right, and not causes of 
 action which the receiver might have maintained in the right of 
 creditoi'S, such as the recover}'^ of capital withdrawn and refunded 
 to the shareholders, leaving debts unpaid.' 
 
 Where a receiver is appointed to take charge of the property 
 .and assets of an insolvent corporation, he cannot maintain an 
 action against the stockholders to enforce an alleged liability 
 which could not have been enforced by the corporation itself." 
 Under the U. S. Kev. Stat., § 563, sub. 4, the action authorized 
 is a suit at common law by a receiver to enforce a stock liability 
 within the jurisdiction of the federal courts." Suits of this 
 nature are usually authorized by statute.' 
 
 ^Mann v. Pentz, 3 N. Y. 415, and 
 •cases cited in last note above. 
 
 ^Mann v. Pentz, 3 N. Y. 415, over- 
 ruling same case in 2 Sandf. Ch. 257; 
 ■Stringer's Case, L. R. 4 Ch. App. 475; 
 Pance's Case, L. R. 6 Ch. 104; Be 
 National Funds Assur. Soc. L. R. 10 
 Ch. Div. 118; Be Alexandra Palace 
 Co. L. R. 21 Ch. Div. 149. 
 
 ^Minnesota Thresher Mfg. Co. v, 
 Langdon, 44 Minn. 37. 
 
 ^Pepublic L. Ins. Co. v. Swigert, 135 
 111. 150, 12 L. R. A. 328. 
 
 ^ Stephens v. Bernays, 41 Fed. Rep. 
 401. The section referred to giving 
 jurisdiction to district courts in mat- 
 ters of national banks is not taken 
 away by act of Congress of July 12, 
 1882. g 4, and of Aug, 13, 1888, § 4. 
 
 « Illinois: Great Western Teleg. Co. 
 V. Gray, 122 111. 630; Woolverton, 
 V. George H. Taylor Co. 43 111. 
 App. 424. 
 
 Iowa: Stewart v. Lay, 45 Iowa, 604. 
 
 Louisiana: Gaslight & Bkg. Co. v. 
 Haynes, 7 La. Ann. 114; New Or- 
 leans Gaslight Co. v. Bennett, 6 
 La. Ann. 457; Stark v. Burke, 5 
 La. Ann. 740. 
 
 Maryland: Frank v. Morrison, 58 
 Md. 433; Stillman v. Dougherty, 
 44 Md. 380. 
 
 Minnesota: Merchants' Nat, Bank 
 V. Northwestern Mfg. & Car. Co. 
 48 Minn. 361 (Liability); i/mn*- 
 sota Thresher Mfg. Co. v. Lang 
 don, 44 Minn. 37. 
 
 New York: Calkins v. Atkinson, 2 
 Lans, 12; Bankine v. Elliott, 16 
 N. Y. 377; Pe7itz v. Hawley, 1 
 Barb. Ch. 122; Van Wagenen v. 
 Clark, 22 Hun, 497. But a re- 
 ceiver under a creditor's bill can- 
 not sue for such subscriptions. 
 Mann v. Pentz, 3 N. Y. 415. And 
 see Billings v. Bobinson, 28 Hun, 
 122; Phoenix Warehousing Co. v. 
 Badger, 67 N. Y, 294; Dayton v.
 
 SUITS BY RECEIVERS-DEFENSES TO. 
 
 177 
 
 Defenses to tins class of actions instituted by a receiver in a 
 statutory proceeding are not, as a rule, available. Thus, it is no 
 defense that the entire stock had not been subscribed ;' nor is error 
 in the appointment f nor fraudulent acts of the officers of the 
 corporation ;' nor the fraudulent character of the corporation, or 
 misrepresentation in procuring the subscription ;* nor fraud in 
 procuring the appointment of the receiver ;^ nor that the incorpo- 
 ration is not indebted f or that its assets have not been collected ;'' 
 nor that fraudulent claims have been allowed.* But the share- 
 holder is not liable to the receiver if he was not liable to the cor- 
 poration ;' nor can the receiver collect subscriptions in a fore- 
 closure case if the bonds are invalid.'" 
 
 § 78. Suits against stockholders on statutory liability. 
 
 In general the statutory liability of stockholders is a liability to 
 the creditors of the corporation and a receiver of an insolvent 
 corporation in the absence of statutory power has no authority to 
 enforce such liability, and this inability is based upon the fact 
 that such liability is not a corporate asset and does not go to the 
 receiver as such." Upon the same princij)le the receiver has no 
 
 Borst, 31 N. Y. 435; Tracy v. 
 
 First Nat. Bank, 37 N. Y. 523; 
 
 Weeks v. Love, 50 N. Y. 571; Os- 
 good V. Laytin, 5 Abb. Pr. N. S. 
 
 1; Briggs v. Penniman, 8 Cow. 
 
 387; Mills v. Stewart. 41 N. Y. 
 
 384; Morgan v. New York & A. 
 
 R. Co. 10 Paige, 290. 
 Ohio: Clarke v. Thomas, 34 Ohio 
 
 St. 46; Jewetty. Valley R. Co. 34 
 
 Ohio St. 601. 
 Rhode Island: Tobey v. Russell, 9 R. 
 
 I. 58; Attooocl v. Rhode Island Ag- 
 
 ricuUural Bank, 1 R. I. 376. 
 Washington: Elderkin v. Peterson, 
 
 8 Wash. 674. 
 » Slillman v. Dougherty, 44 Md. 380; 
 Buggies v. Brock, 6 Hun, 164. 
 ^Stewart v. Lay, 45 Iowa, 604. 
 ^Stewart v. Lay, Ao Iowa, 604; Rvg- 
 gles V. Brock, 6 Hun, 164. 
 
 * Litchfield Bank v. Church, 29 Conn. 
 137; Schoonover v. Uinckley, 48 Iowa, 
 i52. 
 
 12 
 
 ^Schoonover v. Hinckley, 48 Iowa, 
 82; Steicart v. Lay, 45 Iowa, 604. 
 
 ^Schoonover v. Hinckley, 48 Iowa, 
 82. 
 
 "> Stark V. Burke, 9 La. Ann. 341. 
 But see Chandler v. Keith, 42 Iowa, 
 99; Mills V. Scott, 99 U. S. 25, 25 L. 
 ed. 294. 
 
 8 Foote V. Glenn, 52 Fed. Rep. 529. 
 
 ^Billings v. Robinson, 94 N. Y. 415; 
 WiiUers V. Armstrong, 37 Fed. Rep. 
 508. 
 
 1° Farmers' Loan & T. Co. v, San 
 Diego Street Car Co. 49 Fed. Rep. 188. 
 
 ^^Arenz v. Weir, 89 111. 25 (statu- 
 tory); Butler V. Walker, 80 111. 345; 
 Liberty Female College Asso. v. Wat- 
 kins, 70 Mo. 13; Billings v. Robinson, 
 94 N. Y. 415; Cutting v. Damerel, 88 
 N. Y. 410; Cuykendall v. Corning, 88 
 N. Y. 129; Jacobson v. Allen, 20 
 Blatchf. 525; Laiie v. Morris, 8 Ga. 
 468; Davis v. Cray, 83 U. S. 16 Wall. 
 203, 21 L. ed. 447; Wright v. McVor-
 
 178 
 
 EECEIVERSHIPS. 
 
 right to enforce the individual liability of a partner to the firm 
 in behalf of the firm creditors,' or his assignee. 
 
 § 79. Suits to invalidate Hens. 
 
 In the absence of special statutory powers, and in the absence 
 of a conveyance to him from the mortgagee, a receiver cannot 
 maintain a suit to determine the validity of liens of parties in, and 
 parties out of possession, as against the lien of a mortgage in the 
 foreclosure of which he is appointed, where neither the mortgagee 
 nor mortgagor is a party. If complainant claims the legal title 
 to real estate he cannot, in a court of equity, sustain an action 
 against persons in possession claiming adversely;* nor can he 
 
 mack, 17 Ohio St. 86; Farnsworth v. 
 Wood, 91 N. Y. 308. Cf. Chemical 
 Nat. Bank v. Colwell, 132 N. Y. 250; 
 Story V. Furman, 25 N. Y. 214. 
 
 1 Wallace v. Milligan, 110 Ind. 498. 
 
 The court in Wincock v. Turpin, 96 
 111. 135, says: "It maybe a state of 
 facts might exist which would au- 
 thorize a court of equity to bring be- 
 fore it all the stockholders and depos- 
 itors and determine their rights and 
 adjust equities, marshall the fund and 
 distribute it pro rata, but no such 
 case is made by this bill; and until 
 such a case shall be made we must 
 leave the depositors to pursue their 
 remedies under the law. We have 
 held in a number of cases that as the 
 right is given by statute the remedy is 
 at law. Culver v. Third Nat. Bank, 
 64 111. 528; Corwith v. Culver, 69 111. 
 502; Tibhalls v. Libhy, 87 111. 142; 
 Arem v. Weir, 89 111. 25; McCarthys. 
 Lavasche, 89 111. 270; Fuller v. Ledden, 
 87 111. 310. 
 
 The authorities upon this subject in 
 other jurisdictions are not uniform. 
 If the liability was joint then equity 
 would be the proper forum, as was 
 held in Fames v. Davis, 102 111. 350. 
 Where the liability creates a common 
 fund for the benefit of all creditors 
 entitled to share in it, and the secur- 
 
 ing of a ratable distribution of it 
 among all such creditors, it is a proper 
 case for equitable jurisdiction. Mer- 
 chants' Bank v. Stevenson, 5 Allen, 
 401; Crease v. Bahcock, 10 Met. 532; 
 Briggs v. Penniman, 8 Cow. 387; Hor- 
 nor V. Eenning, 93 U. S. 228, 23 L. 
 ed. 879. 
 
 Low v. Buchanan, 94 III. 81; Har- 
 per v. V7iion Mfg. Co. 100 111. 225. 
 And equitable jurisdiction may also 
 be maintained on the ground of avoid- 
 ing a multiplicity of suits. 
 
 Some courts have given creditors iu 
 case of a personal statutory liability of 
 stockholders a concurrent remedy by 
 suit at law or suit in equity for the 
 enforcement of the liability. Bank of 
 Poughkeepsie v. Ibbotson, 24 Wend. 
 473; Van Hook v. Whitlock,-^ Paige, 
 409; Norris v. Johnson, 34 Md. 485; 
 Perry V. Turner, 55 Mo. 418; Adkin v. 
 Thornton, 19 Ga. 325; Robinson v. 
 National Bank, 95 N. Y. 637. 
 
 ^Harland v. Bankers' & M. Teleg. 
 Co. 32 Fed. Rep. 305; Frost v. Spitley, 
 121 U. S. 556, 30 L. ed. 1012; Alexan- 
 der V. Pendleton, 12 U. S. 8 Cranch, 
 462, 3 L. ed. 624; Peirsoll v. Elliott, 31 
 U. S. 6 Pet. 95, 8 L. ed. 332; Orton v. 
 Smith, 59 U. S. 18 How. 263, 15 L. 
 ed. 393; Crews v. Burcham, 66 U. S. 1 
 Black, 352, 17 L. ed. 91; Ward v.
 
 SUITS BY RECEIVERS— DEFENSES TO. 179 
 
 rnaintain a bill for an accounting for damages suffered by tlie 
 mortgagor, growing out of a breach of contract made with him, 
 where it is claimed that the mortgage covered the property em- 
 braced in such contract.* But a receiver appointed under the 
 provisions of the New York Code of Civil Procedure was ordered 
 to commence a proceeding to determine what bonds issued by the 
 company were secured by the mortgage, and what bonds, if any, 
 were to be excluded from particij)ation in the proceeds, and also 
 to determine the ownership of such bonds, and the validity of 
 others, it was held that the receiver's action was sustainable as a 
 proceeding in equity.'^ Where the receiver desires to test the 
 validity of a levy upon the receivership property, his proper 
 course is to bring an independent action to set aside the levy, and 
 not by motion for a rule on the sheriff to show cause. The rea- 
 son of this rule is based upon the fact that neither the receiver, 
 the creditor, nor the sheriff, was a party to the proceeding in 
 which the receiver was appointed.^ 
 
 § 80. Suit on debtor's bond, replevin, distraint, etc. 
 
 The receiver of an insolvent debtor has no right of action on an 
 official l)ond of the debtor and his sureties, the general rule being, 
 as we have seen, that a receiver has no right of action other than 
 is vested in the debtor himself, except where he sues as the i-ep- 
 resentative of creditors." j^or has he a right to maintain a suit in 
 replevin for personal property mortgaged by the judgment 
 debtor, and reduced to possession by the mortgagee before the 
 commencement of the proceedings in which the receiver is ap- 
 pointed." His right to distrain has been recognized, and he may 
 appoint a bailiff for that purpose," but he connot distrain and at- 
 tach at the same time.' 
 
 An action cannot be sustained bv a receiver ao-ainst an assiffneo 
 
 Chamberlain, 67 U. S. 2 Black, 430, 17 And see Oelpeke v. Milioaiikee cfi n. 
 
 L. ed. 319; United States v. Wilson, R. Co. 11 Wis. 454. 
 
 118 U. S. 86, 30 L. ed. 110; Fussell v. ^State, Shepard, v. Sullivan, 120 
 
 Gregg, 113 U. S. 550, 28 L. ed. 993. Ind. 197; Coffin v. Ilansdell, 110 Ind. 
 
 ^Harland v. Bankers' & M. Teleg. 417; Wallace y. Milligan, 110 InAA'dQ. 
 
 Co. 32 Fed. Rep. 305. ''Campbell y. Fish, 8 Daly, 162. 
 
 "■Ilultbell V. Syracuse Iron Works, 42 '^Birch v. Oldis, Sau.ss. & S. 146. 
 
 Hun, 182. "^Eyre v. Eyre, 1 Uog. 252. 
 
 ^Andrews v. Paschen, 67 Wis. 413.
 
 180 
 
 RECEIVERSHIPS. 
 
 of the judgment debtor under an assignment for the benefit of 
 creditors to recover damages resulting to the- judgment debtor 
 from failure of the assignee to properly discharge his duty as 
 such assignee.* 
 § 81. Defenses to actions l)rouglit by receivers — set-off. 
 
 The general rule, in all actions brought by a receiver is that 
 the defendant may interpose such defenses as might have been 
 available to him had suit been instituted by the person or corpo- 
 ration for whose estate the receiver is appointed.' Thus in an 
 action by the receiver the defendant may interpose a counter- 
 claim or set-off," provided the right of set-off accrued before the 
 receiver's appointment," and the respective rights of action are of 
 the same nature," and the receiver sues as the representative of 
 the debtor and not creditors," and where the claim of defendant is 
 free from fraud,' and if the demands are liquidated.* The debts 
 
 'Za Follelt v. Akin, 36 Ind. 1. 
 
 "^Cox V. Volkert, 86 Mo. 505; Colt v. 
 Brown, 12 Gray, 233; Brooks v. Big- 
 elow, 142 Mass. 6; Moise v. Chapman, 
 
 24 Ga. 249 ; Litchfield Bank v. Peck, 29 
 Conn. 384; Clarke v. Hawkins, 5 R. I. 
 219; Van Wagoner v. Paierson Gas- 
 light Co. 23 N. J. L. 283; Chase v. 
 Petroleum Bank, 66 Pa. 169; Hyde v. 
 Lynde, 4 N. Y. 387; Thomas v. Whal- 
 lon, 31 Barb. 172; Williams v. Babcock, 
 
 25 Barb. 109; Devendorf v. BearcMey, 
 23 Barb. 656 ; Berry v. Brett, 6 Bosw. 
 627; Clarke. Brockicay, 3 Keyes, 18. 
 
 ^Armstrong v. Warner, 49 Ohio St. 
 376, 17 L. R. A. 466; Hadev. McVay, 
 81 Ohio St. 231; Lindsay v. Jackson, 
 2 Paige, 581: Com. v. Shoe & L. 
 Dealers' F. Ins. Co. 112 Mass. 131; 
 Scott V. Armstrong, 146 U. S. 499, 36 
 L. ed. 1059; Holbrook v. American F. 
 Ins. Co. 6 Paige, 220; Colt v. Brown, 
 12 Gray, 233; Be Van Allen, 37 Barb. 
 225; State Bank v. Bank of New 
 Brumwick, 3 N. J. Eq. 266; Be Middle 
 District Bank, 1 Paige, 585; Cook v. 
 Cole, 55 Iowa, 70; Berry v. Bi'ett, 6 
 Bosw. 627; Davis v. Stover, 58 N. Y. 
 473; Com. v. Phanix Bank, 11 Met. 
 
 129; Scammon v. Kimball, 92 U. S. 
 362, 23 L. ed. 483. 
 
 As to the rule in mutual insurance 
 companies see Lawrence v. Nelson, 21 
 N. Y. 158; Hillier v. Allegheny County 
 Mut. Ins. Co. 3 Pa. 470. But seeBen-y 
 V. Brett, 6 Bosw. 627; Vanatta v. New 
 Jersey Mut. L. Ins. Co. 31 N. J. Eq. 
 15. And savings banks see Osboi'n v. 
 Byrne, 43 Conn. 155; Stockton v. Me- 
 chanics' <& L. Sav. Bank, 32 N. J. Eq. 
 163. 
 
 ^ Smith V. Mosby, 9 Heisk. 501; 
 Lanier v. Oayoso Sav. Inst. 9 Heisk. 
 506; United States Trust Co. v. Harris, 
 2 Bosw. 75; Cook v. Cole, 55 Iowa, 70; 
 Smith V. Felton, 43 N. Y. 419; Bradley 
 V. A77gel, 3 N. Y. 475; Smith v. Fox, 
 48 N. Y. 674; Newcomb v. Almy, 96 
 N. Y. 308; Van Dyck v. McQuade, 85 
 N. Y. 6 16 ■,Jordan v. Sharlock, 84 Pa. 366. 
 
 ^Williains v. Traplmgen, 38 N. J. 
 Eq. 57; Singerly v. Fox, 75 Pa. 112. 
 
 ^Osgood V. Ogden, 4 Keyes, 70; 
 Clark V. Brockway, 3 Keyes, 13; Os- 
 good V. Maguire, 61 N. Y. 524. 
 
 ''Gillet V. Phillips, 13 N. Y. 114. 
 
 ^Olyphant v. St. Louis Ore & S. Co. 
 39 Fed. Rep. 308.
 
 SUITS BY RECEIVERS— DEFENSES TO. 181 
 
 must, however, be due to and from the same persons, at least 
 equitably.' 
 
 The defendant in an action by a receiver is entitled to a set-ofE 
 of any debts due to him by the insolvent, at the time of the stop- 
 ping payment by the insolvent, and the appointment of a receiver 
 as a rule does not change the relationship of the parties." The 
 receiver will not be permitted to allow as a partial accord and 
 gatisfaction an uncompleted agreement of an insolvent made prior 
 to his suspension, ° and the receiver has no right to set up as a de- 
 fense to the claim of a judgment creditor, matters which might 
 have been pleadable in behalf of the corporation against the re- 
 covery of a judgment.* In a suit brought by a receiver it is no 
 defense that he has not filed a bond, where the decree of appoint- 
 ment does not make the giving of such bond a condition to his 
 appointment,^ nor can the validity of the appointment of the re- 
 ceiver be questioned. ° The sufficiency of the allegations in regard 
 to the time and place, and court in which the receiver was ap- 
 pointed cannot be raised on a motion in arrest of judgment.' 
 
 ^Ee Van Allen. 37 Barb. 225; Ifew- set-offs existing between the original 
 
 comb V. Almy, 96 N. Y. 308; Bale v. parties. Cox v. Volkert, 86 Mo. 505. 
 
 Cooke, 4 Johns. Ch. 11; Barber v. ^Clarke y. Hawkins, 5 R. I. 219. 
 
 Spencer, 11 Paige, 517; MoUan v. ^Statev. Clinton & P. H. R. Co. 21 
 
 Griffith, 3 Paige, 402. La. Ann. 156; it is res judicata as to 
 
 ^In Re Middle Bistrict Bank, 1 Paige, him. 
 
 585, it was held the debt may fall due * Wilson v. Welch, 157 Mass. 77. 
 
 after the act of insolvency and be a ^Corner v. Bray, 83 Ala. 217. 
 
 proper matter of set-off. See also Van ''Griesel v.Schmal, 55 lud. 475; Spahr 
 
 Wagoner v. Paterson Oaslight Co, 23 v. Nickla^is, 54 Ind. 221; Toledo, W. & 
 
 N. J. L. 283. The general rule is W. R. Co. v. Millifjan, 52 Ind. 505; 
 
 that in a suit by the receiver the de- Harris v. Rivers, 53 Ind. 216. 
 fendant has a right to all defences, or
 
 CHAPTER yil. 
 
 SUITS AGAINST THE RECEIVER. 
 
 § 82. Generally. (g) Where he defends without ob- 
 
 § 83. Order of court necessary. jection. 
 
 § 84. Exceptions to the rule. § 85. In what court receiver may be 
 
 (a) Not necessary in United Statss sued. 
 
 courts. g 86. Suits against receiver for negli- 
 
 (b) Receiver operating railroad in gence. 
 
 foreign state. § 87. When suits against him may be 
 
 (c) In cases of garnishment, enjoined. 
 
 when. § 88. Receiver's defenses. 
 
 (d) Where suit is to fix damages § 89. Character of judgment against 
 
 merely. receiver. 
 
 (e) Levy and sale by judgment §90. Receiver aparty, when necessary. 
 
 creditor. § 91. Receiver may be restrained. 
 
 (f) When receiver has sold prop- § 93. Effect of discharge of receiver 
 
 erty illegally. as to suits against him. 
 
 § 82. GenerrJly. 
 
 As we have already seen, the court appointing a receiver will 
 not permit liim to sue or engage in litigation unless authorized so 
 to do by the court to which he owes his appointment, and not 
 then unless his right appears clear, and favorable results are most 
 probable, or the statute expressly empowers him to sue. The 
 purpose of this rule is to secure an economical administration of 
 the estate, a speedy winding up of the litigation, and a fair and 
 equitable adjustment of the rights of all parties in interest. 
 "Where all conflicting interests can be drawn to the samo jurisdic- 
 tion, a much more comprehensive and intelligent adjudication can 
 be had and entire justice to all parties can be secured thereby. 
 Much stronger reasons exist in regard to suits against a receiver, 
 or the property in his charge, or any interference with or molesta- 
 tion of his administration of the estate, as td the control which 
 the court will exercise over litigation affecting the receivership 
 property. Courts are jealous, and rightfully so, in regard to 
 their possession through the receiver, of the funds or property 
 which they are called upon to administer and distribute, or adju- 
 dicate and determine the rights of parties thereto. It would not
 
 SUITS AGAINST THE RECEIVER. 
 
 183 
 
 be conducive to justice or good government, or in harmony with 
 the fundamental pi-inciples of equity jurisprudence if the posses- 
 sion of a court of competent jurisdiction could be liarrassed and 
 interfered with at the wdiim or will of litigants, in their unseemly 
 scramhles for advantage. 
 
 § 83. Order of court necessary. 
 
 Unless expressly authorized by statute a suit cannot be brought 
 against a receiver without the permission of the court which ap- 
 pointed him.' The court in granting leave to sue must be satis- 
 
 ^Moran v. Slurges, 154 U. S. 275, 38 
 L. ed. 987; Be Swan, 150 U. S. 648, 37 
 L. ed. 1209; Porter v. Sahin, 149 U. 
 S. 473. 37 L. ed. 815; Ex parte Tyler, 
 149 U. S. 181, 37 L. ed. 694; Terns & 
 P. R. Co. V. Cox, 145 U. S. 593, 36 L. 
 ed. 839; Reynolds v. Stockton, 140 U. 
 S. 254, 35 L. ed. 464; Union Nat. Bank 
 V. Bank of Kansas City, 136 U. S. 236, 
 34 L. ed. 346; TJwmpson v. Phenixlns. 
 Co. 136 U. S. 297, 34 L. ed. 413; Sa- 
 vannah V. Jesup, 106 U. S. 565, 27 L. 
 ed. 276; Barton v. Barbour, 104 U. S. 
 126, 26 L. ed. 672; Southern Exp. Co. 
 V. Western N. C. R. Co. 99 U. S. 191, 
 25 L. ed. 319; Davis v. Gray, 83 U. S. 
 16 Wall. 203, 21 L. ed. 447; Wiswall 
 V. Sampson, 55 U. S. 14 Wall. 52, 14 
 L. ed. 322; Avery v. Boston Safe De- 
 posit & T. Co. 72 Fed. Rep. 700; Wer- 
 ner V. Murphy, 60 Fed. Rep. 772; Cen- 
 tral Trust Co. V. East Tennessee, V. & 
 G. B. Co. 59 Fed. Rep. 523, 528; The 
 St. NichoUs, 49 Fed. Rep. 676; Mis- 
 souri P. B. Co. V. Texas P. R. Co. 41 
 Fed. Rep. 311; Olyphant v. St. Louis, 
 Ore. & S. Co. 28 Fed. Rep. 729; Pal- 
 mer V. Scriven, 21 Fed. Rep. 354; Ken- 
 nedy V. Indianapolis C. & L. R. Co. 3 
 Fed. Rep. 99; Jordan v. Wells, 3 
 Woods, 527; Young v. Montgomery & 
 E. R. Co. 2 Woods, 619; Thompson y. 
 Scott, 4 Dill. 508; Barton v. Barbour, 
 3 McArth. 219; Farmers' Loan & T. 
 Co. V, Central R. Co. 2 McCrary. 181 ; 
 Andrews v. Smith, 19 Blatchf. 103; 
 
 Perego v. Bonesteel, 5 Biss. 69; Blake 
 V. Alabama & C. R. Co. 6 Nat. Bankr. 
 Reg. 332; Talladega Mercantile Co. v. 
 Jenifer Iron Co. 102 Ala. 259; Ex parte 
 Printup, 87 Ala. 148; Carlin v. Jo7ies, 
 55 Ala, 624; Pacific R. Co. v. Wade, 91 
 Cal. 449, 13 L. R. A. 754; Phelan v. 
 GaneUn, 5 Colo. 14; DeGraffenried v. 
 Brunsicick & A. R. Co. 57 Ga. 22; 
 Render S071 v. Walker, 55 Ga. 481; Mar- 
 tin V. Atchison, 2 Idaho, 590; Mulca- 
 hey V. Strauss, 151 111. 70; Smith v. 
 United States Exp. Co. 135 111. 279; 
 Wyatt V. Ohio & M. R. Co. 10 111. App. 
 289; Andrews v. Stanton, 18 111. App. 
 163; Wayne Pike Co. v. State, 134 Ind. 
 672; Davis v. Ladoga Creamery Co. 
 128 Ind. 222; Elkhart Car Woi-ks Co. 
 V. Ellis, 113 Ind. 215; Keen v. Breck- 
 enridge, 96 Ind. 69; FortWayne, M. & 
 
 C. R. Co. V. Mellett, 92 Ind. 538; Mori- 
 arty V. Kent, 71 Ind. 601 ; Garver v. 
 Kent, 70 Ind. 428; Herron v. Vance, 
 17 Ind. 595; Allen v. Central R. Co. 
 42 Iowa, 683; Conwell v. Lowrance, 46 
 Kan. 83; Meredith Village Sav. Bank 
 V. Simjjsoji, 22 Kan. 414; St. Joseph & 
 
 D. C. R. Co. V. Smith. 19 Kan. 225; 
 Spalding v. Com. 88 Ky. 138; Eazel- 
 rigg v. Bronaugh, 78 Ky. 62; Porter v. 
 Kingman, 126 Mass. 141 ; Day v. Pos- 
 tal Teleg. Co. 66 Md. 369; Citizens 
 Sav. Bank V. Person, 98 Mich. 173; 
 Kenney v. Ranney, 96 Mich. 617; Peo- 
 ple, Tremper, v. Brooks, 40 Mich. 333; 
 Harding v. Nettleton, 80 Mo. 608;
 
 184 
 
 RECEIVERSHIPS. 
 
 Heath v. Missouri, K. C. & T. R. Co. 
 
 83 Mo. 617; Palys v. Je'>rett, 33 N. J. 
 Eq. 303; Little v. Dusenberry, 46 N. 
 J. L. 614; Re Christian Jensen Co. 128 
 N. Y. 550; Walling v. Miller, 108 N. 
 Y. 177; Rogers v. Wheeler, 48 N. Y. 
 604; Chautanque County Bank v. Ris- 
 ley, 19 N. Y. 369 ; James v. JaTnes Ce- 
 ment Co. 8 N. Y. S. R. 490; Read v. 
 Brayton, 72 Hud, 633; Preston v. 
 I^oughran, 58 Hun, 210; i?e Zoos, 50 
 Hun, 67; Riggs v. Whitney, 15 Abb. 
 Pr. 388; 2)/?/to?- v. Baldicin, 14 Abb. 
 Pr. 166; Miller v. Zoei, 64 Barb. 454; 
 Merritt v. Merritt, 16 "Wend. 405; Z>e- 
 (??wi; V. Jay, 30 Barb. 483; J?e Merritt, 
 5 Paige, 139; iVbe v. Gibson, 7 Paige, 
 513; Parker v. Broicning, 8 Paige, 388; 
 Skinner v. Maxioell, 68 N. C. 400; OWs 
 V. Tucker, 85 Ohio St. 584; Robinson 
 V. Atlantic & O. W. R. Co. 66 Pa. 160; 
 TTmjf V. Hazlett, 6 Phila. 155; CT///ee 
 V. Quidnick Co. 18 R. I. 442; Payne 
 V. i?«a;i;er, 2 Tenn. Ch. 517; Ellis v. 
 Ferwow Ice, L. &W. Co. 86 Tex. 115; 
 Re Merrill, 54 Vt. 200; Reed v.Axtell, 
 
 84 Va. 231; Melendy v. Barbour, 78 
 Ya. 544, 2>«««s v. Snead, 33 Gratt. 705; 
 Brown Y. Ranch, 1 Wash. 500; Garden 
 City Bkg. & T. Co. v. Geilfim, 86 Wis. 
 632; Littlejohnv. Tiirner, 73 Wis. 124; 
 Jones V. Browse, 32 W. Va. 444; i?MS- 
 se^^ V. East Anglian R. Co. 3 Macn. & 
 G. 104; Ex 2jarte Cochrane, L. R. 20 
 Eq. 383; Searle v. Choate, L. R. 25 Ch. 
 Div. 723; Lane v. Capsey \\%^\'\Z Ch. 
 411; Evelyn v. Lewis, 8 Hare, 473; 
 Ware? V. Swift,% Hare, 312; Parr v. 
 5e^?, 9 Ir. Eq. 55; Re Persee. 8 Ir. Eq. 
 Ill; Tink v. Bundle, 10 Beav. 318; 
 Swaby v. Dickon, 5 Sim. 629; Angel v. 
 Smith, 9 Ves. Jr. 335; Randfield v. 
 Randfield, 8 DeG. F. & J. 776. 
 
 The rule of not allowing suits against 
 receivers without leave applies to 
 United States courts, and will be main- 
 tained in those courts where the re- 
 ceiver has been appointed in a state 
 court, even though the state court has 
 
 refused to permit the receiver to sue 
 or be made a defendant. Porter v. 
 Sabin, 149 U. S. 473, 37 L. ed. 815. 
 And the rule applies to an action for 
 personal injuries received on a rail- 
 road in the hands of a receiver; the 
 recovery of a money demand, dam- 
 ages, or for the recovery of the prop- 
 erty in the receiver's possession. Bar- 
 ton V. Barbour, 104 U. S. 126, 36 L. 
 ed. 672. And where the action is on 
 a money demand, the complaint must 
 allege leave of court obtained. li^een 
 V. Brecken7'idge, 9Q Ind. 69. It also 
 applies to an action in tort where the 
 permission is asked to pursue redress 
 in an action at law. Palys v. Jewett, 
 82 N. J. Eq. 302. This is based on 
 the ground that a chancery court will 
 not try questions of tort. 
 
 Where a receiver appointed by the 
 supreme court dies, a purchaser from 
 one of the litigants pending the litiga- 
 tion will not be allowed to interfere 
 with the possession of a new receiver 
 by an independent suit, without leave 
 of court first had and obtained by per- 
 mission pro interesse suo. 
 
 Brien v. Paul, 3 Tenn. Ch. 357. 
 
 Any title such purchaser might ac- 
 quire at a tax sale of the property 
 would inure to the. successful liti- 
 gant. 
 
 Brien v. Paul, supra. 
 
 The rule that leave should be 
 granted by the court appointing a 
 receiver, before bringing suit against 
 him, is sufficiently complied with 
 where such leave is granted by the 
 judge in vacation and the suit is after- 
 wards tried by him in term time. 
 Wade V. Ringo, 63 Mo. App. 414. 
 
 A service of summons on a receiver 
 will be set aside where the plaintiff 
 has not obtained permission of the 
 court to maintain the action. Mala- 
 ney v. Atkins 1 Lack. L. News, 252. 
 
 Permission of the court appointing 
 a receiver must be obtained before
 
 SUITS AGAINST THE RECEIVER. 185 
 
 fied that there is a prima facie case established against the re- 
 ceiver," and the petition can only be entertained by the court of 
 equity making the appointment," but where the court has once 
 granted permission to sue it is a breach of judicial discretion to 
 revoke such an order when costs have accrued in pursuance of 
 such order by the person to whom permission is given/ Where 
 the leave of court is asked permission will not be denied unless 
 the claim is manifestly unfounded and vexatious.* It is the duty 
 of the court to enquire into the facts before action is taken on 
 the petition for leave/ The claimant must present his claim in 
 the nature of a formal bill or petition containing appropriate alle- 
 gations so that issues may be formed thereon/ Leave to serve 
 the receiver of a corporation does not determine that the cause of 
 action is a good one against the receiver, or that the receiver is 
 liable/ A motion for leave to sue cannot be made in one judi- 
 cial district while a general order made by the court in another 
 district restraining all interference with the receiver is in force; 
 the general order must first l^e vacated or modified;* nor will the 
 court grant leave to sue its receiver out of its jurisdiction/ Where 
 property has passed into the actual possession of the receiver, 
 
 commencing an action against him. Iron Go. 102 Ala. 259; Renfrov. Goet- 
 
 Melaney v. Atkins, 4 Pa. Dist. R. ter, 78 Ala. 314; Gowles v. Andreics, 39 
 
 644. Ala. 130. 
 
 The receivers of a railroad company In Ex parte Printup, 87 Ala. 148, 
 
 located in another state may be sued the court say: "When a person not 
 
 in the courts of New York where a party to a pending suit between 
 
 leave is granted by the court appoint- whom and the complainant there is 
 
 ing them. Carrey v. Spencer, oluievs. no privity, but who has a claim or 
 
 Com. Rep. 636, 72 N. Y. S. R. lien on the property, or is interested 
 
 108. in the subject-matter of the suit, de- 
 
 ^ Jordan v. Wdls, 3 Woods, 527; Uills sires for his own protection to present 
 
 V. Parker, 111 Mass. 508. his claim, to assert his independent 
 
 ^Palmer v. Scriven, 21 Fed. Rep. right, and raise new issues, he must 
 
 354; Martin v. Atchison, 2 Idaho, 590. do so by formal bill containing appro- 
 
 3 Conwell v. Lowrance, 46 Kan. priate allegations — an original bill in 
 
 83. the nature of a cross-bill or of a sup- 
 
 *Palys V. Jewett, 82 N. J. Eq. 302; plemental bill as the case may be. 
 
 Lane v. Gapsey [1891] 3 Ch. 411; f Fleiscliauer v. Diltenhoefer , 17 
 
 Randfield v. Randfidd, 3 DeG. F. & Jones & S. 311. 
 
 J. 766. ^ Wilkinson v. North River Gonst. Go. 
 
 ^Lehigh Goal & Nav. Co. v. Central 66 How. Pr. 423. 
 
 B. Co. 38 N. J. Eq. 175. ^Central Trust Go. ^.Wabash, St. L. 
 
 ^Talladega Mercantile Go. v. Jenifer &, P. R. Co. 23 Fed. Rep. 858.
 
 186 RECEIVERSHIPS. 
 
 leave to sue is necessary, even though tlie corporation for whose 
 property the receiver is appointed obtained and retained jDosses- 
 sion wrongfully.' Leave will not be granted to establish a lien 
 where the receiver has been appointed to prevent a multiplicitj^ 
 of suits and to determine all claims.^ 
 
 As illustrating the extreme jealousy with which the court guards 
 the possession of the receiver, and protects him from interference 
 it has been held that where a judgment creditor obtained a judg- 
 ment prior to the receiver's appointment, and levied on real estate 
 and sold it afterwards without leave of court the deed issued on 
 such sale was void, for the reason that the land being in the cus- 
 tody of the receiver was in gremio legis and no rights were ob- 
 tained by the purchaser,^ though it is proper to state, in this con- 
 nection, that the authorities upon the doctrine are not uniform. 
 
 § 84. Exceptions to the rule. 
 
 To the foregoing rule requiring from the court appointing the 
 receiver permission to sue the receiver, there are the following 
 exceptions : (a) By act of Congress March 3, 1887, corrected by 
 act of March 13, 1888, and known as the "Judiciary Act," it is 
 
 'i?e Christian Jensen Co. 128 N. Y. or by sequestration the title is bound 
 
 550. from the filing of the bill; and any 
 
 'i?e Eerbst, 63 Hun, 247. An orig- purchaser 2^endente lite, even if for a 
 
 inal bill against a receiver by a party valuable consideration comes in at his 
 
 to the suit in which the receiver is ap- peril," citing Crcfts v. Old-field, 3 
 
 pointed is unwarranted and a con- Swanst. 278 note; Bird v. LittleJiales, 3 
 
 tempt of court. Payne v. Baxter, 2 Swanst. 299 note; Anon. 6 Ves. Jr. 287 
 
 Tenn. Ch. 517. (where a cause was referred to a mas- 
 
 ^Dugger v. Collins, 69 Ala. 324; to ter to determine whether the parties 
 
 the same effect are Wisicall v. Samp- would be benefited by directing the 
 
 son, 55 U. S. 14 How. 52, 14 L. ed. receiver to defend in an action of eject- 
 
 322; Robinson v. Atlantic & 6. W. R. ment); Angel v, Smith, 9 Ves. Jr. 335. 
 Co. 66 Pa. 160; Martin v. Davis, 21 Where permission is given to sue 
 
 Iowa, 585; Bentley v. Shrieve, 4 Md. the receiver and after suit was brought 
 
 Ch. 412. But see Albany City Bank the party to whom permission was 
 
 v. Schermerhoi'n, 9 Paige, 372. granted took proceedings to remove 
 
 In Wiswall v. Sampson, supra, the the cause to the United States court 
 
 court says: " The settled rule also ap- it was held the court granting such 
 
 pears to be that where the subject- permission could revoke the order 
 
 matter of the suit in equity is real es- and dismiss the suit. Meredith Vil- 
 
 tate and which is taken into the pos- lage Sav. Bank v. Simpson, 22 Kan. 
 
 session of the court pending the litiga- 414. 
 tion, by the appointment of a receiver,
 
 SUITS AGAINST THE RECEIVER, 
 
 187 
 
 provided in section 3 as follows : "That every receiver or mana- 
 ger of any property appointed by any court of the United States 
 may be sued in respect of any act or transaction of his in carryiuo- 
 on the business connected with such property without the previ- 
 ous leave of the court in which such receiver or manager was ap- 
 pointed ; but such suit shall be subject to the general equity juris- 
 diction of the court in which such receiver or manager was ap- 
 jDointed, so far as the same shall be necessary to the ends of jus- 
 tice." " 
 
 (b) Where a receiver is engaged in operating a railroad in an- 
 other state than the one in which he is appointed, and is thus 
 engaged in the business of a common carrier, he is liable to such 
 actions at law as may be brought against him therein. Such receiv- 
 ers cannot be awarded exemptions from the ordinary common law 
 
 »25 Gen. Stat. 433. It Las been held 
 that the terms of this statute are to be 
 construed to extend to any court of 
 competent jurisdiction, federal and 
 state courts alike, and are not con- 
 fined to the court appointing the re- 
 ceiver. Central Trust Co. v. East 
 Tennessee, V.& G. R. Co. 59 Fed. Rep. 
 523; 3IcNnlta v. Lochridge, 141 U. S. 
 327, 35 L. ed. 796; Texas & P. R. Co. 
 V. Johnson, 151 U. S. 81, 38 L. ed. 81; 
 Dillingham v. Russell, 73 Tex. 47, 3 
 L. R. A. 634. Garnishment proceed- 
 ings are not proceedings against a re- 
 ceiver for any act of his and are not 
 subject to the provisions of said act. 
 Central Trust Co. v. East Tennessee, V. 
 <fc G. R. Co. supra. As to matters rela- 
 tive to the seizure of receivership 
 property for the nonpayment of taxes, 
 and the proper course of procecdure, 
 see Re Tyler, 149 U. S. 164, 37 L. 
 ed. 689; consent not necessary to re- 
 cover personal injuries by a passenger; 
 Fullerton v. Fordyce, 121 Mo. 1; For- 
 dyce v. Withers, 1 Tex. Civ. App. 540. 
 The general rule not allowing suit 
 against a receiver without leave of the 
 court appointing him does not apply 
 to suits under federal laws involving 
 
 questions as to the validity of and 
 infringements of letters patent. Rup- 
 feld v. Automaton Piano Co. 66 Fed. 
 Rep. 788. 
 
 A state statute exempting a receiver 
 from garnishment has no effect in a 
 federal court outside the state. Cen- 
 tral T. Co. V. Chattanooga, R. & C. R. 
 Co. 2 Am. & Eng. Corp. Cas. No. 
 493. 
 
 The Act of Congress of Aug. 13, 
 1888, allowing suits against federal 
 receivers without leave, has no appli- 
 cation to garnishment of a receiver in 
 the court of his appointment. Cen- 
 tral T. Go. V. Chattanooga R. & C. R. 
 Co. 2 Am. & Eog. Corp. Cas. N. S. 
 493. 
 
 A garnishment proceeding against 
 a receiver is not within Sayles's (Tex.) 
 Civ. Stat. art. 1468, providing that a 
 receiver in possession of property un- 
 der order of the court may be sued in 
 his official capacity, and if a judg- 
 ment is recovered against him it shall 
 be the duty of the court to order it 
 paid out of funds in his hands as re- 
 ceiver. Kreisle v. Campbell (Tex.) 33 
 S. W. 852, denying writ of error in 
 32 S. W. 581.
 
 188 
 
 RECEIVERSHIPS. 
 
 liabilities of common can-iers more extensive than tliey are allowed 
 in the state in which they are appointed and in the state in which 
 the cause of action occurred.' 
 
 (c) Where the court issuinj^ a garnishee process is in another 
 state than tlie one in which the receiver is appointed, consent of 
 the latter court has been held not to be necessary.^ 
 
 (d) "Where the purpose of the suit is not to disturb the re- 
 ceiver but fix the amount of damages sustained by reason of per- 
 sonal injuries, there being no injunction from the cliancery court, 
 and no leave to prosecute obtained, the judgment is held to be 
 good.^ 
 
 (e) Where a creditor obtains a judgment and levies upon and 
 sells real estate of the debtor by virtue of a lien acquired under 
 his judgment, he obtains a good title to the real estate as against 
 a purchaser from the receiver who receives his title from the 
 debtor by virtue of a conveyance made by order of court, subse- 
 quent to the attaching of the judgment lien, though no leave of 
 court is asked or obtained,* 
 
 ^ Paige v. Smith, 99 Mass. 395; Fol- 
 ger v. Columbian Ins. Co. 99 Mass. 
 276; Blumenthal v. Brainard, 38 Vt. 
 408. Where the same person is re- 
 ceiver of one railroad and lessee of an- 
 other, both being operated by him to- 
 gether, a suit may be maintained at 
 law without leave for injuries result- 
 ing from the negligence of his servants 
 in operating the leased road. Lyman 
 V. Central Vermont R. Co. 59 Vt. 167. 
 And such action may be maintained 
 against the receiver where the injury 
 occurred at a point where the receiver 
 was in charge. Lyman v. Central 
 Vermoyit R. Co. 59 Vt. 167. 
 
 ^Phelan v. Ganebin, 5 Colo. 14. In 
 this case it was held that where leave 
 might be properly sought, a failure to 
 do so was nothing more than a con- 
 tempt of the appointing court, and 
 ■was not a bar to the jurisdiction of a 
 court of law, and no defense to an 
 otherwise legal action, and is contrary 
 to the doctrine announced in Wiswall 
 
 V. Sampson, 55 U. S. 14 How. 52, 14 
 L. ed. 322; Robinson v. Atlantic & G. 
 W. R. Co. 66 Pa. 160; and other Eng- 
 lish and American authorities, but is 
 sustained in principle by Albany City 
 Bank v. Schermerhorn, 9 Paige, 372. 
 See also Fithian v. New York & E. 
 R. Co. 31 Pa. 114. 
 
 ^Kinney v. Crocker, 18 Wis. 74; 
 Allen v. Central R. Co. 42 Iowa, 683. 
 See also Paige v. Smith, 99 Mass. 395; 
 Hill V. Parker, 111 Mass. 508; Camp 
 v. Barney, 4 Hun, 373; Chautauque 
 County Bank v. Risley, 19 N. Y. 376; 
 Contra, Wiswall v. Sampson, 55 U. S. 
 14 How. 52, 14 L. ed. 322. 
 
 *C7iautauque County Bank v. Risley, 
 19 N. Y. 369; the principle upon which 
 this decision is based in that the ob- 
 taining of leave of the chancery court 
 appointing a receiver is not a juris 
 dictional fact affecting the legality of 
 the sale, or the validity of the title 
 thereunder, though, perhaps, subject- 
 ing the person to punishment for con-
 
 SUITS AGAINST THE RECEIVER 
 
 189 
 
 (f) Where the receiver has sold property that does not belong 
 to or is not a part of the receivershijD property he may be sued by 
 the owner in an action of trover without obtaining an order for 
 leave to sue.' 
 
 (g) Where a receiver has joined issue without objection it is too 
 late to urge that leave to sue was not obtained.^ 
 
 Although the general rule is that a j^arty must apply to the 
 court for leave before he sues a receiver, yet an action brought 
 against a receiver without leave is regular until the court inter- 
 feres, and a judgment therein is valid.' 
 
 tempt, but see contra Wmcall v. Samp- 
 eon, 55 U. S. 14 How. 53, 14 L. ed. 
 322. 
 
 ^Eenney v. Eanncy, 96 Mich. 617; 
 in this case Hooker, Ch. J., says: 
 "We understand it to be the settled 
 law, that when one by a trespass takes 
 the property of another and sells it he 
 is liable for the conversion, and that 
 no demand is necessary, and the ques- 
 tion of good or bad faith is not neces- 
 sarily involved. This doctrine is ap- 
 plied solely in cases against sheriffs 
 and constables where property is un- 
 lawfully seized and sold upon execu- 
 tion. The defendant wrongfully took 
 property of the plaintiff and sold it. 
 It is no defense to say, 'I supposed I 
 had authority to do so.' He should 
 have seen to it that he sold no prop- 
 erty except that mortgaged." 
 
 In the case of llills v. Parker, 111 
 Mass. 508, the court say: "The decree 
 of a court of chancery appointing a 
 receiver entitled him to its protection 
 only in the possession of property 
 which he is authorized or directed by 
 the decree to take possession of. 
 When he assumes to take or hold 
 possession of property not embraced 
 in the decree appointing him and to 
 ■which the debtor never had any title, 
 he is not acting as the officer or repre- 
 sentative of the court of chancery, 
 but is a mere trespasser, and the right- 
 
 ful owner of the property may sue 
 him in any appropriate form of ac- 
 tion for damage or to recover posses- 
 sion of the property illegally taken or 
 detained." Citing Parker v. Brown- 
 ing, 8 Paige, 388; Paige v. Smith, 99 
 Mass. 395; Leighton v. Haririood, 111 
 Mass. 67; In Re Young, 7 Fed. Rep. 
 855, Curran v. Craig, 22 Fed. Rep. 
 101; but see Barton v. Barbour, 104 
 U. S. 126, 26 L. ed. 672. 
 
 ^Elkhart Car Works v. Ellis, 113 
 Ind. 215; Jay's Case, 6 Abb. Pr. 293; 
 Hubbell V. Dana, 9 How. Pr. 424; Re 
 Young, 7 Fed. Rep. 855; Naumburg 
 V. Hyatt, 24 Fed. Rep. 898. 
 
 ^Ilackley v. Draper, 4 Thomp. & C. 
 614, affirmed in GO N. Y. 88. It has 
 been held, however, that leave to sue 
 is a jurisdictional requisite which can- 
 not be waived by the receiver, and 
 under the Washington Code can be 
 raised at any time. Brown v. Rauch, 
 6 Wash. 500; Barton v. Barbour, 104 
 U. S. 126, 26 L. ed. 672; Ecen v. 
 Breckenridge, 96 Ind. 69; Martin v. 
 Atchison, 2 Idaho, 590, and T/wmpson 
 V. Scott, 4 Dill. 508. The contrary 
 doctrine is held in St. Joseph cfe D. C. 
 R. Co. V. Smith, 19 Kan. 225; in that 
 case it was conceded that thQ court 
 appointing a receiver might draw to 
 itself all controversies to which the 
 receiver is a party, or which affect 
 the property under his control, yet it
 
 190 
 
 RECEIVERSHIPS. 
 
 § 85. In what court receiver may be sued. 
 
 Wliere it is claimed that the plaintiff has equitable ino-hts which 
 are superior to the rights of the receiver derived under the order 
 of court, the court in which the receiver was appointed is the only- 
 court that can pass upon such conflicting rights, and it must be in 
 the cause in which the receiver was appointed and not by an in- 
 dependent suit.' But in a case where disputed facts are involved 
 the court may, on its own motion, or on the proper application of 
 the parties permit a suit at law to be brought for the purpose of 
 determining and settling the disputed facts, or direct the trial 
 
 does so only by direct action upon 
 parties by way of injunction or pro- 
 ceedings as for contempt, and the ap- 
 pointment in no manner affects the 
 ordinary jurisdiction of oilier tribu- 
 nals. And to the same effect is Mul- 
 cahey v. Strauss. 151 111. 70; Kinney 
 V. Crocker, 18 Wis. 74; Roxbury v. 
 Central Vermont R. Co. 60 Vt. 121; 
 Lyman v. Central Vermont R. Co. 
 59 Vt. 187, and Allen v. Central R. 
 Co. 42 Iowa, 683. In BlumentJial v. 
 Brainerd, 38 Vt. 402, the court say: 
 "A court of chancery will protect a 
 person acting under its process on 
 authority, in the execution of a decree 
 or decretal order against suits at law; 
 and will compel parties to apply to 
 that court for relief. This protection 
 is accorded by that court to its offi- 
 cers only on their own application 
 and is granted by the chancellor in 
 the exercise of his discretion and it is 
 to be presumed that it would be 
 granted in any necessary or proper 
 case for such relief." Whether the 
 court will try all controversies in the 
 case in which the receiver is appointed 
 or refer the matter to another court in 
 an independent proceeding is wholly 
 a matter in its discretion. Kennedy 
 V. Indianapolis, C. & L. R. Co. 3 Fed. 
 Rep. 97; Melendy v. Barbour, 78 Va. 
 544. If equitable rights are involved 
 the court will hear them on petition. 
 
 Porter v. Kingman, 126 Mass. 141 ; 
 Olds v. Tucker, 85 Ohio St. 581. The 
 right to appeal in such cases is not 
 granted except for abuse. Mechanics 
 Nat. Bank v. Landauer, 65 Wis. 44. 
 
 Every claim presented against a 
 fund in the hands of a receiver, if 
 contested before the court appointing 
 the receiver, becomes, in effect, a suit 
 against the receiver and is ended by a 
 final judgment allowing or rejecting 
 the claim; and any party in the contest 
 desiring to appeal may do so. Fagan 
 v. Boyle Ice M.aeh. Co. 65 Tex. 324. 
 Cf Coicdrey v. Oalveston, H. & H. R. 
 Co. 93 U. S. 352, 23 L. ed. 950. 
 
 '^Porter v. Kingman, 126 Mass. 141 ; 
 citing Columbia Book Co. v. De Oolyer, 
 115 Mass. 67; Atlas Bank v. Naliant 
 Bank, 23 Pick. 480; Wiswall v. Samp- 
 son, 55 U. S. 14 How. 52, 14 L. ed. 
 322; Noe v. Gibson, 7 Paige," 513; An- 
 drews V. Stanton, 18 111. App. 163; 
 Robinson v. Atlantic & G. W. R. Co. 
 66 Pa. 160; Russell v. Kast Anglian R. 
 Co. 3 Macn. & G. 104; Mechanics' 
 Nat. Bank v. Landauer, 68 Wis. 44; 
 Pacific R. Co. V. Wade, 91 Cal. 449, 
 13 L. R. A. 754; Re Merrill, 54 Vt. 
 200; Olyphant v. St. Louis, Ore. & 8. 
 Co. 28 Fed. Rep. 729; Central Trust 
 Co. V. Wabash, St. L. & P. R. Co. 28 
 Fed. Rep. 871; Olds v. Tucker, 35 
 Ohio St. 581.
 
 SUITS AGAINST THE RECEIVER. 
 
 191 
 
 of a feigned issue to settle the facts.* It has been contended that 
 by reason of the chancery court, in which the receiver is ap- 
 pointed, drawing to itself all matters of claims against the re- 
 ceiver and compelling a trial of the issues in that court, it is, in 
 effect, a violation of the constitutional right of trial by jurv,^ but 
 inasmuch as the constitutional right of a trial by jury does not 
 extend to cases of equity jurisdiction, that question has no valid 
 significance/ Xeither is the rule requiring consent altered by the 
 constitutional right to sue in federal courts in certain cases.* 
 The granting of leave to sue in an independent action, or refusal, 
 rests in the sound discretion of the court to which application is 
 made, and the appellate court will not interfere unless there has 
 been a manifest abuse of the discretion.' 
 
 ^Barton v. Barbour, 104 U. S. 126, 
 26 L. ed. 672; Wyatt v. Ohio & M. R. 
 Co. 10 111. App. 289. This was a suit 
 against a railroad company over which 
 a receiver had been appointed. A 
 federal court receiver maj^ be sued in 
 a state court. Southern P. R. Co. v. 
 Maddox, 75 Tex. 300; St. Joseph & D. 
 G. R. Co. v. Smith, 19 Kan. 225. 
 
 ^Palys v. Jeicett, 32 N. J. Eq. 302; 
 Kiniuy v. Crocker, 18 "Wis. 74; Allen 
 v. Central R. Co. 42 Iowa, 683; Pacific 
 R. Co. v. Wade, 91 Cal. 449, 13 L. R. 
 A. 754. 
 
 ^Barton v. Barbour, 104 U. S. 126, 
 26 L. ed. 672; Providence Rubber Co. v, 
 Goodyear, 76 U. S. 9 Wall, 788, 19 L. 
 ed. 566; Illinois C. R. Co. v. Turrill 
 VCawood Patent"), 94 U. S. 695, 24 L. 
 ed. 238; 2Iarsh v. Seymour, 97 U. S. 
 348, 24 L. ed. 963. 
 
 *Reed v. Axtell, 84 Va. 231; Melendy 
 V. Barbour, 78 Va. 544, but see Barton 
 V. Barbour, 140 U. S. 126, 26 L. ed. 
 672; Brown v. Ranch, 1 Wash. 497, 
 where it is held that obtaining leave is 
 a jurisdictional fact. 
 
 ^Mechanics'' Nat. Bankv. Landauer, 
 68 Wis. 44; Meeker v. Sprar/ue, 5 
 Wash. 242. Though the receiver can- 
 not appeal in a suit against him the 
 
 opposite party may. Melendy v. Bar- 
 bour, 78 Va. 544; Mecha7iics' Kat. 
 Bank v. Landauer, 68 Wis. 44. And 
 permission may be revoked by the 
 court granting permission. Meredith 
 Village Sav. Bank v. Simpson, 22 
 Kan. 414; Henderson v. Walker, 55 Ga. 
 481. 
 
 The discretion above referred to 
 resting with the court relates to the 
 matter of granting leave to bring an 
 independent suit, or of requiring the 
 applicant to intervene, in the original 
 suit in which the receiver is ap- 
 pointed, by petition. Davis v. Michel- 
 bacher (Wis.) 31 N. W. 160; Melendy 
 V. Barbour, 78 Va. 544; Central 'Trust 
 Go. V. Wabash. St. L. & P. R. Co. 23 
 Fed. Rep. 858; and if the interested 
 parties are required to intervene it 
 likewise is in the discretion of the 
 court whether the issue shall be tried 
 by a jury or referred to a master. 
 Kennedy v. Indianapolis, G. & L. R. 
 Go. 3 Fed. Rep. 97. It is an excep- 
 tional case under peculiar facts and 
 circumstances where the court will 
 permit a suit against a receiver in an- 
 other court. Meredith Village Sav. 
 Bank v. Simpson, 23 Kan. 414; Re 
 Piatt, 52 How. Pr, 468; Palmer v.
 
 192 RECEIVERSHIPS. 
 
 In all cases where it is necessary to make the receiver a defend- 
 ant by leave of court, the bill or petition must alle*^e that it is 
 filed by such leave of court.' 
 
 Actions ag-ainst a receiver are in law actions aj^ainst the receiv- 
 ■ership, or the funds in the hands of the i-eceiver, and his con- 
 tracts, misfeasance, neglii>ence and liability are official and not 
 personal, and judgments against him as receiver are payable only 
 from the funds in his hands." 
 
 § SQ. Suits against receiver for negligence. 
 
 After leave of court the receiver of an insolvent railroad com- 
 2)any may be sued for the negligence of his employees, resulting 
 in a passenger's death,' but he is not a proper defendant, and 
 ought not to be substituted for the railroad company in an action 
 for a trespass committed by the company before his appointment.* 
 But he may be a defendant in an action of tort growing out of 
 the acts of the servants of his predecessor f not, however, for 
 injuries resulting in death caused by negligence of his employees, 
 where the suits are exclusively statutory.^ It is otherwise, however, 
 where the proceeding is based upon the negligence of his agents 
 in operating a railroad, where the suit is a common law proceed- 
 
 Scriven, 21 Fed. Rep. 354. Where * Deckers. Ga?-(Z?ier, 124 N. Y. 334, 
 
 permission is given to sue in another 11 L. R. A. 480, reversing 33 N. Y. S. 
 
 court, the judgment if rendered W. ^il; Pringle\.Woohoorth,^O^.Y. 
 
 against the receiver must be presented 502; Arnold v. Suffolk Bank, 27 Barb, 
 
 as a claim and the method of payment 424; Fleischauer v. Dittenhoefer, 17 
 
 determined by the court granting Jones & S. 311; Metropolitan Trust 
 
 leave to sue and in which the receiver Co. v. Tonawanda S. & 0. B. Co. 103 
 
 was appointed. Harding \. Nettleton, N. Y. 245; Raid v. Attrill, 106 N. Y. 
 
 86 Mo. 658. 423. But see Pickersgill v. Myers i& 
 
 ^ Burk Y. Muskegon Mach. & F. Co. L. F. Ins. Co. 99 Pa. 602; Combs v. 
 
 98 Mich. 614; Steel Brick Siding Co. Smith, 78 Mo. 32. 
 
 V. Muskegon Mach. & F. Co. 98 Mich. ^ Mc Nulla v. Lockridge, 137 111. 270, 
 
 016. aflfirming 32 111. App. 86, and affirmed 
 
 ^McNulta v. LochHdge, 141 U. S. in 141 U. S. 327, 35 L. ed. 796. Or a 
 
 327, 35 L. ed. 796, affirming 137 111. tort of the corporation before his ap- 
 
 270; Texas & P. R. Co. v. Cox, 145 U. pointment. Combs v. Smith, 78 Mo. 
 
 S. 593, 36 L. ed. 829; The St. Nich- 32; Com. v. Bunk, 26 Pa. 235. 
 
 olas, 49 Fed. Rep. 671; Woodruff v. ^Houston & T. C. R. Co. v. Roberts 
 
 Jewett, 37 Hun, 205. (Tex.) 19 S.W. 512; Texas & P. R. Co. 
 
 '* Little v. Dusenberry, 46 N. J. L. v. Collins, 84 Tex. 121; Yookum v. 
 
 614; The St. Nicholas, 49 Fed. Rep. Selph, 83 Tex. 607; Turner v. Cross, 
 
 671. «3 Tex. 218, 15 L. R. A. 262.
 
 SUITS AGAINST THE RECEIVER. 
 
 193 
 
 ing.' Mandamus is not sustainable against a corporation and 
 receiver where the latter is proceeding- in the execution of his 
 trust under the directions and orders of the court appointing 
 ■him.' 
 
 § 87. When suits a;^ainst him may be eiijoiiied. 
 
 In proceedings for the dissolution of an insurance company 
 where a receiver has been appointed, the court may enjoin an 
 action brought by a policy holder against such receiver for the 
 purpose of declaring the debts and obligations of the company 
 and distributing the assets,^ and generally where the result of the 
 
 1 Little V. Dusenherry, 46 N. J. L. 
 614. In this character of case it has 
 been held that leave of court is not 
 required. 
 
 ^ State, WasJiington County Comrs. v. 
 Marietta & C. B. Co. 35 Ohio St. 154; 
 Merrill v. Lake, 16 Ohio, 405. 
 
 ^Atty. Gen. v. North America L. 
 Ins. Co. 6 Abb. N. C. 293. In an ac- 
 tion brought by the attorney general 
 under the statutes, such policy hold- 
 ers may appear, even after the ap- 
 pointment of a receiver, and be made 
 parties to the action, and thus give 
 them the right to appeal in matters 
 affecting their interests. So also will 
 a suit be enjoined where the defend- 
 ant in an action brought by a widow 
 entitled to dower, where such defend- 
 ant has been placed in possession by 
 a receiver. Coleman v. Qlanville, 18 
 -Grant Ch. (Ont.) 42. If an action 
 to recover though friendly will ham- 
 per the court and receiver in the per- 
 formance of their duties, and greatly 
 increase the costs and expenses of the 
 trust, it should be enjoined. Atty. 
 ■Gen. V. North American L. Ins. 
 Co. supra. The rule is stated in 
 Evelyn v. Lewis, 3 Hare, 472, by 
 the vice chancellor as follows; "If 
 a party claiming a right in the same 
 subject-matter was in possession of 
 the rights which he claimed at the 
 13 
 
 time the receiver was appointed, the 
 appointment of the receiver left him 
 in such possession; if, on the other 
 hand, the claimant was out of posses- 
 sion, he must apply for the leave of 
 this court before he instituted any 
 legal proceedings affecting the pos- 
 session which the receiver had ac- 
 quired. The court had then an op- 
 portunity of considering and in a 
 sense of trying the right of the appli- 
 cant to proceed at law before it sanc- 
 tioned the proceeding. How far that 
 preliminary trial in this court should 
 go might depend on the circumstances 
 of the case. Whether the party pro- 
 ceeding at law did or did not know 
 that a receiver had been appointed 
 over the property, or however clear 
 the right of the claimant might be, 
 the court would restrain the prosecu- 
 tion of the claim if it were instituted 
 without the leave of this court." Cf. 
 Tink V. Bundle, 10 Beav. 318; Be 
 Persse, 8 Ir. Eq. Ill; Batchelor v. 
 Bloke, 1 Hog. 98; Swahy v. Dickon, 5 
 Sim. 620; Parr v. Bell, 9 Ir. Eq. 55. 
 
 And where a petition is filed in the 
 court in which the receiver was ap- 
 pointed for leave to sue the receiver, 
 the petition must state a prima facie 
 cause of action against him. The 
 court should not allow its receiver to 
 be harrassed by a suit where, accord-
 
 194: RECEIVERSHIPS. 
 
 suit will disturb the possession of the receiver, the suit will be 
 restrained if prosecuted without the consent of the court. 
 
 In a special proceeding to wind up a corporation and distribute 
 its assets, where a suit is Ijrought against the receiver, the inevita- 
 ble effect of which is to interfere with the action of the receiver 
 and hamper and annoy him in tlie performance of his duty, and 
 when the person suing has ample opportunity in the original pro- 
 ceeding in which the receiver is appointed to obtain all his rights, 
 the court will enjoin a suit instituted against a receiver.' But 
 this protection by injunction will not be extended to a case in 
 which it is uncertain whether the receiver is personally or 
 officially liable.^ The court will not permit a suit against a 
 receiver to restrain him, even when the act complained of is 
 beyond the scope of the receiver's power.' But in such case the 
 application for relief should be made in the case in which the 
 receiver was appointed. In regard to the protection of the court 
 to the receiver, by injunction or otherwise, it must be under- 
 stood to have reference to the receivership property, and not 
 property which the receiver may take possession of not embraced 
 in the order of appointment.* 
 
 § 88. Receiver's defenses. 
 
 Unless restricted by order of court, the receiver in an action to 
 liquidate partnership affairs, may intervene in a suit against the 
 firm and set up as many defenses as he may have reason to be- 
 lieve can be sustained, notwithstanding such defenses might inure 
 to the benefit of the members of the firm, though not pleaded by 
 them ; ' and in an action for personal injuries received during the 
 time he is operating a railroad he may plead the statute of limi- 
 tations.' The fact that a railroad is in the hands of a receiver is 
 no defense to an action brought on a statutory liability for a 
 
 ing to his own showing, the plaintiff ^ Searle v. Choat, L. R. 25 Ch. Div. 
 
 has no cause of action. Jordan v. 723. And this is especially so under 
 
 Wells, 3 "Woods, 527. And it seems the Judicature Acts. 
 
 that leave may be granted without * Curran v. Craig, 22 Fed. Rep. 101 ; 
 
 notice. Potter v. Brunnell, 20 Ohio Re Young, 7 Fed. Rep. 855. 
 
 gt. 150. ' Honegger v. Wettsiein, 15 Jones 
 
 ' Atty. Gen. v. North America L. «fc S. 125. 
 
 Ins. Co. 6 Abb. N. C. 293. But see « Bartlettv. Eeim, 50 N. J. L. 2C0. 
 Jay's Case, 6 Abb. Pr. 293. 
 
 '^ Re The Original Harileypool Col- 
 leries Co. 51 L. J. Ch. 508.
 
 SUITS AGAINST THE RECEIYER. 195 
 
 failure to fence the road.' In general, a receiver may, and it is 
 his duty, to defend on all legal grounds where the action may 
 result in a judgment against funds or property in his possession, 
 and as a rule all defenses that might have been available had a 
 receiver not been appointed, are available to him in his official 
 capacity.^ To be entitled to costs for defending he must procure 
 consent of the court to do so/ 
 
 § 89. Character of jiulgnient against receiver. 
 
 In an action brought by a creditor of a corporation against a 
 receiver thereof no personal judgment can be rendered against 
 the receiver ; it must be against him in his official character, and 
 nmst be payable out of the funds of the receiver held by him in 
 his official character," A judgment in a state court is not con- 
 clusive as against a receiver in a United States court, where suit 
 was brought without leave, and the latter court may inquire 
 whether the intervenor, in whose favor the state court rendered 
 judgment, has a lien and the rank and amount thereof." The 
 contracts, misfeasances, negligence, and liabilities of the receiver 
 are official, and not personal.^ A judgment against a corporation 
 
 ' Ohio & M. R. Co. V. Russell, 115 '^11; McEversY. Laicrence,'S.oS.m. Ch.. 
 
 II!. 52. 172. 
 
 The fact that a receiver has been ^ Conyers v. Croshie, 6 Ir. Eq. 657; 
 
 discharged is no answer to a motion Anon. 6 Ves. Jr. 287; Reynolds v. 
 
 for leave to bring an action against PeUyjohn, 79 Va. 827. 
 
 him for the claim and delivery of * Woodruff y. Jewett, 37 Hun, 205; 
 
 property, where it appears that the Hall v. Smith, 2 Bing. 15G; Combs v. 
 
 claip-.ants of the property had no no- Smith, 78 Mo. 32; Camp v. Barney, 4 
 
 tice of the motion to discharge the Hun, 373; Com. v. Runk, 26 Pa. 235; 
 
 receiver, although he was aware of Barton v. Barbour, 104 U. S. 12G, 26 
 
 the claim; and that the receiver had L. ed. (il2; Meara v. Ilolhrook, 2Q0h\o 
 
 sold the property claimed, after notice St. 137; Thompson v. Scott, 4 Dill. 508; 
 
 of the claim, and after the service Brown v. Brown, 71 Tex. 355. If the 
 
 upon him of a petition and notice of judgment is against a receiver in 
 
 motion for leave to prosecute. Miller another court than that in which he is 
 
 V. Loeh, 64 Barb. 454. After a re- appointed it is error to attempt to fix 
 
 ceiver has distributed money in his the fund out of which the judgment 
 
 hands, however, after notice to credi- is payable. Id. 
 
 tors, the court will not maintain a bill ' Missouri P. R. Co. v. Texas P. R. 
 
 by a creditor who did not file his Co. 41 Fed. Rep. 311. 
 
 claim. Keene v. Snowden, 56 Md. " McNulta v. Lochridge, 141 U. S. 
 
 343. 837, 35 L. ed. 796. 
 
 ' Davis V. Duncan, 19 Fed. Rep. When a corporation is dissolved
 
 196 
 
 RECEIVERSHIPS. 
 
 in another state after the dissolution of the corporation in the 
 state of its domicile where the receiver was not a party to the 
 proceeding in which the judgment was rendered, is a nullity. 
 
 § 90. Receiver a party, when necessary. 
 
 In a case pending at the time of the appointment of a receiver 
 growing out of the negligent construction of a railroad, it is not 
 necessary to make the receiver a party ; he may intervene and 
 make defense if he desires to do so.' ]S'or is he a necessary party 
 to an action brought by creditors to establish the right of parties 
 to the assets,"" nor to a foreclosure proceeding where the bill was 
 taken for confessed before the receiver was appointed ; ^ but 
 where the receiver asks to be made a party it can be done at any 
 stage of the proceedings.'* When a suit is brought to enforce a 
 contract of the defendant railroad company, the receiver, being 
 in possession of the property, is the only necessary party.* 
 
 and its franchises, rights and privi- 
 leges forfeited in the state of its 
 domicile from that time, it has no 
 legal existence, and a judgment sub- 
 sequently rendered in another state 
 against the corporation is invalid 
 where the receiver is not made a party 
 to the proceeding, and it seems that 
 in order to be made a party so as to 
 bind the receivership effects it must 
 be done by order of the court ap- 
 pointing. Pendleton v. Russell, 144 
 U. S. 640. 36 L. ed. 574, affirming 106 
 N. Y. 619; sub nam. People v. Knicker- 
 bocker L. Ins Co., reversing 43 Hun, 
 574. And see McCulloch v. Norwood, 
 58 N. Y. 562, modifying 4 Jones & S. 
 180. 
 
 ' Mercantile Trust Co. v. Pittsburg 
 &W. R. Co. 29 Fed. Rep. 732; Tracy 
 V. First Nat. Bank, 37 N. Y. 523. 
 
 ' Mechanics' Nat. Bank v. Landauer, 
 68 Wis. 44. 
 
 ^ Willink V. Morris Canal & Bkg. Co. 
 4 N. J. Eq. 377. That the receiver 
 is not a party cannot be made as an 
 objection by a third party; a receiver 
 has no standing in a case pending 
 
 vphen appointed until he has become 
 a party to the suit. Tracy v. First 
 Nat. Bank, 37 N. Y. 523. 
 
 * Willink V. Morris Canal & Bkg. Co. 
 supra. The court exercises its dis- 
 cretion as to allowing the receiver 
 permission to defend an action against 
 the person or corporation for vphom 
 he is appointed, and is not subject to 
 review. Patrick v. Eells, 10 Kan. 680. 
 
 * Southern Exp. Co. v. Western N. 
 a R. Co. 99 U. S. 191, 25 L. ed. 319. 
 
 A surviving partner was made a 
 receiver of the partnership property, 
 with the power usually conferred 
 upon receivers. In his individual 
 capacity, but not as receiver, he was 
 made a co-defendant in a foreclosure 
 suit. Held, that as receiver he was 
 not a necessary party, and that his 
 successor in the receivership could 
 not maintain a bill to redeem. Kirk- 
 Patrick v. Corning, 37 N. J. Eq. 54. 
 
 When the receiver alleges upon in- 
 formation and belief collusion be- 
 tween the plaintiff and defendant, 
 and asks leave to intervene and 
 defend, it was held that he had no
 
 SUITS AGAINST THE RECEIVER. 
 
 197 
 
 § 91. Receiver may he restrained. 
 
 If it appears that a receiver is prosecuting a suit which is un- 
 just and vexatious he may be restrained by the court making the 
 appointment and the application may be made by any person af- 
 fected by the unjust prosecution whether he be a party to the 
 suit or not.* The general rule, however, is that the court will not 
 permit its receiver to be enjoined in another action, the proper 
 course for parties aggrieved, being to appear in the action in 
 which the receiver is appointed and apply for relief.* 
 
 § 92. Eifect of discharge of receiver as to suits against 
 
 him. 
 
 After a receiver has been discharged and the receivership prop- 
 erty, by action of the court, has all been taken out of his hands, 
 thereafter the receiver ceases to represent anyone and he cannot 
 
 such interest in the controversy as 
 authorized him to defend; that the 
 most the receiver had a right to claim 
 was the protection of the funds in his 
 possession, and if protected by the 
 judgment it was all he could demand. 
 Eonegger v. Wettstein, 94 N. Y. 252. 
 In Decker v. Gardner, 124 N. Y. 
 334, 11 L. R. A. 480, a receiver was 
 appointed in a mortgage foreclosure 
 proceeding of a railroad, and at the 
 time of such appointment a trespass 
 proceeding was pending against the 
 railroad company, and it was held 
 that the functions of the receiver 
 were confined to the care and preser- 
 vation of the property included in the 
 mortgage; that he did not represent 
 the corporation or supersede it in the 
 exercise of its powers except in re- 
 lation to the possession and manage- 
 ment of the property committed to 
 his charge; and that with the particu- 
 lar cause of action set out in the com- 
 plaint he had no connection, and it 
 could in no possible way be charged 
 upon the property in the receiver's 
 possession. Metropolitan Trust Co. v. 
 
 Tonawanda S. & C. R. Co. 103 N. Y. 
 245; Eaht v. Atirill, 106 N. Y. 423; 
 Ar7iold V. Suffolk Bank, 27 Barb. 434. 
 When a receiver has been duly ap- 
 pointed in proceedings supplementary 
 to execution he ought not to be made 
 a party defendant to an action pray- 
 ing to enjoin him from discharging 
 his trust. The proper proceeding is 
 to apply to the appointing court for 
 instructions. Van Rensaelwr v. Em- 
 ery, 9 How. Pr. 135. Cf. Smith v. 
 Eaflof Effingham, 3 Beav. 232; \Yin- 
 jield V. Bacon, 34 Barb. 154. 
 
 ^Alspaugh v. Adams, 80 Ga. 345; 
 Field V. Jo7ies, 11 Ga. 418; Lehigh Coal 
 & JS'av. Co. V. Central E. Co. 41 N. J. 
 Eq. 167; Merritt v. MerriU, 16 Wend. 
 405. In this case an order was en- 
 tered directing a receiver to discon- 
 tinue a suit at law prosecuted by him, 
 which appeared to be for the purpose 
 of harrassing the defendant. 
 Ee Merritt, 5 Paige, 125. 
 ^ Win field v. Bacon, 24 Barb. 154; 
 Smith V. Earl of Effingham, 2 Beav. 
 232.
 
 198 
 
 RECEIVERSHIPS. 
 
 act for or represent the company, or its creditors or any other 
 person, and manifestly for this reason the court cannot make an 
 order that the receiver shoukl pay a creditor, having no funds out 
 of which to make sucli payment.' And the court will not permit 
 a person thereafter to litigate a claim against the discharged re- 
 ceiver,^ even where the proceeding was pending when the re- 
 ceiver was discharged, and the claimant had no notice of the dis- 
 charge or proceedings therefor.* 
 
 ^Farmers' Loan & T. Co. v. Central 
 B. Co. 2 McCrary, 181. 
 
 A judgment cannot be rendered 
 against a receiver after his discharge 
 and after he has surrendered the as- 
 sets in his hands to the corporation, 
 though he was in possession when 
 suit was commenced. Bo?id v. State, 
 68 Miss. 648; Reynolds v. Stockton, 140 
 U. S. 271, 35 L. ed. 469. 
 
 ^NeiD York & W. U. Teleg. Co. v. 
 Jewett, 115 N. Y. 166; MUicaukee & 
 M. R. Co. V. Soutter, 69 U. S. 2 Wall. 
 510, 17 L. ed. 900. 
 
 *Note 2, ante; Herring v. New York, 
 L. E. & W. B. Co. 105 N. Y. 340, 
 376; but see contra. Miller v. Loeh, 64 
 Barb. 454. The court itself has the 
 care of the property and the receiver 
 is but its creature. Bostwick v. Menck, 
 40 K Y. 383; Rinn v. Astor F. Ins. 
 Co. 59 N. Y. 147. The proceeding 
 though in form against the receiver is 
 
 in substance a proceeding in rem 
 against the fund in possession of the 
 court, and in no event involves a lia- 
 bility of the receiver either directly or 
 indirectly. Winfield v. Bacon, 24 
 Barb. 161; Barton v. Barbour, 104 U. 
 S. 126, 26 L. ed. 672; Cardot v. Bar- 
 ney, 63 N. Y. 281. 
 
 In Woodruff v. Jewett, 115 N. Y. 
 267, the claimant had reduced the 
 claim to a judgment and the liability 
 of the receiver was fixed, and under 
 this state of facts the receiver made 
 application and was discharged with- 
 out notice to the claimant, and it was 
 held that the liability of the receiver 
 to pay the judgment was a question 
 of doubt under the particular circum- 
 stances of the case, though the court 
 reaffirmed the doctrine of New York 
 & W. U. Teleg. Co. v, Jewett, supra, 
 under the circumstances therein. Cf, 
 Johnson v. Powers, 21 Neb. 293.
 
 CHAPTER YIII. 
 
 LIABILITY OF RECEIVER. 
 
 109. 
 
 Generally. 
 
 § 124. 
 
 (a) When liable. 
 
 
 (b) Whea not liable. 
 
 §125. 
 
 110. 
 
 Must obey orders of court. 
 
 § 126. 
 
 111. 
 
 Liability for use of property, 
 money, etc., contempt. 
 
 §127. 
 
 112. 
 
 As common carrier. 
 
 
 113. 
 
 As common carrier for per- 
 sonal injuries. 
 
 
 114. 
 
 As common carrier for dam- 
 
 
 
 ages. 
 
 §128. 
 
 115. 
 
 Corporation in hands of re- 
 
 §129. 
 
 
 ceiver not liable. 
 
 §130. 
 
 116. 
 
 Liability for use of receivership 
 
 §131. 
 
 
 funds. 
 
 § 132. 
 
 117. 
 
 For default of another. 
 
 
 118. 
 
 For supplies, labor, etc. 
 
 §133. 
 
 119. 
 
 For money deposited in bank. 
 
 § 134. 
 
 120. 
 
 For costs and expenses. 
 
 
 121. 
 
 For rents. 
 
 §135. 
 
 122. 
 
 On unexpired leases. 
 
 
 123. 
 
 Adoption of lease by receiver. 
 
 §136. 
 
 Liability on leases made with- 
 out order of court. 
 
 On contracts other than leases. 
 
 On contracts of predecessor. 
 
 Order of payment; preferred 
 payments. 
 
 (a) As between judgment cred- 
 
 itor and mortgagee. 
 
 (b) In proceedings for foreclos- 
 
 ure of railways. 
 When personally liable. 
 Liability for attorney's fees. 
 For disobeying orders of court. 
 To account. 
 Order on receiver to pay; effect 
 
 of. 
 Effect of discharge. 
 Liability for unjust freights 
 
 exacted. 
 Power of court over executors 
 
 of receivers. 
 Liability for contempt of court. 
 
 § 109. Generally. 
 
 Being; an officer of court, and being placed in custody of the 
 property or funds which the court is called upon to preserve until 
 the right of parties thereto are determined, and in the end to dis- 
 tribute according to the equities as established, the receiver occu- 
 pies towards the court, and to the parties, a quasi trust rela- 
 tionship, and assumes responsibilities so far as the safety of the 
 trust property is concerned commensurate with the character of 
 the duties assumed. It has been said that absolute safety is to be 
 aimed at, and not only that, but it is the duty of the receiver to 
 put the property in such shape as to lessen the expense of cai-e 
 and oversight. And it is necessary for him, in all things, to act 
 in the utmost good faith, concerning the property in his charge, 
 and use his best judgment in his management of the trust estate. 
 He has no power to pay claims at will, and generally, can exer- 
 
 199
 
 200 
 
 RECEIVERSHIPS. 
 
 cise only such powers as are given to him by the order of his ap- 
 pointment, or as are given by the usual course of practice in 
 courts of equity,' and while he should, as a rule, pay out nothing 
 except on order of court, yet the rule is not so unbending and in- 
 equitable as to disallow the receiver credit in his account for pay- 
 ments made in good faith where, if authority had been applied 
 for, it would have been granted;' and the receiver will be pro- 
 tected in paying out money in good faith although the order of 
 payment may have been improvidently made.^ Where the re- 
 
 ^Demndorf v. Dickinson, 21 How. 
 Pr. 275. Under the early English 
 practice a receiver was not allowed to 
 pay out anything on account of the 
 estate without a previous order, but 
 under the later practice the matter of 
 payment is referred to a master to see 
 if the payment is for the benetit of the 
 parties interested. Tempest v. Ord, 2 
 Meriv. 55. 
 
 '■Ada77is V. Woods, 15 Cal. 206. 
 
 Brown v. Hazlelmrst, 54 Md. 26. 
 In this case the court say: "As a gen- 
 eral rule a receiver will not be per- 
 mitted to lay out more than a small 
 sura at his own discretion in the pres- 
 ervation and improvement of prop- 
 erty, yet this general rule should not 
 be applied so as to work injustice 
 where the receiver has acted in good 
 faith and under such circumstances 
 as will enable the court to see that if 
 previous authority had been applied 
 for it would have been granted. Cf. 
 Willis V. Sharp, 124 N. Y. 406, where 
 it is held that if he pays out money 
 in good faith and in obedience to the 
 orders of court to parties not entitled 
 to it he cannot be compelled to make 
 restitution; and in Adams v. Haskell, 
 6 Cal. 475, it is said that receivers and 
 other custodians of money coming to 
 their hands under the order of court, 
 being bound to obey the orders of 
 court in regard as well to its safe cus- 
 tody as to its return, are correlatively 
 
 entitled to the protection of the court 
 against loss for disbursements which 
 were such as a reasonable and pru- 
 dent man acting as receiver would 
 have been justified in making. In 
 Edee v. Struiik, 35 Neb. 807, an order 
 appointing a receiver was regular on, 
 its face and apparently within the ju- 
 risdiction of the court and therefore 
 prima facie valid under which the re- 
 ceiver collected money and applied 
 the same in payment of taxes and for 
 repairs which were necessary, such 
 an order is a sufficient justification in 
 a suit brought against the receiver to 
 recover rents collected by him after 
 the order appointing him has been va- 
 cated for want of suflicient notice of 
 the application. If, however, the re- 
 ceiver claims rights or property he, in 
 such case, is required to show a valid 
 appointment, though it is unneces- 
 ary to show each step taken in the 
 proceeding. (See Johnson v. Powers, 
 21 Neb. 292, distinguished.) Cf. B» 
 O'Connor, 47 N. Y. S. R. 415; Bock- 
 well V. Merwin, 45 N. Y. 166. 
 
 ^Re Home Provident Safety Fund 
 Asso. 39 N. Y. S. R. 437, reversed 
 on other grounds but sustained in this 
 particular in 129 N. Y. 288. Cf. 
 Willis V. Sharp, 124 N. Y. 406. 
 
 Palmer v. Truby, 136 Pa. 556. 
 "Where a receiver has accounted to a 
 guardian of au infant he will not be 
 obliged to account again to the infant
 
 LIABILITY OF RECEIVER. 
 
 201 
 
 ceiver has acted with evident caution and for what he deemed 
 the best interests of the estate and a loss occurs, without fault on 
 his part, he will not, ordinarily, be required to make good such 
 loss.' In making payments he should in all cases take receipts 
 from the persons to whom payments are made. ' 
 
 (a) "When liable. 
 In general the receiver will be liable : 
 
 (1) For mingling the receivership funds with his private funds, 
 whereby the funds are lost through the failure of the bank;' or 
 where he deposits the receivership funds in a bank and receives 
 interest on the deposits and the bank fails;' or where the funds 
 are deposited with a bank in such a way as to be beyond his con- 
 trol, and the bank fails;' or deposits the funds in a bank without 
 authority of court." 
 
 (2) The receiver of a bank will be responsible to a creditor of 
 the bank for funds of such creditor received by it and mingled 
 with the funds of other creditors in such a way as to be undistin- 
 guishable, but only to the extent of the pro rata share of such 
 
 on his becoming of age. Glatering" » 
 Case, Piec. Ch. 535; Wildridge v. J/o 
 Eane, 2 Moll. 545. 
 
 ^Poicers V. LougJiridge, 38 N. J. Eq. 
 896; Knight v. Lord Plyynouth, 3 Atk. 
 480; Re Union Bank, 37 N. J. Eq. 
 420, 424, affirmed on appeal as Sand- 
 ford V. Clark, 38 N. J. Eq. 265. 
 
 In Powers v. Longhridge, the re- 
 ceiver intrusted a claim, for which a 
 suit was not actually necessary, in 
 good faith, in the hands of a lawyer 
 of another state of whose integrity, 
 on inquiry, he was satisfied, and such 
 lawyer absconded, it was held the re- 
 ceiver was not liable for the loss. 
 
 Properly lost while in the hands of 
 a receiver, — as here, slaves eraancipa- 
 ed, — being m custodia legis, cannot 
 be considered as lost by conversion, 
 80 as to render the obligors of any 
 bond for its return, etc., liable there- 
 for. Wall V. Pulliam, 5 Heisk. 365. 
 
 ^Heffron v. Rice, 40 111. App. 244. 
 
 Expenses incurred by a delator in 
 
 carrying into effect a scheme which 
 he believes will enable him to pay 
 interest to security-holders, but which 
 in fact, does not accomplish such 
 result, cannot be charged to the 
 receiver. Loxmville, E. & St. L. R. 
 Co. V. Wilson, 138 U. S. 501, 34 L. ed. 
 1023. 
 
 An "officer" or "employee" within 
 the meaning of the statute means 
 those who are regularly employed by 
 the company, and not those who are 
 employed for a special transaction. 
 Louisville, E. & St. L. R. Co. v. Wil- 
 son, 138 U. S. 501, 34 L. ed. 1023. 
 
 ^Wren v. Kirton, 11 Ves. Jr. 377. 
 
 ^Drecer v. Maudesley, 13 L. J. Ch. 
 N. S. 433. 
 
 '••Sabnay v. Salimy, 2 Russ. & M. 215; 
 Atiy. Gen. v. North American L. Ins. 
 Co. 89 N. y. 94. 
 
 ^State, Collins, v. Gooch, 97 N. C. 
 186; Ricks v. Broyles, 78 Ga. 610. But 
 see Rowth v. Uoicell, 3 Ves. Jr. 505.
 
 202 
 
 RECEIVERSHIPS. 
 
 creditor.' He will, however, be responsible for goods consigned 
 to a commission merchant, where such goods can be traced and 
 identified, the title in such case not having passed from the con- 
 signor to the consi<i:nee and then to the receiver." 
 
 (3) He will be liable personally for trespass and torts commit- 
 ted by him, his ofiicial position being no protection in such cases.' 
 
 (4) Where operating a railroad as a common carrier, he will be 
 liable as such." 
 
 (5) And for disobeying the orders of court;' 
 
 (6) And for loss occasioned by his negligence;* 
 
 (7) And for negligence in the management of receivership 
 property.' 
 
 ^People V. Merchants & M. Bank, 78 
 N. Y. 269; Atty. Qen. v. Continental 
 L. Tns. Co. 71 N. Y. 325; Butler v. 
 Sprague, 66 N. Y. 392; Otis v. Gross, 
 96 111. 612; Illinois Trust tfc Sav. Batik 
 V. Smith, 21 Blatchf. 275; St. Louis 
 <fc S. F. B. Co. V. Johnston, 27 Fed. 
 Rep. 243. But see Thompson v. Olou- 
 cesler City Sav. Inst. (N. J.) 8 Atl. 97. 
 
 ^Francklyn v. Sprague, 10 Hun, 589. 
 
 ^Staples V. May, 87 Cal. 178; Hills 
 V. Parker, 111 Mass. 508. But see 
 Walling v. Miller, 108 N. Y. 173; Man- 
 ning V. Monaghan, 1 Bosw. 459, 23 N. 
 Y. 539; Eenney v. Banney, 96 Mich. 
 617; Giitsch v. Mcllhargey, 69 U\ch. 
 377; Hartell v. Tilghman,^^ U. S. 547, 
 25 L. ed. 357; Curran v. Craig, 23 
 Fed. Rep. 101. 
 
 *Paige v. Smith, 99 Mass. 395, Ex 
 parte Brown, 15 S, C. 518; Howe v. 
 Gibson, 3 Tex. Civ. App. 263; Yoakum 
 V. Dunn, 1 Tex. Civ. App. 524; Bo'X- 
 bury v. Central Vermont B. Co. 60 Vt. 
 121; Melendy v. Barbour, 78 Va. 544; 
 People V. Yoakum (Tex. Civ. App.) 25 
 S. W. 1001; Barton v. Barbour, 104 
 U. S. 126, 26 L. ed. 672; Turner v. 
 Indianapolis, B. & W. R. Co. 8 Biss. 
 527; Bavenport v. Alabama & C. R. 
 Co. 2 Woods, 579; Easton v. Houston 
 <fe T. C. R. Co. 38 Fed. Rep. 12; Penn- 
 
 sylvania Finance Co. v. Charleston, G. 
 <& C. R. Co. 46 Fed. Rep. 508. 
 
 estate V. Gibson, 21 Ark. 140; Cart- 
 wriglit's Case, 114 Mass. 230; People v. 
 Jones, 33 Mich. 303; McCay v. Black, 
 14 Phila. 635; Carr v. Morris, 85 Va. 
 21; Chicago Deposit Vault Co. v. Mc- 
 Nulla, 153 U. S. 554, 38 L. ed. 819; 
 Harman v. Foster, 1 Hog. 318; Fetnam 
 V. Eirby, 4 Ir. Eq. 320; Hicks v. Hicks, 
 3 Atk. 274; Davies v. Cracraft, 14 Ves. 
 Jr. 143; Bs Bell's Estate, L. R. 9 Eq. 
 172. 
 
 ^Re Union Bank, 37 N. J. Eq. 420; 
 Wood Y.Wood, 4 Russ. 558; Re Sker- 
 reits, 2 Hog. 192; Livingston v. Petti- 
 grew, 7 Lans. 405; Newman v. Daven- 
 port, 9 Baxt. 538. 
 
 "^Thurman v. Cherokee R. Co. 56 Ga. 
 376; Henderson v. Walker, 55 Ga. 481; 
 Sloan v. Central Iowa R. Co. 62 Iowa, 
 728; Ohio & M. R. Co. v. Davis, 23Ind. 
 553; Nichols v. Smith, 115 Mass. 332 ; 
 Paige v. SmiVi, 99 Mass. 395; Fijieldv. 
 Northern R. Co. 42 N. H. 225; Klein 
 V. Jewett, 26 N. J. Eq. 474; Cardot 
 v. Barney, 63 N. Y. 281; ifeara v. Hol- 
 brook, 20 Ohio St. 137; Potter v. 5wra- 
 neZ?, 20 Ohio St. 159; Cleveland, C. <& 
 C. R. Co. V. Kearny, 3 Ohio St. 201; 
 Ex parte Broicn, 15 S. C. 518; Ex parte 
 Johnson, 19 S. C. 492; Erwin v. Da-
 
 LIABILITY OF RECEIVER 
 
 203 
 
 In such case the HabiKtj is official.' 
 
 (8) And for any benefit or profit made from trust funds;" 
 
 (9) And for interest on funds improperly held,' or interest neg- 
 ligently lost;^ 
 
 (10) And for costs incurred in defending a suit/ or prosecuting 
 one;* 
 
 (11) And for rent when possession of premises is taken and held/ 
 
 (12) And for labor and materials furnished him;'^ 
 
 (13) And for violation of Act of Congress relating to receivers;' 
 
 (14) And for money paid out without order of court,'" or mis- 
 appropriating the same;" 
 
 (15) And for money collected under a void appointment;'" 
 
 (16) And for illegal freights collected." 
 
 venport, 9 Heisk. 44; Lyman v. Central 
 Vermont R. Co. 59 Vt. 167; Blumen- 
 ihal V. Brainard, 38 Vt. 402; Hornnby 
 V. Eddy, 50 Fed. Rep. 461 ; Missouri 
 P. R. Co. V. Texas P. R. Co. 30 Fed. 
 Rep. 167; Central Trust Co. v. Wabash, 
 St. L. & P. R. Co. 26 Fed. Rep. 12. 
 But see Central Trust Co. v. Wabash, 
 St. L. & P. R. Co. 30 Fed. Rep. 344; 
 Brydon v. Stewart, 2 IMacq. H. L. 30. 
 '^McNulta V. Lockridge, 137 111. 270, 
 141 U. S. 327, 35 L.ed. 796; McNulta 
 V. Ensch, 134 111. 46; Combs v. Smith, 
 
 78 Mo. 32; Bonner v. May field, 82 
 Tex. 234: Texas & P. R. Co. v. Geiger, 
 
 79 Tex. 13. 
 
 ^Boojyer v. Winston, 24 111. 353; Bat- 
 taille V. Fisher, 36 Miss. 321 ; Adair Co. 
 V. Ownoy, 75 Mo. 282; Re Com. F. Ins. 
 Co. 32 Hun, 78; Utica Ins. Co. v. Lynch, 
 11 Paige, 520; Planning v. Manning, 
 1 Johns. Ch. 527; Hinckley v. Gilman, 
 C. & S. R. Co. 100 U. S. 153, 25 L. 
 ed. 591; Potts v, Leighton, 15 Ves. Jr. 
 273; Baldwin v. Crawford, 2 Chamb. 
 Ch. (Ont.) 9. 
 
 ^Re Carter, 3 Paige, 146; Fletcher v. 
 Dodd, 1 Ves. Jr. 85; Re Seaman, 2 
 Paige, 409. 
 
 ^Syracuse Sav. Bank v. Hess, 23 N. 
 Y. Week. Dig. 280. 
 
 ^Loc/ce V. Covert, 42 Hun, 484. 
 
 ^Dudgeon v. Bov^en, Hayes & J. 717; 
 Bourdon v. Martin, 74 Hun, 246;C'a»i^ 
 V. Niagara Bank, 2 Paige, 283; Com. 
 V. Franklin Ins. Co. 115 Mass. 278; 
 Wells V. Biggins, 132 N. Y. 458. 
 
 ''Frank v. New York, L. E. &W. B. 
 Co. 122 N. Y. 197; Woodruff v. Erie 
 R. Co. 93 N. Y. 609; People v. Univer- 
 sal L. Ins. Co. 30 Hun, 142; Downs v. 
 Allen, 10 Lea, 652; Quincy, M. & P. 
 R. Co. V. Humphreys, 145 U. S. 82. 36 
 L. ed. 632. 
 
 *See Railway Receivers; Kneeland 
 V. Bass Foundry Mach. Works, 140 U. 
 S. 592, 35 L. ed. 543; Kneeland v. 
 American Loan & T. Co. 136 U. S. 89, 
 34 L. ed. 379; Union Trust Co. v. 
 Souther, 107 U. S. 591, 27 L. ed. 488; 
 Miltenberger v. Logansport, C. & S. W. 
 R. Co. 106 U. S. 289. 27 L. ed. 119; 
 Wallace v. Loo7nis, 97 U. S. 146, 24 L. 
 ed. 895; Missouri P. R. Co. v. Texas & 
 P. R. Co. 41 Fed. Rep. 319. 
 
 9See Act of March 3, 1887. § 2, 25 
 Stat. at. L. 436. 
 
 ^'^ Willis V. Sharp, 124 N. Y. 400. 
 
 "C'oTO. V. Eagle F. Ins. Co. 14 Allen, 
 344. 
 
 ^''Johnson v. Powers, 21 Neb. 292. 
 
 ^'^Cuiting v. Florida R. & Nav. Co. 
 43 Fed. Rep. 743.
 
 204- 
 
 RECEIVERSniPS. 
 
 (h) When not liable. 
 In general tlie receiver will not be liable : (1) For the covenants 
 and contracts of the person or corporation over whose property 
 he is appointed.' 
 
 (2) Nor for a loss occurring through no fault of his.' 
 
 (3) Nor is he liable when he has distributed the funds in his 
 hands pursuant to the orders of the court, and has been discharged.* 
 
 (4) Nor for injuries on a railroad occurring prior to the ap- 
 pointment,* and in some states for injuries during his manage- 
 ment except where he is personally negligent," or where he is a 
 foreign receiver operating a railroad by contract,' or assumes tlie 
 obligations of a lessee company. He is not liable where by stat- 
 ute the company is made liable,' or where by its contract as lessee 
 it alone is liable.' 
 
 (5) Nor is he liable for the contracts of the person or corpora- 
 tion over which he is appointed when not adopted by him," or 
 
 ^Oaither v. Stockbridge, 17 Md. 222; 
 Com.y. Franklin Ins. Co. 115 Mass. 278. 
 
 ^Powers V. Loughridge, 38 N. J. 
 Eq. 396; EeUnion Bank, 37 N. J. Eq. 
 420, s.c. sub nam. Sandford v. Clarke, 38 
 N. J. Eq. 265; Knight v. Plymouth, 3 
 Atk. 480. 
 
 ^Keene v. Oaehle, 56 Md. 343; Texas 
 
 6 P. M. Co. V. Comstock, 83 Tex. 537; 
 Boggs v. Brown, 82 Tex. 41; Texas & 
 P. R. Co. V. Adams, 78 Tex. 372; 
 Brown v. Oay, 76 Tex. 444; Davis v. 
 Duncan, 19 Fed. Rep. 477; Farmers' 
 Loan & T. Co. v. Central Railroad, 
 
 7 Fed. Rep. 537. 
 
 ^HolcomJ) V. Johnson, 27 Minn. 353; 
 Decker v, Gardner, 124 N. Y. 334, 11 
 L. R. A. 480; Pennsylvania Finance 
 Co. V. Charleston, C. <& C. B. Co. 46 
 Fed. Rep. 508. 
 
 ^Cardot v. Barney, 63 N. Y. 281; 
 Metz V. Buffalo, C. & P. R. Co. 58 N. 
 Y. 61. But see Camp v. Barney, 6 
 Thomp. & C. 622, 4 Hun, 373. 
 
 ^Frank v. New York. L. E. dW. R. 
 Co. 122 N. Y. 197; Woodruff v. Erie 
 R. Co. 93 N. Y. 609; Kain v. Smith. 
 80 N. Y. 458; Fuller v. Jeweit, 80 N. 
 
 Y. 46; Sunflower Oil Co. v. Wilson, 
 142 U. S. 313, 35 L. ed. 1025; A?neri- 
 can File Co. v. Garrett, 110 U. S. 288, 
 28 L. ed. 149; Glenny v. Langdon, 98 
 U. S. 20, 25 L. ed. 43; Fidelity Safe 
 Deposit & T. Co. v. Armstrong, 35 Fed. 
 Rep. 567; Re Oak Pits Colliery Co. L. 
 R. 21 Ch. Div. 322. 
 
 "^Ohio & M. R. Co. V. Russell, 115 111. 
 52; Louisville N. A. & C. R. Co. v. 
 Cauble, 46 Ind. 277; McKinney v. Ohio 
 & M. R. Co. 22 Ind. 99; Ohio &M.R. 
 Co. V. Fitch, 20 Ind. 498. Contra. 
 Brockert v. Central Iowa R.. Co. 82 
 Iowa, 369. Cf. Kansas P. R. Co. v. 
 Wood, 24 Kan. 619; Texas & P. R. Co. 
 V. Collins, 84 Tex. 121; Yoakum v. 
 Selph, 83 Tex. 607; Turner v. Cross, 8S 
 Tex. 218, 15 L. R. A. 262. 
 
 ^Powell V. Dayton, S. <& G. R. R. Co. 
 16 Or. 33. 
 
 ^Brown v. Warner. 78 Tex. 543, 11 
 L. R. A. 394; Southern Exp. Co. v. 
 Western N. C. R. Co. 99 U. S. 191, 25 
 L. ed. 319: Central Trust Co. v. Mari- 
 etta & G. R. Co. 51 Fed. Rep. 15, 16 
 L. R. A. 90.
 
 LIABILITY OF RECEIVER. 205 
 
 contracts personal to such person or corporation," or personally on 
 his official contracts," or contracts of a predecessor.' 
 
 (6) Xor for acts done pursuant to the orders of court.* 
 
 (7) JN'or for speculative prohts where he accounts for the pro- 
 ceeds of property.' 
 
 (8) Nor for money expended in good faith and for the best in- 
 terests of the estate." 
 
 (9)' Nor for attorney's fees for services rendered to the corpora- 
 tion after his appointment.' 
 
 § 110. Must obey orders of court. 
 
 A receiver cannot, without an order of court authorizing him 
 so to do, turn over to a firm creditor specific funds of an estate, a 
 secured note not inventoried, in payment of debts due by the es- 
 tate to such transferee, and a foreclosure by such transferee of the 
 deed of trust and sale thereunder conveys no title.* If a receiver 
 departs from the line of duty marked out for him by the decree 
 and a loss occurs by reason thereof, he must bear such loss, al- 
 though his action was under advice of counsel ;° and where he is 
 ordered to loan a trust fund, and take bonds and trust deed in 
 his own name, at six per cent interest, the principal to become 
 due on default of two payments of interest he must be held liable 
 for the loss of an investment in which he took notes instead of 
 bonds at eight per cent, f^nd failed to enforce the trust deed after 
 default in two payments of interest.'" Where a receiver of 
 
 ^Broicn Y.Warner, 78 Tex. 543, 11 tion or disposition of the funds; but 
 
 L. R. A. 394. he holds them subject to the order of 
 
 ^Leldgli Coal & Nav. Co. v. Central court, and to be paid to whom the 
 
 R. Co. 41 N. J. Eq. 167. court shall adjudge. Cf. Uooper v. 
 
 ^Lehigh Coal & Nav. Co. v. Central Winston, 24 111. 353: Johnson v. Gun- 
 
 R. Co. 38 N. J. Eq. 175. Ur, 6 Bush. 534; Blunt v. Clitherow, 
 
 *Holcomb V. Johnnon, 27 Minn. 353; 6 Ves. Jr. 799. 
 
 Cory V. Long, 12 Abb. Pr. N. S. 427. '^McCay v. Black, 14 Phila. 635. It 
 
 ^Demain v. Cassidy, 55 Miss. 320. is not mala fides in the receiver but he 
 
 ^Powers V. Loughridge, 38 N. J. Eq. is responsible notwithstanding. 
 
 396; Louisville, E. & St. L. B. Co. v. '"Carrv.iform, 85 Va. 21. This too 
 
 Wilson, 138 U. S. 501, 34 L. ed. 1023. though no bad faith is shown; trus- 
 
 ''Barnes v. Newcomb, 89 N. Y. 108. tees of all kinds investing money in 
 
 ^Hospes V. Almstedt, 13 Mo. App. an unauthorized security are resjjon- 
 
 270, affirmed on other grounds in 83 Bible for any future loss traceable to 
 
 Mo. 473. In general no discretion is their error, 
 allowed the receiver as to the applica-
 
 206 RECEIVERSHIPS. 
 
 an insolvent estate appointed upon the removal of an executor 
 j)ays out mone}' without an order of court upon judgments ob- 
 tained by creditors of the estate who have no priority over 
 other creditors he is responsible therefor.' As a general rule it 
 may be stated that where the court has ordered the receiver to do 
 a thing in a particular way he has no discretion and if by reason 
 of unforseen circumstances it becomes difficult or impossible he 
 must apply to the court for further directions, 
 
 § 111. Liability for use of property, money, etc., con- 
 tempt. 
 
 As we have seen, the the receiver is required to scrupulously 
 care for the property placed in his charge, and like all trustees he 
 is not permitted to use the funds for his own private purposes. 
 Thus where a receiver did not keep the receivership funds separ- 
 ate, but mingled them with his own moneys in the bank where 
 he kept his account, in his own name, and drew out and used 
 large sums of money from time to time by loaning the same to 
 his friends, and otherwise, he was required to pay simple interest 
 on the funds so used with annual rests.^ Being an officer of court 
 the receiver is liable for contempt in misappropriating money even 
 under the belief that he has a right so to do as a compensation 
 for his services, even though he has no intention of wrong doing ; 
 the matter of contempt not depending on the intention.* Where 
 two receivers were appointed to close up the affairs of a corpora- 
 tion and one of them illegally appropriated the corporation funds 
 in his hands, using them for his own profit, and the other re- 
 ceiver negligently permitted such illegal appropriation they will 
 be jointly liable for the balance found to be due from them with 
 interest.* He has no right to deposit the trust funds with his 
 
 ' Willis V. Sharp, 124 N. Y. 406, was held bound to make them profl- 
 
 modifying 58 Hun, 608. table, and if they were used about his 
 
 A temporary receiver Is not liable privatebusinesshe was liable for their 
 
 as such on a contract for the employ- reasonable hire. Battaile v. Fisher, 36 
 
 ment of a truckman; where he has not Miss. 321. Cf. Hinckley v. Oilman, 
 
 been authorized to make such con- G. & S. R. Co. 100 U. S. 153, 25 L. 
 
 tract. Meyer v Lexow, 1 App. Div. ed. 591. 
 
 116. ^Cartwright's case, 114 Mass. 230. 
 
 ^TJtica Ins. Co. v. Lynch, 11 Paige, *Com. v. Eagle F. Ins. Co. 14 Allen, 
 
 520. A receiver in possession of slaves 344.
 
 LIABILITY OF RECEIVER. 
 
 207 
 
 own money — mix them with his own — and if he does so and the 
 bank fails, he must account therefor.' Taking the receivership 
 funds and depositing them to his private credit renders the re- 
 ceiver liable for interest." 
 
 Upon the question of the power of the court to commit and 
 punish for contempt it is understood to be inherent in courts of 
 chancery and is an essential to the execution of their powers and 
 to the maintenance of their authority.^ There is no class of cases 
 in which the exercise of this power is more familiar than in the 
 case of oliicers of courts," and receivers are clearly within the 
 purview of the doctrine." The application is made in the original 
 cause in which the receiver is appointed, but after the application 
 is granted and the attachment is issued, the proceedings are dis- 
 tinct and are criminal in their nature," and are wholly independent 
 of the fact that the offense might be punished by indictm^ent,' 
 and the offense depends not upon the intention but the act. It 
 is also a well settled principle of chancery practice that a per- 
 son in contempt for disobedience to the authority of court is not 
 
 • Wren v. Eirfon, 11 Ves. Jr. 377; 
 Mansey v. Banner, 4 Madd. 416; Sal- 
 way V. Salway, 2 Russ. & M. 215; 
 White V. Baugh, 2 Bligh N. S. 181. 
 
 A bank in which a receiver kept his 
 accounts was authorized to make sale 
 of receiver's certificates, and did so, 
 but after the order had been revoked, 
 deposited the proceeds consisting of 
 checks, drafts.etc. to the credit of the 
 receiver, such deposits must be held 
 to have come into the receiver's hands 
 within the rule which makes the re- 
 ceipt of the proceeds by the receiver 
 a condition precedent to the validity 
 of the certificates, although the bank 
 was never in a condition to pay any 
 considerable portion of the deposits to 
 the receiver. Alabama Iron & C. Co. 
 V. Anniston Loan db B. Co. 57 Fed. 
 Rep. 25. In such a case the fact that 
 the receiver on learning of the insol- 
 vency of the bank took from it and 
 from the president personally certain 
 
 collateral securities to protect his de- 
 posits was not a repudiation of the 
 sale but rather a fresh ratification. 
 
 ^Hinckley v. Oilman, C. & S. B. Co. 
 100 U. 8. 153, 25 L. ed. 591. 
 
 3 CartwrigMs Case, 114 Mass. 230; 
 United States v. Hudson, 11 U. S. 7 
 Cranch, 32, 3 L. ed. 259. 
 
 ^United States v. Mann, 2 Brock. 9; 
 Be Pitman, 1 Curt. 186; Tales v. 
 Lansing, 9 Johns. 395. 
 
 6 Davis V. Gray, 83 U. S. 16 Wall. 
 203, 21 L. ed. 447; Hills v. Barker, 111 
 Mass. 508. 
 
 « Folger v. Hoagland, 5 Johns. 235; 
 Ex parte Eearney, 20 U. S. 7 Wheat. 
 38, 5 L. ed. 391; Durant v. Washing- 
 ton County Supers. 1 Woolw. 377; 
 Winsbw v. Nay son, 113 Mass. 411; 
 McDermott v. Clary, 107 Mass. 501. 
 
 ■• Bay V. Ossulston, 2 Strange, 1107; 
 Spalding v. People, 7 Hill, 301, 10 
 Paige, 284; State v. Woodfin, 5 Ired. L. 
 199; State v. Williams, 2 ypecrs, 26.
 
 20S RECEIVERSHIPS. 
 
 entitled to be heard upon any motion or other proceeding in the 
 cause until he purges himself of the contempt.' 
 
 § 112. As common carrier. 
 
 While a court of chancery appointing a receiver will throw 
 around him its shield of protection in all necessary cases, yet it 
 cannot be recognized as a defense to a suit at law for a breach of 
 .any obligation or duty which was fairly and voluntarily assumed 
 by him as receiver, that he is an officer of court acting under a 
 ■decree of a court of chancery. The obligations and duties which 
 the receiver assumes are, in all cases, and like all other persons, 
 to be measured by the nature and character of the business which 
 he eno-ao-es in. Thus it cannot be contended that the receiver 
 who is the mere custodian of proj)erty, answerable only for its 
 safe keeping and due return when called upon for that purpose, 
 occupies a similar position with like responsibilities to the receiver, 
 who by virtue of his official position is placed in possession of, 
 and is charged with the management and control of a railway 
 where he by virtue of his undertaking assumes the functions of 
 a common carrier, and where in his dealings he is constantly 
 brought in contact with the public. In the latter case his respon- 
 sibilities are infinitely increased. The very nature of the business 
 carries with it extraordinary duties and corresponding liabilities, 
 and hence it is that courts are becoming more disposed to charge 
 this class of receivers with a greater degree of responsibility, and 
 recognize in the public, and those dealing with them, greater 
 privileges and greater facilities for relief, not only in matters 
 purely ex contractu but more especially in matters ex delicto^ 
 
 % 113. As common carrier for personal injuries. 
 
 Where the management of a railroad, or other concern of a 
 quasi public nature, has passed into the hands of a receiver, and 
 he is in charge and is operating the same in his official caj^acity, 
 and a passenger or an employee is injured through the fault of 
 the employees of the receiver, the liability is in all respects 
 governed by the principles that would be applicable to the same 
 action were the proceeding between the person so injured and 
 
 ' Wartman v. Wartman, Taney, 362. * Blumenthal v. Brainard, 38 Vt. 
 
 403; Sprague v. Smith, 29 Vt. 421.
 
 LIABILITY OF RECEIVER. 
 
 209 
 
 the railroad company had no receiver been appointed. The only 
 difference between the two proceedings being that in the former 
 case it is somewhat in the nature of a proceeding in rem, and the 
 damages recovered, if any, are chargeable to the property or fund 
 in the hands of the receiver, and are payable from the funds sub- 
 ject to distribution on the final order of the court' It was at 
 
 ' Kain v. Smith, 80 N. Y. 458. 
 The basis of this decision is the fact 
 that the receiver as an officer of court 
 has displaced the officers of the com- 
 pany who by the charter are author- 
 ized to manage its affairs, and under 
 the direction of the court has the sole 
 control and management of the prop- 
 erty and effects of the company, and 
 for the time being is in the exercise 
 of the franchises of the company as 
 its chief executive, and is responsible 
 to the court for his conduct in all 
 these things. Cf. Klein v. Jewett, 26 
 N. J. Eq. 474; Fuller v. Jewett, 80 
 N. Y. 46; Morse v. Brainard, 41 Vt. 
 551 ; Coicdrey v. Galveston, H. & H. R. 
 Co. 93 U. S. 352, 25 L. ed. 950; Roches- 
 ter V. Bronson, 41 How. Pr. 78; 
 Meara v. Eolbrook, 20 Ohio St. 137; 
 Davenport v. Alabama & C. R. Co. 2 
 Woods, 519 ; Jordan v. Wells, 3 Woods, 
 527; Sloan v. Central loica R. Co. 62 
 Iowa, 728; Little v. Dusenberry, 46 
 N. J. L. 614; Blumenthal V . Brainard, 
 38 Vt. 402; Paige v. Smith, 99 Mass. 
 395; Camp v. Barney, 4 Hun, 513; 
 Missouri P. R. Co. v. Texas P. R. Co. 
 30 Fed. Rep. 167, 169; Combs v. Smith, 
 78 Mo. 32. (This was a suit for a tort 
 committed by the company before the 
 appointment of the receiver.) Eorns- 
 by v. Eddy, 56 Fed. Rep. 461; Gibbes v. 
 Greenville & C. R. Co. 15 S. C. 518; 
 Texas P. R. Co. v. Geizer, 79 Tex. 13; 
 Texas P. R.Co. v. Johnson, ni: ax. 421; 
 Graham v. Chapman, 33 N. Y. S. R. 
 349; (lack of funds is no defense); 
 Newell V. Smith, 49 Vt. 255; Sprague v. 
 Smith, 29 Vt. 421 ; Lyman v. Central 
 Verm.ont R. Co. 59 Vt. 167; Ballon v. 
 14 
 
 Farnum,^ Allen, 47; Ex parte Johnson, 
 19 S. C. 492; Barter v. Wheeler, 49 N. 
 H. 9; Ex parte Brown, 15 S. C. 518; 
 Lamphear v. Buckingham, 33 Conn. 
 237; Kinney v. Crocker, 18 Wis. 74; 
 Allen V. Central R. Co. 42 Iowa, 683. 
 But see Henderson v. Walker, 55 Ga. 
 481 ; Thurman v. Cherokee R. Co. 51 Ga. 
 376. These two cases have been sup- 
 posed to be at variance with the gen- 
 eral current of decisions, but a care- 
 ful analysis will show that they are 
 not. The case of Cardot v. Barney, 
 63 N. Y. 281, is apparently in conffict 
 with Graham v. Chapman, 33 N. Y. 
 S. R. 349; Durkin v. Sharp, 88 N. Y. 
 225, and Fuller v. Jewett, 80 N. Y. 46 
 of the same state. 
 
 In Washington, A. & G. R. Co. v. 
 Brown, 84 U. S. 445, 21 L. ed. 675, it 
 appeared that a railroad was operated 
 on the joint account of a receiver of 
 part of it and lessees of the remaining 
 part, and that the tickets were issued 
 by the railroad company, and an in- 
 jury occurred to a passenger, it was 
 held that the operation of the road by 
 the lessees did not change the relation 
 of the original company to the public, 
 and the company was responsible 
 unless it appeared that the possession 
 of the receiver was exclusive, and the 
 control of the employees exclusively 
 in him. And when the road was run 
 on the joint account of the lessees and 
 receiver, the servants being enip]()3'ed 
 by them jointly, both were liable for 
 the injury complained of together 
 with the original company. 
 
 In Barton v. Barbour, 104 U. S. 
 126, 26 L. ed. 672, suit was brought
 
 210 
 
 RECEIVERSHIPS. 
 
 one time contended that by reason of the receiver's official position 
 an action could not be maintained against him for either his own 
 neghgence or that of his employees/ but this contention is no 
 longer tenable either in this country or in England." The lia- 
 
 against a receiver for personal injuries 
 received by the plaintiff while a pas- 
 senger on a railroad operated by the 
 receiver. It was held on the author- 
 ity of Cowdrey v. Galveston, H. & H. 
 B. Co. 93 U. S. 352, 23 L. ed. 950, that 
 the receiver was liable by reason of 
 his assuming the duties of a common 
 carrier, and that the receiver stood on 
 precisely the same footing so far as 
 damages for the Injury were con- 
 cerned as for any of the expenses in- 
 curred in the execution of the trust, 
 and they must be adjusted and satis- 
 fied in the same way. 
 
 ' This principle of law applicable 
 to agents of. the public in the dis- 
 charge of their legitimate functions, 
 is based upon the following authori- 
 ties (with others): 
 
 Sussex County Chosen Freeholders v, 
 Sirader, 18 N. J. L. 108; Cooley v. 
 Essex Chosen Freelwlders, 27 N. J. L. 
 415; Livermore v. Camden County 
 Chosen Freeholders, 29 N. J. L. 245; 
 Pray v, Jersey City, 32 N. J. L. 394; 
 Marvin Safe Co. v. Ward, 46 N. J. 
 L. 19. In Hill V. Boston, 122 Mass, 
 344, the whole subject is most ex- 
 haustively reviewed from the stand- 
 point of both English and American 
 cases by Chief Justice Shaw. The 
 same principle of nonliability for in- 
 juries growing out of negligence on 
 the part of his agents, was sought to 
 be extended to receivers of railroads 
 on the ground that they were public 
 agents and engaged in the perform- 
 ance of public duties in the case of 
 Little V. Dusenberry, 46 N. J. L. 614, 
 but Mr. Justice Scudder, in a thor- 
 ough examination of the cases up to 
 that time (1884) held that the principle 
 
 was inapplicable to receivers by rea- 
 son of the difference existing between 
 the functions of railroad receivers 
 and public officers of towns, cities, 
 etc., and that receivers were liable in 
 their representative capacity in all 
 respects to others for injuries, as the 
 company would be if transacting its 
 business in the usual way. Of course 
 the payment of the judgment in all 
 cases must remain subject to order 
 and direction of the court, taking into 
 consideration the funds subject to 
 distribution and the respective rights 
 and interests of all persons interested 
 therein. Cf. Sprogue v. Smith, 29 
 Vt. 421; Fuller v. Jewett, 80 N. Y. 46; 
 Kain v. Smith, 80 N. Y. 458. But see 
 Cardot v. Barney, 63 N. Y. 281. 
 
 ^ Ruck V. Williams, 3 Hurlst. & N. 
 308. In this case Pollock, C. B., 
 applied the rule of negligence to com- 
 missioners charged with the perform- 
 ance of duties analogous to those of 
 receivers, in the following language: 
 " I see nothing in the character of the 
 commissioners as a public body, or in 
 the fact that they are discharging a 
 public duty without any remunera- 
 tion to exempt them from liability to 
 compensate a person who has suffered 
 by their carelessness, or want of due 
 regard in the performance of their 
 duty. They are entitled to reimburse 
 themselves out of the funds over 
 which they have control, and it would 
 be hard indeed to throw on the plain- 
 tiff the loss which has been sustained 
 rather than let it be paid out of the 
 common fund which the commis- 
 sioners have at their disposal." 
 
 Cf. Fenton v. Dublin Steam Poiket 
 Co. 8 Ad. & El. 835; Quarmann v.
 
 LIABILITY OF RECEIVER. 
 
 211 
 
 bility of the receiver extends to injuries received on a connecting 
 line where through trains are used by the same employees, and 
 through contracts are made for both lines/ but where the I'eceiver 
 operates one road as receiver and another as lessor, and an injury 
 occurs on the latter, he is individually liable," and not in his 
 official capacity. 
 
 § 114. As common carrier for damages. 
 
 The receiver of a railroad corporation in charge of and operat- 
 ing its road is liable for the loss of freight growing out of the 
 negligence of his agents f and for negligence in the construction 
 
 Burne.tt, 6 Mees. & "W. 509; Daly ell v. 
 Tyrer, 1 El. Bl. & El. 906. The law 
 in this country, as applied to receiv- 
 ers, is similar in its application. See 
 authorities in preceding note. In Iowa, 
 and some other states, the receiver 
 is made liable by statute for injur- 
 ies received by an employee, the 
 receiver being included in "persons 
 owning or operating railways " pur- 
 suant to S§ 1278 and 1307 of Iowa 
 Code. Sloan v. Central Iowa R. Co. 
 62 Iowa, 728. In Texas, however, 
 the receiver is not liable as "proprie- 
 tor" for injuries resulting in the death 
 of a person caused by the negligence 
 of the receiver or his agents. Dilling- 
 liam V. Scaler (Tex. Civ. App.) 24 
 S. W. 975; TiLrner v. Cros^i, 83 Tex. 
 218, 15 L. R. A. 262; Yoakum v. Selph, 
 83 Tex. 607. In Tennessee the re- 
 ceiver of a delinquent railroad com- 
 pany, appointed by the governor 
 under the provisions of a statute, was 
 held to be a public agent and as such 
 not liable for the wrongs or negligence 
 of his employees, but only liable for 
 his own wrongful delinquencies. 
 Ilojikim V. Connel, 2 Tenn. Ch. 323; 
 Ertcin v. Davenport, 9 Heisk. 44; Cf. 
 Cardot v. Barney, 63 N. Y. 281; 
 Davenport v. Alabama &, C. II. Co. 2 
 Woods, 519; Lane v. Cotton, 1 Ld. 
 Raym. 646; Whitfield v. Lord Le 
 
 Despencer, Cowp. 754; Duncan v. 
 Findlater, 6 Clark & F. 894; Mersey 
 Docks & Harbor Trudees v. Gibbs, 
 L. R. 1 H. L.lll ; Henderson v. Walker, 
 55 Ga. 481. 
 
 ' Howe v. Gibson, 3 Tex. Civ. App. 
 263. 
 
 * Rain v. Smith, 80 N. Y. 458; re- 
 versing 11 Hun, 552. Cf. Rogers v. 
 Wheeler, 43 N. Y. 598; Sprague v. 
 Smith, 29 Vt. 421 ; Baxter v. Wheeler, 
 49 N. H. 9; Blumenthal y. Brainard, 
 38 Vt. 409; Paige v. Smith, 99 Mass. 
 395; Nichols v. Smith, 115 Mass. 332. 
 
 Where an injury results from the 
 default or misconduct of a receiver, 
 appointed by a court of equity, while 
 acting under the color of the authority 
 of the court, and there is no dispute 
 as to the power of the court to make 
 the order under which he claims to 
 have acted, the court may, in its dis- 
 cretion, either take cognizance of the 
 question of the receiver's liability 
 and determine it, or permit the 
 aggrieved party to sue at law. But 
 if the power of the court to make the 
 order is disputed, the court has no 
 choice; it must assume exclusive jur- 
 isdiction and inhibit the aggrieved 
 person from seeking redress against 
 the receiver in any other tribunal. 
 Klein v. Jeicett, 26 N. J. Eq. 474. 
 
 * Melendy v. Barbour, 78 Va. 544.
 
 212 
 
 RECEIVERSHIPS. 
 
 of a railroad crossing ;' and for the negligent destruction of prop- 
 erty by tire ;" and for his omission to make the necessary repairs 
 to engines rented and used by him f and for injury to property 
 delivered to him, as a common carrier, for shipment.* And 
 where goods are committed to him for sale, and through negli- 
 gence or bad faith he fails to realize the full value, he will be lia- 
 ble for the real value but not the speculative value." He is 
 responsible for the value of property which by diligence would 
 have come to his possession, but has become lost by his omission 
 to act ;" but he is not liable to pay from the net earnings in his 
 hands, as against the prior equity of bondholders, for the loss of 
 freight while in transit, even when such loss occurred within six 
 months prior to the appointment ;' nor for personal injuries, un- 
 less it is so provided in the order of appointment f nor from the 
 earnings, or proceeds of sale, in preference to the first mortgage 
 bondholders," though probably the great weight of authority is 
 to the effect that damages for personal injuries are payable from 
 the current receipts.'" 
 
 ^Roxhury v. Central Vermont R. Co. 
 60 Vt. 121 
 
 '* Peoples V. Yoakum (Tex. Civ. App.) 
 25S.W. 1001. 
 
 * Turner v. Indianapolis, B. & W. 
 R. Co. 8 Biss. 527. 
 
 * Toakum \. Dunn, 1 Tex. Civ. App. 
 524 (see act of 1889, amending act of 
 1887, and its application to receiver's 
 liability). 
 
 ^Demain v. Cassidy , 55 Miss. 320. 
 
 * Clapp V. Clapp, 49 Hun, 195. 
 
 •» Easton v. Houston & T. C. R. Co. 
 38 Fed. Rep. 12; Pennsylvania Fi- 
 nance Co. V. Charleston, C. & C. R. 
 Co. 46 Fed. Rep. 508; Ex parte Brown, 
 15 S. C. 523. 
 
 ^Davenport v. Alabama & C. R. Co. 
 2 Woods, 519. 
 
 * Davenport v. Alabama & C. R. Co. 
 supra. But see contra, Cowdrey v. Gal- 
 veston, II. <& II. R. Co. 93 U. S. 352, 
 23 L. ed. 950. 
 
 ^'^Hale V. Frost, 99 U. S. 389, 25 L. 
 ed. 419; Fosdick v. Schall, 99 U. S. 
 
 235, 25 L. ed. 339; Barton v. Barbour, 
 104 U. S. 136, 26 L. ed. 677; Kain v. 
 Smith, 80 N.Y. 458; Ryan v. Hays, 62 
 Tex. 42; Klein v. Jewett, 26 N. J. Eq. 
 474; Morse v. Brainard, 41 Vt. 551; 
 Cowdrey v. Galveston, H. & H. R. Co. 
 93 U. S. 352, 23 L. ed. 950. The 
 grounds upon which these decisions 
 are based are in the main (1) That 
 this class of claims stand precisely 
 upon the same footing as other ex- 
 penses of the receivership, and should 
 be paid from the same source. (2) 
 That every mortgagee in accepting 
 his security impliedly agrees that the 
 current debts made in the ordinary 
 course of business shall be paid from 
 the current receipts before he has any 
 claim upon the income. Mr. Chief 
 Justice Waite, in Fosdick v. Schall, 
 supra, said: "The mortgagee has his 
 strict rights, vrhich he may enforce 
 in the ordinary way. If he asks no 
 favors he need grant none. But if 
 he calls upon a court of chancery to
 
 LIABILITY OF RECEIVER. 
 
 213 
 
 § 115. Corporation in hands of receiver not liable. 
 
 Where the property and effects of a raih'oad corporation are in 
 the hands of a receiver, and he in his official capacity is operating 
 the road, the corporation is not hable for the torts of the receiver 
 or of his agents and employees. Having no control of the prop- 
 erty, it is apparent no liability can be imputed to it for injuries 
 received while the road is operated by another.' 
 
 put forth its extraordinary powers 
 and grant him purely equitable relief, 
 he may with propriety be required 
 to submit to the operation of a rule 
 which always applies in such cases, 
 and do equity in order to get equity. 
 The appointment of a receiver is not 
 a matter of strict right. Such an ap- 
 plication always calls for the exercise 
 of judicial discretion; and the chan- 
 cellor should so mould his order that 
 while favoring one, injustice is not 
 done to another." 
 
 A receiver of a railway is not the 
 " proprietor, owner, charterer, or 
 hirer" of the railway, within Tex. 
 Rev. Stat. art. 2899, and was not lia- 
 ble under that article prior to the 
 amendment thereof by Tex. Act, April 
 11, 1892, to one run over ty an engine 
 on such railway. Camphell v. Davis 
 (Tex. Civ. App.) 22 S. W. 244; Tur- 
 ner v. Cross, 83 Tex. 218, 15 L. R. A. 
 262. 
 
 A receiver cannot be held liable in 
 Texas for damages resulting in death. 
 Texas & P. R. Co. v. Thedens (Tex. 
 Civ. App.) 21 S. W. 132; ToaJcumv. 
 Selph, fc3 Tex. 607; Texas & P. B. Co. 
 V. Colli7is, 84 Tex. 121. 
 
 A receiver of a railway company is 
 liable for personal injuries resulting 
 from a defect in the road, where he 
 is not sought to be charged with any 
 personal liability, whether the defect 
 existed when the railway came into 
 his hands, or whether he had been in 
 charge of the road a sufficient time to 
 enable him to repair it. Bonner v. 
 Mayfield, 82 Tex. 234. 
 
 No recovery can be had under the 
 statute, either against the receivers 
 themselves or the railway company, 
 for personal injuries sustained by an 
 employee while a railway company's 
 property is in the hands of receivers, 
 when it does not appear that the re- 
 ceiver was personally and immedi- 
 ately guilty of neglect. Texas & P. 
 E. Co. V. Bledsoe, 2 Tex. Civ. App. 
 88 (see sub. 1 and 2, art. 2899, Tex. 
 Rev. Stat.). 
 
 In general the measure of the re- 
 ceiver's liability is the liability of the 
 person or corporation whose property 
 he is administerng. Whitehouse v. 
 Felloices, 10 C. B. N. S. 765; Dalton v. 
 Atlantic, M. <& 0. R. R. Co. 4 Hughes, 
 180; Mersey Doch Trustees v. Gihbs, 11 
 H. L. Cas. 686. 
 
 When a corporation is in the hands 
 of a receiver who has full possession 
 of its property and entire charge of its 
 affairs, it is not liable for crimes and 
 misdemeanors committed by the agents 
 of the receiver. State v. Wabash R. 
 Co. 115 Ind. 466; Ohio & M. R. Co. v. 
 Davis, 23 Ind. 553; Bell v. Indianap- 
 olis, C. & L. R. Co. 53 Ind. 57. 
 
 ^Meara v. Uolbrook, 20 Ohio St. 137; 
 Klein v. Jewett, 26 N. J. Eq. 474; Jor- 
 dan V. Wells, 3 Woods, 527; Davis v. 
 Duncan, 19 Fed. Rep. 477; Ohio M. 
 R. Co. V. Davis, 23 Ind. 560; Bell v. 
 Indianajwlis, C. cfc L. R. Co. 53 Ind. 
 57; Metz v. Buffalo, C. & P. R. Co. 58 
 N.Y. 61; Ror/ers v. Mobile, etc. R. Co. 
 17 Cent. L. J. 290 (Teun. 1883). 
 
 Where a personal injury is received 
 while the road is in the hands of a re-
 
 214 
 
 RECEIVERSHIPS. 
 
 A railroad company in the hands of a receiver is not liable for 
 an obstruction in the highway which has been erected and is main- 
 tained by a receiyer,' and is not liable for the death of an em- 
 ployee caused by the negligence of the receiyer.' It has been 
 held that a person at whose instance a receiyer is appointed 
 should see that he performs his duties, and any loss which he 
 might haye prevented by proper diligence must, as between him 
 and other litigants, be borne by him/ 
 
 § 116. Lial)ility for use of receivership fuiuls. 
 
 "Where the receiver realizes on money invested by him which 
 is not authorized by the court, he is responsible therefor/ and in 
 all cases he must account for the profit on funds held by him," 
 and when he deposits the money belonging to his trust to his 
 private account and uses it he is chargeable with interest.* 
 All classes of trustees having money in their hands belonging to 
 a trust estate are bound to keejp the trust funds separate and dis- 
 
 ceiver, and subsequently it is turned 
 over by the receiver to the corpora- 
 tion, and a suit for the injury is 
 brought against the corporation, and 
 it appears by the evidence that during 
 the time of the receivership the earn- 
 ings of the road are more than the 
 amount of the claim, but were ap- 
 plied toward betterments of the road, 
 and the road in its improved condition 
 turned over to the corporation, and 
 the injury complained of is such that a 
 recovery could have been had against 
 the receiver, had he still remained 
 such, the plaintiff is entitled to re- 
 cover, even if the court prior to the 
 receiver's discharge ordered all claim- 
 ants to intervene within a fixed time. 
 Texas & P. R. Co. v, Boyd. 6 Tex. 
 Civ. App. 205; Texas T. R. Co. v. 
 Johnson, 86 Tex. 421. And if the lia- 
 bilities of the receiver for unadjusted 
 claims exceed the amounts expended 
 for betterments, it must be pleaded in 
 order to constitute a defense. Texas 
 & P. R. Co. V. Bailey. 83 Tex. 19. 
 
 ^Sfate V. Minneapolis & St. L. R. Co. 
 88 Iowa, 589. 
 
 •^Ttxas & P. R. Co. V. Collins. 84 
 Tex. 121; Memphis & L. R. R. Co. v. 
 Stringfellow, 44 Ark. 323; Turner y. 
 Hannibal & St. J.R. Co. 74 Mo. 603; 
 Ohio & M. R. Co. v. Anderson, 10 111. 
 App. 313. 
 
 ^Downs V. Allen, 10 Lea, 652; Ter- 
 rell V. IngersoU, 10 Lea, 77. 
 
 But in Iowa where no fraud is 
 shown against the plaintiff, he is not 
 liable for damages sustained by prop- 
 erty while in the hands of a receiver. 
 
 Kaiser v. Kellar, 21 Iowa, 95. 
 
 A railroad company is not liable for 
 the negligence of the servant of a re- 
 ceiver. 
 
 Ohio & M. R. Co. V. Davis, 23 Ind. 
 553; Metz v. Buffalo, C. & P. R. Co. 
 58 N. Y. 61. Cf. Stanton v. Alabama 
 & C. R. Co. 31 Fed. Rep. 585. 
 
 *Baldicin v. Crawford, 2 Chamb. Ch. 
 (Onl.) 9. 
 
 ^ Adair County v.Ownby, 75 Mo. 282. 
 
 «i?e Co7)i. F. Ins. Co. 32 Hun, 78.
 
 LIABILITY OF RECEIVER. 
 
 215 
 
 tinct from moneys of tlieir own; and if deposited in bank for safe 
 keeping tlie money should be deposited to the credit of a sepa- 
 rate account in their names as trustees so that the funds can be 
 at all times traced and identified; but if this be not done and the 
 court can see that by mingling of the trust funds with their own 
 the trustees have derived any benefit from their use, they are 
 chargeable with interest, simple or compound, as the facts may 
 require.' Where the receiver is ordered to invest the funds in 
 his hands in a certain way and he does not do so, he is liable for 
 interest. It may be stated as a general proposition that where a 
 receiver holds money in his hands improperly he will be charge- 
 able with interest," and where he makes interest he is liable for 
 interest.' 
 
 ^Manning v. Manning, 1 Johns. Ch. 
 527; Eatcliffe v. Graves, 1 Vern. 196; 
 'Newton v. Bennet, 1 Bro. C. C. 359; 
 Piety V. Stace, 4 Ves. Jr. 620; Scliieffe- 
 Un V. Stewart, 1 Johns. Ch. 618; Min- 
 use V. Cox, 5 Johns. Ch. 447; Mumford 
 V. Murray, 6 Johns. Ch. 17; Eellett v. 
 Rathbun, 4 Paige, 110; Ogihie v. Ogil- 
 me, 1 Bradf. 356; Dvffy v. Duncan, 
 32 Barb. 593, affirmed in 35 N. Y. ISl; 
 Lansing v. Lansing, 45 Barb. 182; Re 
 Com. F. Ins. Co. 32 Hun, 78. 
 
 In this case the receiver deposited 
 the receivership moneys with his own 
 funds, and checked them out from 
 lime to time for his own purposes he 
 was charged with interest; but he 
 cannot be charged with interest sim- 
 ply because he deposits them with his 
 own funds in the bank where the evi- 
 dence fails to show that h'e has used 
 any part of the funds. 
 
 Radford v. Folsom, 55 Iowa, 276; 
 Eic/cs V. Hicks, 3 Atk. 274. 
 
 A special receiver appointed to col- 
 lect a surplus arising from a sale un- 
 der a deed of trust and return it to 
 court at the next term, who received 
 the same in confederate treasury notes 
 at the begining of the war, and in 
 good faith placed them in a respon.si- 
 
 ble bank to the general account of a 
 firm of which he was a member, in 
 which numerous fiduciary deposits 
 were kept, is not liable therefor where 
 no subsequent term was held, and the 
 bank failed as a result of the war, and 
 the money was lost with it. Barton v, 
 Ridgeway, 92 Va. 163. 
 
 ^Uarman v. Foster, 1 Hog. 318; Fet- 
 na-in v. Kirby, 4 Ir. Eq. 320. 
 
 A receiver is not, as a matter of 
 course, chargeable with interest in the 
 absence of special circumstances. 
 Crawford v. Fickey (W. Va.) 23 S. E. 
 662. 
 
 ^Potts v. Leighton, 15 Ves. Jr. 273; 
 
 Lonsdale v. Church, 3 Brace, 41 ; 
 
 V. Jolland, 8 Ves. Jr. 72; Fletcher v. 
 Dodd, 1 Ves. Jr. 85; Uarrison v. Boy- 
 dell, 6 Sim. 211; Shaw v. Rhodes, 2 
 Russ. 539. 
 
 But he is not liable for interest if he 
 does not treat the trust funds as his 
 own. Adair County v. Ownby, 75 Mo. 
 282. 
 
 An order directing receivers to pay 
 interest on certain bonds, "after meet- 
 ing such other obligations as they 
 have been directed to discliarge by 
 the former orders of this court," does 
 not authorize the payment of such iu-
 
 216 
 
 RECEIVERSHIPS. 
 
 § 117. For default of another. 
 
 A receiver of a corporation who employs another to look after 
 and care for property, in the absence of an express agreement to 
 the contrary, is individually liable for the latter's services,' but 
 where he employs an attorney to collect money, which is collected 
 by such attorney and not turned over to the receiver, he will not 
 be liable to the estate for such loss where it appears that the em- 
 ployment of an attorney was necessary, and the attorney em- 
 ployed was in good standing.'' 
 
 tercst until the debts expressly di- 
 rected to be paid by the former orders 
 have been paid. 
 
 Central Trust Co. v. Wabash. St. L. 
 & P. R. Co. 38 Fed. Rep. 63. 
 
 ^Rogers v. Wendell, 54 Hun, 540. 
 This was an action brought by an 
 employee of the receiver whose duty 
 It was under his contract to take 
 charge of the receivership property 
 and make certain disbursements on 
 account of the property. In the course 
 of his employment he made weekly 
 reports to the receiver, furnished ma- 
 terial, looked after the property gen- 
 erally. The receiver died without 
 having paid the plaintiff his salary of 
 $409, and $38 disbursed, and suit was 
 instituted against the estate for these 
 amounts. On the trial of the case the 
 court refused judgment on the ground 
 that the receiver did not assume a per- 
 sonal liability. The case was reversed 
 in the upper court upon the authority 
 of Schmitter v. Simon, 101 N. Y. 557; 
 Willis v. Sha7-p, 113 N. Y. 591, 4 L. 
 R. A. 493 (Executors and Administra- 
 tors); Auatin v. Munro, 47 N. Y. 360, 
 which were cases holding executors 
 and administrators personally liable 
 on their contract. See also Davis v. 
 Stover, 16 Abb. Pr. N. S. 225. where 
 it was held that an agent employed by 
 a receiver in the execution of a trust 
 must look to the person employing 
 him individually, for his pay, and the 
 
 estate was not bound, but that if there 
 was an express agreement that the 
 compensation was to be made out of 
 the estate the claim might be an equi- 
 table set-off against a claim of the es- 
 tate. The same principle was an- 
 nounced in Noyes v. Blakeman, 6 N. 
 Y. 580: Mygali v. WUcox, 45 N. Y. 309; 
 Bowman v. Tallman, 2 Robt. 385; 
 People V. Universal L. Ins. Co. 30 Hun, 
 142; Kedian v. Eoyt, 33 Hun, 145 
 (trustee); By an v. Rand, 20 Abb. N. 
 C. 314; Patton v. Royal Baking Pow- 
 der Co. 114 N. Y. 4. A receiver has 
 no power to contract a debt chargeable 
 against the fund, and while a court 
 may allow expenses by a receiver for 
 the preservation of the property, it is 
 the order of court and not the act of 
 the receiver which creates the charge 
 and upon which its validity depends. 
 Vilas V. Page. 106 N. Y. 451. 
 
 «In Re Union Bank. 37 N. J. Eq. 420, 
 the receiver was not permitted to 
 charge the fund with the expense of 
 clerks when services were unneces 
 sary, nor with the expense of a daily 
 newspaper, nor for fees of counsel to 
 resist applications to the court which 
 the receiver ought not to have op- 
 posed, but he was allowed for moneys 
 collected and misappropriated by an 
 attorney whom he employed in the 
 business of the trust in which it was 
 necessary for him to act by an attor- 
 ney-at-law, such attorney being in
 
 LIABILITY OF RECEIVER. 
 
 217 
 
 § 118. For supplies, labor, etc. 
 
 As lias been seen elsewhere the receiver in a foreclosure pro- 
 ceeding is authorized to purchase on credit the necessary sup- 
 plies, and such indebtedness is payable out of the net earnings, 
 and if ihey are insufficient then it may be a charge upon the 
 funds realized on a sale of the mortgage premises.' He is not 
 personally liable, however, for services rendered by emploj^ees in 
 charge of receivership property.^ Where an employee of a re- 
 ceiver of a railroad company is injured in the line of his duty and 
 without his apparent fault he may recover his wages for the time 
 during which he is disabled.' Where materials are furnislied to 
 a receiver the proper court to present a claim therefor is tlie 
 court appointing the receiver and not the court of another state 
 where the receiversliip has been extended over leased lines by 
 ancillary proceedings.* The employees of a receiver alleging a 
 grievance against him may be heard by the court upon making 
 proper application, and if the court shall be of opinion that fur- 
 ther investigation is demanded he may require the receiver to 
 answer and hear evidence upon the issue made, but the court will 
 not reverse a decision of the receiver in reducing the wages of 
 his employees where it involves an extensive investigation.^ 
 
 good standing and no negligence ap- 
 pearing on the part of the receiver. 
 
 See §118, note 2; § 120. 
 
 ^Kneeland v. Bass Foundry & Mach. 
 Works, 140 U. S. 592, 35 L. ed. 543; 
 Kneeland v. American Loan & T. Co. 
 136 U. S. 89, 34 L. ed. 379; Milten- 
 berger v. Logansport, G. & S. W. R. 
 Co. 106 U. S. 289, 27 L. ed. 119; Union 
 Trust Co. V. Souther, 107 U. S. 591, 
 27 L. e(J. 488; Wallace v. Loomis, 97 
 U. S. 146. 24 L. ed. 895. 
 
 "^Rogers v. Wendell, 54 Hun, 540. 
 
 ^-Missouri P. R. Co. v. Texas & P. 
 R. Co. 41 Fed. Rep. 319. 
 
 * Clyde V. Richmond & D. R. Co. 56 
 Fed. Rep. 539. 
 
 ^Continental Trust Co. v. Toledo, St. 
 L. & K. C. R. Co. 59 Fed. Rep. 514. 
 
 See also Railroad Receivers. 
 
 As to the payment of claims from 
 the proceeds of sale it is held in Knee- 
 
 land V. American Loan & T. Co. 136 
 U. S. 89, 34 L. ed. 379, that where the 
 receiver is appointed at the instance 
 of a general creditor, such creditor 
 is not entitled as against the lien of 
 the mortgage bondholders to a prefer- 
 ence in payment from the proceeds of 
 sale. But in Kneeland v. Bass Foun- 
 dry & Mach. Woi-ks, 140 U. S. 592, 35 
 L. ed. 543, a claim was allowed for 
 supplies furnished to a receiver, ap- 
 pointed on the application of a judg- 
 ment creditor, and ordered to be paid 
 from the proceeds of sale, where so 
 far as the record showed that was the 
 only fund available for its payment 
 and where the supplies were necessary 
 for the continued operation of the 
 road, and had gone into the general 
 property covered by the mortgage, 
 which was sold \ at the foreclosure 
 sale, upon the authority of Fosdick v.
 
 218 RECEIVERSHIPS. 
 
 § 110, For money deposited in bank. 
 
 A receiver haviii<^ money in his hands has no right to part with 
 the actual custody of such money by depositing it in a bank or 
 otlierwise, save at his own risk, without order of court and he 
 must make good the loss.' AYliile a receiver may keep money in 
 a bank as a safe place of deposit, or he may use the bank as a 
 means of transmitting money to distant places, and if in doing so 
 lie uses reasonable care and diligence he will not be held liable 
 for loss in case of a failui'e of the bank,'^ and where the receiver- 
 ship money is already in a place of permanent custody and which 
 is one of safety the receiver is not authorized in removing such 
 deposit to a bank, or otherwise save at his own risk without an 
 order directing him to do so from the court,' but if a receiver in 
 the exercise of sound business judgment deposits money in a bank 
 of good credit in preference to taking the money with him to 
 London to pass his accounts, and in the meantime the bank fails 
 the receiver is not liable/ But where he has the receivership 
 money on deposit in a bank to his credit as receiver and with- 
 draws such deposit and places it to his private account in another 
 bank and declines to explain the transaction he is chargeable with 
 interest,^ and if he places the fund with private bankers without 
 security and it is loaned out on stock collaterals without his 
 knowing to whom, or on what stock, or the interest to be received, 
 he is chargeable with the interest he received/ 
 
 ScMll, 99 U. S. 235, 25 L. ed. 339; Cf. Atlantic & N. G. R. Co. v. Cowles, 
 
 Miltenberger v. Logansport, C. & S. W. (39 N. C. 59. 
 
 R. Go. 106 U. S. 286. 27 L. ed. 117; '•ninckley v. Oilman, G. <£ S. R. Go. 
 
 Union Trust Go. v. Souther, 107 U. S. 100 U. S. 153, 25 L. ed. 591. 
 
 591, 27 L. ed. 488; Wallace v. Loomis, ^Atty. Gen. v. North American L. 
 
 97 U. S. 146, 24 L. ed. 895; Burnham Ins. Go. 89 N. Y. 94. In this case 
 
 V. Bowers, 111 U. S. 776, 28 L. ed. the receiver acted in good faith and 
 
 596. no money was lost. 
 
 ^Ricks\. Broyles, 78 Ga. 610; Slate, A firm suspended and became in- 
 
 Collins, V. Gooch, 97 N. C. 186. solvent and at the time of such sus- 
 
 ^State, Gollins, v. Qooch, supra. He pension had on deposit with them 
 
 will not be authorized, however, in from another firm a large amount of 
 
 making a loan to the bank without money to secure advances made to the 
 
 security. latter from time to time. It was not 
 
 ^Ricks V. Broyles, 78 Ga. 610; Knight understood that they were to keep on 
 
 V. Plymouth, 3 Atk. 480. hand the same money deposited or 
 
 *Routh V. Howell, 3 Ves. Jr. 565. any particular money or property, the
 
 LIABILITY OF RECEIVER. 219 
 
 § 120. For costs and expenses. 
 
 "Where proceedings were instituted by a bank, and after its in- 
 solvency and the appointment of a receiver the latter carried on 
 the proceedings, the defendant is entitled to his costs on the ren- 
 dition of a judgment in his favor, to be paid from the fund in the 
 receiver's hands,' but the court will not order paid expenses in- 
 curred in legal proceedings where such proceedings w^ere not au- 
 thorized by the court," nor where the receiver contests a claim in 
 bad faith, and where he voluntarily embarks in litigation without 
 funds from which to pay the costs thereof he is guilty of bad 
 faith and must pay such costs personally.^ Costs incurred for the 
 benefit of a fund in the hands of a receiver will be paid from 
 such fund,* though an order of court authorizing the action has 
 been held necessary/ Where a judgment for costs has l)een ren- 
 dered against a receiver he will not be ordered on motion to pay 
 such costs from the funds in his hands, even upon a showing that 
 he has paid other larger amounts, or recently had sufficient funds 
 to pay the judgment. He is not bound to render the account to 
 each individual creditor. Other creditors with suits pending or 
 to be commenced have an equal claim upon the funds in the re- 
 ceiver's hands. Such a motion cannot be converted into a cred- 
 itor's bill." Expenses for repairs are a charge on the funds in his 
 
 account being a debit and credit ac- man v. White, 6 N. Y. 412; Cook v. 
 
 count, interest being allowed on one Tullis, 85 U. S. 18 Wall. 333, 21 L. 
 
 side and credited on the other. After ed. 933; Clark v. Iselin, 88 U. S. 21 
 
 the suspension and appointment of a Wall. 360, 22 L. ed. 568; Van Alen v. 
 
 receiver, the depository firm sought American Nat. Bank, 53 N. Y. 6. 
 
 to compel the receiver to pay over the ^Camp v. Niagara Bank, 2 Paige, 
 
 balance in his hands of said deposit 283. 
 
 on the ground that it was a special ^Dudgeon v. Boioen, Hayes &, J. 717. 
 
 deposit. Held, that the receiver was ^Bourdon v. Mantin, 74 Hun, 246. 
 
 not liable for the deposit as a special A receiver of an estate cannot 
 
 deposit; if a special deposit had been charge the heirs and legatees with the 
 
 made and the same money had been cost of an unsuccessful litigation over 
 
 found or property in which it had his accounts. Henry v. Henry, 103 
 
 been wrongfully invested, or which Ala. 582. 
 
 had been wrongfully substituted for '^Locke v. Covert, 43 Ilun, 484. 
 
 it then such money or property could ^Sioaby v. Dickon, 5 Sim. 629; Con- 
 
 have been followed into the hands of yers v. CroMe, 6 Ir. Eq. 657; Bris- 
 
 the receivers and recovered. Batter tome v. Needham, 12 Phill. Ch. 190. 
 
 V, Spi-ague, 66 N. Y. 393. Cf. Re '^Devendorf v. Bickinvon, 21 How. 
 
 Franklin Bank, 1 Paige, 249; Chaj)- Pr. 275.
 
 220 RECEIVERSHIPS. 
 
 hands, and so are salaries, including receiver's certificates, a 
 charo-e upon mortgage property taking precedence to the mort- 
 gage.' 
 § 121. For rents. 
 
 Where a receiver as such takes possession of premises whicli 
 were held as lessee by those wliose estate he is administering and 
 has paid rent therefor, according to the, terms of the lease, from 
 the time of his appointment for a considerable period thereafter, 
 he becomes liable for the rent accruing thereafter, and it is not a 
 defense that there is no privity of contract between himself and 
 lessor. The title to the demised term passes to and becomes 
 vested in the receiver and he is liable for the subsequently accru- 
 ing rent." This principle is based upon the fundamental doctrine 
 applied to parties generally, that possession and use of property 
 carries with it a corresponding liability to pay therefor according 
 to the terms of the lease under which the property was held by 
 the receiver's predecessor, during the time he occupies the demised 
 property.' But it by no means follows from this that he becomes 
 liable for the entire unexpired portion of the term, for he is liable 
 for such covenants only as are broken while privity of estate is 
 continued, and it is at all times within his power to escape fur- 
 ther liability by abandoning possession even if done for the ex- 
 press purpose of avoiding further payment for rent, and thereby 
 destroy the privity of estate.* 
 
 A receiver will be liable for the rents collected by him although 
 his bond was not approved until sometime afterwards,^ but he is 
 not liable where he refuses to take possession of the leasehold 
 
 ^Sterling V. Wynne, Hayes & J. 817; becomes liable to pay rent which is a 
 
 Ellis V. Ve7'non, 4 Tex. Civ. App. 66. covenant running with the land. 
 
 See § 117. A service of notice upon the lessee 
 
 ^ Wells v. Higgins, 132 N. Y. 459; in a forcible entry and detainer pro- 
 Woodrvff v. Erie R. Co. 93 N. Y. 609; ceeding will be binding on a receiver 
 Frank v. New York, L. E. & W. R. of his property subsequently appoint- 
 ed. 122 N. Y. 197. ed in another suit. Woodward v. 
 
 ^Frank v. Neic York, L. E. & W. Tr2«e7i?-« (Wash.) 44 Pac. 860. 
 
 R. Co. supra. In such case the re- * Frank v. Neio York, L. E. & W. R. 
 
 ceiver occupies the premises and Co. supra; Childs v. Clark, 3 Barb, 
 
 makes himself liable by reason of his Ch. 52; Tate v. McCormick, 23 Hun, 
 
 privity of estate and not by any priv- 218; Durand v. Curtis, 57 N. Y. 7. 
 
 ity of contract, and by reason thereof ° Western Canada & I. Co. 8 Prec. 
 
 Rep. (Ont.) 262.
 
 LIABILITY OF RECEIVER. 221 
 
 premises;' l)ut if it is his duty to take possession of real estate and 
 he neglects to do so during the period of his appointment he is 
 chargeable with rent for such premises.* Before a landlord is 
 entitled to a lien under the statute of 8 Anne, chap, l-l, § 1, his 
 rent must be due, and when his rent is not due until after the 
 goods are sold he cannot be a preferred creditor.^ A person 
 having a claim for rent upon pro])ertj in the possession of a re- 
 ceiver appointed by the court should apply to the court upon no- 
 tice to the receiver, for an order upon the receiver to pay tlie rent 
 or for leave to proceed by distress or otherwise.'' The rental value 
 of rolling stock while it is in the hands of the receiver appointed at 
 the instance of a mortgagee in a proceeding instituted to foreclose 
 a mortgage, if used by the receiver in operating a railroad is 
 properly allowed as a prior lien to the mortgage indebtedness.^ 
 
 § 122. On unexpired leases. 
 
 An ordinary chancery receiver appointed in a foreclosure pro- 
 ceeding does not, simply by virtue of his appointment, become 
 liable upon the covenants and agreements of the person or corpo- 
 ration over whose property he is appointed ; and in case of a 
 receivership of a raih-oad he is entitled to a reasonable time in 
 which to elect whether he will adopt a lease in which tlie railroad 
 company is the lessee or return the leased propert}^ to the lessor 
 or owner." He does not by reason of his appointment become an 
 assignee of the term,' and in such case it is a proper matter of 
 
 ^Fidelity Safe Deposit & T Co. v. therefor, on the payment of the stipu. 
 
 Armstrong, 35 Fed. Rep. 567. lated rental. Sunflower Oil Co. v. 
 
 ^Dotcns V. Allen, 10 Lea, 652. Wilson, 143 U. S. 313, 35 L. ed. 1025; 
 
 ^Gaither v. Strockbridge, 67 Md. 222. Com. v. Franklin Ins. Co. 115 Mass. 
 
 *Noe V. Gibson, 7 Paige, 513. 278; Sparliawk v. Terkes, 143 U. S. 1, 
 
 ^Eneelandv. American Loan & T. 35 L. ed. 915; Southern Exp. Co. v. 
 
 Co. 136 U. S. 89, 34 L. ed. 379. Such Western N. C. R. Co. 99 U. S. 191, 25 
 
 rental should be fixed not at the actual L. ed. 319; Coe v. New Jersey M. R. 
 
 mileage but at its reasonable value. Co. 27 K J. Eq. 37; United States 
 
 ^Quincy, M. & P. R. Co. v. Humph- Trust Co. v. Wabash & W. R. Co. 150 
 
 reys, 145 U. S. 83, 36 L. ed. 632; St. U. S. 287, 37 L. ed. 1085; Woodruff v. 
 
 Joseph & St. L. R. Co. v. Humphreys, Erie R. Co. 93 N. Y. 609; Re Otis, 101 
 
 145 U. S. 105, 36 L. ed. 640. And the N. Y. 580; Farmers' Loan & T. Co. v. 
 
 same rules apply to leases of rolling Chicago & A. R. Co. 42 Fed. Rep. 6. 
 stock, which are coupled with an op- ''Olenny v. Langdon, 98 U. S. 20, 25 
 
 tion to buy and the privilege of re- L. ed. 43; American File Co. v. Gar- 
 
 turning in case of an inability to pay rett, 110 U. S. 288, 28 L. ed. 149; Re
 
 222 
 
 RECEIVERSHIPS. 
 
 consideration by the court whether the adoption of the lease and 
 the operation of the leased road would be a burden upon the re- 
 ceiver, and the pi'operty in his hands,' and one of the elements 
 entering- into sucli a question is whether the cost of maintaining 
 such leased Htic prior to the surrender to tlie receiver exceeded 
 the earnings tliereof.^ If. however, under the circumstances of 
 the ease the receiver become assignee of the term and is vested 
 with the estate he is liable for the rent during the term of the 
 receivership.' 
 
 § 123. Adoptiou of lease by receiyer. 
 
 As we have seen, neither the appointment of a receiver nor his 
 taking possession of a leased line of road, or other leased property, 
 makes him liable for the rental longer than he sees proper to re- 
 tain possession thereof.* Such leases, however, may be adopted 
 bv the receiver and thenceforth they become in all their covenants 
 and conditions obligatory on the receiver and the property in his 
 charge/ The adoption by the receiver may be effected by a 
 
 Oak Pits Colliery Co. L. R. 21 Ch. Div. 
 322, 330; Broicn v. Toledo, P. & W. R. 
 Co. 35 Fed. Rep. .444; People v. Uni- 
 versiil L. Ins. Co. 30 Hun, 142; Easton 
 V. Uouston (& T. C. R. Co. 38 Fed. 
 Rep. 784; Fidelity Safe Depofiit Co. v. 
 Armstrong, 35 Fed. Rep. 567. 
 
 ^St. Joseph <& St. L. R. Co. v. Humph- 
 reys, 145 U. S. 105. 36 L. ed. 640. 
 
 -Quincy, M. & P. R. Co. v. Humph- 
 reys, 145 U. S. 82. 36 L. ed. 632. 
 
 ^Broion v. Toledo, P. <& W. R. Co. 35 
 Fed. Rep. 444. 
 
 4See§ 121. 
 
 Cf. Gaither v. Stockhridge, 67 Md. 
 222. If the key is surrendered and the 
 leasehold property returned to the 
 landlord before rent matures the land- 
 lord has no claim upon the receiver; 
 if, however, he is still in possession 
 when the rent matures the receiver 
 may properly pay the accrued rent. 
 
 The refusal of a receiver of a na- 
 tional bank which went into insolv- 
 ency and was dissolved shortly after 
 making a lease for a long term, to 
 
 take possession of the leased premises, 
 does not entitle the lessor to damages 
 out of the assets, where the rent was 
 paid while the bank was in possession. 
 Fidelity Safe Deposit & T. Co. v. Arm- 
 strong, 35 Fed. Rep. 567. 
 
 ^Quincy, M. & P. R. Co. v. Humph- 
 reys, 145 U. S. 82, 36 L. ed. 632. 
 
 Where receivers of an insolvent rail- 
 road company agreed to accept cer- 
 tain rails contracted for before their 
 appointment believing their accept- 
 ance would be for the benefit of the 
 estate it was held to be an adoption 
 and binding on the receivers though 
 it was subsequently developed that 
 the contract was a losing one. Wa- 
 bash, St. L. & P. R. Co. v. Central 
 Trust Co. 22 Fed. Rep. 269. And see 
 Central Trust Co. v. Wabash, St. L. <& 
 P. R. Co. 52 Fed. Rep. 908. It has 
 been held, however, that an improvi- 
 dent contract of the receiver, detri- 
 mental to the trust should not .be en- 
 forced, unless the contractor is ig- 
 norant of such improvidence and has
 
 LIABILITY OF RECEIVER. 
 
 223 
 
 direct affirmation of his intention so to do with the landlord or 
 lessor ; or it may be done by acts on the part of the receiver which 
 by implication will amount to an adoption. The rule upon this 
 subject, as stated by Mr. Piatt in his work on Leases,' and adopted 
 by the United States Supreme Court^ is as follows : " A reason- 
 able time was allowed the assignees to ascertain the value of the 
 lease before they made their election; for which purpose they might 
 have it valued, or put up for sale without danger of such act 
 being deemed an acceptance. If, however, they accepted a bid- 
 dino;, or dealt with the estate as their own or used it in a manner 
 injurious to the persons otherwise entitled they were not within 
 this protection." Where the receiver becomes liable for rent by 
 
 in good faith performed bis part. 
 Vanderbilt v. Central B. Co. 43 N. J. 
 Eq. 669. 
 
 ' Vol. 2, p. 435. 
 
 ^Quincy, M. & P. R. Co. v. Humph- 
 reys, 145 U. S. 83, 36 L. ed. 632. And 
 see Olenny v. Langdon, 98 U. S. 20, 
 25 L. ed. 43; American File Co. v. 
 Garrett, 110 U. S. 288, 28 L. ed. 149; 
 Sparhawk v. Yerkes, 142 U. S. 1, 35 
 L. ed. 915. This doctrine was ap- 
 proved by the Court of Appeals of 
 England in Re Oak Pits Colliery Co. 
 L. R. 21 Ch. Div. 322, upon the au- 
 thority of Re Lundy Granite Co. L. 
 R. 6 Ch. 462; Re Brown, Bayley, & 
 Dixon, L. R. 18 Cb. Div. 649; and by 
 Chief Justice Parker in Berry v. 
 GiUis,Vl^.'il. 9, upon the authority of 
 Smith V. Gordon, 6 Law Rep. ol3; 
 Copeland v. Stephens, 1 Barn. & Aid. 
 602, and other cases cited; and by Mr. 
 Justice Endicott in Com. v. Franklin 
 Ins. Co. 115 Mass. 278, iipon the author- 
 ity of Copeland v. Stephens, supra; 
 Thomas v. Pemberton, 7 Taunt. 206; 
 Uill V. Dobie, 8 Taunt. 325; Ansell v. 
 Eobson, 2 Cromp. & J. 610; Uanson v. 
 Stevenson, 1 Barn. & Aid. 303; Exparte 
 Faxon, 1 Low, Dec. 404; Martin v. 
 Black, 9 Paige, 641; and by Chancel- 
 lor Walworth in Martin v. Black, 9 
 Paige, 041, upon the authority of 
 
 Bonrdillon v. Dalton, 1 Peakes, N. P. 
 238; Wheeler v. Braham, 3 Campb. 
 340; Clarke v. Hume, 1 Ryan & M. 
 206, and others. The Chancellor says: 
 "If the assignee elects to waive the 
 term and neither enters upon the de- 
 mised premises nor does any other act 
 signifying his acceptance of the terms 
 as assignee he is not liable for the 
 rent, * * * but if the assignee 
 enters upon the demised premises, or 
 does any other act which is equiva- 
 lent to signify his assent to accept the 
 terms as the assignee of the lease he 
 will become the tenant of the prem- 
 ises and render himself liable for the 
 rent." Justice Endicott says: "There 
 must be some occupation and use of 
 or some dealing and intermeddling 
 with the estate, or some act, admission 
 or agreement which in terms or by 
 necessary implication indicates an 
 election." 
 
 In proceedings to compel a receiver 
 in a foreclosure action to pay rent for 
 use of tracks and terminal facilities, 
 where the amount of rent was left 
 uncertain, a contract between other 
 parties, oppressive in its terms, is not 
 a test of the amount of rent which the 
 receiver should pay; and it not being 
 shown tliat the sura paid by the re- 
 ceiver was insufhcicnt, the dismissal
 
 224 RECEIVERSHIPS. 
 
 reason of liis occupancy of the demised premises the liability will 
 be for a reasonable rental,' durino; the period of his occupancy." 
 
 Such leases do not become bindinir upon the receiver by reason 
 of the bill beini^ filed for the purpose of preventinn; a disintegra- 
 tion of the system, nor by reason of the fact that the receiver has 
 remained in possession of the leasehold property for ^ome time, 
 the lessor not having taken possession, or demanded possession by 
 reason of a breach of the conditions of the lease.' 
 
 § 124. Liability on leases made without order of court. 
 
 Where a receiver of a railroad company is authorized "to make 
 all contracts necessary in carrying on the business, subject to the 
 Bupervision of the court," he has no authority to make a lease for 
 a term of general offices without the sanction of the court, and to 
 bind his successors, and the property, therefor for the term, and 
 the fact that his accounts showed monthly the payment of rent 
 under such lease, and that the rent was reasonable and that the 
 iiccounts as rendered were passed upon by the master and re- 
 ported to, and approved by the court, do not amount to a sanction 
 by the court of the lease for the term." 
 
 § 125. On contracts other than leases. 
 
 Similar rules to those applicable to leases are applicable to the 
 general contracts of the person or corporation over whose prop- 
 ■erty the receiver is appointed, which are in force at the time of 
 the receiver's appointment. Thus a receiver of a railroad com- 
 
 • of the proceedings was proper. Peo- Humphreys, 145 U. S. 82, 36 L. ed. 
 
 ria & P. U. B. Co. v. Chicago, P. & 632; Coe v. New Jersey M. R. Co. 27 
 
 .8. W. R. Co. 127 U. S. 200, 32 L. ed. N. J. Eq. 37; Re Silkstotie & D. Coal 
 
 110. & I. Co. L. R. 17 Ch. Div. 158. 
 
 "^Bell V. American Protective League, As to the liability of an assignee in 
 163 Mass. 558, 28 L. R. A. 452. bankruptcy or insolvency, see Iloyt v. 
 ''United States Trust Co. y. Wabash Stoddard, 2 Allen, 442; Patten v. 
 W. R.Co. 150 U. S. 287, 37 L. ed. 1085; Beshon, 1 Gray, 325; Sanders v. Par- 
 Woodruff V. Erie R. Co. 93 N. Y. 609; tridge, 108 Mass. 556; Abbott v. Stearns, 
 Frank v. New York, L. E. & W. R. 139 Mass. 168; Frank v. New York, L. 
 Co. 122 N. Y. 197; Re Oak Pits Col- E. & W. R. Co. 122 N. Y. 197. 
 
 ■liery Co. L. R. 21 Ch. Div. 328; Re ^New York, P. & 0. R. Co. v. New 
 
 Blackburn d: Dist. Ben. Bldg. Soc. York, L. E. & W. R. Co. ^SYqCl. Ile^. 
 
 L. R. 42 Ch. Div. 343: Oaither v. 268. 
 
 .Stockbridge, 67 Md. 222; Re Otis, 101 ^Chicago Deposit Vault Co. v. Mc- 
 
 JN. Y. 580; Quincy, M. <& P. R. Co. v. Nulta, 153 U. S. 554, 38 L. ed. 819.
 
 LIABILITY OF RECEIVER. 225 
 
 panj is not liable for removing a switch which the company was 
 under contract to maintain at a certain place.' In another case, 
 however, in the same state where in consideration of the grant of 
 the right of way across land the railroad company agreed to erect 
 a water tank on the land and maintain the same, which was to he 
 supplied with water from a spring for which compensation was 
 to be made, it was held that there was a lien upon the earnings 
 of the road in the hands of a receiver to secure such payment 
 and a right of action against the receiver for breach of contract." 
 A receiver cannot under a contract between his principal and an- 
 other person enter upon and use the property of the latter and 
 without his consent repudiate or change the terms thereof, and if 
 the receiver uses a railroad track under the terms of a lease he is 
 bound to pay the rent according to the terms thereof.' The gen- 
 eral rule upon the subject of the liability of the receiver upon 
 the contracts of the debtor, in the absence of a lien, is that he is 
 not liable." This rule is based upon the fact that the receiver is 
 not the representative of the debtor for the fulfillment of his con- 
 tracts except in such cases as he may adopt the contract as his 
 own. 
 
 § 126. Oil contracts of predecessor. 
 
 A receiver is not, as such, liable on the contracts of his prede- 
 cessor and cannot be sued thereon; he is not a party thereto by 
 execution or adoption, and in the absence df instruction by the 
 court is not obliged to perform them, nor is he the representative 
 
 ^ Brown \. Warner, 78 Tex. 543, 11 Co. 107 Mass. 1; Elmira Iron & S. 
 
 L. R. A. 394. Rolling Mill Co. v. Erie R. Co. 26 N. 
 
 ""Ho^ce V. Harding, 76 Tex. 17. J. Eq. 284. 
 
 ^ St. Louis & C. R. Co. V. East St. A note executed by a corporation to 
 
 Louis & C. R. Co. 39 111. App. 354, af- one who has previously given a check 
 
 firmed in 189 111. 401, on other grounds. drawn to the individual order of its 
 
 * Central Trust Co. v. Marietta & N. vicepresident, which has been used 
 
 G. R. Co. 51 Fed. Rep. 15, 16 L. R. A. by the corporation for its own pur- 
 
 SO; Southern Exp. Co. y .Western N. C. poses, is a valid claim against the cor- 
 
 R. Co. 99 U. S. 194, 25 L. ed. 320; poration or a receiver appointed in 
 
 Brown V.Warner, 78 Tex. 543, 11 L. proceedings for its di.s.sohition. Peo- 
 
 R. A. 394. Cf. Central Trust Co. v. pie v. American Steam Boiler Ins* Co. 
 
 Wabash, St. L. & P. R Co. 32 Fed. 8 App. Div. 504, All'g. 14 Misc. 163. 
 Rep. 566; Ellis v. Boston, H. dc E. R. 
 15
 
 226 RECEIVERSHIPS. 
 
 of his predecessor in the le^^al sense of the term,' nor can dam- 
 ages be imposed upon liim for a faihire to perform them,'' but 
 under some circumstances such contracts may be a charge against 
 the trust property. It would seem that if the contract of a re- 
 ceiver is made by order of court it is binding on the estate, and 
 upon a subsequent receiver.* 
 
 § 127. Order of payment; preferred payments. 
 
 In foreclosure proceedings it frequently becomes important to 
 determine the order of payment. It may be stated as a rule, 
 however, that a claimant is not entitled to an allowance from the 
 property in the receiver's hands or from the earnings of such 
 property, in preference to the mortgage bondholders where the 
 claim grows out of an alleged breach of contract,* nor are rentals 
 for rolling stock entitled to preference from the proceeds of sale, 
 over lienholders under a mortgage, where there is nothing sold 
 except the mortgage property, and when the receiver is appointed 
 on a bill filed by a general creditor, and where the property did 
 not sell for a sufficient amount to pay the mortgage indebtedness.* 
 Nor has the court a right to make the appointment of a receiver 
 conditioned upon the payment of the unsecured, indebtedness.* 
 
 ^LeMgTi Coal & Nav. Co. v. Central speaking for the court, says: "Be- 
 
 R. Co. 38 N. J. Eq. 175. cause in a few specified and limited 
 
 ^Lehigh Coal & Nav. Co. v. Central cases this court has declared that un- 
 R. Co. 41 N.J. Eq. 167. And where secured claims were entitled to pri- 
 he has doubts about the fairness of the ority over mortgage debts an idea 
 contracts of its predecessor it is his seems to have obtained that a court 
 duty to refuse to perform them. It appointing a receiver acquires power 
 was held, however, by the same court to give such preference to any general 
 in Kerr v. Little, 42 N. J. Eq. 528, that and unsecured claims. It has been 
 a suit for damages could be main- assumed that a court appointing a re- 
 tained against a receiver for the non- ceiver could rightfully burden the 
 performance of the contract of a for- mortgaged property for the payment 
 mer receiver. of any unsecured indebtedness. In- 
 
 ^Farmers' Loan & T. Co. v. Burling- deed, we are advised that some courts 
 
 ton & 8. W. R. Co. 32 Fed. Rep. 805. have made the appointment of a re- 
 
 ^Central Trust Co. v. Wabanh, St. L. ceiver conditional upon the payment 
 
 & P. R. Co. 32 Fed. Rep. 566. of all unsecured indebtedness in pref- 
 
 ^Kneeland v. American Loan & T. erence to the mortgage liens sought to 
 
 Co. 136 U. S. 89, 34 L. ed. 379. be enforced. Can anything be con- 
 
 ^Kneeland v. American Loan & T. ceived which more thoroughly de- 
 Co. 136 U. S. 89, 34 L. ed. 379. Upon stroys the sacredness of contract obli- 
 this question, Mr. Justice Brewer, gations? One holding a mortgage
 
 LIABILITY OF RECEIVER. 
 
 227 
 
 It may be stated, however, tliat if, at the instance of any party 
 rii^htfiilly entitled thereto, the court should appoint a receiver of 
 property, the same being; railroad property and therefore under 
 an obligation to the public, of continued operation he, in the ad- 
 ministration of such receivership, might rightfully contract debts 
 necessary for the operation of the road, either for labor, supplies 
 or rentals, and make such expenses a prior lien on the property 
 itself.' As between the conflicting interests of general creditors, 
 
 debt upon a railroad has the same 
 right to demand and expect of the 
 court respect for his vested and con- 
 tracted priority as the holder of a 
 mortgage on a farm or lot. So, where 
 a court appoints a receiver of railroad 
 property, it has no right to make that 
 receivership conditional on the pay- 
 ment of other than those few unse- 
 cured claims which, by the rulings of 
 this court, have been declared to have 
 an equitable priority. No one is 
 bound to sell to a railroad com- 
 pany or to work for it, and whoever 
 has dealings with a company whose 
 property is mortgaged, must be as- 
 sumed to have dealt with it on the 
 faith of its personal responsibility and 
 not in expectation of subsequently 
 displacing the priority of the mort- 
 gage liens." 
 
 'See last preceding note. 
 
 A receiver of a railroad is not lia- 
 ble, individually, upon contracts made 
 as receiver where he has not pledged 
 his own credit. 
 
 Neioman v. Davenport, 9 Baxt. 538. 
 
 A rule has been adopted in the sev- 
 enth circuit though not fully or ex- 
 pressly formulated in any decision, 
 to allow preferential payments for la- 
 bor supplies and equipment from the 
 income during the receivership, or 
 from the sale of property mortgaged, 
 for a period of six months preceding 
 theappointrnentof a receiver. Thomas 
 V. reoria & 11. R. Co. 36 Fed. Kep. 
 
 808. The remainder due on a locomo- 
 tive sold to a railroad company more 
 than six months prior to the time the 
 road went into the hands of a receiver 
 cannot be allowed out of the earnings 
 of the receivership in preference to 
 the claims of bondholders under a 
 prior mortgage, but is to be classed 
 with the general corporate indebted- 
 ness. Manchester Locomotive Works v. 
 Truesdale, 44 Minn. 115, 9 L. R. A. 
 140. It has been held that a receiver 
 is liable for the good will of the con- 
 cern over which he has been ap- 
 pointed receiver. Merchants Nat. 
 Bank v. Landaner, 68 Wis. 44. 
 
 A trustee of the bondholders of a 
 railroad company who resists the re- 
 turn of cars delivered to such com- 
 pany from a lessee of the cars under 
 a contract providing for their final sale 
 with a reservation of title in the lessor 
 until they should be fully paid for, 
 and who participates in procuring an 
 order to restore them to such lessor, 
 is estopped to deny that the rental of 
 the cars is an expense of the receiver- 
 ship of such railroad company prior 
 in dignity to the lien of the mortgage 
 securing the bonds. Lane v. Macon 
 & A. R. Co. 96 Ga. 630. 
 
 A pledge of the revenues to be 
 earned by an electriclight company 
 under its contract with a city will not 
 entitle the pledgee to the payments to 
 be made by the city as against the re- 
 ceivers, where nothing will become
 
 228 RECEIVERSHIPS. 
 
 and the bondholders secnred by a first mortgage, where not 
 only the real estate but the personalty is taken possession of by a 
 receiver and a sale made of both, questions of difficulty have pre- 
 sented themselves, and no general rule can possibly be stated ap- 
 plicable to all cases. The following propositions have been re- 
 cently established, or reiterated, by the Supreme Court of the 
 United States relative to the rights of mortgagees and general 
 creditors and their priority with respect to each other. 
 
 (a) "Where a judgment creditor files a bill and on his applica- 
 tion a receiver is appointed for an insolvent railroad company and 
 possession is taken of the property of the company, real and per- 
 sonal, the mortgage covering the realty only, the lien of the judg- 
 ment creditor has priority as to the personalty and the lien of the 
 bondholder under the mortgage has priority as to the realty, and 
 neither is charged with a deficiency from the other. 
 
 (b) "Where a bondholder files a bill to foreclose his mortgage 
 and on his application a receiver is appointed for a railroad com- 
 pany, and the receiver takes possession of the property of the 
 company, real and personal, the personal for the benefit of the 
 real, there is an implied consent on the part of the bondJioIder 
 that the rental value of the personalty shall be paid in prefer- 
 ence to his claim, as one of the expenses of the receivership, and 
 thus, in this case, the realty is burdened with the rental of the 
 personalty as an operating expense. 
 
 The liability of a receiver for the use of cars under a contract 
 which is invalid, is the amount which similar cars could be rented 
 for in the open market.' 
 
 § 128. When personally liable. 
 
 As a rule the receiver is only liable in his official capacity and 
 from the receivership fund in his hands ;" but he may make him- 
 
 due from the city until the services vices are rendered, and the receivers 
 required by the contract for each have the right to elect either to carry 
 month have been performed, and such out or renounce such executory con- 
 services connot be performed except tracts. United Electric tecurities Co. 
 at a neavy expense, which must be v. Louidana Electric Light Co. 71 Fed. 
 paid by the receivers, as the contract Rep. 615. 
 
 of assignment of revenues to be earned ' Thomas v. Peoria & R. I. R. Co. 36 
 
 is executory, and vests no right in Fed. Rep. 808. 
 
 favor of the assignees until the ser- '^ Kaiii v. Smith, 80 x^.Y. 458.
 
 LIABILITY OF RECEIVER. 
 
 22\) 
 
 self personally liable, as where he is operating property by con- 
 tract or lease in connection with receivership property, in which 
 case he is individually liable for an injury occurring to a person 
 growing out of the use of the property operated by him under 
 contract or lease, and generally it may be stated that he is per- 
 sonally liable where his contract is personal.' If the law were 
 such that a receiver would be personally liable upon contracts 
 made in his official capacity, or for torts committed by his sub- 
 ordinates, no capable person would be willing to act as receiver 
 and assume such responsibilities, and particularly so in the mat- 
 ter of receivership of railways and large corporations, where a 
 large number of subordinates are necessarily employed.* And a 
 judgment against a receiver must be against him officially and 
 payable from the receivership funds.' But if the receiver incurs 
 expenses and charges without sufficient funds in his hands to 
 
 » Elebisch v. Seidler, 57 N. Y. S. R. 
 003; Kno'wles v. Scott, 64 L. T. 135; 
 Davenport v. Alabama & C. B. Co. 2 
 Woods, 519; Vilas v. Paige, 106 N.Y. 
 439; Cojn. v. Bu7ik, 26 Pa. 235; IIop- 
 kins V. Connel, 2 Tenn. Ch. 323; Little 
 V. Dusenberry, 46 N. J. L. 614. 
 
 Although a note may have been 
 handed to a receiver that he might 
 allow it as a mortgage debt, he prom- 
 ising to attend to it, and negligently 
 failing to do so, he cannot be held 
 answerable as receiver in a court of 
 chancery for such neglect. The lia- 
 bility is a personal one solely, to be 
 enforced at law. Eeene v. GaeUe, 56 
 Md. 343. 
 
 It was held in Ericin v. Davenport, 
 9 Heisk. 44, that a receiver is person- 
 ally liable for an injury resulting from 
 defective machinery, if he has knowl- 
 edge of such defect; but in such case 
 there must be personal negligence on 
 the part of the receiver, negligence of 
 his employees alone not being suffi- 
 cient. Camp V. Barney, 4 Hun, 373; 
 Cardot v. Barney, 63 N.Y. 281; Kain 
 
 V. Sinitn, 80 N.Y. 458; Lymanv. Cen- 
 tral Vermont B. Co. 59 Vt. 167. 
 
 Under Tex. Rev. Stat. § 2899, it 
 was held that a receiver was not "pro- 
 prietor, owner, charterer or hirer" of 
 a railroad within the purview of the 
 statute, and therefore not liable for 
 the death of a person caused by the 
 negligence of the receiver or his em- 
 ployees. The statutes in Ohio {Meara 
 v. Eolbrook, 20 Ohio St. 137) and New 
 Jersey {Little v. Dusenberry, 46 N. J. 
 L. G14) were materially different from 
 the Texas statute. And see Lamphear 
 v. Buckingham, 33 Conn. 238. 
 
 * Farmers Loan & T. Co. v. Central 
 B. Co. 2 McCrary, 181; Davis v. Dun- 
 can, 19 Fed. Rep. 477. 
 
 3 Woodruff v. Jewett, 37 Hun. 205, 
 115 N. Y. 267; Davis v. Duncan, 19 
 Fed. Rep. 477. The proceeding is in 
 the nature of a proceeding in rem. It 
 seems however that he may waive the 
 right to be sued officially only. Camp 
 V. Barney, 4 Hun, 373; Newell v. Smith, 
 49 Vt. 255
 
 230 
 
 RECEIVERSHIPS. 
 
 meet them, he may become personally liable ;* so also if he com- 
 mits a tort while acting beyond the scope of his authority.' 
 
 § 129. Liiibility for attorney's fees. 
 
 An action cannot be maintained against a receiver for services 
 rendered by an attorney to an insolvent corporation after a 
 receiver has been appointed.' An allowance of counsel fees is 
 made to the receiver and not to the counsel," the amount being 
 usually determined by the circumstances of each particular case, 
 and corresponding with the degree of responsibility, the business 
 abihtv required in the management of the affairs entrusted to 
 him, the perplexity and difficulty involved, and consequently the 
 court in its discretion is allowed a large latitude." A receiver has 
 a riii:ht to place the collection of insurance policies in the hands 
 of competent attorneys, and will be liable for and allowed attor- 
 nev's fees therefor, though the insurance may have been paid 
 without litigation." A liquidator in a voluntary winding up is 
 not personally responsible to the solicitor employed by him in the 
 affairs of liquidation/ 
 
 ^Rogers v. Wendell, 54 Hun, 540. 
 
 Compare Peacock v. Pittsburg Loco- 
 motive & Car Works, 52 Ga. 417. In 
 this case an order appointing a re- 
 ceiver was rescinded and he turned 
 back to the company property for 
 ■which a possessory warrant had been 
 issued. 
 
 » Curran v. Craig, 22 Fed. Rep. 101; 
 Bank of Montreal v. Thayer, 7 Fed. 
 Rep. 622; HartellY. Tilghman, 99 U. 
 S. 547, 25 L. ed. 357; Barton v. Bar- 
 bour, 104 U. S. 126, 26 L. ed. 572. 
 
 ^Barnes v. Neiccomb, 89 N.Y. 108. 
 
 * International Improv. Fund Trus- 
 tees V. Greenough, 105 U. S. 527, 26 L. 
 ed. 1157 ; Stuart v. Boulware, 133 U. 
 S. 78, 33 L. ed. 568. 
 
 ' Note preceding. 
 
 A receiver of an estate who employs 
 attorneys to advise and assist him in 
 performing duties which his accept- 
 ance of the trust presupposes him to 
 be capable of performing himself 
 
 must pay them out of his own means. 
 Eenry v. Henry, 103 Ala. 582. 
 
 ^ Abbott V. Downer, 54 Iowa, 687. 
 
 ' Trueman, Hooke, v. Piper, L. R. 14 
 Eq. 278. This, however, must be un- 
 derstood to be in the absence of an 
 express contract. Be Anglo Moravian 
 Hungarian Junction B. Co. L. R. 1 
 Ch. Div. 130, 45 L. J. Ch. 115. 
 
 One who rendered legal services to 
 a corporation upon an emploj^ment 
 by its officers during the pendency of 
 an action for the appointment of a re- 
 ceiver for its property, and before the 
 same passed under the receiver's con- 
 trol, — Held, to be entitled to set off 
 the value of such services against an 
 account due by him to the corpora- 
 tion, and which also accrued prior to 
 the receivership, but not against a fur- 
 ther account which accrued during 
 the administration of the receiver. 
 Cook V, Cole, 55 Iowa, 70.
 
 LIABILITY OF RECEIVER. 231 
 
 Money collected by a receiver under a void appointment may 
 be recovered from him in an action for money had and received.' 
 
 § 130. For disobeying orders of court. 
 
 A receiver will be liable where he invests the receivership 
 funds contrary to the order of court,'' and where he fails to pay 
 a certain sum, pursuant to an order of court, the surety on his 
 bond is liable for the amount, though the surety is not a party to 
 the proceeding resulting in the order ; such an order is conclu- 
 sive on the surety, and he cannot insist that the receiver had dis- 
 bursed all the funds.' The court will at all times be vigilant to 
 see that parties interested in the trust fund are not injured by 
 the improvident acts of the receiver.'' The receiver will l)e liable 
 for trespass where he has unlawfully taken possession of property 
 not included in the trust, and this though he takes possession 
 under an order of court ;^ but where he sells property pursuant 
 to the order of sale he is not a trespasser, nor are those aiding 
 and assisting him." The order appointing a receiver in foreclos- 
 ure proceedings embracing property not included in the m.ort- 
 gage, is to that extent in excess of the jurisdiction of the court 
 and void ; and the receiver may be held liable to the general 
 creditoi's of the mortgagee for any profits arising from such pro]?- 
 
 ^ Johnson V. Powers, 21l!ieh. 292. Where all mining property of a 
 
 * Carr v. Morris, 85 Va. 21. company was a part of the same sys- 
 ' Thomson v. McGregor, 13 Jones & tem of operation, and the proceeds of 
 
 S. 197. ore extracted from a portion of the 
 A decree directing a general re- mines were used indiscriminately for 
 ceiver of the court to pay out of a the common benefit of the whole prop- 
 fund in his hands a certain sum to a erty, a receiver appointed on a fore- 
 certain person is binding upon him, closure of a mortgage covering only a 
 although he was not made a party to part of the property, who was given 
 • the suit in which it was rendered, and power to take possession of the prem- 
 no notice thereof was given to him. ises and carry on the mines, is a tres- 
 Crawford v. Fickey(W. Va.)23 S. E. passer, and is personally liable to a 
 662. general creditor for sums realized 
 
 * Turner v. Peoria & S. R. Co. 95 from a mine not covered by the mort- 
 111. 134. gage. 5tepfes v. May, 87 Cai. 178, 
 
 * Chirran v. Craig, 22 Fed. Rep. 101 ; overruling same case in Department 
 Eai ieU V. Tilghman, 99 U. S. 547, 25 One, reported in 23 Pac. 710. 
 
 L. ed. 357; Barton v. Barbour, 104 U. *WaUing v. MiUer, 108 N.Y. 173. 
 
 S. 126. 26 L. ed. 672; Hills v. Parker, 
 111 Mass. 508. But see Ward v. 31of 
 fett, 38 Mo. App. 395.
 
 232 RECEIVERSHIPS. 
 
 erty ;' and where he wrongfully takes property it may be replev- 
 ied." If he extracts ores from land not involved in the foreclos- 
 ure proceedings, he is liable to the mortgagor therefor.' 
 
 § 131. To account. 
 
 The receiver is not liable to account pending the suit and the 
 funds must remain in his hands until tlie rights of all parties are 
 finally passed upon.' He must account for all money coming 
 into his liands in his official capacity, whether he receives the 
 money before he gives bond or afterwards.^ The usual practice 
 is for the receiver's account to be referred to a master for exam- 
 ination and passing. 
 
 § 132. Order on receiver to pay, effect of. 
 
 Where a receiver has been ordered to pay money in hi.s hands 
 it is his duty to comply with such order, and a refusal on his part 
 may be treated as a contempt, and he may be punished accord- 
 ingly;' but it must be understood in such case that before an 
 order of contempt is issued the receiver must be given an oppor- 
 tunity to be heard, and the correctness of the order to pay will 
 not be considered on an appeal from an order to show cause.' If 
 in a proceeding to which the receiver has not been made a party 
 he is ordered to pay money or deliver property in his hands, he 
 is not bound by the order and is entitled to an opportunity to 
 show that he has turned over a large part of the property.* In 
 West Virginia an order to pay to a party in the cause by a cer- 
 tain day has the effect of a judgment and is a lien on the receiv- 
 er's land to be enforced as other judgment liens." He is not 
 liable, in a foreclosure proceeding, to pay to a railroad company 
 money to be used in contesting the validity of the bonds, or to 
 pay salaries of the officers of the company, or office expenses.'" 
 
 ^Staples V. May, 87 Cal. 178. ''Clark v. Binninger, supra; Erie R. 
 
 •^QeUchv. Mcllhargey, 69 Mich. 377. Co. v. Ramsey, 45 N. Y. 637; People, 
 
 ^StajylesY. May, 87 Cal 118. Davis, v. Sturtemnt, 9 N. Y. 266; 
 
 *Musgrov6 v. Nash, 3 Edw. Ch. 173. Adair County v. Ownhy, 75 Mo. 282. 
 
 ^ Smart v. Flood, 49 L. T. 467; Re '^How v. Jones, 60 Iowa, 70. 
 
 Western Canada, etc., Ince. 8 Free. ^Richard v. Schley, 27 W. Va. 617. 
 
 Rep. (Ont.) 262. ^^ Union Loan & T. Co. v. Southern 
 
 ^Clark V. Binninger, 75 N. Y. 344. California Motor Road Co. 51 Fed. 
 
 The contempt in this case was statu- Rep. 106. 
 tory.
 
 LIABILITY OF RECEIVER. 
 
 233 
 
 § 133. Effect of discharge. 
 
 The moment a receiver is discharged and relieved from the ob- 
 ligations of his office, all right upon the part of the court to pro- 
 ceed against him summarily ceases, and he is no longer subject to 
 its jurisdiction, except such jurisdiction is acquired in the ordi- 
 nary methods available to all suitors.' 
 
 § 134. Liability for unjust freights exacted. 
 
 A receiver of a railroad company, operating a railroad under 
 the supervision of a federal court may be compelled to refund 
 money exacted from a shipper where such exaction is an unjusti- 
 fiable discrimination under a state law,^ but he is not liable for a 
 statutory penalty.^ 
 
 § 135. Power of court over executors of receivers. 
 
 The court has no power to order the receiver's executor or ad- 
 
 ' In Neio York & W. U. Teleg. Co. v. 
 Jeicett, 43 Hun, 565, affirmed in 115 
 N. Y.166. The court say: "Obvi- 
 ously after the receiver has been dis- 
 charged, and the property, by the 
 action of the court, has all been taken 
 out of his hands there can be no pro- 
 priety whatever in any further pro- 
 ceedings against him, because there- 
 after he ceases to represent anyone; 
 he can no longer act for or represent 
 the company or its creditors or any 
 other person interested in the prop- 
 erty; and manifestly the court could 
 not thereafter make an order that he 
 should pay a creditor, he no longer 
 having any fund out of which pay- 
 ment could be made." Farmers' Loan 
 <& T. Co. V. Central R. Co. 2 McCrary, 
 181. Cf. Corser v. Rmsell, 20 Abb. 
 N. C. 316. 
 
 Byan v. Bays. 62 Tex. 43. But if 
 before the order of discharge a judg- 
 ment is rendered and the receiver is 
 ordered to pay it the discharge of the 
 receiver in another court without no- 
 tice to the judgment creditor, qumre. 
 Woodrvffy. J^ett, 115 N. Y. 267. 
 
 * Cutting v. Florida R. & Nav. Co, 
 
 43 Fed. Rep. 747, and see also Mis- 
 souri P. R. Co. v. Texas P. R. Co. 31 
 Fed. Rep. 862. 
 
 ^Campbell v. Weiss (Tex.) 25 S. W. 
 1076; Bonner y. Franklin Co-Operative 
 Asso. 4 Tex. Civ. App. 166; Missouri, 
 K. & T. R. Co. V. Stoner, 5 Tex. Civ. 
 App. 50. 
 
 Turner v. Cross, 83 Tex. 218, 15 L. 
 R. A. 262, but there maybe a cause of 
 action independent of the statutory 
 penalty. Bonner v. Franklin Co- 
 operative Asso. su])ra; Clark v. Dyer, 
 81 Tex. 339. 
 
 The act of Congress of March 3, 
 1887, provides that receivers ap- 
 pointed in the United States courts 
 who are in possession of property are 
 required to administer it according to 
 the laws of the state where situated, 
 and where the state law imposes a 
 duty upon a receiver which he neg- 
 lects, he is liable. Thus if the statute 
 imposes a duty of providing embank- 
 ments with culverts and sluices suffi- 
 cient to drain the surface water and 
 the receiver neglects this duty, he is 
 liable. (See Art. 4171, Sayles Ciy. 
 Stat.) Clark v. Dyer, supra.
 
 234 RECEIVERSHIPS. 
 
 administrator to In-iiig in and pass his testator's or intestate's 
 accounts and pay any balance due from the deceased receiver.' 
 A bill must be filed for that purpose," unless the representatives 
 submit to such an accounting." Besides as a rule the liability 
 of the receiver to account is covered by the bond given by him 
 and resort to that is usually the proper course to be taken. It 
 has been held, however, that if, at the time of a receiver's death 
 a suit is pending against him for the purpose of compelling an 
 accounting, the court may properly order his legal representatives 
 to be made parties and continue the proceeding against them.* 
 
 § 13G. Liability for contempt of court. 
 
 A receiver who wilfully refuses to pay over money as ordered 
 by the court may be proceeded against personally and committed 
 for contempt,^ and he is liable in damages for his misconduct.' 
 Being an officer of, and at all times subject to the direction and 
 control of the court, he must implicitly obey its commands and a 
 refusal on his part subjects him to the penalty which the court 
 under the circumstances may deem proper to inflict. 
 
 Jenkins v. Briant, 7 Sim. 171. 126, 344. See Perkins v. Taylor, 19 
 
 ^Ltidgater v. Channell, 15 Sim. 479. Abb. Pr. 146; Mcintosh v. Elliott, 2 
 
 "Mar/an v. Fallon, 5 Ir. Eq. 490; Grant, Ch. (Ont.) 396. As to an ap- 
 
 Gurden v. Badcock, 6 Beav. 157; peal from such order, see People v. 
 
 Eovey v. Blakeman, 4 Ves. Jr. 606. Jones, 33 Mich. 303. 
 
 *Be Columbian Ins. Co. 30 Hiin, 342; * Stanton v. Alabama & 0. B. Co. 2 
 
 Be Foster, 7 Hun, 129; Livermore v. Woods, 506. 
 
 Bainbridge, 49 N. Y. 130. See also Pending the litigation, the receiver 
 
 Code Civ. Proc. §§ 414. 452. should not repay plaintiff's costs. 
 
 ^Dames v. Cracroft, 14 Ves. Jr. 143 ; Olyphant v. St. Louis Ore <£ 8. Co. 23 
 
 Be Bell, Foster, v. Bell, L. R. 9 Eq. Fed. Rep. 179. 
 
 172; Clark v. Bininyer, 11 Jones & S. See § 111.
 
 CHAPTER IX. 
 
 CREDITOR'S BILLS, SUPPLEMENTARY PROCEEDINGS, AND 
 PROCEEDINGS IN AID OF EXECUTION. 
 
 § 146. General nature of remedy. 
 
 (a) Chancery jurisdiction. 
 
 (b) Based on inadequacy of com- 
 
 mon law remedies. 
 (1) Common law remedies must 
 
 be exhausted. 
 (^) Claim must be reduced to 
 
 judgment. 
 
 (3) Execution returned nuUahona. 
 
 (4) Exception to rule as to ex- 
 
 haustion of legal remedies. 
 § 147. Classes of creditor's proceed- 
 ings. 
 
 (a) In equity to annul fraudulent 
 
 transfers. 
 
 (b) Creditor's bills proper. 
 
 (c) Supplementary proceedings, 
 
 statutory. 
 § 148. Fraudulent conveyances. 
 
 (a) Effect generally. 
 
 (b) Rule as to execution. 
 
 {1) Exception in case of lien by 
 attachment. 
 
 (5) of debtor's insolvency. 
 {3) of fraudulent convey- 
 ances. 
 
 (4) of levy on property con- 
 
 veyed. 
 
 (5) of an absconding debtor. 
 (C) of insolvent's estate. 
 
 (7) of waiver by debtor. 
 
 § 149. Jurisdiction in matters of as- 
 signment, 
 (a) Where assignment is fraudulent, 
 (i) Where the debtor is to con- 
 tinue business. 
 
 {2) Where benefit to debtor re- 
 served. 
 
 (<?) possession to remain 
 
 with debtor. 
 
 {4) debtor to derive per- 
 
 sonal benefit from 
 partnership assets. 
 
 (5) intentional omission 
 
 of assets. 
 
 {G) fictitious liabilities. 
 
 (b) Where assignment is valid, but 
 assignee fails or re- 
 fuses to act. 
 
 (i) Where the assignee fails or 
 refuses to carry 
 out the trust. 
 
 {2) Where the assignee is guilty 
 of mismanage- 
 ment. 
 
 150. Supplementary proceedings. 
 
 151. Necessity of oflicers retaining 
 
 execution, statutory period. 
 
 (a) When required. 
 
 (b) When not required. 
 
 152. Practice in code states. 
 
 153. Appointment of receiver, order, 
 
 duties, etc. 
 
 154. Receivers powers in supple- 
 
 mentary proceedings. 
 
 155. Functions. 
 
 156. Right to sue and be sued. 
 
 157. Order of appointment. 
 
 158. Power in foreign jurisdiction. 
 
 159. Priorities under creditor's bills. 
 100. Courts reluctant to appoint 
 
 where legal title involved. 
 
 § 146. General nature of reniedy. 
 
 (a) Chancery jurisdiction. 
 Almost from the earliest history of chancery jurisdiction courts 
 of equity have lent their assistance to the common law courts in 
 
 235
 
 236 RECEIVERSHIPS. 
 
 enablir,^ the latter to enforce their judgments by removing ob- 
 structions in the way of levy and sale of the property of the 
 judgment debtor. For the purpose of preventing the levy and 
 sale of his property the judgment debtor has frequently, by color- 
 able or pretended sales, placed the legal title to his property 
 beyond the reacli of the judgment creditor su that, with the ordi- 
 nar}'- common law execution, no available results could be obtained. 
 Sometimes his tangible and movable property, or his choses in 
 action, have been covered up, or otherwise concealed, and thus 
 placed beyond the reach of the officer with his writ of execution. 
 To meet this emergenc}'-, and to supply the defects of the common 
 law courts, the early English chancery courts established this 
 branch of its remedial jurisdiction, and in some form or other it 
 has continued down to the present time, sometimes designated as 
 "Creditor's Bills," and sometimes "Supplementarj^ Proceedings," 
 "Proceedings Supplementary to Execution," "Proceedings in 
 x\.id of Execution," and the like. Usually in this country the 
 proceeding is regulated, in some of its details, by statute and 
 especially in states adopting codes of civil procedure, but in the 
 main the general features are similar in all the states. The 
 appointment of a receiver in this class of proceedings is incidental 
 to the general jurisdiction of the court, and usually is an element 
 therein, his services being peculiarly appropriate in reducing 
 property to possession, and preserving the same until final term- 
 ination of the litigation.' 
 
 ' In Fusze v. Stern, Yl 111. App. 429, creditor, having recovered judgment 
 Mr. Justice Pleasants says: "There against his debtor seeks to remove a 
 are several kinds of original bills fraudulent conveyance or incum- 
 known to our laws, wherein courts of brance out of the way of an execution 
 equity entertain jurisdiction to aid a issued or to be issued upon such judg- 
 creditor in obtaining a satisfaction of ment. . . In another class of cases 
 his claim from his debtor, and which where the creditor seeks to satisfy his 
 are generally denominated ' creditor's claim out of a fund charged with its 
 bills,' not only by the members of the payment and which can only be 
 legal profession, but by the courts as reached by proceedings in chancery, 
 well, as where a creditor seeks to sat- he may file his bill and establish his 
 isfy his debt out of some equitable es- claim in that suit without having re- 
 late of the defendant which is not sub- duced it to a judgment at law. " 
 ject to levy and sale under an execu- Chancellor Walworth in Beck v. 
 tion at law. . . Another kind of Burdett, 1 Paige, 305, says: "There 
 bill analogous to this is where the are two classes of cases where a plain-
 
 CREDITOR'S BILLS, ETC. 
 
 237 
 
 (b) Based on inadequacy of co>nroN law remedies. 
 The foundation of this remedy is based upon the inade- 
 quacy of the ordinary common law remedies and the necessity 
 
 tiff is permitted to come into court for 
 relief after he has proceeded to judg- 
 ment and execution at law without 
 obtaining satisfaction of his debt. In 
 one case the issuing of the execution 
 gives the plaintiff a lien upon the 
 property but he is compelled to come 
 here for the purpose of removing some 
 obstruction fraudulently or inequita- 
 bly interposed to prevent a sale on exe- 
 cution. In the other, the plaintiff 
 comes here to obtain satisfaction of 
 his debt out of property of the defen- 
 dant which cannot be reached by exe- 
 cution at law. In the latter case his 
 right to relief here depends upon the 
 fact of his having exhausted his legal 
 remedies without being able to obtain 
 satisfaction of his judgment. In the 
 first case the plaintiff may come into 
 this court for relief immediately after 
 he has obtained a lien upon the prop- 
 erty by the issuing of an execution to 
 the sheriff' of the county where the 
 same is situated; and the obstruction 
 being removed he may proceed to en- 
 force the execution by a sale of the 
 property although an actual levy is 
 probably necessary to enable him to 
 hold the property against other execu- 
 tion creditors or bona fide purchasers," 
 citing Angell v. Draper, 1 Vern. 399; 
 Shirley v. Watts, 3 Atk. 200; McDer- 
 mutt V. Strong, 4 John. Ch. 687. Cf. 
 Bloodgood v. Clark, 4 Paige, 574. 
 
 The proceedings under the code 
 practice supplementary to execution, 
 are very fully and clearly stated by 
 Merrimon, J., in Cootes Bros. v. 
 Wilkes, 92 N. C. 376. Cf. Sjjencer v. 
 Cuyler, 9 Abb. Pr. 382; Peo2^le, Fitch 
 V. Mead, 29 How. Pr. 360. 
 
 Proceedings of a similar nature have 
 been entertained by a court of chan- 
 cery on a bill filed by creditors of an 
 
 insolvent banking corporation when 
 the object sought was an equality of 
 benefit and burden among a numerous 
 class of persons similarly situated in 
 respect to a particular fund. Tun- 
 nesma v. Schuttler, 114 III. 156. Cf. 
 Ci'andall v. Lincoln, 52 Conn. 73; 
 Wood V. Bummer, 3 Mason, 308. 
 
 In the absence of statutory power a 
 court of chancery is without jurisdic- 
 tion to decree a dissolution of a cor- 
 poration, and where a statute as one 
 of the causes for the dissolution of a 
 corporation provides that if it has 
 "ceased doing business," etc. the fact 
 that the corporation ceased doing busi- 
 ness by reason of the levy of attach- 
 ments on the companj' property is not 
 such a cause as is contemplated by 
 the statute. It must be an actual 
 ceasing and not such as is brought 
 about by the enforcement of legal pro 
 cess. People v. Weigley, loo 111. 491. 
 
 When a creditor obtains judgment, 
 issues execution, levies same upon 
 lands alleged to have been fraudu- 
 lently transferred, a receiver may be 
 appointed for mone}' in the hands of 
 the clerk of court paid in as condem- 
 nation by a railroad company, after 
 the fraudulent transfer. Alilhauser 
 V. Bond, 74 "Wis. 400; Bjose v. Bevan, 
 10 Md. 406; Beam v. Bennett, 51 Mich. 
 148. 
 
 Proceedings supplementary to exe- 
 cution in New York are statutory and 
 do not belong to chancery jurisdiction 
 but are auxiliary remedies in common 
 law actions. Ex parte Boyd, 105 U. 
 S. 647, 26 L. ed. 1200. 
 
 A creditor's bill may be brought 
 under the chancery practice act of Illi- 
 nois in all cases where the creditor or 
 his representative is obliged by the 
 nature of the interest sought to be
 
 23S 
 
 RECEIVERSHIPS. 
 
 of the courts of equity lending tlicir aid to the common law 
 courts in the enforcement of the rii^^lits of creditors against the 
 property of debtors, where the ordinary process is found to be 
 inadequate. It is therefore to be understood as a prerequisite 
 to this jurisdiction and the appointment of a receiver that the 
 plaintilf — 
 
 (1) Shall have exhausted fully and completely his common 
 law remedies for the collection of his judgment/ and in doing so 
 shall have used due diligence.'' The inadequacy of the common 
 law remedy does not consist in its failure merely to produce the 
 money — a misfortune often attendant upon all remedies — but 
 that in its nature or character it is not fitted or adaj)ted to the 
 end in view.' 
 
 (2) The plaintiffs claim, as a rule, must also have been reduced 
 to a judgment, jurisdiction not being exercised in behalf of a gen- 
 eral creditor.* 
 
 reached to resort to a court of equity 
 for relief as where the property is la 
 the hands of trustees and the creditor 
 has no lien thereon and can acquire 
 none. Spindle v. Shreve, 111 U. S. 
 542, 28 L. ed. 512. 
 
 • Parker v. Moore, 3 Edw. Ch, 234; 
 Congdon v. Lee, 3 Edw. Ch. 304; Hart 
 V. Tims, 8 Edw. Ch. 226; Cassidy v. 
 Meacham, 3 Paige, 311; Smith v. 
 Thompson, Walk. Ch. 1; Thayer v. 
 Swift, Harr. Ch. (Mich.) 430; Steward 
 V. Stevens, Harr. Ch. (Mich.) 169; 
 Starr Y. Rathbone, 1 Barb. 70; Second 
 Ward Bank v. Upmann, 12 Wis. 499; 
 Smith V. Week-H, 6U Wis. 94; Williams 
 V. Sexton, 19 Wis. 43; Buckeye Engine 
 Co. V. Donau Brew. Co. 47 Fed. Rep. 
 6; McElwain v. Willis, 9 Wend. 561; 
 Clark V. Bergenthal, 52 Wis. 103; Be 
 Remington, 7 Wis. 651. See also g 121. 
 Smyth V. New Orleans Canal & Bkg. 
 Co. 141 U. S. 661. 35 L. ed. 803; 
 Scripps V. King, 103 111. 469; McDow- 
 ell V. Cochran, 11 111. 31; Artnstrong 
 V. Coopes, 11 111. 560; Van Syckle v. 
 Richardson, 13 111. 174; Bay v. Cook, 
 31 111. 336; Manchester & L. Dist. Bkg. 
 
 Co. V. Parkinson, L. R. 22 Q. B. Div. 
 173; Harris v. Beauchamp Bros. [1894] 
 1 Q. B. 801. 
 
 2 Fogarty v. Burke, 2 Drury & W. 
 580; National Mecha?iics Bkg. Asso. v. 
 Mariposa Co. 60 Barb. 423; Gould v. 
 Tryon, Walk. Ch. 353. 
 
 2 Thompson v. Allen County, 115 U. 
 S. 550. 29 L. ed. 472; Jones v. Green, 
 68 U. S. 1 Wall. 330, 17 L. ed. 553. 
 
 * Scott V. Neely, 140 U. S. 106, 35 L. 
 ed. 358; Swan Land & C. Co. v. Frank, 
 148 U. S. 612, 37 L. ed. 581; Morrow 
 Shoe Mfg. Co. v. New England Shoe 
 Co. 57 Fed. Rep. 698, 24 L. R. A. 
 417, 60 Fed. Rep. 341; United Slates 
 Y. Lngate, 48 Fed. Rep. 253; Cates 
 V. Allen, 149 U. S. 456, 37 L. ed. 807; 
 Zell Guano Co. v. Heatherly, 38 W. 
 Va. 416; National Tube Works Co. 
 V. Ballou, 146 U. S. 577, 36 L. ed. 
 1070; Hollins v. Brierfkld Coal dc I. 
 Co. 150 U. S. 371, 37 L. ed. 1113; Ad- 
 kr V. Feiiton, 55 U. S. 24 How. 407, 16 
 L. ed. 696; Smithy. Ft. Scott, H. & W. 
 R. Co. 99 U. S. 398, 25 L. ed. 437; 
 Day V. Washburn, 65 U. S. 24 How. 
 352. 16 L. ed. 712; Scripps v. King,
 
 CREDITOR'S BILLS, ETC. 
 
 239 
 
 (3) And as a general rule execution must have been issued on 
 such judgment and a return made by the proper officer, nulla 
 hona."^ 
 
 (4) The rule that a judgment at law is a prerequisite to a pro- 
 ceeding in chancery has its exceptions, however, which have been 
 recognized by the courts, particularly in some cases involving 
 fraud, and the rule has been less strictly enforced in states where 
 chancery and common law procedures have become blended.* 
 
 103 111. 469; Newman v. Willetts, 52 
 111. 98; Bigelow v. Andress.^l 111. 322; 
 Oetzler v. Saroni, 18 111. 511, Green- 
 toay V. Thomas, 14 111. 271; hhmael v. 
 Parker, 13 111. 324; Smith v. Los An- 
 geles County Super. Ct. 97 Cal. 348; 
 Dodge v. Pyrolusite Manganese Co. 69 
 Ga. 665; Johnson v. Farnum, 56 Ga. 
 144; Clark v. Raymond, 84 Iowa, 251; 
 May V. Qrenhill, 80 Ind. 124; McG old- 
 rick V. Slevin, 43 Ind. 522; Rich v. 
 Levy, 16 Md. 74; Hubbard v. Hub- 
 bard, 14 Md. 356; Nusbaiim v. Stein, 
 12 Md. 315; Blondheim v. Moore, 11 
 Md. 365; Uhl v. Dillon, 10 Md. 500; 
 Holdrege v. Gwynne, 18 N. J. Eq. 26; 
 
 To entitle a creditor to a receiver 
 he must have a judgment or a lien on 
 the property. San Antonio & G. S. 
 R. Co. v. Davis, (Tex.) 2 Am. & Eng. 
 Corp. Cas. N. S. 374. 
 Toung v. Frier, 9 N. J. Eq. 465. 
 
 ^ Adee Y. Bigler, 81 N.Y. 349; Bay- 
 aud V. Fellows, 28 Barb. 451 ; Wiggins 
 V. Armstrong, 2 John. Ch. 144; Hen- 
 dricks V. Robinson, 2 Johns. Ch. 296; 
 Carter v. Hightower, 79 Tex. 135; Zell 
 Guano Co. v. Heatherly, 35 W. Va. 
 416; Rhodes v. Cousin, 6 Rand. (Va.) 
 188; Hulse v. Wrigfit, Wright (Ohio) 61 ; 
 Misell V. Herbert, 12 Smedes & M. 
 550; Skeele v. Stanwood, 33 Me. 309. 
 Gorton v. Massey, 12 Minn. 147. 
 
 A judgment cannot be questioned 
 on a creditor's bill brought to secure 
 its payment. Matiingly v. Nye, 75 U. 
 S. 8 Wall. 370, 19 L. ed. 380. 
 
 Execution must be sent to the county 
 
 where the defendant has property if 
 known to the plaintiff. Minkler v. 
 United States Sheep Co. 4 N. D. 507, 2 
 Am. & Eng. Corp. Cas. N, S. 368, 
 overruling Paulson v. Ward, 4 N. D. 
 100 ; and see Durand v. Gray, 124 111. 9. 
 
 ^It has been held, however, that a 
 judgment is not necessary in the fol- 
 lowing cases usually involving fraud, 
 or where the delay of getting judg- 
 ment would not benefit any one, or 
 where the debt is undisputed, or 
 where the creditors have a special 
 lien. 
 
 Morrison v. Shuster, 1 Mackey, 190; 
 Martin v. Bu7-gwyn, 88 Ga. 78; Wolfe 
 V. Claflin, 81 Ga. 64; Orton v. Mad- 
 den, 75 Ga. 83; Oliver v. Victor, 74 
 Ga. 543; Cohen v. Morris, 70 Ga. 313; 
 Crittenden v. Coleman, 70 Ga. 293; 
 Wachtel v. Wilde, 58 Ga. 50; Kehler v. 
 Jack Mfg. Co. 55 Ga. 639; Cohen v. 
 Meyers, 42 Ga. 46; Rosenberg v. Moore, 
 11 Md. 376; Thompsen v. Diffenderfer, 
 1 Md. Ch. 489; Chamberlain v. O'Brien, 
 46 Minn. 80; Sorley v. Brewer, 18 
 How. Pr. 276; Levy v. Ely, 15 How. 
 Pr. 395; La Chaise v. Lord, 10 How. 
 Pr. 461; Mottv. Dunn. 10 How. Pr. 
 225 (see code); Jackson v. Sheldon, 9 
 Abb. Pr. 127; Haggarty v. Pittman, 1 
 Paige, 298; Regenstein v. Pearlstein, 
 30 S. C. 192; Meinhard v. Strickland, 
 29 S. C. 491; Todd v. Lee, 15 Wis. 
 365; Taylor v. Bowker, 111 U. S. 110, 
 28 L. ed. 368. 
 
 Cf. Johnson v. Poicers, 13 Fed. Rep. 
 315, allirmed in 136 U. S. 106, 35 L.
 
 240 
 
 RECEIVERSHIPS. 
 
 § 147. Classes of creditor's proceedings. 
 
 There are three classes of proceedings generally denominated 
 ■" Creditor's proceedings," the first of which is the ordinary suit 
 in equity, the purpose of -which is to annul some particular trans- 
 action or transfer, or remove some particular cloud upon the title.' 
 The second is the creditor's bill proper, which is broader in its 
 scope and therefore not inaptly called an " Omnibus bill," the pur- 
 pose being not only to reach property therein described, but any 
 other property of the debtor, assets or even debts due him, which 
 were unkno\tn to the creditor, and is in the nature of a bill of 
 discovery." The third is the statutory proceeding usually desig- 
 nated "Supplementary proceedings," which in a general sense 
 will reach whatever could have been reached under the ordinary 
 
 ed. 113; Pullman v. Stehbins, 51 Fed. 
 Rep. 10; Beverly v. Rhodes, 86 Va. 
 415; Rice v. Hartman, 84 Va. 251; 
 Duerson v. Alsop, 27 Gratt. 229; Car- 
 ter V. Hampton, 77 Va. 631 ; Hu7-n v. 
 Keller, 79 Va. 415; Case v. Mw Or- 
 leans & C. B. Co. ( "Case v. Beaure- 
 gard") 101 U. S. 688, 25 L. ed. 1004. 
 
 It is well settled that a creditor with 
 an established claim against an estate 
 may come into a court of chancery 
 against an executor for the discovery 
 and distribution of assets; and that he 
 may have a bill against heirs and de- 
 visees to subject real estate descended, 
 there being a deficiency of personal 
 assets to the payment of decedent's 
 debts. Houston v. Levy, 44 .N. J. Eq. 
 6; Thompson v. Brown, 4 John. Ch. 
 619; Kennedy v. Creswell, 101 U. S. 
 641, 25 L. ed. 1075; Mallory v. Craige, 
 15 N. J. Eq. 73; Coddington v. Bis- 
 pham, 36 N. J. Eq. 574. 
 
 Where a creditor has a trust in his 
 favor he may go into equity without 
 exhausting legal processes or reme- 
 dies. If he avers insolvency so that 
 a suit at law and the recovery of a 
 judgment would not afford any relief, 
 that is enough to show there is a rem- 
 edy in equity. Case v. New Orleans 
 <£ C. B. Co. (" Case v. Beauregard") 
 101 U. S. 688, 25 L. ed. 1004. 
 
 Where a claim can only be satisfied 
 out of a fund which is accessible to a 
 court of chancery only, the claim need 
 not be established in a court of law. 
 Russell V. Clark, 11 U. S. 7 Cranch, 
 69, 3 L. ed. 271. 
 
 The same rule applies when the 
 claim is against a deceased person and 
 a bill is filed against his executor for 
 the discovery of assets. Kennedy v. 
 Creswell, 101 U. S. 641. 25 L. ed. 1075; 
 Thompson v. Broicn, 4 John. Ch. 619. 
 And a creditor's bill will lie against 
 an administrator of a deceased judg- 
 ment debtor and a third person to 
 whom it is alleged the debtor fraud- 
 ulently conveyed assets. Hagan v. 
 Walker, 55 U. S. 14 How. 29, 17 L. 
 ed. 312. The equity jurisdiction in 
 such case is not auxiliary to the legal 
 process. 
 
 ^Lynch v. Johnson, 48 N. Y. 33; 
 Brown v. NicJiols, 42 N. Y. 26; Rob- 
 erts V. Albany &W. 8. R. Co. 25 Barb. 
 662; George v. Williamson, 26 Mo. 190; 
 Newman v. Willets, 52 111. 98; Weight- 
 man V. Hatch, 17 111. 281; Miller v. 
 Davidson, 8 111. 518. 
 
 '^Newman v. Willets, 52 111. 98; 
 Conro V. Port Henry Iron Co. 12 Barb. 
 58.
 
 CREDITOR'S BILLS, ETC. 
 
 241 
 
 creditor's bil], but the proceedings are more simplified.* This 
 procedure is nsiiallj by order made upon proof of the return of 
 an execution unsatisfied, requiring the debtor to appear in person 
 before the court and be examined concerning his propeity,' and 
 on the discovery of property the receiver is appointed, who 
 after qualifying becomes vested with the debtor's property and 
 equital)le assets.' 
 
 § 14S. Fraudulent conTeyances. 
 
 (a) Effect generally. 
 One of the main features of this branch of equity jurispru- 
 dence, is to enable a judgment creditor to reach, for the purpose of 
 satisfying his judgment, the property of the judgment debtor that 
 has been transferred prior to the judgment for the purpose of hin- 
 dering, delaying, and defrauding his creditors, in which case, upon 
 proper showing, it follows almost as a matter of course that a re- 
 ceiver will be appointed pending the litigation.* A receiver may 
 
 ^Spencer v. Cuyler, 9 Abb. Pr. 382; 
 Becker v. Torrance, 31 N. Y. 631 ; 
 Lynch v. Johnson, 48 N. Y. 33; Bar- 
 ker V. Dayton, 28 Wis. 367; Smilh v. 
 Weeks, 60 Wis. 100; Barnes v. Mor- 
 (jan, 3 Hun, 703; Williams v. Thome, 
 70 N. Y. 270. 
 
 ^'Bartlett v. McNiel, 49 How. Pr. 
 55. Affirmed in 60 N. Y. 53. 
 
 ^Bosticick V. 3Ienck, 40 N. Y. 383; 
 Cooney v. Cooney, 65 Barb. 524; Po7'- 
 ter V. WUliams, 9 N. Y. 142. 
 
 Il has been held that where the 
 •equity of the bill is not denied on the 
 hearing the appointment follows as a 
 matter of course. Gage v. /Snath, 79 
 111. 219; Bloodgood v. Clark, 4 Paige, 
 574; Corning v. White, 2 Paige, 567; 
 Congdon v. Lee, 3 Edw. Ch. 304; 
 Bank of Monroe v. JSchermei-Jcorn, 
 Clark Ch. 214; Austin v. Figueira, 7 
 Paige, 56. 
 
 *The receiver has two methods of 
 enforcing the judgments under which 
 he is appointed against the real estate 
 alleged to have been fraudulently con- 
 veyed by the judgment debtor: (1) he 
 16 
 
 may sell the real estate under an exe- 
 cution, perfect his title and test the 
 question of fraud in an action of eject- 
 ment; (2) he may bring an equitable 
 action to set aside the conveyance al- 
 leged to be fraudulent. Maders v. 
 Whallon, 74 Hun, 372. In Smith v. 
 Beid, 134 N. Y. 578, the court says: 
 "A judgment creditor cannot be de- 
 prived of his legal right to enforce 
 collection of his judgment against the 
 lands of his debtor by a fraudulent 
 conveyance thereof prior to the entry 
 of the judgment, nor can he by such a 
 conveyance be forced to pursue an 
 equitable remedy, for the collection of 
 his debt instead of a legal one and the 
 whole current of authorities in this 
 state is to the effect that, notwith- 
 standing the fraudulent conveyance, 
 the judgment creditor may sell the 
 land under execution upon his judg- 
 ment and the purchaser may impeach 
 the conveyance of the land in a suit at 
 law to recover possession, or if he can 
 gain possession defend the title thus 
 acquired against the fraudulent
 
 242 
 
 RECEIVERSUIPS. 
 
 maintain an action in tlie nature of a creditor's bill to avoid, in 
 behalf of creditors, a fraudulent transfer as to them, so as to make 
 the property available for the satisfaction of their debts.' In this 
 
 grantee or those claiming under him." 
 . . " While the title remains in the 
 fraudulent grantee, the lien of the 
 judgment exists and may be enforced 
 against the land, with the same effect 
 as if the conveyance had not been 
 made. As against the creditor, the 
 conveyance, while the fraudulent 
 grantee holds the title, is a nullity." 
 
 In either of the two proceedings 
 above indicated, the burden of estab- 
 lishing fraud rests with the plaintiff. 
 He must show satisfactorily that the 
 conveyance was made and accepted 
 with the purpose and intent of hinder- 
 ing, delaying, and defrauding the 
 creditors of the grantor; that the deed 
 was executed in bad faith and left the 
 grantor insolvent and without ample 
 to pay his existing debts and liabili- 
 ties. Maders v. Whallon, supra; Rain 
 V. Larkin, 131 N. Y. 300. 
 
 As to what are insufficient allega- 
 tions of fraud on the part of directors 
 of a corporation in bill by creditors 
 asking for the appointment of a re- 
 ceiver, see Fort Payne Furnace Co. v. 
 Fort Payne Coal & 1. Co., 96 Ala. 472; 
 Briarfield Iron Works Co. v. Foster^ 54 
 Ala. 623. 
 
 A judgment creditor with an execu- 
 tion returned "no property found," 
 and seeking by bill to subject the 
 debtor's alleged interest in certain 
 crops raised on a plantation carried 
 on by another, has such a lien on such 
 crops as entitles him to ask for a re- 
 ceiver to prevent their loss. Micou v. 
 Moses, 72 Ala. 439. 
 
 A receiver appointed in a judgment 
 creditor's suit, can hold the debtor's 
 choses in action in preference to one 
 who purchased the same of the debtor 
 and paid for them, after notice of the 
 
 filing of the bill, and after attempts 
 had been made, but without much 
 diligence, to servp the subpoena. 
 Weed V. Smull, 3 Sandf. Ch. 273. 
 
 A receiver appointed in supplemen- 
 tary proceedings, and suing to reach 
 the property of the judgment debtor, 
 which he alleges to have been assigned 
 to delay, hinder, and defraud cred- 
 itors, is not entitled to an injunction, 
 unless he furnishes to the court some 
 evidence that he was entitled to the 
 relief demanded in his complaint, or 
 has an apparent right to the property. 
 The ordinary affidavit of verification 
 of a complaint is not suflicient to es- 
 tablish any fact alleged therein on in- 
 formation and belief. Bostwick v, 
 Elton, 25 How. Pr. 363. Cf. Connah 
 V. Sedgwick, 1 Barb. 210; Shainwald 
 v. Lewis, 7 Sawy. 148; Goodyear v. 
 Belts, 7 How. Pr. 187. 
 
 ^Dunham v. Byrnes, 36 Minn. 106; 
 Bostwick V. Menck, 40 N. Y. 383; 
 Wright v. Nostrand, 94 N. Y. 31; 
 Hamlin v. Wright, 23 Wis. 491 ; Bar- 
 ker V. Dayton, 28 Wis. 367; Miller v. 
 McKemie, 29 N. J. Eq. 291; and this 
 as soon as judgment is obtained. 
 Newman v. Willets. 52 111. 98; Green- 
 way V. Thomas, 14 111. 271; 'Weight- 
 man V. Hatch, 17 111. 281; Dewey v. 
 Eckert, 62 111. 218; Miller v. David- 
 son, 8 111. 518; Lewis v. Lanphere, 79 
 111. 187. 
 
 The unconditional appointment of 
 a receiver to take charge of the prop- 
 erty in an action based on an alleged 
 fraudulent conveyance and bill of sale 
 is not authorized, where the defend- 
 ant is solvent and able to respond to 
 any judgment which may be obtained 
 against him by plaintiffs. Turnipseed 
 y. Kentucky Wagon Co.{G&.) 23 S.E. 84,
 
 CREDITOR'S BILLS, ETC. 
 
 243 
 
 class of cases the receiver's right does not depend upon his succes- 
 sion to the title of the debtor, but upon the equitable right of the 
 creditor to have set aside a conveyance, which, as to him, is invalid 
 but which is effectual as a cloud to prevent the application of the 
 property to the satisfaction. of the debt.' 
 
 By the statute of 13 Eliz. Ch. 5, made jDerpetual by 29 Eliz. Ch. 
 5, all conveyances or other disposition of property, real or per- 
 sonal, made with the intention of defrauding creditors are de- 
 clared to be null and void. This statute has been adopted in 
 Maine, New Hampshire, Massachusetts, Marjdand, Pennsylvania, 
 Delaware, and Iowa, and re-enacted, in substance, in the other 
 states. Under these statutes the rule is well-nigh universal that a 
 transfer by a debtor to a creditor in payment of his claim, with 
 the intention on the part of the former to hinder and delay his 
 other creditors, the latter participating, is invalid as to such other 
 creditors.^ 
 
 A receiver in supplementary pro- 
 ceedings may attack as fraudulent a 
 mortgage executed by a judgment 
 debtor. Ward v. Petrie, 36 N. Y. 
 Supp. 940. 
 
 The appointment of a receiver with- 
 out notice in a creditors' action to reach 
 property fraudulently transferred 
 is authorized where the bill avers that 
 the debtors are insolvent; that they 
 have sold a large part of their goods 
 to their mother in payment of a stipu- 
 lated debt; that she has disposed of 
 them; that the debtors have made an 
 assignment of the remainder of their 
 stock for creditors; that the assignee 
 is insolvent and acting without bond 
 and has preferred a stipulated claim 
 for a large amount; and that the sale 
 and transactions were, to the knowl- 
 edge of the transferee and assignee, 
 parts of a scheme to injure, delay, and 
 defraud creditors. Maxwell v. Peters 
 Co. (Ala.) 10 So. 419. 
 
 ^Dunham, v. Byrnes, 36 Minn. 106; 
 in such case there is no need that the 
 receiver take possession of the prop- 
 erty for this purpose, nor that he be 
 in any way invested with the title. 
 
 Boshcick V. Menck, 40 N. Y. 383 ; 
 Wright V. Nostrand, 94 N. Y. 3L The 
 receiver may avoid a chattel mortgage 
 given by the debtor on the ground that 
 it is not given in accordance with the 
 statute. Farmers' Loan & T. Co. v. 
 Minneapolis Engiiie & Mach. Works. 
 35 Minn. 543. 
 
 It should be observed in this con- 
 nection that the courts are slow to ap- 
 point a receiver upon an allegation of 
 a fraudulent transfer, if the fraud is 
 denied in the answer, and it is not 
 shown that the assignee is insolvent, 
 or that there is danger of loss or in- 
 jury to the property. Goodyear v. 
 Betts, 7 How. Pr. 187; Pelzer v. 
 Hughes, 27 S. C. 408. 
 
 The rights of an assignee cannot be 
 determined in the application for a re- 
 ceiver, particularly if the assignee is 
 not a party. Journeay v. Brown, 26 
 N. J. L. 111. "The property can 
 only be recovered of him by a suit 
 brought by the receiver, and in that 
 suit he may be heard fully in his own 
 defense." 
 
 'For an exhaustive discussion of 
 this subject and particularly relative
 
 2ii 
 
 RECEIVERSHIPS. 
 
 Creditors having judgment liens may also attack as invalid, a 
 morto-age given -by a delator in fraud of their rights, even though 
 a receiver has been appointed.' 
 
 (b) Rule as to execution. 
 
 Tins proceeding having for its primary purpose the reaching 
 of property not otherwise accessible to ordinary common law- 
 writs, it follows as one of the fundamental principles of this 
 branch of equity jurisdiction that if the plaintiff has an adequate 
 remedy at law he cannot invoke the aid of a court of chancery." 
 
 to the participation in the fraud by 
 the vendee, see note to Bice v. Wood 
 (Ark.) 31 L. R. A. 609. 
 
 'Gere v. Dibble, 17 How. Pr. 31. 
 
 A court of equity has power to sub- 
 ject property which in fact is the 
 property of the debtor, but is fraudu- 
 lently standing in the name of another, 
 to the payment of a judgment and to 
 remove a fraudulent judgment which 
 might stand as a cloud upon the title 
 of a debtor. Mimssippi Mills v. Colin, 
 150 U. S. 202, 37 L. ed. 1052; Dockray 
 V. Mason, 48 Me. 178; Hendricks v. 
 Robinson, 2 John. Ch. 283; Edmeston 
 V. Lyde, 1 Paige, 637; Beck v. Bur- 
 dett, 1 Paige, 305; Guyler v. Moreland, 
 6 Paige, 273; Feldenheimer v. Tressel, 
 6 Dak. 265. 
 
 In reference to the matter of juris- 
 diction of the United Stales courts in 
 creditor's proceedings, the equitable 
 jurisdiction is not taken from such 
 courts by reason of state legislation 
 giving to creditors a remedy at law. 
 Mississippi Mills v. Cohn, 150 U. S, 
 202, 37 L. ed. 1052. 
 
 "■Durand v. Gray, 129 111. 9: Pres- 
 ton V. Colby, 117 111. 477; Dormueil v. 
 Ward, 108 111. 216; Moshier v. Meek, 
 80 111. 79; First Nat. Bank v. Gage, 
 79 111. 207; Horner v. Zimmerman, 45 
 111. 14; McConnel v. Dickson, 43 III. 
 109; Heacock v. Durand, 42 111. 230; 
 Newman v. Willetts, 52 111. 98; McNab 
 V. Eeald, 41 111. 326; Bigelow v. An- 
 
 dress, 31 111. 322; Bowen v. ParkJmrst, 
 24 111. 257; Ishmael v. Parker, 13 111. 
 324; McDowell v. Cochran, 11 111. 31; 
 Manchester V. McKee, 9111. 511; Miller 
 V. Davidson, 8 111. 522; Ballentine v. 
 Beall, 4 111. 203; Stone v. Manning, 3 
 111. 530; Allright v. Herzog, 12 111. App. 
 557; Baxter v. Moses, 77 Me. 465; Howe 
 V. Whitney, 66 Me. 17; Hamlin v. Mc- 
 Gillicuddy, 62 Me. 268; Griffin v. 
 Nitcher, 57 Me. 270; Corey v. Greene, 
 51 Me. 114; Webster v. Clark, 25 Me. 
 813; Taylor v. Bowker, 111 U. S. 110, 
 28 L. ed. 368; Bassett v. Orr, 7 Biss. 
 296 ; Board of Public Works v. Colum- 
 bia College, 84 U. S. 17 Wall. 521, 530, 
 21 L. ed. 687, 692; Jones v. Green, 68 
 U. S. 1 Wall. 332, 17 L. ed. 555; Day 
 V. Washburn, 65 U. S. 24 How. 352, 
 16 L. ed. 712; Stewart v. Fagan, 2 
 Woods, 215; Beardsley Scythe Co. v. 
 Foster, 36 N. Y. 561; Dunlevy v. Tall- 
 madge, 32 N. Y. 457; Miller v. Miller, 
 7 Hun, 208; Ballou v. Jones, 13 Hun, 
 629; Crippen v. Hudson, 13 N.Y. 161; 
 Brinkerhoff v. Brown, 4 John. Ch. 
 671; McDermutt v. Strong, 4 John. 
 Ch. 687; Williams v. Brown, 4 John. 
 Ch. 682; Wiggins v. Armstrong, 2 
 John. Ch. 144; Hendricks v. Robin- 
 son, 2 John. Ch. 290 ; Beck v. Burdett, 
 1 Paige, 305; Payne v. Sheldon, 63 
 Barb. 169; Voorhees v. Howard, 4 Abb. 
 App. Dec. 503; Parshall v. Tillou, 13 
 How. Pr. 7; Brooks v. Stone, 19 How. 
 Pr. 395; Bailey v. Staley, 5 Gill & J.
 
 CREDITOR'S BILLS, ETC. 
 
 245 
 
 But the evidence nsuallj required upon this subject has given 
 rise to a great variety of decisions. The general doctrine may 
 
 432; Brown v. Long, 1 Ired. Eq. 190; 
 McNairy v. Eastland, 10 Yerg. 310; 
 Presion v. Wilcox, 38 Mich. 578; Tyler 
 V. Featt, 30 Mich. 63; Angell v. Dra- 
 per, 1 Vern. 399; Shirley v. Watts, 3 
 Atk. 200; Pease v. Scranton, 11 Ga. 
 33; Cubbedge v. Adams, 42 Ga. 124 
 Peyton v. Lamar, 42 Ga. 131 ; Reese v 
 Bradford, 13 Ala. 837; Henderson v, 
 McVay, 33 Ala. 471 ; Bassett v. St. Al 
 bans Hotel Co. 47 Vt. 313; Tappan v 
 Evans, 11 N. H. 312; Ranbaut v. May 
 field, 1 Hawks, 85; Allen v. Montgom 
 ery, 48 Miss. 106; Brown v. SanA; o/ 
 Mississippi, 31 Miss. 454; Ragsdale v. 
 Holmes, 1 S. C. 91; Turner v. ^(?ams, 
 46 Mo. 95; Suydam v. NortJiicestern 
 Ins. Co. 51 Pa. 394; il/a^ v. Greenldll, 
 80 Ind. 124. 
 
 In Bieder v. Douglas, 35 111. App. 
 124, it is held that proof of the exist- 
 ence of a judgment and return of exe- 
 cution unsatisfied are jurisdictional 
 facts, and in the absence of proof on 
 this subject no relief can be granted 
 on a creditor's bill. Cf . Vicksburg & M. 
 R. Co. V. Phillips, 64 Miss. 108. 
 
 In the case of Slate v. Foot, 27 S. C. 
 340, where suit was instituted to set 
 aside and vacate a mortgage and an 
 assignment it was held, on the author- 
 ity of Burch V. Bramley, 20 S. C. 503, 
 that an allegation of the return of an 
 execution nulla bona is not required. 
 In a similar proceeding it was held in 
 Hancock v. Wooten, 107 N. C. 9, 11 L. 
 R. A. 466, that under the present prac- 
 tice in North Carolina, neither a judg- 
 ment nor execution is necessary to 
 sustain the proceeding. Cf. Dawson 
 Bank v. Harris, 84 N. C. 206. 
 
 In the case of Newman v. Willetts, 
 52 111. 98, it was held that in the ordi- 
 nary creditor's bill, the issuing and re- 
 turn of an execution no property found 
 
 are prerequisites. Yet where the pro- 
 ceeding is merely to set aside a fraud- 
 ulent conveyance, constituting an ob- 
 struction to a judgment, the issuing 
 and return of an execution on such 
 judgment are not prerequisites, but 
 that it must appear that the judgment 
 is an existing lien. 
 
 The power of a court of equity to 
 lend its aid where the common law 
 remedies have proved ineffectual is 
 not without limitations, however, as 
 will be seen in Thompson v. Allen 
 County, 115 U. S. 550, 29 L. ed. 472. 
 In this case judgment was obtained 
 against a county, executions issued 
 and returned mdla bona; under man- 
 damus proceedings a tax was levied 
 to pay the judgment, but the tax col- 
 lector whose duty it was to collect the 
 taxes refused to qualify, whereupon a 
 receiver was prayed for to collect the 
 taxes in lieu of the collector. The 
 court say: "By inadequacy of the 
 remedy at law is here meant not that 
 it fails to produce the money — that is 
 a very usual result in the use of all 
 remedies — but that in its nature or 
 character it is not fitted or adapted to 
 the end in view." 
 
 And in a similar proceeding in Rees 
 v. Watertown, 86 U. S. 19 Wall, 107, 22 
 L. ed. 72, the court say: " The rem- 
 edy (mandamus) is in law and theory 
 adequate and perfect. The difllculty 
 is in its execution only. The want of 
 a remedy and the inability to obtain 
 the fruits of a remedy are quite dis- 
 tinct, and yet they are confounded in 
 the present proceeding. ... A 
 court of equity cannot, by avowing 
 there is a right but no remedy known 
 to the law, create a remedy in viola- 
 tion of law, or even without the au- 
 thority of law. It acts upon eslab-
 
 24G 
 
 RECEIVERSHIPS. 
 
 be stated as follows : That the issuance of an execution and a 
 return thereof nulla hona are essential to the commencement of 
 a proceeding in the nature of a creditor's bill or supplementary 
 proceeding.' To this general rule there are many exceptions. 
 Thus it has been held — 
 
 (1) That where the plaintiff obtains a lien upon the debtor's 
 real estate by attachment, he may maintain a creditor's bill by 
 virtue of such lien, for the purpose of removing or setting aside 
 fraudulent conveyances thereof, without alleging and showing 
 the issuance of an execution, and the return thereof, no property 
 found.' 
 
 (2) Where it is alleged and shown that the judgment debtor is 
 insolvent, and that the issuance of an execution and return thereon 
 nulla hona would necessarily be of no practical utility, it may be 
 dispensed witb.^ 
 
 lished principles not only, but through 
 established channels." The refusal 
 of the court of equity through its re- 
 ceiver to collect taxes, in the forego- 
 ing and other cases, is based upon the 
 ground that the remedy of the com- 
 mon law courts to enforce the collec- 
 tion of taxes is adequate and com- 
 plete. The difficulty is that neither a 
 common law nor chancery court has 
 power to fill a vacancy in office of tax 
 collector. Cf. Heine v. Madison & 
 Carrol Board of Levee Gomrs. 86 U. S. 
 19 Wall. 655, 22 L. ed. 223; Taylor v. 
 Sean- (" State B. Tax Cases ") 92 U. S. 
 575, 23 L. ed. 663; Barkley v. Madi- 
 son & Carrol Board of Levee Comrs. 93 
 U. S. 258, 23 L. ed. 893; Meriwether 
 V. Garrett, 102 U. S. 472, 26 L. ed. 
 197; McLean County Precinct v. De- 
 posit Bank, 81 Ky. 254. 
 
 1 See cases under preceding note. 
 Tomlinson & W. Mfg. Co. v. Bhutto, 34 
 Fed. Rep. 380. The positive affidavit 
 that no execution has been returned 
 is a sufficient answer to the motion. 
 Wright v. Strong, 3 How. Pr. 112; 
 Ahlhauser v. Doud, 74 Wis. 400. 
 
 ^Francis v. L,awrence, 48 N. J. Eq. 
 508; Hunt v. Field, 9 N. J. Eq. 36; 
 
 Williams v. MicTiener, 11 N. J. Eq. 
 520; Robert v. Hodges, 16 N. J. Eq. 
 299; Cocks v. Varney, 45 N. J. Eq. 72; 
 Dawson v. Sims, 14 Or. 561; Conroy 
 V. Woods, 13 Cal. 626. There will be 
 noticed a direct conflict of authority 
 upon this point in the cases of Thur- 
 her v. Blanck, 50 N. Y. 80, and Me- 
 chanics Bank v. Dakin, 51 N. Y. 519. 
 Cf. Gross V. Daly, 5 Daly, 542; Castle 
 v. Leiois, 78 K Y. 137; Anthony y. 
 
 Wood, 96 N. Y. 185; Smith v. Long- 
 mire, 1 American Insolv. Rep. 426. 
 
 ^Turner v. Adams, 46 Mo. 95; citing 
 Merry v. Freemon, 44 Mo. 518; Mc 
 Dowellv. Cockran, 11 111. 31; Bay v. 
 Cook, 31 111. 336; Postlewait v. Howes, 
 
 3 Iowa, 366. 
 
 A creditor may proceed in equity 
 to reach an equitable estate before 
 judgment. Doolittle v. Bridyman, 1 
 G. Greene, 265; Thompson v. Brotcn, 
 
 4 John. Ch. 630; Sweny v. Ferguson, 
 2 Blackf. 129; Ripper v. Glancey, 2 
 Blackf. 356; Steere v. Hoagland, 39 
 111. 264; White v. Russell, 79 111. 155; 
 Eads V. Mason, 16 111. App. 545; Rus- 
 sell V. CluiJc, 11 U. S. 7 Cranch, 89, 3 
 L. ed. 279.
 
 CREDITOR'S BILLS, ETC. 247 
 
 (3) Where the judgment debtor has nothing except real estate 
 which has been fraudulently conveyed, proof of the issuance of 
 an execution is not necessary.' 
 
 (4) Where the object of tlie bill is the removal of a fraudulent 
 conveyance of property upon which a levy has been made, an 
 execution returned is not required.^ 
 
 (5) Where it is shown that the judgment debtor has absconded 
 so that a judgment cannot be had against him, creditors may pro- 
 ceed at once by a proceeding in equity.' 
 
 (6) Where the proceedings are against an insolvent's estate no 
 execution can issue and a bill may be filed in the lirst instance." 
 
 (7) Where it appears that the judgment debtor made no ob- 
 jection on account of the failure to issue execution, and where it 
 further appears that if execution had been issued and returned 
 nulla bona it would have been an idle ceremony.' 
 
 And it may be remarked in this connection that the person 
 who is entitled to object because of no execution having been 
 issued and returned unsatisfied is the debtor and if he acquiesces 
 in the proceeding for a considerable sj)ace of time it will be con- 
 strued as a waiver of the objection," It is no defense to the ap- 
 pointment of a receiver in a creditor's suit that the judgment was 
 confessed to secure a contingent liability which is not matured ; 
 the court will not go behind the judgment and execution.^ JSTor 
 is it a defense to the appointment of a receiver, that a motion is 
 pending for leave to amend the bill, providing the defect is not 
 fatal, nor is the pendency of a motion to dissolve the injunction.' 
 
 ^Payne v. Sheldon, 63 Barb. 169; R. I. 592; Scott v. McMillen, 1 Litt. 
 
 Shaw V. Dwight, 27 N.Y. 244; Brinker- 302; Peay v. Morrison, 10 Gmtt. 144 
 
 h/>ffv. Brown, i: Sdhn. Cb. 671; Cor- Kipper v. Olancey, 2 Blackf. 350 
 
 nell V. Badway, 22 Wis. 260; Cook v. O'Brien v. Coulter, 2 Blackf. 431 
 
 Johnson, 12 N. J. Eq. 51; Croonev. Farrary. Haselden, 9 Rich. Eq. 331 
 
 Bivins, 2 Head. 339; Thurmond v. Pendleton v. Perkins, 49 Mo. 565 
 
 Beese, 3 Ga. 449; Sanderson v. Stoc/c- Pope v. Solomon, 36 Ga. 541. 
 
 dale, 11 Md. 563. *Bay v. Cook, 31 111. 336; McDowell 
 
 ^Bottford V. Beers, 11 Conn. 369; v. Cochrane, 11 111. 30. 
 
 Logan v. Logan, 22 Fla. 561; Binnie '•Sage v. Memphis & L. R. R. Co. 
 
 V. Walker, 25 111. App. 82: Weightman 125 U. S. 361, 31 L. ed. 604. 
 
 V. Hatch, 17 111. 281; Beach v. Benton, ^Brown v. Lake Superior Iron Co. 
 
 45 111. 341; Newman v. Willetts, 52 111. 134 U. S. 530, 33 L. ed. 1021. 
 
 101; Fusze v. Stern, 17 111. App. 429. ''Lent v. McQueen, 15 How. Pr. 313. 
 
 '^Merchants' Nat. Bank v. Paine, 13 ^Barnard v. Darling, 1 Barb. C)i.76.
 
 248 
 
 RECEIVERSHIPS. 
 
 Neither is the appointment barred by an assignment for the ben- 
 efit of creditors where such assignment is made after the com- 
 mencement of the supplementary proceeding ;' nor is it a defense 
 that the real estate of the debtor is heavily incumbered, and that 
 an execution cannot be satisfied in whole or in part. A defect 
 in the return of an execution is cured by the appearance of the 
 defendant, who without objection submits to an examination, but 
 more especially so if it appears that the debtor has not been in- 
 jured by the defective return." 
 
 Notwithstanding the exceptions above noted the rule is that it 
 is necessary as we have seen, that the plaintiff shall have recov- 
 ered a judgment against his debtor in a court of competent juris- 
 diction, and that such judgment is in full force and unsatisfied. 
 A iudo-ment in favor of the creditor and against the debtor is a 
 necessary prerequisite to the commencement of a proceeding of 
 this nature except in a few cases noted, and except where the 
 statute has otherwise provided ; in other words a chancery court 
 will not take jurisdiction except upon the application of a judg- 
 ment creditor.* 
 
 ^Tomlinson & W. Mfg. Co. v. Shatto, 
 34 Fed. Rep. 380. 
 
 ■^Baker v. Herkimer, 43 Hun, 86. 
 
 ^Adee v. Bigler, 81 N. Y. 349; Estes 
 V.Wilcox, 67 N. Y. 264; Ocean Nat. 
 Bank V. Olcott, 46 N. Y. 12; Bearddey 
 Scythe Co. v. Foster, 36 N. Y. 565; 
 Dunltvy v. Tallmadge, 32 N. Y. 457; 
 McElwain v. Willis, 9 Wend. 548; 
 Wiggins v. Armstrong, 2 John. Ch. 
 144 (injunction); Bayard v. Fellows. 
 28 Barb. 451; Dodge v. Pyrolusite 
 Manganese Co. 69 Ga. 665; Johnson v. 
 Farnum, 56 Ga. 144; Clark v. Ray- 
 mond, 84 Iowa, 251 ; Durand v. Gray, 
 129 111. 9; Preston v. Colby,- m 111. 
 477; Dormeuil v. Ward, 108 111. 216; 
 McConnel v. Dickson, 43 111. 109; Rich 
 V. Levy, 16 Md. 74; Hubbard v. Hub- 
 bard, 14 Md. 356; Nusbaum v. Stein, 
 12M(1.315; TJhlv. Dillon, 10 Md. 500; 
 Bliodes V. Cousins. 6 Rand. (Va.) 188 
 
 (injunction); May v. Greenhill, 80 
 Ind. 124. 
 
 It has been supposed that the cases 
 of Rosenberg v. Moore, 11 Md. 376; 
 Morrison v. Shuster, 1 Mackey, 190, 
 and Watchtel v. Wilde, 58 Ga. 50, are 
 contrary to the doctrine of the text, 
 but it will be seen by an examination 
 of the cases that two of them were to 
 set aside fraudulent transfers, and the 
 question of the necessity of a judg- 
 ment was not raised or discussed by 
 the court, and in the other case judg- 
 ment was reserved until a hearing 
 upon the merits could be had. The 
 same principle is involved in cases 
 where before the rendition of a judg- 
 ment an injunction is sought against a 
 debtor to prevent a disposition of hia 
 property pending the common law 
 suit and in such cases it is held that a 
 judgment in case of real estate and a 
 judgment and execution in case of
 
 CREDITOR'S BILLS, ETC. 
 
 24^- 
 
 § 149. Jurisdiction in matters of assignment. 
 
 (a) Closely related to the matter of fraudulent conveyances, is tlie 
 matter of fraudulent assignments intended by the debtor to 
 hinder and delay his creditors in the collection of their debts and 
 therefore voidable as- to them in a proper proceeding instituted 
 for such jDurpose.' But in attacking an assignment on the ground 
 
 personal property are necessary to give 
 a court of equity jurisdiction to grant 
 an injunction. These cases are based 
 upon the doctrine that until the cred- 
 itor has established his title he has no 
 right to interfere with the debtor's 
 disposition of his property; that un- 
 less he has some claim upon the prop- 
 erty of the debtor he has no concern 
 ■with his frauds. Rhodes v. Cousins, 
 
 6 Rand. (Va.) 188; citing Angell v. 
 Draper, 1 Vern. 399; Shirley v. Waits, 
 3 Atk. 200; Bennetv. Mnsgrove, 2Ves. 
 Sr. 51; Balch v. Wastall. 1 P. Wms. 
 451; Wiggins v. Armstrong, 2 John. 
 Ch. 144; Chamberlayne v. Temple, 2 
 Rand. (Va.) 384, Cf. Blondheim v. 
 Moore, 11 Md. 365; 8. C. 11 Md. 376, 
 under title of Rosenberg v. Moore, 
 Phelps V. Foster, 18 111. 309; Young y. 
 Frier, 9 N. J. Eq. 465 In this case a 
 creditor at large sought the aid of a 
 chancery court to restrain a judgment 
 creditor of a firm from proceeding 
 under his judgment against the prop- 
 erty of an individual member of such 
 firm and it was held that without 
 judgment it could not be done. Over- 
 ruling the case of Blackwell v. Rankin, 
 
 7 N. J. Eq. 153, which was said to be 
 based on 1 Story, Eq. 678; 2 Story, 
 Eq. 1253, and KetcJmm v. Durkee, 1 
 Barb. Ch. 480, and Waters v. Taylor, 
 2 Ves. & B. 299. So long as the final 
 judgment remains unsatisfied the ac- 
 tion is a "cause or matter pending" 
 within the meaning of the Judicature 
 Act of 1873, and the court may ap- 
 point a receiver, and a new action is 
 not required. Salt v. Cooper, L. R. 10 
 
 Ch. Div. 544; Re Peace and Waller, 
 L. R. 24 Ch. Div. 405; Smithv. Cowell, 
 L. R. 6 Q. B. Div. 75. 
 
 'In Connah v. Sedgwick, 1 Barb. 
 210, a creditor's bill was filed to set 
 aside an alleged fraudulent assign- 
 ment. After the failure an assign- 
 ment was made of all his property 
 by the judgment debtor to his father 
 who was made a preferred creditor, 
 and was also insolvent, no change of 
 possession being made. The court 
 held that under the statute unless 
 there was a change of possession con- 
 tinuous the assignment was presumed 
 to be fraudulent and void as to cred- 
 itors, and said: "If there is any aspect 
 I am bound to look upon it as void 
 nothing can be more right or con- 
 sonant to the well established practice 
 of this court than on such a bill as 
 this is to direct the appointment of a 
 receiver to take charge of the prop- 
 erty to abide the result of the inquiry 
 whether it was actually fraudulent." 
 And see further discussion as to what 
 constitutes a change of possession, 
 Shaimcald v. Lewis, 7 Sawy. 148. 
 And see this case for general discus- 
 sion of the scope and purpose of cred- 
 itor's bills. 
 
 The appointment of a receiver, by 
 a decree in favor of judgment credit- 
 ors declaring an assignment for credit- 
 ors void, to sell the property and ap- 
 ply the proceeds to the payment of the 
 judgments and distribute the balance 
 among the other creditors, is not 
 necessary or proper. Middlcton v. 
 Taher (S. C.) 24 S. E. 282.
 
 250 RECEIVERSHIPS. 
 
 of fraud the court will not appoint a receiver where the fraud is 
 denied by the answer, and it is not shown that the assignee is in- 
 solvent or there is otherwise danger of loss.' As to what are 
 fraudulent assignments it may in general terms be stated as fol- 
 lows: (1) where the instrument provides for the debtor continu- 
 ing business ; (2) where the debtor reserves to himself a benefit, 
 as in the disposition of the property ; (3) provisions for the pos- 
 session to remain in the debtor ; (4) provisions for the payment 
 of individual debts out of partnership assets; (5) omission of 
 assets if int&ntional ; (6) including fictitious liabilities.'' 
 
 (b) And a receiver may be appointed where the assignment is free 
 from fraud in cases (1) where the assignee fails to take possession 
 of the property, or fails or refuses to do anything towards carry- 
 ing out the object of the trust,' or (2) is guilty of gross mis- 
 management of the trust property or funds/ Where an assign- 
 ment is set aside as fraudulent and void as to creditors, and the 
 debtor and assignee transfer the property to the receiver ap- 
 pointed in a creditor's proceeding upon the order of court the 
 title to the real estate thereby becomes vested in the receiver and 
 is not subject to levy and sale under a subsequent judgment.* 
 
 ^Pelzerv. migUi, 27 8. C. 408. Shuliz v. Hoagland, 85 K Y. 464; 
 
 ''See Wait on Fraudulent Convey- Waverley Nat. Bank v. Hcdsey, 57 
 
 ances and Creditor's Bills, § 345, 2d Barb. 249; Graft v. Bloom, 59 Miss. 
 
 ed.; also the following cases cited: 69; (6) Talcott v. Hess, 31 Hun, 282, 
 
 (1) Holmes V. Marshall, 78 N. C. 262; Cf. Pierce v. Brewster, 32 111. 268; 
 
 (2) Cheatham v. Hawki7is, 76 N. C. Whipple v. Pope, 33 111. 834; Gardner 
 335; Bifjelow v. Stringer, 40 Mo. 195; v. Commercial Nat. Bank, 95 111. 298. 
 Barney V. Griffin, 2 1^. Y.Z65; Leiich ^Suydam v. Dequindre, Harr. Ch. 
 V. Hollister, 4 N. Y. 211; Mackie v. 347. 
 
 Cairnes, 5 Cow. 547; Harris v. Sum- * Jones v. Dougherty, 10 Ga. 273. 
 
 mer, 2 Pick. 129; Frank v. Robinson, Where a bankrupt concealed from 
 
 96 N. C. 32; (3) Billingsley v. Bu7ice, his assignee a valuable claim and bid 
 
 28 Mo. 547; Beed v. Pelletier, 28 Mo. off all his rights and property at a sale 
 
 173; Brooks v. Wisner, 20 Mo. 503; thereof for a nominal sum, a creditor's 
 
 Stanley v. Bunce, 27 Mo. 269; Cheat- bill was held properly brought by a 
 
 ham v. Hawkins, 76 N. C. 335; Har- creditor, after the assignee's death, in 
 
 man v. Hoskins, 56 Miss. 142 ; Joseph behalf of all the creditors, to reach the 
 
 v. Levi, 58 Miss. 843; (4) Wilson v. fund awarded in payment of the 
 
 Robertson, 21 N. Y. 587; Schiele v. claims. Clark v. Clark, 58 U. S. 17 
 
 Hciily, 61 How. Pr. 73; Piatt v. Hun- How. 315, 15 L. ed. 77. 
 
 ter, 11 N. Y. Week. Dig, 300; but see ^Chautauque County Bank v. White, 
 
 Crook V. Rindskopf, 105 N. Y. 476; 6 N. Y. 236. 
 ^5; Probst V. Welden, 46 Ark. 409;
 
 CREDITOR'S BILLS, ETC. 
 
 251 
 
 § 150. Supplementary proceeding. 
 
 Closely analogous to a creditors bill, and as a substitute there- 
 for, so far as the discovery of property and the ajjplication of the 
 same is concerned is the statutory proceeding, in most of the 
 states denominated supplementary proceedings or proceedings in 
 aid, etc., and as a rule the old chancery practice governs this 
 statutory proceeding, unless otherwise provided by the statute. 
 In many of the states the proceedings are less formal and less 
 complicated than under the original chancery practice under a 
 creditor's bill.' In this class of cases the receiver represents the 
 creditors and may impeach the debtor's fraudulent transfers,' to 
 
 ^Pacific Bank v. Robinson, 57 Cal, 
 520; McCullough v. Clark, 41 Cal. 298; 
 Mason v. Weston, 29 lud. 561; Becker 
 V. Torrance, 31 N. Y. 631; Pope v. 
 Cole, 64 Barb. 406, affirmed in 55 N, 
 Y. 124; Tudes v. Hood, 29 Kan. 49; 
 Atcldson Board of Education v. Sco- 
 field, 13 Kan. 17; Fli7it v. Webb, 25 
 Minn. 263; Kennesaw Mills Go. v. 
 Walker, 19 S. C. 104; Graham v. La 
 Grosse & M. R. Co. 10 Wis. 459; 
 Smith V. Weeks, 60 Wis. 94; Clark v. 
 Bergenthal, 52 Wis. 103; Kellogg v. 
 Coller, 47 Wis. 649; Barker v. Dayton, 
 26 Wis. 367; Allen v. Tritch, 5 Colo. 
 222; Coates Bros. v. Wilkes, 92 N. C. 
 376. And see People, Fitch, v. Mead, 
 29 How. Pr. 360; Spencer v. Cuyler, 
 9 Abb. Pr. 382; Barnes v. Morgan, 3 
 Hun, 703; Billings v. Stewart, 4 Dam. 
 269. 
 
 It is held in New York that the 
 commencement of the creditor's pro- 
 ceeding gives the creditor at once a 
 lien upon the equitable assets of the 
 debtor. Lynch v. Johnson, 48 N. Y. 
 27; Storm v. Waddell, 2 Sandf. Ch. 
 494; Brown v. Nichols, 42 N. Y. 26; 
 Davenport v. Kelly, 42 N. Y. 193. 
 
 The filing of a bill and the service 
 of process creates a lien. Miller v. 
 Sherry, 69 U. S. 2 Wall. 237, 17 L. 
 ed. 827; Freedman's Sav. & T. Co. v. 
 Ea/rle, 110 U. 8. 710, 28 L. ed. 301. 
 
 ^Bostwick V. Menck, 40 N. Y. 383; 
 Porter v. Williams, 9 N. Y. 142; Dal- 
 lard V. Taylor, 1 Jones & S. 496; Os- 
 good V. Laytin, 48 Barb. 463; S. C. 
 affirmed 5 Abb. Pr. N S. 9; Hamlin 
 V. Wright, 23 Wis. 492; Barton v. 
 Hosner, 24 Hun, 469; Underwood v. 
 Sutcliffe, 11 N. Y. 62; Dunham v. 
 Byrnes, 36 Minn. 106; Miller v. Maa- 
 kemie, 29 N. J. Eq. 291. But see 
 Higgins v. Gillesheiner, 26 N. J. Eq. 
 308. 
 
 A receiver will not be appointed for 
 the purpose of collecting costs in sup- 
 plementary proceedings which have 
 not been awarded or allowed, where 
 the judgment creditor has without the 
 knowledge of his attorney settled the 
 matter in full. Paterson Bros. v. 
 Goorley, 14 Misc. 56. 
 
 A receiver in supplementary pro- 
 ceedings is not entitled to the proceeds 
 of insurance upon exempt property 
 because the debtor once expressed his 
 willingness to apply the money on 
 the judgment, where he subsequently 
 claims his legal rights. Bliss v. Ray- 
 nor, 91 Hun, 250. 
 
 A receiver in supplementarj'^ pro- 
 ceedings cannot be required at the 
 instance of his attorney to bring an 
 action against the county clerk for 
 official misconduct in failing to fur- 
 nish copies of papers on file in his
 
 252 RECEIVERSHIPS. 
 
 such extent as to satisfy the debts of the creditors he represents' 
 But it must not be understood that the receiver by his appoint- 
 ment becomes vested with the title to property fraudulently con- 
 veyed so that the court in a summary manner may put him in 
 possession. A suit is necessary for that purpose," and where an 
 assio-nee in bankruptcy has been appointed the assignee and not 
 the receiver is the proper person to institute such proceedings/ 
 
 § 151. Necessity of oilicers retaining execution, statutory 
 
 period. 
 
 (a) When eequired. 
 As to the necessity of the sheriff holding the execution for the 
 full lifetime given by the statute the decisions are by no means 
 uniform. Some of them hold that the sheriff must hold the ex- 
 ecution the full sixty days, or other time allowed for a return, 
 before a return thereon can be made a basis for a creditor's bill 
 or supplementary proceeding, and are based upon the doctrine 
 that plaintiff" must have exhausted his legal remedies before in- 
 voking the aid of a court of chancery, or other court exercising 
 chancery jurisdiction.* 
 
 office, to enable such attorney to ob- Be^k v. Burdctt, 1 Paige, 305; Pudney 
 
 tain pay for his services, where no y. Oriffiths, 6 Abb. Pr. 211; Spencer 
 
 action has been commenced so as to y. Cuyler, 17 How. Pr. 157, 9 Abb. 
 
 give the attorney a lien on such papers Pr_ 382; Ritterband v. Maryatt, 12 N. 
 
 under N. Y. Code Civ. Proc. § 66. y. Leg. Ob. 158; Nagle v. James, 7 
 
 Millis V. Pentelow, 92 Hun, 284. Abb. Pr. 234; Cassidy v. Meacham, 3 
 
 ^Bosticick v. Menck, 40 N. Y. 883; Paige, 311; Williams v. Hogehoom, 8 
 
 Manley v. Rassiga, 13 Hun, 290. Paige, 469; Piatt v. Cadwell, 9 Paige, 
 
 ^Bostwick V. Menck, 40 N. Y. 384. 886; Smith v. Thornpson, Walk. Ch. 1 
 
 Wlneyv. Tanner,18Fed. Rep. 636; Williams v. Hubbard, Walk. Ch. 28 
 
 Olenny v. Langdon, 98 U. S. 20. 25 Beach v. White, Walk. Ch. 495 
 
 L. ed. 43; Trimble v. Woodhead, 102 Thayer v. Stcift, Harr. Ch. 430; Stew- 
 
 U. S. 647, 26 L. ed. 290; Moyer v. ard v. Stevens, Harr. Ch. 169; Adam» 
 
 Dewey, 103 U. S. 301, 26 L. ed. v. Bowe, 12 Abb. N. C. 322; Wright v. 
 
 394. Nostrand, 94 N. Y. 31. And see 
 
 But the right of possession of a re- Palmer v. Colville, 63 Hun, 536. 
 ceiver is superior to that of an as- Under New York Code. Engle v. 
 
 signee in bankruptcy subsequently Bonneau, 2 Sandf. 679; Livingston 
 
 appointed. Skip v. Haricood, 3 Atk. v. Gleaveland, 5 How. Pr. 396; Tyler v. 
 
 564; Judd v. Bankers' & M. Teleg. Co. Whitney, 12 Abb. Pr. 465; Fenton v. 
 
 31 Fed. Rep. 182. Flagg, 24 How. Pr. 499; Farquahar- 
 
 *McElwain v. Willis, 9 Wend, 548; son v. Kimball, 9 Abb. Pr. 385»/
 
 CREDITOR'S BILLS, ETC. 
 
 253 
 
 (b) When not required. 
 
 On the otlier hand it has been held that the officer havmo' tlie 
 execution in his hands need not retain the same tlie full statutory 
 period before makino; his return thereon in order to constitute the 
 foundation of a creditors' bill or sui)plenientarj proceedino-g, and 
 this doctrine is maintained upon the presumption that the sheriff 
 or other officer has done his entire official duty in searching for 
 property of the judgment debtor.' 
 
 It will be apparent that the return of the execution by the offi- 
 cer within the statutory period, and making such return the basis 
 of a creditor's Inll or supplementary proceeding, on the presump- 
 tion that the officer has used due diligence in searching for prop- 
 erty may be, and often is, the merest fiction, and is using the 
 ■court and its process for the purpose of wresting from an unfor- 
 tunate debtor the possession and income of his property by means 
 
 Sperling v. Levy, 10 Abb. Pr, 
 426. 
 
 If there is no fraud or collusion, it 
 may be presumed the officer did his 
 duty. The return of the sheriiT can 
 only be impeached in a direct pro- 
 ceeding, and not collaterally. Metho- 
 dist Book Concern & Co. v. Hudson, 1 
 How. Pr. N. S. 517 (see rules of 
 court). 
 
 One judgment debtor on whose 
 property an execution has been levied 
 which property it is alleged had been 
 fraudulently conveyed, will not be 
 permitted to contend that the execu- 
 tion is void because issued against 
 only one of several judgment debtors. 
 Flanders v. Batten, 50 Hun, 542. 
 
 ^Spencer v. Cuyler, 17 How. Pr. 157; 
 Hutchinson v. Brand, 9 N. Y. 208; 
 Farquahart-on v. Kimball, 18 How. 
 Pr. 33; Livingston v. Cleaveland, 5 
 How. Pr. 396; Tyler v. Whitney, 12 
 Abb. Pr. 465; Fenton v. Flagg, 24 
 • How. Pr. 499; Field v. Chapman, 15 
 Abb. Pr. 434; First Nat. Bank v. Ber- 
 ing, 8 N. Y. Week. Dig. 261; Tojnlin- 
 son & W. Mfg. Co. v. iShatts, 34 Fed. 
 
 Rep. 380; Sperling v. Levy, 10 Abb. 
 Pr. 426; Tykr v. Willis, 33 Barb. 327; 
 Benand v. O'Brien, 35 N. Y. 99. But 
 see Williams v. Hogeboom, 8 Paige, 
 469; Whitehead v. Hellen, 74 N. C. 679; 
 Bowen v. Parkhurst, 24 111. 257; Wil- 
 liams V. Ives, 49 111. 513; First Nat. 
 Bank v. Gage, 79 111. 207; Iiu.><sell v. 
 Cliicago Trust & Sav. Bank, 139 111. 
 538, 17 L. R. A. 345. 
 
 Where the execution is returned on 
 the same day of its issuance by order 
 of the plaintiff's attorneys, it cannot 
 form the basis of a creditor's bill and 
 the receiver will be discharged. Stir- 
 len V. Jeioett, 63 111. App. 55; Scheubert 
 V. Honel, 50 111. App. 597. 
 
 And while the execution may be re- 
 turned before the 90 days and become 
 the foundation of a creditor's bill it 
 must be done upon the responsibility 
 of the sheriff, and not by direction of 
 the plaintiff. It must be returned by 
 reason of the sherifl"s inability to find 
 property whereon to levy. Bitrand 
 V. Gray. 129 111. 9; Scheubert v. Honel, 
 152 111. 313.
 
 254 
 
 RECEIVERSHIPS. 
 
 of a receivership. Hence it is that courts have exercised a judi- 
 cious care and circumspection over proceedings of this nature, and 
 if it appeared that the execution was returned before its lifetime 
 had expired, throuo-h the solicitation and at the request of plain- 
 titf or his attorney, and that no attempt had been made to dis- 
 cover property, or effect a levy, or demand property for the pur- 
 pose of satisfyinc^ the execution, then in such case the court has 
 treated the return of the sheriff as not in fact his return and has, 
 upon motion, set aside the supplementary proceedings.' Where 
 the sheriff's return is dictated by the plaintiff's attorney and is so 
 shown thereby it is not a sufiicient foundation for supplementary- 
 proceedings.' 
 
 § 152. Practice in code states. 
 
 Under many of the codes of procedure the causes for which 
 the court may appoint a receiver are specifically stated, to which 
 it is not deemed essential to refer in this connection. It was for- 
 
 ^Pudney v. Griffilhs, 15 How. Pr. 
 410; Nagle v. Jaynes, 7 Abb. Fr. 234; 
 Ritterband v. Maryatt, 12 N. Y. Leg. 
 Obs. 158; Albany City Bank v. Door, 
 Walk. Ch. 317. 
 
 If, however, it appears that the 
 officer has in good faith made an in- 
 effectual effort to find property then 
 the proceeding will be upheld. White- 
 head V. Hellen, 74 N. C. 679; Hart v. 
 Stearns A N. Y. Week. Dig. 540. 
 
 Some doubt has been entertained, 
 however, as to the power of the court 
 to go back of the sheriff's return and 
 enquire into the good failh of his acts 
 in the matter, discovering property, 
 levying thereon and returning the ex- 
 ecution nulla bona in supplemen- 
 tary proceeding, such being in the 
 nature of a collateral attack upon an 
 official act of an officer of the court. 
 Sperling v. Levy, 10 Abb. Pr. 426; 
 Owen V. Dupignac, 9 Abb. Pr. 180; 
 Methodist Book Concern & Co. v. Hud- 
 son, 1 How. Pr. N. S. 517; Browning 
 V. Hanjord, 5 Denio, 586; Putnam v. 
 
 Man, 3 Wend. 202; Wheeler v. Lamp- 
 man, 14 John. 481; Flint v. Webb, 25 
 Minn. 263. 
 
 These authorities, as a rule, hold 
 that the return of the sheriff must be 
 attacked in a direct proceeding for 
 such purpose by the judgment debtor. 
 
 Where there is collusion between 
 the creditor and debtor for the pur- 
 pose of enabling the latter to carry 
 on his business without interference 
 on the part of creditors it is a fraud 
 upon the rights of creditors, and upon 
 an intervening petition by judgment 
 creditors setting up the fraud, the 
 original bill was dismissed for want 
 of equity and receiver discharged. 
 Stirlen v. Jewett, 63 111. App. 55. 
 
 "^Marx V. Spaulding, 35 Hun, 478. 
 And in Wisconsin the sheriff's return 
 on its face must show diligent search 
 for real and personal property subject 
 to levy and sale and a mere return un- 
 satisfied is not sufficient. Re Rem- 
 ington, 7 Wis. 643. But see Second 
 Ward Bank v. Upmann, 12 Wis. 499.
 
 CREDITOR'S BILLS, ETC. 255 
 
 merly the practice under creditors bills to appoint a receiver 
 almost as a matter of course and then by discovery or otherwise 
 proceed to ascertain if the debtor had property that should be ap- 
 plied towards the satisfaction of liis debts. Under the modified 
 and summary proceedings in i^ew York and other code states, 
 the more reasonable practice prevails of discovering property 
 first and then appointing a receiver, and where no property is 
 discovered subject to the payment of debts no receiver will be 
 appointed.' Where a creditor's bill is filed against tlie estate of 
 a deceased debtor it is necessary to allege and prove the insufli- 
 ciency of the personal estate to pay debts/ but where the estate 
 is suflicient to pay debts a receiver of the rents and profits will 
 not be appointed. 
 
 § 153. Appointment of receirer, order, dnties, etc. 
 
 The appointment of a receiver in this class of proceedings, like 
 the appointment in general, rests in the sound judicial discretion 
 of the court, under the statutory provisions, and the practice of 
 the court, upon notice given to the debtor and those interested in 
 the property, or their appearance. The order should receive spe- 
 cial care and be drawn with reference to the object or purpose of 
 the receivership, having reference to the nature and character of 
 the property involved. The general duties imposed upon the 
 receiver, and the general rules regarding the regularity of the ap- 
 pointment, and the methods of attacking the same, are equally 
 applicable to this class of receiverships ; and so with reference to 
 the bond and sureties of the receiver, as well as the general prin- 
 ciples governing the selection of a receiver, his powers, duties, 
 functions, and liabilities. 
 
 The receiver's title is in all respects similar to the receiver's 
 title in other proceedings of a general nature, and is subject to 
 the same limitations and restrictions, as to previous liens, exemp- 
 tions, possession, trust relationships, etc. 
 
 ■■See Hoffman, Prov. Rem. pp. 523, (Ont.) 137; 3TcKaig v. Jamen, 66 Md. 
 
 524, 525; but see Second Ward Bank 583. It is otherwise if tliere is a 
 
 V. Upmann, 12 Wis. 490. strong probability of the estate beiog 
 
 ^Sanders v. Christie, 1 Grant, Ch. insufficient.
 
 2oQ 
 
 RECEIVERSHIPS. 
 
 § 154. Keceiver's powers in supplementary proceedings. 
 
 Under creditors' bills and supplementary proceedings the re- 
 ceiver becomes vested with the debtor's assets and equitable 
 interests without conveyance or assignment,' and inasmuch as in 
 this proceeding he is the representative of the creditors he may 
 impeach and set aside the fraudulent. transfers of the debtor, and 
 thereby subject the propert}^ to the payment of his debts.'^ 
 In general, it may be said that the filing of a creditor's bill 
 and the service of process creates an equitable lien upon the 
 effects of a judgment debtor, and is in effect an equital)le 
 levy.' Before the receiver is authorized to enter upon the duties 
 
 > Bosttcick v^ Me7ick, 40 N. Y. 383; 
 Cooney v. Cooney, Go Barb. 524; Porter 
 V. Williams, 9 N. Y. 142; and this, too, 
 •whether the property is in the debtor's 
 hands or in the hands of another; but 
 this right only extends to such prop- 
 . erty as is not exempt from execution. 
 Hudson V. puts, 11 Paige, 180; An- 
 drews V. Rowan, 28 How. Pr. 126; 
 Tillotson V. Wolcott, 118 N. Y. 190. 
 But see Chautauque County Bank v. 
 Ruley, 19 N. Y. 369; Moak v. Coats, 
 33 Barb. 498 ; of. Manning v. Evans, 
 19 Hun, 500; Wing v. Disse, 15 Hun, 
 190; Hayes v. Buckley, 53 How. Pr. 
 173; Harrison v. Maxwell, 44 N. J. L. 
 816. 
 
 « Bostwick V. Menck, 40 N. Y. 383. 
 But his right only extends to so much 
 • of the debtor's property so fraudu- 
 lently assigned as will be sufficient to 
 satisfy the creditor or creditors whom 
 he represents. Cf. Porter v. Williams, 
 ■ 9 N. Y. 142; Dollard v. Taylor, 1 Jones 
 & S. 496; Gillet v. Moody, 3 N. Y. 
 479; Leavitt v. Palmer, 3 N. Y. 19; 
 Brouwer v. Hill, 1 Sandf. 629; Hyde 
 V. Lynde, 4 N. Y. 392; Underwood v. 
 Sutdiffe, 77 N. Y. 58 (reversing 10 
 Hun, 453). While the receiver has 
 power to institute proceedings to set 
 aside fraudulent transfers of property 
 made by the debtor, yet he does so as 
 the representative of the creditor or 
 
 creditors at whose instance he has 
 been appointed, and in so doing he 
 has no greater power than such credi- 
 tors would have were proceedings in- 
 stituted by them, and if the creditors 
 have waived the frauds by an affirm- 
 ance of the contract, as in case of a 
 suit thereon, the receiver cannot 
 attack the transaction as fraudulent. 
 Kennedy v. Thorp, 51 N. Y. 174 (re- 
 versing 2 Daly, 258); cf. Parish v. 
 Murj>hree, 54 U. S. 13 How. 99, 14 
 L. ed. 67; Savage v. Murphy, 34 N.Y. 
 508; Walter v. Laiie, 1 McArth. 275. 
 
 8 Miller v. Sherry, 69 U. S. 10 Wall. 
 237, 17 L. ed. 827, citing Bayard v. 
 Hoffman, 4 John. Ch. 450; Beck v. 
 Burdett, 1 Paige, 308; Storm v. Wad- 
 dell, 2 Sandf. Ch. 491; Corning v. 
 White, 2 Paige, 567; Edgell v. Hay- 
 wood, 3 Atk. 352; Tilford v. Burnham, 
 7 Dana, 110. 
 
 An execution creditor can only 
 come into a court of equity to enforce 
 his judgment against property not 
 capable of being reached at law; but 
 where the debtor has mortgaged his 
 property and has only an equitable 
 interest remaining, the creditor may 
 have a receiver of the rents and 
 profits of the debtor's land, subject 
 to the rights of the prior incum- 
 brances, but not of the debtor's busi- 
 ness (theatre). Cadogan v. Lyric
 
 CREDITOR'S BILLS, ETC. 257 
 
 of his office and take control of the debtor's assets he must i>-ive 
 bond as required.' When he has done so it has been held that 
 the court has power to compel the debtor to convey to the re- 
 ceiver all the real estate owned by him situated without the state, 
 as well as personal property.^ When property of the judgment 
 debtor is in the hands of a third person, under a valid transfer, 
 or where the debtor has placed on such property a Ixniajide lien 
 or incumbrance, the receiver's possession is subject thereto, or in 
 other words, as to such property the receiver succeeds to such 
 rights only in such property as the judgment debtor had at the 
 date of liis appointinent." If the receiver desires to attack the 
 title to property held by a thiixl person he must bring an action 
 for that purpose, making defendants to such action such persons 
 as claim to have an interest therein." There are certain interests 
 of the judgment debtor in property that he may have in his 
 possession at the time of the receiver's appointment that do not 
 vest in the receiver, such as property in which the debtor has the 
 mere naked i)ossession,* or where he holds it as trustee, or which 
 is exempt from levy and sale," or after-accpiired property of 
 the debtor.' Under the general rule the receiver's title relates 
 back to the date of his appointment, and the sanie rule applied 
 
 Theatre, 7 Rep. 594 [1894] 3 Ch. 338, ceiver succeeds only to the right of 
 
 6:J L. J. Ch. 775, 71 L. T. 8. redemption and not the right of 
 
 ' Voorheex v. Seymour, 26 Barb. 569; possession. Campbell v. Fish, 8 Daly, 
 
 Banks v. Potter, 21 How. Pr. 469; 162. 
 
 Conrjer v. Sands, 19 How. Pr. 8. * Wright v. JVostrand, 94 N. Y. 31. 
 
 * Chautauque County Bank v. Risley, * Gardner v. Smith, 29 Barb. 68.' 
 
 19N. Y. 369; .SwnTiv. i*^(?w<ia, 2N.Y. ^Hancock v. Sears, 93 N. Y. 79; 
 
 Code Rep. 70; of. Steele v. Sturges, 5 Finnin, v. Malloy, 1 Jones & S. 382; 
 
 Abb. Pr. 442; hni sue contra. Amy v. Cvoney v. Cooney, 65 Barb. 524; 
 
 Manning, 149 Mass. 487, as to choses Tilloison v. Wolcott, 48 N. Y. 188; 
 
 in action in a foreign jurisdiction. It Campbell v. Foster, 35 N. Y. 361; 
 
 is also held that neither in England Graff v. Bonnett, 31 N. Y. 9; Scott v. 
 
 nor in Massachusetts is it within the Nevins, 6 Duer, 672; Underwood v. 
 
 general powers of a court of equity to Sutcliffe, 77 N. Y. 58. 
 
 compel an assignment of the debtor's ' Graff v. Bonnett, 25 ITow. Pr. 470; 
 
 property or his choses in action. Genet v. Foster, 18 How. Pr. 50; 
 
 ' Voorheen v. Seymour, 26 Barb. 585; Merritt v. Satcyer, 6 Thorn p. & C. 160. 
 
 Gardner v. Smith, 29 Barb. 68. If a Nor to the wages of the debtor for 
 
 mortgagee is rightfully in the posses- |)ersonal services, Uowell v. McDowell, 
 
 sion of mortgaged chattels the re- 47 N. J. L. 359. 
 17
 
 258 RECEIVERSHIPS. 
 
 to the former code in New York,' thougli under the present 
 code his title dates from the time of the service of the warrant or 
 order, though there are decisions holding that his title relates 
 V)ack to the date when j^roceedings were begun resulting in his 
 appointment.* Under the codes of procedure as a rule the re- 
 ceiver is authorized to sue in his own name in all actions whore 
 he is authorized to sue.^ As a general rule in this class of receiver- 
 ships it may be stated that he takes the property and effects of 
 the judgment debtor as he hnds it subject to all rights therein 
 and incumbrances thereon in favor of third parties, and his rights 
 and powers are measured and determined by the rights and 
 powers of the judgment debtor had no receiver been ajjpointed, 
 subject, however, to the exception that a receiver may avoid the 
 frauds of the debtor which the latter could not do, but in doing 
 so the receiver is the representative of the creditor and not the 
 debtor.* 
 
 § 155. Receiver's functions in supplementary proceedings. 
 
 The functions of a receiver in supplementary proceedings, 
 except where regulated by statute, are not materially different 
 from his functions in other proceedings of a general nature, and 
 his duties are, in general, fixed by the order of appointment, the 
 scope of the order, of course, being determined by the character 
 of property over which the receivership extends. It is to be 
 observed, however, that in this class of proceedings the receiver 
 occupies the position of a trustee for the creditors in whose 
 
 ' Banks v. Potter, 21 How. Pr. 469; gun, and cannot maintain replevin 
 
 Becker v. Torrance, 31 N. Y. C31 ; for such chattels against the mort- 
 
 Fillmore v. Horton, 31 How. Pr. 424; gagee. VarnpbeU v. FisJi, 8 Daly, 162. 
 
 Lodimore v. Lord, 4 E. D. Smith, 183. A receiver appointed in aid of exe- 
 
 * Coleman v. Eoff, 45 N. J. L. 7; cution may maintain a bill of dis- 
 Clurk V. Gilbert, 10 Daly, 316. covery and clear the debtor's property 
 
 3 Seymour v. Wilson, 15 How. Pr. from fraudulent liens. Bergen v. 
 
 355, reversing 16 Barb. 294; Bostwick Littell, 41 N. J. Eq. 18. 
 
 V. Meiick, 40 N. Y. 383; Porter v. In an action by a receiver of a 
 
 Williams, 9 N. Y. 142. judgment debtor, appointed in sup- 
 
 * A receiver, appointed in supple- plementary proceedings to set aside a 
 mentary proceedings, takes only an conveyance by the judgment debtor 
 equitable right of redemption in as being in fraud of creditors, the 
 chattels mortgaged by the judgment judgment debtor is a proper party, 
 debtor and reduced to possession by Allison v. Weller, 6 Thomp. & C. 291. 
 the mortgagee before proceedings be-
 
 CREDITOR'S BILLS, ETC. 259 
 
 behalf he is appointed, and not that of a^i^cnt or representative of 
 the debtor. He succeeds to the ri^■hts of such creditors, and by 
 reason of his trust relationsliip is entitled to enforce these rights 
 to the extent necessary to satisfy the creditor's claims, the measure 
 of his power being fixed by that of the creditors he represents. 
 He becomes vested by his appointment with the legal title of the 
 debtor to all property owned by him at that time, whether in the 
 actual possession of the debtor, or in the possession of any one 
 for his own use, and the receiver may reduce such property to 
 his possession irrespective of the amount due the creditors he 
 represents. As to property of the debtor which has been con- 
 veyed by him the vendee has a right to retain possession until 
 the superior right of the creditors to divest him is shown, and in 
 such case it sometimes happens that one or more of the creditors 
 represented by the receiver has estopped himself from question- 
 ing the validity of the transfer, in which case the receiver's ri<'ht 
 of recovery is confined to those creditors not estopped.' The 
 receiver may institute actions to set aside fraudulent transfers of 
 the debtor in behalf of the creditors, and apply the proceeds 
 derived therefrom." 
 
 1 Bostwick V. Menck, 40 N. Y. 383; Williams, 9 N. Y. 143; Mandeville v. 
 
 Mandeville v. Avery, 124 N. Y. 376, Avery, 20 N. Y. S. R. 801; tiwarlout 
 
 reversing 57 Hun, 78; Haynes v. v. Scltwerier, 5 Redf. 497; EUl v. 
 
 Brooks, 116 N. Y. 487; WrifjU v. Noa- Western & A. R. Co. 86 Ga. 284 (see 
 
 trand, 94 N. Y. 31; Van Ahtyne v. sial. ); Prescott y. Pfeiffer, 57 Mich. 21; 
 
 Cook, 25 N.Y. 489; Becker y. Torrance, Walsh v. Byrnes, 39Miun. 527; Cham- 
 
 31 N. Y. 631; Porter v. Williams, 9 berlain v. O'Brien, 46 Minn. 80 (see 
 
 N. Y. 142; Metcalf V. BelValle, 64 stat.); Merrills. Bessler, 'dlUinn. S2 
 
 Hun, 245, affirmed in 137 N. Y. 545; (see stat.); Hamlin v. Wright, 23 Wis. 
 
 Petlibone v. Brakeford, 37 Hun, 628; 491; cf. Loos v. Wilkinson, 110 N. Y. 
 
 Salter v. Bowe, 32 Hun, 236 (as to 195, 1 L. R. A. 250; Murtha v. Curley, 
 
 amount recoverable); Manley v. Eas- 90 N. Y. 'dl'i; Adsit w. Butler, Ql'^.Y. 
 
 >>i(ja, 13 Hun, 288; Mandeville v. Avery, 585; Davenport v. McChesney, 86 N. Y. 
 
 20 N. Y. S. R. 801; Lore v. Bierkes, 242; Underwood v. Sutcliffe, 77 N. Y. 
 
 16 Abb. N. C. 47; Mann v. Pentz, 2 58; Bostwick v. Merick, 40 N. Y. 383; 
 
 Sandf. Ch. 257; lie iStewarVs Estate, 8 Lawrence v. Bank of the Itepnblic, 35 
 
 N.Y. Civ. Proc. 354; Olney v. Tanner, N. Y. 320; Campbell v. Erie R. Co. 46 
 
 10 Fed. Rep. 101, affirmed in 18 Fed. Barb. 540; Storm v. Waddell, 2 Sandf. 
 
 Rep. 636. Ch. 494. In Uifjgins v. Gillexheincr, 
 
 » Mandeville v. Avery, 124 N. Y. 26 N. J. Eq. 308, the court held that 
 
 376; Pittsbunj Carbon Co. v. McMillan, tlJ« receiver has no such power in the 
 
 119 N. Y. 46, 7L. R. A. 46; Wrir/ht absence of a statute. 
 V. Nostrand, 94 N. Y. 31; Porter v.
 
 260 
 
 RECEIVERSHIPS. 
 
 § 156. Right to sue and be sued. 
 
 As to the rij^-ht of the receiver to sne, and be sued, and the va- 
 rious limitations and restrictions thereof, as well as the protection 
 thrown around him in his possession, under this class of proceed- 
 ings there is no distinction from the ordinary rnles applicable to 
 receiverships in general, and his liabilities and duties to the 
 court, and those whose interests he represents, are the same in all 
 cases, lie being regarded as a trustee of an express trust, and the 
 property in his possession being in custodia legis. The right of 
 the receiver to sue has been fully treated heretofore, and it is 
 only necessary to remark generally in this connection concerning 
 the receiver's right to sue, in this class of actions, is unquestioned, 
 where the debtor has fraud nlently conveyed or assigned his prop- 
 erty,' and so witli regard to the fraudulent and illegal acts of an 
 insolvent corporation," but under the modern supplementary pro- 
 ceedings, the right is usually conferred by statute. 
 
 ^Porter v. Williams, 9 N. Y. 143, 
 citing Osborne v. Moss, 7 Johns. 161; 
 Jackson v. Garnaey, 16 Johns. 189; 
 Jackson v. Cadwell, 1 Cow. 632; 
 Leach v. Kelsey, 7 Barb. 466; Jeicettv. 
 Palmer, 7 John. Ch. 65; Padgett v. 
 Lawrence, 10 Paige, 170; DeMoit v. 
 Slarkey, 3 Barb. Ch. 403; Underwood 
 V. Sutdiffe, 77 N. Y. 58. In this case 
 it was held that the receiver's power 
 did not extend to an action to enforce 
 a statutory trust, as where lands were 
 paid for by him but conveyed to an- 
 other. See 1 Rev. Stat. 728, §§ 51, 
 52. 
 
 Willet V. Moody, 3 N. Y. 479; Leavitt 
 V. Palmer, 3 N. Y. 19; Brouwer v. 
 mil, 1 Sandf. 629; Hyde v. Lynde, 4 
 2SI. Y. 392; Chautaucjue County Bank 
 V. White, 6 N. Y. 236; BoUwick v. 
 Menck, 40 N. Y. 383 (1 Hand). 
 
 Barclay v. Quicksilver Min. Co. 6 
 Lans. 25. This was an action brought 
 in the state of New York by a se- 
 questrator of the state of Pennsylva- 
 nia, but the principles discussed are 
 applicable to receivers; it was held 
 that the foreign sequestrator might 
 
 sustain his action to set aside a fraud- 
 ulent transfer of property made by a 
 Pennsylvania corporation. On the 
 question of comity the court say: 
 "This state has not yet become a sanc- 
 tuary for the protecti<m of property in 
 the hands of a transferee who has ac- 
 quired itbya fraudulent contrivance." 
 Cf. Uamlin v. Wright, 23 Wis. 491; 
 Dunham v. Byrnes, 36 Minn. 106; 
 Barker v. Dayton, 28 Wis. 367; 
 Wright v. Nostrand, 94 N. Y. 31; Carr 
 V. Hilton, 1 Curt. C. 230; Kennedy v. 
 Thorp, 51 N. Y. 174. In Olncy v. Tan- 
 ner, 18 Fed. Rep. 636, it is held that 
 the title to property fraudulently con- 
 veyed does not vest in the receiver, 
 but merely the right to prosecute a 
 suit to set aside the fraudulent con- 
 veyance; and where there has been an 
 assignee in bankruptcy appointed the 
 right of action is in the assignee and 
 not the receiver. Citing Qlenny v. 
 Langdon, 98 U. S. 20, 25 L. ed. 43; 
 Trimble v. Woodhead, 102 U. S. 647, 26 
 L. ed. 290; Moyer v. Deicey, 103 U. S. 
 301, 26 L. ed. 394. The rights of as- 
 signees in insolvency proceedings to
 
 CREDITOR'S BILLS, ETC. 261 
 
 Pending a chancery suit having for its object the subjection of 
 the debtor's real estate to the payment of Hens tliereon the ap- 
 pointment of a receiver may be dispensed with if tlie debtor will 
 give security to account for the rents and profits in case there 
 should be a deficiency arising on the sale of the premises, but if 
 the debtor does not ask permission to give such bond the appoint- 
 ment will be regular,' 
 
 § 157. Order of appointment. 
 
 As we have already seen the order appointing a receiver can- 
 not be questioned in a collateral proceeding,^ and in a supple- 
 mentary proceeding against an insolvent corporation the same 
 doctrine prevails.' Upon the opening up of a judgment against 
 a railroad corporation in order to permit the corporation to come 
 in and defend, the order appointing a receiver in a sequestration 
 proceeding founded on the judgment should be vacated." A re- 
 ceiver in supplementary proceedings is fully protected by the 
 order of appointment for all acts' done thereunder, though the 
 order of appointment is afterwards reversed." An order of ap- 
 pointment in this class of actions vests in the receiver the per- 
 sonal estate and equitable interests of the judgment debtor as of 
 the date of the order, where the order is followed by giving bond 
 as required,^ but he is not necessarily a trustee for all creditors, 
 but is a trustee only for the benefit of the creditors at whose in- 
 stance he is appointed, and in such case he must apply the money 
 arising from a sale to the satisfaction of the judgments which 
 
 avoid fraudulent transfers which in nandez y. Drake, 81 IW. 34; Wenne7'v. 
 
 manj-^ respects is similar to that of re- Tkornloii, 98 111. 156. The validity of 
 
 ceivers is discussed in the following an order of appointment cannot be 
 
 cases. KUbourne v. Fay, 29 Ohio St. tried in a contempt proceeding. 
 
 264; Southard V. Bemier, 72 N. Y. 424; Bagky v. Scudder, 66 Mich. 97. 
 
 Simpson V. Warren, 55 Me. 18; Clough ^Rodbimi v. Utica, I. & E. li. Co. 28 
 
 V. Thompson, 7 Gratt. 26; Slalon v. Ilun, 369. 
 
 Pittman, 11 Gratt. 99; Moncure v. ^ J lolcombe v. Johnson, 2T Minn. 2^)3. 
 
 Ean.wn, 15 Pa. 385; 2\ims w. Bullitt, ^Wilson v. Allen, 6 Barb. 542; Al- 
 
 35 Pa. 308. hany City Bank v. Schermerhorn, 1 
 
 Wrantham v. Lucas, 15 W. Va. 425. Clarke Ch. 297; Porter v. Williams, 9 
 
 'Chap. II. ^ 22. t (b) N. Y. 142; Butter v. Tallis, 5 Saudf. 
 
 ^Commercial Nat. Bunk v. Burch, 611; Cooncy v. Cooney, 65 Barb. 524; 
 
 141 111. 519; Harris v, Lester, 80 111. except such property as is exempt 
 
 307; Wing v. Bodge, 80 111. 564; Uer- from levy and sale.
 
 262 RECEIVERSHIPS. 
 
 form the bfiras of tlic bill nnder wliicli lie is appointed.' Tlie 
 court, even in a creditor's proceedin^^, has a rio-ht to limit tlie 
 order as to the amount of ])roperty over which the receivership is 
 extended.^ 
 
 § 158. Power of, in foreign jnrisdiction. 
 
 The power of the receiver to go into a foreign jnrisdiction for 
 the purpose of reaching tlie assets and property of a judgment 
 debtor has elsewhere been considered. A question, somewhat 
 analogous, as to the power of a receiver upon the return of an 
 execution oiulla hona to go into a court of equity, and through 
 the instrumentahty of a receiver reach choses in action due the 
 judgment debtor from non-resident persons, has recently been 
 considered in Massachusetts, where it is held that neither in that 
 state nor in England has a court of equity power to compel a 
 debtor to make a general assignment of his choses in action in 
 in this class of proceedings ; that in the absence of statutory 
 power, the mere appointment of a receiver does not pass the title 
 to such choses in action ; and the right of a judgment creditor to 
 file his bill in chancery, based on judgment and execution, and 
 seek to reach choses in action due the judgment debtor from non- 
 resident parties is doubtful, and that if such power exists it is 
 based upon the doctrine of equitable attachment, in which case 
 the debt and the person or persons sought to be reached, must be 
 specifically described as definitely as at law.* 
 
 ^Foung v. Clapp, 147 HI. 176. ^Amy v. Manning, 149 Mass. 487; 
 
 Though the defendant in a credit- Ilarvcy v. Varney, 104 Mass. 436. Cf. 
 
 or's bill admits that he has certain Booth v. Clark, 58 U. S. 17 lipw. 322, 
 
 property, but denies that he has any 15 L. ed. 104; Brigham v. Lnddington, 
 
 other, the order for the delivery of 12 Blatchf. 237; Yeager v. Wallace, 44 
 
 his property to the receiver must be Pa. 294. 
 
 general. Browning v. Bettis,^V&\ge, A receiver may be appointed, al- 
 
 5G8. though all the property the debtor 
 
 '^ Jones V. La Touclie, 2 Sugden's has is real estate in another state, and 
 
 Dec. 671; cf. Wardell v. Leaven- he may be required to convey the same 
 
 worth, 3 Edw. Ch. 258; but the court to the receiver. Towne v. Campbell, 
 
 in Billing v. Foster, 21 S. C. 334, 35 Minn. 231; /S/mY/t v. Tozer, 42 Uun, 
 
 say: "It is difficult to understand 22. 
 
 how the court could in advance, and Where debtors are beyond the juris- 
 
 wilhout an inquiry on the point, ascer- diction, their creditors n umerous, their 
 
 tain how much would be necessary; assets in the shape of money and cred- 
 
 in fact the only certain means of as- its, many of those indebted to them 
 
 certaining it would be by a sale." unknown, and where they have an
 
 CREDITOR'S BILLS, ETC. 2G3 
 
 § 150. Priorities under creditor's bills. 
 
 Where a creditor's bill is tiled in Ijehalf of the plaintiff therein, 
 and not in behalf of other creditors of the debtor, the receiver is 
 a trustee in bc.alf of the creditor in whose behalf he is appointed 
 only,' and he does not become an agent of the debtor for the dis- 
 tribution of the property in the sense that an assignee in an 
 insolvent proceeding does/ After the filing of a bill of this 
 nature, other creditors may intervene and therel)y become parties 
 to the proceeding, but the proceeding by creditor's bill necessa- 
 rily recognizes priorities among creditors and makes distribution 
 of the assets according to such priorities,' 
 
 Where property in litigation under a creditor's bill is liable to 
 depreciation and will be inevitably sacrificed if sold by a sheriff 
 under an existing levy, a receiver will be appointed to take 
 charge of sncli property and sell it under the direction of the 
 court, and distribute the proceeds as the rights of parties may 
 appear/ 
 
 The question has sometimes arisen as to the priority of rights ob- 
 tained by a receiver under a creditor's bill and the purchaser at an 
 execution sale. Thus, where a bill was filed to set aside a fraud- 
 ulent transfer of the debtor on which a receiver was appointed, 
 and an assignment made in general terms, pursuant to an order 
 of court, of all the debtor's personal and real estate, the property 
 not being described, the receiver's title is good as against a pur- 
 chaser under a judgment docketed after the assignment/ The 
 law is otherwise where the judgment is prior to the assignment 
 
 agent within tbe jurisdiction, cogni- Logan v. McCall Pub. Co. 140 N. Y. 
 
 zant of all their resources and where 447. 
 
 conflicting claims among different ^Russell v. Chicago Truat & Sav. 
 
 creditors touching equilable priority, Bank, 139 111. 588, 17 L. R. A. 345; 
 
 are to be settled, the remedy for Young v. Clapp, 147 111. 176. 
 
 creditors by bill, injunction, and the "^Bouton v. Dement, 123 111. 142; 
 
 ai)!)oiutment of a receiver, is proper. Young v. Clapj), s^ipru. 
 
 Bidlin V. Ferst, 55 Ga. 540. ^ Young v. Clapp, nupra; Eiissell v. 
 
 Under New York Code of Civil Chicago Trust <fc Sav. Bank, 139 111. 
 
 Proc. i^§ 2435, 2452, 2458, 24G3, sup- 538, 17 L. R. A. 345. 
 
 pleraentary proceedings may be sus- *Kuhlv. Martin, 26 N. J. Eq. 60. 
 
 tained against a foreign corporation ^Cltautavque County Bank v. While, 
 
 having no agent and doing no bus!- 6N.Y. 236; Chautawiue County Bank 
 
 tie.«s in that .slate, and a receiver may v. Pauley, 19 N. Y. 309; Porter v. WiU 
 
 bo api>oiuted in such proceeding. liauin, 9 N.Y. 142.
 
 264 RECEIVERSHIPS. 
 
 to the receiver.' It is premature, hojvcver, before the hearing to 
 determine whether creditors or any of them are entitled to prioritj 
 in payment, and order their payment." 
 
 A mortgage prior in point of time to a judgment entitles the 
 mortgagee to interest on his mortgage before the judgment cred- 
 itor is entitled to payment. But the rule is dilferent where one 
 incumbrancer obtains the appointment of a receiver, and subse- 
 quently the receivership is extended in an independent proceed- 
 ing by another incumbrancer. In such case the latter, though a 
 prior incumbrancer, loses the rents received before the extension.' 
 
 § 160. Courts reluctant to appoint where legal title in- 
 
 Yolved. 
 
 Courts are reluctant in appointing a receiver on behalf of a 
 judgment creditor over real estate where the legal title and pos- 
 session are in third parties. It is not ordinarily the province of 
 a court of equity to determine the legal title to real property as 
 between contestants therefor, and it will not appoint a receiver 
 in such cases except in cases of fraud clearly proved, accompa- 
 nied by danger of loss, and the plaintiff must show a clear right 
 to the property, or some lien upon it, or that it constitutes a 
 special fund to which he has a right to resort for the satisfaction 
 of his judgment.* Courts are equally reluctant to disturb a mort- 
 gagee in possession who holds as security for the payment of his 
 mortgage debt, and a receiver will not be appointed if the mort- 
 gagee is financially able to respond for the receipts.' But a 
 receiver may be appointed in such case if it is necessarj^ to pro- 
 tect the interest of all parties, as where the mortgagee is guilty 
 of fraud or is acting in collusion with the mortgagor and for his 
 benefit.* 
 
 ^Chantanque County Bank v. Rislcy, 68; Mays v. Rose, Freem. Cb. (Miss.) 
 
 19 N. Y. 369; White's Bank v. Far- 718; Vanse v. Woods, 46 Miss. 120. 
 
 thing. 101 N. Y. 344; Shand v. Ban- ^Quin v. Brittain, 3 Edw. Ch. 314; 
 
 ley, 71 N.Y. 319. Furlong v. Edwards. 3 Md. 99; Silver- 
 
 ^Penn v .Whitehead, 12 Gratt. 74. man v. Kxihn, 53 Iowa, 436. 
 
 ^Holland v. Cork & K. R. Co. 2 Ir. ^Gouthwaite v. Rip-pon, 8 L, J. Ch. 
 
 Rep. Eq. 417. N. S. 139; Rose s.Bevan, 10 Md. 466. 
 
 *Lloyd V. Fassitigham, 16 Ves. Jr.
 
 CHAPTER X. 
 
 RECEIVERSHIP IN FORECLOSURE OP MORTGAGES. 
 
 § 170. Generally. 
 
 § 171. Usual grounds for invoking 
 jurisdiction. 
 
 (a) Where mortgage provides for 
 
 receiver. 
 
 (b) Where statute provides for 
 
 receiver. 
 
 (c) Where security is inrde- 
 
 quate. 
 
 (d) Where waste is being com- 
 
 mitted. 
 
 (e) Where mortgagor is guilty 
 
 of fraud. 
 § 172. When appointed. 
 
 (a) Where rents and profits are 
 
 pledged. 
 
 (b) Where security is inade- 
 
 quate. 
 
 (c) Wheie trustee refuses to take 
 
 possession. 
 
 (d) Where there are equitable 
 
 grounds for appointment. 
 
 (e) Where statute provides for 
 
 appointment. 
 
 (f) Necessity for appointment to 
 
 be clearly shown. 
 
 (g) Where there is a contest as 
 
 to property mortgaged. 
 
 (h) Where the mortgagor or his 
 grantee are guilty of 
 fraud. 
 
 (i) Where the mortgagor is com- 
 mitting waste. 
 
 (j) Where default in interest and 
 property indivisible. 
 § 173. When not appointed. 
 
 (a) Where legal title is in mort- 
 
 gagee and he has a legal 
 remedy. 
 
 (b) Where ])y the terms of the 
 
 mortgage the right is not 
 given. 
 
 (c) Where by statute mortgagor 
 
 entitled to possession until 
 sale. 
 
 (d) Where plaintiff's allegations 
 
 are denied or amount due 
 is disputed. 
 
 (e) Where insolvency of mort- 
 
 gagor or his grantee not 
 shown. 
 
 (f) Where right of plaintiff to 
 
 foreclosure not clearly 
 shown. 
 
 (g) Where plaintiff has no equi- 
 
 table standing in court. 
 
 (h) Where pending appeal, ap- 
 peal bond affords protec- 
 tion. 
 
 (i) Where defendant secures 
 plaintiff by deposit, etc. 
 
 (j) Where receivership property 
 is a statutory homestead. 
 
 (k) Where plaintiff guilty of 
 laches. 
 § 174. Inadequacy of security as 
 ground for. 
 
 (a) Two elements. 
 
 (1) Insufficiency of property 
 
 to pay debts. 
 
 (2) Insolvenc}' of mortgagor or 
 
 his grantee. 
 
 (b) One element not sufFicient. 
 
 (c) Presumption as to adequacy. 
 
 (d) Rule in N. J., Cal., S. C, 
 
 la. and Mich. 
 
 (e) Inadequacy has reference to 
 
 plaintiff's indebtedness 
 alone. 
 
 (f) Rule relaxed when other 
 
 equitable grounds shown. 
 
 (g) English practice as to rents 
 
 collected before and after 
 time for redemption. 
 
 § 175. Same subject continued. 
 
 § 176. Over wiiat appointed. 
 
 § 177. When appointed. 
 
 (a) Before decree. 
 
 (b) After decree 
 
 2G:
 
 266 RECEIVERSHIPS. 
 
 § 178. General rules applicable. § 180. Application of parties other 
 § 179. Relative rights of senior and than mortgagees. 
 
 junior mortgagees. (a) In behalf of wife. 
 
 (a) English rule. (b) In bebalf of annuitants. 
 
 (b) American rule. (c) In behalf of bondholders. 
 
 (d) In behalf of vendors. 
 
 § 170. Generally. 
 
 Uiuler proper circumstances courts exercising equitable juris- 
 diction frequently appoint receivers over mort^-aged property on 
 application of the mortgagee, usually in proceedings in&'tituted 
 for the j)iirpose of foreclosure of the mortgage. The usual and 
 ordinary grounds upon which the court or chancellor will grant 
 this relief are considered in the following sections. It is proper 
 to observe, however, that nnder the English practice, until 
 changed by statute, the appointment of a receiver for mortgaged 
 premises was exceedingly rare for the reason that the mortgagee 
 had the legal title to the property and was entitled by reason 
 thereof to the possession of the mor-tgaged premises wdiich were 
 recoverable in the common law action of ejectment, and, there- 
 fore, the equitable jurisdiction of the court could not be called 
 into action. It was only where the mortgagee held the equitable 
 title as in the case of a junior mortgagee, or where for some other 
 reason the mortgagee had no adequate legal remed}', that the 
 English court of chancery was called upon to appoint a receiver. 
 Some of the courts in this country have been disposed to follow 
 the English practice, but the courts of both countries have now 
 come to recognize the appointment of receivers in foreclosure 
 proceedings, on the application of the mortgagee, as one .of the 
 most connnon modes of ecpiitable relief, under the rules and prac- 
 tice of chancery courts. 
 
 § 171. Usual groiuuls for invoking jurisdiction. 
 
 The grounds upon which a receiver is usually appointed in 
 mortgage foreclosure cases are: 
 
 (a) Where by the terms of the mortgage a receiver is provided 
 for upon default in the payment of the principal and interest, or 
 other default in the covenants of the mortgage or trust deed.* 
 
 ^Whitehead v. Wooten, 43 Miss. 523; 
 Morrison v. Buckner, Ilempst. 443.
 
 RECEIVERSHIP IN FORECLOSURE OF MORTGAGES. 
 
 2G7 
 
 (b) Where there is a statutory cause for the appointment of a 
 receiver.' 
 
 (c) Where the morti^age security has ])ecouie inadequate by 
 reason of a depi'eciation in tlie vahic of the pi-operty and the in- 
 solvency of the niorto-agor or other person liable for the mortgage 
 indebtedness.'* 
 
 (d) Where the mortgagor is committing waste, or is otherwise 
 injuring the value of the security, or permits the proj)erty to be 
 sold for taxes, or permits the insurance to expire.^ 
 
 (e) Where the mortgagor or his grantee is guilty of fraud or 
 bad faith." 
 
 § 172. When appointed. 
 
 In foreclosure proceedings, as in other cases, the court is vested 
 with discretion," and in the matter of appointment is governed 
 
 'Tripp V. CMrd R. Co. 21 Eng. L. 
 & Eq. 53. 17 Jur. 887; Uurtth v. 
 JIursh, 99 Ind. 500; Douglattn v. Cline, 
 12 Bush, 608; WooUey v. Holt, 14 
 Bush, 788; Norlliwealern Mut. L. Ins. 
 Co. V. Park Hotel Co. 37 Wis. 125. 
 
 '^United Statea Trunt Co. v. New 
 York, W. 8. & B. R. Co. 101 N. Y. 
 478; Quincy v. Cheeseman, 4 Sanclf. 
 Ch. 405; Sea Ins. Co. v. Slehhini^, 8 
 Paige. 565; Shotirell v. SmitJi, 3 Edw. 
 Ch. 588; Warner v. Qouverncur, 1 
 Barb. 36; Commercial & Sav. Bank v. 
 Corhett, 5 Sawy. 172; Phillips v. 
 Eiland, 52 Miss. 721 ; Myers v. Estell, 
 48 Miss. 372; Hill v. Robertson, 24 
 Miss. 368; Lehman v. Tallahassee Mfg. 
 Co. 64 Ala. 507; Kerchner v. Fairley, 
 80 N. C. 24; Henshaw v. Wells, 9 
 Humph. 568; Finch v. Houghton, 19 
 Wis. 150; Douglass v. Cline, 12 Bush, 
 608; Newport & C. Bridge Co. v. 
 Dot/glass, 12 Bush, 673; Woolley v. 
 Ifolt, 14 Busli, 788; Hyman v. Kelly, 1 
 Nev. 179; Price v. Doudy, 34 Ark. 285; 
 Brown v. Chase, Wallc. Ch. 43. 
 
 ^Stockman v. Wallis, 30 N. J. Eq. 
 449; Chetwood v. Coffin, 30 N. J. Eq. 
 450; Schreiber v. Carey, 48 Wis. 208; 
 
 Finch V. Honghton, 19 Wis. 140; 
 Wallsh F. Ins. Co. v. Loud, 20 ILiw. 
 Pr. 95; Es'am v. Crampton, 61 Ala. 
 507. 
 
 *Cortleyeu v. Hathaway, 11 N. J. 
 Eq. 43. 
 
 '"In the appointment of a receiver, 
 especially in a foreclosure case, very 
 much must be left to the discretion of 
 the district judge, and uule.«s it is 
 made to appear that this discretion has 
 been exercised unvyisely and to the in- 
 jury of the party complaining, this 
 court will not interfere." Jacobs v. 
 Gibson, 9 Neb. 380. "Assuming that 
 the court has power to compel the 
 owner to pay the rents to the receiver 
 after his appointment, the exercise of 
 the power is in the discretion of the 
 court and so not reviewable here." 
 Rider v. Bagley, 84 N. Y. 461. By 
 the appointment of the receiver the 
 plainlilf obtained an equitable lien on 
 the unpaid rents and upon them only. 
 Lofsky V. Monjer, 3 Sandf. Ch. 69; 
 Howell V. Ripley, 10 Paige, 43; Astor 
 V. Turner. 11 Paige, 43(5; Mitchell v. 
 Bartlett, 51 N. Y. 447; Argall v. Pitts, 
 78 N. Y. 242. The power is discre-
 
 268 
 
 RECEIVERSHIPS. 
 
 largely by the circumstances of each particular case,' yet it is 
 possible from the geuerul uniformity of decisions to \ay down the 
 
 lionary and often of great utility. 
 Skip V. Ilarwood, 3 Atk. 564. It is dis- 
 creliouary as to the person appointed 
 ordinarily. Benneson v. Bill, 62 111. 
 408. The appointment generally is in 
 the sound discretion of the court and 
 not to be exercised except in stronij 
 cases', and in no case should the power 
 be exercised if it is clear that on a 
 foreclosure the property will bring 
 enough to pay the debt, interest and 
 costs. Pullan v. Cincinnati, & G. A. 
 L. R. Co. 4 Biss. 35. See further §5; 
 ^ 1, ante. 
 
 Under the English Judicature Act 
 of 1873 it is provided that a receiver 
 may be appointed by an interlocutory 
 order in all cases in which it shall ap- 
 pear to the court to be just or con- 
 venient that such order shall be made. 
 
 See also Milwaukee & M. R. Co. v. 
 Sotitter, m U. S. 2 Wall. 510, 17 L. ed. 
 900. 
 
 State V. Wiltner, 65 Md. 178; Anon, 
 
 12 Ves. Jr. 4; Middleton v. Dodnioell, 
 
 13 Ves. Jr. 266; Long v. Miijentre, 1 
 Johns. Ch. 305. 
 
 It is not an abuse of discretion to 
 refuse to appoint a receiver of the 
 rents and profits of premises, the legal 
 title of which has been transferred to 
 the person applying therefor as mort- 
 gagee, where the amount due him is 
 in dispute. Valentine v. Juch, 46 N. 
 Y. S. R. 64. 
 
 In Tyseti v. Wabash R. Co. 8 Biss. 
 247, it is declared that while the court 
 exercises a broad discretion in the 
 matter of appointment, yet it will not 
 make such appointment if it per- 
 ceives that a much greater injury will 
 result to those interested in the rail- 
 road than by leaving the property in 
 the hands of those then holding it. 
 
 In Myers v. Estell, 48 Miss. 372. it 
 
 is said that the appointment of a re- 
 ceiver on the application of the mort- 
 gagee being a matter resting in the 
 sound discretion of the court the bet- 
 ter rule to govern that discretion is 
 that which will grant the order of the 
 appointment as it may or may not be 
 an essential means to pay the debt se- 
 cured by the mortgage. The exercise 
 of this power depends upon sound dis- 
 cretion and is governed to a great ex- 
 tent by the circumstances of each par- 
 ticular case. Morrison v. Buckner, 
 Hempst. 442; Ver Plank y. Caines, 1 
 John. Ch. 58; Cone v. Paute, 12 Hcisk. 
 506. 
 
 In Farmers'' Loan <& T. Co. v. Kansas 
 City, W. <& N. W. R. Co. 53 Fed. Rep. 
 182, it is held that the appointment of 
 a receiver in a railroad foreclosure is 
 not a matter of right, but rests in the 
 sound discretion of the court and is a 
 power to be exercised sparingly and 
 with great caution. See also Mil- 
 waukee & M. R. Co. V. Hoicard, 131 
 U. S. Appx. 81, 18 L. ed. 252; Fosdick 
 V. Schall, 99 U. S. 235, 25 L. ed. 339; 
 Sage v. Memphis & L. R. R. Co. 125 
 U. S. 361, 31 L. ed. 694; Owen v. Uo- 
 man, 4 H. L. Cas. 997. 
 
 In Williimson v. New Albany, etc. 
 R. Co. 1 Biss. 198, it is said that where 
 a court of equity is asked to interfere 
 with the management of a corporation 
 it will look into the facts and exercise 
 an equitable discretion and will not 
 enforce the strict penalty of the deed. 
 
 ' In McIIenry v. New York, P. & 
 0. R. Co. 25 Fed. Rep. 114, upon a 
 hearing of both sides, and it not ap- 
 pearing that the property of the com- 
 pany was in jeopardy, or in need of 
 the protecting control of the court, 
 and the continuance of the receiver- 
 ship being likely to prove prejudicial
 
 RECEIVERSHIP IN FORECLOSURE OF MORTGAGES. 269 
 
 followino- general princi})les under which the court will appoint a 
 receiver over the mortgaged property, or of the rents and profits 
 tliereof: as, 
 
 to innocent holders of the securities, 
 the (^rder appointing the receiver was 
 rescinded. 
 
 In Fcivmers' Loan & T. Co. v. 
 Chicago & A. R. Co. 27 Fed. Rep. 140, 
 the trustee brought suit for the benefit 
 of the bondholders to foreclose a trust 
 deed for overdue interest, and it was 
 held that upon payment of the amount 
 due, the foreclosure decree would be 
 suspended until default again oc- 
 curred in the payment of interest, the 
 appointment of a receiver resting in 
 the sound discretion of the court. In 
 this case it was held, also, that mere 
 insolvency may or may not call for the 
 appointment of a receiver and the 
 motion of the appointment was de- 
 ferred. 
 
 In Tysen v. WabuHh li. Co. 8 Biss. 
 247, it was held that the mere fact 
 that there had been a default in the 
 payment of the debt is no ground for 
 the appointment of a receiver in ihe 
 absence of a provision in the mort- 
 gage that the mortgagee shall have 
 the rents, and the court twill not, in 
 deference to the mere technical rights 
 of a very small minority of the bond- 
 holders, appoint a receiver without 
 consulting the interests of others 
 whose rights are entitled to equal pro- 
 tection. Cf. Vone v. Heed, 1 Woods, 
 650. 
 
 In Syracuse City Bank v. Tallman, 
 '6\ Barb. 201, it is held that where a 
 mortgagor is insolvent and fails to 
 pay at the time appointed and the 
 mortgaged premises are inadequate se- 
 curity as between the mortgagee and 
 the mortgagor it is within the equita- 
 ble discretion of the court to allow the 
 latter to intercept the rents and 
 profits for his better protection from 
 
 loss, and that this is the utmost extent 
 to which relief has been granted 
 within any admitted principles of 
 equity. 
 
 In First Nat. Bank v. Gaga, 79 111. 
 207, it is held that a receiver should 
 not be appointed in any case unless 
 it is made to appear that there has 
 been a particular necessity for the 
 step, to preserve some particular prop- 
 erly for such persons as shall be en- 
 titled thereto, and from all the circum- 
 stances in the case the appointment 
 was refused. 
 
 In Silverman v. Northwestern Mat. 
 L. Ins. Co. 5 111. App. 134, it is held 
 that in case of foreclosure a receiver 
 should not be appointed unless it is 
 made to appear that there is a com- 
 parative necessity for such action by 
 reason of the insolvency of the mort- 
 gagor, or in order to protect some par- 
 ticular property for such parties as 
 are entitled to the benefit thereof, and 
 where the owner of the equity of re- 
 demption is solvent, although the 
 mortgagor is insolvent, there is no 
 such reasonable case as will warrant 
 the appointment of a receiver. 
 
 In Eslava v. Crampton, 61 Ala. 507, 
 it is said that where the mortgagor 
 had agreed in the mortgage to insure 
 the property, pay taxes, and keep it in 
 repair and had failed to do so and was 
 shown to be insolvent the court would 
 not closely scrutinize confiletiug evi- 
 dence as to the value of the mortgaged 
 premises upon which a receiver was 
 appointed. 
 
 In Cortleyeu v. Hathaway, 11 N. J. 
 Eq. 39, it is held that inadecpiacy in 
 the value of the mortgaged premises 
 and insolvency of the mortgagor do 
 not constitute sulllcient grounds for
 
 270 
 
 RECEIVEliSHlPo. 
 
 (a) Wlicro tliere is an express i:;i';mt or plcdi^e of the rents and 
 profits to secure the niortij;a<j;e indehtedness.' 
 
 the appointment of a receiver, but 
 under the peculiar circumstances of 
 the case a receiver was appointed. 
 Among these were that the mortgagor 
 had sold the property and he, and his 
 grantee, were insolvent, inadequacy 
 of the security for the mortgage 
 money; violation of an agreement on 
 the part of the mortgagor to reduce 
 the amount of the mortgage, etc. 
 
 In Keep v. j\r(chif/iin, L. S. R. Co. 
 6 Chicago L. N. 101, tbe court say: 
 "Receivers are not appointed as a mat- 
 ter of course, but it rests in the sound 
 discretion of tiie court. Whether the 
 power will be exercised depends 
 always upon the facts and rights as 
 lliey appear before the court. There 
 are a mulliUide of cases showing where 
 the power has and where it has not 
 been exercised, each case depending 
 upon its own particular facts and cir- 
 cumstances. 
 
 Assumitig that the court has power 
 in a foreclosure suit to appoint a re- 
 ceiver of the rents the exercise of such 
 power is in the discretion of the court, 
 and not reviewable. Eider v. Bagley, 
 8i N. Y. 461. 
 
 The power to appoint a receiver 
 pendente lite in a foreclosure proceed- 
 ing is a part of the incidental jurisdic- 
 tion of the court and does not depend 
 on a statute. Uniied Slates Trust Co. 
 v. New York. W. S. cfi B. E. Co. 101 
 N. Y. 478; Uullenhcck v. Donnell, 94 
 N. Y. 343. 
 
 ' In American Bridge Co. v. Heidel- 
 bach, 94 U. S. 798, 24 L. ed. 144, the 
 mo'lgage covered the property, rents, 
 issues and profits, with the provision 
 llial if there was a default in paying 
 tlie interest the mortgagee might take 
 pfissession of the property, manage 
 the same and receive and collect all 
 
 rents and claims due and to become 
 due. After default the mortgagee 
 filed his bill setting forth that the 
 company had on hand moneys and 
 claims due it and asked to have the 
 same applied to the mortgage. Swb- 
 sequently a judgment creditor, on the 
 return of an execution unsatistieil, 
 filed a bill to subject such moneys 
 and claims to the payment of his 
 judgment, and it was held that inas- 
 much as the mortgagee had not taken 
 possession his claim to the rents ar;d 
 income on hand at the time of filing 
 his bill must be postponed to that of 
 the judgment creditor. See also 
 Galveston, U. <£• H. R. Co. v. Cowdry, 
 78 U. 8. 11 Wall. 459, 20 L. ed. 199, 
 and Gilman v. Illinois & M. Teleg. Co. 
 91 U. S. 603, 23 L. ed. 405. 
 
 In Des Moines Gas Co. v. West, 44 
 Iowa,' 23, the mortgage pledged the 
 income, rents and profits to the pay- 
 ment of the debts, and it was held 
 that the creditor need not conclusively 
 establish his right to recover before 
 he is entitled to ask for the appoint- 
 ment of a receiver; it is sufficient if 
 he show a probable right, and in such 
 case if the debtor is insolvent the 
 appointment follows as a matter of 
 course. 
 
 The court say: "There is a clear 
 and well-defined distinction as to the 
 right to have a receiver appointed 
 where the bond and mortgage, as in 
 this case, pledge the rents or income 
 to the payment of the debt and where 
 they do not." 
 
 In Wagar v. Stone, 36 Mich. 3G4, it 
 is held that the mortgagor being 
 entitled under the statute of Michigan 
 to the possession and consequently to 
 the rents and profits of the mort 
 gaged premises until such a time as
 
 RECEIVERSHIP IN FORECLOSURE OF MORTGAGES. 271 
 (b) Where the mortgaged property is aa inadequate security for 
 
 his title is divested by a perfected 
 foreclosure, it is not competent to 
 cut short his right in this regard by 
 means of a receiver appointed in a 
 foreclosure suit. It should be noticed 
 that in Michigan the mortgage con- 
 veys no title to the mortgagee, but a 
 security merely for the debt, and be- 
 fore the foreclosure tlie mortgagee 
 has no legal interest in the mortgaged 
 premises. See also Lee v. CLary, 38 
 Mich. 223; Hnzeltine v Granger, 44 
 Mich. 503; Beading v. Waterman, 46 
 Mich. 107. This provision is for the 
 benefit of the mortgagor, however, 
 and he may waive it. Beecher v. 
 Marquette cfc P. Bulling Mill Co. 40 
 Mich. 307. 
 
 In DuiD V. Memphis & L. B. B. Co. 
 20 Fed. Rep. 260, it is held that when 
 not varied by the contract, the law of 
 the state where the mortgage is exe- 
 cuted and the mortgaged property is 
 situated furnishes the rule for de- 
 termining the rights of the mortgagees 
 after condition broken ; that in Arkan- 
 sas a common law rule prevails and the 
 failure of a mortgagor to pay the 
 mortgage debt at the law day the 
 mortgagee is entitled to the possession 
 of the mortgaged property and may 
 maintain ejectment therefor. But in 
 case of a railway mortgage embracing 
 rolling stock and other personal prop- 
 erty the proper remedy of the mort- 
 gagee is by a bill in equity for a 
 specific performance of the mortga- 
 gee's rights. See also Morrison v. 
 Buckner, Hempst. 442. 
 • In Union Triint Co. v. St. Louis, I. 
 M. & S. B. Co. 4 Dill. 114, the court 
 refused to appoint a receiver of a 
 railroad on the showing merely that 
 there had been a default in the pay- 
 ment of interest secured by a mort- 
 gage of the property and incomes of 
 
 the company. It was held that it 
 was necessary in addition to this to 
 show that ultimate loss would happen 
 to the beueticiaries of the mortgage 
 by permitting the property to remain 
 in the hands of the owners until final 
 decree and sale. The facts in the 
 case were considered as not suUicienl 
 to warrant the appointment of a re- 
 ceiver, under the authority of Will- 
 iamwn v. New Albany, etc., B. Co. 1 
 Bliss. 198. 
 
 In Allen v. Dallas & W. B. Co. 3 
 Woods, 316, where the mortgage 
 covered the income and profits as 
 well as the property of the railroad 
 company to secure principal and in- 
 terest, and authorized the trustee in 
 default in the payment of interest to 
 take possession of the mortgagetl 
 premises and apply the income to the 
 payment of the interest, it was held 
 upon the application of the trustee 
 that such default was sufficient 
 ground for the appointment of a 
 receiver. In such a case the appoint- 
 ment of a receiver would not be de- 
 nied because it was not shown that 
 the properly mortgaged was in- 
 sufficient to pay the mortgaged debt, 
 or that it is in jeopardy, or the com- 
 pany insolvent, or the amount due 
 was in dispute. Where the receipts 
 and income of a railroad are pledged 
 for the payment of principal and in- 
 terest, it is said that this provision of 
 the mortgage or trust deed gives 
 credit to the bondholders, which en- 
 Lances their value, and induces capi- 
 talists to purchase them. See also 
 Whitehead v. Wooten, 43 Miss. 523; 
 Morrison v. Buckner, Ilempst. 442. 
 
 As to the right of the mortgagor to 
 the rents and profits generally, see 
 Freedman's Sav. cfe T. Go. v. Shepherd, 
 127 U. S. 500, 32 L. ed. 186; Oilman
 
 272 
 
 RECEIVERSHIPS. 
 
 the payment of the mortii;age indehtedness, and there is danger of 
 loss unless a receiver should be appointed.' 
 
 V. Illinois & M. Tdeg. Co. 91 U. 8. 
 COo, 23 L. ed. 405; United Slates Trust 
 Co. V. WabashW. E. Co. 150 U. S. 307, 
 37 L. ed. 1091; Mercantile Trust Co. v. 
 Missouri, K. <& T. li. Co. 36 Fed. Rep. 
 226; Smith Charities Trustees v. Con- 
 nolly, 157 INIass. 276; Be Life Associa- 
 tion of America, 96 Mo. 636; Childs v. 
 Uurd, 32 W. Va. 87. As to when the 
 mortgagor must account to the mort- 
 gagee for the earnings, see Suge v. 
 jVinneapolis S L. li. R. Co. 125 U. S. 
 378, 31 L, ed. 699; American Bridge 
 Co.Y. Heidelbach, 94 U. S. 800, 24 L. ed. 
 144. Under a railroad mortgage as to 
 ■who is entitled to the income, see 
 Oilman v. Illinois & M. Teleg. Co. 91 
 U. S. 603, 23 L. ed. 405; American 
 Bridge Co. v. Heidelbach, supra; Fos- 
 dick V. Scliall, 99 U. S. 253, 25 L. ed. 
 339; Teal v. Walker, 111 U. S. 250. 28 
 L. ed. 418; Brown v. Maryland, 114 
 U. S. 605, 29 L. ed. 235; Young v. 
 Northern Illinois Coal & I. Go. 9 Blss. 
 305; Dow v. Memphis & L. R. R, Co. 20 
 Fed. Rep. 771; Farmers' Loan & T. 
 Co. V. 3Iissouri, I. & N. R Co. 21 Fed. 
 Rep. 271; White v. Pulley, 27 Fed. 
 Rep . 441 ; Hay v. Alexandria & W. R. 
 Co. 4 Hughes, 373. 
 
 ' la Kelly v. Alabama <& C. B. Co. 
 Trustees, 58 Ala. 489, it appeared that 
 the corporation had been declared 
 bankrupt, interest had accumulated 
 on its bonds exceeding the value of 
 the property mortgaged, and pur- 
 chasers of the equity of redemption 
 at the assignee's sale were in posses- 
 sion of the road and property mort- 
 gaged, receiving the income, profits 
 and earnings of the road which the 
 mortgagee was entitled to take, and 
 using the same for their own exclusive 
 benefit, a clear case was presented, it 
 was held, for the appointment of a 
 
 receiver. See also Lehman v. Talla- 
 hassee Mfg. Co. 64 Ala. 567. 
 
 In Checver v. Rutland & B. R. Co. 
 39 Vt. 653, it is held that when the 
 mortgagor or assignees are in posses- 
 sion, denying the right of the mort- 
 gagee to a foreclosure, the utmost the 
 court can do is the appointment of a 
 receiver for the purpose only of pre- 
 serving the property and its rents and 
 profits from waste and diversion. 
 
 In Hamilton v. Austin, 36IIun, 138, 
 it is held that after foreclosure is be- 
 gun the plaintiff may, if the security 
 is in jeopardy, intercept through the 
 aid of a receiver, the rents or emble- 
 ments or both, upon the theory that 
 the whole estate is pledged as secur- 
 ity for the debt, and that the creditor 
 is immediately entitled to his money 
 or the property pledged [Hollenbeck 
 v. Bunnell, 94 N. Y. 347; Ogdensburg 
 Bank v. Arnold, 5 Paige, 40] ; but in 
 such case the receiver is not entitled 
 to recover for rents collected or emble- 
 ments removed prior to the date of 
 his appointment, his right being con- 
 fined to subsequent rents and profits, 
 and the rents uncollected at the time 
 of his appointment. 
 
 In regard to waste of mortgaged 
 premises the court say: " Waste is 
 an improper destruction, or material 
 alteration or deterioration of the free- 
 hold, or of thiugs forming an essential 
 part of it done or suffered by a person 
 rightfully in possession as tenant, or 
 having but a partial estate like the 
 mortgagor. It is not waste for a 
 mortgagor of the land to sell timber, 
 remove or change fixtures, if done in 
 good faith and in the usual course of 
 good husbandry and before fore- 
 closure is begun or default has 
 occurred upon the mortgage. Nor is
 
 ItEUElVEUSHIP IN FORECLOSURE OF MORTGAGES. 273 
 
 ft waste for him to sell stone from 
 opeu quarries or minerals from open 
 mines if done in the usual course of 
 business, thounb tlie product removed 
 may exceed tlie value of the remain- 
 ing freehold." 
 
 In Hollenbeck v. Donnell, 94 N. Y. 
 343, it is held that the power to ap- 
 point a receiver of rents and profits 
 of mortgaged premises accruing pend- 
 ing a foreclosure was inherent in the 
 court of chancery prior to the adop- 
 tion of the code, and was continued 
 by the code and not abrogated by the 
 section defining cases in which receiv- 
 ers may be appointed; and where it 
 appeared that about one sixth of the 
 mortgage debt was due and the prem- 
 ises were divided into equal parcels 
 capable of being sold separately with- 
 out injury to the parties interested, 
 assuming the appointment of the re- 
 ceiver to have been proper in the ab- 
 sence of a specific pledge of the rents 
 and profits, plaintiff is not entitled to 
 a receiver for that portion of the debt 
 not yet due or of that portion oi the 
 premises as to which his rights to sell 
 have not yet accrued. 
 
 In Dow V. Memjihis & L. R. R. Co. 20 
 Fed. Rep. 261. it is held that a mort- 
 gagee after condition broken at com- 
 mon law is entitled to the possession of 
 the mortgaged premises and may main- 
 tain ejectment therefor. This law is 
 embodied in the mortgage in effect, 
 and where a mortgage embraces real, 
 personal and mixed property, the ap- 
 l^ropriate remedy is in equity. See 
 also Shej)ley v. Atlantic & St. L. R. Co. 
 55 Me. 395; First Nat. L. Ins. Go. v. 
 Salisbury, 180 Mass. 303; Warner v. 
 Ri-iiiif/ Fawn Iron Co. 3 Woods, 514; 
 North Carolina R. Co. v. Brew, 3 
 Woods, 713; State v. Northern C. R. 
 Co. 18 Md. 193. 
 
 See Ueinaheimer v. Dayton R. Co. 
 3 Ry. & Corp. L. J. 208. 
 
 In Keep V. Middfjan, L. S. R. Co. 6 
 
 18 
 
 Chicago L. N. 101, it is held that to 
 justify the ap[)ointmcnt of a receiver 
 in a case of foreclosure, one ingredient 
 is that the security is inadequate, and 
 another ingredient is that the mortga- 
 gor or party personally liable for the 
 debt must be shown to be irresponsi- 
 ble for any deficiency in the sale of 
 the mortgaged premises. 
 
 In Tyson v. WabaaJt. R. Co. 8 Diss. 
 247, it is said the mere fact that there 
 has been a default in the payment of 
 the debt is not ground for the appoint- 
 ment of a receiver, unless there be a 
 stipulation in the mortgage that the 
 mortgagee shall have the rents. Mr. 
 Justice Harlan says (page 254): "Upon 
 examination of these, and other au- 
 thorities cited, it will be found that 
 the action of the courts has depended 
 largely upon the peculiar circum- 
 stances of each case. In no instance 
 has the action of the court in appoint- 
 ing or refusing to appoint a receiver 
 rested exclusively upon the technical 
 legal right of the parties." Mr. Jus- 
 tice Bradley, in Vose v. Reed, 1 Woods, 
 650, usesthe following language: "But 
 all the circumstances in the case are 
 to be taken into consideration, and if 
 the case be such that a greater injury 
 would ensue from the appointment of 
 a receiver than from leaving the prop- 
 erty in the hands now holding it, or 
 if any other considerations of propri- 
 ety or convenience rentier the appoint- 
 ment of a receiver im[)roper or inex- 
 pedient, none will be appointed." 
 
 In Union lYust Co. v. St. Louin, I. 
 M. & S. R. Co. 4 Dill. 114, the court 
 refused to appoint a receiver merely 
 upon a showing that there had been a 
 default in the payment of interest. 
 
 In Brassey v. New York & N. E. R. 
 Co. 9 Fed. Rep. 603, it is said that 
 an insolvent railroad corporation may 
 be put in the hands of a receiver when 
 the welfare of all interests clearly re- 
 quires it, even though no default has
 
 274 
 
 EECEIVERSHIPS. 
 
 actually been made by the Cdrpora- 
 tion in its ohliyalions to the plaintiH: 
 but where the default is imminent 
 and manifest and where the corpora- 
 tion is in peril of breakini^ up. 
 
 In Bnrlimjamev. Parce, 12 Hun, 144, 
 the court say : " To entitle a mortgagee 
 to have a receiver appointed, it must 
 appear that the mortgaged premises 
 are inadecjuate security for the debt 
 and that the mortgagor or other per- 
 son personally liable for the debt is 
 insolvent," on the authority of Syra- 
 cuse City Bank v. Tallman, 31 Barb. 
 201; Re Prime, 1 Barb. 306; Orjdens- 
 burg Bank v. Arnold, 5 Paige, 38; 
 Shotwell V. Smith, 8 Edw. Ch. 588. 
 See also Sea Ins. Co. v. Stehbens, 8 
 Paige, 5G5; Aalor v. Turner, 11 Paige, 
 436 ; Frelinyhuytien v. Golden, 4 Paige, 
 204. 
 
 In Shotwell v. Smith, stq^ra, the vice 
 chancellor says: "Indeed, I consider 
 that the court has no authority to in- 
 terfere with a mortgagor's right to the 
 rents unless such rents as well as the 
 property have been pledged as secu- 
 rity for the debt, or there is a clear 
 want of security." 
 
 In Grant v. Phoenix Mut. L. Ins. Co. 
 121 U. S. 105, 30 L. ed. 905, it is held 
 that where the trust deed does not 
 convey the rents and profits of the 
 property, the court may appoint a re- 
 ceiver where the debtor is insolvent 
 and the mortgaged property insufh- 
 cient security and there is good cause 
 to believe that it would be wasted or 
 deteriorated. 
 
 In Callanan v. Shaio, 19 Iowa, 183, 
 it is held that it must clearly appear 
 that the whole mortgaged premises 
 are insufficient in value to pay the 
 debt or that the court should take 
 control of the estate to protect the 
 rights of a party who has a clear, 
 strong claim against it. The court 
 say: " In this state the mortgagor 
 being in possession, this possession 
 
 under the legal estate should not be 
 disturbed by the appointment of a re- 
 ceiver unless indeed in cases of fraud 
 clearly proved or danger to the mort- 
 gagee (having a strong claim), if the 
 intermediate estate or possession 
 should not be brought under the 
 court. In any case the receiver is 
 appointed against the holder of the 
 legal title with reluctance." Tliis 
 case is based on LUryd v. Passinyliam, 
 16 Ves. Jr. 59; Smith v. Smith, 2 
 Younge & C. 351 ; Knight v. Duplent^in, 
 "2 Ves. Sr. 360; Toldewy v. Colt, 1 
 Younge & C. 021. 
 
 In Morrison v. Buckner, Hempst. 
 442, the court say, adopting the lan- 
 guage of Coote on Mortgages in part 
 (Law Lib. 256): "If the mortgagee 
 having the legal estate neglect to take 
 the precaution of an agreement with 
 the mortgagor for the appi>iutment of 
 a receiver he cannot obtain such ap- 
 pointment by order of the court, but 
 must proceed to eject the mortgagor. 
 Now, without adopting this rule to its 
 fullest extent, it is proper to observe, 
 generally, that receivers in mortgage 
 cases will never be appointed unless 
 it is clearly shown that the security is 
 inadequate or that the rents and prof- 
 its have been expressly pledged for 
 the debt; or that there is imminent 
 danger of waste, removal, or destruc- 
 tion of the properly. There must 
 be some very strong special reason 
 for it." 
 
 In Ileavilon v. Farmers' Bank, 81 
 lud. 249, it is said that a petition for 
 the appointment of a receiver must 
 show affirmatively the facts which 
 make the receiver necessary and it 
 will not be sufficient to allege ignor- 
 ance of material facts, nor allege a 
 legal conclusion without stating the 
 facts upon which it is predicated. 
 
 In Schreiber v. Carey, 48 Wis. 208, 
 where by the law of Wisconsin the 
 mortgagor retains the legal title until
 
 RECEIVERSHIP IN FORECLOSURE OF MORTGAGES. 
 
 !(0 
 
 foreclosure sale a receiver may be ap- 
 pointed in a proper case when it is 
 necessary to protect the mortgagee's 
 interest. And when the propertj' was 
 more than sufficient in value to pay 
 the amount due under the mortgage, 
 yet if it appear that the property 
 could not be sold in parcels, and that 
 the whole mortgage debt v;ould be- 
 come due before there could be a sale 
 made under the judgment, so far as 
 the appointment of a receiver is con- 
 cerned the whole debt would be 
 treated as due. 
 
 In Finch v. Hourjldon, 19 Wis. 149, 
 it appeared that the mortgage debt 
 was due and considerable amount of 
 interest unpaid, and the owner of the 
 equity of redemption who was in pos- 
 session neglected to pay the taxes, and 
 the evidence tended to show that he 
 had endeavored to obtain a tax deed 
 upon the property to defeat the mort- 
 gage, and also that the mortgaged 
 premises were inadequate security and 
 the parties personally liable were un- 
 able to pay the deficiency that might 
 arise upon the sale, it was held that a 
 receiver was proper. 
 
 In Boston & P. R. Corp. v. Neio 
 York & N. E. R. Co. 13 R. I. 220, 
 where the mortgagee was in possession 
 and a suit to redeem was brought by 
 the mortgagor a receiver was refused 
 as against the mortgagee so long as 
 there was a balance due under the 
 mortgage unless it was shown thai the 
 mortgagee was mismanaging the prop- 
 erty. 
 
 See further inadequate security, 
 § 174, poHt. 
 
 In Stockman v. Wallits, 30 N. J. Eq. 
 449, it appeared that the owner of 
 part of the mortgaged premises re- 
 ceived the rents therefrom and refused 
 to apply ihem on account of the in- 
 terest due on the mortgage and ne- 
 glected to pay the taxes, and there 
 being no personal security and the 
 
 premises being insufficient a receiver 
 was appointed. 
 
 InWall Street F. Ins. Co. v. Loud, 20 
 How. Pr. 95, it appeared that the 
 mortgagor had conveyed the premises 
 subject to the mortgage and it was 
 held that he was not in a position to 
 object to a receiver, having no interest 
 in the rents and profits nor the pos- 
 session, and where it is shown that 
 his grantee neglected to pay taxes, 
 that a sale therefore had been made, 
 that the insurance of the buildings 
 had been neglected and the mortg.agor 
 being insolvent a case is presented for 
 the appointment of a receiver. 
 
 In Bolles v. I)tiff, 38 How. Pr. 492, 
 it is held that where anything is due, 
 the mortgagee in possession will not 
 be deprived of such possession by the 
 appointment of a receiver and par- 
 ticularly so where he is responsible 
 and able to account for and pay any 
 excess of rents collected after the pay- 
 ment of his debt, or will give security 
 to do so. If, however, it appears that 
 the mortgagee is irresponsible, or that 
 the rents and profits would be lost or 
 be in danger of loss, or was commit- 
 ting waste or materially injuring the 
 premises a different rule would pre- 
 vail. 
 
 In Milwaukee & M. R. Co. v. Sout- 
 ter, 69 U. S. 2 Wall. 510, 17 L. ed. 
 900, it is held that while the appoint- 
 ment of a receiver ordinarily rests 
 wholly within the discretion of the ap- 
 pointing court yet such rule is not al- 
 ways absolutely true, and under the 
 facts and circumstances of the case it 
 was held the refusal to api)oiut was a 
 judicial error. 
 
 Failure of the mortgagee to pay 
 taxes, insurance or interest, and in- 
 adequacy of security and diversion of 
 the income are adequate grounds for 
 a receiver in a foreclosure proceeding. 
 S1iej)hcrd v. Pepper, 133 U. S. 020, 33 
 L. ed. 700.
 
 276 
 
 RECEIVERSHIPS. 
 
 (c) Where the trustee in express terms has power upon default, 
 to take possession of the mortgaged ])rcniises, and he refuses so 
 to do. ' 
 
 (d) Wliere the leo;al title to the property mortijja^ed remains in 
 the niorto-ai^or, and the morto;ai!;ce has only an e(]uital)le title, and 
 there are equitable <;-ronnds for relief, such as inade(puicy of se- 
 curity, waste and nonpayment of taxes." 
 
 •Alllioiigh a trustee may bave a 
 right to take possession under the 
 trust deed, yet he may waive this 
 right and file a bill to foreclose. 
 Williamson v. New Albany, etc. E. Co. 
 
 1 Biss. 198. See also Scott v. Clinton 
 & 8. It. Co. 6 Biss. 52'J. A demand 
 on the trustees was made after default 
 thai they should take possession of 
 the trust property, and a refusal on 
 their part authorizes a bill by the 
 stockholders requiring them to take 
 possession, and a failure to do so jus- 
 tifies the appointment of a receiver. 
 Wilmer v. Atlanta, B. A. L. B. Co. 2 
 Woods, 409; Warner v. Rising Fawn 
 Iron Co. 3 Woods, 514. 
 
 In Ellis V. Boston, II. & E. R. Co. 
 107 Mass. 1, it was held that the dis- 
 claimer of a trust by one trustee vests 
 the estate in the remaining trustees, 
 without any express provision in the 
 deed therefor. See also O'Beilly v. 
 Alderson, 8 ITare, 101; Eato7i v. Smith, 
 
 2 Beav. 23G; Be Moravian Soc. 26 
 Beav. 101. In Minnesota the holder 
 of a mortgage does not have such title 
 as authorizes a suit at law for posses- 
 sion and in such case a foreclosure is 
 the appropriate remedy, but where the 
 mortgage or trust deed gives the trus- 
 tees the right to take possession on de- 
 fault and they fail to do so a receiver 
 cannot be appointed in the foreclosure 
 proceeding. An action of ejectment 
 under the terms of the mortgage or 
 trust deed could have been sustained. 
 Bicev.St.Pmd tfc P.B. Co.24: Minn. 404. 
 
 ''Ilollenbeck v. Doiinell, 29 Hun, 84, 
 
 94 N. Y. 342; Kirchner v. Fairlcy, 80 
 N. C. 34; Durant v. Orowcll, 97 N. C. 
 3(J7; Grant V. Plmnix Mat. L. Ins. Co. 
 121 U. S. 105, 30 L. ed. 905; Konnize 
 v. Omaha Hotel Co. 107 U. S. 378, 27 
 L. ed. GIO; Frmlman's Sav. & T. Co. 
 V. Shepherd, 127 U. S. 500. 32 L. ed. 
 160; Cone v. Combs, 18 Fed. Rep. 570. 
 
 And see, as to the legal title remain- 
 ing in the mortgagor and the mort- 
 gagee being entitled to an equitable 
 interest, Packer v. Bochester & 8. B. 
 Co. 17 N. Y. 295; Kottright v. Cady. 
 21 N. Y. 360; Uubbell v. Moulson, 53 
 N. Y. 228; Syracuse City Bank v. Tall- 
 man, 31 Barb. 201; Sherman v. Willett, 
 42 N. Y. 146; Trimm v. Marsh, 54 
 N. Y. 599. 
 
 Mr. Jones in his work on Mortgages 
 (vol. 2, § 1521, 4th ed.) lays down the 
 rule upon this subject briefly and 
 concisely, in the following language: 
 "The prevailing rule in those states 
 in which the legal title is regarded as 
 being in the mortgagor until foreclos- 
 ure is that a receiver will be appointed 
 upon the application- of a mortgagee 
 after default, without reference to his 
 legal rights, whenever sufllcient equi- 
 table grounds for this relief are shown, 
 which are in general that the premises 
 are an inadequate security for the 
 debt and the mortgagor, or other per- 
 son in possession, who is personally 
 liable for the debt is unable to make 
 good the deficiency." In support of 
 the proposition the following cases 
 are cited: Scott v. Ware, 65 Ala. 174; 
 Lehman v. Tallahassee Mfg. Co. 64
 
 RECEIVERSHIP IN FORECLOSURE OF MORTGAGES. 277 
 
 (e) Where l^y statute the mortgagee is entitled to the appoint, 
 ment of a receiver. ' 
 
 (f) The necessity for the appointment, the special grounds npon 
 which the relief is asked, must be clearly alleged and shown.^ 
 
 (g) Where there is a contest as to the property covered by the 
 
 Ala. 5G7: Price v. Dorndy, 34 Ark. 285; 
 Haas V. Chicago BMg. Soc. 89 111. 498; 
 White V. Griggs, 54 Iowa, 650; Burnett 
 V. Nelson, 54 Iowa, 41 ; Myton v. Dav- 
 enport, 51 Iowa, 583; Sleeper v. Iselin, 
 59 Iowa, 379; Broton v. Chase, Walk. 
 Cb. (Mich.) 43; Myers v. Estell, 48 
 Miss. 372; Whitehead v. Wooten, 43 
 Mif^s. 523; PhilUiis v. Eiland, 52 Mi.ss. 
 721; Woolley v. Holt, 14 Busli, 788; 
 Warwick v. Ilammell, 82 N. J. Eq. 
 427; Bank of Ogdensburg v. Arnold, 5 
 Paige, 39; Shoticell v. Smith, 3 Edw. 
 Ch. 588; Sea Ins. Co. v. Stebbins, 8 
 Paige, 565; Jenkins v. Ilinman, 5 
 Paige, 309; TFaj-ne?- v. Oouverneur, 1 
 Barb. 36; Syracuse City Bank v. Ta^^ 
 wiara, 31 Barb. 201; Patten v. Acces- 
 sor?/ Ti-ansit Co. 4 Abb. Pr. 235; BoUes 
 V. Z>(/1', 35 How. Pr. 492; Smith v. 
 Tiffany, 13 Hun, 671. 
 
 ' See Jones on Mortgages, vol. 2, 
 §§ 1521, 1522, and statutes and cases 
 there cited. 
 
 Under the Judicature Act 1873 
 (§ 25, sub sec. 8), a mortgagee in pos- 
 .session is entitled to the appointment 
 of a receiver, notwithstanding he has 
 been paid all his interest and costs 
 out of rents received while in posses- 
 sion, and that he has surplus rents in 
 his hands. Mason v. Westoby, L. R. 
 32 Ch. Div. 206. But see Re Pry- 
 therch, L. R. 42 Ch. Div. 590, where 
 it is held that if a mortgagee has once 
 taken po.s.session he cannot relinquish 
 at pleasure; that having assumed the 
 responsibilities attaching to posses.si()n 
 he cannot at his own pleasure get rid 
 of them and as a general rule the court 
 
 will not by appointing a receiver as- 
 sist him to do so. 
 
 ' Ileaviion v. Farmers' Bank, 81 Ind. 
 249; First Nat. Bank v. Cage, 79 111. 
 207, where it is said: "The bill con- 
 tains no clear and distinct charge that 
 defendants have any particular prop- 
 erty or things in action in their pos- 
 session, and there can be no necessity 
 for a restraining order of court and 
 still less reason can there be for the 
 appointment of a receiver." 
 
 In Callanan v. Shaio, 19 Iowa, 183, 
 it is held that a receiver will not be 
 appointed where it does not clearly 
 appear that the whole mortgaged 
 premises are insufficient in value to 
 pay the debt, or that the court should 
 take control of the estate to protect 
 the rights of a party who has a clear, 
 strong claim against it. 
 
 In Morrison v. Buckner, Hempst. 
 442, the court say: "It is proper to 
 observe generally that a receiver ia 
 mortgage cases will never be ap- 
 pointed unless it is clearly shown that 
 the security is inadequate, or that the 
 rents and profits have been expressly 
 pledged for the debt (Shotwell v. 
 Smith, 3 Edw. Ch. 588), or that there 
 is imminent danger of waste, re- 
 moval or destruction of the property. 
 There must be some strong special 
 reason for it. Ilackett v. Snow, 10 Ir. 
 Eq. Rep. 220. 
 
 ■■'Wall Street F. Ins. Co. v. Loud, 20 
 How. Pr. 95; Kslava v. Crampton, 61 
 Ala. 507. TJie right of the court of 
 equity to try disi)iited titles to prop- 
 erty is doubtful in any ca.se and it
 
 278 
 
 RECEIVERSHIPS. 
 
 (li) Where tlie morti>;i.i^ee or Lis grantee is in possession and ib 
 guilt}^ of fraud or bad faith.' 
 
 (i) "Where the mortga^'or is committino- waste.' 
 (i) Where the principal is not due l)ut an instalhuent is of in- 
 terest, and the premises are not divisible;'' nut so however if the 
 preniiunis are divisible.* 
 
 § 173. Wlieii not ai)iMn'nted. 
 
 In foreclosure proceedings the general principles upon which 
 the court bases its action in refusing to appoint a receiver may 
 be stated in general terms as follows : 
 
 (a) Where the legal title is in the mortgagee, as in JNew Jersey, 
 and he has an adecpiate legal remedy.^ 
 
 will not do so except where the com- 
 mon law remedies are clearl}' inade- 
 quate. MerchanW & M. Nat. Bank v. 
 Kent, 43 Mich. 292. 
 
 Wortlei/eu v. Hatlunray, 11 N. J. 
 Eq. 39. In this case it is held that 
 the rule in New York that inade- 
 quacy of security and insolvency of 
 the mortgagor are suflicient to obtain 
 the appointment of a receiver, has 
 never been adopted in New Jersey, 
 but if the inadequacy grows out of 
 the fact of thebuildings being burned, 
 or being permitted to decay, or in 
 case of waste, and the depreciation 
 grows out of the fault or negligence 
 of the mortgagor, or tenant in posses- 
 sion, or fraud on the part of the mort- 
 gagor, or bad faith in misappropriat- 
 ing the rents and profits to other pur- 
 poses than that of keeping down the 
 interest, then the court may properly 
 appoint a receiver, though with cau- 
 tion. And see as to waste, Brasted v. 
 Sutton, 30 N. J. Eq. 462. 
 
 * Brasted v. Sutton, supra. 
 
 3 Quincy v. Cheeseman, 4 Sandf. Ch. 
 433. 
 
 ^ Qiiinry v. Cheeseman, supra; Bank 
 of O'jdensburg v. Arnold, 5 Paige, 38; 
 Morris v. Branchaud, 52 Wis. 187; 
 Hollenbeck v. Donnell, 94 N. Y. 342, 
 
 reversing 29 Hun, 94. A receiver 
 maybe appointed before the maturity 
 of the debt if default is imminent and 
 unavoidable, and it is necessary to 
 prevent a destruction of the business. 
 Thompson v. Natchez, W. & S. Co. 68 
 Miss. 423. Cf. Burrows v. Malloy, 3 
 Jones & L. 521, 8 Ir. Eq. Rep. 482; 
 Chinnery v. Evans, 11 H. L. Cas. 115. 
 
 *In McLean v. Fre.sley, 56 Ala. 211, 
 it is held that a receiver of the rents 
 and profits of mortgaged premises will 
 sometimes be appointed at the instance 
 of the mortgagee in aid of an action 
 at law to recover the possession when 
 the mortgagor is insolvent, but when 
 the mortgagee having bought at his 
 own sale under the power in the mort- 
 gage files a bill to have the uncer- 
 tainty of his title resolved by a con- 
 firmation of the sale or a resale, he 
 cannot have a receiver of the rents 
 and profits because the mortgagor is 
 committing waste and is insolvent. 
 
 In Johnson v. Tucker, 2 Tenn. Ch. 
 398, a judgment creditor who filed his 
 bill to reach the equitable interest of 
 his debtor in realty previously mort- 
 gaged was held to be entitled to a re- 
 ceiver where the rents are required 
 for the payment of his debt, subject 
 however, to the rights of the prior
 
 RECEIVERSHIP IN FORECLOSURE OF MORTGAGES. 279 
 
 mortgagee to take possession; but the 
 receiver will be dispensed with upon 
 the owner of the properly giving bond 
 with security to account for the rents; 
 Sea Ins. Co. v. Stebbins, 8 Paige, 565; 
 Overton v. Bigelow, 10 Yerg. 54; Will- 
 iams V. JSoland, 2 Tenn. Ch. 151. In 
 this case it was held that failure of 
 the party in possession of land in 
 litigation to pay the taxes is sufficient 
 ground for the appointment of a re- 
 ceiver. It was also held that the ap- 
 pointment of a receiver for an equita- 
 ble creditor must always be without 
 prejudice to persons having prior legal 
 estates or prior equities. Dam:^ v. 
 Duke of Marlborough, 2 Swanst. 118; 
 Berney v. SeicelL 1 Jac. & W. 648; 
 Corileyeu v. Hathaway, 11 N. J. Eq. 
 39; Anonymous, 6 Ves. Jr. 287; Angel 
 v. SmUh, 9 Ves. Jr. 336. The rights 
 of a prior mortgagee may be asserted 
 by a suit at law or by applying to be 
 examined pro inter esse suo. 
 
 In Olivers. Decatur, 4Cranch, C. C. 
 458, in a suit to foreclose a legal mort- 
 gage, the court refused to grant an in- 
 junction and appoint a receiver where 
 the mortgagor was in po.ssession, re- 
 ceiving the rents and profits, the de- 
 fendant being in no default for not 
 an.«wering. 
 
 In Best V. Schermier, 6 N. J. Eq. 
 154, the court refused toapjioint a re- 
 ceiver on the filing of a bill to fore- 
 close a mortgage, holding that the 
 mortgagor was entitled to the rents 
 while he was in possession of the 
 premises by his tenants. 
 
 In Corileyeu v. IIatliaii'a,y , 11 N. J. 
 Eq. 39, it is held that the rule of New 
 York where premises are inadequate 
 security and the mortgagor is insolv- 
 ent the court will appoint a receiver 
 has not been adopted in the slate of 
 New Jersey by the chancery courts, 
 on the ground tliat the first mortgagee 
 having the legal rigiit to the rents and 
 profits has his remedy at law by eject- 
 
 ment. That a subsequent mortgagee 
 has a better right to a receiver because 
 he has no right to possession at law as 
 against his prior mortgagee, and if the 
 first mortgagee refu.ses to exercise his 
 legal right the court may interfere on 
 application of the subsequent mort- 
 gagee, but without prejudice to the 
 prior mortgagee or other incum- 
 brancer, and the receiver will be di- 
 rected in such case to keep down the 
 interest of the prior incumbrance. It 
 was also held that mere inadequacy in 
 the value of the mortgaged premises 
 and insolvency of the mortgagor did 
 not constitute sufficient ground for 
 the appointment. In any case, how- 
 ever, the appointment is made with 
 great caution and where there is a 
 necessity for it. 
 
 In Frisbie v. Bateman, 24 N. J. Eq. 
 28, it is held that in an ordinary fore- 
 closure suit mere inadequacy in value 
 and insolvency of the mortgagor are 
 not a sufficient foundation for the ap- 
 pointment of a receiver. See also 
 Best V. Schermier, 6 N. J. Eq. 154. 
 This decision is based upon the ground 
 that where a man takes a mortgage 
 security for his debt and permits the 
 mortgagor to remain in possession, if 
 tJiere is default in payment the mort- 
 gagee must appropriate the property 
 in the usual way to the payment of 
 the debt. If he is a first mortgagee 
 and wishes possession he must take 
 his legal remedy by ejectment. If 
 he is a second mortgagee he takes his 
 security with the disadvantage of a 
 second incumbrancer. 
 
 In Mahon v. Crothers, 28 N. J. Eq. 
 567, the court say: "It is very clear 
 that when the first mortgagee has 
 come into this court to foreclose his 
 mortgage and presents a case which 
 would entitle a subsequent mortgagee, 
 according to the practice, to a receiver 
 it is not according to the principles 
 and practice of lids court to refer him
 
 280 
 
 RECEIVERSHIPS. 
 
 to the courts of law for means to reach 
 the rents aud prolils. The complaiu- 
 ant in this case shows that he has no 
 personal security for his mortgage 
 debt; that the mortgaged premises are 
 insullicient security; that the mort- 
 gagor who is in receipt of the rents 
 and profits not only has not kept down 
 tlie interest but has not paid taxes, 
 wiiereby a lien on the premises there- 
 for paramount to that of the mortgage 
 and bearing a high rate of interest 
 has been created and still exists; a 
 lien which unless the property be re- 
 deemed therefrom will extinguish the 
 mortgage, he is entitled to a receiver." 
 
 In Brasted v. Sutton, 30 N. J. Eq. 
 462, it appeared that an application 
 was made through a court of equity 
 to aid a mortgagee who was prosecut- 
 ing an action at law to obtain posses- 
 sion of the property under his mort- 
 gage and where it appeared that the 
 mortgagor was insolvent and had re- 
 moved from the premises and given 
 possession of the premises to another 
 who occupied them for his own use 
 without paying rent,, and it appeared 
 also that the mortgagor had committed 
 waste and threatened to commit more 
 and that the premises were insuffi- 
 cient security, a receiver was ap- 
 pointed. 
 
 In Warwick v. Jlammell, 32 N. J. 
 Eq. 427, a second mortgagee obtained 
 an order for the sale on foreclosure 
 the mortgagor being in possession of 
 the premises and insolvent and no 
 taxes or interest on any of the incum- 
 brance having been paid for three 
 years, the second mortgagee was held 
 to be entitled to the appointment of a 
 receiver pending the litigation. 
 
 Williainsv. Robinson, 16 Conn. 517. 
 The foregoing decisions in New Jer- 
 sey are not in harmony with the gen- 
 eral rule prevailing in the different 
 states where the mortgagor is regarded 
 as the owner of the legal title until 
 
 foreclosure. In such states a receiver 
 will be appointed upon the a))pliea- 
 tion of the mortgagee after default 
 without reference to the legal rights 
 of the mortgagee whenever adequate 
 equitable grounds for the mortgagee's 
 relief are shown, such as that the 
 premises are an inadequate security 
 for the debt aud the mortgagor or 
 other person in possession who is per- 
 sonally liable for the indebtedness is 
 unaljle to pay the delicieucy arising 
 under the sale. 
 See also Alabama: Scott v. Ware, 
 65 Ala. 174; Lelivym v. Tallahassee 
 Mfg. Co. 64 Ala. 567. 
 Arkansas: Price \. Doicdy, 34 Ark. 
 
 285. 
 Iowa: White v. Griggs, 54 Iowa, 
 650; Barnett v. Nelson, 54 Iowa, 
 41; Myton v. Davenport, 51 Iowa, 
 583; Sleeper V. Iselin, 59 lovi'a, 371). 
 Illinois: Haas v. Cldcago BUlg. Soc. 
 
 89 111. 498. 
 Indiana: Ilursh v. JJursh, 99 Ind. 
 500; Ponder v. Tate, 90 Ind. 330. 
 Kentucky: Woolley v. Uolt, 14 Bush, 
 
 788. 
 Michigan: Broicn v. Chase, Walk. 
 
 Ch. (Mich.) 43. 
 Mississippi: Myers v. Estell, 48 
 Miss. 372, per Simrall, J.; White- 
 head, V. Wooten, 43 Miss. 523, 
 520: Phillips v.Eila?ul,52 Miss. 721. 
 New Jersey: Warwick v. Hammill, 
 
 32 N. J. Eq. 427. 
 New Yoik; Bank of Ogdenshurg v. 
 Arnold, 5 Paige, 39; Shotwell v. 
 Smith, 3 Edw. Ch. 588; Sea Ins. 
 Co. V. Stehbins, 8 Paige, bQ>b;War- 
 ner v. Goiiverneur, 1 Barb. 36, 38; 
 Jenkins v. Ilinman, 5 Paige, 309; 
 Syracuse City Bank v. Tollman, 
 31 Barb. 201; Patten v. Accessory 
 Transit Co. 4 Abb. Pr. 235, 13 
 How. Pr. 502; Bolles v. Duff, 35 
 How. Pr. 481; Smith v. Tiff'any, 
 13 Hun, 671; Ilollenbeck v. Donell, 
 29 Hun, 94, 94 N. Y. 342.
 
 rix;eiveiisiiip in foreclosure of mortgages. 2Si 
 
 (b) Where by the terms of the mortgage no right to a receiver 
 is uivcn.' 
 
 North Carolina: Kerchner v. Fair- 
 ley, 80 N. C. 24; JJiirant v. 
 Civwell, 97 N. C. 5507. 
 Tennessee: Ilenshaw v. Wells, 9 
 
 Humph. 5G8. 
 
 Uniied Stales: Grant v. riimnix 
 
 Mat. L. Im. Co. 121 U. S. 105, 30 
 
 L. ed. 905; Kouutze v. Omaha 
 
 Ilolel Go. 107 U. S. 378, 27 L. ed. 
 
 609; Frcedmaii's Sav. tfc 7\ Go. v. 
 
 Shepherd, 127 U. S. 494, 32 L. ed. 
 
 1G3; Gone v. Go7nbs, 18 Fed. Rep. 
 
 570, 5 McCrary, 651. 
 
 Wisconsin: Schreiber v. Carey, 48 
 
 Wis. 208: Morris v. Branchaud, 
 
 52 Wis. 187; Finch v. Hoiujhton, 
 
 19 Wis. 150. 
 
 In Hill V. Robertson, 24 Miss. 368, a 
 
 failure to pay a mortgage vests the 
 
 legal title in the mortgagee and carries 
 
 with it the right to the possession of 
 
 the mortgaged premises, thus giving 
 
 the legal possession to the person who 
 
 holds the legal title. See also Ilyman 
 
 V. Kelly, 1 Nev. 179. 
 
 In Broion v. Chase, Walk. Ch. 
 (Mich.) 43, it is held that before ap- 
 pointing a receiver of mortgaged 
 premises in a suit for foreclosure of a 
 mortgage the court must be satisfied, 
 first, that the premises are insufficient 
 to pay the debt, and second, that the 
 party personally liable is insolvent so 
 that an execution for the balance due 
 from the sale would be unavailing. 
 And see Uaas v. Chicago <& Bldy. Soc. 
 89 111. 498. 
 
 ' In Frcedman's Sav. & T. Co. v. 
 Shepherd, 127 U. S. 494, 32 L. ed. 16:'.. 
 the mortgage contained no provision 
 for the iJaymont of rents and profits 
 of the mortgaged premises while the 
 mortgagor remained in possession, 
 but it was belli that the mortgagee 
 waa not entitled to the rents and 
 
 profits of the mortgaged premises as 
 against the owner of the equity of re- 
 demption until such mortgagee takes 
 the actual possession or until it is 
 taken in his behalf, even though the 
 income may be expressly pledged as 
 security for the mortgage debt with 
 the right in the mortgagee to take pos- 
 session upon failure of the mortgagor 
 to perform the conditions of the mort- 
 gage. In this case the deed did not 
 give the mortgagee or the trustees the 
 right, immediately upon default, to 
 take possession and appropriate the 
 rents of the property, but only gave 
 the trustees authority when such de- 
 fault occurred to sell upon short no- 
 tice and in that way oust the mort- 
 gagor and suspend his right to further 
 appropriate the income of the prop- 
 erty, even if the deed had expressly 
 pledged the income as security for the 
 debts named the mortgagor, accord- 
 ing to the doctrines of the cases cited 
 would have been entitled to the in- 
 come until at least possession was de- 
 manded under the deed; or until his 
 possession was disturbed by the sale 
 under the deed of trust or in advance 
 of a sale by having a receiver ap- 
 pointed for the benefit of the mort- 
 gagee. As was said in Kountze v. 
 Omaha Hotel Co. 107 U. S. 395, 27 L. 
 ed. 610, "Courtsof equity always have 
 the power where the debtor is insolv- 
 ent and the mortgaged property is in- 
 sufficient security for the debt and 
 there is good cause to believe that it 
 will be wasted, or deteriorated, in the 
 hands of the mortgagor, as by culling 
 of timber, suffering dilapidation, etc., 
 to take cliarge of the property by 
 means of a receiver and preserve not 
 only the crops, but the rents and 
 profits for the sati.sf action of the debt.
 
 282 
 
 RECEIVERSHIPS. 
 
 (c) Where the statute gives the mortgagor the right of posses- 
 sion and use until the foreclosure is complete by a sale of the 
 mt)rtgage premises, and sometimes until the expiration of the 
 statutory periud of redemption.' 
 
 When justice rcciuires lliis course to 
 be pursued and it is resorted to by the 
 mortgagee it will give him ample pro- 
 tection." See also Dow v. Memphis <& 
 L. li. B. Co. 124 U. S. 6.J2, 31 L. ed. 
 56G; Sftge v. Memphis & L. R. R. Co. 
 125 U. S. 361. 31 L. ed. GM; Gmnt v. 
 Phosnix Mvt. F. Ins. Co. 121 U. S. 105, 
 30 L. ed. 905; Teal v. Walker, 111 U. 
 S. 242, 28 L. ed. 416; Chiamry v. 
 Blnckman, 3 Dougl. 390; American 
 Bridge Co. v. Ileiddhach, 94 U. S. 798, 
 24 L. ed. 144; Galreston, II. & II. R. 
 Co. V. Cowdrey, 78 U. S. 11 Wall. 459, 
 20 L. ed. 199; Cilman v. lUiaois tfi 
 M. Teleph. Co. 91 U. S. 603, 23 L. ed. 
 405. 
 
 lu Cliadbourn v. Henderson, 2 Baxt. 
 460, where the maker of a mortgage 
 by its express stipulation is allowed 
 to retain possession of the property 
 until foreclosure, it is held that he 
 is entitled to the rents, and a receiver 
 should not be appointed in such case. 
 
 'In WJute V. Griggs, 54 Iowa, 630, it 
 is held that the morlgagee has a right 
 to the appointment of a receiver only 
 for the property upon which his 
 mortgage is a lion, and then only 
 where there is danger of its being lost 
 or materially injured or impaired in 
 value. He is not entitled to a receiver 
 to lake charge of the crops upon 
 mortgage premises. The fact that 
 the debtor has fraudulently disposed 
 of property upon which the creditor 
 had no lien is no ground for the ap- 
 pointment of a receiver to take pos- 
 session of property upon which lie 
 has no lien. See also Myton v. Duven- 
 j)ovl, 51 Iowa, 583. 
 
 In Swan v. Mitchell, 82 Iowa, 307, 
 
 where the provision in the mortgage 
 was for the conveyance of the " tene- 
 ment, hereditiments, and ai)purten- 
 ances threunto belonging, and the 
 rents, issues, products, and protits 
 thereof," and giving the mortgagee 
 upon the default of the mortgagor in 
 the payment of interest or of other 
 covenants mentioned the right to take 
 possession of the properly and rent or 
 cultivate the same, is not sufficient 
 ground of itself in a foreclosure pro- 
 ceeding to warrant the appointment 
 of a receiver of the property during 
 the period of redemption as against a 
 lessee in possession thereof under a 
 lease covering such period and for 
 which the rent has been paid. 
 
 In Union Mut. L. Ins. Co. v. Union 
 Mills Plaster Co. 37 Fed. Rep. 286, 
 3 L. R. A. 90, it was held that mere 
 disuse of a manufacturing plant under 
 an agreement with other manufactur- 
 ers to restrict production, though 
 attended with decay and dilapidation 
 inseparable from disuse, is not such 
 distruction or waste as eniitles the 
 mortgagee to ask for a receiver. To 
 justify such an appointment the 
 waste must be serious and the danger 
 of destruction or impairment of the 
 security imminent. Pullman v. Cin- 
 cinnati & C. A. L. R. Co. 4 Biss. 47; 
 Morrison v. Buckner, Heinpst. 442; 
 Beverly v. Brooke, 4 Gratt. 187; 
 Wagar v. Stone, 36 Mich. 364. In 
 the latter case it was held that the 
 mortgage in Michigan conveyed no 
 title to the mortgagee, but is a secur- 
 ity merely for the debt, and the mort- 
 gagee before foreclosure has no legal 
 interest in the mortgaged premises
 
 RECEIVERSHIP IN FORECLOSURE OF MORTGAGES. 
 
 283 
 
 (d) Where the allegations of the bill or petition npon wliicli 
 the appointment of a receiver is sought, are denied, or wliere the 
 
 and is not entitled to the possession. 
 See also Lee v. Clary, 38 Mich. 223; 
 Ilazeltir.e v. Granger, 44 Mich. 503; 
 Ren.tUng v. Waterman, 46 ]\Iich. 107; 
 Morse v. Bijam, 55 Mich. 594. 
 
 The mortgagor being entitled under 
 the statute (Comp. L. § G2G3) to pos- 
 session and subsequently to the rents 
 and profits of the mortgaged premises 
 until such time as his title is dive.sted 
 by a perfected foreclosure it is not 
 competent to cut short his right in 
 this regard by means of a receiver. 
 Wagar v. Stone, supra; and a receiver 
 cannot be appointed after default to 
 take the rents and profits, although 
 the mortgage so stipulates. Hazeltine 
 V. Granger, 44 Mich. 503, and see 
 Beecher v. Marquette & P. Rolling Mill 
 Co. 40 Mich. 307. If, however, the 
 mortgagor voluntarily puts the mort- 
 gagee in possession he cannot treat 
 the possession as wrongful and bring 
 ejectment without notice or payment. 
 Reading v. Waterman, 46 Mich. 107; 
 Morse v. Byam, 55 Mich. 594. See 
 also upon the doctrine of the rights of 
 the mortgagor and mortgagee in this 
 state, Hogsett v. Ellis, 17 Mich. 363; 
 Ladue v. Detroit & M. R. Co. 13 Mich. 
 380; Van Ilusan v. Kanouse, 13 Mich. 
 303; Caruthers v. E.um'plirey , 12 Mich. 
 270. 
 
 It will be noticed that in Michigan 
 (Comp. L. § 62G3) the statute forbids 
 ejectment by the mortgagee before a 
 foreclosure absolute. It is also held 
 in Beeclier v. Marquette & P. Rolling 
 Mill Co. svpra, that an order denying 
 the appointment of a receiver in a 
 foreclosure suit is interlocutory and 
 therefore not appealable. And in the 
 same case it is held, also, that if the 
 default is not admitted it cannot be 
 determine*! upon a motion to appoint 
 a receiver. 
 
 In Guy V. Ide, 6 Cal. 99, under a 
 statute which forbids a mortgagee 
 from recovering a mortgaged estate 
 and confines his remedy to a foreclo- 
 sure, it was held that the same reason 
 does not exist, as by the English rule, 
 for appointing a receiver to collect 
 the rents and profits pending the 
 litigation for the reason that the mort- 
 gage is considered as only a security 
 for the debt, and that the estate re- 
 mains that of the mortgagor in the 
 character of owner, and must con- 
 tinue to remain so with all the inci- 
 dents of ownership until by a fore- 
 closure and sale a new owner is 
 substituted. 
 
 In Uyman v. Kelly, 1 Nev. 179, it 
 is said that courts of equity upon the 
 filing of a bill to foreclose a mortgage 
 have usually appointed a receiver 
 where there was an allegation that 
 the property mortgaged was insufli- 
 cient to pay the debt and the mortga- 
 gor was insolvent. If in addition to 
 this it appears there was a specific 
 pledge of the rents and profits to keep 
 down the interest and they were being 
 diverted, it always furnished a strong 
 additional reason for the appointment 
 of a receiver. That the remedy in 
 Nevada of ejectment having been 
 abolished by statute and the mortga- 
 gee confined to his remedy to fore- 
 close, it was held to be reason for a 
 more liberal exercise by the chan- 
 cellor of the power to appoint a re- 
 ceiver, liolding contrary to the doc- 
 trine in California under a similar 
 statute in the case of Guy v. Idc, G 
 Cal. 99, and the appointment of a re- 
 ceiver was sustained. 
 
 In Adair v. Wright, IG Iowa, 385, 
 it was held that where the evidence 
 showed tiiat the mortgaged property 
 was not gomg to waste or in need of
 
 284 
 
 RECEIVERSHIPS. 
 
 amount due is in dispute and the answer denies the alleviations of 
 the plaintiff as to the inadequacy of the secul■it3^' 
 
 (e) AVhere the insufficiency of the pro})erty covered by the 
 morto-ao-e is shown, but the proof fails to show that the mort- 
 gagor or other person liable for the mortgage debt is insolvent." 
 
 repairs but that it was in compara- 
 tively a good state of preservation, it 
 was lield that the order appointing a 
 receiver should be vacated. 
 
 ' In Callanan v. Shaw, 19 Iowa, 183, 
 it was held that a receiver would not 
 be appointed on the application of a 
 mortgagee to take possession of mort- 
 gaged premises, where it does not 
 clearly appear that the whole mort- 
 gaged premises are insufficient in 
 value to pay the debt, or that the 
 court should take control of the es- 
 tate to protect the rights of a party 
 who has a clear, strong claim against 
 it. The court say: "Formerly the 
 mortgagee held the legal title and was 
 entitled to possession. Under owr law 
 the rule is changed and the mortgagor 
 has or is entitled to both, and this is 
 emphatically so as to the homestead. 
 Now the rule has been from an early 
 date at common law, as between the 
 mortgagee and mortgagor, that if the 
 mortgiigee says by his answer (in a bill 
 to redeem) that anything is due him, 
 the court will not disturb the posses- 
 sion; will not, upon the application 
 for the appointment of a receiver, set- 
 tle and ascertain the accounts between 
 them. See Qnarrell v. Beckford, 13 
 Ves. Jr. 377; Codrimjion v. Parker, 16 
 Ves. Jr. 469; Berney v. Seicell, 2 Jac. 
 & W. 629; Rowe v. Wood, 2 Jac. & \V. 
 r)53. In this state the mortgagor be- 
 ing in possession, this pos.sc'Ssion, 
 under the legal estate, should not be 
 disturbed by the appointment of a re- 
 ceiver, unless indeed in case of fraud 
 clearly proved or of danger to the 
 mortgagee (having a strong claim), if 
 the intermediate estate or possession 
 
 should not be brought under the care 
 of the court. In any case the receiver 
 is ap[)ointed against the holder of the 
 legal title with reluctance," Lloyd v. 
 Pamngham, 19 Ves. Jr. 59; Smith v. 
 Smith, 2 Younge & C. 351; Knight 
 V. Dupldms, 2 Ves. Jr. 360; Toldervy 
 V. Colt, 1 Younge & C. 621. 
 
 In Sea Ins. Co. v. Stthbins, 8 Paige, 
 567, it is held that to authorize the 
 court to interfere and appoint a re- 
 ceiver, where there is a mortgagor or 
 other party to the suit who is person- 
 ally liable for the debt secured by the 
 mortgage, in case the amount raised 
 upon the sale shall be found insufQ- 
 cient to pay the debt and costs, the 
 parly applying for such receiver must 
 not only satisfy the court that there 
 is a probability that the mortgaged 
 premises will not sell for enough to 
 satisfy the decree, but also that the 
 party who is thus individually liable 
 is himself irresponsible for the proba- 
 ble amount of such anticipated de- 
 ficiency, after paying all his other 
 just debts. 
 
 -In Pullan v. Cincinnati & 0. A. L. 
 B. Co. 4 Biss. 35, it is held that a re- 
 ceiver should only be appointed in a 
 strong case, and in no case of a mort- 
 gage ought a receiver to be appointed 
 if it is not clear that on a foreclosure 
 the mortgaged property will not bring 
 enough money to pay the debt, inter- 
 est and costs. 
 
 In Morrison v. Buckner, Hempst. 
 442, the general rule is said to be that 
 receivers will not be appointed in 
 mortgage foreclosure cases, unless it 
 clearly appears that the security is in- 
 adequate or there is immediate danger
 
 RECEIVERSHIP IN FORECLOSURE OF MORTGAGES. 285 
 
 (f) AVliere tlie rii^-lit of plaiutili to a furccludiire id not clearly 
 shown.' 
 
 of the waste, removal or destruction 
 of the niorlgii<r<'d property, or that the 
 rents aud i)r()tils have been expressly 
 pledged for the debt. See Sliotwell v. 
 Smith, '6 Edw. Ch. 588. 
 
 In Astor v. Turner, 2 Barb. 444, it 
 was held that where a bill is filed to 
 foreclose a mortgage on leasehold 
 premises, which are a scant security 
 for the debt and the mortgagor is insol- 
 vent and his assignee in possession, a 
 receiver will be appointed and the 
 owner of the equity of redemption be 
 directed to pay the occupation rent. 
 
 In Myers v. Estell, 48 Miss. 372, it 
 is said that if the mortgagee or bene- 
 ficiary in a trust deed do not stipulate 
 for the rents and profits of the estate 
 conveyed, ordinarily he is not entitled 
 to them, nor has he any claim upon 
 them until he has taken possession, 
 and that ordinarily, in the absence of 
 such a stipulation that the mortgagee 
 shall have the rents and profits, iie has 
 no claim thereto merely on the ground 
 that tlie debt is due and the title has 
 become absolute, but is only enlitled 
 to a receiver for the colketiou aud 
 approprialion of the rents where the 
 properly is insufficient to pay tlie 
 debt, and the mortgagor is insolvent 
 and unable to pay any deOcieucy tliat 
 might remain after the sale of the 
 property mortgaged. 
 
 In Quincy v. CJiCffU'man, 4 Sandf. 
 Ch. 404, it is held that where mort- 
 gaged premi.ses are so situated that 
 'hey cannot be sold in parcels, a re- 
 ceiver of the rents will be appointed 
 on a part only of the mortgage debt 
 falling due, provided the otlier requi- 
 site facts be made to appear, to wit: 
 tlie insullicieiicy of the premises in 
 value to pay the debt and costs and 
 the insolvency or irrespousiiiility of 
 
 the party personally liable to pay the 
 debt. 
 
 In Uyman v. Kelly, 1 Nev. 179, in- 
 adequacy of property to satisfy the 
 lien and insolvency of the mortgagor 
 was held to be a sufficient reason for 
 the appointment of a receiver and that 
 a specific pledge of the rents and 
 profits to keep down the interest, and 
 the diversion thereof, furnished an ad- 
 ditional reason for the appoiulmeni; 
 of a receiver. 
 
 In Brown v. Chase, Walk. Ch. 
 (Mich.)4:j, it is held that before ap- 
 pointing a receiver to take charge of 
 the mortgaged premises in a suit for 
 the foreclosure of a mortgage the 
 court must be satisfied, first, that the 
 premises are insufficient to pay the 
 debt, and second, that the party per- 
 sonally liable is insolvent so that an 
 execution for the balance due after 
 sale would be unavailable, aud that 
 security is presumed sufficient until 
 the contrary is shown, but the applica- 
 tion must be made within a reasonable 
 time or the delay will be construed as 
 a waiver of the right to make the ap- 
 plication. 
 
 ' In Quincy v. Cheeaeman, 4 Sandf. 
 Cli. 405, the court say: "the mortgage 
 debt must also be due so as to entitle 
 the complainant to a foreclosure of 
 the premises over which he .seeks the 
 apjioiutment of a receiver." 
 
 In IJullenbeck v. VonncU, 94 N. T. 
 343, it appeared that aliout one sixth 
 of the mortgage debt was due aud the 
 premises were divided into two nearly 
 equal parcels which could be sold 
 seiiarately without injury to the par- 
 ties interested. It was held that hh- 
 suining tlie appointment of a receiver 
 of the rents and profits was proper in 
 the absence of a specific pledge thereof
 
 286 
 
 RECEIVERSHIPS. 
 
 (<t) Where the plaintiil: has no equitahle staiidiiii:; m court by 
 reason of his faihire to keep his agreement respecting the con- 
 sideration for which the niortiraire was «;iven.' 
 
 yet plaintiff was not entitled to a re- 
 ceiv(.'i>hip for the protcclion of tliat 
 portiou of the delit which was not yet 
 due or of that portion of the premises 
 as to which his rights to sell have not 
 accrued and that plaintiff was not en- 
 titled to a receivership of Ihs whole of 
 the premises but only to one of the 
 parcels. Ilollenbeck v. Donvell, 29 Ilun, 
 9-1, reversed. See also Bank of Og- 
 densburg v. Arnold, 5 Paiee, 40. 
 
 In Morris v. BraiicJiaud, 52 Wis. 
 187, a bill to foreclose a mortgage was 
 tiled but it did not allege waste, fail- 
 ure to pay taxes, or diminution of the 
 value of the security or increase of the 
 mortgage debt; but on the contrary it 
 was shown that the debt had been re- 
 duced since the securities were taken 
 and less than half of the remaining 
 debt was due, including only a small 
 amount of interest and the property 
 was salable in parcels. It was held 
 that a receiver should not be appointed, 
 the party liable for the piiyment of 
 the indebtedness not appearing to be 
 irresponsible. 
 
 In Bank of Ogdensburg v. Arnold, 
 supra, it appeared that the whole 
 amount of the mortgage was not due 
 and the premises could be ^old in par- 
 cels without injury to the interest of 
 the parties, and it Wiis held that only 
 so much of the premises as would be 
 suUieient to satify the amount then 
 due with costs sho\ild be sold, though 
 the remaining portion of the premises 
 would be insufficient to satisfy the 
 money yet to become due. It was 
 also held that wliere the mortgagee 
 has neglected to take a specific pledge 
 of the rents and profits of the mort- 
 gaged premises for the security of the 
 
 debt before it becomes due he has no 
 equitable right to such rents and 
 profits in the mean time. 
 
 In Buchanan v. Berksliire L. Inx. 
 Co. 90 Ind. 510, it is held that pending 
 a suit to foreclose a mortgage if the 
 mortgnged premises are indivisible, 
 the debtor insolvent and the property 
 sold for taxes a junior mortgagee de- 
 fendant whose, debt is not due having 
 filed a counterclaim setting up his de- 
 mand, may on petition showing the 
 facts and that the property is less in 
 value than the amount of incum- 
 brance may have an interlocutory 
 order appointing a receiver to collect 
 the rents. Brinkman v. liilzinger, 82 
 Ind. 353. 
 
 ' In McKellar v. Rogers, 20 Jones & 
 S. 3G0, a mortgage was given to se- 
 cure advances to be used in the erec- 
 tion of buildings on the mortgaged 
 premises, which advances the mort- 
 gngee failed to make, as required by 
 the mortgage, in consequence whereof 
 the mortgagor was comi^elled person- 
 ally to advance large sums of money 
 to complete the work, and then to 
 save his credit was compelled to sell 
 the houses erected at a large reduc- 
 tion from their actual value. It was 
 contended that this was an adequate 
 defense to the appointment of a re- 
 ceiver but the evidence in support of 
 the objection was vague and indef- 
 inite, from which the court was unable 
 to determine whether the defense was 
 valid or not, there being in the mort- 
 gage a covenant pledging the rents 
 and profits. This case was after- 
 wards affirmed in the court of ap- 
 peals but upon other grounds. 109 
 N. Y. 4G8.
 
 RECEIVERSHIP IN FORECLOSURE OF MORTGAGES. 
 
 287 
 
 (h) Where pending an appeal the ap})eal bond constitntcs 
 ample protection.' 
 
 (i) Wliere tlie defendant by a deposit in conrt, or otherwise, 
 secures the plaintifi".^ 
 
 (j) Where the propert}' over which a receiver is son2:ht is a 
 statutory lioniestead and the defendant entitled to the occupancy 
 and use thereof.'' 
 
 (k) Wliere the plaintiff is i^'uilty of ladies in makini;; his 
 application.'' 
 
 § 174. Iiuideqiiacy of security as ground for. 
 
 Inaderpiacy of security is tlie most usual ground, in foi-eclosure 
 proceedings, upon which application for a receiver of the mort- 
 gaged premises is based. A careful examination of the ad jud<2,-ed 
 cases bearing upon this subject, it is believed, will result in the 
 establishment of the following principles : 
 
 (a) Inadequacy of security, such as warrants the appointment 
 of a receiver, consists of two separate elements, each of which is 
 necessary to be established by adequate proof : (1) The insuf- 
 ficiency in value of the mortgaged premises to pay the debt, in- 
 
 'In Adair v.WrigTd, 16 Iowa, ;-i85, 
 it was held lliat the appointment of a 
 receiver of mortgaged property after 
 final decree and foreclosure proceed- 
 ings is unusual and if allowed at all 
 must be supported by strong showing 
 of facts, and if the evidence showed 
 that the mortgaged property was not 
 going to waste or in need of repairs, 
 but in a comparatively good state of 
 preservation, it was held that the 
 order appointing a receiver should be 
 vacated and especially where the 
 plaintiff had approved security for 
 the whole debt on the appeal bond. 
 
 ■"Welch V. Henry, 82 Kan. 425. 
 
 ^In Cdllanan v. Shaw, 19 Iowa, 
 183, a receiver was refused on the ap- 
 plication of a mortgagee to take pos- 
 session of mortgaged premises, where 
 it did not clearly appear that the 
 whole mortgaged premises were in- 
 sufficient in value to pay the debt or 
 
 that the court should take control of 
 the estate to protect the rights of a 
 party who had a clear strong claim 
 against it. It was doubled whether in 
 any case a receiver should be ap- 
 pointed to take possession and charge 
 of the mortgagor's homestead pend- 
 ing proceedings to foreclose the mort- 
 gage. 
 
 In Cone v. Combu, 18 Fed. Rep. 570, 
 great doubt was expressed as U) 
 whether the defendant's possession of 
 the homestead should be interfered 
 "witli until after a sale and deficiency 
 decree rendered and in this case it ap- 
 peared that the mortgagor and his 
 family were not occupying the prem- 
 ises as a homestead, but was deriving 
 an income from it as a homestead. 
 See also Ifor/e v. IloUUtev, 8 Baxt. ^as. 
 
 •'See Cone v. Combs, 18 Fed. Rep. 
 570.
 
 288 
 
 RECEIVERSHIPS. 
 
 terest and costs. (2) The insolvency of tliu niortuajj^or, ln*.s 
 o-rantec, or other person liable for the payment of the niort,o;a«;c 
 debt, or at least, as has been held in some cases, snch a de<i::ree of 
 irresponsibility linancially as ren(h!rs the collection of a deliciency 
 iudt2;me!it against him ini[irobable.' 
 
 ' In Warner v. Qouverneur, 1 Buib. 
 3G, where a mortgagee bad not pro- 
 vided for keeping down the accruing 
 interest upon the mortgage by secur- 
 ing a lien upon the rents and profits, 
 a court will, it is held, interfere with 
 the mortgagor's possession prior to a 
 decree of foreclosure, and appoint a 
 receiver of the rents and profits where 
 it appears that the premises are inade- 
 quate security for the debt and the 
 mortgagor, or other person in possess- 
 ion, is insolvent, but in any such case 
 the receiver will not be appointed 
 upon mere allegation that the mort- 
 gaged premises are not an adequate 
 security for all just incumbrances 
 thereon. The mortgagee applying 
 for a receiver must allege in his bill 
 that the premises are not an adequate 
 security for the amount due him. 
 
 In Astar v. Turner, 2 Barb. 444, a 
 bill was filed to foreclose a mortgage 
 of leasehold premises which were 
 scanty security for the debt, and the 
 mortgagor was insolvent and his as- 
 signee in possession, a receiver was 
 appointed and the owner of the equity 
 of redemption directed to pay an oc- 
 cupation rent. 
 
 In Sea Ins. Co. v. Stchbins, 8 Paige, 
 505, it was held that the plaintiff must 
 state that the premises are not of suf- 
 ficient value to satisfy his debt and 
 costs, and that the mortgagor or otlier 
 person who is personally liable for tlie 
 payment of the mortgage debt is irre- 
 sponsible or unable to pay the antici- 
 pated deficiency. He must also show 
 who is in possession of the mortgaged 
 premises, as a receiver can only be ap- 
 
 pointed in a case where the person in 
 possession of the m(irig;iged premises, 
 by himself or his tenants, is a l)arty to 
 the suit. 
 
 In Quincy v. Cliceseman, 4 Sandf. 
 Ch. 405, it was held to be a requisite 
 fact to be made to appear, Jirfit, that 
 the premises were iiisullicieut in value 
 to pay the debt and costs, and second, 
 the insolvency or irresponsibility of 
 the person liable to pay the debt. 
 
 In lloUenbeck v. Donnell, 94 N. Y. 
 342, it is said that in New York the 
 right to a receiver of the rents and 
 profits is placed, not upon the mort- 
 gagee's legal right to the possession of 
 the mortgaged premises and therefore 
 his legal rights to the rents thereof, 
 but his right was inherent in the court 
 of chancery before the code of pro- 
 cedure was adopted, and was con- 
 tinued by that code under subd. 5, 
 § 244, and was not abrogated by a 
 provision of the code, § 713, defining 
 cases in which receivers may be ap- 
 pointed, but on the contrary is reaf- 
 firmed by the general provisions of the 
 code, § 4, declaring that each of the 
 courts therein named shall continue 
 to exercise the jurisdiction and pow- 
 ers now vested in it, except as other- 
 wise prescribed. 
 
 In Commercial & Sav. Bank v. Cor- 
 bctt, 5 Sawy. 172, it was held that the 
 facts essential to the appointment of 
 a receiver need not be pleaded, but 
 may be shown by affidavit and at the 
 hearing, and that a prayer for a re- 
 ceiver is unnecessary. This decision 
 is strangely at variance with a great 
 many well considered cases.
 
 RECEIVERSHIP IN FORECLOSURE OF MORTGAGES. 
 
 289 
 
 In Schreiber v. Carey, 48 Wis. 208 
 the mortgage included the homestead, 
 and neither the interest nor principal 
 Lad been paid, and the debt was larger 
 than the sum for which the premises 
 could be sold, and there were other 
 unsatisfied judgments against the 
 mortgagor, it was held that in the ab- 
 sence of rebutting evidence, the in- 
 solvency of the mortgagor was suffi- 
 ciently established. In this case, 
 however, in addition to the foregoing 
 facts, it was further shown that the 
 mortgagor was wilfully neglectmg to 
 pay the taxes on the land. 
 
 In Eerchner v. Fairley, 80 K C. 24, 
 it appeared that the property conveyed 
 was inadequate to pay the debt, and 
 that the mortgagor in possession was 
 insolvent. Esld, that the appointment 
 of a receiver was proper, though the 
 plaintiff denied an alleged payment of 
 the debt and the existence of assets in 
 his hands applicable thereto. Ten 
 Broeck v. Orchard, 74 N. C. 409; Rol- 
 lins V. Henry, 11 N. C. 467. It is in- 
 cumbent, however, that the plaintiff 
 should establish an apparent right to 
 the property in litigation, and where 
 it is neither alleged nor shown that 
 there is danger of waste or injury to 
 the properly or loss of the rents and 
 profits by reason of the insolvency of 
 the party in possession, a receiver will 
 not be appointed. Twitty v. Logan, 
 80 N. C. 69. 
 
 In Durant v. Crowell, 97 N. C. 367, 
 it was held that where the plaintiff 
 establishes a 'prima fade right to prop- 
 erty, which is not rebutted by the de- 
 fendant, a receivershould be appointed 
 where it is shown that there is danger 
 of loss of the rents and profits, and in 
 such case the value of the property in 
 controversy ought not to be considered 
 in passing upon the question of the 
 solvency of the defendant. In this 
 case the defendant was permitted to 
 19 
 
 execute a bond to secure the rents and 
 profits and such damages as might be 
 adjudged to the plaintiff, in lieu of a 
 receiver. 
 
 In Dunlap v. Hedges, 35 W.Va. 287, 
 it appeared that judgment had been 
 rendered against the mortgagor, a sec- 
 ond mortgage given upon the prop- 
 erty, and it was alleged that the mort- 
 gagor was insolvent and had been 
 allowing the mortgaged premises to 
 run down and there was waste, a re- 
 ceiver was appointed to rent and pre- 
 serve the property until the conflict- 
 ing claims should be adjudged. 
 
 In Grant v. Phoinix Mut. L. Ins. 
 Co. 121 U. S. 105, 30 L. ed. 905, it is 
 held upon the authority of Kountze^. 
 Omaha Hotel Co. 107 U. S. 378, 395, 
 27 L. ed. 609, 616, as follows: "Courts 
 of equity always have the power 
 where the debtor is insolvent and the 
 mortgaged property is an insufficient 
 security for the debt and there is good 
 cause to believe that it will be wasted 
 or deteriorated in the hands of the 
 mortgagor by cutting off timber, suf- 
 fering dilapidation, etc. , to take charge 
 of the property by means of a receiver 
 and preserve not only the corpus, but 
 rents and profits for the satisfaction 
 of the debt." 
 
 In Buchanan v. Berkshire L. Ins. 
 Co. 96 Ind. 510, it was held in a fore- 
 closure proceeding where it appears 
 that the mortgaged premises are in- 
 divisible, the debtor insolvent and the 
 property sold for taxes, a junior mort- 
 gagee defendant whose debt is not due, 
 having filed a counterclaim setting up 
 his demand and showing that the prop- 
 erty is less in value than the amount 
 of incumbrance, may have a receiver. 
 
 A receiver appointed at the instance 
 of a mortgagee is not entitled to the 
 rents and profits in the possession of 
 the mortgagor, accruing from the 
 mortgaged properly prior to his up-
 
 290 
 
 RECEIVERSHIPS. 
 
 (b) The establishment of one of these elements and the failure 
 to establish the other, is fatal to the appointment.' 
 
 pointment. Alabama Nat. Bank v. 
 Mary Lee Coal cfc R. Go. (Ala.) 19 So. 
 404. 
 
 In determining whether a receiver 
 of mortgaged property shall be ap- 
 pointed pending a foreclosure suit, 
 because of the inadequacy of the prop- 
 erty to pay the debt, the proper esti- 
 mate is that placed on the property at 
 the time of hearing instead of at some 
 other time. Jackson v. Hooper (A.la.) 
 18 So. 254. 
 
 ' In Sea Ins. Co. v. Stebbins, 8 Paige, 
 565, the court say: "To authorize the 
 court to interfere and appoint a re- 
 ceiver where there is a mortgagor or 
 other party to the suit who is person- 
 ally liable for the debt secured by the 
 mortgage in case the amount raised 
 upon sale shall be found insufficient 
 to pay the debt and costs, the party 
 applying for such receiver must not 
 only satisfy the court that there is a 
 probability that the mortgaged prem- 
 ises will not sell for enough to satisfy 
 the decree, but also that the party who 
 is thus individually liable is himself 
 irresponsible for the probable amount 
 of such anticipated deficiency after 
 paying all his other just debts," 
 
 In Morris v. Branchaud, 52 Wis. 
 187, where there was nothing in the 
 record indicating that the mortgagor 
 was irresponsible, it was held that this 
 was an insurmountable objection to 
 the appointment of a receiver. 
 
 In Warner v. Qouverneur, 1 Barb. 
 86, there was no doubt from the evi- 
 dence of the mortgagor's insolvency, 
 but there was a good deal of doubt as 
 to the inadequacy of the security of 
 the mortgaged premises and it was 
 held that a receiver should not be ap- 
 pointed. 
 
 In Myers v. Estell, 48 Miss. 372-403, 
 
 it is said that a better rule is to grant 
 or refuse a receiver as it may or may 
 not be an essential means to pay the 
 debt; that there can be no necessity 
 for this auxiliary remedy if the mort- 
 gagor is solvent and able to pay any 
 delicieucy. In such case the creditor 
 ought to be left to his legal remedy to 
 get at the rents. 
 
 In Brown v. Chase, "Walk. Ch. 
 (Mich.) 43, the court say: "The court 
 must be satisfied, before making the 
 appointment, that the mortgaged 
 premises are insufficient to pay the- 
 mortgage debt and that the mortgagor 
 or other party to the suit who is per- 
 sonally liable for this payment is in- 
 solvent or out of the jurisdiction of the 
 court so that an execution against 
 him for the balance that should remain 
 due after a sale of the mortgaged 
 premises would be unavailable. 
 
 In Gone v. Combs, 18 Fed. Rep. 
 576, the court say: "It must clearly 
 appear that the mortgagor is hope- 
 lessly insolvent and the property in- 
 adequate security for the debt to war- 
 rant the appointment of a receiver. 
 If the property mortgaged is of much 
 less value than the debt and accrued 
 costs and the mortgagor who is per- 
 sonally liable is insolvent the mort- 
 gagee is usually entitled to a receiver, 
 and this court heretofore granted this 
 relief when these elements have been 
 clearly found to exist. In this case 
 the proof is beyond doubt that the 
 personal liability of the mortgagor is 
 gone, and should a deficiency exist 
 after sale of the mortgaged premises it 
 could not be collected. The mort- 
 gagor has been discharged as a bank- 
 rupt and is not personally liable for 
 this debt. But it is not satisfactorily 
 proved that the mortgaged property
 
 RECEIVERSHIP IN FORECLOSURE OF MORTGAGES. 291 
 
 (c) In the absence of deterioration in the value of the mort- 
 gage premises and property from fire or other extraordinary 
 causes, the presumption is that the vahie thereof is adequate 
 security for the payment of the debt, interest and costs.' 
 
 (d) The above rule as to the inadequacy of the security as a 
 
 is inadequate security. The burden 
 is upon tlie mortgagee to establish this 
 fact as the presumption is, the prop- 
 erty when mortgaged was ample se- 
 curity and this presumption continues 
 until the contrary is proved." 
 
 ' See Cone v. Combs, supra. 
 
 Mortgagors who have stipulated in 
 the mortgage for the appointment of 
 a receiver, upon default in payment, 
 to collect the rents and profits, cannot 
 complain of such appointment after a 
 default, especially where the mort- 
 gage security is insufficient. Clark v, 
 Jolm A. Logan Mut. L. & Bldg. Asso. 
 58 111. App. 311. 
 
 A receiver of a newspaper will not 
 be appointed in an action to foreclose 
 a mortgage thereon, notwithstanding 
 the defendant's insolvency, where de- 
 fendant alleges that he is not indebted 
 to plaintiff, the property is steadily 
 increasing in value, and the appoint- 
 ment of a receiver would absolutely 
 destroy its value and render the prop- 
 erty worthless as a newspaper. White- 
 head V. Hale (N. C.) 24 S. E. 360. 
 
 A receiver will not be appointed to 
 take possession of property on behalf 
 of subsequent lienholders, where it is 
 in the possession of one to whom it 
 has been transferred as owner by the 
 letter of the transfer to extinguish a 
 prior vendor's lien, and whose worst 
 position is that of a mortgagee in pos- 
 session. Untied States v. Masich. 44 
 Fed. Rep. 10. 
 
 Pending a proceeding to foreclose a 
 mortgage a receiver will not be ap- 
 pointed to take charge of the mort- 
 gaged premises, where it does not 
 
 clearly appear that the whole mort- 
 gaged premises are insufficient in 
 value to pay the debt, so that the 
 court should take control of the estate 
 to protect the rights of a party having 
 a clear, strong claim against it. Cal- 
 lanan v. Shaw, 19 Iowa, 183. 
 
 A provision in a mortgage, that the 
 mortgagee may take possession of the 
 premises and rent them, accounting 
 for net profits only, without depriving 
 him of the right to foreclose, does not 
 contemplate the appointment of a re- 
 ceiver after foreclosure to collect the 
 rents and profits during the time al- 
 lowed for redemption. Swan v. 
 Mitchell, 82 Iowa, 307. 
 
 While it is proper to appoint a re- 
 ceiver to continue a business already 
 established, but it is not proper to ap- 
 point a receiver to begin a business if 
 neither of the parties have taken steps 
 thereto. Merrell v. Pemberton, 62 Ga. 
 29. 
 
 A receiver should not be appointed 
 of property on which a lien of a mort- 
 gage exists if the property is not ample 
 to pay the receiver his compensation 
 over the mortgage. This when mort- 
 gagee does not apply. Lammon v. 
 Giles, 3 Wash. Ter. 117. 
 
 Upon the application of the mort- 
 gagees after condition broken pending 
 bill to foreclose, unless the property, 
 if permitted to remain in control of 
 mortgagor, is likely to be wasted or 
 diverted so as to impair the mort- 
 gagee's claim, a receiver will not be 
 appointed. Cheever v. Rutland tt B. 
 R. Co. 3y Vt. 653.
 
 292 
 
 RECEIVEKSHIPS. 
 
 ground for the appointment of a receiver, in the absence of proof 
 of further equitable grounds, has not been adopted in some states, 
 as in New Jersey, on the ground that the mortgagee has an ade- 
 quate legal remedy,' while in other states, as in California and 
 South Carolina, the general doctrine has not been enforced, 
 upon the ground that the mortgagor remains the owner of the 
 legal estate, even after condition broken, until his estate is 
 divested by a foreclosure, sale and deed thereunder, and is conse- 
 quently, during such period, entitled to the rents and profits. In 
 Iowa and Michigan the mortgagor is entitled to the use and occu- 
 pation of the mortgaged premises until the exjDiration of the statu- 
 tory period of redemption/ 
 
 iln Gheticood v. Coffin, 30 N. J. Eq. 
 450, where it was admitted that there 
 was no personal security for the pay- 
 ment of the mortgage debt; that the 
 premises were insufficient security; 
 that the property was rented and the 
 rents not applied in payment of taxes, 
 or the interest, a receiver was ap- 
 pointed. And see also Brasted v. 
 Sutton, 30 N. J. Eq. 462, where waste 
 had also been committed and was 
 threatened. Cortleyeu v, Hathaway, 
 11 N. J. Eq. 39; but in Frisbie v. Bate- 
 man, 24 N. J. Eq. 28, it was held that 
 mere inadequacy of security and in- 
 solvency were not a foundation for a 
 receiver on the authority of Cortleyeu 
 V. Hathaway, supra; and Best v. 
 Schermier, 6 N. J. Eq. 154. A con- 
 trary rule exists in New York. Warner 
 V. Oouverneur, 1 Barb. 38; Bank of 
 Ogdensburg v. Arnold, 5 Paige, 39; 
 Shotwell V. Smith, 3 Edw. Ch. 588; 
 Sea Ins. Co. v. Stebbins, 8 Paige, 566. 
 See also Oliver v. Decatur, 4 Cranch 
 C. C. 458; Union Trust Co. v. St. Louis, 
 I. M. &S. R. Co. 4 Dill. 114; William- 
 son V. New Albany, etc. R. Co. 1 Biss. 
 198. 
 
 A receiver of rents and profits will 
 not be appointed at the instance of a 
 mortgagee of the land, no express lien 
 having been given upon the rents and 
 
 profits, although the mortgaged estate 
 be inadequate to secure the loan and 
 the mortgagor insolvent. Phoinix 
 Mut. L. Ins. Co. V. Grant, 3 MacArth. 
 220. 
 
 *In West V. Conant, 100 Cal. 231, it 
 is held that a purchaser at a foreclos- 
 ure sale is entitled to the rents and 
 profits, or the value of the use and 
 occupation, from the time of sale 
 until redemption, still the debtor is 
 entitled to remain in possession until 
 the expiration of the redemption 
 period, and is entitled to the crops. 
 WJiite v. Griggs, 54 Iowa, 650. 
 
 In Guy v. Ide, 6 Cal. 99, it is said: 
 "Our statute forbids a mortgagee 
 from recovering the mortgaged estate 
 and confines his remedy to foreclos- 
 ure. . . . The mortgage is con- 
 sidered as only a security for the debt; 
 the estate remains that of the mort- 
 gagor in the character of owner, and 
 must continue to remain so, with all 
 the incidents of ownership until, by a 
 foreclosure and sale, a new owner is 
 substituted." McMillan v. Richards, 
 9 Cal. 410. 
 
 In Hardin v. Hardin, 34 S. C. 77, 
 it is held that as the mortgagor re- 
 mains the owner of the mortgaged 
 land, the rents belong to him until a 
 foreclosure, and the mortgagee baa
 
 KECEIVERSHIP IN FORECLOSURE OF MORTGAGES. 293 
 
 no Hen on the rents and profits, unless 
 it is so stipulated in the mortgage. 
 Reeder v. Dargan, 15 S. C. 185; Seig- 
 nious V. Pate, 33 S, C. 134. 
 
 A receiver of the rents of mort- 
 gaged premises, appointed in an ac- 
 tion to foreclose the mortgage on the 
 ground of the insuificiency of the se- 
 curity, is entitled to the rents accru- 
 ing during the pendency of the action 
 and before his appointment, as against 
 a receiver in supplemental proceedings 
 maintained against the mortgagor. 
 Donlon & M. Mfg. Co, v. Cannella, 89 
 Hun, 21. 
 
 A mortgagee is not entitled, before 
 foreclosure, to the appointment of a 
 receiver to preserve the rents and 
 profits, unless the lands are of insuf- 
 ficient value to secure the mortgage 
 debt. Lindsay v. American Mortg. 
 Co. 97 Ala. 411; Blondheim v. Moore, 
 11 Md. 365; Moritz v.m'«er,87Ala.331. 
 
 A receiver will not be appointed in 
 Michigan in a suit by persons suc- 
 ceeding to the right of a mortgagee 
 of a reversioner's interest in land, 
 against the life tenant, to establish a 
 lien for taxes paid by complainant on 
 the premises, and to compel the pay- 
 ment of other taxes assessed thereon, 
 the appointment of a receiver not be- 
 ing the proper remedy, under the 
 Michigan method of enforcing the 
 collection of unpaid taxes upon lands 
 and of foreclosing liens. Jenks v. 
 Morton, 96 Mich. 13. Otherwise in 
 New York. See Cairns v. Chabert, 3 
 Edw. Ch. 313; Sidenberg v. Ely, 90 N. 
 Y. 257. 
 
 The right of a mortgagor to the 
 rents and profits pendente lite is a sub- 
 stantial one, under the laws of Mich- 
 igan (How. St. § 7847), which must 
 be recognized in the courts of the 
 United States in administering the 
 rights of the parties to a mortgage; 
 and they cannot, therefore, appoint a 
 
 receiver to take the rents and profits 
 to apply on the mortgage prior to the 
 completion of foreclosure by sale and 
 confirmation, although the security is 
 inadequate. Union Mut. L. Ins. Co. 
 V. Union Mills Plaster Co. 37 Fed. Rep. 
 286, 3 L. R. A. 90. 
 
 In Sioan v. Mitchell, 82 Iowa, 307, 
 it was held where the mortgage cov- 
 ered the " rents, issues, products and 
 profits thereof," and gave the mort- 
 gagee the right, upon default, to take 
 possession and rent or cultivate the 
 same, this of itself was not ground 
 for a receiver during the redemption 
 period. White v. Griggs, 54 Iowa, 
 650; Paine v. McElroy, 73 Iowa, 81; 
 Hazeltine v. Granger, 44 Mich. 503; 
 Beecher v. Marquette & P. Rolling Mill 
 Co. 40 Mich. 307; Wagar v. Stone, 
 36 Mich. 364; Newton v. McKay, 30 
 Mich, 380; Humphrey v. Hurd, 29 
 Mich. 44; Hogsett v. Ellis, 17 Mich. 
 363; Newton v. Sly, 15 Mich. 391; Van 
 Husan v. Eanouse, 13 Mich. 303; La- 
 due v. Detroit & M. R. Co. 13 Mich. 
 380; Crippen v. Morrison, 13 Mich. 
 23; Caruthers v. Humphrey, 13 Mich. 
 270; Baker v. Pierson, 5 Mich. 456. 
 See contra, Hollenbeck v. Donnell, 94 
 N. Y. 343; Pasco v. Gamble, 15 Fla. 
 562 (see this case as to right of posses- 
 sion of mortgagor); JennerFust v. 
 Needham, L. R. 31 Ch. Div. 500. 
 
 A receiver cannot be appointed of 
 mortgaged property to take the rents, 
 issues, profits and crops, and apply 
 them in payment of the mortgage, al- 
 though the mortgage expressly pro- 
 vides therefor, under the Oregon stat- 
 ute providing that a mortgage shall 
 not be deemed a conveyance so as to 
 enable the mortgagee to recover pos- 
 session without foreclosure and sale, 
 and by which he is not entitled to 
 rents and profits before actual posses- 
 sion. Thomson v. Shirley, 09 Fed. 
 Rep. 484.
 
 294 RECEIVERSHIPS. 
 
 (c) The inadequacy of security contemplated by the rule above 
 has reference solely to the plaintiff's indebtedness, and does not 
 include other lien indel)tedness against the property.' 
 
 (f) The proof must be clear and satisfactorj^, in order to war- 
 rant the court in granting the relief, under the rule under discus- 
 sion i'' but this rule is relaxed if, in addition to the inadequacy 
 of security, other equitable grounds for relief are shown, such as 
 the nonpayment of taxes, insurance premiums, waste, and the 
 like.' 
 
 (g) Under the present English practice, rents collected between 
 the date of the certificate under foreclosure judgment and the 
 day fixed for redemption by the mortgagee or receiver, go in re- 
 duction of the amount due on the mortgage, but if collected after 
 redemption date they belong to the mortgagee.* 
 
 § 175. Same subject continued. 
 
 A few observations relative to the causes which have brought 
 about the disagreement noted above may be profitably stated in 
 this connection. In some states the mortgagor is regarded as re- 
 taining the legal title to the mortgaged premises, and the mortgagee 
 as being vested only with an equitable title held as security for 
 the indebtedness. In other states the mortgagee is regarded as 
 holding the legal title subject to the defeasance in the mortgage, 
 and of course in such case one condition broken has a right to re- 
 cover possession in a common law action. Some courts have con- 
 strued the mortgage as transferring the rents and profits of the 
 
 » Warner v. Oouverneur, 1 Barb. 36. the mortgage premises are cultivated 
 
 s Cone V. Combs, 18 Fed. Rep. 576; in » wasteful manner, a receiver may 
 
 Burlinname ^. Farce, 12 Hun, 144; be appointed. Dunlap v. Hedges, Z5W. 
 
 Shoiwell V. Smith, 3 Edw. Ch. 588. V*^" -^^- ^^^^^ v. Dale. 150 111. 239. 
 
 ^Corlleyeu v. nathaway, 11 N. J. 'Jenner-Fust v. Needham, L. R. 81 
 
 Eq. 39; Oldham v. First Nat. Bank, Ch. Div. 500, Affirmed in L. R 33 
 
 84 N. C. 304; Stockman v. Wallis, 30 Ch. Div. 582. But see Hoar$ v. St^ 
 
 N. J. Eq. 449; Chetwood v. Coffin, 30 i^^'^««. L. E. 32 Ch. Div. 194. 
 
 N J Eq 450 -^ receiver has no right to purchase 
 
 Where a mortgagor has sold the the mortgaged premises during the 
 
 mortgaged premises, he is not in a Period allowed for redemption, and if 
 
 position to oppose the appointment of ^^ does so will not be entitled to the 
 
 a receiver. Wall Street F. Ins. Co. rents and profits. Heirick v. Miller, 
 
 V. Loud, 20 How. Pr. 95. 123 Ind. 804. 
 
 If the mortgagor is insolvent and
 
 RECEIVERSHIP IN FORECLOSURE OF MORTGAGES. 295 
 
 mortgaged premises as part and parcel of the estate granted, while 
 others have looked upon such rents and profits as separate and 
 distinct from the estate conveyed, and inseparable from tlie use 
 and occupation, and viewed in this latter aspect some courts have 
 maintained that the right of the mortgagor to the rents and 
 profits terminated with sale of the premises under the foreclosure 
 decree and othei-s that the rights of the mortgagor, thereto ceased 
 only at the end of the statutory period of redemption. It is 
 probable that the irreconcilable differences noted are due to tlie 
 methods of construction adopted by different courts, some of them 
 construing the mortgage deed strictly in accordance with its 
 terms, while others from a broader standpoint have given it a 
 more liberal construction in accordance with the actual intention 
 of the parties. One is the legal and the other the equitable con- 
 struction, one is the express legal intent and the other the unex- 
 pressed equitable intent. 
 
 1 176. Oyer what appointed. 
 
 The receivership in mortgage foreclosures is limited to the 
 property embraced in the mortgage,' or such portion thereof as 
 may be necessary for the payment of the mortgage indebtedness.' 
 It may be either real property, personal property or a leaseliold 
 interest,^ and where the parties in interest are within the juris- 
 diction the property may be beyond the jurisdiction of the court.^ 
 If the mortgage includes the rents, issues and profits and the re- 
 ceiver takes possession he is entitled to the growing crops, in case 
 of a deficiency.^ So also in case of a mortgage of chattels, if they 
 
 > Wormser v. Merchants^ Nat. Bank, share. Sumsion v. Creejicell, 31 
 
 49 Ark. 117; Staples v. May, 87 Cal. Week. Rep. 399; Wortnsej- v. Mer- 
 
 178. If the mortgage embraces a hotel, cTiants' Nat. Bank, 49 Ark. 117. 
 
 the receiver may run the hotel in order ^Barrett v. Mitchell, 5 Ir. Eq. 501. 
 
 to prevent an impairment of the se- * Davis v. Barrett, 13 L. J. Ch.N. S. 
 
 curity. Lowell v. Doe, 44 ^Minn. 144. 304; Langfordv. Langford, 5L. J. Ch. 
 
 Not sohovfcfever if the good will is not N. S. 60; Sliaw v. Shore, 5 L. J. Ch. 
 
 included in the mortgage. WJatleyv. N. S. 79. 
 
 vJiallis [1892] 1 Ch. 64; St. Louis Car » Montgomery v. Merrill, 65 Cal. 432; 
 
 Co. V. Stillwater Street R. Co. 53 Minn. and see Simpson v. Robert, 35 Ga. 180. 
 
 129; Lowell v. Doe, 44 Minn. 144. In Indiana where, by statute, the 
 
 ' Trissilianv. Caniffe, 4Ir. Ch. N. S. mortgagor is entitled to possession, in 
 S99. A receiver may be appointed the absence of a stipulation to the con- 
 over the whole of property at the in- trary, this gives him the right to the 
 stance of a mortgagee of an undivided crops and they may be levied on and
 
 296 
 
 RECEIVERSHIPS. 
 
 are being levied on in the hands of the morto;agor by attach- 
 ments/ but a mortgagee in possession will not be disturbed by a 
 receiver, while a balance remains due liira ;' or in case of a mort- 
 gage of a leasehold interest, where the mortgagor fails to pay the 
 rent and an eviction is threatened,* or where the mortgagor is in- 
 solvent and has transformed his equity in the premises," and the 
 security is inadequate,' or in case of equitable mortgages as in the 
 case of the deposit of title deeds.' A receiver appointed in a 
 mortgage foreclosure proceeding where the mortgagor, or other 
 person liable for the mortgage debt, is insolvent is entitled to the 
 rents and profits of the mortgaged premises, not yet paid and to 
 accrue.' By the appointment the mortgage becomes entitled to 
 an equitable lien on the rents and profits. 
 
 sold by a judgment creditor. This 
 decision is based upon the doctrine 
 that the mortgagee only has a lien 
 upon the property, and that theriahts 
 of the receiver are not retrospective. 
 Favorite v. Deardorff, 84 Ind. 555. 
 Cf. Lilly V. Dunn, 96 Ind. 220; Bryson 
 V. McCreary, 102 Ind. 4; Merritt v. 
 Qibson, 129 Ind. 155, 15 L. R. A. 277. 
 
 ^Crow V. Bed River County Bank, 52 
 Tex. 362; Maish v. Bird, 59 Iowa, 
 307. 
 
 ^Quinn v. Brittain, 3 Edw. Ch. 314; 
 Patten v. Accessory Transit Co. 4 Abb. 
 Pr. 235, 13 How. Pr. 502; Bayaud v. 
 Fellows, 28 Barb. 451; Washington Iron 
 Works Co. V, Jensen, 3 Wash. 584. 
 
 The judge in vacation has no power, 
 in a suit to foreclose a chattel mort- 
 gage, to appoint a receiver and order 
 a sale of the property in advance of 
 the regular foreclosure sale, on the 
 ground that the conditions of the 
 mortgage have not been performed, 
 and that there is danger of the prop- 
 erty being materially injured and de- 
 preciated in value. Wilson v. Ault- 
 man & T. Co. 91 Ky. 299. (See Civ. 
 Code Ky. § 299). Cf. Furlong v. 
 Edwards, 3 Md. 99. 
 
 ^ Barrett V. Mitchell, 5 Ir. Eq. 501. 
 
 *Astor v. Turner, 2 Barb. 444, 3 
 How. Pr. 225; Reid v. Middleton, 7 
 Turn & R. 455; Smith v. Kelley, 31 
 Hun, 387. 
 
 ''Smith V. Eelley, 31 Hun, 387; Astor 
 V. Turner, 2 Barb. 444; Reynolds v. 
 Quick, 128 Ind. 316. 
 
 ^Holmes v. Bell, 2 Beav. 298; Aber- 
 deen v. Chitty, 3 Younge & C. 379; 
 Shakel v. Duke of Marlborough, 4 
 Madd. 463. 
 
 In England all junior mortgages are 
 treated as equitable mortgages. 
 
 An equitable mortgagee is entitled 
 to a receiver when the mortgagor is in 
 possession, whether the security is 
 scanty or not. A mortgagee on de- 
 fault is entitled to possession without 
 any reference to the value of the prop- 
 erty. Aikins v. Blain, 13 Grant. Ch. 
 (Ont.) 646. 
 
 ''Astor v. Turner, 11 Paige, 436;^ 
 Eowell V. Ripley, 10 Paige, 43; Lajsky 
 V. Mavjer, 3 Sandf. Ch. 69; Oakford 
 V. Robinson, 48 111. App. 270; Conover 
 V. Orover, 31 N. J. Eq. 589; Rider v. 
 Bagley, 84 N. Y. 461; Hayes v. Dickin- 
 son, 9 Hun, 277; Post v. Dorr, 4 Edw. 
 Ch. 412; Johnston v. Riddle, 70 Ala. 
 219; Stirm v. Ermantrout, 89 Ind. 214. 
 But see Best v. Schirmier, 6 N. J. Eq.
 
 RECEIVERSHIP IN FORECLOSURE OF MORTGAGES. 297 
 
 § 177. When appointed. 
 
 (a) Before decree. 
 As a general rule application is made for the appointment of a 
 receiver before the entry of a decree of foreclosure, and usually 
 in an interlocutory proceeding after notice, pending the action, 
 the application being based upon the allegations of the bill or 
 petition, alone, or upon such allegations supported by affidavits 
 in addition, or sometimes evidence taken before a master on a 
 reference had for that purpose. 
 
 (b) After decree. 
 The appointment, however, is sometimes made after decree of 
 foreclosure, and after a sale thereunder, (1) where the equitable 
 right of the mortgagee to appropriate tlie rents and profits pend- 
 ing the statutory period allowed for redemption is recognized, 
 and where the right of the mortgagor to such rents during such 
 period is not given to him by statute ; (2) where the property is 
 permitted to be sold for taxes ;' or (3) where the mortgagor is 
 
 154; Cortleyeu v. Hathaway, 11 N. J. 
 Eq. 39; Frisbie v. Bateman, 24 N. J. 
 Eq. 28. 
 
 The mere default in the payment of 
 the debt is not ground for the ap- 
 pointment of a receiver, but this is not 
 true where there is a stipulation in the 
 mortgage that the mortgagee shall 
 have the rents. Allen v. Dallas & W. 
 B. Co. 3 Wood, 316; Whitehead v. 
 Wooten, 43 Miss. 523; American Bridge 
 Co. V. Heidlebach, 94 U. S. 798, 24 L. 
 ed. 144. 
 
 Until possession is taken of mort- 
 gaged property by the receiver the 
 mortgagor is entitled to the profits. 
 Frayser v. Richmond & A. R. Co. 81 
 Va. 388; Williamson v. Washington 
 City, V. M. & G. 8. R. Co. 33 Gratt. 
 624; Oilman v. Illinois & M. Teleg. 
 Co. 91 U. S. 603, 23 L. ed. 405; Amer- 
 ican Bridge Co. v. Ueidelbach, 94 U. S. 
 798, 24 L. ed. 144; Edwards v. Ed- 
 wards, L. R. 2 Ch. Div. 291. 
 
 Since, on the dissolution of a cor- 
 
 poration, a copartnership of which the 
 corporation was a member is dissolved 
 and the property vests in the surviving 
 partner, the appointment of a re- 
 ceiver of the corporation does not vest 
 him with any of the copartnership 
 property, or give him any right to in- 
 terfere with the management of the 
 copartnership. Gray v. Oxnard Bros. 
 Co. 31 N. Y. S. R. 968. 
 
 In an action to foreclose a mortgage 
 which affects only the right of the 
 lessee it is not competent for the court 
 to appoint a receiver who shall rep- 
 resent not only his rights but those of 
 the lessor. Woodward v. Winehill 
 (Wash.) 44 Pac. 860. 
 
 ^Schreiber v. Carey, 48 Wis. 208; 
 Finch V. Uovghton, 19 Wis. 150; 
 Brinkman v. Ritzinger, 82 Ind. 358; 
 Bank of Utica v. Finch, 3 Barb. Ch. 
 293; Syracuse City Bank v. Tallman, 
 31 Barb. 201; Smith v. Tiffany, 13 
 Hun, 671; Astorv. Turner, 11 Paige, 
 436; Uackett v. Snow, 10 Ir. Eq. Rep.
 
 298 
 
 RECEIVERSPIIPS. 
 
 o;iiilty of fraud or bad faith ;' or (4) in case of adverse posses- 
 sion ;' or (5) wliere it is necessary to preserve the property ;" or 
 (6) there is danj^er of loss ;' or (7) where the application could 
 not have been made on the hearing/ 
 
 220; Cooke v. Gicyn, 3 Ark. 690; 
 Thomas v. Davies, 11 Beav. 29; Bow- 
 man V. Ball, 14 Sim. 392; Wright v. 
 Vernon, 3 Drew, 112. 
 
 It is sufficient ground for the ap- 
 pointment of a receiver pendente lite 
 in an action to foreclose a mortgage, 
 that the security is inadequate and 
 the mortgagor is insolvent and has 
 failed to apply the rents of the mort- 
 gaged premises to the payment of de- 
 linquent taxes and past-due interest 
 on a prior mortgage. Farmers' Nat. 
 Bank v. BacJcus (Minn.) 66 N.W. 5. 
 
 Appointment of a receiver of mort- 
 gaged property pending a foreclosure 
 suit is authorized, where the value of 
 the property is inadequate, the mort- 
 gagors are insolvent, and refuse to 
 oeliver possession, and are collecting 
 the rents, applying them to their own 
 use, and have failed to pay the taxes 
 or keep the property insured as they 
 agreed in the mortgage. Jackson v. 
 Hooper {h.\&.) \S ^o. 254. 
 
 1 Haas V. Chicago Bldg. Soc. 89 111. 
 498. 
 
 * Thomas v. Davies, 11 Beav. 20. 
 
 ^ Grant v. Phcenix Mut. L. Ins. Co. 
 121 U. S. 118. 30 L. ed. 909. 
 
 "^Uaas V. Chicago Bldg. Soc. 89 111. 
 498; Brinkman v. Ritzinger, 82 Ind. 
 358; Connelly v. Dickson, 76 Ind. 440; 
 Bidwetl V. Paul, 5 Baxt. 693; Schrei- 
 ber V. Carey, 48 Wis. 208; Smith v. 
 Tiffany, 13 Hun, 671. 
 
 See Orant v. P/icenix Mut. L. Ins. 
 Co. 121 U. S. 118, 30 L. ed. 909. 
 
 ' Bainbridge v. Blair, 4 L. J. Ch. N. 
 S. 207. 
 
 An appeal from the final decree 
 does not deprive the lower court of its 
 
 power to adjudicate in relation to re- 
 pairs for the preservation of the prop- 
 erty. Grant v. Phcenix Mut. L. Ins. 
 Co. 121 U. S. 118, 30 L. ed. 909. 
 
 Under the Act of 1879 in Indiana a 
 receiver could not be appointed to 
 take possession and collect the rents 
 of property sold on foreclosure, while 
 the property was in the possession of 
 and occupied by the mortgagor, du- 
 ring the year allowed for redemption. 
 Sheeks v. Klotz, 84 Ind. 471. But oth- 
 erwise where the mortgaged property 
 is in the hands of an assignee of the 
 mortgagor. Davis v. Newcomb, 72 
 Ind. 413. Or in the possession of a 
 tenant. Connelly v. Dickson, 76 Ind. 
 440; Ridgetcay v. First Nat. Bank, 78 
 Ind. 119. 
 
 See also Buchanan v. Berkshire L. 
 Ins. Co. 96 Ind. 510, 531; Travelers 
 Ins. Co. V. Brouse, 83 Ind. 62; Mevritt 
 v. Gibson, 129 Ind. 155, 161, 15 L. R. 
 A. 277. 
 
 The appointment of a receiver under 
 stipulation of the parties in a foreclos- 
 ure action, after judgment, is not 
 prevented by Iowa Code, § 2903, pro- 
 viding only for the appointment of 
 receivers, under certain conditions, in 
 foreclosure actions during the pend- 
 ency thereof. Hubbell v. Avenue 
 Divest. Co. (Iowa) 66 N. W. 85. 
 
 A receiver of the rents and profits 
 of mortgaged premises may be ap- 
 pointed pending an appeal from an 
 order confirming a sale on foreclosure 
 where the mortgaged property is prob- 
 ably insufficient to pay the morigage 
 debt. Philadelphia Mortg. & T. Co. 
 V. Goos (Neb.) 66 N.W. 843.
 
 KECEiVERSHIP IN FORECLOSURE OF MORTGAGES.' 299 
 
 § 178. General rules applicable. 
 
 The rules applicable to the appointment of receivers in o-en- 
 eral are applicable in all respects to the appointnient of receivers 
 in mort2;ag-e foreclosures, so far as relates to the proj)er person 
 to be selected.' In foreclosure proceedings the receiver is the 
 representative not only of the mortgagee but of all parties in 
 interest, and if for any reason a mortgagee is appointed, his 
 duties as receiver are paramount to any other personal interests 
 he may have. His claims as an individual must not be permitted 
 to interfere with his duties as receiver, or with the purposes or 
 interests for which he was appointed." It has been held that a 
 mortgagee appointed receiver is not entitled to commissions.' 
 In foreclosure proceedings, when a receiver is asked, the applica- 
 tion must show who is in jDOSsession of the premises. Thus, a 
 tenant in possession will not be disturbed if not a party to the 
 suit." 
 
 § 179. Relative rights of senior and junior mortgagees. 
 
 (a) English rule. 
 Under the early English practice the prior mortgagee was re- 
 garded as being vested with the legal title to the premises and 
 entitled to the immediate possession, and was therefore called the 
 legal mortgagee. The holder of a subsequent mortgage was 
 called the equitable mortgagee. Upon default, the legal mort- 
 gagee was entitled to take possession of the premises under his 
 mortgage, and appropriate the rents, issues and profits to the 
 satisfaction of his indebtedness. This right resulted in the estab- 
 lishment of the doctrine in the English courts of refusing to 
 interfere with the right of possession of the legal mortgagee, on 
 the application of a junior incumbrancer, by the appointnient of 
 a receiver, until the former was fully paid." And the same rule 
 
 ' § 21. 6 Trenton Bkg. Co. v. Woodruff, 2 
 
 ^BoUesv. Duff, 37 How. Pr. 162. Green's Ch. 210; Quinn v. Brittain, 
 
 ^ Langtttaff v. Fenwick, 10 Ves. .Jr. 3 Edw. Ch. 314; Berney v. Sewell, 1 
 
 405; Chambers v. Goldwin, 5 Ves. Jr. Jac. & W. 647; United States v. Ma- 
 
 834, note a J Moore v. Cable, 1 Johns. sich, 44 Fed. Rep. 10; Codrington y. 
 
 Ch. 885; Breckenridge v. Brooks, 2 A. Parker, IG Ves. Jr. 469; Hilea v. Moore, 
 
 K. Marsh. 339. 15 Beav. 175. 
 *Sea Ins. Co. v. Stebbins, 8 Paige, 
 
 665.
 
 300 RECEIVERSHIPS. 
 
 applies where the application is by a judgment creditor.' If, 
 however, the senior mortgagee does not take possession, or is not 
 in possession of the premises under his mortgage, on the applica- 
 tion of a junior mortgagee a receiver may be appointed, but it is 
 without prejudice to the rights of the former.' 
 
 (b) American rule. 
 The general practice in this country is for the mortgagee to 
 foreclose his mortgage and procure a sale of the mortgaged prem- 
 ises, for the purpose of satisfying the indebtedness, and not resort 
 to the possession and appropriation of the rents and profits, so 
 that the question of the relative rights of a senior mortgagee in 
 possession and a junior mortgagee seeking to appropriate the 
 rents through a receivership have seldom arisen as under the 
 English practice. Besides, in some of the states the mortgage is 
 regarded as a security simply for the payment of the mortgage 
 indebtedness, the legal title remaining in the mortgagor, and in 
 other states the right to appropriate the rents and profits is based 
 upon equitable grounds rather than upon legal grounds, based 
 upon the legal title. But as between the holders of senior and 
 junior mortgages, where the right to appropriate the rents and 
 profits after default and prior to the execution of a deed is recog- 
 nized and enforced through a receivership, the general rule may 
 be stated as follows: (1) The senior mortgagee has a prior 
 right ; (2) but if he does not seek to enforce such right, and a 
 receiver is appointed on the application of a junior mortgagee, 
 the latter will be entitled to the rents and profits until such time 
 as a receiver is appointed under the prior mortgage, or until the 
 receivership under the junior mortgage is extended to the prior 
 mortgage. It is an equitable lien secured by diligence.* If the 
 
 » Qi«nn V. i5n«am, 3 Edw. Ch. 314; ^ Post v. Doi-r, 4 Edw. Ch. 412; 
 
 United States v. Masich, 4A Fed. Rep. Howell v. Ripley, 10 Paige, 43; Rider 
 
 10. V. Vrooman, 12 Hun, 301; Washing- 
 
 ^Dalmer v. Dashwood, 2 Cox Ch. ton L. Ins. Co. v. Fleisc7iaver, 10 Hun, 
 
 878; Bryan v. Cormick, 1 Cox Ch. 120; Ranney v. Peyser, 83 N. Y. 1; 
 
 422; Fairfield v. Irvine, 2 Russ. 149; Bank of Ogdensburgh v. Arnold, 5 
 
 Tome V. King, 64 Md. 166; Davis v. Paige, 38; Wiswall v. Sampson, 55 U. 
 
 Duke of Marlborough, 2 Swanst. 137. S. 14 How. 52, 14 L, ed, 322; Sales v. 
 
 But see under Supreme Judicature Lusk, 60 Wis. 490. 
 
 Acts of 1873; also Mason v. Westoby, In Washington L. Ins. Co. v. Fleisch- 
 
 L. R. 32 Ch. Div. 206. aner, supra, the court say, upon the
 
 KECEIVERSHIP IN FORECLOSURE OF MORTGAGES. 301 
 
 prior mortgager is a party to the bill of the junior mortgagee, 
 the latter has no exclusive right to the receivership income/ 
 
 authority of Post v. Dorr, supra: "It 
 is an established rule that a second or 
 third mortgagee who succeeds in get- 
 ting a receiver appointed becomes 
 thereby entitled to the rents and prof- 
 its collected during the appointment, 
 although a prior mortgagee steps in 
 and obtains a receivership in his be- 
 half and fails to obtain enough out of 
 the property to pay his debt. This is 
 on the principle that a mortgagee ac- 
 quires a specific lien upon the rents, 
 by obtaining the appointment of a re- 
 ceiver of them, and if he be a second 
 or third encumbrancer, the court will 
 give him the benefit of his superior 
 diligence over his senior in respect to 
 the rents which accrued during the 
 time that the elder mortgagee took no 
 measures to have the receivership ex- 
 tended to his suit for his benefit." Cf. 
 Miltenberger v. Logansport, C. & 8. W. 
 B. Co. 106 U. S. 286, 27 L. ed. 117; 
 Favorite v. Deardorf, 84 Ind. 558; 
 Douglass v. Cline, 12 Bush, 637; Cod- 
 dington v. Bispliam, 36 N. J. Eq. 577; 
 Williamson v. Gerlach, 41 Ohio St. 
 684; Re Snedaker, 4 Nat. Bankr. Reg. 
 44; Thomas v. Brigstocke, 4 Russ. 64. 
 
 And the right of an equitable mort- 
 gagee to a receiver of rents and prof- 
 its is superior to the rights of purchas- 
 ers of the mortgagor's equity of re- 
 demption. Douglass v. Cline, 12 
 Bush, 646; Lofsky v.Mauujer,S Sandf. 
 Ch. 69. And also superior to the 
 rights of judgment creditors in pos- 
 session by sequestration. Shaw v. 
 Wrig7it, 3 Ves. Jr. 22; Walker v. Bell. 
 2 Madd. 21. 
 
 In Virginia a receiver must account 
 according to the priorities of the dif- 
 ferent incumbrancers. Beverley v. 
 Brooke, 4 Gratt. 187. 
 
 ' A prior incumbrancer has a right 
 
 as against a mortgagor and subsequent 
 incumbrancers to the rents and profits 
 accruing subsequent to the appoint- 
 ment. Leeds v. Oifford, 41 N. J. Eq. 
 464. 
 
 Though a receiver will not be ap- 
 pointed on the application of the 
 holder of the legal title, on the ground 
 his legal remedy to obtain possession, 
 yet if the legal mortgagee is prevented 
 by the mortgagor from taking posses- 
 sion, a receiver will be appointed. 
 Truman v. Redgrave, L. R. 18 Ch. D. 
 547. The same rule also applies where 
 the, trustee in a trust deed refuses to 
 take possession after default in the 
 payment of principal and interest. 
 Warner v. Rising Fawn Iron Co. 3 
 Woods, 514. 
 
 On a bill filed by a junior mortga- 
 gee against a senior mortgagee and 
 the mortgagor, the senior mortgagee 
 may be compelled to resort in the first 
 instance to other property held by 
 him as security for the mortgage in- 
 indebtedness, and a receiver be ap- 
 pointed. Henshaw v. Wells, 9 Humph. 
 568. 
 
 Miltenberger v. Logansport, C. & S. 
 W. R. Co. 106 U. S. 286, 27 L. ed. 
 117. 
 
 Where the equity of redemption 
 has become vested in a first mortga- 
 gee, and a second mortgagee files a 
 bill to redeem, a receiver will be ap- 
 pointed if it appears that the first 
 mortgagee has cut timber of greater 
 value than the amount of his mort- 
 gage. SteinJioff v. Brown, 11 Grant 
 Ch. (Ont.) 114. 
 
 A mortgagee in possession of lands, 
 authorized to pay ta.ves and apply the 
 excess to the payment of interest and 
 principal, cannot be dispos.sessed by a 
 receiver in the absence of proof of
 
 302 RECEIVERSHIPS. 
 
 Where the application is on behalf of a junior mortgagee and 
 it appears that the senior mortgagee is satisfied with tlie manage- 
 ment and it fiirtlier appears that the rents are being applied in 
 payment of the mortgage indebtedness, taxes, etc., a receiver will 
 be refused even if the mortgagor is insolvent and the security 
 inadequate.' 
 
 § 180. Application of parties other than mortgagees. 
 
 (a) In behalf of wife. 
 In foreclosure proceedings where the mortgagor's wife has 
 joined her husband in the execution of a mortgage on his real 
 estate to secure a debt due from him, and her inchoate interest in 
 the mortgaged lands has for some cause become absolute, she is, 
 upon a foreclosure of the mortgage entitled to an order that two 
 thirds of the lands to which she has no claim shall be first ex- 
 hausted before a resort shall be had to her interest in the mort- 
 gao"ed property upon the theory that she occupies the relation to 
 the mortgage somewhat analogous to that of a surety for her hus- 
 band, and in such case the wife may procure the appointment of 
 a receiver of the rents and profits in order to protect her interest 
 in the premises,'' 
 
 (b) In behalf of annuitants. 
 Where annuities are charged upon real estate which has been 
 mortgaged to different mortgagees, the annuitant is entitled to a 
 
 waste or an abuse of his right of pos- ceiver appointed in aid of proceedings 
 
 session. Oummings v. Gummings, 75 to foreclose a mortgage does not rest 
 
 Cal. 434. exclusively with the mortgagee, or his 
 
 ^Myton V. Davenport, 51 Iowa, 583. assigns, but may be exercised by any 
 
 A receiver, in general, is only entitled other party to the proceeding when 
 
 to the rents uncollected at the time of necessary to protect his interests in 
 
 his appointment, and he is not entitled the subject-matter of the litigation." 
 
 to the rents collected by an assignee Cf. Medeker v. Parker, 70 Ind. 509; 
 
 in bankruptcy of mortgagor prior to Haggerty v. Byrne, 75 Ind. 499; Leary 
 
 his appointment. Rider v. Vrooman, v. Shaffer .IQlnA. 567; Grave v. Bunch, 
 
 12 Hun, 299. Nor is the mortgagor ac- 83 Ind. 4; Trentman v. Eldridge, 98 
 
 countable for rents collected prior to Ind. 525; Pouder v. Ritzinger, 102 Ind. 
 
 the appointment. Rider y. Bagley, 84: 572; Cuppv. Campbell, 103 Ind. 213; 
 
 N. Y. 461. Ejppes v. Hoppes, 123 Ind. 397; Pur- 
 
 ^Main v. Qinfhart, 92 Ind. 180. The viance v. Emley, 126 Ind. 419. 
 court say: "The right to have a re-
 
 RECEIVERSHIP IN FORECLOSURE OF MORTGAGES. 303 
 
 receiver of the rents and profits where the prior mortgao-ees are 
 not in possession.' 
 
 (c) In behalf of bondholders. 
 
 "Where bonds of a corporation are issued and the property of 
 the company real, and personal, is pledged to secure the same, a 
 receiver may be appointed in behalf of the bondholders, the bonds 
 being in the nature of a mortgage.* 
 
 (d) In behalf of vendors. 
 
 Where a vendor sells land and gives a title bond and there is 
 a default, tender of a deed and bill filed for a specific performance 
 and it appears that the vendee is insolvent a receiver of the rents 
 and profits pendente lite will be appointed.* 
 
 ^Dahner v. Dashwood, 2 Cox, Ch. 
 378. 
 
 ''White Water Valley Canal Co. v. 
 Vallette, 62 U. S. 21 How. 414, 16 L. 
 ed. 154. The court will not appoint a 
 receiver in behalf of a judgment cred- 
 itor when the mortgagee is in posses- 
 sion and has not been paid. Quinn 
 V. Brittain, 3 Edw. Ch. 314; United 
 States V. Masich, 44 Fed, Rep. 10; nor 
 in behalf of heirs-at-law of a deceased 
 mortgagor where the mortgagee is in 
 possession. Faulkener v. Daniel, 10 
 L. J. N. S. Ch. 33. 
 
 The paramount lien acquired by a 
 prior chattel mortgage authorizes the 
 appointment of a receiver on a fore- 
 closure thereof to take charge of the 
 mortgaged property, notwithstanding 
 it has been sold pending such fore- 
 closure under an attachment by other 
 creditors of the mortgagor. Cooper v. 
 Berney Nat. Baiik, 99 Ala. 119; Dol- 
 lins V. Lindsey, 89 Ala. 217. 
 
 ^The principle that a mortgagee, who 
 files a bill to foreclose, and prays for a 
 receiver of rents pendente lite, is enti- 
 tled to a receiver when the mortgaged 
 property is insufficient to pay the debt, 
 and the mortgagor is insolvent, applies 
 where the vendor of lands by title- 
 bond files his bill for specific per- 
 formance. Phillips V. Eiland, 52 
 Miss. 721; Tanner v. Hicks, 4i Smedes 
 & M. 294. 
 
 When a mortgagee is in possession, 
 and is properly managing his trust his 
 possession will not be permitted to be 
 interfered with by a receiver ap 
 pointed in a creditor's proceeding. 
 Ftirlong v. Edwards, 3 ]Md. 99. It is 
 only when the mortgagee in possession 
 is guilty of fraud, waste or misman- 
 agement that a receiver will be ap- 
 pointed. Cummings v. Cummings, 75 
 Cal. 434.
 
 CHAPTER XL 
 
 RECEIVERSHIP IN PARTNERSHIP MATTERS. 
 
 § 190. Power to appoint. 
 § 191. When appointed. 
 
 (a) Where partnership agree- 
 
 ment or duty is violated. 
 
 (b) Where one partner is guilty 
 
 of fraud. 
 
 (c) Where there is serious dis- 
 
 agreement between part- 
 ners. 
 
 (d) Where one partner is guilty § 
 
 of mismanagement. 
 
 (e) Where there is a violation of 
 
 dissolution agreement. 
 
 (f) Where one partner misap- 
 
 propriates firm property. § 
 
 (g) Where there is insolvency of § 
 
 limited partnership, 
 (h) Where plaintiff is entitled to § 
 
 a dissolution, 
 (i) Where upon dissolution § 
 
 partners cannot agree, 
 (j) Where partner in charge § 
 
 after dissolution is insolv- § 
 
 ent. § 
 
 (k) Where there is an exclusion 
 
 of one partner f re m profits. § 
 (1) Where both partners are § 
 
 dead, 
 (m) Where surviving partner is § 
 
 guilty of mismanagement. 
 § 193. When not appointed. § 
 
 (a) Where there is a mere dis- § 
 
 agreement between part- 
 ners. § 
 
 (b) Where existence of partner- § 
 
 ship is not established. § 
 
 (c) Where the only ground is § 
 
 unprofitable business. 
 
 (d) Where defendant is responsi- 
 
 ble and charges not estab- 
 lished. 
 
 304 
 
 (e) Where plaintiff is in posses- 
 
 sion and charge. 
 
 (f) Where plaintiff's allegations 
 
 are fully denied. 
 
 (g) Where it does not appear 
 
 that a dissolution will re- 
 sult, 
 (h) Where a receiver is not 
 necessary. 
 
 193. Prerequisites to appointment. 
 
 (a) Copartnership must be es- 
 
 tablished, and, 
 
 (b) A substantial violation of 
 
 agreement or duty shown. 
 
 194. Who appointed. 
 
 195. Appointment in case of retiring 
 
 partner. 
 
 196. In case of assignment by in- 
 
 solvent partner. 
 
 197. In case of dissolution by 
 
 death. 
 
 198. On application of creditors. 
 
 199. In case of limited partnership. 
 
 200. In case of expiration of part- 
 
 nership. 
 
 201. In case of exclusion of partner. 
 
 202. In case of fraud by one part- 
 
 ner. 
 
 203. Where one partner is misman- 
 
 aging business. 
 
 204. On ground of insolvency. 
 
 205. Where dissolution has taken 
 
 place. 
 
 206. Before dissolution. 
 
 207. On miscellaneous grounds. 
 
 208. Appointment refused when. 
 
 209. Receiver's power and duty. 
 
 (a) Power depends on scope of 
 
 order. 
 
 (b) Legal title to property does 
 
 not vest in him.
 
 RECEIVERSHIP IN PARTNERSHIP MATTERS. 
 
 305 
 
 (c) Cannot loan receivership 
 
 fund to himself or his 
 firm. 
 
 (d) Is representative of all par- 
 
 ties in interest. 
 
 (e) Must use ordinary care and 
 
 reasonable dilicence. 
 
 (f) Maj' maintain actions in 
 
 other states when. 
 
 (g) Has no greater power than 
 
 partners had. 
 § 210. Efifect of appointment, 
 § 211. Receiver as manager. 
 
 § 190. Power to appoint. 
 
 The power of a court of equity, or of a court exercising equity 
 powers, to appoint a receiver in matters of partnership is of long 
 standing and "unquestioned, and usually is incidental to the main 
 proceeding. The inability of partners to sue each other at law 
 has always rendered an equity court the proper and, as a rule, the 
 only forum for the adjustment of partnership difficulties, and the 
 winding-up of such concerns in a proper case, and distribution of 
 the partnership assets. Hence the receivership in all such cases is 
 only incidental, and usually the question of jurisdiction and the 
 inadequacy of relief in common law courts is not involved. The 
 question of the necessity of a receiver is, however, involved in 
 every case, for, in this class of actions, as in others, the appoint- 
 ment is not to be made merely because no one will be injured 
 thereby, and, in fact, the necessity has been termed imperative.* 
 But this probably is stating the doctrine too strongly, at any rate, 
 the appointment rests in the sound judicial discretion of the court 
 or chancellor, to be exercised or not as the circumstances of each 
 case seem to demand, taking into consideration the preservation of 
 the property, or its proceeds, and the protection of the riglits of 
 all parties, as their interests may appear in the final adjtidication.* 
 
 ^Morey v. Grant, 48 Mich. 326. 
 
 * In Slemmer's Apjieal, 58 Pa. 108, 
 it is said: "A partnership will not be 
 dissolved on slight grounds." "In 
 making such a decree the court will 
 consider not merely the terms of the 
 express contract between the partners 
 but also the duties and obligations im- 
 plied in every partnership contract. 
 Smith v. Jeyes, 4 Beav. 503. Where a 
 valuable business has grown up, by 
 the joint labors and contributions of 
 all, the court should be careful to pre- 
 20 
 
 serve it, if possible, and put all par- 
 ties upon a fair and equal footing in 
 competing for it. To appoint a re- 
 ceiver, to direct a sale of the whole 
 and a windingup of the business 
 would destroy its value without bene- 
 fiting either party." The Master of 
 Rolls in Madijwick v. Wunble, 6 Beav. 
 495, says: "It must be admitted that 
 when an application is made for a 
 receiver in partnership cases the court 
 is always phieed in a position of very 
 great dilliculty. On the one hand, if it
 
 306 
 
 RECEIVERSHIPS. 
 
 § 191. Wlieu appointed. 
 
 Stated in general terms a receiver will be appointed in partner- 
 ship matters : 
 
 (a) Where there has been a violation of the partnership agree- 
 ment, or a breach of partnership duty." 
 
 (b) Where one of the partners is guilty of fraudulent acts 
 towards his copartner.' 
 
 (c) Serious disagreement between partners as to the manage- 
 ment or disposition of the firm property.' 
 
 (d) Mismanagement on the part of one partner in charge of 
 business.* 
 
 grants the motion the effect of it is to 
 put an end to the partnership whichone 
 of the parties claims a right to have 
 continued ; and oa the other hand, if it 
 refuses the motion it leaves the defend- 
 ant at liberty to go on with the part- 
 nership business at the risk and prob- 
 ably at the great loss and prejudice of 
 the dissenting party. Between these 
 difficulties it is not very easy to select 
 the course which is best to be taken 
 but 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, and it has accordingly 
 interfered in many such cases." In 
 the case of New v. Wright, 44 Miss. 
 203, the court say: "In order to justify 
 the dissolution of a partnership on 
 the ground of misconduct, abuse, or 
 ill-faith of one of the parlies it is not 
 sufficient to show that there is a 
 temptation to such misconduct, abuse, 
 or ill-faith but there must be an un- 
 equivocal demonstration, by overt acts 
 or gross departures from duty, that 
 the danger is imminent or the injury 
 already accomplished." Citing Story, 
 Partn. § 288; Williams --j. Wilson, 4 
 Sandf. Ch. 379; Harding v. Glover, 
 18 Ves. Jr. 281. 
 
 •JVeio V. Wright, 44 Miss. 202; Allen 
 V. Eawley, 6 Fla. 164; Heathcot v. 
 
 Eavenscroft, 6 N. J. Eq. 113; Jackson 
 V. Sheldon, 9 Abb. Pr. 127; Const v. 
 Harris, Turn. & R. 496; Harding v. 
 Qlover, 18 Ves. Jr. 281; Henn v. 
 Walsh, 2 Edw. Cb. 129; OraicsJiayv. 
 Maule, 1 Swanst. 507; Gowan v. Jef- 
 fries, 2 Ashm. 296; Estwick v. Con- 
 ningsby, 1 Vern. 118; Suirov. Wagner, 
 23 N. J. Eq. 388. 
 
 ^Barnes v. Jo?ies, 91 Ind. 161 ; Shan- 
 non V. Wright, 60 Md. 520. 
 
 ^Terrell v. Goddard, 18 Ga. 664; 
 Goodman v. Whitcomb, 1 Jac. & W. 
 589; Marten v. Van Shaick, 4 Paige, 
 479; Laio v. Ford, 2 Paige, 310; Mc- 
 Cracken v. Ware, 3 Sandf. 688; Bun- 
 hum V. Jarvis, 8 Barb. 88; W/dtman 
 v. Robinson, 21 Md. 30; Loomis v. 
 McKenzie, 31 Iowa, 425; Roberts v. 
 Eberhai'dt or Everhardt, 1 Kay, 148; 
 Const V. Harris, Turn. & R. 518; 
 Speights v. Peters, 9 Gill, 472; William- 
 son V. Wilson, 1 Bland, Ch. 418;. 
 Walker v. House, 4 Md. Ch. 39. 
 
 *Boyce v. Burchard, 21 Ga. 74; Sutro 
 V. Wcgrcer, 23 N. J. Eq. 388; William- 
 son V. Wilson, 1 Bland, Ct^ 418; Todd 
 V. Rich, 2 Tenn. Ch. 107; Jeffreys v. 
 Sinith, 1 Jac. & W. 298; Bentley v. 
 Bates, 4 Younge & C. 182; Hart v. 
 Clarke, 19 Beav. 349; Roberts v. Eber- 
 hardt or Everhardt, 1 Kay, 148; Shejh- 
 pard V. Oxenford, 1 Kay & J. 491.
 
 RECEIVERSHIP IN PARTNERSHIP MATTERS. 
 
 307 
 
 (e) Yiolation of the terms of a dissoiution agreement.' 
 
 (f ) Appropriating firm property to individual nse/ 
 
 (g) Insolvency of a limited partnership/ 
 
 (h) Where the plaintiff on a bill for that purpose is entitled to 
 a dissolution.* 
 
 (i) Where upon dissolution the firm cannot agree upon an 
 adjustment.' 
 
 (j) Insolvency of a partner in charge after dissolution.* 
 
 (k) Exclusion of one partner from the profits or the man- 
 agement.^ 
 
 ^ White V. Colfax. 1 Jones & S. 297; 
 SiTnon v. Schloss, 48 Mich. 233; West 
 V. Chasten, 13 Fla. 315; Drury v, 
 Roberts, 2 Md. Ch. 157; Word v. Word, 
 90 Ala. 81; Berry v. FoUces, 60 Miss. 
 576; Miller v. Jones, 39 111. 54; Bal- 
 lard V. CalKson, 4 W. Va. 326. 
 
 ^rini V. Boncoroni [1892] 1 Ch. 633; 
 Harding v. Qlover, 18 Ves. Jr. 281; 
 Dams V. Qrove,2Rohi. 134, 635; White- 
 sides V. Lafferty, 3 Humph. 150. 
 
 ^Jackson v. Sheldon, 9 Abb. Pr. 127 
 Loitimer v. Lord, 4 E. D. Smith, 183 
 
 * Smith V. Jeyes, 4 Beav. 503; Chap 
 man v. Beach, 1 Jac. & W 589; Gar- 
 retson v. Weaver, 3 Edw. Ch. 385 
 Henn v. Walsh, 2 Edw. Ch. 129; Jack 
 son V. DeForest, 14 How. Pr. 81; Will- 
 iamson V. Wilson, 1 Bland, Ch. 418 
 Wolhert V, Harris, 7 N. J. Eq. 605 
 Harding v. G^^ot-er, 18 Ves. Jr. 281 
 Marten v. Fan Schaick, 4 Paige, 479 
 McElvey v. iewis, 76 N. Y. 373. See 
 Jordan v. ift'Z/er, 75 Va. 442. 
 
 * Van Rensselaer v. Emery, 9 How. 
 Pr. 135; McElvey v. Zeic/.s, 76 N. Y. 
 373; Law v. i^or(?,2 Paige, 310; Mar- 
 tin V. iSmVi, 21 Jones & S. 277; ilfar- 
 ten V. F«n Schaick, 4 Paige, 479; Dunn 
 V. McNaught, 38 Ga. 179; 5a^for v. 
 Mockhie, 9 Iowa, 209. 
 
 ^Randall V. Morrcll, 17 N. J. Eq. 343. 
 
 Failure of surviving partners to 
 clo.se out the partnership business 
 within a year after the death of one 
 of the partners, as provided for in the 
 
 articles of copartnership, will not re- 
 quire the appointment of a receiver, 
 where they acted in good faith be- 
 lieving that such action would be 
 prejudicial to all concerned, and 
 agree to close out the business at 
 once upon the commencement of pro- 
 ceedings for an accounting. Mason 
 V. DaiDson, 15 Misc. 595. 
 
 ''Katsch V. Schenck, 18 L. J. Ch. N. 
 S. 386; Wolbert v. Harris, 7 N. J. Eq. 
 605; Kirby v. Ingersoll, 1 Dougl. 
 (Mich.) 477; Katz v. Brewington, 71 
 Md. 79; Wilson v. Greemcood, 1 
 Swansl. 482; Const v. Harris, Turn. 
 & R. 496, 535; Seibert v. Seibert, 1 
 Brewst. 531 ; Norway v. Bowe, 19 Ves. 
 Jr. 144; Milbank v. Bevett, 2 Meriv 
 405; Boyce v. Burchard, 21 Ga. 74 
 See Terrell v. Ooddard, 18 Ga. 664 
 Butter yr. Tallis, 5 Sandf. 610; William 
 son V. Wilson, 1 Bland, Ch. 418; Hayes 
 V. Heyer, 3 Sandf. 284; McCracken v. 
 Ware, 3 Sandf. 688; Wetter^. Schlieper, 
 4 E. D. Smith, 707; Speights v. Deters, 
 9 Gill, 472; Harding v. Glover, 18 
 Ves. Jr. 281 ; Haight v. Burr, 19 Md. 
 130; Gowan v. Jeffries, 2 Ashm. 296; 
 Shannon v. Wright, 60 Md. 520; Butch- 
 art V. Dresser, 4 DeG. M. & G. 543; 
 Barnes v. Jones,^\ Ind. 110; cf. Baylor 
 V. Sidener, 100 Ind. 179; Blackeney v. 
 Dufaur, 15 Beav. 40; Norway v. 7Zr>w«, 
 19 Ves. Jr. 159; Deacockv. Peacock, 16 
 Ves. Jr. 49.
 
 308 
 
 RECEIVERSHIPS. 
 
 (1) TVliere both partners are dead.' 
 
 (m) AVliere one partner is dead and the survivor is misman- 
 aging." 
 
 § 192. Wlieii not appointed. 
 
 A receiver will not be appointed on the application of one part- 
 ner against his copartner : 
 
 (a) Where it appears that there is a mere disagreement between 
 the partners.' 
 
 (b) Where it does not clearly appear that the relation between 
 the parties constitutes a partnership.* 
 
 (c) Where the only ground alleged is the unprofitableness of 
 the business.* 
 
 (d) Where the defendant is resj)onsible and danger of loss is 
 not alleged and shown." 
 
 (e) Where the plaintiff is in possession of the partnership 
 property.'' 
 
 (f) Where the case made by plaintiff's bill or petition is fully 
 . denied by defendant's answer.* 
 
 ^Philips V. Atkinson, 2 Bro. C. C. 
 273; Wilson v. Oreemcood, 1 Swanst. 
 480; IMl V. Hall, 3 Macn. & G. 79. 
 
 nValkerv. House, 4 Md. Ch. 39; 
 Miller v. Jones, 39 111. 54; Madgicick 
 V. Wiinhle, 6 Beav. 495; Nelson v. 
 Hayner, 66 111. 487; Oratz v. Bayard, 
 11 Serg. & R. 41; Jacquin v. Buisson, 
 11 How. Pr. 385; Clegg v. Fishwick, 
 1 Macn. & G. 264; Evans v. Evans, 9 
 Paige, 178; Renton v. Chaplain, 9 N. 
 J. Eq. 63; Hubbard v. Ouild, 1 Ducr, 
 662; Law v. Ford, 2 Paige, 310. 
 
 ^Henn v. Walsh, 2 Edw. Ch. 129; 
 Law V. Ford, 2 Paige, 310; Loomis v. 
 McKenzie, 31 Iowa, 425; Marten v. 
 Van Schnick, 4 Paige, 479; New v. 
 Wright, 44 Miss. 202; Slemmer's Ap- 
 peal, 58 Pa. 168. 
 
 *KerT V. Potter, 6 Gill, 404; Nutting 
 V. Colt, 7 N. J. Eq. 539; Incin v. 
 Everson. 95 Ala. 64; Peacock v. Pea- 
 cock, 16 Ves. Jr. 49; Hohartv. Ballard, 
 31 Iowa, 521; Qoulding v. Bain, 4 
 
 Sandf. 716; Popper v. Scheider, 7 Abb. 
 Pr. N. S. 56. See Katsch v. Schenck, 
 18 L. J. Ch. N. S. 386. 
 
 ^Moies V. ONeill. 23 N. J. Eq. 207; 
 Shoemaker v. Smith, 74 Ind. 71. 
 
 \Kilbreth v. Root, 33 W. Va. 600; 
 Loomis V. McKenzie, 31 Iowa, 425; 
 Simon v. Schloss, 48 Mich, 233; HejU- 
 bower v. Buck, 64 Md. 15; Wellman v. 
 Harker, 3 Or. 253; Quinlivan v. Eng- 
 lish, 44 Mo. 46; Buchanan v. Comstock, 
 57 Barb. 568; Hayes v. Heyer, 4 
 Sandf. Ch. 485; Renton v. Chaplain, 9 
 N. J. Eq. 62; Ex parte Owen, L. R. 
 13 Q. B. Div. 113. 
 
 "iSmith V. Lowe, 1 Edw. Ch. 33. See 
 Hoffman v. Duncan, 17 Jur. 825; Rob- 
 erts V. Eberhardt or Everhardt, 1 Kay, 
 148; Buchanan v. Comstock, 57 Barb. 
 568. 
 
 ^Williamson v. Monroe, 3 Cal. 383; 
 Rhodes v. Lee, 32 Ga. 470; Hottenstein 
 V. Conrad, 9 Kan. 435; Coddington v. 
 Tappan, 26 N. J.Eq. 141; Parkhurstv.
 
 KEUEIVERSHIP IN PARTNERSHIP MATTERS. 
 
 309 
 
 (g) Where it does not appear that on final decree the partner- 
 ship will be dissolved.' 
 
 (li) And where a dissolution is probable but it does not appear 
 that a receiver is necessary to protect the interests.* 
 
 § 193. Prerequisites to appointment. 
 
 The appointment of a receiver in matters of partnership is in 
 all cases dependent upon certain facts, the existence of which is 
 necessary to be alleged and shown as preliminary to the relief 
 prayed for, and as preliminary to the jurisdiction of the court in 
 granting such relief. 
 
 (a) A partnership must be alleged, or at least, such relationship 
 inter se as practically amounts to a partnership, which is usually 
 determined by a participation in the profits of the concern. Such 
 partnership must exist in fact and not merely in name, for an em- 
 ployee though nominally a partner, is not entitled to invoke the 
 aid of the court in the appointment of a receiver, nor is the exis- 
 tence of an agreement between the parties which may ripen into 
 a partnership sufiicient.' 
 
 Muir, 7 N. J. Eq. 307; Rennv. Walsh, 
 3Edw. Ch. 129; Popper v. Sclieider, 
 7 Abb. Pr. N. S. 56. 
 
 ^Garretson v. Weaver, 3 Edw. Ch 
 385; Jackson v. De Forest, 14 How. Pr 
 81 ; Van Rensselaer v. Emery, 9 How 
 Pr. 135; Bufkin v. Boyce, 104 Ind 
 53; Whitman v. Robinson, 21 Md. 30. 
 Richards v. Baurman, 65 N. C. 162; 
 Roberts v. Eberhardt or EverJiardt, 1 
 Kay. 148; Hall v. Hall, 3 Macn. & G. 
 79; Goodman v. Whitcomb, 1 Jac. & 
 "W. 589; Chapman v. Beach, 1 Jac. & 
 W. 594; Smith v. Jeyes, 4 Beav. 503. 
 
 "^Birdsall v. Colie, 10 N. J. Eq. 63; 
 Cox V. Peters. 13 N. J. Eq. 39. If the 
 defendant offers to secure the plaintiff 
 a receiver is not necessary. Buchanan 
 V, Com&tock, 57 Barb. 568; cf. Saverios 
 V. Levy, 1 N. Y. S. R. 758; Popper v. 
 Scheider, 7 Abb. Pr. N. S. 56; Garret- 
 son V. Weaver, 3 Edw. Ch. 385; Tom- 
 linson v. Ward, 2 Conn. 396; Page v. 
 Vankirk, 1 Brewst, 290; Slemmer's 
 Appeal, 58 Pa. 168. 
 
 »In EerrY. Potter, 6 Gill, 404, one 
 of the parties was to have one fourth 
 of the net profits of the business, but 
 under a provision of the contract it 
 was provided that they were not to be 
 partners by reason of the division of 
 the profits; it was held not to be a 
 partnership and there was error in ap- 
 pointing a receiver. And so where a 
 person was employed at a salary of 
 $500 and one fourth the net profits. 
 Nutting v. Colt, 7 N. J. Eq. 539. Con- 
 tra, where the salary was £100 and 
 one fifth of the net profits on all new 
 business. Eatsch v. Schenck, 18 L. 
 J. Ch. N. S. 386. An agreement of 
 partnership which has not been exe- 
 cuted is not suflScient. Hohartv. Bal- 
 lard, 31 Iowa, 521. In the absence of 
 proof of danger the court will not ap- 
 point a receiver where the partnership 
 is denied. Goulding v. Bain, 4 Sandf. 
 716; citing Peacock v. Peacock, 16 Ves. 
 Jr. 49. And where it is distinctly de- 
 nied that certain property is partner-
 
 310 
 
 EECEIVERSHIPS. 
 
 The appointment of a receiver in matters of partnership is also 
 dependent upon certain well-defined principles recognized by 
 courts of chancery, and without the existence of which in all cases 
 the court will refuse to 'grant the relief prayed for. Many of 
 these principles are universal in their nature and are applicable 
 alike to all classes of receiverships and having already been con- 
 sidered will not in this connection be repeated. It may be stated, 
 however, in general terms as necessary elements in the applica- 
 tion for a receiver in all partnership matters : 
 
 (b) The existence of a partnershij) agreement being established, 
 on a bill tiled by one partner, it must be shown that there has 
 been a substantial violation of some material portion of the part- 
 nership agreement, such as will be sufficient cause for a dissolu- 
 tion of the partnership. It follows that mere disagreements and 
 quarrels between the partners will not warrant the intervention 
 of the court.' 
 
 ship property the court will decline a 
 receivership. Gregory v. Gregory, 1 
 Sweeney, 613. In King v. Barnes, 51 
 Hun, 550, the action was brought to 
 establish and enforce the rights of the 
 parties who had advanced money and 
 incurred liabilities in reliance upon 
 the agreement for a joint enterprise, 
 and it was held that the case was pe- 
 culiarly within the jurisdiction of a 
 court of equity and that a receiver was 
 necessary to final and complete relief. 
 See same case on joint relationship of 
 the parties in 109 N. Y. 267. In Law 
 V. Garrett, L. R. 8 Ch. Div. 26, the 
 court refused a receiver on the ap- 
 plication of one partner on the ground 
 that the partners by an agreement had 
 referred all matters in dispute to a 
 foreign court, and although the court 
 had a right to appoint pending an ar- 
 bitration it would not do so unless a 
 special case was made, on the ground 
 that it would interfere with the court 
 of arbitration. Cf. Semple v. Flynn 
 (N. J.) 8 Cent. Rep. 549. As to part- 
 nership as between the parties see 
 Waagh v. Carver, 2 H. Bl. 235, 246. 
 
 A receiver will not be appointed nor 
 an injunction granted in proceedings 
 to dissolve an alleged partnership 
 where the partnership is denied, un- 
 less it clearly appears that a partner- 
 ship exists or that the fund is in dan- 
 ger. McCartyv. Stanwix, 16 Misc. 133. 
 
 ^ Speights \. Peters, 9 Gill, 472. In this 
 case the court held in an action be- 
 tween two parties that as against the 
 legal title, or a strong presumptive 
 title in the defendant the court would 
 interfere with great reluctance, and 
 only where theproperty wasin danger 
 of being materially injured or lost. 
 In Whitman v. Robinson, 21 Md. 30, 
 the evidence showed "a serious and 
 irreconcilable disagreement between 
 the parties both as to the control and 
 disposition of the property and ef- 
 fects," a receiver was appointed. 
 In Sloan v. Moore, 87 Pa. 217, the 
 court say: "Indeed it is difficult to see 
 how the necessity of a receiver can be 
 avoided on the dissolution of a part- 
 nership when the parties cannot agree 
 as to the disposition of the joint ef- 
 fects for no one has a right to their
 
 RECEIVERSHIP IN PARTNERSHIP MATTERS. 
 
 811 
 
 § 194. Who appointed. 
 
 The general principles in regard to the proper person to be se- 
 lected as receiver have elsewhere been considered, and as a rule 
 are applicable to receiverships in partnership matters. And while 
 it is not the usual practice, or a very common practice, to appoint 
 one of the partners receiver, yet it is sometimes done where the 
 circumstances indicate that such a course would be productive of 
 the best interests of all parties concerned. This course is espe- 
 cially beneficial where the partnership property consists largely 
 of the good will, and the protection of the good will depends 
 upon the continuation, for the time being, of the business by a 
 person thoroughly acquainted with the nature of the business, and 
 
 possession and control superior to that 
 of the other." Cf. Walker v. House, 
 4Md. Ch. 43; Speights v. Peters, supra. 
 In AlUn V. Rowley, 6 Fla. 142, 164, 
 the court say: "From the examination 
 which we have made of the authorities 
 on this subject we think the law may 
 be considered as settled that whenever 
 the intervention of a court of equity 
 becomes necessary, in consequence of 
 dissensions or disagreements between 
 the partners, to effect a settlement and 
 closing up the partnership concerns, 
 upon a bill filed by any of the partners 
 showing either a breach of duty on 
 the part of the other partners or a vio- 
 lation of the agreement of partnership 
 a receiver will be appointed as a mat- 
 ter of course." Where the petition 
 showed a probable right to the prop- 
 erty in the plaintiff, or a portion 
 thereof and that there was danger of 
 being lost or materially injured or im- 
 paired, the appointment is proper. 
 Saylor v. Mockbie, 9 Iowa, 209. In 
 Slemmefs Appeal, 58 Pa. 168, it was 
 held that if it appeared that the part- 
 nership could no longer be carried on 
 •with comfort and advantage a receiver 
 ■would be appointed. Cf. Jordan v. 
 Miller, 75 Va. 442 ; Gridley v. Conner, 
 2 La. Ann. 87. 
 
 In American Loan & T. Co. v. To- 
 ledo, C. & S. R. Co. 29 Fed. Rep. 416, 
 which was a foreclosure case on the 
 subject of di-sagreements the court 
 says: ' 'All this character of allegations 
 in the bill amount to protests against 
 the management of the company un- 
 der its present control, and are such 
 as a critical business judgment might 
 make against the management of al- 
 most any railroad enterprise a mere 
 conflict of opinions as to business 
 operations. In Uale v. Hale, 4 Beav. 
 369, it was held that a dormant part- 
 ner was entitled to a receiver as 
 against the managing partners. Where 
 there is such a difference between the 
 parties that each files a bill in equity 
 for relief and the business consists 
 principally of goodwill, the court will 
 order an immediate sale of the prop- 
 erty and good will, and restrain the 
 parties from conducting the same busi- 
 ness directly or indirectly in the city 
 where the partnership had been car- 
 ried on. Williams v. Wilson, 4 Sandf. 
 Ch. 405. Cf. Pratt v. Underwood, 4 
 N. Y. Civ. Proc. 167, cs to continua- 
 tion of the business by one partner, 
 and also as to the character of dis- 
 agreement which will authorize the 
 appointment.
 
 '312 
 
 RECEIVERSniPS. 
 
 in many cases no one can be selected who is so competent for this 
 as one of the partners, particularly if he be one through whose in- 
 strumentality and business judgment the business has been es- 
 tablished. An element to be considered in the discretion to be 
 exercised in this connection is the interest of the respective 
 parties. Thus if the defendant in possession has a much larger 
 interest in the profits of the business and has been the manager 
 thereof and the plaintiff has comparatively a small proportion of 
 the net profits and has not been in the active management it 
 would seem to be peculiarly a case where the defendant should 
 be continued in charge as receiver, and particularly so in the ab- 
 sence of mismanagement or insolvency. Of course where one of 
 the j)artners is appointed receiver he becomes an officer of court, 
 and conducts the business and closes it up, in all respects as other 
 receivers, and his duties and liabilities are governed in all respects 
 by the same rules, except in the matter of compensation, the 
 court usually requiring such receiver to act without compensation.' 
 
 'As to the appointment of one of 
 tlie parties as receiver the court in 
 Blakeney v. Dufaur, 15 Beav. 40, says: 
 "It is probable that if the master 
 should appoint either of the partners 
 he will select the one who is at pres- 
 ent in possession of the assets; but he 
 would then be in possession of the as- 
 sets in a totally different character 
 from that in which he is at present. 
 He would then be the officer of the 
 court, having given due security to 
 account for the moneys he shall re- 
 ceive; but in such case it is without 
 salary. In Brien v. Uarriman, 1 
 Tenn. Ch. 467, it was held to be un- 
 usual to appoint one of the partners 
 receiver, but if it was done it must be 
 without salary." Citing Wilson v. 
 Greenioood, 1 Swanst. 481. Where a 
 partner is appointed receiver and 
 carries on the business under the di- 
 rection of the court and large profits 
 accrue therefrom, all the parties are 
 permitted to participate in such profits. 
 McMahon v. McClernan, 10 W. Va. 
 419, 467; but see Durbinv. Barber, 14 
 
 Ohio, 311; Whitesides v. Lafferty, 3 
 Humph. 150; Taylor v. Hutchison, 25 
 Gratt. 536. In Beverley v. Brooke and 
 Beverley v. Scott, 4 Gratt. 212, it is said: 
 " During such controversy the rents 
 are accruing in the custody of the court 
 ready to be paid over to the party ulti- 
 mately prevailing. In truth from the 
 time of the order of appointment both 
 parties are in possession by the hand 
 of the receiver and when the question 
 of right is ultimately decided the pos- 
 session of the party prevailing be- 
 comes exclusive throughout the whole 
 period by relation to the date of the 
 order. This is clear both upon prin- 
 ciple and authority. In such case 
 there can be no rule of diligence for 
 the exclusive appropriation of the 
 rents." As to the propriety of ap- 
 pointing one of the partners receiver 
 and manager the master of rolls in 
 Sargant v. Read, L. R. 1 Ch. Div. 600. 
 608, says: " It seems the plaintiffs are 
 entitled on the undisputed figures to 
 rather more than three fourths of the 
 capital; they are entitled either to
 
 RECEIVERSHIP IN PARTNERSHIP MATTERS. 
 
 313 
 
 The appointment of one of the partners as receiver is frequently 
 made by agi-eement of the parties in interest, as in so doino- he is 
 under the control and direction of the court, so that no inteix-st 
 can be prejudiced and the bond given is a protection as to the 
 proceeds.' 
 
 § 195. Appoiiitnient in case of retiring partner. 
 
 The court is frequently called upon to appoint a receiver in tiie 
 interest of a retiring partner where the terms of the dissolution 
 agreement are being violated. Thus where a partnership has been 
 dissolved by mutual agreement and by the terms of dissolution 
 the remaining partners continuing the business assume and agree 
 to pay the outstanding firm liabilities and there is a violation of 
 the agreement in this regard, the court may properly appoint a 
 receiver, at least of so much of the firm assets as will be sufficient 
 to discharge the remaining firm indebtedness.^ This is based 
 
 three fourths or four fifths of the 
 profit; and they are the original own- 
 ers of the business who have been car- 
 rying it on without any substantial in- 
 terference on the part of the defend- 
 ant for upwards of a year. It ap- 
 pears that the defendant was unable 
 through ill health to attend tobusiness, 
 but that does not at all affect the fact 
 that they are the persons who carried 
 it on. * * * On the other hand if 
 I deprive the plaintiff of the oppor- 
 tunity of being receiver I might in- 
 flict most serious injury on the busi- 
 ness." Cf. Collins V. Barker [ISUo] 1 
 Ch. 578; Reynolds v. Austin, 4 Del. 
 Ch. 24. 
 
 ^Conner v. Belden, 8 Daly, 257; 
 Whifeyides v. Litfferty, 3 Humph. 150; 
 Todd V. Rich, 2 Tenn. Ch. 107. 
 
 ^Wesl V. Chasten, 12 Fla. 315. The 
 court held that so long as the effects 
 are impressed with the character of 
 partnership property a dissolution 
 cannot destroy the rights each partner 
 has to a general accounting, the pay- 
 ment of tlie partnership debts, and a 
 division of the surplus, according to 
 
 their respective interests. The disso- 
 lution destroyed the relation of part- 
 nership, but with it a new relation 
 was created, to wit, the obligation of 
 the remaining partner to pay the debts 
 of the firm from the firm assets trans- 
 ferred to him for that purpose. In 
 Drury v. Roberts, 2 Md. Ch. 157, 
 where the right to the collection of 
 the firm assets and the winding-up of 
 the firm business was delegated to one 
 partner, it was held that there must 
 be an abuse of this delegated power 
 shown, or danger in order to justify 
 the court in appointing a receiver. If 
 he is wasting or misapplying the prop- 
 erty, or if there is danger of insol venc}', 
 or fraud, the court will intercede. 
 If, however, all these allegations are 
 denied by answer the necessity is re- 
 moved. If the parlies on dissolution 
 have agreed upon the method of col- 
 lection of the accounts and the de- 
 fendants are responsible no sullicient 
 ground is shown for a receiver. Simon 
 V. Schloss, 48 Midi. 233; Arnold v. 
 Bright, 41 Mich. 210. In Hayes v. 
 Ueyer, 4 Sandf. Ch. 485, a bill was
 
 314 
 
 RECEIVERSHIPS. 
 
 upon the doctrine of principal and suretyship or perhaps more 
 properly upon the relation of trusteeship. By the terms of the 
 dissolution the relirin,^ partner transfers to the remaining part- 
 ner the legal title to the partnership assets and the latter in con- 
 sideration of such transfer undertakes to discharge tlie firm lia- 
 bilities. He thus liolds the property of the late iirm charged with 
 a specific purpose and the courts jealously protect the interests of 
 the retiring partner therein. There may also be a violation of 
 the terms of the dissolution agreement in other important par- 
 ticulars which will be ample cause for the intervention of the 
 
 filed by one partner against another 
 partner and his assignee seeking to 
 set aside an alleged fraudulent assign- 
 ment made by the latter for the benefit 
 of creditors, without preference, and 
 on motion for a receiver the court re- 
 fused to appoint, declining to decide, 
 however, as to the right of one part- 
 ner to make a valid assignment, no 
 insolvency appearing. (See note to this 
 case as to the power of one partner to 
 make an assignment without the con- 
 sent of the other.) Where partners 
 cannot agree as to the mode of liquida- 
 tion, the court will appoint a receiver; 
 and if on the dissolution the partners 
 make an agreement as to the mode of 
 winding up the affairs and select one 
 of their number to collect the assets, 
 and pay the debts and distribute the 
 remainder, a court of equity will not 
 interfere and appoint a receiver, unless 
 the parties prove recreant to the trust 
 imposed upon them by the dissolution 
 agreement. The retiring partners 
 have a right to receive all information 
 respecting collections made, and ac- 
 cess to the books, and where, by reason 
 of bitter enmity between the parties, 
 this information and access cannot 
 reasonably be expected, and money 
 that should be applied on firm indebt- 
 edness is diverted or not used for that 
 purpose a receiver will be appointed. 
 White V. Colfax, 1 Jones & S. 297. 
 
 In Allyn v. Boorman, 30 Wis. 684, the 
 retiring partner is held to occupy the 
 relation of surety and entitled to the 
 rights of a surety. In Law v. Ford, 2 
 Paige, 310, it was held that where 
 either partner has a right to dissolve 
 the partnership, and there is no pro- 
 vision as to a settlement the appoint- 
 ment of a receiver is a matter of 
 course, and the court will direct the 
 receiver to apply the assets ratably 
 and without preference. To the same 
 effect is Marten v. Van Schaick, 4 
 Paige, 479. On a creditor's bill 
 against a dissolved firm where one has 
 assumed the indebtedness, it was held 
 that a receiver should be appointed 
 over the separate property of the re- 
 maining partner and the partnership 
 property but not over the separate 
 property of the retiring partner. 
 Henry v, Henry, 10 Paige, 814. In 
 the absence of danger the court will 
 not appoint a new receiver in lieu of 
 coreceivers previously appointed by 
 consent of all parties, where the only 
 cause of disagreement was their in- 
 compatibility of temper and personal 
 quarrels. Conner v. Belden, 8 Daly, 
 257. Cf. Harding v. Olover, 18 Ves. 
 Jr. 281; Peacock v. Peacock, 16 Ves. 
 Jr. 49; Wilson v. Oreemcood, 1 Swanst. 
 471; Butchartv. Dresser, 4 DeG. M. «& 
 G. 542.
 
 EECEIVERSHIP IN PARTNERSHIP MATTERS. 
 
 315 
 
 court and the appointment of a receiver.' But in this class of 
 receiverships, as in others, the element of danger is in all cases a 
 necessarj' element in the absence of which the court will refuse 
 to act.^ 
 
 § 196. Ill case of assignment by insolvent partner. 
 
 The appropriation of the firm assets by an insolvent member of 
 the lirm by means of an assignment for the benefit of creditors 
 will not be permitted by the court, and on application of the 
 solvent members against such insolvent member thus seeking to 
 dispose of the firm property and his assignee, the assignment may 
 be set aside and an injunction granted and receiver appointed.' 
 
 ' White V. CoJfax, 1 Jones & S. 297; 
 also preceding note. 
 
 ^Simon v. Schloss, 48 Mich. 233; West 
 ¥.• Chasten. 12 Fla. 315; Drury v. 
 Roberts, 2 Md. Ch. 157. 
 
 * Davis Y.Qrove, 2^oh\.. 134, 635. In 
 thiscase one firm entered into an agree- 
 ment with another firm to do business 
 on joint account in the purchase and 
 sale of sugar. One of the firms made 
 a general assignment for the benefit of 
 creditors, without preference. The 
 other firm filed a bill against the in- 
 solvent firm and its assigns; it was 
 held that the relation of the two firms 
 was that of partners, on the authority 
 of CumpstoriY. McNair, 1 Wend. 457; 
 Beynolds v. Cleveland, 4 Cow. 282; 
 Mumford v. Nicoll, 20 Johns. 611; and 
 SmUh V. Wright, 1 Abb. Pr. 243; that 
 the interest of each partner in the 
 assets and stock of the partnership 
 was subject to the lien of the other 
 partners for payment beyond their 
 share of the debts of the company, 
 and was applicable to the payment of 
 debts not paid, before any division of 
 the partnership property (Addison 
 V. Burckmyer, 4 Sandf. Ch. 488; Kirhy 
 V. Sehoonmaker, 3 Barb. Ch. 46; 
 Geortner v. CanajoJiarie, 2 Barb. 625) ; 
 that the assignment of one firm only 
 carried that residuary interest, as it 
 
 was general of the real and personal 
 estate of the assignors; that the at- 
 tempt of the assigning firm to appro- 
 priate the partnership assets entitled 
 the other firm to a receiver. Hard- 
 ing V. Clover, 18 Ves. Jr. 281; Roberts 
 V. Eberhardt, 23 Eng. L. & Eq. 245; 
 Wilson Y. Greenwood, 1 Swanst. 471, 
 480; Const v. Harris, Turn. & R. 496; 
 Hubbard v. Guild, 1 Duer, 662. In 
 Seibert v. Seibert, 1 Brewst. 531, one 
 partner sold his interest to another 
 member and it was held that the sale 
 was a dissolution of the firm, and that 
 the vendee bought nothing but the 
 right to account, but even in such 
 case the remaining partner had no 
 right to exclude the selling partner 
 or his assignee and set up an adverse 
 interest. The court say: " He (the 
 remaining partner) cannot be per- 
 mitted to close the door in the face of 
 one who holds the undisputed assign- 
 ment of a partner's share, and say to 
 his cestui que trust 1 liold, use, and 
 trade with all the property as my 
 own." Cf. Hayes v. Heyer, 4 Sandf. 
 Ch. 485; Rutter v. Tallis, 5 Sandf. 
 610. 
 
 The court in Kirby v. IngersoU, 1 
 Dougl. (Mich.) 477, lays down the 
 following general rule: The power of 
 dissolving the firm and at the same
 
 316 
 
 RECEIVERSHIPS. 
 
 But ^yhen a firm has been dissolved by agreement and one part- 
 ner agrees to close up the business and pay the firm liabilities, 
 and makes an assignment for the benefit of creditors equally and 
 without preference, such assignment will be upheld in the absence 
 of any showing of danger of loss through the assignee by reason 
 of insolvency.' 
 
 § 197. Ill case of dissolution by death. 
 
 The death of a partner, as a rule, dissolves the partnership but 
 the surviving partner or partners are required to wind up the 
 partnership business and for the purpose of doing so are entitled 
 to remain in possession of the business and the partnership assets 
 for a reasonable time, in the absence of a statute, to close up the 
 
 time excluding the other partners 
 from all participation in the adminis- 
 tering of the property by the appoint- 
 ment of a trustee for preferred cred- 
 itors cannot be presumed among the 
 powers granted by partners to each 
 other. Power beyond this may be 
 given in particular instances.or may be 
 inferred from the conduct and course 
 of business of the partners. The cir- 
 cumstances in which one partner is 
 placed may sometimes give him power 
 to do what otherwise the law would 
 not imply. The circumstances must 
 in such case be such as to authorize 
 the presumption that such power was 
 conferred by the other partners, as 
 where one partner is abroad and has 
 confided the management of the busi- 
 ness to the home partner. Cf . Ander- 
 son V. Tompkins, 1 Brock. 456. 
 
 ' In Benton v. Chaplain, 9 jST. J. Eq. 
 62, it was held that when one part- 
 ner's interest is levied on and sold it 
 works a dissolution of the firm but 
 the court will not appoint a receiver 
 except in case of gross misconduct of 
 the remaining partner. HeatJicot v. 
 Ravenscroft, 6 N. J. Eq. 113. In 
 Kirby v. Ingersoll, 1 Dougl. (Mich.) 
 477, it was held that the implied au- 
 thority arising from the ordinary con- 
 
 tract of partnership does not authorize 
 one partner without the assent of the 
 other partners to make a general as- 
 signment of the partnership effects to 
 trustees for the benefit of creditors, 
 giving preference to some creditors 
 over others; and where it appears 
 that such assignment was made with- 
 out any pressing necessity therefor, 
 and with a view of dissolving the 
 partnership and thereby depriving 
 other partners of the power in the 
 management and disposition of the 
 partnership property it was fraudulent 
 and void. The general rule is that 
 one partner has no right to make an 
 assignment of the partnership effects 
 without the consent of the other part- 
 ner. Bickinwn v. Legare, 1 Desauss. 
 Eq. 5§7. But this rule probably has an 
 exception where one partner is abroad 
 and has confided the management to 
 the resident partner. Harrison v. 
 Sterry, 9 U. S. 5 Cranch. 289, 3 L. ed. 
 104; Cf. Egberts v. Wood, 3 Paige, 517; 
 the authority in such case would 
 probably be implied, but no authority 
 by implication can arise by the simple 
 partnership relationship. Hazens v. 
 Hussey, 5 Paige, 30; Hitchcock v. Si. 
 John, 1 Hoffm. Ch. 511,
 
 RECEIVERSHIP IN PARTNERSHIP MATTERS. 
 
 317 
 
 business and account to the representatives of the deceased part- 
 ner for his interest in the concern. During the winding-up of 
 the partnership business by the surviving partner or partners the 
 court is frequently called upon to protect the interest of the de- 
 ceased partner against misuianagement or fraud or great danger 
 of loss, which is usually accomplished by the appointment of a 
 receiver.* 
 
 ' In Connor v. Allen, Harr. Ch. 
 (ISIich.) 371, it is held that a surviving 
 partner has a legal right to the posses- 
 sion of the partnership property and 
 the court will not deprive him of that 
 right except upon proof of misman- 
 agement or danger to the partnership 
 effects. Cf. Walker v. Home, 4 Md. 
 Ch. 39; Philips v. Atkinson, 2 Bro. C. 
 C. 272; Jacquin v. Buisson, 11 How. 
 Pr. S85; Davis v. Amer, 3 Drew. 64; 
 Kirkpatrick v. McElroy, 41 N, J. Eq. 
 589; Murray v. Mumford, 6 Cow. 441; 
 Case V. Abeel, 1 Paige, 393. 
 
 If both partners are dead the court 
 will, as a matter of course, appoint a 
 receiver. Where both are living and 
 either has a right to dissolve the part- 
 nership, and the partnership agree- 
 ment makes no provision for closing 
 up the business a receiver will be ap- 
 pointed, as of course, if the partners 
 cannot agree between themselves. 
 Walker v. House, supra; Law v. Ford, 
 2 Paige, 310; Evans v. Evans, 9 Paige, 
 178. 
 
 If the survivor does not, within a 
 reasonable time, account with the ex- 
 ecutor, and come to a settlement, 
 equity will interfere, in order to pre- 
 vent loss, and appoint a receiver. 
 Hartz v. Schrader, 8 Ves. Jr. 317. 
 
 If both partners are living it must 
 appear that in the end, or on the final 
 hearing there will be a dissolution of 
 the copartnership. Waters v. Taylor, 
 15 Ves. Jr. 10; Peacock v. Peacock, 16 
 Ves. Jr. 57. 
 
 The court will not interfere in case 
 
 of an existing partnership except for 
 mismanagement or violation of the 
 partnership agreement, and where one 
 partner dies the surviving partner has 
 a right to remain in possession and 
 close up the partnership business, and 
 in such case the court will not inter- 
 fere by the appointment of a receiver 
 in the absence of unfaithfulness or in- 
 solvency. Where by agreement the 
 capital in the business is to remain 
 for a given length of time, the act- 
 ing partner has a right to use such 
 capital and can only be interfered 
 with on such ground as would justify 
 a dissolution of the partnership be- 
 fore the time limited therefor. Jac- 
 quin V Buisson, 11 How. Pr. 385. 
 Where a partnership has terminated 
 by agreement and it is part of the 
 terms of dissolution that a third per- 
 son should collect the outstanding 
 assets, and afterwards one of the part- 
 ners dies, it is held that the survivor 
 could not repudiate the agreement 
 and if he does so the legal representa- 
 tive of the deceased partner has a 
 right to a receiver Davis v. Ames, 3 
 Drew. 64. The appointment of an 
 executor to administer on the estate of 
 a deceased partner is no ground for 
 refusing a receiver. Helme v. Little- 
 John, 12 La. Ann. 298. 
 
 The administratrix has an interest 
 in a renewed lease made after the 
 death of her intestate, made by the 
 surviving partners. Cler/gv. J^Yshirick, 
 1 Macn. & G. 294. In Maihjwick v. 
 Wimble, 6 Beav. 495, it was lield that
 
 318 
 
 RECEIVERSHIPS. 
 
 § 198. On application of creditors. 
 
 In matters of partnership tlie conrt will sometimes appoint a 
 receiver in an action brought by the general creditors of the firm 
 in behalf of themselves and the other creditors, the purj)ose in 
 such case being primarily the appointment of a receiver and nl- 
 tiniately the ratable distribution of the assets of the firm. But in 
 this class of cases there must be mismaiiagement or insolvency 
 and threatened loss.' 
 
 where by partnersbip stipulation a son 
 of one partner, or, in case of bis mi- 
 nority, the executor, should on the 
 death of such partner succeed to his 
 share in the partnership business, the 
 court considered it an option in favor 
 of such son or executor and not an 
 oblisration. Where the defendant in 
 an action for dissolution set up a claim 
 to the whole of the partnersbip prop- 
 erty for himself, it was held that it 
 was imnecessar}'' to allege or show 
 misconduct or mismanagement on his 
 part. 
 
 In Geortner v. Canajoharie, 2 Barb. 
 625, it appeared that after the death 
 of one partner the remaining insolvent 
 partner sold a part of the partnership 
 stock to pay bis individual debts and 
 the purchaser had knowledge of the 
 insolvency and of his object of mak- 
 ing the sale, it was held that the sale 
 was void and that each partner had a 
 right to have the funds applied di- 
 rectly to the discbarge of the partner- 
 ship debts and that if the funds were 
 not so applied a receiver would be ap- 
 pointed. Where a receiver is ap- 
 pointed after the death of one partner 
 such receiver succeeds to the rights of 
 the surviving partner. Kirkpatrick 
 V. McElroy, 41 N. J. Eq. 539. 
 
 In all cases it is held, except where 
 the partners-hip agreement otherwise 
 provides, that the death of one part- 
 ner operates instanter as a dissolution 
 of the partnership. Ex parte Williams, 
 
 11 Ves. Jr. 5; Vulliamy v, NoUe, 3 
 Meriv. 614. 
 
 After the death of one partner a re- 
 ceiver will be appointed only in case 
 of a breach of duty or in a breach of 
 contract; and where a surviving part- 
 ner is carrying on the business on his 
 own account with the partnersbip ef- 
 fects, a receiver will be appointed. 
 Harding v. Olover, 18 Ves. Jr. 281. 
 
 'In Fechheimer v. Bmim, 37 Fed. 
 Rep. 167, 2 L. R. A. 153, the court 
 say: " It is now settled that the courts 
 of the United States may administer 
 an equitable right granted by the law 
 of the state in suits of which, from 
 other reasons, they have jurisdiction. 
 It was urged that creditors without 
 judgment had no right to apply, in 
 equity, for the appointment of a re- 
 ceiver. That this is the general rule 
 is undeniable, but there are exceptions 
 to it, and one of these exceptions, of 
 apparently clear distinctness, is where 
 the lawmaking power has enacted, in 
 terms, that the debt need only be ma- 
 tured, with payment demanded and 
 with a refusal, as is the law in 
 Georgia. It is true also — as is held in 
 this circuit in Jaffrey v. Broion, 29 
 Fed. Rep. 477 — that a party not in- 
 tending to pay, by inducing one to sell 
 him goods on credit, through the 
 fraudulent concealment of his insolv- 
 ency, and of bis intent not to pay for 
 them, is guilty of a fraud, which enti- 
 tles the vendor, if no innocent third
 
 RECSIVERSHIP IN PARTNERSHIP MATTERS. 
 
 310 
 
 § 190. In case of limited partnerships. 
 
 There are a few cases holding tliat in the matter of limited 
 partnerships, where the firm has become insolvent and a bill is 
 filed in behalf of all creditors of the firm a receiver may be ai)- 
 
 party has acquired an interest in them, 
 to disaffirm the contract and recover 
 the goods." Crittenden v. Coleman, 70 
 Ga. 295; Dojialdnon v. Farwell, 93 U. 
 S. 633, 23 L. ed. 994. Upon the ques- 
 tion of the right of a seller to disaffirm 
 the sale and retake the property sold 
 by him, upon the ground of fraud and 
 misrepresentation, see note to Jaffrcy 
 V. Brown, 29 Fed. Rep. 485. In La 
 Chaise v. Lord, 1 Abb. Pr. 213, it was 
 held that the court would not appoint 
 a receiver where the application was 
 in behalf of one firm, out of a large 
 number of creditors of an insolvent 
 firm. Suit must be brought by all the 
 creditors of the insolvent firm who will 
 unite therein and all the defendants 
 sought to be made liable, as partners, 
 should admit the indebtedness or, in 
 other words, where a receiver is asked 
 without judgment the indebtedness 
 must be admitted. See also Hardt v. 
 Levy, 72 Hun, 225, which was an ac- 
 tion by the general creditors and all 
 others who might come in for the pur- 
 pose of procuring a receiver. In this 
 case it was held that such an action 
 (without judgment) could not be main- 
 tained against a general partnership 
 but that it might be maintained 
 against a limited partnership. Cf. 
 Innes v. Lansing, 7 Paige, 583; Van 
 Alstyne v. Cook, 25 N. Y. 489. 
 
 The cases of Burgwyn Bros. Tohacco 
 Co. V. Bentley, 90 Ga. 508, and Oliver 
 V. Victor, 74 Ga. 548, were actions 
 brought by general creditors. In the 
 latter case suit was brought to set 
 aside a voluntary assignment in which 
 a receiver was appointed. In Henry v. 
 Henry, 10 Paige, 314, it was held that 
 
 a creditor was not entitled to a re- 
 ceiver of the separate property of one 
 of the partners who had sold his inter- 
 est to his copartner, the latter assum- 
 ing the payment of all indebtedness; 
 that the receivership should be against 
 the firm property and the separate 
 property of the remaining partner un- 
 less some valid excuse should be given 
 for not doing so. 
 
 In Greenwood v. Brodhead, 8 Barb. 
 593. it was held that creditors at large 
 must have a judgment and a lien 
 either legal or equitable and to be in a 
 position to assert such lien. In Vena- 
 ble v. Smith, 98 N. C. 523, it was held 
 that before a receiver would be ap- 
 pointed it must be manifest that there 
 is mismanagement of the property and 
 that it is in danger of being lost or that 
 it is in possession of an insolvent or 
 unfit trustee. Cf. Dick v. Laird, 4 
 Cranch, C. C. 667. 
 
 A simple partnership creditor of a 
 copartnership has no such lien on the 
 partnership assets as entitles him to 
 the appointment of a receiver to settle 
 up the partnership estate upon its in- 
 solvency. Waples- Platter Co. v. Mitchell 
 (Tex. Civ. App.) 35 S. W. 200. 
 
 A decree permanently appointing a 
 receiver of the assets of an insolvent 
 firm, on the ground that a trustee for 
 the payment of the claims of creditors 
 is violating his duty in failing to keep 
 such assets separate from hi^ individ- 
 ual funds and in some place of safe 
 keeping, is appealable as adjudging 
 the principles of the case,aUhough the 
 possession and administration of per- 
 sonal property alone is involved. 
 Wagner v. Coen (W. Va.) 23 S. E. 735.
 
 320 
 
 HKCElVEUSlllPS. 
 
 p(iiiito<i. Tlic lu-tinii is based upon the doctrine that upon the 
 iii.M.lvencv of the iinn tht- assets beeonie a trust fund to be divided 
 etpiallv between all creditors, and that in such case it becomes the 
 thity of the i^a'iH'ral partners to place the firm property in the 
 hands of a trustee for such distribution, and in default of doing 
 so court will appoint a receiver for such purpose. The under- 
 Iviiiir jiriiiciple upon which these cases rest is that of securing an 
 etiual distril>ution among all general creditors, and the inequitable 
 principle of preferences sometimes recognized. The principle of 
 placini; the effects of a limited partnership in the position of trust 
 funds, and applying to the general partners the relationship of 
 trustees has its analogy in the rules applied to private corpora- 
 tions in cases of insolvency, and is founded upon justice and fair 
 dealin<»' but, strange as it may seem, has been established in but one 
 of the United States.' 
 
 > In MUU V. Argall, 6 Paige, 577. it 
 WHS bold that the assignment by a 
 limited partnership to a trustee for the 
 benefit of creditors after the tirra had 
 become insolvent, or was in contem- 
 plation of insolvency, was void as 
 against the creditors of the firm if 
 preferences were made to one cred- 
 itor, or class of creditors; and also if 
 the assignment provides for the pay- 
 ment of a debt of the special partner 
 ratably with other creditors of the 
 firm. This case was based upon the 
 provisions of the statutes regarding 
 limited partnership and prohibiting 
 preferences. In Innes v. Lansing, 7 
 Paige, 583, it was held that in a case 
 of limited partnership the effects of 
 the firm, upon its becoming insolvent, 
 become a special trust fund for the 
 payment of the partnership debts 
 ratably except debts due special part- 
 ners, and that the filing of a bill by 
 one creditor in behalf of himself and 
 of others is a bar to the filing of an- 
 other similar bill. In Jackson v. 
 IShddon, 9 Abb. Pr. 127, the same doc- 
 trine was lield as in the case last cited, 
 and that where the firm becomes in- 
 
 solvent it is the duty of the partners 
 to place in the hands of a trustee the 
 partnership effects for the benefit of 
 all creditors without preference. It 
 was also held that where certain cred- 
 itors obtained judgment upon a failure 
 of the parties to answer and levied 
 executions upon the partnership ef- 
 fects, after which the partners made a 
 general assignment for the benefit of 
 creditors without preference, that the 
 court should enjoin the levy and sale 
 on the execution and appoint a re- 
 ceiver to take charge of the effects as 
 they existed at the time of the insolv- 
 ency. The decision is based upon the 
 ground that the failure of the parties 
 to answer and thereby suffering a de- 
 fault of the firm was in effect giving 
 a preference to the judgment credit- 
 ors. The motion to set aside the sale 
 in such case for irregularity must be 
 made in the action in which the sale 
 was had, but the order on the sheriff 
 to retain the property unsold is prop- 
 erly made in the creditor's suit. Cf. 
 Whitewriglit v. Sdmpson, 2 Barb. 379. 
 In Hayes v. Heyer, 3 Sandf. Ch. 
 293, the court say in relation to gen-
 
 RECEIVERSHIP IN PARTNERSHIP MATTERS. 
 
 321 
 
 § 200. In case of expiration of partnership. 
 
 Where a partnership has been formed for a definite period and 
 this period has expired by its terms a receiver is not usiiall}^ ap- 
 pointed except where mismanagement, improper conduct, or other 
 dereHction in duty is shown/ 
 
 § 201. In case of exclnsion of partner. 
 
 Courts have frequently been called upon to appoint a receiver 
 in matters of partnership where one or more partners have been 
 excluded from participating in the management of the firm busi- 
 ness, or otherwise denied recognition, in violation of the copart- 
 nership agreement, or the implied relationshij) between the mem- 
 bers of the lirm. This exclusion may be from a participation in 
 the business, or from access to the firm books, and may take place 
 
 eral and limited copartnerships that 
 the rule is the same in both cases re- 
 garding the distribution made by the 
 court but when the order of distribu- 
 tion is made by the partners them- 
 selves in ordinary copartnerships they 
 may give preference to one creditor or 
 a class of creditors over others, while 
 in limited partnerships the statute 
 reserves that power and directs the 
 mode of distribution. It was also 
 held that a single member of a failing 
 firm cannot appoint a trustee without 
 the consent or knowledge of the other 
 partners and thus transfer to such 
 trustee the entire partnership effects. 
 See also Deming v. Colt, 3 Sandf. Ch. 
 284. In Hogg v. Ellis, 8 How, Pr. 
 473, an accounting was allowed be- 
 tween general and special partners as 
 in other cases, and this either after or 
 before dissolution. Cf. Lottimer v. 
 Ld'd, 4 E. D. Smith, 183. 
 
 In Van Alstyne v. Cook, 25 N. T. 
 489, it is held that the members of a 
 limited partnership before or after in- 
 solvency are just as liable to suit for 
 their debts as other natural persons. 
 Their creditors are entitled to recover 
 judgment against them with a view of 
 21 
 
 reaching the individual property 
 as well as partnership property. The 
 property of a limited partnership does 
 not constitute a trust fund in the 
 hands of partners any more than in 
 ordinary partnerships. No rule of 
 equity exists which makes them trust 
 funds in any other sense or which 
 gives a court of equity any control 
 over them, or which forbids creditors 
 of the copartnership, or an individual 
 from obtaining a lien on them by due 
 process of law. 
 
 ' In Bufkin v. Boyee, 104 Ind. 53, 
 where a partnership had expired by 
 limitation and neither partner desired 
 to continue the business it was held 
 that a receiver would not be appointed 
 on the application of one to settle the 
 partnership affairs in the absence of 
 any showing of mismanagement or 
 improper conduct on the part of the 
 person against whom the relief is 
 sought. Cf. Shoemaker v. Smith, 74 
 Ind. 71; Morey v. Orant, 48 Mich. 
 326; Baker v. Backus, 32 111. 79; Wil- 
 lis v. Corlies, 2 Edw. Ch. 281; Jone$ 
 V. Schael, 45 Mich. 379; Cook v. De- 
 troit it M. li. Co. 45 Mich. 453.
 
 522 
 
 RECEIVERSHIPS. 
 
 during the existence of the partnership, or after its dissokitioiiy 
 and may apply under some circumstances to the le^-al representa- 
 tives of a deceased partner.' 
 
 ' In Wilson v. Oreenwood, 1 Swanst. 
 471 (481), it was held that in the or- 
 dinary course of trade if one partner 
 exchules another from taking that 
 part in the concern which he is enti- 
 tled to it is ground for the appoint- 
 ment of a receiver; so also if in the 
 course of winding up the affairs after 
 the determination of the partnership, 
 the court, if necessary, interposes on 
 the same principle. 
 
 In Kirby v. Ingersoll, 1 Dougl. 
 (Mich.) 477, it was held that one part- 
 ner had no right, without the consent 
 of his copartners, to make an assign- 
 ment and thus exclude the others 
 where it appeared that the assign- 
 ment was not of a pressing necessity. 
 
 In Const V. Harris, 1 Turn. & R. 
 496 (525), it was held that the circum- 
 stance of one partner having taken 
 upon himself the power to ex- 
 clude another from his full share in 
 the management of the business, au- 
 thorizes the court to appoint a receiver. 
 
 In Qowan v. Jeffries, 2 Ashm. 296, 
 it was held to be an exclusion where 
 just and fair books were not kept and 
 where one partner refused to furnish 
 accounts demanded. 
 
 In Blakeney v. Diifaur, 15 Beav. 
 40, it is said that exclusion will not 
 be permitted except in cases where 
 the parties themselves have provided 
 by agreement for exclusion upon the 
 happening of certain events. Cf. 
 Terrell v. Qoddard, 18 Ga. 664; Wol- 
 bert V. Harris, 7 N. J. Eq. 605; Mil- 
 bank V. Bevett, 2 Meriv. 405. 
 
 In Ooodman v. Whitcomb, 1 Jac. & 
 W. 589, where money was received and 
 not entered in the books and the books 
 ■were not held open to inspection, it 
 
 was held to be a violation of the du- 
 ties of partners to each other. 
 
 In Clegg v. Fishicick, 1 Macn. & G. 
 294 (298), where partners were jointly 
 interested with others in a lease which 
 was subsequently renewed in the name 
 of some of the partners without the 
 consent of the others, it was held to 
 be an exclusion. And see Leach v. 
 Leach, 18 Pick. 68; Clements v. Hall, 
 2 DeG. & J. 173; Clegg v. Edmondson, 
 8 De G. M. & G. 787. 
 
 In Speights v. Peters, 9 Gill, 472, it 
 was held that if one partner in the or- 
 dinary course of trade seeks to ex- 
 clude another from taking that part 
 in the concern which he is entitled to 
 take, a receiver should be appointed on 
 the authority of Lord Eldon in Wilson 
 V. Oreenwood, 1 Swanst. 481. 
 
 In Kershaw v. Matthews, 2 Russ. 62, 
 where by the article of agreement it 
 was stipulated that upon the death of 
 one partner such deceased partner 
 should be succeeded in business by 
 some other person, or by his executor, 
 and such person refused to act it was 
 held that the death of one partner put 
 an end to the partnership but that in 
 such case it was not an exclusion for 
 the reason that the latter had never 
 been a partner. 
 
 In Bilton v. Blakely, 6 Grant Ch. 
 (Ont.) 575, it was held that the repre- 
 sentatives of a deceased partner had 
 a right to inspect the books of the 
 partnership and to be informed of the 
 proceedings of the survivor,and,on re- 
 fusal by the latter, were entitled to a 
 receiver. Cf. Steele v. Grossmith, Id 
 Grant, Ch. (Ont.) 141; Wilcox v. PraU, 
 52 Hun, 340. 
 
 In Katz V. Brewington, 71 Md. 79.
 
 RECEIVERSHIP IN PARTNERSHIP MATTERS. 
 
 32a 
 
 § 202. lu case of fraud by one partner. 
 
 The fraudulent acts of a partner as to his copartner, such as a 
 misappropriation of the firm property or funds, false entries upon 
 the firm books, or depriving him of access to such books, conceal- 
 ing from him the true condition of the business, afford ground 
 for the appointment of a receiver.' And the same rules apply 
 
 the allegation was that the defendant 
 had excluded the plaintiff from all 
 control over ihe business, and had re- 
 fused to give information regarding it, 
 and carried away the books from the 
 place of busi ness, and refused to disclose 
 the place in which they were kept. The 
 court say : ' ' Each partner has an equ a 
 right to take management of the busi- 
 ness although one of them may have 
 only an interest in the profits and not 
 the capital, yet his rights are involved 
 in the proper conduct of the affairs of 
 the firm so the profits may be made. 
 So each partner has an equal right to 
 information about the partnership af- 
 fairs and free access to the books. 
 The complainant has a right to learn 
 from the books wliether there were 
 profits and whether there were debts." 
 
 ' ' In Const V. Harris, 1 Turn. & R. 
 496, Lord Eldon said: 'The most 
 prominent point on which the court 
 acts in appointing a receiver of the 
 partnership concern is the circum- 
 stance of one partner having taken 
 upon himself the power to exclude 
 another partner from as full share in 
 the management of the partnership as 
 be who assumes the power himself 
 enjoys.'" 
 
 In Doupe v. Stewart, 13 Grant Ch. 
 (Ont.) 637, where after a dissolution 
 one partner claimed greater portions 
 of the profits as his own by reason of 
 certain alleged misconduct of the 
 plaintiff, and made use of the partner- 
 ship funds in carrying on business in 
 his own behalf, it was held to be a 
 proper cause for a receiver. 
 
 In Young v. Biiekett, 51 L. J. Ch. 
 504, the partnership agreement pro- 
 vided that in case of disputes between 
 the partners they should be settled by 
 arbitration, yet a receiver was ap- 
 pointed. 
 
 In Word v. Word, 90 Ala. 81, where 
 a surviving partner neglected to keep 
 an account of the sales it was held that 
 his acts were negligent and faithless 
 and if there was danger of loss a re- 
 ceiver would be appointed, or the sur- 
 viving partner placed under bonds to 
 account. 
 
 In Goulding v. Bain, 4 Sandf. 716, 
 the court refused to appoint a receiver 
 where the existence of a partnership 
 was denied, the court holding that the 
 partnership must be either admitted or 
 established. 
 
 'In Barnes v. Jones, 91 Ind. 161, it 
 it was held that it is an exceptional 
 case of partnership that a receiver will 
 be appointed unless a dissolution is 
 about to occur, but where the plaintiff 
 shows acts of fraud on the part of the 
 defendants and an application by 
 them of partnership property to their 
 own use, false entries in the books, 
 and a refusal of access to the books 
 and a concealment of the condition of 
 the partnership business, a receiver 
 should be appointed. Citing Howell 
 V. Harvey, 5 Ark. 270. 
 
 In Haight v. Burr, 19 Md. 130, one 
 partner controlled the business as if 
 exclusively his own and failed to pay 
 the debts of the firm and fraudulently 
 appropriated the assets, it was held 
 that a receiver should be appointed
 
 324 
 
 RECEIVERSHIPS. 
 
 where one partner has retired and the remaining partner is com- 
 mitting a fraud upon him, as by sending the funds beyond the 
 state instead of applying them in payment of the firm debts pur- 
 suant to the dissohition agreement/ Also where fraudulent 
 representations are made as an inducement for entering into the 
 partnership agreement.' 
 
 § 203. Where one partner is mismanaging business. 
 
 The o-rounds for the appointment of a receiver during the con- 
 tinuance of the partnership agreement, or before the expiration of 
 the time limited for the dissolution of the copartnership, are 
 numerous, as where one partner is destroying the firm business,' 
 or does not account for the firm receipts," or is violating the terms 
 
 where the defendant was irrespon- 
 sible. 
 
 So also in Blondheim v. Moore, 11 
 Md. 374, the court say: "That fraud 
 or imminent danger, if intermediate 
 possession should not be taken by the 
 court, must be clearly proved and that 
 unless the necessity be of the most 
 stringent character, the court will not 
 appoint until the defendant is first 
 heard in response to the application." 
 
 In Shannon v. Wright, 60 Md. 520, 
 It was held that a refusal to apply 
 money to the payment of debts and a 
 refusal to allow an examination of the 
 books and threatening to litigate with 
 the firm's money until the plaintiff 
 was ruined thereby, was ground for a 
 dissolution of the firm and the ap- 
 pointment of a receiver. 
 
 In Brenan v. Preston, 2 DeG. M. 
 & G. 813, the defendant took posses- 
 sion of part of the machinery of a ship 
 and refused to give it up. A receiver 
 was allowed. 
 
 'In West V. Chasten,12 Fla.315, where 
 the firm was dissolved and the partner- 
 ship assets assigned to one who as- 
 sumed the debts, it was held that the 
 property ceased to be joint property, 
 and became the separate property of 
 
 one, the court holding: "If, however, 
 in a case of this character and rising 
 out of confidential relations the party 
 acts iniqultously and unjustly or 
 fraudulently, and pays no attention to 
 his covenants, disregarding the claims 
 of his surety, and is pursuing such a 
 course as threatens to result in his 
 great damage or injury, the court will 
 interfere. It will not do to wait until 
 the threatened damage or injury 
 occurs to such an extent as to ruin the 
 other. Then the court of equity will 
 be powerless to act." 
 
 A receiver will not be appointed of 
 a partnership at will in the absence of 
 fraud and mismanagement. Dolphin 
 V. SteelliC. P.) 2 Lack. L.News. 111. 
 
 *A fraudulent disposition of his in- 
 terest in a firm by one of the copartners 
 does not authorize the appointment of 
 a receiver to settle up the partnership 
 estate at the instance of a contract or 
 general creditor before judgment, as 
 the remedy at law is adequate. Waples- 
 Platter Co. y. Mitchell (Tex. Civ. App.) 
 35 S. W. 200. 
 
 ^Sutro V. Wagner, 28 N. J. Eq. 388; 
 New V. Wright, 44 Miss. 202; Estwick 
 V. Conningsby, 1 Vern. 118. 
 
 *Read v. Bowers, 4 Bro. C. C. 441.
 
 RECEIVERSHIP IN PARTNERSHIP MATTERS. 
 
 325 
 
 of the partnership agreement/ or in case of the insolvency of one 
 member,* or waste,' or mismanagement,* or serious disagreement 
 such as to endanger the business,^ or misappropriation,' or bank- 
 ruptcy,^ or absconds,* or colhision with creditors/ 
 
 When the partnership relation has been entered into each part- 
 ner owes a duty to tlie other to manage the business in such way 
 as to produce the greatest profits consistent with a judicious man- 
 agement, and he has no right to conduct it in such way as to en- 
 danger its success, or to result in loss to the firm. This may 
 result from negligence and carelessness or wilful inattention, or a 
 reckless investment, contrary to and against his copartner's will 
 or without his knowledge and consent.'" 
 
 ' Const V. Harriti, Turn. & R. 496; 
 Brenan v. Preston, 2 DeG. M. & G. 
 813; White v. Colfax, 1 Jones & S. 297. 
 
 ^Speights v. Peters, 9 Gill, 472; 
 Williamson v. Wilson, 1 Bland, Ch. 
 418; Wiite v. Colfax, 1 Jones & S. 
 297; Todd v. Mich, 2 Tenn. Ch. 107; 
 Boyce v. Burchard. 21 Ga. 74; Smith 
 V. Jeyes, 4 Beav. 503; Williams v. Wil- 
 son, 4 Sandf. Ch. 379; Sutro v. Wag- 
 ner, 23 N. J. Eq. 388; Pini v. Bon- 
 coroni, [1892] 1 Ch. Div. 633; Shan- 
 non V.Wright, 60 Md. 520; Phillips v. 
 Trezevant, 67 N. C. 370. 
 
 'See preceding note. 
 
 *I)e Tastet v. Bordicu, 2 Bro. C. C. 
 272, note; Biifkin v. Boyce, 104 Ind. 
 53; Harding v. Glover, 18 Ves. Jr. 281; 
 Benton v. Chaplain, 9 N. J. Eq. 62; 
 Wilson V. Fitchter, 11 N. J. Eq. 71; 
 Cox V. Peters, 13 N. J. Eq. 39; Ban- 
 dall v.Morrell. 17 N. J. Eq. 343; Bird- 
 sail V. Colie, 10 N. J. Eq. 63; Page v. 
 Vanki7'k, 1 Brewst. 290; Slemmer's Ap- 
 peal, 58 Pa. 168; Word YMord, 90 
 Ala. 81. 
 
 ^Law V. Ford, 2 Paige, 310; Marten 
 V. Van Schaick, 4 Paige, 479; Henn v. 
 Walsh, 2 Edw. Ch. 129; Goodman v 
 Whitcomb, 1 Jac. & W. 589; Chapman 
 V. Beach, 1 Jac. & W. 596, 4 Beav. 
 574; Smith v. Jeyes, 4 Beav. 503; 
 
 Garretson v. Weaver, 3 Edw. Ch. 
 385; Jackson v. DeForest, 14 How. 
 Pr. 81; Harding v. Glover, 18 Ves. 
 Jr. 2S\;Williamson v. Wilson, 1 Bland. 
 Ch. 418. 
 
 ^Evans v. Coventry, 5 DeG. M. & 
 G. ^W; Harding v. Glover, 18 Ves. Jr. 
 281 ; Prentiss v. Brennan, 1 Grant, Ch. 
 (Ont.) 484. 
 
 ''Freeland v. Stansfeld, 2 Smale & 
 G. 479; Wilson v.Gree)itcood, 1 Swansl. 
 471; Fraser v. Eershaio, 1 Kay & J. 
 496. 
 
 ^Shepperd v. Oxenfield, 1 Kay & J. 
 491. 
 
 ^Estwickv. Conningsby, 1 Vern. 118; 
 Speights v. Peters, 9 Gill, 472. 
 
 '"In Sutro V. Wagner, 23 N. J. Eq. 
 388, it was held that where it appears 
 that the defendant has deliberately re- 
 solved to break up and ruin the busi- 
 ness of the firm and the personal rela- 
 tions between the partners were such 
 that they could never carry on busi- 
 ness together to advantage, a receiver 
 was properly appointed. 
 
 In lU'ew v. Wright, 44 Miss. 202, it is 
 held where a partnership concern is 
 broken up by controversial suits and 
 it is apparent there can be no agree- 
 ment between the parties in interest a 
 receiver will be appointed. See also
 
 326 RECEIVEKSHIPS. 
 
 And each partner is required to keep an accurate and strict 
 account of the receipts and disbursements, and owinc^ to the rela- 
 tion of confidence existing between members of a firm the part- 
 ners are not permitted to conceal from each other the financial 
 transactions which interest all alike. 
 
 § 20i. On ground of insolvency. 
 
 If during the continuance of a partnership one of the partners 
 becomes insolvent and he is in charge or in possession of the 
 partnership effects and danger of loss is liable to result as a con- 
 sequence, a receiver may be appointed. And where a dissolution 
 has taken place, or such a state of facts shown as will justify the 
 court in appointing a receiver and one of the partners in posses- 
 sion becomes insolvent and danger is likely to result therefrom it 
 is ground for the appointment. So also where one partner has 
 sole charge of the business and by his mismanagement the firm 
 becomes insolvent, or where the firm is insolvent and there are 
 mutual allegations of waste, or where the insolvency is brought 
 about by one partner wrongfully withdrawing a large sum from 
 the partnership funds/ 
 
 Williams v. Wilson, 4 Sandf. Ch. 379, applied for a particular purpose and 
 where the facts charged were, that a subsequent agreement was made by 
 the defendant had sold goods and a majority of the partners to apply the 
 failed to account, or refused to ac- the profits in a different manner, on 
 count; that the books were incorrect the application of the owner of a one 
 and the defendant irresponsible; and eighth interest a receiver was ap- 
 there was also a violation of the part- pointed on the ground that the part- 
 nership agreements. Cf. Esiwick v. nership agreement could not be altered 
 Conningsby, 1 Vern. 118; Ready. without the sanction of all the parties. 
 Bowers, 4 Bro. C. C. 441. The act of a majority of the partners, 
 
 In Woodward v. Schatzell, 3 John. however, will bind the firm provided 
 Ch. 415, it was held that the mere ap- all parties have notice and are acting 
 prehension of one partner that the in good faith. It was also held that 
 other will misapply the partnership a bill merely for the purpose of carry- 
 funds is not ground for an injunction, ing on the business will not be main- 
 the same rule being applied to a re- tained. 
 ceivership. ' In Williamson v. Wilson, 1 Bland, 
 
 In Const V. Harris, 1 Turn. & R. Ch. 418, it is said that after a firm has 
 496, it is said that the court will en- become insolvent the partners are to be 
 tertain a bill to compel partners to considered as trustees for the benefit 
 act according to the provisions of the of their creditors and therefore a suit 
 partnership contract; thus, where it between such partners might be con- 
 was agreed that the profits should be sidered as a creditor's suit and the
 
 RECEIVERSHIP IN PARTNERSHIP MATTERS. 
 
 32T 
 
 partnership estate collected and dis- 
 tributed accordingly. Tke allegation 
 in this case was that the trading 
 had ceased, the firm utterly insol- 
 vent and a receiver was asked as 
 the only means of saving the partner 
 plaintiff and the creditors from the 
 fraudulent practices of the co-partner. 
 The court say: "So long as a man 
 carries on his business and has a pros- 
 pect of gain he is not considered as 
 insolvent; but if in addition to such 
 deficiency of property his business so 
 far declines as to leave him no pros- 
 pects of paying his debts he is then, 
 according to the universal sense of 
 mankind, insolvent." "Insolvency 
 is the total destruction of the pe- 
 cuniary capacity of the partner to 
 fulfill his contract of co-partnership. 
 But his pecuniary capacity was the 
 basis on which it rested. The con- 
 tract itself must therefore be consid- 
 ered as effectually annulled as if the 
 party were dead. If both be insolv- 
 ent, or dead, there is no efficient or 
 living capacity left to execute the 
 contract. If only one be dead, or in- 
 eolvent, the terms cannot be complied 
 with; and where personal confidence 
 was the principal inducement for 
 making an agreement, as in contracts 
 of this nature, it would be unreasona- 
 ble; and therefore the other party 
 should not have the executor, admin- 
 istrator, trustee or assignee of the de- 
 ceased or of the insolvent intruded 
 upon him. Consequently the partner- 
 ship between these parties must be 
 considered as having been virtually 
 and effectually terminated by their 
 insolvency. It cannot be extended 
 over new business transactions nor be 
 allowed to expand any more. It must 
 be wound up and brought to a close; 
 and except for such purposes must be 
 deemed to have totally ceased to exist.' 
 See Ex parte Williams, 11 Ves. Jr. 5; 
 Ha/rding v. Glover, 18 Ves. Jr. 281; 
 
 Vulliamy v. Noble, 3 Meriv. 614; 
 Crawshay v. Maule, 1 Swanst. 506. 
 
 " While a man continues solvent 
 the order in which he pays his cred- 
 itors is a matter of indifference since 
 none can suffer; and therefore no 
 creditor has the right to complain of 
 the rights given to another. But as 
 soon as he becomes insolvent that 
 privilege ceases; and equity requires 
 that he should make an equal distribu- 
 tion among them all. The giving of 
 undue and improper preference in 
 such circumstances is denounced by 
 the express provisions of our insolvent 
 laws as a fraud. And in all cases 
 where the court of chancery can be 
 called upon and does interpose for the 
 purpose of administrating the assets 
 of an insolvent debtor it is governed 
 by the rule of equality; because 
 equality is equity. The assets, if in- 
 sufficient to pay all, are always dis- 
 tributed proportionately. * * * 
 These parties admit themselves to 
 be insolvent debtors. The plaintiff 
 charges his co-partners, the defend- 
 ants, with a design to waste the joint 
 property and apply it to their own 
 use. The defendants deny this alle- 
 gation and charge the plaintiff with a 
 design to misapply the funds and give 
 some of the creditors undue prefer- 
 ence. Taking the charges of the 
 plaintiff and of the defendants, or 
 either of them, to be true or allow that 
 each or either party was about to 
 waste the property, or has his favorite 
 creditors to whom it is his design to 
 give an undue preference, and it is 
 clear that one or the other or both of 
 them have formed a fixed resolution to 
 violate one of the great principals of 
 equity whieh it is the province of this 
 court to prevent. None of the cred- 
 itors of these insolvent debtors, so far 
 as it appears, have as yet obtained any 
 legal advantage. It is proper there- 
 fore that this court should now lay its
 
 328 
 
 RECEIVERSHIPS. 
 
 Bankruptcy of one partner is also a sufficient ground for the 
 appointment.' 
 
 hands upon the joint property of this 
 partnership and let all its creditors 
 come in 'pan passu and according to 
 their respective priorities, if any 
 should appear." 
 
 In White v. Colfax, 1 Jones & S. 
 297, it is held that although the arti- 
 cles of distribution vest the right of 
 •winding up the partnership in some 
 one or more of the partners, yet when 
 they violate the terras of the dissolu- 
 tion agreement, such as refusing access 
 to the books, and when the feeling is 
 such that the right of supervision can- 
 not be exercised without great embar- 
 rassment or unpleasantness a receiver 
 should be appointed. 
 
 In Boyce v. Burcliard, 21 Ga. 74, 
 where one partner in violation of his 
 duty mismanages the partnership 
 business to the great detriment of the 
 partnership and is insolvent it was 
 held the other partner was entitled to 
 a distribution and a receiver. 
 
 In Smith v. Jeyes, 4 Beav. 503, it is 
 held that the specific contract of part- 
 nership cannot and does not cover all 
 the implied duties of the partners to 
 each other. 
 
 In Pini V. Boncoroni [1892] 1 Ch. 
 Div. 633, one partner withdrew from 
 the partnership a large sum of money 
 and this brought about its insolvency; 
 a receiver was appointed although the 
 partnership agreement provided for 
 referring the matters in dispute to ar- 
 bitration. 
 
 In Bandall v. Morrell, 17 N. J. Eq. 
 343, the court say: " But with the cir- 
 cumstance of the insolvency of one of 
 the partners in addition to the fact of 
 the dissolution of the firm would un- 
 der ordinary circumstances induce this 
 court to assume the administration 
 of the partnership affairs, I think, ad- 
 
 mits of no doubt. * • * It is only 
 by the united efficacy of these two 
 safeguards (injunction and receiver- 
 ship) that when insolvency supervenes 
 the estate of the co partnership can be 
 secured and preserved for the benefit 
 of those to whom they equitably 
 belong. 
 
 In Sutro V. Wagner, 23 N. J. Eq. 
 388, there was a fraudulent appropria- 
 tion of the partnership funds and a 
 fraudulent conveyance of the partner- 
 ship property of one partner in order 
 to place it beyond the reach of the 
 creditors and giving notice of such 
 transfer to a commercial agency to 
 ruin the credit of the firm and it was 
 held a receiver should be appointed. 
 Cf. Shannon v. Wrirjht, 60 Md. 520; 
 Phillips v. Trezevant, 67 N. C. 370. 
 
 ^ Fraser v. Kershaw, 2 Kay & J, 
 496. The bankruptcy of one partner 
 puts an end to the partnership, but 
 the solvent partner cannot transfer 
 his right to another by assignment or 
 otherwise to wind up the concern, or 
 permit the same to be sold on an execu- 
 tion. In Wilson v. Oreenwood, 1 S wanst. 
 471, It is held that on the bankruptcy 
 of one partner the partnership in 
 one sense is determined, but is con- 
 tinued until all the partnership affairs 
 are settled. In Freeland v. Sta.nsfeld, 
 2 Smale & G. 479, on the bankruptcy 
 of one partner the solvent partner is 
 entitled to a receiver and the assignee 
 has no right to interfere with the 
 partnership matters and with the 
 collection of the partnership debts. 
 
 A firm whose articles provide that 
 if any partner becomes bankrupt he 
 shall cease to be a partner, and his 
 share in the capital shall remain f.s a 
 loan during the remainder of the part- 
 nership term, the solvent partner is
 
 RECEIVERSHIP IN PARTNERSHIP MATTERS. 
 
 329 
 
 § 205. Where dissolution has taken place. 
 
 When tliere has been a dissohition of the copartnership by 
 limitation, or by mutual agreement, or otherwise, and tiie partner- 
 ship agreement is silent as to the method of closing up the busi- 
 ness, and the members of the firm cannot agree in reference there- 
 to, a receiver may be appointed. And so where upon the dissolu- 
 tion an agreement has been made as to the winding up of the 
 business, and the agreement is being violated in such a way as to 
 result in loss. 
 
 Where a partnership has been dissolved and the partners have 
 agreed among themselves as to a mode of collecting the accounts, 
 in the absence of proof of irresponsibility the court will not ap- 
 point a receiver,' but where there is a serious disagreement 
 
 entitled to be appointed receiver and 
 manager of the business, but he must 
 give security, pass his accounts, 
 furnish proper accounts to trustees, 
 allow them all reasonable access to 
 tbe books, and pay the balances in 
 his hands into court, or into a joint 
 banking account of such trustees and 
 himself, Collins v. Barker [1893] 1 
 Ch. Div. 578. 
 
 ' White V. Co!fax, 1 Jones & S. 297. 
 Upon the dissolution, partners may 
 make such an agreement as to the 
 ■winding up as they shall deem tit, and 
 a court of equity will not interfere 
 and appoint a receiver unless the 
 parties prove recreant to the trust im- 
 posed on them. When such an agree- 
 ment has been made all the members 
 of the firm are entitled to have super- 
 vision over the acts of tliose selected, 
 to receive information from them re- 
 specting collections made, to ask for 
 and have imparted information why 
 collections are not pressed, and have 
 access to the books of the firm ; and if 
 those selected deny this right or un- 
 reasonably interfere with its exercises, 
 or even if the relations of the parties 
 are so changed that the exercise of 
 this right would reasonably be ex- 
 
 pected to be attended with unpleasant- 
 ness or embarrassment, the court will 
 appoint a receiver. In this case the 
 feeling of friendliness had changed 
 into bitter enmity and under such cir- 
 cumstances it would be unreasonable 
 to anticipate that the plaintiff's right 
 of supervision, etc., could any longer 
 be exercised without great unpleasant- 
 ness and embarrassment, if indeed it 
 could be exercised at all. 
 
 In Simon v. Schloss, 48 Mich. 233, 
 it is said that where the partners 
 have agreed as to the winding up and 
 where the defendants are responsible 
 the court will not interfere by the ap- 
 pointment of a receiver until a hear- 
 ing on the merits. 
 
 In Brush v. Jay, 113 N. Y. 483, 
 overruling 50 Hun, 446, it is held that 
 it is manifestly improper to determine 
 a material issue upon affidavits in an- 
 ticipation of the trial and determina- 
 tion of the issues joined. The court 
 say: "We know of no practice which 
 authorizes the court in this manner to 
 defeat the object of the litigation and 
 place the subject of the action beyond 
 the reach of the court ultimately to 
 award it to those showing title thereto. 
 We do not thiuk the special term
 
 330 
 
 RECEIVERSHIPS. 
 
 between them concerninj^ tlie winding; np, or tlie dissolntiou 
 agreement, the court will do so ;' and it seems that this may be 
 
 had authority to take up on motion 
 one of the material issues of the case 
 and under objection by one of the 
 parties malie an order which was prac- 
 tically a final judgment in respect to 
 the property involved in such issue." 
 
 In Mitchel v. Lister, 21 Ont. Rep. 22. 
 it is held that wliere the partnership 
 articles provided that on dissolution, 
 the partners should select a person to 
 collect the accounts and settle tbe 
 partnership affairs, the court would, 
 upon a failure of the parties to agree 
 on some person, appoint a receiver. 
 Cf. Davis V. Amer, 5 Drew. 64; Laio v. 
 Garrett, L. R 8 Ch. Div. 26; Plewes 
 V. Baker, L. R. 16 Eq. 564. 
 
 In Harding v. Glover, 18 Ves. Jr. 
 281, it was held that a receiver would 
 not be appointed upon a mere dissolu- 
 tion but there must be some breach of 
 duty of a partner or of the contract of 
 partnership. In this case the defend- 
 ant had been carrying on business on 
 his own account with the partnership 
 funds and a receiver was appointed. 
 
 So in Estwick v. Coningiiby, 1 Vern. 
 118, a surviving partner was carrying 
 on the business but was neglecting the 
 collection of the debts, a receiver was 
 ordered in default of security re- 
 quired. 
 
 In Smith V. Jeyes, 4 Beav. 503, it 
 was held that the plaintiff must show 
 a dissolution or such facts as would 
 warrant a dissolution before the court 
 would interfere. 
 
 'In Speiglits v. Peters, 9 Gill, 472, 
 where after dissolution the partners 
 failed to agree upon an adjustment, 
 the funds being in the hands of one 
 partner, a receiver was appointed. 
 
 It was held that it was not always 
 necessary that the court should be 
 satisfied that the property is in immi- 
 
 nent peril and that where one partner 
 in the ordinary course of trade seeks 
 to exclude another from taking that 
 part in the concern which he is en- 
 titled to take, a receiver should be ap- 
 pointed. And after dissolution takes 
 place, or is intended, if one partner 
 acts against the interest of the other 
 or carries on trade with the partner- 
 ship funds, or in any other manner 
 excludes his copartner from that share 
 to which he is entitled in winding up 
 the concern, a court of equity will 
 appoint a receiver. 
 
 A receiver was refused in Fairburn 
 V. Pearson, 2 Macn. & G. 144, where 
 the question raised was whether the 
 partnership had been dissolved or not. 
 
 In Re Hermanos, L. B. 24 Q. B. 
 Div. 640, it appeared that a Paris firm 
 having a branch office in England had 
 been declared a bankrupt in the 
 former country where a syndicate had 
 been appointed to administer the es- 
 tate. Subsequently a bankruptcy pe- 
 tition was presented in England and 
 an order made for a receiver. The 
 syndicate appeared in court and 
 moved to set aside all further proceed- 
 ings. There was no evidence as to 
 the domicil of the firm further than 
 that two of the parties resided in Eng- 
 land where the firm had large assets. 
 The court held that it had jurisdiction 
 to appoint a receiver, and that the 
 fact that a bankruptcy proceeding 
 had been commenced prior in a for- 
 eign country not shown to be the 
 domicil of the debtors, was no ground 
 for staying the proceedings in Eng- 
 land. 
 
 In Fischer v. Tuolumne County 
 Super. Ct. 98 Cal. 67, the title of a 
 mine belonging to a partnership was 
 in the name of a corporation, the latter
 
 RECEIVERSHIP IN PARTNERSHIP MATTERS. 
 
 done without notice to noni-esident partners, wliere tlie resident 
 partners appear ;' and is applicable to limited partnerships as well.^ 
 
 however, possessing no interest in the 
 property. It was held that the court 
 was authorized to appoint a receiver 
 for such property in an action for dis- 
 sohition and accounting, notwith- 
 standing the legal title to the prop- 
 erty was in the corporation. Cf . Buf- 
 kin V. Boyce, 104 Ind. 53. 
 
 In Smith v. Lowe, 1 Edw. Ch. 33, 
 it was held that the plaintiff being in 
 possession of the partnership prop- 
 erty, was not entitled to a receiver, 
 the other partner not objecting to his 
 possession. 
 
 In Martin v. Smith, 21 Jones & S, 
 277, where a dissolution had been 
 made by agreement and subsequently 
 one of the members died, it was held 
 that his death was not an objection to 
 the appointment of a receiver. 
 
 In McElvey v. Leicis, 76 N. Y. 373. 
 it was held that where no time was 
 fixed for the continuance of the part- 
 nership, and no provision made for a 
 settlement upon such dissolution, such 
 partnership is dissolvable upon the 
 will of one partner and the appoint- 
 ment of a receiver is proper. Cf. Law 
 V. Ford, 2 Paige, 310; Marten v. Van 
 Schaick, 4 Paige, 479. 
 
 In Dunn v. McNavght, 38 Ga. 179. 
 ■where the contract provided that upon 
 giving six month's notice if the firm 
 did not pay ten per cent profits on the 
 capital, the firm should be dissolved, 
 and the evidence showed that it did 
 not pay ten per cent, the partnership 
 was terminated and a receiver appoint- 
 ed. Cf. Hamill v. Hamill, 27 Md. 679. 
 
 ' In Alford v. Berkele, 29 Hun, 633, 
 an action was brought for dissolution 
 where the resident partners appeared 
 and it appeared that no notice was 
 served upon the nonresident defend- 
 ant partner, but the court appointed 
 
 a receiver upon the authority of 
 Ptople V. Norton, 1 Paige, 17; Ver- 
 planck V. Mercnntile Ins. Co. 2 Paige, 
 438: Bhodgood v. Clark, 4 Paige. 574. 
 
 In Ogden v. Warren, 36 Neb. 715, 
 a receiver was appointed of the part- 
 nership goods of a foreign partner- 
 ship having effects in the state of 
 Nebraska. 
 
 2 In Hogg v. Ellis, 8 How. Pr. 473, 
 the court appointed a receiver in a 
 case of limited partnership on the 
 ground of disagreement of partners as 
 in other cases. 
 
 In Van Alstyne v. Cook, 25 N. Y. 
 489, it was held that until the order of 
 appointment is made the property of 
 an insolvent limited partnership is 
 liable to execution of a creditor re- 
 covering a judgment otherwise than 
 by confession, and such creditor may 
 thus obtain a preference, the execution 
 binding the partnership property al- 
 though the judgment is against the 
 general partners only. " The mem- 
 bers of a limited partnership before or 
 after insolvency are just as liable to 
 suit for their debts as other natural 
 persons. Their creditors are entitled 
 to recover judgmentagainst them with 
 a view of reaching the individual 
 property as well as partnership prop- 
 erty." Speaking of the nature of the 
 property of a limited partnership the 
 court further say: "They are not 
 trust funds in the hands of partners 
 any more than ordinary partnerships. 
 There is no rule of equity which 
 makes them trust funds in any other 
 sense or which gives a court of equity 
 any control over them, or which for- 
 bids any creditor of the copartnership, 
 or of any individual, from obtaining a 
 lien on them by due process of law in 
 any hostile proceedings."
 
 332 RECEIVERSHIPS. 
 
 The mere fact that a partnership business is unprofitable, and 
 should be discontinued is not of itself ground for a receiver;' nor 
 that the firm is largely indebted and is not making money ;' nor 
 want of co-operation between the partners;^ and facts must be 
 stated in the bill showing the necessity or propriety of the 
 appointment.* 
 
 § 206. Before dissolutiou. 
 
 In case of an existing partnership before the court will inter- 
 cede and appoint a receiver it must be made clear that in the end, 
 or when the final decree is rendered, a decree for dissolution will 
 be rendered. Hence it has become a rule of universal application 
 that the plaintiff must make out a strong case, the allegations 
 must be distinct and positive, and relate to matters of substantial 
 importance, and the court must be satisfied that the continuation 
 of the business, under the firm management, is no longer possible 
 without sacrifice of the interests of the partners, or of the firm 
 creditors. The appointment of a receiver must inevitably result 
 in the dissolution of the firm, and the destruction of its business, 
 and therefore the court will intercede with great caution in all 
 cases where the firm has not already been dissolved by agreement, 
 or otherwise.^ It must likewise appear in an action based upon 
 
 • Moies V, O'Neill, 23 N. J. Eq. 207. 496, it is said that the court willsome- 
 
 * Slioemaker v. Smith, 74 lad. 71. times entertain a bill to compel part- 
 ^ Roberts v. Eberhardt, Kay, 148. It ners to act according to the partner- 
 must be shown in addition that one ship agreement and appoint a receiver; 
 partner has interfered so as to prevent but the general rule announced in 
 the business being carried on. SmitJi, v. Jeyes, 4 Beav. 503, is that 
 
 *Tomlinson v. Ward, 2 Conn. 396; there must be either a dissolutiou or 
 
 Const V. Harris, 1 Turn. & R. 496. such facts alleged which if proven at 
 
 ' Barnes v. Jones, 91 Ind. 161. There the hearing would entitle the plaintiff 
 
 may be cases independent of statutory to a decree for dissolution. Cf. Bob- 
 
 provisions where a receiver may be erts v. Eberhardt, Kay, 148. The rule 
 
 appointed to bridge over an emer- laid down in Sieghortner v. Weissen- 
 
 gency without a dissolution of the born, 20 N. J. Eq. 172, is that there 
 
 partnership, but the general rule is that must be a cause for dissolution shown 
 
 a receiver for the business of a firm and as to what is a sufficient cause, it 
 
 will not be appointed unless a disso- may be shown (1) that the business of 
 
 lution has taken place or is about to the partnership is impracticable and 
 
 take place. Dale v. Kent, 58 Ind. cannot be carried on except at a loss. 
 
 584. Citing Baring v. Dix, 1 Cox, Ch. 213; 
 
 In Const V. Harris, 1 Turn. & R. Jennings v. Baddeley, 3 Kay & J. 78;
 
 RECEIVERSHIP IN PARTNERSHIP MATTERS. 
 
 333 
 
 disagreements and dissentions that no adjustment is probable.' 
 And yet even where the action results in a dissolution the ap- 
 pointment of a receiver will not necessarily follow, for in such a 
 case there must be evidence of mismanagement, misconduct, or 
 danger.' 
 
 Bailey v. Ford, 13 Sim. 495. (3) 
 That all confidence between the 
 partners has been destroyed so that 
 they cannot proceed together; and this 
 usually follows where one partner 
 has been guilty of mismanagement. 
 Citing Ilarrison v. Tennant, 21 Beav. 
 482; Baxter v. Welsh, 1 De G. & S. 
 173. See also Goodman v. Whitcomb, 
 1 Jac. & W. 589. 
 
 ' In Laio V. Lord, 2 Paige, 310, it is 
 said that the appointment is a matter 
 of course where either party has a 
 right to dissolve the partnership, where 
 the partners have not made provisions 
 for winding up the partnership. So 
 also in Marten v. Van Schaick, 4 
 Paige, 479, where the parties could not 
 agree among themselves as to the dis- 
 position and control of the property. 
 
 In Henn v. Walsh, 2 Edw. Ch. 129, 
 it is held that mere dissatisfaction 
 among the partners is not enough to 
 authorize the filing of a bill for disso- 
 lution; to authorize a receiver there 
 must be such a state of facts as would 
 authorize a decree of dissolution, such 
 as breach of duty or of the contract. 
 Quarrels among the partners is not 
 enough. 
 
 In Oarretson v. Weaver, 3 Edw. Ch. 
 385, it is held that the court will not 
 interfere by appointing a receiver 
 of a subsisting partnership unless it 
 satisfactorily appears that the plaintiff 
 will be entitled to have the partner- 
 ship dissolved and wound up, but a 
 receiver will not necessarily be ap- 
 pointed because an injunction is 
 granted. See also Jackson v. De 
 Forest, 14 How. Pr. 81. 
 
 In Williamson v. Wilson, 1 Bland, 
 Ch. 418, there were mutual charges 
 made by the partners against each 
 other any one of which it was held 
 being sufficient to warrant a dissolu- 
 tion of the partnership a receiver was 
 appointed, insolvency being admitted 
 on both sides. 
 
 In Harding v. Olover, 18 Ves. Jr. 
 281, it is held that a receiver would 
 not be appointed merely upon the 
 ground of a dissolution of the part- 
 nership, but that there must be a 
 breach of duty by one partner or a 
 breach of the contract. 
 
 ' In Bufkin v. Boyce, 104 Ind. 53, it 
 was held that where the partnership 
 expired by limitation and neither 
 partner was desirous of continuing the 
 business a receiver would not be ap- 
 pointed in the absence of a showing of 
 mismanagement or improper conduct. 
 
 In Benton v. Chaplain, 9 N. J. Eq. 
 62, one partner's interest was sold 
 under an execution and it was held 
 that this operated as a dissolution of 
 the firm if there was any fraud be- 
 tween the purchaser and the insolvent 
 partner. If the sale is bona fide the 
 purchaser in such case stands in no 
 better condition than the insolvent de- 
 fendant to whose rights he has suc- 
 ceeded, and the court will not inter- 
 fere with the remaining partner in 
 winding up the business unless gross 
 misconduct calls for it. Cf. Birdsall 
 V. Colie, 10 N. J. Eq. 63. 
 
 In Cox V. Peters, 13 N. J. Eq. 39, it 
 was held that where the partnership 
 was dissolved by mutual consent or 
 determined by the will of either party
 
 334 
 
 RECEIVERSHIPS. 
 
 the court would not appoint a receiver 
 as a matter of course, but this would 
 only be done where it was necessary 
 to protect the interests of the parties. 
 And where one partner advances all 
 the capital and the other partner is 
 only interested in the profits, in the 
 absence of insolvency or irresponsi- 
 bility or proof of fraud a receiver will 
 not be appointed. 
 
 Randall v. Morrell, 17 N. J. Eq. 343, 
 was a case where the defendant was 
 insolvent and a receiver was appointed. 
 In Page v. Van Kirk, 1 Brewst. 282. 
 the court say: "Although the part- 
 nership agreement provides for a no- 
 tice of six months of the intention of 
 dissolving the partnership and a 
 clause in the agreement provides for 
 arbitration, yet a court of equity in a 
 proper case will appoint a receiver, 
 such as excluding one partner from 
 his share in the management of the 
 concern, and refusing information; 
 also using the partnership money for 
 private purposes, impracticability of 
 carrying on the business. In this case 
 the court ably reviews all of the au- 
 thorities authorizing a dissolution of 
 the partnership before the time limited 
 therefor by the partnership agreement, 
 and states the following items of mis- 
 management for which the court will 
 decree a dissolution: (1) where one of 
 the partners permits a friend, without 
 the consent of the other partner, to 
 draw upon the concern for a large 
 amount. Citing Master v. Kirton, 3 
 Ves. Jr. 75. (2) Where the conduct 
 of the parties makes it impossible to 
 carry on the business upon the terms 
 stipulated, citing Walters v. Taylor, 2 
 Ves. & B. 804. (3) Where one partner 
 refuses another permission to inspect 
 the books, sells goods for an inade- 
 quate price, and appropriates partner- 
 ship funds to his own use, etc." Citing 
 
 Goodman v. Whifcomb, 1 Jac. & W. 
 589; Chapman v. Beach, 1 Jac. & W. 
 594. It is also held that in case of oc- 
 casional breaches, but not of such 
 grevious nature as to make it impos- 
 sible that the partnership could con- 
 tinue, the court will stand neutral. 
 Loscombe v. Russell, 4 Sim. 11. 
 
 In Smith v. Mules, 9 Hare, 556, it 
 was held that a refusal by one partner 
 to enter proper receipts is ground for 
 a receiver. As to the refusal of the 
 court to dissolve a partnership on 
 slight ground, see Anderson v. Ander- 
 son, 25 Beav. 190; Slemmer's Appeal, 
 58 Pa. 168. In the latter case it was 
 held that where the partnership can- 
 not be longer continued with comfort 
 and advantage to all concerned a dis- 
 solution will be granted, but in doing 
 so the court will consider the agree- 
 ment and the duties and obligations 
 of the parties expressed and implied. 
 In L'win v. Everson, 95 Ala. 64, 
 which was a suit for settlement be- 
 tween partners, a receiver was denied 
 on the ground that the defendant in 
 possession denied the partnership and 
 was solvent and able to respond for 
 all damages, upon the authority of 
 Peacock v. Peacock, 16 Ves. Jr. 49; 
 Fairburn -7. Pearson, 2 Macn. & G. 144; 
 Goulding v. Bain, 4 Sandf. 716; Ho- 
 bartv. Ballard, 31 Iowa, 521: William- 
 son V. Monroe, 3 Cal. 383; Popper v. 
 Schreider, 7 Abb. Pr. N. S. 56. 
 
 In Smith v. Lowe, 1 Edw. Ch. 33, a 
 receiver was refused on the ground that 
 the plaintiff was in possession of the 
 partnership property. 
 
 In Loomis v. McKenzie, 31 Iowa, 
 425, it was held that ill-feeling or dif- 
 ferences between the partners which 
 are not shown to have resulted from 
 the fault of the defendant will not 
 justify the appointment. Cf. Mo 
 Crackan v. Ware, 3 Sandf. 688.
 
 RECEIVERSHIP IN PARTNERSHIP MATTERS. 33a 
 
 § 207. On raiscellaueous grounds. 
 
 Where a partner absconds/ or appropriates the partnership 
 property or funds to his private use/ or where partnersliip money 
 is improperly withdrawn and invested on private account, or 
 where the partnership books are taken into a foreign jurisdiction 
 in violation of an injunction/ or where one partner is acting in 
 collusion with creditors/ or when the conduct of one partner is 
 such, or the condition of the business is such, as a result of mis- 
 management, that serious loss is apparent a receiver will be ap- 
 pointed. 
 
 § 208. Appointment refused when. 
 
 A receiver will not be appointed in relation to rights arising 
 from joint transactions where such transactions have been coii.-,uui- 
 mated, in the absence of proof of insolvency or danger of loss,^ 
 nor where the ground alleged is the mere refusal of one partner 
 to assist in the management of the business," nor where the part- 
 nership is denied, insolvency not appearing,' nor on the aj^plica- 
 tion of a cestui q%ie trvst having but a small interest, where the 
 appointment would affect large interests of contractors and otlier 
 third persons/ nor where the partner in possession will give se- 
 
 ^S7ieppard v. Oxenford, 1 Kay & ^. operations had been consummated 
 
 491. except the collection of the debts and 
 
 ^In Prentiss v. Brennan, 1 Grants there remains simply a dispute as to 
 
 Ch. (Ont.) App. 484, it appeared that the proper apponionment of the fund 
 
 a partner had purchased a house with arising from the business, no aver- 
 
 partnership funds, had withdrawn all ment being made as to insolvency or 
 
 partnership books from the iurisdic- danger of loss, a receiver should not 
 
 lion of the court a receiver was ap- be appointed. 
 
 pointed. «In lioherts v. Eberliardt, Kay, 148, 
 
 ^Prentiss v. Brennan, supra. it was held that merely because the 
 
 *In Estwick v. Coningaby, 1 Vern. partners did not co operate in the 
 
 118, a surviving partner was carrying business was no ground for a receiver, 
 
 on business with debtors of the late In Rowe v. Wood, 2 Jac. & "\Y. 558, 
 
 firm and forbearing the collection of a mortgagee became a partner or joint 
 
 debts against them; a receiver was owner and was in possession of the 
 
 appointed. See also Speights v. Peters, properly; a receiver was refused. 
 
 9 Gill, 472. 1 1n Irwin v. Ever.^on, 95 Ala. 64, 
 
 ^In Mcintosh v. Perkins, 13 Mont. where the dcieniiatit denied the part- 
 
 143, it is said that where it appears nership, a receiver was refused, 
 
 from the complaint that all the joint ^Devlin v. llope, 16 Abb. Pr. 314.
 
 336 
 
 RECEIVERSHIPS. 
 
 cnrity ;' nor will the court appoint as against a non-resident pur- 
 chaser of an interest in the firm." 
 
 § 209. Receiyer's power and duty. 
 
 The receiver's general powers and duties have elsewhere been 
 fully considered, and they are not in partnership matters materi- 
 allv different from those applicable to other classes of receiver- 
 ships. But we repeat in this connection a few of the general 
 principles relating to the power and duty of receivers which have 
 received the sanction of the courts in litigation growing out of 
 partnership relations. 
 
 (a) A receiver pendente lite must look to the order of appoint- 
 ment for the general scope of his power.' 
 
 (b) The legal title to the partnership property does not vest in 
 him.* 
 
 ' In Buchanan v. Comstock, 57 Barb. 
 568, a receiver was refused before it 
 was determined bow mucb of the 
 partnership effects belonged to each 
 partner, where no insolvency was al- 
 leged and the defendant denied the 
 entire equity of the complaint but of- 
 fered to convey one half of the stock 
 to the plaintiff to indemnify him. 
 
 In Saverios v. Levy, 1 N. Y. S. 
 R. 758, the defendant offered to exe- 
 cute a bond in such sum and with 
 such sureties as the court might re- 
 quire, conditioned to obey all orders 
 of court; a receiver was refused. In 
 Popper V. Schreider, "7 Abb. Pr. N. S. 
 56, the partnership was denied and 
 but a small portion of the capital was 
 controlled by the plaintiff and the de- 
 fendants were willing to give security, 
 a receiver was refused, McDonald v. 
 Trojan, 56 Hun, 648 (mem.) 
 
 '^Uarvey v. Varney, 104 Mass. 436. 
 This rule was applied in case of a non- 
 resident partner, where it appeared 
 he was acting in good faith. Evans 
 V. Evans, 9 Paige, 178; but see cc^w^ra 
 Sheppard v. Oxenford, 1 Kay & J. 491. 
 *In Finclce v. Punke, 25 Hun, 616, 
 
 where an action was commenced by 
 an administrator against the two re- 
 maining partners, after a receiver 
 was appointed. The court held that 
 the receiver had no specific authority 
 conferred upon him to bring actions 
 and that the title of the property did 
 not vest in him; that the receiver in a 
 partnership case is vested only with 
 such power as is conferred upon him 
 by the order; that he is merely a com- 
 mon law receiver whose duty is only 
 to protect the property, the title 
 therein remaining in the partnership. 
 *In Tillinghast v. Champlin, 4 R. I. 
 173, it was held that the receiver in a 
 partnership case is vested with the 
 whole equitable title to the partner- 
 ship property. For a full discussion 
 of the powers and rights of receivers, 
 see Idding v. Bruen, 4 Sandf. Ch. 417; 
 Hutchinson v. Massareene, 2 Ball & B. 
 55; Davis v. Duke of Marlborough, 2 
 Swanst. 118; Green v. Bostwick, 1 
 Sandf. Ch. 186; Mann v. Pentz, 2 
 Sandf. Ch. 271; Waring v. Robinson, 
 1 Hoffm. Ch. 532. 
 
 In Wallace v. Teager, 4 Phila. 251, 
 it was held that the receiver succeeds
 
 RECEIVERSHIP IN PARTNERSHIP MATTERS. 
 
 337 
 
 (c) He cannot loan the receivership funds to himself or to the 
 firm of which he is a member.^ 
 
 (d) He is the representative of the interests of all parties con- 
 cerned, and the special representative of none."' 
 
 (e) He must use ordinary and reasonable diligence in the exe. 
 cution of his trust/ 
 
 (f) He may maintain an action in another state to set aside an 
 .assignment made by one partner to a creditor in fraud of another 
 creditor where there are no local creditors having rights affected 
 thereby," and generally may sue in his own name to collect all 
 debts.' 
 
 (g) He has no greater power concerning the winding up of the 
 partnership business than the partners possessed.' 
 
 not only to the legal title of the part- 
 ners as joint tenants, but also to the 
 equitable rights and remedies of the 
 firm. Pearce v. Gamble, 73 Ala. 341 ; 
 Smith V. Danvers, 5 Sandf. 669. Cf. 
 Cox V. Volkert, 86 Mo. 505. 
 
 In Ogdeii v. Arnot, 29 Hun, 146, it 
 was held that where one member of a 
 firm becomes insolvent and makes a 
 general assignment for the benefit of 
 his creditors, the partnership is 
 thereby dissolved and the solvent part- 
 ner has a right to close up the busi- 
 ness. In this case in an action brought 
 by the solvent partner to wind up the 
 business, the right of a receiver to 
 sue is discussed. 
 
 In Keeney v. Home Ins. Co., 71 N. 
 Y. 396, an action was brought to dis- 
 solve the partnership and it was held 
 that the receiver took no title to the 
 property; the court .say: "A receiver 
 pendente Hie is a person appointed to 
 take charge of the fund or property 
 to which the receivership extends 
 while the case remains undecided. 
 The title of the property is not 
 changed by the appointment. The 
 receiver acquires no title and only the 
 
 22 
 
 right of possession as an officer of the 
 court. The title remains in those in 
 whom it was vested when the appoint- 
 ment was made. The object of the 
 appointment is to secure the property 
 pending the litigation so that it may 
 be appropriated in accordance with 
 the rights of the parties as may be de- 
 termined by the judgment in the 
 action." Citing Skip v. Harwood, 3 
 Alk. 564; Gresley v. Adderly, 1 
 Swanst. 573; Thomas v. Brigstocke, 4 
 Russ. 65; Bertrand v.Davies, 31 Beav. 
 436; Green v. Bostwick, 1 Sandf. Ch. 
 165; Singerly v. Fox, 75 Pa. 112; 
 Eirkpatrick v. Corning, 38 N. J. Eq. 
 234. 
 
 ^Ryan v. Morrill, 83 Ky. 352. 
 
 ^Tilliughast v. Champlin, 4 R. I. 
 173 (189). 
 
 ^Johnston v. Keener, 23 111. App. 
 220. 
 
 *Sobernheimer v. Wheeler, 45 N. J. 
 Eq. 614; Sloan v. Moore, 37 Pa. 217, 
 
 ^IJenning v. Raymond, 35 Minn. 303. 
 
 ^Niemann v. Niemann, L. R. 43 
 Ch. Div. 198; Wiekersham's Case, L. 
 R. 8 Ch. 831, 28 L. T. 653.
 
 338 
 
 RECEIVERSHIPS. 
 
 § 210. Effect of appointment. 
 
 The etl'ect of the appointment of a receiver as to creditors 
 havint^ liens is the same as in other cases, all liens remaining un- 
 affected by the appointment, and no levies of execution or attach- 
 ment being permitted thereafter to interfere with the possession 
 of the court through the receiver, and no rights being determined 
 thereby.' 
 
 ' In Davenport v. Eelly, 42 N. Y. 
 193, it is said that a jiulgnient cred- 
 itor acquires no preference by the 
 commencement of an action in the 
 nature of a creditor's bill until the 
 appointment of a receiver therein over 
 a junior judgment, as to personal 
 property which is the subject of a 
 levy and sale on execution. Citing 
 Storm v. Waddell, 2 Sandf. Ch. 494, 
 516; Van Alslym v. Cook, supra. It 
 is very clear that as to personal prop- 
 erty which is the subject of levy and 
 sale on execution a creditor by an 
 equity suit acquires no preference as 
 against a judgment creditor of the 
 debtor until the entry of an order ap- 
 pointing a receiver in such equity 
 Buit. The vigilant creditor, who by his 
 execution seizes and sells the property 
 of his debtor before the appointment 
 of a receiver in an equity action, se- 
 cures a preference which the law 
 sanctions and protects. 
 
 In Knode v. Baldridge, 73 Ind. 54, a 
 member of the partnership died and a 
 receiver was appointed to take posses- 
 sion of the partnership property, but 
 it was held that no creditor had a 
 right to have such property seized and 
 sold on execution for his own benefit. 
 
 In Waring v. Rohinson, Hollm. Ch. 
 534, it was held that when a partner- 
 ship was dissolved and a receiver ap- 
 pointed, notice of which was pub- 
 lished in a paper circulating in the 
 town where the defendant lived, the 
 payment of a debt to one of the part- 
 ners would be void if he had notice of 
 
 the appointment broiight home to the 
 debtor; and that the filing of a bill 
 was not a dissolution, but the receiver 
 was appointed in anticipation that a 
 dissolution must take place. After 
 the appointment of a receiver one 
 partner cannot give preference to 
 creditors. 
 
 In Adams v. Hackett, 7 Cal. 187, 
 where one partner filed a bill for dis- 
 solution of the partnership and the 
 appointment of a receiver it was held 
 that until the dissolution had been 
 judicially declared and a receiver or- 
 dered to make distribution, creditors- 
 are not prevented from asserting ad- 
 verse proceedings and gaining a pref- 
 erence. Cf. Adams v. Woods, 8 Cal. 
 152, 9 Cal. 24; Naglee v. Minium, 8- 
 Cal. 540. 
 
 In Hanneh v. Chase, 1 Bland, Ch. 
 213, it was held that the appointment 
 does not involve the determination of 
 any right, or affect the title of either 
 party in any manner whatever. 
 "From this case it seems to be settled, "^ 
 the court say, " that until a dissolu- 
 tion has been judicially declared and 
 a receiver ordered to make a pro rata 
 distribution of the partnership assets 
 among the creditors they are not pre- 
 vented from resorting to adverse pro- 
 ceedings and that when a creditor 
 does resort to such proceedings he 
 may thereby gain a preference over 
 other creditors who are less diligent." 
 The reason of -the above rule is based 
 upon the fact that the proceeding is 
 between partners and the plaintiff
 
 RECEIVERSHIP IN PARTNERSHIP MATTERS. 
 
 339 
 
 § 211. Receiyer as manager, 
 
 A court of equity is averse to appointing a receiver to continue 
 a partnership business indefinitely, and generally will refrain 
 from so doing. But there are cases where the court in the exer- 
 cise of a sound discretion is justifiable in authorizing the receiver 
 to continue the business in order that it may be sold as a goino- 
 concern. It not unfrequently happens that a valuable partner- 
 ship business consists largely of the goodwill of the concern, in 
 which case the cessation of business works an immediate and per- 
 manent loss and destroys the almost only element of value in the 
 business, and thus not only the interest of the members of the 
 firm is sacrificed but often the interest of creditors as well. 
 Under such circumstances the court is not only justified but it is 
 highly commendable to continue the business a i*easonable time 
 having, of course, in mind the sale of the partnership effects and 
 
 may at any time dismiss his bill. But 
 Bee Waring v. Robinson, supra. 
 
 In Blakeney v. Dufaur, 15 Beav. 40, 
 the Master of Rolls says: "The 
 province of this court upon a motion 
 for a receiver is quite clear; its duty 
 is merely to protect the property and 
 not to decide the ultimate rights be- 
 tween the parties." 
 
 In Gregory v. Gregory, 1 Sweeny, 
 613, the court refused to appoint a re- 
 ceiver over specific property without 
 satisfactory proof that such specific 
 property is in fact partnership prop- 
 erty. 
 
 In Higgins v. Bailey, 7 Robt. 613, it 
 was held improper for the court to 
 appoint a receiver upon motion and 
 undertake to determine what is part- 
 nership property as between the part- 
 ners and third persons. 
 
 In Morey v. Grant, 48 Mich. 326, 
 it is said that in an interlocutory order 
 there should be embraced a finding of 
 such facts as would give authority for 
 divesting the possession of the defend- 
 ant, and when made, after the evi- 
 dence is in, the necessity that the 
 court should find that the necessary 
 facts were made out is still more ob- 
 
 vious. To appoint a receiver at that 
 stage of the case without first adjudg- 
 ing the merits upon which the right or 
 the propriety of the appointment 
 necessarily depend was very plainly 
 erroneous and must, we think, have 
 been inadvertent. 
 
 A receiver of a partnership ap- 
 pointed in an action by one partner 
 against the other cannot be garnished 
 in an action by a creditor of the firm 
 without leave of the court appointing 
 him. Blum v. Van Vechten, 92 Wis. 
 378. 
 
 After a receiver is appointed the 
 property is in the control of the court 
 and cannot be levied on by attach- 
 ment or other judicial process. Jack- 
 son v. Laliee, 114 ill. 287; McGoican 
 V. Myers, 66 Iowa, 99. 
 
 If, however, the partnership has 
 been wound up and there is a balance 
 in the hands of a receiver which be- 
 longs to one partner it is subject to the 
 rights of creditors, Willard v. De- 
 catur, o9 N. H. 137. 
 
 A purchaser of one partner's inter- 
 ests after the appointment is subject 
 to the rights of the receiver. Noonan 
 V. McNab, 30 Wis. 277.
 
 340 
 
 RECEIVERSHIPS. 
 
 <j-oodwilI at the earliest practicable moment. The court, however, 
 under no circumstances will be made a medium through its receiver, 
 of tiding the firm over temporary or threatened insolvenc3^' 
 
 The appointment of a receiver in matters of this character has 
 reference to the final winding-up and dissolution of the partner- 
 ship and not a continuation of the business as a going concern. 
 
 ' In Merrell v. Pemberton, 62 Ga. 29, 
 the defendant had no place of busi- 
 ness, and if the plaintiff had any it 
 was beyond the limits of the state. 
 The court refused to appoint a re- 
 ceiver for the purpose of opening up 
 a house for the manufacture and sale 
 of medicines, on the ground that it is 
 only where a place of business is es- 
 tablished that the court will appoint a 
 manager. 
 
 In Hall V. Hall, 3 Macn. & G. 79, 
 the purpose of the suit was to con- 
 tinue the business through a receiver. 
 It was held tfhat the object being to 
 continue the partnership it was not 
 according to the practice of the 
 court to appoint a receiver. See 
 also Wilson v. Oreenwood, 1 Swanst. 
 471; Goodman v. Whitccmb, 1 .Jac. & 
 W. 589; Walworth v. EoU, 4 Myl. & 
 C. 619; Const v. Hariis, Turn. & R. 
 496. "The conclusion," the court 
 says, "I come to is that by the rule 
 and practice of this court, a receiver 
 or manager is only granted where it 
 is ancillary to the object of dissolu- 
 tion. 
 
 In Roberts v. Eberhardt, Kay, 148, 
 it is said that where the purpose is 
 the appointing of a receiver to con- 
 tinue the business the court does not 
 readily grant the order. 
 
 In Jackson v. De Forest, 14 How. 
 Pr. 81, it was held that the court 
 would not take upon itself the re- 
 sponsibility of carrying on the part- 
 nership business. In some cases 
 where it may be necessaiy to secure 
 the goodwill of the partnership busi- 
 ness to the purchaser and the full 
 
 value of the partnership property to 
 the partners on the sale a receiver is 
 allowed to carry on the business until 
 he can make a favorable sale of the 
 property. Cf. Dayton v. Wilkes, 17 
 How. Pr. 510, where sufficient time 
 was allowed to dispose of the prop- 
 erty advantageously. Marten v. Van 
 Schaick, 4 Paige, 479, is to the same 
 effect. 
 
 In Allen v. Rawley, 6 Fla. 142 (164), 
 it is said that it could never have 
 been contemplated that a court of 
 chancery should become the superin- 
 tendent of the private affairs of in- 
 dividuals. Its legitimate purpose is 
 to adjust the rights and settle the dis- 
 agreements of the parties growing out 
 of such transactions. See also Wol- 
 bert V. Harris, 7 N. J. Eq. 605. 
 
 In Heatlierton v. Hastings, 5 Hun, 
 459, the court say: "Although or- 
 dinarily a court of equity will not un- 
 dertake to carry on the business of con- 
 tending parties by means of a re- 
 ceiver, yet cases sometimes arise 
 where the refusal to do that for a 
 limited period would result in great 
 loss to the persons interested. That 
 such cases are exceptional and justify, 
 as well as require, the exercise of 
 authority which, under other circum- 
 stances, would be plainly improper." 
 Citing, among other cases, Crane v. 
 Ford, Hopk. Ch, 114, and Jackson v, 
 De Forest, 14 How. Pr. 81. See also 
 McMiihon V. McClernan, 10 W. Va. 
 419; Taylor v. Neate, L. R. 39 Ch, 
 Div. 538; Marten v. Van Scliaick, 4 
 Paige, 479; Williams v. Wilson, 4 
 Sandf. Ch. 379.
 
 CHAPTEK XII. 
 
 RECEIVERSHIP OF CORPORATIONS. 
 
 § 220, Jurisdiction. 
 
 § 221. Statutory power. 
 
 § 222. Exercise of power discretion- 
 ary. 
 
 § 223. Power to appoint, limitation 
 of. 
 
 § 224. Application ; by wliom made. 
 
 (a) Stockholders. 
 
 (b) Sureties for corporation. 
 
 (c) Minority stockholders. 
 
 (d) Defendant. 
 
 (e) Directors. 
 
 (f) Judgment creditors. 
 
 (g) But not by corporation. 
 § 225. Grounds for appointment. 
 
 (a) Statutory grounds. 
 
 (b) Default in mortgage indebt- 
 
 edness, 
 
 (c) Mismanagement. 
 
 (d) Insolvency and officers ceas- 
 
 ing to act. 
 
 (e) When corporation dissolved. 
 
 (f) When charter repealed. 
 
 (g) When declared bankrupt, 
 (h) Neglect of majority to elect 
 
 officers. 
 
 (i) When necessary to resort to 
 unpaid subscription-s. 
 
 (j) Where charter rights are vio- 
 lated. 
 
 (k) Judgment creditors. 
 § 226. When not appointed. 
 
 (a) Unless proceeding is to dis- 
 
 solve corporation. 
 
 (b) Mere disagreement not suffi- 
 
 cient. 
 
 (c) Where no effort to secure re- 
 
 dress through company. 
 
 (d) Law affords adequate rem- 
 
 edy. 
 
 (e) Repairs, are required by law. 
 
 (f) Defendant foreign corpora- 
 
 tion without property. 
 
 (g) Title to premises in litiga- 
 
 tion. 
 
 (h) In foreclosures, right to fore- 
 close not clear. 
 
 (i) No showing of danger or loss. 
 
 (j) After payment of mortgage, 
 no excess. 
 
 (k) Relative indebtedness small. 
 
 (1) Applicant a secured creditor. 
 
 (m) Possession rightfully in 
 mortgagee. 
 
 227. Fraud as ground for appoint- 
 
 ment. 
 
 228. Insolvency as ground for ap- 
 
 pointment. 
 
 229. In foreclosure proceedings. 
 
 230. Effects of appointment. 
 
 (a) Liens remain unimpaired. 
 
 (b) Possession of property pro- 
 
 tected. 
 
 (c) As against interference from 
 
 other courts. 
 
 (d) As to unfriendly litigation. 
 
 (e) Effect as to unexpired leases. 
 
 (f) Effect as to predecessor's 
 
 contracts. 
 
 (g) As to corporate powers, 
 (h) As to owner's control. 
 
 (i) Abatement of pending ac- 
 tions. 
 
 231. The receiver's relationship. 
 
 (a) Agent of the court. 
 
 (b) Trustee of creditors. 
 
 (c) Representative of corpora- 
 
 tion as to title. 
 
 232. The receiver as manager. 
 
 233. Receiver's powers and duties. 
 
 (a) Power to borrow money. 
 
 (b) To purchase rolling stock. 
 
 341
 
 3i2 
 
 RECEIVERSHIPS. 
 
 (c) To make necrlful repairs. 
 
 (d) To compromise. 
 
 (e) To sue. 
 
 (f) To redeem. 
 
 (g) To pay taxe3. 
 (h) To lease. 
 
 (i) To mortgage, 
 (j) To invest, 
 (k) To contract. 
 (1) To sell. 
 
 (m) To make assessments, 
 (n) Duty to appeal. 
 § 234. Liability of receiver. 
 
 (a) On his contracts. 
 
 (b) For rent. 
 
 (c) For interest. 
 
 (d) For debts incurred. 
 
 (e) Personal liability for torts. 
 
 (f) Otficial liability for torts and 
 
 damages. 
 
 (g) Extent of liability, 
 
 (h) Liability for loss in manage- 
 ment, 
 (i) Liability on order of court. 
 § 235. Suits by receiver of a corpora- 
 tion. 
 
 (a) Generally. 
 
 (b) When he may sue in his own 
 
 name. 
 (1) Where assets have been as- 
 signed. 
 {£) Where decree so empowers. 
 (3) Where statute authorizes it. 
 
 § 236. To recover stock subscriptions. 
 
 (a) As a general rule he may re- 
 
 cover. 
 
 (b) When so empowered corpo- 
 
 ration excluded. 
 
 (c) Extent of power in collusive 
 
 transactions. 
 
 (d) Extent of liability governed 
 
 by indebtedness. 
 
 (e) Court must first determine 
 
 corporate indebtedness. 
 
 (f) In what action to be recov- 
 
 ered. 
 
 § 237. To avoid fraudulent transfers. 
 
 § 238. To recover illegal dividends. 
 
 § 239. Leave of court to sue re- 
 quired. 
 
 § 240. Suits by foreign receiver of 
 corporation. 
 
 (a) By, for foreign corporation 
 
 dissolved. 
 
 (b) By, as against creditor of 
 
 same state. 
 
 (c) By, where recovery not in 
 
 conflict with law of forum. 
 
 (d) By, as to property reduced 
 
 to possession. 
 
 (e) By, to recover assessment on 
 
 premium note. 
 
 (f) Necessary allegations. 
 
 § 241. Collateral attack of receiver. 
 § 242. Receiver's possession. 
 
 § 220. Jurisdiction. 
 
 Courts of equity, in the exercise of their ordinary chancery ju- 
 risdiction, have not the power to appoint a receiver over a corpo- 
 ration, and thus phice tiie management of its business and affairs in 
 the liands of an officer of court. Such courts, not having inherent 
 power to wind up a corporation, cannot indirectly, through the ap- 
 pointment of a receiver, accomplish what cannot be done directly. 
 There must be found statutory power and authority vested in courts 
 of ecpiit}', or courts exercising equitable jurisdiction, enabling them 
 through a receivership to wind up incorporated companies, and
 
 RECEIVERSHIP OF CORPORATIONS. 
 
 343 
 
 distribute their assets to creditors and shareholders, or otlier per- 
 sons entitled thereto,' As to the question of conflict of jurisdic- 
 
 'A court of equity has no power to 
 interpose its authority for the purpose 
 of adjusting controversies that have 
 arisen among the shareholders or di- 
 rectors of a corporation relative to 
 the proper mode of conducting the 
 corporate business, as it may do in 
 cases arising between members of an 
 ordinary partnership. It is for the 
 reason that corporations have a legis- 
 lative power where the directors or 
 shareholders are duly convened that 
 is fully adequate to settle all questions 
 affecting their business interests or 
 policy, and they should be left to dis- 
 pose of all questions of that nature 
 without applying to courts for relief. 
 A stockholder cannot invoke the 
 power of this court to control its offi- 
 cers or board of managers, or to wrest 
 the corporate property from iheir 
 charge through the agency of a re- 
 ceiver so long as they neither do, nor 
 threaten to do, any fraudulent or ultra 
 mres acts, and so long as they keep 
 within the limits of the by-laws which 
 have been prescribed for their govern- 
 ance. Hawes v. Contra Costa Water 
 Co. ("Hawes v. Oakland") 104 U. S. 
 450, 26 L. ed. 828; Ogleshy v. Attrill, 
 105 U. S. 605, 26 L. ed. 1186; French 
 V. Gifford, 30 Iowa, 148. It is also 
 true and well established that a court 
 of equity has no power, at the suit of 
 an individual, to decree a dissolution 
 of a domestic corporation and a wind- 
 ing up of its affairs unless such ex- 
 traordinary power has been conferred 
 upon it by the terms of some statute, 
 even though such power, has been in- 
 voked by the state through its attor- 
 ney general. Folger v. Cotumhian Ins. 
 Co. 99 Mass. 267; Slee v. Bloom, 5 
 Johns. Ch. 366; French v. Gifford, 30 
 Iowa, 148; Atty. Gen. v. Chicago & N. 
 
 W. R. Co. 35 Wis. 425; Baher v. 
 Louisiana Portable R. Co. 34 La. Ann. 
 754. Much less can they exercise 
 such power with reference to a foreign 
 corporation. For the courts of a state 
 have no visitorial power over foreign 
 corporations doing business within the 
 state unless such power is expressly 
 conferred by local statutes. North 
 State Copper & G. Min. Co. v. Field, 
 64 Md. 151; Wilkins v. Thome, 60 
 Md. 253. Cf. Republican Mountain 
 Silver Mines v. Brown, 58 Fed. Rep. 
 644. 24 L. R. A. 776. 
 
 In Patten v. Accessory Transit Co. 
 4 Abb. Pr. 235. 13 How. Pr. 502, it is 
 held that the appointment of a re- 
 ceiver of chattel property in the 
 possession of a mortgagee, except 
 where it is necessary to secure the 
 rights of other parties, is an impair- 
 ment of the obligation of contract be- 
 tween the parties and is therefore be- 
 yond the constitutional power of both 
 court and legislature. As to the want 
 of power of courts of equity inde- 
 pendent of statutory authority to dis- 
 solve corporations and wind up their 
 business, see Adler v. Milwaukee 
 Patent Brick Mfg. Co. 13 Wis. 57; 
 Hinckley v. Pfister, 83 Wis. 64; Pond 
 V. Frarningham <& L. R. Co. 130 Mass. 
 194; Neall v. Hill, 16 Cal. 145; La 
 Sociele Francaise v. 15th Judicial Dist. 
 Ct. 53 Cal. 495: Walters v. Anglo-Am- 
 erican Mortg. & T. Co. 50 Fed. Rep. 
 316; Blatchford v. Ross, 54 Barb. 42; 
 Belmont v. Erie R. Co. 52 Barb. 637; 
 Waterbury v. Merchants' U. E.ip. Co. 
 50 Barb. 157; Howe v. Deuel, 43 Barb. 
 504; Bangs v. 3Mntosh, 23 Barb. 591; 
 Bakery. Backus, 32 111. 79; Mason v. 
 Equitable League Sup. Ct. 11 Md. 483; 
 Hamilton v. Accessory Transit Co. 3 
 Abb. Pr. 255; Briarfield Iron Works v.
 
 344 
 
 RECEIVERSHIPS. 
 
 tion the general rule is that the court which first makes an order 
 for the appointment of a receiver will be entitled to administer 
 the estate.' 
 
 Foster, 54 Ala. 622; Converse v. BimoeJe, 
 22 Fed. Rep. 573; Hand v. Dexter, 41 
 Ga. 454. 
 
 "The basic principle" says Mr. 
 Spelling (Priv. Corp. vol. II., § 842), 
 "of the rule which denies a court of 
 equity the authority to appoint a re- 
 ceiver of a corporation without a stat- 
 ute conferring it under circumstances 
 which would warrant the appoint- 
 ment of one in the case of an indi- 
 vidual is that such courts in adminis- 
 tering relief may not proceed contrary 
 to a positive rule of law. Now the 
 responsibility of a corporation for 
 abuse of its franchise is on the state, 
 and a judgment of forfeiture, which 
 is one form of dissolution, cannot be 
 rendered at law at the suit of an indi- 
 vidual; nor can the same be done in 
 substance in equity by putting an end 
 to all its operations, taking all its 
 property into possession and its mo- 
 tive power away, and making distri- 
 bution, leaving nothing but an empty 
 name." 
 
 As to the want of power to appoint 
 a receiver over a corporation in the 
 absence of a statute, see Fischer v. 
 San Francisco Sup. Ct. 2 Am. & Eng. 
 Corp. Cas. N. S. 339. 
 
 What is termed jurisdiction as used 
 in this connection has reference to the 
 power to do a judicial act. Wilnier 
 v. Atlanta dk R. Air Line R. Co. 2 
 Woods, 409 ; East Tennessee, V. cfc G. 
 R. Co. V. Atlanta & F. R. Co. 49 Fed. 
 Rep. 608, 15 L. K. A. 109; Merchants' 
 & P. Nat. Bank v. Masonic Hall, 63 
 Ga. 549; Leadville Coal Co. v. Me- 
 Creery, 141 U. S. 475, 35 L. ed. 824. 
 
 This rule is founded upon the prin- 
 ciple that the appointment of a re- 
 ceiver is in the nature of an equitable 
 
 execution. Davis v. Gray, 83 U. S. 
 16 Wall. 203, 21 L. ed. 447; Beverley 
 V. Brooke, 4 Gralt. 187; Hunt v. Wolfe, 
 2 Daly, 303. 
 
 As to the want of inherent power 
 of a court of equity to dissolve a cor- 
 poration and appoint a receiver of its 
 property, see Verplanck v. Mercantile 
 Ins. Co. 2 Paige, 452; Bank Comrs. v. 
 Batik of Buffalo, 6 Paige, 497; Water- 
 bury V. Merchants' & U. Exp. Co. 50 
 Barb. 167; Robertson v. Bullions, 11 
 N. Y. 252; Howe v. Deuel, 43 Barb. 
 504; Belmont v. Erie B. Co. 52 Barb. 
 665; Slee v. Bloom. 5 Johns. Ch. 379; 
 Van Pelt v. United States Metallic 
 Spring B. & 8. H. Co. 13 Abb. Pr. N. 
 S. 331; Neall v. Hill, 16 Cal. 150; Bay- 
 less V. Orne, 1 Freem. Ch. (Miss.) 172; 
 French v. Gifford, 30 Iowa, 153; Atty. 
 Gen. V. Bank of Michigan, Harr. Ch. 
 315; State v. Merchants' Lis. & T. Co. 
 8 Humph. 252; Baker v. Backus, 32 
 III. 79; Fountain Ferry Tump. Road 
 Co. V. Jewell, 8 B. Mon. 142; La 
 Societe Francaise v. 16th Judicial Dist. 
 Ct. 53 Cal. 495. 
 
 Where a case is pending in one 
 court in the matter of injunction an- 
 other court may properly entertain 
 jurisdiction to appoint a receiver. 
 San Antonio & G. 8. R. Co. v. Davis, 
 2 Am. & Eng. Corp. Cas. N. S. 374. 
 
 The appointment being discretion- 
 ary it is not a right of course upon the 
 establishment of insolvency of the cor- 
 poration. McGeorge v. Big Stone Gap 
 Improv. Co. 57 Fed. Rep. 2G2. 
 
 The president of a corporation has 
 no power to consent to the appoint- 
 ment of a receiver. Walters v. Anglo- 
 American Mortg. & T. Co. 50 Fed. 
 Rep. 316. 
 
 ' When jurisdiction is obtained it
 
 RECEIVERSHIP OF CORPORATIONS. 
 
 S^d' 
 
 § 221. Statutory power. 
 
 In England, and in most of the states of this country, the 
 power of the courts of chancery over the affairs of corpora- 
 tions has been enlarged, in some instances even to the extent of 
 winding up the corporations, and distributing their assets, and 
 in nearly all cases express power is given to the courts to appoint 
 receivers as a necessary requisite to the due and proper exercise 
 of the enlarged duties and extraordinary powers conferred. 
 These statutory powers are by no means uniform throughout this 
 country, and for this reason there is lack of harmony, in some 
 cases, in the decisions that have been based thereon, yet, as a 
 general rule, the law of receivership in its genei'al sense is aj)pli- 
 cable to receiverships over corporations. The jurisdiction being 
 statutory, there ought in all cases to be found express authority 
 for exercising the power of appointment of a receiver.* Courts 
 
 will be retained to the exclusion of 
 other courts. O'Mahoney v. Belmont, 
 fi2 N. Y. 13.3; Wiswall v. Samiison, 55 
 U. S. 14 How. 52, 14 L. ed. 322; 
 FarnHicorth v. Western U. Teleg. Go. 
 25 N. Y. S. R. 393; Safford v. People, 
 85 111. 558; Slate v. Miller, 54 Kan. 
 244; Port Royal & A. P. Co. v. King, 
 93 Ga. 63, 24 L. R. A. 730; May v. 
 Printup, 59 Ga. 129; Ft. Wayne, M. 
 <& C. R. Co. V. Mellett, 92 lad. 535; 
 Ohio & M. R. Co. V. Fitch, 20 Ind. 
 498; Young V. Rollins, 85 N. C. 485; 
 Texas Trunk R. Co. v. State, 83 Tex. 
 1; State, Men-iam, v. Ross, 122 Mo. 
 462, 23 L. R. A. 534; Minchin v. 
 Second Nat. Bank, 36 N. J. Eq. 436; 
 Milwaukee & St. P. R. Co. v. Milwau- 
 kee & M. R. Co. 20 Wis. 165; Oelpeke 
 V. Milwaukee & H. R. Co. 11 Wis. 
 454; State v. Jacksonville, P. & M. R. 
 Co. 15 Fla. 201; Shields v. Coleman, 
 157 U. S. 168, 39 L. ed. 660; Jerome 
 V. McCarter, 94 U. S. 737, 24 L. ed. 
 138; Chittenden v. Brewster, 69 U. S. 
 2 Wall. 191, 17 L. ed. 839; Uatch v. 
 Bancroft- Thompson Co. 67 Fed. Rep. 
 802; Adams v. Mercantile Trust Co. 66 
 Fed. Rep. 617; Central Trust Co. v. 
 
 Chattanooga, R. & C. R. Co. 62 Fed. 
 Rep. 950; Ames v. Union P. R. Co. 60 
 Fed. Rep. 966; Central Trust Co. v. 
 South Atlantic & 0. R. Co, 57 Fed. 
 Rep. 3; Reinach v. Atlantic <fe G. W. 
 R. Co. 58 Fed. Rep. 33; Hoiolett v. 
 Central Carolina Land & Improv. Co. 
 56 Fed. Rep. 161 ; Carey v. Houston & 
 T. a B. Co. 52 Fed. Rep. 671; Liggett 
 V. Glenn, 51 Fed. Rep. 381; Central 
 Nat. Bank v. Hazard, 49 Fed. Rep. 
 293; Lake Superior Iron Co. v. Broion, 
 44 Fed. Rep. 539; Young v. Moritgom- 
 ery & E. R. Co. 2 Woods, 606; West- 
 ern TJ. Teleg. Co. v. Atlantic & P. 
 Teleg. Co. 7 Biss. 367; Gay lord v. Ft. 
 Wayne, M. & C. R. Co. 6 Biss. 286; 
 Union Trust Co. v. Rockford, R. I. & 
 St. L. R. Co. 6 Biss. 197; Conkling v. 
 Butler, 4 Biss. 22; Bill v. New Albany, 
 etc. R. Co. 2 Biss. 390; Judd v. Bank- 
 ers' & M. Teleg. Co. 24 Blatchf. 420. 
 
 ' Where a bill is filed by minority 
 stockholders of a beneficial associntioa 
 alleging fraud, mismanagement, etc. 
 on the part of the corporate authori- 
 ties, it may be a case for the annulment 
 of the charter by the legislature, or 
 for proceeding against it as provided
 
 3tt0 
 
 RECEIVERSHIPS. 
 
 are not inclined to extend these statutory powers by implication, 
 first, by reason of the power being in derogation of the ordinary 
 chancery jurisdiction and, second, by reason of the consequences 
 following the exercise ot such power.'' And while the courts are 
 
 by the corporation laws, but the court 
 independent of the statute has no 
 power to dissolve the corporation or 
 forfeit its charter or correct any sup- 
 posed abuse or misuse of corporate 
 powers. Mason v. Equitable League 
 Sup. Ct. 77 Md. 483; Qoodman v. 
 Jedidjah Lodge No. 7, L 0. of B. B. 
 67 Md. 117. If the ofBcers of a cor- 
 poration should be guilty of miscon- 
 duct, fraud, or mismanagement, a 
 court of equity has full power to re- 
 strain and enjoin them. But it will 
 not take away the rights of the share- 
 holder either by dissolving the cor- 
 poration or placing its affairs in the 
 hands of a receiver. Mason v. Equi- 
 table League Sup. Ct. sujjra; Baltimore 
 & 0. R. Co. V. Cannon, 73 Md. 498; La 
 Societe Francaise v. 15th Judicial Dist. 
 Ct. 53 Cal. 493. As to the inefficient 
 power of courts of equity to appoint 
 receivers in the absence of statutory 
 authority, see Baker v. Louisiana 
 Portable B. Co. 34 La. Ann. 754 (criti- 
 cised and limited in 35 La. Ann. 193); 
 French v. Oifford, 30 Iowa, 148; 
 Hedges v. Pagnett, 3 Or. 77; United 
 States Trust Co. v. New York. W. S. 
 & B. R. Co. 101 N. T. 478. 
 
 But courts have power to appoint 
 receivers to wind up the affairs of in- 
 solvent corporations, if there is no 
 other person provided by law to effect 
 such liquidation, whenever necessary 
 to preserve the interests of all con- 
 cerned. Stark V. Burke, 5 La. Ann. 
 740; Citizens' Bank v. Levee Steam 
 Cotton Press Co. 7 La. Ann. 286. But 
 see Bake)' v. Louisiana Portable B. Co. 
 34 La. Ann. 754. 
 
 A court of equity has power to ap- 
 point a receiver of a corporation with- 
 
 out statutor}' authority {Ford v. Kaii- 
 sas City &LS.L.R.CO. 52 Mo. A pp. 
 439; Thompson v. Oreeley, 107 Mo. 
 577); or constitutional authority. 
 Baker v. Louisiana Portable R. Co. 
 34 La. Ann. 754. But see C'fw. v. Ortier 
 of Vesta, 156 Pa. 531. 
 
 Casualty insurance companies are 
 not within N. Y. Laws 1892, chap. 
 690, § 76, providing that if any "such 
 depositing corporation" shall appear 
 to be in such a condition as to render 
 the issuing of "additional policies 
 and annuity bonds " by it injurious, a 
 receiver of its assets may be appointed 
 who shall lake possession thereof, in- 
 cluding the securities deposited in the 
 insurance department. People v. 
 American Steam Boiler Ins. Co. 147 
 N. Y. 25. 
 
 A decree adjudging a corporation 
 guilty of usurping franchises, rights, 
 and privileges other than those 
 granted by its charter, does not dis- 
 solve the corporation so as to give a 
 court jurisdiction to appoint a re- 
 ceiver under Cal. Code Civ. Proc. 
 § 565. Yore v. San Francisco Super. 
 Ct. 108 Cal. 431. 
 
 ^ Bangs v. Mcintosh, 23 Barb. 591; 
 Davis V. United States Electric Power 
 & L. Co. 77 Md. 35; Oakley v. Pater- 
 son Bank, 2 N. J. Eq. 173; Re Pyro- 
 lusite Manganese Co. 29 Hun, 429; 
 People V. Washington Ice Co. 18 Abb. 
 Pr. 382; Morgan v. New York & A. 
 R. Co. 10 Paige, 290; Rochester v. 
 Bronson, 41 How. Pr. 78; People v. 
 Mutual Trust Fund L. Asso. 21 Abb. 
 N. C. 279; Lehigh Coal & Nav. Co. v. 
 Central Railroad, 43 Hun, 546. 
 
 As a general rule courts have no 
 power to appoint receivers of corpora-
 
 RECEIVERSHIP OF CORPORATIONS. 
 
 347 
 
 careful to see that the statutes are strictly followed and not ex- 
 tended beyond their terms, they also require the allegations of tlie 
 bill or petition, or the affidavits in support thereof, to be specific 
 and definite and not couched in general terms/ The decisions 
 based upon statutes, and embodying statutory constructions and 
 applications, are not, as a rule, made use of in this work except 
 where they are of general importance and application, a very 
 large number of the statutes having been repealed or modified 
 and the decisions thereby rendered useless/ 
 
 § 222. Exercise of power discretionary. 
 
 The power to appoint receivers is, in all cases, discretionary, 
 and has been held to be especially so in the case of corporations. 
 This discretionary power is peculiarly appropriate in its applica- 
 tion to receiverships over corporations ; owing to the fact that in 
 this class of cases disputes arise over the management of corpora- 
 tions, between the managing authorities and the shareholders 
 
 tions except by statutory authority. 
 La Societe Francaise v. 15th Judicial 
 List. Ct. 53 Cal. 495; Waterhury v. 
 Merchants' U. Exp. Co. 50 Earb. 157; 
 Neall V. Hill. IG Cal. 145; Belmont v. 
 Erie R. Co. 52 Barb. 637. 
 
 ^Rathhone v. Parkcn^hurg Gas Co. 
 31 W. Va. 798; Fort Payne Furnace 
 Co. V. Fort Payne Coal & I. Co. 96 
 Ala. 472; Baker v. Backus, 33 111. 79. 
 
 ' A few statutory cases having more 
 or less bearing upon the enlarged 
 equity jurisdiction over the appoint- 
 ment of receivers of corporations are 
 as follows: Oalwey v. United States 
 Steam Sugar Ref. Co. 36 Barb. 286; 
 Atty. Gen. v. Bank of Columbia, 1 
 Paige, 511; Verxilanek v. Mercantile 
 Ins. Co. 2 Paige, 438; Ward v. Sea 
 Ins. Co. 7 Paige, 294; United States 
 Trust Co. V. Mio York, W. S. c6 B. R. 
 Go. 85 Hun, 341; King v. Barnes, 51 
 Hun, 550; Smith v. Danzig, 64 How, 
 Pr. 320; People, Atty. Gen., v. Security 
 L. Ins. Co. 71 N. Y. 222; United 
 States Trust Co. v. New York, W. S. <& 
 B. R. Co. 101 N. Y. 478; Olmsted v. 
 
 Rochester & P. R. Co. 106 N. Y. 673; 
 Warishoffer v. North River Const. Co. 
 6 N. Y. Civ. Proc. 113; Oakley v. 
 Pater son Bank, 2 N. J. Eq. 173; Par- 
 sons V. Monroe Mfg. Co. 4 N. J. Eq. 
 187; Brundred v. Paterson Mach. Co. 
 4 N. J. Eq. 294; Eager v. Stevens, 6 
 N. J. Eq. 374; Nichols Y.Perry Patent 
 Arms Co. 11 N. J. Eq. 126; American 
 Ice Mach. Co. v. Paterson Steam Fire 
 Engine & Mach. Co. 22 N. J. Eq. 72; 
 Van Wagoner v. Paterson Gaslight Co, 
 23 N. J. L. 292; Baker v. Backus, 33 
 111. 79; Ilewett v. Adams, 54 Me. 206; 
 Fay V. Erie & K. R. Bank, Harr. Ch. 
 194; Stark v. Burke, 5 La. Ann. 740; 
 Re Jackson Marine Ins. Co. 4 Sandf. 
 Ch. 559; Conro v. Gray, 4 How. Pr. 
 166; St. Louis & S. Coal & Min. Co. 
 V. Edwards, 103 111. A12;Streit v. Citi- 
 zens' F. Ins. Co. 29 N. J. Eq. 21; Re 
 Empire City Bank, 10 How. Pr. 498. 
 Statutes are enforced with caution 
 and strictly construed. Oakley v, 
 Paterson Bank, 2 N. J. Eq. 173; Bangs 
 V. Mcintosh, 23 Barb. 591; Re Pyrolu- 
 site Manganese Co. 29 Hun, 429.
 
 348 RECEIVERSHIPS. 
 
 interested therein, and not unfreqnently attempts are made to 
 wrest from the legally constituted authorities the j)ower vested in 
 them upon grounds untenable in matters of partnership, or other 
 cases similar in character. Besides, in corporate receiverships, as 
 a rule, the interests of parties are exceedingly varied and not un- 
 freqnently conflicting, and the results of the appointment operate, 
 usually, in the complete suspension and, in the end, absolute ex- 
 tinction of the corporate functions. It is judicial caution which 
 the court is required to exercise in the class of cases rather than 
 judicial discretion. The court must be satisfied from all the cir- 
 cumstances that there is a necessity for the appointment, and this 
 must be based uj)on a well-grounded apprehension of impending 
 danger established by proof, and be coupled with further proof 
 that the plaintiff making the application has either a title to a lien 
 upon or an interest in the property over which a receiver is 
 asked to be placed.' In the discretion of the court it may, as a 
 condition to the appointment of a receiver of railroad property in 
 a foreclosure proceeding, impose terms in reference to the pay- 
 ment from the income, during the receivership, of outstanding 
 debts for labor, supplies, equipment, or permanent improvement 
 of the mortgaged property as may, under the circumstances of the 
 particular case, appear to be reasonable." 
 
 ' McGeorge v. Big Stone Gap Improv. cause of present conditions and well- 
 Co. 57 Fed. Rep. 262; Union Trust founded apprehensions of the future; 
 Co. V. St. Louis, I. M. & 8. R. Co. 4 and that in the case of a going con- 
 Dill. 114; American Biscuit & Mfg. cern extraordinary circumstances 
 Co. V. Klotz, 44 Fed. Rep. 721; Sage must exist to justify the appointment. 
 V. Memphis & L. R. R. Co. 125 U. S. Cf. Watkins v. National Bank, 51 
 ZQ\,Z\l,.ed.%^4i; Simmons Hardware Kan. 254; American Biscuit & Mfg. 
 Co. V. Waibel, 1 S. D. 488. Lord Eldon Co. v, Klotz, 44 Fed. Rep. 721 ; Sim- 
 in Lloyd v. Passingham, 16 Ves. Jr. mans Hardware Co. v. Waibel, 1 S. D, 
 59, said: "The court interposes by AS>Q; Baltimore & 0. R. Co. v. Cannon, 
 appointing a receiver against the legal 72 Md. 493; Mercantile Trust Co. v. 
 title with reluctance." Ci.Verplankv. .JElna Iro^i Works, 4 Ohio C. C. 579; 
 Caines, 1 Johns. Ch. 58; Morrison v. Mays v. Rose, Freem. Ch. (Miss.) 703; 
 Buckner, Hempst. 442; Myersv. Estell, xjMcago & A. Oil & Min. Co. v. United 
 48 Miss. 372. StaUs Petroleum Co. 57 Pa. 83. 
 
 In Original Vienna Bakery, C. & N. * Fosdick v. ScJtall, 99 U. S. 235, 
 
 Co. V. Heissler, 50 111. App. 406, it is 25 L. ed. 339; Miltenberger v. Logans- 
 
 held that receivers are not appointed port, C. &S, W. R. Go. 106 U. S. 286, 
 
 as a punishment for past dereliction, 27 L. ed. 117; Union Trust Co. v. 
 
 nor because of past dangers, but be- Souther, 107 U. S. 591, 27 L. ed. 488;
 
 RECEIVERSHIP OF CORPORATIONS. 
 
 349 
 
 § 223. Power to appoint, limitation of. 
 
 The limitation of the power of courts of equity to appoint re- 
 ceivers over corporations, in the absence of statutory authority, is 
 not applicable of course to mortgage foreclosure cases, or proceed- 
 in o-s under creditors' bills and supplementary actions. In this 
 class of actions the power is substantially identical with that exer- 
 cised in case of natural persons. The limitation of power as ap- 
 plied to courts of equity in matters of receivership over corpora- 
 tions lies in the fact that the dissolution of corporations and the 
 forfeiture of their franchises are essentially legislative functions,' 
 and, where delegated to the judicial branch of government, are 
 
 Farmers' Loan & T. Co. v. Kansas City, 
 W. & N. TF. R. Co. 53 Fed. Rep. 182; 
 Milwaukee & M. R. Co. v. Uoicard, 131 
 U. S. Appx. Ixxxi, 18 L. ed. 252; Sage 
 V. MempJds & L. R. R. Co. 125 U. S. 
 361, 31 L. ed. 694. Mr. Justice Harlan 
 in the last-named case says: "Whether 
 a receiver shall be appointed is always 
 a matter of discretion to be exercised 
 sparingly and with great caution in 
 the case of quasi-public corporations 
 operating a public highway, and al- 
 ways with reference to the special cir- 
 cumstances of each case as it arises." 
 In Fosdick v. Schall, supra, Mr. 
 Chief Justice Waite says: " But if he 
 (the plaintiff) calls upon the court of 
 chancery to put forth its extraordinary 
 powers and grant him purely equita- 
 ble relief he may, with propriety, be 
 required to submit to the operation of 
 a rule which always applies in such 
 cases, and do equity in order to get 
 equity. The apppointment of a re- 
 ceiver is not a matter of strict right. 
 Such an application always calls for 
 the exercise of judicial discretion, and 
 the chancellor should so mould his 
 order that, while favoring one, injus- 
 tice is not done to another. If this 
 cannot be accomplished the applica- 
 tion should ordinarily be denied." 
 AVhile the doctrine announced in this 
 case has been criticised, and perhaps 
 
 justly so from a strictly legal stand- 
 point, yet in its application to railway 
 receiverships, if not too broadly ex- 
 tended, it is to be sustained on equitable 
 grounds. 
 
 While the appointment of a receiver 
 is discretionary, a receiver will not be 
 appointed to take the property of a 
 corporation and its management out 
 of the hands of its board of directors 
 if full relief can be given by injunc- 
 tion. United Electric Secur. Co. v. 
 Louisiana Electric Light Co. 68 Fed. 
 Rep. 673. 
 
 It must appear that loss will occur 
 if a receiver is not appointed. Mc- 
 George v. Big Stone Gap Improv. Co. 
 57 Fed. Rep. 262. Cf. as to discretion 
 of the court, Rider v. Bagley, 84 N. 
 Y. 461; Milwaukee & M. R. Co. v. 
 /Sow«e7-,69U.S.2Wall.510,17L.ed.900; 
 Myers v. Esfell, 48 Miss. 372; Lowell 
 v. Doe, 44 Minn. 144; Cone v. Paute, 
 12 Heisk. 506; Sales v. Lusk, 60 Wis. 
 490; Jacobs v. Gihaon, 9 Neb. 380. 
 
 The appointment of a receiver of an 
 insolvent railroad corporation pending 
 an action to foreclose a t rust deed secur- 
 ing bonds is within the discretion of the 
 trial court, although there are issues 
 involved affecting the validity of the 
 bonds. Childress v. State Trust Co. 
 (Tex. Civ. App.) 32 S. W. 330.
 
 350 RECEIVERSHIPS. 
 
 lod2:;ed with the conimon-law courts as a rule to be enforced 
 throng'h coininon-law actions. Tlierefore, until a forfeiture 
 has been had in the proper forum, courts of equity are ex 
 ceedingly slow in taking from the corporate authorities — the 
 creations of legislative will — the property of the corporation, the 
 management of its business, and the distribution of its assets, and 
 thereby accomplish indirectly that which the court could not do 
 directly. And while it may be true from a strictly legal stand- 
 point that the appointment of a receiver over a corporation does 
 not i2?so facto destroy its legal entity yet its vitality, is gone and, 
 for all practical purposes, thereafter its existence is only in 
 name. 
 
 § 224. Application, by whom made. 
 
 (a) It frequently becomes necessary to determine by whom the 
 application shall be made. Thus in an action by certain stockholders^ 
 in behalf of themselves and all other stockholders not joined as de- 
 fendants, alleging fraud by certain officers of the company whereby 
 the corporation has been damaged, the corporation itself being 
 made a defendant, the following rules have been established : (1) 
 That ordinarily, at law, no action can be sustained for such griev- 
 ances as misconduct of officers except by the corporation itself 
 in its name and by its authority ; (2) that as a rule the same 
 principles apply in equity; (3) that in a proceeding in equity, to 
 justify a departure from this principle and permit a suit by stock- 
 holders for alleged misconduct of officers the bill must show that 
 suitable redress cannot be attained by an action in the name of the 
 corporation. And wliile there is not entire unanimity in the au- 
 thorities as to the efforts necessary to be made to induce the cor- 
 poration to act, it may be stated, in general, that where the 
 stockholder has no other control over the corporate business than 
 by means of an annual election of officers, such officers represent 
 the corporation for all purposes, and a refusal by them to take 
 proper action for the protection of its interests, or to allow the 
 use of the corporate name for that purj^ose, ought to justify a 
 proceeding by the stockholders individually. !No formal applica- 
 tion need be alleged and shown if it sufficiently appears that such 
 application would be unavailing, as when the alleged wrong is on 
 the part of the directors. In such a case the application would be.
 
 RECEIVERSHIP OF CORPORATIONS. 
 
 351 
 
 an idle formality and equity will dispense with it.* A mere 
 creditor at large lias no power to Hie a bill for the appointment 
 
 ^Brewery. Boston Theatre Proprs. 104 
 Mass. 378; Qreavesv. Gouge, 69 N. Y. 
 154; Roman v.Woolfolk, 98 Ala. 219; 
 Merchants & P. Line v. Waganer, 71 
 Ala. 581; O'Brien v. Chicago, R. I. <& 
 P. R. Co. 53 Barb. 568; Tuscaloosa 
 Mfg. Co. V. Cox, 68 Ala. 71; Dunphy 
 V. Traveller Newspaper Asso. 146 Mass. 
 495; Pratt v. Jewelt, 9 Gray, 34. 
 After a full and elaborate examination 
 of the authorities in England and in 
 this country Mr. Justice Miller, in 
 Hawes v. Contra Costa Water Co. 
 {"Hawes v. Oakland"), 104 U. S. 450, 
 26 L. ed. 828, lays down the following 
 propositions as established: " We un- 
 derstand that doctrine to be that to 
 enable a stockholder, in a corporation, 
 to sustain iu a court of equity in his 
 own name a suit founded on a right 
 of action existing in the corporation 
 itself, and in which the corporation 
 itself is the appropriate plaintiff, there 
 must exist as to the foundation of the 
 Buit: (1) Some action or threatened 
 action of the managing board of di- 
 rectors or trustees of the corporation 
 which is beyond the power conferred 
 on them by their charter or some other 
 source of organization; (2) or such a 
 fraudulent transaction completed or 
 contemplated by the acting managers 
 in connection with some other party, 
 or among themselves, or with other 
 shareholders, as will result in serious 
 injury to the corporation, or to the in- 
 terest of the other shareholders; (3) 
 or where the board of directors, or a 
 majority of them, are acting for their 
 own interest in a manner destructive 
 of the corporation itself, or of the 
 rights of the other shareholders; (4) 
 or where the majority of the share- 
 holders themselves are oppressively 
 and illegally pursuing a course in the 
 
 name of the corporation which is in 
 violation of the right of the other 
 shareholders and which can only be 
 restrained by a court of equity." Cf. 
 Supreme Sitting, 0. of I. II. v. 
 Baker, 134 Ind. 293, 20 L. R. A. 210; 
 Brewer v. Boston Theatre Proprs. 104 
 Mass. 378; Gregory v. Patchett, 33 
 Beav. 595; March v. Eastern R. Co. 
 40 N. H. 567; Ervin v. Oregon R. & 
 Nav. Co. 27 Fed. Rep. 625; Allen v. 
 Curtis, 2(i Conn. 450; Uerseyv. Veazie, 
 24 Me. 9; Roman v. Woolfolk, 98 Ala, 
 219. 
 
 A court of equity may, at the in- 
 stance of a stockholder, and if the 
 company itself refuses to move, law- 
 fully entertain a bill to depose or to 
 restrain the officers or directors of a 
 corporation when it appears that in 
 their capacity as agents or trustees of 
 the stockholders they have committed 
 or are about to commit acts that are 
 tantamount to a breach of trust, 
 whether such acts consist of fraudu- 
 lent dealings with the corporate prop- 
 erty or funds, or whether they con- 
 sist in engaging the corporation in 
 enterprises that are beyond the scope 
 of its chartered powers. In more 
 general phrase it is sometimes said 
 that a court of chancery may grant 
 equitable relief against a corporation 
 at the suit of an individual, whenever 
 a sufficient cause of relief is shown 
 upon ordinary principles of equity 
 jurisprudence. Republican Mountain 
 Silver Mines v. Brown, 58 Fed. Rep. 
 644, 24 L. R. A. 776; Dodge v. Woolsey. 
 59 U. S. 18 How. 331, 15 L. ed. 401; 
 Zabriskie v. Cleveland, C. & C. R. Co. 
 64 U. S. 23 How. 381, 16 L. ed. 488; 
 Peabody v. Flint, 6 Allen. 52; March 
 v. Eastern R. Co. 40 N. H. 548; Rob- 
 inson v. Smith, 3 Paige, 22.
 
 352 
 
 RECEIVERSHIPS. 
 
 A suit by members of an unincorpo- 
 rated mutual association for a receiver, 
 etc., should be brought against the 
 other members, not against the execu- 
 tive officers alone. Montgomery v. 
 Knox, 20 Fla. 373. 
 
 In New York a receiver of the prop- 
 erty of a corporation cannot be ap- 
 pointed on the application of a cred- 
 itor at large. Lehigh Coal & Js^av. Co. 
 V. Central IUilroad,AZ'&\xii,bAQ. But 
 see, in the case of a stockholder, 
 WoerisJioffer v. North River Cornst. Co. 
 99 N. Y. 398. 
 
 A court of equity, as such, in the 
 absence of statutory authority, has no 
 power to appoint a receiver over a 
 corporation at the suit of a stock- 
 holder. La Societe Francaise v. 15th 
 Judicial Dist. Ct. 53 Cal. 457; JSieail v. 
 Mill, 16 Cal. 145. 
 
 The appointment of a receiver on 
 .application of a stockholder will not 
 be denied on the ground that the cor- 
 poration has ceased to exist and the 
 property is held by joint ownership, 
 merely because the shares have passed 
 into the hands of a less number of 
 persons than the law requires for 
 stockholders, and the offices of the 
 company have become vacant, while 
 an administrator of the only other 
 stockholder has taken possession of 
 the corporate property. Re Belton, 47 
 La. Ann. 1614. 30 L. R. A. 648. 
 
 The court will not appoint a re- 
 ceiver on the application of a stock- 
 holder alleging mismanagement, 
 fraud, and collusion for the reason 
 that in effect it would be a dissolution 
 ( Waterbury v. Merchants' W. Exp, 
 Co. 50 Barb. 157); except where the 
 corporate property is abandoned, or 
 where there is no one to take charge 
 of its affairs {Lawrence v. Greenwich 
 F. Ins. Co. 1 Paige, 587); or where it 
 had committed acts ultra vires 
 \Leavitt v. Tates, 4 Edw. Ch. 173); or 
 where its officers have committed a 
 
 breach of trust {Evans v. Coventry, 5 
 De G. M. & G. 911); or where its 
 franchises are abandoned (Buck v. 
 Piedmont & A. L. Ins. Co. 4 Fed. 
 Rep. 849); or where its property has 
 been mortgaged and there is a default. 
 United States Trust Co. v. New York, 
 W. 8. & B. R. Co. 101 N. Y. 478. 
 
 In a creditor's proceeding where 
 the common-law remedies are inade- 
 quate, a receiver may be appointed. 
 Covington Draw Bridge Co. v. Shep- 
 herd, 63 U. S. 31 How. 113, 16 L. ed. 
 38; Dambman v. Empire Mill, 12 
 Barb. 341; Oalioey v. United States 
 Steam Sugar Ref. Co. 13 Abb. Pr.311; 
 Adler v. Milwaukee P. B. Mfg. Co. 13 
 Wis. 57; Barclay v. Quick Silver Min. 
 Co. 9 Abb. Pr. N. S. 383; Morgan v. 
 New York & A. R. Co. 10 Paige. 290. 
 
 As a rule the application for a re- 
 ceiver can only be made by a stock- 
 holder or creditor who has an interest 
 in the distribution of the assets, in the 
 absence of a statute. Western N. C. 
 R. Co. V. Rollins, 83 N. C. 533. 
 
 It cannot be made by one who has 
 parted wi-th his interest in the stock. 
 Smith V. Wells, 30 How. Pr. 158; Hill 
 V. Nautilus Ins. Co. 4 Sandf. Ch. 577. 
 
 In the absence of statutory power 
 the state can have no interest in the 
 appointment of a receiver. Havemeyer 
 V. San Francisco Super. Ct. 84 Cal. 
 327, 10 L. R. A. 637; Herring v. New 
 York, L. E. & W. R. Co. 105 N. Y. 
 340. See United States v. Church of 
 Jesus Christ of L. D. S. 5 Utah, 361. 
 
 A stockholder of a corporation is 
 not entitled to have a receiver ap- 
 pointed under Tex. Rev. Civ. Stat, 
 art. 1461, ^§ 3, 4, providing for such 
 appointment in all cases in which re- 
 ceivers have been previously ap- 
 pointed by the usages of courts of 
 equity, where his complaint does not 
 show that he has tried to induce the 
 directors or the shareholders as a body 
 to bring the action, or that he could
 
 RECEIVERSHIP OF CORPORATIONS. 
 
 353 
 
 of a receiver of a domestic or foreign corporation,' but a stock- 
 holder has sucli right." In nearly all the states the statute has 
 provided in whose name the application shall be made, and the 
 manner of proceeding. 
 
 In matters relating to corporations application for a receiver 
 may also be made : (b) by a surety for the corporation ; ^ (c) by 
 minority stockholders." 
 
 not have procured them to do so, or 
 that it was not leasouable to require 
 him to do so. Neio Birminghaju Iron 
 <& L. Co. V. Blevins (Tex. Civ. App.) 
 34 S. W. 828. 
 
 An action by a stockholder of a cor- 
 poration against the directors or offi- 
 cers, for the appointment of a re- 
 ceiver, is not within Tex. Rev. Civ. 
 Stat. art. 1461, § 1, authorizing the 
 appointment of a receiver in suits be- 
 tween joint owners of property where 
 it appears in danger of being lost, as 
 §§ '6, 4, provide specifically as to the 
 •circumstances under which a receiver 
 may be appointed for a corporation. 
 New Birmingham Iron & L. Co. v. 
 Mevins, supra. 
 
 A receiver may be appointed, in the 
 discretion of ihe court, to apportion 
 the fund and pay it over to the proper 
 parties, in an action by a stockholder 
 of a corporation to recover a fund in 
 which others are equally interested. 
 Fox V. Hale & N. Silver Min. Co. (No. 
 1), 108 Cal. 475. 
 
 A receiver of a corporation will not 
 be appointed in a stockholder's suit 
 brought at the instance of and for the 
 benefit of a third person who seeks to 
 force a payment from the corporation 
 for procuring the discontinuance of 
 the proceeding. C Connor v. Long 
 Island Traction Co. 15 Misc. 501. 
 
 ' Lehigh Coal & Nav. Co. v. Central 
 Railroad, 43 Hun, 546. 
 
 ^Woerishoffer v. North River Const. 
 Co. 99 N. Y. 398. Cf. Central R. <fi 
 Bkg. Co. V. Farmers'' Loan & T. Co. 
 23 
 
 56 Fed. Rep. 357; Re Christian Jensen 
 Co. 128 N. Y. 550. 
 
 2 The application may be on behalf 
 of a surety for the corporation {Bar- 
 bour V. National Exch. Bank, 45 Ohio 
 St. 133); and in such case it is not 
 necessary that the surety has paid the 
 debt. Adams, Eq. 270; 1 Story, Eq. 
 Jur. § 327; 2 Story, Eq. Jur. § 849; 
 Stump V. Rogers, 1 Ohio, 533; McCon- 
 nellv. Scott, 15 Ohio, 401. 
 
 "* Or on behalf of a minority stock- 
 holder, where it is necessary to prevent 
 fraud and material injury, or destruc- 
 tion. {Hugh V. McRae, Chase, Dec. 
 466; Cameron v. Havemeyer, 25 Abb. 
 N.C. 438); or where the majority neg- 
 glect to elect officers and the franchises 
 are abandoned. Lawrence v. Green- 
 wich F. Ins. Co. 1 Paige, 587. But see 
 Hinckley v. Pfister, 83 Wis. 64; Strong 
 V. McCagg, 55 Wis. 624. Minority 
 stockholders are entitled to a receiver 
 pending the investigation of charges 
 of gross fraud of the majority stock- 
 holders. State, Independent Did. Teleg. 
 Co. V. Silver Bow County 2d Judicial 
 Dint. Ct. 15 Mont. 324, 27 L. R. A. 
 392. But see Ranger v. Champion Cot- 
 ton-Press Co. 52 Fed. Rep. 609. 
 
 Where directors are disposing of 
 the property of a corporation as a 
 whole, and are sustained by a major- 
 ity of the stockholders, in the absence 
 of fraud or a violation of the charter, 
 the court will not appoint a receiver 
 on the application of a minority of 
 the stockholders. Sewell v. Fa.'it Cape 
 May Beach Co. 50 N. J. Eq. 717. And
 
 354 
 
 RECEIVERSHIPS. 
 
 (d) by the defendant ; ' (e) by the directors ; ' (f) by judgment 
 creditors ; ' (g) but not by the corporation.* 
 
 see Chicago & S. E. R. Co. v. Cnson, 
 133 Ind. 49; Ilyde Park Gas Co. v. 
 Ke7-ber, 5 111. App. 132. 
 
 A receiver of a corporation will not 
 be appointed at the instance of minor- 
 ity stockholders because its assets are 
 not in proportion to its outstanding 
 stock, where it was over-capitalized 
 at its organization, and the ratio has 
 not materially changed. Lowe v. Pio- 
 iieer Threshing Co. 70 Fed. Rep. 646. 
 
 'Or on the application of the de- 
 fendant when he seeks some relief 
 against his codefendant. Henshaw v. 
 Wells, 9 Humph. 568. See co7itra, 
 Leddell v. Starr, 19 N. J. Eq. 159; Rob- 
 inson V. Hadley, 11 Beav. 614. 
 
 *0r on the application of the di- 
 rectors {McIUienny v. Bim, 80 Tex, 
 1), and especially so where the statute 
 empowers others so to do. Mo. Rev. 
 Stat. 1889, § 2513; Havemeyer v. San 
 Francisco Super. Ct. 84 Cal. 327. 
 
 2 Or on the application of a judg- 
 ment creditor, or one having a lien 
 upon the property {Lehigh Coal & 
 Nav. Co. v. Central R. Co. 43 Hun, 
 546), but not in behalf of a general 
 creditor having no judgment or lien. 
 McOoldrick v. Slevin, 43 Ind. 522; May 
 V. Greenhill, 80 Ind. 124; Adee v. Big- 
 ler, 81 N. Y. 349; Bayaud v. Fellows, 
 28 Barb. 451; Hubbard v. Hubbard, 14 
 Md. 356; Rich v. Levy, 16 Md. 74; 
 Johnson v. Farnum, 56 Ga. 144; Dodge 
 V. Pyrolusite Manganese Co. 69 Ga. 
 665; Holdrege v. Qwynne, 18 N. J. Eq. 
 26; Bigelow v. Andress, 31 111. 322; 
 Cahn V. Johnson (Tex. Civ. App.) 33 
 S. W. 1000; Virginia, T. & C. Steel <& 
 I. Co. v. Wilder, 88 Va. 942. But see 
 statute in Wisconsin. Hurlbut v. Mar- 
 shall, 82 Wis. 590. 
 
 A judgment creditor, after execu- 
 tion returned unsatisfied, may have a 
 
 receiver over an insolvent corporation 
 where an assessment on the stockhold- 
 ers is necessary to pay debts. Cleve- 
 land V. Marine Bank, 17 Wis. 545; 
 Coleman v. White, 14 Wis. 700; Adler 
 V. Milwaukee Patent Brick Mfg. Co. 13 
 Wis. 63; Ward v. Griswoldville Mfg. Co. 
 16 Conn. 593; Spear v. Grant, 16 Mass. 
 9; Wood V. Dummer, 3 Mason, 308; 
 Bangs v. Mcintosh, 23 Barb. 591. See 
 effect of statute in such case. Van 
 Glahn v. De Rosset, 81 N. C. 467. 
 
 The appointment of a receiver of a 
 corporation at the instance of a cred- 
 itor, in an action to recover on a debt, 
 is for the benefit of all creditors, and 
 the party procuring the same cannot 
 have him discharged against the pro- 
 test of a nonsatisfied creditor, who 
 might be damaged by a discharge. 
 Lenoir v. LinviUe Improv. Co. 117 N. 
 C. 471. 
 
 A receiver of a corporation will not 
 be appointed in an action by an unse- 
 cured creditor to recover money, al- 
 though there is manifest danger that 
 the property may be lost or disposed 
 of before he can obtain an execution. 
 New Birmingham Iron & L. Co. v. 
 Blevins (Tex. Civ. App.) 34 S. W. 828. 
 
 *A corporation cannot apply to be 
 put in hands of a receiver. Kimball v. 
 Goodburn, 32 Mich. 10. 
 
 But the corporation itself has no 
 authority to apply for a receiver and 
 place the corporate property in his 
 custody. Kimball v. Goodburn, 32 
 Mich. 10; Mcllhenny v. Biriz, 80 Tex. 
 1; Hugh v. McRae, Chase, Dec. 466;. 
 Jones X. Bank of Leadviile, 10 Colo. 
 464; Atkins v. Wabash, St. L. & P. R. 
 Co. 29 Fed. Rep. 161 ; State v. Jack- 
 sonville, P. & M. R. Co. 15 Fla. 201; 
 Hinckley v. Pfister, 83 Wis. 64. But see 
 Wabash, St. L. & P. R. Co. v. Central
 
 RECEIVERSHIP OF CORPORATIONS. 
 
 355 
 
 If tlie application is based upon a statutory cause then tlie 
 requirements of such statute must be strictly followed. But it is 
 not necessary in other cases that a receiver shall be prayed for. 
 It is sufficient if it appear by affidavit or petition that a receiver 
 is necessary.' The application cannot be made by one who has 
 parted with his interest." 
 
 § 225. GIroimds for ai)poiiitment, 
 
 A receiver of a corporation, ujjon proper application by a 
 proper party, may be appointed : — 
 
 (a) Where for any statutory cause such power is given, as in 
 case of insolvency, fraud, misconduct on the part of the officers, 
 directors, or corporate managers, etc' 
 
 TnM Co. 22 Fed. Rep. 272, 28 Fed. 
 Rep. 863, 23 Fed. Rep. 513; Central 
 Trust Co. V. Wabash, St. L & P. R. Co. 
 29 Fed. Rep. 618; Quincy, M.& P. R. 
 Co. V. Hiajiphreys, 145 U. S. 82, 36 L. 
 ed. 682; Slate, Merriam, v. Ross, 122 
 Mo. 435, 23 L. R. A. 534; Hill v. West- 
 em & A. R. Co. 86 Ga. 284; American 
 Biscuit Mfg. Co. v. Klotz, 44 Fed. Rep 
 721; Re Kittanning Ins. Co. 146 Pa 
 102. 
 
 The president, in the absence of au 
 thority from the directors or stock 
 holders, has no power to consent to 
 the appointment. Walters v. Anglo 
 American Mortg. & T. Co. 50 Fed 
 Rep. 316. 
 
 See valuable article upon "New- 
 Fashioned Receiverships" by Mr. D. 
 H. Chamberlain in Harvard Law Re- 
 view, vol. X., No. 3 (Nov. 1896). 
 
 Nor has the court on its own mo- 
 tion power to appoint in the absence 
 of a prayer for that purpose in the bill 
 or answer. Auguata Ice Mfg. Co. v. 
 Gray, 60 Ga. 344. 
 
 ^Langdon v. Vermont & C. R. Co. 
 54 Vt. 593; Vermont & G. R. Co. v. 
 Vermont C. R. Co. 50 Vt. 500; Bow- 
 man V. Bell, 14 Sim. 392; Commercial 
 & 8. Bank v. Corbett, 5 Sawy. 172; 
 
 Merrill v. Elam, 2 Tcnn. Ch. 513; 
 Henshaw v. Wells, 9 Humph. 568; 
 Ladd V. Harvey, 21 N. H. 514. 
 
 '^ Smith V. Wells, 20 How. Pr. 158; 
 Hill \. Nautilus Ins. Co. 4 Sandf. Ch. 
 577. 
 
 ^Supreme Sitting, 0. of I. H. v. 
 Baker, 134 Ind. 293, 2 L. R. A. 210; 
 Zieverink v. Kemper, 50 Ohio St. 208; 
 Bacon y. Northwestern Stove Co. 5 Ohio 
 C. C. 289; Mason v.Westoby, L. R. 32 
 Ch. Div. 206 (But .see L. R. 42 Ch. 
 Div. 590); First Nat. Bank v. United 
 States Encaustic Tile Co. 105 Ind. 
 227; Loaiza v. San Francisco Super. 
 Ct. 85 Cal. 11, 9 L. R. A. 37; Conro 
 v. Gray, 4 How. Pr. 166; Haywood v. 
 Lincoln Lumber Co. 64 Wis. 639; 
 Wayne Pike Co. v. Ilammons, 129 Ind. 
 368; Warren v. Fake, 49 How. Pr. 430; 
 Featherstone v. Cooke, L. R. 16 Eq. 
 301; Trade Auxiliary Co. v. Vickers, 
 L. R. 16 Eq. 303; St. Louis & S. Coal 
 & Min. Co. V. Edwards, 103 111. 472; 
 Blatchford v. Ross, 54 Barb. 42; Re 
 The Mart, 22 Abb. N. C. 227. 
 
 Under the judicature act 1873, §25, 
 chap. 8, the greatest latitude is given 
 for the appointment of a receiver in 
 England. It authoriz^'s the appoint- 
 ment whenever the court is of the
 
 356 
 
 RECER'ERSHIPS. 
 
 opinion that it would be "just or con- 
 venient," or just and convenient as 
 construed by the court. North Lon- 
 don R. Co. V. Great Northern B. Co. L. 
 R. 11 Q B. Div. 30. 
 
 Under § 25, chap. 32, Revised Stat- 
 utes of Illinois, it was held that the 
 statute was the sole authority for de- 
 creeing the dissolution of a corpora- 
 tion and appointing a receiver; that 
 there was no equity jurisdiction for 
 such purpose. One of the causes for 
 dissolution and the appointment of a 
 receiver specified in the statute was 
 ceasing to do business, leaving debts 
 unpaid, and it appeared that attach- 
 ments were levied on the company 
 property and the ceasing to do busi- 
 ness was a necessary result of the 
 levies, but it was held this was not 
 sufficient cause for dissolution and the 
 appointment of a receiver, and the 
 order of appointment was void. Peo- 
 ple, Wright, v. Weirjley, 155 111. 401. 
 Cf. as to the construction of the &\.sA- 
 \iie,WJteeler v. Pullman Iron & S. Co. 
 143 111. 197. 17 L. R. A. 818; Hunt v. 
 Le Grand Roller Skating Rink Co. 143 
 111. 118. If the appointment is defect- 
 ive merely the order is only voidable. 
 State, Hoffman,v.Scarritt, 128 Mo. 331. 
 
 "While the order might have been 
 erroneous, and subject to reversal on 
 appeal, it cannot be collaterally im- 
 peached or disregarded. It may be 
 that the showing upon the application 
 was inadequate under the law and 
 practice of the court, yet the court 
 had the power to decide that question, 
 and whether it decided rightly or not 
 is not a question that goes to the juris- 
 diction of the court over the subject- 
 matter." Davis V. Shearer, 90 Wis. 
 250; Bangs v. Duckin field, 18 N. Y. 
 595 ; Peck v. Beloit School List. No. 4, 
 21 Wis. 511;^ Aiti/. Gen. v. Guardian 
 .Mut. L. Ins. Co. 77 N. Y. 272; Vermont 
 & C. R. Co. V. Vermont C. R. Co. 46 
 Vt. 795. 
 
 In Tore v. San Francisco Super. Ct. 
 (Cal.) 41 Pac. 411, it was held under 
 Code Civ. Proc. § 505, that where the 
 judgment did not dissolve the corpora- 
 tion, the appointment of a receiver 
 was void. 
 
 Under the Wisconsin Statutes (g§ 
 1968, 2787, 3241, 3247, Sanb. & B. 
 Ann. Stat. ^§ 1908, 2787, 3341, 3247), 
 where a corporation is dissolved and 
 a receiver appointed, the effect of 
 the decree is to vest the legal title in 
 the receiver. American Nat. Bank v. 
 National Ben. <& C. Co. 70 Fed. Rep. 
 420. 
 
 Under the Minnesota Statutes (as- 
 signment law of 1876, insolvent law 
 of 1881, Gen. Stat. 1878, chap. 76, § 9) 
 where a general assignment for the 
 benefit of creditors has been made, 
 creditors are not as a matter of right 
 entitled to a receiver to supersede the 
 assignee in the administration of the 
 assets, except for the purpose of en- 
 forcing stock liability. International 
 Trust Co, V. American Loan & T. Co. 
 (Minn.) 65 N. W. 78; and see Com. v. 
 Order of Vesta, 156 Pa. 531. It is also 
 held that a receiver will not be ap- 
 pointed under the Minnesota statutes 
 in the suit of a creditor who has not 
 exhausted his legal remedies, as re- 
 quired by Gen. Stat. 1878, chap. 76, 
 § 9, Klee v. E. II. Steele Co. (Minn.) 
 62 N. W. 399. Qucere, where it is 
 shown that such remedies would be 
 valueless. 
 
 Under the Idaho Statutes (Rev. Stat. 
 g§ 5185-5187), authorizing a dissolu- 
 tion of a corporation upon specific 
 grounds, a corporation may be dis- 
 solved on the application of trustees 
 and stockholders and a receiver ap- 
 pointed under § 4329, where such re- 
 ceiver is necessary. Security Sav. & 
 T. Co. V. Piper (Idaho) 40 Pac. 144. 
 
 Under the bank commissioners' 
 act of 1878 as amended in 1887, it 
 ■was held that the appointment of a
 
 RECEiVERiSUIP OF CORPORATION'S. 
 
 357 
 
 receiver under the provisions of the 
 Code of Civil Procedure of California, 
 (g§ 187, 564) in a proceeding instituted 
 by the Attorney General under § 11 
 of the former act was illegal, the 
 bark commissioners' act being silent 
 as to the procedure lo be had. The 
 statute authorizing the proceedings 
 against the corporation which were 
 taken being silent as to the appoint- 
 ment of a receiver it cannot be supple- 
 mented by the provisions of another 
 statute. Murray v. American Surety 
 Co. 2 Am. & Eng. Corp. Cas. N. S. 
 350. Cf. Havemeyer v. San Francisco 
 8uper.Ct.Si Cal. 327, 10 L. R. A. 627; 
 People's Home Snv. Bank v. San Fran- 
 cisco Super, a. 103 Cal. 27; Slate In- 
 vest, d Ins. Co. V. San Francisco 
 Super. Ct. 101 Cal. 135. The state 
 having no interest in either the assets 
 of the corporaiion or its debts, it has 
 done its whole duty when it has se- 
 cured a dissolution of the corpora- 
 tion. Id. See also People y. San Fran' 
 Cisco Super. Ct. 100 Cal. 105; Long v. 
 San Francisco Super. Ct. 102 Cal. 449; 
 People v. Buffalo Stone & C. Co. 131 
 X. Y. 140, 15 L. R. A. 240. In all 
 special statutory proceedings it is a 
 rule of law that the measure of the 
 power of the court is the statute under 
 which the proceedings are had. Mur- 
 ray V. American Surety Co. 2 Am. 
 & Eng. Corp. Cas. N. S. 350; Smitli 
 V. Westerfield, 88 Cal. 374; East Ten- 
 nessee, V. & G. B. Co. V. Southern 
 Teleg. Co. 112 U. S. 306, 28 L. ed. 
 746. If the statute provides a method 
 to be pursued, the action of the court 
 in regard thereto, however erroneous, 
 will be conclusive until reversed on 
 appeal, but the judgment of the court 
 where unauthorized by the statute is 
 wholly void. Dowell v. Applegate, 
 152 U. S. 327, 38 L. ed. 463; United 
 States V. Walker, 109 U. S. 258, 27 L. 
 ed. 927; Reynolds v. Stockton, 140 U. 
 8, 2.54, 35 L. ed. 464. 
 
 Under the Indiana Statute (Rev. Stat. 
 1894, § 3435) which requires applica- 
 tion for a receiver to be made within 
 three years after the expiration of the 
 charter, it was held that an applica- 
 tion after the expiration of the statu- 
 tory period should be refused. Hat- 
 field V. Cummings, 140 Ind. 547. But 
 if the application is in apt time the 
 appointment may be made after- 
 wards. Id. 
 
 In Alabama a receiver will not be 
 appointed over a corporation on be- 
 half of a creditor, who also owns half 
 of the stock of the company, alleging 
 as grounds that the creditors are 
 pressing for payment, judgments ob- 
 tained, and liability of levies immi- 
 nent, likely to produce dismember- 
 ment of the company and its business. 
 Little Warrior Coal Co. y. Hooper (Ala.) 
 2 Am. & Eng. Corp. Cas. N. S. 365. 
 
 Where the appointment of a re- 
 ceiver and the regulation of proceed- 
 ings are of statutory origin the statute 
 must be strictly complied with. Aity. 
 Gen. V. Atlantic Mut. L. Ins. Co. 77 
 N. Y. 336; Clianibeiiain v. Rochester 
 Seamless Paper Vessel Co. 7 Hun, 557; 
 and "Where the receiver is appointed 
 by the Federal court he shall manage 
 and operate according to the require- 
 ment of the valid state laws where the 
 property is located. Act of Congress, 
 March 3, 1887, § 2. 
 
 A statute providing for the appoint- 
 ment of a receiver in behalf of a 
 judgment creditor who has execution 
 issued and returned no property 
 found, is but a declaration of the law 
 as administered in courts of equity 
 before its passage. Minkler v. United 
 States Sheep Co. 4 N. D. 507, 2 Am. & 
 Eng. Corp. Cas. N. S. 368; Child v. 
 Brace, 4 Paige, 309; Taylor y.Bowkcr, 
 111 U. S 110, 28 L. ed. 368. 
 
 Under the Pennsylvania act of 
 April 4, 1872, relative to the dissolu- 
 tion of corporations, the court of com-
 
 358 
 
 RECEIVERSHIPS. 
 
 (b) Where there is default in the payment of an indebted- 
 ness, or the interest thereon, secured by mortgage or trust deed, 
 or otlier covenant in sucli trust deed.' 
 
 mon pleas has no jurisdiction to ap- 
 point receivers where none of the 
 property of the corporation is within 
 the county, and none of its officers are 
 residents. Com. v. Order of Vesta, 156 
 Pa. 531. 
 
 ^Edicards v. Standard Rolling Stock 
 Syndicate [1893] 1 Ch. 574; Wildyv. 
 Mid Hants B. Co. 16 Week. Rep. 409; 
 Makins v. Ibotson [1891] 1 Ch. 133; 
 State Journal Co. v. Commonwealth Co. 
 43 Kan. 93; Fan Benthuysen v. Central 
 N. E. & W. B. Co. 45 N. Y. S. R. 16; 
 Hall V. Astoria Veneer Mills & L. Co. 5 
 Ry. & Corp. L. J. 412; Haugan v. Net- 
 land, 51 Minn. 552; Union Mut. L. 
 Ins. Co. V. Union Mills Plaster Co. 37 
 Fed. Rep. 286, 3 L. R. A. 90; Haas v. 
 CJncago Bldg. Soc. 89 111. 498; Re 
 Pound, L. R. 42 Ch. Div. 402; Lowell 
 V. Doe, 44 Minn. 144; Stockman v. 
 Wallis, 30 N. J. Eq. 449; Chetwood v. 
 Coffin. 30 N. J. Eq. 450; Williams v. 
 Noland, 2 Tenn. Ch. 151; MaJion v. 
 Crothers, 28 N. J. Eq. 567; Des Moines 
 Gas Co. V. West, 44 Iowa, 23; Wall 
 Street F. Ins. Co. v. Loud, 20 How. 
 Pr. 95; Kerchner v. Fairley, 80 N. C. 
 24; Beecher v. Marquette & P. Rolling 
 Mills Co. 40 Mich. 307; Truman v. 
 Redgrave, L. R. 18 Ch. Div. 547; 
 Brassey v. Neio York dc N. E. R. Co. 
 19 Fed. Rep. 663; Long Dock Co. v. 
 Mallery, 12 N. J. Eq. 431; Strong v. 
 Carlyle Press [1893] 1 Ch. 268; Amer- 
 ican Loan & T. Co. v. Toledo, C. & S. 
 B. Co. 29 Fed. Rep. 416. 
 
 A receiver and manager of the busi- 
 ness of a corporation may be ap- 
 pointed in an action by debenture- 
 holders to enforce their security, 
 although the principal is not due and 
 interest is not in arrear, where the 
 company consents, and there is evi- 
 
 dence that an execution has been 
 levied by a judgment creditor upon the 
 property embraced in the trust deed 
 or mortgage, and that other actions 
 by creditors are pending against the 
 company. Edwards v. Standard Roll- 
 ing Stock Syndicate [1893] 1 Ch. 574; 
 Wildy v. Mid-Hants R. Co. 16 Week. 
 Rep. 409; Makins v. Ibotson [1891] 1 
 Ch. 133. 
 
 In Union Trust Co. v. St. Louis, 
 I M. & S. R. Co. 4 Dill. 114, re- 
 ceivership of a railroad was refused, 
 although the company had defaulted 
 in the payment of interest on mort- 
 gage bonds, and had refused the de- 
 mand of the trustees of the bondhold- 
 ers to be put in possession, where 
 there was no proof that loss would 
 result to bondholders by allowing the 
 company to continue in possession. 
 
 If the mortgage covers the income 
 and profits, and there is a default in 
 the payment of interest, a receiver 
 may be appointed without proof of 
 insolvency of the corporation, or in- 
 adequacy of the security. Allen v. 
 Dallas & W. R. Co. 3 Woods, 316; 
 Wilmer v. Atlanta & B. Air Line B. 
 Co. 2 Woods, 409. And where the 
 income is pledged and the mortgagor 
 is insolvent on foreclosure a receiver 
 will be appointed as of course. Am- 
 erican Bridge Go. v. Heidelbach, 94 U. 
 S. 798, 24 L. ed. 144; Des Moines Gas 
 Co. V. West, 44 Iowa, 23; Mercantile 
 Trust Co. V. Missouri, E. & T. B. Co. 
 36 Fed. Rep. 221, 1 L. R. A. 397; 
 Dow V. Mempld^ & L. B. R. Co. 20 Fed. 
 Rep. 260. 
 
 Insolvency of the company and dan- 
 ger from executions is ground for a 
 receiver. Be South Carolina B. Co. 
 [1878] 11 Chicago Legal News, 8;
 
 RECEIVERSHIP OF CORPOKATIONS. 
 
 359 
 
 (c) Where upon application of a stockholder it is shown that 
 the directors and officers of the corporation are mismanaging its 
 affairs, as for their own personal advantage and gain.' 
 
 Sage v. MempJiis & L. B. E. Co. 135 
 U.S. 861. 31 L. ed. 694. 
 
 So also where the company Is in- 
 solvent, with interest in arrears and in- 
 sufficient security. Keep v . MicJtigan L. 
 0. E. Co. 6 Chicago Legal News, 101; 
 Lehman v. Tallahassee Mfg. Co. 64 
 Ala. 567. And the refusal of the trus- 
 tee to take possession after default is 
 also a ground. Warner v. Rising 
 Fawn Iron Co. 3 Woods, 514; Wilmer 
 V. Atlanta & R. Air Line R. Co. 2 
 Woods, 409; Pennsylvania Co. for Ins. 
 on Lives v. Jacksonville, T. & W. R. 
 Co. 55 Fed. Rep. 124. But mere de- 
 fault in the payment of corporate 
 bonds is not in itself ground for the 
 appointment of a receiver. Williams 
 V. Robinson, 16 Conn. 517. 
 
 A receiver will not be appointed a8 
 a matter of course, or as a matter of 
 right, but is always in the sound ju- 
 d'cial discretion of the court. Fraud, 
 incompetency, preservation of the 
 property, or some other sufficient rea- 
 son must be given. Farmers' Loan & 
 T. Co. V. Kansas City, W. & N. W. E. 
 Co. 53 Fed. Rep. 183; Blair v. St. 
 Louis, H. & K. B. Co. 20 Fed. Rep. 
 348. Cf. Cook, Stock & Stock- 
 holders, g 862. 
 
 See further chapters on Receiver- 
 ship in Mortgage Foreclosures and 
 Receivership in Railway Corpora- 
 tions. 
 
 See note 3, page 355. 
 
 ' Hayicood v. Lincoln Lumber Co. 64 
 Wis. 639; Supreme Sitting, 0. of I. 
 H. V. Baker, 134 Ind. 293. 2 L. R. A. 
 210; Stevens v, Davidson, 18 Gratt. 
 819; Conro v. Gray, 4 How. Pr. 166; 
 Warren v. Fake, 49 How. Pr. 430; 
 Blatchford v, Ross, 54 Barb. 42; Evans 
 V. Coventry, 5 DeG. M. & G. 911; 
 
 Redmond v. Enfield Mfg. Co. 13 Abb. 
 Pr. N. S. 332; Wayne Pike Co. v. 
 Eammons, 129 Ind. 368; Carter v. 
 Ford Plate Glass Co. 85 Ind. 180; 
 Eogers v. Lafayette Agri. Works, 52 
 Ind. 296; Port v. Eussell, 36 Ind. 60; 
 Michoud V. Girod, 45 U. S. 4 How. 
 502, 11 L. ed. 1076; Cumberland Coal 
 & I. Co. V. Sherman, 30 Barb. 553; 
 Eailway Co. v. Blakie, 1 Macq. 461; 
 Davis V. Memphis City E. Co. 22 Fed. 
 Rep. 883; Sellers v. Phcenix Iron Co. 13 
 Fed. Rep. 20; Hubbard v. New York, 
 N. E. & W. Invest. Co. 14 Fed. Rep. 
 675; Miner v. Belle Isle Ice Co. 93 
 Mich. 97, 17 L. R. A. 413 ; Copeland 
 V. Johnson Mfg. Co. 47 Hun, 235; 
 Currier v. New York, W. S. & B. E. 
 Co. 35 Hun, 355; Jackson v. McLean, 
 36 Fed. Rep. 213. 
 
 A receivership of a corporation, in 
 an action to prevent mismanagement 
 by the directors, should not be con- 
 tinued where the corporation is not 
 insolvent and the offending directors 
 have retired from office. Halpin v. 
 Mutual Brew. Co. 91 Hun, 220. 
 
 When the company is insolvent 
 and has fraudulently disposed of its 
 properly, the appointment is proper. 
 Nichols V. Perry Patent Arm Co. 11 
 N. J. Eq. 126; Atty. Gen. v. Bank of 
 Columbia, 1 Paige, 511; Howard v. 
 Whitman, 29 Ind. 557. 
 
 Irregular acts of corporate officers 
 in the absence of frau(i will not jus- 
 tify the appointment. Hardee v. Sun- 
 set Oil Co. 56 Fed. Rep. 51, 
 
 A receiver will not be appointed 
 over a corporation if relief from mis- 
 management can be had by injunc- 
 tion. United Electric Secur. Co. v. 
 Louisiana Electric- Light Co. 68 Fed. 
 Rep. 673.
 
 3G0 
 
 RECEIVERSHIPS. 
 
 (d) Where the corporation is insolvent and without assets, and 
 the officers have ceased to act.' 
 
 In Haywood v. Lincoln Lumber Co. 
 64Wis.639,itisheld:(l)Thatthediiec- 
 tors of the corporation are trusteesof all 
 the property belonging to it and have 
 no right to secure to themselves any 
 preference or advantage. Marr \.Bank 
 of West Tennessee, 4 Coldw. 471, 484; 
 Koehler v. Black Biver Falls Iron Co. 
 67 U. S. 2 Black, 715, 17 L. ed. 339; 
 Curran v. Arkansas, 5G U. S. 15 How. 
 306, 14 L. ed. 706; Richards v. New 
 Hampshire Ins. Co. 43 N. H. 263; 
 Bradley v. Farwell, Holmes, 433; 
 Drury v. Milioankee <& S. B. Co. 74 
 U. S. 7 Wall. 299, 19 L. ed. 40; Paine 
 V. Lake Erie <fe L. B. Co. 31 Ind. 353; 
 Gaslight Improv. Co. v. Terrell, L. R. 
 10 Eq. Cas. 168; Smith v. Lansing, 22 
 N. Y. 521; Whiticell v. Wariier, 20 
 Vt. 425; Buell v. Buckingham, 16 
 Iowa, 284; Hopkins' Appeal, 90 Pa. 
 69. (2) Nor to take a mortgage to 
 themselves for their own benefit to the 
 injury of others in equal right. Cor- 
 bettv. Woodward, 5 Sawy. 403; Koeh- 
 ler V. Black River Falls Iron Co. 67 U. 
 S. 2 Black, 715, 17 L. ed. 339; Hoyle 
 v. riattsburg & M. R. Co. 54 N. Y. 
 814; European & N. A. B. Co. v. 
 Poor, 59 Me. 277; Butts v. Wood, 38 
 Barb. 181; Scott v. Depeysier, 1 Edw. 
 Ch. 513; Verplanck v. Mercantile Ins. 
 Co. 2 Paige, 438; G7-eat Luxembourg 
 & R. Co. v. Magnay, 25 Beav. 586; 
 Cook V. Berlin Woolen Mill Co. 43 
 Wis. 434; Pickett v. School Dist. 25 
 Wis. 553; Re Taylor Orphan Asylum, 
 36 Wis. 552. 
 
 In United Electric Sec^ir. Co. v. 
 Louisiana Electric Light Co. 68 Fed. 
 Rep. 673, it is held that a court will 
 not take the management of a corpo- 
 ration out of the hands of its directors 
 on the ground of mismanagement if 
 full relief can be obtained by injunc- 
 tion. 
 
 Failure to elect officers, or want of 
 sufficient officers occasioned by death, 
 or the destruction of the corporate 
 property by fire will not of themselves 
 work a dissolution. But where there 
 is a refusal or neglect to replace the 
 necessary officers, and the adminis- 
 trator of a deceased officer takes pos- 
 session of the corporate property, a 
 receiver may be appointed. Re Bel- 
 ton, 47 La. Ann. 1614, 30 L. R. A. 
 648. 
 
 ^Ford V. Kansas City & I. Short Line 
 R. Co. 52 Mo. App. 439. 
 
 The courts in New York have no 
 power either by statute or under their 
 inherent jurisdiction as courts of chan- 
 cery, to appoint a receiver of a cor- 
 poration upon a petition showing suf- 
 ficient assets to meet all liabilities 
 eventually, but that some of the cred- 
 itors whose claims have matured 
 threaten suit, and that the institution 
 of such suits would be prejudicial to 
 the interests of creditors whose claims 
 are not due. Re Atlas Iron Const. Co. 
 71 N. Y. S. R; 801. 
 
 The appointment of a temporary 
 receiver of the property of a corpora- 
 tion in a proceeding for its voluntary 
 dissolution, under N. Y. Code Civ. 
 Proc. § 2423, making such appoint- 
 ment dependent upon the insolvency 
 of the corporation, is not authorized,, 
 where the schedule of the assets and 
 liabilities, verified by the petitioners, 
 shows a surplus of the assets; and an 
 injunction against creditors is likewise 
 without authority upon such a show- 
 ing. Re Hitchcock Mfg. Co. 1 App. 
 Div. 164. 
 
 A creditor who obtains the property 
 of a domestic corporation by purchase 
 under execution upon a judgment re- 
 covered in another state, in violation 
 of N. Y. Laws 1892, chap. 688, ren-
 
 RECEIViliRSHIP OF CORPORATIOJSS. 
 
 361, 
 
 (e) Where the corporation has been dissolved and it is neces- 
 sary to preserve and distribute the property or its proceeds.' 
 
 (f) Wliere the charter of a corporation has been repealed by a. 
 constitutional provision.' 
 
 (g) Where the corporation has been declared bankrupt, and 
 the purchaser at the assignee's sale is in possession receivino- the 
 income which the mortgagee is entitled to.^ 
 
 (h) Where it appears that the holders of a majority of the 
 stock of a corporation neglect to elect officers, and there is no one- 
 
 dering invalid any judgment suffered 
 by an insolvent corporation with in- 
 tent to prefer 'a particular creditor, 
 ■will be held as a trustee of the prop- 
 erty in favor of a receiver of the cor- 
 poration, where the court in New 
 York has acquired jurisdiction of his 
 person. Olney v. Baird, 15 Misc. 
 885. 
 
 Mere disagreement between the di- 
 rectors and stockholders as to the 
 management of a corporation, in the 
 absence of fraud, does not authorize 
 the appointment of a receiver. Little 
 Warrior Coal Co. v. Hooper (Ala.) 2 
 Am. & Eng. Corp. Cas. N. S. 365. 
 
 Where the insolvency of the com- 
 pany is established and the applica- 
 tion is by a creditor, a receiver may 
 be appointed. San Antonio & O. S. 
 R. Co. v. Davis, (Tex. Civ. App.) 3 
 Am. & Eng. Corp. Cas. N. S. 374. 
 
 ^Havemeyer v. San Francisco Super. 
 Ct. 84 Cal. 337, 10 L. R. A. 627; First 
 Nat. Bank v. United States Encaustic 
 Tile Co. 105 Ind. 227; People, Wrig7it, 
 v. Weigley, 155 111. 491; Yore v. Sa7i 
 Francisco Super. Gt. 108 Cal. 431; 
 City Water Co. v. State, 88. Tex. 600; 
 See further Tf a, this section; and 2 
 Am. & Eng. Corp. Cas. N. S. 240, et 
 seq. 
 
 The court will not decree a dissolu- 
 tion and appoint a receiver if the cor- 
 poration is not a defendant. Graven- 
 
 stine's Appeal, 49 Pa. 310; Micldes v. 
 Bochester City Bank, 11 Paige, 118. 
 
 On a voluntary dissolution the re- 
 ceivemis vested with the corporate in- 
 terests except the power to do busi- 
 ness. Chicago Mut. L. Indem. Asso. v. 
 Hunt, 127 111. 257, 2 L. R. A. 549. 
 
 The schedule of assets and liabilities 
 annexed to a petition for the volun- 
 tary dissolution of a corporation 
 which shows a surplus of assets can- 
 not be amended after the appointment 
 of a receiver which is authorized only 
 when the corporation is insolvent, so 
 as to show a deficiency of assets, 
 under K Y. Code Civ.*Proc. § 2427, 
 providing for the amendment of the 
 schedules before final order by the in- 
 sertion of additional items, or by mak- 
 ing the statement or inventory fuller 
 and in greater detail. Re Hitchcock 
 Mfg. Co. 1 App. Div. 164. 
 
 A receiver should not be appointed 
 in proceedings to dissolve a corpora- 
 tion, for the sole purpose of prevent- 
 ing a creditor from resorting to the 
 legal process against it to which he is 
 entitled. Ward v. Segar, 60 III. App. 
 424. 
 
 "^Putnam v.Ruch, 54 Fed. Rep. 216; 
 Curran v. Arkansas, 56 U. S. 15 
 How. 304. 14 L. ed. 705. 
 
 '^KeUy V. Alabama <k (!. R. Co. 5S 
 Ala. -189. Cf. Ex parte Brown, 53 
 Ala. 530;
 
 302 
 
 RECEIVERSHIPS. 
 
 authorized to conduct the affairs of the corporation, and preserve 
 the corporate property.' 
 
 (i) Where a judgment has been rendered against the corpora- 
 tion and it is necessary to collect unpaid subscriptions to the capi- 
 tal stock.* 
 
 (j) Where the majority stockholders are clearly violating the 
 chartered rights of the minority and putting their interests in im- 
 minent danger.' 
 
 ^Lnicrence v. Oreenwich F. Ins. Co. 
 1 Paige, 587; Conro v. Oray, 4 How. 
 Pr. 166; Willis v. Corlies, 2 Edw. Ch. 
 281; Orphan Asylum v. McCartee, 
 Hopk. Ch. 429; Hand v. Dexter, 41 
 Ga. 454; Western Div. of North Caro- 
 lina R. Co. V. Drew, 3 Woods, 691; 
 Sandford v. Sinclair, 8 Paige, 373; 
 Conro Y.Port Henry Iron Co. 12 Barb. 
 27; Re Belton, 47 La. Ann. 1614, 30 L. 
 R.'a. 648. 
 
 ^.Bailey v. Pittsburg Coal R. Co. 189 
 Pa. 213; Lane's Appeal, 105 Pa. 49; 
 BeWs Appeal, 115 Pa. 88. 
 
 As a rule, whatever power the cor- 
 poration had to collect assessments 
 passes to the receiver under the direc- 
 tion and control of the court. SJio- 
 walter v. Laredo Improv. Co. 83 Tex. 
 162; Vanderwerken v. Glenn, 85 Va. 
 9; Howard v. Glenn, 85 Ga. 238; 
 Eightower v. Thornton, 8 Ga. 486; 
 Minnesota Thresher Mfg. Co. v. Lang- 
 don, 44 Minn. 37; Merchants Nat. 
 Bank Y.Nortliw ester n Mfg. & Car Co. 
 48 Minn. 361; Means' Appeal, 85 Pa. 
 75; VanWagenenv. Clark, 22 Hun, 
 497; Rankine v. Elliott, 16 N. Y. 377; 
 Sagory v. Dubois, 3 Sandf. Ch. 466. 
 
 ^Hand v. Dexter, 41 Ga. 454. In 
 Stale Journal Co. v. Commonwealth Co. 
 43 Kan. 93, a corporation was embar- 
 rassed by debts, and dissensions ex- 
 isted between its officers liltely to in- 
 jure the value of its property, a re- 
 ceiver was appointed on the applica- 
 tion of the mortgagee. 
 
 State, Independent Dist. Teleg. Co., 
 
 V. Silver Bow County Second Judicial 
 Dist. Ct. 15 Mont. 324, 27 L. R. A. 392; 
 Re Lewis's Petition, 52 Kan. 660. In 
 this case the court say:." By the aver- 
 ments of the petition it would appear 
 that all officers of the corporation 
 have conspired together to divert its 
 business to another company and to 
 absorb its earnings and assets and ap- 
 propriate the same to their own use. 
 * * * In most cases of this charac- 
 ter no other adequate remedy exists. 
 The appointment of a receiver is not 
 necessarily a proceeding to dissolve a 
 corporation, nor will it necessarily 
 result in its extinction. The prop- 
 erty and assets of the corporation 
 which are being dissipated and fraudu- 
 lently absorbed will be preserved and 
 rightfully applied under the super- 
 vision of the court and may be re- 
 stored to the officers of the corpora- 
 tion when there has been a change of 
 officers, or when it is deemed prudent 
 and safe to restore the property and 
 affairs of the corporation to its duly 
 constituted officers." Cf. First Nat. 
 Bank v. United States Encaustic Tile 
 Co. 105 Ind. 227; Wayne Pike Co. v. 
 Hammons, 129 Ind. 368; Supreme 
 Sitting 0. of 1. H. v. Baker, 134 Ind. 
 293, 20 L. R. A. 210; Haywood v. Lin 
 coin Lumber Co. 64 Wis. 639; Consoli- 
 dated Tank Line Co. v. Kansas City 
 Varnish Co. 43 Fed. Rep. 204; Miner 
 v. Belle Isle Ice Co. 93 Mich. 97, 17 L. 
 R. A. 420. 
 Minority stockholders may secure
 
 RECEIVERSHIP OF CORPORATIONS. 
 
 363 
 
 (k) Upon the application of judgment creditors.' 
 
 § 226. When not appointed. 
 
 Owing to the fact that the appointment or refusal to appoint a 
 receiver in all cases rests in the sound judicial discretion of the 
 court under all the circumstances of each particular case it is im- 
 possible to lay down any well-established principles under which 
 the court, will refuse to lend its aid and refuse to appoint. A few 
 general principles, however, maj^ be stated that have received the 
 approval of courts of last resort that may serve, to a greater or 
 less extent, as guiding principles. 
 
 (a) The court will not appoint a receiver and take from the 
 directors of a corporation the control and management of the cor- 
 porate business except in proceedings instituted for the purpose 
 of dissolving the corporation under statutory authority therefor.^ 
 
 the appointment pending investiga- 
 tion of gross fraud by tiie majority 
 stockholders. State, Independent Dist. 
 Teleg. Co., v. Silver Bow County 
 Second Judicial Dist. Ct. 15 Mont. 324, 
 27 L. R. A. 392. 
 
 ' A judgment creditor who has had 
 execution returned unsatistied may 
 file a bill in equity and have the cor- 
 poration property and assets applied 
 in his favor. Hervey v. IllinoiH M. 
 R. Co. 28 Fed. Rep. 169; Union Trust 
 Co. v. Illinois M. R. Co. 117 U. S. 
 434, 29 L. ed. 963; Sage v. Memphis 
 & L. R. R. Co. 125 U. S. 361, 31 L. ed. 
 694; Palmer v. Clark, 4 Abb. N. C. 
 25. 
 
 In England judgment creditors can- 
 not levy an execution on a railroad, 
 but are entitled to a receiver of the 
 income. Re Manchester & M. B. Co. 
 L. R. 14 Ch. Div. 645. 
 
 The appointment of a receiver in 
 behalf of a creditor, however, must 
 be made in good faith and not for the 
 purpose of hindering and delaying 
 other creditors. Re Receivers of Phila- 
 delphia & R. R. Co. 14 Phila. 501; 
 Howard v. La Crosse & M. R. Co. 
 Woolvv. 49. 
 
 As a general rule the right under 
 consideration does not apply to a gen- 
 eral creditor. Lehigh Coal tfc Nav. Co. 
 V. Central R. Co. 43 Hun, 546; Pojid 
 V. Framingham & L. R. Co. 130 JMass. 
 194. But see Btlmont Nail Co. v. Co- 
 lumbia Iron & S. Co. 46 Fed. Rep. 8; 
 Avery v. Blees Mfg. Co. 27 N. .1. Eq. 
 412; Consolidated Tank Line Co. v. 
 Kansas City Varnish Co. 43 Fed. Rep. 
 204. 
 
 ^Port Huron & O. R. Co. v. St. 
 Clair Circuit Judge, 31 Mich. 456; 
 Baker v. Louisiana PortaUe R. Co. 34 
 La. Ann. 754; French v. Gifford, 30 
 Iowa, 148; Hedges v. Paquett, 3 Or. 
 77; Bartlett v. Wed Metropolitan Tram- 
 way Co. [1893] 3 Ch.437. 
 
 In Supreme Sitting, 0. of I. H. v. 
 Baker, 134 Ind. 293, 20 L. It. A. 210, it 
 is held that a court of equity has no 
 power independently of statute to dis- 
 solve an insolvent corporation is well 
 settled. The authorities seem to be 
 universal in holding this doctrine. 
 We have been cited to no authorities 
 holding a contrary doctrine and we 
 have been unable to find any in the 
 search we have made. There is no stat- 
 ute in this stale (Indiana) authorizing a
 
 3G4 
 
 RECEIVERSHIPS. 
 
 (b) Mere disagreement between tlie parties as to the manage- 
 ment of the corporate business furnishes no sufficient ground lor 
 the appointment ;" nor, 
 
 court of equity todissolve a corporation 
 on such a i)roceediDg as the one at bar 
 brought on behalf of individual stock- 
 holders or shareholders as the appel- 
 lees are in this case. Hence the ac- 
 tion cannot be sustained or recorded 
 as one having for its object the disso- 
 lution of the corporation on the 
 ground of insolvency or being in im- 
 minent danger of insolvency. 
 
 In Spelling, Priv. Corp. § 1001, it is 
 said: "The legislation of the various 
 states providing for the appointment 
 of receivers of insolvent corporations 
 is based upon the just and reasonable 
 policy of protecting those who would 
 otherwise be without adequate rem- 
 edy in the usual course of legal pro- 
 ceedings in case of the insolvency of 
 the corporation. And the same rea- 
 sons exist for the appointment 
 whether the insolvency has been 
 caused by the misconduct and infidel- 
 ity of the company's' officers or from 
 other causes. The statutory power thus 
 confirmed, with a few exceptions, does 
 not extend to authorize the court to dis- 
 solve the corporation. * * * The court 
 seeks not to destroy rights but to pre- 
 serve them and for the accomplish- 
 ment of this end the annihilation of 
 the franchise is unnecessary. That 
 duty concerns the sovereign and where 
 its performance becomes necessary the 
 court of law is the appropriate tribu- 
 nal." In speaking of the action of a 
 court of equity in appointing a re- 
 ceiver in a corporation matter the 
 court in Supreme Sitting, 0. of I. H. 
 V. Baker, supra, further said: "A court 
 of equity should not ruthlessly wrest 
 from the legally constituted officers of 
 the corporation the management of its 
 affairs and the property of the corpo- 
 
 ration and turn it over to the hands of 
 a receiver. ^Such power should not 
 be exercised by a court of equity ex- 
 cept with due care and in a case where 
 it is clearly made to appear that it is 
 for the best interest of the parties in- 
 terested and it will not be presumed 
 that a court of equity will exercise 
 such power except where the exigen- 
 cies of the case clearly warrant it." 
 
 ^American Loan & T. Co. v. To- 
 ledo, G. & S. R. Co. 29 Fed. Rep. 416. 
 
 A receiver should not be appointed 
 to prevent a public sale of the assets 
 of the corporation to satisfy its bonds 
 where the proof does not show that 
 those in the management of the corpo- 
 ration are acting unfaithfully or are 
 wasting the assets. Ft. Payne Fur- 
 'nace Co. v. Ft. Payne Coal & I. Co. 
 96 Ala. 472. Where an action is 
 to prevent the illegal consolidation 
 of two railroad companies and stock- 
 holders in violation of an injunction 
 elected directors of the new company, 
 there are no grounds for the appoint- 
 ment of a receiver for either company. 
 Cleveland, C. C. & I. R. Go. v. Jewelt, 
 37 Ohio St. 649 (see Revised Statutes, 
 § 3383); Cincinnati, S. & C. R. Co. 
 V. Sloan, 31 Ohio St. 15; Verplanckv. 
 Mercantile Ins. Co. 2 Paige, 438. 
 
 In Stockton v. Central R. Co. 50 N. 
 J. Eq. 489, it is held that where it 
 becomes necessary to compel obe- 
 dience to an injunction or a decree the 
 court may appoint a receiver to con- 
 trol the defendant property. The 
 court say :"The powerof thecourt toap- 
 point such a receiver when the appoint- 
 ment is necessary to effectuate its de- 
 cree has not been disputed. Such power 
 is so essential at times to the efficient ex- 
 ercise of the court's jurisdiction that it
 
 RECEIVERSHIP OF CORPORATIONS. 
 
 365 
 
 (c) Where on application of minority stockholders it appears 
 that reasonable effort has not been made to secure redress through 
 the company or its legally constituted authorities ;' nor 
 
 (d) Where the law affords an adequate remedy ;' nor 
 
 has become too well established either 
 to be seriously questioned or to need 
 citation of authority to support it." 
 In the above case it was represented 
 that a scheme existed between the de- 
 fendants to restrict and prevent com- 
 petition in the production and sale of 
 coal, a staple commodity in this state, 
 and thereby to effect an increase in 
 the price thereof. An order to show 
 cause why a receiver should not be 
 appointed was issued and an injunc- 
 tion pending such order was granted, 
 after which it was represented to the 
 court that the injunction had been 
 disobeyed by the companies acting in 
 combination with each other. 
 
 In Wanneker v. Hitchcock, 38 Fed. 
 Rep. 383, it is held that the fact that 
 there may be differences of opinion or 
 judgment between the trustees to 
 whom corporate stock is devised for 
 the use of others as to the policy to be 
 pursued by the corporation and the 
 proper persons to be voted for as di- 
 rectors, does not make a case where a 
 court is authorized to appoint a re- 
 ceiver for such stock. 
 
 In Harmon v. Kentucky Coal I. & 
 D. Co. 15 Ky. L. Rep. 12, it is held 
 that a receiver will not be appointed 
 over a corporation and its property 
 taken from those having much greater 
 interest therein than the applicant 
 where no disposition is shown on their 
 part to deprive the applicant of any 
 right in the propertj' and where the 
 only purposes of such applicant is to 
 ascertain what interest he has now in 
 the property or its proceeds. 
 
 It is held in Hardee v. Sumet Oil 
 Co. 56 Fed. Rep. 51, that the irregular 
 action by the directors in assessing 
 
 and advertising for sale its capital 
 stock and the careless manner of 
 keeping the books and records of the 
 company and illegal action in voting 
 itself salaries where otherwise the cor- 
 poration has been economically man- 
 aged, no fraudulent intention or pur- 
 pose being shown, a receiver will not 
 be appointed. 
 
 ^ Roman v. WooJfolk, 98 Ala. 219; 
 Mack V. DeBardekb^ii Coal & I. Co. 90 
 Ala. 396, 9 L. R. A. 650; Merchants 
 & P. Line v. Waganer, 71 Ala. 581; 
 Graeaves v. Gouge, 69 N. Y. 154; 
 Breicer v. Boston Theatre Proprs. 104 
 Mass. 378; Haioes v. Contra Cobta 
 Water Co. (" Hawes y. Oakland") 104 
 U. S. 450, 26 L. ed. 828; Fluker v. 
 Emporia City R. Co. 48 Kan. 577; 
 Bacon v. Irvine, 70 Cal. 221. 
 
 The policy of the law is to leave the 
 affairs of a corporation to the manage- 
 ment and control of its own chosen 
 agencies and that a minority of the 
 stockholders will not be permitted to 
 displace corporate authority and con- 
 trol and substitute therefor the policy, 
 management, and control of the courts 
 except in plain cases of such fraud or 
 maladministration as works manifest 
 oppression or wrong to them; and that 
 before calling upon the court to take 
 into its hands the administration of 
 its corporate affairs it must be made 
 clearly to appear not only that such 
 oppression or wrong to them depends, 
 but that every reasonable effort haa 
 been made to secure redress and pre- 
 vention of further mischief within the 
 company itself. Roman v. Woolfolk, 
 98 Ala. 219. 
 
 * Preasley v. Lamb, 105 lud. 171.
 
 366 RECEIVERSHIPS. 
 
 (e) Where the application is based upon the allej^ed faihire of 
 the operators to keep a raih'oad in suitable repair, and the oper- 
 ating company is responsible and acknowledges its duty and is 
 compelled by law to keep the road in repair ;' nor 
 
 (f) "Where the defendant is a foreign corporation and has no 
 property in the state ;^ nor 
 
 (g) Where a suit is pending to try the title to the possession of 
 the premises ;" nor 
 
 (h) Where in case of foreclosure of a mortgage the right to 
 foreclose is not clear and undisputable ;* nor 
 
 (i) Where there is no showing of danger or loss ;* nor 
 
 (j) Where there will be no proceeds to distribute after the pay- 
 ment of the mortgage indebtedness ;' nor 
 
 (k) Where the claims against the corporation are unascertained 
 and are small as compared with the value of its property;' nor 
 
 (1) Where the applicant is a secured creditor and he seeks to 
 obtain a receiver over property not subject to the litigation f nor 
 
 (m) Where the property over which a receiver is sought is 
 rightfully in the possession of a person appointed by the mort- 
 gagees under powers contained in the mortgage." 
 
 § 227. Fraud as ground for appointnieut. 
 
 Fraud and collusion on the part of the officers and directors of 
 a corporation which may result in danger of the loss of the prop- 
 
 ' Boston, C. & M. B. Go. v. Boston ^Pyles v. Itiverside Furniture Go. 80 
 
 & L. Railroad, 65 N. H. 393. W. Va. 123; Mercantile Invest. & Gen. 
 
 "^Haarv. Consolidated Garson River T. Go. v. River Plate Trust, L. & A. 
 
 Dredging Go. 43 N. Y. S. R. 1. Co. [1892] 2 Ch. 303. 
 
 ^Emerson's & Wall's Appeal, 95 Pa. ''Virginia 1\ & G. Steel & I. Go. v. 
 
 258. Wilder, 88 Va. 942. 
 
 ^American Loan & T. Go. v. Toledo, The court will not, in deference to 
 
 C. & 8. R. Go. 29 Fed. Rep. 416. the mere technical rights of a very 
 
 ^'Houcldnv. Turner, 89 Ga. 26; Bal- small minority of bondholders of a 
 
 timore & 0. R. Go. v. Gannon, 72 Md. railroad corporation, appoint a re- 
 
 493; Baltimore <& 0. Teleg. Go. v. In- ceiver, where it appears that such ac- 
 
 terstate Teleg. Go. 54 Fed. Rep. 50, 8 tion would imperil, if not destroy, the 
 
 U. S. App. 340; Watldns v. National interests of others whose rights are en - 
 
 Bank of Lawrence, 51 Kan. 254; titled to equal consideration. Tysen 
 
 Eincldey v. Bethen. 78 Me. 221; Mc- v. Wabash R. Go. 8 Biss. 247. 
 
 George v. Big Stone Gap Improv. Go. * Wormser v. Merchants' Nat. Bank, 
 
 57 Fed. Rep. 262. The appointment 49 Ark. 117; Noyes v. Rich, 52 Me. 
 
 is discretionary on proof of insolv- 115. 
 
 ency, and not a matter of right. Id. ^Re Pound, L. R. 42 Ch. Div. 402.
 
 RECEIVERSHIP OF CORPORATIONS. 367 
 
 erty of such corporation constitute sufficient ground for the inter- 
 ference of a court of equity and the appointment of a receiver 
 over its property and business.' But where fraud constitutes the 
 gravamen of the charge the facts which constitute the alleo-ed 
 fraud must set out specifically and clearly ; the court will not act 
 upon general allegations.^ Nor will the fraud of the majority of 
 the directors be sufficient to warrant the interference of the court 
 in the appointment of a receiver if plaintiff has, otherwise, com- 
 plete redress, nor will a mere apprehension that such frauds may 
 be repeated be sufficient/ nor will relief be granted if the plaintiff 
 is not free from blame in the matters of which he complains.* 
 
 § 228. Insolvency as gronnd for appointment. 
 
 A court of equity has no inherent power as such to appoint a 
 receiver over an insolvent corporation, but in most of the states 
 in this country, as well as in England, statutory powers have been 
 granted enabling the courts to interfere, on proper application, in 
 the matter of insolvent corporations, and appoint a receiver to 
 take charge of their affairs, wind up their business and distribute 
 their assets among creditors, shareholders, or those entitled 
 thereto ; and this power, in some cases, has been extended to the 
 end of dissolving the corporation and forfeiting its charter privi- 
 leges. As a rule the statute prescribes the method of procedure, 
 and by whom the application shall be made, sometimes a creditor 
 and sometimes a shareholder being authorized to put the machin- 
 ery in motion. The constitutionality of this class of legislation 
 
 ^Ilayicood v. Lincoln Lumber Co. 64 & S. Coal & Min. Co. v. Edimrds, lOo 
 
 Wis. 639; Miner v. Belle Isle Ice Co. 93 111. 472; Consolidated Tank Line Co. v. 
 
 Mich. S7, 17 L. R. A. 412; Davis v. Kansas City Varnish Co. 43 Fed. Rep. 
 
 Memphis City R. Co. 22 Fed. Rep. 883; 208; Towle v. American Bldg. L. & L 
 
 Sellers v. Phcenix Iron Co. 13 Fed. 8oc. 60 Fed. Rep. 131; Buck v. Pied- 
 
 Rep. 20; Wayne Pike Co. v. Ilammons, mont & A. Life Ins. Co. 4 Fed. Rep. 
 
 129 Ind. 368; Blutchford v. Ross, -54 849. 
 
 Barb. 42; Hedges v. Paqnett, 3 Or. 77. '^Fort Payne Furnace Co. v. Fort 
 
 Only suck directors and officers as Payne Coal & I. Co. 96 Ala. 472; 
 
 participate in the fraud are liable. Briarfield Iron Works Co. v. Foster, 
 
 Metropolitan ElcD. R. Co. v. Kneeland, 54 Ala. 622; Oakley v. Paterson Bank, 
 
 120 N. Y. 134, 8 L. R. A. 253; Mer- 2 N. J. Eq. 173. 
 
 rick V. Peru Coal Co. 61 111. 472; IIol- ^Laurel Springs Land Co. v. Foug- 
 
 land V. Lewiiiton Falls Bank, 52 Me. eray, 50 N. J. Eq. 756. 
 
 564; Ellis v. Ward, 137 111. 509; People *IIyde Park Oas Co. v. Kerber, 5 111, 
 
 V. Bruff, 9 Abb. K C. 153; St. Louis App. 132.
 
 368 
 
 RECEIVERSHIPS. 
 
 is not to be called in question either by the corporation itself, or 
 by those with whom it has contract relations, sin.co in the one 
 case, by its condition of insolvency, it has become impossible to 
 further carry on the corporate functions with which it has been 
 invested by the lawmakinoj power, and in the other the very 
 purpose of such legislation is the preservation of the rights of 
 those having contractual relations with it by the equitable distri- 
 bution of its assets among those entitled thereto.' 
 
 The insolvency of insurance companies and the proper protec- 
 tion of their creditors by the due distribution of their assets has 
 been the subject of much litigation, and is now usually regulated 
 bv statutes. Sometimes these statutes confer the power upon 
 • courts to dissolve the corporations and distribute the assets, while 
 in other instances the dissolution is effected by an action in the 
 name of the state, leaving the distribution of the assets and the 
 adjustment of the rights of all parties to courts of chancery, the 
 receiver in such cases being an imj^ortant instrumentality." 
 
 'By an act of the legislature the 
 governor of Georgia was authorized 
 to appoint a fit and proper person to 
 act as receiver of a bank, if it failed 
 or refused to redeem its notes in 
 specie, or if the notes depreciated to 
 the extent of 10 per cent or upwards. 
 The Bank of Macon, it appeared, had 
 failed to redeem its notes; all or nearly 
 all its stock had accumulated in the 
 hands of one individual, and he 
 was dead and insolvent, from which 
 the court found as an irresistible con- 
 clusion that the corporation could 
 never be revived "by any power short 
 of that which raised up Lazarus from 
 the grave." Under this state of facts 
 the governor appointed a receiver and 
 it was contended: (1) That the ap- 
 pointment of a receiver was a judicial 
 act, and not legislative; and (2) that 
 the appointment of a receiver under 
 the legislative act impaired the obli- 
 gation of contract by depriving the 
 - corporation of the power to sue. 
 
 The court held that the appoint- 
 
 ment of a receiver was not judicial in 
 that it did not determine any contro- 
 versy, or any right legal or equitable, 
 and that his duties consisted in col- 
 lecting, holding, and distributing the 
 assets of the bank for the benefit of 
 all concerned; also that the obligation 
 of the contract was not impaired, 
 among other reasons because the stat- 
 ute was remedial in its nature and 
 therefore like all similar statutes 
 within legislative control. Carey v. 
 Oilen, 9 Ga. 258. 
 
 *As instructive cases in the matter 
 of theadjuslment of therights and in- 
 terests of creditors and policy holders, 
 under statutes governing the dissolu- 
 tion of insurance companies, see^%. 
 Oen. V. Guardian Mut. L. Ins. Co. 82 
 N. Y. 336; Atty. Oen. v. North Amer- 
 ica L. Ins. Go. 83 N. Y. 172; People, 
 Atty. Gen., v. Security L. Ins. Co. 71 
 N. Y. 222; People, Atty. Gen., v. Se- 
 curity L. Ins. & A. Co. 79 N. Y. 
 267 ; Atty. Oen. v. North Amei'ican L. 
 Ins. Co. 80 N. Y. 153; Atty. Qen. v.
 
 KECEIVERSIIIP OF CORPORATIONS. 
 
 3G9 
 
 Insolvency of a building and loan association coupled with 
 proof of mismanagement and fraud on the part of its officers, is 
 likewise a ground for the appointment of a receiver.' 
 
 Where insolvency is made a ground for the appointment of a 
 receiver by statute, insolvency in such case becomes a jurisdic- 
 tional fact and the proof must be clear and convincing.* Insolv- 
 ency being established, and a receiver appointed, the administra- 
 tion of tlie estate must of necessity be left largely to the judgment 
 and discretion of the court, and only flagrant injustice and error 
 will warrant an appellate court in interfering with such discretion,' 
 and the court, in order to protect the receiver in his possession, 
 and secure the rights of all parties in interest, may make all 
 necessary orders, by injunction or otherwise, touching the deliv- 
 ery, management, or disposition of the corporate property and 
 assets.* 
 
 North American L. Ins. Co. 89 N. Y. 
 94; Carr v. Hamilton, 129 U. S. 253, 
 32 L. ed, 669; McDonald y. Boss-Lewin, 
 29 Hun, 87; Tippecanoe Twp. v. Man- 
 love, 39 Ind. 249; Embree v. Shideler, 
 36 Ind. 433; Lyeominrj F. Ins. Co. v. 
 Wright, 55 Vt. 526; Wardle v. Town- 
 mnd, 75 Mich. 385, 4 L. R. A. 511. 
 As to the liability of members of 
 mutual fire insurance companies and 
 the enforcement of such liability, see 
 Shaughnessy v. Rensselaer Ins. Co. 21 
 Barb. 605; Savage v. Medbury, 19 N. 
 Y. 32; Williams v. Babcock, 25 Barb. 
 109; Sands v. Sanders, 28 N. Y. 416. 
 
 A receiver pendente lite will not be 
 appointed for a mutual fire insurance 
 -corporation on the ground that it is 
 insolvent, where the examiners of the 
 insurance department, in determining 
 that itsindebtedness exceeded its assets 
 by |53,000, omitted to credit it with 
 $160,000 of capital stock notes au- 
 thorized by the lawunder which it was 
 organized and doing bu.'^iness. People 
 V. Equitable Mut. F. Ins. Co. 1 App. 
 Div. 93. 
 
 The ability and offer of a mutual 
 fire insurance company pending an 
 
 24: 
 
 action to dissolve it, to restore its 
 capital which has been impaired by 
 some of its officers acting without au- 
 thority, by supplying funds to any 
 amount directed by the insurance 
 department, will be considered, in de- 
 termining an application for the ap- 
 pointment of a receiver pendente lite. 
 People v. Equitable Mut. F. Ins. Co. 
 supra. 
 
 ' Toicle V. American Bldg. L. & I. 
 Soc. 60 Fed. Rep. 131. 
 
 ^Parsons v. Monroe Mfg. Co. 4 N. J. 
 Eq. 187; Atlantic Trust Co. v. Con- 
 solidated Elec. Storage Co. 49 N. J. 
 Eq. 403. Where, however, the conduct 
 of the officers of a corporation are 
 satisfactorily established as fraudu- 
 lent it is not only proper but it is the 
 duty of the court to wrest from such 
 officers the management of the com- 
 pany and place the company in the 
 charge of a receiver. Nichols v. Pen-y 
 Patent Arm Co. 11 N. J. Eq. 126; 
 Atty. Oen. v. Bank of Columbia, 1 
 Paige, 511. 
 
 ' Wilmington Star Min. Co. v. Allen, 
 95 111. 288. 
 
 * Morgan v. New York & A. R. Co
 
 S70 
 
 KECEIVERSHIPS. 
 
 As in the case of fraud so also in the case of insolvency the 
 allegations of the bill or petition must be clear and explicit. It 
 is not sufficient that they be made merely upon information and 
 belief,' and especially so where the allegations are denied." Where 
 the statute has not otherwise provided, the great weight of au- 
 thority is that a receiver will not be appointed upon the petition 
 of the corporation itself, even upon positive averments of its in- 
 
 10 Paige, 290. Where a receiver is 
 appointed over a corporation it is the 
 duly of the officers and managers of 
 the company to deliver its assets to 
 the receiver and a refusal on their 
 part constitutes contempt, and is pun- 
 ishable as such on application of the 
 receiver or parties in interest. Young 
 V. Rollins, 90 N. C. 125. 
 
 An injuuclion will be granted to 
 restrain a director of a corporation 
 from collecting money due it or from 
 paying out its assets, and a temporary 
 receiver vpill be appointed, during the 
 pendency of an action against liim 
 under N. Y. Code Civ. Proc. §§ 1781. 
 1782, for mismanagement, and to com- 
 pel him to account, vphere it is ap- 
 parent that plaintiff will be entitled to 
 part of the relief demanded, and, to 
 make the judgment effectual, it is de- 
 sirable, if not absolutely necessary, to 
 preserve the existing status. Piza v. 
 Butler, 90 Hun, 254. 
 
 ' In Atlantic Trust Co. v. Consol- 
 idated Elec. Storage Co. 49 N. J. Eq. 
 402, the vice chancellor says: "The 
 exercise of this power to its full ex- 
 tent extinguishes a mere manufactur- 
 ing or mercantile corporation com- 
 pletely and forever. The power is a 
 strong one. Chancellor Williamson 
 in Raicnsley v. Trenton Mut. L. Ins. 
 Co. 9 N. J. Eq. 95, called it an extraor- 
 dinary power. One that should be 
 exercised with great caution, and only 
 when the circumstances of the case 
 and the ends of justice required its 
 exercise. The statute makes insolv- 
 
 ency the jurisdictional fact. The 
 court can do nothing — neither issue 
 an injunction nor appoint a receiver 
 — until insolvency is tirst established. 
 That, in the language of Governor 
 Pennington, is the foundation of the 
 power and unless it is satisfactorily 
 made out the court has no jurisdic- 
 tion. Oakley v. Paterson Bank, 2 N. 
 J. Eq. 173, 176; Parsons v. Monroe 
 Mfg. Co. 4 N. J. Eq. 187, 206; Brun- 
 dred v. Paterson MacJi. Co. 4 N. J. Eq. 
 294,305. Chancellor Halsteadexpressed 
 substantially the same view in Oood- 
 heart v. Rariian Min, Co. 8 N. J. Eq. 
 73, 77. And Mr. Justice Depue in pro- 
 nouncing the opinion of the court of 
 errors and appeals in New Foundland 
 B. Const. Co. v. Bchack, 40 N. J. Eq. 
 222, 226, declared, in describing what 
 averments a bill in such a case must 
 contain, that it was not sufficient that 
 the bill should merely allege that the 
 corporation had become insolvent and 
 had suspended its business for want 
 of funds to carry on the same, but 
 that the facts and circumstances on 
 which the complainant relies to prove 
 insolvency must be set out. * * * 
 The proof in support of a jurisdic- 
 tional fact must always be clear and 
 convincing for the court derives its 
 power from the fact, and hence, until 
 the fact is shown to exist, it has no 
 power." Cf. Livingston v. Bank of 
 New York, 5 Abb. Pr. 338; Vanderhilt 
 V. Central R. Co. 43 N. J. Eq. 669. 
 * Atty. Gen. v. Bank of Columbia, 
 1 Paige, 511.
 
 RECEIVERSHIP OF COHPORATIOl^fS. 371 
 
 solvency, some of the cases holding that the appointment is 
 voidable and others holding the appointment to be absolutely 
 void.' Nor will a receiver of a corporation be appointed upon an 
 ex parte application for the reason that so many interests may 
 be involved. It is doubtful if the court should act in any case of 
 this character until the corporation has had an ojiportunity to be 
 heard.^ 
 
 § 229. In foreclosure proceedings. 
 
 The rules applicable to the appointment of receivers, and their 
 powers, duties, and relations in the matter of foreclosure of 
 mortgages executed by corporations, are not essentially different 
 from those in ordinary foreclosures, and that subject is not 
 enlarged upon in this connection. The same is also true in 
 reference to receiverships in creditors' proceedings, based upon 
 creditors' bills, supplementary proceedings, and proceediugs in 
 aid of executions.* 
 
 § 230, Effect of appointment. 
 
 In regard to the effect of the appointment, of a receiver over 
 the property of a corporation it may be stated as general propo- 
 sitions : 
 
 (a) All liens existing at the time of the appointment whether 
 by mortgage, judgment, or otherwise, upon the property of the 
 corporation, remain unimpaired, and the existing rights of all 
 parties, so far as the corporate assets are concerned, remain in 
 ^tatu quo* 
 
 ^ Jones V. Bank of Leadville, 10 ^ Devoe v, Ithaca & 0. li. Co. 5 
 
 Colo. 464; Kimball v. Goodburn, 33 Paige, 521. 
 
 Mich. 10; Hugh v, Mcliae, Chase, » ggg ctj^p. x. 
 
 Dec. 466; Mcllheiiny v. Bim, 80 Tex. * Kneeland v. American Loan & T. 
 
 1; Hinckley v. rfisU'>'< 83 Wis. 64; Co. 136 U. S. 89, 34 L. e(i. 379; Union 
 
 State ^ Merriam, v. Boss, 122 Mo. 435, Nat. Bank v. Bank of Kansas City, 
 
 23 L.' R. A. 534; La Societe Francaise 136 U. S. 223, 34 L. ed. 341; Risk v. 
 
 V. 15th Judicial Dist. Ct. 53 Cal. 495; Kansas Trust & Bkg. Co. 58 Fed. 
 
 Neallv. Hill, 16 Cal. 145; French v. Rep. 45; Be Home Provident Safety 
 
 Gifford, 30 Iowa, 160; Whitehead v. Fund Asso. 129 N. Y. 288; Hubbard 
 
 Wooten, 43 Miss. 523. See contra, v. Hamilton Bunk, 7 Met. 340. There 
 
 Be Kittanning Ins. Co. liQFa..l02;a.nd is nothing in the New Jersey "act 
 
 Wabtcih, St. L. & P. R. Co. v. Central to prevent frauds by Incorporaied 
 
 Trust Co. 22 Fed. Rep. 272. companies " which interferes with the
 
 372 
 
 RECEIVERSHIPS. 
 
 (b) As to the possession, however, if the appointing court has 
 jurisdiction, and the receiver has qualilied by giving the requisite 
 bond, his possession will be protected as against all persons whom- 
 soever, the property being regarded as in custodia legis.^ 
 
 (c) Nor can another court of co-ordinate jurisdiction mtertere 
 with the possession of the receiver, regulate his action, or remove 
 him from his position.' 
 
 liens that exist when insolvency oc- 
 curs or which authorizes the receiver 
 to sell otherwise than subject to them. 
 Potts V. New Jersey Arms & 0. 
 Co. 17 N. J. Eq. 576. Cf. Bates v. 
 Wiggin, 37 Kan. 44. The receiver- 
 ship in no manner changes the terms 
 of existing contracts. Watson v. 
 PJicenix Bank, 8 Met. 217. As to the 
 effect of receivership upon purchasers 
 of real property pending the litiga- 
 tion, see Neicman v. Chapman, 2 
 Rand. 93. 
 
 In Kneeland v. American Loan & T. 
 Co. supi'a, the court say: "The ap- 
 pointment of a receiver vests in the 
 court no absolute control over the 
 property and no general authority to 
 displace vested contract liens." See 
 also St. Louis, A. & T. H. R. Go. v. 
 Cleveland, C. C. & I. R. Co. 125 U. S. 
 658, 673, 31 L. ed. 832, 837. Goods 
 lawfully seized by attachment from 
 a court of law will not be ordered by 
 a court of chancery having no super- 
 visory power to be delivered to the 
 receiver in the absence of statutory 
 powers. Ford v. Judsonia Mercantile 
 Co. 52 Ark. 426, 6 L. R. A. 714. 
 
 ' See Chap. lY; also, § 230; also 
 Hagedon v. Batik of Wisconsin, 1 
 Pinney, 61. As a general rule a re- 
 ceiver appointed in a prior suit should 
 not be displaced by the appointment 
 of a receiver of the same subject mat- 
 ter by the same court in a subsequent 
 suit. The receivership in the first 
 ^uit should be extended to the second, 
 subject to the legal and equitable 
 
 claims of all parties, and the rights of 
 the parties in each suit are substan- 
 tially the same as if different persons 
 had been appointed at the several 
 times when such receiverships were 
 granted. If, however, a different re- 
 ceiver is appointed, then, if the court 
 has jurisdiction of the subject-matter 
 and parties, and is the same court 
 which made the first appointment, 
 the receiver in the first suit must de- 
 liver to the receiver appointed in the 
 second. State v. Jacksonville, P. & 
 M. R. Co. 15 Fla. 201. Cf. Skinner 
 V. Maxwell, 68 N. C. 400; Walling v. 
 Miller, 108 N. Y. 173; Maynard 
 V. Bond, 67 Mo. 315; Atty. Oen. v. 
 Guardian Mut. L. Ins. Co. 77 N. Y. 
 272; Blake Crusher Co. v. New Haven, 
 46 Conn, 473; Van Alsiym v. Cook, 
 25 N. Y. 489; Morrill v. Noyes, 56 Me. 
 458; Rutter v. Tallis, 5 Sandf. 610; 
 Columbian Book Co. v. Be Golyer, 115 
 Mass. 67; Sercomb v. Catlin, 128 111. 
 556; Texas Trunk R. Co. v. Lewis, 81 
 Tex. 1; Richards v. People, 81 111. 
 551; Peck v. Crane, 25 Vt. 146. The 
 court has power to compel the deliv- 
 ery of property to the receiver. Am- 
 erican Const. Co. v. Jacksonville, T. & 
 E. W. R. Co. 52 Fed. Rep. 937; Keokuk 
 N. L. Packet Co. v. Davidson, 13 Mo. 
 App. 561 ; Vermont & C. R. Co. v. Ver- 
 mont C. R. Co. 46 Vt. 792. See Jacob- 
 son V. Landolt, 73 Wis. 142. 
 
 ^ Young v. Montgomery & E. R. Co. 
 2 "Woods, 606; CMahoney v. Belmont, 
 62 N. Y. 133; Gest v. New Orleans, St. 
 L. & C. R. Co. 30 La. Ann. 28; Coey.
 
 RECEIVERSHIP OF CORPORATIONS. 
 
 373 
 
 (d) Nor will the court permit its receiver, without its leave, to 
 be harrassed and interfered with by litigation.' 
 
 (e) Nor is the receiver bound to carry out the unexpired leases 
 of the person or corporation over whose property he is appointed." 
 
 (f) Nor is he bound by the contracts of his predecessor, unless 
 he adopts them as his own.' 
 
 Columbus. P. <fc /. R. Co. 10 Ohio St. 
 372; Albany City Bank v. Schermer- 
 Twrn, 9 Paige, 372; Texas Trunk R. 
 Co. V. Lewis, 81 Tex. 1; Wis^call v. 
 Sampson, 55 U. 8. 14 How. 52, 14 
 L. ed. 323; Storm v. Waddell, 2 Sandf. 
 Ch. 494; Columbian Book Co. v. De 
 Oohjer, 115 Mags. 67; Van Alstyne v. 
 Cook, 25 N. y. 489; Skinner v. Max- 
 well, 68 N. C. 400; Tuba County v. 
 Adams, 7 Cal. 35; Maynard v. Bond^ 
 
 67 Mo. 315; Robinson v. Atlantic & O. 
 W. R. Co. 66 Pa. 160; Stevenson v. 
 Palmer, 14 Colo. 565; Hardy -v. Tilton, 
 
 68 Me. 195. 
 
 ' Ellicott V. United States Ins. Co. 7 
 Gill, 307, unless the purpose of the 
 bill is merely to preserve the property 
 and not make a distribution. Leathers 
 V. Shipbuilders' Bank, 40 Me. 386 (See 
 statute). When the action is to dis- 
 solve the corporation the appointment 
 suspends the right of action of credi- 
 tors against the corporation and stock- 
 holders. Minnesota Thresher Mfg. 
 Co. V. Langdon, 44 Minn. 37; Mer- 
 chants' Nat. Bank v. Northwestern 
 Mfg. & Car Co. 48 Minn. 361; Atty. 
 Gen. v. North American L. Ins. Co. 
 6 Abb. N. C. 293. See City Water 
 Co. V. State, 88 Tex. 600; Farmers' 
 Loan & T. Co. v. Toledo & 8. H. R. 
 Co. 43 Fed. Rep. 223. But see Allen 
 V. Central R. Co. 42 Iowa, 683; Green 
 v. Walkill Nat. Bank, 7 Hun, 63. 
 
 An attachment of the property of 
 an insurance company after the filing 
 of a bill in equity against it under 
 Mass. Stat. 1894, chap. 522, § 7, with 
 
 a prayer for an injunction against its 
 proceeding with business and for the 
 appointment of a receiver of its 
 property, is not valid, although made 
 before any receiver is actually ap- 
 pointed; but on a subsequent appoint- 
 ment the receiver's rights relate back 
 to the commencement of the proceed- 
 ings. Merrill v. Commonwealth Mut.F. 
 Co. (Mass.) 44 N. E. 144. 
 
 The court appointing a receiver of 
 a corporation may order a creditor 
 living within the jurisdiction to dis- 
 miss garnishment proceedings insti- 
 tuted by him against debtors of the 
 corporation in other states, and upon 
 his failure to comply therewith punish 
 him for contempt. Besuden v. E. 
 Besuden Co. 3 Ohio N. P. 165. 
 
 ■^Ante, % 36; § 230, If e; also, Re 
 New Jersey & N. T. R. Co. 29 N. 
 
 J. Eq. 67. 
 
 * Lehigh Coal & Nav. Co. v. Central 
 R Co. 38 N. J. Eq. 175, 41 N. J. Eq. 
 167; Kansas P. R. Co. v. Bayles, 19 
 Colo. 348; Cf. Com. v. Franklin Ins. 
 Co. 115 Mass. 278; Ellis v. Boston, H. 
 & E. R. Co. 107 Mass. 1; Sotithern 
 Exp. Co. v. Western N. C. R. Co. 99 
 U. S. 191, 25 L. ed. 319; Dow v. 
 Memphis & L. R. R. Co. 20 Fed. Rep 
 260. The New Jersey cases fully 
 sustain the proposition announced in 
 the text, but if the receiver is the arm 
 of the court and, in good faith, makes 
 a contract, the doctrine that such 
 contract is not binding on his succes- 
 sor seems to be inequitable and un 
 just.
 
 374 
 
 RECEIVERSHIPS. 
 
 (g) Nor does the appointment of a receiver of a defunct cor- 
 poration revive its corporate powers.' 
 
 (h) The debtor's dominion or control over the property which 
 forms the subject-matter of litigation and which is specified in 
 the order at once ceases and becomes vested in the receiver.' 
 
 (i). Where the proceeding is a statutory one instituted to dis- 
 solve the corporation, and to wind up its business, and a judgment 
 of dissolution is pronounced, and a receiver appointed to col- 
 lect and distribute the assets it will be an abatement of all pend- 
 ing actions against the corporation.' 
 
 ' Stark V. BuvTce, 5 La. Ann. 740. 
 
 * See ante. 
 
 And in many of the states having 
 statutes authorizing the winding up 
 of corporations by reason of insolv- 
 ency, the appointment of a receiver 
 operates as an assignment or transfer 
 ipso facto of all the property of the 
 corporation to such receiver, for the 
 purpose of distribution. 
 
 It displaces the officers and direct- 
 ors from the possession and control. 
 Rochester -v. Bronson, 41 How. Pr. 78. 
 
 Where a receiver is appointed by a 
 Federal court, and afterward a suit is 
 brought in the state court and the 
 charter forfeited, it was held that the 
 appointment did not dissolve the cor- 
 poration; nor was its existence in any 
 way affected thereby; and suit against 
 the corporation might be prosecuted 
 for an indebtedness accruing before 
 the appointment, and judgment may 
 be rendered against it and enforced 
 against any property not embraced in 
 the receivership or that it might there- 
 after acquire. City Water Co. v. State, 
 88 Tex. 600; Heath v. Missouri, K. C. 
 & T. R. Co. 83 Mo. 621; St. Louis, A. 
 & T. R. Co. v. Whitaker, 68 Tex. 636. 
 
 The appointment of a receiver does 
 not dissolve the corporation. Bank 
 Comrs. v. Bank of Buffalo, 6 Paige, 
 497; Kincaid v. Dwinelle, 59 N. Y. 
 553; Pringle v. Woolworth, 90 N. Y. 
 
 510; Ohio & M. R. Co. v. Russell, 115 
 111. 52; Sleev. Bloom, 19 Johns. 456. 
 
 After the appointment of a receiver 
 a creditor cannot sue to enforce un- 
 paid subscriptions to the capital 
 stock of an insolvent corporation. 
 Big Creek Stone Co. v. Seward (Ind.) 
 42 N. E. 464; Minnesota Tliresher Mfg. 
 Co. V. Langdon, 44 Minn. 37; Mer- 
 chants' Nat. Bank v. Northwestern 
 Mfg. <£■ Car Go. 48 Minn. 361. So also 
 the appointment suspends all right of 
 action by the corporation, unless the 
 statute or order appointing otherwise 
 provides. Milwaukee Mut. F. Ins. 
 Co. V. Sentinel Co. 81 Wis. 207. 15 
 L. R. A. 627; San Antonio & G. 8. R. 
 Co. V. Davis (Tex.) 3 Am. & Eng. 
 Corp. Cas. N. S. 374. 
 
 ^McCulloch V. Norwood, 58 N. Y. 
 563; Colorado Nat. Bank v. Scott, 19 
 Abb. N. C. 348; Davenport v. City 
 Bank of Buffalo, 9 Paige, 12; Leathers 
 V. Shipbuilders' Bank, 40 Me. 386 
 (see Slat.); Pendleton v. Russell, 144 U. 
 S. 640, 36 L. ed. 574. But the fact of 
 the appointment of a receiver alone 
 does not effect an abatement {Heath 
 V. Missouri, K. C. & T. R. Co. 83 Mo. 
 617; Toledo, W. & W. R. Co. v. Beggs, 
 85 111. diQ; Mercantile Ins. Co. v. Jaynes, 
 87 111. 199), though the means of en- 
 forcing the claims after judgment may 
 be taken away {Ibid; Texas Trunk R. 
 Co. v. Lewis, 81 Tex. 1; Skinner v.
 
 RECEIVERSHIP OF CORPORATIONS. 
 
 375 
 
 § 231. The receiver's relationship. 
 
 The receiver of a corporation occupies a three-fold relationship. 
 
 (a) He is the agent of the court from which he receives his 
 appointment, and his powers and duties are measured by the or- 
 der of his appointment and the rules and practice of the court 
 making such order. 
 
 (b) He is also the trustee of the corporation creditors and share- 
 holders in respect to their interests in the property and assets of 
 the corporation and their respective rights to participate in the 
 distribution thereof.' 
 
 (c) He is likewise the representative of the corporation in re- 
 spect to the title to the corporate property and the right to sue 
 and defend in regard thereto. In general he takes the rights of 
 the corporation such as could be asserted in its own name and on 
 that basis only can he litigate for the benefit of creditors and 
 stockholders, except where acts have been committed in fraud of 
 the rights of creditors, such acts being valid as to the corporation, 
 but invalid as to the receiver in his representative character.* It 
 
 Maxwell. 68 N. C. 400; Butter v. Tal- 
 lis, 5 Saudf. 610; Maynard v. Bond, G7 
 Mo. 315; Gest v. New Orleans, St. L. 
 <fe G. B. Co. 30 La. Ana, 28), until the 
 property of the corporation is re- 
 turned to it. Heath v. Missouri, K. G. 
 
 6 T. B. Go. supra. No doubt the court 
 may in a proper case enjoin the pros- 
 ecution of suits against the corpora- 
 tion. Atty. Gen. v. Guardian Mut. 
 L. Ins. Co. 77 K Y. 272. 
 
 ' Mr. Justice Andrews, in Pittsburg 
 Carbon Go. v. McMiUin, 119 N. Y. 46, 
 
 7 L. R. A. 46, says: "The general 
 rule is well established that a receiver 
 takes the title of the corporation or 
 individual whose receiver he is, and 
 that any defense which would have 
 been good against the former may be 
 asserted against the latter. But there 
 is a recognized exception which per- 
 mits a receiver of an insolvent indi- 
 vidual or corporation in the interest 
 of creditors to disathrm dealings of 
 the debtor in fraud of their rights." 
 
 Gillet V. Moody, 3 N. Y. 479; Porter 
 Y. Williams, 9 N. Y. 142; Curtis v. 
 Leavitt, 15 N. Y. 9, 108; Libby v. Bose- 
 krans, 55 Barb. 202; Alexander v. 
 BeJfe, 74 Mo. 495; Atchison v. David- 
 son, 2 Pinney, 48; Morrill v. Noyes, 56 
 Me. 458; Brown v. Warner, 78 Tex. 
 543, 11 L. R. A. 394; Com. v. Frank- 
 lin Ins. Co. 115 Mass. 278; Herrick v. 
 Miller, 123 Ind. 304. 
 
 "^ See last note above, also, Mande- 
 ville v. Avery, 124 N. Y. 376; Pitts- 
 burg Carbon Co. v. McMillin, 119 N. Y. 
 46, 7 L. R. A. AQ;Wright v. Nostrand, 
 94 N. Y. 31 ; Atty. Gen. v. Guardian 
 Mut. L. Ins. Co. 77 N. Y. 212;Whit- 
 ilesey v. Delaney, 73 N. Y. 571 ; Bost- 
 wick V. Menck, 40 N. Y. 383; Zucker- 
 man v. Brown, 33 N. Y. 297; Bate v. 
 Graham, 11 N. Y. 237; Manley v. Bas- 
 siga, 13 Hun, 288; Leavitt v. Tales, 4 
 Edw. Ch. l'Si;Cha7nbe7iain\. O'Brieri, 
 46 Minn. 80; Farmers' Loan & T. Co. 
 V. Mirmeajiolis Engine & Mach. Works, 
 35 Minn. 543; Walsh v. Byrnes, 39
 
 376 
 
 RECEIVERSHIPS. 
 
 should be observed in this connection that where the receiver is 
 the trustee or representative of the creditors his I'ights are co- 
 extensive only with the rig-hts of such creditors, and he can main- 
 tain a suit in their behalf to the extent only to which, but for the 
 receivership, they might maintain such action.' This principle 
 
 Minn. 521 •,BlissY. Doty, 36 Minn. 168; 
 Weston V. Loylied, 30 Minn. 2'Z\; Alex- 
 ander V. Relfe, 74 Mo. 495; Hamlin v. 
 Wright, 23 Wis. 491; Hill v . Western 
 d; A. B. Co. 86 Ga. 284; Prescott v. 
 Pfeiffer, 57 Mich. 21. In many of the 
 states the power of the receiver to in- 
 stitute and carry on actions to set 
 aside fraudulent conveyances is given 
 by statute. The doctrine of the text, 
 so far as it relates to the receiver's 
 right to avoid the fraudulent acts of 
 the debtor, is probably supported 
 by the weight of authority, but is 
 strenuously opposed by the su- 
 preme court of Illinois in JRepnblic L. 
 Ins. Co. V. Swigert, 135 111. 150, 167, 
 13 L. R. A. 328. In that case Mr. 
 Justice Baker, after an exhaustive re- 
 view of the authorities in this country 
 and in England, holds that a receiver 
 can maintain an action to set aside a 
 transaction binding on the person or 
 corporation for whom he is receiver, 
 only: (1) Where the receiver by force 
 of some statute can act for the cred- 
 itors ; (2) where the act complained 
 of was ultra vires and not binding on 
 the corporation; (3) where the re- 
 ceiver was appointed in a proceeding 
 prosecuted by creditors at whose in- 
 stance and to secure whose claims he 
 was appointed in actions supplemental 
 to execution; (4) where the receiver 
 was suing for property or assets that 
 belonged to the debtor, and concludes 
 in the following language: "We think 
 the decided weight of authority sus- 
 tains the rule in respect to the powers 
 of receivers, where there has been no 
 enlargement of their powers by legis- 
 
 lative enactment, that they have such 
 rights of action only as were pos- 
 sessed by the persons or corporations 
 upon whose estates they administer. 
 But see Haxtun v. BisJtop, 3 Wend. 
 13 ; Eastern Bank v. Capron, 22 Conn. 
 639. 
 
 ' Young v. Clapp, 147 111. 176; Rus- 
 sell V. Chicago Trxist & Sav. Bank, 139 
 111. 538, 17 L. R. A. 345; Goddard v. 
 Stiles, 90 N. Y. 199; Bostwick v. Menck, 
 40 N. Y. 383; Storm v. Waddell, 2 
 Sandf. Ch. 494; Corning v. White, 2 
 Paige, 567; Burrall v. Leslie, 6 Paige, 
 567; Safford v. Douglas, 4 Edw. Ch. 
 538; Forier v. Williams, 9 N. Y. 150; 
 Banks v. Potter, 21 How. Pr. 473; 
 Howell y. Bijyley, 10 Paige, 43; Cum- 
 ming v.Edgerton, 9 Bosw. 084; De- 
 troit First Nat. Bank v. Barnum Wire 
 dc I. Works, 60 Mich. 487; King v. 
 Goodwin, 130111. 102; Osgood v. Ogden, 
 3 Abb. App. Dec. 425; Zuckerman v. 
 Brown, 33 N. Y. 297. 
 
 A receiver of a corporation stands 
 in the places of the corporation itself, 
 and is estopped from maintaining any 
 action or setting up any defense where 
 the corporation would have been es- 
 topped. McLaren v. Milwaukee First 
 Nat. Bank, 76 Wis. 259; Lincoln v. 
 Fitch, 42 Me. 456; Curtis v. Leavitt, 15 
 N. Y. 9, 290; Cutting v. Damerel, 88 
 N. Y. 410; Faricell v. Metcalf, 63 N. 
 H. 276; Hoar v. Harshow, 49 Wis. 379. 
 If, however, he represents the cred- 
 itors, it is otherwise, Huiskamp v. 
 Moline Wagon Co. 121 U. S. 310, 30 L. 
 ed. 971. 
 
 Where a corporation is being wound 
 up the receiver is a statutory trublce
 
 RECEIVERSHIP OF CORPORATIONS. 377 
 
 has more particular application to supplemental proceedings, and 
 proceedings in the nature of creditors' bills wherein the receiver 
 is the especial representative of the creditor or creditors institut- 
 ing the proceeding. 
 
 § 232. The receiver as manager, 
 
 While it is true that under ordinary circumstances the court 
 will decline to order the receiver to continue the business of the 
 person or corporation over whose property he is appointed,. yet 
 there are cases in which it is not only proper but in which it is 
 the duty of the court to do so. This is especially proper wliere, 
 as in the case of quasi-public corporations, public interests are tO' 
 a greater or less extent involved. There is also another ground 
 upon which tliis exception to the general rule is sometimes based 
 as where, owing to the peculiar nature of the corporate business^ 
 it is necessary for the due protection of the interest of all parties 
 to sell the corporate property and franchises, including the good- 
 will as a going concern. Hence, in such case, it is not only ex- 
 pedient but a judicial duty to preserve, in the meantime, the cor- 
 porate property and business intact. True, in a general sense, the 
 court should not assume the management of private business and 
 interests or assume the functions of corporations,' yet, on the con- 
 trary, it will not wantonly destroy the value of corporate property 
 in which many interests and possibly conflicting interests may be 
 involved, and where the owners of such interests may be wholly 
 powerless to act or intercede except through the legally consti- 
 tuted corporate authorities, the latter frequently being the parties 
 whose acts justify the intervention of the court. There is prob- 
 ably no other branch of the law of receivership requiring the ex- 
 
 for all creditors of the corporation, the receiver occupies a position of in- 
 
 Libby V. Rosekrans, 55 Barb. 202; dilTorence and impartiality. Uolbrook 
 
 Atty. Oen. v. North American L. Ins. v. American F. Ins. Co. 6 Paige, 220; 
 
 Go. 82 N. Y. 172; Bockes v. llathorn, People, AUy. Gen., v. Security L. Ins. 
 
 78 N. Y. 222; PitMurg Carbon Co. v. cfc A. Co. 79 N. Y. 267; lieVan Allen, 
 
 McMillin, 119 N. Y. 46, 7 L. R. A. 46; 37 Barb. 230; Detroit Firxt Nat. Dank 
 
 Whittlesey v. Belaney, 73 N. Y. 571; v. Barnurn Wire & I. Co. 58 Mich. 
 
 Stokes V. New Jersey Pottery Co. 46 N. 315. 
 
 J. L. 237. ' See Lord Thurlow's remarks in 
 
 As the representative of the cred- Ex parte O'Beily, 1 Ves. Jr. 112, and 
 
 itors, In their relation to each other note by Mr. Ilovenden, p. 130.
 
 378 
 
 RECEIVERSHIPS. 
 
 ercise of greater cantion on the part of tlie court than that which 
 relates to tlie appointment of a I'eceiver over corporations, which 
 have not been judicially declared insolvent, or which are not 
 ■clearly so/ The court has sometime's been made the instrument 
 of desii^ning plaintiffs for wresting from the proper and legally 
 constituted corporate authorities the management of the corporate 
 interests, without other basis than the ill will, or disap]iointed 
 ambition of the moving parties. At other times the equitable 
 powers of the court have been illegitimately invoked for the pur- 
 
 • See memorial of the state of South 
 Carolina to Congress in 28 Am. L. 
 Rev. 161. In Indiana where the stat- 
 ute (Rev. Stat. 1881, § 1222) provides 
 that in case the corporation has been 
 dissolved, or is insolvent, or is in im- 
 minent danger of insolvency, or has 
 forfeited its corporate rights, a re- 
 ceiver may be appointed, it has been 
 held that "a court of equity should 
 not ruthlessly take from the legally 
 constituted oflBcers of a corporation 
 the management of its affairs and the 
 property of the corporation and turn 
 it over to the hands of a receiver. 
 Such power should not be exercised 
 by a court of equity except with due 
 care and in a case where it is clearly 
 made to appear that it is for the best 
 interest of the parties interested, and 
 it will not be presumed that a court 
 of equity will exercise such power ex- 
 cept when the exigencies of the case 
 clearly warrant it; and we think un- 
 der our statute the court has such 
 power when it is clearly made to ap- 
 pear that the exigencies of the case 
 demand it." Cf. Supreme Sitting, 
 0. of I. E. V. Baker, 134 Ind. 293, 20 
 L. R. A. 210. In this case the court 
 6ay : "It would seem from the general 
 scope and tenor of the prayer of the 
 complainant in this case that the relief 
 souglit by appellees was a dissolution 
 of the corporation on the grounds of 
 its insolvency and general misman- 
 
 agement of its officers and the ap- 
 pointment of a receiver to wind up its 
 affairs. This it would seem is what 
 the pleader had in mind when he 
 drafted the prayer of the complaint. 
 That a court of equity has no power 
 independently of statute to dissolve 
 an insolvent corporation is well set- 
 tled. The authorities seem to be uni- 
 versal in holding this doctrine. * * * 
 There is no statute in this state au- 
 thorizing a court of equity to dissolve 
 a corporation on 3Uch a proceeding 
 as the one at bar brought on behalf 
 of individual stockholders or share- 
 holders as the appellees are in this 
 case. Hence the action cannot be 
 sustained or regarded as one having 
 for its object the dissolution of the 
 corporation on the grounds of insolv- 
 ency or being in imminent danger of 
 insolvency." On the question of the 
 power of the court in the above case 
 the court say: "A court of equity 
 should not ruthlessly wrest from the 
 legally constituted officers of the cor- 
 poration the management of its affairs 
 and the property of the corporation 
 and turn it over to the hands of a re- 
 ceiver. Such power should not be 
 exercised by the court of equity ex- 
 cept with due care and in a case where 
 it is clearly made to appear that it is 
 for the best interests of the parties in- 
 terested."
 
 RECEIVEKSHIP OF CORPORATIONS. 
 
 379 
 
 pose of bridging over temporary financial embarrassments of the 
 corporation and thus the court is made the unwilHng instrument, 
 through its receiver, of suspending, for the time being, the entire 
 judicial department of the state or government, as to such corpo- 
 ration. On the other hand, sometimes zealous and unreasonably 
 impatient creditors, for inconsiderable amounts, are willing to 
 utterly ruin and sacrifice the property and business interests of 
 corporations, regardless of the rights of other creditors, or the 
 23ublic interests subserved by such corpoi-ations. All these things 
 make it imperative on the part of the court to exercise the great- 
 est judicial caution in the appointment of receivers over corpora- 
 tions, and particularly so where the action involves the manage- 
 ment of the corporate business.' 
 
 ' As a matter of interest in this con- 
 nection it will be observed that the 
 English Court of Chancery, prior to 
 the act of Parliament known as the 
 Railway Companies Act of 1867, was 
 exceedingly averse to appointing a 
 receiver over a railway corporation, 
 and placing the management of its 
 affairs in hiS'hands, basing its refusal 
 upon the following grounds: 
 
 (1) The general disinclination of 
 the court in any case to assume the 
 permanent management of a business 
 or undertaking. 
 
 (2) Where Parliament has imposed 
 upon a corporation the power and 
 duty of operating a public highway 
 in the interest of the public, and the 
 company has assumed the duties of 
 a public carrier of passengers and 
 goods, the judicial branch of govern- 
 ment should well hesitate in assum- 
 ing the duties and responsibilities 
 lodged by the lawmaking power in 
 another body of its own selection. 
 The corporation being wholly unable 
 to delegate or transfer the powers and 
 duties conferred upon it, it was 
 thought to be beyond the power of 
 the court to transfer to itself by oper- 
 ation of law the powers and duties 
 
 of the corporation, to be performed 
 through the instrumentality of its re- 
 ceiver and agent. Gardner v. Lon- 
 don, C. & D. R. Co. L. R. 2 Ch. Div. 
 201. 
 
 The appointment of receivers now, 
 however, is regulated by act of Par- 
 liament. See 38 and 39 Vict. Chap. 
 31. 
 
 There is no statutory authority in 
 California for the appointment of a 
 receiver to manage the business of a 
 corporation pending an action by 
 a private person to determine his 
 rights in the property of the corpora- 
 tion ; and without such authority there 
 is no jurisdiction in the court to make 
 such an appointment. Fischer v. iSan 
 Francisco Super. Ct. 110 Cal. 129. 
 
 A court cannot, in the absence of 
 statutory authority, appoint a receiver 
 to manage the business of a corpora- 
 tion pending an action. Fischer v. 
 San Francisco Super. Ct. supj'a. 
 
 As to the general power and duty 
 of the court to authorize its receiver 
 to continue business, see Vanderbilt v. 
 Central B. Co. 43 N. J. Eq. 669; 
 Moran v. Lydecker, 27 Hun, 582; 
 People v. Atlantic Mut. L. Ins. Co. 15 
 Hun, 84; Atty. Gen. v. Atlantic Mut,
 
 380 
 
 RECEIVERSHIPS. 
 
 § 233. Receiver's powers and duties. 
 
 The general powers and duties of a receiver have previously 
 been considered and only in so far as such powers and duties relate 
 to the administration of corporate property and assets will they 
 be reconsidered in this connectian. As it must frequently happen 
 in receiverships over corporations the court through its receiver 
 is required to take upon itself, pending litigation, the manage- 
 ment of the corporate business, and this necessarily results in en- 
 larging the power of the receiver beyond the requirements in 
 ordinary receiverships where his whole duty is the mere custody 
 and safe-keeping of the property and assets until the final order 
 of the court. 
 
 (a) Power to borkow money. 
 
 A receiver under the direction of the court has the power to 
 borrow money to be expended by him in the necessary repairs of 
 the corporate property,' such as a railway, under his control and 
 
 L. Ins. Co. 77 N. Y. 336; Stnith v. 
 New York Consol. Stage Co. 18 Abb. 
 Pr. 420; Barton v. Barbour, 104 U. S. 
 126, 26 L. ed. 674; Wallace v. Loomis, 
 97 U. S. 146, 24 L. ed. 895; FiscJier v. 
 Tuolumne County Super. Ct. 98 Cal. 
 67; Enkridge v. Bushworth, 3 Colo.. 
 App. 562. 
 
 ' Greenwood v. Algesiras B. Co. 
 [1894] 2 Ch. 205. In this case an ac- 
 tion was brought by the debenture 
 holders and stockholders to foreclose, 
 and application was made to borrow 
 £10,000 to be used in repairing dam- 
 ages to the railway by landslips and 
 other expenses necessary to keep the 
 line open for traffic and to avoid a for- 
 feiture. In Bank of Montreal v. Chi- 
 cago, C. & W. B. Co. 48 Iowa, 518, the 
 order went so far as to authorize the 
 receiver to "put those portions of the 
 said lines already constructed, or 
 partly constructed, in good order and 
 condition," and borrow money and 
 issue certificates therefor. It was held 
 in this case that the power of the re- 
 ceiver should appear in express terms 
 
 or possibly by necessary implication, 
 but that the receiver was not author- 
 ized to issue certificates for labor not 
 performed or material not furnished. 
 
 As to the power to create claims 
 through receivers and make such 
 claims a first lien in precedence of a 
 mortgage, see Wallace v. Loomis, 97 U. 
 S. 146, 24 L. ed. 895; Miltenberger v. 
 Logansport, C. & S. W. R. Co. 106 U. 
 S. 286, 309, 27 L. ed. 117, 126. Cf. 
 Moran v. Lydecker, 27 Hun, 582; 
 and Stanton v. Alabama & C. R. Co. 2 
 Woods, 506. In the last case it appears 
 that it was necessary to borrow money 
 to preserve the road and complete an 
 inconsiderable portion of the road. 
 Eoover v. Mont Clair & O. L. R. Co. 
 29 N. J. Eq. 4; Morison v. Morison, 7 
 DeG. M. & G. 214; Bright v. Mrth, 
 2 Phill. 216; Jerome v. McCarter, 94 
 U. S. 734, 24 L. ed. 136. 
 
 The receivers of the property of 
 a railroad acting under an order 
 of court, giving them power "to 
 continue in the possession and man- 
 agement of the property," in good
 
 RECEIVERSHIP OF CORPORATIONS. 381 
 
 management, and to make the sum so borrowed a first lien upon 
 the net revenues of the company, and its property, in priority to 
 all other charges or liens. In such case there must be an emer- 
 gency and the court will not act upon slight grounds.' 
 
 (b) To PURCHASE ROLLING STOCK. 
 
 The jurisdiction of a court of equity having possession in a 
 foreclosure action, through its receiver, of the property of a rail- 
 road company, to authorize the creation of debts for rolling stock 
 and other purposes, when in its opinion it is necessary so to do to 
 secure the continued and successful operation of the road and to 
 charge the debts so created as a first lien on the mortgaged prop- 
 erty, is firmly established, though formerly a subject of doubt." 
 
 (c) To MAKE NEEDFUL REPAIRS. 
 
 Where a railroad is in the hands of a receiver in a foreclosure 
 proceeding it is not only within the power but the duty of a re- 
 ceiver to make necessary crossings over a railway operated by 
 him.^ In general it may be stated that the receiver has power to 
 
 faith borrowed money necessary for borrow money to be reimbursed out 
 
 its proper and successful management. of the proceeds of sale when such a 
 
 It was held that the claim of the course was necessary. Cf. Kennedy 
 
 lender for repayment from earnings v. St. Paul & P. R. Co. 2 Dill. 448, 
 
 of the road while in the receiver's 5 Dill. 519; Hand v. Savannah & G. 
 
 hands was superior to that of a second- R. Co. 10 S. C. 406; Vilas v. Page, 106 
 
 mortgage bond holder. Ex parte N. Y. 439. 
 
 Carolina Nat. Bank, 18 S. C. 289. ^ Vilas v. Page, 106 N. Y. 439, 451; 
 
 ' The court in Meyer v. Johnston, 53 Wallace v. Loomis, 97 U. S. 146, 24 
 
 Ala. 237, 337, says; "We are not L. ed. 895; Union Trust Co. v. Illinois 
 
 aware of any principle of law or ele- M. R. Co. 117 U. S. 434, 29 L. ed. 
 
 ment of wise policy which would jus- 963; Woodruff v. Erie R. Co. 93 N. Y. 
 
 tify such court after so getting pos- 609. And see Railways, post, § 280. 
 
 session in laying aside its judicial ^ Fort Dodge v. Minneapolis <& St. L. 
 
 character and engaging, however R. Co. 87 Iowa, 389; Newton v. Chi- 
 
 hopeful the scheme in the contempla- ago, R. I. & P. R. Co. 66 Iowa, 422; 
 
 lion of unfinished undertakings, and Oates v. Chicago, St. P. & K. C. R. 
 
 in raising money for this purpose, as Co. 82 Iowa, 528. In Fort Dodge v. 
 
 the parties themselves could not, Minneapolis & St. L. R. Co. supra, 
 
 namely, by setting up liens which shall mandamus proceedings were sustained 
 
 displace other and older liens without against a receiver to compel the maidng 
 
 the con.sent of the persons to whom of necessary repairs, and this too where 
 
 they belong." The court recognized, the receiver was appointed in a foreign 
 
 however, the right of the receiver to state. See Railways, post, § 280.
 
 3S2 RECEIVERSHIPS. 
 
 make tlie ordinaiy and usual repairs to the premises in his charge 
 without application to the court for that purpose,' but if the re- 
 pairs are extensive or out of the ordinary scope, usual and cus- 
 tomary, application should be made for leave, as in passing the 
 accounts objection may be made. 
 
 (d) To COMPROMISE. 
 
 The receiver of an insolvent corporation upon application 
 to the court may be authorized to compromise disputed and 
 doubtful claims against the com^Dany by the allowance of so much 
 of such claims as he may deem just and equitable, if such com- 
 promise is deemed expedient and for the best interest of the cred- 
 itors and shareholders." And generally he may take such steps in 
 winding up an insolvent corporation as shall be necessary to 
 enable him to secure possession of the assets or their value.' But 
 the receiver of a national bank will not be authorized to compro- 
 mise the liability of the stockholders of such bank who have 
 fraudulently j)ut away their property for the purpose of avoiding 
 their liability as stockholders although by such compromise a larger 
 sum can be realized for the fund." 
 
 (e) To SUE. 
 The right of a receiver to sue and recover is, as a rule, measured 
 by the right of the corporation, over whose property he is ap- 
 pointed, to maintain an action. This could not be otherwise for 
 the reason that the appointment does not, in any respect, change 
 the contract relations of the parties as they exist at the time of 
 
 ^Atty. Gen, v. Vigor, 11 Ves. Jr. claims for and against a bank by siir- 
 
 563; Blunt v. Clitherow, 6 Ves. Jr. rendering all the remaining assets in 
 
 799; Thornhill v. ThornJdll, 14 Sim. consideration of money sufficient to 
 
 600; Macartney V. Wahli, Hayes, 29, make a certain dividend, the claims in 
 
 note. But see Wyckoff v. Scofield, 103 favor of the bank appearing to be 
 
 N. Y. 630. valid and enforceable to a much 
 
 * Re Croton Ins. Co. 8 Barb. Ch. 642. greater amount than those against 
 
 * State v. Commercial & Sav. Bank, it. A receiver of a national bank on 
 37 Neb. 174. order of a court of record of com- 
 
 ■^ Be California Nat. Bank Stock- petent jurisdiction may compound all 
 
 holders, .53 Fed. Rep. 38 (see U. S. Rev. bad or doubtful debts. U. S. Rev. 
 
 Stat. § 5234); In Re St. Albans First Stat. § 5234. See Re Piatt, 1 Ben. 
 
 Nat. LVjtjA;, 49 Fed. Rep. 120, it is held 534, Kennedy v. Oibson, 75 U. S. 8 
 
 that a receiver will not be allowed to Wall. 498, 19 L. ed. 476. 
 accept a proposal to compromise
 
 IIECEIVEKSHIP OF CORPORATIONS. 
 
 383- 
 
 Bucli appointment/ And any defense available to a defendant 
 against tlie corporation in an action by it is equally available 
 
 ' The contract relalions remain as 
 before. WilUams v. Babcock, 25 Barb. 
 109. The receiver stands in the 
 position of the corporation with no 
 greater rights; he cannot impeach or 
 disalfirm the lawful and authorized 
 acts of the corporatipn. Eyde v. 
 Lynde, 4 N. Y. 387. In an action in- 
 volving the title to goods purchased by 
 an insolvent the receiver of such in- 
 solvent can assert no better claim than 
 the insolvent could. Head v. Miller, 
 45 Minn. 440. He cannot recover 
 property sold on execution before his 
 appointment. Mcllrath v. Snure, 22 
 Minn. 391. The same defenses avail- 
 able to a stockholder in an action by 
 the company are available to him in 
 an action by the receiver. Wardle v. 
 Hudson, 96 Mich. 432; Vermont & G. 
 R. Co. V. Vermont C. B. Co. 46 Vt, 
 792; Bangs v. Duckinfield, 18 N. Y. 
 697. A receiver has no right of 
 action on an official bond executed by 
 the debtor and his sureties. Coffin v. 
 Bansdell, 110 Ind. 417; Wallace v. 
 Milligan, 110 Ind. 498. In an action 
 by a receiver of a bank the defendant 
 may set up the fraudulent represen- 
 tations of the bank and want of con- 
 sideration as well as if suit had been 
 by the bank. Litchjield Bank v. Peck, 
 29 Conn. 384. The insolvency of the 
 company' does not enable the receiver to 
 recover under circumstances in which 
 the company could not have main- 
 tained a suit, nor to any greater amount. 
 Savage v. Medbury, 19 N. Y. 32. The 
 liability of a stockholder is not in- 
 creased by the insolvency of the com- 
 pany and the appointment of a re- 
 ceiver. Shaughnensy v. Rensselaer 
 Ins. Co. 21 Barb. 605; -Sw^ v. Arm- 
 strong, 146 U. S. 499, 36 L. ed. 1059. 
 Cf. Blount v. Windley, 95 U. 8. 173, 
 
 24 L. ed. 424; Carr v. HamiHon. 12^ 
 U. S. 252. 32 L. ed. 669; Scammon v. 
 Kimball, 92 U. S. 362, 23 L. ed. 483; 
 Venango Nat. Bank v. Taylor, 56 Pa. 
 14; Hade v. McVay, 31 Ohio St. 231, 
 A receiver appointed over a corpora- 
 tion succeeds to all the rights of the 
 company, and he alone can maintain 
 an action for the enforcement of such 
 rights. Davis v. Ladoga Creamery 
 Co. 128 Ind. 222. But in all such suits 
 he must allege authority to sue from 
 the court appointing him. Moriarity 
 v. Kent, 71 Ind. 601; Harrall v, 
 Kent, 71 Ind. 602; Herron v. Vance, 
 17 Ind. 595; Coope v. Bowles, 28 How. 
 Pr. 10; Keen v. Breckenridge, 96 Ind. 
 69; Wynn v. Lord Newboroagh, 3 Bro. 
 C. C. 88; Green v. Winter, 1 Johns. Ch. 
 60: Ward v. Sicift, 6 Hare, 312; Re 
 Merritt, 5 Paige, 125; Merritt v. Mer- 
 ritt, 16 Wend. 405; Davis v. Snead, 
 33 Gratt. 705; Sicaby v. Dickon, 5 Sim. 
 629 ; Battle v. Davis. 66 N. C.252; Screven 
 V. Clark, 48 G-a. 41 ; Glenn v. Busey (D. 
 C.) 3 Cent. Rep. 283, note; but see 
 Cox V. Volkert, 86 Mo. 505. Under 
 the Bank Act (chap. 126) a receiver 
 represents not only the corporation 
 but the creditors, and may therefore 
 avoid any conveyance to which the 
 bank is a party, made in fraud of 
 creditors. Hayes v. Kenyon, 7 R. I, 
 136. A receiver has a right to recover 
 for a conversion of goods made prior 
 to his appointment. 2'erry v. Bam- 
 berger, 14 Blatchf. 234. By authority 
 of law the receiver acts in the place 
 of the directors, but no title to prop- 
 erty is changed. Willink v. Morris 
 Canal & Bkg. Co. 4 N. J. Eq. 377; 
 VanWagoner v. Paterson Gaslight Co. 
 23 N. J. L. 283; Mitford v. Mitford, 9 
 Ves. Jr. 100; Brownv . Heathcote , 1 Atk. 
 162; Clason v. Morris, 10 Johns. 540;
 
 3S4 
 
 RECEIVERSHIPS. 
 
 against a receiver in an action bronglit by him." He may, under 
 the direction of the court, sue for and recover any money due the 
 corporation at the time of his appointment,' or contract obliga- 
 tions existing in its favor. With respect to the right of the re- 
 ceiver to maintain an action against the stockholders of the 
 corporation to recover a statutory liability in favor of creditors, 
 no uniform rule can be established. In some cases the receiver 
 has been permitted to maintain such suits in his official capacity 
 as the representative of the creditors." While in other cases such 
 
 Murray v. Lylburn, 2 Johns. Ch. 443; 
 Moise V. Cfiapman, 24 Ga. 249; Cox 
 V. Volkert, 86 Mo. 505. 
 
 ' The debtor of an insolvent corpo- 
 ration has the same equitable right of 
 BetofE against a claim of the re- 
 ceiver that he had against the cor- 
 poration, but no right to a judgment 
 against the receiver. Van Wagoner 
 V. Paterson Oaslighi Co. 23 N. J. L. 
 •283; Cumberland Bank v. Harm, 18 
 N. J. L. 222; Ryally. Larkin, 1 Wils. 
 155. Buller'sN. P. 181; McDoimld v. 
 Webster, 2 Mass. 498; Colt v. Brown, 
 12 Gray, 233. The remedy of set-oflf 
 has been much enlarged in equity. 
 Thus at law a joint demand cannot 
 be set off against a general one, nor a 
 general demand against a joint one; 
 but equity adopts a different rule 
 ■where, on account of the insolvency 
 of one of the parties, the other is in 
 danger of losing his claim. Generally 
 equity will enforce the right of set-off. 
 ArmMrong v. Warner, 49 Ohio St. 376, 
 17 L. R. A. 466; Loui^ Snyders' Sons 
 Co. V. Armstrong, 37 Fed. Rep. 18; 
 Tardley v. Clothier, 49 Fed. Rep. 337; 
 State Bank at New Brunswick v. Bank 
 of New Brunswick, 3 N. J. Eq. 266. 
 
 * Inasmuch as the rights of the cor- 
 poration to sue are suspended during 
 the pendency of the receivership, the 
 receiver is the only person who can 
 sue to enforce the rights of the cor- 
 poration. Davis V. Ladoga Creamery 
 
 Co. 128 Ind. 222. He must, however, 
 do everything which the corporation 
 would be required to do as a condition 
 precedent to the institution of a suit. 
 Hayes v. Kenyon, 7 R. I. 136. He 
 has authority independent of the 
 statute to sue for all moneys due the 
 company, and for all property im- 
 properly disposed of in violation of 
 the rights of either creditors or stock- 
 holders. Osgood V. Laytin, 48 Barb. 
 463. He may return property ob- 
 tained by the corporation on con- 
 ditional contracts where the company 
 has become unable to pay its current 
 debts in the ordinary course of busi- 
 ness, on complying with the terms of 
 the contract. Sunflower Oil Co. v. 
 Wilson, 142 U. S. 313, 35 L. ed. 1025. 
 
 ^ The court, in Calkins v. Atkinson, 
 2 Lans. 12, held that a receiver of an 
 insolvent corporation may maintain a 
 suit in equity against the stockholders 
 to enforce their stock liability to cred. 
 itors, and may restrain the creditors 
 from prosecuting such suits, on the 
 authority of Story v. Furman, 25 N. 
 Y. 214. Such suit is several and not 
 joint. Rankine v. Elliott, 16 N. Y. 
 377; Aspinwall v. Torrance, 1 Lans. 
 381. See contra, Mathis v. Pridham, 
 1 Tex. Civ. App. 58. 
 
 Ib Stephens v. Bernays, 41 Fed. 
 Rep. 401, it was held that the receiver 
 might maintain a suit for stock liabil- 
 ity against a stockholder of a national
 
 RECEIVERSHIP OF CORPORATIONS. 
 
 385 
 
 actions are prosecuted by the creditors themselves.' When a re- 
 ceiver has been appointed in a suit to reach concealed assets or 
 misappropriated property suit may be broui^ht by the receiver, 
 and not by creditors f and when the receiver is applied for 
 
 bank. Schoonover v. Hinckley, 48 
 Iowa, 82. In McDonald v. Ross- 
 Lewin, 29 Hun, 87, in an action to 
 dissolve an insurance company, it 
 was held that a receiver may assess 
 the members for unassessed losses 
 and bring separate actions against 
 each member to recover the assess- 
 ment. 
 
 The regularity, propriety, and va- 
 lidity of the appointment of a re- 
 ceiver of an insolvent corporation 
 under Minn. Gen. Stat. 1894, ^ 5897, 
 cannot be collaterally attacked in a 
 proceeding by him to enforce the col- 
 lection of a call on unpaid subscrip- 
 tions. Bastirig v. Ankeny (Minn.) 
 6G N.W. 266. 
 
 'In Wincock v. Turpin, 96 111. 135, 
 suit in equity was brought by a re- 
 ceiver of a bank and a depositor 
 against the stockholders of a savings 
 bank to enforce their stock liability 
 and to restrain individual depositors 
 from prosecuting suits at law, and it 
 was held that whenever a statute cre- 
 ates a liability, it is a liability at law 
 unless equitable jurisdiction is given 
 by the statute, and where the statute 
 makes the liability to depositors they 
 alone may sue, and the receiver has 
 no right. The court says, however: 
 " It may be a state of facts might ex- 
 ist which would authorize a court of 
 equity to bring before it all the stock- 
 holders and depositors and determine 
 their rights and adjust equities, 
 marshal the fund and distribute it 
 pro rata." As to the remedy being 
 at law, see Culver v. Third Nat. Batik, 
 61 111. 528; Corwith v. Culver, 69 111. 
 503; Tibballs v. Libby, 87 111. 142; 
 25 
 
 Arem v. Weir, 89 111. 25; McCarthy y. 
 Lavawhe. 89 111. 270; Fuller v. Led- 
 den, 87 111. 310. 
 
 And in Tibballs v. Libby, and Arem 
 V. Weir, supra, the fact that a receiver 
 had been appointed, it was held, did 
 not change the rights of a creditor to 
 sue and recover stock liability. As 
 to equitable jurisdiction in such a 
 case, see Eames v. Doris, 102 111. 350, 
 where it is held that if the liability 
 constitutes a common fund for the 
 benefit of all creditors, then a suit in 
 equity will be sustained, on the au- 
 thority of Merchants' Bank v. Steven- 
 son, 5 Allen, 401; Crease v. Babcock, 10 
 Met. 532; Briggs v. Penniman, 8 Cow. 
 387; Horner v. Henning, 93 U. S. 228, 
 23 L. ed. 879; Low v. Buchanan, 94 
 111. 81; Harpers. Union Mfg. Co. 100 
 111. 225. In some cases it has been 
 held that the liability is concurrent, 
 by suits at law or in equity. Bank of 
 Pmighkcepnie v. Ibbotson, 24 Wend. 
 473; Van Hook v. Whitlock, 3 Paige, 
 409; Norris v. Johnson, 34 Md. 485; 
 Perry Y. Turner, 55 Mo. 418; Adfcins 
 V. Thornton, 19 Ga. 325. 
 
 In Wallace v. Milligan, 110 Ind. 498, 
 it was held that the individual liabil- 
 ity of a member of a partnership was 
 not a firm asset, and in the absence 
 of a statute a receiver of the firm has 
 no right to enforce such liability; that 
 the right exists alone in the creditors. 
 Cf. Ilepublic L. Ins. Co. v. Sivigert, 135 
 111. 150, 12 L. R. A. 328; Jacobson v. 
 Allen, 20 Blatchf. 525; Farnsworth 
 V. Wood, 91 N. Y. 308; Cuykendall v. 
 Corning, 88 N.Y. 129. 
 
 * South Bend Toy Mfg. Co. v. Pierre 
 Fire & M. Ins. Co. 4 B. D. 173.
 
 380 
 
 RECEIVE KSHIPS. 
 
 partly by reason of the insolvency of the corporation he may 
 maintain a snnnnary proceeding entitled in the original action to 
 compel otKcers of tlic corporation to surrender assets which they 
 are charged with concealing.' He may institute proceedings to 
 
 ' Brandt v. Allen, 76 Iowa, 50, 1 L. 
 R. A. 653. 
 
 The fact that the property of a cor- 
 poration has passed into Ihc hands of 
 a receiver does not bar or abate a suit 
 aj^aiust the corporation to recover a 
 demand against it. He can be made 
 a party by personal application tliere- 
 for. Mercantile Ins. Co. v. Jaynes, 87 
 III. 199. 
 
 The provisions of the New York Re- 
 vised Statutes authorizing the receiv- 
 ers of an insolvent corporation to sue 
 for and recover any sum due upon any 
 share of capital stock, is a cumulative 
 remedy merely. Mann v, Carrie, 2 
 Barb. 294. 
 
 The receivers of an insolvent corpo- 
 ration may maintain an action against 
 stockholders and creditors of the com- 
 pany to recover from the stockhold- 
 ers a dividend declared on its capital 
 stock, and received by them, where 
 the complaint avers that such divi- 
 dend impaired the capital; that some 
 of the defendants as creditors are 
 suing stockholders to secure from 
 them such dividends; and that the 
 funds so misappropriated are required 
 to pay the debts of the corporation. 
 Osgood V. Laytin, 48 Barb. 463. 
 
 A receiver of a railroad is as much 
 entitled to recover moneys due upon 
 contracts made with the railway com- 
 pany as with himself. Sunflower Oil 
 Co. V. Wilson, 142 U. S. 313, 35 L. ed. 
 1025. 
 
 A receiver in a mortgage foreclos- 
 ure against a corporation is a mere 
 custodian of the mortgaged property 
 and other property of the corpora- 
 lion. Uarland v. Bankers & M. Teleg. 
 Co. 32 Fed. Rep. 305. 
 
 A suit in equity by a receiver of 
 an insolvent corporation lies against 
 the stockholders and creditors of the 
 corporation, for an accounting of 
 the demands due to the creditors; 
 to ascertain the individual liability of 
 any of the stockholders; to compel 
 payment from the various stockhold- 
 ers of such sums as might be due 
 from ihem towards a fund for the 
 payment of the creditors, and mean 
 time to restrain the creditors from 
 bringing separate suits on the individ- 
 ual liability of the stockholders. All 
 equities may be settled in the one 
 action. Calkins v. Atkinson, 2 Lans. 
 12. 
 
 A receiver of an insolvent corpora- 
 tion has no power to enforce statutory 
 liability of the stockholders, in the 
 absence of a statute so authorizing 
 him. Wallace v. Milligan, 110 lud. 498. 
 
 In an action by a receiver to re- 
 cover from a stockholder an assess- 
 ment upon his unpaid stock, the lat- 
 ter cannot set up as a defense fraud 
 in procuring the appointment of the re- 
 ceiver, or the claim that the corpora- 
 tion is not indebted, these matters 
 being adjudicated in the action result- 
 ing in the appointment of the receiver, 
 Schoonovcr v. Hinckley, 48 Iowa, 82. 
 
 The question whether the receiver 
 of a mutual benefit society should 
 have special leave granted to bring 
 an action against any of its officers, 
 where such question depends upon 
 facts and circumstances not suffi- 
 ciently presented in his report, will 
 be left to the determination of a sin- 
 gle justice upon special application 
 therefor, and will not be determined 
 on a bill by the receiver for instruc-
 
 RECEIVERSHIP OF CORPORATIONS. 
 
 387 
 
 charr^e officers and dii'cetors for a breach of trust,' and may im- 
 peach the fraudulent conveyances of the corporation,' or its ultra 
 vires acts.* 
 
 (f) To REDEEM. 
 
 The receiver of the corporate propert}' which has heen sold 
 under a mortgage foreclosure, where aright of redem])tion exists, 
 lias a right to redeem from such sale where such right existed in 
 the mortgagor,* but if the redemption would not l)e advantageous 
 to the estate he probably would not be compelled to do so.* 
 
 (g) To PAY TAXES. 
 
 Owing to the nature of the ordinary tax lien, and the interest 
 of the public in the payment of general taxes, the receiver has 
 
 tions as to the distribution of the cor- 
 porate assets. Fogg v. Supreme Lodge, 
 U. 0. of G. L. 159 Mass. 9. The 
 dale of tiling the bill fixes the rights 
 of parlies. 
 
 In an action by a receiver against 
 the corporate officers to recover con- 
 verted assets, it is no defense that 
 such assets are not needed for the 
 payment of debts. McCarty's Appeal, 
 110 Pa. 379. 
 
 The receiver appointed in equity to 
 foreclose a mortgage on a railroad 
 cannot maintain a suit lo recover 
 earnings of the road before his ap- 
 poinlraent. Noyes v. Rich, 52 Me. 
 115. 
 
 ' The receiver in his official position 
 has an undoubted right to institute 
 proceedings against directors and offi- 
 cers, for losses sustained by the cor- 
 poration, through breaches of trust. 
 Bank oj Niagara v. Johnaon, 8 Wend. 
 645; Buiterijcorth v. O'Brien. 39 Barb. 
 192; Hayes v. Kenyoa, 7 R. I. 136; 
 Gillet V. Phillipa, 13 N. Y. 114; lie 
 National Funds Assur. Co. L. R. 10 
 Ch. Div. 118. 
 
 In such case he is the representa- 
 
 tive of all the creditors, and not par- 
 ticular creditors. He represents cred- 
 itors tit universi and not ut singuli. 
 Lacomhe v. Milliken, 36 La. Ann. 367; 
 Raymond v. Palmer, 35 La. Ann. 276. 
 
 » Whittlesey v. Belaney, 73 N.Y. 571; 
 Tackerman v. Brown, 33 N. Y. 297; 
 Atty. Oen. v. Qiiardian Mxt. L. Ins. 
 Co. 77 N. Y. 272; Gillet v. Phillips, 
 13 N. Y, 114; Bostwick v. Menck, 40 
 N. Y. 383; McLaren v. Milwartkee 
 First Nat. Bavk, 76 Wis. 491 ; Uam- 
 lin V. Wright, 23 Wis. 491; Habenv. 
 Harshaw, 49 Wis. 379; Viles v. Bangs, 
 36 Wis. 131; Alexander v. Relfe, 74 Mo. 
 495; Weston v. Loyhed, 30 Minn. 221; 
 Schmidlapp v. Carrie, 55 Miss. 597; 
 Faricell v. Meteatf, 63 N. H. 276; Hurt 
 V. Clarke, 56 Ala. 19; Iluiskanip v. 
 Moline Wagon Co. 121 U. S. 310, 30 
 L. ed. 972. 
 
 ^Vail V. Hamilton, 85 N. Y. 453. 
 
 *Cnsserly v. WitherOee, 119 N. Y. 
 522; Cliamherlain v. Greenleaf, 4 Abb. 
 N. C. 178. 
 
 <>Re Oak Pits Colliery Co. L. R. 21 
 Ch. Div. 322; Com. v. Franklin Ins. 
 Co. 115 Mass. 278.
 
 3S8 
 
 RECEIVERSHIPS. 
 
 power and it is his duty to pay the taxes on the receivership 
 pro})erty.' 
 
 (h) To LEASE. 
 
 Independent of statutory power, or express authority from the 
 court a receiver has no power to lease the receivership property.* 
 
 (i) To MORTGAGE. 
 
 Under the authority and direction of the court where it is 
 necessary to preserve the receivership property, the receiver may 
 mortgage the receivership property.' Pie may also bori-ow money 
 under Hke circumstances even against the objection of the lease- 
 holders.* 
 
 (j) To INVEST. 
 
 The ordinary receiver jx^ndente lite has no power to invest or 
 loan the receivership funds, and the exercise of such power is a 
 breach of trust.* 
 
 i Hopkins v. Taylor, 87 111. 436; 
 Union Trust Co. v. Illinois M. R. Co. 
 117 U. S. 434, 29 L. ed. 9G3; Central 
 Trust Co. V. New York C. & N. R. Co. 
 110 N. Y. 850, 1 L. R. A. 260; Pldla- 
 delphia & R. R. Co. v. Co7n. 104 Pa. 
 80. But see as to taxes assessed upon 
 the shares of a corporation, Lion- 
 berger v. Roicse, 43 Mo. 67; Relfe v. 
 Columbia L. Ins. Co. 11 Mo. App. 
 374. 
 
 As to the power to enforce the pay- 
 ment of a franchise tax against a cor- 
 poration in the hands of a receiver, 
 see Com. v. Lancaster Sav. Bank. 123 
 Mass. 493; Georgia v. Atlantic & Q. 
 R. Co. 3 Woods, 434. 
 
 ^McMinnville <£ M. Railroad v. Hug- 
 gins, 3 Baxt. 177; Slate v. McMinnville 
 & M. Railroad, 6 Lea, 369; Chicago 
 Deposit V. Co. v. McNulta, 153 U. S. 
 554, 38 L. ed. 819. 
 
 ^Burroughs v. Oaither, 66 Md. 171; 
 Raht V. Attrill, 106 N. Y. 423. 
 
 *Hanna v. State Trust Co. 70 Fed. 
 Rep. 2, 2 Am. & Eng. Corp. Cas. N. 
 S. 448; Raht v. Attrill, 106 N. Y. 423. 
 The court in Re Regent's Canal Iron- 
 
 works Co. L. R. 3 Ch. Div, 411, 427, 
 say: "There must be something ap- 
 proaching a demonstrable necessity 
 to justify an infringement of the 
 rights of the mortgagees," It re- 
 quires a strong case to be made before 
 the court will disturb contract rights 
 of lietiholders by subordinating such 
 liens to liens for borrowed money. 
 Farmers' Loan tfc T. Co. v. Orape 
 Creek Coal Co. 50 Fed. Rep. 481, 16 
 L. R. A. 603; Laughlin v. United 
 States RolhngSlock Co. 64 Fed. Rep. 
 25; Fidelity Ins. T. & S. D. Co. v. 
 Roanoke Iron Co. 68 Fed. Rep. 623; 
 Snively v. Loomis Coal Co. 69 Fed. 
 Rep. 204; Hooper v. Central Trust Co. 
 81 Md. 509. Cf. Wallace v. Loomis, 
 97 U. S. 146, 24 L. ed. 895; Fosdick v. 
 Schall, 99 U. S. 235, 25 L. ed. 339; 
 Barton v. Barbour, 104 U. S. 126, 26 
 L. ed. 674; Miltenberger v. Logansport, 
 C. & S. W. R. Co. 106 U. S. 286, 27 
 L. ed. 117; Union Trust Co. v. Souther, 
 107 U. S. 591, 27 L. ed. 488. 
 
 ''Utica Ins. Co. v. Lynch, 11 Paige, 
 520. But see Atty. Gen. v. North 
 American L. Ins. Co. 89 N. Y. 94.
 
 KECEIVEUSHIP OF CORPOR/VTIONS. 389 
 
 (k) To CONTKACT. 
 
 The receiver, being authorized by the court in the general or a 
 special order, lias power to contract, and a receiver of a railroad 
 company who is made manager thereof has implied power to 
 make sucli reasonable contracts as are necessary to the proper 
 management of the trust.' 
 
 (1) To SELL. 
 
 A sale made in strict conformity to the terms prescribed by the 
 order or deci'ee of court will not, as a general rule, be set aside un- 
 less it plainly appears that the property was sold for an inade- 
 quate price, or unless there has been a mistake or surprise of 
 some kind, or an omission of duty, or misconduct, or fraud on the 
 part of the receiver, or fraud on the part of the purchaser. What 
 will be sufficient to justify the court in refusing confirmation of 
 a sale depends on the facts and circumstances of each particular 
 case.* The purchaser at a receiver's sale acquires no title to the 
 property until the sale has been ratified by the court.^ A re- 
 ceiver in making a sale retains a lien on the property for any un- 
 paid balance of the purchase money.* The court ma}^, as a con- 
 dition, order the property to be sold at not less than a given price.' 
 There is no warranty of title, express or implied, in a receiver's 
 sale, and the purchaser takes only tiie title which the corporation 
 had to the property. The general doctrine applicable to trustees 
 applies to receiverships which prevents the receiver on the 
 grounds of public policy from becoming a purchaser at his own 
 sale.* 
 
 ^Jourdan v. Long Island R. Co. 6 N. are made in the interests of all parties 
 
 Y. S. R. 89; Central Trugt Co. v. concerned. 
 
 Wabash, St. L. dt F. R. Co. 52 Fed. *See preceding notes, and preceding 
 
 Rep. 908. case as lo vvliat constitutes defective 
 
 A receiver represents and stands in notice of sale and other requisites of 
 
 the place of the corporation and can such notice. Cf. Atty. Qen. v. Con- 
 
 enforce only such contracts and rights tinentdl L. Ins. Co. 94 N. Y. 199. 
 
 as the corporation could enforce. ^Florida v. Anderson, 91 U. S. 6G7, 
 
 Greene v. Sprague Mfg. Co. 52 Conn. 23 L. ed. 290; State v. Jacksonville, P. 
 
 830; Russell v. Bristol, 49 Conn. 251; d; M. R. Co. 16 Fla. 708. 
 
 Coope V. Bowles, 42 Barb. 87. ^Mcllhenny v. Bim, 80 Tex. 1. 
 
 ^Belfoi-d V. Mawcatty (Md.; 2 Am. & ojeicett v. Miller, 10 N. Y. 402; 
 
 Eng. Corp. Cas. N. 8. 477. In such Ecrrick v. Miller, 123 Ind. 304; Titker- 
 
 cases the sales are made by the court ington v. Ilodge, 81 Ky. 2S6. 
 through the receiver as its agent and
 
 390 
 
 EECElVEllSlUrS. 
 
 (m) To MAKE ASSESSMENTS. 
 
 The court may make an assessment after the appointment of a 
 receiver for an insolvent mutual tire insurance company, and or- 
 der the same to be levied upon both deposit and premium notes 
 for the proportionate share of losses and expenses which occurred 
 during the term of insurance, and such assessments may cover 
 interest, possible losses by reason of uncollectible assessments, and 
 a sutlicient amount to compensate the receiver and pay all ex- 
 
 penses. 
 
 ^ Davis V. Shearer, 90 Wis. 250; 
 Davis V. Parclier, 82 Wis. 495 ; Jones 
 V. Lisson, 6 Gray, 296; Co7n. v. Mas- 
 sachusetts Mut. F. Ins. Co. 112 Mass. 
 116; Wardle v. Townsend, 75 Mich. 
 385, 4 L. R. A. 511; Savage v. Med- 
 bury, 19 N, Y. 34; People's Equitable 
 Mut. F. Ins. Co. V. Babbitt, 7 Allen, 
 235; Traderx' Mut. F. Ins. Co. v. 
 Stone, 9 Allen, 483; Parker v. Stough- 
 tonMill Co. 91 Wis. 174. 
 
 In such case the decree making the 
 assessment is conclusive on the mem- 
 bers or policy holders of the defunct 
 company unless attacked in a direct 
 proceeding, notwithstanding they are 
 not present when the decree is ren- 
 dered. Haukins v. Clean, 131 U. S. 
 319, 33 L. ed. 185; Lycoming F. Ins. 
 Co.v. Langley, 62 Md. 211; Band. McJST. 
 & Co. V. Mutual F. Ins. Co., Parker, 
 58 111. App. 528; Parker v. Sloughton 
 Mill Co. 91 Wis. 174; Great Western 
 Tdeg. Co. v. Burnham, 79 Wis. 47. 
 
 A court appointing a receiver of a 
 mutual insurance company exercises 
 at its discretion the power of the board 
 of directors of such a company, as 
 well as the additional authority con- 
 ferred by statute. Band, McN. tC Co. 
 V. Mutual F. Ins. Co., Parker, 58 111. 
 App. 528. 
 
 The propriety of the amount of an 
 assessment ordered by the court ap- 
 pointing a receiver of an insolvent in- 
 surance corporation cannot be ques- 
 
 tioned, in an action by the receiver to 
 collect the assessment. Band, McN. & 
 Co.v. Mutual F. Ins. Co., Parker , supra. 
 
 An order authorizing a receiver of 
 a mutual insurance company to levy 
 an assessment equal in amount to all 
 other assessments theretofore made 
 does not include penalties on other 
 assessments, but is limited to the 
 amounts of the assessments them- 
 selves. Capital City Mut. F. Ins. Co. 
 V. Boggs, 172 Pa. 91. 
 
 An order authorizing a receiver of 
 a mutual insurance company, ap- 
 pointed on the relation of the attor- 
 ney general, to make a specified as- 
 sessment, is conclusive upon a policy 
 holder as to the validity and the 
 amount of the assessment, but not as 
 to the liability to pay, so far as it de- 
 pends upon matters personal to him- 
 self. Capital City Mut. F. Ins. Co v. 
 Boggs, supra. 
 
 The receiver in insolvency of a 
 building association is the proper per- 
 son to ascertain the amount of losses 
 of the association, and make an assess- 
 ment on the members to meet the 
 same. Eversmann v. Schmitt, 53 Ohio 
 St. 174, 29 L. R. A. 184. 
 
 As to the power and method of 
 making assessments in mutual fire 
 insurance matters, see Davis v. Shear- 
 er, 90 Wis. 250. 
 
 Where the assessment is based on a 
 subscription procured by fraudulent
 
 RECEIVERSHIP OF CORPORATIONS. 
 
 391 
 
 (n) Duty to appeal. 
 
 It i^not the duty of a receiver of an insoU^ent corporation to 
 take an appeal in the interest of one set of stuckhuiders against 
 the interest of another set of stockliolders.' 
 
 § 234. Liability of receiver. 
 
 (a) OiSr HIS CONTRACTS. 
 
 The contracts of a receiver are in all cases to he made npon the 
 general or express orders of the court and are, in elfect, the con- 
 tracts of the coui't made through the agency of the receiver. 
 TJiis heing the case, the court will in all cases see that these con- 
 tracts are performed, and it is not material that they may subse- 
 quently appear to have been improvidently made.^ He is also 
 liable for the loss of funds placed by him in a bank, where the 
 bank fails during the period of deposit.^ It would seem, how- 
 
 representations, see Howard V. Turner, 
 155 Pa. 349. 
 
 The statute of limitations does not 
 commence to run until an assessment 
 has been made. Re Slater Mut. F. 
 Ins. Co. 10 R. I. 42; Biyelow v. Libby, 
 117 Mass. 359; Smith v. Bell, 107 Pa. 
 Sb2;Wardle v. Hudson, 96 Mich. 432. 
 
 It has been held the power to make 
 an assessment of this nature does not 
 depend upon an order of court but up- 
 on the facts forming the basis of the 
 assessment. The court sanctions and 
 directs the receiver to act and in doing 
 so he acts in a ministerial capacity. 
 Downs V. Hammond, 47 Ind. 131; 
 Manlove v. Burger, 38 Ind. 211; Bangs 
 V. Duckinfield, 18 N. Y. 592; Sands v. 
 Sweet, 44 Barb. 108; Thomas v.Whal- 
 Ion, 31 Barb. 112; Wardle v. Towmend, 
 75 Mich. 385, 4 L. R. A. 511. Cf. 
 Davis V. Par elver, 82 Wis. 488. 
 
 As to necessary allegations in estab- 
 lishing a case for an assessment, see 
 Williams v. Babcock, 25 Barb. 109; 
 Jackson v. Roberts, 31 N. Y. 304 ; Sands 
 V. Sanders, 28 N. Y. 416; Bangs v. 
 Duokinfield, 18 N. Y. 592. 
 
 ' Strauss v. Carolina Interstate Bldg. 
 &L. Asso. (N. C.) 24 S. E. 116. 
 
 ^Dow V. Memphis & L. R. R. Co. 20 
 Fed. Rep. 260; Re United States Roll- 
 ing- Stock Co. 57 How. Pr. 16; Texas 
 & St. L. R. Co. V. Rust, 17 Fed. Rep. 
 275. A receiver of a railroad, until 
 the contrary is shown, will be pre- 
 sumed to have authority to make con- 
 tracts granting special transportation 
 rates. Bayles v. Kansas P. R. Co. 13 
 Colo. 181, 5 L. R. A. 480. 
 
 The failure to obtain an order of 
 the court for a contract by a receiver 
 will not defeat liability on the con- 
 tract, where the work under it is di- 
 rected to be done by the court with- 
 out any formal order, and the validity 
 of a claim thereon subsequently de- 
 clared by the court, with full knowl- 
 edge of the facts. Oirard L. Ins. A. 
 & T. Co. V. Cooper, 162 U. S. 529, 40 
 L. ed. 1062; Wabash, St. L. & P. R. 
 Co. V. Central Trust Co. 22 Fed. Rep. 
 209; Jay v. DeGroot, 2 Hun, 205. 
 
 '^ Ricks V. Broyles, 78 Ga. 610; State, 
 OAlins, V. Qooch, 97 N. C. 186. See 
 also Knight v. Plymouth, 1 Dick. 120.
 
 392 
 
 RECEIVERSHIPS. 
 
 ever, that this rule is too harsh where the receiver exercises care 
 in the selection of a bank of dej^osit. In the very nature of 
 tilings a receiver is not supposed to liave facilities for the safe 
 keepino" of the funds adequate to his demands in many cases 
 Besides it woukl not be in accordance with the ordinary custom 
 of prudent business men. In all cases the bank should be desig- 
 nated by the court, that the receiver may have proper protection 
 against loss. Money deposited with a corporation in trust does 
 not pass to the receiver of the corporation, and he does not be- 
 come liable therefor.' 
 
 ^Importers' & T. Nat. Bank v. Pet- 
 ers, Vl'i N. Y. 272; People v. American 
 Loan & T. Co. 2 App. Div. 193; 
 People V. Clfy Bank, 96 N. Y. 32; 
 Arnot V. Bingham, 55 Hun, 553; People 
 V. American Loan & T. Co. 37 N. Y, 
 Siipp. 780; People v. Bank of Dans- 
 ville, 39 Hun, 187; Chase v. Petroleum 
 Bank, 66 Pa. 169; Kinsela v. Cataract 
 City Bank, 18 N. J. Eq. 159; Peak v. 
 Ellicott, 30 Kan. 156; Kinney v. Paine, 
 68 Miss. 258. The trust relationship 
 must be established, however. Jones 
 V. KHbreth,ASi Ohio St. 401; Anhcmer- 
 Busch Brew. Asso. v. Morris, 36 Neb. 
 31; Griffin v. Chase, 36 Neb. 328; 
 Kimball v. Oaffoi'd, 78 Iowa, 65. 
 
 It has been held, however, that 
 where a trust relationship is not es- 
 tablished between the claimant and 
 the corporation, and no fraud is shown, 
 the property or its proceeds must be 
 traced to the hands of the receiver, 
 and if this is not done the simple re- 
 lation only of debtor and creditor ex- 
 ists. Atkinson v. Rochester Printing 
 Co. 114 N. Y. 168; People v. Me- 
 chanics' & T. Sav. Inst. 92 N. Y. 7; 
 People V. Merchants' & M. Bank, 78 
 N. Y. 269; Butler v. Sprague, 66 N. 
 Y. 392; Sherwood v. Milford State 
 Bank, 94 Mich. 78; Re North River 
 Bank, 60 Hun, 91 ; New York Breioeries' 
 Co. V. Uiggins, 79 Hun, 250; Qrant v. 
 
 Walsli, 81 Hun, 449: Moore v. Wil- 
 liams, 62 IIuu, 55; Akin v. Jones, 93 
 Tcnu. 3r)3, 25 L. R. A. 523; Commer- 
 cial Nat. Bank v. Armstrong, 148 U. 
 S. 50, 37 L. ed. 363; Anhamer-Busch 
 Brew. Asso. v. Clayton, 56 Fed. Rep. 
 759; Booth v. Wells, 42 Fed. Rep. 11; 
 Southern Development Co, v. Houston 
 <fe T. C. R. Co. 27 Fed. Rep. 344; 
 First Nat. Bank v. Datis, 114 N. C. 
 343; Commercial & F. Nat. Bank v. 
 Davis, 115 N. C. 226; McLain v. Wal- 
 lace, 103 Ind, 562; Freiberg v. Stod- 
 dard, 161 Pa. 259; Re Lebanon Trust 
 & 8. D. Bank's Assigned Edate, 166 
 Pa. 622; Wilson v. Coburn, 35 Neb. 
 530; Billingsley v. Pollock, 69 Miss. 
 759; Louistille Bkg. Co. v. Paine, 67 
 Miss. 678; Otis v. Gross, 96 111. 612. 
 
 The ordinary bank depositor is a 
 simple contract creditor. People v. 
 St. Nicholas Bank, 77 Hun, 159; People 
 V. Mechanics' & T. Sav. Inst. 92 N. 
 Y. 7. 
 
 The character of the depositor does 
 not change the relationship of the 
 parties, as where the court makes a 
 deposit {Otis v. Gross, supra), or a city 
 or county. Multnomah County v. 
 Oregon Nat. Bank, 61 Fed. Rep. 912; 
 Spokane County v. Clark, 61 Fed. 
 Rep. 538; Re Plankinton Bank, 87 
 Wis. 378.
 
 RECEIVERSHIP OF CORPOllxVTIONS. 
 
 393 
 
 (b) For rent. 
 
 The receiver will be liable for the rent of all leasehold pretnises 
 taken possession of and retained by him, but he has an election, 
 as we have elsewhere seen, whether he will retain such premises 
 and pay the rents according to the covenants, and has a reason- 
 able time in which to make such election.' If it is seen that the 
 leasehold is benciicial to the estate the court may properly au- 
 thorize the receiver to retain the property. On the contrarj^ if 
 the leasehold, at the stipulated rental, is not beneficial to the estate 
 the court will order the lessor to retake his property unless he is 
 willing to make the rentals such as the estate can afford to pay." 
 If the receiver retains the leased property he is bound to pay the 
 
 ^Re Oak Pits Colliery Co. L. R. 21 
 Ch. Div. 822; Re Brown, Bayley, & 
 Dixon, L. R. 18 Ch. Div. 649; People 
 V. Universal L. Ins. Co. 30 Hun, 143; 
 Woodruff V. Erie B. Co. 93 N. Y. 609; 
 Com. V. Franklin Ins. Co. 115 Mass. 
 278. See Miltenherger v. Logansport, 
 C. <& 8. W. R. Co. 106 U. S. 28(5, 27 
 L. ed. 117; Turner v. Lu/innapolis, B. 
 (& W. R. Go. 8 Biss. 527; Central Trmt 
 Co. V. Wabash, St. L. & P. R. Co. 46 
 Fed. Rep. 156; Stockton v. Meclianics' 
 & L. Sav. Bank, 33 N. J. Eq. 163; 
 Kneelarid v. American Loan & T. Co. 
 136 U. S. 89, 34 L. ed. 379; Quincy, 
 M. & P. R. Co. V. Humphreys, 145 U. 
 S. 83. 36 L. ed. 632; St. Joseph & St. 
 L. R. Co. V. Humphreys, 145 U. S. 
 105, 36 L. ed. 640; Qaither v. Stock- 
 bridge, 67 Md. 223. See People v. Na- 
 tional Trust Co. 83 N. Y. 283. 
 
 Permission of a receiver for the 
 temporary occupation of property 
 lea.sed to the corporation will not con- 
 stitute an adoption of the lease by the 
 receiver so as to bind the assets in his 
 hands. Tradesman's Pub. Co. v. Knox- 
 ville Car-Wheel Co. 95 Tenu. 634, 31 
 L. R. A. 593. 
 
 « Woodruff V. Erie R. Co. 93 N. Y. 
 609; Frank v. New York, L. E. & W. 
 U. Co. 123 N. Y. 197; Meyer v. West- 
 
 ern Car Co. 102 U. S. 1, 26 L. ed. 59; 
 Brown v. Toledo, P. <& W. R. Co. 35 
 Fed. Rep. 444; Central Trust Co. v. 
 Wabash, St. L. & P. R. Co. 34 Fed. 
 Rep. 259; Farmers' Loan & T. Co. v. 
 Chicago & A. R. Co. 42 Fed. Rep. 6; 
 Farmers' Loan & T. Co. v. Northern 
 P. R. Co. 58 Fed. Rep. 257; Thomas v. 
 Western Car Co. 149 U. S. 96, 37 L. 
 ed. 663; Clyde v. Richmond & D. R. 
 Co. -63 Fed. Rep. 21. See Day v. 
 Postal Teleg. Co. 66 Md. 354 ; People v. 
 Universal L. Ins. Co. 80 Hun, 142; 
 Dawson Mfg. Co. v. Brunswick <6 A. 
 R. Co. 51 Ga. 136. 
 
 Coe v. New Jersey M. R. Co. 27 N. 
 J. Eq. 37, 30 N. J. Eq. 21. Where a 
 contract of an insolvent corporation 
 is not of such nature that the corpo- 
 ration could have been compelled to 
 specifically perform it a receiver has 
 a right to terminate it where it is to 
 the interest of creditors. Scott v. 
 Rainer Power & R. Co. 13 Wash. 108. 
 2 Am. & Eng. Corp. Cas. N. S. 
 401. 
 
 The appointment of a receiver of a 
 corporation at the instance of a cred- 
 itor does not release it from a contract 
 for the employment, at a ti.xed price. 
 of otlicers for a year, beginning at Iho 
 date uix>D which the receiver was ap-
 
 39i 
 
 RECEIVERSHIPS. 
 
 contract rental unless otherwise changed, if the rentals are not 
 exorbitant.' 
 
 (c) For intkrest. 
 A receiver will be liable for interest npon the receivership 
 fund in liis hands if he uses the same for his own personal 
 benefit.'^ 
 
 (d) FOK DEBTS INCURRED. 
 
 A receiver is not personally liable for debts or damages in- 
 curred in the management of the receivership property, but only 
 
 pointed. Lenoir v. Linville Imvrov. 
 Co. 117 N. C. 471. 
 
 The lessor of preaiisesto a bank for 
 a specified term under a lease aulhor- 
 iziuti; him to relet the premises as 
 agent of the bank if they become va- 
 cant daring the term for nonpayment 
 of rent or otherwise may recover from 
 a receiver in insolvency of such bank 
 the difiference between the agreed rent 
 and that obtained by the lessor from 
 one to -whom he relet the premises 
 after nonpayment of rent. People v. 
 St. Nicholas Bank, 3 App. Div. 544. 
 
 Receivers who permit work on a 
 building which was in course of 
 erection when the receivership com- 
 menced, to continue without inter- 
 ruption, may be liable for the work so 
 done according to the terms of the 
 contract under which it was done. 
 Oirard L. Ins. A. & T. Co. v. Cooper, 
 162 U. S. 529, 40 L. ed. 1062. 
 
 A claim presented to the receiver 
 of an insolvent corporation for rent of 
 premises, held by the corporation un- 
 der a lease for a term of years, ac- 
 cruing after the insolvency of the cor- 
 poration, should be allowed, and paid 
 pro rata with claims of other creditors. 
 Chicago Fire Place Co. v. Tait, 58 111. 
 App. 293. 
 
 A lessor of a banking room for a 
 term of years to a national bank can 
 recover from the bank or its receiver 
 
 for rent due, under the lease, subse- 
 quent to the insolvency of the bank, 
 and after the receiver has abandoned 
 the leased property. Hartford De- 
 posit Co. V. Chemical Nat. Bunk. 58 
 III. App. 256; Quincy, M. & P. R. Co. 
 V. Humphreys. 145 U. S. 82, 36 L. ed. 
 632. But see Fidelity Safe Deposit & 
 T. Co. V. Armstrong, 35 Fed. Rep. 567; 
 Deane v. Caldwell, 127 Mass. 242; 
 United States v. Kno.v, 111 U. S. 784, 
 28 L. ed. 603. 
 
 ^Peoria <fe P. JJ. R. Go. v. Chicago, 
 P & 8. W. R. Co. 127 U. S. 200, 32 
 L. ed. 110; Thomas v. Peoria cfe R. I. 
 R. Co. 36 Fed. Rep. SOS; Brown v. 
 Toledo, P. (& W. R. Co. 35 Fed. Rep. 
 444. 
 
 ^ Schwartz v. Keystone Oil Go. 153 
 Pa. 283. "It was error, plainly, to 
 charge the receiver interest, as he is 
 not chargeable with it as of course, 
 but only under special circumstances, 
 to be shown by him who would 
 charge him." Crawford v. Fickey 
 (W. Va.) 2 Am. & Eng. Corp. Cas. 
 N. S. 417; Richardson v. Hoyt, 60 
 Iowa, 70; Radford v. Folsom, 55 Iowa, 
 276; Daniel v. Wharton, 90 Va. 584; 
 Darby v. GUligan, 37 W. Va. 59; 
 Atty. Gen. v. North American L Ins. 
 Co. 89 N. Y. 107; Re Com. F. Ins. Co. 32 
 Hun, 78: Utica Ins. Go. v. Lynch, 11 
 Paige, 520; Hinckley v. Oilman, C. it 
 S. R. Co. 100 U. S. 153. 25 L.ed. 501.
 
 RECEIVERSHIP OF CORPORATIONS. 
 
 ^95 
 
 for personal niiscoiidnct or neglect.' He lias no i-i)j:;lit, however, 
 to make unauthorized contracts and therebj' bind tlie trust, and if 
 he does so he will be personally liable.^ 
 
 (e) Personal liability for torts. 
 As a rule the receiver is not personally liable for the injuries 
 and damages caused by his agents, employees, and servants, except 
 where the wrong can be imputed to him personally,'' or where he 
 commits a wrongful act outside of the scope of his authority,* or 
 beyond the jurisdiction of the court appointing him.* 
 
 (f) Official liability for torts and damages. 
 The receiver, however, is liable, in his ofhcial capacity, for 
 damages caused by the negligence of his agents and employees in 
 the management of the receivership property." The scope of 
 liabiHty of the receiver in such case is, as a rule, measured by the 
 scope of the liability of the corporation itself under similar cir- 
 cumstances.'' In case of a railroad, while the receiver is exer- 
 
 1 Texas & P. R. Co. v. Cox, 145 U.S. 
 593, 36 L. ed. 829; McNulta v. Loch- 
 ridge, 141 U. S. 327, 35 L. ed. 796; 
 Dateii2)oit v. Alabama & C. B. Co. 3 
 Woods, 519; Re Home Provident 
 Safely Fund Asso. 129 N. Y. 288; 
 Farmers Loan & T. Co. v. Central R. 
 Co. 3 McCrary, 181; Vilas v. Page, 106 
 N.Y. 439; Hopkins v. Connel, STenn. 
 Cb. 333; Cardot v. Barney, 63 N. Y. 
 281; Davis v. Duncan, 19 Fed. Rep. 
 477; Woodruff V. Jeweit, 37 Ilun, 205, 
 115 N. Y. 287; Thompson v. Scott, 4 
 Dill. 508; Eddy v. Poicell, 49 Fed_. 
 Rep. 814; Vanderbilt y. Central R. Co. 
 43 N. J. Eq. 669. 
 
 ' Rogers v. Wendell, 54 Hun, 540; 
 Ryan v. Rand, 20 Abb. N. C. 313. 
 Cf. New V. mcoll, 73 N. Y. 127. 
 
 *Meara v. Holbrook, 2 Ohio. St. 137. 
 
 * Curran v. Craig. 23 Fed. Rep. 101. 
 
 » Kain v. Smilfi, 80 N. Y. 458. 
 
 ' Little V. DuSKuberry, 46 N. J. L. 
 614 ; Cardot v. Barney, 63 N. Y. 281 ; 
 Lyman v. Central Vermont Li. Co. 59 
 Vt. 167; Mcara v. Holbrook, 20 Oluo 
 
 St. 137; Davis v. Duncan, 19 Fed. Rep. 
 477; Ericin v. Davenport, 9 Heisk. 45; 
 Thornton v. Llighland Ave. R. Co. 94 
 Ala. 353; Blumenthal v. Brainard, 38 
 Vt. 402; Newell v. Smith, 49 Vt. 255; 
 Paige v. Smith, 99 Mass. 395; Ryan v. 
 Hays, 63 Tex. 43. 
 
 ' Central Trust Co. v. Sloan, 65 
 Iowa, 655; Sloan v. Central Loioa R. 
 Co. 62 Iowa, 728; Fidlerton v. Fordyce, 
 121 Mo. 1; Melendy v. Barbour, 78 
 Va. 544; Pope's Case, 30 Fed. Rep. 169; 
 Winbourn's Case, 30 Fed. Rep. 167; 
 Davis V. Duncan, 19 Fed. Rep. 477; 
 Ex parte Brown, 15 S. C. 518; Meara 
 V. Holbrook, 20 Ohio St. 137; Klein v. 
 Jetcett, 26 N. J. Eq. 474; Cowdrey v. 
 Galveston, H. d U. R. Co. 93 U. B. 353, 
 23 L. ed. 950; LAttlev. Dusenberry, 46 
 N. J. L. 614; Llolbrook Y . American F. 
 Ins. Co. 6 Paige, 320; Brown v. Brown, 
 71 Tex, 355; Brown v. Wabash R. Co. 
 90 111. 297. But see Henderson v. 
 Walker, 55 Ga. 481; Campbell v. Cook, 
 86 'Wx. 630; Turner v. Cross, 83 Tex. 
 318, 15 L. R. A. 303; Texas & P. R.
 
 396 RECEIVERSHIPS. 
 
 cising the franchises of the company and operating the road in 
 his official capacity, he is subject to the same rules of liability as 
 apply to the company itself when it is in the exercise of said 
 franchises.' 
 
 The general liability of the receiver in his official capacity for 
 the contracts and torts of a corporation which antedate the re- 
 ceiver's appointment and where tlie corporation has been dis- 
 solved, is determined in various ways in dififerent courts, according 
 to the equities and priorities of the claimants and the practice of 
 the courts. As the receiver cannot be compelled to complete the 
 contracts of the corporation it follows that he, in his official 
 capacity, cannot be made liable in damages for nonfulfillment.* 
 
 (g) Extent of liability. 
 
 As a rule, the receiver's rights and liabilities are coextensive 
 with the rights and liabilities of the corporation over whose prop- 
 erty he is appointed, except where the corporation has committed 
 acts in violation of law and in fraud of creditors. In w^hich case 
 it must clearly appear that he has a right to act in behalf of 
 creditors to repudiate the acts complained of.* 
 
 (li) Liability for loss in management. 
 
 A receiver is not liable for loss in the management of business 
 of which he has charge as receiver, unless the loss grows out of 
 
 Co. V. Cox, 145 U. S. 503, 36 L. ed. v. We.tern N. C. R. Co. 99 U. S. 191, 
 
 829. 25 L. ed. 319; Brown v. Warner, 78 
 
 • McNulta V. Lockridge, 137 111. Tex. 543, 11 L. R. A. 394. 
 
 270; McNulta v. Ensch, 134 111. 46. ^ Rmyell v. Bristol. 49 Conn. 251; 
 
 Proceedings against the receiver in Greene v. Sprague Mfg. Co. 52 Conn, 
 
 his oflicial capacity for the wrongs of 330; Ci^ope v. Botcles, 43 Barb. 87; 
 
 bis employees, are in the nature of Tecger v. Wallace, 44 Pa. 294; Man- 
 
 proceedings in rem, and render the love v. Burger, 38 Ind. 211. 
 
 property in bis bands liable for coin- A note executed by a corporation 
 
 pensation. Davis v. Duncan, 19 Fed. to one wbo bas previously given a 
 
 Rep. 477; Farmers Loan <& T. Co. v. cbeck drawn to tbe individual order 
 
 Central Railroad, 7 Fed. Rep. 539; of iis vice president, wbicb bas been 
 
 Rogers v. Wheeler, 43 N. Y. 598; Bar- used by tbe corporation for its own 
 
 ter V. Wheeler, 49 N. II 9. purposes, is a valid claim against tbe 
 
 ' People V. Olohe Mut. L. Ins, Co. 91 corporation or a receiver appointed in 
 
 T^.Y .11 A.; Com. V. Franklin L. Ins. Co. proceedings for its dissolution. People 
 
 l\5 ^l&ss. 218; Ellis V. Boston. H. & E. y. American 8. B. Ins. Co. 3 App. 
 
 R. Co. 107 Mass. 1; Southern Exp. Co. Div. 504.
 
 RECEIVERSHIP OF CORPORATIONS. 397 
 
 some act of his which he is not authorized to perform.* "While 
 it is a subject of criticism, jet it seems that a receiver may sell 
 receivership property to a company of which he is the manager 
 at the highest market price, and not be required to account for 
 profits.' But he will not be permitted to speculate in the stock 
 of the corporation over which he is appointed.' 
 
 (1) Liability on order of court. 
 
 Where the court makes an order directing the receiver to pay 
 a fixed sum of money to a certain person, it is in effect a personal 
 judgment upon which the receiver is personally liable.* 
 
 § 235. Suits by receiver of a corporation. 
 
 (a) Generally. 
 We have heretofore considered the power of the receiver to 
 institute and carry on suits generally,' and briefly in this con- 
 nection revert to the subject in connection with corporations. A 
 receiver of an insolvent corporation succeeds to the title, prop- 
 erty, effects, and rights of action, when so invested by the 
 statute or decree of court appointing him, and as a rule, is the 
 proper party to enforce them by legal proceedings. When the 
 officers of a corporation fail to discharge the important duties 
 and trusts imposed upon them, they become liable for the corpo- 
 rate losses resulting therefrom.' Independent of statutory power, 
 
 ^ Chandler Y. Cushing-Toung Shingle v. Balis, 72 Mo. 439; Bent v. Priest, 
 
 Co. 13 Wash. 89. 86 Mo. 482; Slaltery v. St. Loxm & N. 
 
 ^ CJiandler \.Cushing-Young Shingle 0. Transp. Cb. 91 Mo. 217; Lonimlle 
 
 Co. 13 Wash. 89. He cannot, how- City Nat. Bank v. Loving, 82 Ky. 370; 
 
 ever, internaeddle in questions affect- Badges v . New England Screw Co. 1 R. 
 
 ing the rights of parlies in the dis- I. 312; Hayes v Kenyan, 7 R. I. 136; 
 
 position of property in his hands. Smith v. IJurd, 12 Met. Sll; Atty. Gen. 
 
 Hesing v. Atty. Gen. 104 111. 292; v. Ulica Ins. Co.2 Hohns.Ch.mi; Hun 
 
 Blatchfoi'd v. Newberry, 100 111. 484. v. Gary, 82 N. Y. 70; Horn Silver Min. 
 
 ^ Olmstead v. Distilling & C. F. Co. Co. v. Ryan, 42 Minn. 198; Brouicer 
 
 67 Fed. Rep. 24, 2 Am. & Eug. Corp. v. Hill, 1 Sandf. 629; New Orleans 
 
 Cas. N. S. 392. Gaslight Co. v. Bennett, 6 La. Ann. 
 
 * Crawford v. Fickey (W. Va.) 2 457; Gindrat v. Dane, 4 Cliff. 260; 
 Am. & Eng. Corp. Cas. N. S. 417; Gaslight & Bkg. Co. v. Hayncs, 7 La. 
 Rickard v. Schley, 27 W. Va. 617. Ann. 114; White v. Haight, 16 N. Y. 
 
 «Chap. VI. 310; Osgood v. Laytin, 48 Burb. 464; 
 
 * Thompson v. Greeley, 107 Mo. 577; SJiavglmessy v. Rensselaer Ins. Co. 21 
 Alexander v. Relfe, 74 Mo. 516; Gill Barb. 605; Hyde v. lynde, 4 N. Y.
 
 398 
 
 RECEIVERSHIPS. 
 
 the receiver is autliorizcd to recover for property illei^ally dis- 
 posed of in fraud of corporate creditors.' He may likewise re- 
 cover from stockljolders miearned i)reminms ille:;-a]ly paid tliein 
 f 1-1 nil tlic capital stock when the cor])i)ration was insolvent. Such 
 a suit is not a proceeding to eirforce stock lial)ilitj, but is rather 
 a proceedin^^ to recover back funds wrongfully paid to and re- 
 ceived by the stockholders.* And so also where the assets of 
 an insolvent corporation are unlawfully transferred to its 
 oflicers.' 
 
 387; Terry v. Bamberger, 14 Bliitcbf. 
 234. 
 
 In Penn Bank, Wariier, v. Hopkins, 
 111 Pa. 3^28, a suit wjis maintuined by 
 the corporation for the use of an as- 
 signee against directors for misman- 
 agement. 
 
 'The receiver has power, independ- 
 ent of a statute, to recover money due 
 the corporation, and for property il- 
 legally disposed of in violation of the 
 rights of creditors. Osgood v. Laytin, 
 48 Barb. 463. 
 
 A receiver may prosecute a writ of 
 error to review a judgment denying 
 his right to open up a judgment 
 against the corporation over which 
 he is appointed. Rust v. United 
 Waterworks Co. 70 Fed. Rep. 129. 
 
 Plaintiffs in an injunction suit who 
 give a bond payable to the defendant 
 as receiver and seek to enjoin him as 
 receiver from collecting money due 
 the insolvent estate are precluded in 
 an action by the receiver on the bond 
 from raising any question concern- 
 ing his appointment or qualification. 
 Wason V. Frank (Colo. App.) 44 Pac. 
 378. 
 
 *The receiver may also maintain 
 suit in equity against the stockhold- 
 ers to recover unearned premiums 
 paid them out of the capital of the 
 bank when no net profits had been 
 earned, and when in fact the corpora- 
 tion was insolvent. In such a case, 
 
 it is not a suit to enforce the individ- 
 ual liability, but is to follow and re- 
 cover a part of the capital which was 
 wrongfully paid to and received by 
 the stockholders. Ilayden v. Thomp- 
 son, 70 Fed. Rep. 60, 2 Am. & Eng. 
 Corp. Cas. N. S. 511. Cf. Bailey v. 
 Moslier, 63 Fed. Rep. 488; First Nat. 
 Bank v. Colby, 88 U. S. 21 Wall. 609, 
 22 L. ed. 687; Hornor v. Eenning, 93 
 U. S. 228, 23 L. ed. 879; Stephens v. 
 Oversiok, 43 Fed. Rep. 771; National 
 Exclh. Bank v. Peters, 44 Fed. Rep. 
 13. 
 
 ^An insolvent corporation practi- 
 cally out of busiaess cannot transfer 
 part of its assets to creditors who are 
 officers of the company, or who are 
 intimately connected therewith, and, 
 such a conveyance being fraudulent, 
 the receiver may recover the prop- 
 erty. Smith v. Hopkins, 10 Wash. 77. 
 
 The receiver of an insolvent corpo- 
 ration cannot maintain an action to 
 set aside judgments by default against 
 the corporation for debts honestly 
 due, without having set aside a pro- 
 vision in the order appointing him, 
 making such judgments a first lien 
 upon all the money and assets of such 
 corporation, to be paid in full before 
 payment of any other creditors. liidg- 
 way V. Symons, 4 App. Div. 98. 
 
 It is unusual, and generally im- 
 proper, to adjust the rights of parties 
 in the order of appointment.
 
 RECEIVERSHIP OF CORPORATIOJS'S. 
 
 ayy 
 
 (b) "When he mat sue in his own name. 
 A receiver may maintain suit in his own name, (1) wlien the 
 legal title to the corporate assets has been assigned to him ;' (2) 
 when the court by decree has so empowered him ;" (J) or when 
 the statute so provides.' As the representative of the stock- 
 holders and creditors of the corporation the receiver cannot 
 maintain a suit against the corporate directors which the corpora- 
 tion itself could not have mniiitained had the receiver not l)een 
 appointed." • The general rule is that a receiver cannot bring 
 
 ' St. Louis & S. Coal & M. Co. v. 
 Sandoval Goal & M. Co. Ill III. 33; 
 King v. Cults, 24 Wis. 627; Teager v. 
 Wallace, 44 Pa. 294; Ingersoll v. 
 Cooper, 5 Blackf. 426; Oray v. Lewis, 
 94 N. C. 392; Boyd v. Royal Ins. Co. 
 Ill N. C. 372. 
 
 A receiver by virtue of bis appoint- 
 ment and character as representative 
 of all parties interested in the prop- 
 erty is a quasi assignee, and is in- 
 vested with the title to all rights of 
 action possessed by his principal at 
 the time of the appointment, to such 
 extent at least as will enable him to 
 sue upon them in his official char- 
 acter. Hardin v. Sweeney (Wash.) 
 44 Pac. 138. 
 
 The receiver of an insolvent toll- 
 road company ma}' bring in his own 
 name an action on an undertaliing in 
 an injunction against him and the in- 
 solvent company to restrain him from 
 collecting the toll payable to him as 
 receiver, although the bond was pay- 
 able to the company as well as him- 
 i-elf. Wason v. Frank (Colo. App.) 44 
 I'ac. 378. 
 
 ''Leonard v. Storrs, 31 Ala. 488; 
 Wilkinson v. Rutherford, 49 N. J. L. 
 241; Davis v. Gray, 83 U. S. 10 Wall. 
 203, 21 L. ed. 447; Davis v. Ladoga 
 Creamery Co. 128 Ind. 222; Wilson v. 
 Welsh, 157 Mass. 77; Garver v. Kent, 
 rO Ind. 428; Davis v. Talbot, 137 hid. 
 235. 
 
 He has power to file a bill to fore- 
 close a mortgage given to the corpo- 
 ration {Cormer v. Bray, 83 Ala. 217); 
 or to bring suit to recover possession 
 of real estate {Baker v. Cooper, 57 
 Me. 388); or to recover subscription to 
 the capital stock {Frank v. Morrison, 
 58 Md. 423); or to recover on a note to 
 the corporation. ILtyes v. Brolzman, 
 46 Md. 519. 
 
 ^ Miami Exporting Co. v. Gano, 13 
 Ohio, 2G9; Screven v. Clark, 48 Ga. 
 41; Battle v. Davis, 66 N. C. 252; 
 Re nick v. Bank of West Union, 13 
 Ohio, 298; Leonard v. Slorrs, 31 Ala. 
 488; Hardwick v. Hook, 8 Ga. 354; 
 Ilelme v. Littlejolm, 12 La. Ann. 298; 
 Davenpoi't v. Buffalo City Bank, 9 
 Paige, 15; Hobart v. Bennett, 77 Me. 
 401; Baker v. Cooper, 57 Me. 388; 
 Ilayden v. Thompson, 70 Fed. Rep. 
 60, 2 Am. & Eug. Corp. Cas. N. S. 
 511; Hornor v. Henning, 93 U. S. 228, 
 23 L. ed. 879; Stephens v. Overstolz, 43 
 Fed. Rep. 771; National Exch. Bank 
 v. Peters, 44 Fed. Rep. 13; Garver v. 
 Kent, 70 Ind. 428; Gray v. Lewis, 94 
 N. C. 392; Davis v. Snead, 33 Gratt. 
 705; Gill v. Balis, 72 Mo. 424; Man- 
 love V. Burger, 38 Ind. 211; Kennedy 
 V. Gibson, 75 U. S. 8 AVali. 498, 
 19 L. ed. 476; Mathis v. Pridhani, 1 
 Te.x. Civ. App. 58. 
 
 ••The receiver of a hank appointed 
 in proceedings for its dissolution can- 
 not maintain against the directors any
 
 400 
 
 RECEIVERSHIPS. 
 
 suits in his o^Yn name, in the absence of statutory power, unless 
 tlie legal title is in him,' or unless the decree appointing the re- 
 ceiver expressly authorizes him so to do. "The tendency seems to 
 be in the direction of regarding the receiver as an assignee of all 
 rights of action possessed by his principal at the date of appoint- 
 ment, and therefore entitled to sue upon them in his official char- 
 acter. The refined distinctions at one time so tenaciously adhered 
 to in this regard have been relaxed and courts are disposed to 
 look to the end sought by the proceeding and the equitaljle 
 modes of reaching it and securing redress rather than the tech- 
 nical legal aspects of the parties. ' It would seem to be settled, 
 however, where the receiver is not authorized by the order to sue 
 to recover the property of the corporation, and such property has 
 not been assigned to him, and has never been in his possession 
 as receiver, he must bring suit in the name of the corporation.' 
 
 action in favor of tbe stockholders or 
 creditors which the bank itself could 
 not have maintained before its disso- 
 lution. Biggins v. Tcfft, 4 App. Div.62. 
 
 ^St. Louis & S. Coal & M. Co. v. 
 Sandoval Coal <fc M. Co. Ill III. 32. 
 As to authority from the court so to 
 do, see Leonard v. Starrs, 31 Ala. 488. 
 Bui see IngersoU v. Cooper, 5 Blackf. 
 426. 
 
 ' Harland v. Banl-ers & M. Teleg. 
 Co. 33 Fed. Rep. 199, contra, 32 
 Fed. Rep. 305; Manlove v. Burger, 38 
 Iiid. 211. But in suits in regard to real 
 estate he must obtain title in order to 
 sue. Dick v. Struthers, 25 Fed. Rep. 
 103. For an act of conversion occur- 
 ring prior to the appointment of a re- 
 ceiver in a partnership case the suit 
 must be in the name of the firm. Yeager 
 V. Wallace, 44 Pa. 294. See Wilson v. 
 Welch, 157 Mass. 77. In this case Mr. 
 Chief Justice Field says: "Although 
 the practice in this commonwealth 
 has not been uniform (See Farmers & 
 M. Bank v. Jenks. 7 Met. 592; Boot & 
 Shoe Mfrs. Mut. F. Ins. Co. v. Melrose 
 Orthodox Cong. Soc. 117 Mass. 199; 
 Sohier y. Lamb, 184 Mass. 275; and 
 
 Parker v. Nickerson, 137 Mass. 487) 
 we consider the law to be that a re- 
 ceiver of a corporation appointed by a 
 court of equity cannot bring suit in 
 his own name to recover property of 
 the corporation which has never been 
 in his possession unlessheisauthorized 
 so to do by statute or by the decree of 
 a court competent to give him such 
 authority, or unless the title to the 
 property has been conveyed to him. 
 Courts of equity cannot transfer the 
 title to property by decree unless au- 
 thorized by statute although they can 
 compel the defendant to transfer the 
 title. Wilson v. Martin- Wilson Au- 
 tomatic Fire Alarm Co. 151 Mass. 515, 
 8 L. R. A. 309." 
 
 Cf. Freeman v, WincTiesier, 10 
 Smedes & M. 577; Carver v. Kent, 70 
 Ind. 428; Moriarty v. Kent, 71 Ind. 
 GOl; Harrell v. Kent, 71 Ind. 602; 
 Justice V. Kirlin, 17 Ind. 588; Herron 
 V. Vance, 17 Ind. 595; King v. Cutts, 
 24 Wis. 627; Teager v. Wallace, 44 
 Pa. 294; Newell v. Fisher, 24 Miss. 
 392; Wilson v. Allen, 6 Barb. 542. But 
 see Alexander v. Relfe, 74 Mo. 495; 
 Wray v. Jamison, 10 Humph. 186.
 
 RECEIVERSHIP OF CORPORATIONS. 
 
 401 
 
 Where the receiv^er derives his authority to sue from the court he 
 must allen-e sucli authority.' ^ Under the National Banking Act 
 (13 Stat, at L. 99) suits nuiy l^e brought by the receiver in his 
 own name, or in tlie name of tlie corporation,'^ unless the case is 
 ])ending in a state wlicre the common-law pleading prevails, in 
 which case the suit is in the name of the corporation.' 
 
 A receiver appointed under a statute upon the dissolution of a 
 corporation is regarded as in the nature of a trustee to collect and 
 distribute the corporate assets and may sue in the courts of an- 
 other jurisdiction upon a debt due the corporation.* 
 
 ' Wayne Pike Go. v. Slate, 134 Ind. 
 G72; AsheviUe Div. No. 15, S. of T. 
 V. Asian, 93 N. C. 578; Miatni Ex- 
 porting Co. v. Gano, 13 Ohio, 269. 
 
 ^ First Nat. Bavk v. National Pah- 
 quioque Bank, 81 U. S. 14 Wall. 383, 
 20 L. ed. 840; Kennedy v.- Gibson, 75 
 U. S. 8 Wall. 498, 19 L. ed. 476. 
 
 3 Glenn v. Marbury, 145 U. S. 499, 
 36 L. ed. 790. 
 
 In general the receiver is authorized 
 to bring all suits in his own name 
 where it is required for the attainment 
 of justice. Iglehart v. Bierce, 36 111. 
 136; Lathrop v. Knaiyp, 27 Wis. 215; 
 Hardwick v. Hook, 8 Ga. 354; Helnie 
 V. Littlejohn, 12 La. Ann. 298; Hen 
 ningv. Raymond,^bMmn. 303; Wray 
 V. Jamison, 10 Humph. 186; Haxtun 
 V. Bishop, 3 Wend. 13. 
 
 As to the power of a court of equity 
 acting under its general equity pow- 
 ers only to give authority to its re- 
 ceiver to sue in his own name, see 
 Amy v. Manning, 149 Mass. 487; Davis 
 V. Gray, 83 U. S. 16 Wall. 203, 21 L. 
 ed. 447; Yeager v. Wallace, 44 Pa. 294; 
 Be Sacker, L R. 23 Q. B. Div. 179; 
 Battle v. Davis, 66 N. C. 252; Wilson 
 V. Welch, 157 Mass. 77; Thompson v. 
 Greeley, 107 Mo. 577. 
 
 ■• Avery v. Boston Safe-Deposit & T. 
 Co. TZ Fed. Rep. 700. 
 
 A receiver appointed under a state 
 statute providing for the winding-up 
 26 
 
 of the affairs of a corporation under 
 the direction of a reeeiver to be ap- 
 pointed by the court, and the conver- 
 sion of its property into money, has 
 the same title and power of control 
 over the property of a corporation of 
 the state, situated in another state, as 
 over that in the stale of his appoint- 
 ment. American Nat. Bunk v. Na- 
 tional Ben. & C. Co. 70 Fed. Rep. 420; 
 Black V. Ore Knob Copper Co. 115 N. 
 C. 382. 
 
 The receiver of an insolvent cor- 
 poration, appointed under Minn. Gen. 
 Stat. 1894, § 5897, may maintain an 
 independent action to enforce the 
 payment of a call on unpaid subscrip- 
 tions made by the board of directors 
 according to the by-laws and payable 
 before the commencement of the pro- 
 ceedings resulting in his appoint- 
 ment. Basting Y.Ankeny (Minn.) 66 
 N. AV. 266. 
 
 A bill by receivers of an insolvent 
 corporation against a stockholder to 
 enforce his liability upon his sub- 
 scription is properly filed as auxiliary 
 or ancillary to the original suit ia 
 which such receivers were appointed. 
 Boss Meehan Brake Shoe Foundry Co. 
 v. Southern Malleable Iron Co. 72 Fed. 
 Rep. 957. 
 
 The action being to enforce a legal 
 right must be an action at law. Fire- 
 man v. Wiitchester,10 Smedes & M. 577.
 
 402 • RECEIVERSHIPS. 
 
 § 236. To recover stock subscriptions. 
 
 There is not entire harmony in the decisions in relation to the 
 rin'ht of tlie receiver to institute and prosecute suits to enforce 
 the HahiHty of stockholders for unpaid suhscriptions. The con- 
 fusion is prohahly very lar<^ely ovviui^ to tlie dissimilar statutes 
 and the various methods of construction resorted to by the courts 
 in their efforts to interpret tlie le<^islative will relative to insolvent 
 corporations. Another element of discord has grown out of the 
 view that some courts have entertained that a receiver was the 
 representative of the corporation, and limited in the exercise of 
 power to that which the corporation could have exercised but for 
 the receivership ; while other courts have regarded the receiver 
 as more particularly the representative of creditors of the corj)o- 
 ration, and therefore exercising powers, in some instances, which 
 the law of estoppel would prevent the corporation from exercis- 
 ing. But little more can be accomplished in this connection than 
 by stating, as precisely as possible, the general trend of the de- 
 cisions, unmodiiied or influenced by statutory effects. 
 
 (a) As a general rule, the receiver of an insolvent corporation 
 may, in a proper action, recover from a stockholder the unpaid 
 
 An action under Minn. Gen. Stat. tion at law against defaulting direct- 
 
 1894, § 5897, to sequester corporate ors. Uiggins v. Tefft, 4 App. Div. 62. 
 
 assets and to enforce the conslitu- A suit may be maintained in equity 
 
 tional liability of the stockholders for by the receiver of an insolvent na- 
 
 corporate debts, does not per se super- tional bank against all its shareholders 
 
 sede a general prior assignment for to recover 'dividends unlawfully paid 
 
 the benefit of creditors; and the plain- to them out of the capital at times 
 
 tiff therein is not entitled as of right when the bank earned no net profits 
 
 to have a receiver appointed to take and was in fact insolvent, as the num- 
 
 Ihe corporate assets from the posses- erous actions at law against the sev- 
 
 sion of the prior assignee. Interna- eral stockholders would not furnish 
 
 tional Trust Co. v. American Loan & as efficient, practical, and prompt a 
 
 T. Co. (Minn.) G5 N. W. 78, Rev'd on remedy. Hayden v. Thompson, 71 
 
 other grounds on Rehearing in 65 N. Fed. Rep. 60. 
 
 W. 632. An allegation in an action by a re- 
 
 Inability of the receiver of a bank ceiver. that plaintiff was duly ap- 
 appointed in proceedings for its dis^- pointed and qualified, is not demur- 
 solution to realize more than 60 per rable for failure to show the facts of 
 cent of the claims of the creditors of his appointment and qualification, 
 the bank will not entitle him to seek Wason v. Frank (Colo. App ) 44 Pac. 
 the aid of a court of equity for any b78. 
 relief which he could obtain in an ac-
 
 RECEIVERSHIP OF CORPORA TIO.NS. 
 
 4ua 
 
 balance of his stock subscription to tlie extent necessary to pay 
 the indebtedness of the corporation, sul)iect only to such limita- 
 tions as would have been effective a^i^ainst the directors had the 
 receiver not been appointed.' 
 
 (b) AVhere this ricyht is vested in the receiver it is to the ex- 
 clusion of the right of individual creditorb to prosecute similar 
 actions.' 
 
 ^Whittlesey v. Frantz, 74 N. Y. 456; 
 Phanix Wdvehousing Co. v. Badger, 67 
 N. Y. 294; Dayton v. Borst, 31 N. Y. 
 4.35; Ban/cine v. Elliott, 16 N. Y. 377; 
 Calkins v. Atkinson, 2 Lans. 13; Saff- 
 wy V. Dubois, 3 Sandf. Ch. 46G; Pcntz 
 V. Hmoley, 1 Barb. Ch. 122 ; Van Wag - 
 enenv. Clark, 22 Hun, 497; Mann v. 
 Fentz, 3 N. Y. 415; Buggies v. Brock, 
 
 6 Hun, 164; Tucker v. Oilman, 45 
 Hun, 193; Billings v. Bobinson,2S Hun, 
 122; Dean v. Biggs, 25 Hun, 122; Dor- 
 ris V. French, 4 Hun, 292; Nathan v. 
 Wdtlock, 9 Paige, 152; Farmers & M. 
 Bank v.Jenks, 7 Met. 592; Howard v. 
 Glenn, 85 Ga. 238; Tohey v. Rmi<eU, 9 
 R. I. 58; Gaslight &Bkg. Go. v. Haynes, 
 
 7 La. Ann. 114; Neic Orleans Gaslight 
 Co. V. Bennett, 6 La. Ann. 457; Stark 
 V. Burke, 5 La. Ann. 740; Ucwett v. 
 Adams, 54 Me. 206; Frank v. Morri- 
 son, 58 Md. 423; Stillman v. Dougherty, 
 44 Md. 380. The receiver as an offi- 
 cer of court may make calls for the 
 amount due. Hall v. United States 
 Ins. Co. 5 Gill, 484; Lewis v. Bobert- 
 son, 13 Smedes & M. 558; Clarke v. 
 Thomas, 34 Ohio St. 46; Black v. Ore 
 Knob Copper Co. 115 N. C. 382; Sho- 
 waiter v. Laredo Improv. Co. 83 Tex. 
 162; Stewart v. Lay, 45 Iowa, 604; 
 Sc/wonover v. Hinckley, 48 Iowa, 82; 
 Big Creek Stone Co. v. Seward (Ind.) 
 43 N. E. 464; Great Western Teleg. Co. 
 V. Gray, 123 111. 630; Lamar Ins. Co. 
 V. Gulick, 103 111. 41; Chandler v. 
 Brown, 77 III. 333. See Republic L. 
 Ins. Co. V. Swigert, 135 III. 150, 12 L. 
 R. A. 328; Merchants' Nat. Bank v. 
 Northwestern Mfg. & Car Co. 48 Minn. 
 
 361; Basting v. Anlceny (Minn.) 66 N. 
 W. 266; Minnesota Thresher Mfg. Co. 
 V. Langdon, 44 Minn. 37; Elderkin v. 
 Peterson, 8 Wash. 674; Shomalter v. 
 Laredo Improv. Co. 83 Tex. 163; F^^vi- 
 derwerken v. Glenn, 85 Va. 0;Lathrop 
 v.Knapp, 27 AVis. 214, 37 Wi.s. 307; 
 Ri^ss Meehan Brake Shoe Foundry Co. 
 V. Southern Malleable Iron Co. 72 Fed. 
 Rep. 957; Means' Appeal, 85 Pa. 75. 
 
 Under the Railway Companies Act 
 of 1867 in England a receiver has no 
 power to collect the unpaid subscrip- 
 tions. Re Birmingham & L. J. R. Co. 
 L. R. 18 Ch. Div. 155. 
 
 A stockholder who has paid his sub- 
 scription has a right to insist that 
 those who have not paid shall be com- 
 pelled by the receiver to do so. Na- 
 than V. Whitlock, 9 Paige, 152, and the 
 court has power to equalize the pay- 
 ments among the stockholders. Day- 
 ton V. Borst, 31 N. Y. 435; Clarke v. 
 Thomas, 34 Ohio St. 46. 
 
 ' Minnesota Thresher Mfg. Co. v. 
 Langdon, 44 Minn. 37; Merchants' Nat. 
 Bank v. Northwestern Mfg. & Car Co. 
 48 Minn. 361. 
 
 A creditor of a corporation cannot 
 maintain an action to recover sub- 
 scriptions from stockholders, where a 
 receiver of the corporation has been 
 appointed, and it does not appear that 
 he has refused to bring the action. 
 Big Creek Stone Co. v. Seward (ImX.) 43 
 N. E. 464. But see Lexington Life, F. 
 & M. Ins. Co. V. Page, 17 B. Mon, 413, 
 as to right of a corporation to sue 
 where a receiver has been appointed.
 
 404 
 
 RECEIVERSHIPS. 
 
 (c) He may enforce this lial)ility reg:ar(lless of collusive and 
 fraudulent attempts on the part of the oilicers and stocl holders 
 to evade liability.' 
 
 (d) lie may enforce such stock lial)ility, it would seem, only to 
 the extent necessary to pay the debts.^ 
 
 (e) The right of the receiver to enforce stock liability is based 
 upon the condition that the court has previously determined the 
 amount of the corporate indebtedness and fixed the liability of 
 each share of stock, and these are necessary allegations in the 
 petition." 
 
 ' Nathan v. Wldtlock, 9 Paige, 152; 
 S(igoi-y V. Dubois, 3 Sandf. Ch. 460; 
 Farker v. Nicker noii, 1 87 Mass. 487 ; Saw- 
 yer V. Hoag, 84 U. S. 17 Wall. 610, 21 
 L. ed. 731. See contra, RepuhUcL. Ins. 
 Co. V. Swicjert. 135 111. 150, 12 L. R. 
 A. 32S;Wi>ilers v. Armstrong, 37 Fed. 
 Rep. 508; Ptscataqua, F. & M.Ins. Go. 
 V. mil, 60 Me. 178; Putnam v. New 
 Albany <& S. C. J. B. Co. {"Burke v. 
 Smith"), 83 U. S. 16 Wall. 395, 21 L. 
 ed. 3G3; Carlwright v. Dickinson, 88 
 Tenn. 476, 7 L. R, A. 706, but in such 
 case the question of good faith is aa 
 important element. Nettles v. Marco, 
 33 S. C. 47. 
 
 In Missouri, an assignee for the ben- 
 eOt of creditors on a bill in chancery 
 filed by him may compel the directors 
 of an insolvent corporation to make 
 an assessment payable to him. Lion- 
 herger v. Broadway Sav. Bank, 10 Mo. 
 App. 499. Thereceiver has no power 
 to collect where no call has been 
 made. Hannah v. Moherly Bank, 67 
 Mo. 678. 
 
 In Iowa, it is held that an indivi- 
 dual stockholder cannot, in a com- 
 mon-law proceeding, be compelled to 
 pay his subscription until a general 
 call is made, showing a necessity for 
 an assessment. Chandler v. Keith, 42 
 Iowa, 99. 
 
 Statutory liability is not an asset 
 and not enforceable by the receiver. 
 
 Farnsworth v. Wood, 91 N. Y. 308. 
 Cf., as to assignee, Bouton v. Dement, 
 123 111. 142. 
 
 The receiver of an insolvent corpo- 
 ration may sue in a foreign jurisdic- 
 tion to recover stock subscriptions. 
 3fann v. Cooke, 20 Conn. 178; Mc- 
 Do/iovg?i V, Phelps, 15 How. Pr. 372; 
 Seymour v. Sturges, 26 N. Y. 134. 
 
 But he has no power to compromise 
 unpaid subscriptions. Chandler v. 
 Brown, 77 111. 333. 
 
 s Bowton V. Dement, 123 111. 142. 
 
 * Chandler v. Keith, 42 Iowa, 99; 
 American Ins. Co. v. Schmidt, 19 Iowa, 
 502; Mills V. Scott, 99 U. S. 25, 25 L. 
 ed. 294; Scovill v. Thayer, 105 U. S. 
 143, 26 L. ed. 908; Vanderwerken v. 
 Glenn, 85 Va. 9; Glenn v. Williams, 
 60 Md. 93; Glenn v. Semj)le, 80 Ala. 
 159; Liggett v. Glenn, 51 Fed. Rep. 
 381. 
 
 An action at common law upon a 
 subscription must be in the name of 
 the corporation. Glenn v. Marbury, 
 145 U. S. 499, 36 L. ed. 790 (Assign- 
 ment). 
 
 In Indiana a creditor of a corpora- 
 tion can collect his debt from unpaid 
 subscriptions only through the re- 
 ceiver. Wheeler "7. Thayer, 121 Ind. 64. 
 
 To collect a stock liability the re- 
 ceiver may proceed at law or la 
 equity. Stanton v. Wilkeson, 8 Ben, 
 357; Morrow v. San Francisco Super.
 
 RECEIVERSHIP OF CORPORATIONS. 
 
 405 
 
 (f) The liability of a stoclcliolder upon his stock subscription 
 can be determined only in a suit by the receiver for that purpose 
 and not in the ori«;iual action in which the receiver is appointed.' 
 Where the suit is brought by the receiver an allegation that he 
 was duly appointed and qualified, without showing the facts 
 relating to his appointment, is sufficient.' 
 
 Ct. 64 Cal. 383; Borland v. Haven, 37 
 Fed. Rep. 394; Potter v. Dear, 95 Cal. 
 578; Baines v. Babcock, 95 Cal. 581; 
 Baines v. Story (Cal.) 30 Pac. 777; 
 Cuher v. Third Nat. Bank, 64 111. 
 528. 
 
 In Illinois the action is at law. 
 Thompson v. Meisser, 108 111. 359; 
 Schalucky v. Field, 124111. G17; Mcia^er 
 V. Tkomjison, 9 111. App. 368; Buch- 
 anan V. Meisser, 105 111. 638; AreJiz v. 
 Weir, 89 111. 25; McCarthy v. Lavonehs, 
 89 111. 270; Fuller v. Ledden, 87 111. 
 310; TibbalU v. Libhy, 87 111. 142; 
 Corwithy. Culver, 69 111. 502; Wincock 
 V. Turpin, 96 111. 135. 
 
 If, however, the liability is to the 
 creditors as a class the remedy is in 
 equity. Ilornor v. Eenning, 93 U. S. 
 228, 23 L. ed. 879; Harper v. Union 
 Mfg. Co. 100 111. 225; Rounds v. Mc- 
 Cormick, 114 111. 252; Young v. Far- 
 well, 139 111. 32*1; Low v. Buchanan, 
 94 111. 76; Qmenan v. Palmer, 117 111. 
 619; Fames v. JJoiis, 102 111. 350; 
 Hickling v. Wilson, 104 111. 54. 
 
 In Illinois the courts refuse permis- 
 sion to pro-secute a suit in equity by 
 creditors of a nonresident corpora- 
 tion against Illinois stockholders. 
 Young v. Farucll. 139 111. 326. And 
 the same rule prevails in Massachu- 
 Betta. New Haven Horse Nail Co. v. 
 Linden Spring Co. 142 Mass. 349. 
 
 In Iowa it is held that the court in 
 an interlocutory proceeding has no 
 right to make an assessment against 
 stockholders for unpaid stock in a 
 proceeding for the appointment of a 
 receiver, in the absence of an allega- 
 
 tion that the stockholders are too 
 numerous to be made parties. Lajnar 
 Ins. Co. V. Hildreth, 55 Iowa, 248. 
 See also Chandler v. Broion, 11 111. 
 333; Chandler v. Dore, 84 111. 275. 
 
 There must be a deficiency in the 
 assets first established in Maine be- 
 fore a proceeding is instituted by the 
 receiver to recover a stock liability. 
 Hetceit v. Adams, 54 Me. 206. As to 
 the practice in Missouri, see Hannah, 
 v. Moberly Bank, 67 Mo. 678. 
 
 In an action against an insolvent 
 corporation where an order is made 
 directing the receiver to institute pro- 
 ceedings against stockholders for 
 unpaid subscriptions, it is held that 
 the liability of the stockholders will 
 not be determined in such proceeding, 
 but only in a proceeding by the re- 
 ceiver against the stockholder. Black 
 V. Ore Knob Coj^rer Co. 115 N. C. 382. 
 
 See T[ f following and note 1. 
 
 ' Showalter v. Laredo Improv. Co. 83 
 Tex. 162. 
 
 « Edee v. Strunk, 35 Neb 307; 
 Springs v. Boicery Nat. Bank, 63 Ilun, 
 505; Bangs v. Mcintosh, 23 Barb. 591. 
 But see Stewart v. Bcebe, 28 Barb. 34. 
 
 Inasmuch as a stockholder is a 
 creditor it has been supposed that the 
 amount due him may be set-off against 
 his subscription, but this is not true, 
 for the reason that the capital stock 
 is a trust fund for the payment of 
 creditors and liability thereon is not 
 subject to set-off. Williams v. Trap- 
 hagan, 38 N. J. Eq. 57; Scovill v. 
 Thayer, 105 U. S. 143, 26 L. ed. 968; 
 Sawyer v. Hoag, 84 U. S. 17 Wall.
 
 406 
 
 RECEIVERSHIPS. 
 
 § 237. To avoid frjiuduleiit transfers. 
 
 It is the settled doctrine that a receiver of an insolvent corpo- 
 ration represents not only the corporation but also its creditors 
 and stockholders and that in his character as trustee for the latter 
 he may disaffirm and maintain an action as receiver to set aside 
 illei;al and fraudulent transfers of the property of the corporation 
 made by its agents and officers, or to recover its securities in- 
 vested or misaiiplied. Such right is vested in the receiver upon 
 his appointment. The decree dissolving a corporation and for the 
 distribution of its assets is a decree in the nature of a judgment 
 for all the creditors,' The law upon this subject is not entirely 
 
 610, 21 L. ed. 731; Bnin v. Clinton 
 Loan Asi^o. 112 N. C. 248; A'pplelon v. 
 I'urnbull 84 Me. 72. 
 
 ' Aity. Gen. v. Guardian 3fut. L. 
 Ins. Co. 77 N. Y. 272, la this case 
 the decree dissolved the corporation 
 and vested in the receiver all its prop- 
 erty, assets, and effects for the pur- 
 pose of distribution among the cred- 
 itors and other persons interested in 
 the fund under the direction of the 
 court and the provisions of the statute 
 relative to insolvent corporations. 
 
 In Be Globe Ins. Co. 6 Paige, 103, 
 the court say: "It is the settled doc- 
 trine that the receiver of an insolvent 
 corporation represents not only the 
 corporation but also creditors and 
 stockholders, and that in his char- 
 acter as trustee for the latter he may 
 disafhrm and maintain an action as 
 receiver to set aside illegal or fraud- 
 ulent transfers of the property of the 
 corporation made by its agents or 
 oflicers, or to recover its funds or se- 
 curities invested or misapplied." Gil- 
 let V. Moody, 3 N. Y. 471); Talmage 
 v. Pell, 7 N. Y. 328; Whittlesey v. 
 Delaney, 73 N. Y. 571 (fraudulent 
 judgment); Vail v. Hamilton, 85 N. 
 Y. 453. 
 
 In Illinois it is held that a general 
 assignment for the benefit of creditors 
 does not pass to the assignee any in- 
 
 terest in property before that fraud- 
 ulently transferred by the assignor 
 nor any right to impeach or set aside 
 .such fraudulent transfer — such right 
 belonging to the creditors alone. 
 Bouton V. Dement, 123 111. 142. This 
 case is based upon Brownell v. Curtis, 
 10 Paige. 210; Leach v. Kelsey, 7 Barb. 
 460; Extabrook v. Messernmith, 18 Wis. 
 545; Flower v. Cornis7i, 25 Minn. 473; 
 Lund V. Skanes Eaukilda Bank, 96 111. 
 181. 
 
 A receiver of a corporation who 
 represents the creditors as well as the 
 corporation is not estopped to claim 
 that a transfer of the property of the 
 corporation by its president was 
 fraudulent. Nevitt v. First Nat. 
 Bank, 91 Hun, 43. 
 
 The great weight of authority is, 
 however, in favor of the right of the 
 assignee to impeach fraudulent con- 
 veyances. See Pillsbury v. Kingon, 
 33 N. J. Eq. 287, and cases there cited, 
 and note with additional cases. Cf. 
 Germantown Pa.ss. R. Co. v. Fitter, 60 
 Pa. 124; Eppright v. Nicker son, 78 
 Mo. 482; Shockley v. Fisher, 75 Mo. 
 498; Ueineman v. Hart; 55 Mich. 64. 
 
 The law of Illinois applicable to as- 
 signees is applied to receiverships in 
 insurance corporations in Republic L. 
 Ins. Co. V. Swigert, 135111. 150, 12 L. 
 R. A. 328, where it is held that it is
 
 RECEIVERSHIP OF CORPORATIONS. 
 
 i07 
 
 harmonious, some of the cases holding that the property of a cor- 
 poration fraudulently transferred before the receivers appoint- 
 ment can only be reached by an action by the corporation itself.' 
 He is authorized to bring suit to recover dividends illegally paid 
 to the stockholders of an insolvent corporation, as shown in the 
 followino; section. 
 
 not a power inherent in a court of 
 chancery and not in accordance with 
 the course of procedure and practice 
 which ordinarily obtains in equity for 
 the court to cloth its receiver with 
 power to seize and enforce a property 
 right which belongs only to parlies 
 who are not before the court and are 
 not asking its assistance. For the 
 purpose of litigation the receiver takes 
 only the rights ot the corporation such 
 as can be asserted in the name of the 
 corporation itself. Upon this basis 
 only can the receiver litigate for the 
 benefit of either shareholders or cred- 
 itors. 
 
 It is held in Great Western Teleg. Co. 
 V. Gray, 122 111. 630, an action by the 
 corporation for the use of the receiver, 
 that a court of equity has jurisdiction 
 to appoint a receiver where the board 
 of directors were guilty of mismanHge- 
 ment and malfeasance and order him 
 in the corporate name to collect un- 
 paid subscriptions. Cf. Rtpuhlic L. 
 Tn». Co. V. Sioigert, 135 111. 150, 12 
 L. R. A. 328. 
 
 ' The cases holding that an assignee 
 or receiver may impeach the fraud- 
 ulent conveyances of his principal are 
 as follows : Freelaud v. Freeland, 102 
 ]\Iass. 475; Lynde v. McGregor, 13 
 Allen, 172; Blakev. Sawin, 10 Allen, 
 840; GMs v. T/iayer, 6 Cush. 30; 
 Kiibovine v. Fay, 29 Ohio St. 204; 
 Uallowell V. Bnyliss, 10 Ohio St. 537; 
 Waters v. Daahiell, 1 Md. 455; Rich 
 nrd« V. JVew Hampshire Ins. Co. 43 N. 
 H. 263; Hhipman v. ^Lna Ins. Co. 29 
 Coun. 245; Siniflv. lltompson, 9 Conn. 
 
 63; Palmer v. Thayer, 28 Conn. 237; 
 Simpson v. War? en, 55 Me. 18; Eu- 
 ropean & N. A. R. Co. V. Poor, 59 
 Me. 277; Utaton v. Piltman, 11 GraU. 
 99; C lough V. Thompson, 7 Gralt. 20; 
 Doyle V. Peckham, 9 R. I. 21; Hayes 
 V. Kemjon, 7 R. I. 142; Moncure v. 
 Hanson, 15 Pa. 385; I'ams v. Bullitt, 
 35 Pa. 008; Slunehridgev. Perkins. 141 
 N. Y. 1; Atkinson v. Rochester Print- 
 ing Co. 114 N. Y. 168; Vail v. Hamil- 
 ton, 85 N. Y. 453; Atty. Gen. v. 
 Guardian Mut. L. Ins. Co. 77 N. Y. 
 272; Southard v. Benner, 72 N. Y. 
 424; Hoyle v. Plattshurg & M. R. Co. 
 54 N. Y. 314; McMahon v. Allen, 35 
 N. Y. 403; Robinson v. Bank of At- 
 tica, 21 N. Y. 406; Bromcer v. Har- 
 heck, 9 N. Y. 589; Bayard v. Hoffman, 
 4 .Johns. Ch. 450; Rudd v. Robinson, 54 
 Hun,3;)9; Kingsleyv. First Nat. Bank, 
 31 Uun, 329; Nathan v. Whitlock, 9 
 Paige, 152; Leavitt v. De Launay, 4 
 Sandf. Ch. 281; Batcher v. Harrison, 
 4 Barn. & Ad. 129; Doe, Grimsby, 
 V. Ball, 11 Mees. & W. 531; Norcutt v. 
 Dodd, 1 Craig & Ph. 100; Holmes v. 
 Penney, 3 Kay & J. 90; Graham But- 
 ton Co. V. Spielman, 50 N. ,J. Eq. 120; 
 Pillsbury v. Kingon, 33 N. J. E(i. 287; 
 Stewart v. Lehigh Valley R. Go. 38 N. J. 
 L. 505; Farmers' Loan & T. Co. v. 
 Minneapolis Engine & Mach Works, 
 35 Minn. 543; Paine v. Lake Erie 
 & L. R. Co. 31 lud. 353; State v. 
 State Bank. 40 Neb. 192; Wardell 
 V. Union P. li. Co. 103 U. S. 651, 26 
 L. ed. 509; Drury v. Mihoaukee <& S. 
 R. Co. 74 U. S. 7 Wall. 299, 19 L. ed. 
 4); Bradley v. Converse, 4 ClilT. 375;
 
 408 
 
 RECEIVERSHIPS. 
 
 § 238. To recover illegal dividemls. 
 
 The receiver has the right to sue for and recover bade in the 
 interest of creditors dividends paid out bj the otHcers from tlie 
 capital stock.' Dissenting stockholders have a right to prevent 
 
 Cumberland Coal & I. Co. v. Pariah, 43 
 Jld. 598; Kitchen v. St. Louis, K. G. 
 & N. li. Co. 69 ]\Ii>. 224; Chouteau v. 
 ^^/^/),70Mo. 290; Mar.'ihallv. Farmers' 
 & M. Snv. Bank. 85 Va. 676, 3 L. R. 
 A. 534; Flint & P. M. R. Co. v. Dewey, 
 14 Mich. 477; llayiDOod v. Lincoln 
 Lumber Co. 64 Wis. 639; Commercial 
 Nat. Bank v. Burch, 141 111. 519; 
 Alexander v. Relfe, 74 Mo. 495; Thomp- 
 son V. Greeley, 107 Mo. 577. 
 
 Cases holding the contrary are as 
 follows: Eatubrook v. Mexsersmith, 18 
 Wis. 545; Flower V. Corninh, 25 Minn. 
 473; Sere^. Pilot, 10 U. S. 6 Crunch. 
 332, 3 L. ed. 240; Leach y. Kelsfy. 7 
 Barb. 466; Brownell v. Curtis, 10 
 Paige, 210; Browning v. Hart, 6 Barb. 
 91; Maiders v. Culver, 1 Duv. 164; 
 Bouton V. Dement, 123 111. 142. And 
 see Republic L. Ins. Co. v. Swigert, 135 
 III. 150, 12 L. R. A. 328. 
 
 The receiver of an insolvent corpo- 
 ration cannot maintain an action to 
 have an insurance policy on the life 
 of one of the stockholders and di- 
 rectors made payable to another stock- 
 holder, and assigned for a valuable 
 consideration to other persons, ad- 
 judged to belong to the assets of the 
 corporation on the ground that the 
 premiums were paid from the corpo- 
 rate funds, where such payment was 
 made with the knowledge and consent 
 of all the stockholders at a time when 
 there were no corporate debts. Little 
 V. Garabrant, 90 Hun, 404. 
 
 'In Minnesota Thresher Mfg. Co. v. 
 iMngdon, 44 Minn. 37, it is lield that 
 the adjudication of insolvency, and 
 the appointment of a receiver are in 
 the nature of a sequestration of the 
 corporate property having the effect 
 
 of an attachment or execution in be- 
 half of all creditors. In such case the 
 receiver has in substance the same 
 powers as an assignee in bankruptcy, 
 or a receiver upon a creditor's bill or 
 proceedings supplementary to execu- 
 tion, and he succeeds to the rights of 
 the creditors as well as the insolvent 
 corporation and has the power to en- 
 force the rights which the creditors, 
 but for the proceedings, might have 
 enforced in their own behalf. Fai'm- 
 ers' Loan & T. Co. v. Minneapolis En- 
 gine Much. Works, 35 Minn. 543. 
 "Among the rights which pass to the 
 receiver as the representative of the 
 creditors is the right to recover prop- 
 erty conveyed by the corporation in 
 fraud of its creditors, or capital with- 
 drawn and refunded to the stockhold- 
 ers without provision for full payment 
 of the corporate debts. This right of 
 the receiver does not depend upon 
 any express statute granting it but 
 rests upon the general equitable doc- 
 trine that the capital of a corporation 
 is a trust fund for the benefit of its 
 creditors, and those to whom it has 
 been refunded are trustees for their 
 benefit." 
 
 Hay den v. Thompson, 71 Fed. Rep. 
 60, 3 Am. & Eng. Corp.Cas. N. S. 511. 
 In such case, where the corporation 
 is an insolvent bank, an order of 
 the comptroller is not necessary. 
 And a suit in equity is proper, inas- 
 much as the numerous common law 
 actions would not furnish as efficient, 
 practical, and prompt a remedy. 
 This kind of an action does not rest 
 upon any statute or act of Congress, 
 but upon a fundamental principle of 
 equity. Id.
 
 RECEIVERSHIP OF CORPORATIONS. 
 
 409 
 
 the payment of unearned d'vidends, or the diversion of the corpo- 
 i-ate capital, or to compel its restoration,' and creditors or a re- 
 ceiver or liquidator have a similar right.'' The power of the re- 
 ceiver in this class of actions is usually based upon the fact (a) 
 that the statute invests him with such power, or (b) that the act 
 complained of was ultra vires and therefore voidable by the cor- 
 poration itself, or (c) the proceeding in which the receiver is ap- 
 pointed is a creditor's proceeding in which the receiver is tlie 
 representative of the creditors and can therefore institute and 
 prosecute such proceedings as they might have maintained, or (d) 
 where the receiver is seeking to recover assets or property be- 
 lontrine: to the debtor.' 
 
 ^Minnesota TJiresher Mfg. Co. v. 
 Langdon, 44 Miuii. 37; Bloxam v. 
 Metropolitan R. Co. L. R. 3 Ch. App. 
 337; Holme.H v. New Castle-upon-Tyne 
 Ahbntoir Co. L. R. 1 Ch. Div. 082; 
 Guinness v. Land Corp. of Ireland, L. 
 R. 22 Ch. Div. 349; Carlisle v. Soutli- 
 eastern R. Co. 1 Macn. & G. 689; Salis- 
 bury V. Metropolitan R. Co. 38 L. J. 
 Ch. 249. 
 
 ^Stringer's Case, L. R. 4 Ch. 475; 
 Ranee's Case, L. R. 6 Ch. 104; Re 
 National Funds Asf^ur. Soc. L. R. 10 
 Ch. Div. 118; Re Alexandra Palace Go. 
 L. R. 21 Ch. Div. 149. 
 
 But the receiver cannot transfer, as 
 an asset, the right to attack such trans- 
 fers. Morris v. Morris, 5 Mich. 171; 
 Brush V. Sweet, 38 Mich. 574; McMas- 
 (ers V. Campbell, 41 Mich. 513; Dick- 
 inson V. Seaver, 44 Mich. 624; Prvsser 
 V. Edmonds, 1 Younge & C. 481; 
 Milwaukee & M. R. Co. v. Milwaukee 
 <& W. R. Co. 20 Wis. 175; Vose v. 
 Grant, 15 Mass. 505; Mann v. Fair- 
 child, 2 Keyes, 106. 
 
 The receiver of a national bank 
 may bring suit to recover dividends 
 illegally paid to stockholders when 
 the bank was insolvent. Uayden v. 
 Thompson, 71 Fed. Rep. 60, 2 Am. & 
 Eug. Corp. Cas. N. y. 511. And this 
 
 without an express order of the comp 
 troller. Id. 
 
 Cf. Osgood V. Ijayton, 3 Abb. App. 
 Dec. 418; Hill v. ^' ester n & A. R. Co. 
 80 Ga. 284; Porter v. Sabin, 149 U. S. 
 473, 37 L. ed. 815; Gill v. Balis, 72 
 Mo. 424. 
 
 ^Republic L. Ins. Co. v. Swigert, 135 
 111. 150, 12 L. R. A. 328; Fairbanks v. 
 Farwell, 141 111. 354. 
 
 Gottlieb V. Miller, 154 111. 44. In 
 this case it is held that a receiver could 
 not attack a fraudulent act where his 
 principal could not have done so. 
 
 In Republic L. Ins. Co. v. Swigert, 
 supra, the question involved was 
 whether the receiver in his ofllcial ca- 
 pacity could maintain a suit to recover 
 from stockholders where, pursuant to 
 a resolution of the board of directors, 
 the stockholders surrendered their 
 slock and new stock was issued in lieu 
 thereof in amounts equal in par value 
 to the cash payments made upon the 
 original stock, and it was held the re- 
 ceiver could not recover. The de- 
 cision is based upon the doctrine that 
 the powers of the receiver are in this 
 respect coextensive only with the 
 powers of the corporation. The court 
 does not seem to have given duo 
 weight to the purpose for which tho
 
 410 
 
 RECEIVERSHIPS. 
 
 § 239. Loavo of court to sue required. 
 
 It is necessary tliat a receiver before bringing suit obtain leave 
 of court anthoi'izing suit, eitber g-eiieral or speciaL' If tbe nature 
 of tbe case is sucb as to require it, it may be expedient to give 
 tlie receiver sucb general power in tbe order of appointinent, and 
 thus avoid tbe necessity of several applications therefor. If, 
 
 receiver was appointed under the pro- 
 visions of the statute in question, i. e., 
 the dissolution of the corporation and 
 the marslialiiig and distribution of its 
 assets among those entitled thereto. 
 In such case it would seem that the 
 receiver is pre-eminently the repre- 
 sentative of creiiitors, as much so at 
 least as the receiver in a creditor's 
 proceeding, where the court tacitly 
 admits the receiver to be possessed of 
 such power. At any rate the deci- 
 sion cannot be reconciled with the fol- 
 lowing cases: 
 
 "The receiver unites in himself the 
 right of the trust combination and 
 also the right of creditors, and that he 
 may assert a claim as the representa- 
 tive of creditors which he might be 
 unable to assert as a representative of 
 the combination merely. The general 
 rule is well established that a receiver 
 takes the title of the corporation or 
 the individual whose receiver he is 
 and that any defense which would 
 have been good against the former 
 may be asserted against the latter. 
 But there is a recognized exception 
 which permits a receiver of an insolv- 
 ent individual or corporation in the 
 interest of creditors to disaffirm deal- 
 ings of the debtor, in fraud of their 
 rights." Pittsburg Carbon Co. v. Me- 
 Millin, 119 N. Y. 46, 7 L. R. A. 46; 
 Qillet V. Moody, 3 N. Y. 479; Porter 
 V. Williams, 9 N. Y. 142; Curtis v. 
 Leavitt, 15 N. Y. 108; Alexander v. 
 Relfe, 74 Mo. 495. Cf. Stephens 
 V. Perrine, 148 N. Y. 476; Mandeville 
 V. Avei-y, 124 N. Y. 385. 
 
 ' Batik V. Davifs, 66 N. C. 252; King 
 V. Cattn, 24 Wis. 627; Screven v. Clark, 
 48 Ga. 41. 
 
 Cf. Helme v. Littlejohn, 12 La. Ann. 
 298. 
 
 If the receiver sues to recover on a 
 contract made with him directly, or 
 to recover damages for injury to prop- 
 erty in his possession, leave of court 
 is not required. Singerly v. Fox, 75 
 Pa. 112; Ponder v. Catterson. 127 Ind. 
 434; Wilson v. Weich, 157 Mass. 77; 
 Farnsworth v. Western U. Teleg. Co. 6 
 N.Y. Supp. 735. 
 
 A receiver is not required to obtain 
 leave of the court appointing him to 
 bring suit on an undertaking in in- 
 junction after procuring under au- 
 thority of the court a judgment dis- 
 solving such injunction. Wason v. 
 Frank (Colo. App.) 44 Pac. 378. 
 
 A receiver of an estate who brings 
 a suit against certain legatees to grat- 
 ify his dislike of them, without prop- 
 erly informing his counsel of the facts 
 of the case, cannot recover the cost 
 from the estate. Henry v. Henry, 103 
 Ala. 582. 
 
 A receiver of a bank appointed in 
 proceedings for its dissolution who ob- 
 tains leave of court to bring an action 
 against defaulting directors does not 
 entitle him to bring such action in a 
 court of equity, where he would other- 
 wise be required to bring the action 
 at law. Biggins v. Tefft, 4 App. Div? 
 63. 
 
 Cf. Grant v. Davenport, 18 Iowa, 
 181.
 
 RECElVERtSHIP OF CORPORATIONS. 411 
 
 however, the suit is likely to be protracted and expensive, special 
 leave shoiild be asked and obtained. A receiver beino- simply 
 an officer of the court, his own protection requires that liis action 
 in regard to litigation should have the sanction of the court. 
 Besides, at law, the party having the legal right to sue must do 
 so, and where the receiver resorts to a court to assert the rights 
 of another, he must show, as a part of his right to recover, his 
 authority for so doing.' Like the general powers of a receiver, 
 his power to sue must be, to some extent, governed by the nature 
 of the proceeding." If the receiver is empowered by statute to 
 sue, he need not obtain special leave of court to sue,^ and may 
 sue in a foreign jurisdiction.'' It is essential, where the receiver 
 sues in his own name, that he allege in a traversable form his 
 authority to maintain suit.^ 
 
 In relation to rights of a receiver to sue in the United States 
 courts, where the question of citizenship is involved, the citizen- 
 ship of the receiver and not that of the corporation governs.* 
 
 § 240. Suits hj foreign receiver of corporation. 
 
 "We have already examined the question of the rights and pow- 
 ers of a foreign receiver to sue in a foreign jurisdiction,' and only 
 revert to the subject in so far as receivers of corporations are 
 concerned. While it is impossible to harmonize the cases bear- 
 ing upon the question of the right of a foreign receiver to sue in 
 a state other than that in which he is appointed, the weight of 
 authority seems to establish the following propositions : 
 
 (a) Where proceedings are instituted for the purpose of dis- 
 
 ^ Screten v. Clark, 48 Ga. 41; Banys But see White v. Joy, 13 N. Y. 83; 
 
 7. Mcintosh, 23 Barb. 591; Stewart y. Steirart v. Beebe, 28 Barb. 34; llefje- 
 
 Beebe. 28 Barb. 34. wixck v. Hlven, 140 N. Y. 414; Hock- 
 
 « WeM V. Firnt Nat. Bank, lOG N. well v. Merwin, 45 N. Y. 166, as to 
 
 C. 1; Gray V. Lewis, 94 N. C. 393; what is pufflcieiit allegation. 
 
 Everett v. State, McKaig, 28 Md. 190. He should show that he has qiuili- 
 
 * Miller v. McKemie, 29 N. J. Eq. fied by giving bond. lle<iewisch v. 
 291; QUI V. Balis, 72 Mo. 424; Ken- Silven, 140 N.Y. 414. Unless he sues 
 7iedy V. Gibson, 75 U. S. 8 Wall. 498, by order of court. Boyd v. Royal 
 19 L. ed. 476. Ins. Co. Ill N. C. 372. 
 
 * Terry v. Bamberger, 44 Conn. 558. * Brisenden v. Chamberlain, 53 Fed. 
 '•Springs v. Bowery Nat. Bank, 63 Rep. 307; Amory v. Amory, 95 U. 8. 
 
 Hun, 505; Bangs v. Mcintosh, 23 Barb. 186. 24 L. ed. 428; Davies v. Lathrup, 
 591; Gillett v. Fairchild, 4 Deuio, 80; 12 Fed. Rep. 353, 854. 
 Edee v. Slrunk, 35 Neb. 307. ' g 71.
 
 412 
 
 RECEIVERSHIPS. 
 
 solvini; a cr>r[ior;iti()n in the state of its creation, and a receiver is 
 appointed tlierennder, })nrsnant to the provisions of the statute, 
 the property and assets of the corporation pass to and become 
 vested in the receiver, and are in custodia legis, for the purpose 
 of collection and distribution, and there is nothinii; hi the statutes 
 of the state in contravention of the laws or public policy of the 
 state where suit is brouo-ht, and the citizens of the latter are not 
 interested in the suit, such forei^^n receiver may maintain an ac- 
 tion and will be sustained in the proceediuij;-.' 
 
 (b) Where a receiver has been appointed by a court of compe- 
 tent jurisdiction of another state, a creditor of that state who is 
 bound by its decree appointing a receiver, cannot, as against the 
 receiver, by attachment or execution, recover the assets of the 
 corporation in another state.'' 
 
 (c) Where a receiver appointed in one state is vested with 
 the title to property in another state, he may, in an action in the 
 latter state, assert his right to the possession, if such right is not 
 in conflict with the rights of citizens of the latter state, nor 
 against the' public policy of its laws.' 
 
 ' Oilman v. KetcJtam, 84 Wis. 60, 23 
 L. R. A. 52; Reynolds v. Adden, loG 
 U. S. 353, 34 L. ed. 362; Puike}- v. 
 Stoughton Mill Co. 91 Wis. 174. 
 
 A foreign receiver of a foreign cor- 
 poration invested with practical own- 
 ership of the assets of the corporation 
 may maintain an action against a resi- 
 dent of Wisconsin upon a note pay- 
 able to the corporation. I'urkcr v. 
 Stoughton Mill Co. supra. 
 
 A receiver appointed by a state 
 court of the property of an insolvent 
 corporation, may be permitted by a 
 Federal court in another.state to de- 
 feud an action there brought against 
 the corporation. Rust v. United 
 Waterworks Co. 70 Fed. Rop. 129. 
 
 ^ Baghy v. Atlantic, M. & 0. R. Co. 
 86 Pa. 291; Bacon v. Home, 123 Pa. 
 452, 2 L. R. A. 355; Re Waite, 99 N. 
 Y. 433; Phelps v. McCann, 123 N. Y. 
 041; Toi-onto Qen. Trust Co. v. Chi- 
 cago, B. & Q. R. Co. 123 N. Y. 37; 
 
 Woodicard v. Brooks, 128 111. 222, 3 
 L. R. A. 702. 
 
 The receiver occupies the same po- 
 sition as an assignee for the benefit of 
 creditors. Parsons v. Charter Oak L. 
 Ins. Co. 31 Fed. Rep. 305; Life Asso. 
 of Ameiica v. Bundle (" Relfe v. Run- 
 die") 103 U. S. 222. 26 L. ed. 337; 
 Wtlliams V. Hintermcister, 26 Fed. 
 Rep. 889. 
 
 ^ Rogers v. Haines, 96 Ala. 586; 
 Boidware v. Davis, 90 Ala. 207, 9 
 L. R. A. 601; Oilman v. Ketcham, 84 
 Wis. 60, 23 L. R. A. 52; Uihernia 
 Nat. Bank v. Lacombe, 84 N. Y. 367; 
 Lycoming Fire Ins. Co. v. Wright, 55 
 Vt. 526; Kain v. Smith, 80 N. Y. 458; 
 Folger v. Columbian Ins. Co. 99 Mass. 
 267; Day v. Postal Teleg. Co. 06 Md. 
 354; Moseby v. Biirrow, 52 Tex. 396; 
 Stale Bank v. First Nat. Bank, 34 N. 
 J. Eq. 450; National Trust Co. v. Mil- 
 ler, 33 N. J. Eq. 155. But see Farmers 
 & M. Ins. Co. V. Needles, 52 Mo. 17;
 
 RECEIVERSHIP OF CCRPO RATIONS. 
 
 41& 
 
 (d) Wliere the receiver has rie^htfullv obtained possession of 
 property situate within the jurisdiction of his appointment, and 
 takes it to a foreign jurisdiction, in the rig-htful performance of 
 his duty, and while there his possession is interfered with hy 
 creditors of the debtor residing in tlie latter state, the receiver 
 will be protected.' 
 
 Merchants' Nat. Bank v, McLeod, 38 
 Ohio St. 174. 
 
 A foreign receiver cannot maintain 
 a suit in Wisconsin to set aside an 
 alleged fraudulent conveyance made 
 to a citizen of that state. Filkim v. 
 Nunnemaclier , 81 Wis. 91. But a 
 foreign assignment was sustained in 
 that state in favor of an assignee 
 where attachment proceedings were 
 commenced by citizens of a state 
 other than Wisconsin and Michigan 
 (residence of assignor and assignee). 
 Cook V. Van Horn, 81 Wis. 291. But 
 see Rhawn v. Pearce, 110 111. 350. 
 
 For a full collection of cases relative 
 to the rights of resident and non- 
 resident creditors in assignment and 
 receivership matters, see note to Long 
 V. Forrest, 150 Pa. 413, 23 L. R. A. 33. 
 
 Mr. Justice Magruder in Holbrooke . 
 Ford, 153 111. 633, says: "Where the 
 controversy is between a foreign re- 
 ceiver, assignee, or trustee and an 
 attaching creditor who resides in the 
 state where the attachment proceed- 
 ing is instituted, the courts of the 
 latter state will protect its own citi- 
 zen." Cf. Ileyer v, Alexander, 108 
 111. 385; Rhawn v. Pearce, 110 111. 
 350. 
 
 In May v. First Nat. Bank, 122 111. 
 551, a New York firm made an assign- 
 ment for the benefit of creditors, 
 executed in conformity with the Illi- 
 nois statute for the conveyance of 
 real estate and conveying land in 
 Cook county, Illinois, and recorded 
 in the recorder's office of that county 
 on July 28, 1884. On August 22, 1884, 
 
 a bank in Massachusetts commenced 
 an attachment suit against said firm 
 in Cook county and levied the writ 
 upon said land; the assignee inter- 
 pleaded and set up the deed of assign- 
 ment, and it was held that the deed 
 of assignment was valid as against 
 the Massachusetts creditor, it not 
 being in contravention of the Illinois 
 laws or public policy. The contest 
 was solely between an assignee in a 
 voluntary assignment executed by a 
 nonresident debtor and a foreign 
 attaching creditor. To the same 
 effect are Juilliard v. May, 130 III. 
 87, and Woodward v. Brooks, 128 111. 
 223, 3 L. R. A. 703. But see Townsend 
 V. Co.ve, 151 111. (j2, where a different 
 rule is applied to a foreign statutory 
 assignment. 
 
 ' A foreign receiver of a corpora- 
 tion cannot enforce a claim against a 
 resident debtor to the prejudice of do- 
 mestic creditors or a nonresident 
 creditor who has obtained judgment. 
 Stockhridge v. Beckwith, 1 Del. Ch. 73, 
 2 Am. & Eug. Corp. Cas. N. S. 554. 
 
 A foreign receiver will not be per- 
 mitted to maintain a suit against 
 assets of an insolvent debtor in Illinois 
 as against an Illinois creditor, but 
 this restriction does not apply to a re- 
 ceiver of such corporation appointed 
 in this state, even though the receiver 
 is appointed on application of a 
 foreign creditor. Holbrook v. Ford, 
 153 111. 633. 
 
 A bill will not lie in favor of a 
 foreign receiver to restrain the levy- 
 ing of execution under judgments
 
 414 
 
 RECEIVERSH1P6. 
 
 (e) A forcii^n receiver of a niutnal insurance company may 
 maintain in a foreign state a suit ar:;ainst a member of such com- 
 pany to recover an assessment uj)on a premium note forming 
 part of the assets of the company in the hands of the receiver 
 when tlie assessment was made.' 
 
 (f) A receiver suing in a foreign state must allege and siiow 
 that the corporation has been dissolved, or is otherwise disabled 
 from bringing suit, or that the ofHccrs of the corporation at the 
 time or prior to the connncneing of suit either negligently or wil- 
 ful Iv failed or refused to protect the corpoi-ate assets. The au- 
 thority must be alleged in traversable form, and be proved on the 
 trial.' 
 
 against the corpor.ition recovered in 
 the state on money in the hands of a 
 debtor of the corporation within the 
 state. Stockbridge v. Beckwith, 1 Del. 
 Ch. 72. 
 
 The domestic creditors of an in- 
 solvent foreign corporation are en- 
 titled to payment from property of 
 the corporation located in the state, 
 before turning over such property to 
 a foreign receiver of the corporation. 
 Corn Exch. Bank v. Rockicell, 58 111. 
 App. 506. 
 
 A foreign creditor will not be per- 
 mitted to assign his claim to a resident 
 creditor for the purpose of gaining 
 the advantages of a resident creditor. 
 State Bank v. First Nat. Bank, 34 N. 
 J. Eq. 450. 
 
 A receiver obtaining a judgment 
 against a debtor in the jurisdiction of 
 his appointment may sue on such 
 judgment in a foreign state, but he 
 does so as a judgment creditor and 
 not as a receiver. Wilkinson v. Culver, 
 25 Fed. Rep. 639. 
 
 3 Chicago, M. & St. P. B. Co. v. Keo- 
 knkN. L. Packet Co. 108 III. 317; Cam- 
 mell V. Seicell, 5 Hurlst. & N. 728; 
 Clark V. Connecticut Peat Co. 35 Conn. 
 303; Pond v. Cooke, 45 Conn. 126; 
 Taylor v. Boardman, 25 Vt. 581; 
 
 Crapo V. Fell?/, 83 U. S. 16 Wall. 610, 
 21 L.. ed. 430; Waters v. Barton, 1 
 Coldw. 450. See contra, Humphreys 
 V. Hopkins, 81 Cal. 551, 6 L. K. A. 
 792. But it has been held that a 
 foreign receiver cannot recover prop- 
 erty he never had possession of at any 
 time. Commercial Nat. Bank v. 
 Mothertcell Iron & 8. Co. 95 Tenn. 172, 
 29 L. R. A. 164. 
 
 ' Parker v. Stoitghton Mill Co. 91 
 Wis. 174. In such case the decree by 
 which the assessment is made is con- 
 clusive on the members of the com- 
 pany, unless attacked in a direct pro- 
 ceeding, notwithstanding they were 
 not present when the decree was ren- 
 dered. Hawkins v. Glenn, 131 U. 8. 
 319, 33 L. ed. 181; Lycoming F. Ins. 
 Co. V. Langley, 62 Md, 311; Band, 
 McN. & Co. V. Mutual F. Ins. Co., 
 Parker, 58 111. App. 528. 
 
 ' Such a decree is not open to col- 
 lateral attack. Origgs v. Becker, 87 
 Wis. 213. But see Great Western Teleg. 
 Co. V. Burnham, 79 Wis. 47. In a 
 proceeding by a receiver in a foreign 
 state to recover an assessment it must 
 be shown that he has authority to 
 bring the action, either by the order 
 of appointment or by the statutes of 
 the state where he is appointed, or
 
 RECEIVERSHIP OF CORPORATIONS. 
 
 415 
 
 § 241. Collateral attack of receiver. 
 
 Where a receiver bi-in<rs suit as receiver of a corporation 
 ai^ainst one of its debtors the validity of his appointment cannot 
 be attacked by the dul)tor in such proceeding. It is a collateral 
 attack and while the order might have been erroneous, and sub- 
 ject to reversal on appeal it cannot be impeached or disregarded 
 in such proceeding. The application may be inadequate under 
 the law and practice of the court, yet if the court has power to 
 decide the question involved, in other words has jurisdiction of 
 the subject-matter, it is immaterial whether the decision is correct 
 or incorrect. It is not a question that goes to the jurisdiction of the 
 court.' But the rule is otherwise if the decree appointing the re- 
 ceiver is void. A void decree is void in every proceeding where- 
 ever invoked, but a voidable decree is valid and binding every- 
 where until set aside in a proper proceeding for that purpose.' 
 
 that the assets had been assigned to 
 him. Swing v. White River Lumber 
 Co. 91 Wis. 517. 
 
 Edee v. Strunk, 85 Neb. 307; 
 Springs V. Bowery Nat. Bank, 63 Hun, 
 505; Bangs v. Mcintosh, 23 Barb. 591; 
 Rockwell V. Merwin, 45 N. Y. 166; 
 Griesel v. Schmal, 55 Ind. 475. Where 
 the receiver has general power con- 
 ferred upon him to sue he may do so 
 In a foreign jurisdiction, that is to 
 say, the power is not limited to tlie 
 jurisdiction of the court where he is 
 appointed. Merchants' Nat. Bank v. 
 McLeod, 38 Ohio St. 174. Neitber is 
 the power confined to state courts in 
 which the appointment is made, but 
 extends to Federal courts as well. 
 Chambers v.McDougal, 43 Fed . Rep.694. 
 
 Wavi» V. Shearer, 90 Wis. 250; Peck 
 V. Beloit School Dist. No. 4. 21 Wis. 
 528; Ally. Gen. v. Guardian Mut. L. 
 Ins. Co. 11 N. Y. 272; Bangs v. Buck- 
 infield, 18 N. Y. 595; Vermont & G. 
 R. Co. V. Vermont G. R. Co. 40 Vt. 
 795; Tolman v. Jones, 114 III. 155. A 
 writ of prf)hil)ition will not lie to pre- 
 vent the examination of a charge of 
 contempt In a pending proceeding 
 
 merely on the ground that the petition 
 in the proceeding does not stale a 
 cause of action, or is otherwise defect- 
 ive. State, Hoffman, v. Scarritt, 128 
 Mo. 331. And see Toi'e v. San Fran- 
 cisco Super. Ct. 108 Cal. 431. 
 
 •'People V. Weigley, 155 111. 491. In 
 this cas-e on the application of a stock- 
 holder a receiver was appointed over 
 the property of a corporation, and 
 subsequently an execution was levied 
 on a portion of the corporate prop- 
 erty. A rule was entered against the 
 judgment creditors and their attor- 
 neys to show cause why they should 
 not be attached for contempt of court, 
 and after answer they were found 
 guilty and sentenced to jail. The 
 court held that there was not sullicient 
 ground for the dissolution of the cor- 
 poration and appointment of a receiver, 
 and the appointment "was void, and 
 therefore no contempt committed. 
 " Having no general equity powers 
 in tlie case and the bill wholly failing 
 to bring it within the provisions of 
 § 25, the superior court exceeded 
 its jurisdiction in making the order 
 which appellees are charged with
 
 416 RECEIVERSHIPS. 
 
 A receiver cannot maintain a suit in tlie jurisdiction of his ap- 
 pointment a<;'ainst the purchaser of the real estate of the corpora- 
 tion which is hicated in another jurisdiction, for tlie purj)ose of 
 determinini; the title thereto.' U])on the same principle he can- 
 not avoid liens acquired by creditors after his appointment upon 
 property located in a foreig'n jurisdiction, if the liens are acquired 
 in accordance with the laws and policy of the state where ac- 
 quired.' 
 
 Where the receiver has obtained leave to sue he is not to be 
 restrained from prosecuting his suit by injunction from another 
 court, or by making him a party to another suit and there enjoin- 
 ing him. The proper place to restrain him is by application to 
 the court appointing him.' 
 
 § 242. Keceiver's possession. 
 
 The possession of the receiver of a corporation is not materially 
 different from the possession of the ordinary receiver. It has 
 already been observed that his possession will be zealously pro- 
 tected from interference from whatsoever source.* The pro[»erty 
 being in custodia legis cannot be levied on or taken on legal pro- 
 cess issued from another court, and any one knowingly violating 
 such right of possession will be guilty of contempt and nuiy be 
 punished therefor.^ And it is immaterial that the property may 
 
 violating and tbiat order must there- 0. & T. P. B. Co. 62 Fed. Rep. 803; 
 
 fore be held void." lie Wabash B. Co. 24 Fed. Rep. 217. 
 
 ^Simpkins v. Siuith & P. Gold Co. ^Taylor v. Oilleun, 23 Tex. 508; 
 
 50 How. Pr. 56; Union CaWe Co. v. Abbej/ v . International <& (?. iV. B. Co. 
 
 International Trust Co. 149 Mass. 492. 5 Tex. Civ. App. 261; Ally. Gen. v. 
 
 ''City Ins. Co. v. Commercial Bank, Continental L. Ins. Co. 28 Hun, 360, 
 
 68 111. 348; Diinlop v. Paferson F. Ins. 93 N. Y. 630; Noe v. Gibson, 7 Paige, 
 
 Co. 12 Hun, 627, Alfirined in 74 N. Y. 513; Albany City Bank v. Schenner- 
 
 145. horn, 9 Paige, 372; Fidelity Trust & 
 
 '^Winfield v. Bacon, 24 Barb. 154; 8. V. Co. v. Mobile Street B. Co. 53 
 
 Van Bensselaer v. Emery, 9 How. Pr. Fed. Rep. 687; Jackson v. Lahee, 114 
 
 138. 111. 287; Bichards v. People, 81 111. 551 ; 
 
 ^Chap. IV. See also Cohimbian Watkins v. 3Iinnesota Thresher Mfg. 
 
 Book Co. V. Be Golyer, 115 Mass. 67; Co. 41 Minn. 150; Hazelrigg v. Bro- 
 
 Gest v. Neto Orleans. St. L. & C. B. navgh, 78 Ky. 62; Hagedon v. Bank of 
 
 Co. 30 La. Kun. 2'^; Spinning y. Ohio Wisconsin, 1 Pinney, 61; Smith v. 
 
 .L. Ins. & T. Co. 2 Disney, 368; Atty. New York Consol. Stage Co. 18 Abb. 
 
 Gen. V. Guardian Mut. L. Ins. Co 77 Pr. 419; McGowan v. Myers, 66 Iowa, 
 
 N. Y. 272; Thomas f. ■Jincinr^au, N. 99; Maynard v. Bond, 67 Mo. 315;
 
 RECEIVERSHIP O^ CORPORATIONS. 
 
 417 
 
 be beyond the jurisdiction of the court, provided the court has 
 jurisdiction of the person of the one interfering with the posses- 
 sion.' The court may also restrain litigation or proceedings 
 against its receiver or the coi'poration over whose property he is 
 appointed/ The general rule, however, is that the failure to ob- 
 
 Field V. Jones, 11 Ga. 413; Steele v. 
 Sturges, 5 Abb. Pr. 442; Columhian 
 Book Co. V. De Oolyer, 115 Mass. 67; 
 Noyes V. Bich, 52 Me. 115; Bell v. Chi- 
 cago, St. L. & N. 0. R. Co. 34 La. 
 Ann. 785; East Tennessee, V. & G. R. 
 Co. V. Atlantic & F. R. Co. 49 Fed. 
 Rep. 608, 15 L. R. A. 109; Robinson 
 V. Atlantic & G. W. R. Co. 66 Pa. 160; 
 Re Sclaiyler's Steam Tow Boat Co. 136 
 N. Y. 169, 20 L. R. A. 391; Skiniier 
 V. Maxwell, 68 N. C. 400. 
 
 As we have seen elsewhere the receiv- 
 er's title or right to possession relates to 
 the date of the order (Chap. IV.), and 
 not to the date of filing the receiver's 
 bond. See also Maynard v. Bond, 67 
 Mo. 315; Anglo Italian Bank v. Davies, 
 L. R. 9 Ch. Div. 275; Ex pa)ie Evans, 
 L. R. 13 Ch. Div. 252; Steele v. Sturges, 
 5 Abb. Pr. 442; Rutter v. I'allis, 5 
 Sandf. 610; Re Berry, 26 Barb. 55. 
 But see, as to rule in Virginia, Frayser 
 V. Richmond & A. R. Co. 81 Va. 388. 
 
 It should be noticed in this connec- 
 tion that frequently by statute the 
 receiver is vested with the title to the 
 corporate property, iliddlesex County 
 Freeholders v. State Bank, 29 N. J. 
 Eq. 268; 3 N. Y. Rev. Slat. 461, 
 § 41 ; Verplanck v. Mercantile Ins. Co. 
 2 Paige, 438; American Nat. Bank v. 
 National Ben. & C. Co. 70 Fed. Rep. 
 420; Security Sav. & T. Co. v. Piper 
 (Idaho) 40 Pac. 141; People v. Weigley, 
 155 111. 491. 
 
 Even where a lien exists on prop- 
 erty at the time of the appointment 
 the holder of such lien has no ri^ht to 
 interfere with the receiver's pos.session 
 without leave of court and cannot dis 
 27 
 
 pose of the property and convey * 
 good title. Bugger v. Collins, 69 Ala. 
 324; Edwards v. Norton, 55 Tex. 410; 
 Wiswall V. Sampson, 55 U. S. 14 How. 
 52, 14 L. ed. 322; Hills v. Parker, 111 
 Mass. 510; Ellis v. Vernon Ice, L. & 
 W. Co. 86 Tex. 109. 
 
 But see as to a different rule in the 
 matter of real property, Re Loos, 50 
 Hun, 67. 
 
 Land in the hands of a receiver can- 
 not be leased by a party to the suit so 
 as to confer any rights on the lessee. 
 Thornton v. Waslungton Sav. Bank, 
 76 Va. 432. 
 
 ' Ilolbrook V. Ford, 153 111. 633. 27 
 L. R. A. 324; Serconib v. Catlin, 128 
 111. 556; Chufee v. Quidnick Co. 13 R. 
 I. 442; Langford v. Langfurd, 5 L. J. 
 Ch. N. S. LO;Vermont & C. R. Co. v. 
 Vermont C. B. Co. 40 Vt. 792; Schin- 
 delholz V. Cullum, 55 Fed. Rep. 885. 
 
 * Atty. Gen. v. Guardian Mut. L. 
 Ins. Co. 77 N. Y. 273; Rs Christian 
 Jensen Co. 128 N. Y. b5^;Wilkinson 
 V. North River Const. Co. 66 How. Pr. 
 433; Phcenix Foundry & Mach. Co. v. 
 North River Const. Co. 33 Hun, 156; 
 Walton V. Grand Belt Copper Co. 56 
 Hun, 211; Keen v. Breckenridge, 96 
 Ind. 69; De Graffenried v. Brunswick 
 & A. R. Co. 57 Ga. 22; Melendy v. 
 Barbour, 78 Va. 544; Jones v. Browse, 
 32 W. Va. 444; Burk v. Muskegon 
 Mach. & F. Co. 98 Mich. 614; Steel 
 Brick Siding Co. v. Muskegon Mach. 
 & F. Co. 98 Mich. %\fi;Vandcrbilt v. 
 Central R. Co. 43 N. J. Eq. 609; Pabja 
 v. Jewett, 32 N. J. Eq. 302; Meredith 
 Village Sav. Bank v. Simpson, 22 Kan. 
 AlA:-, Parker v Browning, 8 Paige, 388.
 
 418 
 
 RECEIVERSHIPS. 
 
 tain leave to sue the receiver is not a jurisdictional fact, but the 
 party may be liable for contempt.' 
 
 But see Woerishoffer v. North River 
 Const. Co. 99 N. Y. 398. There is 
 not entire harmony in the authorilies 
 on this subject. It has been held that 
 ■where there is no attempt in the cora- 
 monlaw suit to interfere with the re- 
 ceiver's possession, but the purpose of 
 the suit being simply to establish the 
 amount due, he may be sued without 
 leave of court, there being no restrain- 
 ing order against suits, the question 
 of leave of court not being a jurisdic- 
 tional fact. See following note. 
 
 ' Mr. Justice IMagruder, in Mul- 
 cahey v. Stratiss, 151 111. 70 (80), says: 
 "While it is true that it is a contempt 
 of the appointing court to make its 
 receiver a parly defendant to a suit 
 without leave first obtained for that 
 purpose, it does not necessarily fol- 
 low that the court in which suit is 
 brought is without jurisdiction. The 
 appointing court may protect its offi- 
 cer either by punishing the party 
 bringing the suit for contempt, or by 
 enjoining him from bringing suit. 
 But the failure to obtain leave is no 
 bar to the jurisdiction of the court in 
 which the suit is brought. This is 
 certainly true in all cases where there 
 
 is no attempt to interfere with the 
 actual possession of the property held 
 by the receiver." 
 
 T© the same effect are the follow- 
 ing cases: Hills v. Parker, 111 Mass. 
 508; S<]fford v. People, 85 111. 558; 
 BhmienHial v. Brainard, 38 Vt. 407; 
 liirslifeld v. Kalischer, 81 Hun, 606; 
 Camp V. Barney, 4 Hun, 373; Chau- 
 iauqtte County Bank v. RisJey, 19 N. 
 Y. 309; Allen v. Central R. Co. 42 
 Iowa, 683; Lyman v. CentralVermont 
 R. Co. 59 Vt. 167; Kinney v. Crocker, 
 18 Wis. 75; St. Joseph & D. C. R. Co. 
 V. Smith, 19 Kan. 325; Phelan v. Oane- 
 bin, 5 Colo. 14; Angel v. Smith, 9 Ves. 
 Jr. 335; Randfieldv. Randfield, 3 DeG. 
 F. & J. 766. See contra, Wiswall v. 
 Sampson, 55 U. S. 14 How. 53, 14 L. 
 ed. 323; Barton v. Barbour, 104 U. S. 
 126, 26 L. ed. 674; Thomjmn \. Scott, 
 4 Dill. 508. 
 
 But where it is necessary to obtain 
 leave to sue the receiver, and leave is 
 not obtained, the receiver may waive 
 such want of leave by appearance. 
 Elkhart Car Works v. Ellis, 113 Ind. 
 215; Ohio & M. R. Co. v. Nickless, 71 
 Ind. 271; Hubbell v. Dana, 9 How. 
 Pr. 424.
 
 CHAPTER XIIL 
 
 RECEIVERSHIP OF NATIONAL BANKS. 
 
 §252. Appointment and power un- (g) Improperly certifying check, 
 
 (ler Act of Congress. (h) Nonpayment of circulating 
 
 (a) Provisions of National Bank- notes. 
 
 ing Act. (i) Dissolution of corporation 
 
 (b) Powers of comptroller under. and forfeiture. 
 
 (c) Jurisdiction of courts. (j) Failure to pay judgment 
 § 253. Power of comptroller to ap- for thirty days. 
 
 point. (k) When it has become insol- 
 
 (a) Failure to keep stock at min- vent. 
 
 imum required. § 254. Power of receiver of national 
 
 (b) Failure to keep surplus banks. 
 
 good. § 255. Receiver's title. National 
 
 (c) Failure to keep reserve banks. 
 
 good. § 256. Receiver's liability. 
 
 (d) Failure to keep place for re- § 257. Suits by receiver. 
 
 demption of notes. § 258. Liability of stockholders. 
 
 (e) Holding its stock over for (a) Liability. 
 
 six months as security. (b) Defense.) 
 
 (f) Failure to pay for stock— § 259. Illegal preferences. 
 
 impairment of. § 260. Liability of directors. 
 
 § 252. Appointment and power nnder Act of Congress. 
 
 (a) Under the provisions of the National Banking Act of Jane 
 3, ISGtt, and its substantial re-enactment in § 5234 of the Re- 
 vised Statutes of the United States, power is conferred upon the 
 comptroller of the currency to appoint a receiver over a national 
 bank " on becontino; satisfied, as specified in §§ 5226 and 5227, 
 that any association has refused to pay its circtdatini; notes, 
 as therein mentioned, and is in default." It is f urtlicr provided 
 that the receiver, on givinoj bond and security, " shall take pos- 
 session of tlie l)Ooks, records, and assets of every description of 
 such association, collect all debts, dues, and claims belonging to it, 
 and upon order of a court of record of competent jtirisdiction 
 may sell or compound all bad or doul)tfid debts, and on a like 
 order may sell all the real ami personal [)ro[)erty of such associa- 
 tion on such terms as the court shall direct; and may, il neces- 
 sary to pay the debts of such association, enforce the individual 
 liability of the stockholders. Such receiver shall [);iy over all 
 
 419
 
 420 RECEIVERSHIPS. 
 
 money so made to tlie treasurer of the United States, subject to 
 the order of the coni])tr()ller, and also make report to the comp- 
 troller of all his acts and proceedinf>;s." While provision is thus 
 made for the appointment of a receiver by the comptroller of the 
 currency, upon certain contingencies, yet it must not be supposed 
 that the statute in question devests courts of equity in proper 
 cases of their jurisdiction to appoint receivers. 
 
 See also in this connection Act of Congress of June 30, 1S76. 
 
 Section 2 of Act of June 30, 1876, provides that when any 
 national banking association shall have gone into liquidation, 
 under the provisions of § 5220, Kev. Stat., the individual liability 
 of the shareholders, provided for by § 5151, may be enforced l)y 
 any creditor of snch association by a bill in equity, in the nature 
 of a creditor's bill, brought by such creditor on behalf of himself 
 and of all other creditors of the association, against the share- 
 holders tliereof, in any court of the United States having oi-iginal 
 jurisdiction in equity for the district in which the association may 
 have been located or established. 
 
 Section 3 of the same act provides that whenever any associa- 
 tion shall have been or shall be placed in the hands of a receiver, 
 as provided in § 5234: and other sections of the Revised Statutes, 
 and when, as provided in § 523G, the comptroller shall have paid 
 to each and every creditor of such association, not including 
 shareholders who are creditors of such association, whose claim 
 or claims as such creditor shall have been approved or allowed, 
 as therein prescribed, the full amount of such claims and all ex- 
 penses of the receivership, and the redemption of the circulating 
 notes of such association shall have been provided for by deposit- 
 ing, etc., the comptroller shall call a meeting of the shareholders, on 
 notice prescribed, and when a bond shall be presented, conditioned 
 for the payment in full of all claims thereafter presented and 
 allowed, the comptroller and receiver shall transfer and deli\''er 
 to the stockholders' agent selected the undivided and uncollected 
 assets and property of the association, then on hand, and execute 
 a deed or assignment therefor, which shall discharge the comp- 
 troller and receiver from all liability to the association, share- 
 holders, and creditors thereof. 
 
 Section 1 of Act of March 29, 1886, provides that the receiver 
 of a national bank may purchase the equities of the bank in cer-
 
 RECEIVERSHIP OF NATIONAL BANKS. 421 
 
 tain property specified, and pay for the same in the manner 
 prescribed. 
 
 Under Act of Coni^-ress of August 3, ISSS, the receiver or man- 
 ager of any property, appointed by any court of the United 
 States, may be sued in respect of any act or transaction of his in 
 carrying on the business connected with such property witliout 
 leave of court, Init such suit shall be subject to the general equity 
 jurisdiction of the court in which the receiver or manage.r was 
 appointed, so far as the same shall be necessary to the ends of 
 justice. 
 
 See also Act of August 3, 1892, as to powers of receiver. By 
 this act it is provided tliat on the continuation of a receiver, as 
 provided, he shall proceed with the .execution of his trust, and 
 shall sell, dispose of, or otherwise collect the assets of the associa- 
 tion, and shall possess all the powers and authority, and be sub- 
 ject to all duties and liabilities originally conferred or imposed 
 upon him by his appointment as such receiver, so far as the same 
 remains applicable. 
 
 (b) The power conferred on the comptroller to appoint a re- 
 ceiver over a national bank is not exclusive. In cases not within 
 the purview of the statute a receiver may be appointed by a court 
 of competent jurisdiction, the same as in proceedings against any 
 other corporation.' In a suit by a minority stockholder, a re- 
 ceiver may be appointed where it is shown that the baidc is 
 insolvent and its affairs are being mismanaged to the injury of 
 creditors and stockholders.^ The application for the aj^point- 
 
 ' In Irona v. Manufacturers' Nat. ^ Where a national bank is insolvent 
 
 Bank, 6 Biss. 301, it is held tliat the and in process of liquidation, and its 
 
 power conferred by the banking act affairs are being greatly mismanaged 
 
 upon the comptroller of the currency by its managing agents, to the injury 
 
 to wind up the affairs of a national of creditors and stockholders, and 
 
 bank in certain contingencies does some creditors and stockholders are 
 
 not exclude the authority of a compe- being favored to the injury of others, 
 
 tent tribunal to appoint a receiver in a receiver may be appointed at the in- 
 
 either case. In cases not within the stance of one of the stockholders not 
 
 special province of the banking act favored. Elwood v. First Nat. Bank, 
 
 a national bank may be proceeded 41 Kan. 475. 
 
 against in the same manner as any As to when a receiver will be ap- 
 
 other debtor or corporation. Wright pointed over a national bank in pro- 
 
 v. Merchants' Nat. Bank, \¥\\\i\).b(iS\ cess of liquidation, see Watkins v. 
 
 Merchants' & P. N<tt. Bank v. Masonic National Bank, 51 Kan. 254. 
 
 Hall, 63 Ga. 549, G5 Qa. 603. A court of equity has power to ap-
 
 422 
 
 RECEIVERSHIPS. 
 
 ment, as in other crises, must clearly sliow danger or loss to the 
 plaintilT, and that the propriety is reasonahly free from doubt.' 
 The a})pointnient, however, will not be void by reason of defects 
 in the petition wliich may be cured by amendment." The effect 
 of the appointment will not be to dissolve the corporation, nor 
 does the bank lose its corporate existence thereby/ Under the 
 
 point a receiver of a stale banking 
 corporation on the petition of a stock- 
 holder, under Iowa Code, i^ 2903, pro- 
 viding that on the petition of either 
 parly lo a civil action, wherein he 
 shows that he has a probable rii;ht to 
 or interest in any property which is 
 the subject of controversy, and that 
 such property or its rents or profits 
 are in danger of being lost or maleri- 
 ally injured, a receiver may be ap- 
 pointed. Diclcej-son v. Cass County 
 .Ban/fc(Iowa)64N.\V. 395. 
 
 And see also Irons v. Ma7ivfacturers'' 
 Nat. Bank, 6 Biss. 301. 
 
 Until the comptroller acts the court 
 may appoint. Wright v. Merchants'' 
 Nat. Bank, 1 Flipp. 583. 
 
 ' In Watkins v. National Bank, 51 
 Kan. 254, it is held that before a court 
 shall take the property and business 
 of a liquidating bank from the control 
 of the directors on the application of 
 a stockholder, it must appear that the 
 danger of loss or injury to the rights 
 of the plaintiff are clearly proved 
 and the necessity and right for the 
 appointment free from reasonable 
 doubt. 
 
 ' The appointment of a receiver of 
 a state bank on the application of a 
 stockholder, which the court had 
 jurisdiction to grant, is not void be- 
 cause of defects in the petition which 
 can be cured by amendment. Dicker- 
 son V. Cass County Bank (Iowa) 64 N. 
 W. 395. 
 
 ^The appointment of a receiver for 
 a national bank does not amount to a 
 dissolution of the corporation such as 
 
 will prevent the rendition of a judg- 
 ment agiiinst it. Chemical Nat. Bank 
 V. Hartford Deposit Co. 161 U. S. 1, 40 
 L. ed. 595; Rosenblatt v. JoJmsion, 104 
 U. S. 462, 26 L. ed. 832. 
 
 The appointment of a receiver of a 
 bank, in proceedings instituted by the 
 altorne}^ general under the California 
 bank commissioners' act to enjoin an 
 insolvent bank from transacting fur- 
 ther business, is not authorized by such 
 act providing that the commissioners 
 may be authorized to take such pro- 
 ceedings against the bank as may be 
 decided by its creditors, nor by the 
 general authority of the California 
 Code in relation to the appointment 
 of receivers. Murray v. American 
 Surety Co. 70 Fed. Rep. 341. 
 
 In First Nat. Bank v. National PaJi- 
 quioque Bank, 81 U. S. 14 Wall. 383, 20 
 L. ed. 840, it was held that a national 
 bank may be sued in any state, 
 county, or municipal court in the 
 county or city in which it is located, 
 which has jurisdiction in similar 
 cases. The act of the comptroller 
 of currency in appointing a receiver 
 does not work its complete dissolu- 
 tion, but the bank, as a legal entity, 
 continues to exist and may still be 
 sued and sue, where it is necessary 
 that the corporate name shall be used 
 in closing up the business. 
 
 In New York Security Bank v. Com- 
 monwealth Nat. Bank, 2 Hun, 287, it is 
 held that where a receiver of a bank 
 has been appointed under the National 
 Currency Act the bank still continues 
 to exist and a suit is properly instituted
 
 RECEIVERSHIP OF NATIONAL BANKS. 
 
 423 
 
 Act of 1S7G, when a cause exists for the appointment of a re- 
 ceiver, the comptroller, after due examination of the bank's 
 affairs, appoints a receiv^er who shall proceed to close up such 
 association, and enforce the personal liability of the stockholders, 
 as provided in § 5234 of the Revised Statutes. A certificate of 
 the receiver's appointment from the comptroller is satisfactory 
 evidence of the appointment.' 
 
 (c) Inasmuch as a receiver of a national bank appointed by the 
 comptroller of the currency is an ofhcer of the United States the 
 Federal courts have jurisdiction of an action in his name irre- 
 spective of the amount involved or the cpiestion of citizenship," 
 
 against it and the defense is made by 
 it. 
 
 In Turner v. First Nat. Bank, 26 
 Iowa, 562, it was held, in a proceed- 
 ing for the adjudication of a claim 
 against a national bank that has sus- 
 pended, that a bank and receiver may 
 both be sued jointly. 
 
 In Oreen v. WaJkill Nat. Bank, 7 
 Hun, 63, it was held that the appoint- 
 ment of a receiver of a national bank 
 did not dissolve a corporation and 
 that a suit might be brought against 
 both the bank and the receiver, fol- 
 lowing the decision in National Pah- 
 quioque Bank v. Bethel First Nat. 
 Bank, 36 Conn. 325, 81 U. S. 14 Wall, 
 3«3, 20 L. ed. 840. 
 
 In Central Nat. Bank v. Connecticut 
 Mat. L. Ins. Co. 104 U. S. 54, 26 L. 
 ed. 693, it is held that a national bank 
 in voluntary liquidation under the 
 statute is not thereby dissolved as a 
 corporation and may sue and be sued 
 by name for the purpose of winding 
 up its business. 
 
 Cf. National Pahquioque Bank v. 
 Bethel First Nat. Bank, 36 Conn. 325; 
 Turner v. First Nat. Bank, 26 Iowa, 
 563. 
 
 The receiver is an officer of the 
 United States. Piatt v. BeacJi, 2 Ben. 
 303; Kennedy v. Gibson, 75 U. S. 8 
 Wall. 4'J8, I'J L. ed. 476. 
 
 In Gibson v. Peters, 150 U. S. 342, 
 37 L. ed. 1104, it was held that a re- 
 ceiver of a national bank is an officer 
 and agent of the United States within 
 the meaning of those terms as used in 
 Rev. Stat. § 380, providing that all 
 suits and proceedings arising out of 
 the provisions of the law governing 
 national banking associations in which 
 the United States or any of its officers 
 or agents are parties, shall be con- 
 ducted by the district attorneys of the 
 several districts under the supervision 
 of the solicitor of the treasury. 
 
 ' Piatt v. Crawford, 8 Abb. Pr. N. 
 8. 297; Piatt v. Beebe, 57 N. Y. 339; 
 Ta/pley v. Martin, 116 Mass, 275; 
 Thatcher v. West River Nat. Bank, 19 
 Mich. 196. 
 
 "" 24 Stat. atL. 552, chap. 373, ^ 1, pro- 
 vides: "The circuit courts of the 
 United States shall have original cog- 
 nizance, concurrent with iJie courts of 
 the several slates, of all suits of a civil 
 nature at common law or in equity 
 where the matter exceeds, exclusive of 
 costs, the sum or value of $2,000, and 
 arising under the Constitution and 
 laws of the United States." Slate 
 courts have concurrent jurisdiction 
 with the Federal courts in an action 
 brought by a receiver. Thompson v, 
 Bchloeizel, 2 S. D. 395. In Cadle v. 
 Tract/, 11 Blutchf. 101, a suit by a
 
 424 
 
 RECEIVERSHIPS. 
 
 Under the statute as it formerl}^ existed tlie United States district 
 courts were oiven the exchisive jurisdiction in all suits by and 
 against national banks, but under tlie present statute the receiver 
 may maintain an action in the state courts.' When a receiver 
 
 resitlont of Kentucky ajrainst a bank 
 incoriiorated under Ibe National Bank, 
 ing Act and resident in Alabama, was 
 brought by attachment in the supreme 
 court of New York to recover a debt 
 due from the bank to him, and it was 
 held there was no jurisdiction on the 
 ground that the New York court could 
 not acquire jurisdiction, at least in 
 inmtum, of a suit against a corporation 
 created under the National Banking 
 Act. Cf. Manufacturers' Nat. Bank 
 V. Baack, 8 Blatchf. 137. In Ilemlee v, 
 Connecticut & P. R. R. Co. 23 Blatchf. 
 453, it was held that where a receiver 
 of a national bank appointed b}' the 
 complroller has in his possession 
 bonds pledged to the bank to secure a 
 debt, and has obtained from court an 
 order for their sale, and a corporation, 
 a citizen of the state of Vermont, has 
 brought suit in Canada against the 
 receiver to recover the bonds, the 
 Federal Court has jurisdiction of a 
 bill filed by the receiver against the 
 corporation to enjoin it from fuither 
 prosecuting the Canadian suit, and 
 that such jurisdiction is not taken 
 away by § 4 of the Act of July 
 12, 1882 (22 Stat, at L. 162). Cf. 
 Frelivnhuynen v. Baldioin, 12 Fed. 
 Rep. 395; Price \. Abbott, 17 Fed. Rep. 
 506; Piatt v. Beach, 2 Ben. 303; Arm- 
 strong v. Trautman, 36 Fed. Rep. 275. 
 
 ' Wanhington Nat. Bank v. Eckels, 57 
 Fed. Rep. 870. 
 
 In Richmond v. Irons, 121 U. S. 27, 
 30 L. ed. 804, it was held that before 
 the act of June 30, 1870, a court of 
 equity had no jurisdiction of a suit to 
 prevent or redress maladministration 
 or fraud against creditors in the vol- 
 
 untary liquidation of such a bank, 
 whether contemplated or executed, and 
 that a suit brought by one creditor 
 must necessarily be for the benefit of 
 all; that it was the intention of Con- 
 gress by the act mentioned to provide 
 ample and elTective remedies in all the 
 specific cases for the protection of the 
 public and the payment of creditors, 
 by the application of the assets of the 
 bank and the enforcement of the lia- 
 bility of stockholders. The applica- 
 tion of the assets of the bank and en- 
 forcing the liability of the stock- 
 holders, however otherwise distinct, 
 are by the statutes made connecting 
 parts of the whole series of transactions 
 which constitute the liquidation of the 
 affairs of the bank. 
 
 In First Nat. Bank v. Morgan, 132 
 U. S. 141, 33 L. ed. 282, it is held that 
 the exemption of national banks from 
 suits in state courts in counties other 
 than the county or state in which the 
 association was located under the act 
 of February 18, 1875, was a personal 
 privilege which could be waived by 
 appearing to such suit. 
 
 In Whittemore v. Amoskeag Nat. 
 Bank, 134 U. S. 527, 33 L. ed. 1002, 
 it was held that an action against a 
 national bank in a circuit court of the 
 United Slates where all the parties are 
 citizens of the district in which the 
 bank is situated, and the action is not 
 under § 5209 or § 5239 of the Revised 
 Statutes, the circuit court has no juris- 
 diction. 
 
 See U. S. Rev. Stat. § 503; Act of 
 1882, July 12; Act of 1887, March 3; 
 Thompson v. Schaetzel, 2 S. D. 395; 
 Cadle V. Tracy, 11 Blatchf. 101; Ken-
 
 RECEIVERSHIP OP NATIONAL BANKS. 
 
 425 
 
 has been appointed by the comptroller a conrt of e(piltj has no 
 power to interfere with or control the administration of such 
 comptroller, in respect to the winding-up of the atfairs of the 
 bank.' 
 
 § 253. Power of Comptroller to appoint. 
 
 The jurisdiction to appoint receivers of national banks is vested 
 in the comptroller of the currency in the following cases : (a) 
 for failure to keep its stock at minimum ; (b) for not keeping its 
 surplus good ; (c) for not keeping its I'eserve good ; (d) for not 
 keeping a place selected for tlie redemption of its notes ; (e) for 
 holding its stock over six months ; (f) for failure to pay up for 
 its capital stock, and permitting the same to become impaired ; 
 (g) for improperly certifying a check ; (h) for nonpayment of its 
 circulating notes ; (i) where the bank has been dissolved and its 
 franchises forfeited; (j) for a failure to pay a judgment against it 
 for a period of thirty days; (k) when it has become insolvent.' 
 
 While the power vested in the comptroller is discretionary it 
 is at the same time final.^ 
 
 nedy v. Qibnon, 75 U. S. 8 Wall. 498, 
 19 L. ed. 476. Cf. Oernvmia Nat. 
 Bank v. Cane, 99 U. S. G28, 25 L. ed. 
 448; Stanton v. Wilkeson, 8 Ben. 357; 
 Peters v. Foster, 56 Hun, 607. 
 
 ' VanA7iiwerpv. Hulburd, 7Blatchf. 
 426. 
 
 'See U. S. Rev. Stat, gg 5141, 5151. 
 5191. 5195. 5201, 5205, i^208, 5234- 
 5237. 
 
 In Price v. Abbott, 17 Fed. Rep. 506, 
 it is held that the appointment of a re- 
 ceiver by the comptroller as provided 
 by law is to be presumed to be made 
 with the concurrence and approval of 
 the Secretary of the Treasury. 
 
 In an action by the receiver of an 
 insolvent national bank an allegation 
 that on a day named the comptroller 
 of the currency appointed the plaintiff 
 receiver of the bank in accordance 
 with the provisions of the Act of Con- 
 gress (referring to it), and the plaintiff 
 has taken possession of the assets in- 
 
 cluding the demand in suit, is in sub- 
 stance a sufficient allegation of ap- 
 pointment. Piutt V. Crawford, SA-hh. 
 Pr. N. S. 297. 
 
 3 In Cadle v. Baker, 87 U. S. 20 Wall. 
 650, 22 L. ed. 448, it is held that the 
 appointment of a receiver cannot be 
 inquired into so far as its legality is 
 concerned by a debtor of the national 
 bank in a suit by the receiver. The 
 appointment of the receiver by the 
 comptroller is conclusive until set 
 aside by an application of the bank. 
 To the same effect is Case v. Mar- 
 cJtand, 23 La. Ann. 60. 
 
 In riatt V. Beebc, 57 N. Y. 339, it 
 was held that acerliflrateof the comp- 
 troller of the currency, approved and 
 concurred in by the Secretary of the 
 Treasury, reciting the existence of all 
 the facts of which the former is re- 
 quired by the National Currency Act 
 (13 Stat, at L. 99, t^ 50) to be satisfied 
 to authorize him to appoint a receiver
 
 426 
 
 RECEIVERSHIPS. 
 
 § 254. Power of receiver of national banks. 
 
 The power of a receiver appointed by the comptroller over a 
 national bank is measured by the terms of the statute, and such 
 powers as are incident to the due and proper performance by him 
 of the functions of his office.' His power, under the direction of 
 the comptroller, is express as to the collection of all debts, dues, 
 and claims belongin^^ to the bank, and under the orders of a court 
 of competent jurisdiction he may sell or compound all bad or 
 doubtful debts, and sell all the real and personal property of the 
 bank on such terms as the court shall direct, and may enforce the 
 individual lial)ility of the stockholders when necessary to do so in 
 order to pay the debts, such action being in his own name and 
 against the stockholders individually.'' In the latter proceeding, 
 
 of a national bank under the provisions 
 of that act, is sufficient evidence of the 
 validity of the appointment in an ac- 
 tion by the receiver. 
 
 ' "It is for the comptroller to de- 
 cide when it is necessary to institute 
 proceedings against the stockholders 
 to enforce their personal liability, and 
 wliether the whole or a part, and if 
 only a part, how much shall be 
 collected. These questions are re- 
 ferred to his judgment and discretion 
 and his determination is conclusive. 
 The stockholders cannot controvert 
 it. It is not to be questioned in the 
 litigation that may ensue. He may 
 make it at such time as he may deem 
 proper and upon such data as shall 
 be satisfactory to him. This action 
 on his part is indispensable whenever 
 the personal liability of the stock- 
 holders is sought to be enforced and 
 must precede the institution of the 
 suit b}' the receiver. The fact must 
 be distinctly averred in all such 
 cases and if put in issue must be 
 proved." Kennedy v. Gibaon, 75 U. S. 
 8 Wall. 498, U) L. ed. 476; Adams v. 
 Johnson {" Bowden v. Johnson") 107 
 U. S. 251, 27 L. ed. 386; Plait v. 
 Crawford, 8 Abb. Pr. N. S. 297. A 
 
 receiver appointed by the comptroller 
 is an agent of the United States, and 
 is limited in his functions by the ob- 
 ject of the receivership, and the 
 duties which it involves. He cannot 
 sell the property of the bank in the 
 absence of an order of a court of 
 competent jurisdiction, or on terms 
 in conflict with such order. He can- 
 not by an executory contract change 
 the estate of the bank unless author- 
 ized so to do under the provisions of 
 the statute and the order of court. 
 And persons dealing with a receiver 
 are bound to take notice of his 
 authority to act, and contract with 
 him at their peril. Ellis v. Little, 27 
 Kan. 707. 
 
 A receiver of a national bank has 
 power, in the absence of any direc- 
 tion by the comptroller to the con- 
 trary, to agree with a creditor before 
 the debt is barred to waive the statute 
 of limitations in order to induce the 
 creditor not to bring suit. Bridges v. 
 Stephens (Mo.) 34 S. W. 555. 
 
 •^ See U. S. Rev. Stat. § 5234; also, 
 Adams v. Johnson (" Bowden v. John- 
 son") 107 U. S. 251, 27 L. ed. 386; 
 Kennedy v. Gibson, 75 U. S, 8 Wall. 
 498, 19 L. ed. 476.
 
 RECEIVERSHIP OF NATIONAL BANKS. 
 
 427 
 
 however, the direction of the compti'oller is a necessary pre- 
 requisite, and his action is conchisive,' A receiver has power to 
 
 In Ellis V. Little, 27 Kan. 707, a re- 
 ceiver appointed by the comptroller 
 of cuireucy was held to be the agent 
 of the United States, and is limited as 
 to his functions by the object of the 
 receivership and the duties it involves. 
 Such a receiver, upon the order of a 
 court of record of competent juris- 
 diction, may sell or compound all 
 bad or doubtful debts, and on a like 
 order may sell all the real estate and 
 personal property on such terms as 
 the court shall direct; but he cannot 
 sell the properly of the bank in the 
 absence of such an order, or upon 
 terms in conflict with the direction of 
 the order. He cannot, as such re- 
 ceiver, charge the estate of the bank 
 ■with his executory contract unless 
 authorized so to do under the pro- 
 visions of the National Banking Act 
 and the order of a court of competent 
 jurisdiction obtained under the terms 
 of the act. A receiver directed by a 
 court to sell the assets of a bank "on 
 such terms and in such manner as in 
 his judgment shall be for the best in- 
 terest of the creditors and all in- 
 terested in the bank and its assets," is 
 not empowered thereby to exchange, 
 barter, or trade the property of the 
 bank for other or different property. 
 Persons dealing with the receiver of 
 a national bank in his official capacity 
 are bound in law to take knowledge 
 of his authority to act, and where he 
 acts in excess of his authority, the 
 persons with whom he deals contract 
 at their peril, and the estate of the 
 bank cannot be charged for the de- 
 fault or inability of the receiver to 
 perform the contract. 
 
 In Barrett v. Ilenrietta Nat. Bank., 
 78 Tex. 222, it is held that the law 
 regulating the appointment of re- 
 
 ceivers of the properly of national 
 banks and declaring their powers and 
 duties does not recognize the exist- 
 ence of power in the receiver to con- 
 tract with an attorney regarding a 
 mortgage held by the bank and give 
 the attorney a portion of the property 
 or money realized. 
 
 ' Kennedy v, Gibson, 75 U. S. 8 
 Wall. 498. 19 L. ed. 476; Strong v. 
 Southworth, 8 Ben. 331. In Harceyv. 
 Lord, 11 Biss. 144, it is held that 
 where a bill in the nature of a credi- 
 tor's bill has been filed under the pro- 
 visions of the national banking law 
 against the shareholders of a bank to 
 enforce their liability, a suit at law by 
 a receiver appointed by the comp- 
 troller cannot be maintained against 
 an individual shareholder to enforce 
 the same liability, while the former 
 suit is pending. In this case the 
 power of the comptroller to appoint a 
 receiver to wind up a national bank 
 where a receiver has been appointed 
 by the court in a creditor's proceed- 
 ing and steps taken to enforce share- 
 holders' liability, is discussed. See 
 also Case v. Marchand, 23 La. Ann. GO. 
 
 As to the power of the comptroller 
 of the currency, see Case v. Small, 4 
 Woods, 78. 10 Fed. Rep. 722. 
 
 In Van Antwerp v. IluUmrd, 8 
 Blatchf. 282, on a demurrer iuterpo.'^ed 
 by the receiver it was held that the 
 bonds deposited by the bank wilh the 
 treasurer were to be held e.\;clu.sively 
 for the purpose of securing the circu- 
 lating notes, and it is only the moneys 
 paid over by the receiver under the 
 50th .section which are subject to a 
 dividend. There is no provision in 
 the act authorizing the treasurer to 
 di.'-pose of the residue or surplus pro- 
 ceeds of such bonds in payment of
 
 428 
 
 RECEIVERSHIPS. 
 
 disaffirm an unlawful act of the bank,' and he may remove all 
 liens by attachment which are desij^ned to give preference to 
 creditors in violation of the statute,'^ and in behalf of creditors 
 and stockholders may sustain an action ai;-ainst the bank directors 
 for a misappHeation of the funds of the baidc, or the loss thereof 
 through neghgence.^ But the receiver is not the representative 
 
 the debts of the bauk or ollierwise. 
 The residuary interest of the bank in 
 the securities as pledged is a part of 
 the assets of the bank, the same as 
 though such securities had been 
 pledged to a private person as col- 
 lateral security for the payment of an 
 ordinary comniercial debt, and a 
 properly appointed receiveras. the rep- 
 resentative of the banli, has the right 
 to demand and receive the prop- 
 erty so pledged as an asset of the 
 banlc in the one case the same as the 
 other. 
 
 In Ellis V. Little, 27 Kan. 707, it 
 was held that the receiver is the 
 agent of the United States and is lim- 
 ited as to his function by the object 
 of the receiver and the duties which 
 it involves. Such a receiver, under 
 the order of the court of competent 
 jurisdiction, may sell or compound 
 all bad or doubtful debts and may 
 sell all the real and personal property 
 on such terms as the court shall direct, 
 but cannot do so without an order of 
 court. He cannot charge the estate 
 by his executory contract unless au- 
 thorized so to do by the Banking Act 
 and the order of court under the 
 terms of the act. 
 
 In Casey v. La SocietS de Credit 
 Mohilier, 2 Woods, 77. it is held that 
 the receiver holds only the estate 
 and title of the bank in the assets, but 
 has no greater rights in enforcing 
 iheir collection than the bank itself 
 w'ould have had. Neither the bank 
 nor its receiver could recover posses- 
 sion of the negotiable securities 
 
 pledged by the bank for advances to 
 it on the ground that the pledge was 
 ineffecual for want of indorsement of 
 the securities, while at the same time 
 holding on to the assets to secure re- 
 payment of which the pledge was 
 given. 
 
 ' Johnston v. CJinrlottesnlle Nat. 
 Bank, 3 Hughes, 657; L>oicd v. Ste- 
 pbenson, 105 N. C. 4G7; National 
 Sccur. Banlc v. Butler, 129 U. S. 223, 
 32 L. ed. 6S2; Weber v. Spokane Nat. 
 Bank, 50 Fed. Rep. 735; Winters v. 
 Armstrong, 37 Fed. Rep. 508; New 
 Albany v. Burke, 78 U. S. 11 Wall. 
 9(), 20 L. ed. 155; Curranw. Arkansas, 
 50 U. S. 15 How. 304, 14 L. ed. 705; 
 Put)iam V. New Albany & 8. C. J. B. 
 Co. {"Burke v. Smith") 83 U. S. 16 
 Wall. 390, 21 L. ed. 361. 
 
 2 First Nat. Baiik v. Colby, 88 U. S. 
 21 Wall. 609, 22 L. ed. 687. Cf. Tracy 
 V. First Nat. Bank, 37 N. Y. 523; 
 Woodward v. Ellsworth, 4 Colo. 580; 
 Harvey v. Allen, 16 Blatchf. 29; 
 Roberts v. Uill, 23 Blatchf. 312; Cadle 
 V. Tracy, 11 Blatchf. 101. 
 
 In Armstrong v. Scott, 36 Fed. Rep. 
 63, it was held that U. S. Rev. Stat. 
 § 5242, makes any payment of money 
 by an insolvent national banli to 
 shareholders or creditors with a pur- 
 pose of preferring such shareholder 
 or creditor, or for the purpose of 
 evading the disposition of assets, as 
 required by statute, absolutely null 
 and void. Cf. National Seeur. Bank 
 V. Butler, 129 U. S. 223, 32 L. ed. 682; 
 U. S. Rev. Stat. § 5242. 
 
 8 Movius V. Lee, 24 Blatchf. 291.
 
 RECEIVERSHIP OF NATIONAL BANKS. 
 
 429 
 
 of tlic 2joveriiniGnt in the sense of having power to sultjcet it to 
 th(i jurisdiction of the courts.' 
 
 § 255. Receiver's title. National banks. 
 
 The receiver's title to the property and assets of a national 
 bank is, in the main, similar to that of other receivei'ships, and,as 
 a rule, he succeeds to the title of the bank, and takes its property 
 and assets in precisely the condition it is in at the time of his ap- 
 pointment, subject to all then existing liens thereon, or rights 
 therein.^ His powers, however, are much more limited than 
 
 ' In Case v. IVrrell, 78 U. S. 11 
 Wall. 199, 20 L. ed. 134, it is held 
 that the receiver of a natioual bank, 
 where operations have been suspended 
 by the comptroller of the currency 
 for causes specified in the Nalioua! 
 Currency Act, in no sense represents 
 the government and has no power to 
 subject the government to the juris- 
 diction of the courts. Neillier has 
 the comptroller such power. 
 
 "The receiver derives no title to 
 funds held by the bank in trust. 
 Welles V. Stout, 38 Fed. Rep. 807. 
 Nor to properly in the custody of the 
 bank which it does not own. Corn 
 Kxch. Bank v. Blye, 101 N. Y. 303. 
 Personal projierly of an insolvent na- 
 tiontil bank in the hands of a receiver 
 appointed pursuant to U. S. Rev. Stat. 
 § 5234, remains exempt from taxation 
 under state laws. liose/iblatt v. John- 
 ston, 104 U. S. 4G2, 26 L. ed. 832. 
 This is because tlie corporate capacity 
 of the bank does not cease on the ap- 
 pointment of a receiver. First Nat. 
 Bank v. National Pahquioque Bank, 
 81 U. S. 14 Wall. 383, 20 L. ed. 840; 
 Kennedy v. Gibson, 75 U. S. 8 Wall. 
 498, 19 L. ed. 47G; National Bank v. 
 Kennedy, 84 U. S. 17 Wall. 19, 21 L. 
 ed. 554. The right of set-oil exists 
 ir favor of a defendant against 
 whom a receiver is i)roceeding to 
 make a debt due from him to the 
 
 bank. Armsfronr/ v. TF«?'«er, 49 Ohio 
 St. 37G, 17 L. R. A. 466. The closing 
 of a bank by order of the examiner, 
 the appointment of a receiver, and its 
 dissolution by decree of a circuit court 
 necessarily transfers the assets of the 
 bank to the receiver. The receiver 
 takes the assets in trust for creditors 
 and in the absence of a statute to the 
 contrary subject to all claims and de- 
 fenses that might have been inter- 
 posed against the insolvent coipora- 
 tion. The ordinary equity rule of 
 set-off in case of insolvency is that 
 where the mutual obligations have 
 grown out of the same transaction, 
 iiLSolvency on the one hand justifies 
 the set-oil of the debt due on the other, 
 and this rule applies to insolvent na- 
 tifjnal banks. iScoit v. Armstrong, 146 
 U. S. 499, 36 L. ed. 1059. 
 
 In Scott V. Artmtronn, 146 U. S. 499, 
 36 L. ed. 1059, it is held that llie closing 
 of a national bank by order of the ex- 
 aminer, the appointment of a receiver, 
 and its dissolution by decree of the 
 circuit court, necessarily transfer the 
 assets of the bank to the receiver who 
 holds the assets in trust for the cred- 
 itors, and in the ab.sence of a statute 
 to the contrary, subject to all claims 
 and defenses that might liavc been in- 
 terpf)sed against tlie insolvent corpo- 
 ration.
 
 430 
 
 RECEIVERSHIPS. 
 
 tliose applicable to rcceivcrsliips of corporations generally, and 
 are confined, as a rule, to the conversion of the property into cash, 
 and the collection of its assets, and placing them in the United 
 States Treasury.* Neither has he power to make contracts exec- 
 utory in their nature, except where he has statutory authority 
 tlierefor and under the sanction of a court of competent jurisdic- 
 tion." He, of course, derives no title to property of a third per- 
 son or corporation that comes to his possession along with other 
 property belonging to the bank.' Neither does he obtain title to 
 the bonds which are deposited with the Treasurer of the United 
 States as security for the redemption of its circulating notes.* 
 Property held by the bank in trust, or which is impressed with a 
 trust relationship does not pass to the receiver subject to general 
 distribution among creditors.^ But in such case the cestui que 
 
 ^ Ellis V. Little, 27 Kan. 707. 
 
 ^ Ellis V. LiWe, 27 Kan. 707; Barrett 
 V. Henrietta Nat. Bank, 78 Tex. 222. 
 
 3 In Corn Exch. Ba:ik v. Bli/e, 101 
 N. Y. 303, a party claiming title to 
 property in the possession of the re- 
 ceiver of an insolvent national bank, 
 vphich came to his possession with 
 other property belonging to the bank, 
 it was held that, on the refusal of the 
 receiver to deliver possession, the 
 claimant could maintain an action of 
 replevin therefor, such proceeding not 
 being prohibited by U. S. Rev. Stat. 
 g 5242. Nor will the custody of the 
 receiver of such property be protected 
 by injunction. 
 
 * Where bonds are deposited with 
 the Treasurer of the United States as 
 security for redemption of its circu- 
 lating notes under the general Bank- 
 ing Act of June 3, 1884, they are not 
 liable for the payment of indebtedness 
 to the general creditors of an insolv- 
 ent bank; that the receiver of a bank 
 had no control over the bonds as re- 
 ceiver. The residuary interest of the 
 bank in the bonds was part of the 
 assets of the bank, however, which 
 the receiver was entitled to. Van 
 Antwerp v. Eulburd, 8 Blatchf. 282. 
 
 The court has no jurisdiction to en- 
 tertain a suit in equity brought by a 
 private person to interfere with or 
 control the administration of the du- 
 ties of the comptroller of the currency 
 and of the Treasurer of the United 
 States with respect to bonds deposited 
 with the Treasurer to secure the re- 
 demption of circulating notes. Van 
 Antwerp v. Hulburd, 7 Blatchf. 42(5. 
 
 *In Central Nat. Bank v. Connecticut 
 Mut. L. Ins. Co. 104 U. S. 54, 26 L. 
 ed. 693, it is held that, as long as trust 
 properly can be traced and followed, 
 the property into which it has been 
 converted remains subject to the trust 
 and if a person mixes trust funds with 
 his own, the whole will be treated as 
 trust property, except so far as the 
 holder may be able to distinguish 
 what is his. This doctrine applies to 
 moneys deposited in a bank and 
 to the debt thereby created, as well as 
 to other property. 
 
 In Pliiladelpliia Nat. Bank v. Dowd, 
 38 Fed. Rep. 172, 2 L. R. A. 480. 
 paper was sent to a bank for collection 
 and immediately returned to the plain- 
 tiff; the paper was collected and the 
 proceeds mingled with other motitys 
 of the bank instead of being for-
 
 RECEIVERSHIP OF NATIONAL BANKS. 
 
 431 
 
 warded to the plaintifif. The bill 
 asked to have the balance due plain- 
 tiff paid in full on the ground that the 
 bank, by receiving the paper for col- 
 lection and immediately returning it, 
 became a trustee and that either its 
 entire property or the money in its 
 vaults became impressed with the 
 trust. Held, that if the mingling of 
 the funds was a breach of trust it was 
 a conversion and plaintiff became a 
 simple contract creditor with no pref- 
 erence, and it was immaterial whether 
 or not the bank stood in a fiduciary 
 capacity to the plaintiff, as the facts 
 showed that the money collected could 
 not be traced into any specific invest- 
 ment or fund, but had been undis- 
 tinguishably mingled with the general 
 assets. 
 
 The assets of a bank in the hands of 
 its receivers are impressed with a trust 
 in favor of a city whose moneys were 
 deposited in such bank to the knowl- 
 edge of the latter's officers, who min- 
 gled it with the money of the bank, 
 where assets purchased with such 
 money have come to the hands of the 
 receiver. Spokane v. FirdNat. Bank, 
 68 Fed. Rep. 982. 
 
 A county has no lien upon or pri- 
 ority in the funds in the hands of a 
 receiver of a national bank, for pub- 
 lic funds deposited in the bank by its 
 officers, unless the same money, or 
 assets or property procured by its use, 
 eomes into the hands of the receiver, 
 although the estate of the bank has 
 received the benefits of the money, and 
 its assets may have been tliereby in- 
 creased. Spokane County v. First Nat. 
 Bank, 68 Fed. Kep. 979. 
 
 The owner of a note sent for collec- 
 tion to a bank with which the maker 
 deposits suflicient to meet the note, 
 which is thereupon canceled by the 
 bank and returned to the maker and 
 charged to his account, may collect 
 the amount thereof from the receiver 
 
 of the bank who is appointed before 
 the presentation of a draft given by 
 such bank for the amount of the note, 
 whore the amount so deposited has 
 not been drawn out. People v. Mer- 
 chantn' Ba7ik, 92 Hun, 159. 
 
 In Crar/ie v. Uadlcy, 99 N. Y. 131, 
 it appeared that the plaintiff depos- 
 ited, in the usual course of business, 
 drafts with the national bank which 
 were credited to the plaintiff on the 
 books. The bank was at the time ir- 
 retrievably insolvent and its drafts 
 had gone to protest the day before, of 
 which the president of the bank, hav- 
 ing control thereof, had full knowl- 
 edge, and presumably its other officers 
 and agents. Tlie bank kept open un- 
 til the usual hour of closing on the 
 day of deposit and did not open its 
 doors thereafter, but went into the 
 hands of a receiver. In an action to 
 recover the deposit it was held that 
 permitting the plaintiffs to make it in 
 reliance upon the supposed insolvency 
 of the bank a gross fraud was prac 
 tised upon the plaintiff and he was 
 entitled to reclaim the drafts or their 
 proceeds. This doctrine was not in 
 contravention of U. S. Rev. Slat. 
 §§ 5234, 5242, in reference to pref- 
 erential payments, the plaintiff's pro- 
 ceeding being simply to reclaim his 
 own property. Neither the receiver 
 nor any creditor had any equity in the 
 property. 
 
 In Burton v. Biirley, 9 Biss. 253, 
 where the president of a national bank 
 instructed its correspondent to charge 
 up against it the amount of a private 
 note which the latter held against the 
 president in payment of said note, and 
 this was done and account rendered 
 showing the transaction which was 
 accepted by the first bank, it was held 
 that the bank was estopped from de- 
 nying the correctness of the charge 
 and that a receiver of the bank suhse- 
 qucntly appointed had no power to
 
 432 
 
 REUEIVERSIIIPS. 
 
 t7^ust must be able to trace his propci-ty or money into tlie re- 
 ceiver's hands subject to identification.' The property beini^ in 
 Gustodia legis cannot be levied on, but the judgment must be cer- 
 tified to the comptroller as other indebtedness.'' 
 
 § 256. Receiver's lijibility. 
 
 The liability of a receiver of a national bank is measured to 
 some extent by the general scope of his powers and duties. His 
 liability is confined to the prc^per care and custody of the prop- 
 erty intrusted to him, and the collection and accounting for the 
 receivership funds, and, his office being statutory, his acts must be 
 governed l:)y the terms and limitations embraced in the statute 
 and such directions and control as the court may exercise. The 
 statutory bank receiver is not charged with the distribution of 
 the receivership assets, such distribution l)eing nnder the dn-ec- 
 tion of the comptroller under § 5234 of the Revised Statutes.' 
 As a general rule the receiver is not liable for interest on the 
 claims against the bank,'' unless the assets are more than sufficient 
 
 disaffirm the transaction whicli bad 
 tatien place. 
 
 ' In First Nat. Bank v. Armstrong, 
 36 Fed. Rep. 59, a draft was sent to a 
 banli specially indorsed for collection 
 and was paid by the drawee by check, 
 which the bank collected through the 
 clearing house. A memorandum was 
 placed on the bank's cash to indicate 
 that the proceeds of the draft were the 
 properly of the sender. The bank 
 closed the next morning and the re- 
 ceiver credited such proceeds to the 
 sender of the draft on the books of 
 the bank. It was held that it could 
 not be traced and identified. • Cf. 
 Commercial Nat. Bank v. Armstrong, 
 39 Fed. Rep. 684; First Nat. Bank v. 
 Armstrong., 43 Fed. Rep. 193. 
 
 In Illinois Trust & Sav. Bank v. 
 First Nat. Bank, 15 Fed. Rep. 85S, it 
 was held that the cestui que trust can- 
 not follow his fund in the hands of an 
 assignee in bankruptcy, or of an ex- 
 ecutor of such trustee, and is a gen- 
 eral creditor, unless he can identify 
 
 his fund. The right to follow the 
 trust fund ceases when the means of 
 ascertainment and identification fail, 
 as where it is turned into money and 
 mixed in a general mass of property 
 of the same description. 
 
 "^Eastern Nat. Bank v. Vermont Nat. 
 Bank, 23 Fed. Rep. 186. 
 
 ^A receiver of a national bank ap- 
 pointed by the comptroller is not ac- 
 countable in equity to the owner of 
 real estate for rents thereof received 
 by him as such receiver, and paid by 
 him into the treasury of the United 
 Stales subject to the disposition of the 
 comptroller under U. S. Rev. Stat. 
 §^ 5334. Hiiz V. Jenks, 123 U. S. 297, 
 31 L. ed. 156. 
 
 ^ In Chemical Nat. Bank v. Bailey, 
 13 Blatchf. 480, the national bank had 
 been declared in default by the comp- 
 troller, and a receiver appointed, and a 
 sufficient fund was realized from its 
 assets to pay all claims against it and 
 leave a surplus. It was held that the 
 comptroller ought to allow interest on
 
 RECEIVERSHIP OF NATIONAL BANKS. 
 
 433 
 
 to pay the principal, nor for rents collected by him and paid 
 over to the Treasurer of the United States.' 
 
 § 257. Suits by receiver. 
 
 It is a part of the official duty of a national bank receiver to 
 collect the assets of the bank, specific authority being given him 
 for that purpose, and he is not required to obtain an order of the 
 comptroller authorizing such action. This power, however, does 
 not extend to and embrace suits against stockholders to recover 
 stock liability, they not being debtors in contemplation of the 
 statute." The courts in which national banks may sue and be 
 
 the claims during the period of the 
 admiuistration before turning the 
 surplus over to the stockholders. In 
 such case action of assumpsit will not 
 lie against the receiver or the comp- 
 troller, but is brought against the 
 bank. Payne v. Gardiner, 29 N. T. 
 146. 
 
 Id. National Bank v. Mechanics' Nat. 
 Bank, 94 U. S. 437, 24 L. ed, 176, a 
 depositor of a national bank, which 
 had suspended payment and a receiver 
 been appointed, was held to be enti- 
 tled to interest upon his deposit from 
 the date of his demand. United 
 States V. Knox, 111 U. S. 784, 28 L. 
 ed. 603. 
 
 The mere appointment of a tem- 
 porary receiver of a bank pending an 
 action for its dissolution does not raise 
 such an inference of its insolvency as 
 to make the bank liable for interest 
 from the time of such appointment 
 on a noninterest-bearing deposit for 
 which no demand has been made. 
 Sickles V. Herold, 149 N. Y. 332, Mod- 
 ifying 15 Misc. 116. 
 
 A receiver of a bank cannot be re- 
 quired to pay interest upon a deposit 
 which did not bear interest, from the 
 time of an application to set up such 
 deposit as a counterclaim to a demand 
 against the depositor, where he has 
 earned no interest while the money 
 28 
 
 remained in his hands. Sickles v. 
 Htrold, 15 Misc. 116, Modified in 149 
 N. Y. 332. 
 
 ' In Hitz v. Jenks, 123 U. S. 297, 31 
 L. ed. 156, it was held that a receiver 
 of a national bank appointed by the 
 comptroller of the currency was not 
 accountable in equity to the owner of 
 real estate for rents received by him 
 as such receiver and paid by him into 
 the treasury of the United Stales sub- 
 ject to the disposition of the comp- 
 troller under U. S. Rev. Stat. § 5234. 
 Accruing rents collected and paid into 
 court by a receiver appointed on a 
 bill in equity against the mortgagor 
 and a second mortgagee to enforce 
 the first mortgage, which appears to 
 have been satisfied and discharged, be- 
 longs to the second mortgagee so far 
 as the land is insutficient to pay his 
 debt. 
 
 * A receiver of a national bank, ap- 
 pointed by the comptroller under the 
 national banking act may sue for de- 
 mand due such bank in his own name, 
 or in the name of the bank. He is not 
 required to get an order of the comp- 
 troller for such purpose. It is a part 
 of his official duty to collect the as- 
 sets. National Bank v. Kennedy, 84 
 U. S. 17 Wall. 19, 21 L. ed. 554; First 
 Nat. Bank v. National Pahquioque 
 Bank, 81 U. S. 14 Wall. 383, 20 L. ed.
 
 434 
 
 RECEIVERSHIPS. 
 
 sued are regulated by statute,* but the provisions of the statute 
 
 840. This is not the rule in regard to 
 suits against stockholders who are not 
 ordinary debtors in contemplation of 
 the statute. Id. 
 
 Persons sued by a receiver appointed 
 by the comptroller under the National 
 Banking Act cannot inquire into the 
 regularity of his appointment. Cadle 
 Y.Bakcr,S7 U. S. 20 Wall.650. 22 L. ed. 
 448. Such receiver is presumed to be 
 appointed with the approval of the 
 Secretary of the Treasury within the 
 meaning of § 2, art. 2 of the Consti- 
 tution {Price V. Abbott, 17 Fed. Rep. 
 506), and he may sue in any circuit 
 court of the United States regardless 
 of citizenship or the amount involved 
 under U. S. Rev. Stat. § 629, cl. 3 {Arm- 
 strong v. Ettlesohn, 36 Fed. Rep. 209; 
 Piatt V. Beach, 2 Ben. 303), and in the 
 supreme court of the state of New 
 York. Piatt v. Crawford, 8 Abb. Pr. 
 N. S. 297. 
 
 In Kennedy v. Gibson, 75 U. S. 8 
 Wall. 498, 19 L. ed. 476, it was held 
 upon a bill filed under § 50 of the Na- 
 tional Banking Act of 1864 by a re- 
 ceiver against the stockholders where 
 the bank had failed to pay its notes 
 that it was indispensable that action 
 on the part of the comptroller of the 
 currency touching the personal lia- 
 bility of the stockholders should pre- 
 cede the institution of any suit by the 
 receiver, and this fact must be averred 
 in the bill. 
 
 As to the collection of indebtedness 
 due the bank, see BrincTcerhoff v. Bost- 
 wick, 88 N. Y. 52; Ackerman v. Eal- 
 sey, 37 N. J. Eq. 356. 
 
 ' In Petri v. Commercial Nat. Bank, 
 142 U. S. 644, 35 L. ed. 1144, it is held 
 that national banks may sue and be 
 sued, complain and defend in any 
 court of law and equity as fully as 
 natural persons. Under the National 
 
 Banking Act of 1863, it was provided 
 that suits by and against national 
 banks organized thereunder might be 
 brought in any circuit, district, or ter- 
 ritorial court of the United States held 
 within the district in which such as- 
 sociation may be established, and by 
 the act of June 3, 1864, there was 
 added to this statute "or in any state, 
 county, or municipal court in the 
 county or city in which said associa- 
 tion is located, having jurisdiction in 
 similar cases." Both of these provi- 
 sions were carried into U. S. Rev. 
 Stat. § 5198, by the Amendatory Act 
 of February 18, 1875. chap. 80 (18 
 Stat, at L. 316, 320). Mr. Chief Jus- 
 tice Fuller, after a review of the sev- 
 eral acts of Congress and their rela- 
 tion to national banks, says: "Suits 
 by or against national banks might 
 therefore be brought or removed on 
 the ground of diverse citizenship, or 
 of subject-matter, since, as they were 
 created by Congress and could acquire 
 no right, make no contract, and bring 
 no suit which was not authorized by 
 a law of the United States, a suit by 
 or against them was necessarily a suit 
 arising under the law of the United 
 States." See Osborn v. Bank of 
 United States, 22 U. S. 9 Wheat. 738, 
 823, 6 L. ed. 204, 224; Leather Mfrs. 
 Nat. Bank v. Cooper, 120 U. S. 778, 
 781, 30 L. ed. 816, 818; Union P. R. 
 Co. V. Myers {"Pacific R. Removal 
 Cases"), 115 U. S. 1, 29 L. ed. 319. 
 
 Prior to July 12, 1882, suits might 
 be brought by or against national 
 banks in the circuit courts of the 
 United States in the district where 
 the banks were located, but by the 
 act of that date it was provided that 
 "the jurisdiction for suits hereafter 
 brought by or against any association 
 established under any law providing
 
 RECEIVERSHIP OF NATIONAL BANKS. 
 
 435 
 
 do not, in all matters of jurisdiction, extend to receivers.* 
 Neither is the power of the receiv-er to sue confined exclusively 
 to the causes of action provided for by statute," and while he may 
 
 for national banking associations, ex- 
 cept suits between thera and the 
 United States, or its officers and agents 
 shall be the sanae as, and not other 
 than, the jurisdiction for suits by or 
 against banks not organized under any 
 law of the United States, which do or 
 might do banking business where 
 such national banking associations 
 may be doing business when such 
 suits may be begun." 22 Stat, at L. 
 162, 163, chap. 290, § 4. Whittemore 
 V. Amoskeag Nat. Bank, 134 U. S. 
 527, 33 L. ed. 1002. 
 
 The national banking association 
 organized under the United States 
 statute can be sued in a state court 
 only in the county or city in which 
 the association is established. Crocker 
 V. Marine Nat. Bank, 101 Mass. 240, 
 but see Cadle v. Tracy, 11 Blatchf. 
 101. 
 
 ' The receivers of national banks, as 
 such, have not the privilege in all 
 cases of being sued in the United 
 States courts and cannot remove such 
 cases against thera from state courts to 
 the United States courts. The court 
 in Bird v. Cockrem, 2 Woods, 32, say, 
 " I am not aware of any such preroga- 
 tive which a receiver of a bank has 
 over other persons." 
 
 In Petri v. Commercial Nat. Bank, 
 142 U. S. 644, 35 L. ed. 1144, it is 
 held that a national bank located in 
 one state may bring suit against a citi- 
 zen of another state in the circuit 
 court of the United States for the dis- 
 trict wherein the defendant resides by 
 reason alone of diverse citizenship. 
 
 Prior to the Act of Congress of 
 July 12, 1882, the circuit court had 
 concurrent jurLsdiction with the dis- 
 trict court without regard to the 
 amount involved. Frelinghuyncn v. 
 
 Baldwin, 12 Fed. Rep. 395; Price v. 
 Abbott, 17 Fed. Rep. 506; Armstrong v. 
 Mtlesohn, 36 Fed. Rep. 209; Armstrong 
 V. Trautman, 36 Fed. Rep. 275; Piatt 
 V. Beach, 2 Ben. 303; Stantonv. Wilke- 
 aon, 8 Ben. 357; National Bank w . Ken- 
 nedy, 84 U. S. 17 Wall. 19, 21 L. ed. 
 554; Kennedy v. Gibson, 75 U. S. 8 
 Wall. 498. 19 L. ed. 476. 
 
 Under the Act of July 12, 1882, 
 suits by or against a national bank, 
 except suits between them and the 
 United States or its officers and agents, 
 " shall be the same as and not other 
 than the jurisdiction for suits by or 
 against banks not organized under 
 any law of the United States, which 
 do or might do a banking business 
 where such national banking associa- 
 tion may be doing business when such 
 suits may be begun." See also Act of 
 August 13, 1888. But the citizenship 
 of the bank does not determine the 
 citizenship of the receiver. Hendee v. 
 Connecticut & PR. Co. 26 Fed. Rep. 677. 
 
 ^A suit by a receiver of a national 
 bank to recover back dividends paid 
 out of capital is one to recover di- 
 verted trust funds, resting upon no 
 statute or act of Congress, but upon a 
 fundamental principle of equity, and 
 may be maintained, notwithstanding 
 the remedies provided by the National 
 Banking Act as to the individual lia- 
 bility of stockholders. Ilayden v. 
 Thompson, 71 Fed. Rep. 60. 
 
 A request by some of the creditors 
 of a bank that the receiver appointed 
 in proceedings for its dissolution shall 
 bring an action against defaulting 
 directors furnishes no additional rea- 
 son for bringing the action in a court 
 of equity. JJiggina v. Tefft, 4 App. 
 Div. 62.
 
 436 
 
 RECEIVERSHIPS. 
 
 611 c in the United States courts, he is not confined to them, but 
 may properly sue in the courts of the state. He has power to 
 
 ' In National Bank v. Eemiedy, 84 
 U. S. 17 Wall. 19, 21 L. ed. 554, it is 
 held that a receiver of a national bank 
 appointed by tlie comptroller of the 
 currency under the 50th section of the 
 National Banking Act, may sue for 
 demands due the bank, in his own 
 name as receiver, or in the name of 
 the bank, and is not obliged to get an 
 order from the comptroller for such 
 purpose. Kennedy v. Gibson, 75 U. S. 
 8 Wall. 506, 19 L. ed. 479; First Nat. 
 Bank v. National Pahquioque Bank, 81 
 U. S. 14 Wall. 383, 20 L. ed. 840. 
 
 A suit by a receiver to collect in- 
 debtedness due his insolvent bank may 
 be brought properly in a state court. 
 Piatt v. Crawford, 8 Abb. Pr. N. S. 
 297. To the same effect are Case v, 
 Berwin, 22 La. Ann. 321 ; Brinckerhoff 
 V. Bostwick, 88 N. Y. 52; Ackermany. 
 Halsey, 37 N. J. Eq. 356. In this case 
 it WHS held that where a receiver of an 
 insolvent bank refuses to bring suit, a 
 creditor and stockholder may, for the 
 benefit of himself and for such other 
 creditors and stockholders as elect to 
 join, maintain a suit against the 
 president and directors for gross offi- 
 cial neglect and mismanagement, 
 whereby the bank was ruined. 
 
 Receivers of national banking asso- 
 ciations as such have not the privilege 
 in all cases of being sued in the United 
 States courts and cannot remove such 
 cases against them from the state 
 courts to the United States courts. 
 Bird V. Cockrem, 2 Woods, 32. 
 
 In Hendee v. Connecticut & P. R. R. 
 Co. 23 Blatchf. 453, it was held that 
 where a receiver of a national bank 
 appointed by the comptroller has pos- 
 session of bonds pledged to the bank 
 for a debt and has obtained an order 
 for the sale thereof and a suit is 
 
 brought in a foreign country against 
 the receiver to recover the bonds, such 
 suit may be restrained on a bill filed 
 by the receiver. Cf. Piatt v. Beach, 2 
 Ben. 303. 
 
 In Tardley v. Dickson, 47 Fed. Rep. 
 835, a receiver of a national bank 
 brought suit in the circuit court to re- 
 cover an indebtedness due the bank 
 without regard to the amount in- 
 volved. 
 
 A receiver of an insolvent national 
 bank is, in the execution of its duties, 
 an agent and ofiicer of the United 
 States, and actions brought by him to 
 recover assessments upon stockholders 
 for the payment of debts of the bank 
 are suits at the common law brought 
 by an ofiicer of the United States un- 
 der the authority of an Act of Con- 
 gress, of which cases the circuit court 
 has concurrent jurisdiction with the 
 district court, without regard to the 
 amount sued for. Price v. Abbott, 17 
 Fed. Rep. 506. 
 
 In Frelinglii/ysenv. Baldwin, 12 Fed. 
 Rep. 395, it is held that a receiver of a 
 national bank is an ofllcer of the 
 United States, and as such may sue in 
 the Federal courts in the district in 
 which the bank is located. 
 
 The appointment of a receiver does 
 not relieve the bank from a suit against 
 it. First Nat. Bank v. National Pah- 
 quioque Bank, 81 U. S. 14 Wall. 493, 
 20 L. ed. 843. 
 
 In Movius V, Lee, 24 Blatchf. 291, it 
 is held that a receiver of a national 
 bank has power to enforce against its 
 directors individual claims for losses 
 incurred through the nonperformance 
 and the negligent performance of their 
 duties in the district court of the 
 United States. 
 
 In Stephens v. Bernays, 41 Fed.
 
 RECEIVERSHIP OF NATIONAL BANKS. 
 
 437 
 
 maintain suits against the bank directors for an abuse of the trust 
 imposed in them as officials of the bank, such as waste and loss of 
 the bank assets.' A bank having gone into voluntary liquidation 
 may be sued.'' 
 
 § 258. Liability of stockholders. 
 
 (a) The power is vested in the comptroller of the currency, in 
 a proceeding to wind up an insolvent national bank, to determine 
 when a deficiency exists, and the propriety of enforcing the in- 
 dividual liability of stockholders, and to what extent it is neces- 
 sary to enforce such liability, and his determination in the matter 
 is conclusive upon the stockholders.' His action is a condition 
 
 Rep. 401, it is held that district courts 
 have jurisdiction of an action to en- 
 force the liability of a stockholder of 
 an insolvent national bank under U. 
 S. Rev. Stat. § 563, subs. 4. This 
 jurisdiction is not taken away by Act 
 of July 12, 1882, § 4, and Act of 
 August 13, 1888. § 4, See also 
 Stephens v. Bernnys, 44 Fed. Rep. 
 642; StepTiens v. Bernays, 119 Mo. 143. 
 
 ^Briggs v. Spaulding, 141 U. S. 132, 
 35 L. ed. 663; Movius v. Lee, 24 
 Blatchf. 291. 
 
 ^Ordicay v. Central Nat. Bank, 47 
 Md. 217; First Nat. Bank v. National 
 Pahquioque Bank, 81 U. S. 14 Wall. 
 383, 20 L. ed. 840. 
 
 ^ Adams v. Johnson ("Bowden v. 
 Johnson"), 107 U. S. 251, 27 L. ed. 
 386; Young v. Wempe, 46 Fed. Rep. 
 354. 
 
 The assessment of the comptroller 
 was held to be conclusive upon the 
 stockholders in United States v. Knox, 
 102 U. 8. 422, 26 L. ed. 216. 
 
 In Peters v. Foster, 56 Hun, 607, the 
 levying of an assessment by the 
 comptroller was held to be conclu- 
 sive upon the debtors and stock- 
 holders. See also SProng v. South- 
 worth, 8 Ben. 331; Kennedy y. Gibson, 
 75 U. S. 8 Wall. 498, 19 L. ed. 476; 
 
 Stanton v. Wilkeson, 8 Ben. 359; Piatt 
 V. Beebe, 57 N. Y. 339. 
 
 In Keyser v. Hitz, 133 U. S. 138, 33 
 L. ed. 531, a certificate signed by the 
 deputy comptroller of the currency as 
 " acting comptroller of the currency," 
 is held to be a sufficient certificate 
 within the requirements of U. S. 
 Rev. Stat. § 5154. 
 
 In United States v. Knox, 102 U. S. 
 422, 26 L. ed. 316, the comptroller 
 assessed against several shareholders 
 a suflicient jiercentage upon the par 
 value of the stock, and it was held 
 that he had no power to direct a fur- 
 ther assessment to supply a deficiency 
 caused by the inability of the receiver 
 to enforce the payment from insolvent 
 shareholders or those beyond his jur- 
 isdiction. The liability of stockhold- 
 ers is several and is effected by the 
 failure of other shareholders to pay. 
 
 In Dams v. Weed, 44 Conn. 569, it 
 was held that by the Act of Congress 
 all stockholders of national banks are 
 liable to assessment in case of insolv- 
 ency of such bank to the extent of 
 the par value of their stock in addi- 
 tion to the amount invested in such 
 stock, but persons holding stock as 
 executors, administrators, and trus- 
 tees are not to be personally subject
 
 438 
 
 RECEIVERSHIPS. 
 
 precedent to the institution of a suit hy the receiver.' The re- 
 ceiver of an insolvent national bank may bring suit at law if he 
 seeks to recover the whole liability, or in equity if a portion is 
 sought to be recovered.* The defendant stockholder, as a rule, is 
 
 to any liability of stockholders, the 
 liability only attaching to the property 
 in their hands. 
 
 In Casey v. Oalli, 94 U. S. 673, 24 
 L. ed. 168, the amount assessed 
 against the stockholder was held to 
 bear interest from the date of the 
 order. See also Adams v. Johnson 
 {" Boicden v. Jo?inso7i"), 107 U. S. 
 251, 27 L. ed. 386. 
 
 A shareholder who is liable for the 
 debts of the bank is liable for interest 
 on them to the extent to which the 
 bank would have been liable, not in 
 excess, however, of the maximum 
 liability fixed by the statute. Rich- 
 mond V. Irons, 121 U. S. 27, 30 L, ed. 
 864. 
 
 The decision of the United States 
 comptroller as to the necessity for 
 and the amount of an assessment 
 upon the stockholders of a national 
 bank is conclusive, and cannot be 
 questioned in an action by the re- 
 ceiver of the bank upon the assess- 
 ment. O'Connor v. Witherby, 111 
 Cal. 533. 
 
 In Pauly v. State Loan dk T. Go. 56 
 Fed. Rep. 430, a corporation holding 
 shares of stock of a national bank as 
 collateral security for a loan and 
 carried on the books of the bank as a 
 pledgee of the stock, is not subject, on 
 the bank's insolvency, to the statutory 
 liability of a stockholder. 
 
 ' Casey v. Qalli, 94 U. S. 673, 24 
 L. ed. 168; Qermania Nat. Bank v. 
 Case, 99 U. S. 628, 25 L. ed. 448; 
 Kennedy v. Gibson, 75 U. S. 8 Wall. 
 498, 19 L. ed. 476; Bichmond v. Irons, 
 121 U. S. 27, 30 L. ed. 864; Strong v. 
 Southworth, 8 Ben. 331. 
 
 A letter from the comptroller ad- 
 dressed to the receiver directing suit 
 to be brought to enforce personal lia- 
 bility of the stockholders is sufficient 
 evidence of his authority. Adams v. 
 Johnson C Bowden v. Johnson"), 107 
 U. S. 251, 27 L. ed. 386; Gatch v. 
 Fitch, 34 Fed. Rep. 566. 
 
 In Young v. Wempe, 46 Fed. Rep. 
 354, it is held that the only thing 
 necessary to allege as to authority is 
 that the comptroller determined that 
 the assessment was necessary and 
 levied it. Since an assessment is con- 
 clusive against the stockholders, the 
 assessment may be collected in an 
 action at law. 
 
 Assessments by the comptroller 
 were sustained in the following cases: 
 
 Thayer v. Butler, 141 U. S. 234, 35 
 L. ed. 711; Butler v. Eaton, 141 U. S. 
 240, 35 L. ed. 713; AspinwaU v. But- 
 ler, 133 U. S. 595, 33 L. ed. 779; 
 Adams v. Johnson (" Bowden v. John- 
 son "). 107 U. S. 251, 27 L. ed. 386; 
 Casey v. Oalli, 94 U. S. 673, 24 L. ed. 
 168; Kennedy v. Gibson, 75 U. S. 8 
 Wall. 498, 19 L. ed. 476; Peters v. 
 Foster, 56 Hun, 607. 
 
 » Casey v. Galli, 94 U. S. 673, 24 
 L. ed. 168; Adams v. Johnson (" Bow- 
 den v. Johnson"), 107 U. S. 251, 27 
 L. ed. 386. 
 
 A suit may be brought under the 
 National Bank Act by the receiver in 
 law or equity to recover from stock- 
 holders their stock liability by the 
 receiver. Kennedy v. Gibson, 75 
 U S. 8 Wall. 498, 19 L. ed. 476. 
 
 In Peters v. Foster, 56 Hun, 607, it 
 is held that a receiver of a national 
 bank of another state appoiuied by
 
 RECEIVERSHIP OF NATIONAL BA^KS. 
 
 439 
 
 entitled to an equitable set-off, in an action brought against him 
 to enforce his stock liability, where the obligations are mutual, 
 growing out of the same transaction, and the bank is insolvent.' 
 
 the comptroller will not be treated by 
 the courts of the state of New York 
 as a foreign receiver, but he can sue 
 therein to recover an assessment 
 levied upon the shareholders of the 
 bank. 
 
 In Harvey v. Lord, 11 Biss. 144, a 
 bill in the nature of a creditor's bill 
 •was filed under the provisions of a 
 national banking law to enforce a 
 shareholder's liability, and it was 
 held that the suit could not be main- 
 tained against an individual share- 
 holder while the creditor's bill was 
 still pending. 
 
 Upon a bill filed, under § 50, 
 by a receiver against the transferrer 
 and transferree to enforce liability 
 will lie where it is for discovery as 
 well as relief, the transfer being good 
 between the partie.*, and only voidable 
 at the election of the complainant. 
 Adams v. Johnson (" Boicden v. John- 
 son"), 107 U. S. 251, 27 L. ed. 386. 
 
 ' In Scott v. Armstrong, 146 U. 8. 
 499, 36 L. ed. 1059, it is held that a 
 receiver of an insolvent national bank 
 on the dissolution of the bank takes 
 the assets in trust for creditors, and in 
 the absence of a statute to the con- 
 trary, subject to all claims and de- 
 fenses that might have been interposed 
 against the insolvent corporation. 
 The ordinary equity rule of set-off in 
 case of insolvency is that where the 
 mutual obligations have grown out of 
 the same transaction, insolvency on 
 the one hand justifies the set-off of the 
 debt due on the other; and there is 
 nothing in the statutes relating to na- 
 tional banks which prevents the ap- 
 plication of that rule to the receiver of 
 an insolvent national bank. Thus 
 where a customer of a national bank, 
 
 who, in good faith, borrows money 
 of the bank, gives his note therefore 
 due at a future day and deposits the 
 amount borrowed to be drawn against 
 any balance applied to the payment of 
 the note when due, has an equitable 
 but not a legal right, in case of the in- 
 solvency and dissolution of the bank 
 and the appointment of a receiver be- 
 fore the maturity of the note, to have 
 the balance of his credit at the time of 
 the insolvency applied to the payment 
 of his indebtedness on the note. 
 
 In Yardley v. Clothier, 49 Fed. Rep. 
 337, it was held that a depositor in an 
 insolvent bank, who had indorsed a 
 note that was subsequently discounted 
 by the bank, in a suit by the bank to 
 recover the amount of the note, that he 
 could set off his deposit against this 
 amount when the note matured after 
 the insolvency of the bank. This case 
 is at variance with Armstrong v. Scott, 
 36 Fed. Rep. 63, and Stephens v. 
 Schuchmann, 33 Mo. App. 338. 
 
 Cf. Jordan v. Sharlock, 84 Pa. 366; 
 Skiles v. Houston, 110 Pa. 254; Balbach 
 V. Frelinghuysen, 15 Fed. Rep. 675. 
 
 The right of setoff may be waived. 
 United States Bimg Mfg. Co. v. Armr- 
 strong, 34 Fed. Rep. 94. 
 
 In Armstrong v. Warner, 49 Ohio St. 
 376, 17 L. R. A. 466, it is held that 
 when the holder of a claim not yet 
 due, arising upon contract, becomes 
 insolvent and transfers the same be- 
 fore maturity and the debtor at the 
 time of the transfer holds a similar 
 claim then due against tiie assignor, 
 his right of set-off is preserved against 
 the assignee when the hitter's cause of 
 action arises. Equity will in general 
 enforce the right of set-off by decree- 
 ing the compensation of mutual de-
 
 440 
 
 RECEIVERSHIPS. 
 
 Suits of this cliaracter are properly bronglit in the district court.' 
 It is unnecessary that a person shall have a certiticate in order to 
 
 manrls so far as they equal each other, 
 where ihey have grown out of the 
 same or connected transactions, or the 
 one has formed in whole or in part 
 the consideration of the other, and the 
 party against whom the setoff is as- 
 serted is insolvent. This principle is 
 applied under U. S. Rev. Stat, t^ 5242, 
 to an insolvent national bank on the 
 ground that the allowance of such a 
 set-off is not the creation of a prefer- 
 ence by the bank, but an ascertain- 
 ment merely of the just amount due 
 on the debtor's obligation and is en- 
 forceable against a receiver of the 
 bank. 
 
 In Louis Snyder's Sons v. Armstrong, 
 37 Fed. Rep. 18, the same principle 
 was adhered to. 
 
 In Eirig v. Armstrong, 50 Ohio St. 
 222, it is held that where a person is 
 entitled to share in the distribution of 
 a trust fund and is also indebted to 
 the fund and is insolvent, his indebted- 
 ness may, in equity, be set off against 
 bis distributive share; and such right 
 of set-off will not be defeated by the 
 assignment of the claim, though made 
 before the amount of his indebtedness 
 or distributive share is ascertained. 
 
 See also Barbour v. National Exch. 
 Bank, 50 Ohio St. 90, 20 L. R. A. 192; 
 Hughitt V. Hayes, 136 N. Y. 163. 
 
 In Hohart v. Gould, 8 Fed. Rep. 57, 
 it was held that a stockholder of an in- 
 solvent bank who happened to be one 
 of the creditors could not cancel or 
 diminish the assessment made under 
 the provisions of U. S. Rev. Stat. 
 g 5151, by off-setting his individual 
 claim against such liability. 
 
 In Hade v. McVay, 31 Ohio St. 231, 
 set-off was allowed in an action 
 brought by a receiver of an insolvent 
 national bank. 
 
 In Welles v. Stout, 38 Fed. Rep. 807, 
 an action was brought by the receiver 
 of an insolvent national bank to re- 
 cover of a stockholder an assessment 
 on his shares. Set-off was allowed 
 under the peculiar circumstances of 
 the case. 
 
 In Stephens v. ScMchmann, 32 Mo. 
 App. 333, a suit was brought by the 
 receiver of an insolvent national bank 
 against the indorser of a promissory 
 note and it was held that the defend- 
 ant could not defend by a claim of 
 off-set for moneys deposited by him in 
 the bank. The receiver in such case 
 succeeds to the rights of the bank 
 existing at the time it goes into liquida- 
 tion. A claim in favor of the bank 
 which first matures in the hands of 
 the receiver cannot be subjected by 
 way of set-off to a claim which existed 
 against it before the receiver's rights 
 accrued. 
 
 Cf. Jordan v. National Shoe & L. 
 Bank, 74 N. T. 467; American Bank 
 v. Wall, 56 Me. 167; Miller v. Franklin 
 Bank, 1 Paige, 444; Colt v. Brown, 12 
 Gray, 233; Hade v. McVay, 31 Ohio 
 St. 231; Fry v. Evans, 8 Wend. 530; 
 Merritt v. Seaman, 6 N. T. 168; 
 Scammon v. Kimball, 92 U. S. 362, 23 
 L. ed. 483; Blount v. Windley, 95 U. 
 S. 173, 24 L. ed. 424; Carr v. Hamil. 
 ton, 129 U. S. 252, 32 L. ed. 669. 
 
 ^ Motius v. Lee, 24 Blatchf. 291; 
 Step7ieji8 v. Bernays, 41 Fed. Rep. 401, 
 44 Fed. Rep. 642. 
 
 State courts have jurisdiction to en- 
 tertain such an action and the act of 
 the comptroller in levying the assess- 
 ment is conclusive upon debtors and 
 stockholders; that the receiver is the 
 proper person to sue is held in Stanton 
 v. Wilkeson, 8 Ben. 359.
 
 RECEIVERSHIP OF NATIONAL BANKS. 
 
 441 
 
 constitute him a stockholder.' The liability of a stockholder may 
 be enforced against his executors and administrators," and also 
 ao;ainst married women.' 
 
 ' In Pacific Nat. Bank v. Eaton, 141 
 U. S. 227, 35 L. ed. 702, it is held that 
 a subscription to the stock in a na- 
 tional bank and payment in full of the 
 subscription and the entry of the sub- 
 scriber's name on the books as a stock, 
 holder constitutes the subscriber a 
 shareholder without taking out the 
 certificate. See also Thayew. Butler, 
 141 U. 8. 234, 35 L. ed. 711. 
 
 In Stephens v. Follett, 43 Fed. Rep. 
 842, it is held that one who subscribes 
 and pays for a specified number of 
 shares of a proposed increase of the 
 capital stock of a national bank, which 
 increase in fact is never issued, and to 
 ■whom the bank officials transfer in- 
 stead the old stock of the bank with- 
 out the knowledge of the purchaser, 
 or without his consent, is not a share- 
 holder within the meaning of the stat- 
 ute imposing individual liability on 
 shareholders for the debts of the bank. 
 The fact of such subscriber receiving 
 dividends on the old shares does not 
 estop him from denying his liability. 
 
 «In WickMm v. Hull, 60 Fed. Rep. 
 326, it is held that the estate of a de- 
 ceased owner of national bank stock 
 is liable to an assessment levied 
 against his executors where the bank 
 fails after the death of the stock- 
 holder. In this case an action was 
 brought against the executors of an 
 estate to establish its liability for an 
 assessment, the estate at the time be- 
 ing in the possession of an Iowa pro- 
 bate court for purposes of administra- 
 tion. The defendant set up the 
 limitation of the Iowa Code, § 2421, 
 in regard to the settlement of estates, 
 and it was held that the proper prac- 
 tice in such cases was to present the 
 claim established in the Fedeial court 
 
 for allowance in the probate proceed- 
 ings. 
 
 In Richmond v. Irons, 121 U. S. 27, 
 30 L. ed. 864. it is held that the statu- 
 tory liability of a shareholder in a na- 
 tional bank for the debts of the cor- 
 poration survives against his personal 
 representatives. And that the stock- 
 holder's liability continues under the 
 statute until his stock is actually trans- 
 ferred upon the books of the bank, or 
 until the certificate has been delivered 
 to the bank with power of attorney 
 authorizing the transfer and a request 
 made at the time of the transaction to 
 have the transfer made. 
 
 See also Mills v. Butler, 118 U. S. 
 655, 80 L. ed. 266. 
 
 3 In Bundy v. Cocke, 128 U. S. 185, 
 32 L. ed. 396, a bill in equity was filed 
 in Kentucky by the receiver of a 
 national bank located in Arkansas 
 against a married woman and her 
 husband, who were alleged to be 
 citizens of Kentucky, to enforce 
 against the separate property of the 
 wife an assessment of the comptroller 
 of 50 per cent on the par value of the 
 stock as an individual liability, it ap- 
 pearing that the shares of the stock 
 still remained in the name of the wife 
 upon the books of the bank and that 
 she possessed enough property in her 
 own right to pay the assessment, and 
 it was held that the bill was sustain- 
 able as a bill in equity. 
 
 Married women are held liable as 
 stockholders for assessments, in Win- 
 ters V. Sowles, 38 Fed. Rep. 700; Key- 
 ser V. nitz, 133 U. S. 138, 33 L. ed. 
 531; Re First Nat. Bank, 49 Fed, 
 Rep. 120; Rohinsuu v. Turreidiiie, 59 
 Fed. Rep. 504.
 
 442 
 
 RECEIVERSHIPS. 
 
 As to tlie liability of stockholders, § 5205 provides that 
 every association which shall have failed to pay up its capital 
 stock, as required by law, and every association whose capital 
 stock shall have become impaired by losses or otherwise shall 
 within three months after receiving notice thereof from the 
 comptroller of the currency, pay the deticiency in the capital 
 stock by assessment upon the stoekholders pro rata for the amount 
 held by each, and in default of payment a receiver shall be 
 appointed." Prior to 1876 the receiver was the only person to 
 
 'In Mills V. Builer, 118 U. S. 655, 
 80 L. ed. 266, shares of the capital 
 Block of a national bank were sold by 
 an auctioneer at public auction and 
 •were bid off by B who paid the auc- 
 tioneer for them and received a cer- 
 titicate of stock with power of attor- 
 ney for transfer executed blank. The 
 auctioneer paid the money to the 
 former owner of the stock. No for- 
 mal transfer was made upon the books 
 of the bank. Shortly after the trans- 
 action, the bank became insolvent and 
 went into the hands of the receiver, 
 who made assessments against the 
 stockholders under the provisions of 
 U. S. Rev. Stat. § 5205, to pay the 
 deficiency of the capital. A suit 
 was instituted by the receiver against 
 the former owner of the stock, and it 
 was held that his responsibility ceased 
 upon the surrender of the certificate 
 to the bank and the delivery to its 
 president of a power of attorney suf- 
 ficient to effect and intended to effect, 
 as the president knew, a transfer of 
 the stock on the books. 
 
 In Hayes v. Shoemaker, 39 Fed. 
 Rep. 319, it was held that where a 
 shareholder makes a bona fide sale of 
 his stock and goes with the purchaser 
 to the bank, indorses his certificate 
 and delivers it to the cashier of the 
 bank with directions to make the 
 transfer on the books, he is thereby 
 discharged from liability and is not 
 
 liable, though the cashier fail to make 
 the transfer, upon the subsequent sus- 
 pension of the bank for an assessment 
 made by the comptroller. Suit was 
 brought in this case by the receiver. 
 
 In Johnson v. Laflin, 5 Dill. 65, 103 
 U. S. 800, 26 L. ed. 532, it was held 
 that a shareholder had a right to make 
 an actual, bona fide sale and transfer 
 of his shares to any person capable in 
 law of taking and holding the same 
 and of assuming the assignor's liabil- 
 ity in respect thereto; and that, in the 
 absence of fraud, this right is not sub- 
 ject to veto by the directors or other 
 shareholders. When such a transfer 
 is made and entered on the books the 
 assignor ceases to be a shareholder 
 and is free from all liability thereon. 
 As between the seller and purchaser 
 of shares the sale is complete when 
 the certificate of shares is duly assigned 
 with power to transfer the same on 
 the books of the bank and payment 
 therefor is received by the seller. 
 
 A receiver of an insolvent national 
 bank is the only party who can main- 
 tain a suit in behalf of the creditors 
 to set aside a fraudulent transfer of 
 stock to an irresponsible person, and 
 enforce the individual liability of the 
 transferrer. Stuart v. Hayden, 72 Fed. 
 Rep. 402. 
 
 In Turner v. First Nat. Bank, 26 
 Iowa, 562, it was held that under the 
 National Currency Act assets in the
 
 RECEIVERSHIP OF NATIONAL BANKS. 
 
 443 
 
 sue and recover stock liability ;' but by the act of June 30 of that 
 year the power was conferred upon creditors of the bank, in the 
 following provision : 
 
 " That when any national banking association shall have gone 
 into liquidation under the provisions of U. S. Eev. Stat, § 5220, the 
 individual liability of the shareholders provided for in § 5151 
 may be enforced by any creditor of such association by bill in 
 equity, in the nature of a creditor's bill, brought by such creditor 
 on behalf of himself and of all other creditors of the association 
 against the shareholders thereof in any court of the United States 
 having original jurisdiction in equity for the district in which 
 the association may have been located or established,' 
 
 (b) In an action by the receiver of a national bank to recover 
 from a stockholder his stock liability, it may be shown by the 
 latter in defense of the action (1) that the stock was transferred 
 to him without his knowledge or consent, and not subsequently 
 ratified ;' or (2) that the claim is barred by the statute of limitations ;' 
 
 hands of a receiver which has failed, 
 ■when reduced to money, must be 
 ratably divided and appropriated to 
 the payment of all legal liabilities of 
 the association, whether such liabili- 
 ties are debts technically so called, or 
 the result from nonfeasance or mal- 
 feasance of the association. 
 
 'That the receiver may sue to re- 
 cover stock liability, see Richmond v. 
 Irons, 121 U. S. 37, 30 L. ed. 864; De- 
 lano V. Butler, 118 U, S, 634, 30 L, ed. 
 260; Casey v. Galli, 94 U. S. 673, 24 
 L. ed. 168; Kennedy v. Gibson, 115 U. 
 S. 8 Wall. 498, 19 L. ed. 476; Welles 
 V. Stout, 38 Fed. Rep. 807; Welles v. 
 Larrabee, 36 Fed. Rep. 866, 2 L. R. A. 
 471; Butler v. Aspinwall, 33 Fed. Rep. 
 217; Witters v. Sowles, 32 Fed, Rep. 
 130, 767; Price v, Whitney, 28 Fed, 
 Rep. 297; Irons v. Manufacturers* 
 Nat. Bank, 17 Fed. Rep. 308; Price 
 V. Abhott, 17 Fed. Rep. 506; Jlobart v, 
 Johnson, 8 Fed. Rep. 493; Case v. 
 Small, 4 Woods, 78. 
 
 The Act of 1876 provides that a 
 
 creditor may file a bill in equity to 
 enforce stock liability. 
 
 « Act of June 30, 1876(19 Stat, at 
 L. 63). 
 
 A creditor not presenting his claim 
 is not entitled to share in the distribu- 
 tion. Richmond v. Irons, 121 U. S. 
 27, 30 L. ed. 864; Irons v. Manufact- 
 urers' Nat. Bank, 27 Fed. Rep. 591. 
 
 2 It appeared that stock was trans- 
 ferred to a person without the knowl- 
 edge of such person or consent, and 
 it was held that such transfer did not 
 make the transferree liable as a share- 
 holder in the association in the ab- 
 sence of an approval or acquiesence 
 in such transfer, or other ratification 
 thereof, such as an acceptance of 
 benefits, etc. Keyfter v, Uitz, 133 U. S, 
 138, 33 L. ed. 531, 
 
 * In Butler v. Poole, 44 Fed. Rep, 
 586, in an action by a receiver of a 
 national bank against stockholders 
 for assessments on stock the statute 
 of limitations was properly plead- 
 able.
 
 444 
 
 RECEIVERSHIPS. 
 
 or (3) a former recovery in a state court for tlie same liabiL 
 ity.- 
 
 A stockholder when sned on his subscription is estopped from 
 denying the validity or existence of the corporation ; ' nor does a 
 colorable transfer of his stock relieve him ; ' nor payments made 
 under a mistake of fact.* 
 
 > In Butler v. Eaton, 141 U. S. 240, 
 35 L, ed. 713, a receiver of a national 
 bank brought suit in the circuit court 
 to recover the amount of an unpaid 
 subscription. The defendant set up 
 a judgment in the state court on the 
 same issue decided in her favor as an 
 estoppel, VFhich defense was sus- 
 tained. 
 
 Rights of stockholders cannot be 
 affected by the acts of the president 
 of a bank after it has gone into liqui- 
 dation. Schrader v. Manufacturers' 
 Nat. Bank, 133 U. S. 67, 33 L. ed. 
 564; Moss v. McCullovgh, 5 Hill, 131; 
 Miller V. Wdte, 50 N. Y. 137; Mc- 
 Mahon v. Maey, 51 N. Y. 155; Trippe 
 V. Huncheon, 82 Ind. 307. 
 
 The expenses of a receivership of a 
 national bank appointed in a credit- 
 or's suit contesting a voluntary 
 liquidation of the bank cannot be 
 charged upon the stockholders as 
 part of their statutory liability, but 
 must be paid by the creditors who 
 instituted the proceeding. Richmond 
 V. Irons, 121 U. S. 27, 30 L. ed. 864. 
 
 « In Casey v. Galli, 94 U. S. 673, 24 
 L. ed. 168, it was held that where a 
 receiver was ordered to collect an 
 amount equal to the full par value of 
 the stock the suit might be brought 
 at law. In such case the stockholder 
 is estopped from denying the exist- 
 ence or validity of the corporation. 
 
 ^In Davis Y. Stevens, 17Blatchf. 259, 
 a purchaser of stock in a national 
 bank, to conceal his ownership and 
 avoid liability, caused it to be trans- 
 ferred to another person pecuniarily 
 
 irresponsible, but it was held that so 
 long as he remains the actual owner 
 he is a shareholder within the mean- 
 ing of the act of June 3, 1864. Such 
 colorable transfer is void. Oermania 
 Nat. Bank v. Case, 99 U. S. 628, 25 
 L. ed. 448. See also Adams v. Jolin- 
 son {"Bowden v. Johnson"), 107 U. S. 
 251, 27 L. ed. 386. 
 
 In Oermania Nat. Bank v. Case, 
 supra, a party, by way of pledge or 
 collateral security for a loan of 
 money, accepted the stock of a 
 national bank, which he caused to be 
 transferred to himself on its books, 
 and it was held that by so doing he 
 immediately became liable as a stock- 
 holder and could not relieve himself 
 from such liability by making a 
 colorable transfer of such stock. The 
 order of the comptroller prescribing 
 to what extent the individual liability 
 of stockholders shall be enforced is 
 conclusive. 
 
 * In Delano v. Butler, 118 U. S. 634, 
 30 L. ed. 260, the comptroller ap- 
 pointed a receiver of an insolvent 
 national bank and also made an 
 assessment on the shareholders of 
 100 per cent on the stock. The 
 shareholder declining to pay, the re- 
 ceiver brought an action at law 
 against him for the assessment on 
 sixty shares of stock standing in his 
 own name. The shareholder there- 
 upon filed a bill in equity to restrain 
 the prosecution of the action, claim- 
 ing that he was not liable for the full 
 assessment by reason of an increase 
 in the capital stock without the
 
 RECEIVERSHIP OF NATIONAL BANKS. 
 
 4i5 
 
 The receiver's right of recovery is limited to the right of the 
 corporation had no receiver been appointed.* 
 
 § 259. Illegal preferences. 
 
 Section 5242 of the United States Kevised Statutes renders in- 
 vaHd as preferential all transfers of notes, bonds, bills of exchange, 
 or other evidence of debt, deposits to its credit, mortgages, sureties 
 on real estate, judgments or decrees in its favor, deposits of money, 
 bullion, or other valuable thing for its use, or for the use of any of 
 
 knowledge on the part of the stock- 
 holder of a deficiency existing, and it 
 was held that the shareholder having 
 received the certificates for the in- 
 creased stock was liable, and that he 
 was not entitled to a credit upon the 
 assessment by reason of payments 
 having been made by him on a mis- 
 apprehension, such payments not 
 being under such mistake as a court 
 of equity would relieve him from. 
 
 In Holt V. Thomas, 105 Cal. 273, a 
 stockholder appeared on the books to 
 be the owner of sixty shares, fifty of 
 which he claimed to have sold to 
 another person, and on suit being 
 brought against him it was held that 
 the stockholder could not, after hav- 
 ing voluntarily paid a percentage on 
 the assessment of the sixty shares 
 upon demand of the receiver, recover 
 back money paid on the fifty shares 
 on the ground of a mistake of fact 
 upon ascertaining that a surplus re- 
 mained after other stockholders had 
 paid their assessment. The payment 
 was voluntarily made with knowledge 
 of the facts and could not be recovered 
 back. 
 
 In Germania Nat. Bank v. Case, 99 
 U. S. 628, 25 L. ed. 448, it was held 
 that a shareholder was estopped from 
 denying his position as such stock- 
 holder of the bank under the circum- 
 stances of the case. 
 
 ' In Winters v. Armstrong, 37 Fed. 
 Rep. 508, it is held that in an action 
 
 by the receiver of a national bank to 
 enforce subscriptions to the proposed 
 increase of its capital stock, an alle- 
 gation that the bank, subsequent to the 
 defendant's subscription, and with 
 their knowledge, represented to the 
 public by means of circulars, etc., 
 that its capital stock had been so in- 
 creased and that defendants allowed 
 their names to remain as subscribers 
 to the increased stock, but without 
 alleging that the public gave the 
 credit to the bank on the faith that 
 defendants were part owners of the 
 increased stock, or that they allowed 
 themselves to be held out as actual 
 stockholders, does not show that they 
 are estopped to plead the failure of 
 the bank to comply with the statu- 
 tory requirements in perfecting such 
 increase. The receiver stands in the 
 shoes of the bank and can assert no 
 right against the subscribers which 
 the bank could not have asserted. A 
 subscriber who has made payments 
 on a subscription to the proposed in- 
 crease, believing that the recjuire- 
 ments would be complied with, is 
 entitled to have the amount thereof 
 allowed as a claim against the assets 
 of the bank in the receiver's hands. 
 
 In Cutting v. Damerel, 88 N. Y. 
 410, it is held that the receiver in 
 actions by him occupied no better 
 position and had no bt-tler right tliau 
 the corporation over whoso property 
 he was appointed.
 
 446 
 
 RECEIVERSHIPS. 
 
 its shareholders or creditors, all payments of money to either 
 after the commission of an act of insolvency, or in contemplation 
 thereof, made with a view to prevent the application of its assets 
 in the manner prescribed by the act, or made with a view to the 
 preference of one creditor to another, except in the payment of 
 its circulating notes.' The transfer in contemplation of the act 
 
 • An insolvent national bank after 
 insolvency has no right to prefer a 
 creditor in violation of U. S. Rev. 
 Stat. § 5242, if such preference is in 
 contemplation of insolvency. And 
 in such case want of knowledge on 
 the part of the corporation receiving 
 such preference is immaterial. JSa- 
 tional Security Bank v. Butler, 129 U. 
 S. 223, 32 L. ed. 682. 
 
 In National Security Bank v. But- 
 ler, supra, suit was brought by the re- 
 ceiver of a national bank against an- 
 other national bank to recover from 
 the latter certain moneys alleged to 
 have been paid to the latter and held 
 by it as a preferred creditor in viola- 
 tion of U. S. Rev. Stat. § 5242. It 
 was held that the transfer of the se- 
 curities, if made in contemplation of 
 insolvency, was fraudulent under the 
 statute, although there was no such 
 intention on the part of the security 
 bank in receiving the transfer, and 
 although there was no knowledge or 
 Buspicion at that time on the part 
 of the security bank that the Pacific 
 Bank was insolvent, or contemplated 
 insolvency, or was not doing business, 
 or that its directors had voted to close 
 it, or that application was to be made 
 for a receiver. 
 
 Insolvency is such a condition of 
 affairs that the bank is unable to meet 
 Its obligations as they mature in the 
 usual course of business. An act of 
 insolvency takes place when a bank 
 has actually failed to meet some of 
 its obligations. Roberts v. Hill, 24 
 Fed. Rep. 571; Market Nat. Bank v. 
 Pacific Nat. Bank, 30 Hun, 50. 
 
 It is in contemplation of insolvency 
 when it becomes reasonably apparent 
 to its officers that it will presently be 
 unable to meet its obligations, and 
 will be obliged to suspend its ordi- 
 nary operations. Id. If the bank is 
 in contemplation of insolvency it ia 
 not necessary that the party to whom 
 the transfer is made should be aware 
 of it. Case v. Citizens' Bank, 2 Woods, 
 23; Iron v. Manufacturers' Nat. Bank, 
 6 Biss. 301. An execution returned 
 nulla bona is evidence of insolvency. 
 Wlieelock v. Kosi, 77 111. 296. Cf . Ro- 
 berts v. Hill, 24 Fed. Rep. 571 ; Arm- 
 strong V. CJiemical Nat. Bank, 41 Fed. 
 Rep. 23i; Wager v. Hall, 83 U. S. 16 
 Wall. 584, 21 L, ed. 504; Casey v. La 
 Societe de Credit Mdbilkr, 2 Woods, 77. 
 
 The intent to give a preference is 
 presumed when the bank officers know 
 of its insolvency, and, therefore, 
 know it cannot pay all its creditors in 
 full. RoberU v. Hill, 24 Fed. Rep. 
 571, Overruling Roberts v. Hill, 83 
 Fed. Rep. 311. See also National 
 Security Bank v. Price, 22 Fed. Rep. 
 697; Case v. Citizens' Bank, 2 Woods, 
 28, 100 U. S. 446, 25 L. ed. G95; Sato- 
 yer v. Tur'pin, 2 Low. Dec. 29. 
 
 In Davis v. Elmira Sav. Bank, 161 
 U. S. 275, 40 L. ed. 700, it is held 
 that § 130 of chapter 689 of the 
 laws of the state of New York of 
 1892, providing for the payment by 
 the receiver of an insolvent bank, in 
 the first place, of the deposits in its 
 bank by savings banks when applied 
 to an insolvent national bank, is in 
 conflict with § 5236 of the Revised 
 Statutes of the United States, directing
 
 RECEIVERSHIP OF NATIONAL BANKS. 
 
 UT 
 
 wliicli is rendered void must be with a view of giving a prefer- 
 ence, and not the giving of security for an actual loan,' made in 
 
 the comptroller of the currency to 
 make ralable dividends of the money 
 paid over to him by such receiver 
 on all claims proved to his satis- 
 faction or adjudicated in a court of 
 competent jurisdiction, and is there- 
 fore void when applied to a national 
 bank, and is a preference prohibited 
 by the National Banking Act. This 
 case reverses the case of Ehnira Sav. 
 Bank v. Davis, 143 N. Y. 590, 25 L. 
 R. A. 546, and also same case in 73 
 Hun, 357. See also Venango Nat. 
 Bank v. Taylor, 56 Pa. 14. 
 
 ' In Re Armstrojig, 41 Fed. Rep. 381, 
 it was held that U. S. Rev. Stat. 
 § 5242, which invalidates all transfers 
 of notes, etc., of a national bank after 
 the commission of an act of insolvency 
 with a view to the preference of one 
 creditor over another does not pro- 
 hibit a bank which has in good faith 
 accepted a draft of a national bank 
 the day before the latter's insolvency, 
 and afterwards paid the same, from 
 applying the profits of collections 
 made by it in its hands belonging to 
 the insolvent bank to the payment of 
 the draft since its lien on such collec- 
 tions runs from the date of accept- 
 ance. 
 
 In Armstrong v. chemical Nat. 
 Bank, 41 Fed. Rep. 234, it was held 
 under U. S. Rev. Stat, t^ 5242, that the 
 section is directed to a preference as iu 
 giving security for a debt which is 
 created; and if the transaction be free 
 from fraud in fact and is intended 
 merely to adequately protect a loan 
 made at the time, the creditor can re- 
 tain the property transferred to se- 
 cure such loan until the debt is paid, 
 though the debtor is insolvent, and 
 the creditor has reason to believe at 
 the time that to be the facty A bank 
 
 is not in contemplation of insolvency 
 until the fact becomes reasonably ap- 
 parent to its officers that It will pres- 
 ently be unable to meet its obliga- 
 tions, and will be obliged to suspend 
 its ordinary operations. Cf. Roberts 
 V. Hill, 24 Fed. Kep. 571; Tiffany 
 v. Lucas, 82 U. S. 15 Wall. 410, 21 
 L. ed. 198; Cook v. Tullis, 85 U. S. 18 
 Wall. 332, 31 L. ed. 933; Clark v. 
 Iselin, 88 U. S. 21 Wall. 360, 22 L. 
 ed. 568; Casey \.La Societe de Credit 
 Mobilier, 2 Woods, 77. 
 
 In Cook County Nat. Bank v. United 
 States, 107 U. S. 445, 27 L. ed. 537, it 
 is held that § 3466 of U. S. Rev. Stat, 
 which, in certain cases mentioned, 
 gives the United States priority of 
 payment of debts due to it, does not 
 apply to its demands against an in- 
 solvent national bank. 
 
 In Hayes v. Beardsley, 136 N. Y. 
 299, an action was brought by a re- 
 ceiver of a national bank to recover 
 payments alleged to have been made 
 by the bank in violation of the Na- 
 tional Banking Act, which declared 
 void all transfers of securities and 
 payments made by a bank organized 
 under it "after the commission of an 
 act of insolvency, or in contemplation 
 thereof, made with a view to prevent 
 the application of its assets," where 
 it appeared that the bank at the time 
 of the payments was in fact insolvent, 
 and had been so for years, which was 
 known only to the cashier, it was 
 held that the complaint of the receiver 
 was properly dismissed as the plain- 
 tiff failed to show that the payments 
 were made in contemplation of in- 
 solvency, or to prevent the applica- 
 tion of the bank assets as prescribed 
 by law. In this case the insolvency 
 of the bank was concealed by the
 
 4^8 
 
 RECEIVERSHIPS. 
 
 good faith.' The statute also prohibits attachments of the prop- 
 erty of the bank after insolvency.* 
 
 § 260. Liability of directors. 
 
 Section 5239, United States Revised Statutes, provides that if 
 the directors of any national banking association shall knowingly 
 violate, or knowingly permit any of the officers, agents, or serv- 
 ants of the association to violate, any of the provisions of title 
 Ixii. of National Bank Act, all the rights, privileges, and fran- 
 chises of the association shall be thereby forfeited, to be deter- 
 mined and adjudged by a proper circuit, district, or territorial 
 court of the United States in a suit brought for that purpose by 
 the comptroller of the currency in his own name before the asso- 
 ciation shall be declared dissolved. And in cases of such viola- 
 tion every director who participated in or assented to the same 
 shall be held liable in his personal and individual capacity for all 
 damages which the association, its shareholders, or any other per- 
 son, shall have sustained in consequence of such violation. Ac- 
 tions for a violation of this section are properly brought by the 
 receiver,' but inasmuch as the form of action is not prescribed, the 
 
 cashier and none of its directors were 
 suspicious thereof, but, under the cir- 
 cumstances, the fact that the defend- 
 ant was a director did not, as a mat- 
 ter of law, charge him with liability 
 for the payments made to him, he 
 having acted in good faith and in ig- 
 norance of the wrongdoing and of the 
 bank's insolvency. 
 
 The preference of one creditor to 
 another by a national bank, as con- 
 templated in U. S. Rev. Stat. § 5242, is a 
 preference given to the creditor to se- 
 cure or pay a pre-existing debt. When 
 a national bank, in embarrassed cir- 
 cumstances and in need of assistance, 
 receives a loan of money or other 
 valuable material aid from a person 
 who knows its embarrassed state, on 
 condition that the party making the 
 loan or giving the aid, shall be se- 
 cured therefor, and the security is 
 accordingly given on a pledge of part 
 
 of the assets of the bank, this is not 
 giving him a preference within the 
 meaning of the statute. Casey v. La 
 Societe de Credit Mobilier, 2 Woods, 
 77; Clark v. Iselin, 88 U. S. 21 Wall. 
 360, 22 L. ed. 568. 
 
 ^Harvey v. Allen, 16 Bin eh . 29; 
 Mrst Nat. Bank v. Colby, 88 U. S. 21 
 Wall. 609, 22 L. ed. 687. And see 
 Butler V. Coleman, 124 U. S. 721, 31 
 L. ed. 567; Raynor v. Pacific Nat. 
 Bank, 93 N. Y. 371; National Shoe <& 
 L. Bank v. Mechanics' Nat. Bank, 89 
 N. Y. 467. 
 
 ''In Briggs v. Spaulding, 141 U. S. 
 132, 35 L. ed. 662, a bill was filed by 
 a receiver of a national bank against 
 the directors of the bank seeking to 
 recover from such directors by reason 
 of negligence in the management of 
 the affairs of the bank. The court 
 held that the directors were not to be 
 held responsible siraply because they
 
 RECEIVERSHIP OF NATIONAL BANKS. 
 
 449 
 
 practice is not iiTiiform as to whether the action shall be at law or in 
 equity. Equity has becTi held to furnish a more complete and 
 adequate remedy in similar cases under similar statutes/ but ac- 
 tions at law have also been maintained.' The managers of a bank 
 are not liable when personally sued by the receiver for alleged 
 
 did not prevent the losses during the 
 period they were directors and that it 
 was not their duty as such to go 
 among the clerks and look through 
 the books, or call for and run over the 
 bills receivable. The directors of a 
 bank must exercise ordinary care and 
 prudence iu the administration of its 
 affairs and use reasonable supervision 
 over the conduct of the business, but 
 they are not to be shielded from lia- 
 bility because of want of knowledge 
 of wrongdoing if such ignorance is 
 the result of gross intention. 
 
 Cf. Brinckerhoff v. Bostwick, 88 N. 
 Y. 52; Movius v. Lee, 30 Fed. Rep. 
 298. 
 
 A suit by a receiver may be main- 
 tained in the United Slates circuit 
 court without reference to citizenship 
 of the parties {^Armstrong v. Traut- 
 man, 36 Fed. Rep. 275), or in a state 
 court, Brinckerhoff Y. Bosiwick, 88 N. 
 Y. 52. 
 
 A suit by a receiver cannot be com- 
 pounded by the comptroller without 
 leave of court. Case v. Siuall, 4 
 Woods, 78. 
 
 Bank oflficers are not liable for 
 errors of judgment in making loans 
 and discounts in good faith and for 
 what they deemed the best interests of 
 the bank. Witters v. Sowles, 31 Fed. 
 Rep. 1. 
 
 ' Horrwr v. Eenning, 93 U. S. 228, 
 23 L. ed. 879; Stone v. Chiaolm, 113 
 U. S. 302, 28 L. ed. 991; Crown v. 
 Brainerd, 57 Vt. 625. And see under 
 this statute, Briggs v. Spaulding, 141 
 U. S. 132, 35 L. ed. 662. 
 
 In Welles v. Grates, 41 Fed. Rep. 
 
 29 
 
 459, it is held that the personal liabil- 
 ity of directors of a national bank for 
 a violation of § 5204, by declaring 
 dividends in excess of net profits, and 
 of § 5200, for loaning to separate per- 
 sons, firms, or corporations, amounts 
 exceeding one tenth of the capital 
 slock, cannot be enforced in an action 
 at law. It is also held that before a 
 suit can be instituted against directors 
 for a violation of the statute it must 
 be adjudged by a proper court, that 
 such acts have been done as authorize 
 the forfeiture of the charter. In this 
 suit the action was instituted and 
 prosecuted by the receiver. 
 
 ^ Slejyhens v. Overstolz, 43 Fed. Rep. 
 771; Bank of Poughkeepsie v. Ihhotson, 
 24 Wend. 479; Perry v. Turner, 55 
 Mo. 418; Culver v. Third Nat. Bank, 
 64 111. 528; Matthews v. Albert, 24 Md. 
 527; Norris v. Johnson, 34 Md. 485. 
 
 In Stephens v. Overstolz, supra, it 
 was held that an action by a receiver 
 of a bank whose charter had been for- 
 feited under the statute against a di- 
 rector is properly brought at law, 
 there being no necessity of invoking 
 the aid of a court of chancery by rea- 
 son of the nature of the issues in- 
 volved, or to avoid a multiplicity of 
 suits. In this case it is also held that 
 the right to maintain an action by a 
 receiver under t^ 5239 against a bank 
 director on account of excessive loans 
 made while the defendant was acting 
 as director, does not depend upon the 
 fact that the comptroller has or has 
 not procured a forfeiture of the bank's 
 charter.
 
 450 RECEIVERSHIPS. 
 
 mismanagement in not requiring in their discretion a bond from 
 the president for the faithful discharge of his duty as an official, 
 nor for unsafe or irregular investments made without their knowl- 
 edge or complicity, and may also plead the statute of limitations.' 
 They are liable, however, for receiving deposits when they know, 
 or may readily learn, that the bank is insolvent/ 
 
 ^Williams v. Halliard, 38 N. J. Eq, the bank to become insolvent and its 
 
 373. stock worthless (Comoay v. Ualsey, 
 
 ^Delano v. Case, 17 111. App. 531; 44 N. J. L. 462), unless the comp- 
 
 Cragie V. Hadley, 99 N.Y. 131; Ci'aigie troUer and receiver refuse to do so 
 
 V. Smith, 14 Abb. N. C. 409. {JVelson v. Burroics, 9 Abb. N. C. 280), 
 
 A shareholder cannot maintain a or where the receiver is a director, 
 
 suit against the officers for misman- Brinckerhoff v. Bostwick, 88 N. Y, 52. 
 ugement and negligence which causes
 
 CHAPTER Xiy. 
 
 RECEIVERSHIP OF RAILWAYS. 
 
 ^ 270. General— attitude of courts. 
 § 271. Notice of application. 
 j^ 212. When appointed. 
 
 (ii) When road unlawf uUyleased. 
 
 (b) When default in payment of 
 
 mortgage indebtedness. 
 
 (c) When diversion of income 
 
 and revenues. 
 
 (d) When default in payment of 
 
 interest. 
 
 (e) Whenmismanagement.squan- 
 
 dering funds, etc. 
 
 (f) When neglect to elect officers. 
 
 (g) When statutory cause, 
 g 276. When not appointed. 
 
 (a) When no notice of applica- 
 
 tion. 
 
 (b) When insolvency alone not 
 
 sufficient. 
 
 (c) When right to foreclose 
 
 doubtful. 
 
 (d) When application by minor- 
 
 ity bondholders. 
 
 (e) When default in interest in- 
 
 sufficient. 
 
 (f) When plaintiff has adequate 
 
 remedy at law. 
 
 (g) When trustees have ample 
 
 power, 
 (h) When rights of third parties 
 
 are prejudiced, 
 (i) When disagreement as to 
 management alone. 
 § 274. Powers of railway receiver. 
 ^5 275. Power to pay unsecured claims. 
 
 (a) Mortgage by implication sub- 
 
 ject to claims for lal)orand 
 supplies. 
 
 (b) Limitations as to preferred 
 
 claims. 
 
 § 276, Grounds upon which preferred 
 claims allowed. 
 
 (a) Payment a necessity to lien- 
 
 holder. 
 
 (b) Payment as a condition to 
 
 relief asked. 
 
 (c) Diversion of income a ground 
 
 for allowance. 
 
 (d) When allowed by statute. 
 
 (e) Classes of claims preferential, 
 (i) Operating expenses. 
 
 (S) Construction account. 
 § 277. Scope of implied power as to 
 operating expenses. 
 
 (a) Application as to railroads. 
 
 ■ Preferential debts. 
 
 (b) Not extended to private cor- 
 
 porations generally. 
 § 278. Preferential claims, basis of. 
 
 (a) Not based on liens. 
 
 (b) Not a condition of equitable 
 
 relief. 
 § 279. Rule in Federal courts. 
 
 (a) Inherent power of court to 
 
 pay operating expenses. 
 
 (b) Is not a condition to equitable 
 
 relief. 
 
 (c) Lien not a matter of contract. 
 
 (d) When receiver appointed at 
 
 instanceof general creditor. 
 
 (e) When receiver appointed at 
 
 instance of mortgagee. 
 
 (f) Limitations in such case. 
 
 (i) Tendency not to enlarge 
 scope. 
 
 (2) Payment does not depend 
 on order. 
 
 {3) Must accrue within rea- 
 sonable time. 
 
 (4) Necessity of notice. 
 
 451
 
 i52 
 
 RECEIVE RSPIIPS. 
 
 (5) Confined to operating ex- 
 
 penses generally. 
 
 (6) Equitable nature of suck 
 
 claims. 
 § 280. Application to rolling stock 
 and car trusts. 
 
 (a) Receiver not adopting con- 
 
 tract must pay reasonable 
 price for use. 
 
 (b) Receiver if adopting must 
 
 pay contract price. 
 
 (c) Contract price is not neces- 
 
 sarily an equitable price. 
 
 (d) Vendor-lessor entitled to a 
 
 return. Demand. 
 § 281. Claims not preferential. 
 
 (a) Advances to complete road. 
 
 (b) Damages from operation, 
 
 fire, etc. 
 
 (c) Attorneys' fees before ap- 
 
 pointment of receiver. 
 
 (d) Goods sold subsequent to 
 
 mortgage. 
 
 (e) Locomotives sold to com- 
 
 pany. 
 
 (f) Construction of such con- 
 
 tract. 
 
 § 282. Extent of power of railway re- 
 ceiver. 
 
 § 283. General scope of his power, 
 (a) Preservation of receivership 
 property. 
 
 (b) Collection of outstanding in- 
 
 debtedness. 
 
 (c) Reduce to possession prop- 
 
 erty of company. 
 
 (d) Disaffirm unlawful acts of 
 
 officers and directors. 
 
 (e) Restrain unlawful acts. 
 
 (f) Defend suits and proceedings 
 
 when. 
 
 (g) Traffic arrangements and fa- 
 
 cilities. 
 (h) As to unfinished or incom- 
 plete contracts, 
 (i) As to unexpired leases. 
 ^ 2S4. LimitationsQn receiver's power. 
 § 285. Liability of railway receivers. 
 
 (a) Receiver acting as carrier 
 
 governed by general rules. 
 
 (1) Corporation liable under 
 statute. 
 
 (f) Receiver not liable on ex- 
 ecutory contracts. 
 
 (b) Railroad not liable when. 
 
 (c) When receiver personally 
 
 liable. 
 
 (d) AVhen receiver officially 
 
 liable. 
 
 (e) Liability measured by that of 
 
 corporation. 
 
 § 286. Effect of discharge as to lia- 
 bility. 
 
 § 287. Receivers' Certificates. 
 
 § 270. (xeneral — attitude of courts. 
 
 Courts are averse to the apjjoiiitiiient of a receiver of railway 
 corporations by reason of the fact that such corporations derive 
 their power and franchises from tlie legislative department of 
 government, and as long as they are faithful to the trusts vouch- 
 safed to them and assumed by them, a co-ordinate department of 
 government is not inclined, without adequate cause, to interfere in 
 their management by taking from the legally constituted ati- 
 thorities the duties vested in them.' Besides, the common law 
 
 ' Gardner v. London, C. & D. R. 
 Co. L. R. 2 Ch. App. 201. The effect 
 of this decision lead to the adoption of 
 the act of parliament known as the 
 
 Railway Companies Act of 1867, un- 
 der which the high court of chan- 
 cery was given power to appoint a re- 
 ceiver and manager of railway com-
 
 REC]EIVERSHIP OF RAILWAYS. 
 
 453 
 
 action of quo warranto is adequate and av^ailable to correct many 
 of the al)uses that arise in the exercise of corporate functions and 
 frequently is resorted to and affords ample protection in many 
 cases of railway manaj^ement, but would not be adequate in its 
 application to other corporations, joint stock companies, or part- 
 nerships. Moreover railway corporations are quasi public in their 
 nature and the public have a corresponding interest in the due 
 and proper exercise of their corpoi-ate functions which it is tlie 
 duty of the courts to recognize and protect, and for this reason, 
 if no other, extreme caution should in all cases be exercised in ap- 
 pointing a receiver over them,' In England and in nearly all the 
 
 panies, and by the Judicature Act of 
 1873 this power was transferred to the 
 chancery division of the high court 
 of justice (36 & 37 Vict. L. R. 8, 
 Stat. 307j. The court, in Overton v, 
 Memphis & L. R. R. Co. 10 Fed. Rep. 
 866, says: "Undoubtedly there are 
 cases in which a court of equity may, 
 through its receiver, take possession 
 and control of the business of corpora- 
 tions and individuals. But it is a ju- 
 risdiction to be sparingly exercised. 
 None of the prerogatives of a court of 
 equity have been pushed to such ex- 
 treme limits as this and there is none 
 so likely to lead to abuses. It is not 
 the province of a court of equity to 
 take possession of the properly and 
 conduct the business of corporal ious 
 or individuals, except where the ex- 
 ercise of such extraordinary jurisdic- 
 tion is indispensably necessary to save 
 or protect some clear right of a suitor 
 which would otherwise be lost or 
 greatly endangered, and which cannot 
 be saved or protected i>y any other ac- 
 tion or mode of proceeding." Cf. 
 Pond v. Fraiidngham & L. R. Co. 130 
 Mass. 194. 
 
 Con.siderations of the public interests 
 are controlling upon a court of equity, 
 when a public means of transportation, 
 euch as a railroad, comes into the pos- 
 session and under the dominiou of the 
 
 court. Jo7j V. St. Louis, 138 U. S. 1, 
 34 L. ed. 843. 
 
 ' In Texus Trunk R. Co. v. State, 83 
 Tex. 1, it was held that though the 
 state may not be a creditor, yet the 
 public has such an interest in the 
 proper management of the property of 
 a dissolved corporation as makes it 
 proper for a receiver to be appointed 
 to manage and control its property to 
 the end that it shall be faithfully ap- 
 plied to the public purpose for which 
 the corporation was originally created. 
 In Meyer v. Johnston, 53 Ala. 237, it 
 was held that a court of chancery has 
 power independent of statute to ap- 
 point a receiver to manage and operate 
 a railroad when such course is indis- 
 pensable to secure the rights of parties 
 in interest, but it must be a case of ur- 
 gency. 
 
 In Kelly v. Alabama & C. R. Co. 58 
 Ala. 489, it is held: " Railway com- 
 panies are more than mere private cor- 
 porations — they are in many respects, 
 and for many purposes, quasi-public 
 bodies, invested with large and pecu- 
 liar franchises and privileges, and 
 owing important duties, and under 
 varied responsihililies to the public. 
 Hence, courts of equity, in the ap 
 pointment of receivers over them, act 
 with extreme caution and require a 
 clear case of right and of pressing
 
 454 
 
 RECEIVERSHIPS. 
 
 states of this country there are now statutory regulations govern- 
 ing the appointment of receivers and especially so regarding re- 
 ceivers of insolvent corporations, and those in process of 
 dissolution. 
 
 § 271. Notice of application. 
 
 A receiver of a railway should under no circumstances be ap- 
 pointed without notice to the corporation, if it is practicable so to 
 do, and only the gravest emergency will justify such appoint- 
 ment on an ex parte application.* The application for the ap- 
 
 necessity to induce their interference." 
 Mr. Justice Miller in Milwaukee & M. 
 R. Co. V. SouUer, 69 U. S. 2 Wall. 
 510, 17 L. ed. 900, says: "The ap- 
 pointment of receivers by a court to 
 manage the affairs of a long line of 
 railroad continued through five or six 
 years is one of those judicial powers, 
 the exercise of which can only be jus- 
 tified by the pressure of an absolute 
 necessity." Cf. American Loan & T. 
 Co. V. Toledo, C. & 8. R. Co. 29 Fed. 
 Rep. 416; Stevens v. Do,vison, ISGratt. 
 819; Overton v. Memphis & L. R. R. 
 Co. 10 Fed. Rep. 866; State v. Jackson- 
 ville, P. & M. R. Co. 15 Fla. 201; 
 Wahash R. Co. v. Dykeman, 133 Ind. 
 56; Herring v. New York, L. E. & W. 
 R. Co. 105 N. Y. 340. 
 
 And while courts are extremely cau- 
 tious in the matter of the appointment 
 of receivers over corporations, particu- 
 larly railways, and those owing duties 
 to the public, yet it has been found 
 expedient, if not a necessity, to ap- 
 point receivers over quasi public cor- 
 porations, owing to the fact that their 
 property is not subject to levy and 
 sale under execution, in many cases. 
 Louisville Water Co. v. Hamilton, 81 
 Ky. 517. 
 
 Overton Bridge Co. v. Means, 33 Neb. 
 857; New Orleans v. Morris, 105 U. S. 
 600. 26 L. ed. 1184; Seymour v. Mil- 
 ford & C. Turnp. Co. 10 Ohio, 476; 
 
 GoocJi v. McGee, 83 N. C. 59; Palestine 
 V. Barnes, 50 Tex. 538; Susquehanna 
 Canal Co. v. BonJiam, 9 Watts & S. 
 27, Ammant v. New Alexandria & P. 
 Tump. Road, 13 Serg. & R. 210; Fos- 
 ter V. Fowler, 60 Pa. 27; Leonard v. 
 Brooklyn, 71 N. Y. 498; Baxter v. 
 Nashville & H. Tump. Co. 10 Lea, 488; 
 Wood v. Truckee Tump. Co. 24 Cal. 
 474; Que v. Tide Water Canal Co. 65 
 U. S. 24 How. 257, 16 L. ed. 635. 
 See, contra. Stale v. Rives, 5 Ired. L. 
 297; Arthur V. Commercial & R. Bank, 
 9 Smedes & M. 394. 
 
 It must be understood that the 
 above rule applies to that class of 
 property of corporations which is es- 
 sential to the operation of the road or 
 franchise in which the public has an 
 interest, and does not apply to prop- 
 erty owned by the corporation that is 
 not essential to the due and proper 
 performance of its duties to the public. 
 
 ' In Wabash R. Co. v. Dykeman, 133 
 Ind. 56, by Ind. Rev. Stat. § 1230 
 (1881), it is provided "receivers shall 
 not be appointed either in term or va- 
 cation, in any case, until the adverse 
 party shall have appeared or shall 
 have had reasonable notice of the ap- 
 plication for such appointment, ex- 
 cept upon suflicient cause shown by 
 aflidavit." The court say: "The 
 statute being silent as to what will 
 constitute a sufficient cause, we must
 
 RECEIVERSHIP OF RAILWAYS. 
 
 455 
 
 pointment and the degree of caution required to be exercised has 
 been ab-eady considered/ but all the primary principles relative 
 to the appointment, and the care of the court in assuming the 
 important functions of operating and managing a railroad, are 
 particularly important in this class of receiverships. Not only 
 the parties to the suit are affected, but a large number of em- 
 ployees are disturbed in their relation to the employer, and the 
 general public along the line of road are liable to be greatly in- 
 convenienced by the disturbance of their shipping facilities." 
 The application may be made by various parties in interest.' 
 
 look to precedents, and adjudged cases 
 to deiermine that question. The suf- 
 ficient cause required to be shown 
 must be (1) for the appointment of a 
 receiver at all, and (2) for not giving 
 notice of the application to the adverse 
 party. The stattniint in verified com- 
 plaint that there was an emergency 
 for the immediate appointment of a 
 receiver without notice was not a suf. 
 ficient showing. This was a mere 
 statement of an opinion. The facts 
 on which the opinion was founded 
 should have been pleaded in order to 
 enable the court to judge of its cor- 
 rectness." Verplanck v. Mercayitile 
 Ins. Co. 2 Paige, 438; French v. Gif- 
 ford, ;iO Iowa, 148; Moritz v. Miller, 
 87 Ala. 331. 
 
 It was further held that the settled 
 practice now is not to appoint a re- 
 ceiver ex parte and thereby deprive 
 the corporation of the possession of 
 its property before it has had an op- 
 portunity to be heard in relation to its 
 rights, except in those cases where it 
 is out of the jurisdiction of tlie court, 
 or none of its officers can be found, 
 or where, for some other reason, it 
 becomes absolutely necessary for the 
 court to interfere before there is time 
 to give notice to the corporation to 
 prevent the destruction or loss of 
 property. Citing the following cases 
 among others: People v. Albany tfc S. 
 
 R. Co. 55 Barb. 344, 369; French v. 
 Gijfurd, 30 Iowa, 148, 160; Bisson v, 
 Curry, 35 Iowa, 72; Howe v. Jones, 57 
 Iowa, 130; Cleveland, G. C. & I. 11. 
 Co. v. Jeicett, 37 Ohio St. 649; Briar- 
 field Iron Works Co. v. Foster, 54 Ala. 
 622; Word v. Word, 90 Ala. 81; Moritz 
 V. Miller, 87 Ala. 331; Martin v. I'ar- 
 ver, 43 Miss. 517; Cook v. Detroit & 
 M. R. Co. 45 Mich. 453; Turnhull v. 
 Prentiss Lumber Co. 55 Mich. 387. 
 
 ' Chap. II. 
 
 * In passing upon an application for 
 the appointment of a receiver it is the 
 duty of a court to scrutinize not only 
 the rights asserted by the moving 
 part}% but the injuries that may be 
 suffered by the adverse party and the 
 public at large. This is particu- 
 larly the case where a line of railroad 
 forming part of a system operated as 
 a unit is thereby del ached from the 
 main road. In such case not only the 
 parlies to the suit are affected, but a 
 large number of employees are dis- 
 turbed iu their relation to the em- 
 ployer, and the general public along 
 the line of road are liable to be greatly 
 inconvenienced by the disturbance of 
 their shipping facilities, especially to 
 remote points. Wabash R. Co. v. 
 Dykenian, 133 Ind. 56. 
 
 2 See § 272. 
 
 In 8ii;ie v. Memphis cf; A. It. li. Co. 
 125 U. S. 361. 31 L. ed. 691, a bill iu
 
 456 
 
 RECEIVERSHIPS. 
 
 § 272. When appointed. 
 
 A court of equity in the exercise of its cliaucery jurisdiction, 
 and in the absence of statutory power, on a proper showing by a 
 proper party on due notice, and in the exercise of a sound judi- 
 cial discretion, may appoint a receiver over a railway : 
 
 (a) Where the directors without lawful authority, and without 
 the sanction of the stockholders, have leased the road and its 
 property and placed their management in the hands of another 
 corporation.' 
 
 equity was filed by a judgment cred- 
 itor of a railroad company against Ihe 
 company, alleging that the property 
 was heavily mortgaged and that, if 
 plaintiff should attempt to secure the 
 payment of his debt by seizure and 
 sale, bidders could not be obtained 
 for more than a nominal amount, and 
 praying for a receiver. 
 
 In Union Trust Co. v. Illinois M. R. 
 Co. 117 U. S. 434, 29 L. ed. 963, af- 
 firmed in 28 Fed. Rep. 169, the own- 
 ers of the majority of the stock 
 together with judgment creditors 
 brought a suit in equity in the state 
 court, praying for a receiver. Subse- 
 quently the trustee in some of the 
 mortgages filed a bill in the United 
 States circuit court in Illinois to 
 foreclose their mortgages, after which 
 the proceeding in the state court was 
 removed to the United States court, 
 and subsequently all suits were con- 
 solidated. 
 
 In Decker v. Gardner, 124 N. Y. 
 334, 11 L. R. A. 480, an action was 
 brought in the Circuit Court of the 
 United States for the Western District 
 of Pennsylvania to foreclose mort- 
 gages upon the railroad property. 
 An auxiliary action was subsequently 
 brought in the Circuit Court for the 
 Northern District of New York. 
 
 In Brown v. Lake Superior Iron Co. 
 134 U. S. 530, 33 L. ed. 1021, the bill 
 •was filed by creditors in behalf of 
 
 themselves and other creditors whose 
 number was so great as to make it 
 impossible to join them as parties, al- 
 leging the insolvency of the defend- 
 ant, etc. 
 
 ' In Sage v. Memphis & L. R. R. Go. 5 
 McCrary, 643, it was held, on the au- 
 thority of Overton v. Memplds & L. R. 
 R. Co. 10 Fed. Rep. 866, that there are 
 cases in which a court of equity may, 
 through its receiver, take possession 
 and control of the property and busi- 
 ness of corporations, but it is a juris- 
 diction to be sparingly exercised. 
 None of the prerogatives of a court 
 of equity have been pushed to such 
 extreme limits as this and none is as 
 likely to lead to abuses. It is not the 
 province of a court of equity to take 
 possession of the property and con- 
 duct the business of the corporations 
 except where the exercise of such ex- 
 traordinary jurisdiction is indispensa- 
 bly necessary to save or protect some 
 clear right which would otherwise be 
 lost or greatly injured and which can- 
 not be protected by any other action 
 or mode of proceeding. Therefore, 
 where it appears that by collusion be- 
 tween a corporation and a creditor a 
 receiver is appointed over the prop- 
 erty of the company for the purpose 
 of keeping such property from their 
 creditors, the court will discharge the 
 receiver. 
 
 In Stevens v. Davison, 18 Gratt. 819,
 
 RECEIVERSHIP OF RAILWAYS. 
 
 457 
 
 (b) Wliere the company has made default in the payment of 
 its morto-age indebtedness/ or where default is imminent by rea- 
 
 it was held that a board of directors 
 had no authority without the sanction 
 of a lawful meeting of the stockhold- 
 ers to make a lease for years of the 
 railroad and its property with author- 
 ity to the lessee to operate the road, 
 and charge for carrying upon it. Be- 
 fore a court will appoint a receiver 
 for a railway to manage it such a 
 course must be indispensable to the 
 rights of legitimate stockholders and 
 prevent a failure of justice. Oardner 
 V. London, G. & D. R. Co. L. R. 2 
 Ch. App. 201. 
 
 ' Where the appointment of a re- 
 ceiver is asked to displace the exercise 
 of corporate authority over a railroad 
 courts of equity act with extreme cau- 
 tion and require a clear case of right 
 and of pressing necessity to induce 
 their interference; but when the cor- 
 poration itself has been declared 
 bankrupt with interest having accu- 
 mulated upon its bonds exceeding the 
 value of the property mortaged to se- 
 cure them and purchasers of the 
 equity of redemption at the assignee's 
 sale are in possession of the road and 
 property mortgaged, receiving the in- 
 come, profits, and earnings of the road 
 belonging to the mortgagee and using 
 the property for its own exclusive use 
 and benefit, a clear case is presented 
 for the appointment of a receiver. 
 Kelly V. Alabama & G. R. Go. 58 Ala. 
 489. 
 
 While a receiver will not be ap- 
 pointed to supersede permanently the 
 managers of a railway and to take 
 charge of the affairs of the road, yet 
 where two railway companies possess 
 a community interest of a property 
 in dispute the court of equity will 
 exercise judicious control over their 
 conduct towards each other, in order 
 
 to protect their respective rights. 
 Delaware, L. & W. R. Co. v. Erie R. 
 Co. 21 N. J. Eq . 299. 
 
 Where it is shown that the railway 
 company in violation of its duty is ap- 
 plying and intending to continue to 
 apply its revenues, which are the only 
 means of paying an annuity, towards 
 the payment of a junior incumbrance, 
 the court ought to interfere, on the ap- 
 plication of a prior mortgagee by in- 
 junction, and appoint a receiver. 
 
 In BolUnheck v. Donnell, 94 N. Y. 
 342, it was held that the power to ap- 
 point a receiver of the rents and profits 
 of mortgaged premises, accruing pend- 
 ing a foreclosure, was inherent in a 
 court of chancery before the adoption 
 of the code of procedure and such 
 power is not abrogated by a subse- 
 quent portion of the code defining the 
 case in which a receiver may be ap- 
 pointed. It appeared in this case that 
 about one sixth of the mortgage debt 
 was due and the premises divided into 
 two neatly equal parcels which could 
 be sold separately without injury to the 
 parties interested, and the court held 
 that, assuming the appointment of a 
 receiver of the rents and profits was 
 proper, in the absence of a subse- 
 quent pledge plaintiff was not en- 
 titled to a receivership for the pro- 
 tection of that portion of the debt not 
 yet due or of that portion of the prem- 
 ises as to which his rights to sell had 
 not accrued and appointed a receiver 
 over one of the parcels. 
 
 To authorize the appointment of a 
 receiver of the rents and profits of 
 mortgaged premises it must clearly 
 appear in an action to foreclose the 
 mortgage that the premises are an in- 
 adequate security for the debt and 
 that the mortgagor or other person
 
 458 
 
 RECEIVERSHIPS. 
 
 liable for the debt is insolvent. Bur- 
 lingame v. Puree, 12 Hun, 144. 
 
 In Shepley v. Atlantic &St. L. R. Co. 
 55 Me. 895, a railway company by or- 
 der of its stockholders and directors 
 conveyed its property and francliises 
 to trustees and their survivors by deed 
 to be void upon the payment of cer- 
 tain boncis issued by the corporation. 
 In this deed it was stipulated that a 
 failure to pay interest or principal of 
 the bonds according to their tenor 
 should authorize the mortgagee to 
 take the property into their actual 
 possession and manage and control 
 the same and apply the net proceeds 
 to the payment of such interest and 
 principal due. On a bill filed by the 
 trustees asking for special perform- 
 ance of the trust deed with reference 
 to the possession it was held that the 
 complainants were entitled to the re- 
 lief and the court by its decree placed 
 the trustees in possession. Cf. Shaw 
 V. Norfolk County R. Co. 5 Gray, 163. 
 
 In such case the death of one of the 
 trustees does not abate the suit, but the 
 proceedings must be continued until 
 the vacancy is filled. Shaw v. Norfolk 
 County R. Go. supra. 
 
 In Sage v. Memphis & L. R. R. Co. 
 125 U. S. 361, 31 L. ed. 694, it was 
 held that the appointment of a re- 
 ceiver was always within the discre- 
 tion of the court to be exercised with 
 great caution and with reference to 
 the circumstances to each particular 
 case; that where a bill of equity was 
 filed by a judgment creditor alleging in 
 substance that the property of the com- 
 pany was so heavily mortgaged that 
 if plaintiff should attempt to enforce 
 the payment of his debt by seizure 
 and sale of execution there would be 
 no bidders at more than a nominal 
 amount, presents a case giving the 
 court of equity jurisdiction to appoint 
 a receiver of the property under the 
 peculiar circumstances of the case. 
 
 But it was further held that a judg- 
 ment creditor, or any number of such 
 creditors, are not entitled as a matter 
 of right to have the company's prop- 
 erty put in the hands of a receiver, 
 merely because of its failure or re- 
 fusal to pay its debts. If it appears 
 that such a suit is conclusive and an 
 imposition on the court such receiver 
 will be discharged. Cf. Pennsylvania 
 Co. for Ins. etc. v. American Const. Co. 
 2 U. S. App. 606, 55 Fed. Rep. 131. 
 
 InWilliamson v. New Albany etc. 
 R. Co. 1 Biss. 198, it is said that the 
 appointment of a receiver of a rail- 
 way company on a foreclosure of a 
 mortgage is not a matter of course on 
 default in the payment of interest, 
 but rests in the sound discretion of 
 the court; and that a court of equity, 
 when its jurisdiction is invoked, will 
 look into the facts and exercise an 
 equitable jurisdiction, and will not 
 enforce the strict penalties of the deed 
 if such a course is not equitable. 
 
 In Allen v. Dallas & W. B. Co. 3 
 Woods, 316, it appeared that by a 
 deed of trust the company had mort- 
 gaged its income and profits as well 
 as its railway and their property to 
 secure the payment of the principal 
 and interest of its bonds and it au- 
 thorized its trustees in default of the 
 payment of interest to take possession 
 of the mortgaged property, and apply 
 the income to the payment of the in- 
 terest. It was held that the applica- 
 tion of the trustees should be granted, 
 and that such default was a sufficient 
 ground for the appointment of a re- 
 ceiver. 
 
 In Dow v. Memphis & L. R. R. Co. 
 20 Fed. Hep. 260, it is held that where 
 a railway company makes default in 
 the payment of the interest on this 
 mortgage indebtedness, and that the 
 property is inadequate security for 
 the mortgaged debt, the company 
 being insolvent and appropriating its
 
 RECEIVERSHIP OF RAILWAYS. 
 
 459 
 
 earnings to its O'wn use, a receiver pen- 
 dente lite will be appointed. 
 
 In Moi'rison v. Buckner, Hempst. 
 444, the general rule is stated to be 
 that the receiver will not be appointed 
 in mortgage cases unless it clearly ap- 
 pears that the security is inadequate, 
 or there is imminent danger of a 
 waste, removal, or destruction of the 
 mortgaged property, or that the earn- 
 ings and profits have been expressly 
 pledged for the debt. Cf . Shotioell v. 
 Smith, 3 Edw. Ch. 588; Cheever v. 
 Rutland & B. R. Co. 39 Vt. 653. 
 
 ln^Yilmer v. Atlanta & R. Air Line 
 R. Co. 2 Woods, 409, it is held that on a 
 default in the payment of interest, 
 and a uemand upon the trustees by 
 the bondholders for possession of the 
 trust property, and a failure of the 
 trustees to do so, the court may re- 
 quire them on a bill filed for such 
 purpose to execute the trust and com- 
 pel them to take possession of the 
 trust property, or may appoint a re- 
 ceiver for that purpose. 
 
 In Whitehead v. Woolen, 43 Miss. 
 523, it was held that to justify the ap- 
 pointment of a receiver before no- 
 tice, strong special reasons must be 
 shown; that a mortgagee is not enti- 
 tled after default to the earnings and 
 income of the mortgaged premises, 
 nor to a receiver, unless the property 
 is inadequate security, or unless the 
 earnings and income are specifically 
 pledged. 
 
 In McLane v. Placerville & 8. V. U. 
 Co. 66 Ca'i. 600, it was provided by 
 the mortgage that upon default in the 
 payment of interest for one year, the 
 trusteesor the survivors of them should 
 be entitled to take possession of the 
 mortgaged property, hold it, receive 
 and collect the income and profits, 
 and apply the same to certain pur- 
 poses. It was held tbat upon the 
 happening of that event, or any action 
 to enforce the specific execution of 
 
 the mortgage, that a receiver pendente 
 lite might be appointed to operate the 
 road. Cf. Sacramento P. R. Co. v. 
 San Francisco Super. Ct. 55 Cal. 458. 
 
 W^hile it may appear that there 
 has been a default in the payment of 
 the interest coupons secured by the 
 railroad mortgage, yet if it appear 
 that there is a fair and reasonable 
 claim by the defendant company 
 growing-out of contemporaneous con- 
 tracts that the time of payment has 
 been extended, or that the plaintiffs 
 are precluded from relying on the de- 
 fault, a receiver will not be appointed. 
 The court must first determine 
 whether the right of foreclosure ex- 
 ists. American Loan & T. Co. v. To- 
 ledo, C. & S. R. Co. 29 Fed. Rep. 416. 
 
 In Baker v. Backus, 32 111. 79, it 
 was contended that the stockholders 
 had a right to have the funds of the 
 company appropriated in discharge of 
 its liabilities and in exoneration of 
 their individual liabilities, and that 
 the neglect of the trustees to make 
 such appropriation was a breach of 
 trust which entitled the stockholders 
 to come into a court of equity, and 
 have the appropriation made, but it 
 was held that the stockholders had 
 no such right in the absence of 
 fraud or collusion, or neglect of duty 
 or indifference by the trustees. The 
 court, under the circumstances of the 
 case, say: "There was no necessity 
 to appoint a receiver because no fraud 
 is alleged or shown, and no sullicicnt 
 proof that such a step was necessary 
 to save the property from material 
 injury or rescue it from impending 
 destruction." 
 
 In Pond V. Framincjham & L. R, 
 Co. 130 Mass. 194, it was alleged in 
 the bill by creditors that the company 
 was insolvent, that all its property 
 was mortgaged to trustees for the 
 benefit of one class of creditors; tliat 
 it owed large amounts to other crcdi-
 
 460 
 
 RECEIVERSHIPS. 
 
 tors, one of whom had attached all 
 its property; that it was about to 
 execute a lease to an attaching creditor 
 for a long term of years at a rental 
 which would not pay the interest on 
 its indebtedness; that the execution of 
 the lease would be injurious to the in- 
 terest of its stockholders and credi- 
 tors. Held tbat the bill did not state 
 a case within the equity jurisdiction 
 of the court. Cf. 'Treudicell v. Salis- 
 bury Mf<j. Co. 7 Gray, 893. 
 
 In like V. St. Paul & P. R. Co. 24 
 ]\Iinn. 464, in an action brought to 
 foreclose the mortgage or trust deed 
 it was held tbat where the plaintiffs 
 had a complete and adequate remedy 
 at law a receiver would not be ap- 
 pointed. 
 
 In Milwaukee & M. R. Co. v. Sautter, 
 69 U. S. 2 Wall. 510, 17 L. ed. 900, 
 which was a proceeding to foreclose 
 a mortgage on the railroad and its 
 property where the matter of the 
 amount due under the mortgage was 
 unsettled and fiercely contested, it 
 was held that the appointment of a 
 receiver or refusal to discharge the 
 receiver by the lower courts becomes 
 a judicial error which the appellate 
 court may correct. 
 
 In Wagar v. Stone, 36 Mich. 364, it 
 is held that in Michigan the mortgagee 
 does not have the legal title to the 
 premises, but merely a security for 
 his debt, and before foreclosure has 
 no legal interest in the mortgaged 
 premises, and is not entitled to posses- 
 sion, and the appointment of a re- 
 ceiver will not be made. Cf. Hogftett 
 V. Ellis, 17 Mich. 363; Laduev. Detroit 
 & M. R. Co. 13 Mich. 380; Van Hman 
 V. Eanouse, 13 Mich. 303; Caruthers 
 V. numphrey, 12 Mich. 270. 
 
 In St. Louis, K. C. & C. R. Co. v. 
 Dewees, 23 Fed. Rep. 519, where the 
 title of an unused railroad track was 
 in dispute, both parties claiming 
 possession and neither in the actual 
 
 physical possession, it was held that 
 the court of equity would not inter- 
 fere by the appointment of a receiver 
 even where the defendant had under- 
 taken to obtain forcible possession. 
 The right of possession must first be 
 established. 
 
 In People v. ErieR. Co. 36 How. Pr. 
 129, it is held that a receiver could 
 not be properly appointed on the ap- 
 plication of a stockholder under the 
 circumstances of the case before the 
 court. 
 
 As to the necessary allegations on 
 the part of a creditor and bondholder, 
 see Riimsey v. Erie R. Co. 38 How. 
 Pr. 193. 
 
 In Tysen Y .Wabash R. Co. 8 Biss. 
 247, it is held that the mere fact that 
 a default has been made in the pay- 
 ment of a debt is not ground for the 
 appointment of a receiver in the 
 absence of a provision in the mort- 
 gage to that effect, nor will the court 
 appoint a receiver on the application 
 of a small minority of the bondholders 
 where it appears that said action 
 would imperil, If not destroy, the in- 
 terest of the others whose rights are 
 entitled to equal protection. 
 
 In Belmont v. Erie R. Co. 52 Barb. 
 637, it is held that, to enable a 
 stockholder to maintain a bill for 
 the appointment of a receiver, the 
 court has no visitorial power over 
 corporations except such as are ex- 
 pressly conferred by the statute, and 
 a suit will not be maintained by a 
 stockholder for the appointment of 
 a receiver upon allegations of mis- 
 conduct on the part of some of the 
 directors where other directors are 
 not charged with participating in 
 such misconduct; that the misconduct 
 of some or even all the directors 
 affords no ground for taking away 
 the rights of the stockholders consti- 
 tuting the company. 
 
 In Union Trust Co. v. St. Louis, I.
 
 RECEIVERSHIP OF RAILWAYS 
 
 461 
 
 son of insolvency,' or where the mterest upon the mortgages has 
 been long past due, and the property is inadequate to satisfy the 
 mortgage indebtedness, or taxes have not been paid.' 
 
 M. <& 8. R. Co. 4 Dill. 114, it was 
 held that a mere default in the pay- 
 ment of interest is not sufficient 
 ground for the appointment of a re- 
 ceiver. It is necessary in addition to 
 this to show that ultimate loss will 
 happen to the beneficiaries under the 
 mortgage by permitting the property 
 to remain in the hands of its owners 
 until final decree and sale. 
 
 In Union Mut. L. Ins. Co. v. Union 
 mils Plaster Co. 37 Fed. Rep. 286, it 
 is held that the mere disuse of a 
 manufacturing plant under an agree- 
 ment with other manufacturers to 
 restrict production, though attended 
 with decay and dilapidation insep- 
 arable from disuse, is not such de- 
 struction and waste as entitles the 
 mortgagee to a receiver. 
 
 In Bodbourn v. Utica, I. & E. R. Go. 28 
 Hun, 369, where the judgment form- 
 ing the basis of the appointment of 
 a receiver was opened to allow the 
 defendant to appear and defend, but 
 which order directed the judgment 
 and execution to stand as security, it 
 was held that there was no adjudication 
 of the amounts due the plaintiff, and 
 the order appointing a receiver should 
 be -vacated. 
 
 ' In Brassey v. Netc York & N. E. 
 R. Co. 19 Fed. Rep. 663, 22 Blatchf. 
 72, it is held that an insolvent rail- 
 road corporation may be put in the 
 hands of a receiver whenever the 
 welfare of the various interests clearly 
 requires it, even though no default 
 has actually been made by the cor- 
 poration in its obligations, but where 
 the default is imminent and manifest, 
 and the corporation is in peril of a 
 breaking up and the destruction of its 
 business. Cf. Long DockCo.'v. Mallery, 
 12 N. J. Eq. 431. 
 
 ' Hopkins v. Worcester & B. Canal 
 Co. L. R. 6 Eq. 437. 
 
 In Doio \. Memphis & L. R. R. Co. 20 
 Fed. Rep. 260, a receiver was allowed 
 on the application of a mortgagee 
 where there was a default in the pay- 
 ment of the interest on the mortgage 
 indebtedness, and the mortgaged 
 property was inadequate security to 
 pay the mortgage debt, and the com- 
 pany was insolvent and appropriated 
 the earnings to its own use. Where 
 there was a stipulation in the mort- 
 gage that in case of default in the 
 payment of the interest for sixty days 
 it should be obligatory on the trustees 
 upon a written request of one-third of 
 the bondholders to take possession 
 and sell the road and other mortgaged 
 properly. It was held that its remedy 
 in the mortgage was cumulative and 
 not exclusive of the remedies given 
 by law. While the mortgagee may 
 have a remedy at law, yet if such 
 remedy is not adequate, as where the 
 mortgage embraces real, personal, and 
 mixed property, then the appropriate 
 remedy is not in equity. Cf. Shepley 
 V. Atlantic & St. L. R. Co. 55 Me. 395; 
 Hall V. Sullivan R. Co. 2 Redf. Ry. 
 Cas. 621; First Nat. L. Ins. Co. v. 
 Salisbury, 130 Mass. 303; Warner v. 
 Rising Fawn Iron Co. 3 Woods, 514; 
 North Carolina R. Co. v. Drew, 3 
 Woods, 713; State v. Northern C. R. 
 Co. 18 M(l. 193. 
 
 In Wilmer v. Atlanta <& R. Air Line 
 R. Co. 2 Woods. 409, there was pro- 
 vision in the trust deed authorizing 
 the trustees, in case the railroad com- 
 pany failed to pay either the interest 
 or the principal of the bonds, to take 
 possession of the property conveyed 
 by the trust deed, advertise, and sell it 
 to pay the amount in default, and it
 
 462 
 
 RECEIVERSHIPS. 
 
 was held that on a failure of the trus- 
 tees to perform their duty a bill misht 
 be filed by the bondholders reqinring 
 the trustees to execute their trust or 
 appoint a receiver for that purpose, 
 and that such appointment would be 
 made though there was no probable 
 deficiency in the trust property to pay 
 the debt secured by the trust deed. 
 The court say: "AVhere there is a 
 trust fund in danger of being wasJLod 
 or misapplied, a court of equity 
 will interfere upon the application of 
 any of the creditors, either in his own 
 behalf or in behalf of himself and 
 other creditors, and by the appoint- 
 ment of a receiver, or in some other 
 mode, grant a relief. The appoint- 
 ment of a receiver is not necessarily 
 predicated upon the apprehended loss 
 of the debt. It would be suflacient to 
 allege that the trustees appointed re- 
 fused to perform the trust. Where 
 there has been negligence or improper 
 conduct on the part of a trustee and 
 the fund is in danger, the appoint- 
 ment of a receiver upon the applica- 
 tion of the cestui que trust is a matter 
 of right." Jones v, Dougherty, 10 Ga. 
 274; McDougald v. Doxigherty, 11 Ga. 
 586; Jenkins v. Jenkins, 1 Paige, 243. 
 In this class of cases the application 
 for a receiver is not based upon the de- 
 ficiency of the trust property but upon 
 the right of the beneficiaries under the 
 deed to have the trust performed ac- 
 cording to the intention of the parties. 
 In Sacramento P. B. Co. v. San 
 Francisco Super. Ct. 55 Cal. 453, there 
 was provision in the trust deed that 
 upon default in the payment of the 
 principal, or upon default for one 
 year in the payment of the interest, 
 the trustees should take possession of 
 the property and apply the net in- 
 come to the payment of the principal 
 and interest of the bonds. Default 
 having been made, an action was 
 brought by the trustees to foreclose 
 
 the lease and trust, and a receiver 
 was appointed on this application. 
 
 Cf. Shaw V. Norfolk County R. Co. 
 5 Gray, 162; Shepley v. Atlantic & St. 
 L. R. Co. 55 Me. 395; American 
 Bridge Co. v. Ileidelbach, 94 U. S. 798, 
 24 L. ed. 144. 
 
 In McLane v. Placerville <& S. V. R. 
 Co. 66 Cal. 606, there was a provision 
 in the mortgage that upon default in 
 the payment of interest for one year 
 the trustees should take possession of 
 the property mortgaged, collect the 
 income and profits arising from it 
 and apply the same for certain pur- 
 poses. It was held upon the liappen- 
 ing of that event a court of equity 
 had power in an action to forclose 
 under the specific power of the mort- 
 gage to appoint a receiver. 
 
 In Allen v. Dallas <& W. R. Go. 3 
 Woods, 316, it appeared that a deed 
 of trust was executed by the railroad 
 company upon its income and profits 
 as well as its railroad and other prop- 
 erty, to secure the payment of the 
 principal and interest of its bonds, 
 and authorized the trustees in default 
 of the payment of the interest to take 
 possession of the mortgaged property 
 and apply the income to the payment 
 of the interest. It was held upon the 
 application of the trustees that such 
 default was sufficient ground for the 
 appointment of a receiver, and that it 
 was not necessary in such cases to 
 show inadequacy, or that the prop- 
 erty was in jeopardy, or tlie insol- 
 vency of the company, or that the 
 amount due on the bonds is in dis- 
 pute. This case is based on the fact 
 that there was a stipulation in the 
 mortgage that the mortgagee shall 
 have the rents in case of default. 
 
 Cf. Slate V. Northern C. R. Co. 18 
 Md. 193; Dumville v. Ashbrooke, 3 
 Russ. 99, note c; Whitehead v. Wooten, 
 43 Miis. 523; Morrison v. Bvckner, 
 Hempst. 443.
 
 RECEIVERSHIP OF RAILWAYS. 
 
 403 
 
 (c) "Where the revenues and income of tlie road are being di- 
 verted from their proper application, or misapplied.* 
 
 In Union Trust Go. v. St. Louis, I. 
 M. & S. R. Co. 4 Dill. 114, it was held 
 that a court of equity would not ap- 
 point a receiver merely upon the 
 showing that there has been a default 
 in the payment of the interest secured 
 by a mortgage upon the property and 
 income of the company, but that upon 
 a default the trustees were entitled to 
 immediate possession, and having 
 made such demand and having been 
 refused possession, it is still necessary 
 to show that ultimate loss will happen 
 to the beneficiaries under the mort- 
 gage by permitting the property to 
 remain in the hands of its owners 
 until final decree. The facts in this 
 case were held not to exhibit such 
 danger to the bondholders as would 
 warrant the appointment of a receiver, 
 following the case of Williamson v. 
 iVew Albany etc. R. Co. 1 Biss. 198. 
 
 In Tysen v. Wabash R. Co. 8 Biss. 
 247, it is said that the appointment of 
 a receiver in proceedings for foreclos- 
 ure is a matter resting in the sound 
 discretion of the court, but the mere 
 fact that there has been a default in 
 the payment of the debt is not ground 
 for the appointment of a receiver, in 
 the absence of a stipulation in the 
 mortgage providing that the mortga- 
 gee shall have the earnings, and that 
 the court will not interfere, upon the 
 application of a small minorilj'^ of the 
 bondholders, and appoint a receiver 
 ■where it appears that such action 
 would imperil if not destroy the in- 
 terest of others whose rights are enti- 
 tled to equal protection. 
 
 In Williamson v. New Albany etc. 
 R. Co. 1 Biss. 198, it is also held that 
 the appointment of a receiver of the 
 properly of a railroad company in a 
 foreclosure proceeding is not a matter 
 
 of course on default in the payment 
 of the interest. 
 
 In Mercantile Trust Co. v. Missouri, 
 K. & T. R. Co. 36 Fed. Rep. a31, 1 L. 
 R. A. 397, there was a clause in the 
 mortgage providing that in case of 
 demand and default in the payment 
 of interest for six months the trustees 
 might enter upon the property, and it 
 was held that upon default a bill to 
 foreclose might be entertained by the 
 court, though six months' default did 
 not exist. In this case it appeared 
 that the railroad was heavily mort- 
 gaged; had made several defaults in 
 the payment of interest, aggregating 
 over one million dollars; that the 
 business was decreasing and liable to 
 continue decreasing from competition 
 with new lines; that it was in need of 
 repairs and improvements and there 
 was want of harmony between the 
 bondholders, and it was held that a 
 receiver was properly appointed. 
 
 In Pullan v. Cincinnati & G. Air 
 Line R. Co. 4 Biss. 35, it was held 
 that the appointment of a receiver 
 should be made only in strong cases, 
 and that in no case on the foreclosure 
 of a mortgage should a receiver be 
 appointed, if it is clear that on the 
 foreclosure the property will bring 
 enough money to pay the debt, inter- 
 ests, and costs, and that it would be 
 otherwise if it was clearly averred 
 that the mortgaged property was ia- 
 suflicient security for the debt. 
 
 ' Dreicry v. Barnes, 3 Russ. 94. 
 
 In Kelly v. Alabama & C R. Co. 53 
 Ala. 489, it appeared that the corpo- 
 ration had been declared bankrupt; 
 that interest had accumulated on its 
 bonds exceeding the value of the prop- 
 erty mortgaged to secure them; that 
 purchasers of equity of redemption at
 
 464 
 
 RECEIVERSHIPS. 
 
 (d) Where the income and profits of tlie railroad as well as its 
 property and franchises are pled<ijed to secure the payment of its 
 bonds, principal and interest, and there is a default in the pay- 
 ment of the interest.' 
 
 the assignee's sale were in possession 
 of the road and the property mort- 
 gaged, receiving the income, profits, 
 and earnings of the road belonging to 
 the mortgagee and using the property 
 for their own exclusive use and ben- 
 efit, and it was held to be a clear case 
 for the appointment of a receiver. 
 Llatchford v. Ross, 54 Barb. 42. 
 
 In Dei> Moines Oas Co. v. West, 44 
 Iowa, 23G, it was held that where the 
 bond or mortgage pledges the income, 
 rents, or profits to the payment of the 
 debt, the creditor need not conclu- 
 sively establish his right to recover 
 before he is entitled to ask for the ap- 
 pointment of a receiver; it is sufficient 
 if he shows a probable right to re- 
 cover; that if in such case the debtor 
 is insolvent the appointment of a re- 
 ceiver follows as a matter of course 
 (see Code, gS 29-103). Checvcr v. Rut- 
 land <& B. K Co. 39 Vt. 653. 
 
 ' In Allen v. Dallas & W. R. Co. 3 
 "Woods, 316, the income and profits 
 were mortgaged as well as the other 
 property, and it was held that a de- 
 fault in the payment of the interest 
 was sufficient ground for the appoint- 
 ment of a receiver. Insufficiency in 
 such cases or insolvency is not in- 
 volved in the issue. 
 
 In Morrison v. Buclcner, Hempst. 
 442, the court say: "Now, without 
 adopting this rule (English) to its full- 
 est extent it is proper to observe gen- 
 erally that receivers in mortgage cases 
 will never be appointed unless it is 
 clearly shown that the security is in- 
 adequate, or that the rents and profits 
 have been expressly pledged for the 
 debt." Shotwell v. Smith, 3 Edw. Ch. 
 588. 
 
 In Bow V. Memphis & L. R. R. Co. 20 
 Fed. Rep. 260, a receiver was ap- 
 pointed upon default in the payment 
 of the interest where inadequate se- 
 curity and insolvency of the company 
 was shown together with the appro- 
 priation of the rents. 
 
 In Wilmer v. Atlanta & R. Air Line 
 R. Co. 2 Woods, 409, a receiver was 
 appointed upon default in the pay- 
 ment of interest, but the application 
 was based on the ground that the 
 trustees had failed to perform their 
 duty in regard to taking possession of 
 the property upon such default, 
 as it was held that deficiency in the 
 trust properly was not material. 
 
 In Brassey v. New York & N. E. R. 
 Co. 19 Fed. Rep. 663, 22 Blatchf. 72, 
 a receiver was appointed prior to any 
 default on the securities, but it was 
 shown that a default was imminent 
 and manifest, and the company was 
 entirely insolvent, and unable to pay 
 such interest, and unable to pay its 
 floating indebtedness or borrow 
 money for such purpose. 
 
 In Whitehead v. Wooten, 43 Miss. 
 523, it was held that a mortgagee was 
 not entitled after default to the rents 
 and income, nor to a receiver unless 
 the rents and profits were mortgaged, 
 or unless the mortgaged property is 
 insufficient to meet the debt. The 
 court say: "Unless the mortgagee 
 has contracted that he shall have the 
 rents and income after default is 
 made he is not entitled to them, or to 
 a receiver to get them in except in 
 case of the insufficiency of the prop- 
 erly to meet the debt." 
 
 In Shepley v. Atlantic & St. L. R. 
 Co. 55 Me. 395, it was provided in the
 
 RECEIVERSHIP OF RAILWAYS. 
 
 tt65 
 
 (e) "Where the officers and directors are mismanaging the busi- 
 ness and wasting the property of the corporation, or squandering 
 its money, or embezzling the same.' 
 
 (f). Where by reason of a neglect to elect officers, or otherwise, 
 there is no one competent to take charge of the property of the 
 company.^ 
 
 (g) Where the company has committed some act which consti- 
 tutes a statutor}^ cause for revoking its charter or for the ap- 
 pointment of a receiver/ 
 
 § 273. When not appointed. 
 
 A court of equity will not appoint a receiver over a railway 
 corporation : 
 
 trust deed that a failure to pay inter- 
 est or principal of the bonds gave the 
 mortgagees the right to take the mort- 
 gaged property into their actual pos- 
 session, and manage and control the 
 same, and apply the net income and 
 profits to the payment of the interest 
 and principal. A specific perform- 
 ance of the contract was asked by the 
 mortgagees, and the court granted 
 the relief. See also Shaw v. Norfolk 
 County B. Co. 5 Gray, 162. 
 
 In McLane v. Placerville & S. V. R. 
 Co. 66 Cal. 606, a receiver was ap- 
 pointed upon a default in the payment 
 of interest for a period of one year on 
 the ground of the action being brought 
 for a specific execution of the mort- 
 
 In Sacramento P. R. Co. v. San 
 FranciHco Super. Ct. 55 Cal. 453, a re- 
 ceiver was appointed for the nonpay- 
 ment of the interest. 
 
 In Doe V. Northwest Coal <fe T. Co. 
 64 Fed. Rep. 928, a receiver was ap- 
 pointed on the ground of insolvency 
 and mismanagement. 
 
 > In Blatchfurd v. Ross, 54 Barb. 42, 
 a receiver was held to be proper upon 
 the ground that the executive com- 
 mittee of a company had voted them- 
 30 
 
 selves money in addition to their 
 regular compensation for services as 
 promoters and originators of the com- 
 pany and other parties, and it was 
 held that the action of the committee 
 in this regard afforded ample reason 
 for the appointment of a receiver. 
 
 In People v. Bruff, 9 Abb. N. C. 
 153, misconduct by the officers of a 
 corporation was alleged, and it was 
 held to be sufficient ground for the 
 appointment of a receiver. See also 
 Eeeler v. Brooklyn Elev. R. Co. 9 Abb. 
 N. C. 166. 
 
 In Lawrence v. Greenwich F. Ins. 
 Co. 1 Paige, 587, where the majority 
 of stockholders neglected to choose 
 oflicers to take charge of the properly, 
 a receiver was appointed on the ap- 
 plication of the minority stockholders 
 for the purpose of preserving the 
 property for the benefit of the stock- 
 holders generally. Cf. Andrercs v. 
 Poicys, 2 Bro. P. C. 504; Maguire v. 
 Allen, 1 Ball & B. 75. 
 
 * Smith V. Danzig, 64 How. Pr. 320: 
 Re Ijouisiana Sav. Bank <fe Safe De- 
 posit Co. 35 La. Ann. 196; Stark v. 
 Burke, 5 La. Ann. 740; Dobson v. Sir 
 monton, 78 N. C. 63. 
 
 ^ Cvnro V. Gray, 4 How, Pr. 165.
 
 466 
 
 RECEIVERSHIPS. 
 
 (a) In the absence of notice to such corporation of the applica- 
 tion, and an opportunity to be heard thereon.' 
 
 'As a general rule an order for a re- 
 ceiver will not be granted c.v parte un- 
 til the lime for the defendant's appear- 
 ance has expired, and the bill has been 
 taken for confessed against hin?.. Tbia 
 is not the rule where the defendant 
 has fraudulently withdrawn himself 
 from the jurisdiction of the court to 
 avoid service of process. Sandford v. 
 Sinclair, 8 Paige, 373. 
 
 In Whelpley v. Erie R. Co. 6 Blatchf. 
 271, it is held that a receiver cannot 
 be appointed even with the consent of 
 both parties in an improper case. 
 
 In Cook V. Detroit & M. R. Co. 45 
 Mich. 453, it is held that a receiver 
 cannot be appointed ex parte in a pro- 
 ceeding by creditors to wind up an in- 
 solvent corporation and pending the 
 possession on a demurrer, whereby 
 the right to file the bill is put in issue. 
 
 In State v. Jacksonville, P. & M. R. 
 Co. 15 Fla. 201, it is held that it is not 
 necessary for a party defendant to be 
 served with process before the entry 
 of an appeal from an ex parte order 
 or demand pending his rights, if such 
 order is the subject-matter of an ap- 
 peal. It is also held upon the author- 
 ity of Verplanck v. Mercantile Ins. Co. 
 2 Paige, 450, that it is irregular to de- 
 prive the corporation of the possession 
 of its property and corporate rights 
 without its having an opportunity to 
 be heard, and without sufficient cause 
 for such a summary proceeding. The 
 settled practice in ordinary suits is 
 that a receiver cannot be appointed 
 ex parte before the defendant has had 
 an opportunity to be heard in relation 
 to his rights, except where he is out 
 of the jurisdiction of the court or can- 
 not be found, or where for some other 
 reason it is absolutely necessary for 
 the court to interfere before there is 
 
 time to give notice to the opposite 
 party to prevent the destruction or 
 loss of property. And where the court 
 is asked to deprive a defendant of the 
 possession of his property without a 
 hearing or an opportunity to be heard 
 the particular facts and circumstances 
 which render such a summary proceed- 
 ing proper must be set forth in the bill 
 or petition on which the application is 
 founded. See also People v. Norton, 
 1 Paige, 17; Triehert v. Burgess, 11 
 Md. 456; Ilaight v. Burr, 19 Md. 134. 
 
 In Cleveland, C. C. <fc /. R. Co. v. 
 Jewett, 37 Ohio St. 649, it is said that 
 the appointment of a receiver to take 
 from the defendant the possession of 
 his property cannot be lawfully made 
 without notice, unless the delay re- 
 quired to give notice will result in ir- 
 reparable loss. 
 
 In People v. Albany & S. R. Co. 55 
 Barb. 344, 369, it is said that the or- 
 der for the appointment of a receiver 
 ex parte must have been granted in- 
 cautiously upon some mistaken oral 
 representation or statement of facts 
 in the case, as it was in clear conflict 
 with the law and settled practice of 
 the court. Cf. Field v. Ripley, 20 
 How. Pr. 26; McCarthy v. Peake, 9 
 Abb. Pr. 166. 
 
 In JJowe V. Jones, 57 Iowa, 130, the 
 appointment of a receiver in viicalion 
 and without notice to the adverse 
 party was held to be clearly errone- 
 ous. Cf. French v. Oiffotd, 30 Iowa, 
 148; Bisson v. Curry, 35 Iowa, 72. 
 
 See also Blondheim v. Moore, 11 
 Md. 364, where it is held that in order 
 to justify the appointment of a re- 
 ceiver it must appear that the claim- 
 ant has title to the property and the 
 court must be satisfied that a receiver 
 is necessary to preserve such property.
 
 RECEIVERSHIP OF RAILWAYS. 
 
 4G7 
 
 (b) In the absence of statutory authority and when the appH- 
 cation is based on the insolvency of the corporation alone, no 
 fraud or breach of trust being alleged.' 
 
 (c) In foreclosure cases when it does not clearly appear that 
 
 The court will never appoint a re- 
 ceiver merely because tbe measure can 
 do no harm and that fraud or immi- 
 nent dauger, should any be apparent' 
 must be clearly proved. Unless the 
 necessity be of the most stringent 
 character the court will not appoint a 
 receiver until the defendant is tirst 
 heard in response to the application. 
 See alse to the same effect, Triebert v. 
 Burgess, 11 Md. 452; Voshell v, Ryn- 
 son, 26 Md. 8^; Smith v. Port Dozer & 
 L. H. B. Co. 12 U. C. App. 288; Rogers 
 V. Dougherty, 20 Ga. 271. 
 
 lu McLean v. Lafnyette Bank, 3 
 McLean, 503, it is held that the notice 
 of motion to appoint a receiver is 
 necessary when counsel for opposite 
 party is not present in court. 
 
 In Whitehead v. Woolen, 43 Miss. 
 523, it is held that, to justify the ap- 
 pointment of a receiver before answer 
 filed or pro confesso taken, there must 
 be strong special reasons given as 
 where the defendant has withdrawn 
 himself from tbe jurisdiction of the 
 court to avoid service, or is guilty of 
 fraud endangering the property. 
 
 In People v. Albany & S. R. Co. 7 
 Abb. Pr. N. S. 265, it is held that a 
 receiver should not be appointed ex 
 parte except where the defendant is 
 out of the jurisdiction of the court and 
 cannot be found, or it is necessary to 
 interfere before there is time to give 
 notice to prevent destruction or loss of 
 property. 
 
 ' In Farmers' Loan <& T. Co. v. Chi- 
 cago & A. R. Co. 27 Fed. Rep. 147, it 
 is said that the appointment of a re- 
 ceiver rests in the sound discretion of 
 
 the court and that mere insolvency 
 may or may not call for such action. 
 
 In New Foundland R. Const. Co. v. 
 Schack, 40 N. J. Eq. 232, the allega- 
 tions of the bill were that the com- 
 pany was insolvent and had sus- 
 pended its business for want of funds 
 to carry on the same and it was held 
 that the allegations were not sufficient 
 for the appointment of a receiver. 
 The facts and circumstances must be 
 set out from which the insolvency of 
 the corporation shall appear. See also 
 Raicnsley v. Trenton Mut. L. Ins. Co. 
 9 N. J. Eq. 95, 347; Baker v. Backus, 
 32 111. 79. 
 
 In Pond V. Framingham & L. R. 
 Co. 120 Mass. 194, a bill in equity was 
 filed by the creditors of the railway 
 corporation alleging that the corpora- 
 tion was insolvent; that all its prop- 
 erty was mortgaged to trustees for the 
 benefit of one class of creditors; that 
 it owed large amounts to other credit- 
 ors, one of whom had attached all of 
 its property; that it was about to exe- 
 cute a lease to the attaching creditor 
 for a long term of years at a rental 
 which would not pay the interest on 
 its indebtedness and that the execu- 
 tion of the lease would be injurious to 
 the interest of its creditors and stock- 
 holders. It was held that the bill did 
 not state a ca.se within the equity ju- 
 risdiction of the court, in the absence 
 of allegations of fraud or breach of 
 trust or other ground of jurisdiction, 
 which l)ring the case within the es- 
 tablished equity powers of the court 
 of cliancery.
 
 iGS 
 
 RECEIVERSHIPS. 
 
 tliG conditions of the mortga«^-e have been broken or the right to 
 foreclose is doubtful.' 
 
 (d) AYlien the application is in behalf of a small minority of 
 the bondholders and it appears that the interests of the majority 
 bondholders would be prejudiced thereby.' 
 
 (e) Wlien there has been a default in the payment of interest, 
 but it does not appear tliat there will be a loss to the beneficiaries 
 under the mortgage by permitting the road to remain in the 
 hands of the mortgagor until decree and sale.' 
 
 ' In Briarfield Iron Works v. Foster, 
 54 Ala. 623, it is lield that wliile no 
 unbending rule can be declared ap- 
 plicable to every case in which the 
 appointment of a receiver is sought, 
 yet a receiver should not be appointed 
 in the first instance on the assertion 
 of a disputed right and the defendant 
 displaced from the possession of 
 property when the required protec- 
 tion can be given by a writ of injunc- 
 tion or equitable attachment, where 
 the party injured may have the benefit 
 of a bond. 
 
 In Pidlan v. Cincinnati & G. Air 
 Line B. Go. 4 Biss. 35, it is held that 
 while the appointment of a receiver is 
 generally within the sound discretion 
 of the court, yet it is a power only to 
 be exercised in strong cases; that in 
 no case of a mortgage ought a receiver 
 to be appointed if it is clear that on 
 a foreclosure the mortgaged property 
 will bring enough money to pay the 
 debt, interest, and costs. 
 
 In American Loan & T. Go. v. 
 Toledo, G. & 8. R. Go. 29 Fed. Rep. 
 416, it is said that although there has 
 been a default in the payment of the 
 interest coupons secured by the mort- 
 gage, yet if it appear that there is a 
 fair and reasonable claim by the de- 
 fendant company growing out of con- 
 temporaneous contracts, that the time 
 of payment has been extended or that 
 the plaintiffs are precluded from re- 
 
 lying upon the default, a receiver 
 will not be appointed until the court 
 shall determine that the right to fore- 
 close exists. Mere disagreement of the 
 parlies is not sufficient ground for 
 the appointment of a receiver. 
 
 Mere default in the payment of the 
 debt is not ground for the appoint- 
 ment of a receiver in the absence of a 
 stipulation in the mortgage that the 
 mortgagee shall have the rents. Tysen 
 V. Wabash B. Go. 8 Biss. 247. 
 
 2 In Ti/sen v. Wabash B. Co. 8 Biss. 
 247, it was held that the court would 
 not, in deference to the mere technical 
 rights of a very small minority of 
 bondholders, appoint a receiver where 
 it appears that such action would 
 imperil, if not destroy, the interest of 
 others whose rights are entitled to 
 equal consideration. In making the 
 appointment it must be apparent to 
 the court that much greater injury 
 would result to those interested in the 
 railway by not appointing than by 
 leaving the property in the hands of 
 the persons then holding it and 
 especially so where it appears that a 
 funding plan is being negotiated. 
 
 * If the plaintiff has a complete and 
 perfect remedy at law in respect to 
 the matters complained of in the bill, 
 a receiver will not be appointed. 
 Bice V. St. Paul & P. B. Co. 24 Minn. 
 464. 
 
 If the security is ample a receiver
 
 RECEIVERSHIP OF RAILWAYS. 
 
 469 
 
 (f) When the plaintiff lias an adequate remedy at law.* 
 
 (g) When by statute, on the dissolutiou of a corporation, the 
 
 ■wil! not be appointed before a decree 
 and sale, though provision may he 
 made therefor in the mortgage. Deg- 
 ener v. Stiles, 6 N. Y. Supp. 474; 
 Williamson v. New Albany etc. R. Co. 1 
 Biss. 198. 
 
 In Blair v. St. Louis, H. & K. E. 
 Co. 20 Fed. Rep. 348, it is said: "A 
 court should not, on mere default of 
 interest on bonds, take possession of a 
 railway and substitute a receiver of 
 its appointment to do what the cor- 
 porate authorities, more familiar with 
 its interests, could belter do. In the 
 absence of fraud, incompetency, etc., 
 the court, pending a proceeding for a 
 foreclosure, under ordinary circum- 
 stances will not take possession 
 through its receiver of the corporate 
 property and substitute its ofHcer in 
 the place of the corporate officers. 
 * * * The sole object in ordinary 
 cases of foreclosure, if the corporate 
 authorities in possession are incom- 
 petent, is to put the property in a re- 
 ceiver's hands for the interest of all 
 concerned in the litigation, viz., stock- 
 holders, mortgagees, other lien credit- 
 ors, creditors at large, etc. Courts 
 should not interfere with the custody 
 and management of the business of 
 the corporation through its corporate 
 officers, pending litigation, except for 
 cause shown." 
 
 In Michigan it is held where the 
 mortgagor is entitled under the statute 
 to the possession, and consequently 
 to the rents and profits of the mort- 
 gaged premises until such a time as 
 he is devested by a perfected fore- 
 closure, it is not competent to cut 
 short his rights in this regard by 
 means of a receiver. War/ar v. Stone, 
 36 Mich. 364; Uazeltine v. Oranger, 
 44 Mich. 503; Beecher v. MarqneUe & 
 P. liolling Mill Co. 40 Mich. 307. It 
 
 Is different, however, where the mort- 
 gagor voluntarily puts the mortgagee 
 in possession. Beading v. Waterman, 
 46 Mich. 107. The above cases are 
 based on the settled doctrine that a 
 mortgage conveys no title to the 
 mortgagee, the mortgage being a 
 security for the debt only until the 
 title passes by a foreclosure and sale 
 of the properly. See llogmtt v. Ellis, 
 17 ]\Iich. 363; Ladt/e v. Detroit & M. 
 B. Co. 13 Mich. 380; Van Ihisan v, 
 Kanouse, 13 Mich. 303; Carutkers v. 
 Humjihrey, 12 Mich. 270. 
 
 In Union Trust Co. v. St. Louis, I. 
 M. & 8. R. Co. 4 Dill. 114, it is held 
 that in a foreclosure it must be shown 
 that loss will happen to the bene- 
 ficiaries under the mortgage by per- 
 mitting the property to remain in the 
 hands of its owners until final decree 
 and sale. 
 
 ' In Bice v. St. Paul & P. B. Co. 24 
 Minn. 464, where the facts show the 
 plaintiff to have a complete and ade- 
 quate remedy at law, the court refused 
 to appoint a receiver. 
 
 In Erie B. Co. v. Delaware, L. & W. 
 R. Co. 21 N. J. Eq. 282, it appeared 
 that defendants in common of an ease- 
 ment disagreed as to the use of a tun- 
 nel jointly and the court held that it 
 had jurisdiction in such circumstances 
 of the subject-matter, but that under 
 the peculiar circumstances it was not 
 deemed necessary or advisable to ap- 
 point a receiver or manager of the 
 tunnel. 
 
 In Blondheim v. Moore, 11 Md. 365, 
 the court, after a review of previous 
 decisions, lays down the following 
 propositions: 
 
 (1) That the power of appointment 
 is a delicate one and to be exercised 
 with great circumspection. 
 
 (2) That it must appear the claimant
 
 470 
 
 RECEIVERSHIPS. 
 
 directors or officers are made trustees for the closing up of the 
 affairs of the corporation.' 
 
 has title to the property, and the court 
 must be satisfied that a receiver is 
 necessary to preserve the property. 
 
 (3) That there is no case in which 
 the court appoints a receiver merely 
 because the measure can do no harm. 
 
 (4) That fraud or imminent danger, 
 if the immediate possession should not 
 be taken by the court, must clearly be 
 proved. 
 
 (5) That unless the necessity be of 
 the most stringent character the court 
 will not appoint until the defendant is 
 first heard in response to the applica- 
 tion. 
 
 In Ramsey v. Erie R. Co. 38 How. 
 Pr. 193, it was held under the facts of 
 the case that the plaintiff had no such 
 standing in court as a creditor, bond- 
 holdcr.ur stockholder as to entitle him 
 to a receiver and that the law is well 
 settled that a receiver of a railway 
 company cannot be properlyappointed 
 in an action by a stockholder or a cred- 
 itor who has no judgment. 
 
 In Smith V. Port Dover & L. E. R. 
 Co. 12 U. C. App. 288, it is held that 
 in the appointment of a receiver the 
 court acts only upon the proper case 
 being made for the exercise of its ju- 
 risdiction according to well-estab- 
 lished principles, and in that sense 
 only can a receiver be said to be ex 
 debito justitim, whether the appli- 
 cation be interlocutory or made at 
 the hearing, whether the appointment 
 of a receiver is the sole object of the 
 action or only incidental to other re- 
 lief and whether the relief is sought at 
 the instance of a judgment creditor or 
 of anyone else. 
 
 'A receiver will not be appointed 
 where it appears that it would be more 
 conducive to the interest of all other 
 Btockholders not to disturb the exist- 
 
 ing management and arrangements in 
 the company, and where the relief 
 asked for would produce irreparable 
 injury to the majority of the stock- 
 holders. Hamilton V. Accessory Transit 
 Co. 26 Barb. 46. 
 
 In Parsons v. Charter Oak L. Ins. Co. 
 31 Fed. Rep. 305, under the statutes of 
 Connecticut providing for receivers, it 
 was held that it was a part of the con- 
 tract with the policyholders that in case 
 of insolvencya receiver should marshal 
 all the assets so that his powers would 
 not be limited as those of a receiver 
 usually are; that when such receiver 
 has been duly appointed in the mode 
 provided for in the charter policy 
 holders cannot deny his authority; 
 that the distribution of the assets of 
 the company should be made accord- 
 ing to the charter; that tbe facts set 
 forth in the bill of complaint did not 
 show complainant had a superior 
 right to the assets of the company in 
 the state of Iowa, but on the contrary 
 such assets were part of the common 
 fund in which all policy holders had 
 an interest. 
 
 In Pyles v. Riverside Furniture Co. 
 30 W. Va. 123, it was held that the 
 facts alleged in the bill did not justify 
 the taking of the property of the- cor- 
 poration out of the hands of trustees 
 and putting it in the hands of a 
 receiver. 
 
 In Vose V. Reed, 1 Woods, 647, it 
 was held that where funds are in the 
 hands of trustees appointed by the 
 legislature to hold their trust ex officio 
 as high public olficers of the state and 
 especially where one part of the trust 
 involves duty of a public character 
 the court will not willingly take the 
 funds out of their hands and will not 
 do so except for the most cogent rea-
 
 RECEIVERSHIP OF RAILWAYS 
 
 471 
 
 (li) "When the rights of third parties who are not before the 
 conrt are affected by the appointment.' 
 
 (i) When it is apparent that the plaintiff's application is based 
 solely upon a disagreement as to the management of the business 
 of the corporation.' 
 
 § 274. Powers of railway receiyer. 
 
 The receiver of a railroad company, as a rule, ex necessitate has 
 powers far in excess of those ordinarily given to receivers of 
 other corporations, and his duties are correspondingly increased. 
 Generally speaking, the magnitude of the interests intrusted to 
 his management carries with it greater power and discretion, and, 
 from the very nature of the business, a judicious management 
 depends largely upon the exercise of a sound business judgment 
 in the many conflicting and emt^rrassing positions in which the 
 receiver is placed, sometimes requiring prompt action, where 
 application to court for specific directions is not practicable. As 
 in other cases, the receiver's power is derived from the order of 
 
 sons, such as gross fraud and immi- 
 nent danger to the trust fund, it must 
 resort to every course and means of 
 compelling the trustees to perform 
 their duty. 
 
 ' Whelplerj v. Eh'ie R. Co. 6 Blatchf. 
 271 ; Bigelow v. Union Freight R. Co. 
 137 Mass. 478. 
 
 In Searles v. Jacksonville, P. & M. 
 R. Co. 2 Woods, 621, the court refused 
 to appoint a receiver of property 
 which was in the possession of a per- 
 son not a party to the suit. 
 
 * In American Loan & T. Co. v. To- 
 ledo, C. & S. R. Co. 29 Fed. Rep. 416, 
 it is said the court will not appoint a 
 receiver on account of the mere dis- 
 agreement of the parties as to the man- 
 agement of the property; that can 
 only be done as an incident to some 
 relief falling within the jurisdiction of 
 the court in relation to the contracts 
 of the parties. The appointment of a 
 
 receiver merely to manage the prop- 
 erty is not within the power of the 
 court of equity. 
 
 In Cleveland, C. C. & I. R. Co. v. 
 Jeicett, 37 Ohio St. 649, the con- 
 troversy between the parties was solely 
 as to the effect of an attempted consoli- 
 dation of corporations and under such 
 circumstances the appointment of a 
 receiver was held to bean unwarranted 
 e-xercise of judicial power, which the 
 court would reverse and set aside. 
 See Cincinnati, S. & C. R. Co. v. Sloan, 
 31 Ohio St. 15; Verplanck v. Mercan- 
 tile Ins. Co. 2 Paige, 438. 
 
 In Hinkley v. Blethen, 78 ]VIe. 221, 
 there was a contest between the stock- 
 holders of the corporation and the 
 court held there was no ground for 
 the appointment of a receiver. See 
 Delaware, L. & W. R. Co. v. Erie R. 
 Co. 21 N. J. Eq. 298,
 
 472 RECEIVERSHIPS. 
 
 appointment, and snch specific orders and directions as the court, 
 from time to time, may make. The primary object in tlie ap- 
 pointment of a receiver over a railway is the sale of its property 
 and conversion of its assets, and the distribution of the proceeds 
 thereof among those entitled thereto, accordino- to their several 
 rig-hts and interests, as fixed by the court. 
 
 In all cases it is the duty of the court, acting through its re- 
 ceiver, to pi-eserve the ]iroperty and carefully protect the interests 
 of bondliolders, creditors, lienholders, and all others therein, 
 which can only be done by keeping the property intact. The re- 
 ceiver is required to manage and operate the road as a going 
 concern, and this, of necessity, requires the investment of the 
 receiver with all requisite power and authority therefor, as inci- 
 dental and secondary to the main purpose of the litigation. Be- 
 sides, the railway corporation, in consideration of its franchises 
 and grants, assumed duties ofta quasi-public nature, which the 
 court will recognize as of primary importance and, through its 
 receiver, will perform, and, in order to properly do so, will clothe 
 the receiver with additional powers not ordinarily granted to 
 other receivers, in the way of affording facilities for the adequate 
 and proper management of the road and the safety and con- 
 venience of the public. , 
 
 As elsewhere noted, the appointment of a receiver cannot have 
 any effect as to the validity of existing liens, or in a word he 
 takes the property subject to all valid existing liens.* 
 
 § 275. Power to pay unsecured claims. 
 
 The power of the court to order the receiver to pay from the 
 current earnings of the road the unsecured claims for labor, s-up- 
 
 ' The court appointing a receiver of a lien. Scott v. Farmers' Loan tfe T. 
 a railroad company, in a suit by stock Co. 69 Fed. Rep. 17. 
 and bond holders andgeneral creditors The holder of a judgment constitu- 
 for the appointment of receivers to ting a lien on real estate of a railroad 
 preserve the property and manage it not embraced in mortgages under 
 as a unit, has no power to vacate any which a receiver was appointed is en- 
 valid lien upon the properly, and pre- titled to have such land discharged 
 vent the enforcement of a judgment from the custody of the receiver, and 
 constituting a valid lien thereon, but to levy, for the sale of the same, an ex- 
 should either order payment thereof ecution to satisfy the judgment. Scott 
 or grant leave to sue out execution v. Fanners' Loan & T. Co. supra. 
 and sell the property upon which it is
 
 RECEIVERSHIP OF RAILWAYS. 473 
 
 plies, and equipment existing at the time of the appointment, has 
 been a subject of much discussion, but is now firmly established 
 in railway foreclosure cases. There is not entire hai-mony in the 
 courts, it is true, as to the nature of the claims allowed priority 
 under this rule, nor as to the time within which the claims must 
 have accrued in order to receive the sanction of the court in their 
 payment. The New York courts, prior to the passage of the 
 statute of 1885 (see chap. 376), refused to permit receivers to pay 
 or to issue receiver's certificates for the payment of indebtedness 
 for labor and services rendered to the corporation prior to the 
 receiver's appointment, where the lienholders objected.' The 
 Federal courts, however, have shown great liberality in author- 
 izing the receiver to pay this class of indebtedness from the cur- 
 rent receipts, and, if insufficient, then from the corpus of the 
 property. It is impossible to determine from the adjudicated 
 cases any rules of universal application, and the chancellor, in 
 the absence of statutory regulations, and in the exercise of a 
 sound judicial discretion, must determine from each particular 
 case the justice and equity of granting the receiver power to pay 
 from the current receipts the indebtedness of the corporation 
 accruing prior to the appointment, on account of labor and sup- 
 plies in operating the road, or borrow money upon receiver's cer- 
 tificates for such purpose. In favor of the exercise of this power 
 by the court, the following principles have been recognized and 
 liave received the sanction of the courts : 
 
 (a) While courts of equity have no power to impair the valid- 
 ity of existing mortgage liens by the creation of liens in favor of 
 a class of unsecured creditors and give them a priority over 
 the former, yet the mortgagee at the time of taking his mortgage 
 fully understood he was procuring a lien upon a live and going 
 concern, and that it was to be continued as such, and in order to 
 do so the operating expenses, including supplies and labor, nmst 
 be paid from the current receipts, and when he asks the aid of 
 
 ' The act of 1885, chap. 376, required for the payment of labor and services 
 an insolvent railroad corporation to in operating the road prior to the re- 
 pay the wages of its employees in ceiver's appointment and make the 
 preference to its other debts. Prior certificates a lieu prior to the mort- 
 to the passage of this act the court gage. Metropolitan Trust Co. v. Tona- 
 had no power to authorize a receiver wanda Valley & G. It. Co. 108 N. Y. 
 to issue certificates of indebtedness 2i5. CL liaht y. Attrill, Wd N.Y. i2ti.
 
 474 
 
 RECEIVERSHIPS. 
 
 the court in realizing upon bis securities he is not in a position to 
 insist upon a dili'erent understanding. Besides, but for the labor 
 and supplies already furnished and not paid for, the value of his 
 security is maintained. He asks the court, as a means of pre- 
 venting a depreciation in the value of the security, to continue 
 the business as a going concern, and shall he repudiate that which 
 has been done of equal value for the same end 'i 
 
 (b) There must of necessity be a limit as to the time in which 
 the indebtedness accrued, which in all cases must be reasonable, 
 sometimes being fixed at tliree months, and sometimes six months 
 or even longer. It is also quite as necessary to determine what 
 classes of claims are entitled to protection. Usually, however, 
 they are confined to labor and supplies strictly necessary for the 
 operation of the road, though sometimes permanent improve- 
 ments under peculiarly equitable circumstances are embraced.' 
 
 I In Wallace v. Loomis, 97 U. S. 146, 
 163, 24 L. ed. 895, 901, the receivers 
 were authorized by the order appoint- 
 ing them to put the road in repair 
 and operate the same and to procure 
 such rolling stoclv as might be neces- 
 sary; and for these purposes to raise 
 money by loan to an amount named 
 in the order, and issue their certifi- 
 cates of indebtedness therefor, and 
 the order declared that such loan 
 should be a first lien on the property, 
 payable before the first mortgage 
 bonds. The court say the power to 
 authorize such receivers to raise 
 money necessary for the preservation 
 and management of the property, and 
 make the same chargeable as a lien 
 thereon for the repayment, cannot at 
 this day be seriously questioned. It 
 is a part of that jurisdiction always 
 exercised by the court, by which it is 
 its duty to protect and preserve the 
 trust funds in its hands. It is un- 
 doubtedly a power to be exercised 
 with great caution; and, if possible, 
 with the consent or acquiescence of 
 the parlies interested in the fund. 
 In Humphreys v. Allen, 101 111. 490, 
 
 it is held that any person desiring to 
 object to the issuance of such certifi- 
 cates must do so before they are 
 issued and sold to bona tide purchas- 
 ers or paid out to creditors. 
 
 In Pldladelphia Invest. Co. v. Ohio 
 &N. W. E. Co. 36 Fed. Rep. 48. where 
 it was doubtful if the improvements 
 would add to the selling price of the 
 road, it was held that the issuing of 
 receiver's certificates should be denied 
 absolutely for an item for purchas- 
 ing and laying track over a portion of 
 the road not yet completed; also for 
 another item to reimburse bondhold- 
 ers for advances made to meet arrears 
 of wages and divert a strike; that an- 
 other item for the payment of claims 
 for material furnished should not be 
 allowed except upon the consent of 
 all lienholders, and that certain other 
 items, if desired by the consenting 
 bondholders, should be allowed and 
 made a charge as against the non- 
 consenting bondholders. 
 
 In Humphreys v. Allen, 101 111. 490, 
 it is held that if the holder of railroad 
 bonds secured by trust deeds has no- 
 tice of the iipp iuliiient of a receiver
 
 RECEIVERSHIP OF RAILWAYS. 
 
 475 
 
 In order to make payments of this nature, where the receiver has 
 not adequate funds in his hands for such purpose, the court in 
 foreclosure proceedings frequently orders the issuance of re- 
 ceiver's certiiicates, payable out of the current net income or in 
 case of its inadequacy, out of the proceeds of sale, prior to the 
 payment of the mortgage bondholders. 
 
 and the entry of an order directing 
 such receiver to issue certificates on 
 which to raise money to discbarge a 
 chattel mortgage on personal properly 
 of the company, pay taxes and cur- 
 rent expenses, and making such cer- 
 tificates a prior and first lien on all 
 the property of the company, and he 
 desires to question the power of the 
 court to make such an order, it must 
 be done before the certificates are 
 issued and sold to bona fide purchasers 
 or paid out to creditors of the com- 
 pany. 
 
 In Meyer v. Johnston, 53 Ala. 237, 
 it is held that a court of chancery has 
 power, after notice of a hearing of in- 
 terested parties, to authorize the issue 
 of certificates creating a first lien and 
 displacing their lien to that extent on 
 the property of a railroad which it is 
 operating through its receivers when- 
 ever it is necessary to raise money for 
 the economical management and con- 
 servation of the property. 
 
 In Hoover v. Montdair & O. L. R. 
 Co. 29 N. J. Eq. 4, it was held that 
 where a receiver had no funds with 
 which to make repairs he would be 
 authorized to issue receiver's certifi- 
 cates therefor, such certificates be- 
 ing for a debt incurred for the benefit 
 and protection of the property, and a 
 first lien upon the properly of the 
 road and the net receipts and income 
 thereof. 
 
 In Kennedy v. 8l. Paul & P. R. Co. 
 2 Dill. 448, it was held that in order 
 to prevent a valuable land grant in 
 favor of a railroad company from 
 
 lapsing, a receiver might be appointed 
 at the instance* of bondholders, where 
 the principal security was the land 
 granted, and the receiver was author- 
 ized to complete the unfinished por- 
 tion of the road and his debentures 
 issued for that purpose were made a 
 first lien. 
 
 In Taylor v. PMladelpJda <& R. R. 
 Co. 7 Fed. Rep. 377, where the mort- 
 gage bondholders obtain appointment 
 of receivers in a foreclosure proceed- 
 ing, the court in its discretion was 
 empowered to pay employees and ma- 
 terialmen, who had, prior to the ap- 
 pointment, furnished labor and mate- 
 rial and supplies necessary for the 
 operation of the road. And the fund 
 produced by the administration of the 
 court may be distributed at the dis- 
 cretion of the court in such manner 
 as not to embarrass the receivers, and 
 pay for labor and materials by cer- 
 tificates payable out of any funds ap- 
 plicable thereto, at such dates as the 
 receiver may designate. 
 
 In Fanners' Loan & T. Co. v. Grape 
 Creek Coal Co. 50 Fed. Rep. 481, the 
 court refused to authorize a receiver 
 to issue certificates and make a first 
 lien on mortgaged property in order 
 to continue the business in the case of 
 a mining company. See note on this 
 case in 16 L. R. A. C03. 
 
 In MetropoUtan Trust Co. v. Tona- 
 icanda & S. C. R. Co. 103 N. Y. 245, 
 it is held that prior to the passage of 
 the Act of 1885 the court had no power 
 to authorize a receiver in a foreclosure 
 proceeding to pay or issue his certifl-
 
 4:76 
 
 RECEIVERSHIPS. 
 
 § 276. Grounds iipoa uiiicli preferred claims allowed. 
 
 The grounds upon which uusecnred claims have been allowed 
 preferential pa}Mnent from the cm-rent income derived from the 
 operation of the road prior to the lien indebtedness may be stated 
 as follows : 
 
 (a) The necessity of the payment of such claims in order to 
 keep the road in operation as a going concern, and thus preserv- 
 ing the property from depreciation and ruin, thereby protecting 
 the lienholders.' 
 
 (b) Where the mortgagee applies to the court for a foreclosure 
 of his mortgage or trust deed, and asks the court through its re- 
 ceiver to take from the legally constituted authorities the opera- 
 tion and management of the road pending such foreclosure, the 
 com-t, as an equitable condition to the appointment of a receiver, 
 may require the payment of operating expenses incurred prior to 
 the appointment, at least for a reasonable period.' 
 
 cates in payment of labor and services 
 in operating the road prior to his ap- 
 pointment, and make such certificates 
 a prior lien to the mortgage. 
 
 ' Union Trust Co. v. Illinois M. R. 
 Co. 117 U. S. 434, 29 L. ed. 963; Cen- 
 tral Trust Co. V. St. Louis, A. & T. 
 R. Co. 41 Fed. Rep. 551; Miltenberger 
 V. Logansport, C. tfc S. W. R. Co. 106 
 U. S. 286, 27 L. ed. 117; Barton v. 
 Barbour, 104 U. S. 126. 26 L. ed. 672. 
 
 * Farmers' Loan & T. Co. v. Kansas 
 City, W. & N. W. R. Co. 53 Fed. Rep. 
 182. In Fosdick v. Schall, 99 U. S. 235, 
 253, 25 L. ed. 339, 343. Chief Justice 
 Waite said: "The mortgagee has his 
 strict rights which he may enforce in 
 the ordinary way. If he asks no 
 favors he need grant none. But if he 
 calls upon a court of chancery to put 
 forth its extraordinary powers, and 
 grant him purely equitabie relief, he 
 may, with propriet}'. be required to 
 submit to the operation of a rule 
 ■which always applies in such cases, 
 and do equity in order to get equity. 
 The appointment of a receiver is not 
 a matter of strict right, such an ap- 
 
 plication always calls for the exercise 
 of judicial discretion, and the chan- 
 cellor should so mould his order that, 
 while favoring one, injustice is not 
 done to another." To the same ef- 
 fect, substantially, are the following 
 cases: Union Trust Co. v. Souther, 1^1 
 U. S. 591 27 L. ed. 488; Miltenberger, 
 V. Logansport, C. & S. W. R. Co. 106 
 U. S. 286, 311, 27 L. ed. 117, 127; 
 Union Trust Co. v. Illinois M. R. Co. 
 117 U. S. 434, 457, 29 L. ed. 963, 971; 
 Thomas v. Peoria & R. I. R. Co. 36 
 Fed. Rep. 808; Central Trust Co. v. 
 St. Louis, A. & T. R. Co. 41 Fed. 
 Rep. 551; Dow v. Memphis & L. R. R. 
 Co. 20 Fed. Rep. 260; Central Trust 
 Co. V. Texas & St. L. R. Co. 22 Fed. 
 Rep. 135; Douglass v. Cline, 12 Bush, 
 &0'i;Williamson v. Washington City, V. 
 M. & Q. S.R. Co. 33 Gratt. 624; Poland 
 V. Lamoille Valley R. Co. 52 Vl. 144; 
 Eervey v. Blinois M. R. Co. 28 Fed. 
 Rep. 169; United States Trust Co. v. 
 NeiD York, W. 8. & B. R. Co. 25 Fed. 
 Rep. 797; Mercantile Trust Co. v. Pitts- 
 burg & W. R. Co. 29 Fed. Rep. 730; 
 Atkins v. Petersburg R. Co. 8 Hughes.
 
 RECEIVERSHIP OF RAILWAYS. 
 
 477 
 
 (c) "Where the current receijDts have been diverted from tlie 
 payment of the operating expenses and applied in payment of 
 tlie bonded indebtedness or such permanent improvements as re- 
 sult in the enhanced value of the property constituting the secur- 
 ity of the bondholders, the court upon equitable grounds may re- 
 store to the labor and supply creditors from the current net 
 receipts, or the corpus, the money thus diverted. This principle 
 is based upon the tacit understanding of the lienholders that the 
 income, so far as necessary, shall be applied in payment of the 
 ordinary current operating expenses due for labor and supplies.' 
 
 307; Western Pennsylvania R. Co. v. 
 Johnston, 59 Pa. 290; Addison v. Lewis, 
 75 Va. 701; Coe v. New Jersey M. R. 
 Co. 31 N. J. Eq. 105; Porter v. Pitts- 
 burg Bessemer Steel Co. 120 U. S. 649, 
 
 30 L. ed. 830; Farmers' Loan & T. 
 Co. V. CJiicago & A. R. Co. 42 Fed. 
 Rep. 6; Jessup v. Atlantic & G. R. Co. 
 3 Woods, 441 ; Blair v. St. Louis, 11. 
 & K. R. Co. 22 Fed. Rep. 471; Union 
 Trust Co. V. Morrison, 125 U. S. 591, 
 
 31 L. ed. 825; Morgan's Louisiana & 
 T. R. db S. S. Co. V. Texas G. R. Co. 
 137 U. S. 171, 34 L. ed. 625; Quincy, 
 M. & P. R. Co. V. Humphreys, 145 U. 
 S. 82, 36 L. ed. 632; Penn Mut. L. 
 Ins. Co. V. Heiss, 141 111. 35, 62. 
 
 The requirement imposed as a con- 
 dition of the appointment of receivers 
 of a railroad corporation, that a judg- 
 ment against the company be paid 
 out of the proceeds of the property, 
 is conclusive where all the parties ac- 
 quiesce and accept it, whether or not 
 the court had the power to impose it 
 in the first instance. Union Trusi 
 Co. V. Atchison, T. <& S. F. R. Co. (N. 
 M.) 42 Pac. 89. 
 
 The lime within which the claim 
 must have accrued in order to be en- 
 titled to a preferential payment has 
 been arbitrarily fixed at various pe- 
 riods, sometimes ninety days, some- 
 times six months, twenty-two months, 
 and even three years. See as to sev- 
 
 eral periods. Blair v. St. Louis, H. 
 & A". R. Co. 22 Fed. Rep. 478, note; 
 Hale V. Frost, 99 U. S. 389, 25 L. ed. 
 419; Doiiglass v. Cline, 12 Bush, 608; 
 Skiddy v. Atlantic, M. & 0. R. Co. 3 
 Hughes, 320; Williamson v. Washing- 
 ton City, V. M. & O. 8. R. Co. 33 
 Gratt. 624; Atkins v. Petersburg R. Co. 
 3 Hughes, 307. It is not essential 
 that the order for the payment of the 
 preferred debts should be made at 
 the time of the appointment, though 
 it is the better practice to do so. Cen- 
 tral Trust Co. V. St. Louis, A. & T. 
 R. Co. 41 Fed. Rep. 551 ; Fosdick v. 
 Schall, 99 U. S. 235, 25 L. ed. 339; 
 Blair v. St. Louis, H. & K. R. Co. 22 
 Fed. Rep. 471. Nor is the payment 
 of this class of claims as preferential 
 dependent upon the appointment of 
 a receiver. They have priority over 
 the mortgage without regard to the 
 question of receivership. Farmers' 
 Loan & T. Co. v. Kansas City, W. & 
 N. W. R. Co. 53 Fed. Rep. 182. 
 
 'In Williamson v. Washington City, 
 V. M. & O. S. R. Co. 33 Gratt. 624, it 
 was held that if a railroad company 
 before the appointment of a receiver 
 had paid out of the net revenues in- 
 terest on the bonded indebtedness, or, 
 for the purpose of repair and improve- 
 ment of the road upon the sale of the 
 road, there should bo p.aid to the cred- 
 itors for labor atul material from the
 
 478 
 
 RECEIVERSHIPS. 
 
 proceeds of the sale, the amount of 
 net revemies so divert«Hl. This de- 
 cision is based on Dovglass v. Cline, 
 12 Bush, 608; Ellin v. Boston, II. tt E. 
 R. Co. 107 Mass. 1, with other cases. 
 
 In Mcllhenny v. Bim, 80 Tex. 1, it 
 appeared that the net earnings of the 
 road sufficient to pay all the labor 
 and supply claims had been appro- 
 priated towards betterments upon the 
 roads, and the interest upon the bonds, 
 and it was held that such diversion 
 was in derogation of the rights of 
 those entitled to the fund, and that it 
 was proper that the money should be 
 restored or provided for in the order 
 of the sale of the road. 
 
 In Blair v. St. Louis, E. & K. R. Co. 
 22 Fed. Rep. 471, it is held that claims 
 for labor and supplies accruing within 
 six months prior to the appoint- 
 ment of a receiver are entitled to be 
 paid out of the net income of the re- 
 ceivership, and in exceptional cases 
 where special equity appears such 
 claims may be made a first lien upon 
 the corpus of the mortgaged property. 
 
 In Turner v. Indianapolis, B. & W. 
 R. Co. 8 Bias. 315, a receiver was 
 ordered to pay the claims of operatives 
 and supply men owing at the time of 
 his appointment and to hold the 
 property subject to them, not as a lien 
 upon the road but in the exercise of 
 the equitable discretion of the court. 
 In fixing the time within which such 
 claims will be allowed and ordered 
 paid, the court adopted by analogy 
 the rule of the statute of Illinois in 
 relation to liens on railroads for work 
 done and material furnished. 
 
 In Thomas v. Peoria & R. I. R. Co. 
 36 Fed. Rep. 808, Mr. Justice Harlan 
 held that if, both before and during the 
 receivership of the property of a rail- 
 road corporation pending a mortgage 
 foreclosure, moneys from the current 
 receipts are expended for materials 
 and equipment, a claim for rent of 
 
 cars may be charged upon the income 
 during ihe receivership, and if tliit is 
 inadequate, upon the proceeds of the 
 mortgageil properly; but that in the 
 absence of special circumstances such 
 preferential payment would not be 
 extended back of six months before 
 the receivership. 
 
 In Pennsylvania Finance Co. v. 
 Charleston, C. & C. R. Co. 48 Fed. 
 Rep. 188, it is held that persons who 
 furnish labor supplies and material to 
 a railroad to keep it a going concern 
 are entitled to payment out of the 
 earnings thereof before the payment 
 of any interest on the mortgaged 
 bonds, and if it appears that money 
 due upoD claims of this nature has 
 been paid out as interest on the bonds 
 or for permanent improvements 
 whereby the bondholders have been 
 benefited, the court will order an 
 amount equal to the sum so diverted 
 to be paid upon such claims out of 
 any earnings in the hands of a re- 
 ceiver, or failing in this, out of the 
 proceeds of sale. 
 
 In Pennsylvania Finance Co. v. 
 Charleston, C. & C. R. Co., Ex parte 
 Moore, 49 Fed. Rep. 693, preferential 
 payment, it was held, would not be 
 given to a merchant for rations fur- 
 nished to laborers upon the railway 
 under contract with the company and 
 for which the company alone is liable, 
 although the company charges the 
 rations to its laborers as part of their 
 wages. 
 
 In Farmers' Loan & T. Co. v. Kansas 
 City, W. & N. W. R. Co. 53 Fed. Rep. 
 182, claims for which a preferential 
 payment will be made are said to be 
 in favor of those who have aided to 
 conserve the property, and have been 
 contracted within a reasonable lime, 
 and that the six months' rule is not a 
 fixed and unbending rule barring all 
 claims contracted more than six 
 months before the appointment, nor
 
 RECElVEliSHIP OF RAILWAYS. 
 
 479 
 
 (d) "Where tlie statute creates a lien in favor of specific cred- 
 itors having priority over the mortgage bondholders.' 
 
 is the authority to prefer claims con- 
 lined to cases where there has been a 
 diversion of the income. 
 
 In Fosdick v. ScJudl, 99 U. S. 253, 
 25 L. ed. 342, Chief Justice Waite 
 says that every railroad mortgagee in 
 accepting his security impliedly agrees 
 that the current debts made in the 
 ordinary course of business shall be 
 paid from the current receipts before 
 he has any claim upon the income. 
 If, for the convenience of the moment, 
 something is taken from what may 
 not be improperly called the current 
 debt fund and put into that which 
 belongs to the mortgage creditors, it 
 certainly is not inequitable for the 
 court, when asked by the mortgagees 
 to take possession of the future in- 
 come and hold it for their benefit, to 
 require as a condition to such order 
 that what is due from the earnings to 
 the current debt shall be paid by the 
 court from the future current receipts 
 before anything derived from that 
 source goes to the mortgagees. In 
 this way the court will only do what, 
 if a receiver should not be appointed, 
 the company ought itself to do, and 
 even though the mortgage may in 
 terms give a lien upon the profits and 
 income until possession of the mort- 
 gaged premises is actually taken, 
 or something equivalent, the whole 
 earnings belong to the company and 
 are subject to its control. See Galves- 
 ton, II. & II. R. Go. V. Coicdrey, 78 
 U. S. 11 Wall. 459, 20 L. ed. 199; Gil- 
 man V. Illinois & SI. Teleg. Co. 91 U. S. 
 003, 23 L. ed. 405; American Bvidije 
 Co. V. Heidtlbach, 94 U. S. 798, 24 
 L. ed. 144. 
 
 In Miltenberrjer v. Logansport, C. & 
 8. W. R. Co. 106 U. S. 286, 27 L. ed. 
 117, the receiver was authorized to 
 
 pay arrears due for operating expen- 
 ses not exceeding $10,000 to other 
 connecting Hues for materials and 
 repairs and for ticket and freight 
 balances, part of which had been in- 
 curred more than 90 days before the 
 order appointing the receiver was 
 made, and to purchase rolling stock 
 and build 6 miles of road and a 
 bridge on the main line of the road, 
 and make such expenditures a lien 
 prior to the lien of the mortgagees. See 
 also Union Trud Co. v. Souther, 107 
 U. S. 591, 27 L. ed. 488; Burnham v. 
 Boicen, 111 U. S. 776, 28 L. ed. 596. 
 In this case income was diverted to 
 the improvement of the property, and 
 an assignee of such a claim is entitled 
 to the same rights as the original 
 holder. 
 
 In Union Tru.^t Co. v. Illinois M. R. 
 Co. 117 U. S. 434, 29 L. ed. 963, certifi- 
 cates issued for necessary repairs 
 were allowed priority, and it is held 
 that the rule is applicable to a case in 
 which the first receiver was appointed 
 in a suit not brought by thebondholders 
 or the trustees; that it was sufficient 
 if the bondholders and their trustee, 
 after they were made parties, knew of 
 the merits of the order and the appli- 
 cation of the money upon which the 
 certificates were issued, to replace 
 earnings diverted from the payment 
 of operating expenses and ordinary 
 repairs. See also Sage v. Memphis & 
 L. R. R. Co. 125 U. S. 361, 31 L. ed. 694; 
 Freedman's Sav. & T. Go. v. Shepherd, 
 127 U. S. 494, 32 L. ed. 163. 
 
 ' In nearly all the states and territo- 
 ries liens have been given by statute 
 for labor, and usually for labor and 
 materials furnislied for tlie construc- 
 tion and operation of railroads, as 
 follows:
 
 480 
 
 RECEIVERSHIPS. 
 
 Alabama, 
 
 for labor 
 
 
 Arizona, 
 
 " and 
 
 material 
 
 Arkansas, 
 
 " 
 
 " 
 
 California, 
 
 " 
 
 i< 
 
 Colorado, 
 
 (( 
 
 << 
 
 Connecticut, 
 
 <t 
 
 <( 
 
 Florida, 
 
 " 
 
 
 Georgia, 
 
 f( 
 
 (< 
 
 Idaho, 
 
 i< 
 
 X 
 
 Illinois, 
 
 <( 
 
 << 
 
 Indiana, 
 
 <( 
 
 i< 
 
 Iowa, 
 
 c< 
 
 <i 
 
 Kansas, 
 
 <c 
 
 t( 
 
 Kentucky, 
 
 (< 
 
 
 Maine, 
 
 <( 
 
 
 Massachusetts, 
 
 " 
 
 << 
 
 Michigan, 
 
 <( 
 
 c< 
 
 Minnesota, 
 
 l< 
 
 II 
 
 Jlississippi, 
 
 " 
 
 
 Missouri, 
 
 u 
 
 X 
 
 Montana, 
 
 ft 
 
 l< 
 
 Nebraska, 
 
 it 
 
 " 
 
 Nevada, 
 
 l< 
 
 II 
 
 New Jersey, 
 
 << 
 
 
 New Mexico, 
 
 « 
 
 <l 
 
 New York, 
 
 C( 
 
 
 North Carolina 
 
 i< 
 
 
 North Dakota, 
 
 t( 
 
 «< 
 
 Ohio, 
 
 << 
 
 <l 
 
 Pennsylvania, 
 
 <( 
 
 l< 
 
 Rhode Island, 
 
 <( 
 
 (1 
 
 South Dakota, 
 
 
 
 Tennessee, 
 
 it 
 
 « 
 
 Texas, 
 
 <( 
 
 
 Utah, " 
 
 Vermont, ** 
 
 Virginia, ** 
 
 Washington, " 
 
 West Virginia, " 
 
 Wisconsin, " 
 
 Wyoming, '* 
 
 It should be observed in this connec- 
 
 Code 1876, § 3481. 
 
 Rev. Stat. 1887, § 2294. 
 
 Act 1887, p. 96. 
 
 Stat. 1883, §§ 2131, 2139, 2148. 
 
 Gen. Stat. 1888, § 3022. 
 
 Code, 1882. 
 
 Gen. Laws, 1880, 1881, Code Civ. Proc. 
 
 §g 815, 829. 
 Stat, of 1895. 1872, 1877. 
 Laws 1887, chap. 9. p. 27; Rev. Stat. 
 
 1881, ^g 5286, 5291. 
 Rev. Code, 1880, § 2132. 
 Comp. Laws 1885, chap. 84. 
 Gen. Stat. 1881, p. 982. 
 Rev. Stat. 1883, chap. 51. 
 Act 1873,chap. 353; Act 1882, chap. 112. 
 Stat. 1882, §§ 3423, 3425. 
 Gen. Stat. 1878, chap. 10, § 1. 
 Laws 1882, chap. 88. 
 Rev. Stat. 1879, g§ 3200, 3216. 
 Comp. Stat. 1887, '§§ 1370, 1394. 
 Comp. Stat. 1885, p. 426. 
 Gen. Stat. 1885, §i^ 3808, 3827. 
 Rev. Stat. 1877, p. 927. 
 Comp. Laws 1884, g§ 1519, 1535. 
 3 Rev. Stat. 7th ed. 1882, p. 2439. 
 Act 1871, 1872, chap. 138; Codo 1882, 
 
 § 1942. 
 Rev. Code, § 4790. 
 Laws 1884, p. 126; Laws 1883, p. 99. 
 Purdon's Bright. Dig. 1883, p. 118. 
 Pub. Stat. chap. 177, §§ 1-28. 
 
 Code 1882, §§ 2774, 2775. 2778. 
 
 Laws 1879, p. 8, chap. 12, § 1, 4; Laws 
 
 1887, chap. 25. 
 Laws 1884, p. 340, §§ 1057-1070; Code 
 
 1880. 
 Rev. Laws 1880, § 3372. 
 Code 1887, §g 2485. 2486. 
 Code 1893, § 1229. 
 Code 1887, chap. 75. 
 Rev. Stat. 1878, §g 3314, 3318; Supp. 
 
 1883. 
 Rev. Stat. 1887, §§ 1507, 1512, 1517, 
 
 1540. 
 tion that where the statute has given a
 
 RECEIVERSHIP OF RAILWAYS. 
 
 481 
 
 (e) The classes of claims for which preferential payments have 
 been allowed in priority over the mortgage indebtedness are gen- 
 erally confined to (7) the o^^erating expen ses, such as for labor, 
 supplies, rolling stock, and rentals.' (^) There is a class of cases? 
 
 lien to a class or classes of persons, the 
 lien cannot be extended to others not 
 clearly within the class or classes speci- 
 fied. If the term "laborer" is used it 
 does not include others who furnish 
 labor. Lehigh Coal & Nav. Co.v. Cen- 
 tral R. Co. 29 N. J. Eq. 252; Pennsyl- 
 vania & D. R. Go. V. Levffer, 88 Pa. 
 168; Ericsson v. Brown, 38 Barb. 390; 
 Poland V. Lamoille Valley R. Co. 52 
 Vt. 144. In other words, the statutes 
 will not be extended beyond the clear 
 purport thereof by implication. 
 
 ' In Turner v. Indianapolis, B. & W. 
 R. Co. 8 Biss. 315, the court say: 
 "The practice has been to allow all to 
 be paid that could be fairly regarded 
 as a part of the actual operating ex- 
 penses of the road, whether for labor 
 or supplies in their various form.s." 
 
 In Kneeland v. American Loan & 
 T. Co. 13G U. S. 89, 34 L. ed. 379, 
 Mr. Justice Brewer says: "The ap- 
 pointment of a receiver vests in the 
 court no absolute control over the 
 property, and no general authority to 
 displace vested contract liens. Be- 
 cause in a lew specified and limited 
 cases this court has declared that un- 
 secured claims were entitled to prior- 
 ity over mortgage debts an idea seems 
 to have obtained that a court appoint- 
 ing a receiver acquires power to give 
 such preference to any general and 
 unsecured claims. It has been as- 
 sumed that a court appointing a re- 
 ceiver could rightfully burden the 
 mortgaged property for the payment 
 of any unsecured indebledness. In- 
 deed we are advised that some courls 
 have made the appointment of a re- 
 ceiver conditional upon the payment 
 of all un.secured indebtedness in pref- 
 31 
 
 erence to the mortgage liens sought 
 to be enforced. Can anything be 
 conceived which more thoroughly de- 
 stroys the sacredness of contract ob- 
 ligations? One holding a mortgage 
 debt upon a railroad has the same 
 right to demand and expect of the 
 court respect for his vested and con- 
 tracted priority as the holder of a 
 mortgage on a farm or lot. So, when 
 the court appoints a receiver of rail- 
 road property it has no right to malie 
 that receivership conditional on the 
 payment of other than those few un- 
 secured claims which by the rulings 
 of this court have been declared to 
 have an equitable priority. No one 
 is bound to sell to a railroad company 
 or to work for it, and whoever has 
 dealings witli a company who.«e prop- 
 erty is mortgaged must be assumed to 
 have dealt vvith it on the faith of its 
 personal responsibility, and not in ex- 
 pectation of subsequently displacing 
 the priority of the mortgage liens. It 
 is the exception and not the rule that 
 such priority of liens can be displaced. 
 We emphasize this fact of the sacred- 
 ness of contract liens for the reason 
 that there seems to be growing an idea 
 that the chancellor, in the exercise of 
 his equitable powers, has unlimited 
 discretion in this matter of the dis- 
 placement of vested liens." St. Louis, 
 A. & T. H. R. Co. V. Cleveland, C. C. 
 & L R. Co. 125 U. S. 658, 31 L. ed. 
 832. It should be observed that the 
 foregoing remarks of Mr. Justice 
 Brewer were in a case brought by a 
 creditor and not in a case wliere the 
 mortgagee was seeking to foreclose 
 his mortgage.
 
 482 RECEIVERSHIPS. 
 
 however, growing out of the construction of tlie road, which are 
 entitled to payment in priority to the l)on(llioldcrs, that are not 
 inchulcd in tlie general class of operating expenses al)Ove. Thus, 
 where tlie mortgage is executed prior to the construction of the 
 road, or at least prior to its completion, and it is apparent that the 
 lien of the mortgage is designed to attach to the road when com- 
 pleted, and claims for construction account have accrued growing 
 out of labor and supplies furnished after the execution of the 
 mortgage and in the completion of the road, and the net income 
 has been diverted to the payment of interest or improvements, 
 the claimants in such case are entitled to priority over the secured 
 bondholders.' 
 
 § 277. Scope of iinplirul power as to operating expenses. 
 
 (a) In regard to the receiver's right to pay indel)tedness accru-' 
 ing out of his management of the road pending the receivership 
 less difficulty has been experienced, and it may now be stated as 
 a general principle well established that all expenditures made 
 by him in the ordinary course of business and in good faith, with 
 a view to a careful and judicious management and operation of 
 the road, are to be considered within the discretion allowed to a 
 receiver of a railroad. In the absence of general direction and 
 power given to the receiver, in this regard, in the order of ap- 
 pointment, the nature and scope of his duties would necessarily 
 imply such power, for the law never imposes a duty without, at 
 the same time, giving the necessary power to perform such duty, 
 and especially is this true in regard to receiverships of railways 
 where the power is a necessary attribute to the duties imposed. 
 The scope of the outlays which a railway receiver may be con- 
 sidered as authorized to make may be considered as including the 
 cost of all necessary labor and supplies adequate to the due and 
 proper management of the road, as a going concern keeping in 
 mind the preservation of the property, and the safety and con- 
 venience of the public ; all necessary rej)airs to the same end ; all 
 liabilities incurred in sustaining the necessary business relations 
 with other railroads and carriers; and all obligations incurred by rea- 
 son of his relations to the public and duties as a common carrier.'' 
 
 ^Mcllhenny v. Binz, 80 Tex. 1. Trust Co. v. Illinois M. R. Co. 117 U. 
 
 » Mr. Justice Blalchford in Unioti S. 434, 455, 29 L. ed. 963, 970. says:
 
 RECEIVERSHIP OF RAILWAYS. 
 
 483 
 
 "Property subject to liens and claims 
 and debts of various characters and 
 ranks which is brought within the 
 cognizance of a court of equity for 
 administration and conversion into 
 money and distribution, is a trust 
 fund. It is to be preserved for those 
 entitled to it. This must be done by 
 the hands of the court through offi- 
 cers. The character of the property 
 gives character to the particular 
 species of preservation which it re- 
 quires. Unimproved land may lie 
 idle with only payment of taxes. Im- 
 proved property should be rented. 
 Movable property that is not perish- 
 able may be locked up and kept; but 
 if perishable it must be sold by way 
 of preservation. A railroad and its 
 appurtenances is a peculiar species of 
 property. Not only will its structures 
 deteriorate, decay, and perish if 
 not cared for and kept up but its busi- 
 ness and goodwill will pass away if 
 it is not run and kept in good order. 
 Moreover, a railroad is a matter of 
 public concern. The franchises and 
 rights of the corporation which con- 
 structed it were given not merely for 
 private gain to the corporators but to 
 furnish a public highway; and all per- 
 sons who deal with the corporation as 
 creditors or holders of its oblii^alions 
 must necessarily be held to do so in 
 the view that if it falls into insolvency 
 and its affairs come into a court of 
 equity for adjustment, involving the 
 transfer of its franchises and prop- 
 erty, by a .sale, into other hands to 
 have the purposes of its creation still 
 carried out, the court while in charge 
 of the property has the power, and 
 under some circumstances it may be 
 its duty to make such repairs as are 
 necessary to keep the road and its 
 structures in a safe and proper condi- 
 tion to serve the public. Its power to 
 do this does not depend on consent 
 nor on prior notice. Consent is de- 
 
 sirable, but is seldom practicable, 
 where the debts exceed the value of 
 the property." Cf. Wallnce v. Loomis, 
 97 U. S. 146, 24 L. ed. 1008; Milten- 
 berger v. Logannport, G. <& S. W. R. 
 Co. 106 U. S. 286, 27 L. ed. 117; Bar- 
 ton v. Barbour, 104 U. S. 126, 26 L. 
 ed. 673. 
 
 Arrears due for operating expenses, 
 ticket and freight balances, money 
 due for rolling stock, labor, car 
 springs, salary of the attorney imme- 
 diately prior to the appointment, and 
 taxes, are among the claims that have 
 been treated as preferred. Litzenher- 
 ger v. Jarvis-Conklin Trust Co. 8 Utah, 
 15; Miltenberger v. Logansport, C. &S. 
 ^. R. Co. 106 U. S. 286, 27 L. ed. 117; 
 Atkins v. Petersburg B. Co. 3 Hughes, 
 307; Skiddy v. Atlantic, M. & 6. R. 
 Co. 3 Hughes, 320; Blair v. St. Louis, 
 H. & K. R. Co. 23 Fed. Rep. 521; 
 Giles v. Stanton, 86 Tex. 620; Re 
 Eastern & M. R. Co. L. R. 45 Ch. Div. 
 367. 
 
 This class of preferential claims are 
 in their nature equitable claims and 
 are subject to assignment. Burnham 
 V. Bowen, 111 U. S. 776, 28 L. ed. 596; 
 Union Trust Co. v. Walker, 107 U. S. 
 596, 27 L. ed. 490; Mcllhenny v. Bim, 
 80 Tex. 1. 
 
 The right of preference in payment 
 out of funds in the hands of receivers 
 attaches to the debt, and not to the 
 per.son of the original creditor, and 
 will pass to an assignee of the debt. 
 Northern P. R. Co. v. Lament, 69 
 Fed. Rep. 23. 
 
 The receiver has power to make 
 such reasonable outlays as are re- 
 quired in the ordinary course for such 
 as keeping the road and its rolling 
 stock in repair, etc. McLane v. Placer- 
 mile (& S. V. R. Co. 06 Cal. 606. 
 
 In Union Trust Co. v. Illinois M. R. 
 Co. 117 U. S. 434, 29 L. ed. 903, pri- 
 ority ^as allowed over the mortgage 
 indebtedness for necessary repairs,
 
 484 
 
 RECEIVERSHIPS. 
 
 (b) Tt should be observed, however, that the doctrine above 
 announced, authori/iui; the receiver to create indebtedness enti- 
 tled to priority over the bonded indebtedness, is not to be applied, 
 as a rule, to private corporations, which are not quasi public in 
 their nature.' 
 
 tax liens, receivers' certificates issued, 
 or svirphis earnings diverted from the 
 payment of operating expenses, worn- 
 out parts of the road, wages for the 
 employees of the receiver, debts due 
 to other railroad companies, ordinary 
 expenses of the receivers in operating 
 the road, and rents of rolling stock, 
 and if the earnings were not sufficient 
 they were to be paid out of the corpus 
 of the property; but it was held that 
 debts for money borrowed by the re- 
 ceiver without the previous order of 
 the court were not to be allowed pri- 
 ority, though the money was applied 
 to pay expenses of the receivership, 
 repairs, and supplies. 
 
 In Cowdrey v. Galveston, H. d H. R. 
 Co. 1 Woods, 331, all outlays of the 
 receiver intrusted with the manage- 
 ment of a railroad which were made 
 in good faith, in the ordinary course 
 of business, with a view of advancing 
 the business of the road and to make 
 it profitable and successful, were held 
 to be within the line of the discretion 
 necessarily allowed to the receiver, 
 but where extraordinary outlays of 
 money are to be made the receiver in 
 all cases should apply to the court for 
 authority. In this case receivers' ex- 
 penses for counsel and witness fees 
 incurred in a motion for his removal 
 were allowed as a charge against the 
 trust fund when it appeared that he 
 acted in good faith and with integrity 
 of purpose and when it further ap- 
 peared that there were no grounds 
 nor apparent grounds for the motion. 
 
 ' In Farmers' Loan & T. Co. v. 
 Qrape Creek Coal Co. 50 Fed. Rep. 
 
 481, 16 L. R. A. 603, Judge Gresham 
 says: "Private corporations owe no 
 duty to the public, and their continued 
 operation is not a matter of public 
 concern. It is only against railroad 
 mortgages that the Supreme Court of 
 the United States has sustained orders 
 giving priority to receiver's certificates 
 representing particular indebtedness, 
 and, as already stated, then only on 
 principles having no application to a 
 mortgage executed by a private cor- 
 poration owing no duty to the public." 
 In Wood V. Ouarantee fnist & Safe 
 Deposit Co. 128 U, S. 417, 32 L. ed. 
 472, the court say: "The doctrine of 
 Fosdick V. Schall, 99 U. S. 252, 25 L. 
 ed. 342, has never yet been applied in 
 any case except that of a railroad." 
 And see Kneeland v. American Loan 
 & T. Co. 136 U. S. 89, 34 L. ed 
 379; Bound v. South Carolina E. Co. 
 50 Fed. Rep. 312; Manchester Locomo- 
 tive Works V. Truesdale, 44 Minn. 118, 
 9 L. R. A. 140; Fidelity Lns. <& S. 
 D. Co. V. Shenandoah Iron Co. 42 
 Fed. Rep. 372; Seventh Nat. Bank v. 
 Shenandoah Iron Co. 35 Fed. Rep. 
 436; Raht v. Altrill, 42 Hun, 414. But 
 see Earn v. Hover Iron Co. 86 Va. 
 754. In this case it does not seem that 
 the question as to the right in the mat- 
 ter of a private corporation was 
 raised against the right of the re- 
 ceiver to issue certificates having pri- 
 ority over existing mortgages in pay- 
 ment of claims accruing prior to re- 
 ceiver's appointment generally. See 
 Manchester Locomotive Works v. Trves- 
 dale (Minn.) 9 L. R. A. 140, note 
 p. 143, where the following cases are
 
 RECEIVERSHIP OF RAILWAYS. 485 
 
 § 27S. Preferential claims, basis of. 
 
 (a) In receiverships of railways there hass^rown up a practice in 
 courts of equity of allowing a species of claims a preferential at- 
 titude towards contract lienholders, and thus giving such claims 
 a priority in payment over the bonded indebtedness secured by 
 mortgage or trust deed. These are sometimes called by the courts 
 equitable liens and, whatever may be said as to the justice and 
 equity of giving them priority over the recorded contractual liens, 
 it is doubtful whether the court has power to base the priority of 
 their payment upon the existence of an actual lien. The equi- 
 table priority in the allowance of these claims is to be found rather 
 in the contractual relation of the parties. Thus when a mort- 
 gagee takes mortgage security upon a railway and its income, it 
 is done with the tacit understanding that the mortgagor shall 
 operate the road as-a going concern, and that his lien attaches to 
 the corpus and its earnings only when the operating expenses 
 have been paid. The giving of this class of claims a priority in 
 payment over the mortgage indebtedness has for its basis the non- 
 existence of a mortgage lien rather than a lien of the claimants, 
 in so far as the necessary operating exj)enses are concerned. If 
 it be true that from any state of facts or relationship of parties 
 a court of equity can create a lien, and make it superior to that 
 of a recorded mortgage, it is a power beyond that usually sup- 
 posed to belong to such courts. 
 
 (b) Sometimes this class of claims is given an equitable prior- 
 ity in mortgage foreclosures upon the ground that the court, in 
 the exercise of a sound judicial discretion, may impose terms upon 
 the plaintiff and require him, as a condition of granting a receiver- 
 ship, to consent to the payment from the income of the operating 
 
 cited: Dunham v. Cincinnati, C. & C. U. S. 592, 27 L. ed. 488; Fanners' i& 
 
 R.Co. 68 U. S. 1 Wall.254. 17L.ed. 584; M. Nat. Bank v-. Philadelphia & R. 
 
 Denniston v. Chicago, A. & St. L. R. R. Co. 7 Fed. Rep. 379; Meyer v. 
 
 Co. AH'i&s. AM; Duncan V. Mobile &0. Johnston, 53 Ala. 237; Coe v. Neio 
 
 R. Co. 2 Woods, 542; Jerome v. Mc- Jersey M. R. Co. 31 N J. Eq. 105; 
 
 Carter, 94 U. S. 734, 24 L. ed. 136; Turner v. Peoria & 8. R. Co. 95 111. 
 
 Wallace v. Loomis, 97 U. S. 146, 24 L. 135; Coe v. Golumbm, P. <t- /. R. Co. 
 
 ed. 895; Brown v. New York & E. R. lO Ohio St. 372; Qnrney v. Atlantic 
 
 Co. 19 How. Pr. 84; Vatable v. New & q_ w. R. Co. 58 N. Y. 358; United 
 
 York, L. E. & W. R. Co. 96 N. Y. 49; states Trust Co. v. New York, W. 8. db 
 
 Atkins V. Petersburg R. Co. 3 Hughes, jj Ji_ Co. 25 Fed. Rep. 803. 
 307; Union Trust Co. v. Souther, 107
 
 486 RECEIVERSHIPS. 
 
 indebtedness accrnini^ witliin a limited period prior to tlie re- 
 cciversliip, and tliereafter, on the ground that before lie is in a 
 condition to ask for equity he must do equity. In other words 
 the court, in effect, says to the plaintiff "the equitable rights asked 
 for will be granted only on condition that you consent that the 
 receiver pay certain specified indebtedness" which, in the view of 
 the court, is entitled to peculiar equitable considerations. Tliis 
 doctrine, as a basis of judicial action, it would seem ouglit not to 
 be extended, and particularly so where, as in this class of cases, 
 its application is wholly unnecessary. 
 
 § 279. Rule in Federal courts. 
 
 The Supreme Court of the United States in a case wliere it ap- 
 peared that rolling stock was purchased under the form of leases 
 in which the title was reserv^ed in the vendors until certain an- 
 nual amounts were paid, with a provision that the vendors might 
 retake the property on default in the payments, and the bill was 
 filed by a judgment creditor, and subsequently, after the expira- 
 tion of four months', bills were filed by the trustees for the fore- 
 closure of the mortgages, and a receiver was continued there- 
 under, where it appeared that the receipts were not sufficient to pay 
 the operating expenses, and that the rolling stock was returned 
 to the intervenors prior to the sale, but no demand was made 
 prior to the filing of the bills for foreclosure for the return, and it 
 was sought to recover from the receiver the contract price or 
 rental for the rolling stock during the four months prior to the 
 filing of bills for foreclosure, tlie following propositions were 
 considered and estaljlished by the court : 
 
 (a) The court by the appointment of a receiver acquires certain 
 rights, and assumes certain obligations, and the expenses which 
 the court creates in discharge of these obligations are burdens 
 necessarily on the property taken possession of, and this iri-espec- 
 tive of the question who may be the ultimate owner or who may 
 have the preferred lien or who may invoke the receivership. 
 
 (b) The court has no right to make the receivership conditional 
 on the payment of other tlian those few unsecured claims which 
 by the rulings of that court have been declared to have an equi- 
 table priority. 
 
 (c) No one is bound to sell to a railroad company or to work
 
 RECEIVERSHIP OF RAILWAYS. 487 
 
 for it, and whoever has dealings with a company whose property 
 is mortgaged must be assumed to have dealt with it on the faith 
 of its personal responsibility, and not in expectation of subse- 
 quently displacing the priority of the mortgage liens. 
 
 (d) When the receiver is appointed at the instance of a gen- 
 eral creditor and there is a deficit in the running expenses of 
 the road, and rolling stock is taken back by the lessor under the 
 provisions of his lease, his claim for i-ent is not entitled to pi'iority 
 over the mortgage creditors. 
 
 (e) If, however, the rolling stock is taken possession of by the re- 
 ceiver at the instance of the mortgagee, and is used for the benefit 
 of the mortgagee's interest in the real estate, the rent for the roll- 
 ing stock has priority to the mortgage, as to the earnings and pro- 
 ceeds of sale. 
 
 And in such case the reasonable rental value is the rental 
 to be paid.' 
 
 (f) (i) Where the interests of moi'tgagees are involved the 
 growing tendency of courts is not to enlarge the class of claims 
 which are given preference in payment over the mortgage in- 
 debtedness.'^ (3) The better rule would seem to be that the pay- 
 ment of claims as preferential to the mortgage lien does not depend 
 upon a provision therefur incorporated in the order of appoint- 
 ment,^ though it has been held to be a prerequisite." (3) The 
 general rule is that claims for which a preference is allowed must 
 liave accrued within a reasonable time prior to the aj^pointraent 
 of the receiver,'^ and while some courts have fixed an arbitrary 
 
 • Kneeland v. American Loan & T. rendered to a railroad compmy before 
 Co. 136 U. S. 89, 34 L. ed. 379. the appointment of a receiver entitled 
 
 ' The teodency of judicial decision to preference over mortgage indebled- 
 
 is to narrow rather than enlarge the ness, there mu.st have been an order 
 
 class of claims against railroad com- of court at the time the receivers 
 
 panies to be preferred over mortgage were appointed, for its payment, and 
 
 liens out of funds in the hands of re- the current earnings before or after 
 
 ceivers. ^yood v. New Turk & N. E. the appointment of the receivers must 
 
 R Co. 70 Fed. Rep. 741. have been diverted to paying interest 
 
 'The allowance of claims again.st on the mortgage debt. Central Truat 
 
 railroads in preference to mortgage Co. v. Chatlnnvoga S. It. Co. 69 Fed. 
 
 liens does not depend upon the order Rep. 295. 
 
 of court appoifiliog receivers. Wood " The allowance of claims in {jrefer- 
 
 V. New York & N. K. R. Co. supra. ence to mortgage liens against rail- 
 
 * To make a claim for the services road property in the hands of receiv-
 
 488 
 
 RECEIVERSHIPS. 
 
 period of four, six, or twelve months within which claims 
 are preferred,' yet no fixed and inliexihle rule can be laid 
 down upon the subject.^ {Jf) The allowance of claims of this 
 nature should not be granted without notice to those interested." , 
 {5) Claims for preference have been held to include labor/ 
 
 ers does not depend upon any fixed 
 or arbitrary rule as to the lime when 
 the debts were contracted, further 
 than that they must have been in- 
 curred within a reasonable time be- 
 fore the appointment of receivers, 
 depending upon the circumstances of 
 each particular case. Wood v. Neio 
 York & N. E. R. Co. 70 Fed. Rep. 741. 
 
 A debt for coupling links and pins 
 and tank steel furnished a railroad 
 company within a reasonable lime 
 before the appointment of receivers 
 is one for supplies necessary to keep 
 it a going concern, possessing a su- 
 perior equity over mortgage liens, 
 when such supplies were necessary 
 to the operation from day to day of 
 the road. Wood v. New York <& N. R 
 B. Co. supra. 
 
 ' A claim for necessary supplies to 
 keep a railroad a going concern, fur- 
 nished within four months of the 
 time of the appointment of receivers 
 in a foreclosure suit in which the de- 
 cree allows the receivers to pay sup- 
 ply accounts contracted within four 
 months, and within a year of the ap- 
 pointment of the same receivers in 
 another suit in which the decree de- 
 clared that no payment should be 
 made without special order of the 
 court, — is not barred as not coming 
 ■within the time within wliich priority 
 can be given over the mortgage liens. 
 Wood V. New York & N. E. B. Co. 
 70 Fed. Rep. 741. 
 
 The six months' limitation, in an 
 order appointing receivers, upon the 
 payment of claims for supplies, has 
 no effect in barring meritorious pref- 
 
 erential claims. Northern P. B. Co. 
 V. Lamont, 69 Fed. Rep. 23. 
 
 ^ There is no fixed rule of a Federal 
 court barring claims contracted more 
 than six months before the appoint- 
 ment of a receiver of a railroad com- 
 pany or giving claims contracted 
 within such time a preferential char- 
 acter in respect to a mortgage upon 
 the railroad property. Central Trust 
 Co. V. East Tennesee, V. & O. B. Co. 
 69 Fed. Rep. 658; Wood v. New York 
 & N. E. R. Co. 70 Fed. Rep. 741. 
 
 * An order authorizing the receiver 
 of a railroad company to issue his 
 certificates to raise funds for the 
 maintenance of the road cannot be 
 granted without notice of the motion 
 therefor to the parties interested in 
 the fund sought to be charged thereby. 
 State V. Port Royal & A. R. Co. (S. C.) 
 23 S. E. 380. 
 
 ^ By the act of 1885 (N.Y.Stat, chap. 
 37G), a receiver of a corporation 
 is required to pay the wages of his 
 employees and laborers in preference 
 to other debts or claims, as therein 
 specified. Prior to that act the court 
 had no power to authorize a receiver 
 in a foreclosure proceeding to pay or 
 issue certificates for the payment of 
 labor and services in operating a rail- 
 road accruing prior to his appoint- 
 ment and make such certificates a 
 lien prior to the mortgage. Metro- 
 politan Trust Co. v. Tonawanda Valley 
 & C. R. Co. 103 N. Y. 244. 
 
 In the case of RaJit v. Attrill, 106 
 N. Y. 423, it is held that the lien of 
 a mortgage attaches not only to the 
 land in the condition in which it waa
 
 RECEIVERSHIP OF RAILWAYS. 
 
 4:89 
 
 at the time of its execution, but as 
 changed or improved by accretions or 
 by labor expended upon it during the 
 existence of the mortgage; and credi- 
 tors whose debts were created for 
 money, labor, or material used in the 
 improvement acquire a legal or equita- 
 ble claim to displace or subordinate 
 the lien of the mortgage for their pro- 
 tection. The payment of this class 
 of claims, where a bill is filed to fore- 
 close a mortgage, is sometimes made 
 a condition to the granting of an 
 order for a receiver where the claims 
 accrued within a .short time prior to 
 the receivership. Fosdick v. Schall, 
 99 U. S. 235, 251, 25 L. ed. 339, 342; 
 Union Trust Co. v. Souther, 107 U. S. 
 592, 27 L. ed. 448; Burnham v. Bowen, 
 111 U. S. 776, 783, 28 L. ed. 596, 599; 
 United States Trust Co. v. Nero York, 
 W. S. & B. R. Co. 25 Fed. Rep. 800,802. 
 
 All debts incurred by a receiver for 
 the necessary repairs and for the 
 general protection and preservation 
 of the property may be made and 
 charged upon the corpus of the prop- 
 erty itself. Meyer v. Johnston, 53 Ala. 
 337, 345, 350; Wallace v. Loomis, 97 
 U. S. 146, 162, 163, 24 L. ed. 895, 901 ; 
 Vermont <& C. B. Co. v. Vei-niont C. 
 R. Co. 50 Vt. 500, 576; Hoover v. Mont- 
 clair cfe Q. L. R. Co. 29 N. J. Eq. 4; 
 Hale V. Nashua & L. B. Co. 60 N. 
 H 333, 341; McLane v. Placer viUe & 
 8. V. R. Co. 66 Cal. 606, et seq. 
 
 The operating expenses of an in- 
 solvent railroad are preferred, as 
 necessary for the preservation of the 
 property. Meyer v. Johnston, 58 Ala. 
 237, 346; Ellis v. Boston, U. & E. R. 
 Co. 107 Mass. 28; Barton v. Barbour, 
 104 U. S. 126, 134, 135, 26 L. ed. 672, 
 677, 678; Poland v. Lamoille Valley R. 
 Co.mYi. 178; Woodruffs. Erie R. Co. 
 93 N. Y .609,620, 622 ; McLane v. Placer- 
 ville&S.V. R. Co.'&i Cal. 600,623; 
 Union Trust Co. v. Illinois M. R. Co. 
 117 U. S. 434, 464, 465. 29 L. ed. 903, 
 
 973, 974; Metropolitan Trust Co. v. 
 Tonawanda Valley & C. R. Co. 103 N. 
 Y. 245. 
 
 The test is whether it has been 
 shown that the debts or expenses for 
 which priority is claimed were neces- 
 sarily incurred for the protection or 
 preservation of the property in the 
 hands of the courts. Hale v. Nashua 
 & L. R. Co. 60 N. H. 333; Scott v. 
 Delahunt, 65 N. Y. 128; Woodruff v. 
 Erie R. Co. 93 N. Y. 609, 623, 623; 
 Meyer v. Western Car Co. 102 U. S. 
 13, 20 L. ed. 61; Union Trust Co. v. 
 Illinois M. R. Co. 117 U. S. 463, 464, 
 29 L. ed. 963, 973. 
 
 A telegraph company rendering 
 services to a railroad company in 
 operating a line along its road is a 
 laborer within the Virginia statute 
 giving laborers' claims priority over 
 mortgages upon properly in the hands 
 of receivers. Newgass v. Atlantic cfe 
 D. R. Co. 72 Fed. Rep. 712. 
 
 A bookkeeper of an insolvent cor- 
 poration is an "employee" witliin N. 
 Y. Laws 1885, chap. 376, § 1, pro- 
 viding that where the receiver of a 
 corporation is appointed the wages of 
 the employees shall be preferred to all 
 other debts or claims against the cor- 
 poration. People V. Beveridge Brew. 
 Co. 91 Hun, 313. 
 
 Independently of the claim of divi- 
 sion of income, debts may be preferred 
 over mortgage liens upon railroad 
 property in the hands of receivers 
 when incurred for labor and supplies 
 necessary to keep the road a going 
 concern from day to day, or the out- 
 come of indispensable business rela- 
 tions, the continuance of which in- 
 volve the interests of the public and 
 the trafhc of the road. Wood v. New 
 York & N. E. R. Co. 70 Fed. Rep. 
 741. 
 
 Tlie inchoate right of one furnisliing 
 supplies and materials to an insolvent 
 railroad company, to be preferred in
 
 490 
 
 RECEIVERSHIPS. 
 
 money expended, waitin<j^ rooms, ticket offices,' and operating 
 expenses," bnt docs not include damages for personal injuries' 
 
 case a receiver is appointed, to the 
 lien of a mortgage upon the property, 
 is lost by the giving of a note by the 
 railroad company guaranteed by the 
 furnisher of the supplies and mate- 
 rials under a requirement that it be 
 secured by a deposit of mortgage 
 bonds of the railroad and a lien on all 
 securities owned by the railroad in the 
 possession of the bank discounting 
 the note. Ohio Falls Gar Mfg. Co. v. 
 Central Trvst Co. 71 Fed. Kep. 916. 
 
 ' Moneys due for providing waiting- 
 rooms, ticket offices, and a place for 
 the employees of a railroad to board 
 and lodge at reduced rates, at one of 
 the principal stations of a railroad, 
 constitute a preferential debt, where 
 the road is in the hands of receivers. 
 Northern P. B. Co. v. Lamont, 69 
 Fed. Rep. 23. 
 
 ^ Liability of sureties on a super- 
 sedeas bond obtained by a railroad 
 company, fixed by default of the com- 
 pany after the appointment of a receiv- 
 er, is entitled to rank as a current 
 operating expense which should be 
 paid out of the funds in the receiver's 
 hands in preference to a mortgage 
 debt. Farmers' Loan <& T. Co. v. 
 Northern P. li. Go. 71 Fed. Rep. 245. 
 
 Current expenses of a railroad in the 
 bauds of a receiver, whether con- 
 tracted before or after his appoint- 
 ment, are properly paid out of the 
 revenue coming into his hands, in 
 preference to a mortgage. Farmers' 
 Loan & T. Go. v. Northern P. B. Go. 
 snpra; Wood v. New York & N E. R. 
 R. Go. 70 Fed. Rep. 741; Filkins v. 
 Adams, 60 III. App. 410. 
 
 Compensation and expenses allowed 
 to the trustee in a railroad mortgage 
 and its solicitor should not be given 
 priority over receivers' certificates out 
 
 of the funds in the receiver's hands. 
 Petersbiwg Sav. <& I. Go. v. Bellatorre, 
 70 Fed. Hep. 643. 
 
 Money borrowed to pay taxes is a 
 preferred claim. Ilanna v. State 
 Trust Go. 70 Fed. Rep. 2, 30 L. R. A. 
 201. 
 
 The filing of a bill for foreclosure 
 of a mortgage covering the income of 
 a railroad company does not impound 
 its gross revenue so as to prevent the 
 payment to connecting lines of road 
 of their just and equitable share of 
 the earnings from interchanged busi- 
 ness. Ames V. Union P. R. Go. 73 
 Fed. Rep. 49. 
 
 The current income of a railroad 
 is primarily to be devoted to the pay- 
 ment of current debts, and when used 
 for the payment of interest upon 
 mortgage indebtedness or for per- 
 manent improvements or for the bene- 
 fit of the mortgagees in any manner, 
 at the expense of the current debt 
 fund, must be restored to the extent 
 of such diversion. Woody. New York 
 & N. E. R. Go. 70 Fed. Rep. 741. 
 
 ^A judgment for personal injuries 
 in favor of a passenger upon a railway 
 operated by a receiver appointed in 
 quo warranto proceedings instituted 
 by the state to forfeit the company's 
 charter for the purpose of having the 
 railroad operated for the benefit of its 
 owners, pending such proceeding, is 
 not entitled to superior rank to the 
 lien of a mortgage executed before 
 the cause of action for damages ac- 
 crued, notwithstanding a provision of 
 the state court vacating such receiver- 
 ship, that the charges upon the prop- 
 erly in the hands of a receiver are 
 made a lien thereon. F'oreman v. 
 
 Central Trust Co. 30 U. S. App. 653, 
 71 Fed. Rep. 776.
 
 RECEIVERSPIIP OF RAILWAYS. 
 
 491 
 
 nor rents.* {6) As to the justice and propriety of the allowance 
 of these claims as preferential there can be no question, if the 
 proper caution is exercised as to the scope of the allowance.^ 
 
 § 280. Application to rolling stock and car trnsts. 
 
 Preferential pa3'nient has been extended to rentals under the 
 conditional sales of rolling stock commonly designated as car trust 
 leases. The payment or liability for such rentals, by the receiver, 
 is governed by the same principles as oljtain in the case of rentals 
 for leased lines of road coming into the receiver's hands at the 
 time of his appointment. He is entitled to a reasonable time in 
 which to determine whether he will retain the rolling stock under 
 the leases, or return the same to the lessors. If he retains the 
 
 Preference over a mortgage debt in 
 respect to the receiver's earnings can- 
 not be given to a claim for damages 
 caused by negligence of a street rail- 
 way company before the appointment 
 of the receiver, in a suit to foreclose 
 the mortgage on the street railway 
 property. St. Louis Trust Co. v. 
 Riley, 70 Fed. Rep. 32, 30 L. R. A. 
 45C ; Farmers' Loan cfc T. (J<>. v. De- 
 troit, B. C. & A. R. Co. 71 Fed. 
 Rep. 29. 
 
 A judgment creditor of a railroad 
 for damages for personal injuries ac- 
 quires no superior equity over a mort- 
 gage in funds paid by the company to 
 its receiver from earnings prior to his 
 appointment, where he has acquired 
 no lien and obtained no injunction be- 
 fore the commencement of the suit to 
 foreclose the mortgage, although pay- 
 ment of such sum to the receiver could 
 not have been enforced against the ob- 
 jection of the mortgagor, as the right 
 to make such oi)jeclion is personal to 
 the latter. Farmers' Loan & T. Co. v. 
 Detroit, B. G. & A. R. Co. 71 Fed. 
 Rep. 29. 
 
 The liability to a person injured by 
 the operation of a railroad in the hands 
 of receivers is a part of the running 
 
 expenses of the road, which will take 
 precedence of mortgage liens upon the 
 property iu the receiver's hands. St. 
 Louis S. W. R. Co. V. Eolbrook, 73 
 Fed. Rep. 112. 
 
 'Rents accruing for property leased 
 by a corporation from the appoint- 
 ment of a receiver of its property 
 until confirmation of a sale of the 
 leasehold do not constitute a prior 
 charge upon the funds in the hands of 
 the receiver, where he has not adopted 
 the lease, on the ground that they are 
 an operating expense. Tradesman 
 Pub. Co. V. Knoxville Car Wheel Co. 
 95 Tenn. 634. 
 
 ^Kneelfvnd v. American Loan <& T. 
 Co. 136 U. S. 89, 34 L. ed. 379; Union 
 Trust Co. v. Illinois M. R. Co. 117 U. 
 S. 436. 29 L. ed. 968: Miltenbenjer v. 
 Lofjansport, C. & S. W. R. Co. 106 U. 
 S. 286, 27 L. ed. 117; Wallace v. 
 Loomis, 97 U. S. 146, 24 L. ed. 895; 
 Meyer v. Johnston, 53 Ala. 337; Ellis 
 V. Vernon Ice, L. & W. Co. 86 Tex. 109; 
 Bank of Montreal v. Chicaxio, C. & W. 
 R. Co. 48 Iowa, 518; Hoover s.Montclair 
 & (I. L. R. Co. 29 N. J. Ecj. 4; Mc- 
 Lane v. I'laccnille <& S. V. R. Co. 60 
 Cal. 606.
 
 492 
 
 RECEIVERSHIPS. 
 
 rolling stock under this class of leases and uses it, or signifies his 
 intention of retaining the same by other unequivocal acts of own- 
 ership, as the sale thereof, with the other property embraced in 
 the foreclosure, he must pay a reasonable rental therefor during 
 the time it is in his possession and use,' and in some cases the 
 
 'As to the right of the mortgagee to 
 hold the rolling stock under his mort- 
 gage, where the rolling stock is by the 
 Constitution or statutes made personal 
 propert}', see Radebaiigh v. Tacoma 
 & P. R. Co. 8 Wash. 570; Hammock 
 V. Farmers' Loan & T. Co. 105 U. S. 
 77, 26 L. ed. 1111; Hoyle v. Piatisburg 
 & M. R. Co. 51 N. Y. 314; Vilas v. 
 Page, 106 N. Y. 439. But see Doio v. 
 Memphis & L. R. R. Co. 20 Fed. Rep. 
 260. 
 
 In Farmers' Loan & T Co. v. Chi- 
 cago & A. R. Co. 42 Fed. Rep. 6, roll- 
 ing stock under a car trust lease was 
 taken possession of by a receiver and 
 continuously used by him without ob- 
 jection from the bondholders or trus- 
 tees and payments were made on the 
 rentals from the income. On applica- 
 tion by the lessor it was held that 
 the retention and use of the cars by 
 the receiver and the nonaction of the 
 bondholders did not amount to a con- 
 version; that the lessor was not en- 
 titled to the rental according to the 
 terms of the lease out of the corpus of 
 the estate, but only to a return of the 
 cars within a reasonable time, if so de- 
 manded, and a quantum, meruit for the 
 use thereof. In Coe v. Neio Jersey M. 
 R. Co. 27 N. J. Eq. 37, it was held 
 that if the lessors were willing to ac- 
 cept for the rolling stock in the hands 
 of the receiver what in fact it was 
 worth irrespective of the price fixed 
 in the agreement and to allow on such 
 price what had been received by them 
 on account of rent the receivers would 
 be authorized to purchase the rolling 
 slock at its true value and pay for the 
 
 same in certificates. In Taylor v. 
 Philadelphia cfe R. R. Co. 9 Fed. Rep. 
 1, where the net earnings were suffi- 
 cient for the purchase of additional 
 rolling stock, the court refused to per- 
 mit the receiver to raise money for 
 such purpose by the creation of a car 
 trust. In Fosdick v. Schall, 99 U. 8. 
 235, 25 L. ed. 339, it was held that the 
 mortgagees under a contract of this 
 character took only such title under 
 their mortgage as the mortgagor held, 
 no more and no less; that the mort- 
 gagee's title was subject to the rights 
 of the vendor in the rolling stock, and 
 the decree of the court ordering a re- 
 turn of the rolling stock to the vendor 
 was proper. The receiver was di- 
 rected to pay, for tlie use of the cars, 
 out of the funds in his hands the sum 
 of $14,568.75, as rent for the period 
 the cars were in use before the ap- 
 pointment of the receiver, but on ap- 
 peal this order was reversed on the 
 ground that there was no fund sub- 
 ject to the payment of the rental ex- 
 cept the fund arising from the sale of 
 the mortgage property, to which fund 
 the rolling stock had in no way con- 
 tributed; that the vendor as to such 
 claim was but a general creditor. In 
 Meyer v. Western Car Co. 102 U. S. 
 1, 26 L. ed. 59, the doctrine of 
 Fosdick V. Schall, supra, was ad- 
 hered to so far as the title of the 
 vendor as against the mortgagee was 
 concerned. It was also held that the 
 receiver must pay, from the fund in 
 his hands to the credit of the suit, 
 compensation for the use of the cars 
 during the time they were in his pos-
 
 RECEIVERSHIP OF RAILWAYS. 
 
 493 
 
 contract price. In reference to the amount of rental which the 
 receiver will be required to pay for the use of rolling stock while 
 
 session, the amount being substan- 
 tially agreed upon. In Miltenberger 
 V. Logamport, C. & S. W. R. Co. 106 
 U. S. 286, 27 L. ed 117, the receiver 
 was authorized to pay as rental of a 
 leased line of road what such rental 
 was reasonably worth during the time 
 it was in the use of the receiver, and 
 not the contract price. In Kneeland 
 V. American Loan & T. Co. 136 U. S. 
 89, 34 L. ed. 379, one question before 
 the court was as to the method of as- 
 certaining the reasonable rental. It 
 was held that the reasonable value ir- 
 respective of use was the true meas- 
 ure and not the actual mileage. In 
 Thomas v. Western Car Co. 149 U. S. 
 95, 37 L. ed. 663, it was held that a 
 debt due a car company for the use of 
 rolling stock prior to the appointment 
 of a receiver is not a preferred debt 
 having priority over the mortgage 
 lien; and it is also held that the lessor 
 is not entitled to interest on a debt 
 due for rental from the receiver while 
 the property is in use by him. 
 
 In Sunflower Oil Co. v. Wilson, 142 
 U. S. 313, 35 L. ed. 1025, Mr. Justice 
 Brown says: "Upon taking po.'-session 
 of the property he was entitled to a 
 reasonable time to elect whether he 
 would adopt this contract and make 
 it his own, or whether he would in- 
 sist upon the inability of the company 
 to pay, and return the property in 
 good order and condition, paying of 
 course the stipulated rental for it so 
 long as he used it." Turner v. Rich- 
 ardson, 7 East, 335; Com. v. Franklin 
 Ins. Co. 115 Mass. 278; Sparhawk v. 
 Yerkes, 142 U. S. 1, 35 L. ed. 915. If 
 he elects to lake property subject to a 
 condition, he is bound to perform the 
 condition before he can obtain title to 
 the properly. He may, however, de- 
 
 cline to assume this obligation and re- 
 turn the property to the purchaser 
 upon complying with the terms of the 
 contract with respect to such return. 
 Southern Exp. Co. v. Western M. C. R. 
 Co. 99 U. S. 191, 25 L. ed. 319. 
 
 In Radehaughv. Tacoma &P. R. Co. 
 8 Wash. 570, it is held that, under the 
 laws of Washington (Gen. Stat. 1646 
 etseq.), a mortgage upon the real estate 
 of a railroad and purporting to cover 
 the rolling slock also does not bind 
 the latter class of property when the 
 instrument is executed and recorded 
 as a real-estate mortgage and does not 
 comply with the formalities in the ex- 
 ecution of a chattel mortgage. It 
 is also held that the appointment 
 of a receiver of a railroad corporation 
 has the same effect in law as though 
 the creditors whom he represents had 
 taken possession of the rolling stock 
 under legal proceedings and the right 
 of the morlgagee to take possesion of 
 the rolling stock does not give the 
 mortgagee any priority over creditors 
 when its right of po-ssession accrues 
 subsequent to the appointment of the 
 receiver. 
 
 In Tliomas v. Western Car Co. 149 
 U. S. 95, 37 L. ed. 663, a debt due 
 from a car company for rental of cars 
 prior to the commencement of a suit 
 to foreclose a mortgage on the road 
 and the appointment of a receiver, is 
 held not to be a preferred debt hav- 
 ing priority over the mortgage debt. 
 It was also held that where a corpo- 
 ration for the manufacture and sale 
 of cars deals with a railroad company 
 whose road is subject to a mortgage 
 securing outstanding bonds, the holder 
 of a claim under such contract occu- 
 pies a very different position from 
 workmen and employees and must be
 
 404 RECEIVERSHIPS. 
 
 retained by him, tliout;ii i"i-e(|ucntly passed upon by the courts, 
 ]ias not, as yet, met with such uniformity of treatment as renders 
 it possible to fix definitely the nnderlyint; principles 2;overning 
 the matter. It would seem, however, that a careful examination 
 of the cases will establish the fullowiiio- propositions as reasonably 
 well settled : 
 
 (a) The receiver not being required to adopt the contract as an 
 entirety, and exercising his discretion by refusing to adopt it, 
 need not adopt the terms of payment, but must in erpiity pay a 
 reasonable price for the use of the property while he re- 
 tains it. 
 
 (b) If in the exercise of his discretion he adopts the contract as 
 an entirety he must pay the contract price. 
 
 (c) Even as between the original parties the contract price 
 stipulated d.)es not necessarily represent a just and equitable 
 rental value, the contract being intended as essentially a sale con- 
 tract in most cases rather than a lease. 
 
 (d) Tiie Tcndee-lessee being, as a rule, wholly unable to com- 
 plete his contract, the vendor-lessor is entitled to a return of his 
 property, and, on proper demand upon the receiver therefor and a 
 refusal, should be entitled to compensation for the use of the 
 
 regarded as contracting upon the re- and reserved the right, which was 
 sponsibility of the raihoad company never exercised, of purchasing the 
 and not in reliance upon the interpo- cars at tlie original cost at any time 
 silion of a court of equity. during the contract. The seller re- 
 in Fusdick V. Southwestern Car Co. served the right to rescind the con- 
 99 U. S. 256, 25 L. ed. 344, a car con- tract if the company failed to pay the 
 tract providing that the cars should interest on its bonds. The mortgagor 
 be the property of the seller until filed a bill to foreclose his mortgage, 
 paid for, it was held tliat the lien in which case a receiver was ap- 
 of the seller was not subordinated to pointed who took charge of the road 
 the lien of a pre existing mortgage. and used the leased cars in operating 
 In Meyer v. Western Car Co. 102 U. it. It was held that the contract was 
 S. 1, 26 L. ed. 59, it appeared that a binding between the parties, and the 
 railroad company, after executing a failure to record the contract did not, 
 mortgage to secure its bonds covering imder the Iowa statutes, render the 
 all the property it then possessed or cars subject to the lien of the raort- 
 might thereafter acquire, entered into gage; that the seller was entitled to 
 a written contract whereby it leased the possession of them and compen- 
 for a speeitic period, and at stipulated tion for their use by the receiver, pay- 
 sums payable monthfy, certain cars, able out of the funds in his hands.
 
 RECEIVERSHIP OF RAILWAYS. 
 
 495 
 
 property at the stipulated rental, on the principle that the re- 
 ceiver by his act makes the contract his own by adoption.' 
 
 ' In Farmers' Loan & T. Co. v. Clii- 
 eago <& A. R. Co. 42 Fed. Rep. 6, the 
 elle r, upon the abandonment of a re- 
 ceiver, petitioned the court for a return 
 of its cars within thirty daj's there- 
 after, said cans being sold under a car 
 trust contract. They were not re- 
 turned, but were continuously used 
 by the receiver without objection 
 from the bondholders or the trustee, 
 and payments were made upon the 
 rental. After a furtlier lapse of three 
 mouths a second petition was filed 
 slating the facts asking for a rule 
 on the receiver to pay the amount 
 due under the car trust contract, 
 and asking to have the same de- 
 clared a prior lien upon the rent- 
 als of the road as well as upon 
 the property embraced in the mort- 
 gages. It was held that the retention 
 and use of the cars by the receiver, 
 the bondholders taking no action, did 
 not amount to a conversion; that pe- 
 titioner was not entitled to payment 
 according to the terms of the lease 
 out of the corpus of the estate, but 
 only to a return of the cars within a 
 reasonable time if so demanded, and 
 a quantum meruit for the use thereof. 
 lint Stie MiUenberger y. Lor/ansjwrt, G. 
 & S. W. R. Co. lOG U. S. 280, 27 L. ed. 
 117; Burnham v. Bowen, 111 U. S. 770, 
 28 L. ed. 590. In Union Trust Co. v. 
 niiyiois M. R. Co. 117 U. S. 479, 29 
 L. ed. 979, it was held that car ren- 
 tals accruing before the receiver was 
 appointed are not entitled to be first 
 paid out of the corpus of the prop- 
 erty. 
 
 In Woodrujf v. Erie R. Co. 93 N. Y. 
 609, it is held that a receiver, by en- 
 tering into possession of and iteeping 
 leased property, manifested by an un- 
 e(iuivocal act his election to regard 
 
 the continuance of such lease as bene- 
 ficial for all the parlies interested, and 
 his intention to continue the interest 
 acquired by the railroad company un- 
 der such lease. He could not take 
 possession of the property, and enjoy 
 its use and occupation without in- 
 curring a liability for the payment of 
 the rent under the lease by which his 
 predecessor secured its collection. 
 The principles which govern the lia- 
 bility of an assignee of a lease seem 
 to be applicable to the case of a re- 
 ceiver, and he would be equitably 
 and legally chargeable with the pay- 
 ment of rent under a lease for such 
 time as he continued to occupy the 
 property demised. While it was com- 
 petent for him at any time to nego- 
 tiate anew and secure a modification 
 of the terms of the lease with the con- 
 sent of the various parties interested, 
 or to repudiate the lease and surren- 
 der the property, yet, not having done 
 so, he muse be held to continue his 
 acceptance under the terms and con- 
 ditions of the existing lease as to the 
 payment of rent thereon. See Mar- 
 tin V. B'ack, 9 Paige, 641, where the 
 same principle is applied to an exec- 
 utor who takes possession of leased 
 properly under a lease to his testator. 
 See also MiUenbcrf/er v. Logansport, 0. 
 & S. W. R. Co. 90 U. S. 286, 27 L. ed. 
 117. 
 
 In People v. National Trust Co. 83 
 N. Y. 283, a receiver was appointed 
 on the application of stockholders 
 over a railroad, and such receiver oc- 
 cupied leased premises from May 1, 
 1870, until February 1,1879, when he 
 abandoned possession, having paid 
 rent up to that time. Suhse(pK;nt to 
 the abantldnment the corporation was 
 dissolved and the receiver continued,
 
 496 
 
 RECEIVERSHIPS. 
 
 but p.n application was made by the 
 lessors for an order on the receiver to 
 pay rent accruing subsequent to bis 
 abandonment. It appeared that he 
 had paid ail admitted debts, and had 
 deposited a sum sullicient to pay all 
 disputed claims, including the rent 
 accrued and to accrue, upon the lease 
 in question, and that there was still 
 a large surplus distributable among 
 the stockholders. It was held that 
 the lessors were entitled to the relief 
 sought. 
 
 In Com. V. Franklin Ins. Co. 115 
 Mass. 278, it is said that the receivers 
 have elected to take possession and 
 assume the liability to pay the rent 
 according to the covenants of the 
 lease, if they retained it for the in- 
 terest of the creditors, but until 
 such election, or the doing of some 
 act which would, in law, be equiv- 
 alent to an election, they are not lia- 
 ble. As receivers they cannot be held 
 merely on the covenants, but become 
 liable solely by reason of their own 
 acts. Turner v. Richardson, 7. East, 
 835. It is also held that the payment 
 of a quarter rent by the receiver as a 
 compromise is not to be construed as 
 an election. To amount to an elec- 
 tion there must be some occupation 
 and use of, or some dealing and inter- 
 mingling with, the estate, or some 
 act, admission, or agreement which, 
 in terms, or by necessary implication, 
 indicates an election. Citing Cope- 
 land V. Stephens, 1 Barn. & Aid. 593; 
 Ansell V. Robson, 2 Cromp. & J. 610; 
 Hanson v. Stevenson, 1 Barn. & Aid. 
 303; Thomas v. Pcmherton, 7 Taunt. 
 206; mil V. Bohie, 8 Taunt. 325; Ex 
 parte Faxon, 1 Low. Dec. 404; Mar- 
 tin V. Black, 9 Paige, 611; Hoyt v. 
 Stoddard, 2 Allen, 442. 
 
 When, at the instance of a general 
 ere lltor, a receiver of a railroad com- 
 pany and its rolling stock is appointed 
 and with the latter its rolling stock 
 
 leased to the company with the right 
 of purchase, and there being a deficit 
 in the running of the road by the re- 
 ceiver, and the rental is not paid, and 
 the lessor takes possession of his roil- 
 ing slock, his claim for rent is not en- 
 titled to priority over the mortgage 
 on the foreclosure sale of the road 
 under the mortgage. Kneeland v. 
 American Loan <fe T. Go. 136 U. S. 
 89, 34 L. ed. 379. In this case Mr. 
 Justice Brewer, in speaking of the 
 granting of preferences over the mort- 
 gage, says: "The appointment of a 
 receiver vests in the couit no absolute 
 control over the property nnd no j en- 
 eral authority to displace vesied con- 
 tract liens. Because, in a few spci .- 
 tied and limited cases, this c mrt has 
 declared that unsecured claims weie 
 entitled to priority over mortgage 
 debts, an idea seems to have obtained 
 that a court appointing a receiver .- c- 
 quires power to give such prefeience 
 to any general and unsecured claims. 
 It has been assumed that a court ap- 
 pointing a receiver could rightfully 
 burden the mortgaged property for 
 the payment of any unsecured indebt- 
 edness. Indeed, we are advised that 
 some courts have made the appoint- 
 ment of a receiver conditional upon 
 the payment of all unsecured indebt- 
 edness in preference to the mortgage 
 liens sought to be enforced. Can 
 anything be conceived which more 
 thoroughly destroys the sacred ness of 
 contract obligations? One holding a 
 mortiXMge debt upon a railroad has 
 the same right to demand and expect 
 of the court respect for his vested 
 contract priority as the holder of a 
 mortgage on a farm or lot. So, when 
 a court appoints a receiver of railroad 
 property, it has no right to make that 
 receivership conditional on the pay- 
 ment of other than those few unse- 
 cured claims which, by the rulings of 
 this court, have been declared to have
 
 RECEIVERSHIP OF RAILWAYS. 
 
 497 
 
 an equitable priority. No one is 
 bound to sell to a railroad company 
 or to work for it, and whoever lias 
 dealings with a company whose 
 property is mortgaged must be as- 
 sumed to have dealt with it on the 
 faith of its personal responsibility, 
 and not in expectation of subsequently 
 displacing the priority of mortgage 
 liens. It is the exception, and not 
 the rule, that such priority of liens 
 can be displaced. We emphasize 
 this fact of the sacrcdness of contract 
 liens, for the reason that there seems 
 to be growing an idea that the chan- 
 cellor, in the exercise of his equitable 
 powers, has unlimited discretion in 
 this matter of the displacement of 
 vested liens." 
 
 In Re Oak Pits Colliery Co. L. R. 
 21 Ch. Div. 322, it is said that when 
 the liquidator retains the property for 
 the purpose of disposing of it, or 
 when he continues to use it, the rent 
 ought to be regarded as a debt con- 
 tracted for the purpose of winding 
 up the company and ought to be paid 
 in full, like any other debt or ex- 
 pense properly incurred by the liqui- 
 dator for the same purpose, and in 
 such case it appears that the rent for 
 the whole period during which the 
 property is so retained or used ought 
 to be paid in full, without reference 
 to the amount which could be real- 
 ized by a distress. Cf. Re Lundy 
 Granite Co. L. R. 6 Ch. 4G2; Re Brown, 
 Bayley,& Dixon, L. R. 18 Ch. Div. 649. 
 
 In Central Trunt Co. v. Wahai<h, St. 
 L. & P. R. Co. 32 Fed. Rep. 566, it 
 appeared that a railroad company 
 had promised the owner of a sawmill, 
 where one of its .switches was not used 
 for the receiving of freight, but only to 
 get sand for track repairing, that it 
 would take up lumber for him at that 
 point in certain quantities. A short 
 lime after the contract was made the 
 
 mill owner was notified that the road 
 would refuse to receive any more 
 lumber at the switch, and then the 
 road passed into the hands of the re- 
 ceivers. It was held that even if the 
 contract could not be terminated by 
 the company at its pleasure, the claim 
 for damages for its breach did not 
 entitle the mill owner to an allow- 
 ance against the property in the hands 
 of the receiver or out of the earnings 
 of the road in priority to the mortgage. 
 As to the payment of a reasonable 
 price, see Fanners' Loan & T. Co. v. 
 Chimgo & A. R. Co. 42 Fed. Rep. 6; 
 Coe V. New Jersey M. R. Co. 27 N. J. 
 Eq. 37; Miltenberger v. Logansport, C. 
 & 8. W. R. Co. 106 U. S. 286, 27 L. 
 ed. 117; Thomas v. Weslei'n Car Co. 
 
 149 U. S. 95, 37 L. ed. 663. 
 
 As to the paj'ment of the contract 
 price, see Farmers' Loan d: T. Co. v. 
 Northern P. R. Co. 58 Fed. Rep. 
 257; Fosdick v. Schall, 99 U. S. 235, 
 25 L. ed. 339; Fosdick v. Southwestern 
 Car Co. 99 U. S. 256, 25 L. ed. 314; 
 Union Trust Co. v. Illinois M. R. Co. 
 117 U. S. 434, 29 L. ed. 963; Peoria & 
 P. U. R. Co. V. Chicago. P. & S. W. 
 R. Co. 127 U. S. 200, 32 L. ed. 110; 
 Kneeland v. American Loan & T. Co. 
 136 U. S. 104, 34 L. ed. 385; Sunflower 
 Oil Co. V. Wilson, 143 U. IS. 313, 35 L. 
 ed. 1025; United States Trust Co. v. 
 Wabash W. R. Co. 150 U. S. 287, 37 
 L. ed. 1085. 
 
 As to mode of ascertaining what is 
 reasonable rental, see Kneeland v. 
 American Loan & T. Co. supra. 
 
 As to rentals generally, see Taylor 
 V. Philadelphia & R. R. Co. 9 Fed. 
 Rep. 1; Meyer V. Western Car Co. 102 
 U. S. 1, 26 L. ed. 59; Quincy, M. & 
 P. R. Co. V. Humphreys, 145 U. S. 82, 
 36 L. ed. 632; St. Joseph & St. L. R. 
 Co. V. nnmphreys, 145 U. S. 105, 36 
 L. ed. 640; Seney v. Wabash W. R. Co. 
 
 150 U. S. 310, 37 L. ed. 1092; Farm- 
 
 32
 
 498 
 
 RECEIVERSHIPS. 
 
 § 281. Claims not preferential. 
 
 There is a class of uiipreferred claims wliicli are not considered 
 as having any special equitable features and are not entitled, 
 therefore, to preferential payment from the income or corpus of 
 the mortjrao-ed property in priority to niortga<^e liens. This 
 class, of course, is extensive and embraces all claims not preferen- 
 tial and not secured by mortgage, and embraces such as (a) ad- 
 vances made to complete the road ;' (b) damages occasioned by 
 fire ;" (c) attorneys' fees earned before appointment ;' (d) articles 
 sold to the company after the mortgage is given ;* (e) locomotives 
 
 ers' Loan c6 T. Co. v. NortJieni P. B. 
 Co. 58 Fed. Rep. 257. 
 
 Where the receiver is directed by 
 the courts to take possession of leased 
 property, as sleeping cars, with full 
 knowledge of the covenants, and he 
 continues the use of such property 
 until the expiration of the term, he 
 will be liable for necessary repairs, in 
 the same manner and to the same ex- 
 tent as the lessee. Easton v. Houston 
 <fe T. C. R. Co. 38 Fed. Rep. 784. 
 
 The mere appointment of a receiver 
 for a railway company is not a breach 
 of a contract by the company for the 
 purchase of goods so as to relieve the 
 other party to the contract from the 
 necessity of performing before bring- 
 ing an action for breach of the con- 
 tract. Diamond State Iron Co. v. San 
 Antonio & A. P. R. Co. (Tex. Civ. 
 App.)33 S.W. 987. 
 
 ' In Kelly v. Qreen Bay & M. R. Co. 
 5 Fed. Rep. 846, a claim for advances 
 made to a railroad company for the 
 purpose of completing the construc- 
 tion of the road will not be preferred 
 to the mortgage lien, unless the ad- 
 vances were made in consequence of 
 the requests, promises, and acts of the 
 bondholders. 
 
 «In Ililes V. Case, 14 Fed. Rep. 141, 
 damage occasioned by fire along the 
 line of road occasioned by a defective 
 locomotive is not such a claim as to 
 
 constitute part of the operating ex- 
 penses and has no equity superior to 
 that of the bondholders. 
 
 "In Blair v. St. Louis, H. & K. B. 
 Co. 23 Fed. Rep. 521, the claim of an 
 attorney for fees earned a year and a 
 half before the appointment of a re- 
 ceiver are not entitled to preference, 
 but where the annual salary of an at- 
 torney falls due only a short time be- 
 fore the road is placed in the hands of 
 a receiver he is entitled to priority. 
 
 *In United States Trust Co. v. New 
 York, W. S. & B. B. Co. 25 Fed. Rep. 
 800, where articles such as clocks 
 were furnished to be used in operating 
 the road which was sold subsequent 
 to the giving of the mortgage, a pref- 
 erence is not allowed. 
 
 In Bound v. South Carolina R. Go. 
 51 Fed. Rep. 58, it is held that inas- 
 much as the services of the attorney 
 had nothing to do with keeping the 
 road a going concern such fees were 
 not entitled to priority. 
 
 In Pennsylvania Finance Co. v. 
 Charleston, C. <& C. B. Co. 52 Fed. 
 Rep. 678, it was held that legal serv- 
 ices rendered to a railroad company in 
 maintaining before the courts the 
 validity of municipal aid bonds are 
 not of a character to take precedence 
 of the mortgage bonds. The fact 
 that such services resulted in benefit 
 to the bondholders will not justify the
 
 RECEIVEP.SIIIP OF RAILWAYS. 
 
 499 
 
 sold more than six months prior to the appointment.' (f) In the 
 matter of construction to be given to car trust contracts or leases 
 the rule is not uniform but the weight of authority would seem 
 to be that the law of the state where the property is situated 
 governs.' AVhether they will be construed as leases or as condi- 
 
 (lisplacing of the latter's lien when 
 they were not parties to the contract 
 of employment. See also Pennsylva- 
 nia Finance Co. v. Charleston, C. & G. 
 R. Go. 52 Fed. Rep. 52G; Central 
 Trust Go. V. Valley R. Co. 55 Fed. 
 Rep. 903. 
 
 ' In Mancliester Locomotive Works v. 
 Truesdale, 44 Minn. 115, 9 L. R. A. 
 140, where, more than six months after 
 the sale of locomotives, the road was 
 placed in the hands of a receiver on 
 application of the mortgage bond- 
 holders to foreclose a mortgage given 
 long before the sale and covering all 
 the railroad property, both real and 
 prospective, including its earnings, it 
 was held that the debt was properly a 
 general debt of the corporation and 
 not incurred for current expenses 
 proximately connected with the opera- 
 tion of the road where the receiver 
 and the court refused to give the 
 claim a preference over the bond- 
 holders. 
 
 In Addison v. Lewis, 75 Va. 701, it 
 is held that the claims which are enti- 
 tled to preference are con fined to out- 
 standing debts for labor, supplies, 
 equipments, or permanent iniprove- 
 ments of the mortgaged property, 
 such as may under the circumstances 
 appear to be reasonable, but the 
 claims of general creditors can never 
 take priority over the mortgage cred- 
 itors except where it is shown that 
 the general creditors have, by prin- 
 ciples of the courts of equity, a supe- 
 rior equity to the lien creditor; that 
 each claim must be determined upon 
 the particular facts showing the par- 
 ticular equity. But see Union Trust 
 
 Co. V. Morrison, 125 U. S. 591, 31 L. 
 ed. 825, where, after judgment was 
 rendered against the surely on an in- 
 junction bond, he intervened and 
 asked the protection of the court as 
 to his claim as against the mortgage 
 bondholders. 
 
 ^ In Green v. Van Bu.^kirk, 72 U. S. 5 
 Wall. 307, 18 L. ed. 599, it is held that 
 the liability of personal property to be 
 sold under writ must be determined 
 by the law of the state where the 
 property is situated, notwithstanding 
 the domicil of all the claimants to 
 the property may be in another state. 
 Title to personal property must be 
 determined by the law of the state 
 where the proceedings are had in re- 
 gard to the levy and sale thereof. 
 Mr. Justice Miller in this case says, 
 "But after all this is a mere principle 
 of comity between the court which 
 must give way where statutes of the 
 country where the property is situated, 
 or the established policy of its laws, 
 prescribe to its courts a different rule. 
 No one can seriously doubt that it is 
 competent for any state to adopt such 
 a rule in its own legislation since it 
 has perfect jurisdiction over all prop- 
 erty, personal or real, within its ter- 
 ritorial limits. Every nation having a 
 right to dispose of all tlie property 
 actually situated within it, has (as has 
 been often said) a right to protect it- 
 self and its citizens against the in- 
 equalities of foreign laws which are 
 injuriousto their interests." And Chan- 
 cellor Kent, in commenting on the law 
 of contracts, says: "Upon this .subject 
 of conflicting laws it may be gener- 
 ally observed that there is a stub-
 
 500 
 
 RECEIVERSHIPS. 
 
 tional sales turns upon the fact as to whether the rio;hts of cred- 
 itoi's are involved, and, if so, then such contracts are fraudulent or 
 at least not enforceable as to third parties.' 
 
 § 282. Extent of power of railway veceiver. 
 
 The power of a railway receiver embraces, in addition to the 
 ordinary duty of preservin*^ the property, the additional duties of 
 
 born principle of jurisprudence that 
 will often intervene and act with con- 
 trolling efficacy. This principle is 
 that where the lex loci contractus and 
 the lex fori as to conflicting rights ac- 
 quired in each come in direct collu- 
 sion, the comity of nations must yield 
 to the positive law of the land." 
 
 In the case of Milne v. Moreton, 6 
 Binn. 361, the supreme court of Penn- 
 sylvania says: "Every country has a 
 right of regulating the transfer of all 
 property within its territory; but when 
 no positive regulation exists, the 
 owner transfers it at his pleasure." 
 Cf. Lanfear v. Summer, 17 Mass. 110; 
 Story. Conf . L. § 390. The general 
 rule no doubt is, that in the absence of 
 any local law or policy, transfers of 
 personal property will be respected by 
 the courts of the country where the 
 property is located. But see Taylor v. 
 Boardman, 25 Vt. 589; Ward v. Mor- 
 rison, 25 Vt. 593; Emerson v. Par- 
 tridge, 27 Vt. 8; Olivier v. Townes, 2 
 Mart. (N. S.) 93. Cf. Herveyv. Rhode 
 Island Locomotive Works, 93 U. S. 664, 
 23 L. ed. 1003; McCormick v. Hadden, 
 37 111. 370. 
 
 ' In McCormick v. Hadden, 37 111. 
 370, it was held that where the seller 
 delivered possession to the purchaser 
 which was coupled with an agreement 
 that the property is to be considered as 
 belonging to the seller until the pay- 
 ment of the purchase money, notwith- 
 standing such delivery of possession, 
 such agreement as to creditors of the 
 purchaser is fraudulent and void. 
 In Hervey v. Rhode Island Locomo- 
 
 tive Works, 93 U. S. 664, 23 L. ed. 
 1003, the doctrine of Green v. Vari Bus- 
 kirk, 72 U. S. 5 Wall.307, 18 L.ed. 599, 
 is affirmed, and it is held that the real 
 owner of personal property who vests 
 another to whom it is delivered with 
 an interest therein, must, if desirous 
 of preserving a lien on such property, 
 situated in Illinois, comply with the 
 requirements of the laws of that state. 
 And that,where personal property has 
 been sold and delivered, secret liens 
 treating the seller as its owner until 
 the payment of the purchase money 
 cannot be maintained in such state. 
 Such contracts are constructively 
 fraudulent as to creditors and the 
 property, so far as their rights are 
 concerned, is considered as belonging 
 to the vendee holding the possession. 
 The law in such case is not changed 
 by reason of the agreement assuming 
 the form of a lease, the real purpose 
 of the parties being looked to to deter- 
 mine the nature of the contract. See 
 also to the same effect Fosdick v. Schall, 
 99 U. S. 235, 25 L. ed. 339, and where 
 it is also held that as between the par- 
 ties, notwithstanding the statute, the 
 transaction is just what on its face it 
 purports to be, i. e., a conditional sale 
 with a right of rescission on the part 
 of the vendor in case the purchaser 
 shall fail in payment of his instal- 
 ments, a contract legal and valid as 
 between the parties, but made with 
 the risk, on the part of the vendor, 
 of losing his lien if it works a legal 
 wrong as to third parties. Murch v. 
 Wright, 46 111. 488.
 
 RECEIVERSHIP OF RAILWAYS. 501 
 
 a manager, and this carries with it the necessary power of properly 
 and adequately performing the appropriate functions pertaining 
 to his office. Assuming, as he does, under the direction of the 
 court, the exercise, for the time being, of the franchises of the 
 corporation, and at the same time taking upon himself the efficient 
 and economical management of the road, and charged, as he is, 
 with tlie duty of preserving the property from deterioration and 
 maintaining its integrity as a going concern, it is only possible 
 for him to do so by investing liim with a large measure of dis- 
 cretionary as well as plenary power adequate to the duties 
 imposed. His responsibility to the court, the parties, and the 
 public, necessarily implies power coextensive with duties of his 
 three-fold relationship, and more extensive than those pertaining 
 to the ordinary jpendente lite receivership. The receivership 
 property being in custodia legis, it is protected from in.terference 
 by execution, attachment, garnishment, or trustee process.' Of 
 course, it must be understood the power of the receiver emanates 
 from the court, he being in fact the hand of the court, or the in- 
 strumentality by which the will of the court is put into execution 
 and made effective.'* 
 
 § 283. General scope of his power. 
 
 The scope of power ordinarily exercised by the railway receiver 
 in the performance of the functions pertaining to his office may 
 be stated in general terms as follows : 
 
 (a) The preservation of railway property, whether at the in- 
 stance of the mortgagee, creditors, or stockholders, if necessity 
 implies the continued operation of the road as a going concern, 
 
 • Russell V. Texas & P. R. Co. 68 but the hand of the court appointing 
 
 Tex. 646; Richards v. People, 81 111. him, and holds, manages, and operates 
 
 551 ; Bell v. Chicago, St. L. & N. 0. R. the property under the orders and 
 
 Co. 34 La. Ann. 785; Robinson v. At directions of the court as itscustodian 
 
 lajUic & 0. W. R. Co. 66 Pa. 160; and not for or under the control of 
 
 Texas Trunk R. Co. v. Lewis, 81 Tex. the directors or shareholders of the 
 
 10. corporation. Uis managotnent is for 
 
 ' In Memphis & C. R. Co.v. Iloechner, the benefit of those ultimately entitled 
 
 67 Fed. Hep. 456, it is held that a re- under the decree of court. His acts 
 
 ceiver appointed by a court of equity are not the acts of the corporation, 
 
 to hold, manage, and operate an insolv- and his servants are not the agents or 
 
 ent railroad company is not the agent servants of the corporation. 
 of the insolvent railroad corporation,
 
 502 
 
 RECEIVERSHIPS. 
 
 and this in the very niiture of things enil)races all necessary con- 
 tracts for labor and snpplies such as will enaljle the receiver to 
 preserve the property for the benefit of the parties in interest, 
 and at tlie same time subserve the public interests." 
 
 (b) It is also a part of his duty Mdiich includes the necessary 
 power therefor to collect in all outstanding indebtedness due the 
 company.* 
 
 ' In LeMgli Coal S Nav. Co. v. Cen- 
 tral R. Co. 41 N. J. Eq. 1G7, it is held 
 tliat a receiver of an insolvent rail- 
 road company Las power to make 
 such contracts for labor and supplies 
 as are reasonably necessary for him 
 to perform the duties of bis appoint- 
 ment. And equity will enforce such 
 contracts against the trust. To the 
 same effect is Ex parte Carolina Nat. 
 Bank, 18 S. C. 289; Union Trust Co. 
 V. Illinois M. R. Co. 117 U. S. 436, 
 29 L. ed. 963; Clarke v. Central R. & 
 Bkg. Co. 66 Fed. Rep. 16; Piatt v. 
 Philadelpliia & R. R. Co. 65 Fed. Rep. 
 660; Phinizy v. Atigusta & K. R. Co. 
 62 Fed. Rep. 771; Continental Trust 
 Co. V. Toledo, St. L. & K. C. R. Co. 
 59 Fed. Rep. 514; Lehigh Coal & Nav. 
 Co. V. Central R. Co. 41 N. J. Eq. 167. 
 
 The ordinary outlays a receiver is 
 permitted to make are to keep the 
 road, buildings, and rolling stock in 
 repair, and such additional facilities 
 as the business may require. Extraor- 
 dinary outlays must receive the 
 sanction of the court. McLane v. 
 Placerville & 8. V. R. Co. 66 Cal. 606. 
 
 If the receiver in the operation of 
 the road creates an indebtedness, with 
 the consent of the lienholders, which 
 is beyond the income, it may be paid 
 from the proceeds of the corpus. 
 Hand v. Savannah cfe C. R. Co. 17 S. C. 
 219. 
 
 Traffic balances are necessary ex- 
 penditures. Langdon v. Vermont & C. 
 R. Co. 54 Vt. mZ;Woodrvffv. Erie R. 
 Co. 93 N. Y. 609; Central Trust Co. 
 
 V. Ohio 0. R. Co. 23 Fed. Rep. 
 306, 23 Am. & Eng. R. Cas. 666; 
 Philadelpliia Invest. Co. v. Ohio S N. 
 W. R. Co. 41 Fed. Rep. 378. 
 
 la Woodruffv. Erie R. Co. 93 N. Y. 
 609, it was held that the court had 
 full authority to direct how the rail- 
 road property should be managed 
 while in the possession of the re- 
 ceiver; that whatever might be the 
 rights of the various parties as between 
 themselves to priority in the distribu- 
 tion of the assets of an insolvent cor- 
 poration, such rights could affect 
 only the property remaining after the 
 liabilities created by the receivership 
 had been fully paid. 
 
 ' The receiver of a railroad may 
 properly, in exercise of his business 
 judgment, give an unusually low rale 
 in order to introduce into general use a 
 cheap and valuable article which, if 
 brought into general demand, would 
 add to the freight receipts of the road 
 handling it. Clarke v. Central R. <fc 
 Bkg. Co. 66 Fed. Rep. 16. 
 
 In Langdon v. Vermont & C. R. Co. 
 54 Vt. 593, it is held that where a 
 court of equity charges receivership 
 property on behalf of bona fide credi- 
 tors with an equitable lien, the equita- 
 ble charge does not arise from nor 
 depend upon the contract relation of 
 the parties, but solely from the act of 
 the court. 
 
 In Bank of Montreal v. Chicago, G. 
 &W. R. Co. 48 Iowa, 518, it was held 
 that the receiver had no power to 
 issue certificates in payment for ma-
 
 RECEIVERSHIP OF RAILWAYS. 
 
 503 
 
 (c) And reduce to his possession the property of tlie company 
 in the possession of or held by persons or corporations for its 
 benefit and use.' 
 
 (d) lie may disaffirm the unlawful acts of the ofhcers and 
 directors of the company.^ 
 
 (e) He may also restrain the performance of illegal acts which 
 have the effect of rendering the title and rights to the receiver- 
 ship property of less value.^ 
 
 terial until such material had been 
 furnished, and, haviDg issued certifi- 
 cates for material contracted to be 
 delivered, but which in fact never 
 was delivered, such certificates were 
 void. 
 
 In Re Seattle, L. S. & E. R. Co. 61 
 Fed. Rep. 541, it is held that a re- 
 ceiver of a railroad company is not 
 bound by an agreement made before 
 his appointment between the railroad 
 company and its employees whereby 
 the latter are not to be discharged 
 except for cause, to be determined by 
 arbitrators. 
 
 ' In Terry V. Bamberger, 14^ Blatchf. 
 234, it was held that a receiver had a 
 right of action against one for con- 
 version of the property of the com- 
 pany made prior to his appointment. 
 
 2 In Warden v. Union P. R. Co. 103 
 U. S. 651. 26 L. ed. 509, it is held that 
 the directors of a corporation were 
 subject to the obligations which the 
 law imposes upon trustees and agents 
 and cannot therefore, with respect to 
 the same matters, act for themselves 
 and for it, nor occupy a position in 
 conflict with its interest. 
 
 In Flint & P. 31. R. Co. v. Dezrcij, 
 14 Mich. 477, it is said that the law 
 would not permit an agent to place 
 himself In a situation in which he 
 may be tempted to disreftard the in- 
 terest of his principal for his own 
 private gain. And to the same effect 
 is Kitchen v. St. lyouis, K. C. & N. R. 
 Co. 69 Mo. 224, as well as Slewarl v. 
 
 LelnghValley R. Co. 38 N. J. L. 504, 
 and the Great Luxembourg R. Co. v. 
 Magnay, 25 Beav. 586. 
 
 In European t&N. A. R. Co. v. Poor, 
 59 Me. 277, it is held that if a direc- 
 tor of a railroad company enter into a 
 contract for the construction of the 
 road he cannot then, or subsequently, 
 derive any benefit personally from 
 such contract. 
 
 In Bogle v. Plaitsburg & M. R. Co. 
 54 N. Y. 314, it is held that the officer 
 of a railroad company occupies the 
 position of a fiduciary character and 
 is incapacitated from dealing in his 
 own behalf in respect to the corpora- 
 tion properly or in respect to any 
 matters involving his powers and 
 duties as a director. He cannot be- 
 come the purchaser of property of 
 the corporation under an execution 
 sale, and in such case actual fraud or 
 actual advantage need not be shown. 
 This was in an action brought to fore- 
 close a mortgage of the railroad cor- 
 poration in which a receiver was 
 appointed. 
 
 In Paine v. Lake Erie S L. R. Co. 
 31 Ind. 283, 353, it is held that the 
 directors of a railroad company could 
 not acquire an interest in the profits 
 of a contract for the construction of 
 the road, such as would give them a 
 standing in a court of ecjuily. Tlieir 
 relations to liie company forbade such 
 an agreement. 
 
 ' In Davis v. Orag, 83 U. S. 16 Wall. 
 203, 21 L. ed. 447, suit was brought
 
 504 
 
 RECEIVERSHIPS. 
 
 (f) lie is empowered to defend all suits and proceedin^^s in the 
 interest of those wliom he represents, wlien in the exercise of a 
 sound judgment a defense will be available.' 
 I' (e;) lie may make all necessary arrangements for the transaction 
 of the business of a common carrier, including accommodations 
 with connectino; lines." 
 
 to enjoin the Memphis, E. & P. R. Co. 
 from disposing of its effects, in which 
 action a receiver was appointed and re- 
 quired to take possession of the money 
 and assets, real and personal, of every 
 kind belonging to the railroad com- 
 pany, and subsequently an order was 
 made that the receiver should be au- 
 thorized and empowered to defend 
 and continue all suits brought by or 
 against the railroad company before 
 or after his appointment, and a suit 
 was instituted by the receiver in his 
 own name to enjoin the defendants 
 from all illcgiil acts which the bill 
 alleges, if done, would render the 
 rights and title of the company to its 
 property of greatly diminished value, 
 if not wholly worthless. The court 
 says: "We think it is competent for 
 him to perform this function in the 
 mode he has adopted. The decree in 
 the case wherein he was appointed 
 expressly authorizes him to sue for 
 that purpose in his own name. The 
 order was made by a court of ade- 
 quate authority and in the regular ex- 
 ercise of its jurisdiction." The pro- 
 ceeding by the receiver was held to 
 be auxiliary to the original suit. The 
 court further says: " In the progress 
 and growth of equity jurisdiction it 
 has become usual to clothe such offi- 
 cers with much larger powers than 
 were formerly conferred. It is not 
 unusual for courts of equity to put 
 them in charge of railroads or com- 
 panies which have fallen into finan- 
 cial embarrassments, and require 
 them to operate such road until the 
 
 difficulties are removed or such ar- 
 rangements are made that the roads 
 can be sold with the least sacrifice of 
 the interest of those concerned. 
 
 1 In Bartlett v. Keim, 50 N. J. L. 
 2C0, it is held that a receiver of a rail- 
 road has the right to set up, as a de- 
 fense against a suit for injuries sus- 
 tained from negligence in running 
 the trains by such receiver, the stat- 
 ute of limitations. 
 
 "^ In Biers v. Wabanh, St. L. & P. R. 
 Co. 34 Fed. Rep. 244. 35 Am. & Eng. 
 R. Cas. 646, it was held to be the 
 duty of a receiver of a railroad, who 
 controls its operation and who is no 
 less a common carrier because the 
 property is in the custody of the court, 
 to receive and transport cars and 
 freight, and to furnish accommoda- 
 tions to connecting lines to the same 
 extent and in the same manner as 
 arc the proper officers of railroad com- 
 panies. The court say: " His rights 
 and duties are those of a carrier. He 
 is bound to afford to all railroad com- 
 panies whose lines connect with his 
 equal facilities for the exchange of 
 traffic. It is his duty to receive from 
 and deliver to other connecting roads 
 both loaded and empty cars. He can- 
 not discriminate against one road by 
 maintaining a policy of noninter- 
 course with it." See also Chicago, B. 
 & Q. R. Co. v. Burlington, C. R. & 
 N. R. Co. 34 Fed. Rep. 481. 
 
 In Pldladelphia Invest. Co. v. Ohio 
 & N. W. R. Co. 41 Fed. Rep. 378, 
 where a receiver of a railroad com- 
 pany made an arrangement for the
 
 RECEIVERSHIP OF RAILWAYS. 
 
 505 
 
 (li) He cannot be compelled to complete the unfinished con- 
 tracts of the corporation if not ad van tao^eous to the estate;' but 
 the rule is otherwise if the contract is performed upon one side," 
 
 transportation of freight and passen- 
 gers with another railroad company 
 over the line of his road, and there 
 was nothing making the arrangement 
 obligatory on either party for any 
 stated period of lime, it was held that 
 the receiver may terminate the ar- 
 rangement at will without previous 
 notice. 
 
 ' In Southern E.rp. Co. v. Wei^tcrn N. 
 C. R. Co. 99 U. S. 191, 25 L. ed. 319, 
 it appeared that a contract was made 
 between the express company and 
 the railroad company by which the 
 latter should give the former the 
 necessary facilities for the transaction 
 of all its business upon the road, for- 
 ward without delay by the passenger 
 trains both ways, haul the express 
 matter that should be offered, in con- 
 sideration for which the express com- 
 pany was to loan to the railroad com- 
 pany twenty thousand dollars to be 
 expended in repairs and equipments 
 for the road, the contract to continue 
 for the period of one year, and until 
 the principal and interest of the debt 
 should be fully paid. This contract 
 the receiver refused to carry out, and 
 a bill for specific performance was 
 filed again.st him. The court refused 
 to grant the prayer of the petition on 
 the ground that the road was in the 
 hands of a receiver in a suit brought 
 by the bondholders to foreclose their 
 mortgage; that the express company 
 had no lien; that it was simply a con- 
 tract for the transportation of persons 
 and property over the road, and the 
 specific performance by the receiver 
 would be a form of satisfaction or 
 payment which tiie receiver could not 
 be required to make. The court say: 
 "As well might he be decreed to sat- 
 
 isfy appellant's demand by money as 
 by the service sought to be enforced. 
 Both belong to the lienholders and 
 neither can be thus diverted." 
 
 « In Central Trust Co. v. Ohio C. R. 
 Co. 23 Fed. Rep. 306, 23 Am. & Eng. 
 R. Cas. G66, the receiver was author- 
 ized to continue a pooling contract in 
 force at the time of his appointment. 
 The court say: "The existence of 
 this contract, it must be presumed, 
 was well known to those who are now 
 seeking to repudiate it; if not, it 
 might have been by the exercise of 
 the slightest diligence. In conse- 
 quence of casualties not foreseen at 
 the beginning it baseventuated in the 
 accumulation of the cash balance now 
 in controversy. The contract has 
 been fully executed as to the transac- 
 tions and business out of which that 
 balance has grown." As to the ques- 
 tion of an unperformed and executory 
 contract, the court say: "The ques- 
 tion now presented to me is not 
 whether an unperformed and execu- 
 tory contract shall be enforced, nor 
 whether damages shall be recovered 
 against a parly who refuses to operate 
 under it. It is whether one party 
 who has received all the expected ben- 
 efits to be derived from it shall ac- 
 count for the fruits of its perform- 
 ance, which, by its terms, belong to 
 another, and which, contrary to its 
 terms, it retains. The contract, 
 whether legal or not, was not binding 
 on the complainant or the receiver, 
 and if objected to in season, proper 
 instructions would have been given iu 
 reference to its recognition and adop- 
 tion. Failing to lake proper steps to 
 that end the receiver was necessarily 
 left at liberty to exerci.sc his own
 
 506 
 
 RECEIVERSHIPS. 
 
 or the receiversliip property has received tlie benefit of the con- 
 tract' 
 
 (i) He may adopt or refuse to adopt the nncxi)ired leases of 
 the corporation, and is entitled to a reasonable time in which to 
 exercise his option." 
 
 judgment and discretion in reference 
 to it. The contract itself was a cus- 
 tomary one among railroads, and the 
 receiver believed it to be reasonable 
 and fair, and that it was expedient to 
 continue it in force. This was done 
 with the result already stated. Good 
 faith requires that the proceeds aris- 
 ing from its operation, and which, by 
 its terms, belonged to the petitioner, 
 should be paid over to it without re- 
 gard to the question now made as to 
 the original validity of the contract." 
 ' In Easton v. Hoiiston & T. C. E. 
 Co. 38 Fed. Rep. 784, where the receiver 
 was authorized to take charge of all 
 the company's property including 
 leases, and carry on the road, and 
 have the use and benefit of certain 
 sleeping cars with knowledge of the 
 terms of a lease under which the cars 
 were held and used, it was held that 
 the receivers became the assignees of 
 the railroad company, and'were bound 
 to perform the covenants of the lease 
 as to the care and terms of the leased 
 cars. It appeared that the receiver 
 used the leased cars, operated the 
 same, and enjoyed all the advantages 
 thereof for the benefit of the trust 
 fund, and were thereby legally and 
 equitably obligated to perform the 
 several covenants of the railroad com- 
 pany. The lease in this case was an 
 entirety and of necessity an assignment 
 and the assumption thereof was of 
 the whole and not any particular part. 
 Cf. Woodruff V. Erie R. Co. 93 N. Y. 
 619; Dorrance v. Jones, 27 Ala. 630; 
 Pufjdey V. Ailcin, 11 N. Y. 494; Sut- 
 liffy. Atwood. 15 Ohio St. 186; People, 
 Qrisskr, v. Dudley, 58 N. Y. 323. 
 
 *In Central Trust Co. v. WabasJi, St. 
 L. & P. R. Co. 34 Fed. Rep. 259, it 
 was held that the mere fact of taking 
 possession of the leased lines forming 
 a continuous road over which the re- 
 ceivers were appointed did not muke 
 the receivers assignees so as to make 
 the rentals due under such leases prior 
 to the mortgages. See also Central 
 Trust Co. v. Wabash, St. L. <& P. R. 
 Co. 46 Fed. Rep. 26; Park v. New 
 York. L. E. & W. R. Co. 57 Fed. Rep. 
 799; New York, P. & 0. R. Co. v. New 
 York, L. E. & W. R. Co. 58 Fed. Rep. 
 268. In the last-named case it was also 
 held that the use of a leased line for a 
 considerable period did not work an 
 adoption where the lessor had not de- 
 manded a surrender. Ames^j. Union 
 P. R. Co. 60 Fed. Rep. 966; Central 
 7'rust Co. V. Charlotte, C. <& A. R. Co. 
 65 Fed. Rep. 264. 
 
 In Quiacy, M. & P. R. Co. v. Humph- 
 reys, 145 U. S. 82, 36 L. ed. 632. it 
 was held that the receivers, by the oc- 
 cupation of the road under the order 
 of the court, were not obliged to pay 
 rental under a lease made with the 
 insolvent corporation. The court 
 adopts the rule established in bank- 
 ruptcy matters that a reasonable time 
 is allowed to the receivers to ascertain 
 the value of the lease before exercis- 
 ing their election; that in such case 
 receivers will not be required without 
 their consent to take that which will 
 charge the estate with a burden. 
 Glenny v. Langdon, 98 U. S. 20, 25 L. 
 ed. 43; American File Co. v. Qarrett, 
 110 U. S. 288, 28 L. ed. 149; Sparhawk 
 V. Yerkes, 142 U. S. 1, 35 L. ed. 915; 
 Martin v. Black, 9 Paige, 641; Com.
 
 RECEIVERSHIP OF RAILWAYS. 507 
 
 § 284. Limitations on receiver's power. 
 
 Tlie receivership property being held by the receiver in behalf 
 of mortgagees, creditors, or stockholders, and thus impressed witii 
 a species of trust relationship, it follows that there must of neces- 
 sity be certain limitations upon his power in his dealings there- 
 with. All his contracts, likewise, are made with reference to 
 the receivership fund or property in his custody, and the 7'es or 
 the income is impressed with the ultimate payment of all indebt- 
 edness incurred in the management of the road. Hence it is 
 that the rule has become well settled that all persons dealing 
 with the receiver in his official capacity must do so with the 
 knowledge, and are chargeable with notice, of the limitations on 
 his power.' If his contracts and transactions have not received 
 in advance the sanction of the court, they are at all times subject 
 to the annulment of the court as not being for the best interests 
 of the estate. Occupying as he does a fiduciary relationship, he 
 is not permitted to become personally interested in the receiver- 
 ship property, or make contracts in his official capacity resulting 
 in his personal gain.'^ Operating the road, in one sense, in the 
 interest of the public, he cannot make unjust discrimination as to 
 freight rates,^or form pooling arrangements for discriminating pur- 
 poses.* He has no discretionary power as to the i)ayment of the 
 corporate debts from the assets or earnings of the road.^ He has 
 
 Y. Franklin Ins. Co. 115 Mass. 278: case it was held that the receiver re- 
 
 Berry v. Gillin, 17 N. H. 9; Re Oak taiuing and using the cars made him 
 
 Pita Colliery Co. L. R. 21 Ch. Div. liable for the rental according to the 
 
 822; Sunflower Oil Co. v. Wiltion, 142 terms of the lease. 
 
 U. S. 313, 35 L. ed. 1025. ' Slate v. Edgefield & K. R. Co. 6 
 
 la DaioHon Mfg. Co. v. Brunswick & Lea, 353. 
 
 A. R. Co. 51 Ga. 136, it was held that '^ Farley v. St. Paul, M. tfc M. R. Co. 
 
 where the contract between themanu- 4 McCrary, 138. 
 
 facturing company and the railroad ^ Biers v. Wabash, St. L. dt P. R. Co. 
 
 company was rescinded for nonpay- 34 Fed. Rep. 244, 35 Am. & Eng. R. 
 
 ment of the money stipulated, the Cas. 64G; Uandy \. Cleveland & M. R. 
 
 railroad company was liable for rent Co. 31 Fed. Rep. 0s9. 
 
 and fordamages to the cars while used, * Missouri P. R. Co. v. Te.ras & P. 
 
 on the ground that it could not be R. Co. 31 Fed. Rep. 862, 28 Am. & 
 
 presumed to keep and use the cars Eug. R. Cas. 1, 
 
 and not pay for Iheni. ^ Ellis v. Boston, II. dc E. R. Co 107 
 
 Farmers' Loan & T. Co. v. Chicago Mass. 1. 
 & A. R. Co. 42 Fed. Rep. 6. In this
 
 508 
 
 RECEIVERSHIPS. 
 
 no power to appropriate receiversliip funds in the promotion or 
 defeatini^ of parallel lines of road,' or to grant permission to an- 
 other road to cross his line of road,'' or to contract for municipal 
 aid in buildinoj, completing, or equipping a road,' or lease the 
 receivership road,^ and unless specially authorized cannot contract 
 delUs on the faith of tlie receivership property," and as a rule his 
 power is confined to the property in litigation/ lie has no 
 power to grant an animal pass for life," and has no power to lease 
 for a term of years general offices and thereby bind his successors 
 or the property without the sanction of the court.' 
 
 § 285. Liability of railway receivers. 
 
 The general liability of receivers lias been considered heretofore 
 and only the liability of railway receivers will be considered in 
 this connection in so far as their liability may be different from 
 that of ordinary receivers such as grows out of the varied and 
 more extended duties imposed upon them. The lial)ility of rail- 
 way receivers is measured by the functions and duties pertaining 
 to his office. Being a common carrier of passengers and property 
 and exercising the franchises of a corjjoration, he assuines corre 
 sponding duties to the public and the patrons of the road, and in 
 
 ' CoiDclrey v. Galveston, IT. & H. B. 
 Vo. 93 U. S. 353, 23 L. ed. 950. 
 
 UloiDlett V. New York, W. 8. & B. 
 R. Co. 14 Abb. N. C. 328. 
 
 ^ Smith V. McCtiUough, 104 U. S. 25, 
 26 L. ed. 637. 
 
 ■•Ill MeMinnville & M. R. Co. v. 
 Huggins, 3 Baxt. 177, it is held that a 
 receiver of a railroad company has 
 no power to lease the receivership 
 road so as to vest in the lessees an in- 
 terest in the road and its franchises, 
 which could not be devested by a sub- 
 sequent act of the legislature. 
 
 ^ In Hand v. Savannah & C. R. Co. 
 17 S. C. 219, it was held that claims 
 against the receiver of an insolvent 
 railroad company for moneys, ser- 
 vices, supplies, damages, and neces- 
 eary expenses of the management 
 cannot be paid from the proceeds of 
 the mortgaged property where such 
 
 proceeds were insufficient to pay the 
 mortgage debt; that, unless specially 
 authorized by the court to contract 
 debts on the faith of the property, the 
 receiver is restricted to the income 
 and profits of the road. 
 
 « In Noyes v. Rich, 52 Me. 115, it is 
 held that the receiver's right to cus- 
 tody of the property extends only to 
 the property which is the subject- 
 matter of the litigation, but the rule 
 is otherwise where the receiver is 
 appointed under a creditor's bill, in 
 which case he takes the whole es- 
 tate. To the same effect is Smith v. 
 McCullough, 104 U. S. 25, 20 L. ed. 
 637. 
 
 ' Martin v. Neio York, S. & W. B. 
 Co. 36 N. J. Eq. 109. 
 
 * Chicago Deposit Vault Go. v. Me- 
 Nulta, 152 U. S. 554, 38 L. ed. 819.
 
 RECEIVERSHIP OF RAILWAYS. 
 
 509 
 
 general is liable to the same extent, and his liability is o-overned 
 by precisely the same principles as are applicable to ordinary car- 
 riers. His relations to the public and to his employees are in no 
 manner limited or modified by reason of his official position or 
 trust relationship. It may be stated in general terms therefore : 
 (a) A receiver exercising the functions of a common carrier by 
 virtue of the franchises of a railway corporation should be held 
 amenable in his official capacity to the same rules of liability that 
 are applicable to the company while it exercises the same powers 
 in operating the road.' 
 
 ' In Klein v. Jcwett, 26 N. J. Eq. 
 474, the vice chancellor says: " I 
 think the rule may be considered set- 
 tled that where the injury results 
 from default or misconduct of a re- 
 ceiver appointed by the court of 
 equity while acting under the color 
 of authority of the court, — tliere being 
 no dispute as to the power of the 
 court to make the order under which 
 he claims to have acted, — the court 
 may, in its discretion, eilher take cog- 
 nizance of the question of the re- 
 ceiver's liability and determine it, or 
 permit the aggrieved party to sue at 
 law. But if the power of the court 
 is disputed the court has no choice; it 
 must assume exclusive jurisdiction 
 and inhibit the aggrieved person 
 from seeking redress against the re- 
 ceiver in any other tribunal. Any 
 other course when its jurisdiction is 
 assailed would be an abandonment by 
 the court of both its power and dig- 
 nity. Aston V. Heron, 2 Myl. & K. 
 890; Parker v. Browning, 8 Paige, 
 388. * * * It was not seriously dis- 
 puted that the receiver must be held 
 liable if actionable negligence was 
 shown. It would seem to be clear 
 that no person can be perniiltcd to 
 exercise the rights and power of a 
 common carrier, especially when they 
 embrace the franchise granted to a 
 railway corporation, except subject 
 
 to the duties and liabilities of a com- 
 mon carrier. Whether a receiver is 
 regarded as an officer of the law, or 
 the representative of the proprietors 
 of the corporation, or its creditors, or 
 has combined all these characters, he 
 is intrusted with the powers of the 
 corporation, and must therefore neces- 
 sarily be burdened with its duties and 
 subject to its liabilities. There can 
 be no such thing as an irresponsible 
 power, force, or authority without 
 being subject to. duty under any sys- 
 tem of laws framed to do justice. It 
 is an inseparable condition of every 
 grant of power by the state, whether 
 expressed or not, that it shall be 
 properly exercised, and that the 
 grantee shall be liable for injuries 
 resulting directly and exclusively 
 from his negligence in its use. Both 
 upon principle and authority I think 
 it must be held that a receiver oi)er- 
 ating a railroad under an order of a 
 court of equity stands in respect to 
 duty and liability just where the cor- 
 poration would were it operating the 
 road, and the question wliether or 
 not the receiver is liable for negli- 
 gence must be tested by the same 
 rules that would be applied if the 
 corporation was the actual party de- 
 fendant before the court." lUiimcn- 
 tJuU V. liriu'ndvd, WH Vt. 402; Paige v. 
 iiiaitk, 'J8 Mass. 890.
 
 510 
 
 RECEIVERSHIPS. 
 
 To this rule thorc are the followiiic; exceptions : (/) Where a 
 liability is created by statute against the corporation itself which 
 
 In Ex parte Brown, 15 S. C. 518, it 
 was held that a passenger injured 
 upon a railway while in the hands of 
 a receiver was entitled to damages 
 for such injuries received and to be 
 paid out of the fund in court realized 
 from the earnings of the road during 
 the receivership in preference to mort- 
 gage or other debts. It is held it 
 cannot be denied that a company, 
 while managed by its own directors^ 
 is liable to demands of this kind, and 
 when managed by a receiver as an 
 oflicer of the court it is equally liable 
 out of its property to respond to un- 
 paid claims of this kind, whether the 
 cause of action arose before or after 
 the judgment of insolvi-ncy and ap- 
 pointment of a receiver. Ex parte 
 Johnson, 19 S. C. 493. 
 
 In 3Ieara v. Holbrook, 20 Ohio St. 
 137, it is held that a receiver of a rail- 
 road operating the same under the 
 order of court in the same manner as 
 a railroad company, and having the 
 exclusive control of the road and its 
 agents and employees in the business, 
 is answerable in his official capacity 
 to his employees and others for in- 
 juries sustained through the negligent 
 discharge of his duties by himself or 
 his agents where the railroad com- 
 pany, if it had been operating the road, 
 would have been liable. See also 
 Potter V. Bunnell, 20 Ohio St. 150, 
 where it is held that in an action for 
 Injuries against the receiver exercising 
 the franchises of the company it must 
 be determined by the principles ap- 
 plicable to a like action against the 
 company when it operates the road. 
 
 In Erioin v. Davenport, 9 Heisk. 44, 
 an employee was run over and killed 
 by a train of cars, and the receiver 
 was sued under the provisions of the 
 
 Tenn. Code for $10,000 damages. It 
 was held that a receiver under § 1101 
 of the Code is vested with the powers 
 and duties of the board of directors 
 in managing the affairs of the com- 
 pany and as a public agent of the 
 state; that where the public are 
 concerned receivers are subordinalo 
 agents of the state in the discharge 
 of their official duties, and are guilty 
 of wrong to third persons, they are 
 liable to the same extent as private 
 agents and are responsible for mis- 
 feasance but not for nonfeasance. 
 
 In Blumenthal v. Brainard, 38 Vt. 
 402, receivers were operating a rail- 
 way under the order of a court of 
 equity, and it was claimed that being 
 agents and officers of that court they 
 were subject to account only to that 
 court, and were entitled to protec- 
 tion in all matters growing out of 
 a performance of their duties as 
 receivers, and therefore could not 
 be made liable as a common carrier 
 or warehouseman, but the court held 
 that the mere fact that they were act- 
 ing as receivers under the appoint- 
 ment of a court of chancery could 
 not be recognized as a defense to a 
 suit at law for a breach of any obliga- 
 tion or duty which was fairly and 
 voluntarily assumed by them in mat- 
 ters of business conducted or carried 
 on by them while acting as such re- 
 ceivers. 
 
 In Lyman v. Central Vei-mont R. 
 Co. 59 Vt. 167, where it appeared 
 that the same person is receiver of 
 one railroad and lessee of another, 
 and both are operated by him to- 
 gether, the leased railway is not 
 receivership property, and an em- 
 ployee could maintain an action at 
 law against him without leave to
 
 RECEIVERSHIP OF RAILWAYS. 
 
 511 
 
 recover for injuries resulting from 
 the negligence of his servants in 
 operating the leased road. It is also 
 held that he would be liable as re- 
 ceiver for injuries resulting upon the 
 receivership property to the same ex- 
 tent as a railwaj' company itself. See 
 Sprague v. Smith, 29 Vt. 421; Blu- 
 menthal v. Brainard, supra; Newell v. 
 Smith, 49 Vt. 255; Paige v. Smith, 99 
 Mass. 191; Nichols v. Smith, 115 Mass. 
 332; Ballon v. Farnum, 9 Allen, 47; 
 Barter v. Wheeler, 49 N. H. 9; Lam- 
 phear v. Buckingham, 33 Conn. 237; 
 Kinney v. Crocker, 18 Wis. 74; Allen 
 v. Central B. Co. 42 Iowa, 683. 
 
 Receivers running a road under ap- 
 pointment of a court of chancery in 
 another state who act as common car- 
 riers, and are liable in actions at law 
 in the state in which appointed, may 
 be sued as common carriers, in Massa- 
 chusetts. Paige v. Smith, 99 Mass. 395; 
 Nichols v. Smith, 115 ]\Iass. 332. 
 
 In Ohio <& M. E. Co. v. Davis, 23 
 Ind. 553, it is said : "The court can- 
 not permit her possession to result in 
 wrong to one without fault, but upon 
 sullicient proof will grant the relief 
 to which the sufferer may be enti- 
 tled." It was further held that the 
 railroad company is not liable for an 
 act of negligence of the receiver hav- 
 ing possession of sucli road. 
 
 In Southern Exp. Co. v. Wenterji N. 
 C. R. Co. 99 U. S. 191, 25 L. ed. 319, 
 the receiver declined to carry out a 
 contract made by the railroad com- 
 pany over which he was receiver with 
 an express company, and a bill for 
 specific performance was filed by the 
 express company. 11 was held, first, 
 that the receiver was the only neces- 
 sary party defendant; and, .second, 
 that the transaction between tlie com- 
 panies was simply a contract for tran.s- 
 portation wliich created no lien, and 
 the spec! fie performance thereof would 
 be a form of satisfaction or payment 
 
 which the receiver could not be re- 
 quired to make. 
 
 In Harding v. Netlleton, 86 Mo. 658, 
 an action was brought in a state court 
 against the receiver of a railroad by 
 permission of the Federal court which 
 appointed him, for the breach of a 
 contract for the purchase of ties made 
 by the railroad before the appoint- 
 ment of a receiver, and it was held 
 that the judgment of the state court 
 could not be enforced against the prop- 
 erty of the corporation in the hands 
 of a receiver, but must be presented 
 to the Federal court for allowance 
 and that the latter would determine 
 the manner and time of paying the 
 judgment out of the a.ssets of the road. 
 
 In Sloan v. Central Iowa R. Co. 62 
 Iowa, 728, it is held that where the 
 receiver is operating a railroad under 
 the appointment and direction of a 
 court he is included under the terms 
 "persons owning or operating rail- 
 ways" in contemplation of g§ 1278 
 and 1307 of the Iowa Code, and 
 that such receiver, or rather the prop- 
 erty in his hands, is liable for the claim 
 of an employee for injuries received 
 through the negligence of coem- 
 ployees. 
 
 In Brown v. Brown, 71 Tex. 355, it 
 is held that the judgment for personal 
 injuries should be against the receiver 
 in his otlicial capacity, leaving the 
 matter of its enforcement to be deter- 
 mined by the court having jurisdic- 
 tion of the receivership which is in 
 view of the rights of all persons inter- 
 ested in the proper application of the 
 fund in the custody of tlie court. 
 
 In Missouri P. R. Co. v. Texas P. 
 R. Co. 30 Fed. Rep. 167. it is iu-ld 
 that where a receiver lias exclusive 
 charge of the management and of llic 
 employment of operatives and em- 
 ployees, the entire control of tlie com- 
 jtaiiy having passed to liie receivers 
 as fully as it was before exercised by
 
 512 
 
 RECEIVERSHIPS. 
 
 is in the nature of a personal or special obligation not assumed 
 by the receiver/ and {2) where contracts exist at the time of the 
 
 the officers of the road, the receiver 
 is answerable in his official capacity 
 for injuries sustained in the same 
 manner that the corporation would 
 have been liable. (See note). See also 
 Pope\ Cim, 30 Fed. Rep. 1C9; Cen- 
 tral Trust Co. V. Wabanh, St. L. & P. 
 R. Co. 30 Fed. Rep. 344. In this case 
 it is held that where, except for a 
 receivership, the rights of an inter- 
 venor would be determined by the 
 laws of the state in which he resides, 
 as interpreted by the supreme court, 
 the fact that a receivership has been 
 instituted should not be allowed to 
 operate to increase the intervenor's 
 rights. 
 
 In Ilonisby v. Eddy, 56 Fed. Rep. 
 461, the statute provided "every rail- 
 road company organized or doing 
 business in this state shall be liable 
 for all damages done to any employee 
 of such company in consequence of 
 any negligence of its agents or by any 
 mismanagement of its engineers or 
 other employees to any person susfain- 
 ing such damage." Under this stat- 
 ute it was held that a person injured 
 from the negligence of coemployees 
 was in no wise effected by the fact 
 that the railroad was in the hands of 
 a receiver and operated by him. 
 Union Trust Co. v. Thomason, 25 
 Kan. 1. 
 
 In Central Trust Co. v. Wabasli, St. 
 L. & P. R. Co. 26 Fed. Rep. 12, it is 
 held that the fact that a railroad is in 
 the hands of a receiver does not make 
 it any the less liable imder § 809 of 
 the Revised Statutes of ^lissouri for 
 double damages in killing stock. 
 
 In Cardot v. Barney, 63 N. Y. 281, 
 it is held that a receiver of an insol- 
 vent railroad company who is running 
 and operating its road in the absence 
 
 of evidence that he assumed to act 
 other than as assignee, or that he held 
 himself out as a carrier of passengers 
 other than as an officer of the court, is 
 not liable in an action for negligence 
 causing the death of a passenger 
 where no personal neglect is imputed 
 to him, either in the selection of his 
 agents or in the performance of duty, 
 and where the negligence charged 
 was that of a subordinate whom he 
 necessarily and properly employed in 
 compliance with the order of the 
 court. 
 
 In Thurman v. Cherokee R. Co. 56 
 Ga. 376, it is held that an employee 
 of a railroad company cannot main- 
 tain an action against the company 
 for personal injury sustained by him 
 while the road is in the hands of a re- 
 ceiver. See Henderson v. Walker, 55 
 Ga. 481. To the same effect is Camp v. 
 Barney, 6 Thomp. & C. 622, 4 Hun, 
 373; Metz v. Buffalo, G. & P. R. Co. 
 58 N. Y. 61. 
 
 ' In Ohio & M. R. Co. v. Fitch, 29 
 Ind. 498, it is held that where a rail- 
 road company, in answer to an action 
 to recover the value of animals killed 
 by their machinery, desires to set up 
 the fact that its road is in the posses- 
 sion and being operated by a receiver 
 of the Federal court, the answer 
 should be accompanied by the origi- 
 nal or a copy of the order of the 
 latter court for the appointment; and 
 it is further held that the mere ap- 
 pointment of a receiver with the 
 usual powers of a chancery receiver 
 does not relieve the railroad company 
 from liability to suit, and that the 
 receiver operates the road subject to 
 that liability. 
 
 In McKinney v. Ohio & M. R. Co. 
 22 Ind. 99, it is held that a railroad
 
 RECEIVERSHIP OF RAILWAYS 
 
 513 
 
 company is liable for stock killed by 
 its cars, although the road at the lime is 
 operated by a receiver. (See statute.) 
 In Louisville, N. A. & G. R. Co. v. 
 Cauhle, 46 Ind. 277, the same prin- 
 ciple is aftirmed. 
 
 In Ohio & M. It. Co. v. Eusnell, 
 115 111. 52, it is lield that in an action 
 against a railroad company to recover 
 double the value of a fence built by 
 the owner or occupant of the premises 
 adjoiuing the railroad right of way 
 after the neglect or refusal of the 
 company to build the same on notice 
 as required, it is no defense, so far as 
 the corporation is concerned, that its 
 property is in the hands of a receiver 
 or used by another party. It is said 
 that the appointment of a receiver 
 gives to him only the temporary man- 
 agement of its affairs, under the 
 direction of the court, and that the 
 corporation still exists and may exer- 
 cise its franchises, in so far as it does 
 not interfere with the rightful man- 
 agement of the receiver. 
 
 In Ennsan P. R. Co. v. Wood, 24 
 Kan. 619, the legislature has passed a 
 law requiring railroad companies to 
 fence their roads or be liable for any 
 stock killed by the trains. A receiver 
 of a corporation was appointed, and 
 after his discharge the property was 
 returned to the possession of the cor- 
 poration, but, while the posses.sion of 
 the receiver continued, stock belong- 
 ing to the plaintiffs was killed by the 
 railroad trains at a place where the 
 road was not fenced, and it was held 
 that an action might be maintained 
 against the corporation for the en- 
 forcement of the liability imposed by 
 the statute. The decision is based on 
 the ground that a statutory dut}' was 
 cast upon the company and for such 
 duty it is liable, whether property in 
 the hands of the company can be 
 reached or not. 
 
 33 
 
 Kan. Laws 1874, chap. 94, relating 
 to the killiug and wounding of stock 
 by railroads, applies to receivers oper- 
 ating a road, who have been appointed 
 by courts of competent jurisdiction. 
 Rouse v. Redinger, 1 Kan. App. 355. 
 
 In Turner v. Cross, 83 Tex. 218, 15 
 L. R. A. 262, it is held that a receiver 
 is neither property owner, charterer, 
 nor hirer of a railroad operated by 
 him, under article 2899 of the Revised 
 Statutes of Texas, prior to its amend- 
 m'ent April 11, 1892, and it is not 
 liable for any injury negligently in- 
 flicted upon and resulting in the death 
 of an emplo}'ee of a road; that when 
 receivers are lawfully apointed they 
 are not the representatives of the 
 company or persons whose property 
 may be placed in their management, 
 though it may in some cases be sub- 
 jected to liability for charges arising 
 under the permission of the court ap- 
 pointing him or from the negligence 
 of the receivers and their employees. 
 
 A railroad company is not liable 
 under the Texas statutes for claims 
 arising out of the management of the 
 road by receivers, upon the redeliv- 
 ery of the property to it, unless funds 
 were expended in betterments during 
 the receivership, or unless the prop- 
 erty returned to it is of a value equal 
 to or exceeding the claim. Missouri, 
 K. & T. R. Co. V. Wijlie (Tex Civ. 
 App.) 33 S. W. 771. 
 
 Where a statute makes a railroad 
 company liable for injury to an em- 
 ployee through the negligence of a 
 coemployee in the same line of em- 
 ployment, it is inapplicable to a re- 
 ceiver of the railroad. Campbell v. 
 Cook, 86 Tex. 630; Allen v. Dilling- 
 ham, 60 Fed. Rep. 176; Bonner v. 
 Franklin Co-Operative Asso. 4 Tex. 
 Civ. App. 166; Missouri, K. & T. R. 
 Co.v. Sioner, 5 Tex. Civ. App. 50. See, 
 contra, Texas & P. R. Co. v. Cox, 145
 
 614 
 
 RECEIVERSHIPS. 
 
 U. S. 593, 36 L. ed. 8i9. But this 
 depends upon the language of the 
 statute, and if the statute is broad 
 enough to embrace a receiver, he is 
 liable. Sloan v. Central Iowa R. Co. 
 63 Iowa, 728; Bond v. Slate, 68 Miss. 
 648; Rouse v. Eornsby, 67 Fed. Rep. 
 219; Hornsbysf. Eddy, 56 Fed. Rep. 
 461. 
 
 The Ohio statute giving a right of 
 recovery against a lessor railroad 
 company for wrongs and injuries 
 committed by the lessee company 
 does not give a right of action against 
 the lessor compuny for wrongs and 
 injuries committed by a receiver of 
 the lessee. Chamberlain v. New York, 
 L. E. cfcTF. R. Co. 71 Fed. Rep. 636. 
 A receiver operating a railroad un- 
 der the direction of a court of equity 
 is liable to an employee injured by 
 the negligence of acoemployee, under 
 Minn. Gen. Stat. 1894, g 2701, making 
 "every railroad corporation owning 
 or operating a railroad " liable for 
 such negligence. Mikkelson v. Trues- 
 dale (Minn.) 65 N. W. 260: 
 
 The liability of a receiver appointed 
 to conduct the business of a corpora- 
 tion, pending an action in a United 
 States court, upon a contract which 
 is still executory at the time of his 
 appointment, is not affected by 24 
 Stat, at L. 554, g^ 2, 8, providing 
 that such receiver shall manage the 
 property according to the require- 
 ments of the valid laws of the stale in 
 which the property is situated, in the 
 same manner as the owner would be 
 bound to do, as such provisions ren- 
 der him responsible only for things 
 occurring while he is in possession. 
 Scott V. Rainier Power & R. Co. 13 
 Wash. 108. 
 
 The Georgia statutes making re- 
 ceivers of railroad companies liable 
 for injuries to persons and property 
 caused by the running of cars on the 
 road, for which the road is liable as 
 
 common carrier by the ]aw8 of the 
 state, docs not make a receiver liable 
 for injuries to an employee knocked 
 from a moving train by striking a 
 structure beside the track, under Ga. 
 Code, § 2083, declaring that railroad 
 companies are liable as common car- 
 riers, and, as they have employees 
 who cannot control those running the 
 trains, they shall be liable to such 
 employees as to passengers for in- 
 juries arising from the want of care 
 and diligence of the train employees. 
 Central Trust Co. v. East Tennessee, 
 V. & G. R. Co. 69 Fed. Rep. 353, 357; 
 Baltimore Trust & O. Co. v. Atlanta 
 Traction Co. 69 Fed. Rep. 358. 
 
 In Texas & P. R. Co. v. Collins, 84 
 Tex. 121, suit was brought for the 
 death of the husband of the plaintiff 
 who was an employee of the railroad, 
 and it was held that the receiver 
 could not be held reliable for injuries 
 resulting in death unless the receiver 
 was primarily liable for such death 
 either under the common law or the 
 statutes. See Yoakum v. Selph, 83 
 Tex. 607. 
 
 In Dcck-cr v. Gardner, 124 N. Y, 
 834, 11 L. R. A. 480, it is held that 
 receivers pendente lite are officers of 
 the court merely and their functions 
 are limited to the care and preserva- 
 tion of the property commended to 
 their charge and possession, with no 
 authority except what is conferred 
 by the court, and do not represent the 
 corporation in its individual or per- 
 sonal character or supersede it in the 
 exercise of its corporate powers,except 
 in so far as the mortgaged properly 
 is concerned. In this respect, except 
 as to the possession and management 
 of the mortgaged property, thecorpora- 
 tion is free and unfettered to exercise 
 its franchises, and it was held that 
 with the particular cause of action set 
 out in the complaint the receiver had 
 no connection, and it could not possi-
 
 RECEIVERSHIP OF RAILWAYS. 
 
 515 
 
 receiver's appointment executory in their nature, which the court, 
 in the interest of the beneficiaries of the trust fund in the hands 
 of the receiv'Cr, will not require him to assume and carry out.' 
 
 (b) If a i*ailroad company is not in the management of its road 
 it cannot be held liable for the negligence of the receiver, who is 
 in such management.' 
 
 bly be charged upon the property in 
 the receiver's possession. This was 
 an action of trespass to which the re- 
 ceiver was made a party. 
 
 In PowelL v. Dayton, 8. <& G. B. Co. 
 16 Or. 33, it was held that in an action 
 for waste it is no defense to show that 
 at the time of the grievance com- 
 plained of the corporation was in the 
 hands of a receiver. 
 
 Neither a lessor nor lessee railroad 
 company is liable for wrongs and in- 
 juries done by receivers who have the 
 sole and exclusive management and 
 control of the property of both roads. 
 Chamberlain v. New Toi-k, L. E. & W. 
 R. Co. 71 Fed. Rep. 636. 
 
 ' In Central Trvst Co. v. Marietta & 
 N. G. R. Co. 51 Fed. Rep. 15, 16 L. R. 
 A. 90, it is held that a receiver ap- 
 pointed in a suit by the bondholders 
 to foreclose a mortgage on a railroad 
 could not be compelled to perform a 
 contract of the corporation, although 
 payment had been received on such 
 contract before the appointment of 
 the receiver. This decision is based 
 upon the ground that the enforce- 
 ment of such a contract against the 
 receiver would be equivalent to re- 
 quiring the repayment of the money 
 received by tlic corporation, and this 
 could not be done inasmuch as there 
 was no lien on such money so paid. 
 
 In Sontlicrn Exp. Co. v. Western N. 
 C. R. Co. 99 U. S. 191, 25 L. ed. 319, 
 the same principle is affirmed. See 
 Frankle v. Jackxon, 30 Fed. Rep. 398. 
 
 * In Pennsylvania R. Co. v. Jones, 
 155 U. S. 333, 39 L. ed. 176, it was 
 
 held that where a railroad was "in the 
 hands of a receiver, but the road was 
 managed and controlled by the agents 
 and employees of the company, and 
 the receiver's functions were restricted 
 to the receipt of its share of the net 
 earnings, the company was liable for 
 personal injury received by a passen- 
 ger upon the road. This decision 
 was based upon the case of ]ra«/a'«^- 
 ton, A. & G. R. Co. v. Bro7m, 84 U. 
 S. 17 Wall. 448. 21 L. ed. 675, where 
 it appeared that a railroad company 
 was run on a joint account of the 
 lessees on the Virginia end of the road, 
 and the receiver on the end in the 
 District. It was urged in that case 
 that the company was not liable for 
 anything done while the road was 
 operated by the lessees and the re- 
 ceiver, but Mr. .Justice Davis said: 
 "It is the accepted doctrine in this 
 country that a railroad corporation 
 cannot escape the performance of any 
 duty or obligation imposed by its char- 
 ter, or the general laws of the state, by 
 a voluntary surrender of its road into 
 the hands of lessees. The operation 
 of the road by the lessees does not 
 change the relations of the original 
 company to the public. It is argued, 
 however, that this rule is not applica- 
 ble where the proceeding, instead of 
 being voluntary, is compulsory, as in 
 the case of the transfer of possession 
 to a receiver by a decree of a court of 
 competent jurisdiction. Whether this 
 be so or not we are not called upon to 
 decide, because it has never been held 
 that the company is relieved from Ha-
 
 516 
 
 RECEIVERSHIPS. 
 
 (e) A receiver may make liimsolf personally liable for injuries 
 rcsiiltiiii^ from the use of defective machinery where he has 
 knowledo-e of the existence of such defects.' 
 
 (d) llo is liable in his official capacity, as a common carrier for 
 goods lost in shipment," and for injury occasioned by the careless- 
 ness and ne^liu'cnce of his servants.' 
 
 (e) lie will not be compelled to carry out an executory con- 
 
 bilily unless possession of the receiver 
 is exclusive, and the servants of the 
 road are wholly employed and con- 
 trolled by him. In this case the pos- 
 session was not exclusive nor were 
 the servants'subjocl to the receiver's 
 order alone. On the contrary, the 
 road was run on the joint account of 
 the lessees and the receiver, and the 
 servants employed and controlled by 
 them jointly. Both Avere, therefore, 
 alike responsible for the act com- 
 plained of, and, if so, the original com- 
 pany is also responsible for the serv- 
 ants under such an employment in 
 legal contemplation and are as much 
 the servants of the receiver as of the 
 lessees and receiver of the court." God- 
 frey V. Ohio & M. R. Co. 116 Ind. 30; 
 State V. Wabaxh R. Co. 115 Ind. 46C>; 
 Bell V. Indianapolis, C. <& L. R. Co. 53 
 Ind. 57; Mitz v. Buffalo, G. & P. R. 
 Co. 58 N. Y. 61; Turner v. Hannibal 
 d St. J. R. Go. 74 Mo. 602; Kansas <g 
 G. S. L. R. Co. V. Dorough, 73 Tex. 
 108; Ryan v. Hnys, 62 Tex. 42; Mem- 
 phis & L. R. R. Co. v. Stringfdlow, 44 
 Ark. 322; Thurman v. Cherokee R. Co. 
 56 Ga. 376; Davis v. Duncan, 19 Fed. 
 Rep. 477. 
 
 But the appointment of a receiver 
 does not relieve the company from the 
 payment of a tax upon gross receipts. 
 Philadelphia dc R. R. Co. v. Com. 104 
 Pa. 80. 
 
 The statute may, however, make a 
 corporation liable, though in the hands 
 of a receiver. Brockert v. Central 
 Iowa R. Co. 82 Iowa, '669;McNuUav. 
 
 Ensch, 134 111. 46; McNultaw. Lock- 
 ridge, 137 111. 270. 
 
 If the corapuny is in the manage- 
 ment of the road and a receiver in 
 receipt of the income, the company is 
 liable. Pennsylvania R. Go. v. Jones, 
 155 U. S. 350, 39 L. ed. 182. And 
 see Washington, A. & G. R. Co. v. 
 Brown, 84 U. S. 17 Wall. 445, 21 L. 
 ed. 675; Clark v. Dyer, 81 Tex. 339; 
 Louistille, N. A. <& C. R. Co. v. Canble, 
 46 Ind. 277; Central Trust Co. v. Wa- 
 bash, St. L. & P. R. Co. 26 Fed. Rep. 
 12; Missouri P. R. Co. v. Ilumes, 115 
 U. S. 572, 29 L. ed. 463. 
 
 ' Erwin v. Davenport, 9 Heisk. 44, 
 but he is not personally liable for neg- 
 ligence of his employees, as a general 
 rule. Ryan v. Hays, 62 Tex. 42; Davis 
 v. Duncan, 19 Fed. Rep. 477; Gardot 
 V. Barney, 63 N. Y. 281. 
 
 ' Blumentlial v. Brainard, 38 Vt. 
 402; Paige v. Smith, 99 Mass. 395; 
 Kain v. Smith, 80 N. Y. 458. 
 
 ^A receiver exercising the. fran- 
 chises of a road under the direction of 
 court is responsil)le officially for the 
 negligence of his servants. Meara v. 
 Ilolbrook, 20 Ohio St. 137; Klein v.' 
 Jeioett, 26 N. J. Eq. 474; PoUtn- v. 
 Bunnell, 20 Ohio St. 150; Coicdrcy 
 V. Galveston, H. & H. R. Go. 93 U. S. 
 352, 23 L. ed. 950; Winbourn's Case, 30 
 Fed. Rep. 167; Pope's Case, 30 Fed. 
 Rep. 169; Brown v. Wabash R. Co. 96 
 111. 297; Little v. Dusenberry, 46 N. J. 
 L. 614; Brown v. Brown, 71 Tex. 355; 
 Melendy v. Barbour, 78 Va. 544.
 
 RECEIVERSHIP OF RAILWAYS. 
 
 517 
 
 tract existing at the time of his appointment where the corpora- 
 tion could not liave been compelled to perform it.' The mere 
 fact that a leased line, formino; part of a unit system covered by 
 a mortgage, does not pay expenses, is not sufficient justification 
 for the receiver to disaffirm the lease as to such branch line." 
 
 § 286. Effect of tlischarge as to liability. 
 
 The liability of the receiver being official in its nature, and not 
 personal, it follows that no action can be maintained against him 
 after he has been discharged growing out of personal injuries 
 occasioned by the negligence of his agents and employees, nor 
 will a suit pending against him at the time of his discharge be 
 continued against him." And where injuries have been sustained 
 
 'A receiver appointed to conduct 
 the business of a corpoialion pending 
 an action may refuse to perform a 
 contract which was still executory at 
 the lime of his appointment, and the 
 specitic performance of which could 
 liot have been enforced against the 
 corporation; and such refusal does 
 not give liability under the contract 
 a preference over executed contracts. 
 Scott v. Rainiei' Power & R. Co. 13 
 Wash. 108. 
 
 Refusal of the receivers of a rail- 
 road company to carry out a contract 
 by the company for the purchase of 
 steel rails to be delivered at a specified 
 time will not authorize the seller to 
 maintain an action for breach of the 
 contract, where the latter, before such 
 refusal, has so delayed its preparations 
 for performance that it could not have 
 the rails ready for delivery at the time 
 specified. Diamond State Iron Co. v. 
 San Antonio & A. P. B. Co. (Tex. Civ. 
 App.) 33 8. W. 987. 
 
 '^ Receivers of a branch railroad will 
 not be permitted to disathrm leases of 
 feeding roads where a mortgage upon 
 all the property, including the leased 
 lines, contemplates that it .shall be 
 operated as a unit, although such lines 
 do not pay expenses. Mercantile 
 
 Trust Co. v. St. Louis cfe S. F. R. Co. 71 
 Fed. Rep. GOl. 
 
 Receivers of a rai'road company 
 will be directed to carry out a con- 
 tract with a coal and iron company 
 under which the latter conveyed to 
 the railroad company a branch road 
 in consideration of a stipulation on 
 the part of the latter to pay the earn- 
 ings of such branch to the former un- 
 til the cost should be reimbursed in 
 full. Fidelity Ins. T. & S. D. Co. v. 
 Norfolk tfe W. R. Co. 72 Fed. Rep. 704. 
 
 3 In Ryan v. Hays, 62 Tex. 42, a 
 receiver was appointed by a court of 
 competent jurisdiction on the appli- 
 cation of bond-holding creditors, and 
 invested with exclusive authority to 
 manage and carry on the businea.s of 
 the road as a common carrier, subject 
 to the supervision of the court, and 
 with all the rights and franchises of 
 the corporation, A sale was made of 
 the mortgaged property and a deed 
 executed to the purchasers. Subse- 
 quently the purchasers of the railroad 
 property conveyed the same back to 
 the original company, and its board 
 of directors passed a resolution ac- 
 cepting from the receiver the property 
 and all money in his hands and 
 assumed all debts and liabilities
 
 518 
 
 RECEIVERSHIPS. 
 
 against him as receiver. The receiver 
 was finally discharged, but before 
 such discharge suit was brought 
 against the receiver and railroad 
 company to recover damages for 
 injuries inllicled on the plaintiff 
 through the negligence of the re- 
 ceiver and his agents while in his ex- 
 clusive charge. Held (1) that the re- 
 ceiver was not liable after all the 
 property once in his control as re- 
 ceiver had been turned over to the 
 purchasers and after he had received 
 his discharge. (2) That his liability, 
 being an official one, ceased at his 
 discharge, except where he was per- 
 sonally at fault. (3) That the rela- 
 tion of master and servant does not 
 technically exist between a railroad 
 company and a receiver when the 
 company's property is placed in his 
 possession by the proper court. (4) 
 While this is true, the profits or in- 
 come of the property while in the 
 hands of the receiver are responsible 
 for the satisfaction of claims for in- 
 juries resulting from the negligence 
 of the receiver or his employees. (5) 
 The railroad company was not re- 
 sponsible for damages sustained by 
 plaintiff through the negligence of 
 the servants of the receiver further 
 than its current receipts while in his 
 hands, and the company, on the dis- 
 charge of the receiver, would not be 
 responsible merely by reason of their 
 purchase from those who bought at 
 the receiver's sale. See also Hick» v. 
 International & Q. N. B. Co. 62 Tex. 
 38; International & Q. N. R. Co. v. 
 Ormond, 62 Tex. 274. 
 
 In Brown v. Gay, 76 Tex. 444, it is 
 held that the sole liability of a re- 
 ceiver, except in cases where he is 
 personally at fault, is official, and a 
 discharge of the receiver and return 
 of the property to the owner would 
 render a judgment against him for 
 injuries fruitless. See also Texas P. 
 
 R. Co. V. Johnnon, 76 Tex. 421; Bogga 
 V. Brown. 82 Tex. 41; Texas P. R. Co. 
 V. Overheiner, 76 Tex. 437; 2'exas P. 
 R. Co. V. Oriffm, 76 Tex. 441; Texas 
 (It P. R. Co. V. Ceic/er, 79 Tex. 13; 
 Te.vas & P. R. Co. v. Miller, 79 Tex. 
 81, 11 L. R. A. 395; 7'exas & P. R. Co. 
 V. Cotmiock, 8;i Tex. 537; Texas & P. 
 R. Co. V. Adams, 78 Tex. 372. 
 
 In Farmers' Loan & T. Co. v. 
 Central R. Co. 7 Fed. Rep. 537, it is 
 held that no action can be sustained 
 against the receiver of a railroad com- 
 pany after his discharge and the 
 transfer of the property to a pur- 
 chaser under an order of court in a 
 foreclosure proceeding. 
 
 In Farmers' Loan & T. Co. v. Cen- 
 tral R. Co. 17 Fed. Rep. 758, it is held 
 that where a receiver is discharged 
 and the sale of the property confirmed 
 with a provision in the order of con- 
 firmation that the purchaser shall pay 
 all debts of the receiver and all claims 
 and liabilities pending in the foreclo- 
 sure case, the purchaser at such sale 
 cannot be permitted, after accepting 
 the property, to question the validity 
 of the order, and it is the proper ex- 
 ercise of the chancery power of the 
 court on surrendering the trust prop- 
 erly to the purchaser to retain juris- 
 diction of the original case and enforce 
 the payment of the debts and liabili- 
 ties incurred by the receiver while 
 operating the railway. 
 
 In Davis v. Duncan, 19 Fed. Rep. 
 477, it is held that a receiver is not 
 personally liable for the torts of his 
 employees, and only when he com- 
 mits the wrong himself is he person- 
 ally liable; that proceedings against a 
 receiver for the torts of his employees 
 is in the nature of a proceeding in 
 rem and renders the property held by 
 the receiver liable in compensation 
 for such injuries; that the railroad 
 company is not liable for injuries in- 
 flicted by a receiver or his servants
 
 RECEIVERSHIP OF RAILWAYS. 
 
 519 
 
 by a person through the negligence of the receiver's agents or 
 employees, and the receiver has been discharged and the property 
 restored to the company, the company in such case becomes liable 
 for the damage resulting from such injury if during the receiver- 
 ship the current receipts have been applied towards betterments 
 or permanent improvement of the road, at least to the extent of 
 such diversion.' And in case the property of the company has 
 
 while its property was in the hauds 
 of a receiver and when it was out of 
 possession, having no control over it. 
 
 In Brown v. Wabash R. Co. 96 HI- 
 297, it was provided in the deed of 
 sale "that said estate and interest are 
 hereby cliarged witli and shall pass 
 by virtue of these presents subject to 
 the payment of all liabilities incurred 
 in respect to the said railroad or its 
 business by said receiver." Held that 
 the purchase under the deed was sub- 
 ject for the payment of such liabili- 
 ties as the receiver had incurred while 
 he had possession of the road. And 
 it seems, in such a case, if a receiver is 
 liable for the personal injuries arising 
 from the negligent management of a 
 road the party injured or his repre 
 sentative must first sue at law and 
 settle the question of the receiver's 
 liability and the amount of damages, 
 and then file his bill against the grantee 
 company; that a bill in equity will 
 not be maintained in the first instance. 
 
 In Sloan v. Central Iowa R. Co. 62 
 Iowa, 728, it is held under §§ 1278 
 and 1307 of the Code that the prop- 
 erty in the hands of a receiver is lia- 
 ble for the claim of an employee for 
 injuries received through the negli- 
 gence of coemployees. 
 
 In Schmid v. Neio York, L. E. & W. 
 R. Co. 33 Hun, 335, the railroad prop- 
 erty was solil under an order of fore- 
 closure to certain parties, as trustees, 
 subject to all lawful indebtedness of 
 the receiver, made or incurred by him 
 during his receivership, which indebt- 
 
 edness was made a lien upon the 
 premises prior to the lien of the mort- 
 gages. Subsequently the purchasers 
 conveyed the property to the defend- 
 ant company, also making the con- 
 veyance subject to the debts and lia- 
 bilities, after which the receiver was 
 discharged. It was held that the 
 plainlifi: could maintain an action 
 against the grantee of the purchaser 
 to recover the amount of her judg- 
 ment, or to have the same declared a 
 lien upon the property so sold and 
 satisfied by the sale thereof. See also 
 Pennsylvania Finance Co. v. Charles- 
 ton, C. & C. R. Co. 46 Fed. Rep. 508. 
 
 ' Texas & P. R. Co. v. Huffinan, 83 
 Tex. 286. In this case it is held that 
 a railroad company is not liable for 
 the negligence of its receivers, ipso 
 facto, but where it is alleged and 
 proved on trial that the earnings of 
 the road while in the hands of a re- 
 ceiver had been invested in better- 
 ments of the property and then turned 
 over to the company, the company is 
 responsible, on the ground that it has 
 received the benefit of the fund which 
 was primarily liable for the damages 
 occasioned by the act of the receiver. 
 Te.ias P. R. Co. v. Johnson, 76 Tex. 
 421; Texas P. R. Co. v. Orijin, 76 
 Tex. 441; Mobile & 0. R. Co. v. Davis, 
 62 Miss. 271. 
 
 A railroad company cannot be held 
 .iable for breach of a receiver's con- 
 tracts or his torts, by mere proof that 
 upon his discharge it received the 
 property from him, in the absence of
 
 620 
 
 RECEIVERSHIPS. 
 
 been sold under a foreclosure proeeediui^ and the purchaser at 
 such sale has assumed all the receiver's liabilities, or the purchase 
 is made subject to the liabilities ai^ainst the property, the pur- 
 chaser becomes liable therefor, and the person entitled to damai^es 
 ma}' recover the same in an action at law a^^ainst the purchaser,' 
 or the court making the foreclosure, if it retains jurisdiction for 
 that purpose, may enforce the payment against the purchaser.* 
 As we have elsewhere seen, the court will not permit the receiver 
 
 evidence of betterments to the road 
 from the net, earnings realized by the 
 receiver. Missouri, K. & T. R. Co. v. 
 McFadden (Tex.) 33 S.W. 853. 
 
 Failure to assert a claim against a 
 railroad company while the property 
 is in the hands of a receiver, aild the 
 presentation of another claim by the 
 same claimant, which is paid, do not 
 estop him to assert such claim after 
 the property is turned over to the cor- 
 poration by the receiver without a 
 sale. Diamond State Iron Co. v. Sa}i 
 Antonio & A. P. Ji. Co. (Tex. Civ. 
 App.) 33 S.W. 987. 
 
 ' In Farmers' Loan & T. Co. v. Cen- 
 tral R. Co. 17 Fed. Rep. 758, the 
 claims for damages were filed in the 
 foreclosure proceeding, pursuant to 
 the terms of the order of court, and 
 under the statute of Iowa the claims 
 were entitled to a lien upon the railroad 
 for the amount of damages from the 
 time of recovering judgment. The 
 receiver was not personally liable, but 
 the property in his hands was liable 
 and could be reached by suit in form 
 against the receiver. 
 
 In Schmid v. New York, L. E. & W. R. 
 Co. 32 Hun, 335, the action was brought 
 by the plaintiff against the receiver 
 and a judgment recovered against him. 
 SubsequentI}', plaintiff's judgment 
 not being paid, an action was brought 
 for the amount of the claim, claiming 
 a lien on the property sold by the re- 
 ceiver. See also Ryan v. Bays, 62 
 
 Tex. 42; Hicks v. International <& G. 
 JV. It. Co. 62 Tex. 38; International & 
 G. JSr. R. Co. V. Ormond, 62 Tex. 275. 
 But see Ohio & M. R. Go. v. Nickless, 
 73 Ind. 383. 
 
 In Brown v. Wabash R. Co. 96 111. 
 297, a bill in equity was brought by 
 Brown as administrator against the 
 railway company on account of an 
 accident occurring while the railway 
 was in the hands of the receiver. 
 The basis of the action was to recover 
 in an action of equity unliquidated 
 damages for personal injury, and it 
 was held that there being a remedy at 
 law the court would not take juris- 
 diction. The court say: "A court 
 of chancery is not a forum in which 
 the question of damages should be 
 settled ; if it was, the sacred right of 
 trial bj- jury could easily be abrogated 
 and set aside by merely resorting to 
 such a tril)uual." 
 
 A purchaser of a railroad is liable 
 for damages caused by negligence of 
 a receiver if the betterments upon the 
 road by the receiver subsequent to the 
 sale, and the earnings turned over to 
 the purchaser, exceeded in value the 
 liabilities imposed upon the purchaser 
 by the decree of the court and the 
 operating expenses of the receiver 
 and claims for damages against him. 
 Houston & T. C. R. Co. v. Kelly (Tex. 
 Civ. App.) 35 S.W. 878. 
 
 ^Farmers' Loan & T. Co. v. Central 
 R. Co. 17 Fed. Rep. 758.
 
 RECEIVERSHIP OF RAILWAYS. 
 
 521 
 
 to be sued without its permission lirst obtained,' except in actions 
 in tlie Federal court, where by act of Congress the rule has been 
 changed." 
 
 ^Palys v.Jewctt, 82 N. J. Eq. 302; 
 Melendy v. Bavbnur, 78 Va. 544. 
 
 In Kinney v. Crocker, 18 Wis. 74, it 
 is held that the courts of Wisconsin 
 have jurisdiction in actions for inju- 
 ries agaiust a receiver appoinled by 
 the United Slates court without leave 
 to bring such action. Barton, v. Bar- 
 bour, 104 U. S. 126, 26 L. ed. 672; 
 Blumenthal v. Brainard, 38 Vt. 402; 
 Lyman v. Centrdl Vermont R. Co. 59 
 Vt. 167; Pacific R. Co. v. Wade, 91 Cal. 
 449, 13 L. R. A. 754. 
 
 ^lu Eddy v. Lafayette, 49 Fed. Rep. 
 807, it is held that the act of March 
 3, 1887, was intended to place receiv- 
 ers of railroad companies upon the 
 .same plane with the railroad compa- 
 nies, both as respects their liability to 
 be sued for acts done while operating 
 the road, and as respects the mode of 
 service of process. 
 
 In Central Trust Co. v. East Ten- 
 nessee, V. & G. R. Co. 59 Fed. Rtp. 
 523, it is held that the Judiciary Act 
 of 1887 and 1888 is not restricted to 
 the courts having jurisdiction of the 
 receiver and the property or to the 
 Federal courts generally, but extends 
 to any court of competent jurisdic- 
 tion, and the appointing court has no 
 power to enjoin the bringing of such 
 suits in any other than the Federal 
 courts. See Texas & P. R. Co. v. 
 Johnson. 151 U. S. 8'x, 38 L. ed. 81. 
 See also Dillingham v. Russell. 73 Tex. 
 47, 3 L. R. A. (m; Southern P. R. Co. 
 V. Maddox, 75 Tex. 300; Barton v. 
 Barbour, 104 U. S. 126, 26 L. ed. 672; 
 Kinney v. Crocker, 18 Wis. 75; Me- 
 lendy V. Baibour, 78 Va. 544. 
 
 In Central Trust Co. v. St. Louis, A. 
 & T. R. Co. 40 Fed. Rep. 426, it is 
 held that where receivers of a railroad 
 
 running through Arkansas, and who 
 were appointed in that case, had re- 
 moved into another state, the court 
 would authorize them to be sued in 
 the slate of Arkansas by service on 
 their station agents or clerks therein. 
 Prior to the Act of Congress it had 
 been the rule in the state courts of 
 Arkansas to permit a receiver of a 
 railroad to be sued without special 
 leave of court. 
 
 In Missouri P. R. Co. v. Te.ms P. R. 
 Co. 41 Fed. Rep. 311, it is held that 
 a judgment rendered in an action in a 
 Slate court agaiust a receiver appointed 
 in an action in the circuit court insti- 
 tuted prior to the passage of the ju- 
 diciary act of March 3, 1887, and 
 which had been brought without the 
 consent of the court appointing such 
 receiver was not conclusive as to him 
 but was subject to the equity juris- 
 diction of the court appointing him. 
 
 In Central Trust Co. v. St. Louis, A. 
 & T. R. Co. 41 Fed. Rep. 551, it is 
 held that when a stale court has ju- 
 risdiction of the parties and the sub- 
 ject matter their judgment against the 
 receiver of a Federal court is as final 
 and conclusive as it is against any 
 other suitor; that it is not within the 
 jurisdiction of the United States cir- 
 cuit court to annul, vacate, or modify 
 the judgment of stale courts, and this 
 rule is not affected by the last clause 
 of the 3rd section of the Act of Con- 
 gress of August 13, 1888 (35 Stat, at 
 L. 430). 
 
 A receiver of a railroad appointed 
 by a Federal court is not entitled un- 
 der the Act of March 3, 1887, chap. 
 373. § 3 (24 Stat, at L. 552-554), to im- 
 munity from suit for acts done by his 
 predecessor without previous permis-
 
 r.95 
 
 RECEIVERSHIPS. 
 
 § 287. Receivers' certificates. 
 
 The principles involved in the matter of receivers' certificates 
 have been so fully considered elsewhere that but a passing- notice 
 will be given the subject in tliis connection. A few general rules 
 relatiuii; to it may be stated as follows : 
 
 (a) These certificates are issued under the authority and direc- 
 tion of the court and are evidences of indebtedness entitling the 
 holder to receive from the receiversliip funds the amount specified 
 therein if the fund is sufficient for such purpose, and, if uot,-djjro 
 raid share with other holders of certificates. 
 
 (b) They have not the element of negotial)ility that ordinarily 
 attaches to commercial paper, and are subject to all the equities 
 existing against the payees, notwithstanding the assignment 
 thereof.' 
 
 (c) The holder takes this class of paper with notice of the 
 authority and purposes for which it is issued, and that it is pay- 
 able solely from the funds of the receivership, and that there is 
 
 sion given by Ihat court, affirming 
 same case in McNuUa v. Lockridge, 
 137 111. 270. 
 
 In' Texas d. P. E. Co. v. Cox, 145 U. 
 S. 593. 3G L. ed. 829, it is held that 
 the proviso in § 6 of the Act of March 
 3, 1887, does not limit the operation 
 of § 3 of that Act as corrected by the 
 Act of August 13, 1888, and the cir- 
 cuit court of the United Slates may 
 take jurisdiction of an action against 
 the receiver or manager of the prop 
 erty appointed by it without previous 
 leave obtained, although the action is 
 commenced, before the enactment of 
 the statute. The court say: "As ju- 
 risdiction without leave is maintain- 
 able through the Act of Congress, and 
 as the receivers become such by rea- 
 son of and derive their authority from 
 and operate the road in obedience to 
 the orders of the circuit court in the 
 exercise of its judicial powers, we 
 hold the jurisdiction existed because 
 the suit was one arising under the 
 
 Constitution and laws of the United 
 Slates, and this is in harmony with 
 previous decisions." Buck v. Colbath, 
 70 U. S. 3 Wall. 334, 18 L. ed. 257; 
 Feibdman v. Packard, 109 U. S. 421, 
 27 L. ed. 984; Bock v. Perkins, 139 U. 
 S. 628, 35 L. ed. 314. 
 
 ' Union Trust Co. v. Illinois M. R. 
 Co. 117 U. S. 434, 29 L. ed. 963; Tur- 
 ner V. Peoria & S. R. Co. 95 111. 134. 
 Receivers' certificates, being merely 
 evidences of indebtedness, have no 
 higher character than the debts which 
 they represent. Fidelity Ins. & S. D. 
 Co. V. Shenandoah Iron Co. 42 Fed. 
 Rep. 372. 
 
 The doctrine that claims furnished 
 to a railroad corporation before the 
 appointment of receivers may have a 
 preference over the lien of a mort- 
 gage does not apply to mining or 
 manufacturing companies. Fidelity 
 Ins. tfe 5. D. Co. V. Slunandoah Iron 
 Co. supra.
 
 RECEIVERSHIP OF RAILWAYS. 
 
 523 
 
 no responsible principal back of them to be made liable in 
 case of default.' 
 
 (d) In case of private corporations such certificates are not as a 
 rule made preferential to existino; liens, but may be made so in 
 case of public corporations, such as railways." 
 
 ' Bank of Montreal v. Chicago, C. & 
 W. R. Co. 48 Iowa. 518; titanton v. 
 Alabama & C. R. Co. 2 Woods, 506; 
 Wesson v. Chapman, 77 Hun, 144; 
 Newborn V. Peoria & K R. Co. 5 111. 
 App. 367; Mercantile Trust Co. v. 
 Kanaicha & 0. R. Co. 50 Fed. Rep. 
 874; Turner v. Peoria & S. R. Co. 95 
 111. 134. 
 
 Ceilificates issued without author- 
 ity are invalid and of no effect. Stan- 
 ton V. Alabama & C. R. Co. 31 Fed. 
 Rep. 585. 
 
 The holder is put upon inquiry as 
 to what has been done in the litiga- 
 tion in which the certificates are 
 issued, and is charged with notice 
 of subsequent proceedings therein. 
 Union Trust Co. v. Illinois M. R. Co. 
 117 U. S. 434, 29 L. ed. 963. 
 
 * Farmers' Loan & T. Co. v. Orape 
 Creek Coal Co. 50 Fed. Rep. 481, 16 
 L. R. A. 603; Kennedy v. St. Paul & 
 P. R. Co. 2 Dill. 448; Bou7id v. South 
 Carolina R Co. 50 Fed. Rep. 312; 
 Jerome v. Mc Carter, 94 U. S. 734, 24 
 L. ed. 136; Wallace v. Loomis, 97 U. S. 
 146. 24 L. ed. 895; Fosdick v. Schall, 
 99 U. S. 235, 25 L. ed. 339; Barton v. 
 Barbour. 104 U. S. 126, 26 L. ed. 672; 
 Miltenberfjer v. Logans'port, C. & S. W. 
 R. Co. 106 U. S. 286, 27 L. ed. 117; 
 Union Trust Co. v. Illinois M. R. Co. 
 117 U. S. 434, 29 L. ed. 963; Burn- 
 ham V. Bowen, 111 U. S. 776, 28 L. ed. 
 596; Wood v. Guarantee Trust & S. D. 
 Co. 128 U. S. 421, 32 L. ed. 473; Knee- 
 land V. American Loan & T. Co. 136 
 U. S. 89, 34 L. ed. 379; Morgan's 
 Louisiana & T. R. & S. S. Co. v. Texas 
 C. R. Co. 137 U. S. 171, 34 L. ed. 625; 
 
 Kneeland v. Luce, 141 U. S. 491, 35 
 L. ed. 830. 
 
 When a railroad and mineral prop- 
 erty are dependent for their value, 
 both may be charged by certificaies, 
 pending a creditors' suit, to obtain 
 money to reconstruct a bridge, and 
 such certificates may be made a prior 
 lien. Karn v. Rorer Iron Co. 86 Va. 
 754. 
 
 Receivers' certificates issued to a 
 promoter of a corporation for money 
 advanced to pay for improvements 
 put on the corporate property will 
 not be given priority over the rights 
 of the seller of the property, who 
 waived his lien upon the fraudulent 
 guaranty by another promoter at the 
 time of the sale that money was in his 
 possession which would be applied to 
 pay for such improvements. Hooper 
 V. Central Trust Co. (Md.) 29 L. R. A. 
 262. 
 
 AVhere the receiver of a railroad 
 company was directed to issue cer- 
 tificates to pay specific expenses in- 
 curred by his predecessor, and to be 
 payable to the persons to whom de- 
 livered or order, — Held, that the 
 holder of one issued to S, or bearer, 
 and negotiated by mere delivery, 
 would take subject to all equitable 
 defenses against the payee, and the 
 printed order of the court on the 
 back was notice to him that it was 
 made payable to bearer contrary 
 thereto. 2'urner v. Peoria <& S. R 
 Co. 95 111. 134. 
 
 First mortgage bondholders of a 
 corporation, protesting against the 
 issuance of receivers' certificates to
 
 524 
 
 RECEIVERSHIPS. 
 
 (e) It is an essential to the validity of such certificates that 
 tlioy shall he issued and delivered for the ])nrposes authorized hy 
 the court.' 
 
 (f) They are authorized with tiie greatest caution hy the court 
 and oidy when the necessity therefor is clear and their propriety 
 not seriously questioned.^ 
 
 pay for work to be done under a con- 
 triicl approved by the court and pro- 
 viding for payment in cash, or such 
 certificates, are entitled to be heard as 
 to whether such certificates should 
 be issued. Dm'n v. Crank, 96 Cal. 
 383. 
 
 Receivers' certificates issued under 
 an order made after a decree of fore- 
 closure and sale of property, which 
 contain on their face a provision au- 
 tliorized by the order making them a 
 lien on the property, will constitute a 
 first lien thereon, if the order is not 
 appealed from. Ex parte Farmers 
 Loan & T. Co. 129 U. S. 206. 32 L. ed. 
 656. 
 
 The power of court to authorize the 
 issuance of receivers' certificates, and 
 to make them a charge upon a rail- 
 road and its property superior to the 
 lien of mortgages and statutory liens, 
 is to be exercised with great caution, 
 and when possible with consent or 
 acquiesence of the parties interested 
 in the funds. Inveatment Co. v. Ohio 
 <& iV. 11'. R. Co. 36 Fed. Rep. 48. 
 
 The petition of a receiver of an in- 
 solvent railroad company to borrow 
 money and iss\ie certificates therefor, 
 for the purpose of completing im- 
 provements already begun, will not 
 be granted if it is doubtful whether 
 the selling price of the road would be 
 enhanced thereby except upon con- 
 sent of the bondholders and lien- 
 holders interested. Investment Go. v. 
 Ohio & N. W. R. Co. supra. 
 
 An order made upon the consent of 
 some of the interested bondholders 
 
 and lienholders authorizing the re- 
 ceiver to borrow money and issue 
 certificates for improvements, will 
 not be made a charge upon the in- 
 terest or affect the lien of noncon- 
 senting parties, unless it is made clear 
 to the court that the value of the road 
 will be so increased by the improve- 
 ments to such extent as to make it 
 equitable to require them to pay their 
 ratable proportion of the cost. In- 
 mstinent Co. v. Ohio & N. W. R. Co. 
 snpra. 
 
 A circuit judge may authorize the 
 receiver of a railroad to issue his cer- 
 tificates to procure funds for the 
 maintenance of the road, under S. C. 
 Rev. Stat, t^ 2244, providing that such 
 court shall always be open for the 
 purpose of making all interlocutory 
 orders preparatory to the hearing of 
 all causes on their merits, and that 
 any judge may make such order. 
 Slate V. Port Royal & A. R. Co. (S. C.) 
 23 S. E. 363. Cf. Bank of Montreal 
 V. Chicago, C. & W. R. Co. 48 Iowa, 
 518: Coe V. New Jersey M. R. Co-. 27 
 N. J. Eq. 37; Hoover v. Montclair & 
 O. L. R. Co. 29 N. J. Eq. 4; Gibert v. 
 WasJdngton City, V. M. <& G. S. R. Co. 
 33 Gratt. 586; Meyer v. Johnston, 53 
 Ala. 237. 
 
 ' Stanton v. Alabama & C R. Co. 31 
 Fed. Rep. 585; Union Trust Co. v. 
 Chicago & L. H. R. Co. 7 Fed. Rep. 
 513. 
 
 ^ Meyer V. Johnston, 53 Ala. 237; 
 Wallace v. Loomis, 97 U. S. 146, 24 L. 
 ed. 895; Jerome v. McCarter, 94 U. S. 
 734, 24 L. ed. 136; Hoover v . Montclair
 
 RECEIVERSHIP OF RAILWAYS. 
 
 525 
 
 (g) The court, having ordered the issuing of receiver's certifi- 
 cates, sliould see tliat the holders are protected by the final decree 
 either by requiring the purchaser to assume their payment, or 
 providing for their payment from tlie sale proceeds.' 
 
 (h) A receiver, having deposited the money realized on the sale 
 of certificates and checked against the same, is estopped from 
 questioning the validity of certificates in the hands of an innocent 
 purchaser.* 
 
 c6 O. L. R. Co. 29 K J. Eq. 4; Smith 
 V. McCullovgh, 104 U. S. 25, 26 L. 
 cd. 637; Millenberger v. Logansport, C. 
 &8. W. R. Co. 106 U. S. 286, 27 L. 
 ed. 117; Street v. Maryland C. R. Co. 
 59 Fed. Rep. 25. 
 
 ' Where a decree of sale provides for 
 the payment of the undue principal 
 of certain receivers' certificates and 
 interest, it cannot be ciairaed by the 
 purchaser that the lien for such prin- 
 cipal and interest extends only to the 
 amount originally paid to the receiver. 
 Central Nat. Bank v. Hazard, 30 Fed. 
 Rep. 484. Cf. Mercaiitile Trust Co. v, 
 Kanawha & 0. R. Co. 58 Fed. Rep. 6; 
 Wesson v. Chapman, 76 Hun, 592. 
 
 The court, when it has authorized 
 the issuance of certificates, with 
 knowledge of all parlies in interest, 
 
 will protect the holders thereof. 
 Humphreys v. Allen, 101 111. 490; 
 Union Trust Co. v. Illinois M. R. Co. 
 117 U. S. 434, 29 L. ed. 963; Millen- 
 berger V. Logansport, C. & S. W. R. Co. 
 106 U. S. 286, 27 L. ed. 117; Central 
 IVust Co. V. Seasongood, 130 U. S. 482, 
 32 L. ed. 985; Kneeland v. Luce, 141 
 U. S. 491, 35 L. ed. 830; Alabama 
 Iron & R. Co. v. Anniston Loan & T. 
 Co. 57 Fed. Rep. 25; Mercantile Trust 
 Co. V. Kanawha & 0. R. Co. 58 Fed. 
 Rep. 6; Cordon v. Neicman, 62 Fed. 
 Rep. 686; Laughlin v. United States 
 Rolling-stock Co. 64 Fed. Rep. 25; 
 Snow V. Winslow, 54 Iowa, 200; Lang- 
 don V. Vermmt & C. R. Co. 53 Vt. 228; 
 Stevens v. Union Trust Co. 5 Hun, 498 
 '•^ Alabama Iron & R. Co. v. Anniston 
 Loan cfc T. Co. 57 Fed. Rep. 25.
 
 CHAPTER XV. 
 
 RECEIVERSHIP IN DECEDENTS' ESTATES. 
 
 ^ 300. Pertaining to decedents' es- 
 tates. 
 
 (a) General. 
 
 (b) Contests over wills. 
 
 § 301. As to executors and adminis- 
 trators, 
 (a) When appointed, 
 (i) Violation of trust; waste, 
 
 etc. 
 (f) Insolvency of executor; 
 
 waste, etc. 
 {3) Removal from state. 
 
 (4) Death of; refusal to act. 
 
 (5) Property devised belong- 
 
 ing to another. 
 
 (6) Misapplication of executor; 
 
 fraud. 
 
 (7) No one competent to act. 
 
 (8) Contest between foreign 
 
 and local administrator. 
 
 (9) Nonresident executor. 
 (10) Property in foreign coun- 
 try. 
 
 (11) Bankruptcy of executor. 
 
 (12) Conversion of trust prop- 
 
 erty by executor. 
 
 (13) In matter of fraud. 
 
 (l/f) Refusal to obey order of 
 court. Illegal trust. 
 
 (b) AVhen not appointed. 
 
 (1) Poverty of executor or ad- 
 administrator. 
 
 (S) Creditor's proceeding pend- 
 ing at death of testator. 
 
 (3) Application of surety on 
 
 bond, etc. 
 
 (4) When defendant is sol- 
 
 vent. 
 
 (5) When complaint not ade- 
 
 quate. 
 
 (6) When misapplication not 
 
 clearly shown. 
 
 (c) Misconduct and refusal to 
 
 act. 
 
 (d) Where no one competent to 
 
 act. 
 
 § 300. Receivership in decedents' estates. 
 
 (a) General. 
 A court of chaiiceiy will not interfere in matters concerning 
 the ad n illustration of an estate, and take the administration from 
 those -who by law are entitled to it, except in cases where there 
 appears to be an ui-gent necessity in order to preserve and pro- 
 tect the property from injury and loss, or where there is no one 
 legally com])eteiit to administer, or where those charged with the 
 duty are violating the trust imposed in them by law. The rea- 
 son for this rule is in the principle that where the law has cre- 
 ated an office and charged the occupant with the duties apper- 
 taining thereto, no court will willingly step in and, through its 
 officers, assume the functions of the legally constituted authori- 
 ties, and particularly so where another court is given jurisdiction 
 
 526
 
 RECEIVERSHIP IN DECEDENTS' ESTATES. 527 
 
 to adeqimtel}'^ and completely protect the interests of all par- 
 ties concerned, as in the administration of estates. The probate 
 courts, and those of similar jurisdiction, are usually clothed with 
 ample and complete power in this regard. 
 
 (b) Contests over wills. 
 
 Where there is a contest between parties interested in 
 estate, growino; out of the validity of a will, and a receiver has 
 been appointed prior to the appointment of an administrator 
 jpendente lite, and the contest is likely to be protracted, it is 
 proper to order the receiver to turn over to the administrator 
 jpendente lite the personal and real estate belonging to the testate. 
 This is based upon the fact that the orphans' court appointing 
 the administrator is the proper court for the adjudication of the 
 matters in dispute, and the jurisdiction of the chancery court 
 was temporary and for the purpose of preserving the property 
 until such time as the proper court appointed a person with full 
 power to protect and preserve the property.' 
 
 AYhere an administrator of a life estate has been appointed and 
 has partially administered the estate, a receiver will not be ap- 
 pointed, however proper it might have been to do so in the first 
 instance.'' 
 
 Where land has been devised to two persons under a will, and 
 subsequent to the execution of the will, the testator conveyed part 
 of the land to one of the legatees, who entered upon such land and 
 operated the same as mining property, and it appears that there is 
 danger of waste of the property, and the solvency of the legatee 
 and grantee was doubtful, the court may appoint a receiver, it 
 also appearing tiiat the land was charged by the testator with 
 the payment of debts. In such case, it appearing that the prop- 
 erty over which a receiver was asked to be appointed was mining 
 
 'Acourt of chancery cannot appoint " Wliere an administer for a life 
 
 a receiver after the granting of let- tenant has been appointed and has 
 
 ters pendente lite b}' the orplian's court, partially administered Die trust estate, 
 
 and if such receiver has been ap- a receiver for such estate will not be 
 
 pointed prior thereto, his powers appointed. Shannon v. Davis, 64 
 
 cease after the grant, and he will be Miss. 717. 
 discharged and directed to deliver 
 over the property to such administra- 
 tor. Re Colvin, 3 Md. Ch. 278.
 
 528 
 
 RECEIVERSHIPS. 
 
 property and inacliincry for operating such mines, every bene- 
 ticial and legitimate object will be attained l)y leaving the oper- 
 ations to go on as before, and requiring returns to be made to 
 the appointee from time to time, and securing the same by bond, 
 conditioned for the payment of the proceeds as ordered by the 
 court.' 
 
 § 301. As to executors and administrators. 
 
 (a) AViIKN APPOINTED. 
 
 As we have ah'eady seen in the case of testamentary trustees, 
 the court will sometimes appoint a receiver of property in the 
 hands of executors and administrators, but in all such cases there 
 must be a strong case made out establishing immediate danger to 
 the trust fund or property. This must, of necessity, be the ride 
 for the reason that the wishes of the testator would be disregarded 
 in case of executors or the orders of a court of co-ordinate juris- 
 diction be aimuUed in case of administrators. A receiver may be 
 appointed in lieu of an administrator, or executor. (/) Where it 
 is shown that the trust has been clearly violated, resulting in waste 
 or misappropriation,* or that such a result is probable ; {2) or that 
 
 ' Stith V. Jones, 101 N. C. 360. This 
 requirement is peculiarly applicable 
 where the party in possession is a 
 legatee under the will and also claims 
 the property under a deed from the 
 testator. 
 
 ' Barman v. Wagener, 33 S. C. 487. 
 In this case a suit was instituted by 
 the executor for the sale of land and 
 to marshal assets and to enjoin cred- 
 itors from suing at law, in which gen- 
 eral creditors intervened, and aslied 
 to have a receiver appointed on the 
 ground that the executor was guilty 
 of misconduct in his management of 
 the estate, and was not a safe custo- 
 dian thereof and was insolvent. It 
 was also held that the judgment and 
 execution returned in sucli case was 
 >mnecessary, for the reason that the 
 {irinciple has no application in a suit 
 to marshal assets, or in a suit to com- 
 
 pel an administrator or executor to 
 account. Cf. Peker v. Hughes, 27 
 S. C. 408; Atii^tin v. Morris, 23 S. C. 
 408. In Mkldlcion v. Dodmoell, 13 
 Ves. Jr. 266, Lord Erskine said: 
 "But if a manifest abuse of the trust 
 by wasting the property appears, 
 which does appear in this instance, 
 not from a single act but an habitual 
 and prospective course of dealing, 
 bringing the property into danger, can 
 it be said that this court is not to treat 
 an executor as any other trustee ? And 
 an executor may say that unless he is 
 proved to be insolvent, the court is to 
 overlook the misapplication and re- 
 fuse a receiver." In this case the ap- 
 plication was before answer. The 
 marriage of an executrix to a second 
 husband in necessitous circumstances 
 where there were infant children by 
 the tirst marriage was held sufficient
 
 RECEIVEKSHIP IN DECEDENTS' ESTATES. 
 
 529 
 
 the executor is insolvent, and this fact is coupled with waste or 
 misapplication ; ' (J) or his removal from the state and thus an 
 
 ground for the appointment of a re- 
 ceiver in Dillon v. Lady Mount Cas- 
 hell, 4 Bro. P. C. 306; Lake v. De 
 Lambert, 4 Ves. Jr. 593. In Staiiiey 
 V. Babe, McMuU. Eq. 22, it appeared 
 tbat the executrix had managed the 
 estate judiciously, but subsequently 
 married a second husband possessing 
 no qualificatious for the management 
 of such an estate, but was young, of 
 limited means, and without experience 
 and with little aptitude for any oc- 
 cupation. Cf. Jenkins v. Jenkins, 1 
 Paige, 243; Gildersleeve v. Lester, 68 
 Hun, 532, 
 
 1 Price V. Price, 28 N. J. Eq, 428, 
 in this case the court found that there 
 had been waste and misappropriation 
 and a refusal to answer concerning 
 the same. In Duval v. Marshall, 30 
 Ark. 230, it appeared that the admin- 
 istrator had hindered and embarrassed 
 the colleclion of the debts of the es- 
 tate. It was also held that the court 
 having acquired jurisdiction to col- 
 lect and hold the assets it would retain 
 jurisdiction to settle the estate. Up- 
 on the question of insolvency of the 
 executor the court in Fairbairn v. 
 Fisher, .57 N, C, 390, said : "The mere 
 poverty of the executor does not au- 
 thorize the court against the will of 
 the testator to remove him by placing 
 a receiver in his place. There must 
 be in addition some maladministra- 
 tion or some danger of loss from the 
 misconduct or negligence of the ex- 
 ecutor for which he will not be able 
 to an.swer by reason of his insolvency. 
 That seems to be the well-settled rule. 
 * * * The only pretext for a receiver 
 as far as the case appears in these i)ro- 
 ceedings, is the misunderstanding be- 
 tween the two executors. But that 
 is not sufficient of itself or in conuec- 
 34 
 
 tion with the limited circumstances of 
 the defendant." Nor will the fact that 
 it appears that the executrix is a per- 
 son of little or no fortune be sufficient 
 in the absence of proof of mismanage- 
 ment; nor is the fact of a dispute in 
 another court concerning the probate 
 sufficient. Knight v. Duplessis, 1 
 Ves, Sr. 324. In Howard v, Papera, 
 1 Madd. 142 (Am. ed. p. 86) the vice 
 chancellor says: "No misapplication 
 or abuse of trust is made out against 
 this executrix, and it would be too 
 much to take the administration of 
 this testator's property out of her 
 hands merely because she is poor, a 
 circumstance known to her husband, 
 the testator, when he appointed her 
 executrix." Cf. Gladdon v. Stoneman, 
 note to last case cited; Jenkins v. Jen- 
 kins, 1 Paige, 243; Price v. Price, 23 
 N. J. Eq. 428. 
 
 In Anonymous, 12 Ves. Jr. 4, the 
 question before the court was upon 
 the sole ground that the executrix had 
 no property other than an annuity of 
 £20 given her by the testator, and 
 that therefore a receiver should be 
 appointed, and Sir William Grant 
 says: "There is no doubt that in sev- 
 eral instances, as, if the executor has 
 wasted the effects, or in other respects 
 has misconducted himself, this court 
 will interfere. But has the court ever 
 taken the disposition out of the hands 
 of the executor on account of his 
 mean circumstances — for it comes to 
 that? You must prove the unfitness 
 of the person. In this case the only 
 ground is that she is not a person of 
 property. * * * If any mi.scon- 
 ducl, waste, or improper disposition of 
 the assets were shown the court would 
 instantly interfere." Cf. Oray v. 
 Guither, 74 N. C, 237. But if the as-
 
 530 
 
 RECEIVERSHIPS. 
 
 abandonment of the trust;' {4) or tlie death of the executor, or 
 death of one and refusal of the other to act;° {5) or where a sale 
 of property is necessaiy, the legal title to which was in the testa- 
 tor, and which he devised to an executor, but in which another 
 person had an interest and equitable title;' (6") or where judgment 
 creditors allege fraud and misapplication by an executor and in- 
 solvency," or where he has given no security, and has mismanaged 
 the estate, and is about to leave the country; ' (7) or where by reason 
 of a contest in the court of proljate there is no proper pei'son to 
 receive the estate;" {8) or where a foreign administrator has 
 
 signee, upon his own petition, has 
 been adjutlged a bankrupt a receiver 
 is proper, it not being within the power 
 of his assignee in bankruptcy to have 
 charge of the trust properly. Steele 
 V. Cobham, L. R. 1 Ch. App. 325; 
 Gladdon v. Sioneman, 1 Madd. 143, 
 note (Am.ed. p. 86). In a bill l)y a ward 
 charging waste and insolvency on the 
 part of an administrator, a receiver 
 may be appointed. Ware v. Ware, 42 
 Ga. 408. In Gray v. Qaither, 74 N. 
 C 237, an executor converted his 
 land and personal estate into notes 
 and money, and the court held the 
 estate to be insecure. It was also held 
 that though the trustee was insolvent, 
 if the testator knew of that fact it 
 would not be ground for removal. 
 
 ' Ex parte Galluchat, 1 Hill, Eq. 
 148. In this case the executor had re- 
 moved to another state and the appli- 
 cation was made by the cestui que trust. 
 
 « Palmer v. Wright, 10 Beav. 234. In 
 this case it would seem that the power 
 of the probate court to appoint a suc- 
 cessor would afford ample relief. 
 The Master of Rolls says: "Nothing, I 
 think, can be more clear than when 
 there are two trustees and executors, 
 and one dies and the survivor refuses 
 to act, the per.sons beneficially inter- 
 ested in the estate are entitled to the 
 protection of the court and to a re- 
 ceiver." 
 
 3 Marvine v. Drexel, 68 Pa. 362. In 
 this case Drexel, the trustee, died, or- 
 dering his executors to sell his real 
 estate whenever they thought proper. 
 There was an agreement as to the pur- 
 chase of lands between Drexel in his 
 lifetime and Marvine, and the former's 
 executors and Marvine disagreeing in 
 regard to the mode of selling, a re- 
 ceiver was appointed. This case was 
 based upon the idea that a receiver 
 would be disinterested and the execu- 
 tors were representatives of the estate 
 only, and that the court, having ob- 
 tained jurisdiction, would direct the 
 sale in the interest of all parties. 
 
 * Ex parte Walker, 25 Ala. 81; Scott 
 V. Beclier, 4 Price, Exch. Rep. 346. 
 
 6 Chappell v. Akin, 39 Ga. 177. The 
 allegations of the bill in this case were 
 that the executor was insolvent, un- 
 married, extravagant, engaged in no 
 settled business, intending soon to 
 move to Honduras, and was badly 
 managing his own business, and 
 threatened to sell the trust property. 
 
 ^ Rendall v. Rendull, 1 Hare, 152. 
 In Wood V. Hutchings, 2 Beav. 289, 
 an appeal was pending in the privy 
 council from the ecclesiastical court, 
 and the power of the administrat- 
 or pendente lite had been suspended 
 by an inhibition from the appeal 
 court and there was no one, pending 
 the litigation, to care for the estate.
 
 RECEIVERSHIP IN DECEDENTS ESTATES. 
 
 ysi 
 
 brought property of the estate within tlie jurisdiction of a court 
 of chancery where there is a local administrator;' (5) or where 
 the executor is a nonresident;^ {10) or where the property is in 
 a foreign country ; ^ {11) or where the executor has become a 
 bankrupt ; * {12) or where the executor converts the trust prop- 
 erty to his own use/ the great advantage to be secured, however, 
 through the instrumentality of this proceeding is preventive in 
 its nature rather than to redress grievances that have already been 
 committed;' {13) or where fraud is charged;' {IJj) or where the 
 trustee has been ordered to pay money due from him on an al- 
 leged breach of trust, * or where the bill is filed to wind up an 
 
 ^ Hervey v. Fitzpatrick, Kay, 421. 
 
 ^ Jones V. Smith, 10 Hare. 71. (No ap- 
 pearance of defendant and no written 
 opinion.) 
 
 ^In Gockburn v. EapJiael, 2 Sim. & 
 S. 453, the application was made by the 
 executor resident in England, and the 
 court required resident sureties in 
 England. 
 
 In order to justify a court in ap- 
 pointing a receiver to take property 
 from an executor or administrator 
 who has been appointed by the proper 
 court under letters testamentary or of 
 administration, it must be alleged in 
 the bill or otherwise shown by affida- 
 vits or other competent evidence: 
 
 (1) That there is imminent danger to 
 the estate; (2) that the probate court, or 
 court exercising probate jurisdiction, 
 has inadequate power to afford ade- 
 quate relief ; (3) that the allegations 
 and charges are definite and spe- 
 cilic, and not on information and 
 belief ; (4) that the executor or ad- 
 ministrator is irresponsible, or his 
 bond insufficient or inadequate. 
 
 A receiver in lieu of an executor or 
 administrator may properly be ap- 
 pointed: (1) Where it is shown that a 
 trust has been clearly violated and as 
 a result serious waste and misappro- 
 priation has followed; (2) that the ex. 
 eculor or administrator is insolvent 
 
 and this fact coupled with misman- 
 agement and waste or misapplica- 
 tion; (3) on his removal from the state 
 and thus abandoning the trust; or (4) 
 in case of his death, or where there is, 
 by reason, a contest over the right to 
 administer and there is no one legally 
 entitled to receive and care for the 
 funds or property, pending the litiga- 
 tion. 
 
 * Steele v. Cobham, L. R. 1 Ch. App. 
 335; Langley v. Uawk, 5 Madd. 46; 
 Oldddon v.Stonemait,! Madd. 142 (Am. 
 ed. p. 86 note). In the first case above 
 cited the court held that the fact that 
 the assignees were not before the court 
 was not material. 
 
 *In Gray v. Gaitlier, 74 N. C. 237, 
 the court ordered the executor to give 
 the bond for the protection of the assets 
 and for the performance of the final 
 decree and upon his failure to do so 
 then a receiver should be appointed. 
 There was no dereliction of duty on 
 the part of the executor ami the court 
 held under such a state of facts it was 
 error to appoint a receiver in the first 
 instance. 
 
 ^ Perrin v. Lepper, 56 Mich. 351; 
 Doufjherty v. McDougald, 10 Ga. 121. 
 
 ''Vernon v. Kimie, 2 U. C. Jur. 40. 
 
 8 Coney v. Bennett, 54 L. J. Ch. 1130; 
 Lealhe^ v. Z(?a</<es, Weekly Notes, 1882, 
 p. 71 ; Whileley v. Learoyd, 56 L. T. 84G.
 
 632 
 
 ■RECEIVERSHIPS. 
 
 illraal trust.' or whore it is necessary to prevent the transfer of 
 pro|>crty held in trust." 
 
 (b) When not appointed. 
 
 The conrt will not appoint a receiver in lieu of an executor or 
 administrator (/) where the only ground of complaint alleged is 
 the poverty or financial irresponsibility of the person acting in 
 this relationship;' nor (^) in a creditor's proceeding where the 
 bill was tiled against the intestate debtor in his lifetime, and after 
 his death revived against his administrator;* nor where the 
 allc<»'ed cause of complaint occurred during the lifetime of the 
 intestate, and where there is no allegation of mismanagement 
 against the administrator;' nor {3) on the application of a surety 
 on the bond of the administrator, where the purpose is to require 
 the administrator to secure the bondsman on account of his lia- 
 bility for his principal;* nor [4) where the defendant is perfectly 
 solvent, and where he offers to secure the plaintiff in whatever 
 
 • Cameron v. Havemeyer, 25 Abb. N. 
 C. 438. 
 
 "^Lutt V. Qrimont, 17 111. App. 308. 
 
 3 In Fail-bairn \. Fisher, 4 Joiits Eq. 
 390, the court say : " There does not 
 appear to be any change for the 
 worse, at least in the property or 
 credit of the executor, since the death 
 of the testator or even the making of 
 his will; the mere poverty of the 
 executor does not authorize the court 
 against the will of the testator to re- 
 move him by placing a receiver in his 
 place. There must be in addition 
 some maladministration, or some 
 danger of loss from the misconduct 
 or negligence of the executor, for 
 which he will not be able to answer 
 by reason of his insolvency." Howard 
 V. Papera, 1 Madd. 142; Gladdon v. 
 Stoneman, 1 Madd. 143, note; Johns v. 
 Johns, 23 Ga. 31; Anonymous, 12 
 Ves. Jr. 4. 
 
 *Mathews v. Neihon, 3 Edw. Ch. 
 346; Sylveiter v. Reed, 3 Edw. Ch. 
 296. In these two cases it was held 
 
 that a creditor's bill could not be re- 
 vived against the debtor's administra- 
 tor where the purpose is to obtain 
 the appointment of a receiver. 
 
 * Perrin v. Lepper, 56 Mich. 351. 
 There was no showing whatever that 
 the property was being wasted by the 
 complainant administrator, or that 
 the estate was unsafe in his hands, 
 and a receiver was refused. 
 
 ^ Dtlaney Y . Tiplon, 3Hayw. (Tenn.) 
 14. In this case Delaney, the surety 
 on the administrator's bond, Hied a 
 bill and asked for an order on the 
 administrator to give security to him, 
 and in default of so doing that a re- 
 ceiver be appointed to take posses, 
 sion of the assets, — held, that the plain- 
 tiff was not entitled to the relief. Cf. 
 Walker v. Drew, 20 Fla. 908. as to a 
 surety of a deceased debtor and his 
 right to have a receiver; and Sten- 
 hmise V. Davis, 82 N. C. 432, as to the 
 right of a surety of a purchaser at an 
 administrator's sale.
 
 EECEIVERSHIP IN DECEDENTS' ESTATES. 
 
 533 
 
 rIgLts he may be entitled to on final liearincj:;' nor (5) where the 
 acts of an executor complained of are not serious, and he has the 
 confidence of the business men of the community;'' nor (6') where 
 the misapplication of the funds charged is not clearly shown/ 
 
 There must be a strong case nuide for the appointment in oi'der 
 to justify a court in interfering in the matter of trustees who 
 liave been appointed, or authorized to act under the orders of 
 another court of competent jurisdiction, and especially so in the 
 case of executors who are presumed to have been appointed by 
 reason of some peculiar fitness or confidence reposed in them by 
 the testator." 
 
 ' A receiver of a decedent's estate 
 should not be appointed without giv- 
 ing a defendant, who is shown to be en- 
 titled to at least half the estate and to 
 be perfectly solvent, an opportunity to 
 give a sufficient bond to protect the 
 petitioner in whatever rights he may 
 be able to establish at the final hear- 
 ing. Bivins v. Marvin, 96 Ga. 268. 
 
 * That one of the three executors of 
 an estate without bond has been seen 
 a few times playing cards for money 
 is not sufficient cause for the appoint- 
 ment of a receiver pending an action 
 by the heirs to recover their alleged 
 interest in the estate, and for par- 
 tition, where a large number of busi- 
 ness and professional men in the com- 
 munity where such executor lives 
 affirm his integrity of character and 
 his entire fitness for the trust. Harris 
 V. Ilkka (Tex. Civ. App.) M S. W. 
 D83. 
 
 ^ The advance by the executors to 
 the widow of less than half of the 
 cash on hand, which was prima facie 
 a community fund, does not auihorize 
 the appointment of a receiver pend- 
 ing an action by the heirs to recover 
 their alleged interest in the estate, 
 and for partition, upon the ground of 
 misapplication of the funds and re- 
 fuHftl to allow the plaintiffs free 
 access to the books of deceased, where 
 
 the widow's interest in the estate is 
 apparently largely in excess of the 
 amount paid her, and she was other- 
 wise without means of support. Har- 
 ris V. Hicks (Tex. Civ. App.) 34 S. W. 
 983, 
 
 A receiver cannot be appointed in 
 an action against a foreign executor 
 as an individual to apply securities 
 of the estate to redeem securities of a 
 third person pledged for the testator's 
 debt, as the executor in his individual 
 capacity could not be compelled so to 
 do. Collins v. Stewart, 2 App. Div. 
 271. 
 
 ■* In Shannon v. Davis, 64 Miss. 
 717, it is held that where an adminis- 
 trator has been appointed and has 
 partially administered the estate a re- 
 ceiver is improper, though it might 
 have been proper to appoint in the 
 first instance. In Perrin v. Lepper, 
 56 Mich. 351, it was held that in the 
 absence of proof of waste on the part 
 of the administrator, or danger to the 
 estate, the appointment would not be 
 made. Cooley, J., says: "Receivers 
 are not appointed by way of punish- 
 ment of parties, and especially of 
 dead parties, for their misconduct." 
 The court, however, will not hesitate 
 where the administrator is seeking to 
 administer property the title to which 
 appears to be in another. Hill v.
 
 53i 
 
 RECEIVERSHIPS. 
 
 (c) Misconduct and refusal to act. 
 
 Where an executor refuses to collect and account for a fund 
 that was placed by his intestate's will in a firm for a definite 
 period, and there is danger of its beino; lost by reason of such 
 refusal, a receiver is proper, and the court has power to make the 
 appointment. While courts are slow to appoint receivers to take 
 property of an estate from the hands of an administrator who has 
 been legally appointed, yet where the administrator is attempting to 
 administer property the title to which appears to be in another, 
 then in such case a receiver should be appointed if the circum- 
 stances indicate that the rights of all the parties would thereby 
 be more effectually and expeditiously protected and enforced.' 
 
 Arnold, 79 Ga. 367. Cf. Stairley v. 
 Babe, McMull. Eq. 22; Middleion v. 
 Dodswell, 18 Ves. Jr. 68. And see Ren- 
 dall V. Rendall, 1 Hare, 152, where 
 the vice chancellor reviews the Eng- 
 lish doctrine upon this subject. And 
 in Haines v. Carpenter, 1 Woods, 
 263, the court refused to entertain a 
 bill to appoint a receiver upon the 
 ground that the executor had qualified 
 and given bond for the discbarge of 
 his trust and had taken possession of 
 the estate under the provisions of the 
 will of the testator, where the allega- 
 tions were made on information and 
 belief. The court say: "The property- 
 is in gremio legis; the jurisdiction of 
 the parish court has attached to the 
 assets; they are in the hands of a 
 trustee who is required to account 
 only to the court which appointed 
 him, and this court has no power to 
 take the assets from the possession of 
 that trustee and compel him to ac- 
 count here." In Wannelcer v. Hitch- 
 cock, 38 Fed. Rep. 383, it was held 
 that where the probate court had full 
 power to protect the interests of all 
 parties a receiver would not be ap- 
 pointed. Cf. Middleton v. Dodsicell, 
 13 Ves. Jr. 266; Haines v. Carpenter, 
 supra. 
 
 On a creditor's bill, a decree was 
 rendered establishing the claims of 
 creditors and directing their pay- 
 ment out of such assets as may be 
 applicable to them, by the adminis- 
 trator, and ordering the receiver to 
 pay the claims out of the moneys and 
 securities at their nominal amount 
 which should come into his hands. 
 Held, that the direction to the re- 
 ceiver to pay was subordinate to the 
 right of the administrator to determine 
 the applicability of the assets, and 
 the receiver having paid out money 
 to the agent of a creditor without the 
 direction of the administrator, the 
 court granted an injunction to re- 
 strain the moneys paid to such agent 
 within the control of the court. 
 Oreen v. Hanberry, 2 Brock. 403. 
 
 ' Where an administrator is seeking 
 to administer properly, the title to 
 which clearly appears to be in an- 
 other, then a receiver should be ap- 
 pointed, if the circumstances indicate 
 that the rights of all the parties would 
 thereby be more effect\ially and expe- 
 ditiously protected and enforced. Hill 
 V. Arnold, 70 Ga. 367.
 
 RECEIVERSHIP IN DECEDENTS' ESTATES. 535 
 
 Where it appears that the conduct of an administrator is such 
 as to Jiinder and dehiy the collection of the assets of an estate, a 
 court of chancery has power, and it is its duty, to appoint an ad- 
 ministrator to collect and hold the assets, and, having acquired 
 jurisdiction for that purpose, it may retain it for the purpose of 
 finally settling the estate.' 
 
 If an executor of a will and legatee thereunder files a bill in 
 the nature of a creditor's bill, enjoining creditors of the testate 
 from suing him at law, such executor is a quasi trustee for the 
 creditors, and on proper application a receiver may be appointed, 
 where there is a misuse or misapplication or waste of the prop- 
 erty, and there is danger of loss, and in such case, on the applica- 
 tion of creditors, it is not incumbent to show that they have ex- 
 hausted their legal remedies, the basis of their application being 
 mismanagement. Where the application is based upon waste 
 connnitted by the executor or administrator, the charge must be 
 specific and designate the thing done which constitutes the waste 
 complained of." 
 
 A creditor may file a ci'editor's bill against the executor of a 
 deceased debtor to make him account for the estate in his liands, 
 without first having obtained a judgment at law and procured a 
 return of execution nulla hona.^ 
 
 But where an executor has qualified and given bond for the 
 faithful discharge of his duties, and has taken possession of the 
 property of the estate by virtue of the provisions of the will, a 
 strong case must be made against him to induce the court to ap- 
 point a receiver and take from the executor the property of the 
 estate; and in such case the charges of mismanagement must be 
 positive and not on information and belief, and in addition to the 
 proof of danger it must also appear that the executor in posses- 
 sion is irresponsible or his bond is insufficient/ 
 
 'Where it is shown that the exec- ^Sanders v. Christie, 1 Grant Ch. 
 
 ufor is guilty of misconduct, and was (Out.) 137. 
 
 not a sate custodian and was insolvent ^ ILirmon v. Wagener, 33 S. C. 487. 
 
 and the estate is insolvent, a. receiver * Where an executor has qualified 
 
 will be appointed. Harmon v. Wag- and given bond for the faithful dis- 
 
 en&r, 33 S. C. 487. charge of his trust, and taken posses- 
 
 In such case it is not necessary to sion of the property of the estate by 
 
 establish an exhaustion of legal reme- virtue of the provisions of the will, a 
 
 dies. Harmon v. Wagener^ nujjra. strong case must be made against him
 
 636 
 
 RECEIVERSHIPS. 
 
 "Where an administratrix is carrying on the business of her de- 
 ceased husband, on the filing of a bill by the heirs of such de- 
 ceased person alleging that the administratrix was not the widow 
 of the deceased it is proper to appoint a receiver.' And where a 
 bill is filed by a devisee to try the validity of a will as to real es- 
 tate the court will, under special circumstances, appoint a re 
 ceiver ;* and so also where the executor is carrying on the business 
 of the testator pursuant to his directions and it is shown that the 
 
 to induce the court to appoint a re- 
 ceiver to take the possession of the 
 property from bim. Haines v. Car- 
 penter, 1 Woods, 262. 
 
 Cf. Beverley v. Brooke, 4 Graft. 208; 
 Bainbridge v. Blair, 4 L. J. Ch. N. S. 
 207; Smith v. Smith, 2 Yoiinge & C. 
 361; Middleton v. Dodswell, 18 Ves. 
 Jr. 286; Haggarty v. Pittman, 1 Paige, 
 298; Burt v. Burt, 41 N. Y. 46. 
 
 Willis V. Corlies, 2 Edw. Ch. 281. 
 This was a case again.st trustees but 
 the principle is applicable to executors 
 and administrators as well. The vice 
 chancellor says: "The court looks to 
 the security and preservation of the 
 property, and ought not to interfere 
 pending the litigation when the plain- 
 tiff's right is not perfectly clear and 
 the property itself, or the income aris- 
 ing from it, is not shown to be in dan- 
 ger; and it is acknowledged to be the 
 rule in several of the English cases 
 that there must be some evil actually 
 existing, or some evidence of danger 
 to the property or a strong special 
 case of fraud in the defendant clearly 
 proved to induce the court in this 
 stage of the cause to take the property 
 under its care. Hugonin v. Basely, 13 
 Ves. Jr. 105; Middletoii v. Dodsicell, 
 18 Ves. Jr. 286; Lloyd v. Passingham, 
 16 Ves. Jr. 69. In another case in the 
 Irish chancery court it has been ob- 
 served that such an interference is, to 
 a certain extent, giving relief — in fact 
 depriving defendants of a present use 
 and enjoyment of the estate and, so far, 
 
 a deci.sion pro tempore against them; 
 and, therefore, without some strong 
 necessity, the court ought not to do 
 any act to disturb the existing posses- 
 sion until, from a view of the whole 
 case and by a regular ailjudication, it 
 can pass upon the right." Houlditch 
 V. Lord Donegal, 1 Beatty, 402. 
 Speaking upon the general subject of 
 the appointment of receivers. Lord 
 Eldon in Lloyd v. Passingham, 16 Ves. 
 Jr. 59, says the court must not 
 only be satisfied of the existence of 
 the fraud but must be morally sure 
 that upon the hearing of the cause the 
 party would, upon those circumstan- 
 ces, be turned out of possession, but it 
 must see some danger to the interme- 
 diate rents and profits. Cf. Clark v. 
 Ridgely, 1 Md. Ch. 70; Randle v. Car- 
 ter, 62 Ala. 95; Ex parte Walker, 25 
 Ala. 81 ; Uitchen v. Birks, L. R. 10 Eq. 
 471. 
 
 To justify the appointment of a re- 
 ceiver to take the custody of assets in 
 the hands of an executor or adminis- 
 trator there must be actual miscon- 
 duct or fraud, and immediate danger 
 of loss. Randle v. Carter and Ex 
 parte Walker, supra. 
 
 ' Graham v. Graham, 2 Vict. Rep. 
 145. 
 
 ^ Middleton v. Sherburne, 4 Younge 
 & C. 358. But not in the absence of 
 an allegation of the insolvency of 
 those in possession of the land. Bryan 
 V. Moring, 94 N. C. 694.
 
 RECEIVERSHIP IN DECEDENTS' ESTATES. 537 
 
 executor is insolvent, that there is sufficient property to pay the 
 debt, and that the executor refuses to pay or use the assets for 
 such purpose on apphcation of a creditor, — under such a state of 
 facts a receiver will be appointed ; ' but in the absence of proof 
 of danger of loss and when the real and personal property are 
 sufficient to pay the debts of the decedent, a receiver will not be 
 appointed of the rents and prolits of the real estate/ 
 
 (d) Where no one competent to act. 
 
 A receiver of the property of a decedent will be appointed by 
 a court of equity if it appears from all the circumstances that 
 there is no executor or administrator, and if there is imminent 
 danger of tlie property of the decedent being taken from the 
 state, leaving no other property liable to pay tlie creditors of the 
 estate, and where the person in possession is insolvent or is a non- 
 resident, but in such a case it is necessary that the plaintiff sliall 
 show (1) either a clear right in himself to the property in con- 
 troversy, or that he has some lien upon it, or that it constitutes 
 a special fund out of which he is entitled to satisfaction, and 
 (2) it must appear that the pi'operty was obtained by the defend- 
 ant through fraud or that the property itself or the income from 
 it is in danger of loss from neghgence, waste, misconduct, or 
 insolvency.' 
 
 The rule that a receiver will not be appointed to take property 
 
 ' Wiilis V. Sharp, 46 Hun, 540. In leaving no other property liable to 
 
 this case the bill was filed bj' a cred- pay creditors, and the person in pos- 
 
 itor against an insolvent executor. session is insolvent or a nonresident. 
 
 '^Where it does not appear that real Flagler v. Blunt, 32 N. J. Eq. 518. 
 and personal property of the decedent In such case it is essential that the 
 will be insufficient to pay the dece- plaintiff should show, first, either a 
 dent's debts, the court will not ap- clear legal right in himself to the prop- 
 point a receiver of the rents and erty in controversy, or that he has 
 profits of the real estate. McKaig v. some lien upon it, or that it constitutes 
 Javien, 66 Md. 583. a special fund out of which he is en- 
 
 ^A receiver of the assets of adeced- titled to satisfaction, and, secondly, it 
 
 ent will be appointed in equity if it must appear that the property was ob- 
 
 appears from all the circumstances tained by the defendant through 
 
 that there is no e.xecutor or admiiiis- fraud, or that the property itself or 
 
 trator in existence, where there is the income from it is in danger of loss 
 
 iniminentdangerof the property of the from negligence, waste, misconduct, 
 
 decedent being taken from the state or insolvency. Flagler v. Blunt,supra.
 
 538 RECEIVERSHIPS. 
 
 from an administrator duly appointed and in possession does not 
 extend to a case where the pro])erty was fraudulently conveyed 
 to the deceased in his lifetime.' 
 
 ' The rule that a receiver will not be where the property was fraudulently 
 appointed to take property from an conveyed to the deceased, Werborn 
 administrator docs not extend to a case v. Kahn, 93 Ala. 201.
 
 CHAPTER XYI. 
 
 RECEIVERSHIP OVER TRUST PROPERTY. 
 
 g 305. General. {10) AVhen continued. 
 
 § 306. Receiver In lieu of trustee. {11) Claim against beneficiary, 
 
 (a) When appointed. (b) When not appointed, 
 
 {1) In case of misappropria- (1) Failure of proof. 
 
 tion. (i?) Where money in hands of 
 
 {2) In case of fraud. bailee. 
 
 (3) Disobedience of orders of (5) Where debt charged to 
 
 court. trustee pensonally. 
 
 (4) Illegal trusts. (4) Where trustee is statutory. 
 
 (5) Where necessary to pre- (5) Where trustee acts under 
 
 vent transfer. marriage settlement. 
 
 (6) Fraud not alwf.ys necea- (6) AVhere other parties inter- 
 
 sary to be shown. ested than cestui quetrunt. 
 
 (7) Where purposes of trust (7) Discretion of trustee. 
 
 have failed. § C07. Fraudulent assignments. 
 
 (8) Conflicting claimants; sep- § 308. Testamentary trustees. 
 
 arate suits. § 309. Infants' estates. 
 
 (9) Mixing of trust property. § 310. Lunatics' estates. 
 
 § 305. General. 
 
 A court of equity is peculiarly qualified by reason of its reme- 
 dial jDowers in affording relief to beneficiaries of trust property 
 where the trustee is, by mismanagement of the estate or other- 
 wise, endangering the trust fund or property in his possession. 
 The trustee, in all cases, is required to exercise tlie greatest care 
 and diligence in the preservation and management of the trust 
 estate placed under his supervision. In many cases his duties are 
 delicate, and not free from obligations of the most sacred fidu- 
 ciary character, where the law requires strict fidelity and the ut- 
 most good faith, as in cases of express trusts where the donor 
 himself has b}^ his act imposed upon the trustee duties and obli- 
 gations peculiarly exacting. Assuming duties of this character 
 by the trustee in its very nature would dictate the most strict ac- 
 countability on his part both in relation to the donor and donee, 
 or cestui que use^ and courts of equity have jealously guarded 
 and protected the interests of all parties. 
 
 Heceiverships, as aj)])licable to trust property and trustees, usu- 
 
 539
 
 540 RECEIVERSHIPS. 
 
 ally occur in connection with express and implied trusts growing 
 out of the relationship of executors and administrators, testanieut- 
 ary trusteeships, guardianships, connnittees of lunatics, and other 
 fiduciary relationships created by statute, and by deeds and agree- 
 ments of the parties. Courts of equity have at all times, owing 
 to the peculiar nature of their remedies and their adaptability to 
 trust relationships, been the special forum for relief in matters of 
 this character, and the law of receivership has became interwoven 
 with, and an element in, the general jurisprudence on the subject, 
 though not to the same extent as in som.e other branches of equity 
 jurisdiction for the reason that trustees of all kinds have been 
 especially subject to the control and direction, restraint and guid- 
 ance of courts of equity, and for the additional reason that trus- 
 tees, as a rule, are selected by the party creating the trust, and 
 therefore are presumed to have been placed in their positions for 
 some special fitness and qualification, or by reason of some espe- 
 cial confidence reposed in them, which courts are extremely slow 
 to interfere with. 
 
 § 306. Receiver in lien of trustee. 
 
 (a) When appointed. 
 
 In this class of cases the appointment of a receiver in lieu of a 
 trustee rests in the sound judicial discretion of the court, as in 
 the appointment of receivers generally.' As a general rule it 
 may be stated that the court has power to appoint a receiver in 
 lieu of a trustee : 
 
 (i) Where the trustee has misappropriated or lost the trust 
 property ; ^ or 
 
 (2) Where fraud is charged and shown ; * or 
 
 ' Janeway v. Green, 16 Abb. Pr. 215, distinct from his individual funds and 
 
 note. safely deposit the same in some bank 
 
 * Oilderaleeve v. Lester, 68 Hun, 532. or otlier like place for safe keeping, 
 
 A special receiver of the assets of to the injury or great risk of injury 
 
 an insolvent firm, assigned to a trustee to the beneficiaries, or that he is wast- 
 
 for the benefit of creditors, may be ap- ing or misappropriating such fund or 
 
 pointed and required to duly admin- a material part thereof, or that there 
 
 ister the same under the directions of is danger of such misappiopriation. 
 
 a court of equity, where it is made to Wagner v. Cuen ( W. Va.) 23 S. E. 735. 
 
 appear that such trustee is violating *Vernon v. Kimie, 2 U. C. Jur. 40. 
 his duty to keep the trust property
 
 RECEIVERSHIP OVER TRUST PROPERTY 541 
 
 {S) "Where the trustee has failed to obey an order to paj' over 
 money dne from him in respect to an alleged breach of trust; ' or 
 {4) Where a bill is filed to wind up an illegal trust;' or 
 
 (5) Where it is necessary to prevent a transfer of property held 
 in trust/ 
 
 (6) And it is not necessary in all cases to allege and prove 
 fraud or misconduct on the part of the trustee, in order to secure 
 the appointment of a receiver in trust matters. Thus, where 
 coupon bonds or other property not ear-marked with the trust 
 are placed in the hands of a de facto trustee or custodian, by the 
 agreement of the cestuis que trustent, and they become dissatis- 
 fied and file a bill for accounting and distribution, and where 
 there is protracted litigation between the parties in interest, and 
 tiie trustee, though denying any danger to the trust fund, is anx- 
 ious to l)e relieved from a troublesome and thankless duty, the 
 court may appoint a receiver/ 
 
 (7) And where the purposes of a trust agreement have failed, 
 a certificate holder in such trust lias a right to demand that the 
 affairs should be wound up, and his interest protected, and in 
 such a case it is proper for the court to appoint a receiver, upon 
 the application of the certificate holder, although the property 
 may be in the hands of parties of the highest standing for busi- 
 ness capacity and integrity of character/ 
 
 {8) Where there are conflicting claimants of a trust fund who are 
 prosecuting separate suits in the same court, and a receiver is ap- 
 pointed in one suit, his appointment will inure to the benefit of 
 the plaintiff in the other suit, if upon the adjudication it is ascer- 
 
 ' Coney v. Bennett, 54 L. J. Ch. 1130; " I cannot, therefore, but think such 
 
 Leather v.Zert//ie.v, Weekly Notes, 1882, a course is not only demanded by law 
 
 71; Whiteley v. Learoyd, 56 L. T. 846. but it is to the best interest of all con- 
 
 * Cameron v. Uavemeyer, 25 Abb. N. cerned, — for the public, because it will 
 C. 438. free the corporations composing the 
 
 ^ Lutt V. Grimont, 17 111. App. 308. trust from their illegal relations with 
 
 * Fidelity Ins. dc T. Co. v. Ruber, 13 it * * * ; for the certificate hold- 
 Phila. 52. ers, because it will preserve the prop- 
 
 '' Cameron \. Uavemeyer, 25 Ahh. N. erty and facilitate the speedy setlle- 
 
 C. 438 (451). In this case tlie court ment of the matter, either by a 
 
 had declared the trust agreement void reorganization, if practicable, or a di- 
 
 as creating a vast mouoi)oly, and so vision of tlie property." 
 against public policy. The court say:
 
 542 
 
 RECEIVERSHIPS. 
 
 tained that tlie plaintiff in the latter suit has a superior right to 
 the trust fund.' 
 
 (9) If the trustee mixes the property with his own it is not 
 Butticient liroimd for the appointment of a receiver, in the al)- 
 sence of further proof of danorer resulting from such act.' 
 
 AVliere property is conveyed to a trustee for the lienetit of the 
 grantor's wife, and at her death in ti'ust for her children, with 
 power to rent or sell, in the discretion of the trustee, on a bill 
 Hied by the infant cestuis que trnstent for the removal of the 
 trustee and for a receiver, tiie court will not, in the absence of 
 proof of an abuse of discretion, appoint a receiver. 
 
 {10) When a receiver of trust property has been appointed, it 
 is proper for the court to continue him on the expiration of the 
 trust, if the persons who are entitled to the possession as tenants 
 in common disagree among themselves, and there is no prospect 
 that they can act harmoniously.' 
 
 {11) In a suit to compel a trustee to account for a trust fund 
 which he should pay over to the beneficiary, but which he I'etains 
 because of an alleged claim against the beneficiary for a breach 
 of contract, a receiver may be properly appointed.* 
 
 ' Beverley v. Brooke, 4 Gratt. 187. 
 
 For a case in which the allegations 
 of the bill were held insufficient to 
 warrant the court in taking properly 
 from the hands of trustees and placing 
 it in the custody of a receiver, see 
 Pyles V. Riverside Furniture Co. 30 VV. 
 Va. 123 (145). 
 
 "^Orphan Anylum v. McCartee, Hopk. 
 Ch. 429. In this case a bill was tiled 
 by a legatee under a will against trus- 
 tees to obtain the benefit of the devise, 
 and also for Ihe appointment of a re- 
 ceiver. The court held that the ques- 
 tion of the legality of the devise was 
 resting in equilihrio, and could not be 
 considered in the motion; that the 
 mixing of the trust funds with his 
 own was of itself no ground for the 
 appointment; that in the absence of 
 danger this was no breach of duly; 
 and that there was no case in which 
 the court appointed a receiver merely 
 
 because the measure could do no 
 harm, and still less where the trustee 
 was such under the appointment of a 
 testator. In a case where the trust 
 fund is not in danger, the court will 
 refuse to appoint. Richards v. Bar- 
 rett, 5 111. App. 510. It is the peril of 
 the trust fund alone that moves a 
 court to dispossess a trustee from the 
 exercise of his legal rights over the 
 trust fund, and unless such peril is 
 shown by specific allegations, sup- 
 ported by clear proof, the court will 
 not interfere. Fort Payne Furnace 
 Oo. V. Fort Payne Coal & I. Co. 96 
 Ala. 473; Sims v. Adams, 78 Ala. 395; 
 iSitnmons Hardware Go. v. Waibel, 1 S. 
 D. 488. 11 L. R. A. 267; Phelan v. 
 Eaton, 3 Vict. Rep. 13. 
 
 ^Ball V. Tompkins, 41 Fed. Rep. 
 486. 
 
 ^ Hagenbeck v. Har/enbeck Zoological 
 Arena Co. 59 Fed. Rep. 14.
 
 RECEIVERSHIP OVER TRUST PROPERTY. 543 
 
 (b) When not appointed. 
 
 The court will not interfere on application to have a receiver 
 appointed for a trust estate while chancery proceedings are pend- 
 ing for the removal of a trustee, (i) unless a very strong case is 
 made out ;' nor (^) where money due a judgment debtor is in 
 the hands of a bailee '^ nor {3) where complainant's debt had at 
 first been charged against the trustee individually and not as 
 trustee, even if the trustee is personally insolvent ;^ nor [If) in 
 case of a foreign corporation, where its property is in the hands 
 of trustees appointed under the statutes of a foreign state ;* nor 
 (J) where property is in the hands of a trustee for husband and 
 wife, under the terms of a marriage settlement ;* nor {6) where a 
 contract is held by a trustee for the benefit of several persons, on 
 the application of a cestui que trust, having but a small interest 
 in the profits, where the appointment would operate to deprive 
 the contractors of money sufficient to perform the contract, and 
 the trustee is pecuniarily responsible and not guilty of a breach 
 of duty involving moral turpitude/ 
 
 (7) Where trustees have a discretion in regard to the doing or 
 not doing of a particular thing, as in the payment of interest, it 
 is improper for the court to make an order which will take from 
 the trustees this discretion. Thus, where trustees under a will 
 were directed to set apart and invest a sum of money, and were 
 authorized in their absolute discretion from time to time, and at 
 such time or times as they should think proper, to pay or apply 
 the whole or any part of the income to or for the benefit of the 
 judgment debtor, in such a manner and in all respects as they 
 should think proper, the money will not be ordered paid to the 
 I'eceiver.' 
 
 § 307. Fraudulent assignments. 
 
 The appointment of a receiver in equitable proceedings insti- 
 tuted for the purpose of setting aside assignments made for the 
 l>enefit of creditors where fraud is alleged and shown in the 
 
 ^ Poythress v. Poi/thress, 16 Ga. 406. ' Whiiaker v. Cohen, 69 L. T. 451. 
 
 '^Morris v. Taylor, 33 L. R. Ir. 14. ^Devlin v. Hope, 16 Abb. Pr. 314. 
 
 " Hatcher V. Mnssey, Q%G:&. &Q. ''Queen v. Lincobnliire & Dixon 
 
 * Fenton v. Lumbermans' Bank, 1 County Judge, L. R. 30 Q. B. Div. 
 
 Clarke, Ch. 386. 167.
 
 544 RECEIVERSHIPS. 
 
 transaction, is frequent, but in such case tlicre must be proof of 
 insolvency of tiie assi^^'iiec and such a state of facts shown as 
 renders it probable that the property will be disposed of in fraud 
 of creditors' ri<^lits,' but if it be shown tiiat the assignee is 
 solvent and the fraud is denied by the answer a receiver will 
 not be appointed pending the litigation," This doctrine is 
 based upon the ])rin('i[)le already stated that courts are, at 
 best, slow to interfere with tiie possession of a trustee apparently 
 in the lawful custody of property charged with a trust, in a mat- 
 ter of assignnuMit recognized by law, and wliere the assignor has 
 a right to dispose of his property in such manner as shall seem to 
 him best, subject only to the rights of bona tide creditors therein. 
 
 § 308. Testamentary trustees. 
 
 There are many cases in which a receiver will be appointed to 
 take the place of trustees appointed under a will, as where some 
 of the trustees refuse to act and all the parties are before the 
 court consenting to the appointment ;' or where some of the 
 trustees are dead, and the others refuse to act ;* or where the 
 trustee becomes insolvent, and misapplies the property or its pro- 
 ceeds, or otherwise diverts the income or appropriates the same 
 to his own use ;^ or suffers leasehold property to become forfeited 
 
 ^Ellett V. Neioman, 92 N. C. 519. la ference of the court is necessary to pro- 
 
 this case an action was brought to set tect the property iu question pending 
 
 aside an assignment alleged to be the controversy." Ciiing Parker v. 
 
 fraudulent and void as to creditors Grammer, Phiil. Eq. 28; Craycroff 
 
 wlien it appeared that there was rea- v. Morehend. 67 N. C. 422; Morris v. 
 
 sonablc ground to apprehend that the Willard, 84 N. C. 293; Levenson v, 
 
 goods involved in the action might be Elson, 88 N. C. 182. 
 
 disposed of fraudulently before the "^LevenHon v. Elson, supra. 
 
 case could be tried upon its merits, ^Brodie v. Barry, 3 Meriv. 695, 
 
 and thus render a judgment inef- citing Beaumont v. Beaumont, not re- 
 
 fectual. The court say: "The au- ported. 
 
 tbority of the court to preserve prop- * McUasker v. Brady, 1 Barb. Ch. 
 erty, the subject of liligiition, pending 329. This was a bill for partition, al- 
 the action, until final judgment, and legiug the invalidity of a will, where 
 then to apply it as justice may require, one trustee died and the other two re- 
 is too manifest to admit of question, fused to act, Cf. King v. Donnelly, 5 
 and such authority should be exer- Paige, 46. 
 
 cised when it appears that there is rea- *See Albright v. Albright, 91 N. C. 
 
 sonable ground to believe that the 220, where the testator conveys his 
 
 plaintiff may recover, and the inter- property andretains nothing subject to
 
 RECEIVERSHIP OVER TRUST PROPERTY 
 
 545 
 
 for nonrepair of the premises;" or wliere a trustee fails to pay money 
 due from liini pursuant to an order of court ;' or loans the trust 
 funds contrary to the express conditions of the trust instrument;' 
 or withholds the trust funds from those entitled thereto." In all 
 cases, however, the appointment of a receiver rests in the sound 
 judicial discretion of the court, under all the circumstances of the 
 
 case. 
 
 § 309. Infants' estates. 
 
 As early as 1727, tlie Parliament of England, sitting as a court 
 of appeals, held that where a testator by will named his widow 
 as guardian of his minor children it was beyond the power of the 
 
 execution. Ladd y. Harvey, 21 N. H. 
 514. See J/afone v.Buice, GO Ga. 152,as 
 to iiisolveucy. But the mixing of the 
 funds with his own in the absence of 
 danger is not sufficient. Orpluin Asy- 
 lum V. McCartee, Hopk. Ch. 439. 
 
 ^Re Fowler, L. R. 16 C^h. Div. 723. 
 " It is made the duly," says the chan- 
 cellor, "of trustees of leasehold prop- 
 erty to keep it free from forfeiture out 
 of the rents, if no other fund is ap- 
 plicable." 
 
 "^Re Coney, L. R. 29 Ch. Div. 993. In 
 this case the trustee had absconded; 
 and it was decided upon the authority 
 of Leathes v. Leathes, Weekly Notes, 
 1882, p. 71, and based as to general 
 power under the Judicature Act of 
 1873. § 25, subs. 8. 
 
 ^ North Carolina R. Co. y. Wilson, ^\ 
 N. C. 223. In this case the trustee 
 loaned part of the funds to a firm of 
 which he was a member, which subse- 
 quently failed; and it was held that 
 the trustee's insolvency and unsuccess- 
 ful management of his own business 
 might be considered in passing upon 
 the question. 
 
 *JIagen.beck v. IJagenbeck Zoological 
 Arena Co. 59 Fed. Rep. 14. In this case 
 the trustee and complainant had en- 
 tered into an agreement, and the 
 trustee refused to account because of 
 
 35 
 
 an alleged breach of the contract. 
 The court says: "The defendants 
 have no right in law to arbitrarily 
 seize upon that which belongs to an- 
 other, even to secure a liquidation of 
 their supposed damages." 
 
 *In Ladd v. Harvey, 21 N. H. 514, the 
 court say: "Where there is some evil 
 actually existing, or some evidence of 
 danger to the property upon the filing 
 of the answer, a receiver will be ap- 
 pointed. Hngonin v. Basely, 13 Ves. 
 Jr. 105. So, where before answer 
 there is evidence that the property is 
 in danger from insolvency actually 
 existing or expected. Middleton v. 
 Dodswell, 13 Ves. Jr. 266. And a re- 
 ceiver will be appointed before an- 
 swer where justice requires it. Duck- 
 worths. 7Yafford,18Ves.jT.283. The 
 exercise of the power to appoint a re- 
 ceiver must depend upon sound dis- 
 cretion, and be a case in which it must 
 appear fit and reasonable that some in- 
 different person under approved se- 
 curity should receive and distribute 
 the issues and profits for the greater 
 securities of all the parlies concerned. 
 Verplank v. Caines, 1 Johns. Ch. 57. 
 A receiver is proper if the fund is in 
 danger, and this principle reconciles 
 the cases found in the books. Orplian 
 Asylum v. McCartee, Hopk. Ch. 435."
 
 546 
 
 RECEIVERSHIPS. 
 
 court of chancery to change the will of the testator in this regard, 
 in the absence of proof of misbehavior on the part of such testa- 
 mentary guardian.' It has remained the hiw, supported by reason 
 and autliority, from that time to this, that where a trustee has 
 been appointed by a testator as executor or as guardian, the court, 
 in the absence of strong proof, will not interfere with such selec- 
 tion by the appoiiitmcnt of a receiver.'^ But where it is shown 
 that the executor has absconded and that there is danger to the 
 estate a receiver will be appointed;' or if he is incompetent and 
 waste is likely to follow.* Where a receiver has been, appointed for 
 
 ' Dillon V. Lady Mount CashcU, 4 
 Bro. C. P. 306. 
 
 ' Middleton v. Dodmell, 18 Ves. Jr. 
 268. In this case Lord Erskine said: 
 " It is for the testator, not the court, 
 to say in whom the trust for admin- 
 istration of the effects shall be re- 
 posed." Cf . Stairley v. Babe, McMuU. 
 Eq. 21. 
 
 » Pitdier v. Hellier, Dick. 580. So 
 also, in Browell v. Reed, 1 Hare, 434, 
 it was held that in case of miscon- 
 duct a receiver might properly be 
 appointed, but not because one of 
 several trustees had disclaimed, or 
 was inactive, or had gone abroad. 
 
 Where a receiver was appointed to 
 take charge of an infant's estate and 
 invest the same, and report to the 
 court annually, and he deposited a 
 portion of the money in a bank in 
 another state to his credit as receiver, 
 on which deposit he was paid interest 
 by the bank, which afterwards failed, 
 he was liable for the loss, as he had 
 failed to report to the court the man- 
 ner in which he had invested the in- 
 fant's estate, although he had acted 
 in the best faith. State, Collins, v. 
 Qooch, 97 N. C. 186. 
 
 * Stairley v. Rahe, McMull. Eq. 22. 
 In this case the executrix had mar- 
 ried an impecunious husband who 
 was manifestl}'^ incompetent to man- 
 age the trust in a judicious manner, 
 and the estate was likely to be wasted 
 
 or diminished through neglect or 
 ignorance. It has been held in 
 Temple v. Williams, 91 N. C. 82, that 
 where a receiver is appointed in lieu 
 of a guardian removed, he is not in- 
 vested with the powers of a guardian, 
 but acts under the control of the 
 court until another guardian is ap- 
 pointed. Where there had been sev- 
 eral trustees, one of whom was dead, 
 one abroad, and the business fell ex- 
 clusively on one, and application was 
 made for a receiver, the acting trustee 
 consenting, a receiver was appointed. 
 Tidd V. Lister, 6 Madd. 438. Cf . Browell 
 V. Reed, 1 Hare, 434. Where two are 
 appointed and one declines to act, 
 the court will appoint a receiver on be- 
 half of an infant ces<i<^■ que trust, with 
 liberty to either of the trustees to 
 offer himself. Tail v. Jenkins, 1 
 Younge&C. Ch. 491. It is not proper 
 to appoint the next friend of infant 
 as receiver. {Stone v. Wishart, 2 Madd. 
 64); nor is it proper to appoint a trus- 
 tee and executor receiver. 
 
 V. JoUand, 8 Ves. Jr. 72. Cf . Sykes v. 
 Hastings, 11 Ves. Jr. 363; Sutton v, 
 Jones, 15 Ves. Jr. 584. Lord Eldon, 
 in Sykes v. Hastings, supra, says; 
 " The appointment of a trustee as re- 
 ceiver is extremely rare; and only 
 where he will act without emolument. 
 * * * The principle of the court is 
 that the trustee shall not be receiver 
 if any other can be procured."'
 
 RECEIVERSHIP OVER TRUST PROPERTY. 547 
 
 the benefit of two infant tenants in common he will not be dis- 
 char^'ed upon one of the infants becoming of age. 
 
 § 310. Lunatics' estates. 
 
 Pending an application to determine the lunacy of a person an 
 ad interim receiver may be appointed with power to take posses- 
 sion of the estate on giving bond, and also with leave to be 
 appointed ad litem in actions pending against such alleged 
 lunatic' But the court in making such appointment will not 
 select the solicitor of the lunatic, even where it is stated that no 
 one else is willing to accept;' nor a master in chancery, if his 
 accounts are to be passed upon by another master," On the death 
 of a lunatic the office of the committee ceases, and the court 
 possesses only power to compel him to account and deliver 
 possession of the property to the persons entitled thereto. In the 
 meantime, if there is reason to apprehend delay in ascertaining 
 who are entitled to the possession, a receiver may be appointed to 
 preserve the property, on the application of the parties in in- 
 terest ; ^ and such receiver must account as in other cases.* 
 
 ' Bmiih V. Lyster, 4 Beav. 227. B. 96; Atkinson v. Hemhmo, 2 Yes. & 
 
 ' Re Pountain, L. R. 37 Ch. Div. 609. B. 85. Bui see Richards v. Chave, 12 
 
 In this case the order was made Ves. Jr. 462. Lord Eldon, in AY/i^r v. 
 
 ex parte. King, supra, places the appointment 
 
 ^ Ea? pa?76 P«nfA:e, 2 Meriv. 452. on the ground "that the property is 
 
 * Ex parte Fletcher, 6 Ves. Jr. 427. in danger in this sense, that it may get 
 
 This was a case for the appointment into the hands of persons who have 
 
 of a committee of a lunatic's estate, nothing to do with it." Cf. Rendall 
 
 but the principle is the same as in v. Rendall, 1 Hare, 152. On the ap- 
 
 cases of receivership. The theory of pointment of an administrator or 
 
 the case may be sound, but evidently executor by the proper court the 
 
 its application in many cases would duties of the receiver thenceforth 
 
 be a matter of discretion. Cf. Re cease, and so on the appointment of 
 
 Ferriar, L. R. 3 Ch. App. 175. an administrator pendente lite as to 
 
 ^ Re Colvin, 3 Md. Ch. 278 (288); personal property and as well real 
 
 Ductless of JS'orfollc's Ca.sc.cited in Sbel- estate. Re Colvin, supra. 
 
 ford on Lunacy, 210. CL King v. King, ^Wing v. Ctiarnpion, 1 Tenn. Ch. 
 
 6 Ves. Jr. 172; Edmunds v. Bird, 1 515. In this case it was held that he 
 
 Ves. & B. 88; Ball v. Oliver, 2 Ves. & should account at least once a year.
 
 CHAPTER XYII. 
 
 MISCELLANEOUS RECEIVERSniPS. 
 
 §315. As between vendor and vendee. 
 
 § 316. Between creditor and debtor. 
 
 § 317. In partition suits and between 
 tenants in common. 
 
 § 318. In suits for specific perform- 
 ance. 
 
 § 319. As between lessor and lessee. 
 ~5 320. In ejectment suits, 
 p 321. In alimony suits. 
 § 332. For building and loan associa- 
 tions. 
 § 323. Grounds for appointment. 
 
 § 315. As between yeiiclor and vendee. 
 
 Soinetinies the court is asked to appoint a receiver in behalf of 
 the owner of real estate where he has executed a contract of sale 
 to a purchaser, and delivered possession under tlie contract, and 
 there is a default in the payments. The action in such case is 
 based upon the plaintiff's right to rescind the contract by reason 
 of nonpayment, or to have the property sold in payment of the 
 remaining unpaid purchase money, coupled with proof showing 
 insolvency of the purchaser or waste or other inadequacy of se- 
 curity.' But relief will not be granted if it appears that the in- 
 solvency of the ptirchaser was known to the seller when the con- 
 tract was made,'^ or where the plaintiff's right of recovery is fully 
 denied.' The same relief is not granted as between the seller and 
 purchaser of a stock of goods even where insolvency is shown, 
 unless there be an express reservation of title in the seller.* 
 
 'A receiver of rents and profits may 
 be appointed in an action to foreclose 
 a contract for the sale of land where 
 the land affords inadequate security 
 for the amount due, and is rapidly 
 depreciating in value. Smith v. Kelley, 
 31 Hun, 387. 
 
 A vendor who has sold land upon a 
 credit to one who has given notes 
 signed, as trustee, for the payment 
 of the purchase money in two equal 
 annual instalments, is not entitled to 
 have a receiver, upon failure to pay 
 one of the instalments when due, 
 where it does not appear that the pur- 
 chaser or his cestui que trust is less 
 
 solvent than at the time of the pur- 
 chase. Tumlin v. Van/torn, 77 Ga. 
 315. 
 
 MeCasUn v. Slate, 44 Ind. 151; 
 Phillips V. Eiland, 52 Miss. 721; Gunhy 
 V. Tho7npson, 56 Ga. 316; Worrill v. 
 Coker, 56 Ga. 666; Tufts v. Little, 56 
 Ga. 139; Chappell v. Boyd, 56 Ga. 578; 
 Jordan v. Beat, 57 Ga. 602; Collier v. 
 Sa]}p, 49 Ga. 93. 
 
 ^Jordan v. Beal, 57 Ga. 602; Tumlin 
 V. Vanhorn, 77 Ga. 315. 
 
 * Hughes v. Ilatchett, 55 Ala. 631. 
 
 * The vendor of a stock of goods 
 upon condition that tliey shall not be 
 removed from town, and that the pro- 
 
 548
 
 MISCELLANEOUS RECEIVERSHIPS. 
 
 64y 
 
 § .316. Between creditor and debtor. 
 
 On a bill filed by a creditor to subject the property of his 
 debtor, which has been fraudulently conveyed, to tiie payment of 
 liis debt, and the insolvency of the fraudulent purchaser is shown, 
 a receiver may be appointed;' but such relief will not probably be 
 granted if an adequate remedy at law might have been available, 
 such as attachment.^ 
 
 § 317, In partition suits and between tenants in common. 
 
 In matters between tenants in common, where a suit for parti- 
 tion is pending, the appointment of a receiver has sometimes been 
 made, but the cases in which such action has been taken are ex- 
 
 ceeds of sales shall be turned over to 
 Lira until the balance of the purchase 
 price is paid, has, in the absence of 
 an express reservation of title, no such 
 interest therein as to entitle him to a 
 receiver upon the failure of the pur- 
 chas'.er to comply -with the agreement 
 as to proceeds, though the latter is in- 
 solvent. Steele v. Aspy, 128 Ind. 367. 
 
 That he may by stipulation retain 
 title is well settled, but it must be 
 plain and express. Wincliester Wagon 
 Works & Mfg. Co. v. Carman, 109 
 Ind. 31; Hodson v. Warner, 60 Ind. 
 214. 
 
 When there is reasonable ground to 
 apprehend that,pending litigation, the 
 property subject to litigation will be 
 disposed of fraudulently or in such a 
 way as to deprive the complaining 
 party of the fruit of his recovery 
 when had, the court will appoint a re- 
 ceiver. Ellett V. Newman, 92 N. C. 
 519. 
 
 ' A creditor who has fiied a bill to 
 subject personal property fraudu- 
 lently disposed of by a deceased 
 debtor to the payment of his debt, 
 and has caused process to be served 
 thereon, may have a receiver of ihe 
 property if there is a reasonable prob- 
 
 ability of recovery, and danger of loss 
 from misconduct or insolvency if it is 
 permitted to remain in the possession 
 of the defendant. Werborn v. Kahn, 
 93 Ala. 201. 
 
 ^ A receiver will not be appointed 
 on application of an attaching cred- 
 itor, in a suit by him to set aside a 
 fraudulent conveyance of personalty 
 by his debtor, where his remedy at 
 law was lost by his own laches in fail- 
 ing to have the attachment levied 
 when a regular and valid levy could 
 have been made and the property law- 
 fully taken under the writ. Pearce v. 
 Jennings, 94 Ala. 524. 
 
 In a suit to set aside as fraudulent 
 an assignment for benefit of creditors 
 and for a receiver of the property, it 
 is error to appoint a receiver, with in- 
 structions to collect in the assets and 
 deliver them to the assignees. Nuas- 
 baum v. Price, 80 Ga. 205. 
 
 A creditor seeking to set aside con- 
 veyances of land by his debtor as 
 fraudulent is not entitled to the ap- 
 pointment of a receiver of the rents 
 and profits, in the absence of proof 
 that the grantees are insolvent. Clark 
 V. liaymond, 85 Iowa, 737.
 
 550 
 
 RECEIVERSHIPS. 
 
 ceedinc^ly rare. The grounds for the appointnient in such eases 
 are usually 
 
 (a) Where one tenant is in possession and exchides his cotenant 
 from participation in the possession or income." 
 
 (b) "Where the tenant in j)ossession is insolvent and refuses to 
 account to his cotenant.^ 
 
 (c) Where one tenant refuses to join his cotenant in the execu- 
 tion of necessary leases for the property owned in coininon, or 
 interferes in tlie collection of rents with the tenants in possession.^ 
 
 (d) "Where the court can see from the showing made that the 
 appointment of a receiver is required in order to properly protect 
 the interests of parties.* 
 
 ' Milbank v. Revert, 2 Meriv. 405; 
 Low V. Uolmes, 17 N. J. Eq. 148; 
 Qoodale v. 15th Dist. Ct. of San Fran- 
 cisco, 56 Cal. 36; Duncan v. Campau, 
 15 Mich. 415. But see Varnum v. 
 Leek, 65 Iowa, 751. Cf. Sandford v. 
 Ballard, 33 Beav. 401- Vaughan 
 V. Vincent, 88 N. C. 116. 
 
 ^Darcin v. \yelh, 61 How. Pr. 259; 
 Parker v. Parker, 82 N. C. 165; Wil- 
 liams V. Jenkins, 11 Ga. 595; Stith v. 
 Jones, 101 N. C. 360; Thomas v. iVaw- 
 (ahala Marble & T. Co. 58 Fed. Rep. 
 485. 
 
 * In an equitable action for the par- 
 tition of real estate, where the plain- 
 tiff showed good reason to believe that 
 some portion of the property could 
 not be rented, in consequence of the 
 refusal of the defendant to unite with 
 the other tenant in common (plaintiff), 
 and that the rents of other portions 
 which had been rented could not be 
 collected in consequence of her inter- 
 ference, — Held, that it was proper, in 
 order to preserve the property from 
 serious loss, to appoint a receiver. 
 Pignolet v. Bushe, 28 How. Pr. 9. 
 
 Plaintiffs in partition, having a right 
 to have a receiver appointed, cannot 
 be deprived of that right on the ob- 
 jection of a defendant because the per- 
 son claiming the rents is amply re- 
 
 sponsible, though the defendant offers 
 to indemnify against loss by such col- 
 lector, or to take charge of the estate 
 and collect the rents free of charge, 
 and give a bond of indemnity. Rapp 
 v. ReeMing, 122 Ind. 255, 
 
 Pending an application for a parti- 
 tion by one of two tenants in com- 
 mon there is no ground for the ap- 
 pointment of a receiver at the request 
 of one tenant in common, simply be- 
 cause the other is in possession, under 
 Iowa Code, § 2903, allowing the 
 court, in all civil actions, to appoint a 
 receiver if the interests of either party 
 will be promoted. Varnum v. Leek, 
 65 Iowa, 751. 
 
 *Ames V. Ames, 148 111. 321; Pig- 
 nolet V. Bushe, 28 How. Pr. 9; Bowers 
 V. Durant, 2 N. Y. S. R. 127; Weise 
 V. WeUh, 30 N. J. Eq. 431 ; Duncan v. 
 Campau, 15 Mich. 415. Cf. Eoelyn v. 
 Evelyn, 2 Dick. Ch. 800; Sandford 
 V. Ballard, 33 Beav. 401; Hargrave v. 
 Hargrove, 9 Beav. 549; Smith v. Ly- 
 ster, 4 Beav. 227; Rutherford v. Jones, 
 14 Ga. 521; Low v. Holmes, 17 N. J. 
 Eq. 148; Street v. Anderton, 4 Bro. C. 
 C. 414; Knowles v. Clayton, 2 L. J. 
 Ch. 181. 
 
 Pending a suit for a sale of land for 
 division among cotenants, equity will 
 not, by appointing a receiver, inter-
 
 MISCELLANEOUS RECEIVERSHIPS. 551 
 
 § 318. In suits for specific performance. 
 
 A receiver will sometimes be appointed in a suit pending to 
 enforce the specific performance of a contract, where it is neces- 
 sary, by reason of insolvency or other good cause shown, in order 
 to adequately protect the parties.' And also wliere real estate has 
 been sold and the purchaser is ])ermitting the property to go to waste 
 and thus lessening the vendor's security.^ This, of course, is 
 based upon vendor's right to alien for the unpaid purchase money. 
 
 § 319. As Ibetween lessor and lessee. 
 
 AVhere a party is clothed with title and possession such as are 
 conferred by a lease in writing and is in the enjoyment of rights 
 apparently legal a receiver will not be appointed unless under 
 urgent and peculiar circumstances. The plaintiff must show a 
 clear right in such case or at least such a prima facie case, with 
 such attending circumstances of danger or probable loss, as will 
 move the conscience of a chancellor to interfere,^ 
 
 § 320. In ejectment suits. 
 
 A receiver will not be appointed in an ejectment suit between 
 the first and second trials where the first results in a judgment in 
 favor of the plaintiff, under a statute providing for giving a 
 
 fere with the lawful possession of one where defendant, who is a nonresident 
 
 of the tenants, who is not shown to without properly in the state save the 
 
 dispute the title or to disturb the pos- machinery on the land, is operating 
 
 session of his cotenants; especially if the wells and selling the product, 
 
 there is no sufficient averment of in- Gallmcay v. Campbell, 142 Ind. 324. 
 solvency. Cassetty v. Cupjys, 3 Tenn. A receiver may be appointed of a 
 
 Ch. 524. fund arising from a contract with the 
 
 A receiver of the rents and profits United States government, in a suit 
 of tenement houses will not be granted to enforce specific performance of an 
 at the suit of the life tenant against a agreement by the contractor to trans- 
 remainderman who, by agreement of fer the checks. Leonard v. Whaley, 
 the parties, has been managing the 91 Hun, 304; Taylor v. Eckerdey, L. 
 property, in the absence of proof of R. 2 Ch. Div. 302. But see Morford 
 mismanagement resulting to the plain- v. Ilarnner, 3 Baxt. 391; Darusmont 
 tiff's injury, liollwageu v. Rollwagen, v. Patton, 4 Lea, 597. 
 37 N. Y. S. R. 293. ^ Oibbs v. David, L. R. 20 Eq. 373; 
 
 ' The appointment of a receiver to Smith v. Kclley, 31 Hun, 387; Phil- 
 
 operate oil wells pending an action lips v. Eiland, 52 Miss. 721. 
 for the specific performance of a con- ^ Chicago & A. Oil cB Min. Co. v. 
 
 tract to assign a lease is authorized United Slates Petroleum Co. 57 Pa. 83.
 
 552 
 
 UECEIVEKSHIPS. 
 
 bond by tbe defendant securing the plaintif! against all costs and 
 damages that may be recovered against him, the bond in snch 
 case being considered an ample protection to the plaintiff.' The 
 general rule is that as between contestants over legal title a court 
 of equity will not interfere and aj)point a receiver over the in- 
 come or crops."* There must be strong grounds for relief shown, 
 in which the element of danger of loss is apparent.' 
 
 § 321. Ill aliiiioiiy suits. 
 
 Where a deceee for alimony has been rendered a proceeding 
 supplementary to execution may be based thereon, and a receiver 
 appointed over the defendant's effects." But independently of 
 any statutory provision a suit in equity may be maintained to 
 compel the payment of alimony decreed to a wife.' 
 
 ' A receiver to harvest and sell crops 
 will not be appointed, pending the 
 statutory new trial, in an ejectment 
 action, as the undertaking to pay all 
 costs and damages which shall be re- 
 covered in the action, required by 
 Ind. Rev. Stat. 1894, § 1076, as a 
 condition of a new trial, affords an 
 adequate remedy at law if damages 
 for conversion of the crops would be 
 recoverable in the action, and, if not 
 recoverable, the remedy would be im- 
 proper. Stephens v. Kaga, 142 Ind. 
 523. 
 
 » Thompson v. Sherrard, 22 How. 
 Pr. 155, 35 Barb. 593; Corey v. Long, 
 12 Abb. Pr. N. S. 427; People v. 
 New York, 10 Abb. Pr. Ill, reversing 
 8 Abb. Pr. 7. 
 
 The refusal in such case to grant 
 plaintiff a receiver of the rents and 
 profits is based upon the fact that the 
 action of ejectment is not for the un- 
 lawful withholding of possession, but 
 is brought against the defendants as 
 trespassers, and the claim against de- 
 fendants is for damage as trespassers. 
 The appointment of a receiver to re- 
 cover damages in an action of trespass 
 is unknown to the law. In Bateman 
 V. San Francisco Super. Ct. 54 Cal. 285, 
 
 it is held that a receiver in ejectment 
 cases cannot be appointed under the 
 California code. In lioUins v. Henry, 
 77 N. C. 467, it is held that where the 
 contest is simply one over disputed 
 title to property, both parties claiming 
 the legal title, a receiver will not be 
 appointed even where the defendant 
 is insolvent. A receiver will be ap- 
 pointed only when the plaintiff sets 
 forth an apparently good title, not 
 sufficiently controverted by the an- 
 swer, and shows imminent danger of 
 loss. Scott V. Scott, 13 Ir. Eq. 212. 
 Cf. Kron v. Dennis, 90 N. C. 327; 
 Whitworth v. Wofford, 73 Ga. 259; Da- 
 vis V. Taylor, 86 Ga. 506. 
 
 ^Ireland v. Nichols, S7 How. Pr. 222. 
 The statute under which this decision 
 was rendered provided that the plain- 
 tiff should have damages for the rents 
 and profits of the premises recovered. 
 See, contra, Thompson v. Sherrard. 35 
 Barb. 593. Cf. Rogers v. Marshall, 6 
 Abb. Pr. N. S. 457; Payne v. Atter- 
 bury, Harr. Ch. (Mich.) 414; Frishee v. 
 Timanus, 12 Fla. 300; Whitney v. Buck- 
 man. 26 Cal. 447. 
 
 * Barker v. Dayton, 28 Wis. 367, 
 5 Barber v. Barber, 62 U. S. 21 How. 
 582, 16 L. ed. 226. In Kirby v. Kirby,
 
 MISCELLANEOUS KECEIVERSH1P3. 553 
 
 ^ 323. For Iniildiiig and loan associations. 
 
 The rio'ht of a court of equity to appoint a receiver of a build- 
 ing and loan association is well recognized, but the grounds upon 
 which it will intercede and take the temporary niaiiagenient of these 
 concerns under its control through a receivership is not free from 
 ditiiculties. The cor])orate franchises of these associations, being 
 granted by the state, are at all times sul)ject to revocation by the 
 state for a violation of the charter privileges granted in the ap- 
 propriate actions therefor, but these proceedings on an action to 
 be set in motion by the state alone, wliere the public alone, as a 
 body, are interested, are not available to the individual for the 
 protection of private rights and the redress of private wrongs. 
 
 The chief difficulty arises from the peculiar relationship exist- 
 ing in such associations between the members towards each other, 
 and the unique relationship of each to the corporate entity. The 
 members are of two kinds, depositors and borrowers, each class 
 sustaining peculiar relations to the other. They have been, and 
 not inaptly, termed corpoi'ate copartnerships for the reason that 
 the stockholders are in effect copartners in their business i-elations. 
 Each contributes at stated periods fixed amounts as contributions 
 to a common fund and this fund is loaned out, as a rule, upon 
 real estate security, and repaid in instalments with interest and 
 premiums, and these are also contributions to the common fund 
 for reinvestment. The members while called stockholders are 
 in fact qtiasi partners in the results of their investments. Owing 
 to the peculiar nature of the business it is imperative that the 
 transactions shall be under the supervision of a board of directors, 
 
 1 Paige, 261, the court says: "The in- effect is Carey v. Carey, 2 Daly, 424. 
 junction, receiver, and ne crcat may all In IIolmeH v. Holmes, 29 N. J. Eq. 9, a 
 properly be made use of to aid the receiver is said to be justiliable if the 
 court in doing justice between tlic par- defendant will not give bond, with 
 ties." So also in Quextel v. Questel, satisfactory security for the payments. 
 Wright (Ohio) 492, where a husband Cf. StiUman v. Stillman, 7 Baxt. 169. 
 conveyed his property to his son to It would seem that a court which 
 prevent a recovery for alimony on a renders a decree for alimony would 
 bill pending for such purpose it was be enabled to enforce that decree l)y 
 held that a court of chancery may appointing a receiver, if necessnry, 
 properly enjoin the parlies from fur- and that no separate and independent 
 tlier changing the property, and ap- proceeding based on such decree is re- 
 point a receiver to secure the income quired unless it is necessary to go to 
 to satisfy the alimony. To the same a foreign jurisdiction to enforce it.
 
 654 RECEIVERSHIPS. 
 
 manai^ing coinmittee, or otlier body, Mith appropriate officers. 
 These goveriiiii<r bodies, under wliatever name designated, are 
 trustees in the strictest sense of the word, charged with the man- 
 agement of the conii^any's business in acconhiuce witli tlie stat- 
 utory requirements, and the by-laws, rules, and regulations adopted 
 for its management, and are responsible not only for the safe- 
 keeping of the funds contributed, l)ut for judicious and profitable 
 investment tliereof so that the profits derived shall mature the 
 stock of the members within given periods. The investors, as a 
 rule, have small holdings, are often scattered over large areas of 
 territory, and generalh^ from inexperience or situation are of 
 necessity expected to place a large degree of eonfidence in the man- 
 aging ofiicers, and the latter assume a corresponding degree of 
 responsibility and accountability. The strictness and faithfulness 
 attaching to the directory of the ordinary corporation in the man- 
 agement of its afl:airs are redoubled when applied to the govern- 
 ing board of the building and loan society. Coupled with the 
 responsibility in the management of these institutions is another 
 element which renders the facilities for mismanagement wide and 
 extended, and this has caused the state in many cases to place 
 these societies under the supervision of designated state ofiicials, 
 charged with the duty of keeping the management within the 
 statutor}' requirements, as well as to detect any evidence of neg- 
 ligence or misconduct on the part of the corporate officials. Thus 
 it will be seen that the inherent character of these institutions, 
 the attitude of the state towards them in its efl;orts to shield their 
 members from mismanagement, the large and increasing number 
 of them, the aggregate volume of corporate funds seeking invest- 
 ment, and the wide fields afforded for reckless management and 
 maladministration, — all render courts of equity peculiarly appro- 
 priate tribunals not only for the prevention of loss and injury to 
 creditors and stockholders, but for settling and adjudicating the 
 conflicting rights and interests of the members in their several 
 classes, as well as the winding up and distribution of the assets 
 according to the equities of all parties. 
 
 § 323. Orounds for appointment. 
 
 The ordinary and usual gi-ounds upon which the application for 
 a receiver in this class of cases is made is the fraudulent misman-
 
 MISCELLANEOUS RECEIVERSHIPS. 
 
 555 
 
 awenient of the aiTairs of the association, disregard of the cliarter 
 and by-laws, embezzlement of the officers, and insolvency of the 
 association.' 
 
 ' In Toicle v. American Blclg. L. &I. 
 Soc. 60 Fed. Rep. 131, a stockholder 
 in the association filed a bill in behalf 
 of himself and all other shareholders 
 joining him upon which a receiver 
 ■was appointed with the consent of the 
 corporation and one of the questions 
 was as to the authority of the court to 
 appoint a receiver. The court says: 
 "The complainant is substiintially 
 both depositor and shareholder. Un- 
 der the constitution of the society he 
 passed into the treasury periodically 
 certain stipulated funds. The fund 
 thus collected is loaned out upon real 
 estate security. The interest of the 
 member is not that simply of a depos- 
 itor in a bank or a creditor of a corpo- 
 ration. He holds no promise of the 
 corporation for a return of his fund. 
 He is a part holder of the fund — has 
 an interest directly in the fund — and is 
 entitled to a proportionate share as 
 owner upon its distribution. The 
 whole scheme of building associations 
 is that of a corporate copartnership 
 whereby are gathered into a common 
 fund and loaned as such the money of 
 many individuals. The interest of 
 each stockholder in the sums thus 
 collected and loaned is as direct as if 
 no corporation intervened. The cor- 
 poration has no function or power ex- 
 cept to loan out these gathered sums 
 and return the avails thereof into the 
 hands of the contributors. If the 
 stockholder of a corporation or a part- 
 ner in copartnership can rightfully in- 
 voke the aid of equity to administer 
 the assets of the corporation or co- 
 partnership when such power seems 
 essential to the conservation of the 
 assets I can see no reason why the 
 complainant is not entitled to a like 
 
 aid. That the relief will be afforded 
 to stockholders and copartners upon a 
 proper showing is not seriously de- 
 nied. The need of such relief in 
 this case seems to me to be imperative. 
 Tlie societ}^ I think, largely through 
 the mismanagement of its oflicers, has 
 so impaired the assets that there ap- 
 pears to be on hand less than sixty-six 
 per cent on a dollar contributed. 
 There is no claim that this loss is 
 merely temporary, or that the con- 
 tinuance of this society in its present 
 management will repair the evil. A 
 continuance of the organization would 
 simply be a hardship upon already in- 
 jured shareholders and nothing in 
 their Interest can be suggested except 
 a speedy and intelligent collection of 
 the assets for distribution among the 
 members. This, manifestly, ought 
 not to be done by the management 
 that has brought about the injury and 
 there is no way pointed out for the 
 substitution of a new management that 
 will promise a better administration. 
 Here the debt is $000,000 collected 
 from innumerable sources. Most of 
 the contributors are among the poor, 
 people not accustomed to the manage- 
 ment of business affairs. This large 
 fund is scattered through five or six 
 states and already promises a return of 
 less than sixty-six per cent of the 
 original advance. There is no man- 
 agement in power except the discred- 
 ited and distrusted officers. Upon 
 what pretext can acourtof equity close 
 its ears again.st the call to take hold." 
 Subsequently the same case came 
 before the court and is reported in Gl 
 Fed. Rep. 446, where the riglits of the 
 stockholders and the order of distribu- 
 tion are discussed, c/'. 78 Fed. Rep. 688.
 
 556 
 
 RECEIVERSHIPS. 
 
 The case of JToboJcen BJdg. Asfio. v. 
 Martin, 13 N. J. Eq. 437, is devoted 
 to a discussion as to the rights and in- 
 terests of shareholders and the mort- 
 gagors in the society and the parties 
 and the rights of adjustment with ref- 
 erence to the peculiar facts of the case. 
 
 In FroHtburg BUIg. Asso. v. Stark, 47 
 Md. 338, application was made by 
 stockholders for a receiver of the cor- 
 poration alleging gross and fraudu- 
 lent misuianagement of the affairs of 
 the association, violation of its charter 
 and by-laws by the officers, embezzle- 
 ment by the secretary, misappropria- 
 tion by one of the directors, and that 
 the directors had refused to take steps 
 to recover the amount due from the 
 defaulting officers, were doing business 
 without a treasurer and without a 
 bonded secretary, and that the corpora- 
 tion was insolvent. Under these alle- 
 gations the court appointed a receiver 
 and the appointment was held proper 
 on appeal. 
 
 Loic Street Bldg. Asso. No. 6 v. 
 Zticlcer, 48 Md. 448, was a case adjust- 
 ing the rights between the mortgagor 
 and mortgagee and holding that the 
 
 mortgagor could not becallcd upon to 
 contribute to the losses and liabilities 
 of the association. 
 
 In Christiaris Appeal, 102 Pa. 184, 
 the court say that the appointment of 
 a receiver to administer the assets of 
 an insolvent association may be strictly 
 regular, but where the same result 
 may be more directly, and equally as 
 well, attained by an assignment, the 
 latter course should be followed. 
 
 y 
 
 FroKtburg Bldg. Asso. v. Stark, 47 
 Md. 338. In this case there was also an 
 allegation that the officers refused to 
 take steps to recover the amount due 
 from defaulting officers. Cf. Totclev. 
 American Bldg. L. & I. Sac. 60 Fed. 
 Rep. 131. 
 
 Where the active operations of a 
 company have ceased and its affairs 
 are in course of settlement under the 
 direction and control of a court of 
 equity it is, to all practical purposes, 
 equivalent to a dissolution of the cor- 
 poration. Peters Bldg. Asso. No. 6 v. 
 Jaecksch, 57 Md. 198. 
 
 The court is averse to appointing a 
 receiver without notice. Frostburg 
 Bldg. Asso. v. Stark, 47 Md. 338.
 
 CHAPTER XYIII. 
 
 REMOVAL AND DISCHARGE OF RECEIVER. 
 
 § 330. Removal and discbarge. 
 
 (a) Notice of application. 
 
 (b) Application for removal. 
 
 (c) Application, by whom 
 
 made. 
 
 (d) Grounds for removal. 
 
 (e) Removal not subject to ap- 
 
 peal ; effect of appeal. 
 
 (f) Effect of removal and dis- 
 
 cliarge. 
 
 (g) Grounds for refusal to dis- 
 
 charge. 
 
 § 330. Removal and cliscliarge. 
 
 (a) Notice of application. 
 Before tlie court will entertain a notice to retnove or discharge 
 a receiver, notice should be given of the intended application to 
 all parties in interest. The action of the court in the appoint- 
 ment having been in the interest of all parties who at the end of 
 the litigation uiiglit establish a right to the property or fund, it 
 is necessary that all should be heard or have an opportunity to 
 be heard in the matter of removal or discharge.' Want of notice 
 
 ^ Brown v. Perry, 1 Ch. (Ont.) 253; 
 Coburn v. Ames, 57 Cal. 201. 
 
 A court vphich has made an ancil- 
 lary appointment of a receiver ap- 
 pointed in another jurisdiction will 
 not entertain the question of the re- 
 moval of such receiver for misconduct, 
 but the application should be made to 
 the court originally appointing him. 
 Chattanooga T. R. Co. v. Felton, 69 
 Fed. Rep. 273. 
 
 A court will entertain a motion to 
 discharge, though the order appoint- 
 ing was made on notice. Sanders v. 
 Christie, 1 Grant Ch. (Ont.) 137. 
 
 In Bruns v. Stewart Mfg. Co. 31 
 Hun, 316, it appeared that a new re- 
 ceiver was substituted in tlie place of 
 a former one, and it was held that 
 where the motion to vacate the order 
 had been denied, the court could not, 
 upon objections by other persons, re- 
 
 move the receiver for different or 
 other reasons without notice. 
 
 In Attrill v. Rockaioay Beach Improv. 
 Co. 25 Hun, 509, it is held that notice 
 for the removal of the receiver should 
 be served upon all the parties who 
 have appeared in the action. 
 
 In Young v. Montgomery & E. R. 
 Co. 2 Woods, 606, it is said that no 
 court or judge would order the re- 
 moval of a receiver ex parte without 
 giving them their day in court. "No 
 matter what .showing the complain- 
 ants may be able to make as to the in- 
 competency, unfitness, or dishonesty 
 of the receiver, this court cannot act. 
 That showing must be made to the 
 court which appointed him." 
 
 It has been held, however, that no- 
 tice to creditors is not required. New 
 York & W. U. Teleg. Co. v. Jewett, 115 
 N.Y. 166. 
 
 557
 
 558 
 
 RECEIVERSHIPS. 
 
 tlioni;li in-e^ular wonUl probably not justify a reversal.' The 
 receiver as a rule is not entitled to notice, for the reason that he 
 has no intei-est in the subject-matter of the litigation." If, how- 
 ever, the removal is based upon some act or alleged misconduct of 
 the receiver, then in such case he is entitled to notice and to know 
 the grounds upon which the application is to be based.* 
 
 (b) ArPLICATION FOR REMOVAL. 
 
 If the application for removal is based upon the act of the re- 
 ceiver, it should be made in the form of a petition, setting forth 
 the facts upon which it is based, so that an issue may be formed,' 
 and the application must be made in apt time," or at least on con- 
 
 • Cohurn v. Ames, 57 Cal. 201. 
 
 'In Howard v. Lowell 3farh. Co. 75 
 Ga. 825, it was lield that an order ap- 
 pointing a receiver may be revolced 
 •without notice. It is only in cases 
 where the receiver's conduct is called 
 in question and where it is sought to 
 make him liable, or where he is called 
 upon to account or make return that 
 he is entitled to a notice or to a hearing. 
 He is not entitled to a notice or a hear- 
 ing when the question relates to the 
 necessity of his appointment or of the 
 continuance of tiie appointment. 
 
 ^ A motion to dismiss a receiver will 
 not be granted until he has had rea- 
 sonable notice in writing of such in- 
 tended motion, and the grounds upon 
 which his removal is sought must be 
 specifically set out in such written 
 notice. Dotigherty v. Jones, 37 Ga. 
 348; Young \ .Montgomery <& E. B. Co. 
 2 Woods, 606. 
 
 In Slate, Pettoiger, v. Claypool, 13 
 Ohio St. 14, the receiver being ap- 
 pointed by statute by the state officers, 
 it was held that he was not removable 
 under the statute at their pleasure. 
 
 Where a receiver of a corporation, 
 pending an action brought by him as 
 such, was removed, and a successor 
 appointed, and the original receiver 
 afterwards died, and siibsequently the 
 
 second receiver was removed and a 
 third appointed, — Held that it was 
 proper to substitute the third receiver 
 as plaintilT in the action in place of 
 the first. Sheldon v. Adams, 18 Abb. 
 Pr. 405, 37 How. Pr. 179, 41 Barb. 
 54. 
 
 * Where it is necessary, in order to 
 obtain the desired relief, that an inter- 
 vener obtain the vacation of an order 
 appointing a receiver, a summary pro- 
 ceeding by motion is not the appro- 
 priate remedy, but this should be done 
 by a petition setting forth the facts 
 upon which he relies, to which the 
 receiver may interpose an answer and 
 take issue. Jacobson v. Landolt, 73 
 Wis. 142. 
 
 *If, during the term of the court 
 that appointed a receiver, there is, by 
 adjournment, such an interval in the 
 session as to prevent the application 
 for his removal to be made to the 
 same, without causing injustice by 
 the delay, it is the duty of the judge 
 at chambers to act thereon. Cincin- 
 nati, S. & C. B. Co. v. Sloan, 31 Ohio 
 St. 1. 
 
 Creditors of a state bank who have 
 acquiesced for several months in the 
 appointment of a receiver of the bank 
 on the application of a stockholder, 
 during which time large expenses have
 
 REMOVAL AND DISCHARGE OF RECEIVER. 
 
 559 
 
 dition tliat the receiver's exj^enses and compensation be paid,' 
 and should be made in the court in whicli the receiver was ap- 
 pointed/ The removal rests in the sound judicial discretion of 
 the court, to be exercised under all the circumstances of each 
 particular case.^ 
 
 been incurred in the administration of 
 the receivership, are estopped to claim 
 tlie illegality of the appointment where 
 it is at most voidable only, and not 
 void. Dickerson v. Cass County Bank 
 (Iowa) 64 N.W. 395. 
 
 The court may vacate an order ap- 
 pointing a receiver pending a motion 
 for a new trial of the case in which 
 such appointment was made. Copper 
 Hill Min. Co. v. Spencer, 25 Cal. 11. 
 
 The court may, at any time before 
 the appointment of a receiver, which 
 they have directed, is consummated, 
 revoke such appointment and appoint 
 another. Siney v. New York Consul. 
 Stage Co. 18 Abb. Pr. 435, 28 How. 
 Pr. 481. 
 
 ' Where a receiver appointed in an 
 action commenced when a former ac- 
 tion between the same parties and on 
 the same subject-matter was pending 
 in another court, had expended mon- 
 eys in the matter of the receivership, 
 — Held, on granting a motion to stay 
 proceedings and to vacate the order 
 for his appointment, that it should be 
 done on condition that his expenses 
 and compensation be paid by the 
 moving party. McCarthy v. Peake, 9 
 Abb. Pr. 164. 
 
 ' The rights of one having a judg- 
 ment against another as receiver, with 
 a direction that his claim be paid from 
 a certain fund at that time in the re- 
 ceiver's hands, cannot, pending an 
 appeal from such judgment, be taken 
 away by a judgment or direction in 
 another action discharging the re- 
 ceiver, to which he was not a party. 
 Woodruff V. Jewett, 115 N.Y. 267, Re- 
 versing 37 Hun, 205. 
 
 In Attvill V. Rockaway Bench Tmprov. 
 Co. 25 Hun, 376, it is held that a re- 
 ceiver appointed in one judicial dis- 
 trict cannot be removed upon an ap- 
 plication made in another judicial dis- 
 trict; that a receiver appointed in an 
 action should not be removed without 
 notice of the application to the plain- 
 tiff at whose instance he was ap- 
 pointed. 
 
 Proceedings to remove must neces- 
 sarily be in the case in which he is 
 appointed. Mechanics' Nat. Bank v. 
 Landauer, 68 Wis. 44. 
 
 A mortgagee in possession having 
 been adjudged to be in i)ossession as 
 sucli, and appointed receiver, — Held 
 that another judge should not remove 
 him for any cause existing before the 
 order of his appointment was made, 
 but might control his administration 
 of the trust. Bolles v. Duff, 35 How. 
 Pr. 481. 
 
 3 In Milwaukee & M. R. Co. v. Sout- 
 ter, 69 U. S. 2 Wall. 510, 17 L. ed. 
 900, it is held that the appointment 
 or discharge of a receiver is ordina- 
 rily a matter resting wholly within 
 the discretion of the court, but is not 
 always absolutely so. That in a fore- 
 closure proceeding where the amount 
 due on the mortgage is a matter un- 
 settled and contested, the appointment 
 or discharge of a receiver is in the 
 discretion of the court in which 
 the litigation is pending. When the 
 amount due lias been passed upon 
 and fixed and the right of the mort- 
 gagor to pay settled, the court has no 
 discretion to withhold the restoration 
 of the property, and the refusal to 
 discharge the receiver is a judicial
 
 560 
 
 RECEIVERSHIPS. 
 
 (c) Application, by whom made. 
 
 The application for the discharge of the receiver may be made 
 
 by tlie defendant, a stockholder or creditor, or other i)arty in 
 
 interest, where a proper showing is made and the court is of 
 
 opinion the interests of all concerned will be protected.' The 
 
 error which the appellate court may 
 correct. In such case the discharge 
 is proper, even though third parties 
 set up claims to the road which they 
 asked the receiver to provide for and 
 protect, but which are disputed and 
 contested. The court will exercise 
 the power of discharging under con- 
 ditions, such as that of the company 
 giving security to pay the claims if 
 finally established as liens. 
 
 The exercise of the power to re- 
 move a receiver rests in the discretion 
 of the court, aud is to be governed by 
 the circumstances of each particular 
 case; and bias and partiality are good 
 grounds for its exercise. Detroit First 
 Nat. Bank v. Barnum Wire & I. 
 WorkK, 60 Mich. 487, 58 Mich. 124, 
 315; Davis v. Gray, 83 U. S. 16 Wall. 
 217, 218, 21 L. ed. 453; Merchants & 
 M. Nat. Bank v. Kent Circuit Judge, 
 43 Mich. 297. 
 
 A chancellor may in his sound dis- 
 cretion refuse to terminate a receiver- 
 ship in an action attacking an attach- 
 ment, and to deliver the money in 
 the receiver's hands to the attachment 
 creditors who have recovered a judg- 
 ment in the attachment action pend- 
 ing an appeal taken upon mere surety- 
 ship for costs from a judgment in their 
 favor, where the fund is large and 
 they are nonresidents. E.t parte Hood 
 (Ala.) 18 So. 176; Be Albert Average, 
 etc. L. R. 5 Ch. A pp. 597. 
 
 • Atkins V. Waba-sJi, St. L. d P. R. 
 Co. 29 Fed. Kep. 161. 
 
 In an application of the defend- 
 ant to vacate and set aside the ap- 
 pointment of a receiver in an action 
 
 to foreclose a chattel mortgage, the 
 court ordered the receiver to be dis- 
 charged if the defendant would exe- 
 cute a bond to pay the judgment and 
 costs, which bond the defendant vol- 
 untarily executed, and had restored 
 from the receiver all the property. 
 Such defendant cannot contest the 
 legal costs of the receiver or any 
 irregularity in his appointment. State 
 Journal Co. v. Commonwealth Co. 43 
 Kan 93. 
 
 But where the receiver is appointed 
 under a creditor's bill filed in behalf 
 of all, the removal will not be made 
 against the consent of a judgment 
 creditor, even though a defendant. 
 J^argan v. Bowen, 1 Sch. «fe Lef. 296; 
 Murrough v. Trench, 2 Moll. 497. Cf. 
 Be Association of Land Financiers, 
 L. R. 10 Ch. Div. 269. 
 
 A receiver appointed on an applica- 
 tion of debenture holders, with power 
 to manage the business of the cor- 
 poration until the creditors' petition 
 to wind up is disposed of, should not 
 be discharged when continued after 
 the making of the winding-up order, 
 because leave is given to discontinue 
 the business, where interest on the de- 
 bentures is in arrears, and there is no 
 uncalled capital, and the assets of the 
 company are not enough to pay the 
 debentures. Strong v. Carlyle Press 
 [1893] 1 Ch. 268. 
 
 In Fifth Nat. Bank v. Pittsburg & 
 C. S. R. Co. 1 Fed. Rep. 190, it is 
 held that the stockholders of the de 
 fendant railroad company cannot 
 obtain the removal of the receiver by 
 petition where it appears that the
 
 REMOVAL AND DISCHARGE OF RECEIVER. 
 
 561 
 
 application has sometimes been entertained on behalf of the re- 
 ceiver,' but as a rule his application will not be granted.'^ 
 
 corporation Las a regularly elected 
 board of directors and that such board 
 is in sympathy with the petitioners. 
 As to the grounds upon which an 
 appointment of a receiver of a bank 
 will be vacated on petition of a credi- 
 tor not a party to the proceedings for 
 the appointment, see Bowery Bank 
 Case, 5 Abb. Pr. 415. 
 
 ' The discontinuance of a suit in 
 equity for the account and settle- 
 ment of the concerns of a copartner- 
 ship, does not discharge a receiver 
 appointed therein; but will entitle 
 the receiver to apply for his discharge 
 and exonerate himself and his sureties, 
 unless the interests of the defendants 
 require that he should continue in the 
 receivership to protect their rights, in 
 which case the defendant so pro- 
 tected should be required to file a bill 
 forthwith to settle his rights. ^Yhite- 
 side V. Pendergnd, 2 Barb. Ch. 471. 
 
 ^ The receiver of a broken bank 
 will not be discharged as a matter of 
 course from his trust. He must 
 show good cause, and his mere desire 
 to be released, coupled with the fact 
 that the accounts are complicated, 
 and that much time will be lost from 
 his own business, will not be good 
 cause. Beers v. Chelsea Bank, 4Edw. 
 Ch. 277. 
 
 In VEngle v. Florida C. R. Co. 14 
 Fla. 266, Ihe defendant moved to 
 vacate the order appointing a receiver, 
 to which the plaintill consented, but 
 the receiver objected. The court 
 held the motion should have been so 
 far as to restore the property to the 
 owner, including the receipts and dis- 
 bursements of future earnings. The 
 receiver should not be heard in oppo- 
 sition to this motion. 
 
 In Re Colvin, 3 Md. Ch. 278, 302, 
 
 36 
 
 the chancellor says: " But what is it 
 to him (the receiver) what the court 
 does with the piopert}', provided he is 
 discharged from his responsibility as 
 receiver, and thnt he would be so dis- 
 charged by obeying the order of court 
 cannot be questioned. It is more- 
 over conceded that the receiver has 
 no rights himself, and of course can- 
 not appeal or interfere in any way in 
 the conduct of the cause, unless he 
 can be considered as representing 
 those at whose instance he was ap- 
 pointed. But to view him in that 
 light would be to give him a charac- 
 ter inconsistent with the nature of his 
 office as defined by Chancellor Bland. 
 How can he be the officer of the court 
 and the hand of the court and at the 
 same time the representative of the 
 interests of certain of the parties to 
 the cause? The court must act by its 
 officers and agents, and there is as 
 much propriety in calling the court 
 the representative of any of the 
 parties to the cause as its agents and 
 officers who derive their authority 
 from the court and are removable at 
 its discretion. . . . We hold it 
 therefore to be too clear for doubt 
 that a receiver has no right to inter- 
 meddle in questions affecting a right 
 of the parties or the disposition of the 
 properly in his hands; that he cannot 
 in any sense or to any extent be re- 
 garded as the representative of any 
 one or more of the parties to the 
 cause, and that he must retire from 
 olfice and give up the property com- 
 mitted to his custody whenever re- 
 quired so to do by the court; and this 
 wliether the power to discharge may 
 be so reserved or not, as was cor- 
 rectly slated in the argument."
 
 562 
 
 RECEIVERSHIPS. 
 
 (d) Grounds for removal. 
 The cjrounds upon which a receiver may be removed are ex- 
 ceedingly numerons and varied, and in the nature of things no 
 general principles can be laid down upon the subject. Receivers 
 have been removed because of collusion practised in the appoint- 
 ment,' where the injunction and lis pendens afford ample protec- 
 tion," or M'here no property has come into his hands as receiver,' 
 or where the suit abates by reason of the death of the defend- 
 ant,* or where plaintiff's indebtedness has been paid,^ or where 
 the receiver is guilty of neglect and dereliction of duty," or where 
 
 ' Wihon V. Barney, 5 Hun, 257. 
 
 A receiver of a corporation will be 
 discharged upon motion of the court, 
 upon its appearing that the receiver's 
 appointment was procured by collu- 
 sion between the corporation and one 
 of its creditors, for the purpose of 
 keeping the property of the corpora- 
 tion from the other creditors. Snge 
 V. Memphis & L. R. R. Go. 18 Fed. 
 Rep. 571, 5 McCrary, 613, 125 U. S. 
 361, 31 L. ed. 694. 
 
 A receiver of a corporation ap- 
 pointed without notice to the com- 
 pany, upon a bill containing no equi- 
 ty, by consent of the president in 
 collusion with the plaintiffs and with- 
 out bringing to tlie notice of the court 
 the fact that he had no authority to 
 give such consent, will be discharged 
 on motion. Walters v. Anglo-Amer- 
 ican Mortg. & T. Go. 50 Fed. Rep. 316. 
 
 * Where the objects of a receiver- 
 ship may be secured by continuing 
 an injunction and filing a notice of 
 lis pendens, together with a bond for 
 future rents of the property, a re- 
 ceiversliip may be suspended. Jones 
 V. Smith, 40 Fed. Rep. 314. 
 
 'A receiver into whose hands no 
 property has come is entitled to a dis- 
 charge upon vacation of his appoint- 
 ment. People v. Bushwick Chemical 
 Co. 45 N. Y. S. R. 329. 
 
 * Wooda v. Creaglie, 1 Hog. 174. 
 
 The abatement of a suit in equity 
 does not discharge a receiver who 
 had been previously appointed. Mc- 
 Cosker v. Brady, 1 Barb. Ch. 329. 
 
 ^ Davis V. Marlborough, 2 Swanst. 
 118; Tewart v. Lawsion, L. R. 18 Eq. 
 490; Sankey v. O'Maley, 2 Moll. 491; 
 Braham v. Strathmore, 8 Jur. 567. 
 Davis V. Dale, 150 111. 2;;9. 
 
 The payment of a judgment by the 
 debtor, after the appointment of a re- 
 ceiver in supplementary proceedings, 
 does not, ipso facto, discharge the re- 
 ceiver. The receiver may have a 
 claim for expenses incurred in the ex- 
 ercise of his authority, which may be 
 required to be paid before the prop- 
 erty held by him can be taken out of 
 his possession. Crook v. Findley, 60 
 How. Pr. 375. 
 
 ^Re St. George's Estate,!,. R. 19 Ir. 566. 
 
 Where an officer of a corporation 
 has been appointed receiver, to wind 
 it up as insolvent, the fact that in- 
 vestigation of his conduct as such 
 officer is necessary is ground for re- 
 moving him from the receivership. 
 McCttllough V. Merchants' Loan <& T. 
 Go. 29 N. J. Eq. 217. 
 
 If the person appointed receiver 
 absents himself, and fails to file the 
 bond ordered, the court may, at its 
 discretion, remove him and appoint 
 another. McCullough v. Merchants' 
 Loan & T. Co. supra.
 
 KEMOVAL AND DISCHAEGE OF RECEIVER. 
 
 563 
 
 the appointment was improvidently made,' or where the receiver 
 disobeys the orders of court,'^ or there is disagreement between 
 joint recei veers' or bitter opposition by some parties in interest,* 
 or even where no unfitness is shown if the general benefit of the com- 
 pany will be subserved by the removal,* or from interest and feelings 
 of the receiver towards the plaintiff ' or fraudulent action on his 
 
 ' In Cratcford v. Boss, 39 Ga. 44, it 
 is held that extraordinary wri(s and 
 remedies granted by a chancellor be- 
 fore trial on the merits ought to be 
 granted with caution, unless there 
 is immediate danger to the rights of 
 plaintiff if they be denied, and if the 
 court become satisfied that the danger 
 does not exist, it is his duty to dis- 
 charge them. In this case the court 
 ordered the vacating of the order ap- 
 pointing the receiver. 
 
 In Ter7'y v. Ba/ik of Central Nero 
 York, 15 How. Pr. 445, the defendant 
 asked the court that the order for an 
 injunction and appointing a receiver 
 be discharged and leave granted to 
 resume business upon the grounds: 
 
 (1) that the injunction was irregular, 
 having been granted without bond; 
 
 (2) that the statutes under which the 
 receiver had been appointed had been 
 repealed; and (3) that the defendant 
 was not insolvent within the provi- 
 sions of the statute, and, upon consid- 
 eration by the court, the motion was 
 granted. 
 
 "" Atkinson v. Smith, 89 N. C. 72. 
 (Failure to account.) 
 
 Upon an account of assets collected 
 by a receiver, he was ordered by the 
 court to pay the amount into bank. 
 Upon a second account it was found 
 that he had not obeyed said decree, 
 and also had not given additional 
 sureties as commanded, — Held that 
 the court might set aside its former 
 decree, remove him, and direct him 
 to pay to one appointed in his place 
 all that he had collected, or render 
 
 himself liable to an action. Shackel- 
 ford V. Shackelford, 32 Gratt. 481. 
 
 Cf. Re Tavistock Iron Works Co. 24 
 L. T. 605, 19 Week. Rep. 672. 
 
 ' Where two receivers of a railroad 
 company were appointed by agree- 
 ment of all parties interested, with 
 their offices a thousand miles apart, 
 and they subsequently became hostile 
 to each other, — Held that both should 
 be removed, and a resident of the 
 state in which the road mainly lay, 
 who was impartial, should be ap- 
 pointed. Meier v. Kansas P. R. Co. 
 5 Dill. 476. 
 
 ■* A receiver appointed by a United 
 States court under the belief that 
 substantially all interests affected 
 were united in the application there- 
 for will be removed, where it appears 
 that he is bitterly opposed by some 
 of the parties interested and was nom- 
 inated by the other parties, notwith- 
 standing a receiver had also been ap- 
 pointed by a state court who was a 
 partisan of the parties hostile to the 
 receiver in question. Wood v. Oregon 
 Development Co. 55 Fed. Rep. 901. 
 
 ^ Re BritisJi Nat. L. Assur. Asso. L. 
 R. 14 Eq. 493. 
 
 ®The circumstances in a particular 
 case were held to justify the removal 
 of a receiver of the property of a joint 
 slock association, appointed in a prior 
 suit, and the appointment of another 
 person in his place, where, upon in- 
 spection of the proceedings in the for- 
 mer suit, and from the evidence pro- 
 duced on the application for the ap- 
 pointment of another receiver, it was
 
 564 
 
 RECEIVERSHIPS. 
 
 part," or where defendant's counsel, though in court, did not know 
 of the appointment.^ 
 
 (e) Kemoval not subject to appeal ; effect of appeal. 
 
 The removal of the receiver furnishes no ground of appeal. 
 The receiver is the mere officer of court and his holding is the 
 holding of the court for the party who may be entitled, and his 
 discharge is no ground of appeal.' 
 
 (f) Effect of kemoval and discharge. 
 "When a receiver has been discharged a creditor cannot there- 
 after sue him on a claim against the property in the hands of the 
 court,* though it does not follow that the company will be re- 
 
 apparent to the court that the trustee 
 who had been appointed receiver in 
 the former suit was, from interest and 
 feelings, adverse to the plaintiff in 
 the second action, and, for other rea- 
 sons, an improper person to act as re- 
 ceiver in administering the affairs of 
 the association. McArdle v. Barney, 
 50 How. Pr. 97. 
 
 'An individual who was appointed 
 secretary of an insolvent savings bank 
 by its directors, and was used by them 
 in a month thereafter to make and 
 verify a false statement declaring its 
 solvency, and who was named by 
 them as its receiver in a suit which 
 they caused to be instituted to wind 
 up its affairs, is not a fit and proper 
 person to execute such trust, and 
 should be removed upon application 
 of the creditors of the bank. People 
 V. Third Ave. Sav. Bank, 50 How. 
 Pr. 22. 
 
 'Where a receiver was appointed, 
 unobserved by the defendant's coun- 
 sel though he was in court for the 
 whole day to oppose the motion for 
 the appointment, he was, on a motion 
 to vacate, considered as in the same 
 situation as upon the hearing, for the. 
 first lime, of an application for a re- 
 ceiver. Merchants' & M. Bank v. 
 Griffith, 10 Paige, 519. 
 
 » Waxhi7igton City & P. L. R. Co. v. 
 Southern Maryland R. Co. 55 Md. 153; 
 Ellicott V. Warford, 4 Md. 80; Cainv. 
 Warford, 7 Md. 283. 
 
 In a recent case of Harris v. People 
 (111. App.) 13 Nat. Corp. Rep. 31, held, 
 where a receiver was appointed on 
 final decree and the decree appealed 
 from, that the effect of the appeal be- 
 fore the receiver took possession was 
 to suspend his right to possession 
 pending the appeal, and is based upon 
 the following cases: Boyntonx. Foster, 
 7 Met. 415; Levi v. Karrick, 15 Iowa, 
 444; Turner v. First Nat. Bank, 30 
 Iowa, 191; Carmichael v. Vandebur, 
 51 Iowa, 225; Letcis v. Leiois, 20 Mo. 
 App. 54G; Toicnsend v. Townsend, 60 
 ]\Io. 246; Elgin Lumber Co. v. Lang- 
 man, 23 111. App. 2o0. But see Penn 
 Mat. L. Ins. Co. v. Semple, 38 N. J. 
 Eq. 314; Beard v. Arhuckle, 19 W. Va. 
 145; Ilution v. Lockridge, 27 W. Va. 
 428. The rule might be otherwise, 
 however, if the receiver was in posses- 
 sion when the appeal was taken. 
 
 '' After a receiver has been dis- 
 charged, a creditor cannot sue him on 
 a claind against the property in the 
 hands of the court. New York & W. 
 U. Teleg. Co. v. Jeicett, 115 N. Y. 166. 
 
 After the property is sold, pur- 
 chased by mortgage bondholders, and
 
 REMOVAL AND DISCHARGE OF RECEIVER. 
 
 565 
 
 licved from liability, as where the earnings during the receivei'ship 
 have been expended in betterments.' The discharge does not 
 
 conveyed to the original company, 
 one who, during the receivership, has 
 sustained injury from the negligence 
 of the receiver's servants operating 
 the road cannot maintain an action 
 against the receiver and the company. 
 Ryan v. Hays, 82 Tex. 42; Interna- 
 tional & G. If. B. Co. V. Ormond, 62 
 Tex. 274. 
 
 The discharge of a receiver pending 
 an action against him will not relieve 
 the corporation represented by him 
 from a liability on a claim against 
 him, although it is not prosecuted by 
 intervention within the time pre- 
 scribed by the order for his discharge; 
 but the action may proceed against 
 the corporation, where it is shown that 
 assets have gone into its possession 
 which would render it liable to the 
 demand sued on. Boygs v. Bro'wn, 83 
 Tex. 41. 
 
 'Pending and undetermined suits for 
 unliquidated demands cannot be com- 
 puted as claims against a receiver of a 
 railroad company so as to relieve the 
 company from liability, after the re- 
 ceiver's discharge, on a cause of ac- 
 tion which accrued during the re- 
 ceivership, on the ground that the 
 receiver's liability for unadjusted 
 claims exceeds the value of the im- 
 provements and betterments made by 
 him out of the earnings coming into 
 his hands. Texas & P. R. Co. v. 
 Bailey, 83 Tex. 19. 
 
 After the discharge of a receiver and 
 the return of the property to the 
 owner, all control of the court over 
 the property is ended; and such con- 
 trol cannot be retained by an asserted 
 reservation of the right again to as- 
 sume control. Texas P. R. Co. v. 
 Johnson, 76 Tex. 421. 
 
 If the earnings of a railroad, of the 
 
 property of which a receiver has 
 been appointed, are invested in better- 
 ments which are returned to the com- 
 pany at the close of the receivership, 
 the company receives the property 
 charged with the satisfaction of any 
 claim which the receiver ought to 
 have paid out of the earnings during 
 the receivership. Texas P. R. Co. v. 
 Qviffiii, 76 Tex. 441; Texas P. R. Co. 
 V. Johnson, 76 Tex. 421. 
 
 Proceedings against a receiver to 
 compel the payment of money fall 
 with his discharge. New York & W. 
 U. Teleg. Co. v. Jewett, 43 Hun, 565. 
 
 When a receiver appointed by a 
 Federal court resigns during the pend- 
 ency of a suit brought against him un- 
 der permission of the court appointing 
 him, it is not necessary to obtain per- 
 mission to prosecute the case against 
 his successor in the receivership. For- 
 dycey. Dixon, 70 Tex. 694. 
 
 A railway company is liable on a 
 cause of action which accrued while 
 its road was in the hands of a re- 
 ceiver, who expended its net earnings 
 in betterments and improvements, and 
 upon whose discharge the railway 
 company, with all betterments, was 
 redelivered into the company's posses- 
 sion without sale. Te-nis P. R. Co. v. 
 While, 82 Tex. 543; Te.vm & P. R. Co. 
 V. Bailey, 83 Tex. 19. 
 
 A suit in the state courts for dam- 
 ages for personal injuries caused by 
 the negligent operation of a railway 
 while in the hands of a receiver ap- 
 pointed by a Federal court can be 
 maintained against the company after 
 its property has been restored to it, 
 the current earnings having been used 
 by the receiver in improving the road. 
 Texas & P. R. Co. v. Walts (Tex.) 18 
 S. W. 312.
 
 566 
 
 RECEIVERSHIPS. 
 
 affect the liability of the receiver concerning matters not em- 
 braced in his account/ An order discharging a receiver and 
 ordering him to restore it to one of the parties does not of itself 
 determine the riglit of possession." 
 
 (g) Grounds fok refusal to discharge. 
 Where creditors have for several months acquiesced in the ap- 
 pointment of a receiver and have pursued their remedies tliere- 
 iinder, it is too late for them to come into court and undertake to 
 question the legality of the appointment of a receiver.^ The em- 
 ployment of the judgment debtor by the receiver to collect a por- 
 tion of assets is not alone sufficient ground for a discharge/ nor is 
 the fact that the counsel for complainant has sometnnes acted as 
 
 A railway company is not liable for 
 the negligence of its receiver ipso 
 facto, unless it is alleged and proved 
 on the trial that the earnings of its 
 road in the receiver's hands have been 
 invested in betterments of the prop- 
 erty, which was turned over to the 
 company on the termination of the re- 
 ceivership. Texas & P. R. Co. v. Huff- 
 man, 83 Tex. 286. 
 
 An action for personal injuries, on a 
 right accrued against a receiver of a 
 railroad company, may be brought 
 against the company when the re- 
 ceiver has been discharged, and all 
 property, together with the earnings 
 of the road while in his hands, have 
 been returned to the company. Texas 
 & P. R. Co. V. Oeif/er, 79 Tex. 13; 
 Texas P. R. Co. v. Johnson, 76 Tex. 
 421. 
 
 Where a railroad company, on re- 
 ceiving possession of its road from a 
 receiver, executed a bond to indem- 
 nify him against all debts and liabili- 
 ties incurred by him, in pursuance of 
 an order of court which also re- 
 quired claims to be presented within 
 sixty days, it was not bound to re- 
 deem tickets issued by the receiver. 
 Godfrey v. Ohio & M. R. Co. 116 Ind. 
 80. 
 
 Where nn action against the re- 
 ceiver of a railroad for damage to 
 freight caused while he was operating 
 tlie road is continued after his dis- 
 charge, a judgment against the rail- 
 road company is erroneous, where no 
 facts are alleged or proved making the 
 company liable for losses during the 
 receiver's management. Texas & P. 
 R. Co. V. Adams, 78 Tex. 372. 
 
 ' Pondir v. Netc York, L. E. & W. 
 R. Co. 72 Hun, 384. 
 
 2 Marshall v. Otto, 59 Fed. Rep. 249. 
 
 ^ Dickerson v. Cass County Bank 
 (Iowa) 64 N. W. 395. Upon a mere 
 formal motion to substitute one per- 
 son for another, as receiver in an ac- 
 tion, though it is founded by the no- 
 tice upon the pleadings, decree, and 
 proceedings in the action, as well as 
 upon affidavits, the opposing party 
 cannot question the regularity of the 
 original order appointing such re- 
 ceiver, or the proceedings generally. 
 Fassett v. TuUmadge, 13 Abb. Pr. 12. 
 
 ^The employment of the judgment 
 debtor, by his receiver, to collect a 
 portion of theasigned demands, is not 
 alone sufficient to require his removal 
 from his trust. Ross v. Bridge, 15 
 Abb. Pr. 150, 24 How. Pr. 163.
 
 REMOVAL AND DISCHARGE OF RECEIVER. 
 
 567 
 
 coansel for the receiver,' nor is relationship," nor mere disagree- 
 ment between joint receivers,' nor a new election of officers." 
 Bnt the lack of assets in the receiver's hands sufficient to pay his 
 compensation is not ground for refusal to discharge/ He cannot 
 be retained merely to enable the debtor to effect a settlement 
 with his creditors/ 
 
 ' The fact that the counsel for the 
 plaintiff has sometimes acted as coun- 
 sel for the receiver is no ground for 
 removing the receiver. Bank of Mon- 
 roe V. Schevmerhorn, 1 Clarke Ch. 366. 
 
 ^ Relationship to a party is not alone 
 a sufficient ground for the removal of 
 a receiver; at most, it is but a circum- 
 stance to be taken into consideration 
 at the time of making the appointment. 
 Wetter v. Schlieper, 7 Abb. Pr. 93. 
 
 'A and B were appointed joint re- 
 ceivers, under a stipulation, in an ac- 
 tion for a dissolution of partnership. 
 They subsequently applied for the ap- 
 pointment of a new receiver In their 
 place on the ground that the joint re- 
 ceivers could not agree as to the man- 
 ner of carrying out their trust, from a 
 conflict of interest and incompatibility 
 of temper. It was shown that the 
 fund was in danger, — Held that these 
 were not good grounds for removal 
 and appointment prayed for, the facts 
 upon which the relief was asked being 
 known to the parties who made the 
 stipulation. Comer v. Belden, 8 Daly, 
 257. 
 
 ^ After the corporation has been 
 placed in the hands of a receiver, a 
 new election of officers ordered by 
 court will not of itself revoke the au- 
 thority of the receiver. Keokuk N. 
 L. Packet Co. v. Davidson, 13 Mo. 
 App. 5G1. 
 
 ' Upon an application by parties in- 
 terested for the discharge cf a receiver, 
 and one by the receiver for the adjust- 
 ment of his compensation and allow- 
 ance of his accounts, both heard to- 
 gether, the court may grant the dis- 
 charge, and determine the matter of 
 the compensation and accounts in a 
 subsequent order. Belmont Nail Co. 
 V. Columbia Iron & 8. Co. 46 Fed 
 Rep. 8. 
 
 Where a receiver has no assets in 
 his hands it is not error to discharge 
 him upon the application of those at 
 whose instance he was appointed, 
 without making payment of his com- 
 pensation and charges a condition pre- 
 cedent to the discharge. Belmont Nail 
 Co. V. Columbia Iron & 8. Co. mpra. 
 
 A receiver cannot be retained merely 
 to enal)le him to get assets into his 
 hands from which to pay his compensa- 
 tion and charges. Joslyn v. Athens 
 Cuarh & C Co. 43 Minn. 534. 
 
 If he has no assets in his hands he 
 may be discharged without compensa- 
 tion. Joslyn V. Athens Coach & C. Co. 
 supra. 
 
 * A receivership should not be con- 
 tinued and creditors enjoined from 
 prosecuting their just claims for the 
 purpose of allowing the debtor to 
 effect a settlement with creditors. 
 Hatpin v. Mutual Brew. Co. 91 11 un, 
 220.
 
 CHAPTER XIX. 
 
 CLA.TMS AGAINST RECEIVERSHIP FUNDS. 
 
 § 340. Claims against receivership 
 funds. 
 
 (a) Receiver disinterested as 
 
 between claimants. 
 
 (b) Mu.st pay parlies named. 
 
 (c) Proof of claims; order of 
 
 court. 
 
 (d) Validity of claims. 
 §341. Character of claims allowed. 
 
 (a) Attorney and counsel fees. 
 
 (b) Personal property tax. 
 
 (c) Surety not entitled when. 
 
 (d) Creditors holding collater- 
 
 als. 
 
 (e) Operating expenses. 
 (0 Statutory liens. 
 
 (g) Judgment creditors' liens. 
 § 342. Preferred claims; grounds for 
 
 allowance. 
 § 343. Nature of preferred claims. 
 
 § B40. Claims against receivership funds. 
 
 The claims presented to a receiver for allowance ont of tlie 
 receivership estate and funds are exceedingly numerous and 
 varied in character, and the scope of discussion in this connection 
 will not be extended beyond the briefest statement of the general 
 rules applicable thereto, with a sufficient number of citations to 
 illustrate the subject. 
 
 (a) The receiver's position of independence and impartiality 
 between all parties in interest, renders it imperative that as to all 
 claimants he shall remain disinterested as between them. He has 
 no discretion as to the general application of the funds, and holds 
 them strictly subject to the order of the court, and he must not 
 become interested in any claim presented for allowance from the 
 funds in his hands.' 
 
 ' Receiver may not purchase prop- 
 erty connected with the subject mat- 
 ter of his receivership. Ilerrick v. 
 Miller, 123 Ind. 304. 
 
 He has no discretion in general in 
 the application of funds in his hands, 
 but holds strictly subject to the order 
 of court. When ordered to pay a 
 claim he cannot oilset a claim due 
 him personally. Uerriek v. Miller, 
 supra. 
 
 An act of receiver in acquiring title 
 
 to properly in his hands is absolutely 
 void. Ilerrick v. Miller, supra. 
 
 It is no part of his duty to adjust 
 the accounts. Moretoii v. Harley, 2 
 W. & W. (E.) 74, 79. 
 
 Claims presented to the court 
 against a fund or property in the 
 hands of a receiver are properly re- 
 ferred to him, to ascertain whether 
 they are just. Liizenberger v. Jarvis- 
 Conklin Trust Co. 8 Utah, 15. 
 
 It is the duty of receivers of a cor- 
 
 568
 
 CLAIMS AGAINST RECEIVERSHIP FUNDS. 
 
 569 
 
 (b) lie must pay to tlie parties named in the order of distri- 
 bution, or those authorized by power of attorney to receipt for 
 them.' 
 
 (c) The court by an order may require all creditors to prove 
 their claims before the receiver, or other person desig-nated, 
 within a period specified, and as a rule those failini^ to make such 
 proof are debarred from participating in the distribution," unless 
 
 poratioD appointed under the statute 
 to allow only such claims as are legal 
 and just and which might have been 
 recovered against the corporation, 
 cither at law or in equity. Ally. Oen. 
 V. Life £ F. Ins. Co. 4 Paige, 224. 
 
 A receiver will not be permitted to 
 contest a single claim merely on ac- 
 count of his personal interest in it. 
 Stanton v. Andrews, 18 111 App. 552. 
 
 One class of creditors cannot be 
 wholly or partially excluded from 
 llieir proportionate share of assets by 
 reason of previous payments made 
 before appointment of receiver. Peo- 
 ple V. Universal L. Ins. Co. 42 Hun, 
 616; People v. Knickerhocker L. Ins. 
 Co. 101 N. Y. 636, distinguished. 
 
 Failure of a creditor of an insolvent 
 bank to verify a claim presented to 
 the receiver will not bar the right to 
 sue on the claim in the absence of a 
 statutory requirement that the claim 
 shall be verified. Arnold v. Penn 
 (Tex. Civ. App.) 32 S. W. 353. 
 
 ' A receiver is only justified in pay- 
 ing money to the person named in the 
 order or on his power of attorney. 
 An attorney has no power to receipt 
 for money due his client without ex- 
 press authority. Be Broicne's Estate, 
 L. R. 19 Ir. 183. 
 
 A receiver has no right to pay 
 money to anyone except the persons 
 named, as no one else can give a dis 
 charge. The payment to a solicitor 
 of the party entitled is not allowed, 
 and the receiver must account for it. 
 lad V. Kidd, 63 L. J. Q. 13. 7:26. 
 
 Where he pays out money in obedi- 
 ence to the order of court to parties 
 not entitled to it he will be protected 
 and not compelled to make restitu- 
 tion. Willis V. Sharp, 124 N. Y. 406. 
 
 ' A creditor failing to prove his 
 claim in the time specified is debarred 
 from dividends. R. I. Rev. Stat. chap. 
 237, § 13. 
 
 Re Eddy, 15 R. I. 474. But court 
 may extend time. Id. 
 
 An order of a Federal court which 
 has appointed a receiver of a corpora- 
 tion, that persons holding claims 
 against the receiver must present 
 them by intervention in that court, is 
 void as an attempt to destroy the 
 right to sue and establish them in 
 any court having jurisdiction, in 
 violation of the act of Congress of 
 March 3, 1887. Te.ms <& P. B. Co. v. 
 Watts (Tex.) 18 S. W. 312; Texas P. 
 B. Co. V. Johnson, 76 Tex. 421. 
 
 The claim of a creditor of a cor- 
 poration which has been dissolved, 
 and whose assets have been placed in 
 the hands of permanent receivers, 
 should be paid if the receivers have 
 sufficient assets in their hands, though 
 the time to prove debts against the 
 estate has expired. People v. Beming- 
 ton, 59 Hun, 282, Aff'd in 126 N. Y. 
 654, mem. 
 
 The receiver of an insolvent cor- 
 poration having funds in his hands 
 must pay in full the royalties on 
 patented articles manufactured by 
 such company under contract to pay 
 royalties on each of such articles
 
 570 
 
 RECEIVERSHIPS. 
 
 there are sncli special ciren instances as render the application of 
 the rule unjust and inequitable. 
 
 (d) Tiie method of dctenniiiinp; the validity of claims ai^ainst 
 the receivership fund is usually determined in the suit in which 
 
 manufactured and sold, when the 
 articles have been sold by him after 
 his appointment; but for such articles 
 as were sold before his appointmeut 
 the royalties become a general debt 
 of the corporation. Peoiyle v. Rem- 
 ivgton, supra. 
 
 Laud wrongfully tak^ possession 
 of by a receiver and returned to the 
 corporation after the receiver's dis- 
 charge, is unaffected by the notice of 
 the receiver to prove claims. Bloom- 
 field V. Van Slike, 107 Ind. 480. 
 
 Although the better practice is for 
 the judge or court appointing a re- 
 ceiver for a railroad to fix, at the time, 
 as a condition, what debts and liabili- 
 ties shall be made a charge on the 
 property and paid by him, such an 
 order may be made afterwards. Cen- 
 tral Trvst Co. V. St. Louis, A. & T. R. 
 Co. 41 Fed. Rep. 551. 
 
 The receiver of a mutual benefit so- 
 ciety is not authorized to allow claims 
 presented after the expiration of the 
 lime fixed by the court for the pres- 
 entation of claims; but if there are 
 such special circumstances as, in his 
 opinion, make it just that such claims 
 should be allowed, and they will not 
 delay the distribution of the assets, he 
 may make special application to a 
 single justice, setting forth such cir- 
 cumstances. Fogg V. Supreme Lodge, 
 U. 0. of 0. L. 159 Mass. 9. 
 
 The court will allow a claim to be 
 presented to a receiver of an insolvent 
 corporation for an investigation of its 
 merits, after the time limited by order 
 for the presentation of claims, where 
 before the expiration of such time suit 
 was brought on claim against the re- 
 ceiver, during the pendency of which 
 
 negotiations for a settlement were en- 
 tered into with a committee of cred- 
 itors having charge of the reorganiza- 
 tion of the corporate business and 
 with which the receiver was in con- 
 stant communication and co-opera- 
 tion, and claimant was confident that 
 a satisfactory settlement would be 
 made, and the assets are still in the 
 receiver's hands, and no embarrass- 
 ment will result in the administration 
 of the trust against which the re- 
 ceiver should not have provided. 
 Wall V. Young (N. J. Ch.) 23 All. 526. 
 
 When a receiver has no actual no- 
 tice of a petitioner's claim, before 
 making the second dividend, and has 
 reserved no fund applicable specifi- 
 cally to the payment thereof, it is 
 error to require him to pay such peti- 
 tioner his proportion of such divi- 
 dend. Smith V. Manhattan Lns. Co. 
 4 Hun, 127. 
 
 Where a receiver appointed on the 
 dissolution of a corporation advertised 
 for claims, and made personal service 
 of notice to present claims upon the 
 plaintiff in a pending action against 
 the corporation, but who presented no 
 claim, the latter could not, after the 
 receiver duly distributed the as.sets 
 reserving only sufficient to meet the 
 expenses, by making the receiver a 
 party to his action, cast on the latter 
 the cost of the litigation. Owen v. 
 Kellogg, 56 Hun, 455. 
 
 Where railroad property is in the 
 hands of a receiver, an order for re- 
 pairs, to be paid for by certificates of 
 indebtedness constituting a first lien 
 on the road, can only be made on mo- 
 tion after a proper investigation and 
 hearing. Ej: parte Mitchell, 12 S. C. 83.
 
 CLAIMS AGAINST RECEIVERSHIP FUNDS. 
 
 571 
 
 the receiver is appointed, but tlie court may exercise a discretion 
 ill tliis matter.' 
 
 ' It is within the discretion of the 
 court, either to determine claims 
 against a receiver by petitions in the 
 original action in which he was ap- 
 pointed or by an independent suit. 
 Bloke V. State Sav. Bank, 12 Wash. 
 619. 
 
 An application by the assignee of a 
 certificate of sale under foreclosure, 
 for the appointment of a receiver to 
 collect rents and profits and apply the 
 same to the payment of mortgages, 
 may be amended by setting up facts 
 entitling the plaintiff to the relief 
 sought, after the reversal of an order 
 appointing such receiver, although 
 the period of redemption has expired 
 in the meantime, where there is a con- 
 troversy between the plaintiff and the 
 mortgagor over the amount in the 
 hands of the receiver. Stoffel v. Sel- 
 lers, 142 Ind. 801. 
 
 A subsequent recognition by the 
 chancellor, of attachment levies and 
 the lien created thereby on property 
 in the hands of the receiver, is equiv- 
 alent to previous permission to make 
 them, and may render such levies 
 valid. Ex parte Tillman, 93 Ala. 101. 
 
 A proceeding by the receiver of a 
 corporation dissolved in voluntary 
 proceedings for the appointment by 
 consent of a referee to try a claim re- 
 jected by the receiver, is not a "mo- 
 tion" within N. Y. Laws 1883, chap. 
 378, § 8, requiring a copy of all mo- 
 tions in proceedings for the dissolu- 
 tion (<f a corporation or distribution of 
 its assets to be served on the attorney 
 general. People v. American S. B. 
 Ins. Co. 14 Misc. 162. 
 
 Where money is placed in the hands 
 of a receiver pending the litigation, 
 the court may, on the decision of the 
 cause, direct its application on mo- 
 
 tion. But the court cannot act in this 
 summary manner where money has 
 been paid over to the defendant in 
 satisfaction of an execution, by order 
 of the judge granting the injunction 
 according to the prayer of the bill. 
 If in such a case the injunction bond 
 did not afford an adequate remedy, a 
 suit in chancery where the rights of 
 all the parties could be adjusted 
 would be the proper course. Bank of 
 Mobile v. Planters' & M. Bank, 1 Ala. 
 109. 
 
 A court of chancery having ap- 
 pointed a receiver of an insolvent cor- 
 poration, and a person not a party to 
 the suit having presented a petition 
 setting up the right to possession of 
 certain land in the possession of the 
 receiver as such, praying the court to 
 adjudicate upon his rights and to di- 
 rect the receiver to deliver possession 
 to him, it will, in the absence of 
 any claim of right of possession on 
 the part of any other party not be- 
 fore the court, hear and determine the 
 petitioner's claim, although it is one 
 within the jurisdiction of a court of 
 law. Smith v. Perth Amboy Brick Co. 
 47 N. J. Eq. 442. 
 
 One not a party to a chancery suit, 
 but with whom a receiver appointed 
 therein, with the consent of all the 
 parties, contracted a lawful debt in 
 the management of the property in 
 controversy, mayduringthe pendency 
 of the suit and after the decree restor- 
 ing the property to complainant, but 
 before the discharge of the receiver, 
 petition the court to require the com- 
 plainant to pay the debt due him. or 
 that on his failure to do so the prop- 
 erty be sold to pay such debt, as the 
 decree of restoration does not deprive 
 the court of authority to assume con-
 
 572 
 
 RECEIVERSHIPS. 
 
 § 341. Character ot* claims allowed. 
 
 The claims usually allowed ag-ainst a receiver and payable out 
 of the funds in his hands which are subject to distribution embrace 
 the following subjects : 
 
 (a) Attorney and counsel fees for Services rendered to the re- 
 ceiver during the receivership, relating to the receivership prop- 
 erty.' 
 
 trol of the property for the purpose of 
 enforcing claims upon it whicb are 
 the result of the court's own orders or 
 decrees. Thornton v. Highland Ave. 
 (£ B. R. Co. 94 Ala. 353. 
 
 Where a receiver has not paid a 
 claim which it is alleged comes within 
 an order requiring him to pay it, and 
 the question is presented to the court 
 as to the liability of the property for 
 the claim, the court is not foreclosed 
 by the order, but may determine the 
 extent of liability of the property to 
 such claim, and what its rights of pri- 
 ority are. Louisville, E. & St. L. R. 
 Co. V. Wilson, 138 U. S. 501, 34 L. 
 ed. 1023. 
 
 When a receiver makes a settlement 
 and compromise with a general as- 
 signee for the benefit of creditors of a 
 corporation in another state which is 
 ratified by the court, agreement be- 
 comes in equity a novation and the 
 obligation is thenceforward a new one 
 between the receiver and the assignee 
 and such agreement cannot be at- 
 tacked by attaching creditors. Kim- 
 ball V. Lee, 40 N. J. Eq. 403. 
 
 A person not a party is not entitled 
 on motion to obtain money from the 
 receiver even if his debt is payable 
 out of the funds in the receiver's 
 hands. Brocklebank v. East London 
 R. Co. L. R. 12 Ch. Div. 839. 
 
 ' Counsel fees are proper allowances 
 to receiver for counsel employed by 
 him in the discharge of his duties; 
 though it is discretionary. Stuart 
 V. Boulware, 133 U. S. 78, 33 L. ed. 
 
 5G8; Infernal Improv. Fund v. Oreen- 
 oiujh, 105 U. S. 527. 26 L. ed. 1157. 
 The fees are determined by the cir- 
 cumstances of such case, correspond- 
 ing with the degree of responsibility 
 and business ability required. Inter 
 nallmiirox). Fund v. Greenough, supra. 
 
 Services rendered by an attorney, 
 for an individual, in conducting pro- 
 ceedings against an insolvent insur- 
 ance company, the proceedings hav- 
 ing for their purpose the protection 
 of the general fund for the benefit of 
 all concerned, are properly paid for 
 from theasselsin the receiver's hands. 
 At(y. Gen. v. Continental L. Ins. Co. 
 62 How. Pr. 130. 
 
 A receiver is not entitled in his ac- 
 count to a credit for attorney's fees 
 paid by him for either of the part- 
 ners; but if, on his final settlement, 
 there are suflicieut funds in court be- 
 longing to the partner for whom he 
 has paid, the court may order him to 
 be paid from them. Drake v. Thyng, 
 37 Ark. 228. 
 
 Services of an attorney employed 
 by the receiver of a railroad in reduc- 
 ing the claim of a lienor subject to 
 whose lien the road was sold, not 
 being to keep the road a going con- 
 cern, are not entitled to priority in 
 funds in the hands of a receiver of 
 the company which purchased the 
 road, over mortgages executed by it, 
 although the claim therefor was rec- 
 ognized by such company. Bound v. 
 South CaiolinaR. Co. 51 Fed. Rep. 58. 
 
 Just claims of employees of a street
 
 CLAIMS AGAINST RECEIVERSHIP FUNDS. 
 
 573 
 
 (b) Personal property taxes assessed against the receivership 
 property maturing while in the receiver's possession or constitut- 
 ing a lien thereon when it comes into his possession.' 
 
 railroad company for services ren- 
 dered in operating the road within 
 ninety days prior to the appointment 
 of a receiver are properly given prece- 
 dence in payment to a mortgage upon 
 the road. Litzenherger v. Jarns-Conk- 
 lin Trmt Co. 8 Utah, 15. 
 
 An attorney's claim against a rail- 
 road company cannot be ordered paid 
 out of the earnings in the hands of a 
 receiver, or out of the first proceeds 
 of sale under a mortgage, at least in 
 advance of a final decree, although he 
 has a lien on deeds of the right of 
 way and also has the legal title to 
 depot sites for which he has procured 
 deeds. Pennsylvania Finance Co. v. 
 Charlesfon, C. & C. B. Co. 46 Fed. 
 Rep. 42G. 
 
 A receiver should not be permitted 
 to pay large sums to counsel for al- 
 leged services, without making the 
 nature and value of the services ap 
 parent. Be Commonwealth F. Ins. Co. 
 32 Hun, 78. 
 
 A general solicitor employed by the 
 two receivers of a railwa}^ company 
 at a specified annual salary has no 
 claim for services rendered by him 
 on the fund transferred to the com- 
 pany at the close of the receivership, 
 where one of such receivers notified 
 hira before such services were per- 
 formed that he had abolished the of- 
 fice of solicitor, and there is no order 
 of court fixing a liability on the fund 
 for such services or approving the 
 action of the receivers in fixing it, 
 and the claim was not acted upon in 
 closing up the receivership. Inter- 
 national & G. iV". B. Co. V. Herndon 
 (Tex. Civ. App.) 33 S. W. 377. 
 
 An allowance cannot be made for 
 services of the attorneys of a corpora- 
 
 tion in resisting proceedings to ap- 
 poin^a receiver, where the officers of 
 the company knew that it was insol- 
 vent and acted in bad faith, although 
 the attorneys acted in good faith. 
 People v. Commercial Alliance L. Ins. 
 Co. 91 Hun, 389. 
 
 ' A tax bill against personalty which 
 has been in the hands of a receiver 
 during the time within which a col- 
 lector would otherwise have levied on 
 it for taxes should be first paid from 
 the proceeds. George v. St. Louis 
 Cable & W. B. Co. 44 Fed. Rep. 117. 
 Not so as to taxes on real estates. 
 
 A tax bill against realty in the hands 
 of a receiver will not be paid out of 
 the proceeds, where a sale of the prop- 
 erty has been made "subject to all 
 tax liens," as the state has a lien for 
 a tax paramount to all other liens, and 
 the bids are presumed to have been 
 made with reference to that fact. 
 George v. St. Louis Cable & W. B. Co. 
 supra. 
 
 Under the Missouri statutes the 
 state has a paramount right to be paid 
 its taxes out of assets in the hands of 
 a receiver, and may enforce such taxes 
 by distress. Hence, where the court 
 orders all claims to be presented to 
 the receiver of a savings bank within 
 a certain time, or they will be barred, 
 it should order the receiver to pay as- 
 sessed taxes upon application of the 
 collector, although made after the 
 time when other claims are barred. 
 Greeley v. Provident Sav. Bank, 98 
 Mo. 458. 
 
 A receiver of a corporation will not 
 be directed, before final accounting, 
 to pay the corporation's personal tax, 
 although he admits that he has suffi- 
 cient funds, where there may be prior
 
 574 
 
 RECEIVERSHIPS. 
 
 (c) A surety who has not paid the debt for which lie is liable 
 as surety is not entitled to prove his claim.' 
 
 (d) A creditor holding collateral secniaty niav prove his claim 
 without first exhausting* his collateral, or isunendering the 
 same." 
 
 (e) Operating expenses.'* 
 
 (f) Statutory liens.* 
 
 (g) Judgment creditors' liens.* 
 
 §342. Preferred claims; groiiiicls for allowance. 
 
 Where a mortgagee of a railroad asks the aid of a court to 
 foreclose the lien, and for a receiver, the court in its discretion 
 may require provision to be made for the payment of certain 
 classes of outstanding claims, such as rentals, wages of laborers, 
 etc., as a condition of issuing the order, from the income during 
 the receivership. The reason for this requirement is that the 
 
 liens for wages of the corporation's 
 employees. Schenck v. Conxumers' 
 Cool Co. 26 Abb. N. C 356, Distin- 
 guis^bed from Central Trvxt Co. v. 
 New York Cifij & iV. R. Co. 110 N. Y. 
 250, 1 L. R. A. 2G0; B£ Babcock, 115 
 N. Y. 450. 
 
 ' A surely who has not paid the 
 debt cannot jirove a claim against the 
 receiver of a bank, where the debt 
 has once been proved by the cred- 
 itor. Stewart v. Armstrong, 56 Fed. 
 Rep. 167. 
 
 Under the rule that net earnings, 
 while property is in the possession of 
 a receiver appointed by a court, may 
 be applied to the payment of claims 
 having superior equities to that of the 
 bondholders,— Held, that if a balance 
 of salary due the president of the road 
 was a prior claim, he had waived it 
 by ihe published annual report as such 
 president, in which he had put his 
 salary each year among the paid items. 
 ]f his salary was not in fact paid he 
 w:isonly a general creditor. Addison 
 V. Lewis, 75 Va. 701. 
 
 A claim of contractors for building 
 
 an extension of the road did not come 
 within the rule. Addison v. Lewis, 
 sup)'a. 
 
 "A creditor of an insolvent corpo- 
 ration of which receivers are appointed 
 isentitled to a dividend upon his claim 
 without first exliausting collateral se- 
 curity held, or surrendering such 
 security to the receivers to be added 
 to the general fund for distribution. 
 Wheeler v. Walton & W. Co. 72 Fed. 
 Rep. 966. 
 
 3 See post, §g 842, 343. 
 
 * Poland V. Lamoille Val'ei,' li. Co. 52 
 Vt. 144; Blair v. St. Louis, LI. <& K. 
 B. Co. 19 Fed. llap. 861. 
 
 * A judgment creditor is entitled to 
 a priority as to income derived by the 
 receiver from the operation of the 
 road, or other money in his hands de- 
 rived from the collection of debts due 
 the corporation; and if the judgment 
 is against the receiver for receivership 
 indebtedness for operating expenses 
 it may be paid out of the corpus also. 
 Qibei t V. Washington City, V. M. & G. 
 S. R. Co. 33 Gratt. 645; Turner v. In- 
 dianapolis, B. & W. R. Co. 8Biss. 537.
 
 CLAIMS AGAINST RECEIVERSHIP PUNDS. 575 
 
 mortgagee in accepting his mortgage impliedly agrees that the 
 current debts made in the ordiiiai-y course of business shall be 
 paid from the current receipts before he has any claim upon the 
 income. 
 
 In such ease, if anything has been taken from the current debt 
 fund and put into the mortgage creditors' fund, the court may 
 require, as a condition of the order, that the future current re- 
 ceipts' shall be applied to the payment of the current debts, 
 ])efore payment of anything to the mortgagees, and this not- 
 withstanding the mortgage may give a lien on the profits and 
 income. 
 
 So a' so if it appears in the progress of the case, where no order 
 has been made touching the rights of such creditors, that interest 
 has been paid, additional equipment provided, or lasting and 
 valuable improvements made, out of the earnings that ought to 
 have been applied in keeping down debts for labor, supplies, etc., 
 it is within the power of the court to use the income of the 
 receivership to discharge obligations which, but for the diversion 
 of the funds, would have been paid in the ordinary course of 
 business. Such an order in effect restores the parties to their 
 original equitable rights. 
 
 And while the above rule is ordinarily restricted to the income 
 of the receivership and the proceeds of mortgaged assets that 
 liave been taken from the company, yet the rule may be extended 
 in certain cases to the proceeds of sale of the mortgaged prop- 
 erty; as where, before the appointment of a receiver, income ap- 
 plicable to the payment of current debts is taken for permanent 
 improvements in the fixed property or to buy additional equip- 
 ment.' 
 
 The reasons for these rules are that a railroad is a public con- 
 
 'Mr. Justice Harlan, In Thomas v. S. 591, 31 L. ed. SS.'); Gilmnn v. Illi- 
 
 Peoria & II. I. E. Co. 30 Fed. Rep. 808. noia <& M. Teleg. Co. 91 U. S. 603, 23 
 
 Cf. Fosdick V. Schiil, 99 U. S. 235, L. ed. 405; Amcricnn Bridge Co. v, 
 
 25 L. ed. 339; Miltenberger v. Logans- Ileidelbach, 94 U. S. 798, 24 L. ed. 144; 
 
 port, C. & S. W. H. Co. 10(5 U. S. 286, Sage v. Memphis cfc L. E. E. Co. 125 U. 
 
 27 L. ed. 117; Unioyi Trust Co. v. S. 361, 31 L. ed. 694; Freedman's Sav. 
 
 Souther, 107 U. S. 591, 27 L. ed. 488; <& T. Go. v. Shepherd, 127 U. S. 494, 
 
 Union, Trust Co. v. Illinois M. E. Co. 32 L. ed. 163; Pennsylvania Finance 
 
 117U. S. 434, 29L. ed. 963; Burnham Co. v. Charleston, C. <& C. E. Co. 48 
 
 V. Bowen, 111 U. S. 776, 28 L. ed. 596; Fed. Rep. 188. 
 Union Trust Co. v. Morrison, 125 U.
 
 576 RECEIVEKSHIPS. 
 
 cern, and is operated and kept in motion for the benefit of stock- 
 holders, niortg-age bondliolders, and the public, all of which are 
 interested in it as a going concern. The application of these 
 equitable principles in favor of labor, supplies, etc., springs out of 
 and depends upon the diversion, for if there has been no diver- 
 sion — no taking of funds justly belonging to one class and apply- 
 ing them to another — there can be no application of the rule. If 
 there are no earnings or insufhcicnt earnings to meet expenses, 
 and no diversion, then in such case this class of creditors have no 
 equities as against the mortgage security, and are simple contract 
 creditors.' 
 
 This rule cannot be extended beyond the equitable claimants 
 mentioned, and made to apply to unsecured creditors generally, 
 for such application would be, in eii'ect, confiscation.' 
 
 § 343. Nature of preferred claims. 
 
 AVhile it is true that debts contracted by a railroad corporation 
 as a necessary part of its operating exj^enses, or for labor and 
 supplies, or for necessary equipment or improvement of the 
 mortgaged property, are privileged debts, entitled to be paid out 
 of the current income after a mortgage trustee or a receiver is 
 appointed in a foreclosure suit, as decided by the United States 
 Supreme Court,^ yet the same court limited the above rule to the 
 payment of supplies for the machinery department furnished 
 before the appointment of the receiver, and refused to extend it 
 to material furnished for construction purposes, as not based upon 
 any special equity." This limitation of the rule does not apply of 
 course where the construction is made by the receiver.^ As has 
 
 • Eneelnnd v. American Loan d-. T. GUy, TF. c£ N. TF. R. Co. 53 Fed. Rep. 
 
 Co. 136 U. S. 89, 34 L. ed. 379; Burn- 182. 
 
 liam V. Bowen, 111 U. S. 776, 28 L. ^ Posdick v. Schall, 99 U. S. 235, 25 
 
 ed. 596. L. ed. 339. 
 
 '^Preference from the assets may be * Hale v. Frost, 99 U. S. 389, 25 
 
 required as to meritorious debts con- L. ed. 419. 
 
 tracted to create or preserve railroad * MtUeubergcr v. Logansport, C. & 
 
 property, as a condition of the ap- S. W. R. Co. 106 U. S. 287, 27 L. ed. 
 
 poinlment of a receiver in an action 117; Union Trtist Co. v. Souther, 107 
 
 to foreclose a mortgage upon the rail- U. S. 591. 27 L. ed. 488; Union Trmt 
 
 road, although there has been no di- Cj. v. Illinois M. R. Co. 117 U. S. 
 
 version of the income of the road. 462, 29 L. ed. 973; Huidekoper v. 
 
 Farmers' Loan <Se T. Co. v. Kansas Hinckley Locomotive Wm'ks, 99 U. S.
 
 CLAIMS AGAINST RECEIVERSHIP FUNDS. 
 
 577 
 
 258, 25 L. ed. 345; Wood v. Guarantee 
 Trvst & S. D. Co. 128 U. S. 
 421, 32 L. ed. 473. Cf. American 
 Loan & T. Co. v. Eaf<t & W. R. Co. 46 
 Fed. Rep. 101; Kneeland v. Bass 
 Foundry & Atach. Works, 140 U. S. 
 592, 35 L. ed. 543. 
 
 In Miltenberger v. Logansport, C & 
 S. W. R. Co. supra, the court, says many- 
 circumstances exist which may make 
 it necessary and indispensable to the 
 business of the road, and the preserva- 
 tion of the property, for the receiver 
 to pay existing debts of certain classes 
 out of the earnings of the receiver- 
 sliip. or even the corpus of the prop- 
 erty under the order of court, but the 
 discretion to do so should be exercised 
 with very great care. The payment 
 of such claims prima facie stands on 
 a different basis from the payment of 
 claims arising under the receivership, 
 while it may be brought within the 
 principle of the latter by special cir- 
 cumstances. The probable results of 
 nonpayment should be taken into 
 consideration, together with the in- 
 terests and accommodation of the 
 traveling public. Cf. Wallace v. 
 Uomis, 97 U. S. 146, 24 L. ed. 895; 
 Barton v. Barbour, 104 U. S. 126, 26 
 L. ed. 672. 
 
 In Miltenberger v. Logansport, C. & 
 S. W. R. Co. supra, the time lim- 
 ited in which the claims must have 
 accrued to entitle them to priority 
 was fixed at ninety days. 
 
 The mere lapse of more than six 
 months between the times in which 
 the claims for labor accrued and the 
 appointment of a receiver, does not 
 afford a sufficient reason for denying 
 a priority to which they would other- 
 wise be entitled. Mcllhenny v. Bing, 
 80 Tex. 1. In this case claims for board 
 furnished to laborers and operatives 
 employed by the insolvent railroad 
 company, under an understanding 
 
 37 
 
 between the company, the laborers, 
 and boardiug-hoMse keepers and gro- 
 cers, that the company was to retain 
 a sufficient amount out of the wages 
 of the laborers to pay their board, 
 and was to pay the boarding-house 
 keepers and the grocers, the company 
 crediting the latter with the amounts, 
 were treated as claims assigned to the 
 holders and were entitled to priority 
 over the bonded indebtedness. 
 
 The fact that the holder of claims 
 for laborers' wages against an in- 
 solvent railroad company took in- 
 dorsed notes of the company, was held 
 not a waiver of the holder's right to 
 priority of payment as against the 
 bonded indebtedness, where in taking 
 the indorsement there was no inten- 
 tion to waive the lien against the 
 company. 
 
 Two claims against the company 
 for coal furnished for the purpose of 
 operating its road, one of which ac- 
 crued a little more and the other a 
 little less than six months prior to 
 the appointment of a receiver, were 
 given a priority over mortgage bonds. 
 
 Where a railroad has been placed 
 in the hands of a receiver, wages of 
 employees, eight months overdue, 
 were ordered to be paid to such of 
 said employees as were retained by 
 the receiver in the employ of the 
 road; but petitions by assignees of 
 similar overdue wages for payment of 
 the same were refused, tjkiddy v. 
 Atlantic, M. & 0. R. Co. 3 Hughes, 
 320. 
 
 Where rails and supplies are fur- 
 nished to a railroad company on its 
 credit, before the appointment of a 
 receiver, the court will refuse a 
 petition for payment of the same. 
 Skiddy v. Atlantic, M. & 0. R. Co. 
 supra. 
 
 Creditors of a railroad company in 
 the hands of a receiver in a mortgage
 
 578 
 
 RECEIVERSHIPS. 
 
 been seen elsewhere, the claims wliicli have priority over the mort- 
 gapjo indebtedness are usually for labor and supplies, but may 
 include royalt}' to a mine owner,' receiver's certificates in the 
 hands of innocent holders wliere on their face priority is ex- 
 pressed,' proper compensation to counsel," claims given a priority 
 
 foreclosure will be paid out of its 
 earnings in preference to tlie mortgage 
 only where it has been kept a going 
 concern by materials, supplies, or 
 equipment in part, at least, furnished 
 by such creditors, and has made 
 earnings which in whole or in part 
 have been used in payment of interest 
 or in permanent improvements, or in 
 some olher way for the benefit of the 
 mortgage creditors. Pennsylvania 
 Finance Co. v. Charleston, C. & C. R. 
 Co. 48 Fed. Rep. 188. 
 
 A court which appoints a receiver 
 of railroad property may contract 
 debts necessary for the operation of 
 the road, either for labor, supplies, or 
 rentals, and make juch expenses a 
 prior lien on the property itself. 
 Kneeland v. Bass Foundry & Mach. 
 Works, 140 U. S. 592, 35 L. ed. 543. 
 
 A court which is administering a 
 railroad through a receiver will not 
 be prevented from purchasing rolling 
 stock and other material needed for 
 its operation, by reason of agreement 
 between a third party and the re- 
 ceiver and bondholders of the road 
 that a claim of such third party is to 
 have priority over all claims except 
 operating expenses. State v. East 
 Line & R. R. R. Co. (Tex. Dist. Ct.) 
 48 Am. &Eng. R. Cas. 656. 
 
 Indebtedness for necessary supplies 
 for a railroad, which accrued before 
 the appointment of a receiver, can 
 seldom be allowed priority to the 
 mortgage bonds. Claims for rental 
 of cars, that accrued prior to the re- 
 ceivership, should not be; but claims 
 for rental of cars which accrued dur- 
 
 ing the receivership and for ordinary 
 repairs of such rented cars, rendered 
 necessary by his use of the same, 
 where he agreed to keep the cars in 
 repair, should be allowed such prior- 
 ity. Thomas v. Western Car Co. 149 
 U. S. 95, 37 L. ed. 603. 
 
 ' Royalty accruing to a mine owner 
 from an insolvent mining company 
 while in the hands of a receiver is a 
 first charge on the funds in his hands. 
 Allison V. Coal Greek & N. R. Coal Co. 
 87 Tenn. 60. 
 
 ^When receivers' certificates payable 
 to bearer have all passed into the 
 hands of third persons for a valuable 
 consideration those persons have a 
 right to rely on the promise of the 
 court as to their priority, plainly 
 borne on their face, when the consent 
 of the trustees, and thus of the bond- 
 liolders, was given to their issue. 
 Kneeland v. Luce, 141 U. S. 491, 35 L. 
 ed. 830. 
 
 The lien of receiv er's certificate is- 
 sued upon a loan to the receiver, un- 
 der an order directing that they con- 
 stitute a first lien on railroad property 
 in the possession of the receiver, is not 
 affected by a mortgage foreclosure of 
 which the holder had no notice, or by 
 the fact that the receiver misappro- 
 priated the money. Mercantile Trust 
 Co. V. Kanaioha & 0. R. Co. 50 Fed. 
 Rep. 874. 
 
 ^ A decree appointing a receiver for 
 a railroad, and giving priority to 
 claims for "labor in operation of the 
 road," — Held, to include proper com- 
 pensation for counsel to the receiver 
 for services necessary in managing the
 
 CLAIMS AGx\INST RECEIVERSHIP FUNDS. 
 
 579 
 
 by statute.' But claims will not be given a priority where they 
 are collusive and detrimental to the trust, though for material," 
 or for general construction account sold on the credit of the com- 
 pany more than six months prior to the appointment,' or for the 
 death of an employee," or for services rendered to retain control 
 of a portion of the road not covered b}^ the mortgage," or balance 
 due for compensation from a joint enterprise where the foreclos- 
 
 road. Bayliss v. La Fayette, M. & B. 
 R. Co. 9 Biss. 90. Not however if lie 
 is employed for special purposes. 
 Louisville, E. <& St. L. R. Co. v. Wihon, 
 138 U. S. 501, 34 L. ed. 1023. 
 
 ' Laborers in the employment of a 
 corporation whose property is put into 
 the hands of a receiver Ayho takes im- 
 mediate possession thereof, with whom 
 they properly tile their claims, are not 
 required to file claims with a sheriff 
 who had levied upon all such prop- 
 erty four days before the appointment 
 of the receiver, under Iowa Acts, 23d 
 Gen. Assera. chap. 48, giving a pref- 
 erence to the laborers of a corporation 
 whose property is seized or put into 
 the hands of a receiver, and requiring 
 them to file such claim with the officer 
 seizing the properly or with the re- 
 ceiver. St. Paul Title Ins. & T. Co. v. 
 Diagonal Coal Co. (Iowa) 64 N. W. 606. 
 
 Past-due instalments upon agree- 
 ments for the hire of rolling stock are 
 "working expenses and proper out- 
 goings," to be first paid by the re- 
 ceiver of a railroad company out of 
 the gross receipts. Re Eautei-n & M. 
 R. Co. 43 Am. & Eng. R. Gas. 71. L. 
 R. 45 Ch. Div. 367. 
 
 "^ VanderbiU v. New Jersey G. B. Co. 
 43 N. J. Eq. 669. 
 
 ^One who sells materials to a rail- 
 road compan}' for general construc- 
 tion, relying on the credit of the com- 
 pany and obtaining no lien on its 
 earnings or property more than six 
 months prior to any receivership, has 
 no preference for payment out of the 
 
 funds in the hands of the receiver as 
 to mortgage creditors. American 
 Loan & T. Co. v. East & W. R. Co. 46 
 Fed. Rep. 101. 
 
 One who has sold necessary rails 
 in reliance upon the promise of the 
 compiiny's officers that tliey should 
 be paid for out of the earnings is enti- 
 tled, in equity, to be paid out of the 
 earnings in the hands of a receiver, 
 appointed in a foreclosure suit by the 
 second mortgagees, in preference to 
 the latter's claims, but not to those of 
 first mortgagees and other lienors 
 superior to the second mortgage, who 
 have only come into equity by cross- 
 bills after being made defendants. 
 Bound V. South Carolina R. Co. 47 
 Fed. Rep. 30. 
 
 ■* Liability for the death of an em- 
 ployee is not included in the operating 
 expenses of a railroad during the pe- 
 riod of six months before a receiver- 
 ship, so as to have preference over a 
 mortgage upon foreclosure. Farmers" 
 Loan & T. Co. v. Green Bay, W. & St, 
 P. R. Co. 45 Fed. Rep. 664; St. Louis, 
 A. & T. H. R. Co. v. Cleveland, G. G. 
 <& I. R. Co. 125 U. S. 658, 31 L. ed. 
 832. 
 
 5 Services rendered at the instance of 
 a railroad company to preserve con- 
 trol of that portion of its road not 
 covered by a first lien cannot be con- 
 sidered as services to the holders of 
 bonds secured by that lien, so as to be 
 entitled to be paid by their receiver. 
 Louisville, E. & St. L. R. Co. v. Wil- 
 son, 138 U. S. 501, 34 L. ed. 1023.
 
 580 
 
 RECEIVERSHIPS. 
 
 lire is on one,' or money loaned to the company,' " or rent for 
 leased lines of road not part of an entire i-ailroad system,' or per- 
 sonal injuries,* or fire produced by a defective locomotive/ 
 
 ' Where two railroad companies had 
 the same fiscal agent, who received the 
 earnings of both, from which pay- 
 ments were made for each, an account 
 being kept between them, a balance of 
 such account in favor of one company 
 is not entitled to priority of payment 
 from the proceeds of the foreclosure 
 of a prior mortgage on the other, in 
 jircference to the mortgage bond- 
 holders. 3Iorgnn's Louisiana & T. R. 
 it- S. S. Co. V. Texan G. R. Co. 187 U. 
 S. 171, 34 L. ed. 625; Penn v. Calhoun, 
 121 U. S. 251, 30 L. ed. 915; Knedund 
 V. American Loan & T. Co. 136 U. S. 
 89, 34 L. ed. 379; St. Louis, A. & T. 
 H. R. Co. V. Cleveland, G. C. & L R. 
 Co. 125 U. S. 658, 31 L. ed. 833. 
 
 'One who has loaned monry upon 
 corporate shares, but has not had them 
 transferred to his name on the books 
 of the company until after the death of 
 the debtor and after a receiver of his 
 estate has been appointed at the in- 
 stance of a creditor, is not entitled to 
 have transferred to him by the re- 
 ceiver debentures issued to the latter 
 by the company representing arrears 
 of dividends upon the stock, since the 
 receiver occupies the position of an ex- 
 ecutor and the debentures are assets in 
 his hands. Re Hoare [1892]'3 Ch. 94. 
 
 Morgan's Louisiana & T. R. & 8. 8. 
 Go. V. Texas G. R. Go. 137 U. S. 171, 
 34 L. ed. 625. 
 
 'For the use of leased lines which 
 came into the hands of the receiver of 
 a railroad company (who is appointed 
 on its own petition) as part of its own 
 road, being subject to a general mort- 
 gage under the clause covering "after- 
 acquired properly," neither the agreed 
 
 rental nor the net earnings of such 
 lines during the time they are in the 
 receiver's possession as part of the en- 
 tire railroad system can be claimed by 
 creditors of such lines in preference 
 to the general mortgage creditors, al- 
 though the trustee of the former 
 might, under sanction of the court, 
 have terminated the right of the re- 
 ceiver by demanding possession. Cen- 
 tral Trust Co. V. Wabash, St. L. & P. 
 R. Co. 46 Fed. Hep. 26. 
 
 ^A person receiving personal in- 
 juries for which a judgment had been 
 rendered against the mortgagor rail- 
 road company for wrong committed 
 before the appointment of a receiver 
 js a general creditor and the earnings 
 of the receivership need not be applied 
 first to the payment of these judg- 
 ments. Central Trust Co. v. East 
 Tennessee, V. cfc 0. R. Co. 30 Fed. Rep. 
 895. 
 
 It is error to direct a receiver to pay 
 debts out of property in his hands, 
 even if they are entitled to priority of 
 payment, until the claims are reported 
 by a commissioner and allowed by 
 the court. Penn v. Whitehead, 12 
 Graft. 74. 
 
 See further as to preferred liens, 
 ante, chap. XIV. 
 
 ' Damages to property by sparks 
 from a defective locomotive prior to 
 the appointment of a receiver in fore- 
 closure proceedings, though subse- 
 quent to the default of the company 
 on the mortgage, — Held, not to come 
 under the head of operating expenses, 
 to be paid from the earnings in the 
 hands of the receiver. Hiles v. Case, 
 9 Biss. 549.
 
 CLAIMS AGAINST RECEIVERSHIP FUNDS. 5S1 
 
 § 344. Where the statute creates a lien in favor of laborers or 
 eupply men it will be entitled to a priority over the mortgage 
 lien in a foreclosure proceeding/ 
 
 ' See ante, % 276 (dj.
 
 CHAPTER XX. 
 
 RECEIVERS' COMPENSATION. 
 
 § 350. Compensation. 
 
 (h) Must be reasonable. 
 
 (b) Fixed on commission basis, 
 
 percentage. 
 
 (c) Sometimes a salary. 
 
 (d) When compensation re- 
 
 fused. 
 
 (e) When tobepaidby plaintiff. 
 
 (f) Does not depend on result 
 
 of litigation. 
 
 (g) Priority of payment of. 
 (b) Additional allowances, 
 (i) Statutory compensation, 
 (j) Order fixing not revoked. 
 
 § 350. Compensation. 
 
 In reajard to the compensation to be allowed to a receiver, there 
 are no uniform rules established of universal application. JSTor is 
 this at all strange since the duties to be performed by receivers 
 are so varied and the responsibilities attaching to the office so 
 different under the peculiar circumstances of the many cases that 
 arise. The following are some of the most general rules guiding 
 the courts in fixing the compensation of receivers. 
 
 (a) The compensation must be reasonable, and its reasonable- 
 ness depends upon a number of elements, such as the time and 
 labor actually expended, the fair value of such time and labor to 
 be fixed by common business standards, the degree of industry 
 and dispatch with which the work is conducted, the compensation 
 ordinarily paid for the transaction of similar business to persons 
 capable of so doing, the responsibilities attaching to the particular 
 office in each case.* 
 
 ' Courts of equity may, in the ab- 
 sence of statutory rule, fix the com- 
 pensation of their own receivers and 
 that of counsel employed by them. 
 Stuart V. Boulware, 133 U. S. 78, 33 
 L. ed. 568. 
 
 The reasonableness of the compen- 
 sation of a receiver is exclusively for 
 the determination of the court. LicJi- 
 tenstein v. Dial, 68 Miss. 54. 
 
 An allowance of 4<^ as compensation 
 to a receiver is not unreasonable, 
 where three reputable members of the 
 
 bar testify that 3^ or 4^ would be a 
 proper compensation, even though a 
 competent person could have been 
 employed by private contract for less 
 amount. The particular facts and 
 duties and responsibilities should 
 guide. Lichtenstein v. Dial, supra. 
 
 In the absence of a statute, the court 
 may allow reasonable compensation; 
 and the order therefor is final and ap- 
 pealable, and is special, not governed 
 by the general statute of appeals. 
 Martin v. Martin, 14 Or. 165. 
 
 582
 
 RECEIVERS' COMPENSATION. 
 
 583 
 
 Notwithstanding the statute au- 
 thorizing the superintendent of the 
 iusnrance department to fix the com- 
 pensation of receivers of insolvent life 
 insurance companies, the court will 
 supervise the decision of the superin- 
 tendent; especially where the super- 
 intendent fixes a rate of allowance 
 before the completion of the services. 
 Alty. Qen. v. North American L. Ins. 
 Co. 89 N. Y. 94. 
 
 The compensation of a receiver 
 should be such as would be reason- 
 able for the services rendered by a 
 person competent to perform the duty, 
 rather than any fixed commission. 
 Jones v. Keen, 115 Mass. 170. 
 
 The settled rule of the courts to al- 
 low to trustees only the same com- 
 missions as the statute allows to ex- 
 ecutors and guardians for similar 
 services, is not applicable to receivers 
 appointed by the court in actions pend- 
 ing therein. So held of a receiver to 
 receive and apply rents pending a 
 controversy arising on the probate of 
 a will. The court by whom a re- 
 ceiver is appointed has power to de- 
 termine the rate of compensation and 
 it may be fixed with reference to the 
 circumstances of the case. Gardiner 
 V. Tyler, 2 Abb. App. Dec. 247. 
 
 A receiver of an insolvent savings 
 bank was allowed compensation for 
 his services to be fixed l)y considering 
 the responsibility assumed, the skill 
 and labor expended, and the rate of 
 pay usually allowed for similar work; 
 and not to be determined by a per- 
 centage on collections and for com- 
 missions for services rendered by him 
 as broker in raising money for mort- 
 gage debtors to the bank to enable 
 them to discharge their debts. But 
 a gratuilj' he had paid to a policeman 
 for assisting in keeping order during 
 dividend payments was disallowed. 
 Special, Batik Comrs. v. BVanklin Sav. 
 Inst. 11 It. I. 557. 
 
 A receiver acting on a fixed com- 
 pensation as the agent of creditors 
 and subsequently remaining in charge 
 after its purchase by the creditors 
 with the power to sell, acquires no 
 lien upon the property or its pro- 
 ceeds for his compensation and a 
 settlement between the creditors re- 
 leasing the fund derived from the sale 
 revokes his agency. Itowe v. Rand, 
 111 Ind.206. 
 
 The compensation of a receiver of 
 an insolvent railroad company is to be 
 regulated by his responsibilities and 
 duties. Central Trust Co. v. Wabash, 
 St. L. & P. It. Co. 32 Fed. Rep. 187. 
 See Hinckley v. Cilrnan, C. & 8. R. 
 Co. 100 U. S. 15:3, 25 L. ed. 591; In- 
 ternal Improv. Fund v. Oreenough, 
 105 U. S. 527, 26 L. ed. 1157. 
 
 A coutt should not, without evi- 
 dence as to proper compensation in a 
 given case, determine and award the 
 compensation to be paid to a receiver. 
 Heffron v. Rice, 40 111. App. 244. 
 
 Where a receiver resigns to suit his' 
 own convenience, his compensation 
 may fairly be measured by moneys 
 actually received by him, although he 
 has rendered services toward the col- 
 lection of other moneys that will be 
 received by his successor, who will be 
 entitled to claim commis-sion on their 
 collection. People v. Mutual Ben. Asso. 
 39 Ilun, 49; Re Commo)iwealth F. Ins. 
 Co. 32 Hun, 78; Central Trust Co. v. 
 Wabash, St. L. <fc P. R. Co. 32 Fed. 
 Rep. 187. 
 
 The true rule in fixing the com- 
 pensation of a receiver is to look at 
 all the circumstances of the case, the 
 amount of property to be cared for, 
 the ditficully in reducing to posses- 
 sion, the kind and character of the 
 property, the amount of bond re- 
 quired, the business character, and 
 integrity required for the work, and 
 finally, the manner in which the trust 
 has been executed,- -and then say
 
 584 
 
 RECEIVERSHIPS. 
 
 (b) The court sometimes, by statute or b}^ analogy, fixes the 
 compensation by a per cent on the amount of money passing 
 through the receiver's hands. In many cases tliis is an equitable 
 method of arriving at a just compensation, particularly in cases 
 of bank receiverships, and other corporations of a somewhat simi- 
 lar nature.' 
 
 what would be a fair and reasonable 
 allowance, keeping in mind that the 
 "laborer is worthy of his hire," and 
 that extravagance is to be avoided. 
 United Stcites v. Church of Jesus Chrid 
 of L. D. 8. 6 Utah, 9, 48. 
 
 The compensation of a receiver into 
 whose hands property of the aggregate 
 value of more than $700,000 came, 
 of which more than one third was in 
 real estate, while the cash and other 
 personal property was acquired with 
 but little litigation, and his active du- 
 ties, for the most part, ceased at the 
 entering of a final decree in a suit, — 
 was fixed for one year at $10,000. 
 United States v. Church of Jems Christ 
 of L. D. S. supra. 
 
 A receiver of a decedent's estate, 
 whose application for an order to sell 
 land to puy legacies and debts is en- 
 tertained, is entitled to a reasonable 
 fee for his services, which should not 
 be estimated, however, by the charges 
 usually made for obtaining such or- 
 ders, where the court has required its 
 register, at the expense of the estate, to 
 ascertain and report all claims against 
 the estate and the receiver's inventory 
 of the assets is before the court. 
 Hem-y v. Henry, 103 Ala. 583. 
 
 The appointment of a receiver of 
 an insolvent corporation in one court 
 while proceedings for such appoint- 
 ment are pending in another court 
 having jurisdiction thereof, although 
 irregular, is not void, and the receiv- 
 er's lawful acts and contracts are 
 binding in the further administration 
 of the assets, and he is entitled to just 
 
 compensation for his services. North- 
 western Iron Co. V. Lehigh Coal & I. 
 Co. (Wis.) 66 N. W. 515. Cf. Schwartz 
 V. Keystone Od Co. 153 Pa. 283; Cen- 
 trnl Trust Co. v. Cincin?iati, I. <fe M. 
 R. Co. 58 Fed. Rep. 500. 
 
 An appellate court will not reverse 
 the lower court as to compensation 
 except in a strong case. Heffron v. 
 Rice, 149 111. 216; Morgan v. Hardee, 
 71 Ga. 736. 
 
 ' A receiver appointed to take the 
 rents and profits of plantations, will 
 be entitled to his commission of 5 per 
 cent upon the performance of his du- 
 ties, however unimportant they may 
 be, and though the plantations have 
 been managed solely by overseers ap- 
 pointed by him. Price v. White, 1 
 Bail. Eq. 240. 
 
 A receiver is an officer of the court, 
 and as such, in the absence of legisla- 
 tion, the court has the authority to 
 determine his compensation. The 
 general mode of compensation is by a 
 commission on the receipts and dis- 
 bursements. Magee v. Cowperihw'aite, 
 10 Ala. 906. 
 
 Five per cent on receipts and 2^ 
 per cent on disbursements is correct, 
 as a general rule, Magee v. Cowper- 
 thwaite, supra. 
 
 A receiver is entitled to commission 
 on personal property which he trans- 
 fers in specie; and where he pays 
 monej^ into the hands of a moneyed 
 corporation named in the decree, he 
 cannot make annual or any rests, but 
 his commissions will be estimated on 
 the sum total of the payments so
 
 RECEIVERS' COMPENSATION. 
 
 585 
 
 made. A receiver may retain coun- 
 sel of one of the parties, to aid in se- 
 curing a fund for tlie benefit of all 
 parties. Bennett v. Chapin, 3 Sandf. 
 673. 
 
 A receiver of a life insurance com- 
 pany, — Held, not entitled lo commis- 
 sions on the amount ($398,028.30) 
 of premium notes and loans on poli- 
 cies outstanding at the time of his 
 appointment, and carried on his books 
 as liens on his policies, and not col- 
 lected; the amount due on each policy 
 being ascertained by deducting the 
 loans or premium notes standing 
 against it, and the difference treated 
 as a debt due the company, on which 
 dividends were computed by him. 
 Atty. Oen. v. North American L. Ins. 
 Co. 26 Hun, 294, 89 N. Y. 94; Re Se- 
 curity Life Ins. & A. Co. 31 Hun, 36. 
 
 Such receiver having advanced 
 moneys to be used in paying off taxes 
 on lands covered by mortgages be- 
 longing to a special fund in the hands 
 of the insurance superintendent, and 
 then Id process of foreclosure, — Held 
 that he was not entitled to commis- 
 sions on these moneys, which were 
 afterwards repaid to him on a sale of 
 the [• •■•rty. Atty. Gen. v. North 
 American L. Ins. Co. 89 N. Y. 94. 
 
 Commissions may be allowed the 
 receiver, by such superintendent, on 
 the special fund held by him for the 
 company, and paid over to the re- 
 ceiver, as well as on the general 
 assets. Such fund is also chargeable 
 with its proportionate part of the ex- 
 pense of closing up the business. 
 Atty. Gen. v. North American L. Ins. 
 Co. supra. 
 
 All parties interested in the fund 
 are entitled to notice of application to 
 fix the commissions. The court may 
 review such superintendent's action 
 in fixing the receiver's commissions. 
 Atty. Gen. v. Nortlt American L. Ins. 
 Co. supra. 
 
 Owing to a disagreement as to the 
 management of the affairs of a sol ven 
 corporation, a receiver was appointed 
 Those conducting the business contin 
 ued to conduct it, buying and selling 
 receiving and disbursing. The re 
 ceiver employed a clerk, whose com 
 peusation was agreed upon and al 
 lowed, and who reported daily to the 
 receiver, who visited the factory 
 nearly every day. The only money 
 which actually came into the hands 
 of the receiver was that arising from 
 the final sale at auction of the prop- 
 erly. Held that the receiver was en- 
 titled to commissions only upon this 
 amount, not upon that received and 
 disbursed by the managers. Re Woven 
 Tape Skirt Co. 85 N. Y. 506. 
 
 Proceeds of security deposited with 
 the superintendent of the insurance 
 department as a special fund to secure 
 registered policies are assets in the 
 hands of the receiver of an insolvent 
 life insurance company, and he is en- 
 titled to commissions thereon. He is 
 not, however, entitled to commissions 
 on premium notes and loans made on 
 policies, such being merely offsets 
 against liabilities. Re Woven Tape 
 Skirt Co. sujjra; Atty. Gen. v. North 
 American L. Ins. Co. 89 N. Y. 94. 
 
 A receiver of a copartnership is en- 
 titled to commission and expenses out 
 of the proceeds of book accounts of 
 the firm collected by him, although 
 they were assigned to a creditor be- 
 fore his appointment, and he was noti- 
 fied not to collect them. Kerlin v. 
 Etcen, 149 Pa. 58; Schwartz v. Key- 
 stone Oil Co. 153 Pa. 283. 
 
 Prior to the passage of N. Y. Laws 
 1883, chap. 378, the commissions of a 
 receiver of an insolvent life insurance 
 company were properly fixed by the 
 court which appointed him, not ex- 
 ceeding, however, 5 per cent on re- 
 ceipts and dishunsements. Atty. Gen. 
 V. Guardian L. Ins. Co. 93 N.Y. 631.
 
 586 
 
 RECEIVERSHIPS. 
 
 (c) Sometimes the court fixes the compensation by a fixed sal- 
 ary by the year or month, but in sucli case tlie reasonableness is 
 determined as in other cases, and it may be graduated according 
 to the duties performed in certain stages of the receivership.' 
 
 Tlic 5 per cent upon receipts usu- 
 ally allowed to a receiver will be in- 
 creased where unusual work is re- 
 quired, or diminished where the 
 receipts are large or the trouble of 
 collecting Ihem is insigniticant. Hall 
 V. Slipp, 1 N. B. Eq. 37. 
 
 A receiver does not lose his right to 
 commissions for carrying on the busi- 
 ness at a loss after he knows that a 
 loss will accrue, wliere no party inter- 
 ested applies for an order requiring 
 him to close up the business. Filkins 
 V. Adams, 60 III. App. 410. 
 
 Cf. Greeley v. Provident Sav Bank, 
 103 Mo. 212; Mc Arthur v. Montclair 
 R. Co. 27 N. J. Eq. 77; Orant v. Bry- 
 ant, 101 Mass. 5(57; Karn v. Rarer 
 Iron Co. 86 Va. 754. 
 
 'An allowance to a receiver of a 
 lumber company for compensation 
 for his services in settling and collect- 
 ing accounts, operating a sawmill for 
 two or three months, selling lumber 
 and stock of merchandise, and look- 
 ing after litigations, of $150 for the 
 first month, $400 a month for the 
 next five months, and $300 a month 
 thereafter, was reduced to $300 a 
 month for the whole time, in analogy 
 to prices theretofore paid for carrying 
 on the business and prices paid for 
 similar work, but was not restricted 
 to the compensation of executors and 
 administrators. Thompfion v. Huron 
 Lumber Co. 5 Wash. 527. 
 
 A salary of $3,000 per anuum is in- 
 adequate compensation for a receiver 
 who is called upon to manage the re- 
 pairs, preservation, and operation of a 
 long line of railrviad, and who dis- 
 burses in the period of twenty-seven 
 and one half months $1,700,000, and 
 
 gives bond in the sum of $50,000. 
 FarmerH" Loan & T. Co. v. Central R. 
 Co. 2 McCrary, 318. 
 
 But if a person agrees to serve for 
 $3,000 per annum, and enters upon 
 duty under an appointment fixing his 
 salary at that sum, a court of equity 
 will not release him from that agree- 
 ment and add to his compensation 
 unless it be shown that his duties 
 proved to be more arduous than he 
 or the court expected, or that he per- 
 formed duties in addition to those 
 ordinarily required of a receiver. 
 Farmers' Loan & T. Co. v. Central R. 
 Co. supra. 
 
 A receiver is not entitled to extra 
 pay for uniting the offices of auditor 
 and cashier, thus saving one salary; 
 nor for the disbursement of money in 
 payment of debts contracted by his 
 predecessor, and the like. Farmers' 
 Loan & T. Co. v. Central R. Co. supra. 
 
 To deprive a receiver of all com- 
 pensation on account of fraud or mis- 
 conduct, it must appear that his ac- 
 tion has been wilfully corrupt. An 
 error of judgment is not enough. 
 Farmers' fjoan t& T. Co. v. Central R. 
 Co. supra. 
 
 A receiver appointed to examine 
 the affairs of a savings bank, — Held, 
 to be entitled to $16,000 for services 
 for three years and fourteen days. 
 Special Bank Comrs. v. Cranston Sav. 
 Bank, 12 R. I. 497. 
 
 Cf. Pilkington v. Baker, 24 Week. 
 Rep. 234. 
 
 As to the compensation of an official 
 liquidator being paid before the costs 
 of winding up a corporation, see Re 
 Massey, L. R. 9 Eq. 367; Re Dronjield 
 8. Coal Co. L. R. 23 Ch. Div. 511.
 
 RECEIVERS' COMPENSATION. 
 
 587 
 
 (d) Circumstances sometimes may be such as to warrant the court 
 in refusing compensation to the receiver, as where he neglects his 
 official duty resulting in loss to the estate,' or is a ])arty to the 
 proceeding and interested in the property,'^ or is a trustee of the 
 property/ 
 
 (e) A receiver will not be required to serve without compensa- 
 tion, and if the order is revoked after his services have been com- 
 menced, as having been erroneously granted, the party procuring 
 the appointment must pay the compensation,' or where it ap- 
 
 ' Neglect and misconduct on the 
 part of a receiver in the discharge of 
 his trust will deprive him of the right 
 to commissions by way of compensa- 
 tion. Clapp V. Clapp, 49 Hun, 195; 
 Schwartz v. Keystone Oil Co. 153 Pa. 
 283. 
 
 Cf. Wliite V. Lincoln, 8 Ves. Jr. 
 371 ; Potls V. Leigldon, 15 Ves. Jr. 278; 
 Bristowe v. Needham, 9 Jur. N. S. 
 1168; Dease v. O'Reilly, 2 Con. & L. 
 441; Flood v. Aldborough, 8 Ir. Eq. 
 103; Farmers' Loan & T. Co. v. Cen- 
 tral R. Co. 8 Fed. Rep. 60. But see 
 Coirdrey v. Galveston, H. & H. R. Co. 
 1 Woods, 331. 
 
 '' A partner or co-owner who is ap- 
 pointed receiver on his own ex parte 
 application, is not entitled to compen- 
 sation for his services. Brien v. Har- 
 riman, 1 Tenn. Ch. 467. 
 
 A receiver who is an interested 
 party appointed by agreement of the 
 parties on a representation to the court 
 that the salary of the former receiver 
 would thereby be saved, and who 
 made no claim for compensation while 
 in otlice, will not be allowed any sal- 
 ary, although when he took the place 
 he thought the estate would soon be 
 settled up without much labor, but 
 ■was disappointed in this respect, and 
 the court had no notice of the expecta- 
 tiOH. Sleel v. Uolladay, 19 Or. 517. 
 
 A second mortgagee improperly 
 appointed receiver of the rents and 
 
 profits of the mortgaged property un- 
 der a first mortgage is not entitled to 
 compensation for services in harvest- 
 ing and marketing the crops, and to 
 have the remainder of the moneys 
 realized applied upon his debt, as such 
 moneys represent the earnings of the 
 property during the time the mort- 
 gagor was entitled to possession under 
 the Oregon statute, and equitably be- 
 long to him. Thomson v. Shirley, 69 
 Fed. Rep. 484. 
 
 2 There is no inflexible rule that a 
 trustee can be appointed receiver only 
 upon the condition of receiving no re- 
 muneration, but the question is within 
 the discretion of the court. Re Big- 
 nell [1893] 1 Ch. 59. 
 
 The fact that the order appointing 
 a receiver provides for no remunera- 
 tion does not preclude the court from 
 granting remuneration. Bignell v. 
 Chapman [1892] 1 Ch. 59, 61 L. J. 
 Ch. 334, 66 L. T. 36, 40 Week. Rep. 
 305. 
 
 * French v. Gifford, 31 Iowa, 428; 
 Pitli^field Nat. 'Bank v. Bayne, 140 N, 
 Y. 321; Ferguson v. Dent, 46 Fed. 
 Rep. 88; Morse v. Hannibal & St. J. 
 R. Co. 72 Mo. 585. 
 
 As a rule the compensation of a re- 
 ceiver is taxable to the fund and not 
 to the parties to the suit and where 
 the appointment is mutually agreed 
 upon and no additional expense is in- 
 curred by it the mere fact that it was
 
 588 
 
 RECEIVERSHIPS. 
 
 pears that the property belongs to third parties who intervene, and 
 not to the defendant. 
 
 (f) As a rnle the receiver's compensation will not be made to 
 depend upon the result of the litigation between the parties, and 
 even where in the end the title to the property is found to be in 
 the defendant from whom the receiver takes it, nevertheless he is 
 entitled to compensation. The court in such case is not to blame, 
 nor is the receiver who obeys its order, and the property in the 
 receiver's hands is liable for his compensation,' and where the 
 property has been turned over to third parties as the owners 
 the court may order the property back into the receiver's hands 
 for the purposes of compensation." 
 
 (g) The receiver is entitled to compensation in priority to re- 
 ceiver's certificates or claims of laborers.^ 
 
 made upon the petition of one party 
 does not autliorize the taxation of 
 compensation to such petitioner. Jaf- 
 fray v. Rmb, 72 Iowa, 335. 
 
 Where at plaintiiT's instance de- 
 fendant is enjoined from prosecuting 
 his business and dispossessed, pend- 
 ing the suit, of his property, which is 
 turned over to a receiver, if he ulti- 
 mately prevails the receiver's com 
 pensation should ordinarily be taxed 
 as costs against plaintiff and not al- 
 lowed from the fund. St. Louis v. 
 Si. Louis GasUylit Co. 11 Mo. App. 
 237. But see People v. Jones, 83 
 Mich. 303; Tome v. King, 64 Md. 1G6. 
 
 As a rule the compensation is pay- 
 able from the receivership funds or 
 property. Wilson Cotton Mills v. Ran- 
 dleman Cotton Mills, 115 N. C. 478; 
 Eeise v. Starr, 44 111. App. 406; Beck- 
 with V. Carroll, 56 Ala. 12; Pennayl- 
 vania Oo. for Ins. on Lives, etc. v. 
 Jacksonville, T. & K. W. R. Co. 66 
 Fed. Rep. 421. 
 
 ' A receiver is entitled to compensa- 
 tion from the fund in his hands, with- 
 out regard to the result of the litiga- 
 tion. Hopfensack v. Hopfensack, 61 
 How. Pr. 498. 
 
 Cf. Radford v. Folsom, 55 Iowa, 276. 
 
 A receiver of property in contro- 
 versy in an action cannot recover 
 judgment for his services against all 
 the parties, by motion in the original 
 suit. He is an officer of the court and 
 his compensation should be allowed 
 out of the property in his hands, or 
 taxed as costs. Hutchinson v. Hamp 
 ton, 1 Mont. 39. 
 
 * Surrender to a third party of prop- 
 erty which the court has placed in the 
 hands of a receiver for preservation 
 will not destroy a lien which the court 
 has decreed against it for the payment 
 of the receiver's fees; but the court 
 may order the properly, or the funds 
 into which it has been turned, re- 
 stored to the possession of the court 
 so that it may be subjected to the sat- 
 isfaction of such lien. Lammon v. 
 Giles, 8 Wash. Terr. 117. 
 
 ^An allowance as compensation to 
 a receiver of a railroad and his solic- 
 itor is part of the taxable costs in the 
 case, and as such to be preferred to 
 the receiver's certificates. Peterbburg 
 Sav. d- /. Co. v. Delia torre, 70 Fed. 
 Rep. 643, 30 U. S. App. 504. 
 
 The fees of a receiver of a corpora-
 
 RECEINTERS' COMPENSATION. 
 
 589 
 
 (h) In addition to the receiver's com^^ensation for services he 
 is, as a rule, entitled to be paid from the receiversliip funds 
 (l) necessary counsel fees for services rendered in his behalf for 
 the benefit of the receivership estate/ and legitimate expenses 
 and costs" and (2) such additional allowance for extra services 
 
 tion should be paid before claims of 
 laborers in the employ of the corpo- 
 ration, under Iowa Acts (23d Gen. 
 Assem. chap. 48), making the claims 
 of such laborers preferred debts to 
 be paid after first paying "all costs" 
 occasioned by the seizure of property. 
 St. Paul Title Ins. <& T. Go. v. Diag- 
 onal Coal Co. (Iowa) (54 N. W. 006. 
 
 ' While a receiver may employ coun- 
 sel, if necessary, and bind the estate 
 to their payment, he cannot charge 
 for professional legal services rendered 
 by himself. State v. Butler, 15 Lea, 
 113. 
 
 A receiver cannot charge counsel 
 fees for services performed by him- 
 self. Be Bank of Niagara, 6 Paige, 
 213. 
 
 And he will not be allowed per diem 
 compensation for particular services, 
 or any other allowance, beyond his 
 commission, except attorney's and 
 solicitor's fees, if he acts as such. Re 
 Bank of Niagara, supra. 
 
 A receiver, upon the passing of his 
 accounts, is not entitled to an allow- 
 ance out of a fund in his hands as re- 
 ceiver for counsel fees which he has 
 paid on an unsuccessful defense to a 
 suit brought against him by the owner 
 of such fund, nor for the expenses of 
 an unsuccessful appeal brought by 
 him from the decree in such suit. 
 Utica Ins. Go. v. Lynch, 2 Barb. Ch. 
 573. 
 
 It is improper for the solicitor of 
 the complainant, at whose suit a re- 
 ceiver was appointed, to act as coun- 
 sel for the receiver; and no compen- 
 sation for such services can be paid 
 
 from the fund in the receiver's hands, 
 Eeffron v. Flower, 35 111. App 200; 
 Baker v. Backus, 32 111. 79, 115; Mer- 
 chants' & M. Nat. Bank v. Kent Cir- 
 cuit Judge, 43 Mich. 292; Benneson v. 
 Bill, 62 111. 409. 
 
 Policy holders in an insolvent life 
 insurance company employed an at- 
 torney to resist the allowance of im- 
 proper charges made by the receiver, 
 — Held that the attorney's compensa- 
 tion was not payable from the assets. 
 Atty. Gen. v. Continental L. Ins. Co. 
 31 Hun, 623; Atty. Gen. v. North 
 American L. Ins. Co. 91 N. Y. 57. 
 See also Laws of 1883, § 5, chap. 378. 
 
 Where one of the defendants in a 
 certain cause was charged by a decree 
 of the court with the collection of cer- 
 tain policies of insurance, for the ben- 
 efit of lienhoklers upon the insured 
 property, — Held that he was author- 
 ized to place the matter at once in the 
 hands of competent attorneys, and was 
 properly allowed a reasonable amount 
 paid for their services, although the 
 insurance was paid without litigation. 
 Abbott V. Downer, 54 Iowa, 687. 
 
 *A receiver properly appointed is en- 
 tilled to hiscostsfor altendingcourt — 
 $40 for two days' attendance. Lou- 
 isville & St. L. R. Co. V. Southworth, 
 38 111. App. 225. 
 
 The receivers of an insolvent cor- 
 poration were allowed their costs of 
 resisting in good faith a claim of set- 
 off, by a debtor of the corporation, 
 though the set-off was finally allowed 
 by the court. Ilolhrook v. American 
 F. Ins. Co. 6 Paige, 220. 
 
 No part of the expenses of a receiver
 
 590 
 
 RECEIVERSHIPS. 
 
 rendered not anticipated, but which are for the benefit of the 
 estate.' 
 
 (i) Where the statute has fixed the com])ensation for the re- 
 ceiver tliere is no discretion as to the amount.'' 
 
 appointed for the benefit of an insolv- 
 ent railroad company and its creditors 
 is chargeable against the property of 
 another railroad cf<mpany leased by 
 the insolvent company. Brown v. 
 Ibledo, P. tt- W. R. Co. 35 Fed. Rep. 
 444. 
 
 A savings bank receiver was allowed 
 IG.OOO a year for his services,— Held 
 that he could not charge the fund with 
 the expense of unnecessary clerks, a 
 dally newspaper, nor counsel fees paid 
 in resisting applications that he should 
 not have opposed; that his individual 
 indebtedness to the bank should be 
 offset against the amount due him, as 
 well as money lost through his failure 
 seasonably to remit revenue stamps 
 for redemption, and money lost by 
 having been improvidently lent by him 
 on inadequate security; but that he 
 should be allowed for money lost 
 through misappropriation by the attor- 
 ney who had been employed by him 
 to make collections, the attorney be- 
 ing in good standing when emploj'ed. 
 Reunion Bank, 87 N. J. Eq. 420. 
 
 'A receiver appointed to take charge 
 of a large hotel property, pending a 
 suit for rescission of a contract for its 
 sale, — Held, entitled to credit in his ac- 
 count for money paid by him for in- 
 surance on the sam^, although without 
 special order from the court, if the 
 court can see that the receiver acted 
 in good faith and under such circum- 
 stances as would have authorized an 
 order had such authority been asked. 
 Brown v. Hazlelmrst, 54 Md. 26. 
 
 A receiver who performs duties ad- 
 ditional to those ordinarily required 
 may be entitled to extra allowance. 
 
 Thompson v. Willamette S. M. L. & 
 Mfg. Co. 15 Or. 604. 
 
 Unlesshe voluntarily performs siioh 
 duties, or was not required to perform 
 the same. Tliomfpmn v. Willamette 8. 
 M. L. & Mfg. Co. supra. 
 
 A receiver will not be allowed addi- 
 tional compensation for himself and 
 counsel where the compensation al- 
 ready made is sufficient, taking into 
 consideration the services rendered 
 and the circumstances of the case, but 
 refusal will be made subject to the 
 right to apply for services rendered 
 and expenses incurred after the date 
 of the decree. Montgomery v. Peters- 
 burg Sav. & I. Co. 70 Fed. Rep. 746, 30 
 U. S. App. 511. 
 
 A receiver of an estate appointed 
 by an order fixing his compensation 
 at $100 per month is not entitled to 
 additional compensation, where the 
 gross amount of assets realized by him 
 is only $10,000, and he is allowed r^. 
 liberal amount for counsel fees. Henry 
 v. Henry, 103 Ala. 582. 
 
 2 Re Woven Tape Skirt Co. 85 N. Y. 
 506. 
 
 Chapter 378, § 2, Laws of 1883, has 
 no application to receivers appointed 
 and who have entered upon the dis- 
 charge of their duties before the pas- 
 sage of the act. The law is prospective 
 only. People, Neiocomb, v. McCall, 94 
 N. Y. 587. 
 
 N. Y. Laws 1883, chap. 378. in ref- 
 erence to receivers' fees, applies only 
 to receivers of corporations appointed 
 in proceedings in bankruptcy, not to 
 a receiver in foreclosure proceedings, 
 the fees of whom are regulated by N. 
 Y. Code, § 3320. United States Trust
 
 RECEIVERS' COMPENSATION. 
 
 591 
 
 (j) The order fixins; compensation cannot be revoked, after the 
 terra of court has expired, for mere error.' 
 
 Co. V. New York, W. 8. & B. R. Co. 
 101 N. Y. 478. Cf. Atty. Gen. v. 
 Ouardian L. Ins. Co. 93 N. Y. 631; 
 Atty. Gen. v. Noi'fh American L. Ins. 
 Co. 89 N. Y. 94, 29 Hun, 207. 
 
 The act of 1821, South Carolina, 
 regulating the fees of receivers, ap- 
 plies to all receivers, vfhether officers 
 of court or otherwise. Massey v. 
 Massey, 1 Cheves, Eq. 159. 
 
 By the fair construction of 2 N. Y* 
 Rev. Stat. 93, § 58, allowing commis- 
 sions to executors, etc., for "receiving 
 and paying out" moneys, a receiver 
 is entitled to one half of the specified 
 rates for receiving, and one half for 
 paying out. 
 
 He is also entitled to be repaid 
 actual disbursements, prudently made 
 or incurred, in the case of the trust 
 property. Howes v. Davis, 4 Abb. 
 Pr. 71. 
 
 As to compensation in New York, 
 see Laws of 1883, chap. 378, § 2, Code 
 Civ. Proc. § 3320. 
 
 ' A motion to set aside for mere 
 error a final decree fixing and allow- 
 ing the compensation of a receiver of 
 an insolvent corporation, and counsel 
 fees and other charges and expenses 
 of administration, cannot be made 
 
 after the term of court at which the 
 decree was rendered, although no no- 
 tice was given to certain parties inter- 
 ested, as every party to such proceed- 
 ing is chargeable with notice of such 
 action of the court. Clements v. Em- 
 pire Lumber Co. 96 Ga. 319. 
 
 A receiver of a corporation is enti- 
 tled to compensaiion out of the funds 
 which come into his hands as receiver, 
 although his appointment is revoked 
 on appeal, both in the absence of a 
 statute on the subject and under 
 Sayles' Tex. Civ. Stat. Supp. art. 
 1466, providing that all moneys that 
 come into the hands of a receiver as 
 such shall be first applied to the "pay- 
 ment of all court costs of the suit." 
 Espuella Laud & C. Co. v. Bi?idle(Tex. 
 Civ. App.) 32 S. W. 582. 
 
 A master in chancery, acting as re- 
 ceiver, acts in a distinct character, and 
 is entitled to compensation as re- 
 ceiver. Arthur v. Master in Equity, 1 
 Harp. Eq. 47. 
 
 Compensation of receivers of an in- 
 solvent railroad corporation, — deter- 
 mined, with reference to the circum- 
 stances of the particular case. Ma- 
 Arthur V. Montclair B. Co. 27 N. J. 
 Eq. 77.
 
 CHAPTER XXL 
 
 REPORTS, ACCOUNTS AND DISTRIBUTION. 
 
 § 355. General — Reports and accounts. 
 § 356. Rules applicable to. 
 
 (a) Must be to court appointing. 
 
 (b) Reference to master. 
 
 (c) Objections to master's find- 
 
 ings. 
 
 (d) Objections to master's find- 
 
 ings and exceptions. 
 
 (e) Appeal not allowed as a rule. 
 
 (f) Effect of approval. 
 § 357. Order of distribution. 
 
 § 358. What embraced in order of 
 distribution. 
 
 (a) Attorney's fees. 
 
 (b) Notes secured by invalid 
 
 mortgage. 
 
 (c) Debts due contractors. 
 
 (d) Rents and profits. 
 
 (e) Expenses and advancements. 
 
 (f) Money paid by sureties. 
 
 (g) When on judgments. 
 
 (h) Where collaterals are held. 
 
 §355. General — Reports and acconnts. 
 
 It is tlie duty of the receiver to raport to the conrt from time 
 to time the condition of his accounts, so that at all times all par- 
 ties in interest may have official information as to tlie true con- 
 dition of affairs, and this should be done without an order of 
 court requiring him to do so. Being an officer of court, a great 
 degree of strictness is required of him, and the funds in his 
 possession being trust funds, the utmost .care must be exercised 
 in reference to their disposition and his accountability therefor. 
 A proper accounting from time to time, as well as his final report, 
 renders it incumbent on the receiver to carefully inventory the 
 estate, property, goods, and effects of every nature that come to 
 his hands. Nothing but the most general rules in regard to the 
 receiver's reports and accounts can be laid down, owing to the 
 infinite variety of receivership property coming into his hands, 
 and the varied duties pertaining thereto under the direction of 
 the court. Besides, the practice is by no means uniform in the 
 different courts. 
 
 The disbursements made by a receiver, for which the court 
 ■will allow him in his accounts, have been fully considered in 
 chapters relating to powers and liabilities of receivers and no 
 good purpose can be served by a recapitulation in this connection.' 
 
 • See chapters III. and VIII.; also claims against receivership funds, ante. 
 
 592
 
 EEPORTS, ACCOUNTS AND DISTRIBUTION. 
 
 593 
 
 § 356. Rules applicable to. 
 
 (a) The receiver is responsible only to the court appointing 
 him, and cannot be required to turn over the i"eceivership prop- 
 erty or funds upon the order of another court. He must make 
 his reports to, and his accounts are to be adjusted only by, the 
 court of his appointment.' 
 
 (b) The usual and appropriate practice is to refer the receiver's 
 accounts to a master to be passed upon, and when passed by the 
 master are confirmed by the court on the presentation of the 
 master's report, unless objections and exceptions are filed by 
 the parties havino; a right to be heard in opposition thereto. The 
 court may consider the rules and principles adopted by the 
 master in passing the accounts, and if erroneous may refer the 
 matter back to the master for a restatement of the account in 
 accordance with its directions, but camiot be expected to review 
 the account item b}' item.° 
 
 (c) It is necessary, if exception is taken to the action of the 
 master concerning the account, to point out specifically the items 
 to which error is assigned, and the objections should be sufficiently 
 specific so that the court may readily see the force of the objec- 
 tion.' 
 
 '• Mabry v. Harrison, 44 Tex. 286; 
 Mufgrove v. Nash, 3 Edw. Ch. 172; 
 Conkling v. Butler, 4 Biss. 22. 
 
 * A receiver as well as the master is 
 an officer of the court, and slates his 
 own accounts and submits them to 
 the master for inspection, under the 
 order of the court, the master acting 
 in the place of the court in a judicial 
 rather than in a ministerial capacity. 
 Exceptions to the master's report do 
 not lie in such cases, though if any- 
 erroneous principle be adopted in 
 allowing a receiver's account, the 
 court, on petition, will refer the mat- 
 ter back for correction. It is the 
 duty of the court to review the prin- 
 ciples and rules adopted by the master 
 in allowing the accounts, rather than 
 to examine the items in detail, or the 
 evidence on which they were founded. 
 
 38 
 
 Cowdrey v. Galveston,, H. & H. R. Co. 
 1 Woods, 331. Am. T. & S. Bk. v. 
 Frankeiitlml, 55 III. App. 400. 
 
 Cf. Browerv. Brower, 2 edw. Ch.62I. 
 Objection to the master's report must 
 be by a party to the suit. People v. 
 Volumhia Car !>pring Co. 12 Hun, 585; 
 Schenck v. Ingraham, 5 Hun, 307. In 
 New York the account may be sent to 
 a referee for passing. People v. Knick- 
 erbocker L. Ins. Co. 31 Hun, G22. 
 
 =* Heise v. Starr, 44 111. App. 406. 
 The objection must be made at the 
 time of the allowance or within such 
 time as the court may allow for such 
 purpose. Terry V. Dubois, 32 Week. 
 Kep. 415. Cf. Farmers' Loan & T. 
 Co. V. Central R. Co. 1 McCrary, 332. 
 
 Where a receiver files exceptions 
 of fact to the auditor's report on his 
 account, he is entitled to a jury to
 
 594: RECEIVERSHIPS. 
 
 (d) Fairness to the master and to the receiver requires that 
 objections be tiled before the master in order that he may liave 
 an opportunity for correction and that additional evidence may 
 be furnished by the receiver if necessary.' The liearing before 
 the court is upon exce})tions filed. 
 
 (e) As a rule, an appeal by the receiver will not lie from an 
 order approving a receiver's account and directing him to turn 
 over the receivership funds, except for error as to the amount to 
 be turned over.' 
 
 (f) If the receiver's accounts have been approved and he has 
 been discharged by the court no further incpiiry will be permitted 
 as to his management.' 
 
 § 357. Order of distribution. 
 
 The distribution of the receiversliip funds, ^?cw<f^;i^<? lite or 
 final, presupposes an order of court authorizing it, and also the 
 amount and pro rata share to each party entitled thereto if the 
 indebtedness is not paid in full. The order of course is based 
 upon accuj-ate information of the net amount to be distributed 
 and the amount of indebtedness upon which the distrilnition is to 
 be applied. The order of distribution, whether interlocutory or 
 final, is subject to modification and correction by the court,* and 
 unless for good reason to the contrary, should be to all the credi- 
 tors alike.* 
 
 pass upon them. Akers v. Veal, 66 the merits. By on v. Thomas, 104 
 
 Ga. 303. Ind. 59. 
 
 ' Coicdrey v. Galveston, II. <fi H. li. Where the settlement has been 
 
 Co. 1 Woods, 331. made and order entered requiring the 
 
 ' Hinckley v. Gilman, C. & S. R. receiver to pay out more money than 
 
 Co. 94 U. S. 467, 24 L. ed. 166; IIo^o he has in his hands the order may be 
 
 v. Jones, 60 Iowa, 70. Of course the modified and the mistalvc corrected, 
 
 decree to be appealable must be final. Byon v. Thomas, supra. 
 
 Bochat V. Qee, 91 Cal. 355; Illinois ^ In the absence of good reason to 
 
 Trust & Sat. Bank v. Pacific R. Co, the contrary, proportionate payment 
 
 99 Cal. 407. should be made to all creditors en- 
 
 2 Lehman v. McQiiown, 31 Fed. titled to share in a fund in the hands 
 
 Rep. 138. of a receiver. Qirard L. Ins. A. & 
 
 * An interlocutory order directing a 2'. Co. v. Cooper, 51 Fed. Rep. 332, 
 
 receiver to pay out more money than 4 U. S. A pp. 631. 
 
 is in his hand will be modified, and A receiver appointed in a suit to 
 
 the application for its modification foreclose a mortgage made by a cor- 
 
 may be heard in a summary way on poralion, under allegations of the
 
 REPORTS, ACCOUNTS AND DISTRIBUTION. 
 
 595 
 
 The order to a receiver to pay over funds in his liands is based 
 upon notice to the receiver and served upon him, or in his 
 absence upon his attorney,' and may be granted on affidavits.' 
 The order for distribution is usually made upon final hearing,' 
 though if substantial distribution can be made it should not be 
 delayed because of a pending controversy over a small amount,* 
 and when made is final and conclusive as to all claims filed and duly 
 passed upon,^ but in all cases before an order for distribution is 
 made the funds must be in court/ 
 
 § 358. What embraced in order of distribution. 
 
 (a) Attorney's fees. 
 In the order of distribution in addition to the ordinary credit- 
 
 latter's insolvency, discontinuance of 
 business, and necessity of the ap- 
 pointment to secure the application of 
 the rents and profits, should not, upon 
 the mortgage being held an illegal 
 preference, be directed to pay in full 
 the judgments of the intervening 
 creditors who attacked the mortgage, 
 but the fund should be distributed 
 among all the corporate creditors. 
 Thompson v. Huron Lumber Co. 4 
 Wash. 600. 
 
 A receiver of a bank which had 
 collected notes and drafts of anotlier 
 bank may be compelled to pay the 
 same in full with interest and not 
 pro rata. Tlwmpaon v. Gloucester 
 City Sav. Inst. (N. J.) 8 Atl. 97. 
 
 ' Notice of an order to a receiver to 
 pay over funds served in his absence 
 on his attorney, — Held, sufHcicnt. 
 Jennings v. Sinipwn, 12 Neb. 55b. 
 
 * Ex parte affidavits, whether pre- 
 viously filed in the case or not, may 
 be considered on a motion to dispose 
 of property remaining in the hands of 
 a receiver after the dismi.ssal of the 
 bill. Warren v. Bunch, 80 Ga. 124. 
 
 * A receiver appointed pendente lite 
 cannot be directed to pay claims out 
 of the moneys coming into his liands, 
 before the final hearing, except by 
 
 consent of all parties. Forsaith Mach. 
 Co. v. Hope Mills Lumber Co. 109 N.C. 
 576. 
 
 * Where substantial distribution of 
 a fund in a receiver's hands for the 
 settlement of a partnership can be 
 made, such distribution should not 
 be delayed because of a pending con- 
 troversy concerning an outstanding 
 claim for a small amount. Trayhcrn 
 V. Mechnnics' JSfat. Bank, 57 Md. 590. 
 
 * The functions of a receiver in 
 proceedings to enforce statutory liens, 
 to preserve the property and security 
 p)endente lite, end with a sale of the 
 property under order of the court, 
 and payment of the full claims of the 
 creditors, reported to the date of sale 
 and duly passed upon; and it is error 
 at the next term of court, to which 
 by stipulation his reports were con- 
 tinued for consideration, to decree 
 that moneys expended by him after 
 the sale shall be a lien on the prop- 
 erty, antedating the decree under 
 which it was sold. Bassick Min. Co. 
 v. Schoolfield, 15 Colo. 376. 
 
 * Receivers will not be instructed 
 as to the distribution of funds until 
 they have them in court. Strauss v, 
 Carolina Interstate Bldg. & L. Asso. 
 117 N. C. 308, 30 L. R. A. 693.
 
 596 
 
 RECEIVERSHIPS. 
 
 ors, the receiver may be directed to pay attorney's fees when he 
 is employed by direction of the coui't, or the necessity of his 
 employment established prior to the granting of the order.' 
 "Where the court passes upon the question of the amount to be 
 paid as attorney's fees, and the attorney is lieard upon the matter, 
 tlie order is conclusive and binding upon him and is a bar to a 
 subsequent action by him therefor.'' But it seems tliat before 
 fees can be alloAved to counsel there must be a contract for his 
 services, express or implied ; a mere volunteer in receivership 
 matters is not sufficient.* It has also been held that services ren- 
 dered for a corporation before the appointment of a receiver are 
 not entitled to priority over the mortgage bondholders, though 
 their services were valuable to that company and established the 
 validity of its bonds." But where the attorney is employed at a 
 
 •A receiver employing counsel to 
 advise hira, without express authority 
 from the court, will not be allowed 
 counsel fees on settlement unless he 
 establishes the necessity therefor. 
 Terry v. Martin (N. M.) 33 Pac. 157. 
 
 The court should not direct a re- 
 ceiver to pay his attorney more than 
 the attorney himself asks for in his 
 petition, even though there be evi 
 dence justifying a larger charge. 
 Richter v. Schroeder, 110 111. 112. 
 
 ^ The decision of a court on settle- 
 ment of a receiver's accounts as to 
 compensation to be paid to an attor- 
 ney employed by him without special 
 agreement as to the amount to be paid 
 him, where the attorney was notified 
 and appeared, and was heard in re- 
 spect to the claim, is conclusive against 
 the attorney and a bar to a subsequent 
 action by him against the receiver per- 
 sonally. Walsh V. Baymond, 58 Conn. 
 251. 
 
 An order directing the payment by 
 a receiver, out of a fund in his hands, 
 of the solicitor's fees of a parly to liti- 
 gation concerning it, before the right 
 of that party to any portion of the 
 fund has been established, is errone- 
 
 ous. Doane v. Corbin, 44 111. App. 468; 
 Coates V. Cunningham, 80 111. 467. 
 
 * An allowance out of funds in the 
 hands of a receiver will not be made 
 to one rendering services availed of 
 by counsel for the receivers and use- 
 ful to the latter in litigation, when 
 such services were not rendered in 
 pursuance of any contract, express or 
 implied, and the receivers made a con- 
 tract with him when his services were 
 needed by them in other matters. Be 
 Whittemore, 157 Mass. 46. It was also 
 held in this case that counsel was not 
 entitled to compensation by reason of 
 laches. 
 
 '' Attorneys who act for a railroad 
 corporation two years before the ap- 
 pointment of a receiver in mortgage 
 foreclosure, and by whose services 
 town bonds voted in aid of the com- 
 pany were declared valid and given a 
 value, are not entitled to have the lien 
 of the mortgage displaced in their fa- 
 vor so as to give them priority in the 
 funds in the hands of the receiver, al- 
 though such services secured the 
 means for constructing the road and 
 added to the value of the property 
 covered by the mortgage. Pennsyl-
 
 REPORTS, ACCOUNTS AND DISTRIBUTION. 
 
 597 
 
 fixed salary, he is entitled to a preference as an employee, but 
 not if the services were before the construction of the road.' 
 Funds wron<rfully paid to receiver's attorneys will be required to 
 be paid back hy the latter/ 
 
 (b) JSTOTES SECURED BY INVALID MORTGAGE. 
 
 Kotes secured by a mortgage, where the mortgage is subse- 
 quently declared invalid, will not be ordered to be given up and 
 sold by the receiver where the purpose is to place them, subject 
 to process of a state court, in favor of certain creditors.^ 
 
 vania Finance Co. v. OJiarleston, C. & 
 C. R. Go. 52 Fed. Rep. 678. 
 
 ' An attorney employed by a rail- 
 road company at a fixed salary is an em- 
 ployee entitled to share in the income 
 realized by a receiver appointed in a 
 mortgage foreclosure under an order 
 providing for the payment of all em- 
 ployees; but where the services ren- 
 dered by him were before the con- 
 struction of the road he is not entitled 
 to share in the proceeds of sale al- 
 though the income fails. Pennsylva- 
 nia Finance Co. v. Charleston, C. & C. 
 B. Co. 52 Fed. Rep. 526. 
 
 A receiver will not be compelled to 
 pay counsel of a creditor of the cor- 
 poration whose property is in his 
 hands, for services in procuring an or- 
 der for payment by the receiver of 
 the sum due under a contract with the 
 corporation, although such creditor is 
 preferred in having a right to posses- 
 sion of property in the hands of the 
 receiver unless such sum is paid, and 
 the claim of such creditor is undis- 
 puted, since there is no duty on the 
 part of the receivers to proceed afflrm- 
 atively and procure the allowance of 
 claims against them. Central 2'rust 
 Co. v. Valley R. Co. 55 Fed. Rep. 903. 
 The cases of Philadeiphia Invest. Co. v. 
 Ohio (& N. W. R. Co. 46 Fed. Rep. 
 696, and Easton v. Houston & T. C. R. 
 Co. 40 Fed. R.*p. 189, distinguished. 
 
 "^ A court receiver who, while a fund 
 erroneously ordered to be paid over to 
 him for distribution is in his posses- 
 sion, pays out a portion of it in good 
 faith under the court's direction, will 
 be protected to that extent; but attor- 
 neys to whom any portion of the 
 money has been paid as fees will be 
 required to pay it back to him, and 
 upon receipt thereof he will be di- 
 rected to pay it to the party entitled 
 thereto. Re Home Provident Safety 
 Fund Asso. 129 N. Y. 288. 
 
 ^ Notes and a mortgage owned by a 
 railroad company of which a receiver 
 has been appointed with the consent 
 of all parties in interest after the mort- 
 gage, is held invalid, and of whose 
 property inventoried by the receiver, 
 including such notes and mortgage, a 
 sale has been decreed upon the same 
 consent, will not, although illegally 
 taken possession of by the receiver, 
 be ordered to be given up and not sold 
 by him, on the application of the cred- 
 itors who joined in such consent, in 
 order to enable the latter to subject 
 them to process upon judgments ob- 
 tained in a state court. Farmers' Loan 
 & T. Co. v. San Diego Street Car Co. 
 49 Fed. Rep. 188; Qumhel v. Pitkin, 
 124 U. S. 131, 31 L. ed. 374. Cf. Lowe 
 V. Stephens, 66 Ga. 007, as to effect of 
 filing a general creditor's bill upon a 
 pending attachment.
 
 5y6 
 
 RECEIVKltSHil^d. 
 
 (c) Dkbts due contractors. 
 Contractors upon a contract partially completed at the time of 
 grantiiiii' a receiversliip are entitled to be paid the contract price 
 nj) to the time they are directed by the receiver to cease work- 
 inu-.' 
 
 (d) Rents and profits. 
 
 Rents collected by a receiver npon mortgaged property pend- 
 ing a suit in which the first mortgagee is a ]xirty and who subse- 
 qnently brings a suit to foreclose, are properly payable to the first 
 mortgagee if there is a deficiency as to the first mortgage.'' 
 Where rent notes are given to a receiver for premises, pending an 
 action in relation to the title, and the maker is subsequently de- 
 creed to be the owner, they should be canceled.' 
 
 (e) Expenses and advancements. 
 
 Where plaintiff pending suit advances money to pay taxes in 
 an action to remove a cloud from the title, he is entitled to be 
 
 1 Contractors to erect a building for 
 a railroad company which goes into 
 the hands of receivers are entitled to 
 the contract price up to the time they 
 are directed by the receivers to cease 
 work. Oirard L. Ins. A. & T. Co. v. 
 Cooper, 51 Fed. Rep. 333, 4U. S. App. 
 631. 
 
 ' Cincinnati Nat. Bank v. Tilden, 50 
 N. Y. S. R. 366. 
 
 A receiver was in possession of a 
 wharf and of the adjacent land, hav- 
 ing taken possession thereof from the 
 defendant, and received money from 
 the use of the entire premises, the 
 adjacent land only was adjudged to 
 belong to plaintiff, — Held that, upon 
 discharge of the receiver, it was error 
 to direct that the whole of the money 
 be paid to plaintiff. Coburn v. Ames, 
 57 Cal. 201. 
 
 * Where a receiver was appointed 
 in an action to determine rights to 
 land, on the ground that the contract 
 therefor had been rescinded, rent 
 
 notes given by the plaintiff to the re- 
 ceiver for rents pending the action 
 should be canceled and possession re- 
 stored to him if he is adjudged to be 
 the owner. The defendant can have 
 no claim to the rents in such a case. 
 Morgan v. Oliver, 11 Ky. L. Rep. 513. 
 
 A court of chancery will not order 
 a receiver of the rents and profits of 
 real estate to pay over or account for 
 them to a party whose claim is not a 
 charge upon the land. Baltimore v. 
 Chase, 2 Gill & J. 376. 
 
 In Pacific R. Co. v. Wade, 91 Cal. 
 449, 13 L. R. A. 754, it was held that 
 the amount to be paid for the joint 
 use of a street railway track in the 
 hands of a receiver may be deter- 
 mined by the court on a petition, 
 where the statutes give the right to 
 such use on payment of one half the 
 cost of construction; and there is no 
 right to a jury on the ground that it 
 involves the exercise of the right of 
 eminent domain.
 
 REPORTS, ACCOUNTS AND DISTRIBUTION. 
 
 599 
 
 reimbursed upon a dismissal of his bill.' As elsewhere seen a re- 
 ceiver bj direction of the court may incur such expenses as are 
 required for the preservation of the receivership proper ty." 
 
 (f) Money paid by sdreties. 
 Sureties havins^ paid money for the use of a corporation, grow- 
 ing out of appeal bonds given in condemnation proceedings are 
 entitled to be paid from the proceeds of sale in a foreclosure pro- 
 ceedinir.' 
 
 •Where plainlifiF, on a bill to re- 
 move a cloud from a title, paid the 
 taxes pending the suit, where the re- 
 ceiver should have paid the taxes from 
 rents collected, upon his bill bting 
 dismissed is entitled to reimburse- 
 ment from the funds in the receiver's 
 hands. Wicks v. Sears, 4 Lea, 298. 
 
 A court of chancery may incur such 
 expenses as are necessary for the pre- 
 servation of a railroad in its custody, 
 after the company owning the road 
 has forfeited its charter, when its in- 
 come is sufficient bj' creating liens 
 through the issue of receivers' certif- 
 icates, which displace pre existing 
 liens. State v. East Line & R. li. R. 
 Co. (Tex.) 48 Am. & Eng. R. Cas. 656; 
 Union T. Co. v. Illinois Midland R. 
 Co. 117 U. S. 455, 29 L. ed. 970. 
 
 A receiver of a street i ail way com- 
 pany appointed in a suit to foreclose 
 a mortgage will not be directed to 
 pay out moneys in his hands for pav- 
 ing the street between and along the 
 tracks, where no lien exists therefor, 
 although there be a specific contract 
 by the company to make such pay- 
 ment. Union Loan & T. Co. v. Sonth- 
 ern Calif ornia Motor Road Co. 49 Fed. 
 Rep. 267. 
 
 On petition that the receivers of 
 mortgaged railroad property be or- 
 dered to pay the expense of certain 
 negotiations for a purchase, it appear- 
 ing that there was no surplus money 
 In the receiver's hands, and that it 
 
 was not absolutely certain that the 
 negotiations would be successful, — 
 Held that the petition should be re- 
 fused. Central Truxt Co. v. Wabash, 
 St. L. & P. R. Co. 25 Fed. Rep. 69. 
 
 " At the final settlement of the ac- 
 counts of the receivers of an insol- 
 vent corporation, the court refused to 
 inquire into and reduce the master's 
 taxed bill of fees for services in the 
 case, which had been paid by the re- 
 ceivers, and for which they had a 
 receipt. Re Bank of Niagara, 6 Paige, 
 213. 
 
 A receiver of a railroad company 
 will not be authorized to pay expenses 
 incurred by a committee appointed to 
 reorganize a road, under an order au- 
 thorizing the pledge of securities by 
 the company for money to be bor- 
 rowed to relieve it from its financial 
 embarrassment at a time when no 
 creditors had sought to foreclose any 
 liens, leaving such expenses to be 
 subsequently passed upon by the 
 court, where, since such order, a bill 
 to foreclose a mortgage has been filed, 
 and the receivership extended thereto 
 and modified so as to enable the mort- 
 gagee to reach equitable assets through 
 the receivership, and other creditors 
 have intervened and filed collateral 
 proceedings upon liens, and such par- 
 ties are not before the court upon tlie 
 application. Clarke v. Central R. & 
 Blqi. Co. 54 Fed. Rep. 556. 
 
 * Sureties on appeal bonds given on
 
 600 
 
 KECEIVERSIIIPS. 
 
 (g) When on judgments. 
 
 A receiver will not be required to pay a judgment claimed to 
 be a prior lien until there lias been a full bearing of all parties 
 as to priority.' 
 
 (h) Where collaterals are held. 
 
 Where collaterals are held by a national bank dividends are to 
 be paid to the holder of such collaterals, after deducting the 
 amounts collected on the collaterals, after the maturity of the loan 
 and before the proof of the claim, but without deducting collec- 
 tions made after proof of claim.* 
 
 appeal from judgments rendered in 
 condemnation proceedings, wlio were 
 forced to pay for the riglit of way 
 over the appellee's lands because the 
 railroad was in a receiver's hands 
 when the bonds were enforced against 
 them, are entitled to be repaid out of 
 the proceeds of a mortgage foreclosure 
 sale of the road. Rome & D. R. Co. 
 V. Sibert, 97 Ala. 393. 
 
 ' Where funds are in the hands of 
 a receiver, a creditor in a judgment 
 at common law cannot obtain a rule 
 against the receiver for the payment 
 of the judgment in full, without a 
 full hearing of all parties as to the 
 priority of all claims. Lowe v. Step- 
 hens, 66 Ga. 607. 
 
 A receiver will not be required to 
 
 pay the full amount of the claim of 
 an attaching creditor until the latter 
 shows that he has by his attachment 
 acquired a lien upon sufficient goods 
 to pay the whole amount of his claim. 
 Qlines v. Supreme Sitting, 0. of I. H. 
 50 N. Y. S. R 743. 
 
 A receiver of a partnership will 
 not be directed to pay out of the as- 
 sets a judgment recovered upon a 
 partnership indebtedness after he took 
 possession, where the estate is insol- 
 vent or there is nothing in the nature 
 of the claim of the creditor which 
 should entitle him to priority over 
 other creditors. Hoerle v. Mcllliargy, 
 29 Jones & S. 184. 
 
 5 Chemical Nat. Bank v. Armstrong, 
 50 Fed. Rep. 798.
 
 CHAPTEE XXII. 
 
 PRACTICE AND PLEADING. 
 
 § 370. General. § 396. 
 
 § 371. Suit pending. 
 
 § 372. Prayer for receiver. § 397. 
 
 §373. Necessary parties; allegations. 
 
 § 374. Notice of application. § 398. 
 
 § 375. At wLat stage of suit applica- 
 tion made. § 399. 
 
 § 376. When application granted be- § 400. 
 fore answer. 
 
 § 377. Bond of receiver required. § 401. 
 
 § 378. Effect of giving bond. § 402. 
 
 ^ 379. Form of bond. § 403. 
 
 § 380. How liability enforced. § 404. 
 
 g 3-Jl. The order appointing. § 405. 
 
 g 382. Scope of order. § 406. 
 
 § 383. Findings embodied in order. § 407. 
 
 I 384. Affldavits, when basis of § 408. 
 
 order. i^ 409. 
 
 § 385. Reference to master or referee. § 410. 
 
 § 386. Examination of debtor under 
 
 code proceedings. § 411. 
 
 § 387. Statutory proceedings. § 412. 
 
 § 388. National banks. 
 
 § 389. Mortgage foreclosures. § 413. 
 
 § 390. Suits by receiver. 
 
 §391. In what name to sue. §414. 
 
 § 392. Necessary allegations. § 415. 
 
 § 393. Form of allegations. 
 
 § 394. Limitations on power to sue. § 416. 
 
 § 395. Suits against receiver ; leave § 417. 
 
 to sue. §418. 
 
 Actions against receiver under 
 void appointment. 
 
 Form of judgment against re- 
 ceiver. 
 
 Proceedings in original cause 
 when. 
 
 Right of set-off. 
 
 Petition of receiver for au- 
 thority. 
 
 Application for directions. 
 
 Receiver as manager. 
 
 Interpleader by receiver. 
 
 Possession as to third parties. 
 
 Acts outside of receiver's duty. 
 
 When receiver refuses to act. 
 
 Leave to compromise. 
 
 Power to enforce assessments. 
 
 Leave to sell. 
 
 Leave to contract debts and 
 liens. 
 
 Leave to issue certificates. 
 
 Trust property held by re- 
 ceiver. 
 
 Effect of receiver's discharge 
 pending action. 
 
 Order of discharge. 
 
 Conflicting claims; how deter- 
 mined. 
 
 Receiver's accounts. 
 
 Appeal by receiver. 
 
 Deed by receiver. 
 
 § 370. General. 
 
 Owing to the dissimilar systems of practice existing under the 
 prevaiUng methods of administering equity jurisprudence in the 
 several states of the United States, tlie limits of this work 
 preclude any attempt to enter into the details of sucii practice 
 even as to the single subject of receiverships. The modification 
 of the equity practice by statute in most of the states, as well as 
 in England, has rendered much of the earlier practice in both 
 
 601
 
 602 RECEIVERSHIPS. 
 
 countries inapplicable to the present order of tliin^-s, and has been 
 prolific in pi-oducing the lack of harmony in the procedure as ad- 
 ministered in the various jurisdictions of this country. Experi- 
 ence teaches that it is beyond the power of man to construct a 
 code of procedure, even upon a single branch of the subject suffi- 
 ciently broad and comprehensive to embrace all the phases of the 
 subject as they present themselves in courts of justice. This lim- 
 itation results in repeated amendments as exigencies arise, chang- 
 ing the mode of procedure to the supposed recpiirements. These 
 moditications result in revisions from time to time, and thus we 
 have a practice constantly changing, which is rendered still more 
 unstable and uncertain by the judicial construction and judicial 
 attempts to arrive at the legislative meaning as embodied in the 
 various statutes, amendments, and modifications. The decisions, 
 even of the same court, are often whody irreconcilable with each 
 other, owing to the fact that they are under statutes dissimilar in 
 their nature and application. There are to be found many cases 
 upon a given topic that apparently are general in their nature and 
 yet upon a careful examination are local, being based upon a stat- 
 ute. This is said not by way of criticism but as a prelude to the 
 subject under consideration, much of which is subject to stat- 
 utory^ influence. 
 
 There are, however, a few principles which lie at the founda- 
 tion of the practice in so far as receivership matters are con- 
 cerned, that are so general in their nature that they may properly 
 be considered in this connection, and it is hoped ma}" be of some 
 service to the practitioner, subject, nevertheless, to the caution 
 embraced in the preceding section. They follow. 
 
 § 371. Suit peiidiuff. 
 
 Except in one or two unimportant cases it is preliminary and a 
 prerequisite to the appointment of a receiver in any of the sev- 
 eral proceedings in which such action is asked that there shall be, 
 at the time, a suit or proceeding pending in which the court is 
 asked to make the appointment.' 
 
 ' Baker v. Backus, 32 111. 79; Jones Pa. 310; French v. Gifford, 30 Iowa, 
 
 V. Schall, 45 Mich. 379; Merchants' d 148; Harwell v. Potts, 80 Ala. 70 
 
 M. Nat. Bank v. Kent Circuit Judge, Hardy v. McClellan,, 53 Miss. 507 
 
 ^6 'bUch. 2,^2; Oravenstine'a Appeal, 4:^ Pressley v. Harrison, 102 Ind. 14
 
 PRACTICE AND PLEADING. 
 
 603 
 
 § 372. Prayer for receiver. 
 
 The bill or petition must eoiitain a prayer for the appointment 
 of a receiver, or at least such a state of facts alleged and shown 
 on the hearing as will justify the court in making the appoint- 
 ment on proper application as part of the general relief asked.' 
 
 § 373. Necessary parties ; allegations. 
 
 The person or corporation in custody of the property over 
 which the receivership is asked to be extended, or to whom the 
 property belongs, is a necessary party to the suit or proceeding. 
 The allegations are to be set forth in the bill or complaint in clear 
 and unequivocal language, and the necessary allegations vary 
 with each particular kind of proceeding under which the remedy 
 is sought.'^ 
 
 § 374. Notice of application. 
 
 Except in cases of the gravest emergency, notice must be given 
 to the person or corporation from whom the possession or cus- 
 tody is to be taken by the proposed receivership,^ and if there is 
 such an emergency, or other excuse, for not giving notice, tlie 
 
 Jones V. Bank of Leadville, 10 Colo. 
 464; Guy v. Donk, 47 Kan. 2.36; Gold 
 Hunter Min. & S. Co. v. Ilollemdn, 2 
 Idaho, 839; Davis v. Flagstaff Silver 
 Min. Co. 2 Utah, 91. 
 
 See also § 13, ante. 
 
 ' Laddv. Harvey, 21 N. fl. 514; Au- 
 gusta Ice Mfg. Co. v. Gray, 60 Ga. 344; 
 Connelly v. Dickson, 76 lud. 440; Cly- 
 burn V. Reynolds, 31 S. C. 91; Shan- 
 non V. Banks, 88 Va. 338. 
 
 ^ Dale V. Kent, 58 Ind. 584; Baker 
 V. Backm, 32 III. 79. 
 
 3 Vosltell V. Hynson, 26 Md. 83; Nus- 
 baum V. Stein, 12 Md. 315; Blondheim 
 V. Moore, 11 Md. 365; Howe v. Jones, 
 57 Iowa, 130; Bisson v. Curry, 35 
 Iowa, 72; French v. Gifford, 30 Iowa, 
 148; Moi'itz v. Miller, 87 Ala. 331; 
 Thompson v. Tower Mfg. Co. 87 Ala. 
 733; Crowder v. Moore, 52 Ala. 220; 
 Meridian News & Pub. Co. v. Diem, 
 
 70 Miss. 695; Buckley v. Bnldwin, 69 
 Miss. 804; Whitehead v. Woolen, 43 
 Miss. 523; Buffnerv. Mairs, 33 W. "Va. 
 655; Fricker v. Peters, 21 Fla. 254; 
 Slate V. Jacksonville, P. & M. R. Co. 
 15 Fla. 201 ; People v. Albany & S. R. 
 Co. 55 Barb. 369; Verplanck v. Mer- 
 cantile Lis. Co. 2 Paige, 438; People v. 
 Albany & S. R. Co. 1 Abb. Pr. N. S. 
 265, Athimed in 57 N. Y. 161; Field 
 V. Ripley, 20 How. Pr. 26; Simmons v. 
 Wood, 45 How. Pr. 268; People v. 
 O'Brien, 111 N. Y. 1, 2 L. R. A. 255; 
 Cook V. Detroit & M. R. Co. 45 Mich. 
 453; Cleveland, C. C. d I. R. Co. v. 
 Jewett, 37 Ohio St. 649; Fredenheimv. 
 Rohr, 87 Va. 764 ; Rogers v. Dougherty, 
 20 Ga. 271; Lammon v. Giles, 3 Wash. 
 Terr. 117; Grandin v. La Bar, 2 N. 
 D. 206; Haas v. Chicago Bldg. Soc. 89 
 111. 498. See also § 5 ^f d, ante; and 
 § 13, note 1, ante.
 
 C04 RECEIVERSHIPS. 
 
 facts which constitute sucli eiiiergeDcy or excuse must be alleged 
 and sliowu. Conclusions are not sufficient.' 
 
 § 375. At wlijit stage of suit application made. 
 
 As a general rule the receiver is applied for and the appoint- 
 ment made in an interlocutory proceeding in the case, though 
 sometimes he is appointed on the hearing or even subsequent to 
 the granting of the decree if the circumstances warrant it." 
 
 § 376. When application granted before answer. 
 
 The appointment of a receiver may be made before the de- 
 fendant has filed his formal answer in the case, but it is usually 
 done where the urgency is clear, or where the defendant by 
 counter-affidavits has set up his defense,, upon the questions em- 
 braced in the application. It must be a strong case, and there 
 must be a clear case of fraud or danger.' 
 
 § 377. Bond of receiAer reijuired. 
 
 Except where otherwise directed, before the receiver will 
 be permitted to enter upon the performance of his official duties 
 he will be required, usually by order of court, to give bond con- 
 ditional for the faithful performance of his duties as receiver, 
 with security, to be approved by the court, or the clerk if so 
 directed.'' 
 
 § 378. ElBTect of giving bond. 
 
 The giving of a bond being usually required by the order, and 
 
 'la order to procure the appoint- BoUins, 851^. C. 'i85; Buffne?-v. Mairs, 
 
 ment without notice the facts which 33 W. Va. 65j; Maynard v. Railey, 2 
 
 are relied on as constituting an excuse Nev. 313; Frlcker v. Peters, 21 Fla. 
 
 must be stated. General allegations 254. 
 
 are insufficient. Darcin v. Wells, 61 ' See § 12, Tf b, note 1, ante; also 
 
 How. Pr. 259; Blondhelmv. Moore, 11 § 22, note 2, ante. 
 
 Md. 365; Wabash R. Co. v. Dykeman, The appointment maybe even after 
 
 133 Ind. 56; Chicago & 8. E. R. Co. v. decree in a case of urgeac3\ Haas v. 
 
 Cason, 133 Ind. 49; Lindsay v. Amer- Chicago Bldg. Soc. 89 111. 498; Adkins 
 
 ican Morig. Co. 97 Ala. 411; Morilz v. v. Edwards, 83 Va. 316. See also § 12, 
 
 Miller, 87 Ala. 331 ; Slate, Brittin, v. 1 c, note 2, ante. 
 
 iVew Orfea/i.f. 43 La. Ann. 829: Merid- ^ Johns v. Johns, 23 Ga. 31. See 
 
 tan News & Pub. Co. v. Diem, 70 also § 12, ante. 
 
 Miss. 695; Virginia, T. & C. Steel & I. *See § 23, ante. 
 Co. V. Wilder, 88 Va. 942; Young v.
 
 PRACTICE AND PLEADING. 
 
 605 
 
 the appointment being conditional thereon, it follows that upon 
 compliance with the order in this res])ect the receiver becomes an 
 officer of court, and immediately entitled to the possession of the 
 receivership propert)', and the rights and interests of all parties 
 therein relate back to the date of granting the order.* 
 
 § 379. Form of bond. 
 
 The almost uniform practice in appointing a receiver is to re- 
 quire him to give a bond or undertaking with sufficient securit}', 
 the usual conditions of which, in general terms, are to do and 
 perform all such orders and directions as the court shall from 
 time to time make, and faitlifully discharge and perform all and 
 singular the duties pertaining to his office as receiver. The bond 
 may be renewed, increased, or new bond required as the court 
 may order." 
 
 ' See § 23, note 1, p. 74, ante. 
 
 »In Slate v. Gibson, 21 Ark. 140, 
 the condition of the receiver's bond 
 was if tlie said Edward A. Gibson, as 
 receiver, shall well and faithfully per- 
 form the trust and office of receiver of 
 the stock and business of the partner- 
 ship effects of the said tirm of F. A. 
 Peterson & Co. and shall account to the 
 said Union Circuit Court according 
 to law, then the above obligation to be 
 void, else to remain in full force. 
 Suit being brought upon the bond it 
 was held that a compromise and dis- 
 missal of the bill did not discharge the 
 receiver from accountability to the 
 court, but the receiver was not liable 
 to an action on his bond as receiver 
 until he had failed to obey some order 
 of court in relation to the property. 
 
 In Banks v. Potter, 21 How. Pr. 469, 
 it is held that where a receiver has 
 given ample security on his first, ap- 
 pointment there is no necessity in re- 
 quiring him to give security over 
 again in every proceeding that may be 
 thereafter instituted. He is an officer 
 of court and the administration must 
 
 necessarily take place under the con- 
 trol and direction of the court appoint- 
 ing the receiver. 
 
 In Stewart v. Johnston, 87 Ga. 97, an 
 order of court requiring the receiver 
 to give anew bond in the same amount 
 and conditioned as his existing bond, 
 will not operate after the new bond 
 has been given to discharge the 
 surety from the old bond from lia- 
 bility for future defaults of the re- 
 ceiver, there being nothing in the 
 case to indicate that the new bond 
 was in lieu of the old bond, or was in- 
 tended as a substitute therefor. See 
 also Bank of Washington v. Creditors, 
 86 N. C. 323. 
 
 In Wabash R. Co. v. Steicart, 41 
 111. App. 640, where a right of action 
 existed against the receiver, it was 
 lield that the liability continued again.st 
 the purchaser who took possession of 
 the property under the decree which 
 provided that the purchaser should 
 pay, satisfy, and fully discharge all 
 debts and liabilities of the receivership 
 of every kind.
 
 606 
 
 RECEIVERSHIPS. 
 
 § 380. How liability enforced. 
 
 The usual form of proceodiiii^ in order to enforce the hahility 
 on the bond is to determine in a proceeding in the original action 
 the liability of the receiver upon his bond, and this having been 
 ascertained it is usually followed by an order requiring him to per- 
 form the order within a specified time, and in case of default 
 leave to sue upon the bond be given. Suit on the bond is main- 
 tained by the real party in interest.' 
 
 § 381. The order appointing. 
 
 The order appointing a receiver varies with the character of 
 
 ' In Thomson v. MacOregor, 81 N. 
 Y. 592. it was held that in the absence 
 of express terms in the bond binding 
 the surety to submit to the judgment 
 of the court, a liability cannot be lixed 
 upon the surely for a failure of the 
 receiver to comply with the order of 
 the court directing him to pay over 
 money. 
 
 In Atkinson v. SmitJi, 89 N. C. 73, 
 it was charged that the receiver had 
 committed a breach of trust, and the 
 court held that the party complaining 
 must first obtain a rule requiring him 
 to render an account, and, if default 
 should be found, apply to the court 
 for leave to sue on his bond. The 
 court say it may be that in some cases 
 the surety might, by order of court, 
 and upon reasonable notice, be brought 
 into the action in which the receiver 
 had been appointed and proceeded 
 against therein, but this is not the 
 usual course pursued, if indeed it 
 could be sustained in any case 
 
 In Bank of Washington v. Creditors, 
 86 N. C. 323. it is held that before a 
 receiver and his surety could be sued 
 on the bond, a default thereof must 
 be ascertained, on a rule from the court 
 appointing, against him to render an 
 account. 
 
 In Baker v. Bartol, 7 Cal. 551, the 
 defendant was appointed a receiver 
 on condition that he would file a bond 
 
 to account, which was done, and sub. 
 sequently a judgment was recovered 
 against him and demand made thereon, 
 and suit was brought by the plaintiff 
 on the bond, which was made payable 
 to the people of the state of Califor- 
 nia. It was held that the defendant, 
 having received the benefit of the 
 bond, was estopped from denying its 
 legality, and the plaintiff had a right 
 to sue, though the bond was payable 
 to the people of the state, he being 
 the party in interest. 
 
 In Ludgater v. Channell, 3 Macn. & 
 G. 175, a balance was found to be 
 due from the receiver by the master, 
 after which the receiver died without 
 payment, and a suit was ordered by 
 the court upon the receiver's recog- 
 nizance against his personal represen- 
 tatives and sureties. 
 
 In French v. Bauchy, 57 Hun, 100, 
 the receiver died during his receiver- 
 ship, and an administratrix was ap- 
 pointed and no proceedings were 
 taken to compel an accounting by the 
 receiver or his administratrix, and it 
 was held that an action could not be 
 maintained against the sureties, until 
 an accounting in the court of his ap- 
 pointment was had. 
 
 Cf. State V. Qibson, 21 Ark. 140; 
 Bank of Washington v. Creditors, 86 
 N. C. 323; Atkinson v. Smith, 89 N. 
 C. 73.
 
 PRACTICE AND PLEADING. 607 
 
 the duties imposed upon him in each particular case. Thus he 
 may he receiver of the morti;-ai!;ed property in one case, or the 
 defendant's property generally in another; he may be the mere 
 custodian and responsil)le for the safekeeping merely in one 
 case, or charged with not only the custody, but the use and oper- 
 ation, in another ; he may be responsible for the collection of the 
 income 'simply in one case, or have an entire and complicated 
 railroad system, with its accompanying responsibilities and duties, 
 in another.' 
 
 § 382. Scope of order. 
 
 The order should be specific and definite as to the general pow- 
 ers and duties of the receiver. This is required for the due pro- 
 tection of the receiver, as well as those with whom he has deal- 
 ings and is brought in contact with in business relations. The 
 property over which he is i-eceiver should also be described with 
 sufficient definiteness to be readily recognized. The order may 
 be supplemented, modified, or extended, as the exigencies of the 
 case and the successful termination of the receivership business 
 may require.^ 
 
 § 383. Findings embodied in order. 
 
 The findings ot" the court forming tiie basis of its action should 
 be embodied in the oi'der, or if not specific, reference to the plead- 
 ings, affidavits, or evidence should be embodied in the order, so 
 that the grounds upon which the appointment is made are not 
 left uncertain and indefinite. This is particularly important in 
 cases where an appeal from the order is by practice or statute 
 permissible. 
 
 § 384. Afiidavits^ when luisis of order. 
 
 Afildavits upon which the application is made or resisted 
 slioiild clearly and succinctly stat(! the facts and circumstances 
 relied upon as a basis for the action of the court, and should not 
 
 ' See § 22, ante. See also Re Frank- « Crow v. Wood, 13 Beav. 271 ; 0' Ma- 
 
 tin Bank, 1 Pait^e, 85; Skiddyv. Allan- honey v. Belmord, 62 N. Y. 133; Mar- 
 tic, M. <& 0. E. Co. 3 Hughes, 334. tin v. Burywyn, 88 Ga. 78. 
 In this case are to be found the bill, And see ^ 22, a7ite 
 
 order appointing, petitions, and sup- 
 plementary orders which may be 
 valuable for reference as to forms.
 
 608 RECEIVERSHIPS. 
 
 be couched in larignage too general, or be merely conchisions or 
 deductions; and should not be merely upon information and be- 
 lief, except perhaps where the application or petition is tiled by 
 an oflScer officially charged with such duty.' 
 
 § 385. Kefereuce to a master or referee. 
 
 It was formerly the general practice, and is still advisable in 
 some cases, particularly where fraud forms an element, to refer 
 the matter of appointment to a master or a referee, with instruc- 
 tions to take testimony in relation thereto and report to the court 
 his conclusions and recommendations thereon. In such case the 
 report must be confirmed.^ 
 
 § 386. Examination of debtor under code proceedings. 
 
 In many of the states adopting a code procedure in proceedings 
 supplementary to execution, an examination of the debtor is made 
 in a summary manner before the court in which the judgment is 
 rendered, or a referee and the appointment is made or refused 
 upon the basis of such examination.' Under the New York Code 
 of Procedure it is held that the appointment of a receiver is in- 
 herent in equity, except wherein there is a limitation in the code.* 
 In supplementary proceedings in that state the order is usually 
 made upon proof of the return of an execution nulla hona requir- 
 ing the defendant to appear in court in person and be examined 
 with reference to his property. If, upon examination, property is 
 discovered, a receiver is appointed who, upon giving bond as re- 
 quired, becomes vested with the debtors' assets and equitable in- 
 terests, without conveyance or assignment.' 
 
 ' Eearilon v. Farmers' Bank, 81 Clark, 4 Abb. N. C. 25. Application 
 
 Ind. 249; Oakley v. Paterson Bank, 2 must be made to the court, except in 
 
 N. J. Eq. 173. supplementary proceedings, in which 
 
 ^ Be Eiifjle Iron Workfi, 8 Paige, 385; case the judge has power by statute. 
 
 1 Smith, Ch. Pr. 4i)7; 1 Grant, Ch. N. Y. Code Civ. Proc. § 2464. In this 
 
 Pr. 2G4; 2 Brown, Ch. Pr. ^38; 2 class of proceedings the court has no 
 
 Daniell, Ch. PI. & Pr. (Perkins' ed.) power to delegate the appointment to a 
 
 chap, xxxviii. § 3. referee. For general forms relating to 
 
 ^Flint V. Webb, 25 Minn. 263. the appointment of a receiver under 
 
 *IIollenbeck v. Donnell, 94 N. Y. 342 ; New York practice.see 2 Abbott's New 
 
 United States Trust Co. v. New York, Practice and Forms, p. 143 et seq. 
 
 W. S. & B. R. Co. 101 N. Y. 483. "> Coon^y v. Cooney, 65 Barb. 524; 
 
 See N. Y. Code Civ. Proc. §§ 1788, Bostwic.k v. Menck, 40 N. Y. 383; For- 
 
 1801," 1817, 1869, 2464; Palmer v. ter v. Williams, 9 N. Y. 142.
 
 PRACTICE AND PLEADING. GU9 
 
 § 387. Statutory proceed iiii^s. 
 
 In England and in most of the states in tins conntiy statutes 
 have been enacted providing for the appointment of receivers 
 over corporations upon specified grounds and upon various desig- 
 nated modes of procedure, sometimes upon applications of stock- 
 holders, creditors, the attorney general, state auditor, governor 
 and other specified officers and persons. Under these statutes 
 courts proceed with great caution and the application must be 
 brought strictly within the statutory requirements ; and will not 
 be extended by implication. The reason for this rule is based 
 upon the jurisdictional fact that courts of equity, as such, have 
 no power, independent of statute, to wind up a corporation and 
 suspend its corporate functions, and are slow to appoint a receiver 
 as manager in lieu of the corporate authorities and thus, virtually 
 and in effect, accomplish by indirection that which iliey have no 
 power to accomplish directly.' 
 
 § 388. National banks. 
 
 Under the statutes of the United States relating to national 
 banks the comptroller of the currency is vested with power to 
 appoint receivers over such banks for certain specified causes 
 therein enumerated. U. S. Kev. Stat. §§ 5141, 5151, 5191, 5195, 
 5201, 5205, 5208, 5238, 5239. The power thus lodged with the 
 comptroller is not exclusive, however, and courts of equity upon 
 other grounds may appoint a receiver, in the absence of action by 
 the former.^ 
 
 § 389. Mortgage foreclosures. 
 
 The power of a court of equity in foreclosure proceedings to 
 appoint a receiver is part of the incidental jurisdiction of such 
 courts. The basis for the exercise of this power is to l)e found in 
 tiie bill or petition, by which it is to be alleged and shown some 
 reason why tlie court should impound the rents and profits of 
 the mortgaged premises and apply them in reduction of the in- 
 debtedness secured, the interests, advancements, and costs and 
 expenses. Sometimes the mortgage or trust deed expi-cssly 
 pledges the rents and profits as part of the security ; at other 
 
 ^Bangsv. Mcintosh, 2?>Pydrh. rm. 6 Biss, ,'501; Klwood v. Fint Nat. 
 
 ''Irons V. Manufacturem'' Nat. Dunk, Bank, 41 Kan. 475. 
 
 39
 
 610 RECEIVERSHIPS. 
 
 times the rents and profits are taken as incidental to the mort- 
 gage, in which tlie equitable right to a receiver depends upon 
 three things, (a) the right of foreclosure by reason of default,' (b) 
 inadequacy of security to pay the mortgage debt, interest, and 
 costs,^ (c) the insolvency of the mortgagor or other person liable 
 to pay such debt, interest, and costs." Inadequacy of security de- 
 pends upon general depreciation in the market and rental value 
 of the property, waste of the mortgagor, or other party in posses- 
 sion, destruction or partial destruction of the buildings by fire or 
 otherwise, omission to pay the taxes, diversion of the rent, and 
 income from the payment of interest, and other causes by means 
 of which the debt is increased or the value of the security de- 
 creased. The insolvency of the mortgagor, or mortgagor and his 
 grantee, who has assumed the payment of the mortgage debt, is 
 established by showing the return of an execution against them 
 nulla bona, that they do not own property, liable to execution, 
 sufiicient to pay the mortgage debt. The insufiiciency or insolv- 
 ency may be proved by a variety of facts and circumstances, none 
 of which of itself niiglit be considered sufficient, but taken to- 
 gether establish the allegations in this regard.* 
 
 § 390. Suits by receiver. 
 
 The power of the receiver to sue under the direction of the 
 court is a necessary incident to the due j3erf ormance of his duties. 
 Occupying the place of the person or corporation over whose 
 property he is appointed, and succeeding to the rights of such 
 person or corporation, it follows that his right to recover is lim- 
 ited to the right such person or corporation would have had if no 
 receiver had been appointed, except in such cases where the 
 receiver is the representative of the creditors, in which case he 
 may avoid the illegal and fraudulent acts of the party he 
 succeeds.* 
 
 ' See § 173, IFl" e, f, ante. itt v. Tales, 4 Edw. Ch. 134: Jacobs v. 
 
 2 See ^ 174, ffl?i^e. Tur pin, 83 I\\. 42i; Litchfield Bank 
 
 «See § 174, H a 2, ante. Y.Peck, 29 Conn. 384; Eastern Bank v. 
 
 ■•See general grounds for appoint- Capron, 22 Conn. 639; Stokes v. New 
 
 ment in foreclosure proceedings, Jemey Pottery Co. 46 N. J. L. 237; 
 
 ti§ 171, 172, ante, and when not ap- Tuckennan v. Brotcn, 33 N. Y. 297; 
 
 pointed, § 173, ante. Atty. Gen. v. North American L. Ins. 
 
 » Curtis V. Leavitt, 15 N. Y. 9; Lean- Co. 82 N. Y. 172; Wdttlesey v. Delaney,
 
 PRACTICE AND PLEADING. till 
 
 §391. In what name to sue. 
 
 "Where authorized by statute, or bj the court appointing liim, 
 the receiver may sue in his official name, and where not so au- 
 thorized he must sue in the name of the person or corporation to 
 whose rights he has succeeded, for liis use as receiver.' 
 
 § 392. Necessary allegations. 
 
 He must allege and show (1) his appointment as receiver, his 
 qualification to act by giving the required bond if so ordered, and 
 any other necessary prerequisites to his right of action under 
 the statute or circumstances of the particular case ; (2) he must 
 also allege and show a legal or equitable right in himself to sue in 
 his official capacity as the representative of the parties in whose 
 interest the suit is brought or that, Ijut for his appointment, such 
 parties had a legal or equitable cause of action and right to en- 
 force such right." 
 
 § 393. Form of allegations. 
 
 The necessary averments should be stated in such clear and 
 specific form as that issue may be taken thereon. The facts be- 
 ing jurisdictional, they should be stated with such sufficient full- 
 ness and clearness as will enable the court to see without infer- 
 ence plaintiff's right to recover.^ 
 
 § 394. Limitations on power to sue. 
 
 The receiver's power to sue is not an unlimited one when 
 
 73 N. Y. 571; PitUhurg Carbon Go. v. As to suits where required to bring 
 
 McMillin, 119 N. Y. 46, 7 L. R. A. 46; in the name of the person or corpora- 
 
 Williarm v. Babcock, 25 Barb. 109; tion, see § 73, note 3, p. 161, ante; 
 
 Curtis y. Mcllhenny, 5 J outs, Eq. 2i)0; also Wilson v. Welch, 157 Mass. 77; 
 
 Coope V. Bowles, 28 How. Pr. 10; Battle v. Davis, GQU'i.G. 252; Yenger v. 
 
 Falkenbach v. Patterson, 43 Ohio St. Wallace, UFa.2M: Ilarrell v. Kent,ll 
 
 359; Wardle v. Hudson, 96 Mich. 433; Ind. 602; Moriarty v. Kent, 71 lud. 
 
 State, Shepard, v. Sullivan, 130 Ind. 601; Garver v. Kent, 70 Ind. 438; 
 
 197. See also § 70, ante. Manlove v. Btirger, 38 Ind. 313: Har- 
 
 ' See, as to suit in his own name land v. Bdnkers' & M. Teleg. Co. 33 
 
 when authorized by court, § 73, note Fed. Rep. 199. 33 Fed. Rep. 305. 
 
 1, p. 161, ante, and note 3, p. 163, '^ See § 71, an^e. 
 
 ante; Baker v. Cooper, 57 Me. 388. ^Sce §^ 11, 14, ante. 
 
 See, as to suit in his own name when 
 authorized by statute, § 73, note 2, 
 p. 161, ante.
 
 612 RECEIVERSPIIPS. 
 
 granted by leave of court. lie ninst confine himself to such 
 remedies as the law o-ives touchinjr the matter in controversy, and, 
 while the court clothes him with power to sue, it cannot create a 
 remedy, or chanoje the remedies to suit his convenience. His suit 
 is legal or equitable, according to the subject-matter. In bring- 
 ing parties into court, and his rights when in court, are precisely 
 those of any other person, and tlie proof required is just as im- 
 perative in all respects. He is favored as to possession, but other- 
 wise has no special privileges.* 
 
 §395. Suits against receiver; leave to sue. 
 
 When not otherwise provided by statute, the court will not, as 
 a rule, permit the receiver to be sued without leave of court 
 granted on petition filed for that purpose. The petition in such 
 case must show a good, or at least a probable, cause of action, and 
 such reasons as shall seem to the court sufficient that the matter 
 should be passed upon by a court of law or other conrt than the 
 one appointing the receiver. The reasons for this rule are that 
 the receiver is an officer of court, and the due and proper admin- 
 
 ' In Harland v. Bankers' & M. Teleg. power even under the order of court 
 
 Co. 32 Fed. Rep. 305, it is held that a to bring an action involving the title 
 
 receiver appointed in a foreclosure to real estate against third parties, or 
 
 proceeding cannot maintain a bill for to submit a controversy with third par- 
 
 an accounting for damages suffered ties, concerning title to real estate, and, 
 
 by the mortgagor, growing out of a without the consent of the real parties, 
 
 breach of contract to construct certain bind them by the judgment which may 
 
 lines of telegraph. Equity will not be rendered. 
 
 entertain a bill to try title to property In Conley v. Deere, 7 Lea, 274, an 
 
 in the possession of one claiming ad- action was brought by the receiver to 
 
 versely, though the complainant seeks recover possession of certain goods 
 
 relief in the nature of removing clouds and it was held that replevin in a com- 
 
 upon title. mon law court against the party hav- 
 
 In Tyler v. Hamilton, 63 Fed. Rep. ing in fact a superior right to the pos 
 
 187, a receiver of a corporation in a session of the property could not be 
 
 foreclosure proceeding was held not maintained. This decision was based 
 
 competent to contest the validity of on the ground that a court of law 
 
 leases executed by a corporation to a should not be called upon to assert 
 
 director thereof. In such case he is and indicate the dignity and jurisdic- 
 
 not a representative of the creditors tion of the court of chancery in an ac- 
 
 and in equity not entitled to maintain tion of replevin. In a word, the chan- 
 
 the suit ag linst the lessee's rights. eery court having jurisdiction should 
 
 In Caldwell v. 3fcWhor(er, Si Ky. exercise such jurisdiction if a proper 
 
 130, a rtceiver was held not to have case existed.
 
 PRACTICE AND PLEADING. 
 
 613 
 
 istration of the estate demands that he shall not be harrassed by 
 litigation. All reasonable facilities for being heard ^wo interesf^e 
 suo being afforded by the court appointing. In such case, leave 
 having been granted, it is necessary to allege such leave, and the 
 allegation, as elsewhere seen, is jurisdictional, though the decisions 
 U]wn the point are not harmonious.' 
 
 ' In Keen v. Breckenridge, 96 Iiul. 
 69, where the complaint was filed 
 against a receiver in his official ca- 
 pacity upon a money demand, which 
 did not allege that leave to bring suit 
 had been granted by the court, was 
 held to be bad upon demurrer based 
 upon the following cases: DcGroot 
 V. Jay, 30 Barb. 483; Higgins v. Wright, 
 4'i Barb. 461; Barton v. Barhou7', 3 
 MacArth. 212, 36 Am. Rep. 104; Bar- 
 ton V. Barbour, 104 U. S. 126, 26 L. ed. 
 672. 
 
 In Lehigh Coal & Nav. Co. v. Central 
 R. Co. 38 N. J. Eq. 175, the petition- 
 ers claimed to have furnished the 
 former receiver of an insolvent rail- 
 road company with materials for the 
 use of the road. They applied for an 
 order on the receiver for payment and 
 also for an order giving them leave to 
 sue him at law for damages alleged to 
 have been sustained by reason of the 
 nonfulfillment of his predecessor's 
 contract for materials similarly sup- 
 plied. The court held (1) that the 
 court on granting the petition would, 
 by a preliminary examination of the 
 transaction, determine whether the 
 matter could be disposed of in the 
 court appointing the receiver; and (2) 
 that the present receiver was not lia- 
 ble to a suit at law on the contract of 
 his predecessor. 
 
 In Palys v. Jewett, 32 N. J. Eq. 302, 
 it was held that a cause of action 
 Bounding merely in tort against a re- 
 ceiver appointed by a court of chan- 
 cery, might be prosecuted against the 
 receiver in an action at law, but that 
 
 such action could not be brought 
 without permission of the chancellor, 
 which would be granted, unless the 
 claim preferred was manifestly un- 
 founded and vexatious. In this case 
 there was an exhaustive examination 
 of the law in regard to the trial of 
 questions of damages in a court of 
 chancery to which is a valuable note 
 by the reporter citing many cases 
 bearing upon the question. 
 
 In Hiibhell v. Dana, 9 How. Pr. 424, 
 it was held that leave to prosecute a 
 suit against the receiver should have 
 been obtained, but the irregularity 
 might be waived by a general notice 
 of appearance. 
 
 In Re Yoitng, 7 Fed. Rep. 855, it was 
 also held that, after submilling to the 
 jurisdiction of the court, it was too 
 late to complain that the bringing of 
 the suit without leave was a contempt. 
 
 In Elkhart Car Works v. Ellis, 113 
 Ind. 215, where, in an action to quiet 
 title, the receiver appeared and joined 
 issue without objecting that leave to 
 sue him was not first obtained, was a 
 waiver of such objection. In this case 
 the doctrine of Keen v. Breckenridge, 
 96 Ind. 69, while not overruled, was 
 held not to apply to an action to quiet 
 the title to real estate. 
 
 In Potter v. Bunnell, 20 Ohio St 
 150, it was held that an action for in- 
 juries against the receiver, exercising 
 franchises of a railroad, must be de- 
 termined by the principles applicable 
 to a like action against the company 
 when operating its own road. 
 
 In Kinney v. Crocker, 18 Wis. 75,
 
 614 
 
 RECElVEKSlllPri. 
 
 suit was brouclit to recover for inju- 
 ries to the plaintiff from the negli- 
 gence of the servants of the defendant 
 receiver, while operating a railroad 
 under orders of the United States dis- 
 trict court. The court say: "In all 
 such cases it (the court) will some- 
 times punish as for a contempt in an 
 attempt to disturb the possession of 
 its otlicers; it will sometimes restrain 
 Buits at law and draw to itself all dis- 
 puted claims in respect to the subject- 
 matter; and sometimes it will allow 
 the suits at law to proceed. But in 
 all these cases it is not a question 
 whether equity will exercise its own 
 aclcnowledged jurisdiction of restrain- 
 ing suits at law under some circum- 
 stances and itself dispose of the matter 
 involved. It follows that, although 
 a plaintiff in such a case desiring to 
 prosecute a legal claim for damages 
 against a receiver might, in order to 
 relieve himself from the liability to 
 have his proceedings arrested by an 
 exercise of this equitable jurisdiction, 
 very properly obtain leave to prose- 
 cute, yet his failure to do so is no bar 
 to the jurisdiction of the court of law 
 and no defense to an otherwise legal 
 action on the trial. There can be no 
 room to question this conclusion in 
 all cases where there is no attempt to 
 interfere with the actual possession of 
 property which the receiver holds un- 
 der the order of the court of chan- 
 cery, but only obtains a judgment at 
 law on a claim for damages." The 
 court of appeals of New York in 
 Cluiutauque County Bank v. Bisky, 19 
 N. Y. 369, expressly declined to follow 
 the doctrines of the United States Su- 
 preme Court and allowed a suit in 
 ejectment to be prosecuted against 
 the receiver under a claim of para- 
 mount title. 
 
 In St. Joseph <& D. C. B. Co. v. 
 Smith, 19 Kau. 225, the same principle 
 was held. It did not appear in that 
 
 case whether any leave was asked 
 or not. It was held, however, that if 
 the chancery court had desired to re- 
 strain tlie prosecution of the action it 
 could have been done, and not having 
 been done, it was presumed that it 
 was deemed wise to leave the matter 
 for determination by the court in 
 which the suit was pending. 
 
 It was held in Barton v. Barbour, 
 104 U. S. 126, 26 L. ed. 672, that the 
 fact that the receiver was in the pos- 
 session of, and operating a railroad, 
 and was conducting the business of a 
 common carrier, did not take the case 
 out of the rule that he was answer- 
 able only to the court which appointed 
 him, and could not be sued without 
 its leave. The claim of the plaintiff 
 which was for personal injuries re- 
 ceived while traveling on the road op- 
 erated by the receiver was held to 
 stand precisely on the same footing 
 as expenses incurred in the execution 
 of the trust and must be adjudicated 
 and satisfied in the same way. 
 
 In Brown v. Bauch, 1 Wash. 497, it 
 was held that a receiver could not be 
 sued except upon leave of the court 
 first obtained and this leave was a ju- 
 risdictional fact which could not be 
 waived by the receiver and could be 
 raised at any stage of the case in either 
 court. 
 
 In the following cases the question 
 as to first obtaining leave of court was 
 held not to be a jurisdictional fact. 
 
 In Lyman v. Central Vermont R. 
 Co. 59 Vt. 167, it was held that the 
 failure to obtain leave to sue the re- 
 ceiver was not a bar to the jurisdic- 
 tion of a court of law and no defense 
 to an otherwi.se legal action. The 
 court say: "There can be no room to 
 question this conclusion in all cases 
 where there is no attempt to interfere 
 with the actual possession of property 
 which the receiver holds under the 
 order of the court of chancery, but
 
 PRACTICE AND PLEADING. 
 
 615 
 
 § 396. Actions against receiver under void appointment. 
 
 Where a receiver has been appointed and the appointment is 
 void by reason of the provisions of the statute regulatini^ the ap- 
 pointment of receivers not having been complied with, and the 
 receiver has collected money, acting in the capacity of receiver 
 from tenants for rent, it may be recovered from him in an action 
 therefor, by the person entitled thereto, and this too, though he 
 might also have an action against the tenants.' It is probable 
 
 only an attempt to obtain a judgment 
 at law in a claim for damages." This 
 decision is based on Kinney v. Crocker, 
 18 Wis. 75; Angel v. Smith, 9 Ves. Jr. 
 385; Chautauque County Bank v. Ris- 
 ley, 19 N. Y. 369 ; Camp v. Barney, 4 
 Hun, 373. 
 
 In Roxbury v. Central Vermont R. 
 Co. 60 Vt. 131, an action was held 
 proper against a receiver for obstruct- 
 ing a crossing, although leave was not 
 obtained to bring the suit. 
 
 In Martin v. Atchison, 2 Idaho, 590, 
 it was held that a receiver cannot be 
 sued without obtaining a permission 
 from the court by whom the appoint- 
 ment was made. It is said "If such 
 proceedings can be tolerated then the 
 appointment of receivers by courts 
 would be a useless ceremony and a 
 farce. The plaintiflFs are not without 
 a remedy for they may ask the court 
 to allow the receiver to be made a 
 party under such restrictions as the 
 court deems best for the preservation 
 of the property, of its own authority 
 and the protection of its officers." The 
 decision is based upon Bario?i v. Bar- 
 bour, 104 U. S. 126, 26 L. ed. 672, 
 which was founded on Davis v. Oray, 
 83 U. S. 16 Wall. 203, 21 L. ed. 447. 
 
 The case of Barton v. Barbour, 104 
 U. S. 126, 26 L. ed. 672, though not 
 the first case, is one of the leading 
 cases holding that a receiver cannot 
 be sued without leave of the court of 
 equity which appointed him. It is 
 
 held that a suit brought without leave 
 to recover a judgment against a re- 
 ceiver for a money demand is virtu- 
 ally a suit, the purpose of which is, 
 and the efifect of which may be, to 
 take the property of the trust from the 
 receiver's hands and apply it to the 
 payment of the plaintiff's claim, with- 
 out regard to the rights of other cred- 
 itors, or the orders of court, which 
 is administering the trust property. 
 "We think therefore" the court say, 
 "that it is immaterial whether the suit 
 is brought against him (the receiver) 
 to recover specific property or to ob- 
 tain judgment for a money demand. 
 In either case leave should be first ob- 
 tained." The decision is based upon 
 Wistcall v. Sampson, 55 U. S. 14 How. 
 52, 14 L. ed. 322, and Am^s v. Birken- 
 head Docks, 20 Beav. 332. In this last 
 case Lord Rommely, Master of the 
 Rolls, said that it was an idle distinc-" 
 tion that the rule forbidding any in- 
 terference with property in the course 
 of administration in the court of chan- 
 cery only applies to property actually 
 in the hands of the receiver and de- 
 clared that the rule applied to debts, 
 rents, and tolls which the receiver was 
 appointed to receive. 
 
 ' In Ilolcombe v. Johnson, 27 Minn. 
 353, a receiver was appointed in a 
 supplementary proceeding over spe- 
 cific property of the judgment debtor 
 and the order appointing the receiver 
 was subsequently reversed on appeal.
 
 GIG 
 
 KECElVEKbiliPd. 
 
 tliis rnlc would not be ap[)lieal)le in a case where the appointment 
 was only voidable, for in such a ease the attack would be colla- 
 teral.' An order void for want of jurisdiction can be attacked in 
 any proceediiio-.'' 
 
 It was held that the action of the 
 lower court was not void, but re- 
 mained in force until reversed, and 
 furnished a protection to the receiver 
 for acts done under it in strict con- 
 formity with the rtquirements of the 
 order as long as the order was in 
 force. 
 
 In Buckley v. Oeorge, 71 Miss. 580, 
 it is held that where an order appoint- 
 ing a receiver is appealed from and 
 a supersedeas granted the effect is 
 to retroact and suspend the order by 
 which the receiver was appointed by 
 which there was no longer any efficacy 
 in the decree to uphold the possession 
 of the receivers, and the right of the 
 party from whom the property is 
 taken is revested in him. Cf. State 
 v. Johnson, 18 Fla. 33; Blondheim v. 
 Moore, 11 Md. 365; Everett v. Slate, 
 McKaig. 28 Md. 190. See also John- 
 son V. Poicers, 21 Neb. 292. 
 
 In First Nat. Bank v. United States 
 Encaustic Tile Co. 105 Ind. 227, it is 
 held that an erroneous appointment 
 of a receiver is not void, but voidable, 
 as where the court had jurisdiction 
 of the subject-matter and of the par- 
 ties. Cook V. Citizens'' Nat. Bank, 73 
 Ind. 256; Uoioard v. Whitman, 29 Ind. 
 557; Pressley v. Lamb, 105 Ind. 171. 
 
 In O'Mahoney v. Belmont, 62 N. Y. 
 182, it is held that in the matter of 
 the county and a person appointed 
 receiver it is no objection that the ap- 
 pointment was void in a case where 
 it appeared that the receiver was ap- 
 pointed and obtained control of the 
 fund without the consent, and con- 
 trary to the wishes, of the parties. 
 
 ' In Commercial Nat. Bank v. Burch, 
 
 141 111. 519, it is held that where the 
 court, appointing a receiver for an 
 insolvent corporation, has jurisdiction 
 of the subject-matter and of the par- 
 ties, the order appointing him cannot 
 be questioned collaterally, no matter 
 how erroneous it may be. It cannot 
 be attacked upon appeal from an or- 
 der refusing to give an intervening 
 petitioner a preference in payment on 
 his claim of an equitable lien on the 
 assets of the corporation. See also 
 Richards v. People, 81 111. 551; St. 
 Louis & S. Coal & M. Co. v. Sandoval 
 Coal & M. Co. Ill 111. 82. 
 
 ^ In the case last cited the doctrine is 
 laid down that a judgment or decree 
 rendered where jurisdiction is want- 
 ing of either the subject-matter or 
 parties is void and a nullity, and 
 all acts performed under it are void 
 and no right can be devested by 
 it or acquired thereunder. Cf. Mul- 
 foi'd V. Stalzenback, 46 111. 306; Camp- 
 bell V. McCahan, 41 111. Ab; Johnson v. 
 Baker, 38 111. 98; Chambers v. Jones, 
 72 111. 275; Grand Tower Min. & T. 
 Co. v. Schirmer, 64 111. 106; Haywood 
 V. Collins, 60 111. 328; Chase v. Dana, 
 44 111. 2%-i;White v. Jones, 38 111. 159; 
 Curtiss V. Broion, 29 111. 229; Pardon 
 V. Diinre, 23 111. 572. 
 
 Otherwise, however, where there is 
 a mere error or irregularity. Adams 
 V. Larrimore, 51 Mo. 130; Wenner v. 
 Thornton, 98 111. 156; Harris v. Les- 
 ter, 80 111. 307;TFm5r v. Dodge, 80 111. 
 564; Hernandez v. Drake, 81 111. 34. 
 Cf. Neeves v. Boos. 86 Wis. 313; Stan- 
 ley y. National Union Bank, 115 N. Y. 
 122; Qreenawalt v. Wilson, 52 Kan. 
 109.
 
 597. 
 
 PRACTICE AND PLEADING. 
 
 Form of judgment against Receiver. 
 
 €17 
 
 Wliere the liability of a receiver in his official capacity is es- 
 tablished, it is in effect a liability in rem against the receivership 
 property or fund, and the order of court requires the judgment to 
 be satisfied out of such property or fund according to the equities 
 therein as finall}^ established.' 
 
 § 398. Proceedings in original cause i\ lien. 
 
 It rests in the sound judicial discretion of the court whether it 
 will permit suit to be brought against the receiver, or compel the 
 applicant to come in by petition in the cause, and there determine 
 in an appropriate proceeding, by jury, reference to the master, 
 referee, or otherwise, the rights of the party whether they relate 
 to questions of fact or damages. Such proceedings are in effect 
 separate proceedings, subject to appeal." 
 
 In Texas <& P. R. Co. v. Oaij, 86 
 Tex. 571, 25 L. R. A. 52, the court 
 exhaustively discusses the question of 
 jurisdiction, not only as between 
 courts, but also as to what constitutes 
 jurisdiction over the subjoct-malter, 
 as well as jurisdiction over the parties 
 to the suit, and also holds that a re- 
 ceiver appointed under a void order 
 must be deemed to have been simply 
 the agent of the railway company 
 over whose property he was appointed, 
 and it is liable for injuries resulting 
 from his management of the railway 
 to the same extent and in the same 
 manner as if such receiver were made 
 agent in the ordinary course of busi- 
 ness; and the same rule applies where 
 the receiver is appointed by collusion, 
 in such case he beiug treated as the 
 agent of the parties procuring the ap- 
 pointment. 
 
 ' In Farmers' Loan & T. Co. v. Cen- 
 tral R. Co. 7 Fed. Rep. 537, the 
 discharge of a receiver was held to be 
 a bar to an action brought against 
 him. The company to whom the 
 
 property is turned over, however, is 
 liable, if received by it subject to 
 claims of the receiver. The court 
 says: "If the receiver had been dis- 
 chiirged and the property turned over 
 to the new company unconditionally 
 and without reservation I am at a loss 
 to see what legal remedy claimants 
 without established liens shall have, 
 but the court did not in this case so 
 turn over the property. It would 
 have been a most unwise and unjust 
 proceeding to have done so, leaving 
 just claims and liabilities incurred by 
 a receiver of its own appointment, 
 without any provision whatever to 
 enforce them." Any demand against 
 the receiver which the claimant has 
 a right to establish as a lien against 
 the receivership property may, by 
 leave of court, be presented in the 
 original case. 
 
 2 In Jordan v. Wells, 3 Woods, 527, 
 it was held that a receiver ought not 
 to be sued, unless a petition for leave 
 has been filed which slates a prima 
 facie case against him.
 
 618 
 
 RECElYERaHLPS. 
 
 § 399. Rig:ht of sot-off. 
 
 The equitable rio'lit of set-oflf is recoo;nized in all proceedings 
 by the receiver, on tlie ground that he talves the receivcship 
 property subject to all equities against it.' 
 
 § 400. Petition of receiver lx)r authority. 
 
 Except where power is given to the receiver in the order of 
 ajipointnient or by statute, the proper practice is for the receiver 
 to apply by petition to the court for specific authority and direc- 
 tion in all matters involving his official action and duty where the 
 result of his action may seriously aifect the receivership property 
 or fund. The interest of the parties and his responsibility to the 
 court require this. In such case the order of court is based upon 
 the petition and should so recite.' 
 
 ' In Newcomb v. Almy, 96 N. Y, 
 308, it appeared that when the plain- 
 tiff was appointed a receiver of an 
 insurance company, the company 
 held certain claims against the de- 
 fendant and the defendant held en- 
 dowment policies against the com- 
 pany which were not yet matured. 
 In an action upon the claims against 
 the defendant brought by the receiver 
 it was held that the defendant was 
 not entitled to set off the reserve 
 value of the policies. This decision 
 is based upon the principle that the 
 money was not due to the policy 
 holder in such a sense that he could 
 avail himself of itas a set-off; but in 
 People V. Security L. Ins. & A. Co. 78 
 N. Y. 114, it was held that the holder 
 of an unmatured life policy was a 
 creditor and entitled to share with 
 other creditors in the assets; that he 
 was not regarded as a partner of the 
 company; that he was damaged by 
 the insolvency of the company, and 
 in ascertaining the amount of dam- 
 age resort could be had to the tables 
 used in life insurance business, and 
 where the receiver held the notes of 
 Buch a policy holder in part payment 
 
 of premiums, it is proper to offset 
 the amounts due on such notes against 
 the value of the policies and pay a 
 dividend upon the balance only. 
 
 In Com. v. Slice & Leather Dealers' 
 F. (& M. Ins. Co. 112 Mass. 131, the 
 property of an insurance company 
 had been sequestered and placed in 
 the hands of a receiver, and it was 
 held that the amount of loss before 
 that time sustained under the policy 
 of the company could be set off 
 against the debt from the assured to 
 the company, even where the com- 
 pany held collateral security. 
 
 In Scammon v. Kimball, 92 U. S. - 
 862, 23 L, ed. 483, a person having a 
 set-off against a corporation adjudi- 
 cated a bankrupt, has a right to such 
 set-oft' against the assignee equally 
 available to him as a company. 
 
 In Eiighitt v. Hayes, 136 N. Y. 163, 
 it is held that the insolvency of one 
 party and the appointment of a re- 
 ceiver does not destroy the equitable 
 right of set-off which otherwise ex- 
 isted prior to the appointment. 
 
 ^ See § 25, p. 83, note 2, ante; People 
 V. St. Nicholas Bank, 76 Hun, 522; 
 Missouri P. E. Co. v. Texas & P. R.
 
 PRACTICE AUD PLEADING. 619 
 
 § 401. Application for directions. 
 
 The receiver, beini^ an officer of the court and at all times sub- 
 ject to its orders and directions, has an undisputed right to apply 
 to the court for instructions concerning the receivership interests 
 in his charge, and for the safekeeping of which he is responsible, 
 and especially so where there are conflicting interests, rights, 
 liens, and other matters about which future contests may arise.' 
 
 § 402. Receiver as manager. 
 
 Where tlie receiver is also manager, usually in the matter of 
 railways, and M'here the scope of duties pertaining to the receiver- 
 ship is compreheiKsive and involved, greater latitude is allowed 
 the receiver, and his discretionary powers necessarily largely 
 increased, but in such case the order should be correspondingly 
 latitudinous, so as to afford ample protection where his action is 
 called in question. It will be found much easier to fortify his 
 action in advance by general or special orders than to justify 
 his action afterwards when called in question.* 
 
 § 403. Interpleader l)y receiver. 
 
 Where two parties claim the same property or fund in the 
 hands of a receiver, it is proper for the receiver to iile a bill of 
 interpleader and compel them to determine as to each other which 
 has a superior right.^ 
 
 Go. 31 Fed. Rep. 864; Re Van Alien, in the case before us, it is in danger 
 
 37 Barb. 225; Cammack v. Johnson, through his own error of being un- 
 
 2 N. J. Eq. 103. fairly distributed." 
 
 ' In Si/iith V. New York Consolidated * Central Trust Go. v. Ohio G. R. 
 Stage Co. 28 How. Pr. 377, the court Co. 23 Am. & Eng. R. Cas. 666; Jack- 
 say: "The court has sanctioned the son v. De Furest, 14 How. Pr. 81; 
 practice of the receiver to asli for in- Allen v. Hawley, 6 Fia. 164; Heather- 
 structions regarding the receivership ton v. Hastings, 5 Hun, 459; Marten 
 business." v. Van Schaick, 4 Paige, 479; Leliigh 
 
 In People, Atty. Oen., v. Security Coal & Nav. Co. v. Central R. Co. 41 
 
 L. Ins. db A. Co. 79 N. Y. 267, the N. .1. Eq. 107; Langdon v. Vermont & 
 
 court say: " Since the receiver is an C. R. Co. 54 Vt. 593; Clarke v. Central 
 
 officer, or, as he is sometimes called, R. & B. Co. 66 Fed. Itep. 16; Piatt 
 
 the hand of the courl, it would be v. Philadelphia & R. R. Co. 65 Fed. 
 
 singular if he could not at such stage Rep. 660; Continental Trust Co, v. 
 
 go to it with his complaint or for in- Toledo, St. L. & K. G. R. Co. 59 Fed. 
 
 structions in regard to any matter Rep. 514. 
 
 toiichiug tlie fund placed in his cus- ^ In Winfield v. Bacon, 24 Barb. 154, 
 
 tody, and more et-fjecially when, as the receiver had a fund in his hands
 
 G20 
 
 RECEIVERSHIPS. 
 
 § 404. Possession as to tliird parties. 
 
 AVhorc the receiver holds property, his possession is the posses- 
 sion of the court, and any equitable rights therein claimed by 
 third parties nnist be asserted by petition and determined by the 
 court appointiui^ the receiver. It is also an equally well recog- 
 nized rule that where it is alleged and shown for good cause 
 that property should not pass to a receiver, the court may, on 
 petition, release the same.' 
 
 realized from the sale of Land to which 
 there were two claiinants, each of 
 whom had commenced a separate 
 action against him regarding the 
 fund, and had obtained an injunction 
 to prevent him from paying it over. 
 In such case it was held that a bill of 
 interpleader by the receiver might be 
 maintained against the rival claimants 
 to compel them to interplead and 
 settle the rights between themselves. 
 
 iln Thompson v. McCleary, 159 Pa. 
 189, it is held that a creditor having 
 execution under a judgment should 
 apply to the court which appointed 
 ^le receiver and ask for a discharge 
 of the property out of its custody so 
 that he may proceed against it. The 
 same doctrine is recognized in Smith 
 V. Earl of Effingham, 2 Beav. 233. 
 
 In Re Chriiftian Jensen Co. 128 N-. 
 Y. 550, it was held that when prop- 
 erty had passed to the actual posses- 
 eion of the receiver it could not, with- 
 out leave of the court first obtained, 
 have been replevied from him in an 
 action against him. The only rem- 
 edy would have been by an action com- 
 menced with the leave of court, or by 
 petition to the court appointing the 
 receiver. Citing Noe v. Oibson,7 Paige, 
 513; Riggs v. Whitney, 15 Abb. Pr. 
 388; Chautavgue County Bank v. Ris- 
 ley, 19 N. Y. 369; Barton v. Barbour, 
 104 U. S. 126, 26 L. ed. 672; Evelyn 
 f. Leiois, 3 Hare, 472; Ex parte Coch- 
 rane, L. R. 20 Eq. Cas. 282. 
 
 In Robinson v. Atlantic & O. W. 
 R. Co. 60 Pa. 160, it was held that 
 whether certain land belonging to a 
 mortgagor should pass into the hands 
 of a receiver could be determined 
 only by the court appointing the re- 
 ceiver. The court say: " If a cred- 
 itor believes that the property was 
 not legally mortgaged, or for any 
 good reason should not pass into the 
 hands of the receiver, his duty is to 
 apply to the court having appointed 
 the receiver to ask its discharge out 
 of custody, in order that he may pro- 
 ceed against it." See also Re Day, 
 34 Wis. 638. In this case shingles 
 were lawfully in the possession of the 
 receiver, and the court held if there 
 had been a mistake in the delivery 
 and they belonged in fact to another 
 party than the debtor, the remedy of 
 the claimant was by application to 
 the court for redress or for leave to 
 sue. 
 
 In Wiswall v. Sampson, 55 U. S. 14 
 How. 52, 14 L. ed. 322, it was held 
 that where real estate was in custody 
 of the receiver appointed by a court 
 of chancery, the sale thereof was im- 
 proper under an execution issued in 
 a judgment at law. It is held that 
 when a party is prejudiced by having 
 a receiver put in his way, the practice 
 has been either to give him leave to 
 bring ejectment or permit him to be 
 examined pro interesse sua. If per- 
 sons claim to have prior legal or
 
 PRACTICE AND PLEADING. 
 
 G21 
 
 equitfible interests to the property in 
 the bands of the receiver, and they de- 
 sire to avail themselves of such rights, 
 they must apply to the court for pro- 
 tection, even though their right to the 
 pocsession is clear; and the same prac- 
 tice applies where the properly claimed 
 consists of goods and chattels, or other 
 personalty, as to real estate. The court 
 say: "The settled rule, also, appears 
 to be that where the subject-matter of 
 the suit in equity is real estate, and 
 which is taken into the possession of 
 the court, pending the litigation, by 
 the appointment of a receiver, or by 
 sequestration, the title is bound from 
 the filing of the bill ; and any pur- 
 chaser, pendente lite, even for a valu- 
 able consideration, comes in at his 
 peril." 
 
 In this case the court examined ex- 
 tensively the English and American 
 doctrine in regard to the possession of 
 the receiver and the interference there- 
 with and the remedies of claimants 
 thereto. 
 
 In Rufisell v. Eant Anglian R. Co. 
 3 Macn. & G. 104, property in the 
 possession of the receiver was seized 
 under execution on judgments against 
 the debtor. It was held that the estab- 
 lished rule was that no party could 
 question any order or process of court 
 by disobedience; that it was not com- 
 petent for any one to interfere with 
 the possession of the receiver or dis- 
 obey any order of court, on the ground 
 that the orders were improperly made. 
 The proper course to question their 
 validity was open to all, and this 
 course must be pursued. "It was 
 perfectly open to the plaintiffs to have 
 applied to the court to be heard pro 
 interesse suo, or to have been heard on 
 a summarj application for leave to 
 levy their execution, notwithstanding 
 the possession of the receiver." 
 
 In Porter v, Kingman, 126 Mass. 
 141, it is held that a person who has 
 
 purchased property subject to a mort- 
 gage given by the ovvner to a bank, 
 cannot maintain a bill in equity against 
 the receivers of the bank for a cancel- 
 ation of the mortgage, alleging as a 
 ground false and fraudulent represen- 
 tations of the bank, but if he has any 
 remedy at all he must proceed by 
 petition in the court in which the 
 receiver was appointed. Equitable 
 rights which are contended as supe- 
 rior to the title made by order of 
 court cannot be passed upon except 
 in the cause in which that title is cre- 
 ated, and cannot be set up in an inde- 
 pendent suit. 
 
 Cf. Atlas Bank v. Nahant Bank, 23 
 Pick. 480; Coiumhiaii Book Co. v. De 
 Golyer, 115 Mass, 67; Wiswall v. Samp- 
 son, 55 U. S. 14 How. 52, 14 L. ed. 
 322; Noe v. Gibson, 7 Paige, 513; Rob- 
 inson V. Atlantic <£ G. W. R. Co. 66 
 Pa. 160; Russell v. East Anglian R. 
 Co. 8 Macn. & G. 104; Hills v. Parker, 
 111 Mass. 508. 
 
 In Columbian Book Co. v. De Golyer, 
 115 Mass. 67, it was held that before 
 property of a corporation in the hand? 
 of a receiver could be taken from such 
 receiver and applied to the payment 
 of creditors, a petition in equity in the 
 cause in which the receivers were ap- 
 pointed was necessary. 
 
 In Hills v. Parker, 111 Mass. 508, 
 an action of replevin was maintained 
 against an agent of the railroad com- 
 pany, whose property was in the handa 
 of receivers, without obtaining leave 
 of court, where it appeared that the 
 corporation had no interest in the 
 property replevied, although it was in 
 use by the receiver. It was held that 
 leave to bring an action would be 
 granted by a court of chancery as of 
 course, unless it was clear that there 
 was no foundation for the claim. 
 The appointment of receivers entitle 
 them to the protection of the court as 
 to the property they were directed to'
 
 622 
 
 RECEIVERSHIPS. 
 
 § 405. Acts outside of receiver's duty. 
 
 Where the receiver cominits acts outside of the line of duty, as 
 where he takes and holds possession of property not included in 
 the order of appointment and to which the debtor never had title, 
 he is not entitled to the protection of the court, is a trespasser and 
 liable as such. He is not, however, a trespasser if he takes pos- 
 session of property under an improvident order of court, or at 
 least not Hal)le for damage.' 
 
 § 406. When receiver refuses to act. 
 
 When a receiver fails to prosecute officers of a corporation 
 for neglect of duty or illegal acts the right of action is in the 
 party interested making the receiver a defendant.* 
 
 take possession of, but does not extend 
 to property not embraced in the de- 
 cree and of which the debtor never 
 had any title. Parker v. Browniiuj, 8 
 Paige, 388; Paige v. Smith, 99 Mass. 
 395; Leighton v. Harwood, 111 Mass. 
 67. 
 
 In Atlas Bank v. Nnhant Bank, 23 
 Pick. 480, it appeared thai attach- 
 ment suits were brought against an 
 insolvent bank, and the receivers filed 
 a petition praying that the attachment 
 might be dissolved and the respond- 
 ents be restrained from other attach- 
 ments; that the petition was a distinct 
 proceeding, unconnected with the 
 original suit against the bank, and 
 was held to be irregular, but that the 
 receivers were entitled to proceed in 
 a summary mode, by a petition filed 
 in the original suit, to obtain a deci- 
 sion of the court upon the rights of 
 attaching creditors, and that a supple- 
 mental bill was not necessary. 
 
 ' In Ft. Wayne, M. & C. R. Co. v. 
 Mellett, 93 Ind. 535, it was held that 
 where a receiver was in possession of 
 land under decree of the circuit court 
 of the United States no action could 
 be maintained in the state courts to 
 recover possession thereof. In such 
 case the court which holds by its re- 
 
 ceiver is the only court to try the 
 question of title. 
 
 In Staples v. May, 87 Cal. 178, it is 
 held that if the receiver appointed in 
 a mortgage foreclosure works ores in 
 lands of the mortgagor, which are not 
 included in the mortgage foreclosed, 
 he becomes liable as a trespasser for 
 the net proceeds of the ore extracted 
 and the general creditors of the mort- 
 gagor may avail themselves of such 
 liability by proceedings supplemental 
 to execution. 
 
 In Kenney v. Ranney, 96 Mich. 617, 
 it is held that a receiver should see to 
 it that he sells none but the property 
 covered by the mortgage under the 
 order of court, for its sale, and an ac- 
 tion of trover will lie against him for 
 the value of other property held by 
 the mortgagor as bailee and delivered 
 by him to the receiver without demand 
 and without order of court. Cf. Oib- 
 bonsY. Faricell, 63 Mich. 344; Pingree 
 V. Detroit, L. & N. R. Co. 66 Mich. 
 148; Allen v. Kiiiyon, 41 Mich. 281; 
 Scudder v. Anderson. 54 Mich. 122; 
 Hake v. Buell, 50 Mich. 89; Daggett 
 V. Davis, 53 Mich. 35; Qutsch v. Mc- 
 Ilhargey. 69 Mich. 377. 
 
 5 In Fisher v. Andrews, 37 Hun, 176, 
 an action was brought by the plaintiff
 
 PRACTICE AND PLEADING. 
 
 (523 
 
 § 407. Leave to compromise. 
 
 The court in the interest of the estate may antliorize and em- 
 power the receiver to compromise disputed and doubtful claims, 
 by receiving less than tlie amount due if it shall appear expedient 
 so to do and to the best interest of creditors, stockholders, or those 
 interested.' 
 
 § 408. Power to enforce assessments. 
 
 The receiver of an insolvent mutual tire insurance company has 
 
 to recover a sum of money due her as 
 widow of a member of a mutual bene- 
 fit association. The action was brought 
 against the trustees and receiver. The 
 complaint alleged in substance negli- 
 gence of the trustees and that they 
 had converted and applied to their 
 own use moneys collected under an 
 assessment for and belonging to the 
 plaintiff without right or authority. 
 It was held that the complaint was 
 properly dismissed because of its fail- 
 ure to allege that plaintiff had re- 
 quested the receiver to prosecute the 
 defendant and that he had refused to 
 do so, and that she had applied to the 
 court for leave to sue the defendants 
 and that the same had been granted 
 or refused. The court say: "The re- 
 ceiver represents the corporation, and 
 also the creditors, and the funds and 
 causes of action which became vested 
 in him on his appointment are in 
 custodia legis and should not be di- 
 verted and taken from his hands or 
 placed beyond the control of the 
 court whose duty it is to see that all 
 the funds of the corporation are justly 
 and equitably distributed among its 
 creditors and members. * * * If it had 
 been made to appear that the receiver 
 was in league with the other defend- 
 ants or had been guilty with them in 
 misappropriating the funds of the 
 company that would perhaps be a suf- 
 ficient excuse for not applying to him 
 to prosecute the defendants in a proper 
 
 action." OreaveH v. Gouge, 69 N. Y. 
 154; Brinckerhoff v. Bostwick, 88 N. 
 Y 52. 
 
 ' In Monitor Furnace Co. v. Peters, 
 40 Ohio St. 575, a receiver of a cor- 
 poration was appointed to administer 
 the estate for the benefit of creditors 
 and stockholders. Before the receiv- 
 er's appointment the company made 
 sale of its real estate and other prop- 
 erty for the alleged purpose of de- 
 frauding creditors. Two years after 
 the appointment a judgment creditor 
 filed a bill for the purpose of declaring 
 the sale void in the same court that 
 appointed the receiver, in which the 
 stockholders, receivers, and creditors 
 were made defendants, and the bill 
 was sustained on the ground that it 
 was substantially an application to the 
 court to direct the receiver to do his 
 duty in the case slated. In this case 
 the court can make the proper order 
 as effectively and justly as if instituted 
 by the receiver. 
 
 Re Croton Ins. Co. 3 Barb. Ch. 642, 
 a receiver of an insolvent corporation, 
 on application, was authorized to com- 
 promise disputed and doubtful claims 
 by the allowance of so much of said 
 claims as to him should seem just and 
 equitable and to compromise with 
 debtors who are unable to pay in full 
 upon receipts any part of their debts, 
 if it should seem reasonable and for 
 the best interest of creditors.
 
 624: 
 
 RECEIVERSHIPS. 
 
 power to make an assessment upon the prcminm notes necessary 
 to pay the delits of the company to the same extent as possessed by 
 tlie board of directors ; but his power is not more extensive than 
 that of the board. In such case his power does not depend upon 
 ilie order of court but the existence of such facts and circum- 
 stances as render the assessment necessary. He acts ministerially 
 and not judicially, and in enforcing the assessment must allege 
 such facts as would entitle the comjmny to sue.' 
 
 'In Thomas v. Whallon, 31 Barb. 
 173, the receiver of a mutual insur- 
 ance company in making an assess- 
 ment upon tlie premium notes is held 
 to be an actor and his authority de- 
 pends not upon the order of court, but 
 upon the existence of facts making 
 the a^essment necessary and proper. 
 in ordering the receiver to make the 
 assessment courts do not adjudicate 
 upon the liability of the company or 
 determine the amounts for which as- 
 sessments shall be made, at the ratio 
 of an assessment, but merely sanction 
 and authorize the acts of the receiver 
 who acts ministerially and not judi- 
 cially. 
 
 In Williams v, Babcock, 25 Barb. 109, 
 It is held that the receiver of a mutual 
 msurance company, by his appoint- 
 ment, has power to make assessments 
 upon premium notes and determine 
 ihe time of payment in the same man- 
 ner as the directors had, and is au- 
 thorized to give notice in the same 
 manner, but the appointment does not 
 determine the amount of indebtedness 
 or the time of payment. If the obli- 
 gation to pay is determined by the 
 premium note upon an assessment and 
 notice, it is the receiver's duty to pro- 
 ceed forthwith and make an assess- 
 ment and give the notice. This is a 
 orerequisite to an action on the note; 
 otherwise there would be no breach 
 on the part of the maker and these 
 things are necessary allegations in an 
 action against the maker. 
 
 In Einsela v. Cataract City Bank, 18 
 N. J. Eq. 158, it appeared that a sura 
 of money was placed in a bank as a 
 special deposit to meet a contingency 
 of the bank which never happened, 
 and the receiver was required to repay 
 the sum to the depositor. 
 
 In Wood v. Standard Mut. L. 8. Ins. 
 Co. 154 Pa. 157, a decree was rendered 
 ordering the receiver to collect an as- 
 sessment from members of the com- 
 pany, and in such case a liberal allow- 
 ance should be made for uncollected 
 assessments, expenses, etc. 
 
 In Bangs v. Duckinfield, 18 N. Y. 
 593, an assessment made by a receiver 
 of a mutual fire insurance company 
 under an order of court on applica- 
 tion of the receiver without notice is 
 held to be upon the same footing as if 
 made by the board of directors and 
 not conclusive upon the person as- 
 sessed as a judicial determination. 
 
 In Sands v. Sanders, 28 N. Y. 416, 
 it is held that a general assessment is 
 good by which the receiver declares 
 each premium note is assessed to the 
 full amount thereof. 
 
 In Doions v. Hajnmond, 47 Ind. 131, 
 suit was brought by a receiver of a 
 mutual fire insurance company to col- 
 lect an assessment on a premium note 
 and it was held that the complaint 
 must show on its face that the court 
 from which the receiver derives his au- 
 thority has determined the validity of 
 the claims for which the assessment 
 is made. The amount of claims which
 
 PRACTICE AND PLEADING. 
 
 625 
 
 409. Leaye to sell. 
 
 Where leave is given to the receiver to sell subject to the order 
 of court, au order of confirmation by the court is necessary in 
 order to transfer the title. The sale in such case is conditional 
 and the purchaser buys subject to the condition, but as in the 
 case of minors the contract is enfoi'ceable against him.' 
 
 § 410. Leave to contract debts and liens. 
 
 The receiver without leave of court has no power to create in- 
 debtedness and charge the receivership property with the payment 
 thereof. The court may in its discretion ratify tlie act of the re- 
 ceiver afterwards, in which case the effect is the same as previous 
 leave given. The order and not the act gives the transaction 
 validity. As to the existing mortgage liens, and the power to 
 displace them by prior liens, the power of the court is limited, as 
 elsewhere seen, to legitimate operating expenses.* 
 
 the receiver or court will allow as just 
 demands against the company, to- 
 gether with any indebtedness previ- 
 ously allowed by the directors of the 
 company as shown by their books 
 must be ascertained before an assess- 
 ment can be made to pay such in- 
 debtedness. 
 
 In Manlove v. Burger, 38 Ind. 211, 
 it is held that under the statute of In- 
 diana the receiver of a mutual insur- 
 ance company is authorized to sue in 
 his own name in bringing an action 
 against the stockholders of a mutual 
 insurance company. Also, that in an 
 action by a receiver to recover assess- 
 ments he must allege all the facts 
 necessary to show a liability on the pre- 
 mium notesand that the claim for losses 
 had been adjusted, or were justly due 
 to the parties making or setting up the 
 claims. 
 
 ' In Koontz v. Northern Bank, 83 U. 
 S. 16 Wall. 196, 21 L. ed. 465, it is held 
 that if the receiver omit to perform his 
 whole duty by which the jiarties arc in- 
 jured, or if he commits a fraud upon the 
 court and the rights of third parties 
 40 
 
 have intervened to prevent the setting 
 aside of the transaction, the remedy is 
 against the otficer personally on his 
 official bond. 
 
 In Phelps V. Masterton, 3 Robt. 527, 
 it was held that a receiver of a corpo- 
 ration to which a note was given, can- 
 not recover upon such note after he 
 has sold the same at public auction to 
 a bona flde purchaser. 
 
 In Ilanke v. Blattner, 34 111. App. 
 394, a receiver was held to be author- 
 ized to bring suit without special 
 leave of court, under 111. Rev. Stat, 
 chap. 32, § 25. In this case it appeared 
 that the receiver had made a sale of 
 property pursuant to the order of 
 court, and the purchaser had failed 
 to give a note due for the property 
 pursuant to the terms of sale, and suit 
 was brought therefor. 
 
 * In liof/ers v. Wendell, 54 Hun, 540, 
 an action was brought to dissolve the 
 corporation in which a receiver was 
 appointed, who employed a person to 
 take charge of the property of the com- 
 pany at a designated place and pay 
 certain disbursements necessary. This
 
 626 
 
 RECEIVERSHIPS. 
 
 § 411. Leave to issue certilicates. 
 
 The court may, however, under certain limitations and restric- 
 tions, empower the receiver to issue receiver's certiticates and 
 bind the receivership funds for their payment, but in such case 
 express authority must be given the receiver, and his expenditure 
 of the money derived therefrom or use of the certiticates must 
 strictly follow the order and direction of the court.* 
 
 employment was continued for some 
 time by tlie person so employed, he 
 making reports to the receiver weekly 
 and drawing drafts upon him for vari- 
 ous sums until the death of the re- 
 ceiver. An action was brought by the 
 employee against the executor of the 
 receiver for services and disburse- 
 ments and it was held that the re- 
 ceiver assumed a personal liability on 
 account of services and disburse- 
 ments. This case is based upon analo- 
 gous cases applicable to administra- 
 tion and trustee matters as follows: 
 
 Cf. ScJmMer v. Simon, 101 N. Y, 
 557; Willis v. Sharije, 113 N. Y. 591; 
 Davis V. Sforer, 16 Abb. Pr. N. S. 227; 
 Ifoyes V. Blakeman, G N. Y. 580; My- 
 gatt V. Wilcox, 45 N. Y. 309; Bowman 
 V. Tallman, 2 Robt. 385; Peoi)le v. 
 Universal L. Ins. Go. 30 Hun, 142; 
 Kedian v. Hoyi, 33 Hun, 145; Bya)i v. 
 Band, 20 Abb. N. C. 314; Fatten v. 
 Royal Baking Powder Co. 114 N. Y. 4. 
 
 The principle upon which the ad- 
 ministrator, trustee, or receiver is held 
 liable in the foregoing cases is that 
 there is no responsible principal back 
 of them for whom they may contract 
 and against whom the creditor may 
 force his demand. A receiver cannot, 
 of his own motion, contract debts 
 chargeable upon the fund in litigation 
 and while a court may allow expenses 
 incurred by a receiver for the preser- 
 vation of the property, it is neverthe- 
 less the order of court and not the act 
 of the receiver which creates the 
 charge and upon which its validity 
 
 depends. Vilas v. Page, 106 N. Y. 
 451. Cf. Wy chuff v. Scofield, 103 N. 
 Y. 630. 
 
 In Gowdrey v. Galveston, H. & H. 
 B. Go. 93 U. S. 352, 23 L. ed. 950, it 
 is held that the receiver is not author- 
 ized, without previous direction of 
 the court, to incur any expense, on ac- , 
 count of properly in his hands, be- 
 yond what is absolutely essential to 
 its preservation as contemplated by 
 his appointment. 
 
 In Ryan v. Rand, 20 Abb. N. C. 
 313, the receiver was held personally 
 liable for fees of a stenographer em- 
 ployed by him on the ground that 
 there was no authority from the court 
 making the plaintiff's demand a 
 charge upon the estate. 
 
 ' In Union Trust Go. v. Ghicago <& 
 L. H. B. Co. 7 Fed. Rep. 513, under 
 a special order of court, receivers' cer- 
 tificates were issued, placed in the 
 hands of the payee for negotiation and 
 sale, and subsequently were purchased 
 by the plaintiff for forty cents on the 
 dollar, he having notice of the order 
 under which the certificates were is- 
 sued. It was held that the purchaser 
 took subject to all equities between 
 the receiver and payee. The negotia- 
 tion and sale of certificates is a trust 
 personally to the receiver and he can- 
 not delegate it to another and relieve 
 himself from responsibility. 
 
 In Bank of Montreal v. Gldcago, C. 
 <fc W. R. Co. 48 Iowa, 518, the re- 
 ceiver was authorized to borrow such 
 sums of money as were necessary for
 
 PRACTICE AND PLEADING. 
 
 627 
 
 § 412. Trust property held by receiver. 
 
 If property is held by a corporation in trust and a receiver is 
 appointed over the corporate property the trust pro})erty remains 
 impressed with the trust relationship and on petition of the claim- 
 ant will be turned over to him by order of court. The conversion 
 and misapplication by the corporation does not alter the rights 
 of parties if the property or its proceeds can be traced.' 
 
 the further construction, equipment 
 and final completion of the road and 
 to issue certificates therefor and that 
 such certificates "whether for money 
 borrowed, material furnished, labor 
 performed or on account of contracts 
 made by him on account of the con- 
 struction of the road" should be 
 treated as a receiver's indebtedness 
 and be a first lien on the road. It was 
 held that the receiver could not i-ssue 
 certificates in payment of material 
 until it had been furnished, and hav- 
 ing done so for material contracted to 
 be delivered, but which in fact never 
 was, the certificates were void. The 
 receiver must follow the directions of 
 the order from which he receives his 
 authority. 
 
 In Chicago Deposit Vault Co. v. Mc- 
 Nulta, 153 U. S. 554, 88 L. ed. 819, 
 the receiver was authorized to "make 
 all contracts that may be necessary in 
 carrying on the business of said rail- 
 road, subject to the supervision of 
 this court," but it was held he had no 
 authority to make a lease of general 
 offices for a term without authority 
 from the court and to bind his suc- 
 cessors and the property therefor for 
 the term without direction from, or 
 sanction by, the court, and the mere 
 fact that the receivers' accounts 
 showed monthly the payment of rent 
 under such a lease and that that rent 
 was reasonable, and that the accounts 
 as rendered were passed by the master 
 and reported to and approved by the 
 
 court did not amount to a sanction of 
 the lease for the term. 
 
 ' In People v. Bonk of Dansville, 39 
 Hun, 187, it appeared that E & Co., 
 were creditors of H and drew their 
 sight draft on him payable to the or- 
 der of the cashier of the bank of D 
 and sent the same to the bank for col- 
 lection with specific instructions to 
 remit the proceeds. The draft was 
 paid in full to the bank and the bank 
 drew its own draft for the amount of 
 the collection less charges on a New 
 York bank payable to the order of E 
 & Co., and forwarded the same to 
 them. E & Co. forwarded the draft 
 for collection and it was returned dis- 
 honored, the bank of D having in the 
 meantime become insolvent and ceased 
 to do business. In this case it was 
 held that E & Co. were entitled to 
 the amount of the draft so collected 
 by the bank paid to it by the receiver 
 in preference to the general creditors. 
 In such case, the funds of the bank 
 being in cusiodid Icgis, it was unneces- 
 sary for the petitioners to file a bill 
 for the purpose of establishing their 
 equity; a summary application by 
 petition was all that was required. 
 
 In Chase v. Petroleum Bank, 66 Pa. 
 169, Chase, having balances in the 
 bank, requested the bank to pay a 
 debt for him, agreeing that the bal- 
 ances should be applied to the repay- 
 ment. The bank paid the debt and 
 Chase gave his note for the amount, 
 the balances to be adjusted in a short
 
 628 
 
 RECEIVERSHIPS. 
 
 time. In the meantime the bank 
 failed and went into the hands of a 
 receiver and it was held that there 
 had been an appropriation of the bal- 
 ances to the note and in a suit by the 
 bank on the note the balances were 
 to be deducted. Such balances were 
 not subject to check and could not 
 have been attached by Chase's cred- 
 itors. 
 
 In People v. Merchants' & M. Bank, 
 78 N. Y. 269, the application of the 
 petitioner was required to show and 
 trace into the hands of the receiver 
 the money which it was claimed was 
 a trust fund. It did not appear that 
 there was any actual setting apart or 
 appropriation of any specific fund or 
 property of the bank or of the drawer 
 of the check for its payment and it 
 did not appear that the identical funds 
 deposited were in the possession of 
 the bank when the check was pre- 
 sented for payment. In fact it was 
 conceded they were not. The bank 
 was simply a debtor of the depositor 
 for the balance of the deposits which 
 stood to its credit. 
 
 In Re Hallett's Estate, L. R. 13 Ch. 
 Div. 696, it was held that money held 
 by a person in a fiduciary capacity, 
 though not as trustee, and paid by 
 him to his account at his bank may 
 be followed by the owner and the 
 amount be made a charge on the bal- 
 ance in the hands of the bank; that if 
 a person holds money as trustee or in 
 a fiduciary character places it to his 
 account in his bank and mixes it with 
 his own money and afterwards checks 
 out sums of money in the ordinary 
 manner, the rule as to the first draw- 
 ings out of the first payments does 
 not apply to such case and the drawer 
 must be taken to have drawn out his 
 own money in preference to trust 
 money. 
 
 In Thuemmler v. Barth, 89 Wis. 
 381, a draft was sent to another bank 
 
 for collection of credit. The former 
 bank's account with the latter bank 
 was then overdrawn, but collaterals 
 were held to secure it against over- 
 drafts. The draft was collected by 
 the bank and the proceeds credited to 
 the bank making the remittance, and 
 it then failed. It was held that the 
 owner of the draft was not entitled to 
 a preference of payment out of the 
 assets of the remitting bank, the pro- 
 ceeds of the draft not being traceable 
 into any of such assets. 
 
 In Henry v. Martin, 88 Wis. 367, 
 it appeared that before the making of 
 an assignment by an insolvent an 
 agent deposited money of his principal 
 therein in another than his own name, 
 with notice to the bank that it be- 
 longed to third parties. It was held 
 that the deposit not having been 
 a special one and it not being 
 claimed that any part of the money 
 which came to the assignee was the 
 identical money deposited, the assets 
 of the bank are not impressed with 
 any trust in favor of the principal so 
 as to make him a preferred creditor. 
 The deposit created the relation of 
 debtor and creditor simply and the 
 bank receiving the money was the 
 debtor and not a bailee. Cf. Nono- 
 tuck Silk Co. V. Flanders, 87 Wis. 237; 
 McLeod V. Evans, 66 Wis. 401. 
 
 In Carley v. Graves, 85 Mich. 483, 
 the facts stated were held not to con- 
 stitute the relation of debtor and cred- 
 itor, but that of trusteeship, and the 
 funds were ordered to be turned over 
 to the payee. 
 
 In Importers' & T. Nat. Bank v. 
 Peters, 123 N. Y. 272, it appeared that 
 money was held by a person in a 
 fiduciary capacity and was deposited 
 by him in his general account at the 
 bank. It was held that the money 
 could not be followed by the owner. 
 If the owner pays it to his account 
 with his bank and mixes it with his
 
 FUACTICE AND PLEADING. 
 
 &Ad 
 
 § 413. Efl'cct of receiver's discharge pending action. 
 
 Where the receiver is discharged pending an action against 
 him it is a bar to the fnrther prosecution of the suit, and should 
 be pleaded by the receiver as such bar ; and it seems that the de- 
 fense does not depend upon notice of the application for a dis- 
 charge being served upon plaintiff.* 
 
 § 414. Order of discharge. 
 
 In the order of sale the court has power to protect the interests 
 of all parties who have suits pending and undetermined at the 
 time of the receiver's discharge, and may order a sufficient sum 
 to be reserved from final distribution to pa}" the claims if estab- 
 lished, or may direct the sale to be made subject to such claims 
 and retain jurisdiction to compel the purchaser to satisfy them.^ 
 
 own money and afterwards draws out 
 some by checks generally, and in the 
 ordinary manner, the drawer of the 
 check must be taken to have drawn 
 out his own in preference to the trust 
 money. 
 
 I In Brown v. Oay, 76 Tex. 444, it 
 is held that where, pending suit for in- 
 juries against a receiver, he is dis- 
 charged, the suit as to him abates for 
 want of proper parties. Where the 
 receiver is discharged and the prop- 
 erty all turned over to the company 
 under the order of court this ends the 
 control of the court over the prop- 
 erty. The custody of the court went 
 with the discharge of the receiver. 
 
 Texas P. R. Co. v. JoJtnson, 76 Tex. 
 421. In this case it is also held that 
 when property is released from the 
 custody of the court it stands subject 
 to any claim or charge that may be 
 raised upon it. A suit for personal 
 injuries growmg out of the negligent 
 management of the receiver may be 
 maintained against the railroad com- 
 pany after the property is restored to 
 it, where the current earnings of the 
 road were used by the receiver in im- 
 proving it. 
 
 In Bond v. State, 68 Miss. 648, the 
 discbarge of the receiver was held to 
 be a bar to an action by the state tore- 
 cover a penalty for a failure to keep a 
 bulletin board showing the time of 
 arrival and departure of trains. In 
 such case the discharge does not abate 
 the suit, but it may be prosecuted 
 against his successor. 
 
 ^ In Schmid v. Neto York, L. E. & 
 W. R. Go. 33 Hun, 335, a similar doc- 
 trine is held, in which case the in- 
 debtedness of the receiver was de- 
 clared to be a lien upon the premises 
 sold prior to the mortgages. The 
 court say: " Certainly the receiver's 
 liability for killing plaintiff's intestate 
 was a liability which could be en- 
 forced against the receiver and the 
 property held by him. The plaintiff, 
 therefore, has a legal right, founded 
 upon some obligation of the promisee, 
 and she has a right to adopt and 
 claim the promise to have been made 
 for her benefit. She is not a mere 
 stranger." Cf. Vrooinany. 2'urner, 69 
 N. Y. 285. 
 
 In Farmers' Loan & T. Co. v. Cen- 
 tral R. Co. 17 Fed. Rep. 758, it is held 
 to be a proper exercise of chancery
 
 630 
 
 RECEIVERSHIPS. 
 
 §415. Conflicting claims; how deterniined. 
 
 Where a person claims a superior legal or equitable rio'ht to 
 the receivership property in the possession of the receiver, tiie 
 proper practice is for him to file a petition in oi'iginal action set- 
 tiuo- lip his rights and have them determined tlierein. An inde- 
 pendent suit is not proper. A court of equity, as seen elsewhere, 
 is not inclined to be drawn into a contest concerning purely legal 
 titles, and may direct an issne to be tried by a jury, or common- 
 law snit to be bronght for such purpose.' 
 
 power on surrendering the trust prop- 
 erty to the purchaser to retain juris- 
 diction of the original case and the 
 authority to enforce the payments of 
 the debt and liabilities incurred by the 
 receiver in the operation of the rail- 
 way. There was a condition in this 
 case in the order of confirmation that 
 the purchaser should pay all debts of 
 the receiver and all claims or liabili- 
 ties pending in the foreclosure case. 
 
 In Do/ois v.Duncan,lQ Fed. Rep.477, 
 it is held that after an order discharg- 
 ing the receiver and directing him to 
 turn over the property in his hands to 
 the defendant corporation, which was 
 done, the court could not, after the ad- 
 journment of the term at which the 
 order was made and entered of record, 
 change, modify, or expanil the decree 
 discharging the receiver and again ob- 
 tain jurisdiction over the property and 
 funds which it had, by its decree, 
 turned over. If, however, the decree 
 had provided that it should be subject 
 to the satisfaction of all claims arising 
 while the property was under the re- 
 ceiver's control, the court as a court of 
 equity, had a right to provide for the 
 payment of such claims and retain 
 jurisdiction of the cause to that ex- 
 tent. 
 
 In Brown v. Wabash R Co. 96 111. 
 297, the deed of sale provided " that 
 said estate and interest are liereby 
 charged with and shall pass by virtue 
 
 of these presents, subject to the pay- 
 ment of all liabilities incurred in re- 
 spect to the said railroad or its busi- 
 ness by the said receiver." It was 
 held that the grantee held the property 
 subject to the payment of such lia- 
 bilities as the receiver had incurred 
 while he had possession and control of 
 the road. Where personal injury is 
 suffered by reason of the negligent 
 management of the road by the re- 
 ceiver, the party injured, or his rep- 
 resentative, must first sue at law and 
 settle the receiver's liability and the 
 amount of damages, and then file a 
 bill in equity against the grantee com- 
 pany. 
 
 In Sloa7i v. Central Iowa R. Co. 63 
 Iowa, 728, a railroad was operated for 
 a time by a receiver and while in such 
 management a person suffered per- 
 sonal injuries and subsequently the 
 court ordered the railway to be turned 
 over to the defendant, upon the condi- 
 tion that it would assume and pay all 
 liabilities of the receivership. The 
 company accepted the property with 
 the conditions attached and was held 
 liable to the plaintiff for damage. la 
 this case the action was brought 
 against the railroad company. Under 
 such circumstances the company can- 
 not retain the property and repudiate 
 the conditions under which it is re- 
 ceived. 
 
 'In Van Rensselaer v. Emery, 9
 
 PRACTICE AND PLEADING. 
 
 G3i 
 
 § 416. Receiver's accounts. 
 
 The court appointing a receiver lias power to require him to 
 state his accounts whenever, and to sucli person, master, or 
 referee, as to the court shall seem proper. Such account should 
 be full, complete, and definite and under oath, and be accom- 
 paTiied by vouchers for all expenditures made.' 
 
 How. Pr. 135, where a receiver had 
 beau appointed in supplementary pro- 
 ceedings to enforce payment of a 
 judgment against partnership prop- 
 erty it is held that he ought not to be 
 made a party to an action and an in- 
 junction restraining him in the dis- 
 charge of his oiTicial trust, but the 
 proper practice in such case is, where 
 it is desired to restrain the receiver, to 
 apply to the court for instructions. 
 
 In Porter v. Kingman, 126 Mass. 
 141, it is held that the purchaser of an 
 estate subject to a mortgage given by 
 a former owner to a bank cannot 
 maintain a bill in equity against the 
 receivers of the bank for a cancelation 
 of the mortgage on the ground that it 
 was obtained by false and fraudulent 
 representations of the bank, but the 
 remedy in such case is for the pur- 
 chaser to proceed bj' a petition in the 
 cause in which the receivers were ap- 
 pointed. Equitable rights which are 
 contended as superior to the title of 
 the receiver cannot be set up in an in- 
 dependent suit. Re Day, 34 Wis. G38; 
 Robinson v. Atlantic tfe O. W. B. Co. 
 66 Pa. 160. 
 
 ' In Hayden v. Chicago Title & T. 
 Co. 55 III. App. 241, the same doctrine 
 is aflirmed by the court. Where the 
 accounts are not assented to, the gen- 
 eral rule requires that they should be 
 referred to a master. Cowdrey v. 
 Galveston, E. & II. B. Co. 1 Woods, 
 831 ; Iluling v. Farwell, 33 111. App. 238. 
 
 Without a reference, notice to the 
 parties interested to attend liefore the 
 master must be given. Acme Copying 
 
 Co. V. McLnre, 41 III. App. 397; 
 Strang v. Allen, 44 III. 428. 
 
 In nefi'ron v. Rice, 40 III. App. 244, 
 affirmed in 149111. 216, the court holds 
 that where accounts are presented 
 under decrees in equity a party must 
 swear peremptorily that he has paid 
 the money in question, a voucher 
 must be filed with the account, if 
 possible, and where there are no 
 vouchers a positive verified state- 
 ment should be filed showing to 
 whom, for what, and when such items 
 were paid. The burden of proving 
 improper conduct upon the part of 
 the receiver is upon the party alleging 
 the same, and if he does not support 
 his charges they must be dismissed at 
 his cost. On a reference before the 
 master the receiver may be required 
 to show fully how he kept his funds. 
 Hinckley v. Gilman, C. &8. B. Co. 100 
 U. S. 153, 25 L. ed. 591. 
 
 In England the master's report 
 upon a receiver's account did not re- 
 quire conflrmalion by the court, and 
 was not subject to exceptions. The 
 court would, upon petition of any 
 person aggrieved, review the general 
 principles of law on which the master 
 had proceeded in taking the receiver's 
 accounts, and which were alleged to 
 be erroneous, but the court would 
 not review questions of fact as to the 
 correctness or particular items in the 
 accounts, and tliis seems to be the rule 
 adopted in New York and United 
 States courts. Broicer v. Brower, 2 
 Edw. Ch. 621; Cowdrey v. Galveston, 
 II t(j //. B. Co. 1 Woods, 341.
 
 632 
 
 RECEIVERSHIPS. 
 
 § 417. Appeal by receiver. 
 
 Tlie receiver's ri<^ht to appeal in all matters relatincr to his 
 official conduct, his accounts and oi'dei-s of court relatiiii^ tliereto, 
 is well established. In such case he, in ellect, occupies the position 
 of a party to a suit.' 
 
 § 418. Deed by receiver. 
 
 The receiver's power to execute a deed convejirii^ property 
 
 The practice in Illinois, New Jer- 
 sey, Rhode Island, Alabama, Indiana, 
 Oregon, and other states conforms to 
 the Irish chancery practice by which 
 the courts will investigate the items 
 of the receiver's accounts. Woolsey v. 
 Cummings Car Works, 33 N. J. Eq. 
 432; Special Bank Comrs. v. Franklin 
 Inst, for Sav. 11 R. I. 557; Byon v. 
 Thomas, 104 Ind. 59; McOee v. Cow- 
 perthwaite, 10 Ala. 906; Hooper v. 
 Winston, 24111. 353; Martin v. Martin, 
 14 Or. 165. 
 
 The case of Ilcffron v. Rice, 40 111. 
 App. 244, wasatlirmed iu the supreme 
 court in 149 111. 216, where it was 
 held that if the receiver's account 
 consists of money items of payments 
 for some of which he took no receipts, 
 but books were kept in which all 
 payments were entered, and the pay- 
 ments were such as were incident to 
 the business he was engaged in, and 
 the proof showed that such items 
 were correctly copied from the books 
 kept by the receiver and his assistants 
 and the entries in the books were 
 correct, the court will be justified in 
 approving the account. It is also 
 held that it is the duty of the receiver 
 to make out and file with the court in 
 which he is appointed an inventory 
 of the property which passes through 
 his hands so that all creditors and 
 other persons interested may know 
 what is receivership property. 
 
 In People v. Columbia Car Spring 
 Co. 12 Hun. 585, it is held that be- 
 
 fore a referee is appointed to pass 
 upon the accounts of a receiver, the 
 receiver should present to and file 
 with the court a full and definite ac- 
 count, verified by his oath, itemizing 
 with particularity the various claims 
 made by him, and the reference 
 should relate specifically to the claims 
 therein made. This is necessary that 
 the parties affected by the claims of 
 the receiver may have an opportunity 
 to determine whether they are willing 
 to consent to the same without refer- 
 ence, and also to enable the court to 
 see more clearly the nature and extent 
 of the claim. 
 
 ' In How V. Jones, 60 Iowa, 70, it is 
 held that a receiver who is the mere 
 custodian cannot appeal from an 
 order directing him to turn over the 
 property in his hands. But if the 
 order erroneously fixes the amount of 
 the property he is entitled to appeal. 
 
 In Fe Guardian Sav. Inst. 78 N. Y. 
 408, the surety for a receiver in a 
 matter involving his accounts was 
 held to be entitled to an appeal. 
 
 In Akers v. Veal, 68 Ga. 302, the re- 
 ceiver was held not to be entitled to a 
 jury as passing upon his accounts, 
 but on objections filed by creditors 
 the proper practice is to refer the 
 matter to an auditor, and the receiver, 
 if not satisfied with the finding of 
 fact, may file exceptions to the audit- 
 or's report and may demand a jury 
 to pass upon such exceptions.
 
 PRACTICE AND PLEADING. 
 
 633 
 
 sold bj him under tlie order of court is implied from the direct 
 power given, bat his power to do so is not to be exercised until 
 the sale is reported to the court and has been confirmed.' 
 
 ' In Simmons v. Wood, 45 How. Pr. 
 262, it is held that no transfer of 
 the interest could be made by the re- 
 ceiver until his report was made and 
 an order of confirmation granted on 
 notice to the parties who had appeared 
 in the action. Any transfers before 
 such confirmation would be un- 
 authorized, and any payment by the 
 purchaser before such time would be 
 at the risk of the purchaser. 
 
 In Koontz v. Northern Bank, 83 U. 
 S. 16 Wall. 196, 21 L. ed. 465, it is held 
 
 that it issufficient if the purchaser from 
 a receiver see that there is a suit in 
 equity in which the receiver was ap- 
 pointed; that he was authorized to 
 sell the property; that a sale was 
 made under such authority and 
 confirmed by the court; and that the 
 deed accurately describes the property 
 or interest sold. The authority con- 
 ferred by the court to the receiver 
 carried with it authority to give to 
 the purchaser evidence of a transfer 
 of title.
 
 CHAPTER XXIII. 
 
 FORMS. 
 
 No. 1. Complaint for dissolution of copartnership. 
 
 2. " against insolvent corporation. 
 
 3. " allegation— Copartnership. 
 
 4. •' " — Foreclosure proceedings. 
 
 5. «' against corporation for fraud and accounting, 
 
 6. Affidavit for appointment in foreclosure. 
 
 7. " for appointment, general. 
 
 8. Notice 
 
 9. Order appointing receiver general. 
 
 10. " " " — Manufacturing corporation, 
 
 11. " " " — Railroad foreclosure. 
 
 12. " " " " " Short form. 
 
 13. " " " " " Trustees. 
 
 14. '• " " — Partnership, 
 
 15. " " " — Joint business. 
 
 16. " " " to manage mine. 
 
 17. " " " because of misconduct of corporate officers. 
 
 18. " " " of specific personal property. 
 
 19. " " " without prejudice to encumbrancers. 
 
 20. " " " of rents and profits. 
 
 21. "to show cause why not appointed. 
 
 22. Bond of receiver. 
 
 23. " " " Another form. 
 
 24. " " " Short form. 
 
 25. Assignment to receiver. 
 
 26. Notice by receiver to creditors and debtors of appointment. 
 
 27. Order on creditors to exhibit claims. 
 
 28. " appointing special commissioner to report claims. 
 
 29. " " commissioner or referee to report claims. 
 
 30. " to pay claims accruing prior to appointment. 
 
 31. " requiring defendant to turn over books, etc. 
 
 32. Petition by receiver to compel delivery of assets. 
 
 33. Affidavit for motion to compel tenants to pay. 
 
 34. " for order to stay actions. 
 
 35. Petition by receiver for leave to defend. 
 
 36. " by " " "to settle traffic balances. 
 
 37. Order to " to settle traffic balances. 
 
 38. " " pay rent. 
 
 39. Petition by receiver for leave to sell. 
 
 40. Order to " to sell 
 
 41. " for sale of perishable property. 
 
 42. " confirming sale. 
 
 634
 
 FORMS. 635 
 
 43. Petition for order on purchaser to complete purchase. 
 
 44. Order " " " " «♦ 
 
 45. Petition for leave to employ counsel. 
 
 46. Order granting " " " " 
 
 47. Petition for leave to pay claims. 
 
 48. Notice for instructions to receiver. 
 
 49. Petition " " " " to pay. 
 
 50. " " " " " " surrender, etc. 
 
 51. Notice of petition for leave to distribute. 
 
 52. Petition of receiver for leave to account and be discharged. 
 
 53. Receiver's account. 
 
 54. " " — Objections to. 
 
 55. Notice of motion for revocation of appointment. 
 
 56. Order discharging receiver. 
 
 57. " removing and appointing substitute. 
 
 58. Notice of motion to discharge. 
 
 59. Order to show cause why should not be discharged. 
 
 60. Notice of motion for discharge. 
 
 61. Order on receiver to pay over funds to successor. 
 
 62. Affidavit to show cause in contempt proceedings. 
 
 63. " " continue actions against receiver. 
 
 64. Petition of receiver to be substituted in action. 
 
 65. Order on sheriff to withdraw levy. 
 
 66. Order to receiver to sue. 
 
 67. Complaint on receiver's bond by creditor. 
 
 68. Declaration on as.sessment — National bank. 
 
 69. " " promissory note — " 
 
 70. Petition of receiver of national bank to compromise. 
 
 71. Order on " " " " " 
 
 Tlie following forms for use in receivership cases are inserted 
 in response to what lias seemed to be a general demand of the bar 
 and particularly the young and inexperienced practitioner, to 
 whom they will probably be found of most use. It will be need- 
 less to say, however, as may be said of all forms, that they are of 
 necessity general, and not to be followed implicitly in any case, 
 but used merely as guides or suggestions. They must be made 
 to conform, not only to the usage and practice of each particular 
 state, but to the facts and circumstances of eacli particidar case 
 or class of cases. 
 
 A number of the forms herein are taken by permission of the 
 publishers, Messrs. Anderson & Co., from Loveland's Forms of 
 Federal Procedure and Thornton's Indiana Practice, Volume II. 
 The latter is particularly adapted to the code practice in Indiana 
 and other code states.
 
 636 RECEIVERSHIPS. 
 
 We also append liereto for reference a list of works containing 
 approved forms in receivership matters for use in New York and 
 other states, valuable to those having access thereto. 
 
 Approved "Works on Forms. 
 
 Abbott's Principles and Forms of Practice, vol. II., p. Ill 
 et seq. (New York). 
 
 Barbour's Chancery Practice. 
 
 Curtis's Equity Precedents, p. 442 et seq. 
 
 Daniell's Chancery Forms, pp. 884-907. 
 
 Lansing's Forms of Civil Procedure, 
 
 Loveland's Forms of Federal Procedure, p. 223 et seq. 
 
 Lesea's Forms & Precedents. Canadian. 
 
 Seton's Forms of Judgments, chap. 32. English. 
 
 Thornton's Indiana Practice, vol. II., p. 1384 et seq. 
 
 Wilcox's Forms. 
 
 Wild's Journal of Entries. Ohio. 
 
 No. 1. 
 
 COMPLAINT FOR THE DISSOLUTION OF A PAET. 
 NERSHIP AND FOP A RECEIYEK' 
 
 (Caption.) 
 
 {Commencement.) That on or about the — day of , 189-, 
 
 plaintiff and defendant, by a contract of copartnership of that 
 date, duly entered into, agreed to become partners for the pur- 
 pose of carrying on a business in the city of for a 
 
 period of years from the date thereof, under the name and 
 
 style of , and to be equally interested in the profits and 
 
 equally liable for the losses of said partnership ; and the plaintiff 
 files herewitli, as part hereof, a copy of their said contract of 
 copartnership, marked " Exhibit A." 
 
 That by said contract, it was, among other things, agreed that, 
 should either of the partners use tlie partnership property except 
 for the purposes of the partnership, or wilfully neglect or refuse 
 to keep just and proper accounts of its business, the other or 
 others of the partners should be at liberty at once to dissolve said 
 partnership, by giving to the partner or partners so offending a 
 
 ' See ante, chap. XV.
 
 FORMS. 637 
 
 notice in writing, declaring said partnership to be dissolved and 
 determined, (if not part of express contract hut of implied 
 contract^ so state.) 
 
 That under and bj virtue of the said contract the plaintiff and 
 the said defendant, as partners, have carried on the said business 
 in the said city of for the period tjf years. 
 
 That the said defendant has excluded the plaintiff from all share 
 in and control over the partnership affairs, and absolutely refused 
 to permit him to inspect the books of account of the partnership, 
 and is now engaged in sending parcels of partnership goods to be 
 auctioned, where they have been sold, and are now selling, at a 
 great sacrifice ; and are collecting debts due to said firm, and in 
 man}^ cases where those debts are not yet due and payable, have 
 compounded with the debtors by allowing them very great dis- 
 counts for prompt payment thereof, {Here set forth as particu- 
 larly any other grounds of violation of the partner slvip contract 
 or partnership duty., and conclude .*) 
 
 Wherefore the pl^.intiff prays that a receiver may be appointed 
 to take charge of all the partnership books and papers, accounts, 
 goods and effects, and to collect the debts due thereto, and to 
 preserve or dispose of the same under the direction of this court. 
 {Add tisual and necessary prayer as in other cases, post, Form 
 No. 3, and for injunction, if desired.) 
 
 No. 2. 
 
 COMPLAINT AGAINST INSOLVENT CORPOKATIOK' 
 
 (Adapted to Code practice.) 
 
 (Caption.) 
 
 Plaintiff complains of the defendant and alleges : 
 
 That the defendant, the Company, is, and for more than 
 
 before the recovery of the judgment hereinafter mentioned 
 
 was, a corporation duly organized and existing under the laws of 
 this state, and its general business is transacted and its principal 
 oflSce is, and was at the time of the commencement of this action, 
 
 located in the city of , county of , and state of . 
 
 That on the day of , 189-, this plaintiff recovered a 
 
 judgment against the defendant in the court of this state for 
 
 "the sum of dollars and cents, and costs of suit. 
 
 ' The statutory requirements for proceedings of this nature must be strictly 
 followed. See anie, chap. XII. 
 See Thornton's Indiana Practice.
 
 038 RECEIVERSHIPS. 
 
 That an execution against the defendant was duly issued on 
 
 said judgment to tlie slierifl: of tlie county of , on the — 
 
 (Jay 'of ^- 189-, and that said execution has been returned 
 
 wholly unsatisfied. _ « 
 
 Tiiat the said judgment and the claim therefor remain wholly 
 un]iaid. 
 
 That the said defendant is, as the plaintiff is informed and be- 
 lieves, insolvent, and owes a large amount of indebtedness and 
 claims which it is unable to pay. {State the facts constituting 
 insolvency.^ 
 
 Wherefore plaintiff demands judgment : 
 
 That the property of the defendant corporation be sequestered 
 and distributed. 
 
 That the proceeds thereof be justly and fairly distri])uted 
 among the creditors of the defendant, including the plaintiff", in 
 the order and in the proportions prescribed by law in the case of 
 a voluntary dissolution of a corporation. 
 
 That a receiver of the property and effects of the defendant 
 corporation may be appointed, pursuant to law, with the usual 
 powers and authority conferred upon receivers in such cases. 
 
 And tliat the plaintiff have such other and further relief in the 
 premises as may be just. 
 
 No. 3. 
 
 ALLEGATION OF BILL OR COMPLAINT FOR RE- 
 CEIVER OF PARTNERSHIP PROPERTY. 
 
 That in pursuance of said partnership agreement they pur- 
 chased a stock of of the value of dollars, established 
 
 and opened a store in said city, and have maintained the 
 
 same hitherto. 
 
 That plaintiff and defendant no longer desire to maintain said 
 copartnership, and have dissolved the same, but are unable to 
 agree upon a division of the stock of goods, wares and merchan- 
 dise now on hand. 
 
 {Or), that the defendant, not regarding his duties as a 
 member of said partnership, has converted to his own personal 
 use and benefit a large amount of the partnership accounts, to 
 
 wit, dollars, and has refused and still refuses to account for 
 
 the same, although the plaintiff" has requested him so to do. 
 
 {Or, here set forth any other ground for which a receiver may 
 he appointed as shown in chap. XI. and conclude:) 
 
 Wherefore plaintiff prays that a receiver may be appointed to 
 take charge of and sell said stock of goods, wares and merchan- 
 dise (and "a decree dissolving said partnership).
 
 FORMS. 639 
 
 If it is desired to have the receiver continue the business as a 
 goins: concern it is well to emhodj it in the prayer and also show, 
 in partnership cases, the necessity for so doing. 
 
 No. 4. 
 
 ALLEGATION'S OF BILL OR COMPLAINT IN FORE- 
 CLOSURE PROCEEDINGS.' 
 
 That the mortgaged premises, upon a sale thereof at public auc- 
 tion, cannot bring sufficient to satisfy the debt due the plaintiff 
 with interest, costs, premiums of insurance, and arrears of taxes, 
 as more fully appears by the affidavits of annexed. 
 
 {Oi\ that said above-described premises are an inadequate security 
 for the payment of the said mortgage indebtedness, interest, costs 
 and advancements and that said inadequacy exists by reason of 
 
 waste committed by said mortgagor (or grantee) in this ( ) ; or 
 
 by reason of destruction or injury of the buildings on said prem- 
 ises by fire ; or depreciation in the market and rental value of said 
 premises.) 
 
 That said premises at the commencement of this action were, 
 and ever since have been, in the possession of the defendant 
 
 ( ), above named, under the conveyance above stated, and that 
 
 all persons in possession of said premises, as tenants or otherwise, 
 at the time when this action was commenced, are defendants 
 herein. 
 
 That the said , who is now primarily liable for the debt 
 
 secured by mortgage, as well as the defendant , the mort- 
 gagor and obligor in said bond, are both pecuniarily irresponsible 
 and unable to pay the probable deficiency on the sale of the 
 mortgaged premises, as appears by the afiidavit of an- 
 nexed. 
 
 {Or, that said mortgagor and are each insolvent and 
 
 unable to pay any deficiency that may be rendered against them ; 
 that judgments have been rendered against them, and executions 
 have been issued thereon and returned unsatisfied in whole or in 
 part and still remain unsatisfied ; or that they own no real or per- 
 sonal property liable to execution ; or any other fact showing in- 
 solvency or inability to pay a deficiency judgment.) 
 
 That the said premises are occupied for the purpose of , 
 
 and that the entire rentals and income therefrom, as your peti- 
 tioner is infoi'med and believes, amount to the sum of dol- 
 lars annuall}^ and no more. 
 
 ' See ante, chap. X.
 
 640 RECEIVERSHIPS. 
 
 No. 5. 
 
 COMPLAINT BY CREDITOR AGAINST CORPORA- 
 TION FOR AN ACCOUNT, AND TO SET ASIDE 
 A FRAUDULENT JUDGMENT, AND FOR A RE- 
 CEIVER. 
 
 (Adapted to Code practice.) 
 (Caption.) 
 
 {Commencement.) That the {nam,e of corporatiori) is a corpo- 
 tion duly organized under the general laws of the state of 
 
 for the purpose of carrying on the business of in said state. 
 
 That at the , 189-, terra of the court of the state of 
 
 , the plaintiff recovered a judgment against said corporation 
 
 for the sum of % , which judgment still remains in full force 
 
 and unpaid. 
 
 That on the day of , 189-, an execution was duly 
 
 issued out of said court against said defendant, and delivered to 
 
 the sheriff of county, of the state of , commanding him 
 
 to levy the same upon the goods and chattels of said corporation 
 and for want thereof upon the lands and tenements of the same, 
 
 which execution on the day of , 189-, was returned 
 
 wholly unsatisfied. ( Yary to suit form of execution in state 
 where used.) 
 
 That the defendants are directors of said corporation, and on 
 
 the day of , 189-, suffered judgment to be recovered 
 
 against said corporation for f in favor of {Allege jparticularly 
 
 t'he judgment and the facts which are claim^ed in rendering it 
 fraudulent. Or state any other ground which is a sujficient 
 basis for the action.) 
 
 That said corporation is insolvent, and entirely unable to pay 
 its debts {or other statutory grounds). 
 
 That there is now due from the defendant to the plaintiff on 
 
 liis said judgment the sum of $ , with interest from the 
 
 day of - — \ 189-. 
 
 Plaintiff therefore prays and asks that said directors be required 
 to account for the funds and property of said corporation com- 
 mitted to their charge, and for all corporate property acquired by 
 themselves or lost by a violation or neglect of their duty as di- 
 rectors, and that they be required to pay all sums of money found 
 due from them ; that a receiver may be appointed to take charge 
 of the property and effects of said corporation, and that said de- 
 fendants may be enjoined from transferring any of the property 
 or effects of said corporation until the further order of this court; 
 and that upon the final hearing the said judgment be set aside.
 
 FORMS. 641 
 
 and the property sold, and the proceeds thereof appHed to the 
 payment of the plaintiif's judfyinent ; and for such other and 
 further relief as justice and equity may require. 
 
 No. 6. 
 
 AFFIDAVIT FOR APPOINTMENT OF RECEIYER IN 
 FORECLOSURE PROCEEDINGS.^ 
 
 (Title of Court and Action.) 
 
 , beino; duly sworn on oath, says : 
 
 That he is the (plaintiff) in the above-entitled action ; that this 
 action is brought for the foreclosure of a mortgage executed by 
 the defendant to secure the payment of the sura of dol- 
 lars with interest, dated the day of and duly recorded 
 
 on the day of , in the oliice of the Recorder of Deeds 
 
 of said county upon the premises therein described as fol- 
 lows, to wit : said indebtedness being evidenced by a promissory 
 
 note with interest at the rate of ; that there is now due and 
 
 nnjiaid upon said note and mortgage now owned by the said 
 plaintiff the sum of dollars principal, and dollars inter- 
 est thereon ; that the plaintiff, in order to preserve the lien of 
 his mortgage and under the terms and conditions thereof, has ad- 
 vanced the sum of dollars as premiums for insurance upon 
 
 the buildings on said ^^remises ; that tiie defendants have failed 
 
 to pay the taxes assessed on the said premises for the year of , 
 
 amounting to the sum of dollars and that the plaintiff has paid 
 
 the said taxes pursuant to the terras and conditions of said mort- 
 gage; that the said mortgaged premises are an inadequate security 
 for the payment of the amount due upon said mortgage, ])riiicipal 
 and interest, and the advanceiTents made by plaintiff for insurance 
 and taxes as above stated; that such inadequacy is caused by 
 {State whatever the grounds of inadequacy are, such as waste, de- 
 crease of market and rental value, or otherwise) that the said 
 mortgagor {and other persons liallefor the ijayment of the mort- 
 gage debt ) is insolvent, having no property liable to execution 
 (that judgments have been rendered against said mortgagor and 
 executions returned thereon no property found) that said prem- 
 ises, at the time of the commencement of these proceedings, were 
 
 and are now in the possession of , defendant herein, who claims 
 
 to own the same as ])urchaser thereof from the said mortgagor 
 
 nnder a deed of conveyance thereof bearing date the day of 
 
 , but which conveyance is subject to the mortgage sought to 
 
 'See ante, chap. X. 
 41
 
 642 RECEIVERSHIPS. 
 
 be foreclosed herein ; that the rental value of said premises will 
 
 not exceed the sum of dollars per annum. (7/^ the mortgage 
 
 contains a grant of the rents and profits of the mortgaged prein- 
 ises state the sa^ne fully and particularly, and if there is a clause 
 therein providing for the apjwintment of a receiver, set out such 
 clause hi the coords of the mortgage and the defaults upon which 
 the appointment hy the terms of the mortgage is to he hased.) 
 
 No. 7. 
 
 AFFIDAVIT FOR APPOINTMENT OF RECEIVER IN 
 A JUDGMENT CREDITOR'S ACTION TO SEQUES- 
 TRATE CORPORATE PROPERTY.' 
 
 (Adapted to Code practice.) 
 (Caption.) 
 
 , being duly sworn, says : 
 
 That he is the plaintiff's attorney herein. 
 
 {State grounds, as thus:) That judgments have been entered 
 acjainst tlie defendant in various actions brought against it in this 
 and other courts ; that in some of said actions executions have 
 been issued ; that other suits are pending on simple contract debts 
 and on claims for damages to a large amount, and also an action 
 for the foreclosure of a mortgage made by the defendant to the 
 Company in trust. 
 
 That the defendant is insolvent and unable to pay its debts, and 
 that if a receiver is not appointed at a very early date there is 
 danger that some of the creditors of the defendant may obtain an 
 undue preference. 
 
 That for these reasons an order to show cause is desired and 
 that no previous application has been made for such an order. 
 
 No. 8. 
 
 NOTICE OF APPLICATION FOR THE APPOINTMENT 
 OF A RECEIVER.^ 
 
 (Caption.) 
 
 To : 
 
 The defendant in the above-entitled cause is hereby notified 
 
 that on the day of , 189—, at o'clock in the 
 
 noon, or as soon thereafter as counsel can be heard, the plaintiff 
 
 'See ante, chap. IX. 
 
 'See ante, chap. I. ; also § 374.
 
 FORMS. 643 
 
 will, at the court-honse {or the judge's chambers) in the city of 
 
 , in said county, make application to the Honorable (one 
 
 of the judges, or the judge of the Court), for the appointment 
 
 of a receiver in said cause, to take charge of and sell the property 
 in controversy. {Or state for what j^'^^'^pose a receiver is to he 
 asked.) 
 
 {If the application is hased on hill or petition filed, so state / if 
 upon affidavits, serve copies of same if the ■p>'^<^Gtice or rules of 
 court so require. If the notice is to refer the cause to a master in 
 chancery or referee to hear the application, take evidence, and 
 report his conclusions. Yary notice to correspond^ 
 
 Dated this , 189—. 
 
 Attorney for PIff. 
 
 I hereby acknowledge service of the above notice this — — day 
 of , 189—. 
 
 No. 9. 
 ORDER APPOmTING RECEIVER.* (General Form.) 
 (Title.) 
 
 Come now the parties, and upon reading and filing the affida- 
 vit of , verified tlie day of , 189 — {or, after hear- 
 ing the evidence of said parties), whereby it satisfactorily appears 
 to the court that {briefly indicating the facts estahlished) and on 
 
 reading and filing proof of due notice to the defendant, , of 
 
 this motion, and after hearing argument of counsel for plaintiff, 
 
 and , of counsel {or, and no one appearing) for the defendant 
 
 in opposition, and the court being fully advised in the premises, 
 
 no\v', on motion of , attorney for j)laintilf, which motion the 
 
 court now finds should be sustained : 
 
 It is ordered and decreed that be, and hereby is, appointed 
 
 receiver of {clearly designating the property) with the usual pow- 
 ers pending this action {or specify powers). 
 
 That before entering upon the duties of his trust the said re- 
 ceiver execute to , and file with the clerk of this court, a bond 
 
 with sufficient sureties to be approved by this court {or the 
 
 clerk if the statute permits or the court so directs) for the faitbful 
 discharge of his duties as receiver, and take an oatli to faitli fully 
 perform his duties as such receiver. 
 
 'See ante, chap. XL, § 22; also § 381.
 
 644 KECEIVERSIIIPS. 
 
 No. 10. 
 
 ORDEK APPOINTING KECEIVER FOR A MANUFAC- 
 TURING CORPORATION.* 
 
 (Caption.) 
 
 Upon readiiio; and filincj the verified bill of complaint in this 
 
 cause, together with the verified affidavits of and , and 
 
 the exhibits in support thereof, and on motion of the counsel for 
 plaintiff and counsel for defendant appearing and consenting 
 
 thereto, it is ordered by the court that , of , in the state 
 
 of , and , of , in the state of , be and they are 
 
 hereby appointed receivers of this court of all and singular the 
 
 property of the Company of every description, and all money, 
 
 claims in actions, credits, bonds, stocks, leasehold interests or oper- 
 ating contracts, and other assets of every kind, and all other prop- 
 erty, real, personal or mixed, held or possessed by said company, 
 to have and to hold the same as ofiicers of and under the orders 
 and directions of this court. 
 
 The said receivers are hereby authorized and directed to take 
 immediate possession of all and singular the property above de- 
 scribed, and to continue the business of said company, until the 
 further order of court. 
 
 Each and every of the ofiicers, directors, agents, and employees 
 of said Company are hereby required and commanded forth- 
 with, upon demand of the said receivers, to turn over and deliver 
 to such receivers any books, papers, moneys, deeds, property, 
 or vouchers for the property, under their control. 
 
 The said Company and its officers are hereby directed im- 
 mediately to execute and deliver to the said receivers deeds of all 
 real estate now owned or possessed by said company, and trans- 
 fers and assignments of all their property. 
 
 Said receivers are hereby fully authorized to institute and pros- 
 ecute all such suits as they may deem necessary, and to defend 
 all such actions instituted against them as such receivers, and also 
 to appear in and conduct the prosecution or defense of any suits 
 against the Company. 
 
 The said receivers are hereby authorized and directed out of 
 the moneys coming into their hands to pay and discharge all 
 amounts due to employees upon the current pay-roll. 
 
 Each of said receivers is required to file with the clerk of the 
 court within ten days from date a j)roper bond with sureties to be 
 
 approved by the clerk of this court, in the penal sum of 
 
 dollars. 
 
 ' See ante, chap. II., § 22; also § 381.
 
 FORMS. C45 
 
 All creditors of said Company are hereby enjoined from 
 
 in any way internieddlino; witli the property hereby directed to 
 be tnrned over to said receivers; and all officers, directors, and 
 ai^ents of said Company are hereby enjoined from interfer- 
 ing^ with or disposing of said property of said Company in 
 
 any way, except to transfer, convey, and turn over the same to 
 said receivers. 
 
 Judffe. 
 
 No. 11. 
 
 OKDER FOR APPOmTMENT OF RECEIVER IN RAIL- 
 ROAD FORECLOSURE WITH FULL GENERAL 
 POWERS.' 
 
 (Title.) 
 
 {^Recite hearing of court and findings^ It is ordered and 
 
 decreed that be and he is hereby appointed receiver of all 
 
 and singular the property and franchises of the said defendant 
 mentioned and described in the complaint in this action, and all 
 and singular the appurtenances in any wise thereto appertaining, 
 and of all record books, papers and accounts of the said company 
 in any wise appertaining to the business thereof, and necessary to 
 enable him to properly and efficiently perform the duties imposed 
 upon him by this order. 
 
 That he give a bond for the faithful performance of his duties 
 as receiver in the premises in the sum of dollars, with sure- 
 ties (jointly and severally bound), to be approved (as to form and 
 sufficiency) by this court, and that on the hling of such bond he 
 enter forthwith upon the performance of his duties as such re- 
 ceiver. 
 
 And it is further ordered and decreed that as soon as may be 
 after he shall have entered upon the performance of his duties 
 the said receivei" shall make and file with the clerk of this court 
 a true, full and complete inventory of all and singular the prop- 
 erty of the said comjiany, real, personal and mixed, of all which 
 he is appointed receiver. 
 
 The said receiver shall continue the operation of the said road 
 in the ordinary and usual course as the same is now operated in 
 the common carriage of freight and passengers, liaving due regard 
 to the public interest and the accommodation of the public, and 
 keeping the premises and property, both real and personal, in 
 
 •See aide, chap. II., ^ 22; also, chap. XIV".; also, chap. XXII., § 381.
 
 G46 RECEIVERSHIPS. 
 
 good condition and repair, to the end that the said road may be 
 ethciently operated with safety and convenience to the pubhc. 
 To the same end lie shall, from time to time, employ and dis- 
 charge all needful laborers, servants and agents, and purchase and 
 pay for all such needful material and supplies as may seem to him 
 necessary and proper in the exercise of a sound discretion, vs^ith 
 leave to apply to the court from time to time as he may be advised 
 for directions in the pi'emises. He shall settle and adjust, accord- 
 ing to usage and the usual course of business, all outstanding 
 traffic balances with other railroads, and like balances from time 
 to time as may arisCi And he shall have power to make all usual, 
 necessary and proper arrangements for the interchange of busi- 
 ness in the way of traffic arrangements. And he shall have 
 power generally to do and perform all things usual and proper 
 according to the rules and usages of good railroad management, 
 to increase the business of said railroad, and promote the con- 
 venience of the public. 
 
 He shall have power to prosecute and defend, without the 
 further order of this court, all existing actions by or against said 
 company, and to pay and defray the usual and ordinary expenses 
 incident thereto. He shall have power to commence and prose- 
 cute any actions which in the usual course of business he may 
 deem it proper and necessary to commence thereafter, either in 
 the name of the said company or in his own name as such receiver, 
 as he may be advised. lie shall have full power to defend any 
 and all suits that may hereafter be brought against the said com- 
 pany or against himself as such receiver (by the permission of 
 this court), and to defray the necessary and proper expense of 
 such prosecution and defenses. Pie shall do whatever may be 
 needful to maintain and preserve the corporate organization and 
 franchises of the said company till final judgment in this action, 
 and to defray the necessary and proper expenses incident thereto, 
 and in all and singular the premises he shall be subject to such 
 orders and directions as this court may from time to time make, 
 and he is authorized to apply from time to time for such orders 
 and directions as he may be advised. 
 
 As soon as may be reasonably done, after he sliall have entered 
 upon the performance of his duties, the said receiver shall pay 
 and discharge all debts due from said company to laborers, 
 servants, agents and employees of all kinds for services rendered 
 in and about the operation of the railroads of the said company, 
 and in and about the conduct and management of its lawful busi- 
 ness. Such payments shall not embrace debts due more than 
 four months prior to the entry of this order without the further 
 order of this court in the premises. 
 
 He shall in like manner ascertain the amount due by the said 
 company, and un2)aid, for current materials and supplies pur-
 
 FORMS. 647 
 
 chased for the use and operation of the railroads of the said com- 
 pany within months prior to the entry of this order, and he 
 
 sliall pay the amount found to be jnstly due, but he shall not 
 have power to pay such debts of longer standing without the fur- 
 ther order of this court. 
 
 He shall have power to redeem any and all securities of the 
 compan}'-, now pledged as security for loans of money, and if 
 needful shall have power to borrow money for this purpose, and 
 he shall also have power to borrow money if needful, in his judg- 
 ment, in order to comply with the directions contained in this 
 order, and so far as may be needful to pay for current necessities 
 for labor, and for no other pui-pose without the order of this 
 court. 
 
 The receiver shall keep a full, true and particular account of 
 all his acts and doings as such, of all the property, rents, revenues, 
 and incomes, and of all his payments and disbursements in the 
 performance of the duties imposed by this order. And he shall 
 once in every three months, and oftener if required, render to 
 this court, and file with the clerk thereof, a true, full and particu- 
 lar account of all his receipts and disbursements in the premises. 
 He shall keep all balances of moneys in his hands on deposit in 
 some bank of approved credit subject to his order, and he- shall 
 not pay out, but safely keep subject to the further order of this 
 court, all such moneys, except in so far as payment and dis- 
 bursements are authorized by the terms of this order. The 
 premises considered, it is further ordered that the said defendant, 
 the Company, be and the said company is hereby com- 
 manded and strictly enjoined not to pay, or cause or permit to be 
 paid, any interest upon any of the mortgage bonds of the said 
 company until the further order of this court in the premises. 
 
 And the said company, and each and all of the officers and 
 agents thereof, are also strictly cominanded and enjoined to deliver 
 up and render to the said receiver, when he. sliall have become 
 qualified according to the terms of this order to enter upon his 
 duties as receiver, all and singular the premises whereof he is 
 thereby appointed receiver; and it is further ordered that each of 
 the said defendant trustees respectively of the mortgages referred 
 to in this action be, and they hereby are, severally and respectively 
 restrained and enjoined from commencing or prosecuting, or 
 causing or permitting to be commenced or prosecuted, any action 
 against the said company, or in any wise affecting the property 
 thereof, and from in any wise interfering with the said company 
 or the property thereof as such trustees without the further order 
 of this court.
 
 648 KECEIVERSHIPS. 
 
 No. 12. 
 
 SHORT FORM OF 
 ORDER APPOINTING RECEIVER FOR A RAILWAY.' 
 
 (Caption.) 
 
 Upon reading and considering the verified bill in this cause, 
 together with the evidence adduced, on motion of counsel for the 
 plaintiff, the defendant having been duly notified to appear by its 
 
 counsel, it is ordered by the court that be and is hereby 
 
 appointed receiver of this court of all and singular the property, 
 
 assets, rights, and franchises of the Railway Company 
 
 described in the bill of complaint herein, wherever situated, in- 
 cluding all the railroad tracks, terminal facilities, real estate, ware- 
 houses, offices, stations, and all other buildings and property of 
 every kind owned, held, possessed, or controlled by said company, 
 together with all other property in connection therewith, and all 
 moneys, choses in action, credits, bonds, stocks, leasehold interests, 
 operating conti'acts, and other assets of every kind, and all other 
 property, real, personal, and mixed, held or possessed by it, to 
 have and to hold the same as the officer of and under the orders 
 and directions of the court. 
 
 The said receiver is hereby authorized and directed to take 
 immediate possession of all and singular the property above de- 
 scribed, wherever situate or found, and to continue the operation 
 of the railroad of the said company, and to conduct systematically, 
 in the same manner as at present, the business and occupation of 
 carrying passengers and freight, and the discharge of all duties 
 obligatory on said company. 
 
 And said Railroad Company, and each and every of its 
 
 officers, directors, agents and employees are hereby required and 
 commanded forthwith to turn over and deliver to such receiver, 
 or his duly constituted representative, any and all books of ac- 
 counts, vouchers, papers, deeds, leases, contracts, bills, notes, 
 accounts, money or other property in his or their hands or under 
 his or their control, and they are hereby commanded and required 
 to obey and conform to such orders as may be given them from 
 time to time by said receiver, or his duly constituted representa- 
 tive, in conducting the said railway and business, and in discharg- 
 ing his duty as said receiver. And they and each of them are 
 hereby enjoined from interfering in any way whatever with the 
 possession or management of any part of the business or property 
 
 ' See ante, chap. II., § 22; chap. XIV.; chap. XXII., § 381. 
 Foster's Federal Practice.
 
 FOPtMS. 6i9 
 
 over which said receiver is so appointed, or from in any wav pre- 
 venting or seekino- to prevent the discharge of his duties a's such 
 receiver. Said receiver is hereby fully authorized to continue 
 the business and operate the railway of said company, and 
 manage all its property at his discretion in such manner as will, 
 in his judgment, produce the most satisfactory results consistent 
 with the discharge of the public duties imposed on said company, 
 and to collect and receive all income therefrom and all debts due 
 said company of every kind, and for such purpose he is hereby 
 invested with full power at his discretion to employ and discharge 
 and fix the compensation of all sucli officers, counsel, managers, 
 agents and employees as may be required for the proper dis- 
 charge of the duties of his trust. 
 
 And said receiver is directed to deposit the moneys coming into 
 
 his hands in some bank or banks in the city of , , and 
 
 to report his selection to the court. 
 
 Said receiver is hereljy fully authorized and empowered to 
 institute and prosecute all such suits as may be necessary, in his 
 judgment, to the proper protection of the property and trust 
 hereby vested in him, and likewise defend all actions instituted 
 against him as receiver, and also to appear in and conduct the 
 prosecution or defense of any or all suits or proceedings now 
 pending in any court against said company, the prosecution or 
 defense of which will, in the judgment of said receiver, be neces- 
 sary and proper for the protection of the property and rights 
 placed in his charge, and for the interest of the creditors and 
 stockholders of said company said receiver is hereby required 
 to give bond in the sum of one hundred thousand dollars 
 ($100,000) with security satisfactory to this court, for the faithful 
 discharge of his duties, and is also required to make and file full 
 reports in this court quarterly. 
 
 And the court reserves the right by orders hereinafter to be 
 made, to direct and control the payment for all supplies, materials, 
 and other claims, and to in all respects regulate and control the 
 conduct of said receiver. 
 
 Judge. 
 
 And tliereupon came in open court said , and accepted such 
 
 appointment, and was thereupon duly sworn according to law, 
 
 and tendered his Ijond as recpiired by said order, with and 
 
 as sureties therein, which bond is hereby approved and 
 
 accepted.
 
 650 RECEIVERSHIPS. 
 
 No. 13. 
 
 ORDER APPOINTING RECEIVER ON FORECLOSURE 
 BY THE TRUSTEES OF A CORPORATION MORT- 
 GAGE FOR THE BENEFIT OF BONDHOLDERS.' 
 
 (Title.) 
 
 Upon reading and filino; the verified complaint (or bill of com- 
 plaint) herein, and the affidavit of , verified , 18D-, and 
 
 tlie afildavit of , verified 189-, and it appearincr that 
 
 by an order of this conrt entered herein on the day of 
 
 189-, to show cause why a receiver of all the premises and 
 
 property described in the complaint should not be appointed, with 
 the usual powers of receivers in such cases, and with all the 
 powers provided for in the indentures of mortgage set forth in 
 the complaint, and why the plaintiff should not have other or 
 further relief in the premises as may be just ; togetlier with due 
 proof of tlie service of the summons in this action and said com- 
 plaint, affidavit and order, to show cause, upon the said defendant. 
 
 And after hearing , Esq., of counsel for the phiintiff, and 
 
 , Esq., on behalf of the defendant in opposition, and on 
 
 motion of , attorney for plaintiff, for a receiver herein, which 
 
 motion the court now finds should be granted, 
 
 It is ordered and adjudged that be appointed receiver of 
 
 all the premises and property described in the complaint, (or bill) 
 with the usual powers of receivers in such cases, and with all the 
 powers provided for in the mortgage or deed of trust set forth in 
 the complaint, the property described in said mortgage embracing 
 all the property, both real and personal, and all the goods and 
 chattels, franchises, privileges, rights and liberties to the Com- 
 pany, in any wise appertaining or belonging, or which it may here- 
 after acquire or in any way become entitled to, together with all and 
 singular tlie tenements, hereditaments and appurtenances there- 
 unto belonging or in any wise appertaining, and the reversions, 
 remainders, rents, issues and profits thereof, and also the estate, 
 riglit, title, interest, property, possession, claim, and demand 
 
 whatsoever, as well in law as in equity, of the said Company, 
 
 of, in and to the same, and any and every part thereof, with the 
 appurtenances. 
 
 'See ante, chap. II., § 22; chap. XII.; chap. XXII., § 381.
 
 FORMS. 651 
 
 No. 14. 
 
 ORDEE APPOINTING RECEIVER OF PARTNERSHIP 
 ASSETS (SHORT EORM) BY CONSENT.' 
 
 (Title.) 
 
 On reading the complaint and answer herein, and the notice of 
 
 this motion, dated , 189- (and the consent of , dated 
 
 , 189-), and the affidavit of , verified , 1S9-, and 
 
 after hearing , Esq., attorney for the plaintiff, and the de- 
 fendants appearing by {names), their attorneys, and consenting 
 thereto, it is, on motion of , attorney for the plaintiff : 
 
 Ordered and decreed that is hereby appointed, with the 
 
 usual powers and duties, receiver of the copartnership property, 
 
 assets and effects of the firm of {or, of the late firm of ), 
 
 of , and of the defendant ■, as survivor of said firm, and 
 
 that said receiver, after he shall have duly qualified, shall proceed 
 forthwith to take possession of said copartnership property, and 
 the parties hereto and each of them are herel)y directed to deliver 
 and transfer the same and all the partnership books, papers and 
 effects to him ; and he shall sell the same (subject to the order of 
 the court) at public or private sale, as he shall deem most for the 
 interest of the parties; and recover and collect and reduce to 
 money the property, claims, demands, bills, accounts and all 
 
 riglits of action of said copartnership {or, said , as survivor 
 
 thereof), and shall retain such proceeds subject to the order of 
 this court. 
 
 ( Where conveyance is necessary, direct it^ for instance, thus :) 
 
 And, it furtlier appearing that the title to the said s, or 
 
 some of them, or portions of them, stand in the name of the in- 
 di\ idual partners, of the said firm, it is ordered that the plaintiff' 
 and the defendants and each of them forthwith convey to the said 
 receiver by good and sufficient bills of sale and conveyances, all 
 s or interests in s, or any other property of the copart- 
 nership standing in their joint or individual names. 
 
 {Directions as to carrying on has mess, if desired, may he 
 thusi) It is further ordered and decreed that the said receiver 
 may complete the unfinished contracts of said copartnership if he, 
 in his discretion, shall deem it advisable so to do. 
 
 {Or, That the said receiver shall not enter upon any now busi- 
 ness, but shall i)ut the unfinislied stock of said ])artiiersliip now 
 on hand into marketable condition as speedily as possijjk'.) 
 
 {Or, That the said receiver be, and he hereby is, authorized to 
 
 caiTy on the said business as lieretofore carried on to 
 
 such an extent only that he may (charter) the s of said co- 
 
 ' See a/tie, chap. II., ^22; cbsip. XI.; chap. XXII., § 381.
 
 652 RECEIVERSHIPS. 
 
 partnership to other persons or parties for liirc until sucli time as 
 the said s can be sold to advantai^e, with full power and au- 
 thority to the said receiver to sell the same upon such terms as 
 he may deem proper and as siiall be approved by this court. 
 
 {Bond clmise, if security he requh'ed.) 
 
 ( Where order is 'made in anticijjation of dissolution, it may 
 le directed) that said receiver shall not enter upon his duties until 
 the day of next. 
 
 No. 15. 
 
 ORDER APPOINTING MANAGING RECEIYER OF A 
 JOINT BUSINESS. 
 
 (Title.) 
 
 {Recite trial and findings.) It is ordered and adjudged that 
 
 the said be, and he hereby is, appointed manager of the said 
 
 business of , and receiver of the property, assets, moneys and 
 
 matters pertainins; to the closing up of the said business, upon 
 executing and filing a proper bond in the penal sum of dol- 
 lars, with leave to either party to move an increase, if any reason 
 exist therefor at any time, conditioned for the due and faithful per- 
 formance of the trusts reposed in him by this order, to be ap- 
 proved by this court, and that upon such execution, filing and ap- 
 proval the said be, and he is hereby vested with the usual 
 
 powers of managers and receivers in such cases, and with power 
 to collect, sue for and recover the moneys and property that 
 may pertain or belong to the closing up of tlie said business, 
 
 including all funds in the hands of the defendant -, (as acting 
 
 treasurer) of the said , and all funds now in the hands of, or 
 
 from time to time becoming due from, the plaintiff or the said 
 
 , under the said agreement, and which may be necessary for 
 
 the payment of the expenses of such closing up, and of the losses 
 
 and other debts and liabilities of the said , or otherwise 
 
 necessary to be paid from time to time in the closing up of the 
 
 said business, and that as such manager and receiver the said 
 
 is authorized to carry on the said business by (collection of pre- 
 miums, cancelation of policies), adjustment, payment and settle- 
 ment of losses and otherwise, conformably with the orders and 
 
 directions of this court, , 189-, until the further order of this 
 
 court. 
 
 And it is further ordered, tliat the said receiver, as soon as may 
 be, shall make and file with the clerk of this court a proper in- 
 ventory of all the property and assets now belonging or pertain- 
 ina: to the said .
 
 FORMS. 653 
 
 No. 16. 
 
 ORDER APPOINTING MANAGER OF A MINE. 
 
 (Title.) 
 
 {Recite trial and findings.) It is ordered and adjudged that 
 be, and he hereby is, appointed mana«2;er of all mining opera- 
 tions to be carried on in and by the use of the adit or tunnel men- 
 tioned in the pleadings in this cause, and of tlie use of the said 
 adit or tunnel, and of the railroad therein, and of the use of the 
 railroad connecting the mine with the public railroad, or used in 
 connection therewith, and of the use of the ore dock, and the 
 other implements, tools and property used in opening and work- 
 ing said mine by said {names), and said manager shall have power 
 to control and manage the conduct of all persons who shall con- 
 duct or may be employed in said mining operations in conformity 
 with the principles declared by the order made in this cause be- 
 tween {names), bearing date the , 1S9-, and with the direc- 
 tions of this order. 
 
 And each of the parties having been given notice in writing, 
 as specified in the above-mentioned order, that is to say, the said 
 
 defendants and having served upon and , 
 
 attorneys for and also for the Company, notice in writ- 
 ing tliat they intend at once to work and operate said mine to the 
 
 full extent of its capacity, and the said and the said 
 
 Compan}^ having served upon said and notices in writing 
 
 that he and they are able and elect to furnish the said defendants 
 
 with the ores to which they are entitled by the terms of the 
 
 contract mentioned in said pleadings, made by said Company 
 
 with said and dated , 189-, direction is hereby given to said 
 
 manager that said plaintiffs shall forthwith be permitted to have 
 the exclusive use and possession of said adit or tunnel, and the 
 other tools, implements and property used in opening and work- 
 ing said mine, for the purpose of mining and making delivery to 
 said defendants of such part of the minerals and ores as they are 
 
 now entitled to under said contract, bearing date , ]89-; tiiat 
 
 such use and possession shall onlj^ continue for such period of time 
 as in the judgment of the nuiiuiger shall be reasorial)ly necessary 
 for the purpose of mining and making delivery of said minerals 
 and ores ; and after such j)eriod has expired, the use and ]>osses- 
 sion of tlic parties of said adit or tuniiel, and the other imple- 
 ments, tools and property used in opening and working said 
 mine, shall be regulated and controlled by the said maiuiger in 
 conformity to the respective rights of the parties therein and 
 thereto as defined and settled by the order of this court nuide 
 
 , 181)-, in the cause wherein was plaintiff and 
 
 were defendants.
 
 654 RECEIVERSHIPS. 
 
 And it is fnrtlicr ordered that eitlicr party have the lil)erty, on 
 reasonable notice to the attorneys of the opposite party, to apply 
 for further directions to said manager, and to apply for relief 
 pending this suit, until the determination of the cause on final 
 hearing. And it is further ordered that the compensation of 
 such manager shall be paid by the parties equally while they 
 jointly occupy the adit or tunnel, and in the case of exclusive occu- 
 pation by either, then such party shall pay the whole. 
 
 No. 17. 
 
 OEDER GRANTING INJUNCTION AND APPOINT- 
 ING RECEIVER OF PROPERTY BECAUSE OF 
 MISCONDUCT OF OFFICERS.' 
 
 (Title.) 
 
 Comes now the plaintiff by his attorney, and moves the court 
 that a receiver be appointed herein, wliich motion is supported 
 
 by the affidavit of ; and it appearing by the affidavit of , 
 
 verified the day of , 189-, that due notice of this motion 
 
 was served upon the defendants and 
 
 {And if an inju7iction is sought, add:) and it appearing 
 {reciting ground of injunction, and adding :) and the plaintiff 
 having given the (bond or undertaking) required by law in the 
 sum of dollars : 
 
 It is ordered and adjudged that , of , be, and hereby 
 
 is, appointed receiver of {specifying the jparticular jproperty to he 
 reached, or, if dissolution or distribution of all assets is sought:) 
 
 the defendant, the Company, its stock, bonds, property, 
 
 franchises, contracts, claims, demands, things in action and effects 
 of every kind and nature, with the usual powers and duties 
 according to law and the practice of this court. 
 
 That before entering upon the duties of his trust, said receiver 
 
 execute to , clerk of this court {where hy statute or practice 
 
 it is proper to make the hond to the clerk), and fie with said 
 
 clerk, a bond with at least sufficient sureties, to be approved 
 
 by this court, conditioned for the faithful discharge of his duties 
 as receiver {if dissolution or distribution of assets is sought add : 
 and for the due accounting for all moneys and property received 
 by him). 
 
 {For suspension of directors, when allowable, etc., add as 
 follows :) 
 
 That the defendants {naming them) be, and each of them is, 
 hereby suspended from his office, and enjoined and restrained 
 from doing or performing any act or thing as directors {or trus- 
 
 ' See ante, chap. II., § 22; chap. XII.
 
 FORMS. C55 
 
 tees), officers, assents or servants of tlie Conipaii}^, until the 
 
 fiirtlier order of tliis court in the premises. 
 
 No. 18. 
 
 ORDER FOR APPOINTING RECEIVER OF SPECIFIC 
 PERSONAL PROPERTY.' 
 
 (Title.) 
 
 {Recite hearing before the court and its findioig.) It is 
 ordered and declared that be, and hereby is, appointed re- 
 ceiver of [the bales of cotton now on board the ship at 
 
 {describe the jprojyerty^ where located and in whose 2)ossession)] ; 
 and said receiver is hereby authorized to expend a sufficient 
 sum of money to insure the safe arrival of said (cotton) and 
 
 is directed to sell such (cotton) when the same shall arrive in , 
 
 and to receive the money arising from the sale thereof, and to 
 apply a sufficient part of such money in repaying what he shall 
 expend in respect of such insurance as aforesaid, and in paying 
 all necessary and pro})er expenses attending the receipt and sale 
 of the said (cotton) (and to pay the surplus of such money into 
 , in trust in this cause). 
 
 No. 19. 
 
 ORDER APPOINTING RECEIVER WITHOUT PREJU- 
 DICE TO THE RIGHTS OF PRIOR ENCUM- 
 BRANCERS AND WITH OPTIONAL LEAVE TO 
 KEEP DOWN CHARGES/ 
 
 (Title.) 
 
 (After recitation of finding and appointment^ say :) But this 
 appointment is to be without prejudice to tlie riglits of any prior 
 encumbrancers upon the said estates, who may think proper to take 
 possession of the same by virtue of their respective securities, or, 
 if any prior encumbrancer is in the possession, then without 
 prejudice to such possession ; and the tenants of the said free- 
 hold and leasehold estates are subject as aforesaid to attorn and 
 
 pay their rents in arrears and growing rents to the said , as 
 
 such receiver, and sucli receiver is to be at liberty, if he shall 
 think proper (but not otherwise), out of the rents and prolits to 
 be received by him, to keep down the interest upon the prior en- 
 cumbrances according to their priorities, and is to be allowed such 
 payments, if any, on passing his accounts. 
 
 ' See ante, chap. II. , g 22. 
 
 'See ante, chap. II., note 22; chap. XII.
 
 656 RECEIVERSHIPS. 
 
 No. 20. 
 
 ORDER APPOINTING PvECEIYEE OF RENTS AND 
 PROFITS IN FORECLOSURE OR OTHER ACTION 
 AFFECTING REAL PROPERTY; WITH INJUNC- 
 TION AGAINST DEFENDANT.' 
 
 (Title.) 
 
 \_Iiecite according to the case, and recite also the groimd of 
 the injunction; for instance, thus : And it appearing that the 
 mortgaged premises are an inadequate security for the mortgage 
 
 debt, and that no one except the defendant is personally 
 
 liable for the debt, and tliat he is insolvent and that the defend- 
 ants are about to collect the rents ; {and if the injunction is other 
 than an order to stay ■waste or other damages, or to jprotect the 
 receiver, add :) and the plaintiti: having giveu security as required 
 by law.] 
 
 It is ordered and decreed that , of , be, and be hereby is, 
 
 appointed, with the usual powers and directions, receiver (for the 
 benefit of the plaintiff) of all the rents and profits now due and 
 unpaid, or to become due pending this action, and issuing out of 
 the (mortgaged) premises mentioned in the complaint and known 
 and described as follows : {descriptio7i.) 
 
 {Direction to collect may he as follows :) That said receiver 
 be, and he hereby is, directed to demand, collect and receive from 
 the tenant or tenants in possession of said premises (or other per- 
 sons liable therefor), all the rents therefor now due and unpaid 
 and all rents hereafter to become due. 
 
 {Direction that tenants pay.) That the tenants in possession 
 of such premises and other persons liable to such rents are hereby 
 enjoined and restrained from paying any rent for such premises 
 to the defendant, his agents, servants or attorneys. 
 
 {Direction to surrender possession.) That all persons now or 
 hereafter holding possession of said premises, or any part thereof, 
 and not holding such possession under valid and existing leases, 
 do forthwith surrender such possession to said receiver. 
 
 {Povjer to recover and protect possession^ That the said re- 
 ceiver be, and hereby is, authorized to institute and carry on all 
 legal proceedings necessary for the protection of all premises de- 
 scribed in the complaint or referred to in this order, including 
 such proceedings as may be necessary to recover possession of 
 the whole or any part of said premises, and to institute and j)ros- 
 ecute suits for the collection of rents now due or hereafter to be- 
 come due on the aforesaid premises or any part thereof, and to 
 
 ' See ante, chap. X.
 
 FORMS. 657 
 
 institute and prosecute summary proceedings for the removal of 
 any tenant or tenants or other persons therefrom. 
 
 {Power to rent, insure, repair, etc.) And said receiver is 
 hereby autliorized from time to time to rent or lease, as may be 
 necessary, for terms not exceeding one year, any of said premises ; 
 and to keep the property insured against loss or damage by fire, 
 and in repair, and to pay the taxes, assessments and water rates 
 {in case of ground rent and the rent reserved hy said mortgaged 
 lease) upon said premises. 
 
 {Power to einj)loy agent.) And said receiver is hereby author- 
 ized to employ an agent, if he shall deem proper, to rent and 
 manage said premises, collect the rents and keep the premises 
 insured and in repair, and to pay the reasonable value for his 
 services out of the rent received. 
 
 {Injunction against defendant receiving rent.) That during 
 the pendency of this action tlic defendant and his agents and 
 attorneys be enjoined and restrained from collecting the rents of 
 said premises, and from interfering in any manner with the prop- 
 erty or its possession. 
 
 {Direction as to aj)j)lying rents, etc., in foreclosure^ That the 
 said receiver retain the moneys which may come into his hands 
 by virtue of his said appointment until the sale of the premises 
 mentioned in the complaint under the judginent to be entered 
 in this action, and that he then, after deducting his proper fees 
 and disbursements therefrom, apply the said moneys to the pay- 
 ment of any deficiency there may be of the said amount directed 
 to be paid to the plaintiff, in and by the said judgment, and, in 
 case there be no such deficiency, that he retain the said moneys 
 in his hands until the further order of the court in the premises. 
 
 {Bond clause.) 
 
 {Leave for furtJier directions.) That the said receiver and any 
 party hereto may at any time, on proper notice to all parties who 
 may have appeared in this action, apply to this court for further 
 or other instructions, and for furtlier power necessary to enable 
 said receiver properly to fulfill his duties. 
 
 No. 21. 
 
 ORDER TO SHOW CAUSE WHY A RECEIVER SHOULD 
 NOT BE APPOINTED AT THE SUIT OF THE PEO- 
 PLE OR A STOCKHOLDER, OFFICER OR CREDI- 
 TOR, FOR MISCONDUCT OF DIRECTORS, ETC. 
 
 (Title.) 
 
 Comes now the plaintiff , by his attorney, and on motion, 
 
 supported by the affidavit of said , moves for a rule rcquir- 
 
 42
 
 658 RECEIVERSHIPS. 
 
 ing the defendant to show cause wliy the said individual defend- 
 ants should not be compelled to account for their official conduct 
 in the uianageinent and disposition of the funds and property of 
 
 the defendant, the Company, committed to their charge as 
 
 officers thereof. 
 
 And why the defendants above named, and each of them, 
 should not be enjoined and restrained from collecting or receiv- 
 ing any debt or demand, and from paying out or in any manner 
 interfering with any money, property or elfects of the defendant, 
 the Company, during the pendency of this action. 
 
 And why a receiver or receivers of the property {descrihing it) 
 
 of the defendant, the Company, should not forthwith be 
 
 appointed by this court with the usual powers of receivers in like 
 cases. 
 
 No. 22. 
 BOND OF EECEIVER. (PARTNERSHIP.y 
 
 Know all men by these presents, that we , principal, and 
 
 and , as sureties, are held and firmly bound unto 
 
 clerk of this court {or the People of the State of ), in the sum 
 
 of dollars, for the payment of which, well and truly to be 
 
 made, we, and each of us, bind ourselves respectively and our 
 respective heirs, executors and administrators, jointly and sever- 
 ally, firmly by these presents. 
 
 Sealed with our seals, and dated the day of , 189-. 
 
 Whereas, by an order of the court of bearing date 
 
 the day of , 189-, made at the term thereof, 
 
 held on said day at , in an action wherein is plaintiff, 
 
 and and others are defendants, the above-bounden was 
 
 appointed receiver of the partnership property and assets of said 
 plaintiff and defendants : 
 
 Now, the condition of this obligation is such that if the above- 
 bounden shall, according to the rules and practice of the 
 
 court, duly file his inventory, and annually, or oftener if there- 
 unto required, duly account for what he shall receive or have in 
 charge as receiver in the said cause, and pay and apply what he 
 shall receive or have in charge as he may from time to time be 
 directed by the court, and do and perform his oflice of receiver in 
 all things according to the true intent and meaning of the afore- 
 said order ; (or anj" other and all other orders of said court.) 
 
 {Or, that if the above-bounden shall faithfully discharge 
 
 •See ante, chap. II., § 23; chap. XXII. , § 379.
 
 FORMS. 659 
 
 his duties as such receiver and shall duly account for all moneys 
 received by him, and shall obey all orders of said court;) 
 
 Then this obligation shall be void, otherwise to remain in full 
 force. (seal.) 
 
 (SEA.L.) 
 
 (seal.) 
 
 Taken and approved this day of , 189-. 
 
 Judge. 
 
 No. 23. 
 
 ANOTHEK FOKM OF BOND.' 
 
 Know all men by these presents, that we , principal, and 
 
 and , as sureties, are held and firmly bound unto the 
 
 People of the State of , in the sum of dollars, lawful 
 
 money of the United States of America, to be paid to the People 
 
 of the State of , for which payment, well and truly to be 
 
 made, we, and each of us, bind ourselves respectively and our 
 respective heirs, executors and administrators, jointly and sever- 
 ally, firmly by these presents. 
 
 Sealed with our seals and dated this day of , 189-. 
 
 Whereas, by an order of this court bearing date the day 
 
 of , at the term thereof held on said day in an action 
 
 wherein was plaintiff and was defendant, the above- 
 
 bounden was appointed receiver of the property and assets 
 
 of (plaintiff's and defendant's property, 'if a partnershij) matter, or 
 whatever the facts may he). 
 
 Now, the condition of the above obligation is such that if the 
 
 said shall, according to the rules and practice of this court, 
 
 faithfully discharge his duties as receiver herein, obey each and 
 all of the orders of this court touching his duties and administra- 
 tion of said estate, and duly account for what he shall receive or 
 have in charge as such receiver, and pay over and apply the same 
 as directed by the court, and perform the duties of his office of 
 receiver in all things according to the true intent and meaning of 
 this order, then this obligation shall be void, otherwise to remain 
 in full force and effect, [ff the statiUe presorihes aforin, of bond 
 then in such casefoUouo the form of such bond striGtly.) 
 
 (seal.) 
 
 (seal.) 
 
 (seal.) 
 
 See ante, chap. IT., § 23; chap. XXTT., g§ 377-380.
 
 660 . RECEIVERSHIPS. 
 
 No. 24. 
 SHORT FORM OF BOND.* 
 
 Know all men by these peesents, that we as principal, 
 
 and as surety, all of the county of and state of , 
 
 are held and firmly bound unto the People of the State of , 
 
 in the sum of dollars, for the payment of which sum, well 
 
 and truly to be made, we, and each of us, bind ourselves, jointly 
 and severally, and our respective heirs, executors and adminis- 
 trators, firmly by these presents. 
 
 Signed, sealed and dated the day of , 189-. 
 
 The condition of the above obligation is such, that whereas, by 
 
 an order of the court of county sitting in chancery, 
 
 made on the day of , 189-, in a cause therein pending, 
 
 wherein is complainant, and defendant, it was among 
 
 other things ordered, that the above-bounden be appointed 
 
 receiver of all the property, equitable interests, things in action 
 and cifects of the defendant except such as are by law ex- 
 empt, and tliat he be vested with all the rights and powers of a 
 receiver in chancery, upon his filing a bond for the faithful per- 
 formance of his duties, in the penal sum of dollars, and the 
 
 approval thereof. 
 
 Now, therefore, if the said shall duly account for what 
 
 shall come to his hands or control as such receiver, and pay and 
 apply the same from time to time as he may be directed by said 
 court, and obey such orders as said court may make in relation 
 to said trust, and in all respects faithfully discharge the duties of 
 said trust, then the above obligation to be void, otherwise to 
 remain in full force and virtue. 
 
 Approved, ) (seal.) 
 
 > (seal.) 
 
 ) (seal.) 
 
 No. 25. 
 
 ASSIGNMENT (GENERAL) TO RECEIVER OF PART- 
 NERSHIP ASSETS.'' 
 
 This indenture, made the day of , 189-, between 
 
 and , heretofore partners in trade, doing business in the city 
 
 of , under the title of , of the first part, and , re- 
 
 • See ante, chap. II., § 23; chap. XXII., §§ 377-379. 
 *See ante, chap. II., § 22.
 
 FORMS. 661 
 
 ceiver of the estate and effects hereinafter referred to, appointed 
 by the court, of the second part, witnesseth : 
 
 Whereas, by an order of the said court made at the term, 
 
 in an action wherein the said was plaintiff and the said 
 
 was defendant, the said party of the second part was appointed 
 such receiver, and has given and filed the requisite bond pursuant 
 to law and said order ; 
 
 Now, this indenture witnesseth, that the said parties of the first 
 part, in obedience to the said order, and in consideration of the 
 premises aforesaid, and of one dollar to them in hand paid by the 
 said party of the second part at or before the execution hereof, 
 the receipt whereof is hereby acknowledged, have, and each of 
 them has, conveyed, assigned, transferred and delivered over, and 
 by these presents do, and each of them does, convey, assign, 
 transfer and deliver over, unto the said party of the second part, 
 under the direction of the said court, all and every the stock in 
 trade, good will, estate real and personal, chattels-real, moneys, 
 outstanding debts, things in action, equitable interests, property 
 and effects whatsoever and wheresoever, of or belonging to the said 
 firm, or to the said parties of the first part as partners therein, 
 the said firm, or they or either of them as such partners therein, 
 had any estate, right, title or interest at the time of the commence- 
 ment of said action, to wit, on the day of last ; and also 
 
 all deeds, writings, leases, muniments of title, books of account, 
 papers, vouchers and other evidences whatsoever relating or ap- 
 pertaining thereto. 
 
 To have and to hold the same unto him, the said party of the 
 second part, as such receiver as aforesaid, and to his successors 
 and assigns, subject to the ordei", direction and control of the said 
 
 court. And for better and more effectually enabling the 
 
 said party of the second part, his successors and assigns, to recover 
 and receive any part of the stock, estate, book-debts, property, 
 choses in action and effects hereby conveyed, assigned and trans- 
 ferred, they, the said and have made and appointed, 
 
 and by these presents do make and appoint, the said , party 
 
 of the second part, his successors and assigns, the attorney of 
 them, the said parties of the first part, in their names or in his 
 own name, to commence, continue, discontinue and again bring, 
 perfect, and carry out actions and suits and special proceedings 
 against any persons or corporations for or on account of all or any 
 part of the said estate, stock, property, book-debts, choses in 
 action or effects. 
 
 In witness whereof tlie said parties of the first part have here 
 unto set their hands and seals the day and year first above written. 
 
 {Signature.) (seal.) 
 {Acknowledgment.)
 
 662 RECEIVERSHIPS. 
 
 No. 26. 
 
 I^OTICE BY EECEIVER TO CREDITORS AND DEBT- 
 ORS OF APPOINTMENT AND NOTICE TO PRE- 
 SENT CLAIMS. 
 
 (Caption.) 
 to all whom it may concern i 
 
 Notice is hereby given that I liave been appointed by the 
 
 court of the state of , in said action, receiver of the 
 
 Company, and of all its property and effects, and that I have duly 
 qualified as such receiver, and I do require as follows: 
 
 1. All persons indebted to said corporation to render an ac- 
 count to me, at my oflice, No. — , street, in the city of , 
 
 and county of , in said state, by the day of , 189-, 
 
 of all debts and sums of money owing by them respectively, and 
 to pay the same to me. 
 
 2. All persons having in their possession any property or ef- 
 fects of said company to deliver the same to me by the said day. 
 
 3. All the creditors of said corporation to deliver their respec- 
 tive accounts and demands to me by the said day. 
 
 4. All persons holding any open or subsisting contracts of said 
 corporation, to present the same, in writing and in detail, to me, 
 at the place aforesaid, on or before the said day. 
 
 Dated this day of , 18 9-. 
 
 ?^ 
 Receiver. 
 
 No. 27. 
 ORDER ON CREDITORS TO EXHIBIT CLAIMS. 
 (Title.) 
 
 It is ordered that a notice be published, as hereinafter directed, 
 
 requiring all the creditors of said Company, and all persons 
 
 having claims of any kind against it, to exhibit the same to said 
 receiver, at a place to be speciiied in such notice. 
 
 That said notice be published once a week for , in a news- 
 paper published in , and also in a paper published in the city 
 
 of . 
 
 No. 28. 
 
 ORDER APPOINTING SPECIAL COMMISSIONER TO 
 HEAR A^D REPORT CLAIMS. 
 (Caption.) 
 
 It is ordered by the court that all suits and proceedings against 
 the receiver herein upon any cause of action or claim against the
 
 FORMS. GG3 
 
 Company, accruing prior to the day of , 189-, be 
 
 brought only by intervening petition filed in this cause ; also that 
 no process of attachment or execution, or other linal process 
 whatever be issued against said receiver for any act of his in the 
 
 operation of the Company, otherwise than upon leave granted 
 
 by this court upon intervening petition. 
 
 It is further ordered that be, and he hereby is, appointed 
 
 commissioner of this court to hear and. consider the above claims, 
 and all other claims against the receiver herein, growing out of 
 the business of said company as may be brought before him ; 
 and that the said commissioner have power to hear and consider 
 all such claims, and that the receiver herein be directed to appear 
 before the said commissioner upon short notice served upon said 
 receiver, or upon an agent authorized by him to be served in his 
 stead, to answer any claim filed with the said commissioner ; and 
 that said commissioner have the power to take testimony and re- 
 port the same with his findings to this court, and that unless such 
 claimant, or receiver, shall within thirty days after the filing of 
 the said report appeal from the same to this court, said report 
 shall at the expiration thereof become final ; and the said re- 
 ceiver is hereby directed and authorized thereupon to pay out of 
 any money coming into his hands such amount or amounts as the 
 commissioner may award on said claim or claims. 
 
 It is further directed that said receiver do not hereafter in any 
 case appear to answer any garnishment in any suit against any of 
 his employees, but that all claims against said employees be pre- 
 sented to the said commissioner hereinbefore appointed ; and that 
 upon his notice of such claim the said receiver shall forthwith 
 notify said employee, and shall withhold from said employee, 
 from money otherwise due, a sufiicient amount to satisfy said 
 clrim, and that upon order of said commissioner the same shall 
 be paid either to the said employee or to the said claimant, as said 
 commissioner may direct and adjudge. 
 
 Judge. 
 No. 29. 
 
 OKDER APPOINTING COMMISSIONEPt OR REFEREE 
 TO HEAR AND REPORT CLAIMS. (Railway.) 
 
 (Caption.) 
 
 It having been represented to the court that claims have 
 
 accrued in against the receivers appointed and confirmed in 
 
 this case, growing out of the operations of the railway property 
 iu for stock killed, personal injuries, damages to freight,
 
 664 RECEIVERSHIPS. 
 
 damages for short delivery, etc., and it appearing to tlie court 
 that such claims will constantly accrue during the pendency of 
 the receivership in tliis case, and that such claims should be 
 adjudicated, settled, and paid without requiring the parties 
 interested therein to seek relief from the court. 
 
 It is therefore ordered by this court that , Esq., be and he 
 
 is hereby appointed speciil commissioner in chancery \or referee, 
 as the cam may he) for this cause ; and 
 
 It is further ordered that all claims for damages of every kind 
 that have accrued or may accrue against the said receiver, grow- 
 ing out of his operation of the company in , may be 
 
 filed and presented to said commissioner, who shall examine and 
 report thereon in due course. 
 
 That the special commissioner {or referee) be and is directed 
 to give reasonable public notice of this order, and is authorized 
 to hold sessions pending examination of claims at such points as 
 he may designate. 
 
 He shall report his conclusions to the court from time to time, 
 and such reports shall stand confirmed, unless excepted to within 
 
 days from the filing thereof, upon proper order entered 
 
 therefor. 
 
 Dated . 
 
 Judffe, 
 
 No. 30. 
 
 ORDER TO PAY CLAIMS ACCRUING AGAINST RAIL- 
 WAY COMPANY PRIOR TO THE APPOINTMENT 
 OF THE RECEIVER. 
 
 (Caption.) 
 
 It is hereby ordered that the receiver herein pay out any funds 
 
 in his hands and applicable to the business of the Company, 
 
 being operated by him under the order of the court herein, and 
 all claims accruing during the period of (six months) immediately 
 prior to the appointment of the receiver herein, for supplies, 
 materials, wages, salaries, and expense incurred by agents and 
 employees, traffic balances with other connnon carriers, injury to 
 or loss of property of shippers in transit, and for the use of the 
 tracks, terminals, or other facilities of other railways used by the 
 said Railway Co. in the ordinary transaction of its business. 
 
 Judge.
 
 FORMS. 665 
 
 No. 31. 
 
 OKDER REQUmmO DEFENDANT TO TURN OYER 
 TO RECEIVER BOOKS, PLATS AND DEEDS. 
 
 (Caption.) 
 
 At this day the petition of the receiver for an order directing 
 
 the defendant, the Company, to deliver to him certain deeds, 
 
 records, plats, surveys and other mnniments of title to the real 
 property in their possession under the order of this court having; 
 been presented to this court, and the court having duly considered 
 
 the same, it is ordered that the said Coinpany deliver to said 
 
 receiver all deeds of conveyance, records, plats, surveys and 
 books, and all other papers and muniments of title in their posses- 
 sion or under their control pertaining to or affecting the title or 
 right to the possession of the real estate in the possession of the 
 
 receiver under the orders of the court, or show cause on the 
 
 day of , at 10 A. M., before me at the court-room in the 
 
 city of 
 
 Dated 
 
 Judsre. 
 
 The foregoing order made absolute, and the receiver and 
 
 Company hereby directed to make schedide, and receiver hereby 
 directed to receipt for same. 
 
 Dated . 
 
 Judffe. 
 
 No. 32. 
 
 PETITION BY RECEIYER TO COMPEL THE PAYMENT 
 AND DELIVERY OF SPECIFIC ASSETS. 
 
 (Caption.) 
 
 To the Court : 
 
 , upon his oath, says : 
 
 That by an order made in this cause, dated , 189-, your 
 
 receiver was duly appointed as the receiver of {hrlejii/ indicating 
 what). 
 
 That on the day of , 189-, your petitioner, entered 
 
 into a bond to the clerk of said court (if given to the clerk), con- 
 ditioned for the faithful discharge of his duties as such receiver, 
 and he took the oath prescribed by law. 
 
 That (within the week preceding the comuiencemeut of this
 
 QQQ RECEIVERSHIPS. 
 
 action or as tlie case may he) the plaintiff collected the following 
 sums of money due and payable to said firm from the following 
 named creditors : 
 
 {Here give particulars.) 
 
 That said plaintiff omitted to place said money with the other 
 moneys of said firm, namely : {describing thein.) 
 
 That said plaintiff' refuses to place said sum of dollars in 
 
 the hands of your petitioner, and also refuses to deliver said 
 assets to him. 
 
 Wherefore, (etc., demand relief sucli as is given hy an order 
 to pay or deliver). 
 
 No. 33. 
 
 AFFIDAVIT FOR MOTION TO COMPEL TENANTS 
 
 TO FAY. 
 (Caption.) 
 
 , being duly sworn, on oath says: 
 
 That by an order made in this cause, bearing date the day 
 
 of , 189-, it was ordered that the several tenants of the lands 
 
 and premises in the pleadings mentioned should pay their rents 
 and arrears of rent to this deponent as receiver in this cause, and 
 also their rents accruing thereon from time to time as the same 
 shall become due and payable. 
 
 That the several persons whose names are set forth in the 
 schedule annexed to this affidavit, and who are respectively 
 tenants of said lands and premises, as deponent believes, have not 
 
 paid rent to deponent {nor, to , the late receiver in this 
 
 cause before his appointment, as deponent believes ; or, as appears 
 
 by the late receiver's account, filed the day of ,. 189-, 
 
 in the office of ), since his appointment as receiver in 
 
 this cause. 
 
 That the several tenants in said ^schedule named owe respec- 
 tively, according to this deponent's knowledge, calculation and 
 belief up to the respective rent days specified in the said schedule, 
 the several sums as set forth in said schedule, for rent and arrears 
 of rent of their respective holdings, which sums, or any part 
 thereof, the said tenants so respectively owing the same, or any 
 of them, have not paid to deponent, although repeatedly applied 
 to for that purpose. 
 
 ■ \ 
 
 Kcceiver. 
 {Jurat.)
 
 FORMS. 667 
 
 No. 34. 
 
 AFFIDAVIT TO OBTAIN ORDER STAYING OTHER 
 ACTIONS AFFECTING ASSETS. 
 
 (Ancillary Receivership.) 
 (Caption.) 
 
 , being duly sworn, says : 
 
 That he is the plaintiff's attorney herein. 
 
 That this action was brought for the appointment of a receiver 
 
 of all the property and assets of the Company in the state 
 
 of (ancillary to the appointment of a receiver of said Com- 
 pany in the state of ). 
 
 That on the day of , 180-, this court duly made an 
 
 order, at a special term thereof, appointing receiver of all 
 
 the property and assets of the said Company within this state 
 (with all the powers vested in him as receiver by the court of 
 
 , of the state of ), and that in and by said order the 
 
 officers and directors of the defendant were enjoined from exer- 
 cising within this state of , any of the privileges or franchises 
 
 granted to the said corporation. 
 
 That thereafter the said receiver duly qualiiied as required by 
 law, and duly entered into the possession of all the property of 
 the said company, including the books, papers and vouchers, and 
 is still in possession thereof. 
 
 That a number of actions have been commenced against the 
 said Company, in various parts of this state since the appoint- 
 ment of said receiver, and attachments in some cases have been 
 levied upon its property. 
 
 That the said Company is unable to defend such actions 
 
 or any actions for the following reasons : 
 
 First. That all the books, papers and vouchers of the said 
 
 Company are in the hands of the receiver, and are being 
 
 actually used in making up the statement of said receiver. 
 
 Second. Its officers and agents are restrained and enjoined by 
 said order from exercising privileges or franchises granted to the 
 said corporation, and they are therefore restrained and enjoined 
 from carrying on their defense to any of said actions. 
 
 (Deponent further says that in a proceeding under the insolv- 
 ency act of the state of , a receiver has been duly appointed 
 
 by the court of , of the state of , of the propei'ty of the 
 
 Company, being the same receiver appointed in this state, 
 
 and to which receivership the appointment in this state is ancillary.) 
 
 Deponent further says that great embarrassment is likely to 
 ensue to the receivership and to the trust company by reason of 
 the pendency of said actions. That the jdaintills in said actions
 
 668 RECEIVERSHIPS. 
 
 threaten to enter judgments with costs, and that the expenses 
 
 will thereby be increased ; that all the property of the 
 
 Company being in the hands of the court, said should be re- 
 quired to file their claims in court according to the practice in 
 such case made and provided. 
 
 {Jurat.) 
 
 No. 35. 
 
 PETITION OF RECEIVER FOR PERMISSION TO DE- 
 FEND SUITS AND COMPROMISE CLAIMS.* 
 
 (Caption.) 
 
 Tour petitioner, , would respectfully sliow to your honors 
 
 that, prior to his appointment as receiver herein, certain suits had, 
 
 been brought against the Company, praying for damages to 
 
 persons or property ; that under the laws of the state of , such 
 
 claims, when reduced to judgment, are liens prior in right to the 
 mortgage given by the defendant upon its property, and that 
 
 there are certain suits pending in the court of the state 
 
 of . 
 
 Your petitioner further shows that such suits or claims can 
 generally be compromised and adjusted at sums which it is to 
 the interest of the defendant and its creditors to promptly accept, 
 thereby saving much cost of litigation and other considerable 
 amounts as compared with the usual expense and the results of 
 such litigation ; and that other of said suits will have to be de- 
 fended by your petitioner as receiver at the cost of the fund in 
 the hand of your petitioner. 
 
 Your petitioner therefore prays that an order of court be made 
 herein, authorizing your petitioner as receiver to appear and de- 
 fend the suits that have heretofore, or may hereafter, be brought 
 in this state against the defendant to recover damages for inju- 
 ries to persons or property, or for any claim whatsoever, and that 
 your petitioner be given the right and discretion to compromise, 
 adjust and settle all suits or claims against the defendant for 
 damages to persons or property, or any claims arising in the oper- 
 ation of the road committed to his charge, if, in the judgment cf 
 his counsel, it is proper to compromise, adjust and settle such 
 cases or claims, upon such terms as may be agreed upon between 
 him and the litigants or claimants, and he will ever pray, etc. 
 
 Receiver. 
 'Loveland's Forms of Fed. Proc. No. 303.
 
 FORMS. 669 
 
 No. 36. 
 
 PETITION BY RAILWAY RECEIYERS FOR AUTHOR- 
 ITY TO SETTLE TRAFFIC BALANCES.' 
 
 (Caption.) 
 
 Petition by the receivers for authority to adjust, settle, and 
 
 pay traffic balances between the Company and other 
 
 railroads. 
 
 receivers of the Railway, respectfully show : 
 
 I. By the decree made in tins case on the day of , 
 
 and filed herein on the day of , being the decree ap- 
 pointing your petitioners receivers, among others the following 
 oi'der was made : 
 
 {^^Fifth. The matter of the 2yay')nent of halance due or to he- 
 covie due to other railroads or transportation companies grow- 
 ing out of the exchange of traffic is reserved for further orders.''^) 
 
 II. Since which your receivers have taken possession of the 
 
 Railway, operated by your receivers, and other railways and 
 transportation companies. These traffic balances consist gener- 
 ally of : 
 
 First. Freight balances, which are amounts found to be due as 
 between freight delivered to connecting lines by the Rail- 
 way, and received from connecting lines by said Railway. 
 
 Second. Ticket accounts. These result from the sale of coupon 
 
 tickets by the Railway over foreign lines, and the sale by 
 
 foreign lines of such tickets over the Railway, 
 
 Third. Mileage accounts. These accounts comprise the mile- 
 age of the cars of other railway companies over the line of the 
 Railway, and the mileage of its cars over other railways. 
 
 These trafiic balances are sometimes in favor of one road, some- 
 times in favor of the other. It is vitally necessary in the trans- 
 action of railway business that these traffic balances should be 
 promptly paid by the respective railways at stated times. 
 
 III. There are traffic balances whicli will soon have to be dis- 
 charged arising out of tlie operation of the railway in charge of 
 your receivers, which will have to be settled, adjusted, collected 
 or paid within a short time, and your receivers should have full 
 authority to adjust, settle, collect, or pay them according to the 
 prevailing usage existing among railway companies, so that there 
 may be no interruption of the relations between the railway in 
 charge of your receivers and other railways of the country. 
 
 Wherefore your petitioners pray that an order be entered 
 granting them authority to adjust, settle, collect and pay ail 
 
 ' Loveland's Forms of Fed. Proc. No. 300.
 
 670 RECEIVERSHIPS. 
 
 traffic balances arisinc; out of the operation of the Railway 
 
 since , 189-, and which may hereafter arise from time to time. 
 
 Solicitors for the Receivers. 
 State of 
 
 County of '' 
 
 1, , on oath, state that I am one of the receivers 
 
 of the Railway ; that I have read the foregoino; petition, and 
 
 that the facts therein stated are true, as 1 verily believe. 
 
 Subscribed and sworn to before me, this day . 
 
 [seal.] Notary Public. 
 
 No. 37. 
 
 ORDER AUTHORIZING RECEIVER TO SETTLE TRAF- 
 FIC BALANCES.' 
 
 On this day tlie petition of the receivers for authority to adjust, 
 settle, collect, and pay all traffic balances arisinfj; in the operation 
 
 of the Railway since , 189-, when the receiver took 
 
 possession of said Railway, having been presented to the court, 
 and the court having fully considered the same, and being fully 
 advised in the premises, it is ordered that the receivers be, and tliey 
 hereby are, authorized to adjust, settle, collect and pay all traffic 
 balances between the railway in their charge and other railroads 
 or transportation companies arising out of the operation of the 
 
 Railway since , 189-, and which shall hereafter arise, 
 
 according to the usual methods prevailing among the railroad and 
 transportation companies of this country. 
 
 Judge. 
 
 No. 38. 
 ORDER TO PAY RENT.' 
 
 (Caption.) 
 
 This da}' came the receiver and represented to the court that 
 
 the instalment of rent due to the Railway Company, the 
 
 day of , 189-, under the lease referred to in the bill 
 
 herein, has not been paid, and that the period of ninety days' grace 
 
 ' Loveland's Forms Fed. Proc. No. 301. 
 * Loveland's Forms Fed. Proc. No. 303.
 
 FORMS. 671 
 
 provided in said lease will expire the day of , 189-, and 
 
 that said receiver expects to have on hand sufficient funds to pay- 
 said rental on or before said last-named date, and asks authority 
 of the court to make such payment, and therefore it is ordered by 
 the court that the receiver be, and he hereby is, authorized to make 
 such j^ayment. 
 
 Judge. 
 
 No. 39. 
 
 RECEIYER'S PETITION FOR LEAVE TO SELL. 
 
 (Caption.) 
 
 Your petition I'espectfully represents that the defendant is 
 owner of certain real property known and described as follows : 
 {Description of the j^re-mises, and also what interest the defendant 
 has, what encumbrances there are upon it, and its value}) 
 
 {State reasons for asking a sale, for example, in creditor'' s suit 
 thus :) That your petitioner has found no goods or chattels or 
 
 clioses in action of the said out of which any money can be 
 
 realized by collection, suit or sale ; and that the said land is the 
 only available property. 
 
 Wherefore, your petitioner asks f<^r an order authorizing him 
 as such receiver to sell said land at public sale, and convey all the 
 
 right, title and interest of the said which he has in and to 
 
 said premises, and for such other or further order as may be just 
 (and for the costs of this aj)plication). 
 
 No. ,40. 
 
 ORDER GIVING RECEIVER LEAVE TO PAY SECURED 
 
 CLAIM. 
 (Title.) 
 
 It is ordered tliat said receiver, as aforesaid, be and he is 
 
 hereby authorized and enipowered to sell and dispose of the said 
 {specify generallij) hereinbefore referred to, and fully described 
 and specified in the said petition, at private sale, at the best price 
 
 he can obtain therefor in cash, not less than the sum of 
 
 dollars. 
 
 That out of the proceeds of such sale he be,and he hereby is,author- 
 ized and empowered to pay the principal and interest due and 
 
 unpaid upon the said upon said articles in the said petition 
 
 specified, and to cause the same to be satisfied and discharged, 
 retaining any balance of the proceeds of such sale in his hands as 
 receiver, to l)e accounted for, and to abide the further order and 
 decision of this court.
 
 672 RECEIVERSHIPS. 
 
 That said receiver be, and he hereby is, authorized and em- 
 powered to sell and dispose of the reniainino; property and assets 
 now in his custody undisposed of, or whicli, at the time of sale, 
 shall be in his custody and control undisposed of, at public sale to 
 the highest and best bidder, on due public notice thereof, and at 
 such time or times as he shall deem most convenient and proper 
 between now and the day of next. 
 
 No. 41. 
 
 ORDER DIRECTING A SALE OF PERISHABLE PROP- 
 ERTY m THE HANDS OF A RECEIVER. 
 
 (Title.) 
 
 Upon consideration of the petition or report of the receiver, it is 
 ordered that , the said receiver, be, and he hereby is, author- 
 ized to sell the goods, wares and merchandise in the said report 
 
 mentioned, for cash (or on a credit of for approved notes, as 
 
 the case may be) according to the usual course and manner of 
 selling goods at public sale. 
 
 Judge. 
 
 No. 42. 
 
 ORDER CONFIRMING RECEIVER'S SALE. 
 
 (Title.) 
 
 {Recite filing of receive!"'' s report, loithout setting it out at 
 length.) It is hereby ordered that the aforesaid sale be, and the 
 same hereby is, confirmed, and the said receiver is hereby author- 
 ized to convey to the said purchaser the following described 
 property : {Insert description) and upon receiving from said pur- 
 chaser the sum of dollars, the balance of said purchase 
 
 money, the said receiver is hereby authorized to deliver to said 
 purchaser a deed of said property in the usual form. 
 
 No. 43. 
 
 PETITION OF RECEIVER TO COMPEL PURCHASER 
 TO COMPLETE PURCHASE. 
 
 (Caption.) 
 
 Your petitioner respectfully represents : {Here state circum- 
 stances of sale of assets and order of court obtained granting 
 leave to sell.)
 
 FORMS. 673 
 
 That, thereafter, your petitioner served said witli a notice 
 
 that your petitioner was ready to complete said transaction. 
 
 That, thereafter, said purchaser submitted to your petitioner's 
 said counsel such papers as he desired executed for a complete 
 transfer of said {yianiing them), and your petitioner duly executed 
 
 and acknowledged the said , and demanded the performance 
 
 of said agreement on his part, but he has hitherto failed (and re- 
 fused) to perform the same. 
 
 Wherefore, your petitioner prays for an order requiring the 
 said purchaser to perform said contract on his part and to pay to 
 your petitioner, upon receipt of said assignment and other papers 
 
 for the transfer of , the said sum of dollars, besides the 
 
 costs of this application. 
 
 No. 44. 
 
 ORDER THAT PURCHASER FROM RECEIVER 
 COMPLETE HIS PURCHASE. 
 
 (Title.) 
 
 {Recite filing of petition for an order and its consideration.) 
 
 It is ordered that the said purchaser, within days from 
 
 the service of a copy of this order upon him {or, on , his 
 
 attorney), perform the contract in the said petition of said re- 
 ceiver mentioned, and pay to said receiver or to his attorneys, in 
 
 performance of the said contract, the sum of dollars, besides 
 
 dollars, costs of this motion. 
 
 No. 45. 
 
 PETITION OF RECEIVER FOR AUTHORITY TO PAY 
 COUNSEL FEES. 
 (Caption.) 
 
 Your petitioner respectfully represents that he has employed 
 
 as his attorney and counsellor in the above m.atter , and that 
 
 in the course of his business as receiver he finds it necessary to 
 frequently, and indeed almost constantly, consult with counsel. 
 
 That your petitioner believes it will be necessary to require 
 much of the time of counsel until the estate in his hands is wound 
 up, and that in view thereof he believes it for the interest of tiie 
 estate that the employment of said counsellor should be continued, 
 and that a projDer fee as retainer and on account of his said ser- 
 vice should be now paid to him. 
 
 Wherefore, your petitioner prays directions : 1st. As to the em- 
 ployment of legal assistance. 2d. As to the amount which 
 shall be now paid to said counsel on account of such assistance. 
 43
 
 674 RECEIVERSPIIPS. 
 
 No. 46. 
 ORDER SANCTIONING IIECEIYER'S EMPLOYMENT 
 
 OF COUNSEL. 
 
 (Title.) 
 
 {Recite filing of petition and consideration. ) It is ordered 
 tliat the acts of said receiver in resjiect to the einphjy merit of an 
 attorney and counsellor be, and he hereby is, continued, and he is 
 hereby directed to continue the same. 
 
 Tliat the said receiver is hereby directed now to pay said coun- 
 sellor as retainer the sum of dollars, and on account of services 
 
 rendered by him the sum of dollars, out of the moneys in 
 
 said receiver's hands to the credit of the above-entitled cause. 
 
 No. 47. 
 PETITION BY RECEIVER FOR LEAVE 
 
 TO PAY CLAIMS. 
 (Caption.) 
 
 Your petitioner represents that before his appointment as re- 
 ceiver a jud£:;inent was obtained against the defendant company 
 
 by , in the court, and that an execution was issued and a 
 
 levy made thereunder by the sheriff before his said appointment. 
 That the sheriff threatens to enforce his levy unless the amount 
 
 thereof, with costs, amountino; in all to dollars, be forthwith 
 
 paid, and your petitioner is advised by his counsel to settle the 
 same at once. 
 
 Wherefore, your petitioner prays that he may be auth,orized to 
 pay said judgment. 
 
 No. 48. 
 
 NOTICE OF MOTION BY A PARTY TO THE CAUSE 
 
 FOR INSTRUCTIONS TO THE RECEIVER. 
 
 (Caption.) 
 
 To , Receiver: 
 
 Please take notice that the undersigned will move the above- 
 named court, at the court-house in the city of , , on 
 
 the day of , 189-, at ■ o'clock in the noon, 
 
 or as soon thereafter as counsel can be heard, for instructions 
 directing the receiver heretofore appointed in this action [here 
 specify what directions are sought., thus ,•) to proceed in the 
 further discharge of his duty in disposing of the copartnership
 
 FORMS. 675 
 
 property an J effectr ; and tliat he l)e autliorized and directed to 
 sell the entire stock in trade of said copartnership at private sale 
 to , at the sum agreed npon, to wit : (etc., etc., stat- 
 ing terms), and for such other or further order as may be just. 
 Dated , 1S9-. 
 
 I hei-eby acknowledge service of the above notice this 
 day of , 189-. 
 
 No. 49. 
 
 PETITION THAT EECEIVER BE INSTEUCTED TO 
 PAY OYER A DEPOSIT OR OTHER FUND BE- 
 LONGING TO THE PETITIONER. 
 
 (Caption.) » 
 
 To the Court : 
 
 Your petitioner represents: 
 That the Bank has been for several years prior to the 
 
 day of , 189-, a banking corporation existing under the laws 
 
 of this state, and having its place of business at . 
 
 That on said last-mentioned day, having theretofore become 
 insolvent, it suspended its business. 
 
 That on the day of , 189-, was duly appointed 
 
 receiver thereof by this court, and thereafter dul3'' qualified as 
 such and entered on the discharge of his duties, and is now such 
 receiver. 
 
 That after said bank had become insolvent and was known to 
 its officers so to be, and immediately before such suspension, your 
 petitioner, who was then a depositor in said bank, but was ignor- 
 ant of such insolvency, deposited with it to be credited in his ac- 
 count {^Describing the fund). 
 
 \{0r) That prior to the time of the failure of the said 
 
 Bank your petitioner had sent notes, belonging to your petitioner, 
 
 to it for collection, of whicli said bank was to receive 
 
 dollars, as compensation. 
 
 That said bank, as your petitioner is informed and believes, 
 
 prior to said , 189-, had collected a large amount of said 
 
 notes so sent to it for collection, and had placed tiie amount so 
 collected on its books as a fund belonging to your petitioner, sep- 
 arate and apart from other funds in said bank.] 
 
 That the said deposit {or, the fund so collected, and so set apart 
 
 on the books of said Bank as belonging to your jx'titioncr), 
 
 remained there at the time of the appointment of said as
 
 676 KECEIVERSHIPS. 
 
 receiver, and is now in the possession and nnder tlie control of 
 said receiver. 
 
 Tliat prior to tlie niakino; of this petition your petitioner duly 
 demanded of said receiver tlmt he pay said amount to your peti- 
 tioner, but said receiver has failed so to do. 
 
 ■ Wherefore your petitioner aslvs that said receiver be directed 
 to deliver to your petitioner (the said money, or as the case may 
 he), and pay him the costs of this motion, and for such other or 
 further order as to the court may seem just. 
 
 No. 50. 
 
 PETITION THAT RECEIVER SURRENDER POSSES- 
 SION, PAY, ETC., OR THAT PETITIONER HAVE 
 LEAVE TO BE EXAMINED INTERES8E 8U0. 
 
 (Caption.) 
 
 To the Court : 
 
 {State claim.) 
 
 Wherefore your petitioner asks that said receiver be directed to 
 pay {etc., or deliver, etc., according to the case), or that your peti- 
 tioner be allowed to come in and be examined pro interesse sua 
 
 as to whether his riojhts in and to said are not superior to 
 
 the rights of said receiver and those whom he represents, and that 
 at the close of said examination the court make such order as to 
 the disposition of said as to the court may seem just. 
 
 And your petitioner further prays that he may have such other 
 or further relief as may be just (together with the costs of this 
 motion). 
 
 No. 51. 
 
 NOTICE OF RECEIVER'S PETITION FOR DIRECTIONS 
 AS TO DISTRIBUTION. 
 
 (Caption.) 
 
 To : 
 
 Please take notice that I shall apply to the court, at the 
 
 next term to be held at , on the day of , 189-, at 
 
 o'clock in the noon, for an order directing what course 
 
 I am to take in reference to the uncollected notes and accounts, 
 and the furniture in my possession, and also for the approval of 
 my accounts as receiver, and an order discharging me from further 
 lial)ility, and also for an order determining your respective prior- 
 ities, and my duties as to paying your various claims out of the
 
 FORMS. 677 
 
 surplus that may remain in my bands, or out of any other moneys 
 tliat I may liave collected. 
 
 Dated , 189-. 
 
 Received service of the above notice this day of . 
 
 189-. 
 
 E"o. 52. 
 
 PETITION" OF RECEIVER TO BE ALLOWED TO AC- 
 COUNT AND TO BE DISCHARGED. 
 
 (Caption.) 
 
 {Recite appointTnent.) That your petitioner has since then per- 
 formed the duties of his office and executed all the trusts of the 
 same, so far as he has been able to do so, and has collected all the 
 assets known to him of said corporation ; that he has duly adver- 
 tised for all claims against the same, and discharged all claims pre- 
 sented ; and that there are no creditors of said corporation to the 
 knowledge of your petitioner {or state exceptions^ if any, so that 
 the order may 7'eserve them). 
 
 That according to the accounts of your petitioner annexed there 
 remain, after paying the necessary expenses and charges of said 
 trust, together with a proper compensation to the receiver, no 
 assets of value for distribution among the stockholders {or credit^ 
 ors as the case may he, or state what, if any). 
 
 That no suits or legal proceedings iii respect to said corporation 
 or receivership property are now pending to the knowledge of 
 your petitioner ; nor does any duty remain to be performed by 
 said receiver except to have his accounts finally settled {or state 
 exceptions, if any, so that the order may reserve them). 
 
 Wherefore your petitioner prays that this court may finally set- 
 tle and allow his accounts as such receiver, and award him suit- 
 able compensation for the performance of his said duties, and for 
 an order relieving and discharging your petitioner as said receiver, 
 and ordering his bond to ])e canceled, and for such other and 
 further order as may be just. 
 
 No. 53. 
 ACCOUNT RENDERED BY RECEIVER. 
 
 (Caption.) 
 
 To the Court: 
 
 I, the undei'signed , render the following account of my 
 
 proceedings as receiver of the rents, issues uihI piolits ol the
 
 678 RECEIVERSHIPS. 
 
 premises described in tlie complaint herein, which are known and 
 desi<^'nated as Nos. '-, street, in the city of . 
 
 1 was a])pointed as such receiver by an order made and entered 
 in tlie above-entitled action on , 189- 
 
 {Shtte facU as to administraiioti of tlie trusty so fa?' as mate- 
 inal to explain and justify the account^ as thus :) 
 
 {Agency for collection. I thereupon proceeded to appoint an 
 agent for the collection of said rents, under the power vested in 
 me by said order, and in tlie following statement of my account 
 
 I have credited myself with the payment to said agent of 
 
 per cent commission upon all the moneys collected by him during 
 the continuance of my said trust.) 
 
 {Sale of uncollectible assets. After having collected all the 
 collectible assets except a disputed claim on a guaranty, which by 
 
 leave of this court I compi-omised in receiving the sum of 
 
 dollars, the remainder of the assets pursuant to leave of this court 
 
 first obtained, I sold at public auction at , on the day of 
 
 , 189-, first giving due notice as is required by law in this 
 
 case of execution sales (of personal property) by tlie sherilf {or, 
 as was required by said leave of court). At such sale all of said 
 property was sold to the highest bidder for sums aggregating 
 dollars.) 
 
 {And so with other transactions.) 
 
 Schedule A, hereto annexed, contains a statement of all the 
 moneys received or collected by me or my said agent. 
 
 Schedule B, hereto annexed, contains a detailed statement of 
 all moneys expended by me in the execution of my said trust, 
 together with the oliject of such expenditure. 
 
 All the receipts, statements and vouchers hereto annexed form 
 part of this count. 
 
 I charge myself as follows : 
 
 Gross receipts as shown by Schedule A - - - $ . 
 
 I credit myself as follows : 
 
 Total expenditures as shown by Schedule B - $ . 
 
 Leaving a balance of--------- % . 
 
 Which consists of {state items., as cash in a designated trust 
 company, or unrealized assets, etc.)., to be distributed, subject, 
 however, to the deduction of the amount of my commission and 
 the expenses of this accounting. 
 
 The said schedules, which are severally signed by me, are part 
 "T this account. 
 
 No. 54. 
 
 OBJECTION TO liECElYER'S ACCOUNTS. 
 
 (Caption.) 
 
 , a judgment creditor of , for himself and others
 
 FORMS. C79 
 
 similarly situated, malces the followinf^ ohjeetions to the accounts 
 
 of , receiver herein, tiled the day of , 189- : 
 
 {State them.) 
 
 (1) That . 
 
 (2) That . 
 
 1^0. 55. 
 
 NOTICE OF MOTION TO KEVOKE APPOINTMENT. 
 
 (Caption.) 
 
 To {receiver): 
 
 {Ohject of motion may he stated thus:) That the said appoint- 
 ment of , as receiver, may be revoked, and that the court ap- 
 point a new receiver in this action, and take the requisite security. 
 
 Dated , 1S9-. 
 
 {Acknowledgment of service^ 
 
 No. 56. 
 ORDER DISCHARGING RECEIVER. 
 
 (Title.) 
 
 It is ordered that , receiver in this action, he, and he 
 
 hereby is, discharged from any further duty and otiice as such 
 receiver, except as hereinafter set forth. 
 
 That the said receiver immediately turn over the possession of 
 the lands and premises described in the complaint in this action 
 
 {or otherwise designate property) to the defendants and , 
 
 together witli all papers, leases and documents relating to such 
 property or to the tenants and terms of occupation thereof now 
 or hereafter in his possession, or in any manner under his control, 
 and that he pay to such defendants {as the case mm/ he) all moneys 
 
 by him collected since , 189-, first deducting therefrom his 
 
 commission and other charges {if any) to him by law allowed. 
 
 {Reservation of liability of company for U7isettled claims.) 
 It is further ordered and decreed tliat all said claims pending in 
 this court, whether debts or other liabilities, shall be presented to 
 said Company for adjustment and settlomciit, and said Com- 
 pany is ordered to pay said debts, with the costs and e.\j)cnses 
 allowed by law; and for the purpose of enforcing the jiaymont 
 thereof, and if need be, this court will and does retain jurisdiction 
 and full power to enforce such payment and the lien heretofore 
 existing, without other action or independent proceedings.
 
 680 RECEIVERSHIPS. 
 
 No. 57. 
 
 ORDER REMOVING RECEIVER AND APPOINTING 
 SUBSTITUTE. 
 
 (Title.) 
 
 {Recite petition and hearing to remove, if such is the case.) It 
 
 is ordered that be, and he hereby is, removed from the 
 
 office of receiver herein {may state ground if desired) and that 
 
 is hereby appointed receiver iicrein with the powers and 
 
 duties conferred by the order entered herein the day of , 
 
 189- {or may specify them). 
 
 {Bond clause.) 
 
 That upon the filinf^ of said bond so approved, in the office of 
 
 the clerk of this court, said do forthwith deliver over to said 
 
 , receiver herein, all books, papers, evidences of debt, ac- 
 counts, notes, bills, bonds and property of all and every descrip- 
 tion belong-inf^ to said corporation, which may have heretofore 
 come into his hands as receiver herein, and conveyed all real 
 
 estate to said , as receiver herein, his successors and assigns 
 
 and their heirs, which deed or deeds shall contain a covenant 
 
 against the act of tiie said •, and shall be approved as to form 
 
 by the judge of this court. 
 
 No. 58. 
 NOTICE OF MOTION TO DISCHARGE RECEIVER. 
 
 (Caption.) 
 
 You are liereby notified that on the day of , 189-, at 
 
 o'clock in the noon, or as soon thereafter as counsel can 
 
 be heard, a motion will be made in the above cause that 
 the receiver appointed in this action, be discharged ; and that on 
 an accounting by him, and a delivery of all property and other 
 things held by him as receiver, to be made as the court may di- 
 rect, the bond entered into by him, the said receiver, and his sure- 
 ties, may be vacated (and that the plaintifl: may pay him, the said 
 
 receiver, the sum of dollars due to him by order of the 
 
 court, dated the day of , 180-), and for the costs of 
 
 this motion. 
 
 Dated , 1S9-. 
 
 Receiver.
 
 FORMS. 681 
 
 No. 59. 
 
 OEDER TO SHOW CAUSE WHY EECEIYER SHOULD 
 NOT BE DISCHARGED. 
 
 (Title.) 
 
 On reading the petition and affidavit of , verified the 
 
 day of , 189-, praying for the removal of , receiver 
 
 herein, and on motion of , attorney for said ; 
 
 It is ordered that the said herein sliovv cause by tlie 
 
 day of , 189-, at o'clock in the • noon, or as soon 
 
 thereafter as he can be heard, why he, the receiver herein, should 
 not be discharged and turn over the possession of all the property 
 of which he is receiver, and all which has come to his possession 
 as such, to said defendants, together with all papers, leases and 
 documents relating to such property, or to the tenants and terms 
 of occupation thereof. 
 
 No. 60. 
 
 NOTICE OF MOTION OR PETITION TO DISCHARGE 
 RECEIVER AS TO SPECIFIC PROPERTY. 
 
 (Caption.) 
 To : 
 
 You are hereby notified that on the day of , 189-, at 
 
 o'clock in the noon, that I will file in the court, 
 
 in the above proceedings, a motion to vacate so much of the 
 
 order made the day of , 189-, for the appointment of a 
 
 receiver herein, as directs the said receiver to take possession of 
 
 or administer any property belonging to the said Company, 
 
 or to in any manner take possession of or to operate the said line 
 of railroad built by the said last-named railroad corporation under 
 the charter thereof, or tiie equipments or assets thereof, and for 
 such other or further order as may be just (and as will give your 
 
 petitioners the full benefit of their rights as creditors of said 
 
 Company). 
 
 No. 61. 
 
 ORDER THAT RECEIVER PAY OVER FUNDS TO 
 HIS SUCCESSOR. 
 (Title.) 
 
 It is ordered that the said , within days from the 
 
 service upon him of a copy of this order, pay over to , as re- 
 ceiver of , the sum of dollars, together with tlie further 
 
 sum of dollars, tlie costs of his motion, amounting in all to 
 
 the sum of dollars.
 
 682 RECEIVERSHIPS. 
 
 No. 62. 
 
 AFFIDAVIT TO OBTAIN ORDER TO SHOW CAUSE 
 WHY A REMOVED RECEIVER SHOULD NOT BE 
 PUNISHED FOR CONTEMPT FOR A FAILURE TO 
 PAY OVER FUNDS. 
 
 STATE OF — 
 
 r^ ' > SS. 
 County. 
 
 (Caption.) 
 
 -, beino; duly sworn, says: 
 
 That on the day of , ISO-, this affiant was appointed 
 
 receiver in the above-entitled cause by the said court, for and 
 instead of , who had been previously removed by said court. 
 
 That on the daj' of , ISO-, this affiant entered into a 
 
 bond, with sureties, in the sum of dollars, conditioned for 
 
 the faithful discharf^e of his duties as such receiver, which bond 
 was duly approved by said court. 
 
 That by order of said court so removing; said , he, the said 
 
 , was ordered and directed to turn over to this affiant the 
 
 sum of dollars by the day of , 1S9-; (and a certified 
 
 copy of said order was served on the said on the day 
 
 of , 1S9-.) 
 
 That on the day of , 189-, this affiant demanded of 
 
 said payment to him as receiver of the said sum of 
 
 dollars ; that said has not paid to this affiant the said sum or 
 
 any part thereof, although the time limited in said order within 
 
 which to pay the same has expired, and that the said has 
 
 failed to comply in every respect with said order. 
 
 No. 63. 
 
 AFFIDAVIT FOR CONTINUANCE OF ACTION 
 AGAINST RECEIVER INSTEAD OF AGAINST 
 CORPORATION. 
 
 STATE OF — 
 
 County. ^ 
 
 (Caption in Original Action for a Receiver.) 
 
 -, beino^ duly sworn, says: 
 
 That he is the plaintiff in the action of against the 
 
 Company now pending in this court. 
 
 That on or about the day of , 189-, an action was
 
 FORMS. G83 
 
 commenced l)y against the Company in the 
 
 conrt {o7' in this court, tlie title wiiereof is against ), to 
 
 {here state ohject, showing that it is not a demand which requires 
 a sejyarate trial). 
 
 {State condition of the cause.) 
 
 That on the day of , 189-, deponent was served with 
 
 a restraining order to show cause in this action, brought by 
 
 against the above-named defendant, for the purpose of dissolving 
 
 the latter and for winding up its affairs, and that on , 1S9-, 
 
 the said company was so dissolved by order or decree of tiiis 
 
 court, and one was constituted receiver of the property and 
 
 effects of said company with the powers usual in sucli cases. 
 
 That affiant believes it is desirable, from the nature and im- 
 portance of the questions involved, that the action referred to 
 should be continued by substituting the said receiver as defendant, 
 as proposed in said complaint. 
 
 {If order to show cause is desired, ash for it.) 
 
 No. 64. 
 
 PETITION BY EECEIYER THAT HE BE SUBSTITUTED 
 FOR A PARTY IN AN ACTION WHICH WAS 
 PENDING WHEN HE WAS APPOINTED. 
 
 (Caption.) 
 
 To the Court : 
 
 Your petitioner, upon his oatli, says: 
 
 That by order in the above-named cause, made the day of 
 
 last, your petitioner was duly Hpi)c)inted receiver of (brief 1/ 
 
 indicating what) 
 
 {Or, were ajppointed in suppletnentary proceedings :) That on 
 
 the day of , 189-, upon application duly made by — — , 
 
 a judgment creditor of the above-named , in proceedings 
 
 supplementary to execution, your petitioner was, by order of the 
 court, duly ap])ointed receiver of the property of said . 
 
 Tliat thereafter he duly qualiiied as such, and entered on his 
 duties as such, and now is such receiver. 
 
 {Allege pendency and nature of action / and of defense, if at 
 issue, and condition of cause and other matters.) 
 
 Wherefore, your petitioner asks leave to prosecute {or, dtfeyid) 
 said cause, and that for that ])ur])Oso he l)c substituted as ]ilaiiitif1-' 
 {or, defendant) in place of said {naine) and for such other or fur- 
 ther relief as may be just.
 
 6S4 KLCElVEKSlllPS. 
 
 No. G5. 
 OEDER TO SHERIFF TO WITHDRAW LEVY. 
 (Title.) 
 
 It appearing by the affidavit of that , the sheriil 
 
 of tliis county, lias made a levy upon certain property in the 
 hands of the receiver in this action without leave of court, it is 
 ordered that he withdraw the same forthwith. 
 
 It is further ordered that said appear before this court 
 
 on the day of , 1S9-, and show cause why an attach- 
 ment should not issue against him as for a contempt of court in 
 making said levy. 
 
 No. 66. 
 SPECIAL ORDER FOR RECEIVER TO BRING SUIT. 
 
 (Title.) 
 
 It appearing to the court that is indebted to the Com- 
 pany, the defendant herein, in the sum of dollars {or show 
 
 some cause of action), the court, on the application of , re- 
 ceiver herein, authorizes and directs him to bring an action 
 
 against the said for the recovery of the said 
 
 dollars, with interest thereon {or state other ohject of the suit). 
 
 No. 67. 
 
 COMPLAINT BY CREDITOR ON BOND OF RECEIVER 
 
 FOR FAILURE TO PAY MONEY. 
 
 (Caption.) 
 
 {Commencement.) That on the day of ?. 189-, 
 
 beg-an in the court of the state of a suit 
 
 against the Company for the appointment of a receiver, 
 
 and such action was thereafter had that the defendant , on 
 
 the day of , 189-, was appointed by said court re- 
 ceiver of said Company, and on the day of , 
 
 189-, he, with his codefendants as sureties, executed his bond, a 
 copy of which is hereto annexed, marked " Exhibit A," and 
 made a part hereof, to the approval of said court, and he at once 
 entered upon his duties of said trust. 
 
 That on the day of , 189-, said was, by 
 
 an order of said court, duly ordered to convert all the property 
 
 of said Company, of whatsoever kind, into money by sale 
 
 thereof, which he did in due course of time, receiving therefor
 
 FORiMS. 685 
 
 dollars, and so reporting to the conrt, which report was 
 
 duly approved. 
 
 That on the day of , 189-, the relator filed with 
 
 said receiver his claim for dollars against said 
 
 Company, which was duly allowed by said court as a valid and 
 existing claim against said trust. 
 
 That on the day of , 189-, said , as such 
 
 receiver, filed with the court his final report in the matter of said 
 receivership, which report, in due course of time, was duly ap- 
 proved by said court. 
 
 That in said report said receiver showed that among the other 
 
 creditors of said Company the relator was entitled to 
 
 receive of the funds of said receivership, as his proportionate 
 
 share thereof, the sum of dollars ; and said receiver was 
 
 directed by said court to pay said sum to the relator, along with 
 the other creditors. 
 
 That on the day of , 189-, the relator demanded 
 
 of said ■ the ]:>ayment of said sum of dollars, but he 
 
 has failed and still fails (and refuses) to pay the same (and has 
 converted said amount to his own use and benefit). 
 
 {Prayer and exhibit.) 
 
 No. 68. 
 
 DECLAEATION" ON ASSESSMENT AGAINST STOCK- 
 HOLDERS OF NATIONAL BANKS.' 
 
 CIRCUIT COURT OF THEI 
 
 UNITED STATES, I rn , t^ 
 
 ,^ ' Yss. Term, A. D. . 
 
 District of , [ ' 
 
 Division. J 
 
 , as receiver of the , plaintiff, by , his attorne3's, 
 
 complains of , defendant, on a plea that he render to the 
 
 plaintiff the sum of dollars, which he owes to and unjustly 
 
 detains from him. 
 
 For tliat, whereas, heretofore, to wit : on the day of , 
 
 A. D. , tlie National Bank was organized as a na- 
 tional banking association under the laws of the United States 
 
 with a cH])ital stock of thousand dollars divided into 
 
 thousand shares of one hundred dollars (§100) each, and the 
 Comptroller of the Currency of the United States did, pursuant 
 to law, on, to wit : the day of , give to said Na- 
 tional ]3ank a certificate under his hand and official seal that said 
 National Bank had complied with all the provisions of law 
 
 By permission of Messrs. Duncan & Gilbert.
 
 086 RECEIVERSHIPS. 
 
 required to be complied with before comincncinoj the business of 
 bankiii<>;, and that such association was authorized to commence 
 
 the business of bankiiiii;, and tliereupon said National Bank 
 
 did commence the business of banking under and in pursuance of 
 the laws of the United States. 
 
 And the plaintiff further avers that on, to wit : the day of 
 
 , said National JBank, being then insolvent, suspended 
 
 business and the payment of its obligations, and afterward, to wit: 
 
 on the day of , one was, by the Comptroller of the 
 
 Currency of the United States, in pursuance of the laws of the 
 
 United States, duly appointed receiver of said National 
 
 Bank and entered upon the discharge of his duties as such re- 
 ceiver. 
 
 And the plaintiff further avers that thereafter, to wit : on the 
 day of , it appeared to the satisfaction of the Comptrol- 
 ler of the Currency of the United States that, in order to pay the 
 
 debts of said National Bank, it was necessary to enforce the, 
 
 individual liability of the stockholders thereof, as prescribed by 
 sections 5151 and 5234 of the Revised Statutes of the United 
 
 States, to the extent of dollars upon each and every share of 
 
 the capital stock of said National Bank held or owned by 
 
 them at the time of its failure, and thereupon the said Compti'ol- 
 
 ler of the Currency of the United States did on, to wit : said 
 
 day of , make an assessment and requisition upon the 
 
 shareholders of the said National Bank for thousand 
 
 dollars, to be paid by them ratably on or before the day of 
 
 , and did direct the said , as receiver as aforesaid, to take 
 
 all necessary proceedings, by suit or otherwise, to enforce to that 
 extent the said individual liability of the said shareholders. 
 
 And the plaintiff further avers that fhe defendant, at the time 
 
 the said National Bank suspended business and the payment 
 
 of its obligations as aforesaid, to wit : on the day of , 
 
 was the owner and holder of shares of the capital stock of 
 
 said National Bank, by means whereof, and by force of the 
 
 laws of the United States, the defendant then and there became 
 liable to pay to the plaintiff the amount of said assessment and 
 
 requisition upon him as aforesaid, being the sum of dollars, 
 
 said amount being dollars upon each share of the capital 
 
 stock of said National Bank, owned and held by said de- 
 fendant at the time said National Bank suspended business 
 
 and the payment of its obligations as aforesaid. 
 
 Yet the defendant, thougli often requested, has not paid the 
 said sum of money or any part tiiereof, to the plaintiff, but so to 
 do wholly refuses, to the damage of the plaintiff', as aforesaid, of 
 dollars, and therefore he brings his suit, etc.
 
 FORMS. 687 
 
 UaNITED states of AMERICA, ) 
 
 District of , > ss. 
 
 Division. ) 
 
 beincr duly sworn, on his oath deposes and says tliat lie is 
 
 the receiver of the National Bank, the plaintili" in the above 
 
 cause; that the demand of the plaintiff is upon the cause of action 
 set forth in the foregoing declaration and that there is due to the 
 plaintiif from the defendant npon said cause of action, after allow- 
 ing the defendant all his just credits, deductions and set-offs, the 
 
 sum of dollars as debt and interest on said sum at the rate 
 
 of five per cent per annum from the day of , as dam- 
 ages for the detention thereof. 
 
 Subscribed and sworn to before me this 
 day of , A. D. — — . 
 
 JS^otary Public. 
 
 No. 09. 
 
 DECLARATION ON PROMISSORY NOTE. 
 
 .With Confession of Judgment and Affidavit of Signature. 
 
 DISTRICT COURT OF TllEl 
 
 UNITED STATES, I ,^ rp^,,,. a n 
 
 T^ ' y SS. ierni, A. JJ. . 
 
 District of , | 
 
 Division. J 
 
 , Receiver of the , a national banking asso- 
 ciation organized and doing business under the laws of the 
 United States, plaintiff' in tliis suit, by , his attorneys, com- 
 plains of , defendant in this suit, in a plea of trespass 
 
 on the case upon promises. 
 
 F For, that, whereas, the said defendant — heretofore, to wit : 
 
 On the day of , A. D., — , at , to wit : at the 
 
 District of , aforesaid, made promissory note — in writ- 
 ing, bearing date on the day and year aforesaid, and then and there 
 
 deTivered the same to said' the , in and by which said note — 
 
 said defendant l)y the name and style of , promised to pay 
 
 to the order of said the , after date, the sum of dollars, 
 
 at the , with interest at the rate of per cent per aimum 
 
 after until paid, for value received. And the said the , 
 
 to whom or to whose order the said note was payable, afterwards, 
 
 to wit : on the day of , A. D. , i)ccame and was 
 
 insolvent, and the plaintiff" on said day was liy tlic Comptroller of 
 the Currency of the United States duly ap[)uinted and coniinis-
 
 688 • RECEIVERSHIPS. 
 
 sioned under the laws of the United States as Receiver of said 
 
 , by moans whereof and by force of the statute and laws of 
 
 the United States in such case made and provided the said de- 
 fendant — became liable to pay to the plaintiff the said sum of 
 monev in the said note — specified, accordin*^ to the tenor and 
 effect'of said note — , and beiuii; so liable the said defendant — , in 
 consideration thereof afterwards, to -svit : on the same day and 
 3'ear and at the place aforesaid, undertook and then and there 
 faithfully promised said plaintifl: well and truly to pay unto the 
 said plaintiff the said sum of money in the said note — specified, 
 according to the tenor and effect of said note — and the statute 
 and laws of the United States as aforesaid. 
 
 Yet the defendant — , although often requested, etc., ha — not 
 yet paid the said sum of money or any part thereof to the said 
 plaintiff, but so to do ha — hitherto wholly refused and still do — 
 refuse, to the damage of the plaintiff of dollars, and there- 
 fore he brings suit, etc. 
 
 DISTRICT COURT OF THEl 
 UNITED STATES, 
 
 District of , 
 
 Division. 
 
 Plaintiff's Attorneys. 
 
 - ss. Term, A. D. 
 
 ais. 
 
 And the said defendant — in the above-entitled suit, by 
 
 attorney — , come — and defend — the wrong and injury 
 
 when, etc., and waive— service of process, and say — that 
 
 cannot deny the action of the said plaintiff nor but that the 
 
 said defendant — did undertake and promise in manner and form 
 
 as the said plaintiff has above complained against , nor but that 
 
 the said plaintiff has sustained damages on account of the nonper- 
 formance of the several promises and undertakings in the said 
 
 declaration mentioned, including the sum of dollars for his 
 
 reasonable attorneys' fees for entering up this judgment over and 
 above his other costs and charges by him about his suit in this 
 
 behalf expended to the amount of dollars and cents, 
 
 and the said defendant — ■ further agree — that no writ of error 
 or appeal shall be prosecuted on the judgment entered by virtue
 
 FORMS. 689 
 
 hereof nor any bill in equity filed to interfere in any manner 
 
 with the operation of said judo^ment, and that • hereby 
 
 release — all errors that may intervene in entering up the same 
 or issuing the execution thereon, and consent — to an immediate 
 execution upon said judgment. 
 
 Defendant's Attorneys. 
 State of — 
 
 County. [ ' 
 
 , being duly sworn, on his oath deposes and says 
 
 that he is a resident of County, , and is acquainted 
 
 with the handwriting of , whose name — — ■ signed to the 
 
 annexed note and power of attorney and that the signature — of 
 
 said to the said note and power of attorney — the genuine 
 
 signature — of . 
 
 Subscribed and sworn to before me 
 this day of , A. D. 
 
 Notary Public. 
 
 No. TO. 
 
 PETITION OF RECEIVER OF NATIONAL BANK TO 
 COMPROMISE WITH SHAREHOLDER.' 
 
 STATE OF 
 County of 
 
 ss. 
 
 In the Court, thereof. 
 
 In the matter of the 
 
 National Bank of 
 
 In Liquidation. 
 
 Gen. No. ■ 
 Term No. 
 
 To the Honorable Judges of said Court: 
 
 Your petitioner, , receiver of the National Bank of 
 
 , respectfully shows that said National IJank of , 
 
 being a national banking association duly organized under the 
 
 laws of the United States, having on or about the day of 
 
 , A. D. , become insolvent, your petitioner was by the 
 
 , Comptroller of the Currency of the United States, on or 
 
 about the day of , A. D. , duly appointed receiver 
 
 of said National Baidv of , and entered upon the dis- 
 charge of his duties as such receiver and is still so acting. 
 
 'By permission of Messrs. Duncan & Gilbert. 
 44
 
 690 RECEIVERSHIPS. 
 
 Your petitioner fnrtlier shows to the court that on , upon 
 
 a proper accountinjy made by your petitioner and upon a vahiation 
 of the uncollected assets remaining in the hands of your peti> 
 tioner, it appeared to the satisfaction of said Comptroller of the 
 
 Currency, that in order to pay the debts of said National 
 
 Bank it was necessary to enforce the individual liability of the 
 shareholders of said baidv as prescribed by sections 5151 and 
 5234 of the Revised Statutes of the United States, and that, by 
 virtue of the authority vested by law in the said Comptroller of 
 the Currency, the said Comptroller of the Currency did make an 
 assessment and requisition upon the shareholders of said Na- 
 tional Bank of for thousand dollars, to be paid by them 
 
 ratably on or before the day of , A. D. , and said 
 
 Comptroller of the Currency did make a demand upon each and 
 
 every one of said shareholders for dollars upon each and every 
 
 share of the capital stock of said National Bank held and 
 
 owned by said shareholders, respectively, at the time of the fail- 
 ure of tiie said bank; and that your petitioner, as receiver, was 
 directed by said Comptroller of the Currency to take all necessary 
 proceedings, by suit or otherwise, to enforce to that extent the 
 individual liability of the said shareholders. 
 
 Your petitioner further shows that — — , of , is a share- 
 holder in the National Bank to the amount of shares 
 
 of the par value of hundred dollars, and that there is due to 
 
 your petitioner, as receiver, the sum of hundred dollars, with 
 
 interest, being the per cent assessment on the said shares 
 
 of stock standing in the name of said . 
 
 Your petitioner further shows that he has made diligent effort 
 to collect the amount due upon said assessment, but has been un- 
 able to collect anything from the said . 
 
 Your petitioner further shows that he has carefully investigated 
 
 the financial standing of said , and is satisfied that said claim 
 
 cannot l)e collected from said by means of legal proceedings. 
 
 Your petitioner further shows that the amounts due upon said 
 assessments are bad and doubtful debts within the meaning of 
 section 5234 of the Revised Statutes of the United States. 
 
 Your petitioner further shows that the said has offered 
 
 your petitioner the sum of hundred dollars cash in full settle- 
 ment of all claims the of National Bank of , or your pe- 
 titioner, as receiver thereof, may have on account of said assess- 
 ment of per cent upon the shares of stock standing in 
 
 the name of said . 
 
 Your petitioner further shows that after having fully consid- 
 ered said proposition your petitioner is of the opinion that it is 
 for the best interests of the creditors and shareholders of said 
 
 National Bank of — — , that your petitioner be allowed to 
 
 accept the offer of hundred dollars cash of said , in full
 
 FORMS. 
 
 691 
 
 settlement and compromise of said per cent assessment, and 
 
 that more money can be realized upon said assessment on the stock 
 
 of said -, by means of such compromise and settlement than 
 
 your petitioner would otherwise be able to obtain. 
 
 Wherefore your petitioner prays that an order of court may be 
 entered herein authorizinojand directing your petitioner to accept 
 said ofEer of hundred dollars cash of said in full settle- 
 
 ment of said claim on account of said 
 
 And thus as in duty bound he will ever pray, etc. 
 
 per cent assessment. 
 
 Receiver of the 
 
 By — 
 
 National Bank. 
 
 his Solicitors. 
 
 State of 
 County of 
 
 ss. 
 
 , being duly sworn, on his oath says that he is the receiver 
 
 of the National Bank of , that he has read the foregoing 
 
 petition and knows the contents thereof, and that the matters 
 and thino;s therein set forth are true to the best of his knowledg-e 
 and belief. 
 
 Subscribed and sworn to before me 
 this day of , A. D. 
 
 Notary Public. 
 
 No. 71. 
 
 ORDER OF COURT AUTHORIZING C0MPR3]VnSE 
 WITH SHAREHOLDERS. 
 
 STATE OF 
 
 COUNTV OF - 
 
 SS. 
 
 In the 
 
 Court thereof. 
 
 In the matter of the 
 
 National Bank of 
 
 In Liquidation. 
 
 Gen. No. - 
 Tei'rn No. 
 
 receiver of the 
 
 National Bank of 
 
 This day comes — 
 -, by , his attorae_ys, and presents his ])etition asking for 
 
 an order of court authorizing and directing him to settle and 
 
 compound for hundred dollars cash, to l)e paid by , and 
 
 all claims the National Bank of , or your petitioner as
 
 692 RECEIVERSHIPS. 
 
 receiver thereof, may have on account of the per cent assess- 
 ment made , on the shares of tlic capital stock of the 
 
 National Bank standing in the name of . 
 
 The court having considered the said petition and the evidence 
 adduced in suppo'rt thereof, and being fully advised in the 
 premises, finds that the best interests of the shareholders and 
 
 creditors of the National Bank of require that such 
 
 compromise and compound should be made. 
 
 It is therefore Okdered, Adjudged and Decreed that your peti- 
 tioner be, and he hereby is, authorized and directed to compound and 
 
 settle for hundred dollars cash, any and all claims the 
 
 National Bank, or your petitioner as receiver thereof, may have 
 
 on account of the said per cent assessment on shares 
 
 capital stock of the National Bank standing in the name of 
 
 and this order is to operate as a full release of any and all 
 
 claims your petitioner may have by reason of said claim on 
 account of said per cent assessment. 
 
 Entered by Judge j October — , A. D. .
 
 APPENDIX 
 
 OF RECENT CASES DECIDED OR REPORTED SINCE THIS WORK 
 WENT TO PRESS. 
 
 APPOINTMENT OF KECEIYEE— liability for rent. 
 
 In Olmstead v. Distilling & C. F. Co. 73 Fed. Rep. 44, under 
 the Illinois Statute providing that corporations organized under 
 the general statute whose powers have expired by limitation or 
 otherwise shall continue their corporate capacit^y for two years 
 for the purpose of settling up their affairs, etc., it was held that 
 upon a judgment of ouster in quo ivarranto jDroceedings the cor- 
 poration becomes a trustee for its creditors and stockholder's so 
 that equity has jurisdiction on the gi-ound of trust relationship of 
 a suit by a stockholder in behalf of himself and other stockholders 
 who may join with him for the appointment of receivers to ad- 
 minister its assets under proper averments. 
 
 Even when a receiver is appointed for the corporation upon an 
 erroneous assumption of the court that the bill discloses an equi- 
 table jurisdiction, such appointment cannot be questioned collat- 
 erally. 
 
 In the above case, on an intervening petition tiled, Judge Sho- 
 walter recently held, in an opinion not officially I'eported, that the 
 receiver of a corporation was not liable for rents due upon leased 
 property held by the corporation at the time of his appointment 
 for a period longer than two years after the judgment of ouster 
 of the corporation. 
 
 That at the expiration of the two years provided by the statute 
 the corporation as an entity ceased to exist and its leases fell with 
 the corporate existence. 
 
 Same — or rents and profits. 
 
 In Scott V. llotchkiss (Cal.) 47 Pac. 45, a mortgage provided 
 that in case of foreclosure a receiver might be appointed of the 
 rents and protits. It was held that in the absence of the affidavit
 
 694 APPENDIX. 
 
 required in mortgages of growing crops, such mortgage did not 
 entitle the receiver to a crop growing on the land in the posses- 
 sion of a tenant, but only to so much thereof as was duly reserved 
 for rent. On an allegation that the security was insufficient it 
 was held the court was authorized to appoint a receiver in accord- 
 ance with the stipulations of a mortgage as against the claims of 
 a purchaser without notice. 
 
 Same — on application of mortgagee. 
 
 In Fanners' Loan & T. Co. \.' Hotel Briinsimck Co. 42 X.Y. 
 Supp. 350, it was held that where a receiver has been appointed 
 in voluntary proceedings to dissolve a corporation the same re- 
 ceiver should be appointed on a subsequent application by the 
 holder of a chattel mortgage on the property of the corporation 
 for the appointment of a receiver, unless it appears that the liert 
 of the mortgagee will receive adequate protection by the order 
 already made. 
 
 Same — on ex parte application. 
 
 In Pearson v. Kendrick (Miss.) 21 So. 37, the Code required 
 the party making an ex parte application for a receiver to give 
 the adverse party a bond conditioned to pay all damages that 
 might be sustained if the appointment was revoked and providing 
 that such damages might be recovered in the same manner as 
 damages on an injunction bond. An order discharging the re- 
 ceiver appointed ex parte was held to be appealable. 
 
 In the same case it was held, under § 574 of the Code author- 
 izing the appointment of a receiver without notice and under 
 § 922 permitting chancellors of other districts than that in which 
 the suit is pending to act, the appointment of a receiver by a 
 chancellor of another district will be presumed to have been made 
 upon a sufficient hearing. 
 
 Same — on application of wife. 
 
 In Murray v. Murray (Cal.) 47 Pac. 37, it was held that in a 
 wife's action for maintenance without divorce under Civil Code, 
 § 137, where purely- legal proceedings are inadequate the action 
 carried with it the right to have a receiver appointed nnder 
 the general provisions of Code Civ. Proc. § 564. The wife's 
 claim for maintenance is within the general powers of a court of
 
 APPENDIX. 695 
 
 equity to grant not depending on a statute, and since the plaintiff's 
 demand may be cliarged specifically upon the defendant's prop- 
 erty, described in the complaint, the court had the power to ap- 
 point a receiver at the beginning of the action. It is also held 
 that where the defendant is a nonresident by means of the re- 
 ceiver's possession the court acquires jurisdiction to subject the 
 propert}' seized to the satisfaction of its lawful judgment. 
 
 Same — in case of insanity. 
 
 In Re Hijhart (X. C.) 25 S. E. 903, it was held, under the Act 
 of 18S9, a receiver might be appointed for an insane person ou 
 motion, after due and proper notice. 
 
 Same — when valid. 
 
 In State^ Amsterdamsch Trustees Kantoor, v. Spokane Count j/ 
 Super Ct. (Wash.) 47 Pac. 31, it was held that § 326, subs. 3 and 
 5, of the Civil Code authorizing the appointment of a receiver 
 "where it appeared that the property or fund in controversy is in 
 danger of loss or removal or where a corporation has been dis- 
 solved, or is insolvent or in danger of insolvency, or has forfeited 
 its corporate rights, a receiver could not be appointed ex imrte to 
 take charge of the business of an organization exercising corpor- 
 ate rights without authority. Such appointment can be made 
 only after proceedings under Code Proc. §§ 688, 689. 
 
 Same — when void for want of bond. 
 
 In Dreyspring v. Loed (Ala.) 21 So. 73, where the statute pro- 
 vided among other things that an order appointing a receiver 
 " must require complainant to enter in a bond," etc., it is held 
 mandatory and prohibitory and where the order merely requires 
 the receiver to give bond, the appointment is void. 
 
 Same — when void as to parties in possession. 
 
 In JIall V. Donovon (Mich.) 09 N. W. 643, an action was 
 brought under the statute relating to voluntary assignments and 
 which authorizes holders of preferred claims to bring an action in 
 case of fraud and apply for a receiver, an order made pendente 
 lite, appointing a receiver and requiring defendants to deliver 
 to him all property owned by pei'sons named, in possession of 
 other defendants as mortgagees was held to be erroneous, if not 
 a nullitv.
 
 696 APPENDIX. 
 
 BOND OF RECEIYER— LIABILITY of sureties. 
 
 In Black v. Gentery (N. 0.) 26 S. E. 43, it is held that the liability 
 of sureties on receiver's bond is properly enforced in an indepen 
 dent action against them ; that where judgnieiit has been recov- 
 ered against the receiver he is not a necessary i)arty to an action 
 against the sureties on tlie bond ; and in such case it is not neces- 
 sary to allege leave of court to sue. 
 
 CERTIFICATE OF PECEIVER. 
 
 In Illinois Trust dh S. Bank v. Pacific R. Co. (Cal.) 47 Pac. 
 00, it was held that where the court, under circumstances appar- 
 ently authorizing its action, takes possession of a street railway 
 through a receiver, certificates issued under the order of the court 
 must be regarded as valid, even though there may have been a 
 failure of jurisdiction as to the rightful owner of the road. It 
 will be presumed, in the absence of evidence to the contrary, that 
 there was shown everything necessary to authorize the court in 
 the issuance of certificates. It was also held in the same case that 
 an order appointing a receiver cannot be collaterally attacked on 
 the ground of failure of jurisdiction. 
 
 COMPENSATION OF RECEIVER. 
 
 In Mann v. Poole (S. C.) 26 S. E. 229, it is held that the com- 
 pensation of a receiver is in the discretion of the court. 
 
 DISCHARGE OF RECEIVER— rescinding order of appoint- 
 ment. 
 On the dismissal of the action in which the receiver is appointed 
 the order appointing the receiver should also be rescinded. Camp- 
 hell V. Eversole (Ky.) 38 S. W. 486. 
 
 Same — suit against company after. 
 
 Where a railroad company procures or acquiesces in the with- 
 drawal of the receivership and the discharge of the receiver and 
 the cancelation of his bond and accepts the property of the road 
 which has been increased in value by the receiver, such railroad 
 may be sued in assumpsit on a claim which was valid against the 
 receiver. Texas <& P. R. Co. v. Manton (U. S. Sup. Ct.), Advance 
 Sheets, Feb. 1, 1897, p. 235. 
 
 Same — what not ground for. 
 
 In Farmers' Nat. Bank v. Backus (Minn.) G9 N. W. 638, in
 
 APPENDIX. 697 
 
 an action to foreclose a mortc;age a receiver was apjjointed to 
 collect the rents of niorti^aged premises and apply them in pay- 
 ment of delinquent taxes due on a pi-ior mortgage. It was held 
 that the fact that, pending the action, the holder of the first mort- 
 gage paid the delinquent taxes, added the same to the amount 
 due on his mortgage, foreclosed, and bid in property for the full 
 amount due him, was no ground for the discharge of a receiver. 
 
 LIABILITY OF RECEIVER— on lease. 
 
 Where there is no act of disaffirmance by the receiver and he 
 continues to hold the leasehold property and completes liis term 
 lie must pay the contract price for rentals. S_pencer v. World's 
 Coluriibian Exj)osition (111.) 45 N. E. 250. 
 
 Same — on note not collected. 
 
 In Neel v. Carson (Ky.) 37 S. W. 949, where there was 
 nothing to show that the receiver had been ordered to collect a 
 certain note and that the maker had become insolvent and had 
 committed waste upon the land held as security for the note, it 
 was held that in the absence of fraud, the receiver could not be 
 held liable for the note. 
 
 Same — not for wages formerly earned. 
 
 In Franldin Trust Co. v. Northern AdirondaGk li. Co. 42 N. 
 Y. Supp. 211, a receiver was appointed in an action to foreclose 
 a mortgage on a railroad. He paid out a portion of the earnings 
 for repairs, taxes, and in making final payment on a contract 
 made for the preservation and protection of the property. It was 
 held that the receiver was not liable to the employees for wages 
 due at the time of his appointment where tlie order appointing 
 him made no directions to pay such claims and they are not pre- 
 sented until after the money had been disbursed. Laws of 1885, 
 chap. 376, authorizing the receiver to pay certain wages for labor, 
 does not apply to temporary receivers for a railroad in an action 
 of foreclosure. 
 
 POWER OF RECEIVER — OF corporation; liabhjtv of 
 
 stockholders. 
 
 In Minneapolis Basehall Co. v. Ciiij Bank (Minih) 69 JN^. W. 
 
 331, it is held that a receiver in an action to sequestrate the assets 
 
 of an insolvent corporation under Geiu Stat. 1894, chap. 74, has
 
 G98 APPENDIX. 
 
 no antliority, except as o-iveii by statute, to enforce the indi- 
 vidual liability of stockholders. 
 
 Same — to sell assets. 
 
 In Aclierman v. Ackernan (jS^eb.) G9 N. W. 388, where a 
 decree required a receiver to sell assets of an insolvent iirin on a 
 day named it was held that the receiver had no authority to sell 
 at a day later than that fixed by the court and if lie did so the 
 sale was void. 
 
 Same — to sue. 
 
 In Schultz V. Phenix Ins. Co. 11 Fed. Rep. 375, the receiver 
 of a corporation was ordered and empowered to get in the assets 
 of the company and for that purpose to bring such suits as might 
 be necessary. It was held that the receiver could sue in a Fed- 
 eral court upon a contract for insurance made with the company. 
 
 SALE BY RECEIVER — LiABiLrrr of purchaser. 
 
 A purchaser at a receiver's sale is estopped to deny liability for 
 the receiver's expenses on the ground that they were made with- 
 out order of court. Ileisen v. Binz (Ind.) 45 JS". E. 104. 
 
 Same — right to withdraw bid. 
 
 In Interstate Nat. Bank v. O'Dioyer (Tex.) 38 S. W. 368, 
 where an order directed the sale of property of a corporation in 
 the hands of a receiver, provided that on receipt of a certain 
 amount in cash the remainder might be paid in approved claims 
 against the corporation and under such order a creditor became a 
 purchaser of the property, it was held that the purchaser might 
 withdraw his bid for the property where he acted with diligence 
 in ascertaining the condition of the property sold by the receiver, 
 and the liabilities thereon. 
 
 SUIT BY RECEIVER. 
 
 He must show in his complaint leave of court to sue. Rhodes 
 V. Hilligoss (Ind.) 45 N. E. Qm. 
 
 Same — in supplementary proceedings. 
 
 In Tvedt v. Mackel (Minn.) 69 N. W. 475, in a supplementary 
 proceeding the receiver was held not to have power to assail con- 
 veyances on the ground offered under the allegations in the plead- 
 ings. But see Sawyer v. Harrison^ 43 Minn. 297.
 
 APPENDIX. 099 
 
 TEMPOKARY RECEIVERS. 
 
 In Citizens' Sav. Bank v. Wilder^ 42 N. Y. Siipp. 481, a tem- 
 porary receiver in an action to foreclose a mortgage, on the ground 
 that service of summons by pubhcation had been ordered, was 
 held to be entitled to the mortgaged property, though the service 
 by publication had not been completed. 
 
 TITLE OF RECEIVER. 
 
 In Price v. Forrest (IN". J.) 35 Atl. 1075, a claim against the 
 United States was ordered to be assigned by a debtor to a receiver 
 in aid of pi'oceedings instituted by a creditor to obtain satisfac- 
 tion of a judgment at law recovered against the debtor. It was 
 held that such an assignment to the receiver, or an assignment to 
 him by operation of law by virtue of his appointment as such re- 
 ceiver, clothed the receiver with the right to take, receive, sue for, 
 and distribute according to law, and the orders of the court from 
 which he derived the appointment was an exception to the provi- 
 sions of § 3477 of the Revised Statutes of the United States.
 
 INDEX. 
 
 [References are to sections and pages in body.] 
 
 A. 
 
 ABATEMENT OF ACTIONS, 
 
 by appointment of receiver, § 230, i, p. 374. 
 See also Action and Suit. 
 
 ABSCONDING, 
 
 as ground for appointment of receiver in case of partnership, § 207, p. 335. 
 See also Appointment. 
 
 ABSTRACTED PROPERTY, 
 
 receiver may recover, § 75, (13), p. 171. 
 
 See also Poweks of Receiyer. 
 
 ACCOUNT OF RECEIVER, 
 
 duty to make generally, § 355, p. 593. 
 
 must be to court appointing him, § 356, a, p. 594. 
 
 to be passed upon by a master, § 356, b, p. 594. 
 
 no appeal from order approving, § 356, e, p. 595, 
 
 approval of, § 356, f, p. 595. 
 
 rule of law regarding, § 416, p. 631. 
 
 form of, No. 53, p. 677. 
 
 ACCOUNTS OF TRUSTEE, 
 
 affected by appointment of receiver, § 306, p. 542. 
 See also Trustees. 
 
 ACCORD AND SATISFACTION, 
 
 in actions by receiver, ^81, p. 180 
 See also Defense. 
 ACTION, 
 
 abatement of by appointment of receiver, g 330, i, p. 374, 
 to quiet title, appointme it in § 5, d, p. 14. 
 See also Suit. 
 
 ACTION AGAINST RECEIVER, 
 
 leave of court not required, § 94, p. 186. 
 is in effect an action against the funds, § 95, p. 190, 
 See also Suit against Receiver. 
 
 ACTION PENDING, 
 
 a prerequisite to petition for receiver, § 371, p. 603. 
 receiver's title in, § 62, p. 145. 
 
 ACTS OF CONGRESS, 
 
 liability of receiver for violating, § 109, a, p. 203. 
 See also Liahimty of Receiver. 
 
 701
 
 702 INDEX. 
 
 [References are to sections and pajtcs in body.] 
 
 ACTS ULTRA VIRES. 
 
 appointment on ground of, i; 4, c, p. 8. 
 avoided by receiver, § 76, p. 173. 
 
 See also Corpohations ond Juiiisdigtion. 
 
 ADDITIONAL ALLOWANCES, 
 
 to receiver's compensation, § 350, h, p. 590. 
 
 AD LITEM. 
 
 appointment of receiver, § 310, p. 547. 
 
 ADMINISTRATOR, 
 
 appointment of receiver in lieu of, § 301, a, p. 538. 
 when receiver will not be appointed in lieu of, g 301, b, p. 533. 
 receiver in lieu of, for misconduct, etc., § 301, c, p. 534. 
 receiver in lieu of, when no one competent to act, § 301, d, p. 537. 
 See also Executous, etc. 
 
 ADOPTION OF LEASE, 
 
 what amounts to, g 123, p. 221. 
 
 ADVANCES, 
 
 to be included in order for distribution when, p 358, p. 599. 
 
 See also Distribdtion, Powers of Receiver, etc. 
 
 AFFIDAVIT, 
 
 basis of order of appointment, § 384, p. 606. 
 
 form of, for appointment of receiver in foreclosure. No. 6, p. 641. 
 
 for appointment of receiver in judgment creditor's action, No. 7, p. 642. 
 
 for motion to compel tenants to pay. No. 33, p. 666. 
 
 to stay actions affecting assets. No. 34, p. 667. 
 
 to obtain order to show cause why receiver should not be punished for 
 
 contempt, etc.. No. 63, p. 783. 
 for continuance of action against receiver instead of corporation. 
 No. 63, p. 782. 
 
 See also Forms. 
 ALIMONY, 
 
 appointment of receiver in suits for, g 321, p. 553. 
 
 ALLEGATIONS. 
 
 to petition for receiver, § 373, p. 603. 
 
 when insufficient, § 10, c, p. 28. 
 
 necessary to appointment, § 11, note, p. 33. 
 in suit by receiver, generally, § 393, p. 611. 
 
 form of, ti 393, p. 611. 
 sufficiency of, as excuse for notice, § 5, d, note, p. 20. 
 form of, for bill or complaint for receiver of partnership. No. 3, p. 638. 
 
 for bill or complaint in foreclosure. No. 4, p. 639. 
 
 in complaint by receiver, must show leave of court to sue, Appx. p. G98. 
 See also Forms. 
 
 ALLOWANCES, 
 
 in addition to receiver's compensation. § 350, b, p. 590.
 
 INDEX. 7(»;.i 
 
 [References are to sections and pages in body.] 
 AMENDMENTS, 
 
 to petition, when allowed, g 10, c, p. 28. 
 See also Petition. 
 
 ANCILLARY RECEIVERS. 
 
 application for, when, § 10, e, p. 29. 
 when appointed, § 10, e, note, p. 29. 
 to what court to report, § 10, e, note, p. 29. 
 
 ANNUITANT, 
 
 when entitled to appointment of receiver, § 180, b, p. 302. 
 appointment of receiver in case of delinquency, § 4, c, p. 8. 
 
 APPEAL, 
 
 from order appointing a receiver, § 22, k, p. 70; § 22, 1, p. 73. 
 
 supersedeas bond suspends receiver, § 22, k, note, p. 70. 
 
 power of receiver to take, § 41, p. 117. 
 
 receiver cannot, from decree distributing assets, § 22, 1, p. 73. 
 
 by receiver, rule governing, § 417, p. 632.'^ 
 
 effect of, § 41, p. 117. 
 
 as to custody, § 23, note, p. 63. 
 
 court cannot, in anticipation of judgment, make order continuing 
 receivership pending appeal, § 23, k, p. 70. 
 
 does not suspend power of receiver, § 358, e, note, p. 84. 
 none from approval of report and account, § 356, e, p. 594. 
 U. S. Supreme Court will not appoint receiver pending, when, § 12, d, 
 
 note, p. 35. 
 from order of removal of receiver, § 330, e, p. 564, 
 
 APPELLATE COURT, 
 
 power of, on appeal, § 5, a, note 1, p. 12. 
 will not review appointment, § 21, note, p. 59. 
 
 ^ APPLICATION FOR DIRECTIONS, 
 by receivers, § 401, p. 619. 
 
 See also Instructions. 
 
 APPLICATION FOR RECEIVER, 
 
 by plaintiff generally, § 10, a, p. 27. 
 
 when by defendant, § 10, a, p. 27. 
 
 care of court required in granting, § 10, b, p. 27. 
 
 defendant must liave notice, when, t^ 5, d, p. 14. 
 
 notice of, when not required, ij 5, d, p. 14. 
 
 party in posses.sion must be heard, § 5, d, p. 14. 
 
 when heard in vacation, § 18, p. 54. 
 
 when heard in chambers, § 18, p. 54. 
 
 leave of court necessary to, § 93, p. 183. 
 
 at what stage of suit to be made, § 375, p. 604. 
 
 must be in reasonable time, § 10, c, p. 28. 
 
 averments must be clear and distinct, ^ 10, c, p. 23. 
 
 prayer necessary, § 10, c, p. 28. 
 
 must show disinterestedness of appointee, § 10, d, p. 23,
 
 704 INDEX. 
 
 [References arc to sections and pages in body.] 
 APPLICATION FOR RECEIVER, continued. 
 
 statutory requiicments. § 387, p. 609. 
 
 notice of. fxcnerally, ^ 374, p. 603. 
 
 notice of application for railway, § 271, p. 454. 
 
 wlien granted before answer, g 376, p. 604. 
 
 effect of giving bond, § 378, p. 604. 
 
 of corporation by judgment creditors, § 22.'3, k, p. 3G3. 
 
 subsequent receivers — ancillary, § 10, e, p. 29. 
 
 form of notice of, No. 8, p. 642. 
 
 See also CoMrLAiNT, Pktition and Foums. 
 
 APPLICATION FOR DISCHARGE OF RECELVER, 
 by whom to be made, § 330, c, p. 560. 
 
 See also Discii.\iige and Removal. 
 
 APPLICATION FOR REMOVAL OF RECEIVER, 
 by whom to be made, § 330, p. 560. 
 
 See also Removal and Discharge. 
 
 APPOINTMENT OF RECEIVER, 
 
 incident of a chancery court, § 7, p. 2. 
 
 usually on interlocutory order, § 22, note, p. 63. 
 
 statutory, § 4, p. 6. 
 
 who eligible when a party to suit, § 10, c, note, p. 28. 
 
 when party entitled to possession incompetent, § 4, a, p. 7. 
 
 in case of infancy, § 4, a, p. 7. 
 
 in case of lunacy, § 4, a, p. 7, Appx. p. 695. 
 
 in case of decedent's estates, § 4, a, p. 7. 
 
 for disqualitication of party, § 4, b, p. 7. 
 
 for disqualification of partners, § 4, b, p. 7. 
 
 for disqualification of tenants in common, § 4, b, p. 7, 
 
 in case of claimants of legal title, § 4, b, p. 7. 
 
 in case of trustees, ^ 4, c, p. 8. 
 
 in case of executors and administrators, § 4, c, p. 8. 
 
 in case of mortgagor in possession, § 4, c, p. 8. 
 
 in case of judgment debtor, § 4, c, p. 8. 
 
 in case of vendee, § 4, c, p. 8. 
 
 in case of specific performance of contract, § 4, c, p. 8. 
 
 in case of delinquent annuitants, § 4, c, p. 8. 
 
 in case of life tenants, g 4, c, p. 8. 
 
 in case of waste, § 4, c, p. 8. 
 
 in case of officer's mismanagement, § 4, c, p. 8. 
 
 in case of assignees, § 4, c, p. 8. 
 
 where common law proceeding inadequate, § 4, d, p. 9. 
 
 in creditor's suits, § 4, d, p. 9. 
 
 in estates of married women, § 4, d, p. 9. 
 
 in case of insolvent corporations, § 4, d, p. 9, Appx. p. 691. 
 
 after decree, when, § 4, d, note, p. 9. 
 
 when wrongful, power of court, § 4, c, note 2, p. 8. 
 
 rules governing, § 5, p. 10.
 
 INDEX. 705 
 
 [References are to sections and pages in body.l 
 APPOINTMENT OF RECEIVER, continued, 
 in the discretion of the court, § 5, a, p. 10. 
 only where plaintiff's recovery probable, § 5, a, p. 13, 
 not because no injury will result, § 5, a, note 2, p. 13. 
 not unless danger, § 5, b, note, p. 12. 
 danger of property a prerequisite, § 5, c, p. 14. 
 not where remedy at law, § 5, c, note, p. 14. 
 plaintiff's locus standi, § 5, b, p. 12. 
 review of, § 5, a, note 1, p. 11. 
 
 defendant must have opportunity to be heard, ^ 5, d, p. 14. 
 at what stage made, § 9, p. 26. 
 
 must be suit pendiug, § 9, a, p. 26; § 13, p. 35. 
 
 when before answer, § 9, b, p. 26. 
 
 when after decree and sale, § 9, c, p. 26. 
 
 when after appeal, § 9, d, p. 27. 
 
 prior to filing of bill a nullity, § 9, p. 26. 
 
 after decree when, § 9, note, p. 26. 
 obtained by collusion, § 10, note, p. 27. 
 in subsequent suit, § 10, c, note, p. 28. 
 scope of bill or petition, § 11, p. 32. 
 grounds for, wrongful appropriation of money, § 11, note, p. 33. 
 
 waste is, when, ^ 5, b, note, p. 12. 
 
 not made if other adequate remedy, § 11, note, p. 32. 
 
 not made where irreparable injury from, § 11, note, p. 32. 
 
 not made because most convenient, § 15, f, note, p. 44. 
 damages for wrongful, § 11, note, p. 32. 
 time when appointed, § 12, a, p. 33. 
 
 not before hearing on foreign decree, § 12, a, note, p. 33. 
 
 not before service in bankruptcy case, § 12, note, p. 33. 
 
 not made without notice, before time for appearance expires, § 12, a, 
 note, p. 33. 
 
 before time for appearance, irregular, § 12, b, note, p. 33. 
 
 before answer, danger required, § 12, b, note, p. 33; § 9, b, p. 26. 
 in case of corporation, § 12, b, note, p. 33. 
 
 when answer shows improperly revoked, § 12, b, note, p. 33. 
 
 when answer denies allegations of bill, § 12, b, note, p. 33. 
 
 by consent, not reversed on appeal, § 12, b, note, p. 33. 
 
 after trial and before decree when, § 12, c, p. 34. 
 
 when after decree, § 12, c, p. 34; § 12, d, note, p. 35; g 22, note, p. 63. 
 
 after decree strong case to be made, g 12, c, note, p. 34. 
 
 before redemption made, § 12, c, p. 34. 
 in creditor's suit, ^ 12, c, note, p. 34. 
 
 after decree and an appeal, § 12, d, p. 35. 
 
 after appeal in probate of will, ^ 12, d, note, p. 35. 
 not in Supreme Court of U. S., § 12, d, note, p. 35. 
 refused if the only property is a decree, § 13, note, p. 35. 
 general rules governing, § 14, p. 37. 
 grounds of jurisdiction, generally, g 15, p. 37. 
 
 45
 
 706 INDEX. 
 
 [Roferences are to sections and pajrcs in body.] 
 APPOINTMENT OE RECEIVER, continued. 
 
 grounds of jurisdiction, when not entertained generally, t^ 16, p. 45. 
 caution required of court, § 15, a, p. 38. 
 possession of properly not requisite, § 12, b, note, p. 33. 
 preservation of property necessary, § 15, a, p. 38. 
 must be danger of loss, § 15, b, p. 39. 
 
 refused if security given, § 15, b, p. 39. 
 
 in case of fraud, § 15, c, p. 40. 
 
 in case of insolvency, § 15, d, p. 41. 
 
 plaintilT's title must be clear, § 15, c, p. 43. 
 
 refused when legal title alone involved, § 15, e, p. 43. 
 
 refused when remedy at law exists, § 15, f, p. 44. 
 effect of, generally, § 7, p. 23; § 17, a, p. 45. 
 
 as to possession, § 17, d, p. 48; § 44, p. 122. 
 
 removes defendant from possession, § 17, b, p. 47. 
 
 places property in custodia legis, § 7, a, p. 23. 
 
 right to custody limited, § 17, e, p. 50. 
 
 as to title, § 17, d, p. 48; § 44, p. 122. 
 
 as to property, § 17, h, p. 53. 
 
 as to third parties, § 17, d, note, p. 48. 
 
 as to liens, § 44, p. 122; § 17, d, note, p. 48. 
 
 as to landlord, t^ 17, d, note, p. 48. 
 
 as to contracts, mortgages, etc., § 17, f, p. 51. 
 
 as to when receiver's rights accrue, § 17, g, p. 53. 
 
 he cannot be sued, § 7, b, p. 23. 
 
 determines no rights and affects no liens, § 7, c, p. 23. 
 
 as to courts of co-ordinate jurisdiction, § 17, c, p. 47. 
 
 is in nature of equitable execution, § 23, note, p. 73; § 44, p. 122. 
 court's exercise of jurisdiction, § 18, p. 54. 
 order does not relate to date as to strangers, § 17, g, p. 52. 
 
 erroneous, protects receiver, ^ 17, c, p. 47. 
 conflict of jurisdiction, ^ 19, p. 56. 
 scope of jurisdiction, § 20, p. 58. 
 who to be appointed generally, § 21, a, p. 59. 
 
 competency required, § 21, b, p. 59. 
 
 must be indifferent person as to all the parties, § 21, b, p. 59. 
 
 rests within discretion of court, § 21, b, p. 59. 
 
 selection of the parties, § 21, b, p. 59. 
 
 English practice outlined. § 21, b, p. 59. 
 who incompetent, § 21, b, p. 59. 
 
 appellate court will not interfere with, § 21, note, p. 59. 
 form and scope of order, must describe property, § 22, a, p. 63. 
 
 embraces all acts necessary to preserve property, § 22, b, p, 63. 
 
 as to custody of property, § 22. c, p. 64. 
 
 as to third parties, § 22, d, p. 64. 
 
 relates from what time, § 22, e, p. 65. 
 
 as to title, § 22, f, p. 65. 
 
 as to assignment of property, § 22, f, p. 65. 
 when modified, § 22, g, p. 66.
 
 INDEX. 707 
 
 [Refei'ences are to sections and pages in body.] 
 APPOINTMENT OF RECEIVER, continued. 
 
 form and scope of the order, effect of recitals in, § 23, g, p. 66. 
 
 collateral attack, § 22, h, p. 60. 
 
 irregularity of, § 22, i, p. 68. 
 
 ■when revoked, § 22, j, p. 69. 
 
 effect of collusion, § 22, j, p. 69. 
 
 when improvidently made, ^^ 22, j. p. 69. 
 
 when court without jurisdiction, § 22, j, p. 69. 
 
 when void, § 22, j, p. 69, Appx. p. 695. 
 
 application to vacate — when made, § 23, j, p. 69. 
 evidence of, § 22, h, p. 66. 
 collateral attack, § 25, f, p. 85. 
 
 cannot be, when, § 23, h, p. 66. 
 parly consenting to cannot contest, § 23, h, note, p. 66. 
 judgment creditor cannot attack, ^ 23, h, note, p. 66. 
 cannot be attacked by levying creditor, ^ 22, h, note, p. 66. 
 purchaser cannot attack in absence of fraud or mistake, g 22, h, note, p. 66, 
 not attacked in matter of compensation, § 22, h, p. 66. 
 when not in compliance with statute is void, § 33, i, p. 68. 
 void, may be collaterally attacked, § 33, h, p. 66. 
 for void order, § 25, f, p. 85. 
 
 not attacked in contempt proceedings, § 23, h, note, p. 66. 
 void order does not disqualify second appointment, ^ 23, i, p. 68. 
 not void for want of execution returned nulla bona, ^ 33, i, note, p. 68. 
 irregular, § 22, i, note, p. 68. 
 
 of permanent receiver revokes temporary appointment, § 23, 1, p. 69. 
 application to vacate order, § 23, j, p. 69. 
 
 when order appealed from, § 22, k, p. 70. , 
 
 effect of appeal from order, § 33, 1. p. 73. 
 bond required, generally, § 23, p. 73. 
 
 amount fixed by order, § 23, a, p. 73. 
 
 subject to modification, § 23, b, p. 75, 
 
 amount of, how fixed, g 23, b, p. 75. 
 
 to wuom given, g 23, b, p. 75. 
 revoked for want of bond, Appx. p. 695. 
 when authority to sue denied receiver must prove such au- 
 thority, ii 71, note, p. 158. 
 in supplementary proceedings, § 153, p. 355; g 157, p. 261. 
 
 generally, § 160, p. 264. 
 in foreclosure of mortgage, generally, J^ 170, p. 206; § 173, p. 207, 
 Appx. p. 694. 
 
 general rules applicable to, § 178, p. 299. 
 
 jurisdiction of court, § 176,p. 295. 
 
 practice, § 389, p. 609. 
 not in foreclosure of mortgage, when, § 173, p. 278. 
 in foreclosure absolute refused in England, § 12, c, note, p. 35. 
 scope of order in foreclosure proceedings, i^ 176, p. 295, 
 form of order in railway foreclosure, No. 11, p. 645.
 
 708 INDEX. 
 
 [References are to sections and pages in body.] 
 APPOINTMENT OF RECEIVER, continued, 
 who entitled to, generally, § 180, p. 302. 
 
 when wife entitled to, § 180, a, p. 302, Appx. p, 694. 
 
 when annuitant entitled to, § 180, b, p. 302. 
 
 when bondholder entitled to, § 180, c, p. 303. 
 
 when vendor entitled to, § 180, d, p. 303. 
 in decedent's estate, generally, § 300, p. 536. 
 on ex parte application, Appx. p. 694. 
 in case of partnership, § 190, p. 305. 
 
 prerequisites to, § 193, p. 309. 
 
 who to be appointed, ^ 194, p. 311. 
 
 where a meral)er retires, tj 195, p. 313. 
 
 when insolvent partner assigns, t^ 196, p. 315. 
 
 on dissolution by death, g 197, p. 316. 
 
 on application of creditor, § 198, p. 318. 
 
 on expiration of partnership agreement, g 200. p. 831. 
 
 for exclusion of partner, § 201, p. 321. 
 
 for fraud by partner, § 202, p. 323. 
 
 for mismanagement by partner, § 203, p. 334. 
 
 on insolvency, ^ 204, p. 326. 
 
 on dissolution, § 205, p. 329. 
 
 before dissolution, § 206, p. 333. 
 
 lack of profits no ground for, § 305, p. 333. 
 
 on miscellaneous grounds, § 207, p. 335. 
 
 epecial grounds for refusal of, § 208, p. 335. 
 
 powers and duties of, § 209, p. 336. 
 
 effect of, § 310, p. 338. 
 
 limited partnership, generally, § 199, p. 319. 
 for corporations, generally, § 320, p. 343. 
 
 statutory power of court in, § 321, p. 345. 
 
 power of court discretionary, ^ 222, p. 347. 
 
 limitation of court's power, g 323, p. 349. 
 
 application, by whom to be made generally, § 331, p. 350. 
 
 grounds for, generally, § 335, a, p. 335; § 336, p. 363. 
 
 fraud is ground for, when, § 337, p. 369. 
 
 on ground of insolvency, § 328, p. 367. 
 
 in foreclosure proceedings, § 339, p. 371. 
 
 effect of, g 330, a, p. 371. 
 
 his relationship, generally, § 331, p. 375. 
 
 as manager, when, § 333, p. 375. 
 for national banks, generally. § 352, p. 419. 
 
 power of comptroller to appoint, generally, § 353, p. 435. 
 
 powers of governed by statute, § 354, p. 436. 
 
 title of receiver, generally, § 355, p. 439. 
 
 practice, ^ 388, p. 609. 
 for railways, generally, § 371, p. 454; § 273, p. 456. 
 for insolvency, § 373, b, p. 467. 
 
 when not appointed, generally, § 373, p. 465.
 
 INDEX. I'OO 
 
 [References are to sections and pag-es in body.] 
 APPOINTMENT OF RECEIVER, continued, 
 over trust property, generallj', § 305, p. 539. 
 when made in lieu of trustee, § 3C6, p. 540. 
 ground for, lieu of trustee, ^ 306, p. 540. 
 when not made in trust cases, § 306, b, p. 543. 
 form of affidavit for, in foreclosure. No. 6, p. 641. 
 
 in judgment creditor's action. No. 7, p. 642. 
 form of complaint for, in dissolution of partnership. No. 1, p. 636. 
 as to partnership property. No. 3, p. 638. 
 against corporation. No. 5, p. 640. 
 form of notice of application for, No. 8, p. 642. 
 form of order for, general, No. 9, p. 643. 
 
 in case of manufacturing corporation. No. 10, p. 644. 
 for railway. No. 11, p. 645. 
 for railway, No. 12, p. 648. 
 on foreclosure of mortgage. No. 13, p. 650. 
 for partnership, No. 14, p. 651. 
 to manage mine. No. 16, p. 653. 
 because of misconduct of officers, No. 17, p. 654. 
 for specific property. No. 18, p. 655. 
 
 without prejudice to former encumbrancers, No. 19, p. 055. 
 of rents, profits, etc.. No. 20, p. 656. 
 in cases of fraudulent assignment, § 307, p. 543. 
 in lieu of testamentary trustee, § 308, p. 544. 
 in infants' estates, § 309, p. 545. 
 in lunatics' estates, § 310, p. 547. 
 as between vendor and vendee, § 315, p. 548. 
 between debtor and creditor, § 316, p. 549. 
 in partition suits between tenants in common, § 317, p. 549. 
 where tenant in common excludes cotenant, § 317, a, p. 550. 
 where tenant in common refuses to account to the cotenant, ^ 317, b, p. 550. 
 where tenant in common will not join in executing lease, § 317, c, p. 550. 
 necessary to protect cotenant's interest, § 317, d, p. 550. 
 in suits of specific performance, § 318, p. 551. 
 as between lessor and lessee, § 319, p. 551. 
 in ejectment suits, § 320, p. 551. 
 in suit for alimony, § 321, p. 552. 
 for building and loan associations, § 322, p. 552. 
 ground for, over building and loan associations, § 323, p. 554. 
 pleading and practice in, ^ 370, p. 601. 
 when and how asked, § 371, p. 602. 
 prayer for, petition to contain, § 372, p. 603. 
 notice of application for, t^ 374, p. 603. 
 when application for to be made, t^ 375, p. 604. 
 when made before answer, § 376, p. 604 
 bond required, § 377, p. 604. 
 effect of giving bf>nd, § 378, p. 604. 
 form of the bond, g 379, p. 605.
 
 710 INDEX. 
 
 [References are to sectiuns aiul pajres in boily.] 
 APPOINTMENT OF RECEIVER, continued. 
 
 pleading and practice in, affidavit as basis of order for, § 384, p. 607. 
 
 when reference advisable, § 385, p. 008. 
 
 Btalutory proceedings iu, Ss 387, p. COO, 
 
 scope of order, § 380, p. 606. 
 
 attack on void order, § 396, p. 615. 
 
 ARREST OF JUDGMENT. 
 
 what considered under, § 81, p. 180. 
 
 See also Motions and Judgment. 
 
 ASSESSMENT, 
 
 receiver's power to enforce, § 408, p. 623. 
 
 power of receiver to make, § 233, m, p. 390. 
 
 power to make depends on facts rendering it necessary, § 71, note, p. 158. 
 
 averment of liability of the company required, § 71, note, p. 158. 
 
 complaint must aver a right of action in the receiver, § 71, note, p. 158. 
 
 a prerequisite to liability of stockholder, § 77, note, p. 173. 
 
 stockholder must be a party to suit liable on in Illinois, § 77, note, p. 173. 
 
 ASSETS, 
 
 concealed, receiver may recover, § 75, (5), p. 171. 
 
 suits by receivet of corporation to recover, § 235, a, p. 398. 
 See Powers of Receiver. 
 ASSIGNEE. 
 
 appointment of receiver in case of. § 4, c, p. 8. 
 suit by, in foreign jurisdiction, § 78, f, note, p. 167, 
 
 ASSIGNEE FOR BENEFIT OF CREDITORS. 
 
 appointment of receiver in lieu of, when fraudulent, § 307, p. 513. 
 See Appointment op Receiver and Fraud. 
 
 ASSIGNMENT, 
 
 deed of, by receiver, § 418, p. 632. 
 
 to receiver, not required as to real estate, § 17, b. note, p. 47. 
 court has power to compel, § 22, f, note, p. 65. 
 how removed when fraudulent, § 149, a, p. 249. 
 fraudulent, appointment of receiver in case of. § 149, a, p. 250. 
 
 as ground for creditors' bill, where liabilities fictitious § 149, a, p. 250. 
 as ground for creditors' bill, where assets are omitted, § 149, a, p. 250. 
 where possession remains in debtor, § 149, a, p. 250. 
 for reservation in instrument, § 146, a, p. 250. 
 on terms of instrument, § 149, a, p. 250. 
 to receiver of partnership. No. 25, p. 660. 
 
 See also Transfer and Reassignments. 
 ATTACHMENTS, 
 
 effect upon receiver's possession, § 43, p. 121 ; § 44, p. 122. 
 
 ATTACK— COLLATERAL, 
 
 upon action by receiver, § 241, p. 415. 
 
 on void order of appointment § 396, p. 615. 
 
 See Appointment, Discharge, Etc.
 
 INDEX. 711 
 
 [References are to sections and pages in body.] 
 ATTORNEYS' FEES, 
 
 allowance of, § 358, p. 597. 
 
 not preferred claim against railway, when, § 281, c, p. 498. 
 
 as claims against receivership fund,- § 341, a, p. 573. 
 
 included in distribution of funds, § 358, p. 597. 
 
 liability of receiver for, § 129, p. 230. 
 
 See Fees and Compensation. 
 
 ATTORNEY FOR RECEIVER, 
 who appointed, | 29, p. 89. 
 
 AUTHORITY. 
 
 See Power. 
 
 B. 
 
 BANKRUPTCY, 
 
 of corporation, ground for appointment of receiver 
 See Grounds and Insolvency. 
 
 BANKRUPTCY PROCEEDINGS, 
 possession affected by, § 43, p. 121. 
 
 BANKS— NATIONAL, 
 
 appointment of receiver for, practice, § 388, p. 609. 
 
 See Appointment op Rbceiver and National Banks. 
 BILL. 
 
 or petition, allegations of, § 11, note, p. 32. 
 
 for appointment of receiver, necessary allegations in case of insolvency of 
 
 corporation; § 228, p. 370. 
 dismissal of, does not of necessity discharge, § 22, d, note, p. 69. 
 leave of court necessary to filing, § 93, p. 183. 
 See Petition and Complaint. 
 
 BOND OF RECEIVER, 
 generally, § 23, p. 73. 
 
 further requirements concerning, § 377, p. 604. 
 required before possession taken, § 48, p. 133. 
 
 giving of bond is a condition precedent to beginning suit, § 44, note, p. 122. 
 when approved, § 23, b, note, p. 75. 
 when not required, § 23, a, note, p. 73. 
 special receiver must give, § 23, a, note, p. 73. 
 approval of nunc pro tunc, § 23, a, note, p. 73. 
 presumed to have been given, § 17, g, p. 52. 
 two bonds for two appointments of same property not required, § 23, a, 
 
 p. 73. 
 when improperly filed, § 23, a, note, p. 73. 
 to whom given, § 23, b, p. 75. 
 amount to be fixed in order, § 23, b, p. 75. 
 subject to modification, § 23, b, p. 75. 
 sureties, who may be, ^5. 23, b, note, p. 75; § 23, c, p. 70. 
 how approved, g 23, c, p. 7G.
 
 712 INDEX. 
 
 [References are to sections and pages in body.] 
 BOND OF RECEIVER, coutinued. 
 
 sureties, how discharged, § 28, c, p. 76. 
 
 liability of, where principal absconds, § 23, c, p. 76. 
 for money borrowed by receiver, § 23, e, p. 78. 
 for money in hands of receiver, § 23, e, p. 7iJ. 
 how determined, § 23, e, p. 78. 
 how enforced, § 380, p. 606. 
 for interest, § 23, e, p. 78. 
 for costs, § 23, e, p. 78. 
 Statute of Limitations, § 23, d, p. 77. 
 enforcement incidental to, § 18, note, p. 54. 
 suit on, when brought, § 23, d, p. 77. 
 when suit maintained on, by receiver, § 80, p. 179. 
 advantage taken if informal, by whom, § 23, a, note, p. 73. 
 may be renewed or increased, § 379, p. 605. 
 form of, § 379, p. 605. 
 effect of giving, § 378, p. 604. 
 in supplementary proceedings, § 153, p. 255. 
 form of, for receiver of partnership, No. 22, p. 658. 
 for receiver, general, No. 23, p. (ioi). 
 for receiver, short form. No. 24, p. 660. 
 
 BONDHOLDERS, 
 
 rights of, to appointment of receiver, § 180, c, p. 303. 
 
 BOOKS, 
 
 order for defendant to turn over, No. 31, p. 665, 
 
 BREA.CH OP COVENANT, 
 
 as ground for appointment of receiver, § 225, b, p. 358. 
 See also Covenant. 
 
 BUILDING AND LOAN ASSOCIATIONS, 
 
 insolvency of, ground for receiver, § 228, p. 367. 
 ground for appointment of receiver for, § 323, p. 554. 
 appointment of receiver for, § 322, p. 553. 
 See also Corporation and Loan Companies. 
 
 BUSINESS, 
 
 powers of receiver to continue, § 33, p. 96. 
 
 See also Powers of Receiver. 
 
 c. 
 
 CAPITAL STOCK. 
 
 See Stock and Coupokations. 
 
 CARE OF COURT, 
 
 in appointment, § 10, p. 27. 
 
 See also Duty and Jurisdiction. 
 
 CARRIERS. 
 
 See Common Carriers.
 
 INDEX. T13 
 
 [References are to sections and pages in body.] 
 CAT! TRUSTS, 
 
 preferential payment for, § 280, p. 491. 
 
 rental to when contract price governs, § 280, c, p. 404. 
 
 rentals to, how determined, § 280, c, p. 494. 
 
 when vendor entitled to return, § 280, d, p. 494. 
 
 construction of contracts relating to, § 281, b, p. 499. 
 
 CAUTION— JUDICIAL, 
 
 required of court in appointment of receiver of corporation, § 2C2, p. 377. 
 See also Discretion and Judicial Caution. 
 
 CERTIFICATES OP RECEIVER, 
 
 generally, § 287, p. 522. 
 when valid, Appx. p. 696. 
 when void, § 26, a, note, p. 85. 
 power of receiver to i.ssue, § 40, p. 117. 
 obtaining leave to issue, § 411, p. 626. 
 
 when a preferred claim against receivership's fund, § G43, p. 578. 
 See also Duties and PowEiis. 
 
 CHANCERY COURT, 
 
 has no power to litigate as to title, § 72, note, p. 160. 
 
 See also Equity Coukt, Court, and Jurisdiction, 
 
 CHANCERY POWER, 
 
 in appointment, § 4, b, p. 7. 
 
 See also Jurisdiction, etc. 
 
 CHANGE OF VENUE, 
 
 carries with it appointment of receiver, § 18, note, p. 54, 
 See also Venue. 
 
 CHARTER, 
 
 repeal of, ground for appointment of receiver of corporation, § 225, f, 
 
 p. 861. 
 violation of, ground for appointment of receiver of corporation, § 225, j, 
 p. 362. 
 
 See also Ultra Vires. 
 
 CHATTEL MORTGAGES, 
 
 illegal when avoided, § 76, p. 172. 
 
 See also Liens and Mortgages, 
 
 CHOSES IN ACTION, 
 
 receiver's title as to, generally, § 64, p. 146. 
 
 in case of nonresidents, § 63, p. 145. 
 receiver's power to set aside assignment of, § 64, p. 146. 
 
 CIRCULARS AND PUBLICATIONS, 
 possession affected by, g 43, p. 121. 
 
 CLAIMANTS, 
 
 of legal title, appointment of receiver in case of, g 4, b, p. 7.
 
 TU INDEX. 
 
 LReferenccs are to sections and pages in body.] 
 CLAIMS. 
 
 conflicting, how determined, § 415, p. 630. 
 
 of mortgagee, what claims are prior to on receiversliip fund, § 342, p. 574. 
 
 against receiversliip fund, generally, ^ 340, p. 508. 
 
 receiver must be disinterested in, § 340, a, p. 5G8. 
 
 must be paid in the order of distribution, i^ 340, b, p. 569. 
 
 must be proved within lime allowed by court, § 340, c, p. 5G9. 
 
 how determined, § 340, d, p. 570. 
 
 •what allowed as such. § 341, p. 572. 
 
 preferred, ground for allowance of, § 342, p. 574. 
 
 nature of those preferred, § 343, p. 576. 
 
 when not preferred, though of a nature to be preferred, § 343, p. 579. 
 of surety when allowed from receivership fund, J5 341, c, p. 574. 
 form or order, appointing commissioner for hearing. No. 29, p. 663. 
 
 for payment of. No. 30, p. 664. 
 form of petition for permission to compromise, No. 35, p. 608. 
 
 CLASSIFICATION, 
 
 of receivers, generally, § 8, p. 25. 
 CLOUD UPON TITLE, 
 
 removal of, § 147, p. 240. 
 COLLATERAL ATTACK, 
 
 oa order appointing receiver, g 22, h, p. 66; ^ 25, f, p. 85. 
 
 on void order of appointment, ^ 396, p. 615. 
 
 upon action by receiver, § 241, p. 415. 
 COLLATERALS, 
 
 order for distribution of funds concerning, § 358, h, p. 601. 
 COLLATERAL SECURITY, 
 
 claim of against receivership fund, § 341, d, p. 574. 
 
 COLLECTION, 
 
 of money, interference with receiver's possession, g 47, p. 132. 
 
 powers of receiver of national bank to make, § 254, p. 426. 
 See also Powers. 
 COLLUSION, 
 
 effect of on order of appointment, g 22, j, p. 69. 
 
 ground for appointment of receiver in partnership, § 207, p. 335. 
 
 will destroy character of preferred claim, § 343, p. 579. 
 See also Fr.\ud. 
 COMITY, 
 
 suit under, § 73, f, note, p. 167. 
 
 right to sue under, ^ 73, f, note, p. 167. 
 
 as to suits by receiver, § 17, d, note, p. 48. 
 
 when exercised, § 17, e, p. 50. 
 
 interstate, when enforced, § 37, note, p. 108. 
 
 of nations, as to transfer of personal property, § 37, note, p. 108. 
 
 COMMISSION, 
 
 as a basis of receiver's compensation, § 350, b, p. 585. 
 See also Feks and Compensation.
 
 INDEX. 715 
 
 [References are to sections aud pages in body.] 
 COMMON CARRIER, 
 
 suits against, leave of court not required, g 94, p. 187. 
 liability of receiver as, § 109, p. 203; § 113, p. 208. 
 liability of receiver of railway as, § 285, a, p. 508. 
 for negligence, § 285, d, p. 516. 
 for goods lost in shipping, § 285, d, p. 516. 
 See also Railways. 
 
 COMMON LAW RISK, 
 
 inadequacy of, ground for appointment, § 4, d, p. 9. 
 
 COMPENSATION OF RECEIVER, 
 
 generally, ^ 350, p. 583. 
 
 must be reasonable, elements of, § 350, a, p. 583. 
 fixed on commission basis, § 350, b, p. 585. 
 when to be a salary, § 350, c, p. 587. 
 within discretion of court, .see Appx. p. 696. 
 when court will refuse, § 350, d, p. 588. 
 when plaintiff shall pay, § 350, e, p. 588. 
 does not depend on result of litigation, ^ 350, f, p. 589. 
 entitled to priority over certificates and labor claims, j^ 350, g, p. 589. 
 additional allowances, § 350. h, p. 590. 
 statutory compensation, § 350, i, p. 591. 
 order fixing, not revoked, ^ 350, j, p. 593. 
 not allowed, when, § 111, p. 206. 
 
 lack of, no grounds for refusal to discharge, § 330, g, p. 567. 
 COMPLAINT, 
 
 form of, for dissolution of partnership and for receiver. No. 1, p. 636. 
 
 against insolvent corporation. No. 2, p. 637. 
 
 allegations in, for receiver of partnership property. No. 3, p. 638. 
 
 in foreclosure, No. 4, p. 639. 
 
 by creditor against corporation for account, to set aside judgment, and 
 for receiver. No. 5, p. 640. 
 
 by creditor on bond of receiver for failure to pay money. No. 67, p. 784. 
 
 must show leave of court to sue, see Appx. p. 698. 
 See also Bill of Complaint. 
 
 COMPOUNDING DEBTS, 
 
 when to be made, § 28, note, p. 88. 
 
 power of receiver of National Bank, § 254, p. 426. 
 See also Powkus of Rkckiver. 
 COMPROMISE, 
 
 power of receiver to make, § 28, p. 88. 
 
 leave to receiver to make, § 407, p. 623. 
 
 power of receiver of corporation to make, § 233, d, p. 383. 
 
 form of petition for permi8.sion to make. No. 35, p. 668. 
 COMPTROLLER OF CURRENCY, 
 
 power of, to appoint receiver, § 253, a, p. 421. 
 for National P.ank, ^ 253, p. 425. 
 
 power of, to deleimiue liuijilily of stockholders of bank, ^ 258, a, p. 437.
 
 716 INDEX. 
 
 [References are to sections and pases in body.] 
 CONCEALED ASSETS, 
 
 receiver may recover, § 75, (5), p. 171. 
 
 CONCEALED PKOPERTY, 
 
 proceediDgs to reach, § 147, p. 240. 
 
 CONDEMNATION PROCEEDINGS, 
 possession affected by, § 43, p. 121. 
 
 CONDITIONAL CONTRACTS. 
 
 receiver's title under, § 60, p. 143. 
 
 CONDITIONAL SALE, 
 
 when construed as a lease, i^ 281, f, p. 409. 
 
 of rolling stock, when fraudulent, § 281, f, p. 499. 
 
 CONFLICTING CLAIMS, 
 
 how determined, ^ 415, p. 630. 
 
 ground for appointment of receiver in trust cases, § 306, p. 541. 
 
 CONFLICT OF JURISDICTION, 
 
 in appointment of receiver, § 19, p. 56. 
 
 as between receiver of state court and marshal, § 19, note, p. 56. 
 in appointment of receivers for corporation, § 220, p. 343. 
 See also .Juhisdiction. 
 CONFUSION OF GOODS. 
 
 See Intiskmingling. 
 CONSPIRACY. 
 
 will interfere with receiver's possession, when, § 46, p. 130. 
 
 CONSTRUCTION OF CONTRACTS, 
 
 relating to rolling stock, § 281, f, p. 499. 
 
 CONTEMPT, 
 
 when interference with receiver's possession is, ^ 45, p, 126, 
 
 where forcible possession taken, § 45, note, p. 126. 
 
 how punished, § 44, p. 123. 
 
 punishment for, before giving bond, ii; 48, p. 133. 
 
 as to persons not parties, § 48, p. 133. 
 power to punish third parties for, § 22, d, note, p. 64. 
 proceeding by creditor when receiver refuses to institute proceedings, 
 
 § 45, note, p. 126. 
 of court, for not obtaining leave to sue receiver of corpor;iliou, § 242i 
 
 p. 417. 
 of receiver, for using receivership funds, § 111, p. 206. 
 
 CONTESTED WILLS, 
 
 appointment of receiver in, generally, § 300, b, p. 527. 
 See also Appointment of Receiver. 
 CONTRACTORS, 
 
 debts of, to be included in order for distribution, g 358, c, p. C9&. 
 
 CONTRACTS. 
 
 power of receiver to perform, § 35, p. 102, 
 power of receiver to make, § 283, k, p. 389.
 
 INDEX. 717 
 
 [References are to sections and pages iu body.] 
 CONTRACTS, continued. 
 
 by receiver, subject to modification, § 34, c, p. 101. 
 
 appointment of receiver to enforce, § 315, p. 548. 
 
 liability of receiver of corporation for, § 234, a, p. 391. 
 
 conditional, receiver's title under, § 60, p. 143. 
 
 construction of, relating to rolling stock, § 281, f, p. 499. 
 
 for sale of land, appointment of receiver to enforce, § 315, p. 548. 
 
 CONVEYANCE. 
 
 by undue influence, receiver may avoid, § 75, (8), p. 171. 
 
 proceedings to reach, g 148, a, p. 241. 
 
 execution not necessary in proceeding to set aside when fraudulent, § 148, 
 
 b, p. 247. 
 deed of, by receiver, § 418, p. 632. 
 
 See also Assignment and Transfer. 
 
 CORPORATE COPARTNERSHIP, 
 
 building loan associations so termed, § 322, p. 553. 
 
 CORPORATE SECURITIES, 
 
 illegally transferred, receiver may recover, § 75, (9), p. 171. 
 
 CORPORATION, 
 
 may apply for appointment of receiver, § 224, g, p. 354. 
 bankruptcy of, grounds for receiver, § 225, g, p. 361. 
 insolvency of, as ground for appointing receiver, § 228, p. 367. 
 insolvent, appointment of receiver in case of, § 4, d, p. 9. 
 
 form of complaint against, No. 2, p. 637. 
 receiver for, jurisdiction of courts of equity to appoint, i^ 220, p. 312. 
 statutory pov?er of court in, § 221, p. 345. 
 limitations of, § 221, p. 345. 
 
 power of court to appoint discretionary, § 222, p. 347. 
 discretionary power of court to impose terms, § 222, p. 348. 
 power of court to appoint, limitation of, ^ 223, p. 349. 
 when not appointed generally, § 226, p. 363. 
 must be statutory cause for dissolution, i^ 226, a, p. 303. 
 for mere disagreement, § 226, b, p. 364. 
 where reasonable efforts for redress have not been made, g 226, c, 
 
 p. 365. 
 where adequate remedy at lav?, § 226, d, p. 365. 
 ■where operating company responsible, § 286, e, p. 366. 
 where defendant is foreign corporation without property, § 226, 
 
 f, p. 36(5. 
 where right to possession in dispute, § 226, g, p. 366. 
 where right to foreclose not clear, § 226, h, p. 366. 
 wliere no danger of loss, g 226, i, p. 366. 
 where nothing to distribute, § 226, j, p. 366. 
 when claims relatively small, §^ 226, k, p. 366. 
 appoiiiimeut of, application, by whom made, generally, § 224, p. 3.'",0 
 application by creditor at large, i^ 224, a, p. 351. 
 application by surety, g 224, b, p. 353.
 
 ?.18 INDEX. 
 
 LUefercnccs are to sections and pag'cs in body.] 
 CORPORATION, continued. 
 
 receiver for, appointment of, application bj' minority stockiioldcr, § 524, 
 c, p. 353. 
 application by defendant, § 224, d, p. 353. 
 application by directors, § 224, e, p. 354. 
 application by judgment creditors, § 224, f, p. 354. 
 application by corporation, § 224, g, p. 354. 
 application to follow statute strictly, § 224, g, p. 355. 
 application by party not interested, § 224, g, p. 355. 
 grounds for appointment of, statutory, § 225, a, p. 355. 
 
 default in payment of mortgage indebtedness, g 225, b. p. 358. 
 
 breach of covenant, § 225, b, p. 358. 
 
 mismanagement by officers and directors, § 225, c, p. 359. 
 
 insolvency, § 225, d, p. 360. 
 
 refusal of officers to act, § 225, d, p. 360. 
 
 where has been dissolved, § 225, e, p. 361. 
 
 where charter repealed, § 225, f, p. 361. 
 
 bankruptcy, § 225, g, p. 361. 
 
 failure to elect officer, § 225, h, p. 361. 
 
 failure to collect subscriptions, § 225, i, p. 362. 
 
 violation of charter by majority of stockholders, § 225, j, p. 362. 
 
 violation of rights of minority stockholders, § 225, j, p. 262. 
 
 on application of judgment creditors, § 225, k, p. 363. 
 
 when not appointed, where applicant is secured, § 226, 1, p. 366. 
 
 none where property in possession of mortgagee's agent, § 226, m, 
 
 p. 366. 
 fraud is, i^ 227, p. 366. 
 
 fraud of officers and directors, g 227, p. 366. 
 fraud is, where plaintiff has legid remedy, g 227, p. 367. 
 apprehension of fraud not sufficient, § 227, j). ?,Q7. 
 plaintiff not to participate in fraud, § 227, p. 367. 
 insolvency, as indicated by statute, § 228, p. 367. 
 
 a jurisdictional fact, § 228, p. 369. 
 
 discretion of court in, § 228. p. 369. 
 
 power of court, § 228, p. 369. 
 
 application by corporation, § 228, p. 370. 
 
 ex parte application not sufficient, § 228, n. 371. 
 
 necessary allegations, § 228, p. 370. 
 in foreclosure proceedings, generally, § 229. p. 371. 
 effect of appointment, liens remain unimpaired, g 230, p. 371. 
 
 existing rights remain in statu quo, % 230, a, p. 371. 
 
 as to co-ordinate courts, § 230, c, p. 372. 
 
 as to possession, § 230, b, p. 372. 
 
 as to litigation, § 230, d, p. 373. 
 
 as to unexpired leases, § 230, e, p. 373. 
 
 as to contract of predecessor, § 230, f , p. 373. 
 
 as to revival of corporate powers, § 230, g, p. 374. 
 
 as to debtor's control of property, § 230, h, p. 374. 
 
 as to abatement of actions, § 230, i, p. 374.
 
 INDEX. 719 
 
 [References are to sections and pages in bodj-.] 
 CORPORATION, continued. 
 
 receiver for, grounds for appointment of, effect of appoiutment, relatioD 
 ship of to the court, § 231, a, p. 375. 
 to the corporate creditors, § 231, b, p. 375. 
 to the shareholders, g 231, b, p. 375. 
 to the corporation, i^ 231, c, p. 375. 
 in supplementary proceedings, fc^ 231, c, p. 376. 
 receiver for, as manager, v?hen, § 232, p. 377. 
 powers and duties of, § 232, p. 377. 
 judicial caution required of court, § 232, p. 377. 
 powers and duties of, generally, § 233, p. 380. 
 to borrow money, § 233, a, p. 380. 
 to purchase rolling stock, § 233, b, p. 3S1. 
 to make repairs, § 233, c, p. 381. 
 to compromise, § 233, d. p. 382. 
 to sue, g 233, e, p. 382. 
 to redeem, § 233, f, p. 387. 
 to pay taxes, § 233, g, p. 387. 
 to lease, § 233, h, p. 388. 
 to mortgage, § 233, i, p. 388. 
 to invest receivership money, § 233, j, p. 383. 
 to contract, § 233, k, p. 389. 
 to s§ll, § 233, 1, p. 389. 
 to make assessments, § 233, m, p. 390. 
 to take appeal, § 233, n, p. 391. 
 liability of receiver for, generally, ^ 234, p. 391. 
 on his contracts, § 234, a, p. 391. 
 for rent, § 234, b, p. 393. 
 for interest, § 234, c, p. 394. 
 for debts incurred, § 234, d, p. 394. 
 for torts, § 234, e, p. 395. 
 for damages, § 234, f, p. 395. 
 for torts when personal, § 234, e, p. 395. 
 for torts when official, ^ 234, e, p. 395 
 its extent, § 234, g, p. 396. 
 for loss in management, § 234, h, p. 393. 
 on orders of court, &^ 234, i, p. 397, 
 -uits by receiver for, generally, § 235, a, p. 397. 
 against officers, ^5 235, a, p. 397. 
 
 to recover property fraudulently disposed of, § 235, a, p. 398. 
 to recover illegal dividends, § 235, a, p. 398. 
 to recover assets, § 235, a, p. 398. 
 when officially, § 235, b, p. 399. 
 to recover stock subscriptions, g 236, p. 403. 
 extent of recovery, § 236, a, p. 402. 
 excludes right of individual creditors, § 2.36, b, p. 403. 
 collusion unavailing against, § 236, c, p. 404. 
 extent of power, § 236, d, p. 404. 
 condition precedent to, § 236, e, p. 404.
 
 720 INDEX. 
 
 [Ilofprcnces are to sections atul pages in body.] 
 CORPORATION, continued. 
 
 suit by, to recover stock subscriptions, law liability enforced, § 236, f, p. 405. 
 to avoid fraudulent transfer, § 337, p. 406. 
 
 nature of decree, § 237, p. 406. 
 to recover illegal dividends, § 238, p. 408. 
 leave of court necessary, when, § 239, p. 410. 
 when corporation foreign, § 240, p. 421. 
 in case of insolvency, § 240, a, p. 411. 
 when attachment will not lie, § 240, b, p. 412. 
 when title to property is in receiver, g 240, c, p. 412. 
 when receiver in possession, §} 240, d, p. 413. 
 to recover insurance, § 240, e, p. 414. 
 what must be averred, § 240, f, p. 414, 
 collateral attack upon. § 241, p. 415. 
 cannot be enjoined, when, § 241, p. 416. 
 
 concerning land, must be in jurisdiction where land i3, § 241, p. 
 416. 
 8uit against, must be by leave of court, tj 242, p. 417. 
 may be restrained, when, § 242, p. 417. 
 
 possession of. differs from ordinary receiver, in what, § 242, p. 416. 
 extent of receiver's title as to, § 67, p. 149. 
 foreign, suit by receiver of, rule governing, § 240, p. 411. 
 
 in foreclosure proceedings. See FouECiiOsuKE and Mortg.\ge. 
 
 COSTS, 
 
 liability of receiver for, § 109, a. p. 203. 
 when receiver entitled to, § 98, p. 194. 
 
 See Compensation and Fees. 
 
 COTENANCY, 
 
 appointment of receiver in partition suits, concerning, § 317, p. 549. 
 See Tenants in Common. 
 COUNSEL, 
 
 when receiver may employ, § 29, a, p. 89. 
 
 COUNSEL FEES. 
 
 See Attorneys' Fees. 
 COURT, 
 
 contempt of, for not obtaining leave to sue receiver of corporation, § 242, 
 
 p. 417. 
 discretion of, in appointment of receiver for insolvent corporation, § 228, 
 
 p. 369. 
 leave of, required before suit brought by receiver, when, § 239, p. 410. 
 powers of, to make all orders to preserve property, § 22, note, p. 63. 
 as to choses in action, § 63, p. 145. 
 to compel assignment, § 63, p. 145. 
 to compel transfer of property, g 72, note, p. 160. 
 to appoint receiver of corporation, discretionary, § 222, p. 347. 
 to appoint receiver of corporation limited, ^ 223, p. 349. 
 in appointment of receiver for insolvent corporation, § 328, p. 369.
 
 INDEX. 721 
 
 [References are to sections and pages in body.] 
 COURT, continued. 
 
 powers of, and judge in vacation, when synonymou-, § 18, note, p. 54. 
 U. S. Supreme Court will not appoint on appeal, § 13, d, note, p. 35. 
 attitude of, toward receivers of railways, § 370, p. 453. 
 of concurrent jurisdiction, rule as to appointment, § 19, note, p. 56. 
 
 See also Federal Court. 
 
 COURTS OF EQUITY, 
 
 jurisdiction of, to appoint receiver for corporation, § 330, p. 343. 
 power of, over receiver of National Bank appointed by comptroller, § 352, 
 c, p. 434. 
 
 COVENANT, 
 
 breach of, as ground for appointment of receiver, § 325, b, p. 358. 
 
 CREDITOR AND DEBTOR. 
 
 appointment of receiver between, § 316, p. 549. 
 
 CREDITORS, 
 
 extent of receivers title as to frauds on, § 67, p. 149. 
 
 leave of court in case of levy, § 94. p. 187. 
 
 when entitled to receiver for partoership matters, ^5 198, p. 318. 
 
 collusion with, ground for appointment of receiver in case of partnership, 
 
 § 307, p. 335. 
 foreign, effect of receiver's possession against, § 48, p. 133. 
 priority of, in supplemental proceedings, § 159, p. 263. 
 
 in supplementary proceedings, how determined, t^ 159, p. 364. 
 judgment, may apply for receiver of corporation, § 334, f, p. 354; § 235, k, 
 p. 363. 
 
 See also Appointment of Receiver. 
 
 CREDITORS' BILLS, 
 
 chancery jurisdiction in, § 146, p. 335. 
 
 regulation of, by statute, § 146, p. 236. 
 
 based on inadequacy of common law remedies, § 146, b, p. 237. 
 
 prerequisites to such proceedings, § 146, b, p. 238. 
 
 inadequacy, what is, § 146, b, p. 338. 
 
 necessity of judgment, ^ 146, b, p. 338. 
 
 necessity of execution and return, ^ 146, b, p. 339. 
 
 judgment, when not required, ^ 146, b, p. 339. 
 
 classes of creditor's proceedings, § 147, p. 340. 
 
 removal of fraudulent transfer, § 147, p. 340. 
 
 to remove cloud upon title, § 147, p. 340. 
 
 to reach concealed property, § 147, p. 240. 
 
 to reach fraudulent conveyances, § 148, a, p. 241. 
 
 action by judgment creditors, ^ 148, a, p. 241. 
 
 action by receiver, § 148, a, j). 241. 
 
 application of statute 13 Eliy;. chap. 5, and 29 Eliz. chap. 5, ^ 148, a, p. 243. 
 
 to attack invalid mortgage, <~^ 148, a, p. 244. 
 
 rule as to execution, j^ 148, b, p. 244. 
 
 exceptions to, generally, § 148, b, p. 246. 
 
 46
 
 723 INDEX. 
 
 [Ilcfcrcnces arc to sections and pafrcs in body.] 
 CREDITORS' BILLS, continued. 
 
 rule as to executions, exception in case of attachment, § 148, b, p. 2-16. 
 exception as to practical utilitj', § 148, b, p. 246. 
 exception in case of fraudulent conve3ance, § 148, b, p. 247. 
 exception where judgment debtor has absconded, § 148, b, p. 247. 
 exception in insolvents' estates, § 148, b, p. 247, 
 exception, where waived, § 148, b, p. 247. 
 judgment, when required, § 148, b, p. 248. , 
 
 jurisdiction in matters of assignment, § 149, a, p. 249. 
 assignments, when fraudulent under, § 149, a, p. 249. 
 fraudulent assignment, how removed, ^ 149, a, p. 249. 
 ground for, fraudulent assignment, ^ 149, a, p. 250. 
 
 assignments, receiver in, where assignee fails to take possession, § 149, b, 
 p. 250. 
 
 receiver in, mismanagement by assignee, § 149, b, p. 250. 
 governed by chancery practice, § 150, p. 251. 
 whom receiver represents. § 150, p. 251. 
 title of receiver in, § 150, p. 252. 
 
 fraudulent transfer, suit by receiver, when necessary, § 150, p. 252, 
 execution, how long retained, § 151, p. 252. 
 
 lifetime of execution, § 151. a, p. 252. 
 
 life of execution, contra, § 151, b, p. 253. 
 practice in Code states, § 152, p. 254. 
 appointment of receiver in, generally, § 153, p. 255. 
 
 judicial discretion of court, § 153, p. 255. 
 
 effect of statutory provisions, § 153, p. 255. 
 
 as affected b}' practice of court, § 153, p. 255. 
 
 nature of order, § 153, p. 255. 
 
 duties of receiver, ^ 153, p. 255. 
 
 bond required, § 153, p. 255. 
 liability of surety of receiver in, § 153, p. 255. 
 liability of receiver to preferred payments under, § 127, a, p. 228, 
 receiver's title in, § 153, p. 255. 
 receiver's functions, ^ 155, p. 258, 
 receiver's power in, § 154, p, 256. 
 
 as to fraudulent transfers, § 154, p. 256, 
 
 giving bond required, § 154, p. 256. 
 
 as to what property, § 154, p. 257. 
 
 as to property in hands of third person, ^ 154, p. 257. 
 
 to attack title, § 154, p. 257. 
 
 as to property in debtor's possession, § 154, p. 257. 
 
 as to trust property, § 154, p. 257. 
 
 as to exempt property, § 154, p. 257, 
 
 from what date relates, § 154, p. 257. 
 
 trustee for creditor, § 155, p. 258. 
 
 to reduce property to possession, § 155, p. 259. 
 
 to set aside fraudulent transfer, i^ 155, p. 250. 
 
 to sue and be sued, § 156, p, 260.
 
 ]NDEX. 723 
 
 [References are to sections and pag-es in body.] 
 CREDITORS' BILLS, continued. 
 
 receiver's power in, as to creditors, § 159, p. 263. 
 
 in foreign jurisdiction, § 158, p. 263. 
 power of court to compel conveyance, § 154, p. 257. 
 appointment of receiver when dispensed witli, § 15(5, p. 261. 
 order of appointment of receiver, effect of, § 157, p. 261. 
 
 eilect of reversal, § 157, p. 261. 
 
 effect as to title, § 157, p. 261; § 158, p. 262. 
 
 limitation of, § 157, p. 263. 
 creditors in, how made parties, § 159, p. 263. 
 priority of creditors in, generally, § 159, p. 203. 
 
 over purchasers, § 159, p. 263. 
 
 when determined, § 159, p. 264. 
 
 as to mortgagee, § 159, p. 264. 
 receiver's title thereunder, § 159, p. 263. 
 appointment of receiver where title involved, § 160, p. 204. 
 
 where mortgagee in possession, § 160, p. 264. 
 sale thereunder, § 159, p. 263. 
 effect of filing bill in lieu of, § 154, p. 256. 
 
 CREDITORS' LIENS, 
 
 paid from receivership fund, § 341, g, p. 574. 
 See also Liens and Priorities. 
 
 CREDITORS' PROCEEDINGS, 
 
 when receiver appointed in, § 4, d, p. 9. 
 
 who receiver represents in, ^ 6, b, note 3, p. 23. 
 
 form of affidavit for appointment of receiver in. No. 7, p. 642. 
 
 CREDITORS' SUITS, 
 
 appointment of receivers in, § 4, d, p. 9. 
 
 CROPS, 
 
 See Growing Crops. 
 CROSSING, 
 
 See Railway Crossing. 
 
 CUSTODY OF RECEIVER, 
 care exercised, ^ 6, c, p. 23. 
 
 See also Possession. 
 
 D. 
 
 DAMAGES, 
 
 resulting from death when not a preferred claim, § 343, p. 579. 
 
 resulting from fire produced from defective locomotive, when not a pre 
 
 ferred claim, §^ 343, p. 579; § 381, b. p. 498. 
 liability of receiver of corporation for, § 334, f, p. 395. 
 
 DANGER OF LOSS, 
 
 as a ground of appointment of receiver, g 5, a, note, p. 10; § 15, b, p. 39. 
 necessary to appointment, § 15, b, note, p. 39. 
 arises from waste, misconduct or in.solvency, § 15, b, p. 39. 
 See also Appointment and Grounds.
 
 724 INDEX. 
 
 [References are to sections and pages in bodj'.] 
 
 DEATH. 
 
 damages resulting from, when not a preferred claim, § 343, p. 580. 
 
 DEBTOR, 
 
 appointment of receiver in case of, § 4, c, p. 8. 
 
 extent of receiver's title as to, § 07, p. 149. 
 
 fraudulent transactions of, how impeached, ^5 08, p. 111. 
 
 DEBTOR AND CREDITOR, 
 
 appointment of receiver between, § 316, p. 549. 
 See also ArpoiNTMENT. 
 DEBTS, 
 
 obtaining leave to contract, § 410, p. 625. 
 
 DECEDENTS" ESTATES, 
 
 when receiver to be appointed for, § 4, a, p. 7. 
 generally, § 300, a, p. 526. 
 in contests over wills, § 300, b, p. 537. 
 in lieu of executors and administrators, § 301, a, p. 528. 
 misconduct and refusal to act, § 301, c, p. 534. 
 where no one competent to act as administrator, § 301, d, p. 537. 
 when not appointed, § 301, b, p. 532. 
 See also Appointment. 
 
 DECLARATION, 
 
 form of, on assessment against stockholder of National Bank, No. 68, p. 685. 
 on promissory note. No. 69, p. 687. 
 See Complaint and Form. 
 
 DEED BY RECEIVER, 
 
 rule governing, § 418, p. 632. 
 
 when before confirmation, effect of, § 34, b, note, p. 99. 
 
 DEFENDANT, 
 
 may apply for receiver of corporation, ^ 224, d, p. 353. 
 
 See also Application for Receiver and Parties. 
 DEFENSE, 
 
 to suit against stockholder of National Bank, § 258, b, p. 443. 
 
 DEFINITION, 
 
 of receiver, § 3, p. 3. 
 
 of receiver's title, § 58, p. 140. 
 
 DIRECTIONS, 
 
 application by receiver for, § 401, p. 619. 
 See also Instructions. 
 DIRECTORS, 
 
 may apply for receiver of corporation, § 224, c, p. 354. 
 suits against by receiver, for misconduct, § 76, p. 173. 
 in case of insolvency, § 76, p. 172. 
 in case of void transfers, § 76, p. 172. 
 to avoid illegal chattel mortgage, § 76, p. 172. 
 in case of excess of indebtedness, § 76, p. 172.
 
 INDEX. 725 
 
 [References are to sections and images in body.] 
 DIRECTORS, continued. 
 
 suits against by receiver, to recover assets, § 76, p. 172. 
 
 in case of acts ultra virea, § 76, p. 172. 
 of National Banks, liabilities of, to receiver, g 260, p. 448. 
 See also Officers. 
 
 DISBURSEMENTS, 
 
 duties of receiver in regard to, § 355, p. 593. 
 
 DISCHARGE AND REMOVAL OF RECEIVER, 
 
 generally, § 330, p. 557. 
 
 notice of application, § 330, a, p. 557. 
 
 application for, § 330, b, p. 558. 
 
 in sound discretion of court, § 330, b, p. 558. 
 
 by whom application for to be made, § 330, c, p. 560. 
 
 grounds for. § 330, d, p. 562. 
 
 grounds for refusal to order, § 330, g, p. 566. 
 
 effect of, § 330, f, p. 564. 
 
 as to liability of railway receiver, § 286, p. 517. 
 
 pending action, g 413, p. 629. 
 upon approval of report and account, § 356, j, p. 595. 
 on dismissal of action in which appointed, Appx. p. 696. 
 on cancellation of bond, Appx. p. 696. 
 what not ground for, Appx. p. 696. 
 
 DISCRETION OF COURT. 
 defined, § 5, a, p. 10. 
 to hear affidavits, § 11, note, p. 32. 
 governs appointment of receiver, § 5, a, p. 10. 
 in appointment of receiver for corporation, g 222, p. 347. 
 
 for in.solvent corporation, g 228, p. 369. 
 
 over trust property, § 306, p. 540. 
 to be exercised in removal of receiver, § 330, b, p. 558. 
 exercised in manner of determining claims against receivership funds, 
 
 § 340, d, p. 571. 
 in suit against receiver, § 398, p. 617. 
 
 DISCRETION OF RECEIVER, 
 
 as to price to be paid, g 31, a, p. 93. 
 
 has none in following decree, § 110, p. 205. 
 
 DISOBEDIENCE TO ORDER OF COURT, 
 
 a3 ground for application for receiver in lieu of trustee, § 306, p. 541. 
 as ground for removal and discliarge for receiver, i; 330, d, p. 562. 
 See also Rkmoval and Dischakge. 
 
 DISSENTING STOCKHOLDERS, 
 
 rights of, in suit by receiver to collect illegal dividends, § 238, p. 408. 
 
 DISSOLUTION, 
 
 of partner.ship, a cause for appointment of receiver, §205, p. 329. 
 
 a ground for appointment of receiver for corporation, § 225, e, p. 361.
 
 720 INDEX. 
 
 [Ilofercncos ai'O to sections and i)aK'os in bodj'.] 
 DISTRESS FOR RENT, 
 
 possession of receiver interfered willi, § 43, p. 131. 
 receiver liable in, § 121, p. 220. 
 ■wlicn receiver may maintain, § 80, p. 179. 
 
 in Euglanil tlie right to distrain does not depend on leave to sue, § 69, 
 note, p. 153. 
 
 DISTRIBUTION OF RECEIVERSHIP FUNDS, 
 general rules, § 357, p. 595. 
 what embraced in order for, § 358, p. 590. 
 notes secured by invalid mortgage not included in order for, § 358, b, 
 
 p. 598. 
 debts due contractors, § 358, c, p. 599. 
 to include rents and profits, when, t^ 358, d, p. 599. 
 order for, to include expenses and advances, when, § 358, e, p. 599. 
 
 to include money paid by sureties, when, § 358, f, p. 600. 
 
 when judgment claimed to be a prior lien, § 358, g, p. 601. 
 
 where collaterals held, ^ 358, h, p. 601. 
 
 DIVIDENDS, 
 
 suits by receiver of corporation to recover when illegal, § 235, a, p. 398; 
 g 238, p. 408. 
 
 DUTIES OF RECEIVER, 
 
 indiiTerent as to parlies, § 3, p. 3. 
 
 in case of partnership, i^ 209, p. 336. 
 
 as manager of coi'poralion, § 232, p. 377. 
 
 for corporation, general rules, ^ 233, p. 380. 
 
 regarding trust properly, § 305, p. 539; § 412, p. 627. 
 
 relating to reports and accounts, § 355, p. 593. 
 
 when appointed in supplementary proceedings, g 153, p. 255. 
 
 practice when exceeded, § 405, p. 622. 
 
 practice on failure to do, § 406, p. 622. 
 
 See also Functions and Powers of Receivers. 
 
 E. 
 
 EFFECT OF APPEAL, 
 
 from order removing receiver, § 330, e, p. 564. 
 See also Appeal and Removal. 
 
 EFFECT OF APPOINTMENT OF RECEIVER, 
 
 generally, § 7, p. 23. 
 
 places property in custodia legis, § 7, a, p. 23. 
 
 he cannot be sued, ^ 7, b, p. 23. 
 
 determines no rights and affects no liens, § 7, c, p. 23. 
 
 removes defendant from possession, g 17, b, p. 41. 
 
 as to title, g 17, c, p. 47. 
 
 as to possession, § 17, d, p. 48. 
 
 as to custody limited, § 17, e, p. 50. 
 
 as to coQtracts, mortgages, etc., § 17, f, p. 51,
 
 INDEX. 727 
 
 [References are to sections and pnscs in body.] 
 EFFECT OF APPOINTMENT OF RECEIVEPv, coulinued. 
 when receiver's rights accrue, § 17, g, p. 52. 
 as to properly, § 17, h, p. 53. 
 as to title, § 44, p. 122. 
 as to liens, § 44, p. 123. 
 
 EFFECT OF RECEIVEPt'S POSSESSION, 
 
 as to secured creditors, § 58, p. lofi. 
 
 as to public improvements, § 49, p. 135. 
 
 as to new business, § 50, p. 135. 
 
 as to tenants, § 51, p. 136. 
 
 as to rents, § 51, p. 136. 
 
 as to set-off, § 55, p. 138. 
 
 as to exemptions, § 56, p. 139. 
 
 as to executors and administrators, § 57, p. 139. 
 
 as to title, § 59, p. 142. 
 
 See also Possession. 
 EJECTMENTS, 
 
 possession of receiver interfered vpith, g 43, p. 121; § 44, p. 122. 
 
 appointment of receiver in cases of, § 3:20, p. 551. 
 
 ELECTION OF OFFICERS, 
 
 of corporation, failure to make, grounds for receiver, g 225, h, p. 361. 
 See also Officers. 
 
 ELIZABETH-STATUTE OF, 
 
 in what states adopted, § 148, a, p. 243. 
 
 EMERGENCY, GRAVE, 
 
 as ground for appointment, g 5, d, p. 14. 
 
 See also AppointxMent and Giiodnds. 
 
 EMPLOYEES OF RECEIVER, 
 
 are officers of court pro hac vice, § 46, p. 130. 
 See also Agents. 
 
 EQUITY COURTS, 
 
 power to appoint receivers, in suits for alimony, g 321, p. 552. 
 in sundry proceedings, § 315. p. 548. 
 over trust property, § 305, p. 539. 
 See also Courts. 
 
 ESTATES OF INFANTS, 
 
 appointment of receivers for, § 309, p. 515. 
 See also Infants. 
 
 ESTATES OF LUNATICS, 
 
 when receiver appointed over, § 310, p. 547. 
 See also Lunacy and Insamity. 
 EVOLUTION. 
 
 of law of receivership, § 7, p. 2. 
 
 EXAMINATION, 
 
 of debtor in appointment of receiver in Code states, § 386, p. 608.
 
 728- INDEX. 
 
 [Tteferencos are to sections and pages in body.] 
 
 EXCEPTIONS, 
 
 to master's findings on receiver's report, ^ n56, c, p. 594. 
 See also Rkport of lliiCnivKU. 
 
 EXECUTION, 
 
 levy of, leave of court, § 17, b, note, p. 51. 
 may be a lien but not levied, § 17, d, note, p. 48. 
 effect of, upon receiver's possession, ^ 43, p. 121; g 44, note, p. 122. 
 appointment of receiver in lieu of, misconduct and refusal to act, g 301, c, 
 p. 534. 
 
 EXECUTORS AND ADMINISTRATORS, 
 
 appointment of receiver in case of, § 4, c, p. 8. 
 
 appointment of receiver in lieu of, § 301, a, p. 528; § 301, b, p. 533. 
 
 when no one competent to act, § 301, d, p. 537. 
 of receiver, liability of, how enforced, § 135, p. 233. 
 
 liabilily of, generally, § 135, p. 233. 
 of stockholders of National Banks, § 258. a, p. 441. 
 effect of receiver's possession as to, § 57, p. 139. 
 
 EXEMPTIONS, 
 
 effect of receiver's possession as to, § 5G, p. 139. 
 claim for, when must be made, § 5G, note, p. 139. 
 
 EX PARTE APPLICATION, 
 
 when receiver granted on, § 5, d, note, p. 14. 
 void in Michigan, § 13, note, p. 35. 
 
 See also Application for Receiveb. 
 
 EX PARTE HEARING, 
 
 receiver not appointed on, § 5, d, note, p. 14. 
 
 EXPENSES, 
 
 of operating railway, power of receiver to pay preferred claim based on, 
 § 276, e, p. 481. 
 power of receiver to pay implied when ordinarj^, § 277, a, p. 483. 
 when preferred to mortgagee's claim, t^ 342, p. 575. 
 paid from receivership fund, § 341, e, p. 574. 
 to be included in order for distribution, when, ^ 358, e, p. 599. 
 See also Costs. 
 
 F. 
 
 FEDERAL COURT, 
 
 jurisdiction of, in suit by receiver of National Bank, § 252, c, p. 423. 
 See also Jurisdiction and National Banks. 
 
 FEES OF ATTORNEYS, 
 
 liability of receiver for, § 139, p. 230. 
 not preferred claim against railway when, § 281, c, p. 498. 
 as claims against receivership funds, § 341, a, p. 572. 
 See also Compensation.
 
 INDEX. 729 
 
 [References are to seotious and pages iii body.] 
 FIDUCIARY RELATIONSHIP, 
 
 violation of, cause for receiver, § 4, c, p. 8. 
 
 FILING EXCEPTIONS, 
 
 to master's fiiulings on receiver's report, i^ 356, c, p. 594. 
 See also Pkactice. 
 FINDINGS, 
 
 embodied in order of appointment, § 383, p. 607. 
 See also Forms and Practice. 
 
 FIRE, DAMAGE BY, 
 
 when claim for, not preferred, 8 281, b, p. 498. 
 
 produced bj' defective locomotive, when not a preferred claim, § 343, p. 580. 
 See also Claims and Preferred Claims. 
 
 FORCIBLE INTERFERENCE, 
 
 possession of receiver disturbed by, § 43, p. 121. 
 
 FORECLOSURE OF MORTGAGE, 
 
 appointment of receiver in, generally, § 170, p. 266; § 389, p. 609. 
 for corporation, § 229, p. 371. 
 grounds for invoking jurisdiction, § 171, p. 267. 
 
 where mortgage provides for, § 171, a, p. 267. 
 
 where statute provides for, § 171, b, p, 267. 
 
 inadequacy of security, § 171, c, p. 267. 
 
 in case of waste, § 171, d, p. 267. 
 
 nonpayment of insurance, 171, d, p. 267. 
 
 nonpayment of taxes, § 171, d, p. 267. 
 
 insolvency of mortgagor, § 171, c, p. 267. 
 where mortgage provides for, § 171 , a, p. 266. 
 for statutory cause, ^ 171, b, p. 267. 
 for inadequate security, § 171, c, p. 267. 
 for insolvency of mortgagor, p. 171, c, p. 267. 
 for insolvency of grantee of mortgagor, § 171, c, p. 267. 
 for waste by mortgagor, § 171, d, p. 267. 
 for nonpayment of taxes, § 171, d, p. 267. 
 for nonpayment of insurance, § 171, d, p. 267. 
 for fraud or bad faith in mortgagor, § 171, e, p. 267. 
 where express grant or pledge of rents, § 172, a, p. 270. 
 where security inadequate, § 172, b, p. 272. 
 where trustee refuses to act, § 172, c, p. 276. 
 where there are equitable grounds for relief, § 172, d, p. 276. 
 where there are statutory grounds, § 172, e, p. 277. 
 where there are special grounds, § 172, f, p. 277. 
 where contest over mortgage property, § 171, g, p. 277. 
 where grantee guilty of fraud, § 172, h, p. 278. 
 where mortgagee guilty of fraud, § 172, h, p. 278. 
 where mortgagor is committing waste, § 172, i, p. 278. 
 where interest due and unpaid, § 172, j, p. 278. 
 receiver not appointed in, when, § 173, p. 278. 
 if right doul)trui, § 5, b, note, p. 12.
 
 ToO INDEX. 
 
 [Iloforonocs are to soctions iiiul passes in body.] 
 FORECLOSURE OF MORTGAGE, continued. 
 
 receiver not appointed in, where plainlilt has legal remedy, § 173, p. 278. 
 ■where mortgage gives no right, i^ 173, b, p. 281. 
 •where, by statute, mortgagor entitled to possession, § 173, c, p. 282. 
 where petition of plaintiff denied by answer, § 173, d, p. 283. 
 where amount disputed, § 173, e, p. 283. 
 where insolvency not shown, § 173, e, p. 284. 
 where light of foreclosure not shown, t^ 173, f, p. 285. 
 where plaintiff has no equitable stiyiding in court, t^ 173, g, p. 286. 
 where, pending appeal, the bond affords protection, § 173, h, p. 287. 
 where defendant, by deposit in court, secures plaintiff, § 173, i, p. 287. 
 where properly is a homestead, § 173, j, p. 287. 
 
 where plaintiff guilty of laches in making application, § 173, k, p. 287. 
 appointment of receiver in, for inadequacy of security when property iu- 
 suflicient, § 174, a, p. 287. 
 for inadequacy of security, when mortgagor in.solvent, § 174, a, p. 288. 
 both elements must be shown, § 174, b, p. 290. 
 presumption as to value. § 174, c, p. 291. 
 rule in New Jersey, § 174, d, p. 292. 
 rule in California and other states, § 174, d, p. 292. 
 where mortgagor entitled to possession, § 174, d, p. 293. 
 what indebtedness included, ^ 174, e, p. 294. 
 proof required, § 174, f, p. 294. 
 English rule, § 174, g, p. 294. 
 conflicting decisions regarding, § 175, p. 294. 
 jurisdiction as to property, ^ 170, p. 295. 
 to be made, g 177, p. 297. 
 
 before decree, ^ 177, a, p. 297. 
 after decree, § 177, b, p. 297. 
 general rules applicable to, i^ 178, p. 299. 
 when mortgagee appointed, ^ 178, p. 299. 
 allegations of petition for, regarding possession, § 178, p. 299. 
 rights of senior and junior mortgagees, generally, § 179, p. 299. 
 English rule, § 179, a, p. 299. 
 American rule, § 179, b, p. 300. 
 on application of wife, § 180, a, p. 303. 
 on behalf of annuitants, § 180, b, p. 302. 
 on behalf of bondholders, § 180, c, p. 303. 
 on behalf of vendors, § 180, d, p. 303. 
 form, of affidavit for appointment of receiver in. No. 6, p. 641. 
 of bill in. No. 4, p. 039. 
 
 of order appointing receiver of rents and profits. No. 20, p. 656. 
 receiver's custody only extends to mortgage property, ^ 17, h, p. 53. 
 liability of receiver to preferred payments under, § 127, b, p. 228. 
 See also Mortgage. 
 
 FOREIGN CORPORATION, 
 
 suit by receiver of, rule governing, § 240, p. 411. 
 See also Cokpouation.
 
 INDEX. T31 
 
 [References are to sections and pages in body.] 
 FOREIGN CREDITORS, 
 
 effect of receiver's possession against, § 48, p. 133. 
 
 FOREIGN STATUTES, 
 
 effect of as to title to personal property, § 37, note, p. lOS. 
 
 FORFEITURE OF CHARTER, 
 
 when receiver appointed in, g 4, d, p. 9. 
 
 FORMS, 
 
 Approved works on, p. 636. 
 
 FORM OF ACCOUNT, 
 
 rendered by receiver, No. 53, p. 667. 
 
 FORM OF AFFIDAVIT, 
 
 for appointment of receiver, in judgment creditor's action, No. 7, p. 643. 
 
 in foreclosure, No. 6, p. 641. 
 for motion to compel tenants to pay. No. 33, p. 666. 
 for order to stay actions affecting assets. No. 34, p. 667. 
 
 to show cause why receiver should not be punished for contempt, etc.. 
 No. 62, p. 782. 
 for continuance of action against receiver instead of corporation, No. 63, 
 
 p. 783. 
 of bill or complaint, for receiver of partnership property. No. 3, p. 638. 
 in foreclosure proceedings. No. 4, p. 639. 
 See also Affidavit. 
 
 FORM OF ASSIGNMENT. 
 
 to receiver of partner,ship. No. 25, p. 660. 
 
 FORM OF BOND, 
 
 of receiver, § 379, p. 605. 
 
 general form. No. 23, p. 659. 
 
 short form. No. 24, p. ,660. 
 for receiver of partnership, No. 22, p. 658. 
 
 FORM OF COMPLAINT, 
 
 for di.ssolution of partnership and for receiver. No. 1, p. 636. 
 
 against insolvent corporation, No. 2, p. 637. 
 
 for receiver of partnership property. No. 3, p. 638. 
 
 in foreclosure, No. 4, p. 639. 
 
 by creditor against corporation, for an account, to set aside judgment, and 
 
 for receiver. No. 5, p. 640. 
 by creditor on bond of receiver for failure to pay money, No. 67, p. 784. 
 
 FORM OF DECLARATION, 
 
 on assessment against stockholder of National Bank, No. 68, p. 685. 
 ou promissory note. No. 69, p. 687. 
 
 See also Comi'LAINT and Foum of Comi'Laint. 
 
 FORM OF JUDGMENT, 
 
 against receiver, § 128, p. 228; i^ 397, p. 617. 
 See also Juugmknt.
 
 732 INDEX. 
 
 [References are to sections and pases in body.] 
 
 FORM OF NOTICE. 
 
 for application of receiver, No. 8, p. 642. 
 
 of appointment of receiver and to present claims, No. 2f), p. GG2. 
 
 of motion for inslructions, No. 48, p. 674. 
 
 of motion to revoke appointment, No. 55, p. 679. 
 
 of motion to discharge receiver. No. 58, p. 780. 
 
 of motion to di-scliarge as to specific properly, No. 60, p. 781. 
 
 of petition for distribution, No. 51, p. 676. 
 
 FORM OF OBJECTIONS, 
 
 to receiver's account, No. 54, p. 678. 
 
 FORM OF ORDER, 
 
 appointing receiver, general. No. 9, p. 643. 
 
 of manufacturing corporation. No. 10, p. 644. 
 
 of railroad in foreclosure. No. 11, p. 645. 
 
 of railway. No. 12, p. 648. 
 
 on foreclosure by trustee of corporation, No. 13, p. 650. 
 
 of partnership, No. 14, p. 651. 
 
 to manage joint business, No. 15, p. 652. 
 
 to manage mine, No. 16, p. 653. 
 
 for misconduct of officers. No. 17, p. 654. 
 
 of specific properly. No. 18, p. 655. 
 
 without prejudice to rights of prior encumbrancers. No. 19, p. 655. 
 
 of rents and profits on foreclosure. No. 20, p. 656. 
 granting injunction, etc.. No. 17, p. 654. 
 
 to show cause why receiver should not be appointed. No. 21, p. 657. 
 on creditors to exhibit claims, No. 27, p. 662. 
 
 appointing special commissioner to hear and report claims. No. 29, p. 663. 
 to pay claims, etc.. No. 30, p. 664. 
 for defendant to turn over books, etc.. No. 31, p. 665. 
 to settle traffic balances. No. 37, p. 670. 
 to pay rent. No. 38, p. 670. 
 
 giving leave to pay secured claim, No. 40, p. 671. 
 directing sale of perishable property. No. 41, p. 672. 
 confirming sale, No. 42, p. 672. 
 to complete purchase, No. 44, p. 673. 
 sanctioning employment of counsel, No. 46, p. 674. 
 discharging receiver. No. 56, p. 679. 
 
 removing receiver and appointing substitute. No. 57, p. 780. 
 to show cause why receiver should not be discharged, No. 59, p. 781. 
 that receiver pay over funds to successor. No. 61, p. 781. 
 authorizing compromise with shareholders of National Bank, No. 71, p. 691. 
 to sheriff to withdraw levy. No. 65, p. 684. 
 special to receiver to bring suit, No. 66, p. 684. 
 
 FORM OF PETITION, 
 
 for receiver in case of partnership. No. 1, p. 636. 
 
 for judgment against insolvent corporation. No. 2, p. 637. 
 
 for receiver of partnership property. No. 3, p. 638.
 
 INDEX. 733 
 
 [References are to sections and pages in body.] 
 FORM OF PETITION, continued, 
 in foreclosure, No. 4, p. 639. 
 by creditor of corporation for an accotint, to set aside judgment, and for 
 
 receiver. No. 5, p. 640. 
 to compel payment to receiver, No. 32, p. 665. 
 
 for permission to defend suit and compromise claim. No. 33, p. 668. 
 of receiver of National Bank for leave to compromise, No. 70, p. 689. 
 for leave to settle traffic balances, No. 36, p. 669. 
 for leave to sell, No. 39, p. 671. 
 to compel completion of purchase. No. 43, p. 673. 
 for authority to pay counsel fees, No. 45, p. 673. 
 for leave to pay claims. No. 47, p. 674. 
 that receiver be instructed to pay deposit. No. 49, p. 675. 
 that receiver surrender possession, No. 50, p. 676. 
 for permission to account and be discharged, No. 52, p. 677. 
 for substituting a party to action pending when appointed, No. 64, p. 683 
 
 FORM OF PRAYER, 
 
 for receiver, in case of partnership. No. 1, p. 636. 
 
 for judgment against insolvent corporation. No. 2, p. 637. 
 
 for leave to account, etc., No. 5, p. 640. 
 
 FRAUD, 
 
 will destroy character of preferred claims, § 343, p. 579. 
 
 extent of receiver's title, when as to creditors, § 67, p. 149. 
 
 by one partner, a ground for appointment of receiver, § 202, p. 323. 
 
 when ground for appointment of receiver, generally, § 15, c, p. 40. 
 
 for corporation, § 227, p. 366. 
 
 in lieu of trustee, § 306, p. 540. 
 
 facts to be stated, ^ 227, p. 366. 
 as ground for removal and discharge of receiver, g 330, d, p. o03, 
 as a ground for foreclosure, § 171, e, p. 206. 
 petition to set aside judgment, because of, No. 5, p. 640. 
 
 FRAUDULENT ASSIGNMENT. 
 
 when receiver appointed in, § 307, p. 543. 
 appointment of receiver in case of, g 149, a, p. 250. 
 as ground for creditor's bill, generally, i^ 149, a, p. 249. 
 
 where fictitious liabilities, § 149, a, p. 250. 
 
 where assets are omitted, § 149, a, p. 250. 
 
 where possession remains in debtor, ^ 149, a, p. 250. 
 
 where reservations in instrument, § 149, a, p. 250. 
 
 on terms of instrument, § 149, a, p. 250. 
 
 IliAUDULENT CONVEYANCE, 
 impeachment of, g 38, note, p. 111. 
 proceedings to reach, ^ 148, a, p. 241. 
 execution not necessary in proceedings to set aside, § 148, b, p. 217. 
 
 FRAUDULENT LIENS, 
 
 may be removed by receiver, ^ 75, (3), p. 171.
 
 734 INDEX. 
 
 [References are to sections luul ijiiges iu body.] 
 FRAUDULENT TRANSACTIONS, 
 
 of debtor, how impeached, § 38, p. 111. 
 
 FRAUDULENT TRANSFER. 
 
 removal of, g 147, p. 240. 
 
 how avoided by receiver of corporation, § 237, p. 406. 
 
 receiver's power over, in supplementary proceedings, ^ 154, p. 256. 
 
 FREIGHT, 
 
 liability of receiver for, g 134, p. 233. 
 See also Liability. 
 
 FUNCTIONS OF RECEIVER, 
 an officer of court, § 6, a, p. 20. 
 derived primarily from court, § 6, a, p. 20. 
 derived from scope of order of appointment, § 6, a, p. 20, 
 derived from statute, when, § 6, a, p. 20. 
 
 to have care and custody of receivership property, § 6, c, p. 23. 
 does not represent plaintiff merely, § 6, b, note, p. 21. 
 is trustee for all parties, § 6, b, p. 21. 
 not trustee for stranger to suit, iii 6, b, p. 21. 
 not to interfere with the litigation of the parlies, § 6, b, p. 21. 
 See also Poweus and Duties. 
 
 FUNDS OF RECEIVER, 
 
 distribution of, generally, § 357, p. 595. 
 what included in, § 358, p. 5!3G. 
 
 order for, when judgment claimed to be a prior lien, § 358, g, p. 601. 
 See also Receiyeusuip Fujsd. 
 
 G. 
 
 GARNISHMENT, 
 
 possession affected by, § 43, p. 121. 
 
 leave of court, when required to inuintain, § 94, p. 187. 
 
 See also Attachment. 
 GOODS, 
 
 loss of, by receiver of railway, liability for, § 285, d, p. 516. 
 
 See also Liability of Receiver. 
 GROUNDS, 
 
 for appointment of receiver for building and loan associations, § 323, p. 554. 
 
 for removal and discharge of receiver, § 330, d, p. 562. 
 
 for appeal, none upon removal of receiver, § 330, e, p. 564. 
 
 for allowance of preferred claim against receivership fund, § 342, p. 574. 
 
 for refusal to discharge receiver, § 330, g, p. 5G6. 
 
 See also AproiNTMENT, Discuarge, and Appeal. 
 
 GROWING CROPS, 
 
 when receiver entitled to, Appx. p. 603. 
 
 GROWTH OF LAW, 
 
 illustrated by law of receiverships, § 1, p. 2.
 
 INDEX. 735 
 
 [References are to sections aud pages in bod3-.] 
 
 H. 
 
 HEARING OF CLAIMS, 
 
 form of order appointing commissioner for, No. 29, p. 6G3, 
 See also Claims. 
 
 I. 
 
 ILLEGAL DIVIDENDS, 
 
 suit by receiver of corporation to collect, | 238, p. 403. 
 
 ILLEGAL INTEREST, 
 
 receiver may recover, § 75, (7), p. 171. 
 See also Interest. 
 ILLEGAL JUDGMENT, 
 
 receiver may attack, § 75, (11), p. 171. 
 See also Judgment. 
 ILLEGAL PREFERENCES, 
 
 by National Bank void under statutes, § 259, p. 445. , 
 
 IMPROVEMENTS, 
 
 effect of receiver's possession as to, g 49, p. 1G5. 
 
 INADEQUACY OF LEGAL REMEDY, 
 
 receiver not appointed when an adequate legal remedy exists, g 5, c, p. 14. 
 
 INADEQUACY OF SECURITY, 
 
 as ground for foreclosure, generally, § 171, c, p. 267; § 174, p. 287; § 175, 
 p. 294. 
 INFANT, 
 
 when receiver to be appointed for, § 4, a, p. 7; § 309, p. 545. 
 
 appointment of receiver for, suit pending not required, g 13, note, p. 35. 
 
 INFRINGEMENT OF PATENTS, 
 possession affected by, g 43, p. 121. 
 
 INJUNCTION, 
 
 granted pending notice, § 5, d, p. 14. 
 
 proper until notice given, g 13, note, p. 35. 
 
 against strikes under Interstate Commerce Act, g 46, note, p. 130. 
 
 to restrain strikes and conspiracies, when competent, g 40, p. 130. 
 
 when not competent, g 46, p. 130. 
 to prevent interference with receiver's possession, g 45, p. 126; g 4G, p. 130. 
 will lie to prevent suit against receiver, when, g 97, p. 173. 
 when will lie to prevent suit against receiver or corporation, g 243, p. 417. 
 when suit against other than receivership property, g 97, p. 1!»3. 
 will not lie to compel performance of employee's contract, g 40, p. 130. 
 will lie to prevent conspiracy, g 40, b, p. 130. 
 when will lie against receiver, g 101, p. 197. 
 in what court will lie against receiver, g 101, p. 197. 
 form of order granting, for misconduct of otHccrs, No. 17, p. 054. 
 
 on foreclosure. No. 20, p. 056. 
 as to property in foreign jurisdiction, g 17, e, p. 50. 
 See also Rkbtiiainino Okuhk.
 
 736 INDEX. 
 
 [References are to sections atid pag-es in body.] 
 INJURY, 
 
 personal, liability of receiver for, § 113, p. 208. 
 
 when damage resulting from, not a preferred claim, § 343, p. 580. 
 irreparable, as ground for appointment, ^ 5, d, p. 14. 
 See also Damages. 
 
 INSANITY. 
 
 appointment of receiver in cases of, § 310, p. 547; Appx. p. 695. 
 See also Lunacy. 
 
 INSOLVENCY, 
 
 as ground for appointment of receiver, getierally, § 4, d, p. 9, 
 of railway, § 17, d, p. 48; § 273, b, p. 407. 
 of corporation. § 225, d, p. 360 ; g 228, p. 307.. 
 on application by corporation, § 228, p. 370. 
 form of complaint against, No. 2, p. 037. 
 in case of partnersliip, § 228, p. 367. 
 need not be proved if answer admits it, i^ 15, d, p, 41. 
 need not be found in decree, § 15, d. p. 41. 
 of mortgagor, as grounds for foreclosure, g 171, c, p. 207. 
 
 INSTRUCTIONS, 
 
 application by receiver for, § 401, p. 619. 
 
 INSURANCE COMPANIES, ' 
 
 insolvency of, grounds for receiver, § 228, p. 367. 
 powers of receiver of, § 408, p. 623. 
 nonpayment to, ground for foreclosure, § 171, d, p. 266. 
 
 INTEREST, 
 
 receiver may recover, illegally paid, ^ 75, (7), p. 171. 
 
 liability of receiver for, on funds, g 109, a, p. 203; § 111, p. 206; § 116, 
 
 p. 214. 
 liability of receiver of corporation to pay, g 234, c, p. 394. 
 
 INTERFERENCE, 
 
 with receiver's possession, generally, § 44, p. 122; § 45, p. 126. 
 with receiver, in Iowa is criminal offense, § 47, note, p. 133. 
 
 INTERIM RECEIVER, 
 
 when appointed, ^ 8, p. 25. 
 
 INTERMINGLING, 
 
 of trust funds, ground for appointment of receiver, g 30G, p. 541. 
 
 INTERNATIONAL COMITY, 
 when enforced, § 37, note. 
 
 See also Comity. 
 
 INTERPLEA, 
 
 by receiver, practice, § 403, p. 619. 
 
 INTIMIDATION, 
 
 as interference with possession, ^ 4<i, note, p. 130.
 
 INDEX. 737 
 
 [References arc to sections and pajfcs in body.] 
 INVALID MORTGAGE, 
 
 receiver may question, § 75, (12), p. 171. 
 
 See also Mortgage and Powers of Receiver. 
 INVESTMENT, 
 
 power of receiver to make, of receiver.«hip money, g 233, j, p. 333. 
 See also Powers of Receiver. 
 
 ISSUANCE OF CERTIFICATES. 
 
 obtaining leave for, by receiver, t^ 411, p. 626. 
 See also Certificates. 
 
 J. 
 
 JUDGMENT, 
 
 receiver may attach when illegal, § 75, (11), p. 17. 
 what considered on arrest of, g 81, p. 180. 
 form of petition to set aside. No. 5, p. 640. 
 form of, against receiver, g 128, p. 228; § 397, p. 617. 
 See also Liens. 
 
 JUDGMENT CREDITORS, 
 
 may apply for receiver of corporation, § 224, f, p. 354; § 225, k, p. 363. 
 not affected by appointment of receiver in a suit to which not a party, 
 
 § 17, f, p. 51. 
 cannot move to vacate without leave, g 21, h, p. 66. 
 action by to reach property, § 148, a, p. 241. 
 
 JUDGMENT DEBTOR, 
 
 appointment of receiver in case of, g 4, c, p. 8. 
 
 JUDGMENT LIEN, 
 
 distribution when claimed as priority, § 358, g, p. 601. 
 See also Liens. 
 
 JUDICIAL CAUTION, 
 
 required of court in appointment of receiver of corporation, § 232, p. 377. 
 See also Discretion. 
 
 JUDICIAL DISCRETION, 
 definition of, § 5, a, p. 10. 
 what is, ^ 5, a, p. 10; § 5, a, note, p. 11. 
 exercise of, § 5; § 5, a, p. 10. 
 basis of, § 5, b, p. 12. 
 not subject of review, § 5, a, note 1, p. 12. 
 in appointing receiver over trust properly, § 306, p. 540. 
 to be exercised in removal of receiver, § 330, b, p. 558. 
 exercised in manner of determining claims against receiversliip fund, 
 
 § 340. d, p. 571. 
 in suit against receiver, § 398, p. 617. 
 
 JURISDICTION, 
 
 over receivership incident to a chancery court, ^^ 7, p. 2. 
 over receiversliip is ancillary, t^ 2, p. 3. 
 
 47
 
 738 INDEX. 
 
 [Uofcrcnces aro to sections and pages in body.] 
 JURISDICTION, continued. 
 
 to appoint receiver wlien not exercised, § 16, p. 45. 
 
 of courts of equity to appoint receiver for corporation, g 220, p. 343. 
 
 court's exercise of, in appointment of receiver, § 18, p. 54. 
 
 appointment provisional, § 18, note, p. 54. 
 
 based on inadequacy of common law, § 18, p. 54. 
 
 judge of one circuit court cannot appoint for property in another, in Flor 
 
 ida, t^ 18, note, p. 54. 
 In England, Supreme Court Judicature Act 1873, § 18, note, p. 54. 
 U. S. courts governed by English court of chancery, ^ 18, note, p. 54. 
 power of circuit judge in Mississippi, ^ 18, note, p. 54. 
 power of resident judge in North Carolina, § 18, note, p. 54. 
 in New York under Act of 1880, § 18, note, p. 54. 
 to appoint in vacation, § 18, note, p. 54, 
 in vacation in Illinois, g 18, note, p. 54. 
 in vacation in Texas, § 18, note, p. 54. 
 as to co-ordinate courts, ^ 17, c, p. 47. 
 of CO ordinate court, possession affected by, § 44, p. 122. 
 conflict of, in appointment of receiver, § 19, p. 5G. 
 conflict of, in appointment of receivers for corporation, § 220, p. 843. 
 conflict of, not ground for refusing, § 15, d, p. 41. 
 conflict between state and Federal courts, § 19, note, p. 56. 
 power of state court as to Federal receiver, § 19, note, p. 56. 
 Federal courts, exclusive in bankruptcy, when, g 19, note, p. 56. 
 conflict between common pleas and superior court, Ohio, § 19, note, p. 56. 
 scope of in appointment of receiver, § 20, p. 59. 
 appointment confers jurisdiction for all persons, t^ 18, note, p. 54. 
 service of process gives jurisdiction over the person. Seizure gives juris- 
 diction over the property, § 44, note, p. 132. 
 as to third parties, § 23, c, note, p. 64. 
 of the court, when the receiver is in possession, is exclusive, § 45, note, 
 
 p. 126. 
 process how interfered with, g 44, note, p. 123. 
 interference by Federal courts with state courts, § 44, note, p. 123. 
 interference by state court with Federal court, § 44, note, p. 123. . 
 of Federal court in suit by receiver of National Bank, § 252, c, p. 433. 
 Compare PowEUS. 
 
 JURISDICTION— FOREIGN, 
 
 power of receiver in, § 37, p. 108. 
 
 JURY, 
 
 when called, § 7, b, p. 23. 
 
 L. 
 
 LABOR, 
 
 power of receiver to employ, ^ 32, p. 94. 
 liability of receiver for, generally, g 118, p. 217. 
 and material, liability of receiver for, § 109, a, p. 203. 
 See also Liability.
 
 INDEX. 739 
 
 [References are to sections iiud pages in body.] 
 LABORER'S WAGES, 
 
 preferred claim against receivership fund, § 342, p. 574. 
 a preferred claim when made so by statute, ^ 844, p. 581. 
 See also Claims. 
 LAND, 
 
 suit by receiver regarding, must be in jurisdicliou where suit is, i^ 241, 
 p. 416. 
 
 See Real Estate. 
 
 LANDLORD, 
 
 interference with receiver's possession by, § 47, p. 133. 
 See also Tenancy and Possession. 
 LEASE, 
 
 power of receiver to make, t:^ o6, p. 104; § 2'6'd, h, p. 388. 
 power of receiver to cancel, ^ 36, p. 104. 
 
 unexpired, effect of appointment of receiver upon, § 230, e, p. 373. 
 adoption of, by receiver, i^ 36, b, p. 105. 
 
 what amounts to, ^ 123, p. 221. 
 adoption of, in England, § 30, b, note, p. 105. 
 when adopted by receiver of railway, § 283, i, p. 506. 
 receiver's liability on, § 122, p. 221. 
 of cars, liability for when, § 36, b, note, p. 105. 
 of rolling stock, when sale construed as, § 281, f, p. 499. 
 
 See also Liability, Rent, Rolling Stock, and Car Trusts. 
 r.EASEHOLD, 
 
 receiver not assignee of term, ^ 35, a, p. 102. 
 
 LEAVE OF COURT, 
 
 necessary to disturbance of receiver's possession, § 47, p. 132. 
 
 failure to obtain, does not devest court of jurisdiction, § 44, note, p. 122. 
 
 to sue receiver, generally, t^ 94, p. 187. 
 
 under act of Congress not required, § 94, p. 187. 
 
 when receiver manager not required, i^ 94, p. 187. 
 
 a prerequisite, § 395, p. 612. 
 
 judicial discretion in granting, § 398, p. 617. 
 
 must be alleged and proved, § 95, p. 190; Appx. p. 698. 
 required before suit brought by receiver, when, § 239, p. 410. 
 
 not required when statute empowers him to sue, § 69, note, p. 152. 
 
 not required where receiver appointed to collect partnership assets, 
 ^ 69, note, p. 152. 
 
 not required to sue on appeal bond from order appointing, § 09, note, 
 p. 152. 
 
 not required where waste is being committed, ^ 69, note, p. 152. 
 to defend, required in order to bind proi)url3', ^ 09, note, p. 153. 
 appeal not dismissed for want of, ^ 41, note, p. 117. 
 when reviewable on appeal, ^ 95, p. 190. 
 to sell, procurement by receiver, § 409, p. 625. 
 to contract, when necessary to receiver, ^ 410, p. 635. 
 to issue certificates, obtaining for receiver, § 411, p. 626.
 
 740 INDEX. 
 
 [References are to sections and paK-es in body.] 
 LESSOR AND LESSEE. 
 
 appointment of receiver between, § 319, p. 551. 
 
 LEVY, 
 
 effect upon receiver's possession, § 45, p. 126. 
 
 title of receiver of National Banks to, § 255, p. 433. ^ 
 
 for taxes, not prevented by receiver's possession, § 54, p. 137. 
 
 LIABILITY OF DIRECTORS, 
 
 of National Banks to receiver, § 260, p. 448. 
 
 LIABILITY OF RECEIVER, 
 
 generally, § 109, p. 199. 
 of corporation, generally, ^ 234, p. 391. 
 of railways, generally, j^ 285, p. 508. 
 of National Bank, generally, § 256, p. 432. 
 to creditor, ^ 109, a, p. 201. 
 to general creditors of mortgagee, § 130, p. 231. 
 respecting funds, to proper payment, t^ 109. a, p. 203. 
 for specific funds, ^ 110, p. 205. 
 
 for use of receivership funds, generally, § 111, p. 206; § 116, p. 214. 
 for profits on receivership's funds, § 109, p. 203; ^ 116, p. 214. 
 when chargeable with interest, § 116, p. 214. 
 for fund deposited in bank, generally, § 119, p. 218. 
 for interest on bank deposit, ^ 109, a, p. 201. 
 without order of court, § 109, a, p. 201. 
 where bank fails, § 109, a, p. 201. 
 for mingling receivership property, § 109, a, p. 201. 
 for mixing funds, § 111, p. 206, § 116, p. 214. 
 
 with personal funds, § 111, p. 206. 
 for misappropriating funds, § 109, a, p. 202. 
 where one of two appropriates funds, § 111, p. 205. 
 
 joint and several, § 111, p. 206. 
 ordered to be invested, § 116, p. 214. 
 illegally invested, § 116, p. 214. 
 
 for illegal freights collected, § 109. a, p. 203; § 134, p. 233. 
 on note not collected, Appx. p. 697. 
 
 for money collected under void appointment, i^ 109, a, p. 203; § 129, 
 p. 230. 
 for default of another, generally, § 117, p. 216. 
 
 as attorney, § 117, p. 216. 
 for violating order of court, § 109, a, p. 202; § 110, p. 205; § 130, p. 231. 
 by taking property not included in, trespass, § 130, p. 231. 
 in not following decree absolutely and without discretion, § 110, p. 205. 
 in contempt of court. § 111, p. 200; § 136, p. 234. 
 when in contempt cannot be heard, § 111, p. 206. 
 to attachment when, § 111, p. 206. 
 for torts, generally, ^ 109, a, p. 202. 
 
 a quasi-public corporation liable for personal injury, rule, § 113, p. 208. 
 for loss by negligence, § 109, a, p. 202.
 
 INDEX. 741 
 
 [References are to sections and pages in budj'.] 
 LIABILITY OF RECEIVER, contiuued. 
 for lorts, for trespass, ^ loO, p. 231. 
 when crimiDal, § 111, p. 20(5. 
 
 to action of replevin for property wrongfully taken, § 130, p. 231. 
 on contracts, generally, § 125, p. 224. 
 
 partially completed, § 85, note, p. 102. 
 where no funds to pay, § 128, p. 228. 
 for damages on predecessor's contract, § 126, p. 225. 
 for labor and supplies, when controlled by court, § 109, a, p. 203; 
 6^ 118, p. 217. 
 by what court enforced, § 118, p. 217. 
 not personal, § 118, p. 217. 
 for wages due at time of appointment, determined by scope of order, 
 
 Appx. p. 697. 
 for use of railway track, § 125, p. 224. 
 for removalof switch, § 125, p. 224. 
 for rent, on unexpired lease, § 109, a, p. 203; § 121, p. 220; § 132, p. 221; 
 Appx. p. 697. 
 depends on privity of estate, § 121, p. 220. 
 accrued prior to receivership, § 36, b, p. 105. 
 collected before bond given, ^ 121, p. 220. 
 on property not reduced to possession, § 121, p. 220. 
 where lease has been adopted, J5 121, p. 220. 
 amount, how determined, § 121, p. 220; ^ 123. p. 223. 
 
 measure of, § 122, p. 221. 
 how enforced, § 121, p. 220. 
 
 where possession of premises continued, Appx. p. 603. 
 duration of, determined by statute in Illinois, Appx. p. 093. 
 for lease of railways, § 123, p. 222. 
 
 made without order of court, § 124, p. 224. 
 of cars under invalid contract, ^ 127, b, p. 223. 
 on adoption of lease, how incurred, ^ 123, p. 222. 
 by implication, § 123, p.. 222. 
 by sale of property, § 123, p. 222. 
 within what time to be made, § 123, p. 223. 
 for rent thereunder, g 123, p. 222. 
 for attorneys' fees, generally, 55 129, p. 230. 
 to whom allowed, § 129, p. 230. 
 amount how determined. ^ 129, p. 230. 
 as common carrier, generally, § 109, a, p. 202; § 112, p. 203. 
 in matters ex contractu, § 112, p. 208. 
 in matters ex delicto, § 112. p. 208. 
 for personal injuries, § 112, p. 208. 
 on connecting line, § 113, p. 208. 
 on leased line, § 113, p. 208. 
 when personal, § 113, p. 208. 
 for damages, generally, g 114, p. 211. 
 
 from what fund payable, § 114, p. 211.
 
 742 INDEX. 
 
 [References are to sections and paaos in body.] 
 LIABILITY OF RECEIVER, continued. 
 
 as common carrier, for damages, payable (romcuneal receipts, § 114, p. 311. 
 
 for negligence in construcliou, § 114, p. 211. 
 
 for loss of freight, § 114, p. 211. 
 
 for goods consigned, § 109, a, p. 202. 
 
 for i)roperty not reduced to possession, § 114, p. 211. 
 
 for properly lost in transit, § 114, p. 211. 
 
 for negligent destruction of property, ^ 114, p. 211. 
 
 for property in transit — bondholders, ^ 114, p. 211. 
 
 for goods sold, § 114, p. 211. 
 
 for necessary repairs, § 114, p. 211. 
 when personal, generally, ^ 128, p. 228. 
 
 when contract personal, ^ 128, p. 228. 
 
 when operating under lease or contract, ^ 128, p. 228. 
 
 for acts beyond scope of authority, § 128, p. 228. 
 to account, generally, § 131, p. 232. 
 
 how determined, § 131, p. 232. 
 none, for contracts of predecessor, t^ 109, b, p. 205. 
 
 for contract of principal not adopted by him, § 109, b, p. 204. 
 
 for attorneys' fees, when, § 109, b, p. 205. 
 
 for injury before appointipent, § 109, b, p. 204. 
 
 for injury after appointment, when, § 109, b, p. 204. 
 
 for statutory injury, when, § 109, b, p. 204. 
 
 personal for acts ordered by court, § 109, b, p. 204. 
 
 personally on official contracts, § 109, b, p. 204. 
 
 for money expended in good faith, § 109, b, p. 205. 
 
 for speculation profits, § 109, b, p. 205. 
 
 for loss without fault, § 109, b, p. 204. 
 
 for injury by foreign receiver, when, § 109, b, p. 204. 
 
 after discharge, § 109, b, p. 204. 
 as to preferred payments, general creditors, § 127, p. 226. 
 
 under creditor's bill, g 127, a, p. 228. 
 
 in foreclosure proceedings, g 127, p. 226; § 127, b, p. 2C3. 
 order of payment, preferential debts, 8 127, p. 22a. 
 when ordered to pay, effect of, § 132, p. 232. 
 judgment for, form of, § 128, p. 228. 
 for violating Act of Congress, § 109, a, p. 203. 
 under statutory penalty, § 134, p. 233. 
 effect of, as to corporation, § 115, p. 213. 
 
 as to plaintifiP, § 115, p. 213. 
 for costs of suit, >^ 109, a, p. 203. 
 
 for costs and expenses, § 120, p. 219. 
 effect of discharge, § 133, p. 233. 
 not affected by removal, § 330, b, p. 566. 
 
 LIABILITY OF RECEIVER'S PERSONAL REPRESENTATIVE, 
 generally, § 135, p. 233. 
 how enforced, § 135, p. 233. 
 
 See also Executors, etc.
 
 INDEX. 743 
 
 [References are to sections and pages in body.] 
 LIABILITY OP STOCKHOLDERS, 
 to what extent enforced, § 77, p. 173. 
 
 receiver in creditor's proceeding, no power to enforce, ^ 39, note, p. 115. 
 enforced by receiver of corporation, when, Appx. p. 007. 
 when creditor may enforce, g 77. p. 173. 
 in what court enforced, § 77, p. 173. 
 suits in Federal courts, g 77, p. 173. 
 suit by receiver, injunction, § 77, p. 173. 
 suits to recover illegal dividends, § 77, p. 173. 
 on illegal distribution of stock, § 77, p. 173. 
 
 LIABILITY ON BOND, 
 
 how enforced, § 380, p. 606. 
 
 See Bond and Sureties. 
 
 LIENS, 
 
 not affected by appointment, when, § 7, c, p. 23. 
 
 effect of receiver's appointment as to, § 44, p. 123. 
 
 receiver's title subject to existing,. § 68, p. 150. 
 
 receiver may attack for invalidity, § 75, (10), p. 171. 
 
 fraudulent, may be removed by receiver, § 75, (3), p. 171. 
 
 of judgment, after jiidgnicnl and before bond filed, fe^ 17, f, note, p. 51. 
 
 of judgment creditors, paid from receivership fund, § 341, g, p. 574. 
 
 of mortgage, inferior to claim from wages, when made so by statute, § 344, 
 
 p. 581. 
 by statute, for wages takes priority over the mortgage, § 344, p. 581. 
 statutory, paid from receiversliip fund, § 341, f, p. 574. 
 obtaining leave to create, ^ 410, p. 625. 
 
 LIFE TENANTS, 
 
 appointment of receiver in case of, § 4, c, p. 8. 
 
 LIMITATIONS, 
 
 on power of receiver, generally, § 35, p. 103. 
 on receiver's power to sue, § 393, p. 611. 
 
 LIMITED PARTNERSHIP, 
 
 appointment of receiver in case of, § 199, p. 319. 
 
 See also Afi'Ointment op Reckiver and Partnership. 
 
 LIQUIDATORS, 
 
 when appointed, § 3, p. 3. 
 
 under Companies Act of 1802, i; 3, n. 3. 
 general or special, ^ 8, note, p. 25. 
 power of, § 3, p. 3. 
 
 See Receiver. 
 
 LOAN. 
 
 power of receiver to make, § 27, p. 87. 
 receiver cannot make, of funds, >^ 20!), c, p. 337. 
 See PowERH OF Rkckivkr.
 
 714 INDEX. 
 
 [Kpferonccs are to sections nii<l pnpros in Ixxly.] 
 
 LOAN ASSOCIATIONS, 
 
 {ground tor appointment of receiver for, ^ ^2'-), p. 554. 
 
 iipitoiiilMH'nt of receiver for, i^ :323, p. 55;J. 
 
 ternu'd "Corporate Copartnerships," § ;}22, p. 553. 
 
 See also Building and Loan Associations. 
 LOCOMOTIVES, 
 
 tire produced by, damages from not a preferred claim, when, § 313, p. 5'0 
 
 LOSS OF GOODS, 
 
 by receiver of railway, liability for, § 285, d, p. 516. 
 
 See Common Cauhikus and Liahimty. 
 LUNACY. 
 
 See Insanity. 
 
 LUNATIC'S ESTATE, 
 
 when receiver to be appointed for, § 4, a, p. 7; § 310, p. 547. 
 
 M. 
 
 MANAGER, 
 
 receiver as, rule relating to, ^ 402, p. 619. 
 of corporation, when, i? 232, p. 376. 
 of railway, appointment of, g 5, d, p. 14. 
 in partnership matters, when, § 211, p. 339. 
 form of order appointing, No. 15, p. 652. 
 form of order appointing for mine, No. 16, p. 653. 
 See also Powers of Keceiver. 
 
 MANDAMUS, 
 
 not sustainable against receiver, ^ 96, p. 192. 
 
 MAKHIEI) WOMEN, 
 
 appointment of receiver in estates of, § 4, d, p. 9. 
 See also Appointment, etc. 
 MASTER, 
 
 reference to, in appointment, § 305, p. 608. 
 
 report of appointment, relates to granting order of reference, § 17, g, p. 52 
 report of, is final when, § 18, note, p. 54. 
 See also Report. 
 MATERIAL, 
 
 when not a preferred claim against receivership fund, § 343, p. 579. 
 See also Work, Labor, and Material. 
 
 MECHANICS' LIENS, 
 
 existing at the time of appointment will be sustained, g 45, note, p. 126. 
 See also Liens. 
 MINE, 
 
 order appointing managing receiver for, No. 16, p. 653. 
 
 MINE OWNERS' ROYALTY, 
 
 when a preferred claim against receivership fund, § 343, p. 578. 
 See also Infants.
 
 INDEX. 745 
 
 [References are to sections and pagres in body.] 
 MINORITY STOCKHOLDERS, 
 
 violation of rights of, ground for appointment of receiver, ^ 225, j, p. 2G2. 
 application for receiver of railways by, § 278, d, p. 468. 
 See also Appointment of Receiver. 
 MINORS. See Infants. 
 
 MISAPPROPRIATED PROPERTY, 
 receiver may recover, § 75, (5), p. 171. 
 
 See PowEKS op Receiver. 
 
 MISAPPROPRIATION OF FUNDS, 
 
 a ground for appointment of receiver, in case of partnership, § 207, p. 335. 
 in lieu of trustee, § 306, p. 540. 
 
 MISCONDUCT OF OFFICERS, 
 
 form of order granting receiver for. No. 17, p. 654. 
 See also Officers. 
 
 MISMANAGEMENT OF PARTNERSHIP, 
 
 a cause for appointment of receiver, ^ 203, p. 324. 
 
 See also Appointment and Partnership. 
 
 MONEY HELD IN TRUST, 
 
 receiver may recover, § 75, (6), p. 171. 
 
 See also Functions and Powers. 
 
 MONEY LOANED, 
 
 when not a preferred claim against receivership fund, § 343, p. 579. 
 
 MORTGAGE, 
 
 power of receiver to make, § 233, i, p. 388. 
 See also Liens. 
 
 MORTGAGE FORECLOSURE, 
 generally, § 170, p. 226. 
 grounds for invoking jurisdiction, § 171, p. 207. 
 
 where mortgage provides for, § 171, a, p. 260. 
 
 ■where statute provides for, § 171, b, p. 267. 
 
 insolvency of mortgagor, § 171, c, p. 267. 
 
 in case of waste, ^ 171, d, p. 267. 
 
 inadequacy of security, § 171, c, p. 267. 
 
 nonpayment of insurance, § 171, a, p. 266. 
 
 nonpayment of taxes, § 171, d, p. 267. 
 
 fraud, § 171, e, p. 266. 
 receiver not appointed in, generally, § 173, p. 278. 
 
 where plaintiff has legal remedy, § 173, a, p. 278. 
 
 where mortgage gives no right, § 173, b, p. 281. 
 
 where by statute mortgagor entitled to possession, § 173, c. p. 282. 
 
 where amount disputed, § 173, d, p. 283. 
 
 where petition of plaintiff denied by answer, fc^ 173, d, p. 283. 
 
 where insolvency not, shown, § 173, e, p. 284. 
 
 where right of foreclosure not shown, § 173, f, p. 2s5. 
 
 where plaiutill has no equitable standing in court, i^ 173, g, p. 286.
 
 746 INDEX. 
 
 [Referoiiops are to sections mid piitres in body.! 
 MORTGAOE F01{R(;L()8URE. conliuued. 
 
 receiver not appointed in, where, pending appeal, the bond affords protec- 
 tion, S 173. h, p. 287. 
 where defendant, by deposit in court, secures plaintiff, § 173, i, p. 287. 
 where property is a homestead, § 173, j, p. 287. 
 
 where plaintiff guilty of laches in making application, § 173, k, p. 287. 
 appointment of receiver in. generally, § 170, p. 2G6; § 389, p. G09. 
 for corporation, g 229, p. 371. 
 grounds for, § 171, p. 266. 
 where mortgage provides for, § 171, a, p. 266. 
 for statutory cause, ij 171, b, p. 267. 
 for insolvency of mortgagor, § 171, c, p. 267. 
 for insolvency of grantee of mortgagor, g 171, c, p. 267. 
 for waste by mortgagor, § 171, d, p. 207. 
 for nonpayment of taxes, t; 171, d, p. 267. 
 for nonpayment of insurance, ^ 171, d, p. 267. 
 for fraud or bad faith of mortgagor, ^5 171, e, p. 267. 
 for inadequate security, g 171, c, p. 267. 
 where express grant or pledge of rents, § 172, a, p. 270. 
 where security inadequate, ^ 172, b, p. 272. 
 where trustee refuses to act, ^ 172, c, p. 276. 
 where there are equitable grounds for relief. § 172, d, p. 276. 
 where there are statutory grounds, i^ 172, e, p. 277. 
 where there are special grounds, t^ 172, f, p. 277. 
 where there is contest over mortgage property, ^ 172, g, p. 277. 
 where grantee guilty of fraud, § 172, h, p. 278. 
 where mortgagee guilty of fraud, § 172, h, p. 278. 
 where mortgagor is committing waste, § 172, p. 278. 
 where interest due and unpaid, § 172, j, p. 278. 
 for inadequacy of security, when property insufficient, § 174, a, p. 237. 
 
 when mortgagor insolvent, § 174, a, p. 288. 
 
 both elements mu.st be shown, § 174, b, p. 290. 
 
 presumption as to value, § 174, c, p. 291. 
 
 rule in California and other states, § 174, d, p. 292. 
 
 rule in New Jersey, § 174, d, p. 292. 
 
 rule where mortgagor entitled to possession, § 174, d, p. 292. 
 
 what indebtedness included, § 174, e, p. 294. 
 
 proof required, § 174, f, p. 294. 
 
 English rule, § 174, g, p. 294. 
 
 conflicting decisions regarding, § 175, p. 294. 
 jurisdiction as to property, § 176, p. 295. 
 when to be made, § 177, p. 297. 
 
 before decree, § 177, a, p. 297. 
 
 after decree, § 177, b, p. 297. 
 when mortgagee appointed, g 178, p. 299. 
 general rules applicable to, ^ 178, p. 299. 
 allegations of petition for, regarding po.ssession, § 178, p. 299. 
 rights of senior and junior mortgagees, generally, § 179, p. 299.
 
 INDEX. 747 
 
 [References are to sections and i)aKes in body.] 
 MORTGAGE FORECLOSURE, continued. 
 
 appointment of receiver in, rights of senior and junior mortgagees, English 
 rule, i^ 179, a, p. 299. 
 American rule, § 179, b, p. 300. 
 on application of wife, § 130, a, p. 302, 
 on behalf of annuitants, § 180, b, p. 302. 
 on behalf of bondholders, ^ 180, c, p. 303. 
 on behalf of vendors, § 180, d, p. 303. 
 form of bill in. No. 4, p. G39. 
 form of affidavit for receiver in, No. 6, p. G41. 
 MORTGAGE— INVALID, 
 
 receiver may question, § 75, (12), p. 171. 
 
 notes secured by, not to be included in order for distribution, § 358, b, 
 p. 598. 
 MORTGAGE LIEN, 
 
 receiver may attack for invalidity, § 75, (10), p. 171. 
 what claims are prior to, on receivership fund, § 342, p. 574. 
 inferior to claim for wa^es when made so by statute, § 314, p. 581. 
 See also Liens. 
 
 MORTGAGORS IN POSSESSION, 
 
 appointment of receiver in case of, g 4, c, p. 8. 
 MOTION, 
 
 form of affidavit for, to compel payment. No. 33, p. COS. 
 See also Fokms. 
 MOTION IN ARREST OF JUDGMENT, 
 what considered under, § 81, p. 180. 
 See also Judgment. 
 MUNICIPAL AID, 
 
 receiver has no power to contract for, § 35, note, p. 103. 
 See PowEKS of RiicEivEit. 
 MUTUAL INSURANCE COMPANIES, 
 right of setoff in, ^ 81, note, p. 180. 
 assessments in, § 39, note, p. 115. 
 
 N. 
 
 NATIONAL BANKS, RECEIVERS FOR, 
 appointment of, generally, § 252, p. 419. 
 
 under statute, § 252, a, p. 419. 
 
 acts of Congress relating thereto, ^ 252, a, p. 419. 
 power of comptroller to appoint, generally, § 252, b, p. 421; § 253, p. 425. 
 grounds upon which comi)lroller may appoint, § 253, p. 425. 
 
 independent of Act of Congress, ^ 252, b, p. 421. 
 
 on application by minority stockholders, ^ 252, b, p. 421. 
 
 effect as to corporation, § 252, b, p. 421. 
 power of, g 252, b, p. 423. 
 
 to sue, ^5 252, c, p. 423.
 
 748 INDEX. 
 
 [Uefpronccs are fo sootions and pages in liody.] 
 
 NATIONAL RANKS, RI'X^EIVEIiS FOR, continued. 
 
 power of, to sue, jurisdietion of Federal court, ^5 2''»2, c, p. 423, 
 irrespective of cili/eiiship, § 252, c, p. 423. 
 irrespective of amount involved, § 252, c, p. 423. 
 control of court of equity over, § 252, c, p. 424. 
 governed by statute, t^ 254, p. 426. 
 to collect, § 254, p. 420. 
 to compound bad debts, § 254, p. 426, 
 to sell, ^ 254, p. 42(5. 
 to enforce slock liability, § 254, p. 426, 
 
 prereipiisites to, t^ 254, p. 420. 
 to disiiHirm unlawful act, § 254, p. 427, 
 to avoid illegal preferences, ^ 254, p. 428. 
 to recover funds misapplied, § 254, p. 428. 
 as representative of government, i^ 254, p. 428, 
 title of, generally, § 255, p. 429. 
 
 as to third person or corporation, § 255, p. 429. 
 as to bonds deposited with treasurer, § 255, p. 430. 
 as to property held in trust, § 255, p. 430. 
 as to levies, § 255, p. 432. 
 liability of, generally, § 250, p. 432. 
 suits by, generally, § 257, p. 433. 
 to collect assets, § 257, p. 433. 
 to recover stock liability, ^ 257, p. 433. 
 in what court to be brought, § 257, p. 433. 
 for what causes of action. § 257, p. 435. 
 against directors, § 257, p. 437. 
 to recover wasted or lost assets, § 257, p. 487. 
 liability of stockholders, determined by comptroller, § 258, a, p. 437. 
 action of comptroller conclusive, § 258, a, p. 437. 
 action by comptroller precedent to recovery, ^ 258, a, p. 437. 
 action to enforce, when at law or in equity, t^ 258, a, p. 437. 
 in what court enforced, § 258, a, p. 440. 
 right of defendant to set-off, § 258, a, p. 438. 
 enforced against executors and administrators, § 258, a, p. 441. 
 suit to enforce again.st married women, § 258, a, p. 441. 
 under statutes, § 258, a, p. 442. 
 defenses to, § 258, b, p. 443. 
 suit to recover, limitation of, § 258, b, p. 445. 
 illegal preferences, statutes relating to, g 259, p. 445. 
 liability of directors, generally, § 200, p. 448. 
 
 statutes relating to, t^ 260, p. 448. 
 character of, § 260, p. 448. 
 
 nature of action against, § 260, p. 448. 
 
 NATURE, 
 
 of preferred claims against receivership fund, § 343, p. 576. 
 of receiver's possession as to third parties, § 404, p. 020.
 
 INDEX. 749 
 
 [References are to sections and pajies in body.] 
 NEGLIGENCE, 
 
 liability of receiver for, § 109, a, p. 203. 
 as common carrier, § 285, d, p. 516. 
 receiver may be sued for, of emi)loyee, when, g 96, p. 193. 
 See also Liability. 
 
 NONRESIDENCE, 
 
 an excuse for want of notice, g 5, d, p. 14. 
 
 NONRESIDENTS, 
 
 receiver's title as to choses in action due from, § 63, p. 145. 
 
 NOTICE, 
 
 a prerequisite to appointment of receiver, § 5, d, p. 14. 
 
 when not required, prayer for receiver, § 5, d, p. 14. 
 
 appearance does not waive, in chambers, § 13, note, p. 35. 
 
 excuse for not serving must clearly appear, § 13, note, p. 35. 
 
 intervening petitioner not entitled to ^ 13, note, p. 35. 
 
 waived only in case of irreparable injury, § 13, note, p. 35. 
 
 appointment not void for want of notice to nonresident partner, § 23 i, 
 
 note, p. 68. 
 receiver not entitled to notice of revocation of appointment, § 32, j. note 
 
 p. 69. 
 form of, of motion for instructions, No. 48, p. 674. 
 
 of petition for distribution. No. 51, p. 676. 
 
 of motion to revoke appointment, No. 55, p. 679. 
 
 of motion to discharge receiver. No. 58, p. 780. 
 
 of motion to discharge as to specific property, No. 60, p, 781. 
 of application for receiver, excuse for want of notice, § 5, d, p. 14. 
 
 statutory excuse for not serving, § 5, d, note, p. 14. 
 
 of railway, g 271, p. 454. 
 
 for receiver, § 374, p. 603. 
 
 for removal and discharge, ^ 330, a, p. 557. 
 
 form of. No. 8, p. 643. 
 of appointment of receiver, presumption as to, g 5, d, note, p. 14. 
 
 want of, who can take advantage of, § 5, d, note, p. 14. 
 
 form of, and to present claims. No. 26, p. 663. 
 See also Fohms. 
 
 o. 
 
 OBJECTIONS TO MASTER'S FIN FLINGS, 
 on receiver's report, g 356, c, p. 596. 
 form of, to receiver's accounts, No. 54, p. 678. 
 
 OFFICER OF COURT, 
 
 receiver is, g 6, p. 20. 
 
 OFFICERS AND DIRECTORS. 
 
 statutory liability, how enforced, g 78, p. 177. 
 liability, in case of excessive indebtedness, H 76, p. 173,
 
 750 INDEX. 
 
 [llefcrcnccs arc to sections and pages in body.] 
 OFFICERS AND DIRECTORS, continued. 
 
 suits against, in case of insolvency, § 76, p. 173. 
 in case of acts ultra vires, § 76, p. 172. 
 to avoid illegal chattel mortgages, § 76, p. 173. 
 by receiver, for misconduct, § 70, p. 172. 
 in case of void transfers, § 76, p. 172. 
 to recover assets, § 76, p. 172. 
 defenses to, § 77, p. 173. 
 mismanagement of, appointment of receiver in case of, § 4, c, p. 8. 
 misconduct of, order granting receiver for, No. 17, p. 654. 
 failure to elect, ground for appointment of receiver of corporation, § 335, 
 h, p. 361. 
 
 OFFSET, 
 
 right of, in receivership cases, g 399, p. 618. 
 See also Set-off. 
 
 OPERATING EXPf:NSES, 
 
 of railway, power of receiver to pay preferred claim, based on, § 276, e, 
 p. 481. 
 power of receiver to pay implied, when ordinary, § 277, a, p. 483. 
 when preferred to mortgagee's claim, § 343, p. 575. 
 paid from receivership fund, § 341, e, p. 574. 
 
 See also Powers op Receiver and Expenses. 
 
 ORDER APPOINTING RECEIVER, 
 
 scope and requisites, § 6, a, p. 30; § 32, p. 63; § 381, p. 606. 
 
 in foreclosure proceedings, § 176, p. 395. 
 
 when interlocutory and when final, § 22, note, p. 63. 
 
 must define duties of receiver, § 23, note, p. 83. 
 
 must describe property, ^ 22, a, p. 63. 
 
 embraces all acts necessary for protection of property, § 22, b, p. 63. 
 
 as to custody of property, § 22, c, p. 64. 
 
 cannot direct distribution, § 22, c, note, p. 64. 
 
 as to third parties, § 33, d, p. 04. 
 
 relates from what time, § 22, e, p. 65. 
 
 is an equitable execution, § 33, e, note, p. 65. 
 
 effects a sequestration, § 33, e, note, p. 65. 
 
 as to assignment of property, § 33, f, p. 65. 
 
 as to title, g 33, f, p. 65. 
 
 when modified, § 33, g. p. 66. 
 
 effect of recitals in, § 32, g, p. 66. 
 
 collateral attack, ^ 33, g. p. 66. 
 
 irregularity of, § 33, i, p. 68. 
 
 when void, § 33, i, p. 69; Appx., p. 695. 
 
 when court without jurisdiction, § 32, j, p. 69. 
 
 when revoked, § 22, j, p. 69. 
 
 when improvidently m.ade, § 22, j, p. 69. 
 
 application to vacate, when to be made, § 22, j, p. 69. 
 findings embodied in, § 883, p. 607.
 
 INDEX. 751 
 
 [References are to sectioas and pag'es in body.] 
 ORDER APPOINTING RECEIVER, conliuued. 
 need not find insolvency, i^ 15, d, p. 41. 
 does not relate to date, as to strangers, § 17, g, p. 52. 
 measure of power, § 66, b, note, p. 22. 
 effect of, § 7, b, note, p. 24. 
 
 not vacated because receiver nonresident, § 22, g, p. 66. 
 vacation of, effect, § 23, j, note, p. 69. 
 
 revocation of, receiver not entitled to notice, ^ 22, j, note, p. 69. 
 conclusive in suit by receiver, § 23, h, note, p. 66. 
 when appeal from allowed, § 32, k, p. 70. 
 effect of, appeal from, ^ 33, 1, p. 73. 
 affidavits as basis of, ^ 384, p. 607. 
 form of, general. No. 9, p. 643. 
 
 for manufacturing corporation, No. 10, p. 644. 
 
 for railway, No. 13, p. 648. 
 
 for railroad in foreclosure. No. 11, p. 645. 
 
 on foreclosure by trustee of corporation. No. 13, p. 650. 
 
 for partnership. No. 14, p. 651. 
 
 for managing receiver of joint business, No. 15, p. 653. 
 
 for managing receiver of mine. No. 16, p. 653. 
 
 because of misconduct of officers, No. 17, p. 654. 
 
 for specific property. No. 18, p. 655. 
 
 without prejudice to riglits of prior encumbrancers. No. 19, p. 655. 
 
 of rents and profits on foreclosure, etc.. No. 20, p. 656. 
 
 ORDER OF COURT— Generally. 
 
 in foreclosure cases when void, § 130, p. 231. 
 
 disobedience to as ground for appointment of receiver in lieu of trustee, 
 
 § 306, p. 541. 
 fixing receiver's compensation not revoked, g 350, j, p. 591. 
 discharging receiver pending action, § 414, p. 629. 
 form of, granting injunction, etc., No. 17, p. 654. 
 
 to show cause why receiver should not be appointed. No. 31, p. 657. 
 
 on creditors to exhibit claim. No. 37, p. 662. 
 
 appointing special commissioner to hear and report claims, No. 39, 
 p. 663. 
 
 to pay claims, etc.. No. 30, p. 664. 
 
 for defendant to turn over bi o'vs, etc.. No. 31, p. 665. 
 
 to settle traffic balances. No. 37, p. 670. 
 
 to pay rent. No. 38, p. 670. 
 
 giving leave to pay secured claim, No. 40, p. 671. 
 
 directing sale of perishable property, No. 41, p. 673. 
 
 confirming sale. No. 43, p. 673. 
 
 to complete purchase. No. 44, p. 673. 
 
 sanctioning employment of counsel. No. 46, p. 674. 
 
 discharging receiver. No. 56,,p. 679. 
 
 removing receiver and appointing substitute, No. 57, p. 780. 
 
 to show cause why receiver should not be disciiarged, No. 59, p. 781. 
 
 that receiver pay over funds to successor, No. 61, p. 781.
 
 752 INDEX. 
 
 LRoterencPS are to sections and pagres in body.] 
 ORDER OF COURT— Gknbkally, continued. 
 
 fc>rin of, to sberifif to withdraw levy, No. 65, p. 784. 
 special, to receiver to bring suit, No. 66, p. 784. 
 
 autliorizing compromise with shareholders of National Bank, No. 71, 
 p. O'Jl. 
 for distribution of receivership funds, generally, i^ 'd^)7, p. 595. 
 when attorney's fees to be embraced in, § ;558, a, p. 597. 
 to include rents and profits, when, § 358, d, p. 599. 
 to include debts due contractors, S *358, c, p. 599. 
 to include expenses and advances, when, § iJ58, e, p. 599. 
 to include money paid by security, when, i^ 358, f, p. 000. 
 ■when judgment claimed to be a prior lien, § 358, g, p. 001. 
 where collaterals are held, § 358, h, p. 601. 
 
 ORIGIN OF LAW, 
 
 of receivership, § 1, p. 2. 
 
 P. 
 
 PARAMOUNT TITLE. 
 
 the claimant of, must apply to court to protect his right, 5 45, note, p. 126. 
 
 PARTIES, 
 
 to petition for receiver, § 373, p. 603. 
 to suit by receiver, § 391, p. 611. 
 
 receiver of firm need not make firm or members parlies, § 72, note, p. 160. 
 on bill filed by receiver for creditors and stockholders, they need not be 
 parties, § 72, note, p. 160. 
 
 See also Plaintiff and Defendant. 
 
 PARTITION SUITS, 
 
 appointment of receiver in, between tenants in common, § 317, p. 549. 
 
 PARTNERS, 
 
 receiver cannot enforce liability of, § 78, p. 177. 
 appointment of receiver for, disqualification of, § 4, b, p. 7. 
 
 PARTNERSHIP. 
 
 receiver for, generally, § 190, p. 305. 
 
 when to be appointed, for violation of partnership agreement, § 191, a, 
 p. 306. 
 for breach of partnership duty, t^ 191, a, p. 306. 
 for fra\id of partner, t^ 191, b, p. 306. 
 for serious di-sagreemeut, § 191, c, p. 306. 
 
 for disagreement as to disposition of firm property, § 191, c, p. 306. 
 for mismanagement by partner in charge, § 191, d, p. 306. 
 for violation of dissolution agreement, § 191, e, p. 307. 
 for appropriating firm property to individual use, § 191, f, p. 307. 
 for insolvency of limited partnership, i^ 191, g, p. 307. 
 where plaintiff entitled to dissolution, § 191, h, p. 307.
 
 INDEX. 753 
 
 [References are to sections and pages in body.] 
 PARTNERSHIP, continued. 
 
 receiver for, wlien to be appointed, where on dissolution partners disagree 
 as to adjustment, Ji^ 191, i, p. 'Ml. 
 for insolvency of partner in charge after dissolution, § 191, j, 
 
 p. 307. 
 for exclusion of partner from profits, § 191, k, p. 307. 
 for exclusion from management, § 191, k, p. 307. 
 where partners are dead, § 191, 1, p. 307. 
 for mismanagement by surviving partner, § 191, m, p. 308. 
 when not to be appointed, where a mere disagreement, § 193, a, p. 308. 
 where partnership not clearly shown, § 192, b, p. 308. 
 where lack of profits only grounds, § 192, c, p. 308. 
 where defendant responsible and danger of loss not shown, § 193, 
 
 d, p. 308. 
 where plaintiff in possession, § 192, e, p. 308, 
 where allegations denied by answer, § 193, f, p. 308. 
 where right to dis.solution does not clearly appear, § 193, g, p. 309. 
 where dis.solution probable, but receiver unnecessary, § 193, h, 
 p. 309. 
 prerequisites to appointment, generally, § 193, p. 309. 
 
 partnership or joint interest to be shown, § 193, a, p. 309. 
 must be partnership in fact and not in name, § 193, a, p. 309. 
 agreement for partnership insufficient, ^ 193, a, p. 309. 
 violation of agreement must be substantial, § 193, b, p. 310. 
 sufficient cause for dissolution must be shown, § 193, b, p. 310. 
 quarrel between partners not sufficient, § 193, b, p. 310. 
 who to be appointed, generally, § 194, p. 311. 
 
 partner, when eligible, § 194, p. 311. 
 in case of retiring partner, § 195, p. 313. 
 
 danger of loss a necessary element, § 195, p. 315. 
 in case of assignment by insolvent partner, § 190, p. 315. 
 in case of dissolution by death, § 197, p. 316. 
 on application of creditor, § 198, p. 318. 
 in case of limited partnerships, § 199, p. 319. 
 in case of expiration of partnership agreement, § 200, p. 321. 
 in case of exclusion of partner, generally, § 201, p. 321. 
 in case of fraud by partner, § 202, p. 323. 
 in case of mismanagement by partner, § 203, p. 324. 
 in case of insolvency, § 204, p. 326. 
 in case of dissolution, § 205, p. 329. 
 before dissolution, § 200, p. 332. 
 miscellaneous grounds, § 207, p. 335. 
 special grounds for refussal of, § 208, p. 335. 
 powers and duties of, generally, § 209, p. 836. 
 
 regulated by order of appointment, ^ 209, a, p. 336, 
 title not in receiver, g 209, b, p. 336. 
 cannot loan receivership funds, when, i^ 209, c, p. 337. 
 disintereoted as to both parties, § 209, d, p. 337. 
 
 48
 
 754 INDEX. 
 
 [Uoforcnces are to sections aud papes in body.] 
 PAKTNErjSniP, contiuued. 
 
 receiver for, powers aud duties of, care and diligence required, § 209, e, 
 p. 337. 
 suits by, in foreign state, § 209, f, p. 337. 
 suit by, in own name, § 209, f, p. 337. 
 power limited to power of firm, § 209, g, p. 237. 
 effect of appointment, as to liens, § 210, p. 338. 
 as to possession, § 210, p. 338. 
 as to rights of parties, ^ 210, p. 338. 
 when manager, t^ 211, p. 339. 
 form of petition for receiver in case of. No. 2, p. G33. 
 form of order appointing receiver for, No. 14, p. G51. 
 form of bond for receiver of, No. 22, p. 658. 
 form of assignment to, No. 25, p. 660. 
 
 PAYMENT OF CLAIMS, 
 order for, No. 30, p. 661. 
 
 preferred, law as to in U. S. Court, § 127, p. 2'3ri. 
 form of order to compel receiver to make, No. 32, p. 005. 
 
 PENDENTE LITE RECEIVER, 
 what is, § 8, note, p. 25. 
 
 PERISHABLE PROPERTY, 
 
 form of order to sell, No. 41, p. 672. 
 See also Propeiity. 
 
 PERMISSION. 
 
 See Leave of Court. 
 
 PERSONAL INJURIES, 
 
 liability of receiver for, when, § 113, p. 203. 
 
 when damages resulting from, not a preferred claim, Appx. p. C95. 
 See also Liability. 
 
 PERSONAL PROPERTY, 
 
 transfer of title, generally, § 37, b, p. 109. 
 by act of parties, § 37, b, p. 109. 
 by operation of law, § 37, b, p. 109. 
 
 how governed, § 37, note, p. 111. 
 domicil of owner governs, when, ^ 37, b, p. 109. 
 taxes on, as claim against receivership fund, g 341, b, p. 573. 
 
 PERSONAL REPRESENTATIVE, 
 
 of receiver, liability of, generally, § 135, p. 283. 
 See also Liability. 
 
 PETITION, 
 
 leave of court necessary to filing, § 93, p. 183. 
 
 by receiver, for order of authority, g 400, p. 618. 
 
 for appointment of receiver, necessary parties to, § 373, p. 603. 
 
 necessary allegations in case of insolvency of corporation, § 22», 
 p. 370.
 
 INDEX. 755 
 
 [Ueferences are to sections and pages in body.] 
 PETITION, continued. 
 
 for appointment of receiver, prayer contained in, § 372, p. 603. 
 form of, in case of partnert-bip. No. 1, p. 636. 
 
 for receiver of partnership proiterty. No. 3, p. 638. 
 against insolvent corporation, No. 2, p. 637. 
 in foreclosure, No. 4, p. 639. 
 
 by creditor of corporation to account, to set aside judgment, and 
 to appoint receiver. No. 5, p. 640. 
 form of, to compel payment to receiver. No. 32, p. 665. 
 
 for permission to defend suit and comproiiii.se claim. No. 35, p. 608. 
 
 for leave to settle traffic balances. No. 36, p. 669. 
 
 for leave to sell, No. 39, p. 671. 
 
 to compel completion of purchase. No. 43, p. 672. 
 
 for authority to pay counsel fees, No. 45, p. 673. 
 
 for leave to pay claims, No. 47, p. 674. 
 
 that receiver be instructed to pay deposit, No. 49, p. 675. 
 
 that receiver surrender possession. No. 50, p. 676. 
 
 for permission to account and be discharged. No. 52, p. 677. 
 
 for substituting party to action pending, when appointed. No. 64, 
 
 p. 783. 
 of receiver of National Bank for leave to compromise. No. 70, p. 680. 
 See also Bill and Compl.\int. 
 PLAINTIFF, 
 
 receiver of corporation may be, when, § 235, a, p. 397. 
 
 name of, in suit by receiver, § 391, p. 611. 
 
 when securing appointment, is liable for costs, § 22, j, note, p. 69. 
 
 PLAINTIFF'S TITLE, 
 
 must be clearly shown, § 5, a, note, 1, p. 12. 
 
 no appointment when, in dispute, § 5, b, note, p. 13. 
 
 PLEADING, 
 
 in receivership cases, generally, § 370, p. 601. 
 
 the prayer, § 372, p. 603. 
 
 necessary parties, § 373, p. 603. 
 
 notice of appointment, § 364, p. 603. 
 
 affidavit basis of order of appointment, § 384, p. 603. 
 
 when application to be made, ^ 375, p. 604. 
 
 when application granted before answer, g 376, p. 604. 
 
 bond required, § 377, p. 604. 
 
 effect of giving bond, § 378, p. 604. 
 
 form of the bond, § 379, p. 605. 
 
 reference, § 385, p. 608. 
 
 in foreclosure, § 389, p. 609. 
 
 statutory proceedings, g 387, p. 609. 
 
 right to set ofif, § 399, p. 618. 
 in suit by receiver, generally, i? 390, p. 610. 
 
 in what name begun, g 391, p. 611. 
 
 necessary allegations, ^5 391, p. 611. 
 
 must aver leave of court to sue, Appx. p. 698.
 
 756 INDEX. 
 
 [Ufferences are to sections and pukps in body.] 
 PLEADING, conlinucd. 
 
 in suit by receiver, form of allegations, ^ 393, p. (ill. 
 
 in suit against receiver on void appoiulmenl, i5 396, p. 615. 
 
 petition by receiver for autliority, ^ 400, p. 618; ^ 401, p. 619. 
 
 interplea by receiver, ^ 403, p. 619. 
 
 order discharging receivers pendinij suit, § 414, p. 629. 
 
 POSITION OF KECEIVEH, 
 
 general nature of, as to third parties, ^ 404. p. 620. 
 See also FuNCTioi>iS and Powers. 
 
 POSSESSION OF RECEIVER, 
 
 in possession of court, § 7, c, note, p. 23. 
 
 protected by court, § 44, note, p. 122. 
 
 receiver entitled to, notice not required, § 17, b, p. 47. 
 
 as against personal representatives, § 17, b, note, p. 47. 
 appointment vests in receiver a special property, tj 48, note, p. 137. 
 receiver need not apply for leave to obtain possession of property, § 48, 
 
 note, p. 133. 
 efifect in foreign jurisdiction, § 17, d, note, p. 48. 
 
 vested in one state, will be protected in another state, § 48, note, p. 137. 
 when not disturbed, ^ 5, b, p. 13. 
 not interfered with, without leave, ^ 7, b, note, p. 23. 
 how interfered with, by suits against without leave, g 43, p. 121. 
 
 by infringement of patents, ^ 43, p. 121. 
 
 by rival receivers, § 43, p. 121. 
 
 by untrue circulars and publications, § 43, p. 121. 
 
 by bankruptcy proceedings, § 43, p. 121. 
 
 by garnishment, § 43, p. 121. 
 
 by unlawful withholding, g 43, p. 121. 
 
 by tax officers, § 43, p. 121. 
 
 by condemnation proceedings, § 43, p. 121. 
 
 by orders of co-ordinate courts, § 43, p. 121. 
 
 by force, g 43, p. 121. 
 
 by trespass, § 43, p. 121. 
 
 by distress for rent, § 43, p. 121. 
 
 by ejefctment. § 43, p. 121. 
 
 by levy of execution and attachments, g 43, p. 121. 
 
 by coordinate court, g 44, p. 122. 
 
 by state and Federal courts, g 44, p. 122. 
 
 by execution and attachment, ^ 44, note, p. 122. 
 
 by courts of concurrent jurisdiction, g 44, p. 122. 
 
 by suits in foreign courts, g 45, p. 126. 
 
 under irregular order, g 45, p. 126. 
 
 by ejectment, § 45, p. 126. 
 
 by replevin, g 45, p. 126. 
 
 by levy, g 45, p. 126. 
 
 strikes and conspiracies, § 43, p. 121; § 46, p. 133. 
 interfered with, by threats, § 46, p. 130.
 
 INDEX. 757 
 
 [References are to sections and pages in body.] 
 POSSESSION OF RECEIVER, continued. 
 
 interfered with, by placards and advertisenienis, § 46, note, p. 130. 
 
 property in foreign jurisdiction, § 47, p. 132. 
 
 by landlord, § 47, p. V6i. 
 
 as to collection of money, § 47, p. 132. 
 
 leave of court required, ^ 47, p. 132. 
 
 a contempt, when, § 45, p. 126. 
 
 under mistake of law may be contempt, § 47, p. 132. 
 
 withholding possession of contract is, t^ 48, p. 133. 
 
 not on ground that appointment illegal, or iniprovldently made, § 44, 
 note, p. 122. 
 enjoined, § 45, p. 120. 
 duty as to, generally, ^ 48, p. 133. 
 
 diligence required, § 48, p. 133. 
 
 when exercise excused, § 48, p. 133. 
 
 aid of court, g 48, p. 133. 
 
 protected in foreign jurisdictions, § 48, p. 133. 
 effect of, against foreign creditors, § 48, p. 133. 
 
 as to public improvements, ^ 49, p. 135. 
 
 as to new business, § 50, p. 135. 
 
 as to tenants, § 50, p. 135. 
 
 as to rents, § 51, p. 136. 
 
 as to set off, ^ 55, p. 138. 
 
 as to exemptions, § 56, p. 139. 
 
 as to executors and administrators, § 57. p. 139. 
 
 as to title, § 59, p. 142. 
 
 as to receiver's appointment, § 44, p. 122. 
 
 where lien has attached when receiver appointed, possession not af- 
 fected thereby, g 45, note, p. 126. 
 extent of, as to taxes, § 54, p. 137. 
 
 as to secured creditor, § 54, p. 137. 
 
 protected from levy, § 44, note, p. 122. 
 
 cannot be levied on and sold so as to confer title, § 44, note, p. 122. 
 in foreclosure, Appx. p. 695. 
 
 in another court, § 19, note, p. 56. 
 of corporation, peculiarities of, § 242, p. 416. 
 to whom restored on dismissal of bill, S 52, p. 136. 
 
 court will not make summary order on receiver to turn over property, § 48, 
 note, p. 133. 
 
 POWER OF COMPTROLLER OF CURRENCY, 
 to appoint receiver, § 252, a, p. 421. 
 
 Sec also National B.\nks. 
 
 POWER OF COURT. 
 
 to appoint receiver, discretionary, § 222, p. 347. 
 statutory as to corporations, § 221, p. 345. 
 limited, g 223, p. 349. 
 for insolvent corporation, § 228, p. 369. 
 over receiver of National Bank appointed by comptroller, § 252, c, p. 424.
 
 758 INDEX. 
 
 [References are to sections and pajrcs in bodj'.] 
 POWER OF COURT, continued. 
 
 to appoint receiver over trust property, ^5 305, p. 539. 
 to compel assignment, ^ 03, p. 145. 
 as to choses in action, i^ GI5, p. 145. 
 See also Juuisdiction. 
 
 POWER OF LIQUIDATORS, 
 
 generally, § 3, p. 3. 
 
 POWERS OF RECEIVER, 
 
 under English Judicature Act 1873, § 3, p. 3. 
 under "Companies' Act," § 3, p. 3. 
 under statutes of .stales, § 3, p. 3. 
 
 Delaware, § 4, p. 6. 
 
 Florida, ^ 4, p. 6. 
 
 Georgia, tj 4, p. 6. 
 
 Idaho, § 4, p. 6. 
 
 Illinois. ^ 4, p. 6, 
 
 Indiana, ^ 4, p. 6. 
 
 Iowa, § 4, p. 6. 
 
 Kansas, § 4, p. 6. 
 
 Kentucky, § 4, p. 6. 
 
 Maine. § 4, p. 6. 
 
 Maryland, g 4, p. 6. 
 
 Massachu.setts, § 4, p. G. 
 
 Michigan, § 4, p. 6. 
 
 Minne.sota, § 4, p. 6. 
 
 Mississippi, § 4, p. 6. 
 
 Missouri, § 4, p. G. 
 
 Montana, j^ 4, p. 6. 
 
 Nebraska, § 4. p. 6. 
 
 Nevada, § 4, p. 6. 
 
 New Jersey, § 4, p. 6. • 
 
 New York, § 4, p. 6. 
 
 North Carolina. | 4, p. G. 
 
 Norlh Dakota, g 4, p. 6. 
 
 Ohio. § 4, p. G. 
 
 Oklahoma, § 4, p. 6. 
 
 Oregon, § 4, p. 6. 
 
 Pennsylvania, § 4. p. 6. 
 
 Rhode Island, § 4, p. G. 
 
 South Carolina, § 4, p. 6. 
 
 Tennessee, § 4, p. G. 
 
 Texas. § 4, p. 6. 
 generally, § 3, p. 3; § 24, p. 81. 
 source of, § 24, p. 81. 
 
 practice of court of equity, § 24, p. 81. 
 . statutor'' enactment, t^ 24, p. ^ 
 embraced in order. 
 
 nt, t^ 24, p. bl. 
 r, § 25, a, p. f^.
 
 INDEX. 759 
 
 [References are to sections and pages in buJj-.] 
 POWERS OF RECEIVER, continued. 
 
 source of, Englisli practice, i^ 25, a, p. 83. 
 
 American practice, S 25, a, p. 82. 
 
 practice of court, § 25, b, p. 83. 
 
 statutory euactments, § 25, c, p. 84. 
 
 limitation of, § 25, d, p. 85. 
 
 ■when terminated, § 25, e, p. 84. 
 under irregular appointment, § 25, f, p. 85. 
 retrospective action of courts, effect of, § 25, f, p. 85. 
 limited to order, § 25, note, p. 82. 
 
 P"'ederal receiver must obey state law, § 25, c, note, p. 7G. 
 expendikures in good faitb, i^ 26, a, p. 85. 
 to borrow money, § 26, a, § 26, b, p. 85. 
 
 when authorized, § 26, b, p. 85. 
 to loan money, authority of court required, § 27, a, p. 87. 
 
 to whom to be loaned, § 27, b, p. 87. 
 
 when liable for interest, § 27, d, p. 87. 
 to compromise debts, authority of court required, g 28, a, p. 83. 
 
 may be general, g 28. b, p. 88. 
 
 statutory liability, § 28, c, p. 88. 
 
 no power to commute, § 28, d, p. 88. 
 to employ counsel, must be general or special, § 29, a, p. 89. 
 
 when order not required, § 29, a, p. 89. 
 
 compensation of, § 29, a, p. 89. 
 
 who employed, § 29, b, p. 90. 
 
 complainant's solicitor not eligible, § 29, b, p. 90. 
 to sue, generally, § 30, p. 91. 
 
 limitation of, i^ 30, b, p. 92; § 394, p. 611. 
 
 under direction of court, § 30, a, p. 92. 
 
 leave of court required, § 30, c, p. 92. 
 
 authority must be alleged, § 30, d, p. 92. 
 
 he must allege leave of court and equity of the party he represents, 
 § 69, note, p. 152. 
 
 when denied must be shown, § 71, note, p. 158. 
 
 grounds upon which receiver appointed need not be averred, ^ 71, note, 
 p. 158. 
 
 extent of power, § 30, e, p. 92. 
 
 as a rule confined to the power of the person or corporation, i^ 70, 
 note, p. 156. 
 
 in foreign jurisdiction, § 37, note, p. 108; t^ 63, p. 145. 
 English rule, § 37, b, p. 108. 
 
 in supplementary proceedings, § 70, c, p. 156. 
 
 to set aside irregular attachment, § 42, p. 119. 
 
 under creditor's bills, § 70, c, p. 156. 
 
 as representative of creditors, § 70, note, p. 156. 
 
 on bond assigned to him, § 72, note, p. 160. 
 
 on contract of insurance, Appx. p. 698. 
 
 for property converted, § 42, p. 119.
 
 760 INDEX. 
 
 [References are to sectious and pajircs in body.] 
 
 POWERS OF RECf:iVER, conlinued. 
 
 to make repairs, under direcliou of court, § 31, a, p. 93. 
 
 uuthnrily of court, i^ 31, b. p. 93. 
 
 applied to railways, ^ 31, b, p. 93. 
 to pureliase supplies, labor, etc., extent of, § 32, p. 94. 
 
 sanction of court when, § 32, p. 94. 
 
 application to railways, i^ 32, p. 94. 
 
 binds trust property, t^ 32, p. 94. 
 to continue business, limitation of, b^ 33, p. 96. 
 
 must be clearly shown, § 33, p. 96. 
 
 as to new business, § 33, p. 96. 
 
 as applied to partnership, § 33, p. 96. 
 
 as applied to railway receiverships, § 33, p. 93. 
 to complete contracts, § 33, note, p. 94. 
 to annul contracts, § 35, note, p. 103. 
 to sell, extent of, § 34, a. p. 98. 
 
 only on day named, Appx. p. 698. 
 
 order of court required, g 34, a, p. 98. 
 
 requisites of order, i^ 34. a, p. 98. 
 
 when ordered, § 34, a, p. 98. 
 
 evidence of sale — deed, § 34, b, p. 99. 
 
 ■what required of purchaser, § 34, b, p. 99. 
 
 confirmation of court required, § 34, b, p. 99. 
 
 application of rule of caveat emptor, § 34, b, p. 99. 
 
 protection of receiver in, § 34, b, 99. 
 
 attack of sale, how made, § 34, c, p. 101. 
 
 notice to purchaser, § 34, c, p. 101. 
 to perform contracts, not granted, generally, § 35, a, p. 103. 
 
 when court will require, § 35, a, p. 102. 
 
 receiver may avoid when, § 35, a, p. 102. 
 to lease, authority of court required, § 36, a, p. 104. 
 
 limitation as to time, § 36, a, p. 104. 
 to cancel lease, must be in reasonable time, ij 36, b, p. 105. 
 in foreign jurisdiction, as to property, American rule, § 37, b, p. 109. 
 
 English rule, § 37, a, p. 108. 
 
 limitation of, generally, § 37, p. 108. 
 coextensive only with jurisdiction of court, § 37, note, p. 108. 
 to impeach fraudulent transactions, limitation of, § 38, p. 111. 
 
 as representative of creditors, § 38, p. 111. 
 
 as representing corporation, § 38, p. 111. 
 to collect stock subscriptions, prerequisites of, § 39, p. 115. 
 
 application of rule to banks, g 39, p. 115. 
 
 fraudulent cancelations, § 39, p. 115. 
 to issue certificates, incident to borrow money, § 40, p. 117. 
 
 authority of court required, § 40, p. 117. 
 to appeal, limitation of, § 41, p. 117. 
 
 where personally interested, § 41, p. 117. 
 to take notes instead of money, § 42, p. 119.
 
 INDEX. 7GI 
 
 [References are to sections and pages iu body.] 
 POWERS OF RECEIVER, continued. 
 
 to receive money before due, 5^ 42, p. 119. 
 
 to execute summary order of ejectment, g 42, p. 119. 
 
 as to rents accrued, § 43, p. 119. 
 
 to surrender collaterals, § 42, p. 119. 
 
 to satisfy mortgages, g 42, p. 119. 
 
 to compel disclosure of knowledge, § 42, p. 113. 
 
 not to be delegated, § 42, p. 119. 
 
 to use seal of corporation, § 42, p. 119. 
 
 may not be mortgagee of receiversliip properly, § 42, p. 119. 
 
 10 subject property to lien for storage, ^ 42, p. 119. 
 
 limited by charter of corporation, § 42, p. 119. 
 
 tender to, not good, § 42, p. 119. 
 
 as to discrimination in freight. ^ 42, p. 119. 
 
 to interfere with suit pending, t^ 42, note, p. 119. 
 
 may reduce wages of employees, § 46, p. 130. 
 
 discretionary power of receiver limited, § 6, a, p. 20 
 
 has same power to redeem as corporation, i^ 70, note, p. 156. 
 
 to avoid fraudulent acts of corporation in New York, § 74, note, 
 
 p. 170. 
 as to acts ultra vires, § 70, b, p. 156. 
 no power to avoid fraudulent payment made before appointment, § 72, 
 
 note, p. 160. 
 to interfere in suit pending, § 70, c, p. 156. 
 of in.solveut corporation to represent creditors and stockholders, § 70, note 
 
 p. 156. 
 to enforce liability of stockholder, Appx. p. 697. 
 to enforce assessments, § 40S, p. 623. 
 
 to bind as to title, not where owners not parties, § 71, note. p. 158. 
 to petition for statement of authority, § 400, p. 618. 
 to compromise doubtful claims, § 407, p. 023. 
 in supplementary proceedings, § 154, p. 256. 
 
 in foreign jurisdiction, § 158, p. 262. 
 in case of partnership, j? 209, p. 336. 
 as manager of corporation, § 232, p. 377; § 402, p. 019. 
 
 general rule, § 233, p. 380. 
 
 to sue, § 233, e, p. 382. 
 of National Bank, to sue, § 252, p. 419. 
 
 to sell g 254, p. 426. 
 
 respecting title, g 255, p. 429. 
 for railways, generally, g 274, p. 471; g 283, p. 501. 
 
 to pay preferred claims, grounds of allowance, g 276, p. 476. 
 
 iu payment of preferred claims, g 280, b, p. 494. 
 
 to disafhrm acts of (jfhcers, § 283, d, p. 503. 
 
 to restrain illegal acts, g 283, e, p. 503. 
 
 limitations of, g 284, p. 507. 
 when they cease, § 6, b, note, p. 23. 
 See also Functions.
 
 702 INDEX. 
 
 [Ueferonces arc to sections iind pages in body.] 
 PKACTICE, 
 
 in receivership cases, generally, t^ <j~0. p. 001. 
 
 notice of applicalion, § 374, p. 60:5. 
 
 wlien application to be made, § 375, p. 604. 
 
 wben application granted before answer, § 376, p. 604, 
 
 bond re(juired, t^ 377. p. 604. 
 
 elTecl of giving bond, § 378, p. 604. 
 
 form of the bond, i^ 371), p. 605. 
 
 enforcement of liabilily on bond, g 380, p. 606. 
 
 il.s scope, t^ 381, p. 606. 
 
 the order appointing, § 381, p. 606. 
 findings embodied in order appointing, g 3^3, p. 507. 
 affidavit as basis of order of appointment, i; 384, p. 607. 
 reference, § 385, p. 608. 
 
 in code states, examination of debtor, ^ 380, p. 608. 
 in statutory proceedings, § 387, p. 609. 
 on foreclosure, § 389, p. 609. 
 in suit by receiver, § 390, p. 610. 
 
 in what name begun, § 391, p. 611. 
 
 necessary allegations, § 392, p. 611. 
 
 form of allegations, § 393, p. 611. 
 leave to sue receiver, jj 395, p. 612. 
 
 in suit against receiver under void appointment, § 396, p. 615. 
 right of set-off, § 399, p. 618. 
 petition of receiver for authority, § 400, p. 618. 
 application by receiver for direction, § 401, p. 619. 
 on interplea by receiver, § 403, p. 619. 
 ■when receiver acts outside of his duty, g 405, p. 622. 
 where receiver refuses to act, § 406, p. 622. 
 leave to compromise, § 407, p. 623. 
 leave of receiver to sell, g 409, p. 629. 
 obtaining leave to contract debts and liens, g 410, p. 625. 
 order discharging receiver pending suit, g 414, p. 629. 
 elTect of order discharging receiver pending action, § 414, p. 629. 
 obtaining leave to issue certificates, § 411, p. 626. 
 determining conflicting claims, § 415, p. 630. 
 appeal by receiver, § 418, p. 632. 
 
 PRAYER, 
 
 for appointing receiver, petition to contain, § 372, p. 603. 
 
 in case of partnership, form of, No. 1, p. 636. 
 
 unnecessary when, § 10, c, note, p. 28. 
 for nonappointment, where facts inconsistent with, g 15, d, p. 41. 
 for judgment against insolvent corporation, form of, No. 2, p. 637. 
 for an accounting against corporation, No. 5, p. 640. 
 See also Form. 
 
 PREFERENCES— ILLEGAL, 
 
 by National Banks, void under statutes, § 259, p. 445. 
 See also National Banes.
 
 INDEX. 'iros 
 
 [References are to sections anrt pae-es in body.] 
 
 TRKFEHRED CLAIMS, 
 
 against receivership fuud, ground for allowance, S 312, p. 574. 
 nature of. g 34:^. p. 576. 
 
 when deprived of that character, § 343, p. 579. 
 when attorney's fee is, § 358, p. 598. 
 See also Claims. 
 
 PREFERRED PAYMENTS, 
 
 law as to U. S. courts regarding, § 127, p. 226. 
 
 PRIORITY, 
 
 of claims against receivership fund, § 342, p. 575. 
 
 of creditors in supplementary proceedings, § 159, p. 203. 
 
 how determined, ^ 159, p. 264. 
 of judgment, when claimed as a prior lien on distribution. § 358, g, p. 601. 
 
 PROCEEDINGS IN AID OF EXECUTION, 
 when receiver appointed, § 4, d, p. 9. 
 under statute, receiver's title in, § 61, p. 144. 
 
 See also Cueditors' Bills and Supplementaiit Pro- 
 ceedings. 
 PROFITS. 
 
 See Rents and Profits. 
 
 PROPERTY, 
 
 in custodia legis, effect of, § 7, a, p. 23. 
 
 held in trust, duties regarding, § 412, p. 627. 
 
 when misappropriated receiver may recover, § 75, (5), p. 171. 
 
 when abstracted receiver may recover, § 75, (13), p. 171. 
 
 real, transfer of title by act of parties, § 37, b, p. 109. 
 
 personal, transfer of title, generally, § 37, b, p. 109. 
 
 transfer of title, by operation of law, § 37, b, p. 109. 
 domicil of owner governs when, ^^37. b, p. 109. 
 See also Personal Property and Land. 
 PURCHASER, 
 
 wLeu liable for damages, § 34, a, p. 98. 
 See also Vendee and Sale. 
 
 R. 
 
 RAILWAY CROSSING, 
 
 liability of receiver for construction, § 114, p. 211. 
 See also Liaijility. 
 
 RAILWAY RECEIVERS. 
 
 attitude of court toward, § 270, p. 452. 
 appointment of, notice of application for, g 271, p. 454. 
 generally, § 272, p. 456. 
 form of order appointing. No. 12, p. 648. 
 when appointed, where directors unlawfully lease the road and property, 
 § 272, a, p. 450. 
 where directors delegate management to another corporation, § 272, a, 
 p. 456.
 
 7Gi INDEX. 
 
 [References are to sections and i^afires in body.] 
 
 RAILWAY RECEIVERS, continued. 
 
 when appointed, where default in payment of taxes, ^ 272, b, p. 461. 
 for default in mortgage indebtedness, § 272, b. p. 457. 
 where default in interest, § 272, b, p. 461. 
 where corporation insolvent, § 272, b, p. 457. 
 where security inadequate, ^ 272, b, p. 401. 
 wlicre revenues and income being wasted, ^ 272, c, p. 403. 
 vhere revenues being misapplied, § 272, c, p. 403. 
 where income and profits pledged, and default in interest, ^ 272,d, p. 464 
 where funds are being embezzled, ^ 272, e, p. 465. 
 where mismanagement by officers and directors, g 272, e, p. 465. 
 where property is being wasted, § 272, e, p. 465. 
 when none competent to have custody, § 272, f, p. 465. 
 where there is a failure to elect officers, § 272, f, p. 405. 
 where statutory cause for revoking charter, g 272, g, p. 465. 
 where statutory cause for appointment, §.272, g, p. 405. 
 when not appointed, generally, § 273, p. 465. 
 
 where no notice of application given, § 273, a, p. 466. 
 
 where no fraud or breach of trust is alleged, § 273, b, p. 467. 
 
 where breach of conditions in mortgage not clearly shown, § 273, c, 
 
 p. 467. 
 where right to foreclose doubtful, § 273, c, p. 458. 
 where application by minority stockholders, § 273, d, p. 468. 
 where default in interest alone insufficient, § 273, c, p. 468. 
 where danger of loss not shown, § 273, e, p. 468. 
 where plaintiCF has adequate remedy at law, § 273, f, p. 469. 
 where by statute officers are made trustees, ^ 273, g, p. 469. 
 where rights of third persons are affected, § 273, h, p. 471. 
 where disagreement as to management, § 273, i, p. 471. 
 powers of, generally, § 274, p. 471. 
 
 derived from order of appointment, § 274, p. 471. 
 to pay unsecured claims, g 274, p. 472. 
 
 on what based, § 274, a, p. 473. 
 
 limitations of, § 275, b, p. 475. 
 to pay preferred claims, grounds of allowance, § 276, p. 476. 
 
 based on necessity to preserve property, § 276, a, p. 476. 
 
 based on practice of courts of equity, § 278, p. 485 
 
 based on application of mortgagor for foreclosure, § 276, b, p. 476. 
 
 based on diversion of income, ^ 276, c, p. 477. 
 
 based on statute, § 276, d, p. 479. 
 
 confined to operating expenses, § 276, e, p. 481. 
 
 based on application of income to interest or improvements, § 276, 
 e, p. 481. 
 implied, from general order, § 277, a, p. 483. 
 
 to pay ordinary operating expenses, § 277, a, p. 482. 
 
 to pay for labor and supplies, § 277, a, p. 482. 
 
 limited to public corporations, § 277, b, p. 484. 
 
 based on equitable terms imposed by court, § 278, b, p. 485.
 
 INDEX. 765 
 
 [References are to sections and pagres in body.l 
 RAILWAY RECEIVERS, continued. 
 
 powers of, its extent, § 282, p. 500; § 33, p. 94. 
 
 to preserve property, § 283, a, p. 501. 
 
 to operate road, § 383, a, p. 501. 
 
 to collect debts, § 283, b, p. 502. 
 
 to reduce property to possession, § 283, c, p. 503. 
 
 to disaffirm unlawful acts of officers, § 283, d, p. 503. 
 
 to restrain illegal acts of officers, § 283, e, p. 503. 
 
 to defend suits, etc., § 283, f, p. 504. 
 
 to make traffic arrangements, § 283, g, p. 504. 
 
 as to unfinished contracts, § 283, h, p. 505. 
 
 as to adoption of unexpired leases, § 283, i, p. 506. 
 
 limitations of, § 284, p. 507. 
 payment of preferred claims, rule in Federal courts, generally, § 279, p. 486. 
 
 applied to rolling stock, ^ 280, p. 491. 
 
 discretion of receiver in, § 280, b, p. 494. 
 
 applied to car trusts, § 280, p. 491. 
 
 car trusts, return of property, § 280, d, p. 494. 
 payment of claims not preferred, damages by fire, § 281, b, p. 498. 
 
 advances to complete road, § 281, b, p. 491. 
 
 attorneys' fees, when, t 281, c, p. 498. 
 
 goods sold after mortgage given, § 2S1, d, e, p. 498. 
 liability of, generally, § 285, p. 508. 
 
 as common carriers, § 285, a, p. 509. 
 exceptions to rule, § 285, p. 510. 
 
 supersedes that of corporation, § 285, b, p. 515. 
 
 when i)ersonal, § 285, c, p. 516. 
 
 when official, § 285, d, p, 516. 
 
 on executory contract of railway, § 285, e, p. 516. 
 
 effect of discharge on, § 286, p. 517. 
 certificates of, issued by order of court, § 287, a, p. 523. 
 
 must be for purpose authorized, § 287, a, p. 521. 
 
 non negotiable, § 387, b, p. 522. 
 
 holder charged with notice, § 287, c, p. 523. 
 
 when not preferential, § 287, d, p. 523. 
 
 issued with caution, § 287, f, p. 525. 
 
 payment protected by court, § 287, g, p. 525. 
 
 validity where questioned, § 287, h, p. 525. 
 
 REAL ESTATE, 
 
 necessity of formal transfer, g 17, b, p. 47. 
 receiver's title as to, in foreign jurisdiction, § 64, p. 146. 
 suit by receiver regarding, must be in jurisdiction where same is, § 241, p. 
 416. 
 
 See also Land. 
 
 RECEIVER'S ACCOUNTS, 
 
 law regarding, § 416, p. 631. 
 
 See also Account.
 
 766 INDEX. 
 
 [References are to sections and pages in body.] 
 
 RECEIVER AD LITEM. 
 
 appointment of, | 310, p. 547. 
 
 See also Appointment. 
 
 RECEIVER— ANCILLARY, 
 
 application for, when, § 10, e, p. 29. 
 
 See Applic.\tion and Appointment. 
 
 RECEIVER'S APPEAL, 
 
 rule governing, § 417, p. 633. 
 See also Appeal. 
 
 RECEIVER— APPLICATION FOR, 
 
 by plaintiff, generally, § 10, a, p. 27. 
 defendant must have notice, when, § 5, d, p. 14. 
 when by defendant, t= 10, a, p. 27. 
 when ex parte, see Appx. p. 694. 
 care of court required in granting, § 10, b, p. 27. 
 averment must be clear and distinct, § 10, c, p. 28. 
 prayer necessary, § 10, c, p. 28. 
 
 must show disinterestedness of appointee, § 10, d, p. 23. 
 when heard in chambers, § 18, p. 54. 
 subsequent receivers, ancillary, § 10, e, p. 29. 
 at what stage of suit to be made, § 375, p. 60i. 
 must be in reasonable time, § 10, c, p. 2S. 
 when granted before answer, § 376, p. 604. 
 effect of giving bond, § 378, p. 604. 
 statutory requirements, § 387, p. 609. 
 See also Application. 
 
 RECEIVER'S APPOINTMENT, 
 
 in case of lunacy, § 4, a, p. 7; § 310, p. 547; Appx. p. O"). 
 
 in case party entitled to custody incompetent, i^ 4, a, p. 7. 
 
 in case of insolvency, § 15, d, p. 41. 
 
 in case of insolvent corporations, § 4, d, p. 9. 
 
 in case of infancy, § 4, a, p. 7. 
 
 in case of decedents' estates, § 4, a, p. 7; « 300, p. 526; § 309, p. 545. 
 
 in case of claimants of legal title, § 4, b, p. 7. 
 
 in case of disqualification, of party, § 4, b, p. 7. 
 
 of partners, § 4, b, p. 7. 
 
 of tenants in common, § 4, b, p. 7. 
 in case of vendor and vendee, § 4. c, p. 8; 8 315, p. 548. 
 in case of debtor and creditor, § 4, c, p. 8; g 316, p. 549. 
 in case of waste, § 4, c, p. 8. 
 in case of trustees, § 4, c, p. 8. 
 
 over trust property, generally, § 305, p. 539. 
 
 in lieu of trustee, § 306, p. 540. 
 
 when not made in trust cases, g 306, b, p. 543. 
 
 in lieu of testamentary trustee, § 308, p. 544. 
 ground for, § 306, p. 540. 
 in case of specific performance of contracts, § 4, c, p. 8; § 318, p. 551.
 
 INDEX. 767 
 
 [References are to sections and pages in body.] 
 RECEIVER'S APPOINTMENT, continued, 
 in case of life tenants, § 4, c, p. 8. 
 in case of executors and administrators, ^ 4, c, p. 8. 
 in case of mortgagors in possession, § 4, c, p. 8. 
 in case of mismanatrement of officers, § 4, c, p. 8. 
 in case of delinquent annuitants, § 4, c, p. 8. 
 in case of assignees, g 4, c. p. 8. 
 
 for fraudulent assignment, § 307, p 543. 
 in creditor's suits, § 4, d, p. 9. 
 
 where common law proceeding inadequate, § 4, d, p. 9. 
 in estates of married women, ^ 4, d, p. 9. 
 in case of fraud, § 15, c, p. 40. 
 
 in partition suits between tenants in common, § 317, p. 549. 
 where tenant in common excludes coteuant,, t^ 317, a, p. 550. 
 where tenant in common refuses to account to colenant, ^ 317, b, p. 550. 
 where tenant in common will not join in executing lease, i^ 317, c, p. 550. 
 when necessary to protect cotenant's interest, § 317, d, p. 550. 
 as between lessor and lessee, ^ 319, d, p. 551. 
 in ejectment suits, § 320, p. 551. 
 in suit for alimony, g 321, p. 552. 
 for building and loan associations, § 322, p. 553. 
 
 ground for, § 323, p. 554. 
 on ex parte application, Appx. p. G94. 
 on application of wife, Appx. p. 694. 
 
 in supplementary proceedings, § 153, p. 255; § 157. p. 201; § 160, p. 264. 
 in foreclosure of mortgage, generally, § 170, p. 2GU; g 173, p. 207; § 173, 
 p. 278. 
 
 for rents and profits, Appx. p. 693. 
 jurisdiction of court, § 176, p. 295. 
 
 general rules applicable to, § 178, p. 299. 
 when wife entitled to, g 180, a, p. 302. 
 when annuitant entitled to, § 180, b, p. 302. 
 when bondholder entitled to, § 180, c, p. 303. 
 when vendor entitled to, § 180, d. p. 393. 
 in case of partnership, § 190, p. 305. 
 
 prerequisites to, § 193, p. 309. 
 
 when to be appointed, § 194, p. 311. 
 
 where a member retires, g 195, p. 313. 
 
 when insolvent partner assigns, § 196, p. 315. 
 
 on dissolution by death, g 197, p. 316. 
 
 on application of creditor, g 198, p. 318. 
 
 limited partnership, generally, ^ 199, p. 319. 
 
 expiration of partnership agreement, § 200, p. 331. 
 
 exclusion of partner, generally, § 201, p. 321. 
 
 fraud of partner, § 202, p. 323. 
 
 mismanagement by partner, g 203, p. 324. 
 
 insolvency of partnership, g 204, p. 326. 
 
 dissolution of partnership, § 205, p. 329.
 
 768 INDEX. 
 
 [Keferonces are to sections and pa^^t'S in l)()ily.l 
 RECEIVER'S API'OINTMENT, continued. 
 
 in case of partnership, lack of profits no ground for, g '-lO"), [>. 3C3. 
 
 before dissolution, i^ 206, p. 3:{'3. 
 
 on miscellaneous grounds, i^ 207, p. 835. 
 
 special grounds for refusal of, ^ 208, p. 335. 
 
 powers and duties of, ^ 209, p. 336. 
 
 effect of, ^ 210, p. 3:?8. 
 for corporations, generally, § 220, p. 342; § 226, p. 363. 
 in case of street railway, Appx. p. C9(J. 
 
 in voluntary proceedings to dissolve, Appx. p. 604. 
 
 statutory power of court in, § 221, p. 345. 
 
 power of court, discretionary, ^ 222, p. 347. 
 
 limitation of court's power, § 223, p. 349. 
 
 application, by whom to be made, generally, § 224, p. 350. 
 by judgment creditors, ^ 225, k, p. 363. 
 
 grounds for, generally, § 225, a, p. 355. 
 
 fraud is ground for when, ^ 227, p. 366. 
 
 on ground of insolvency, ^ 228, p. 367. 
 
 in foreclosure proceedings, generally, § 229, p. 371. 
 
 effect of appointment, § 230, p. 371. 
 
 his relationship, generally, g 231, p. 375. 
 
 pleading and practice in, § 389, p. 609. 
 for National Banks, generally, § 252, p. 419. 
 
 power of comptroller to appoint, generally, § 253, p. 4^5. 
 
 governed by statute, § 254, p. 426. 
 
 title of receiver, generally, § 255, p. 429. 
 
 pleading and practice, i^ 388, p. 609. 
 for railways, generally, § 271, p. 454; g 272, p 456. 
 
 when not appointed, ^ 273, p. 465. 
 pleading and practice in, generally, S 370, p. 601. 
 
 when and how asked, ^ 371, p. 602. 
 
 prayer for, petition to contain, § 372, p. 603. 
 
 notice of application for, § 374, p. 603. 
 
 when application for to be made, § 375, p. 604. 
 
 when made before answer, § 376, p. 604. 
 
 bond required, § 377, p. 604. 
 
 effect of riving bond, § 378, p. 604. 
 
 form of the bond, ^ 379, p. 605. 
 
 scope of order, g 380, p. 606. 
 
 atlidavit as basis of order for, ^ 384, p. 607. 
 
 when reference advisable, ^ 385, p. 608. 
 
 statutory proceedings in, i^ 387, p. 609. 
 
 attack on void order, t^ 396, p. 615; Appx. p. 695. 
 general rules governing, g 5, p. 10; § 14, p. 37. 
 
 in the discretion of court, § 5, a, p. 10. 
 
 caution required of court, § 15, a, p. 38. 
 
 only where plaintiff's recovery probable, § 5, b, p. 13. 
 
 refused where remedy at law exists, § 5, c, p. 14; § 15, b, p. 44.
 
 INDEX. 769 
 
 [References are to sections and pages in body.] 
 RECEIVER'S APPOINTMENT, continued. 
 
 general rules governing, must be danger of loss, § 5, c, p. 14; ^ 15, a, p. 
 38; § 15, b, p. 39. 
 
 plaintiff's title must be clear, § 15, e, p. 43. 
 
 refused when legal title alone involved, i^ 15, e, p. 43. 
 
 defendant must have an opportunity to be beard, ^ 5, d, p. 14, 
 grounds of jurisdiction, generally, S; 15, p. 37. 
 
 when entertained, § 16, p. 45. 
 
 exercise of jurisdiction, § 18, p. 54. 
 
 conflict of jurisdiction, § 19, p. 56. 
 
 as to courts of co ordinate jurisdiction, ^ 17, c, p. 47. 
 
 scope of jurisdiction, § 20, p. 58. ' 
 
 effects of appointment, generally, § 7, p. 23; g 17, a, p. 45. 
 
 removes defendant from possession, § 17, b, p. 47. 
 
 as to possession, § 17, d, p. 48; t^ 44, p. 132. 
 
 places property in custodia kgis, % 7, a, p. 23. 
 
 custody limited, § 17, e, p. 50. 
 
 as to title, 17, d, p. 48; § 44, p. 133. 
 
 as to contracts, mortgages, etc., § 17, f, p. 51. 
 
 as to liens, § 44, p. 122. 
 
 when receiver's rights accrue, § 17, g, p. 53. 
 
 as to property, § 17, h, p. 53. 
 
 operates as an equitable execution, § 44, p. 123. 
 
 cannot be sued, § 7, b, p. 23. 
 
 determines no rights and affects no liens, § 7, c. p. 23. 
 time when appointed, § 9, p. 26; § 12, a, p. 33. 
 
 must be suit pending, § 9,a, p. 26; § 13, p. 35. 
 
 usually before answer, § 9, b, p. 26; § 12. b, p. 33. 
 
 when after decree, § 9, c, p. 26; § 12, c, p. 34. 
 
 after decree and appeal, when, § 9, d, p. 37; § 13, d, p. 35. 
 
 when heard in vacation, S 18, p. 54. 
 who to be appointed, generally, g 21, a, p. 59; § 10, c, note, p. 28. 
 
 competency required, § 21, b, p. 59. 
 
 must be indifferent person to all parties, § 21, b, p. 59. 
 
 rests within discretion of court, § 21, b, p. 59. 
 
 selection of the parties, § 21, b, p. 59. 
 
 English practice outlined, § 21, b, p. 59. 
 who not to be appointed, § 20, note, p. 58. 
 scope of bill or petition, § 11, p. 33. 
 form and scope of order, must describe property, § 22, a, p. 63. 
 
 embraces all acts necessary to preservation of property, § 23, b, p. 63. 
 
 as to custody of property, g 23, c, p. 64. 
 
 as to third parties, § 22, d, p. 64. 
 
 relates from what time, ^ 23, e, p. 65. 
 
 as to assignment of property, § 23, f, p. 65. 
 
 as to title, § 22, f , p. 65. 
 
 when modified, § 22, g, p. 66. 
 
 effect of recitals in, § 22, g, p. 66. 
 
 49
 
 770 INDEX. 
 
 [References are to sections and papes in body.] 
 RECEIVER'S APrOINTMENT, couliuued. 
 
 form and scope of order, collateral attack, ^ 32, h, p. G6. 
 irregularity of, § 23, i, p. 68. 
 when void, § 23, j, p. 69. 
 when revoked, § 22, j, p. 69. 
 when improvideutly made, ^ 22, j, p. 69. 
 when court without jurisdiction, § 23, j, p. 69. 
 effect of collusion, § 22. j, p. 69. 
 application to vacate, when to be made, § 22, j, p. 69. 
 application to vacate order, § 22, j, p. 69. 
 when order appealed from, § 22, k, p. 70. 
 effect of appeal from order, § 22, 1, p. 72. 
 bond required, § 23, p. 78. 
 
 revoked for want of bond, recovery of damages, see Appx. p. 695. 
 See also Appointment. 
 
 RECEIVER'S BOND, 
 
 required before possession taken, § 48, p. 133. 
 in supplementary proceedings, § 153, p. 255. 
 requirements concerning, g 377, p. 604. 
 effect of giving, § 378, p. 604. 
 may be renewed or increased, g 379, p. 605. 
 form of, i^ 379, p. 605. 
 liability of sureties on. see Appx. p. 696. 
 See also Bond. 
 
 RECEIVER'S CERTIFICATES, 
 
 generally, § 387, p. 532. 
 power of receiver to issue, j^ 40, p. 117. 
 when valid, see Appx. p. 695. 
 when a preferred claim against fund, ^ 343, p. 578. 
 See also Certificates. 
 
 RECEIVER'S COMPENSATION, 
 
 generally, § 350, p. 583. 
 
 must be reasonable, elements of, § 350, a, p. 583. 
 fixed on commission basis, § 350, b, p. 585. 
 when to be salary, § 350, c, p. 587. 
 when court will refuse, § 350, d, p. 588. 
 within discretion of court, see Appx. p. 696. 
 when plaintiff liable for, § 350, e, p. 588. 
 does not depend on result of litigation, i^ 350, f, p. 589. 
 entitled to priority over certificates and labor claims, g 350, g, p. 589. 
 statutory compensation, § 350, i, p. 591. 
 order fixing, not revoked, § 350, j, p. 591. 
 additional allowances, § 358, p. 590. 
 
 lack of, no ground for refusal to discharge, § 330, g, p. 567. 
 See also Fees. 
 
 RECEIVER OF CORPORATIONS, 
 
 jurisdiction of courts of equity to appoint, § 320, p. 343.
 
 INDEX. 771 
 
 [References are to sections and pages in body.] 
 RECEIVER OF CORPORATIONS, continued, 
 statutory power of court in, ^ 221, p. 345. 
 
 limitations of, § 221, p. 345. 
 discretionary power of court to impose terms, § 222, p. 34S. 
 power of court to appoint, exercise of, di.scretionary, § 232, p. 347. 
 
 limitations of, § 223, p. 349. 
 appointment of, application, by whom made, generally, § 224, p. 350. 
 
 by creditor at large, § 224, a, p. 351. 
 
 by surety, i^ 224, b, p. 353. 
 
 by minority stockholder, g 224, c, p. 353. 
 
 by defendant, § 224, d, p. 353. 
 
 by directors, § 224, e, p. 354. 
 
 by judgment creditors, § 224, f, p. 354. 
 
 by corporation, ^ 224, g, p. 354. 
 
 not by party disinterested, § 224, g, p. 355. 
 
 to follow statute strictly, § 224, g, p. 355. 
 when not appointed, generally, § 226, p. 363. 
 
 statutory cause for dissolution wanting, g 226, a, p. 363. 
 
 for mere disagreement, § 226, b, p. 364. 
 
 where reasonable effort for redress has not been made, § 226, c, 
 
 p. 365. 
 where adequate remedy at law, § 226, d, p. 365. 
 where operating company responsible, § 226, e, p. 366. 
 where defendant is foreign corporation without property, § 226, f, 
 
 p. 366. 
 where right to possession is in dispute, § 226, g, p. 366. 
 where right to foreclose not clear, § 226, h, p. 366. 
 where no danger or loss, § 226, i, p. 366. 
 where nothing to distribute, § 226, j, p. 366. 
 where claims relatively small, § 226, k, p. 366. 
 where applicant is secured, § 226, 1, p. 366. 
 
 where property in possession of mortgagee's agent, § 226, m, p. 366. 
 grounds for appointment, statutory, ^ 225, a, p. 355. 
 breach of covenant, § 225, b, p. 358. 
 mismanagement by officers and directors, § 225, c, p. 359. 
 default in payment of mortgage indebtedness, § 225, d, p. 358. 
 refusal of officers to act, § 225, d, p. 360. 
 insolvency, t^ 225, d, p. 360. 
 where it has been dissolved, § 225, e, p. 361. 
 where charter repealed, § 225, f, p. 361. 
 bankruptcy, § 225, g, p. 361. 
 failure to elect officers, § 225, h, p. 361. 
 failure to collect subscriptions, t; 225, i, p. 362. 
 violation of rights of minority of stockholders, § 225, j, p. 362. 
 violation of charter by majority stockholders, i^ 225, j, p. 362. 
 on application of judgment creditors, § 225, k, p. 363. 
 fraud is, § 227, p. 366. 
 
 fraud of officers and directors, § 227, p. 366.
 
 772 INDEX. 
 
 [References arc to sections and pages in body.] 
 RECEIVER OF COllFORATIONS, continued. 
 
 grounds for appointment, fraud is, wlierc plaintifif has legal remedy, § 327, 
 p. 367. 
 plaintiff not to participate in fraud, §^ 227, p. 367. 
 apprehension of fraud not sufficient, t^ 227, p. 367. 
 insolvency as indicated by statute, § 228, p. 367. 
 power of court in, § 228, p. 369. 
 necessary allegations in, § 228, p. 369. 
 a jurisdictional fact, § 228, p. 369. 
 discretion of court in, § 228, p. 389. 
 application by corporation, ^ 228, p. 370. 
 ex parte application not sufficient, § 228, p. 371. 
 in foreclosure proceedings, generally, § 229, p. 371. 
 
 effect of appointment, existing rights remain in statu quo, § 230, a, p. 371. 
 liens remain unimpaired, § 230, a. p. 371. 
 as to possession, § 230, b, p. 372. 
 as to co-ordinate courts, § 230, c, p. 372. 
 as to litigation, § 230, d, p. 373. 
 as to unexpired leases, § 230, e, p. 373. 
 as to contract of predecessor. § 230, f , p. 373. 
 as to revival of corporate powers, § 230, g, p. 374. 
 as to debtor's control of property, § 230, h, p. 37'1. 
 as to abatement of actions, § 230, i, p. 374. 
 relationship of, to the court, § 231, a, p. 375. 
 to the shareholders, § 231, b, p. 375. 
 to the corporate creditors, § 231. b, p. 375. 
 to the corporation, § 231, c, p. 375. 
 in supplementary proceedings, § 231, c, p. 376. 
 as manager, when, § 232, p. 377. 
 
 powers and duties of, § 232, p. 377. 
 judicial caution required of court, ^ 232, p. 377. 
 powers and duties of, generally, § 233, p. 380. 
 to borrow money, § 233, a, p. 380. 
 to purchase rolling stock, § 233, b, p. 381. 
 to make repairs, § 233, c, p. 381. 
 to compromise, § 233, d, p. 381. 
 to sue, § 233, e, p. 382. 
 to redeem, § 233, f, p. 387. 
 to pay taxes, § 233, g, p. 387. 
 to make leases, § 233, h, p. 388. 
 to mortgage, § 233, i, p. 388. 
 to invest receivership money, §2C3, j, p. 383. 
 to contract, § 233, k, p. 389. 
 to sell, § 233, 1. p. 389. 
 to make assessments, § 233, m, p. 390. 
 to take appeal, § 233, n, p. 391. 
 liability of, generally, § 234, p. -391. 
 on his contracts, § 234, a, p. 391.
 
 INDEX. 773 
 
 [References are to sections and pag-os in body.] 
 RECEIVER OF CORPORATIONS, continued, 
 liability of, for rent, § 234, b, p. 393. 
 for interest, § 234, c, p. 394. 
 for debts incurred, § 234, d, p. 394. 
 for torts when personsd. § 234, e, p. 395. 
 for torts when official, § 234, f, p. 395. 
 for damages, § 234, f, p. 395. 
 its extent, § 234, g, p. 396. 
 for loss in management, § 234, h, p. 396. 
 on orders of court, § 234, i, p. 397. 
 Buits by, generally, S 235, a, p. 397. 
 against officers, § 235, a, p. 397. 
 
 to recover property fraudulently disposed of, § 235, a, p. 898. 
 to recover illegal dividends, § 235, a, p. 398. 
 to recover assets, § 335, a, p. 398. 
 when officially, § 235, b, p. 399. 
 to recover stock subscriptions, generally, § 236, p. 402. 
 
 extent of recovery, § 236, a, p. 402. 
 
 excludes right of individual creditors, § 236, b, p. 403. 
 
 collusion unavailable against, § 236, c, p. 404. 
 
 extent of power, § 236, d, p. 404. 
 
 condition precedent to, § 236, e, p. 404. 
 
 how liability enforced, § 236, f, p. 405. 
 to avoid fraudulent transfer, § 237, p. 406. 
 
 nature of decree, § 237, p. 406. 
 to recover illegal dividends, § 238, p. 408. 
 leave of court necessary when, § 239, p. 410. 
 when corporation foreign, § 240, p. 411. 
 
 in case of insolvency, ^ 240, a, p. 411. 
 
 when attachment will not lie, § 240, b, p. 412. 
 
 when title to property is in receiver, § 240, c, p. 412. 
 
 when receiver in possession, § 240, d, p. 413. 
 
 to recover insurance, § 240, e, p. 414. 
 
 what must be averred, ^ 240, f, p. 414. 
 concerning land, must be in jurisdiction where land is, § 241, p. 416. 
 collateral attack upon, § 241, p. 415. 
 cannot be enjoined when, § 241, p. 416. 
 
 possession of, differs from ordinary receiver in what, § 242, p. 416. 
 suit against must be by leave of court, g 242, p. 417. 
 may be restrained when, § 242, p. 417. 
 
 RECEIVER OF DECEDENT'S ESTATE, 
 when appointed, generally, § 300, a, p. 526. 
 
 in contests over wills, § 300, b, p. 527. 
 
 in lieu of executors and administrators, § 801, a, p. 528. 
 
 misconduct and refusal to act, ^ 301, c, p. 534. 
 
 where no one competent to act, ^ 301, d, p. 537. 
 when not appointed, § 301, b, p. 532.
 
 774 INDEX. 
 
 [References are to sectious and pages in body.] 
 RECEIVER'S DEED, 
 
 rule governing, t^ 418, p. 632. 
 
 RECEIVER'S DISCHARGE, 
 
 rests in sound discretion of court, § 330, b, p. 558. 
 effect of pending action, § 413, p. 639. 
 what not ground for, Appx. p. 096. 
 
 on dismissal of action in which appointed, Appx. p. 690. 
 cancelation of bond upon, Appx. p. 696. 
 See also Dischaugb. 
 
 RECEIVER'S DUTIES, 
 generally, § 3, p. 3. 
 
 when appointed in supplementary proceedings, § 153, p. 255. 
 in case of partnership, § 209, p. 336. 
 
 when appointed over trust property, ^ 305, p. 539; § 412, p. 627, 
 See also Duties. 
 
 RECEIVER'S FUNCTIONS, 
 
 is the hand of the court, § 6, a, p. 20. 
 derived from statute, when, § 6, a, p. 20. 
 derived from scope of order, § 6, a, p. 20. 
 derived primarily from court, § 6, a, p. 20. 
 is trustee for all parties, § 6, b, p. 21. 
 not trustee to strangers, ^ 6, b, p. 21. 
 not to interfere with litigation of parties, § 6, b, p. 21. 
 to have care and custody of receivership properly, § 6, c, p. 2;J 
 See also Functions and Poweus. 
 
 RECEIVER'S LIABILITY, 
 generally, § 109, p. 199. 
 to creditor, § 109, a, p. 201. 
 for interest on bank deposit, § 109, a, p. 201. 
 for deposit where bank fails, § 109, a, p. 201. 
 for mingling receivership funds, § 109, a, p. 201. 
 for deposit made without order of court, § 109, a, p. 201. 
 for trespass and torts, § 109, a, p. 202. 
 for goods consigned, § 109, a, p. 202. 
 for loss by negligence, § 109, a, p. 202. 
 for violation of order of court, § 109, a, p. 202. 
 to proper payment of funds, § 109, a, p. 203. 
 for rent, generally, § 109, a, p. 203. 
 
 accrued prior to receivership, § 36, b, p. 105. 
 
 where possession of premises continued, Appx. p. 097. 
 
 duration of determined by statute, in Illinois, Appx. p. 693. 
 for profit on receivership funds, § 109, a, p. 203. 
 for money paid under void appointment, § 109, a, p. 202. 
 for violating act of Congress, § 109, a, p. 203. 
 for misappropriating funds, t^ 109, a, p. 203. 
 for labor and materials, § 109, a, p. 203.
 
 INDEX. 775 
 
 [References are to sectioQs and pa^cs in body.] 
 RECEIVER'S LIABILITY, contiuued. 
 
 for wages due at time of appointment determined by scope of order, Appx. 
 
 p. 097. 
 for illegal freights collected, § 109, a, p. 203. 
 for cost of suit, § 109, a, p. 203. 
 none for statutory injuries, wlien, 5^ 109, b, p. 204. 
 none for loss witliout his fault, § 109, b, p. 204. 
 none for injury before appointment, § 109, b, p. 204. 
 none for injuries after appointment, when, § 109, b, p. 204. 
 none for covenants and contracts of principal, § 109, b, p. 204. 
 none for contract of principal not adopted by him, § 109, b, p. 204. 
 none after discharge, § 109, b, p. 204. 
 none for attorneys' fees, when, § 109, b, p. 205. 
 none personal on official contracts, § 109, b, p. 205. 
 none personal for acts ordered by court, § 109, b, p. 205. 
 none for speculative profits, § 109, b, p. 205. 
 none for money expended in good faith, § 109, b, p. 205. 
 none for contracts of predecessor, § 109, b, p. 205. 
 to follow decree absolutely and without discretion, g 110, p. 205. 
 for specific funds, § 110, p. 205. 
 for deviating from decree, § 110, p. 205. 
 joint and several, § 111, p. 206. 
 for use of trust funds, § 111, p. 200. 
 where one of two appropriates funds, § 111, p. 206. 
 when criminal, § 111, p. 206. 
 for contempt, when, § 111, p. 206. 
 when a contempt cannot be heard, § 111, p. 206. 
 to attachment, when, § 111, p. 206. 
 for mingling with personal funds, § 111, p. 206. 
 of quasi-public corporation, for personal injury, rule, g 113, p. 208. 
 as a common carrier, generally, § 109, a, p. 202; § 112, p. 208. 
 in matters ex contractu, % 112, p. 208. 
 in matters ex delicto, § 112, p. 208. 
 
 for personal injuries, § 112, p. 208. 
 
 on connecting line, § 113, p. 208. 
 
 on leased line, ^ 113, p. 208. 
 
 when personal, § 113, p. 208. 
 
 for goods sold, ^ 114, p. 211. 
 
 for loss of freight, § 114, p. 211. 
 
 for damages, generally, § 114, p. 211. 
 
 for property lost in transit, § 114, p. 211. 
 
 for property not reduced to possession, § 114, p. 211. 
 
 for property in transit; bondholder, § 114, p. 211. 
 
 for negligent destruction of property, § 114, p. 211. 
 
 payable from current receipts, § 114, p. 211. 
 
 from what fund payable. § 114, p. 211. 
 
 for necessary repairs, § 114, p. 211. 
 
 in construction, § 114, p. 211.
 
 776 INDEX. 
 
 [References are to sections and paaos in body.] 
 FtECEIVER'S LIABILITY, continued, 
 efifect of, as lo plaiutiff, § 115, p. 213. 
 
 as lo corporation, ^ 115, p. 213, 
 for use of receivership funds, generally, § IIG, p. 214. 
 
 ■when ordered to be invested, § 116, p. 214. 
 
 ■when improperly intermingled, § 116, p. 214. 
 when illegally invested, § 116, p. 214. 
 when chargeable with interest, § 116, p. 214. 
 for profits on receivership funds, § 116, p. 214. 
 for default of another, generally, i5 117, p. 216. 
 
 as attorney, § 117, p. 216. 
 for supplies, labor, etc., § 118, p. 217. 
 
 when controlled by court, § 118, p. 217. 
 
 in what court enforced, t^ 118, p. 217. 
 
 not personal, § 118, p. 317. 
 for money deposited in bank, generally, g 119, p. 218. 
 for costs and expenses, generally, § 120, p. 219. 
 for rents, generally, § 121, p. 220. 
 
 depends on privity of estate, § 121, p. 220. 
 
 on property not reduced to possession, § 121, p. 220. 
 
 collected before bond given, § 121, p. 220. 
 
 how enforced, § 121, p. 220. 
 
 measure of, § 122, p. 221. 
 
 amount, how determined, § 121, p. 220; § 12:^, p. 223. 
 
 of leased railways, § 123. p. 222. 
 
 on leases made without order of court, § 124, p. 224. 
 
 on unexpired leases, § 122, p. 221. 
 
 where lease has been adopted, t^ 121, p. 220; § 123, p. 223. 
 adoption of lease, how made, § 123, p. 222. 
 
 by implication, § 123, p. 222. 
 
 by sale of property, § 123, p. 222. 
 
 within what time to be made, § 123, p. 222. 
 on contracts, generally, § 125, p. 224. 
 for use of railroad track, § 125, p. 224. 
 for removal of switch, § 125, p. 224. 
 on contracts of predecessor, § 126, p. 225. 
 for damages on predecessor's contract, § 126, p. 225. 
 on note not collected, Appx. p. 697. 
 order of payment, ^ 127, p. 226. 
 
 preferential debts, § 127, p. 226. 
 general creditors, § 127, p. 226. 
 under creditor's bills, § 127, a, p. 228. 
 in foreclosure proceedings, § 127, p. 226; ^5 127, b, p. 223. 
 
 for cars, under invalid contract, cj, 127, b, p. 228. 
 when personal, generally, § 128. p. 228. 
 
 when contract personal, § 128, p. 228. 
 
 when operating under lease or contract, § 128, p. 228. 
 
 for acts beyond scope of authority, § 128, p. 228. 
 
 for money collected under void appointment, § 129, p. 230.
 
 INDEX. 777 
 
 [References are to sectious and paj^es in boJy.l 
 RECEIVER'S LIABILITY, continued. 
 
 for attorneys' fees, generally, g 129, p. 230. 
 
 amount, bow determined, § 129, p. 2:30. 
 
 to whom allowed, g 129, p. 230. 
 for contracts where no funds to pay, § 128, p. 223. 
 judf^ment for, form of, ^ 128, p. 228. 
 to general creditor of mortgagee, i^ 130, p. 231. 
 for trespass, § 130, p. 231. 
 for taking properly not included in the order of court; trespass, § 130, 
 
 p. 231. 
 for disobeying order of court, generally, § 130, p. 231. 
 
 in contempt of court, § 13G, p. 234. 
 to action of replevin for property wrongfully taken, § 130, p. 231. 
 to account, generally, § 131, p. 232. 
 
 how determined, j^ 131, p. 232. 
 when ordered to pay, effect of, § 132, p. 233. 
 effect of discharge, § 133, p. 233. 
 under statutory penalty, § 134, p. 233. 
 for unjust freights exacted, § 134, p. 233. 
 not affected by removal, § 330, f, p. 566. 
 for railway, generally, § 285, p. 508. 
 
 RECEIVER AS MANAGER, 
 rule relating to, § 302, p. 619. 
 when manager in partnership matters, § 211, p. 339. 
 
 See also Powers of Receiver and Manaceb. 
 
 RECEIVER OF NATIONAL BANK, 
 
 appointment of, and powers under statute, § 252, a, p. 419. 
 acts of Congress relating thereto, § 252, a, p. 419. 
 independent of act of Congress, § 252, b, p. 421. 
 on application by minority stockholders, § 252, b, p. 421. 
 effect as to corporation, § 252, b, p. 421. 
 control of court of equity over, § 252, c, p. 424. 
 power of comptroller to appoint, § 252, a, p. 421; § 253, p. 425. 
 
 grounds upon which may appoint, § 253, p. 425. 
 power of, ^ 252, b, p. 423. 
 to sue, S 252, c, p. 423. 
 
 irrespective of citizenship, §252, c, p. 423. 
 irrespective of amount involved, i^ 252, c, p. 423. 
 jurisdiction of Federal court, § 252, c, p. 423. 
 governed by statute, ^ 254, p. 426. 
 to sell, § 254, p. 426. 
 to collect, § 254, p. 426. 
 to compound bad debts, § 254, p. 426. 
 to enforce stock liability, § 254, p. 426. 
 
 prerequisites to, g 254, p. 426. 
 to di.saflirm unlawful act, g 254, p. 427. 
 to recover funds misapplied, § 254, p. 428.
 
 778 INDEX. 
 
 [References are to sections and pasres in body.] 
 RECEIVER OF NATIONAL BANK, continued. 
 
 power of, to avoid illegal preferences, ^ 254, p. 428. 
 
 as representative of government, ^ 254, p. 428. 
 title of, generally, ^5 255, p. 429. 
 
 as to third persons or corporations, § 255, p. 430. 
 
 as to bonds deposited with treasurer, p. 255, p. 430. 
 
 as to levies, § 255, p. 432. 
 liability of, generally, § 256, p. 432. 
 
 liability of stockholders, action by comptroller precedent to recovery, 
 § 258, a, p. 437. 
 
 determined by comptroller, § 258, a, p. 437. 
 
 action of comptroller, conclusive, § 258, a, p. 437. 
 
 under statutes, § 258, a, p. 442. 
 
 action to enforce, when at law or in equity, t^ 258, a, p. 437. 
 
 enforced against executors and administrators, ti^ 258, a, p. 440. 
 
 In what court enforced, g 258, a, p. 440. 
 
 suit to recover, limitation of, § 258, b, p. 445. 
 
 defenses to, § 258, b, p. 443. 
 
 right of defendant to set oflf, ^ 258, a, p. 438. 
 
 suit enforced against married women, § 258, a, p. 441. 
 liability of directors, generally, § 260, p. 448. 
 
 character of, g 2G0. p. 448. 
 
 statute relating to, § 2G0, p. 448. 
 
 nature of action against, § 260, p 448. 
 suits by, generally, § 257, p. 433. 
 
 in .what court to be brought, § 257, p. 433. 
 
 for what causes of action, § 257, p. 435. 
 
 to collect assets, § 257, p. 433. 
 
 to recover wasted or lost assets, § 257, p. 437. 
 
 to recover stock liability, § 257, p. 433. 
 
 against directors, § 257, p. 437. 
 illegal preferences, statute relating to, § 259, p. 445. 
 See also National Banks. 
 
 RECEIVER FOR PARTNERSHIP, 
 generally. § 190, p. 305. 
 
 when to be appointed, for breach of partnership duty, § 191, a, p. 306. 
 for violation of partnership agreement, § 191, a, p. 306. 
 for fraud of partner, § 191, b, p. 306. 
 
 for serious disagreement between partners, § 191, c, p. 306. 
 for disagreement regarding disposition of property, § 191, c, p. 306. 
 for mismanagement by partner in charge, § 191, d, p. 306. 
 for violation of dissolution agreement, § 191, e, p. 307. 
 for appropriating firm property to individual use, § 191, f, p. 307. 
 for insolvency of limited partnership, § 191, g, p. 307. 
 vfhere plaintiff entitled to dissolution, § 191, h, p. 307. 
 where upon dissolution, partners disagree as to adjustment, § 191, 1, 
 
 p. 307. 
 for insolvency of partner in charge after dissolution, g 191, j, p. 307.
 
 INDEX. 779 
 
 [References are to sections and pages in bodj'.] 
 RECEIVER FOR PARTNERSHIP, continued. 
 
 when to be appointed, for exclusion of partner from profits, § 191, k, p. 307. 
 
 for exclusion of partner from management, § 191, k, p. 307. 
 
 where partners all dead, S 191, 1, p. 308. 
 
 for mismanagement by surviving partner, § 191, m, p. 308. 
 when not to be appointed, where a mere disagreement of partners, § 192, a, 
 p. 308. 
 
 where partnership not clearly shown, § 192, b, p. 308. 
 
 where lack of profits only ground, § 192, c, p. 308. 
 
 where defendant responsible and danger of loss not shown, § 192, d, 
 p. 308. 
 
 where plaintiff not in possession, § 192, e, p. 30S. 
 
 where allegations denied by answer, § 192, f, p. 308. 
 
 where right to dissolution does not clearly appear, § 192, g, p. 309. 
 
 where dissolution probable but receiver not necessary, § 192, h, p. 309. 
 prerequisite to appointment, generally, § 193, p. 309. 
 
 must be partnership in fact and not in name, ^ 193, a, p. 309. 
 
 partnership or joint interest to be shown, § 193, a, p. 309. 
 
 agreement for partnership insufficient, § 193, a, p. 309. 
 
 violation of agreement must be substantial, § 193, b, p. 310. 
 
 sufficient cause for dissolution must be shown, § 193, b, p. 310. 
 
 quarrel between partners not sufficient, § 193, b, p. 310. 
 who appointed, generally, § 194, p. 311. 
 
 partner when eligible, § 194, p. 311. 
 in case of retiring partner, § 195, p. 313. 
 
 danger of loss a necessary element, § 195, p. 315. 
 in case of assignment by insolvent partner, i^ 190, p. 315. 
 in case of dissolution by death, § 197, p. 316. 
 in case of limited partnership, § 199, p. 319. 
 in case of expiration of partnership agreement, § 200, p. 321. 
 in case of exclusion of partner, generally, § 201, p. 321. 
 in case of fraud by a partner, § 202, p. 323. 
 in case of mismanagement by partner, § 203, p. 324. 
 in ease of insolvency, ^5 204, p. 326. 
 on application of creditor, fc^ 198, p. 318. 
 before dissolution, § 206, p. 332. 
 miscellaneous ground, t^ 207, p. 335. 
 special grounds for refusal of, ^5 208, p. 835. 
 powers and duties of, § 209, p. 336. 
 
 regulated by order of appointment, § 209, a, p. 336. 
 
 title not in receiver, § 209, b, p. 33C. 
 
 cannot loan receivership funds, when, t^ 209, c, p. 337. 
 
 disinterested as to both parties, § 209, d, p. 337. 
 
 care and diligence required, § 209, e, p. 337. 
 
 suits by, in foreign states, ^ 209, f, p. 337. 
 
 suit by, in own name, § 209, f, p. 337. 
 
 power limited to power of firm, ^ 209, g, p. 337. 
 effect of appointment, as to liens, § 210, p. 338.
 
 780 INDEX. 
 
 [References are to sections and paj^es in bod}-.] 
 RECEIVER FOR PARTNERSHIP, oonlimied. 
 
 elTect of appointment, as to possession, ^ 210, p. 333. 
 
 as to rijfhts of partners, § 210, p. 338. 
 when manager, § 211, p. 339. 
 form of bond for. No. 22, p. 058. 
 form of assignment to, No. 25, p. 6G0. 
 
 RECEIVER'S PETITION, 
 
 for order of authority, ^ 400, p. 618. 
 See Petition. 
 
 RECEIVER'S POSSESSION, 
 
 how interfered with, by levy of executions and attachments, § 43, p. 121; 
 § 44, note, p. 122; § 45, p. 126. 
 
 by garnishment, § 43, p. 121. 
 
 by distress for rent, § 43, p. 121. 
 
 by tax officers, § 43, p. 121. 
 
 by force, S 43, p. 121. 
 
 by trespasses, § 43, p. 121. 
 
 by ejectment, § 43, p. 121; § 45, p. 126. 
 
 by strikes and conspiracies, i^ 43, p. 121; § 46, p. ICO. 
 
 by rival receivers, § 43, p. 121. 
 
 by unlawful withholding, § 43, p. 121. 
 
 by replevin, § 45, p. 126. 
 
 by untrue circulars and publications, § 43, p. 121. 
 
 by suits against, without leave, § 43, p. 121. 
 
 by bankruptcy proceedings, § 43, p. 121. 
 
 by condemnation proceedings, g 43, p. 121. 
 
 by infringement of patents, § 43, p. 121. 
 
 by order of court of co-ordinate jurisdiction, § 43, p. 121. 
 
 by state and Federal courts, § 44, p. 122. 
 
 by co-ordinate court, § 44, p. 122. 
 
 by courts of concurrent jurisdiction, § 44, p. 122. 
 
 by suits in foreign courts, § 45, p. 126. 
 
 under irregular order, § 45, p. 126. 
 
 a contempt, when, § 45, p. 126. 
 
 enjoined, § 45, p. 126. 
 
 property in foreign jurisdiction, when, g 47, p. 132. 
 
 leave of court required, § 47, p. 132. j 
 
 by landlord, § 47, p. 133. 
 
 as to collection of money, i^ 47, p. 132. 
 duty of receiver as to, generally, t^ 48, p. 133. 
 
 diligence required, § 48, p. 133. 
 
 when exercise excused, § 48, p. 133. 
 
 aid of court may be demanded, i^ 48, p. 133. 
 
 protected in foreign jurisdictions, § 48, p. 133. 
 effect of, as to rents, § 51, p. 136. 
 
 as to tenants, § 51, p. 136. 
 
 against foreign creditors, § 48, p. 133.
 
 INDEX. 781 
 
 [ReferenccB are to sections and pajrcs in body.] 
 RECEIVER'S POSSESSIOIST, continued. 
 
 efiect of, as to public improvements, ^ 49, p. 135. 
 as to new business, § 50, p. 135. 
 as to set-off, § 55, p. 13S. 
 as to exemptions, ^ 56, p. 139. 
 as to executors and administrators, ^ 57, p. 139. 
 as to title, § 59, p. 142. 
 extent of, as to secured creditor, § 53, p. 136. 
 
 as to taxes, § 54, p. 137. 
 to whom restored on dismissal of bill, § 52, p. 136. 
 of corporation, peculiarities of, § 242, p. 416. 
 general nature of, as to third parties, § 404, p. 630, 
 
 RECEIVER'S POWERS, 
 
 generally, § 3, p. 3; § 24, p. 81. 
 
 under English Judicature Act 1873, § 3, p. 3. 
 
 under " Companies' Act," § 3, p. 3. 
 
 statutory, mainly, § 6, a, p. 20. 
 
 source of, § 24, p. 81. 
 
 statutory enactments, § 24, p. 81 ; § 25, c, p. 84. 
 
 English practice, § 25, a, p. 82. 
 
 American practice, § 25, a, p. 82. 
 
 practice of court of equity, § 24, p. 81. 
 
 practice of particular court, § 25, b, p. 83. 
 
 embraced in order, § 25, a, p. 82. 
 
 limitation of, § 25, d, p. 84. 
 
 ■when terminated, 25, e, p. 84. 
 
 under irregular appointment, g 25, f, p. 85. 
 retrospective action of court, effect of, § 25, f , p. 85. 
 when authorized, § 26, b, p. 85. 
 to borrow money, § 26, a, p. 85; § 26, b, p. 85. 
 to loan money, authority of court required, § 27, a, p. 87. 
 
 to whom to be loaned, § 27, b, p. 87. 
 
 when liable for interest, § 27, d, p. 87. 
 to compromise debts, may be general, § 28, b, p. 88. 
 
 authority of court required, § 28, a, p. 88. 
 
 doubtful claims, § 407, p. 623. 
 
 no power to commute, § 28, d, p. 88. 
 
 statutory liability, § 28, c, p. 88. 
 to employ counsel, when order not required, § 29, a, p. 89. 
 
 must be general or special, § 29, a, p. 89. 
 
 compensation of, § 29, a, p. 89. 
 
 who employed, ^ 29, b, p. 90. 
 
 complainant's solicitor not eligible, § 29, b, p. 90. 
 to sue, generally, |^ 30, p. 91. 
 
 under direction of court, § 30, a, p. 93. 
 
 limitation of, ^ 30, b, p. 92; § 394, p. 611. 
 
 leave of court required, ^ 30, c, p. 92. 
 
 authority must be alleged, § 30, d, p. 92.
 
 782 INDEX. 
 
 [Rcforencea are to suctions and pages in body.] 
 RECEIVER'S POWERS, continued. 
 
 to sue. extent of power, ^ 30, e, p. 92. 
 
 for property converted, § 42, p. 119. 
 
 to set aside irregular attachment, § 42, p. 119. 
 
 to sue in foreign jurisdiction, t^ G3, p. 145. 
 
 on contract of insurance, Appx. p. 698. 
 to make repairs, under direction of court, § 31, a, p. 93. 
 
 authority of court, § 31, b, p. 93. 
 
 applied to railways, § 31, b, p. 93. 
 to purchase supplies, labor, etc., sanction of court when, § 32, p. 94. 
 
 extent of, § 32, p. 94. 
 
 binds trust property, § 32, p. 94. 
 
 application to railways, § 32, p. 94. 
 to continue business, must be clearly shown, § 33, p. 96. 
 
 limitation of, § 33, p. 96. 
 
 as applied to partnership, ^ 33, p. 96. 
 
 applied to railway receiverships, § 33, p. 96. 
 
 as to new business, § 33, p. 96. 
 to sell, extent of, § 34, a, p. 98. 
 
 order of court required, § 34, a, p. 98. 
 
 when ordered, § 34, a, p. 98. 
 
 requisites of order, § 34, a, p. 98. 
 
 what required of purchaser, § 34, b, p. 99. 
 
 protection of receiver in, ^ 34, b, p. 99. 
 
 application of rule of caveat emptor, § 34, b, p. 99. 
 
 confirmation of court required, § 34, b, p. 99. 
 
 evidence of sale, deed, § 34, b, p. 99. 
 
 notice to purchaser, § 34, c, p. 101. 
 
 attack of sale, how made, § 34, c, p. 101. 
 
 only on day named, Appx. p. 698. 
 to perform contracts, not granted generally, § 35, a, p. 103. 
 
 when court will require, § 35, a, p. 102. 
 
 receiver may avoid when, § 35, a. p. 102. 
 to lease, authority of court required, § 36, a, p. 104. 
 
 limitation as to time, § 36, a, p. 104. 
 
 must be in reasonable time, § 36, b, p. 105. 
 In foreign jurisdiction, as to property, limitation of, generally, § 37, p. 108. 
 
 English rule, § 37, a, p. 108. 
 
 American rule, § 37, b, p. 109. 
 to impeach fraudulent transactions, limitation of, § 38, p. 111. 
 
 as representative of creditors, § 38, p. 111. 
 
 as representing corporation, § 38, p. 111. 
 to collect stock subscriptions, prerequisites of, § 39, p. 115. 
 
 fraudulent cancelations, § 39, p. 115. 
 
 application of rule to banks, § 39, p. 115. 
 to enforce assessments, § 408, p. 623. 
 to enforce liability of stockholder, Appx. p. 697. 
 to issue certificates, incident to borrow money, § 40, p. 117.
 
 INDEX. 783 
 
 [References arc to sections and pages in body.] 
 RECEIVER'S POWERS, continued. 
 
 to issue certificates, authority of court required, when, g 40, p. 117. 
 to appeal, limitation of, § 41, p. 117. 
 
 where personally interested, § 41, p. 117. 
 to use seal of corporation, § 42, p. 119. 
 to take notes instead of money, § 42, p. 119. 
 to surrender collaterals, § 43, p. 119. 
 to satisfy mortgages, § 42, p. 119. 
 to subject property to lien for storage, ^ 42, p. 119. 
 to receive money before due, § 42, p. 119. 
 to execute summary order of ejectment, § 42, p. 119. 
 to compel disclosure of knowledge, § 42, p. 119. 
 not to be delegated, § 42, p. 119. 
 tender to, not good, § 42, p. 119. 
 
 may not be mortgagee of receivership property, ^ 42, p. 119. 
 as to rents accrued, § 42; p. 119. 
 as to discrimination in freight, § 42, p. 119. 
 limited by charter of corporation, § 42, p. 119. 
 derived from act of court and not parties, § 58, note, p. 141. 
 as to acts 'ultra vires, § 70, b, p. 156. 
 in supplementary proceedings, § 70, c, p. 156. 
 under creditor's bills, § 70, c, p. 156. 
 to interfere in suit pending, § 70, c, p. 156. 
 in supplementary proceedings, § 154, p. 256. 
 
 in foreign jurisdiction, § 158, p. 263. 
 in case of partnership, § 209, p. 336. 
 
 to pay preferred claims of railways, grounds of allowance, § 376, p. 476. 
 in payment of preferred claims for railways, § 280, b, p. 494. 
 for railway companies, generally, § 274, p. 471; § 283, p. 501. 
 
 to restrain illegal acts, § 283, e, p. 503. 
 
 to disaffirm illegal acts of officers, § 283, e, p. 503. 
 
 limitations of, § 284, p. 507. 
 when acting as manager, § 403, p. 619. 
 to petition for statement of authority, § 400, p. 618. 
 
 RECEIVERS OF RAILWAYS, 
 
 attitude of courts toward, § 270, p. 452. 
 appointment of, generally, § 272, p. 456. 
 
 notice of application for, i^ 271, p. 454. 
 
 where directors unlawfully lease the road and property, p 272, p. 456. 
 
 where directors delegate management to another corporation, § 272, a. 
 p. 456. 
 
 where default in mortgage indebtedness, § 272, b, p. 457. 
 
 where corporation is insolvent, § 272, b, p. 457. 
 
 where default in payment of taxes, § 272, b, p. 461. 
 
 where security inadequate, § 272, b, p. 401. 
 
 where default in interest, § 272, b, p. 4G1. 
 
 where revenues are misapplied, i^ 272, c, p. 403. 
 
 where revenues and income are being diverted, g 273, c, p. 463.
 
 784 INDEX. 
 
 [References are to sections and pages in body.] 
 RECEIVERS OF RAILWAYS, continued. 
 
 appointment of, ■where income of profits are pledged and default in in- 
 terest, § 273, d, p. 464. 
 where mismanaeement by officers and directors, ^ 273, e, p. 465. 
 •where corporate funds are being embezzled, §^ 272, e, p. 465. 
 where property is being wasted, ^ 372, e, p. 465. 
 where none competent to have custody, ^ 273, f, p. 465. 
 where a failure to elect oflicers, ^ 373, f, p. 465. 
 where statutory cause for appointment, § 272, g, p. 465. 
 where statutory cause for revoking the charter, ^ 373, g, p. 465. 
 when not appointed, generally, § 273, p. 465. 
 
 where no notice of application given, § 273, a, p. 466. 
 
 where no fraud or breach of trust is alleged, § 273, b, p. 467. 
 
 where breach of condition in mortgage not clearly shown, § 373, c, 
 
 p. 467. 
 where right to foreclose doubtful, § 373, c, p. 468. 
 where application by minority stockholders, § 273, d, p. 468. 
 where default in interest alone insufficient, § 373, e, p. 468. 
 where danger of loss is not shown, § 273, e, p. 468. 
 where plaintiff has adequate remedy at law, § 273, f, p. 469. 
 where by statute officers are made trustees, § 373, g, p. 469. 
 where mere disagreement as to management, ^ 373, i, p. 471. 
 where the rights of third persons are affected, § 373, h, p. 471. 
 powers of, generally, § 274, p. 471. 
 
 derived from order of appointment, § 274, p. 471. 
 to pay unsecured claims, § 375, p. 472. 
 
 on what based, § 375, a, p. 473. 
 
 limitations of, § 375, b, p. 473. 
 to pay preferred claims, grounds of allowance, § 276, p. 476. 
 
 based on necessity to preserve property, § 376, a, p. 476. 
 
 based on application of mortgagor for foreclosure, § 376, b, p. 476. 
 
 based on diversion of income, ^ 376, c, p. 477. 
 
 based on statute, § 276, d, p. 479. 
 
 based on application of income to interest or improve- 
 ments, § 276, e, p. 481. 
 
 based on practice of courts of equity, § 278, p. 485. 
 
 based on equitable powers of court, § 278, b, p. 485. 
 
 confined to operating expenses, § 276, e, p. 481. 
 
 rule in Federal courts, generally, § 279, p. 486. 
 
 application to rolling stock, § 380, p. 491. 
 
 applied to car trusts, § 280, p. 491. 
 
 car trusts, return of property, § 380, d, p. 494. 
 
 discretion of receiver in, § 280, b, p. 494. 
 payment of claims not preferred, advances to complete road, § 281, a, 
 p. 498. 
 
 damages by fire, § 281, b, p. 498. 
 
 attorneys' fees, when, § 281, c, p. 498. 
 
 goods sold after mortgage given, § 381, d, e, p. 498.
 
 INDEX. 785 
 
 [References are, to sections and pag'cs iu body.] 
 RECEIVERS OF RAILWAYS, continued, 
 powers of, their extent, § 282, p. 500. 
 
 to preserve property, § 283, a, p. 501. 
 
 to operate road, § 283, a, p. 501. 
 
 to collect debts, 283, b, p. 502. 
 
 to reduce property to possession, § 283, c, p. 503. 
 
 to disaffirm unlawful acts of officers, § 283, d, p. 503. 
 
 to restrain illegal acts, § 283, e, p. 503. 
 
 to defend suits and proceedings, § 283, f, p. 504. 
 
 to make traffic arrangements, § 283, g, p. 504. 
 
 as to unfinished contracts, § 283, h, p. 505. 
 
 as to adoption of unexpired leases, § 283, i, p. 506. 
 
 limitations of, § 284, p. 507. 
 power implied, from general order, § 277, a, p. 482. 
 
 to pay for labor and supplies, § 277, a, p. 482. 
 
 ordinary operating expenses, § 277, a, p. 483. 
 
 limited to public corporations, § 277, b, p. 484. 
 liability of, generally, § 285, p. 508. 
 
 as common carriers, § 285, a, p. 509. 
 exception to rule, § 285, a, p. 510. 
 
 supersedes that of corporation, t^ 285, b, p. 515. 
 
 when personal, § 285, c, p. 516. 
 
 when official, § 285, d, p. 516. 
 
 on executory contract of railway, § 285, e, p. 516. 
 
 effect of discharge, on, 5^ 286, p. 517. 
 certificates of, issued by order of court, § 287, a, p. 523. 
 
 non-negotiable, § 287, b, p. 523. 
 
 holder takes with notice, § 287, c, p. 522. 
 
 when not preferential, § 287, d, p. 523. 
 
 must be for purpose authorized, § 287, e, p. 524. 
 
 issued with caution, § 287, f, p. 524. 
 
 payment protested by court, § 287, g, p. 525. 
 
 validity, when questioned, § 287, h, p. 525. 
 effect of discharge, on his liability, t^ 286, p. 517. 
 RECEIVER'S REMOVAL AND DISCHARGE, 
 generally, § 330, p. 557. 
 by whom to be made, § 330, c, p. 560. 
 not subject to appeal, § 330, e, p. 564. 
 rests in sound discretion of court, ^ 330, f , p. 564. 
 See also Discharge and Removal. 
 
 RECEIVER'S REPORT, 
 generally, § 355, p. 593. 
 
 must be to court appointing him, § 356, a, p. 594. 
 to be referred to a master, ^ 356, b, p. 594. 
 objections to master's findings on, § 356, c, p. 594. 
 no appeal from order approving, § 356, e, p. 595 
 approval of, g 356, f, p. 594. 
 
 See also Account. 
 50
 
 786 INDEX. 
 
 [References arc to sections and pajrcs in body.] 
 RECEIVER'S SALE, 
 
 purchaser's liability, Appx. p. 698. 
 purchaser may withdraw bid, when, Appx. p. 698. 
 See also Sale. 
 
 RECEIVER'S SUITS (Against Receiver). 
 judicial discretion in, ^ 398, p. 617. 
 leave of court, required generally, § 92, p. 182; § 395, p. 612. 
 
 as to levies, § 93, p. 183. 
 
 what determined by, § 93, p. 183. 
 
 when property wrongfully obtained, § 93, p. 183. 
 
 when denied, § 93, p. 183. 
 
 when revoked, § 93, p. 183. 
 
 to establish liens, § 93, p. 183. 
 
 when waived by statute, § 93, p. 183. 
 
 necessary allegations, ^ 93, p. 183. 
 how obtained, § 93, p. 183. 
 
 under act of Congress March 3, 1887, § 94, a, p. 186. 
 
 when receiver is manager, § 94, b, p. 187. 
 
 not required when receiver common carrier, § 94, b, p. 187. 
 
 under garnishment process, § 94, c, p. 188. 
 
 not required in action for damages, § 94, d, p. 188. 
 
 where judgment prior to receivership, § 94, e, p. 188. 
 
 in re execution sales, § 94, e, p. 188. 
 
 where property wrongfully held, § 94, f, p. 189. 
 
 in action of trover, § 94, f, p. 189. 
 
 when waived, § 94, g, p. 189. 
 
 effect of judgment, § 94, g, p. 189, 
 when in separate action, § 95, p. 190. 
 when in original action, § 95, p. 190. 
 in what court brought, § 95, p. 190. 
 
 where facts disputed, § 95, p. 190. 
 in chancery, constitutional limitation, § 95, p. 190. 
 
 extent of power, § 95, p. 190. 
 may not be brought, for trespass of principal, i^ 96, p. 192. 
 
 for negligence of employees in statutory proceedings, § 96, p. 192. 
 
 for tort of predecessor, g 96, p. 192. 
 mandamus not sustainable, when, ^ 96, p. 192. 
 may be sued for negligence of employees, when, § 96, p. 192. 
 restraint of, where personally liable, § 97, p. 193. 
 
 where officially liable, § 97, p. 193. 
 
 where application to be made, § 97, p. 193. 
 
 regarding other than receivership property, § 97, p. 193. 
 may be restrained, when, § 97, p. 193. 
 when may be enjoined, § 101, p. 197. 
 what court may enjoin, § 101, p 197. 
 defenses, extent of, § 98, p. 194. 
 
 in statutory proceedings, § 98, p. 194. 
 
 statute of limitations, § 98, p. 194.
 
 INDEX. 787 
 
 [References are to sections and pa^es in boiiy.] 
 RECEIVER'S SUITS (Against Receiver), conlinued. 
 character of judgment, generally, § 99, p. 195. 
 when conclusive, § 99, p. 195. 
 when a nullity, § 99, p. 195. 
 form of judgnient, § 397, p. 617. 
 
 when receiver a necessary party to, generally, § 100, p. 190. 
 when receiver not a necessary party to, § 100, p. 196, 
 effect of discharge as to, § 103, p. 197. 
 effect of, under void appointment, § 396, p. 615. 
 See also Suits against Receivek. 
 
 RECEIVER'S SUITS (by Receiver). 
 limitation of power, § 394, p. 611. 
 must be authorized by court, generally or specially, § 69, p. 153. 
 
 exception under act of Congress, ^ 69, p. 154. 
 authority may be conferred by decree, § 69, a, p. 155. 
 authority in partnership receiverships, ^ 69, b, p. 155. 
 no authority required where suit in court of appointment, § 69, c, p. 155. 
 
 in case of waste, § 69, d, p. 155. 
 
 if power given by statute, § 69, e, p. 155. 
 leave given in discretion of court, g 69, f, p. 155. 
 leave not given if right to not recover is clear, § 69, f, p. 155. 
 limited to person or corporation over whose property ap- 
 pointed, § 70, p. 156. 
 power, when represents creditors, § 70, a, p. 156. 
 
 extended by statute, § 70, a, p. 156. 
 
 with reference to acts ultra vires, § 70, b, p. 156. 
 in supplementary proceedings, § 70, b, p. 156. 
 on creditor's bills, § 70, c, p. 156. 
 leave to continue pending action, § 71, p. 158. 
 leave must be alleged, § 71, p. 158. 
 
 authority to sue must be shown, § 71, p. 158; Appx. p. 698. 
 allegations necessary, § 71, a, p. 158; § 393, p. 611. 
 form of allegations, § 393, p. 611. 
 
 must show time and mode of appointment, § 71, b, p. 159. 
 giving of bond must be shown, i^ 71, c, p. 159. 
 in what name to sue, § 391, p. 611. 
 when in his own name, § 73, p. 160. 
 
 where order so directs, § 73, a, p. 161. 
 
 where statute authorizes, § 73, b, p. 161. 
 when not in his own name, § 73, c, p. 161. 
 in insolvency proceedings, § 73, p. 163. 
 in foreign jurisdiction, generally, § 73, a, p. 163. 
 
 English rule, § 73, b, p. 163. 
 
 later English rule, § 73, c, p. 164. 
 
 early American rule, § 73, d, p. 165. 
 
 later American rule, t^ 73, e, p. 165. 
 
 present American rule, § 73, e, p. 165. 
 
 where citizens of it is interested, § 73, (8), p. 167.
 
 788 INDEX. 
 
 [References are to sections and pages in body.] 
 RECEIVER'S SUIT (by Reckiver), continued. 
 
 in foreign jurisdiction, based on comity, § 73, (2), p. 1G7. 
 
 as to realty, § 74, p. 170. 
 in state where appointed, § 73, (1), p. 167. 
 in matters of fraud, generally. § 75, p. 171. 
 to recover property in actions for limited divorces, § 75, p. 171. 
 in actions for alimony, § 75, p. 171. 
 in conversions of proj)erly by debtor, § 75, (1), p. 171, 
 in conversion by strangers, § 75, (1), p. 171. 
 on bill for discovery (N. J.), § 75, (2), p. 171. 
 to remove fraudulent liens, § 75, (3), p. 171. 
 as to assets under invalid mortgage, § 75, (4), p. 171. 
 to reach concealed assets or misappropriated property, § 75, (5), p. 171. 
 to recover trust money, § 75, (6), p. 171. 
 to recover illegal interest paid out, § 75, (7), p. 171. 
 to avoid conveyance, g 75, (8), p. 171. 
 to recover corporate securities transferred, J; 75, (9), p. 171. 
 to determine validity of mortgage, ^ 75, (10), p. 171. 
 to cancel judgment, § 75, (11), p. 171. 
 to cancel invalid mortgage, § 75, (12), p. 171. 
 to recover abstracted property, 5^ 75, (13), p. 171. ' 
 to recover illegal dividends, t^ 77, p. 173. 
 against officers and directors, generally, § 76, p. 172. 
 
 for misconduct, § 76, p. 172. 
 
 in case of acts ultra vires, § 76, p. 173. 
 
 in case of excess of indebtedness, § 76, p. 172. 
 
 in case of void transfers, § 76, p. 172. 
 
 of insolvent corporation, t^ 76, p. 172. 
 
 to avoid illegal chattel mortgage, ^5 76, p. 172. 
 
 to compel surrender of assets, g 76, p. 172. 
 
 defense to, § 76, p. 172; § 77, p. 173. 
 against stockholders, when brought, § 77, p. 173. 
 
 how brought, § 77, p. 173. 
 
 on statutory liability, § 78, p. 177. 
 
 to what extent enforced, § 77, p. 173. 
 
 limitation on receiver's power, § 77, p. 173. 
 
 defenses to, § 77, p. 173. 
 
 for unpaid subscriptions, generally, § 77, p, 173. 
 
 all equities settled, § 77, p. 173. 
 to invalidate liens, generally, § 79, p. 178. 
 to determine validity of levy, how begun, § 79, p. 178. 
 as to legal title of property when held adversely, § 79, p. 178. 
 for an accounting in favor of mortgagor, g 79, p. 178. 
 against persons not parties, how begun, § 79, p. 178. 
 when replevin maintainable, § 80, p. 179. 
 when distraint maintainable, g 80, p. 179. 
 against assignee, when maintained, § 80, p. 179. 
 on debtor's bond, when maintainable, § 80, p. 179.
 
 INDEX. T89 
 
 [References are to sections and pag'es ia body.] 
 RECEIVER'S SUIT (by Receiveh). coutinued. 
 defenses to, generally, § 81, p. 130. 
 set-off, § 81, p. 180. 
 
 invalidity of appointment, ^81, p. 180. 
 See also Suit by Receiver. 
 
 RECEIVER'S TITLE. 
 
 how defined, § 58, p. 140. 
 
 in absence of formal assignment, g 59, p. 143. 
 
 effect of receiver's possession as to, ^ 59, p. 142. 
 
 when not absolute, § 59, p. 142. 
 
 with reference to corporate functions, § 59, p. 143. 
 
 effect of possession as to, § 59, p. 142. 
 
 special as to res, § 59, p. 142. 
 
 merely possessory in character, § 59, p. 142. 
 
 distinguished from legal title, § 59, p. 143. 
 
 as affected by character of property, § 59, p. 142. 
 
 as to subsequently acquired properly, § 60, p. 143. 
 
 in supplementary proceedings, fc^ 60, p. 143. 
 
 under conditional contracts, § 60, p. 143. 
 
 with reference to accrued indebtedness, § 60, p. 143. 
 
 as to future indebtedness, § 60, p. 143. 
 
 in statutory proceedings, generally, § 61, p. 144. 
 
 as to real and personal property, § 61, p. 144. 
 in actions pendente lite, § 63, p. 145. 
 as to choses in action, generally, § 64, p. 146. 
 
 when accrues, § 64, p. 146. 
 
 from nonresidents, § 63, p. 145. 
 
 to set aside assignment of, § 64, p. 146. 
 to real estate, generally, § 66, p. 148. 
 
 in foreign jurisdictions, § 64, p. 146. 
 Massachusetts rule, § 64, p. 146. 
 New York rule, § 65, p. 147. 
 English rule, § 65, p. 147. 
 extent of, as to the debtor, § 67, p. 149. 
 
 as to creditors, § 67, p. 149. 
 
 as to frauds on creditors, § 67, p. 149. 
 
 as to individual or corporation, § 67, p. 149. 
 
 as affected by statute, ^ 67, p. 149. 
 subject to existing liens, ^ 68, p. 150. 
 in supplementary proceedings, § 153, p. 255. 
 
 when appointed to obtain satisfaction of a suit at law, Appx. p. C99. 
 See also Title. 
 
 RECEIVER OF TRUST PROPERTY, 
 
 when appointed, generally, § 305, p. 539, 
 in lieu of trustees, § 306, a, p. 540. 
 over testamentary trustees, g 308, p. 544. 
 for infants' estates, § 309, p. 545.
 
 T90 INDEX. 
 
 [References arc to sections and pa^cs iu body.] 
 RECEIVER OF TRUST PROPERTY, continued, 
 when appointed, for lunatics' estates, § 310, p. 547. 
 in re assignments, ^ 307, p. 543. 
 when not appointed, § 306, b, p. 543. 
 
 RECEIVERSHIP, 
 
 origin of the law of, § 1, p. 3, 
 
 RECEIVERSHIP FUND, 
 
 claims against, generally, § 340, p. 5G8. 
 
 receiver must be disinterested in, t^ 340, a, p. 5G8. 
 must be paid in the order of distribution, tj 340, b, p. 569. 
 must be proved within time allowed by court, § 340, c. p. 569. 
 how determined, § 340, d, p. 570. 
 what allowed as such, § 341, p. 572. 
 
 preferred claims against, ground of allowance, § 342, p. 574. 
 v.'hen supplies a preferred claim, § 343, p. 57G. 
 nature of those preferred, § 343, p. 576. 
 
 when not preferred, lliough of a nature to be preferred, § 343, p. 579. 
 distribution of, generally, § 358, p. 595. 
 
 RECOVERY, 
 
 extent of, in suit by receiver of corporation, § 236, a, p. 402. 
 See Damages and Judgment. 
 
 REDEMPTION, 
 
 power of receiver to make, § 233, f, p. 387. 
 
 has same power as corporation, § 70, note, p. 156. 
 
 REFEREE, 
 
 in appointment of receiver, g 385, p. 608. 
 
 REFERENCE, 
 
 when required in appointment of receiver, g 385, p. 608. 
 
 REFUSAL, 
 
 to discharge receiver, grounds for, § 330, g, p. 506. 
 of receiver to act, practice, § 406, p. 622. 
 
 REMEDY, 
 
 receivership is an ancillary and provisional, g 2, p. 3. 
 at law a bar to appointmeqt, § 5, b, note, p. 12. 
 
 REMOVAL, 
 
 of receiver, generally, g 330, p. 557. 
 
 notice of application, § 330, a, p. 557. 
 
 application for, g 330, b, p. 558. 
 
 in sound discretion of court, g 330, f, p. 559. 
 
 by whom to be made, g 330, c, p. 560. 
 
 grounds for, g 330. d, p. 562. 
 
 not subject to appeal, g 330, e, p. 564. 
 
 effect of, g 330, f, p. 564. 
 
 grounds for refusal to order, g 330, g, p. 506.
 
 INDEX. 791 
 
 [References are to sections and pag-es in body.] 
 RENTS, 
 
 effect of receiver's possession as to, g 51, p. 136. 
 
 liability of receiver for, generally, § 121, p. 220; § 36. p. 104; § 109, a, 
 p. 203; Appx. p. 693. 
 
 when possession of premises continued, Appx. p. 093. 
 of corporation, § 234, b, p. 393. 
 as against mortgagees, § 121, p. 220. 
 when to be paid to plaintiff, J^ 12, d, note, p. 35. 
 when prior to mortgage, § 32, note, p. 94. 
 form of order to pay, No. 38, p. 670. 
 
 when a preferred claim against receivership fund, § 312, p. 574. 
 when not a preferred claim against receivership fund, § 343, p. 579. 
 duration of, determined by statute, giving time for winding up concern, 
 
 Appx. p. 693. 
 due to car trusts, how determined, § 280, c, p. 495. 
 
 RENTS AND PROFITS, 
 
 to be included in order for distribution when, § 358, d, p. 599. 
 appointment of receiver for, in foreclosure cases, § 315, p. 548. 
 See also Profits and Rents. 
 
 REPAIRS, 
 
 power of receiver to make, ^ 31, p. 98. 
 to be authorized by court, § 31, note, p. 93. 
 liability of receiver for, generally, § 114, p. 211. 
 for rented property, § 114, p. 211. 
 
 REPEAL OF CHARTER, 
 
 grounds for appointment of receiver of corporation, g 225, f, p. 3G1. 
 See also Charter and Appointment. 
 
 REPLEVIN. 
 
 possession interfered with by, § 44, p. 123. 
 when receiver may maintain, § 80, p. 179. 
 See also Receiver's Suits. 
 
 REPORT, ^ 
 
 of receiver, duty to malte, generally, § 355, p. 593. 
 
 must be to court appointing him, § 356, a, p. 594. 
 to be passed upon by a master, § 356, b, p. 594. 
 no appeal from order approving, § 350, e, p. 595. 
 approval of, § 356, f, p. 595. 
 objections to master's findings on, § 394, c, p. 594. 
 
 See also Forms, Practice, and Receiver's Report. 
 
 RIVAL RECEIVERS, 
 
 possession affected by, § 43, p. 121. 
 
 ROLLING STOCK, 
 
 when purchased, § 26, a, p. 85. 
 
 payment for, preferred when, j^ 280, p. 491. 
 
 when vendor entitled to return, § 280, d, p. 494.
 
 792 INDEX. 
 
 [Kcfcrences are to sections and pages in Ijody.] 
 ROLLING STOCK, continued. 
 
 couslrucliou of contracts relating to, § 281, f, p. 499. 
 conditional sale of, fraudulent when, § 281, f, p. 493, 
 wlien sale of, construed as a lease,,^ 281, f, p. 499.* 
 leases of. See Cau Tuusts and Rolling Stock. 
 
 ROYALTY, 
 
 when a preferred claim against receivership fund, § 343. p. 573. 
 
 RULES, 
 
 governing appointment of receiver, generally, § 5, p. 10. 
 See Appointment and Fuactice. 
 
 s. 
 
 SALARY, 
 
 -when receiver may receive, § 350, c, p. 587. 
 See also Compensation. 
 
 SALE OF PROPERTY, 
 
 after appointment is void, § 17, c, note, p. 47. 
 
 court may limit price, g 34, a, p. 98. 
 
 leave of receiver to make, § 409, p. 625. 
 
 powers of receiver to make, § 34, p. 98; § 233, 1, p. 389, 
 
 can only be on day named, Appx. p. 698. 
 power of receiver of National Bank to make, § 254, p. 42G. 
 notice of, § 34, b, note, p. 99. 
 correction as to amount, § 34, c, p. 101. 
 at inadequate price set aside, t^ 34, c, note, p. 101, 
 when set aside by court, § 34, c, note, p. 101. 
 of rolling stock when fraudulent, § 281, f, p. 499. 
 purchaser's liability, App.x. p. 698. 
 purchaser may withdraw bid, when, Appx. p. 693. 
 deed by receiver, § 418, p. 632. 
 
 SATISFACTION. 
 
 See Accord and Satisfaction. 
 SAVINGS BANKS, 
 
 rights of set-off, § 81, note, p. 180. 
 
 See also National Banks. 
 SECURED CREDITOR, 
 
 claim paid from receivership fund, § 341, d, p. 574. 
 
 See also Claims and Preferred Claims, 
 SECURITY, 
 
 inadequacy of, as ground of foreclosure, generally, § 174, p. 287; § 175, 
 
 p. 294. 
 receiver may recover for corporation, § 75, (9), p. 171. 
 
 SEQUESTRATION OF PROPERTY, 
 form of affidavit for. No. 7, p. 643. 
 See also Possession.
 
 INDEX. 7i)3 
 
 [References are to sections and pag:es in body.] 
 SET-OFF, 
 
 right of, in receivership cases, § 399, p. 618; § 81, p. ISO. 
 general rule, § 81, note, p. 180. 
 prerequisites to, § 81, p. 180. 
 accounts must be mutual, § 55, note, p. 138. 
 when not permissible against receiver, g 81, p. 180. 
 effect of receiver's possession as to, § 56, p. 139. 
 
 right of stockholder of National Bank to action by receiver, § 258, a, 
 p. 438. 
 
 SHOW CAUSE ORDER, 
 form of, No. 21, p. 657. 
 
 See also Oiiders and Forms. 
 
 SPECIFIC PERFORMANCE OF CONTRACT, 
 
 appointment of receiver in suit for, § 4, c, p. 8; § 318, p. 551. 
 not enforced against receiver, § 35, a, p. 102. 
 
 STATE STATUTES, 
 
 as to appointment of receivers, referred to, § 4, p. 6. 
 See also Appointment. 
 
 STATUTES OF STATES, 
 
 as to appointment of receiver referred to, § 4, p. 6. 
 See also Appointment op Receiver. 
 
 STATUTE 13 ELIZABETH, CHAP. 5. 
 in what states adopted, § 148, a, p. 243. 
 
 STATUTORY COMPENSATION, 
 
 of receivers, ^ 350, i, p. 591. 
 
 See also Compensation. 
 
 STATUTORY GROUND, 
 
 for receiver, generally, § 228, p. 367. 
 
 See also Appointment op Receiver, ground for. 
 
 STATUTORY LIABILITY, 
 
 how enforced. § 78, p. 177. 
 
 See also Liability and Receiver's Liabilitt. 
 
 STATUTORY LIEN, 
 
 paid from receivership fund, § 341, b, p. 574. 
 for wages has a priority over the mortgage, § 344, p. 581. 
 See also Liens and Preferred Claims. 
 
 STATUTORY POWER, 
 
 of court to appoint receivers for corporation, § 221, p. 345. 
 See also Appointment op Receiver. 
 
 STATUTORY PROCEEDINGS. 
 
 receiver's title in, § 61, p. 144. 
 
 See also Creditor's Suits, Cross Bills and Sdpplement- 
 ARY Proceedings.
 
 794 I^DEX. 
 
 [References are to sections and pages in body.] 
 
 STATUTORY RECEIVER, 
 power of, § G, a, p. 20. 
 
 See also Recbiver's Powers. 
 
 STOCKHOLDERS, 
 
 dissenting, riffhts of, in suit by receiver to collect illegal divi- 
 dends, § 238, p. 408. 
 violation of rights of minority, grounds for appointment of re- 
 ceiver, § 125, j, p. 362. 
 suits against, of National Banlis, defenses to, § 258, b, p. 443. 
 defenses by, § 77. p. 173. 
 
 for unpaid .subscriptions, generally, § 77, p. 173. 
 by receiver, how brought, § 77, p. 173. 
 joining in petition to sell cannot question validity of appoint- 
 ment, t^ 22, j, p. 69. 
 not appointed receiver, § 21, b, note, p. 60. 
 
 of loan associations, when may have receiver appointed, § 322, p. 553. 
 may apply for receiver of corporation, § 224, c, p. 353. 
 application by, for receiver, danger of loss to be shown, § 15, b, note, p. 39. 
 
 STOCKHOLDER'S LIABILITY, 
 
 for illegal distribution of stock, § 77, p. 178. 
 
 enforced by receiver of corporation, when, Appx. p. 697. 
 
 when creditor may enforce, § 77, p. 173. 
 
 liability of, must be in suit at law, § 77, note, p. 173. 
 
 to what extent enforced, § 77, p. 173. 
 
 in what court enforced, § 77, p. 173. 
 
 suits in Federal courts, § 77, p. 173. 
 
 suits to recover, on illegal dividends, § 77, p. 173. 
 
 by receiver, injunction, § 77, p. 173. 
 
 by receiver of National Banks, § 257, p. 433. 
 power of receiver to enforce, § 254, p 426. 
 liability determined by comptroller, § 258, a, p. 427. 
 
 STOCK SUBSCRIPTIONS, 
 
 how collected, § 39, p. 115. 
 
 how enforced in several states, § 39, note, p. 115. 
 enforcement by receiver, ^ 39, note, p. 115. 
 defenses to, § 40, note, p. 117. 
 suits to recover in New York, § 77, note, p. 173. 
 suit by receiver of corporation to recover, § 236, p. 403. 
 failure to collect, grounds for appointment of receiver for cor- 
 poration. § 225, 1, p. 362. 
 
 STRIKES, 
 
 possession of receiver affected by, § 43, p. 121. 
 
 will interfere with receiver's possession when, § 46, p. 130. 
 
 interference with travel and traffic, § 46, p. 130. 
 
 ■what is intimidation, § 46, p. 130. 
 
 receiver no right to refuse freight to prevent strike, § 46, note, p. 130.
 
 INDEX. 795 
 
 [References are to sections and pag-es in body.] 
 SUBSCRIPTIONS FOR STOCK, 
 how collected, § 39, p. 115. 
 enforced by receivers, g 77, p. 173. 
 
 suits by receiver of corponition to recover, § 23G, p. 402. 
 failure to collect, ground for appointment of receiver for cor- 
 porotion, § 225, i, p. 3(51, 
 See also Stock. 
 
 SUFFICIENT CAUSE, 
 
 for waiver of notice, § 5, d, note, p. 14. 
 See also Notice. 
 
 SUITS AGAINST RECEIVER, 
 
 leave of court, required, generally, § 92, p. 182; § 7, b, p. 23; § 395, p. 612. 
 
 not required, when receiver is common carrier, i^ 91, b, p. 187. 
 
 not required in action for damages, g 94, d, p. 188. 
 
 under void appointment, § 396, p. 615. 
 
 ■when waived, § 94, g, p. 189. 
 by statute, § 93, p. 183. 
 
 hovp obtained, § 93, p. 183. 
 
 necessary allegations, § 93, p. 183. 
 
 what determined by, § 93, p. 183. 
 
 to establish liens, § 93, p. 183. 
 
 as to levies, § 93. p. 183. 
 
 when denied, § 93, p. 183. 
 
 judicial discretion in, § 398, p. 617. 
 
 when revoked, § 93, p. 183. 
 
 under act of Congress March 3, 1887, § 94, a, p. 18G. 
 
 when receiver is manager, § 94, b, p. 187. 
 
 under garnishment process, § 94, c, p. 188. 
 
 where judgment prior to receivership, § 94, e, p. 188. 
 
 in execution sales, § 94, e, p. 188. 
 
 when properly wrongfully obtained, § 93, p. 183. 
 
 where property wrongfully held, g 94, f, p. 189. 
 
 in action of trover, § 94, f, p. 189. 
 
 effect of judgment, § 94, g, p. 189. 
 
 not obtained, possession affected by, g 40, p. 121. 
 when in separate action, § 95, p. 190. 
 when in original action, § 95, p. 190. 
 in what court brought, g 95, p. 190. 
 
 where facts disputed, § 95, p. 190. 
 in chancery, constitutional limitation, g 95, p. 190. 
 
 extent of power, g 95, p. 190. 
 may be sued for tort of predecessor, g 96, p. 192. 
 may be sued for negligence of employees, g 96, p. 192. 
 may not be sued for negligence of employees in statutory pro- 
 ceeding, g 96, p. 192. 
 may not be sued for trespass of principal, g 96, p. 192. 
 mandamus not sustainable, when, g 96, p. 192.
 
 796 INDEX. 
 
 [References arc to sections and pag'cs in liody.] 
 SUITS AGAINST RECEIVER, continued. 
 
 may be restrained, when, § 97, p. 193; i^ 100, p. 19G. 
 restraint of, where personally liable, ^ 97, p. 193. 
 
 where oflicially liable, § 97, p. 193. 
 
 where application to be made, § 87, p. 193. 
 
 regarding other than receivership properly, § 97, p. 193. 
 what court may enjoin, § 101, p. 197. 
 defenses to, in statutory proceedings, § 98, p. 194. 
 
 extent of, § 98, p. 194. 
 
 statute of limitations, ^ 98, p. 194. 
 character of judgment, generally, §99, p. 195. 
 
 when conclusive, § 99, p. 195. 
 
 when a nullity, t^ 99, p. 195. 
 form of judgment, § 397, p. 617. 
 
 when receiver an unnecessary party, generally, § 100, p. 19G. 
 effect of discharge, as to, § 102, p. 197. 
 
 SUIT BY RECEIVER, 
 
 limitation of power, § 394, p. 611. 
 
 power of receiver to bring on contract of insurance, Appx. p. 698. 
 
 before bond receiver cannot .sue, § 33, p. 73. 
 
 must have legal title, § 73, note, p. 160. 
 
 no power to set aside fraudulent conveyance, § 73, note. p. IGO. 
 
 power on contracts made by receiver, § 73, note, p. 160. 
 
 where parties enjoined, § 73, note, p. 160. 
 
 power of court to authorize, g 73, note, p. 160. 
 
 must be authorized by court, generally or specially, 5^ 69, p. 153. 
 
 exception under Act of Congress, § 69, p. 152. 
 the order must be followed, § 34, a, note, p. 98. 
 authority, may be conferred by decree, § 69, a, p. 155. 
 
 partnership receiverships, § 69, b, p. 155. 
 no authority required, if power given by statute, § 69, c, p. 155. 
 
 where suit in court of appointment, g 69, d, p. 155. 
 
 in case of waste, § 69, e, p. 155. 
 leave given, in discretion of court, § 69, f, p. 155. 
 
 if right not to recover is clear, § 69, f, p. 155. 
 limited to person or corporation over whose property appointed, § 70, 
 
 p. 156. 
 power when represents creditors, ^ 70, a, p. 156. 
 power extended by statute, § 70, a, p. 156. 
 power with reference to acts ultra ures, § 70, b, p. 156. 
 in supplementary proceedings, § 70, b, p. 156. 
 in creditors' bills, § 70, c, p. 156. 
 
 to set aside judgment obtained by collusion, g 70, note, p. 156. 
 as representative of creditors, g 70, note, p. 156. 
 leave to continue, pending action, g 71, p. 158. 
 complaint must show leave of court to bring, Appx. p. 698. 
 leave must be alleged, g 71, p. 158. 
 authority must be averred, § 71, p. 158.
 
 INDEX. 797 
 
 [References are to sections and pages in body.] 
 SUIT BY RECEIVER, continued. 
 
 averment of appointment not sufficient, § 71, note, p. 158. 
 
 must show time and mode of appointment, § 71, b, p. 159. 
 
 giving bond must be sliown, § 71, c. p. 159. 
 
 allegations necessary, § 71, p. 158; § 392, p. 611. 
 
 form of allegations, § 393, p. 611. 
 
 transcript of proceedings ia appointment not required, g 71, note, p. 158. 
 
 in wliat name to be brought, § 391, p. 611. 
 
 when in his own name, § 72, p. 160; § 235, a, p. 399. 
 where order so directs, § 72, a, p. 161. 
 where statute authorizes, § 72, b, p. 161. 
 
 no power to recover property which has not been reduced to pos- 
 session, § 72, note, p. 161. 
 
 when not in his own name, § 72, c, p. 161. 
 
 in name of third person, what required, g 72, note, p. 160. 
 in foreign jurisdiction, generally, § 73, a, p. 163. 
 
 English rule, § 73, b, p. 163. 
 
 later English rule, § 73, c, p. 164. 
 
 early American rule, § 73, d, p. 165. 
 
 later American rule, § 73, e, p. 165. 
 
 present American rule, § 73, e, p. 165. 
 
 to recover property wrongfully withheld, § 73, f, p. 167. 
 
 rule in Federal courts, § 73, f, note, p. 167. 
 
 rule in Massachusetts, § 73, f, note, p. 167. 
 
 rule in Indiana, § 73, f, note, p. 167. 
 
 rule in New Jersey, 73, f, note, p. 167. 
 
 rule in New York. 8 73, f, note, p. 167. 
 
 in state where appointed, | 73 (1), p. 167. 
 
 where citizens of it is interested, § 73, (2), p. 167. 
 
 based on comity, § 73, (2), p. 167. 
 
 as to realty, § 74, p. 170. 
 in insolvency proceedings, § 73, c, p. 164. 
 in matters of fraud, generally, § 75, p. 171. 
 
 to set aside fraudulent transfers in supplementary proceedings, g 76, 
 note, p. 172. 
 to recover property, in actions for limited divorce, § 75, p. 171. 
 
 wrongfully taken from, g 73, f, p. 167. 
 for an accounting, in f&vor of mortgagor, g 79, p. 178. 
 as to legal title of property, when held adversely, § 79, p. 178. 
 to determine validity of levy, how begun, § 79, p. 178. 
 to invalidate liens, generally, § 79, p. 178. 
 against pensons not parties, how begun, § 79, p. 178. 
 against assignee, when maintainable, g 80, p. 179. 
 on debtor's bond, when maintainable, g 80, p. 179. 
 when replevin maintainable, g 80, p. 179. 
 when distraint maintainable, § 80, p. 179. 
 in actions for alimony, g 75, p. 171. 
 in conversion by stranger, § 75, (1), p. 171.
 
 798 INDEX. 
 
 [References are to sections and pages in body.] 
 
 SUIT BY RECEIVER, continued. 
 
 in conversions of property by debtor, iii 75, (1), p. 171. 
 
 on bill for discovery (N. J.). § 75, (2), p. 171. 
 
 to remove fraudulent Hens, § 75, (3), p. 171. 
 
 as to assets held under invalid mortgage, § 75, (4) p. 171. 
 
 to reach concealed assets or misappropriated property, §^ 75, (5), p. 171. 
 
 to recover trust money, § 75, (0), p. 171. 
 
 to recover illegal interest paid, § 75, (7), p. 171. 
 
 to avoid conveyance, § 75, (8), p. 171. 
 
 to recover corporate securities, § 75, (9), p. 171. 
 
 to determine validity of mortgage, ^ 75, (10), p. 171. 
 
 io cancel judgment, § 75, (11), p. 171. 
 
 to cancel invalid mortgage, ^ 75, (12), p. 171. 
 
 to recover abstracted property, § 75, (13), p. 171. 
 
 by receiver of corporation, generally, § 235, a, p. 397; § 2'J3, e, p. 383 
 
 of National Bank, generally, § 257, p. 433. 
 
 jurisdiction, § 252, p. 419. 
 
 may sue stockholders at law, § 72, note, p. 160. 
 against officers and directors, generally, § 76, p. 173. 
 
 of insolvent corporation, § 76, p. 172. 
 
 for misconduct, § 76, p. 172. 
 
 in case of acts ultra vires, § 76, p. 172. 
 
 in case of excess of indebtedness, § 76, p. 173. 
 
 in case of void transfers, § 76, p. 172. 
 
 to compel surrender of assets, § 76, p. 172. 
 
 to avoid illegal chattel mortgage, § 76, p. 172. 
 
 defense to, g 76, p. 172; § 77, p. 173. 
 against stockholders, not until liability judicially determined, § 71, note, 
 p. 158. 
 
 limitation of receiver's power, § 77, p. 173. 
 
 how brought, § 77, p. 173. 
 
 when brought, g 77, p. 173. 
 
 for unpaid subscriptions, generally, § 77, p. 173. 
 
 all equities settled, § 77, p. 173. 
 
 to what extent enforced, § 77, p. 173. 
 
 to recover illegal dividends, ^ 77, p. 173. 
 
 on statutory liability, § 78, p. 177. 
 
 to enforce stock liability of National Banks, § 254, p. 426. 
 
 defenses to, § 77, p. 173. 
 defenses to, generally, ^81, p. 180. 
 
 invalidity of appointment, g 81, p. 180. 
 
 set-off, g 81, p. 180. 
 practice, 5= 390, p. 610. 
 
 SUITS FOR PARTITION, 
 
 appointment of receiver in, between tenants in common, § 317, p. 549. 
 See Tenants in Common and Appointment. 
 
 SUIT PENDING, 
 
 a prerequisite to petition for receiver, when, ^ 371, p. 002.
 
 INDEX. 799 
 
 [References are to sections and pajres in body.] 
 SUIT PENDING, continued. 
 
 a prerequisite to petition for receiver, not in cdse of lunatics, infants, etc., 
 
 § 13, note, p. 35. 
 receiver's title in, § 63, p. 145. 
 
 SUPPLEMENTARY PROCEEDINGS, 
 
 chancery jurisdiction in, § 146, p. 235. 
 governed by chancery practice, § 150, p. 251. 
 regulation of, by statute, § 146, p. 236. 
 
 based on inadequacy of common law remedy, i^ 146, b, p. 237. 
 prerequisites to such proceeding, § 146, b, p. 238. 
 necessity of judgment, § 146, b, p. 238; § 148, b, p. 248. 
 prior judgment, when not required, § 146, b, p. 23!). 
 necessity of execution and return, § 146, b, p. 239. 
 execution, how long retained, § 151, p. 252. 
 lifetime of execution, § 151, a, p. 252. 
 life of execution, contra. § 151, b, p. 253. 
 inadequacy, what is, § 146, b, p. 238. 
 to reach concealed property, § 147, p. 240. 
 to remove cloud upon title, § 147, p. 240. 
 removal of fraudulent transfer, § 147, p. 240. 
 classes of creditor's proceedings, generally, § 147, p. 240. 
 application of statute, 13 Eliz. chap. 5, and 2'J Eliz. chap. 5, § 148, a, p. 243. 
 practice in Code states, § 152, p. 254. 
 action by judgment creditors, § 148, a, p. 241. 
 action by receiver, ^ 148, a, p. 241. 
 to attack invalid mortgage, § 148, a, p. 244. 
 rule as to executions, § 148, b, p. 244. 
 
 exceptions to, generally, ^ 148, b, p. 246. 
 
 as to fraudulent conveyance, § 148, b, p. 247. 
 as to attachment, § 148, b, p. 246. 
 as to practical utility, § 148, b, p. 246. 
 as to insolvent estates, § 148, b, p. 247. 
 where judgment debtor has absconded, § 148, b, p. 247. 
 where waived, t^ 148, b, p, 247. 
 to reach fraudulent assignments or conveyances, ^ 148, a, p. 241. 
 jurisdiction in matters of assignment, § 149, a, p. 249. 
 fraudulent assignment, how removed, § 149, a, p. 249. 
 assignments, when fraudulent under, § 149, a, p. 249. 
 ground for, in case of fraudulent assignment, § 149, a, p. 250. 
 assignment, receiver in, where assignee fails to take possession, § 149, b, 
 p. 250. 
 
 for mismanagement by assignee, § 149, b, p. 250. 
 fraudulent transfer, suit by receiver, when necessary, § 150, p. 252. 
 who receiver represents, § 150, p. 251. 
 liability of sureties of receiver in, g 153, p. 255. 
 effect of filing bill in lieu of, § 154, p. 256. 
 appointment of receiver in, generally, ^ 153, p. 255. 
 when appointed, § 4, d, p. 9. 
 
 when dispensed with, § 156, p. 261.
 
 800 INDEX. 
 
 [References are to sections and paRCS in borly.] 
 SUPPLEMENTARY PROCEEDINGS, continued. 
 
 when appointed, as affected by practice of court, i^ 153, p. 255. 
 
 bond required, § 153, p. 255. 
 
 duties of receiver, g 153, p. 255. 
 
 effect of statutory provisions, § 153, p. 255. 
 
 judicial discretion of court, § 153, p. 255. 
 
 order of, § 157, p. 261. 
 nature, g 153, p. 255. 
 limitation, § 157, p. 262. 
 
 effect of order, ii 157, p. 261. 
 
 as to title, ^5 157, p. 261 ; g 158, p. 263. 
 effect of reversal, g 157, p. 261. 
 
 where mortgagee in pos.session, ^ 160, p. 264. 
 
 where title involved, g 160, p. 264. 
 receiver's title in, § 60, p. 143; § 150, p. 252; :■ 153, p. 255; § 159, p. 203. 
 receiver's powers in, generally, ^ 154, p. 256. 
 
 to give bond required, ^ 154, p. 256. 
 
 as to fraudulent transfers, § 154, p. 256. 
 
 as to what property, § 154, p. 257. 
 
 as to property in debtor's possession, § 154, p. 257. 
 
 as to property in hands of third person, § 154, p. 257. 
 
 as to trust property, § 154, p. 257. 
 
 as to exempt property, ^ 154, p. 257. 
 
 relates from what date, § 154, p. 257. . 
 
 to question title, fe^ 154, p. 257. 
 
 to sue and be sued, § 156, p. 260. 
 
 to set aside fraudulent transfers, § 155, p. 259. 
 
 to reduce property to possession, § 155, p. 259. 
 
 as to creditors, § 159, p. 263. 
 
 trustee fOT creditors, § 155, p. 258. 
 
 in foreign jurisdiction, § 158, p. 262. 
 receiver's functions, § 155, p. 258. 
 power of court to compel conveyance, § 154, p. 257. 
 sale thereunder, § 159, p. 263. 
 creditors in, how made parties, ^ 159, p. 263. 
 privity of creditors in, generally, i^ 159, p. 263. 
 
 over purchasers, § 159, p. 263. 
 
 as to mortgagee, § 159, p. 264. 
 
 when determined, § 159, p. 264. 
 
 SUPPLIES, 
 
 power of receiver to purchase, § 32, p. 94. 
 
 liability of receiver for, generally, ^ 118, p. 217. 
 
 when a preferred claim against receivership fund, § 343, p. 576. 
 
 SURETY, 
 
 may apply for appointment of receiver for corporation, § 224, b, p. 353. 
 claim of, when allowed from receivership fund, § 341, e, p. 574. 
 on bond, who competent, § 23, c, p. 76.
 
 INDEX. 801 
 
 [References are to sections and pases iu body.] 
 SURETY, continued. 
 
 on bond, person or corporation, § 23, c. p. 7G. 
 how approved, § 23, c, p. 7G. 
 how discharged, § 23, c, p. 76. 
 death of, § 23, b, note, p. 75. 
 liability of, § 23, c, e, pp. 76, 78. 
 
 where principal absconds, § 23, c, p. 76. 
 
 how enforced, ^ 23, c, note, p. 76. 
 
 on special covenants, § 23, d, note, p. 77. 
 
 for money in hands of receiver, § 23, e, p. 78. 
 
 for money borrowed by receiver, § 23, e, p. 78. 
 
 for interest when, § 23, e, p. 78. 
 
 for costs, § 23, e, p. 78. 
 
 how determined, § 23, e, p. 78. 
 suit on, when to be brought, § 23, d. p. 77. 
 
 SWITCH, 
 
 liability of receiver for removal of, § 125, p. 224. 
 See Liability. 
 
 T. 
 
 TAXES, 
 
 levy of taxes may interfere with possession, § 54, note, p. 137. 
 
 power of receiver to pay, § 233, g, p. 387. 
 
 on personal property, as claim against receivership fund, § 341, b, p. 573. 
 
 sale for, as ground of foreclosure, § 171, d, p. 267. 
 
 TAX LEVY, 
 
 not prevented by receiver's possession, § 54, p. 137. 
 
 TAX OFFICERS, 
 
 possession affected by, § 43, p. 121. 
 See also Officers. 
 TEMPORARY RECEIVER, 
 
 entitled to possession, when, see Appx. p. 699. 
 See also PEDENTE LITE. 
 TENANTS, 
 
 effect of receiver's possession as to, § 51, p. 136. 
 
 TENANTS IN COMMON, 
 
 appointment of receiver for, disqualific^ation of, § 4, b, p. 7. 
 in case of disagreement, § 30ti, p. 542. 
 partition suits between, § 317, p. 549. 
 
 TENANTS FOR LIFE. 
 
 See Life Tenants. 
 
 testa:\ientary guardian, 
 
 appointment of receiver in lieu of, § 309, p. 545. 
 
 testamentary trustees, 
 
 when receiver appointed in lieu of, § 308, p. 514. 
 51
 
 802 INDEX. 
 
 [Ucforcnccs arc to sections aiul pa^a's in body.] 
 TITLE, 
 
 of plaintiff must be clearly shown, ^ 5, a, note 1, p. 12. 
 
 dispute as to, g 5, b, note. p. 12. 
 
 in dispute, not ground for receiver, § 17, a, note, p. 45. 
 
 not in receiver, generally, ^ 17, d, note, p. 48. 
 
 not affected by appointment, § 17, d, note, p. 48. 
 
 legal and equitable, distinction between, § 23, d, note, p. G4. 
 
 what acquired by purchaser, § 34, p. 98. 
 
 evidence of, § 34, p. 98. 
 
 reserved in sale, § 34, a, p. 98. 
 
 to property, in supplementary proceedings, g 39, note, p. 115. 
 
 effect of, as to appointment of receiver, § 44, p. 122. 
 
 how defined, § 58, p. 140. 
 
 under New York Statute 1869 title is transferred to the receiver, § 58, 
 
 note, p. 140. 
 to real estate only vested in receiver by conveyance, § 58, note, p. 140. 
 may be transferred to receiver by order of court, i^ 58, note, p. 140. 
 independent of statute, is not transferred to receiver, § 58, note, 
 
 p. 140. 
 equitable, is vested in receiver by appointment, § 58, note. p. 140. 
 receiver no power to litigate, § 71, note, p. 158. 
 receiver having reduced property to possession, has special title, § 72, note, 
 
 p. 160. 
 legal, suit by corporation to try, § 76, note, p. 172. 
 removal of cloud upon, § 147, p. 240. 
 to real estate vests in receiver only when within the state, § 66, note, 
 
 p. 148. 
 lease by a party to suit confers no title, § 59, note, p. 142. 
 
 when not absolute, § 59, p. 142. 
 
 special as to ren, § 59, p. 143. 
 
 distinguished from legal title, § 59, p. 142. 
 
 merely possessory in character, § 59, p. 142. 
 
 in absence of forma! assignment, § 59, p. 143. 
 
 as affected by character of property, § 59, p. 143. 
 
 with reference to corporate functions, ^ 59, p. 142. 
 
 with reference to accrued indebted ne.*s, i^ 60, p. 143. 
 
 as to subf^equentlj' acquired property, § 60, p. 143. 
 
 as to future indebtedness, § 60, p. 143. 
 
 under conditional contracts, § 60, p. 143. 
 
 in supplementary proceedings, ^ 60, p. 143; § 153, p. 255. 
 
 in statutory proceedings, generally, § 61, p. 144. 
 as to real and personal property, i^ 61, p. 144. 
 
 in actions pendente lite, § 62, p. 145. 
 
 as to choses in action, generally, § 64, p. 146. 
 to set aside assignment of, ^ 64, p. 146. 
 from nonresidents, ^ 63, p. 145. 
 when accrues, ^ 64, p. 146. 
 
 to real estate, generally, g 06, p. 148.
 
 INDEX. 803 
 
 [References are to seotiotis and pag-os in body.] 
 I'lTLE. continued. 
 
 lease by a party to suit confers no title, to real estate, in foreign jurisdic- 
 tions, § 64, p. 146. 
 Massachu.selts rule, § 64, p. 146. 
 New York rule, § 6.5, p. 147, 
 extent of, as affected by statu le, g 67, p. 149. 
 as to debtor, § 67, p. 149. 
 as to creditors, § 67, p. 149. 
 as to frauds on creditors, § 67, p. 149. 
 as to individual or corporation, j!; 67, p. 149. 
 subject to existing liens, § 68, p. 150. 
 of National Banks, generally, § 25"), p. 429. 
 appointed to obtain satisfaction of a judgment at law, Appx. p. 699. 
 
 TOLLS, 
 
 when ground of appointment for, § 15, b, p. 39. 
 
 TORTS, 
 
 liability of receiver, to action for, g 109, a, p. 202. 
 of corporation for, ^ 234, e, p. 395. 
 
 See also Liability and Receiver's Suits. 
 
 TRADER— INSOLVENT. 
 
 appointment of receiver for, § 15, d, p. 41. 
 
 TRANSFER OF PROPERTY, 
 
 governed by owner's domicil, § 37, note, p. 108. 
 
 by operation of law, § 73, c, p. 164. 
 
 removal of, when fraudulent, § 147, p. 240. 
 
 fraudulent, as ground for creditor's bill, § 149, a, p. 249. 
 
 receiver's power over, in supplementary proceedings. § 154, p. 255. 
 bow avoided by receiver of corporation, § 237, p. 406. 
 leave of receiver to make, § 409, p. 625. 
 deed by receiver, § 418, p. 632. 
 
 See also Assignment and Sale. 
 
 TRESPASS, 
 
 possession of receiver interfered with, is, § 43, p. 121. 
 receiver may be sued for ton of predecessor, when, § 96, p. 193. 
 receiver may not be sued for tort of piincipal, g 96, p. 192. 
 liability of receiver to suit for, § 109, a, p. 202; § 130. p. 231. 
 receiver commits, when he acts outside of his duty, § 405, p. 622. 
 
 TROVER, 
 
 receiver cannot maintain, for property converted before appointment, 
 
 § 58, note, p. 140. 
 when brought against receiver leave of court not required, § 94, f, p. 189. 
 
 TRUST, 
 
 receivers in case of, § 300, p. 540. 
 
 See TuusTEK and Cau Trusts.
 
 804 INDEX. 
 
 [References are to sections and pages in body.] 
 TRUSTEE, 
 
 appointment of receiver in case of, §4, c, p. 8. 
 receiver is, to all parlies, but not to strangers, § 6, b, p. 21. 
 power to sue in foreign jurisdiction, § 73, f, note, p. 107. 
 accounting of, effected by appointment of receiver, § 30o, a, p. 542, 
 appointment of receiver in lieu of, § 305, p. 539, 
 
 when appointed, § 306, p. 540. 
 
 when not appointed, § 306, b, p. 543. 
 testamentary, appointment of receiver for, § 308, p. 544. 
 
 TRUST FUNDS, 
 
 intermingling, ground for appointment of receiver, § 300, p. 541, 
 receiver may recover, § 75, (6), p, 171. 
 See also Funds. 
 
 TRUST PROPERTY, 
 
 held by receiver, duty regarding, ^ 412, p, 627, 
 
 powers of court of equity to appoint receiver over, g 305, p. 539. 
 
 receivership over, when appointed, generally, g 305, p, 539; § 300, p. 540. 
 
 in lieu of trustee, § 306, a, p. 540. 
 
 over testamentary trustee, § 308, p. 544. 
 
 in reassignment, § 307, p. 543. 
 
 for lunatics' estates, ^ 310, p. 547. 
 
 for infants' estates, § 309, p. 545. 
 when not appointed, § 306, b, p. 543. 
 See also Funds. 
 
 TRUST RELATIONSHIP, 
 
 violation of, receiver appointed for, § 4, c, p. 8. 
 
 u. 
 
 ULTRA VIRES ACTS, 
 
 avoided by receiver, § 76, p. 172. 
 
 UNEXPIRED LEASE, 
 
 effect of appointment of receiver upon, § 230, e, p. 373. 
 receiver's liability on, § 122, p. 221. 
 when adopted by receiver of railway, g 283, i, p. 506. 
 See also Liability and Lease. 
 
 UNITED STATES COURT OF APPEALS, 
 concerning receiverships in, § 22, k, p. 70. 
 
 UNLAWFUL WITHHOLDING, 
 
 possession affected by, § 43, p. 121. 
 
 V. 
 
 VACATION OF ORDER, 
 
 appointing receiver, when to be made, ^ 22, j, p. C9. 
 where supersedeas bond affords protection, g 22, 1, note, 72.
 
 INDEX. 805 
 
 [References are to sections and pages tu body.] 
 VALIDITY, 
 
 of appointment of receiver, Appx. p. G95. 
 
 See also Appointment and Order. 
 VENDOR, 
 
 right of, to appointment of receiver, § 180, d, p. 303. 
 
 and vendee, appointment of receiver betveeen, § 4, c, p. 8; § 315, p. 548. 
 
 VIOLATION OF CHARTER, 
 
 ground for appointment of receiver for corporation, g 225, j, p, 362. 
 See Chakter and Corpokation. 
 
 w. 
 
 WAGES, 
 
 of employees, control of court over, § 118, p. 217. 
 liability of receiver for, Appx. p. 697. 
 preferred claim against receivership fund, § 342, p. 574. 
 
 made so by statute, § 344, p. 581. 
 ■when not a preferred claim against receivership fund, § 343, p. 579. 
 See also Claim and Preferred Claim. 
 WASTE, 
 
 appointment of receiver in case of, § 4, c, p. 8. 
 
 as ground of appointment of receiver, § 5, b, note, p. 14. 
 
 of infant's estate, § 309, p. 545. 
 as grounds of foreclosure, § 171, d, p. 267. 
 
 WIFE, 
 
 may apply for receiver, when, Appx. p. 694. 
 
 See also Appointment and Applicatiok. 
 WILLS, 
 
 appointment of receiver in, § 301, b, p. 527. 
 See also Appointment. 
 
 WINDING UP CONCERN, 
 
 v.'hen receiver appointed in, § 4, d, p. 9. 
 in trust cases, § 306, p. 541.
 
 In recognition of the very gratifying reception my effort to pre- 
 sent the hiw of this subject has met with from the profession, I 
 have prepared a supplement to the original work, covering the 
 later decisions to January 1, 1900, and enlarging upon some points 
 where further study made it seem to me desirable. This Supple- 
 ment follows the chapters and sections of the original work and 
 may be referred to from it. 
 
 J. W. S. 
 Chicago, May, 1900.
 
 LAW OF EECEIVEESHIPS. 
 
 SUPPLEME]^T, 
 
 Arrang-ing tlie new matter with, reference to the appro- 
 priate pag-es and sections of the original work. 
 
 Page 10, sec. 5. — Of the appointment. 
 (a) Discretion of court. 
 
 Appointment is in the discretion 
 of the court. People, Gore, v. Illi- 
 nois Bldg.&L. Asso. .50 111. App. 642; 
 Crane v. McCoy, 1 Bond, 422 ; Beau- 
 mont V. Beaumont, 166 Pa. 615; 
 Farmers' Loan & T. Go. v. Chicago 
 <G A. R. Co. 27 Fed. Rep. 140. 
 
 The appointment is in the discre- 
 tion of the court, as to the extent 
 of property over which receiver is ap- 
 pointed. Tressilian v. Coniffe, 4 Ir. 
 Ch. Rep. 399. 
 
 If the appointment is in the dis- 
 cretion of court, and no abuse ap- 
 pears, the appointment will not be 
 interfered with. Wilcoxon Mfg. Go. 
 V. Atkinson, 78 Ga. 338. 
 
 The discretion of the court in ap- 
 pointing a receiver should not be in- 
 terfered with, except where the lower 
 court has clearly exceeded its juris- 
 diction and there is no other ade- 
 quate remedy. Ex parte Smith, 23 
 Ala. 94. 
 
 There must be an abuse of dis- 
 cretion in order to secure a reversal. 
 Sanders v. Slaughter, 89 Ga. 34. 
 
 The court has a broad discretion 
 in reference to the appointment 
 
 when executions are returned unsat- 
 isfied. Button V. Thomas, 97 Mich. 
 93 ; Bagletj v. Scudder, 06 Mich. 97 ; 
 Rankin v. Rothschild, 78 Mich. 10. 
 
 In a suit to set aside proceedings 
 alleged to be collusive, wherein a 
 receiver has been appointed, it is dis- 
 cretionary to appoint a new receiver, 
 and not reviewable. Gomwlly v. 
 Kretz, 78 N. Y. 020. 
 
 An application for the appoint- 
 ment of a receiver pending an appeal 
 from a decree of foreclosure is ad- 
 dressed to the sound discretion of 
 the court in Nebraska, and will be 
 denied where it appears that a 
 greater injury would ensue from the 
 appointment than from permitting 
 the possession of the property to re- 
 main undisturbed. Provident Life 
 & T. Go. V. Keniston, 53 Neb. 80. 
 
 Residence of defendant. 
 
 A receiver of personal property 
 may be appointed although the de- 
 fendant resides in another state. 
 Hellehush v. Blake, 119 Ind. 349. 
 
 Page 12. 
 
 -(b) Probability of plaintiff^s recovery. 
 
 A receiver will not be appointed to 
 take possession of property and 
 charge of business in the hands of a 
 defendant, unless the plaintiff's right 
 is sufliciently probable, or when it is 
 not probable that such property will 
 
 R. Supp. 
 
 be lost or will sustain injury during 
 the suit if it is left in defendant's 
 hands, or that the business will be 
 mismanaged. Ogden City v. Bear 
 Lake & River Waterworks & Irrlg. 
 Co. 16 Utah, 440, 41 L. R. A. 305. 
 
 1
 
 §5 
 
 RECEIVERSHIPS— SUPPLEMENT. 
 
 Where, in a petition for the ap 
 point nu'iit of a receiver, the lelicf 
 ])rayi'd for is that complainant's 
 chiini be decrood a prior lien on all 
 the insolvent's assets, and such relief 
 
 cannot be granted, a receiver should 
 not be granted. Bank of Florence v. 
 United States Sav. t£- L. Co. 104 Ala. 
 297. 
 
 Page 14.— (c) 
 
 Necessity of preserving property. 
 
 A receiver of book accounts as- 
 signed by a debtor to one of his 
 creditors will not bo appointed pend- 
 ing a suit by another creditor to 
 set aside the assignment as fraudu- 
 lent, where the assignee has put m 
 an answer denying the allegations of 
 fraud and asserting liis right to the 
 security, and it appears that he has 
 abundant means to respond in any 
 amount for which he may be held lia- 
 ble. Waeber v. Rosenstein, 6 App. 
 Div. 447. 
 
 A receiver should never be appoint- 
 ed over a mortgagee of chattels in 
 possession, where there is a balance 
 due him. Bayaud v. Felloios, 28 
 Barb. 451. 
 
 In the absence of fraud, and where 
 a corporation has parted with all its 
 property and used the same in pay- 
 ment of debts, a receiver will not be 
 appointed. JIalc-Berry Co. v. Dia- 
 mond State Iron Co. 94 Ga. 61. 
 
 And where rents are applied to the 
 payment of the mortgage debt and 
 necessary expenses in the manage- 
 ment and care of the property, a re- 
 ceiver will not be appointed. Myton 
 V. Davenport, 51 Iowa. 583. 
 
 Receiver not appointed where ad- 
 ministrator has power to protect 
 propertv. Veret v. Duprez, L. R. G 
 Eq. 329! 
 
 An order appointing a receiver 
 pendente lite, in a proceeding under 
 3 How. (Mich.) Ann. Stat. § 87400, 
 providing for the appointment of a 
 receiver at the instance of persons 
 having preferred claims under a vol- 
 untary assignment, is improvident, if 
 not an absolute nullity. Ball v. 
 Wayne Circuit Judge, 111 Mich. 395. 
 
 Because the husband of an execu- 
 trix was in the West Indies, and not 
 amenable to the process of court in 
 case his wife as executrix should 
 coirimit waste or refuse to pay, a re- 
 ceiver was appointed. Decided by 
 
 the Lord Chancellor of England in 
 1741. Taylor v. Allen, 2 Atk. 213. 
 
 'Notice of application for appoint- 
 ment. 
 
 As a general rule, notice of the ap- 
 plication for the appointment of a 
 receiver must be given. Mestier v. 
 A. Chevallier Pavement Co. 51 La. 
 Ann. 142; Sehone v. Consolidated 
 Bldg. d 8av. Go. 4 Ohio N. P. 21G; 
 Sf nit ton V. Davidson, 1 Russ. & M. 
 484 ; Grace v. Gurtiss, 3 Misc. 558 ; 
 Elwood V. First Nat. Bank, 41 Kan. 
 475 ; Thompson v. Tower Mfg. Go. 
 87 Ala. 733; People, Port Huron t^ 
 G. R. Co. V. St. Glair Circuit Judge, 
 31 Mich. 450; Todd v. Crooke, 4 
 Sandf. 094; Cincinnati, H. dc D. R. 
 Go. V. Jewett, 37 Ohio St. 049 ; Gil- 
 bert V. Block, 51 111. App. 510; Mor- 
 gan V. Von Kohnstamm , 9 Daly, 355, 
 00 How. Pr. 101. 
 
 And so with regard to an appli- 
 cation to extend the receivership. 
 he Grand v. O'Neill, 2 Ir. Ch. Rep. 
 509; state, Thornton-Thomas Mer- 
 cantile Co. V. Second Judicial Dist. 
 Ct. 20 Mont. 284; Sandf ord v. ■S'm- 
 clair, 8 Paige, 373. 
 
 In the absence of a statute the ap- 
 pointment of a receiver cr parte ia 
 void, and can be assailed collaterally. 
 Whitney v. Hanover Nat. Bank, 71 
 Miss. 1009, 23 L. R. A. 531. 
 
 Not required if defendant cannot 
 be found and his counsel refuses tO' 
 disclose his whereabouts. Hopp':r 
 v. Davies, 70 111. App. 082; St. 
 Louis, K. d- S. R. Co. v. Wear, 135 
 Mo. 230, 33 L. R. A. 341 ; Hangaii v. 
 Nctland, 51 Minn. 552; Hendrix v. 
 Amcrcian Freehold Land Mortg. Co. 
 95 Ala. 313. 
 
 Insolvency of the debtor alone is 
 not sufficient ground for dispensing 
 with notice. Smith Dimick Lumber 
 Go. V. Teague (Ala.) 24 So. 4. 
 
 There must be an emergent neces-
 
 GENERAL NATURE AND FEATURES OF THE LAW. 
 
 §7 
 
 sity for the immediate appointment. 
 Wehh V. Allen, 15 Tex. Civ. App. tlOS. 
 
 And the emergency must be shown 
 by allegations. Jacksonville Ferry 
 Co. V. Stockton (Fla.) 23 So. 557. 
 
 And the allegations must be posi- 
 tive, and the excuse for not giving 
 notice must not be alleged as a mere 
 conclusion or on belief, but the facts 
 justifying such belief or establishing 
 such conclusion must be stated. Ihld. 
 
 Appointment ex parte may be 
 made in aid of the jurisdiction of the 
 court, or as a conservatory process 
 incident to the principal demand. Re 
 Moss Cigar Co. 50 La. Ann. 780. 
 
 There must be an obvious necessity 
 for prompt action. Bristoiv v. Home 
 Bldcj. Co. 91 Va. 18. 
 
 Or extreme danger apparent. 
 Fredenheini v. Rohr, 87 Va. 704. 
 
 Or danger of irreparable loss. Cin- 
 cinnati, H. & D. R. Co. V. Jewett, 37 
 Ohio St. 649. 
 
 Affidavits in support of the motion 
 should also be served. Brundage v. 
 Home Sav. d L. Asso. 11 Wash. 277. 
 
 The statute frequently regulates 
 the matter of notice in the appoint- 
 ment of receivers. Allen v. Cooley, 
 53 S. C. 414. 
 
 Under Mo. Laws 1895, p. 91, 
 amending Mo. Rev. Stat. 1889, § 
 2246, the power of the court to ap- 
 point a receiver on an ex parte ap- 
 plication Avithout notice should not 
 extend beyond such time as is rea- 
 sonably required to allow the de- 
 fendant to show cause against the 
 continuance of the receivership. 8t. 
 Louis, K. & »S'. R. Co. v. Wear, 135 
 Mo. 230, 33 L. R. A. 341. 
 
 At the next term, three months 
 distant, is too long. Whitney v. 
 Welch, 2 Abb. N. C. 442; Btohn v. 
 Epstein, 6 N. Y. Civ. Proc. Rep. 36, 
 14 Abb. N. C. 322. 
 
 In a proceeding under § 298, Code 
 of New York, if the debtor has ab- 
 sconded so that notice cannot be 
 served on him the remedy is by credi- 
 tors' bill, and not supplementary 
 proceeding. Kemp v. Harding, 4 
 How. Pr. 178. 
 
 To authorize the appointment un- 
 der § 298, Code of New York, notice 
 to the debtor must be given. Ihid. 
 
 Construction of N. Y. Laws 1883, 
 chap. 378, § 8, relative to copy of mo- 
 tions, etc., and service on attorney 
 general. Grea.son v. Goodwillie- 
 Wyman Co. 38 Hun, 138. 
 
 Notice of application for removal. 
 
 The court may dismiss a suit 
 against a corporation, and discharge 
 a temporary receiver appointed 
 therein, without any notice to the 
 general creditors. Rockwell v. Port- 
 land Sav. Bank, 31 Or. 431; Re Pre- 
 mier Cycle Mfg. Co. 70 Conn. 473; 
 New York & W . U. Teleg. Co. v. Jew- 
 ett, 115 N. Y. IGO. 
 
 Failure to direct notice to be given 
 to the parties to an action for the re- 
 moval of a receiver is not ground for 
 reversal, where they in fact received 
 actual notice before the hearing, and 
 interposed no objection for want of 
 formal service, and do not appeal. 
 Re Premier Cycle Mfg. Co. 70 Conn. 
 473; Atty. Gen. v. Haberdasher's Co. 
 2 Jur. 915. 
 
 Page 23, sec. 7.— Effect of appointment. 
 
 (a) Places property in custodia eegis. 
 
 Property belonging to one not a 
 party to an action in which a re- 
 ceiver has been appointed, and for 
 which a receiver has not been asked, 
 is not in custodia legis, so as to pre- 
 clude its seizure under legal process, 
 although the receiver has wrong- 
 
 fully taken possession thereof. 
 Farmers' cC- M. Nat. Bank v. Scott 
 (Tex. Civ. App.) 45 S. W. 26. 
 
 Property in hands of receiver is 
 in custodia legis, and not subject to 
 attachment. Texas Trunk R. Co. v. 
 Lewis, 81 Tex. 1. 
 
 3
 
 § s 
 
 RECEIVERSHIPS— SUPPLEMENT. 
 
 A receiver's custody is that of the 
 court which appointed him. People, 
 
 Tremper, v. Brooks, 40 Mich. 333, 29 
 Am. Rep. 534. 
 
 Page 25, sec. 8. — Kinds of receivers. 
 
 Ancillary receivers. 
 
 A court of the state in which a 
 corporation was organized may ap- 
 point a receiver of its property, not- 
 withstanding that all its property, 
 both real and personal, is situated in 
 another state; and the courts of the 
 latter state may properly, under the 
 rules of comity, appoint the same 
 person as ancillary receiver. Bayne 
 V. Brewer Pottery Co. 82 Fed. Kep. 
 391. 
 
 A receiver will not be appointed 
 by a court of insolvency, where the 
 principal relief sought is injunction 
 and other equitable relief, and the 
 appointment of a receiver is ancil- 
 lary thereto. Rehn v. North Fair- 
 mount B. d S. Co. 5 Ohio N. P. 314. 
 
 A court appointing ancillary re- 
 ceivers of a foreign corporation to 
 collect assets within its jurisdiction 
 will not refuse to transmit the fund 
 to the original receivers, in favor of 
 domestic creditors, unless they have 
 acquired some priority of lien on the 
 corporate assets. New York Insu- 
 lated Wire Co. v. Greeley, 59 U. S. 
 App. GIO; Sands v. E. S. Greeley & 
 Co. 88 Fed. Rep. 130, 31 C. C. A. 424. 
 
 A United States circuit court 
 which has appointed an ancillary re- 
 ceiver for a foreign corporation has 
 jurisdiction of a suit by him against 
 citizens of the same state in which 
 he lived to collect subscriptions to the 
 corporation, the claims for Avhich 
 have been transmitted to him by the 
 principal receiver appointed at the 
 domicil of the corporation in an- 
 other state. Sullivan v. Sheehan, 
 89 Fed. Rep. 247. 
 
 An ancillary receiver of a foreign 
 corporation, who, by the order of his 
 appointment, is vested with the 
 usual powers and duties of receivers, 
 is authorized to make an accord and 
 satisfaction of a claim. Goodrich 
 V. Sanderson, 35 App. Div. 54G. 
 
 An ancillary receiver of a railroad 
 cannot be sued in the jurisdiction of 
 
 his appointment for a tort committed 
 in the jurisdiction of the appoint- 
 ment of the principal receiver, al- 
 though the principal and ancillary 
 receivers are the same persons. 
 Union Trust Co. v. Atchison, T. & 
 S. F. R. Co. 87 Fed. Rep. 530. 
 
 It has been held in New York that 
 on the application of a foreign re- 
 ceiver an ancillary receiver will not 
 be appointed in that state, where 
 the foreign receiver has apparently 
 all the power requisite. Mabon v. 
 Ojiglcy Electric Co. 156 N. Y. 196. 
 
 An ancillary decree appointing re- 
 ceivers will not be in effect so modi- 
 fied as to except a portion of the 
 property in tlie district, where the 
 original appointment includes all 
 the property of the company. Mer- 
 cantile Trtist Co. V. Baltimore & 0. 
 R. Co. 79 Fed. Rep. 389. 
 
 A motion to allow an ancillary re- 
 ceiver of an insolvent corporation to 
 pay over the funds to the court of 
 primary jurisdiction was held under 
 advisement upon opposition by resi- 
 dent creditors, where it appeared 
 that they did not thoroughly under- 
 stand the situation, and erroneously 
 supposed if the fund was not trans- 
 ferred their claims would be forth- 
 with paid in full, but in fact con- 
 tinued litigation would result, and 
 the fund would probably not be dis- 
 tributed for years. Sands v. E. S. 
 Greeley d Co. 83 Fed. Rep. 772. 
 
 Receivers pendente' lite. 
 
 The court has authority, in a 
 proper case, to appoint a receiver to 
 hold property pending litigation in 
 the same court, in which case he is a 
 receiver pendente lite. Tregaskis v. 
 Detroit Super. Ct. Judge, 47 Mich. 
 509. 
 
 A receiver may properly be ap- 
 pointed, under the Texas statute, to 
 take charge of property pending a 
 litigation in regard thereto. Lynn 
 V. First Nat. Bank, 40 S. W. 228. 
 
 But where the statute provides for
 
 GENERAL NATURE AND FEATURES OF THE LAW. 
 
 S9 
 
 the appointment of a receiver he is 
 not a receiver pendente lite. People 
 
 V. Gloie Mut. L. Ins. Co. 57 How. Pr. 
 481. 
 
 Page 26, sec. 9. — At what stage appointed. 
 
 Under N. Y. Code, § 294, a receiver 
 will not be appointed before execu- 
 tion returned unsatisfied. Darroiv 
 v. Lee, 16 Abb. Pr. 215. 
 
 If the record shows the receiver 
 was appointed on the same day the 
 action was commenced, the pre- 
 sumption is that each was done in 
 the i^roper order. Ehcood v. First 
 ISlat. Bank, 41 Kan. 475. 
 
 May he by statute in vacation or at 
 chatnhers. 
 
 Under Mo. Rev. Stat. 1889, § 
 2193, a receiver may be ajapointed in 
 vacation, in any county within the 
 circuit, no matter where the case is 
 pending. 8t. Louis, K. & 8. R. Co. 
 V. Wear, 135 Mo. 268, 33 L. R. A. 
 341. 
 
 Under W. Va. Acts 1882, chap. 78, 
 § 28 (Worth's Code, p. 743), a judge 
 has no right to appoint a receiver of 
 real estate, rents, etc., in vacation. 
 Kerr v. Hill, 27 W. Va. 576. 
 
 Tlie appointment of a receiver in 
 A"acation is void unless there is statu- 
 tory power to appoint. Guy v. 
 Doalc, 47 Kan. 236. 
 
 Under the California insolvency 
 act of 1880 a receiver may be ap- 
 pointed by a judge in chambers upon 
 ex parte application. Real Estate 
 Asso. v. San Francisco City d County 
 Super. Ct. GO Cal. 223. 
 
 Appointed before service, when. 
 
 In Tanfield v. Irvine, 2 Russ. Ch. 
 149, a receiver was appointed before 
 service, where the defendant was out 
 of the jurisdiction. Macintosh v. 
 Great Western R. Co. 18 L. J. Ch. N. 
 S. 169. 
 
 A receiver was denied where the 
 defendant was alleged to hold ad- 
 versely to the plaintiH", and was not 
 served with process. Hyslop v. Hop- 
 pock, 5 Ben. 447. 
 
 Under a bill properly verified, an 
 
 order appointing a receiver before 
 appearance and before service of pro- 
 cess cannot be disturbed. Sieg- 
 mund V. Ascher, 37 111. App. 122; 
 Gage v. Smith, 79 111. 219. 
 
 Before answer. 
 
 Where the application for a receiver 
 is made before the defendant has filed 
 his answer the defendant has a right 
 to be heard upon afiidavit as to his 
 defense. Whitehouse v. Point De- 
 fiance, T. & E. R. Co. 9 Wash. 558. 
 
 A receiver has been refused before 
 answer where the party applying 
 could not make out an equitable title. 
 Metcalfe v. Pulvertoft, 1 Ves. «&, B. 
 180. 
 
 A motion for receiver before an- 
 swer is unusual, but has been granted 
 where defendant filed affidavit, in a 
 strong case of waste. Jervis v. 
 White, 6 Ves. Jr. 738; Middleton v. 
 Dodsicell, 13 Ves. Jr. 266; Hugonin 
 V. Basely, 13 Ves. Jr. 105; Metcalfe 
 V. Pulvertoft, 1 Ves. & B. 180; Duck- 
 worth V. Trafford, 18 Ves. Jr. 283; 
 Vann v. Barnett, 2 Bro. Ch. 158; 
 Compton V. Bearcroft, Trin. 1773, 
 cited in 2 Bro. Ch. 158. 
 
 It is the common jsractice to grant 
 a receiver before answer where fraud 
 is clearly proved by affidavit, or 
 where it is shown that imminent 
 danger will ensue unless the prop- 
 erty is taken under the care of the 
 court. Ilugonin v. Basely, 13 Ves. 
 Jr. 105; Middleton v. Dodswell, 13 
 Ves. Jr. 266; Lloyd v. Passingham, 
 16 Ves. Jr. 59; Duckworth v. Traf- 
 ford, 18 Ves. Jr. 283; Scott v. Bech- 
 er, 4 Price, 346. 
 
 And so, where the plaintiff states 
 a clear equitable title. Metcalfe v. 
 Pulvertoft, 1 Ves. & B. 180; Jervis 
 V. White, 6 Ves. Jr. 738 ; Daivson v. 
 Yates, 1 Beav. 301 ; Williamson v. 
 Wilson, 1 Bland, Ch. 422; Blood- 
 good v. Clark, 4 Paige, 577; Micou 
 V. Moses, 72 Ala. 439; Prohasco v. 
 Prohasco, 30 N. J. Eq. 108. 
 
 5
 
 t; 10 
 
 RECEIVERSHIPS— SUPPLEMENT. 
 
 A receiver will not be appointed 
 before answer unless in case of im- 
 pomlinj*' mischief irreparable in case 
 of delay. Ogdcn v. Kip, Johns. 
 Ch. 100; Woudyatt v. Greslcy, 8 Sim. 
 180. 
 
 Pending return of inquisition. 
 
 A receiver of a lunatic's estate 
 may be appointed pending the return 
 of the inquisition. Ifc Kenton, 5 
 Binn. C13. 
 
 Pending judgment on motion for new 
 trial. 
 
 After judgment and before the mo- 
 tion for a new trial the court may 
 appoint a receiver if the defendant is 
 insolvent and is in receipt of large 
 sums of money from the premises. 
 Whitney v. Buckman, 26 Cal. 447 ; 
 Bainbrigge v. Bainbrigge, 3 Eng. L. 
 & Eq. 80. 
 
 Pending a plea to an amended bill. 
 
 The pendency of a plea to an 
 amended bill does not prevent the 
 hearing of a motion for a receiver, 
 wheie the original bill is answered. 
 Thompson v. Selby, 12 Sim. 100. 
 
 On hearing. 
 
 The appointment may be made on 
 hearing. Shee v. Harris, 1 Jones & 
 L. 91. 
 
 At any time. 
 
 Receiver may be appointed at any 
 time when proceedings are pending. 
 People, Fitch, v. Mead, 29 How. Pr. 
 300. 
 
 After appeal. 
 
 Notwithstanding an appeal the 
 court may appoint a receiver of the 
 rents and profits. Button v. Lock- 
 ridge, 27 W. Va. 428. 
 
 And even after appeal perfected. 
 Chicago c6 8. E. R. Co. v. St. Clair, 
 144 Ind. 371; Brinkman v. Ritzin- 
 ger, 82 Ind. 358. 
 
 To deprive the trial court of juris- 
 diction to appoint a receiver upon 
 the ground that an appeal is pend- 
 ing, if the pendency of an appeal de- 
 feats its jurisdiction, it must clearly 
 appear that the case is pending in 
 an appellate court that has juris- 
 diction thereof. Stone v. Stone 
 (Tex. Civ. App.) 43 S. W. 567. 
 
 A judgment of affirmance by an ap- 
 pellate court after a receiver has 
 been appointed for appellant, with- 
 out substituting the receiver as ap- 
 jiellant, is valid and binding where 
 the judgment affirmed was rendered 
 before the receiver was appointed. 
 Steinhauer v. Colmar, 11 Colo. App. 
 494. 
 
 Page 27, sec. 10. — Application for; allegations; who appointed. 
 
 "Notice of. 
 If the purpose is stated in the no- 
 tice for application, the specific 
 grounds of the application need not 
 be stated. Columbia Finance & T. 
 Co. V. Morgan, 19 Ky. L. Rep. 1701, 
 Modified on Rehearing in 19 Ky. L. 
 Rep. 1705, which has Rehearing De- 
 nied in 19 Ky. L.. Rep. 1705. 
 
 In what action. 
 Ind. Code, § 1222, authorizes the 
 
 appointment of a receiver, without 
 regard to the form of action, when- 
 ever justice requires it. Hellebush 
 V. Blake, 119 Ind. 349. 
 
 Under the judicature act of 1873, 
 in England the appointment of a re- 
 ceiver may be made in the original 
 action, and a bill in chancery after 
 judgment is no longer required, 
 though such practice would be prop- 
 er. Smith V. Cowell, L. R. Q. B. 
 Div. 75. 
 
 Page 27. — (a) By whom made. 
 
 The court, at the instance of one 
 to whom a married woman has been 
 ordered to pay, out of her separate 
 6 
 
 estate only, certain costs of a maxi- 
 mum amount, which have not yet 
 been taxed, may appoint a receiver
 
 GENERAL NATURE AND FEATURES OF THE LAW. 
 
 10 
 
 of her interest (not exceeding the 
 maximum) in an estate, as security 
 for the costs, where she has no other 
 separate property out of whicli thej' 
 can be paid. Cummins v. Perkins 
 (C. A.) [1899] 1 Ch. IG, 68 L. J. Ch. 
 N. S. 57. 
 
 Receiver may be appointed on the 
 application of the state. Where a 
 lien on the rents is not given, and the 
 security is not ample, and the mort- 
 gagor is insolvent, a receiver will be 
 appointed, imitate v. Northern C. R. 
 Co. 18 Md. 193; Columbian Athletic 
 Club V. Htate, McMahon, 143 Ind. 98, 
 28 L. R. A. 727. 
 
 A receiver will not be appointed 
 at the instance of an insolvent cor- 
 poration. Hugh v. McRae, Chase 
 Dec. 4GG. 
 
 A receiver will not be appointed 
 on the application of a cestui que 
 trust who has but a small interest 
 in the matter of profits growing out 
 of a contract. Webb v. Van Zandt 
 ( 1863) 16 Abb. Pr. 314, note. 
 
 An application for the appoint- 
 ment of a receiver, although based 
 upon concurrent demands of the 
 parties, cannot be granted under N. 
 Y. Code Civ. Proc. § 713, subd. 1, 
 permitting a receiver before judg- 
 ment, on the application of a party 
 who establishes an apparent right to 
 property in possession of the adverse 
 party, where there is danger of its 
 being lost. Dusenbury v. Dusen- 
 burij, 11 Daly, 112. 
 
 A creditor may apply, notwith- 
 standing X. C. Acts 1891, chap. 155, 
 and K C. Acts 1893, chap. 478. 
 North V. Piedmont Bank. 121 N. C. 
 343. 
 
 Defendants may apply by a cross 
 bill. Russell V. Mohrweil Lumber 
 Co. 102 Ga. 593. 
 
 A creditor or subsequent encum- 
 brancer has no right to a receiver as 
 against a mortgagee in possession. 
 McConnell v. Denham, 72 Iowa, 494. 
 
 The United States may, for the 
 protection or reclamation of public 
 lands, pursue the same equitable 
 remedies, including the appointment 
 of a receiver, that an individual un- 
 der like circumstances may pursue in 
 reference to his own lands, and is en- 
 titled to the .same measure of relief 
 
 which would be extended to him. 
 Steele v. Walker, 115 Ala. 485. 
 
 If made by creditors they must 
 have judgment. Brabrook Tailoring 
 Co, V. Belding Bros. 40 HI. App. 326. 
 
 A receiver will not be appointed on 
 the application of a general creditor. 
 Cahn v. Johnson, 12 Tex. Civ. App. 
 304. 
 
 A receiver will be appointed in a 
 creditors' action where the property 
 sought to be subjected to the pay- 
 ment of the judgment is merchandise 
 in the possession of the insolvent 
 debtor, who has mortgaged it, but 
 reserved from the sale sufficient to 
 defray the running expenses of the 
 business, to replenish stock, to sup- 
 port his family, and to compensate 
 himself. Hirsch v. Isreal, 10(3 Iowa, 
 498. 
 
 A receiver of a corporation may 
 be appointed in a proceeding insti- 
 tuted by a simple-contract creditor, 
 under 111. Rev. Stat. chap. 32, § 25, 
 although the debt is not due. J. V. 
 Nortliam d Co. v. Atherton, 67 111. 
 App. 230. 
 
 Objection to application. 
 
 It is no objection to a motion to 
 appoint, that answer under oath is 
 waived. Root v. Safford, 2 Barb. 
 Ch. 33. 
 
 The proper time for presenting 
 reasons why a receiver should not be 
 appointed is when the application 
 for his appointment is made. Mer- 
 chants' Nat. Bank v. Braithwaite, 7 
 N. D. 358. 
 
 A sheriff who levies an attachment 
 has no right to object to an order ap- 
 pointing a receiver of the property 
 of the attachment defendant, where 
 the attachment plaintiffs consent 
 thereto. Pease v. F. /S'. Waters & 
 Co. m 111. App. 359. 
 
 Bringing fund into court. 
 
 If money in dispute is brought into 
 court a receiver will not be ap- 
 pointed. Curling v. Toionshend, 19 
 Ves. Jr. 628. 
 
 Nor where security is given by de- 
 fendants to satisfy any judgment 
 which may be rendered against 
 them. Conquest v. National Bank, 
 
 7
 
 § 10 
 
 RECEIVERSHIPS— SUPPLEMENT. 
 
 97 Ga. 500; Haigh v. Grattan, 1 
 Beav. 201. 
 
 Application may be renewed token. 
 
 The denial of an application Tor 
 appointment of a receiver does not 
 prevent a second application on the 
 same ground as the first, but on a 
 difl'erent state of facts. Columbia 
 Finance d T. Co. v. Morgan. 19 Ky. 
 L. Rep. 17G1, Modified on Rehearing 
 in 19 Ky. L. Rep. 1765, Which has 
 Rehearing Denied in 19 Ky. L. Rep. 
 17()5; Atty. Gen. v. Galway, 1 
 Molloy, 95; Allen v. Harris, 4 Lea, 
 190. 
 
 The continuance of an application 
 for a receiver, made in vacation, is 
 no bar to an application in term 
 time. McCaskill v. Warren, 58 Ga. 
 286. 
 
 The motion for appointment may 
 be denied with leave to renew, if it 
 does not distinctly appear that the 
 judgment and execution were regu- 
 lar. Bank of Wooster v. Spencer, 
 Clarke Ch. 386. 
 
 A receiver of a corporation will 
 not be appointed on a second appli- 
 cation on proof concerning its in- 
 solvency, which might have been of- 
 fered on the previous application. 
 Ft. Wayne Electric Corp. v. Frank- 
 lin Electric Light Co. (N. J. Eq.) 41 
 Atl. 217. 
 
 An application for appointment in 
 a suit that has been dismissed is not 
 a bar to a second application in an- 
 other suit subsequently brought. 
 Anderson v. Poivell, 44 Iowa, 20. 
 
 Affidavits in support of application. 
 
 Aflidavits may accompany the pe- 
 tition for the appointment of a re- 
 ceiver, vmder Tex. Rev. Stat. 1895, 
 art. 1465, and may be read in sup- 
 port of its allegations, but they can- 
 not serve as pleadings in the case, or 
 enlarge upon the case made by the 
 petition. Welib v. Allen, 15 Tex. 
 Civ. App. 605 ; Bell v. M'Loghin, 
 Flan. & K. 272. 
 
 Upon the hearing of a motion for 
 the appointment of a receiver, affida- 
 vits are properly stricken out as 
 irrelevant, when they are not perti- 
 nent to the issue presented, but relate 
 to an issue already decided. Allen 
 V. Cooley, 53 S. C. 414. 
 
 Prayer for. 
 
 A receiver will not be appointed if 
 not praved for. Barlow v. Gains, 8 
 Beav. 329. 
 
 Absence of legal remedy. 
 
 It sliould appear at the making of 
 the application that no adequate 
 legal remedy exists. Congden v. 
 Lee, 3 Edw. Ch. 304. 
 
 Page 28. — (c) Allegations ; averments. 
 
 The averment in a complaint in 
 an action to set aside a trust deed 
 executed by a corporation, that the 
 property would not bring in the open 
 market more than a specified 
 amount, which is less than the 
 amount of the debt secured, unless 
 an exceptional purchaser should be 
 
 found, is not conclusive against the 
 plaintiff upon the application for 
 the appointment of a receiver to take 
 charge of the property pending the 
 action, that he would have no inter- 
 est therein if the trust deed should be 
 held good. Goshen Woolen Mills Co. 
 V. City Nat. Bank, 150 Ind. 279. 
 
 Page 28. 
 
 -(c) 6. Laches in making application. 
 
 . After forty years' undisturbed 
 possession, the court will not ap- 
 point. Gray v. Chaplin, 2 Russ. Ch. 
 126. 
 
 Reference of, to master. 
 
 On reference to a master on an ap- 
 plication for a receiver, the only 
 8 
 
 question for examination is the re- 
 ceivership question. Copous v. 
 Kauffman, 8 Paige, 583. 
 
 For lohom, appointed. 
 
 A receiver, while the instrument 
 of the court for the conservation of
 
 MATTERS RELATING TO THE APPOINTMENT. 
 
 11 
 
 the estate, in a sense represents all 
 parties in interest, and it is his 
 duty and right to defend it against 
 all claims which he deems unjust. 
 Bosicorth V. Terminal R. Asso. 53 U. 
 S. App. 302, 80 Fed. Rep. 969, 26 C. 
 C. A. 279. 
 
 A receiver is appointed not only 
 for plaintiff, but also for the benefit 
 of all persons who may establish 
 rights in the case. First Nat. Bank 
 V. Barnum Wire & Iron Works, 60 
 Mich. 487. 
 
 A receiver appointed under the act 
 of Congress of March 3, 1887, repre- 
 sents not only the corporation, but 
 also the government and all who 
 have interests in the property. 
 United States v. Church of Jesus 
 Christ of L. D. S. 5 Utah, .538. 
 
 The receiver of an insolvent life in- 
 surance company is the trustee of 
 and represents the creditors and all 
 interested in the fund, including pol- 
 icy holders, and is not the represen- 
 tative of the latter to the exclusion 
 of the corporation. Mason v. Henry, 
 152 N. Y. 529. 
 
 Ordinarily the receiver is the 
 agent of the mortgagor, but not so 
 where other trusts are involved. Jef- 
 freys V. Dickson, L. R. 1 Ch. 183. 
 
 A receiver is not the representa- 
 tive of the owner in regard to the 
 fulfilment of his contracts, except 
 such as he adopts. Broicn v. War- 
 ren, 78 Tex. 543, 11 L. R. A. 394. 
 
 Must be assets. 
 
 A receiver will not be appointed 
 where the existing mortgages will 
 consume all the property. Collins 
 V. Myers, 68 Ga. 530. 
 
 Where there are no assets of a 
 building and loan association for dis- 
 tribution; a receiver will not be ap- 
 pointed. Barton v. Enterprise Loan 
 & Bldg. Asso. 114 Ind. 226. 
 
 Where it appears that a receiver 
 will be useless the court will not ap- 
 
 point. Mercantile Invest. & G. 
 Trust Co. V. River Platte Trust, L. 
 & A. Co. [1892] 2 Ch. 303; Barton v. 
 Enterprise Loan & Bldg. Asso. 114 
 Ind. 226. 
 
 A receiver will not be appointed 
 after judgment debtor has become a 
 bankrupt. Ryan v. Lefroy, 3 Ir. Ch. 
 Rep. 351. 
 
 When title in dispute. 
 
 The court is slow to appoint a re- 
 ceiver of real estate where the legal 
 title is in controversy, and one of the 
 parties is in the peaceable posses- 
 sion under claim of right. This 
 rule, however, does not apply where 
 the property is already in the pos- 
 session of a receiver, and a third 
 party claiming adversely to the oth- 
 ers asks to have the receivership con- 
 tinued. State V. Allen, 1 Tenn. Ch. 
 512. 
 
 A preliminary injunction or re- 
 ceivership will not be granted upon 
 the ground that the complainant is 
 the owner of the property and busi- 
 ness sought to be reached in the ac- 
 tion, the legal title of which is in de- 
 fendant, where the facts set up in the 
 answer and affidavits amount to a 
 denial of such ownership, and the 
 case is not within any of the excep- 
 tions to the general rule denying 
 such relief under such circum- 
 stances. Guild V. Meyer, 56 N. J. 
 Eq. 183. 
 
 A receiver will be apjDointed in an 
 action involving the title and right 
 to possession of real property, where 
 the complainants have a good equi- 
 table title to the land and in equity 
 the right to its immediate posses- 
 sion, although the naked legal title is 
 outstanding, and it appears that the 
 defendants in possession are insolv- 
 ent and are destroying the timber on 
 the land. Smith v. Lusk (Ala.) 24 
 So. 256. 
 
 Page 32, sec. 11. — Scope of bill or petition. 
 
 In the appointment the court acts 
 only on well-established principles, 
 and in that sense only can a receiver 
 be said to be ex debito justitiw, 
 whether the application be by a 
 
 judgment creditor or anyone else. 
 The court acts only on a proper case 
 made out. Smith v. Post Dover & 
 L. H. R. Co. 12 Ont. App. Rep. 288. 
 A receiver will be granted without
 
 §§ 12, 13 
 
 RECEIVERSHIPS— SUPPLEMENT. 
 
 costs where the grounds are doubt- 
 ful. Shepherd v. Murdoch, 2 Mol- 
 loy. 531. 
 
 Jn Mood V. Gaynor, 1 Ambl. 395, 
 the court refused to appoint because 
 there was no precedent for such ac- 
 tion. 
 
 Tlie <;oneral rule is that a receiver 
 is appointed only in clear cases when 
 
 no adequate remedy at law exists. 
 Tumlin V. Vanhorn, 77 Ga. 315. 
 
 In the appointment the court may 
 impose conditions as to the payment 
 of claims, and order that they be paid 
 out of the earnings of the property. 
 United States Trust Co. v. ^ew 
 York W. S. d B. R. Co. 25 Fed. Rep. 
 800. 
 
 Page 33, sec. 12. — Time when appointed. 
 
 Where the debtor died after appli- 
 cation for a receiver, and two days 
 after, without reviving the action or 
 
 bringing in the heirs, the receiver 
 was appointed, held to be error. Re 
 Shcphard, L. R. 43 Ch. Div. 131. 
 
 Page 33. — (b) Existence of property not prerequisite. 
 
 That the debtor does not appear 
 to have property is no ground for 
 refusal to ap])oint; but where it ap- 
 pears that the only property is a 
 trust fund under a devise which the 
 debtor is willing to apply upon the 
 demand, the appointment will be re- 
 fused. De Camp v. Dempsey, 10 N. 
 Y. Civ. Proc. Rep. 210. 
 
 The answer in a creditors' bill, 
 
 that defendant has not property to 
 the amount of $100, is not a suffi- 
 cient reason for refusing to appoint 
 a receiver. Fuller v. Taylor, N. J. 
 Eq. 301 ; Fitzhugh v. Fveringham, 6 
 Paige, 29. 
 
 That there is no other property 
 than an equity of redemption is not a 
 defense. Bailey v. Lane, 15 Abb. 
 Pr. 373, note. 
 
 Page 35, sec. 13. — Must be a suit pending. 
 
 An order appointing a receiver 
 where no suit is pending concerning 
 the property of which he is put in 
 charge is void. Merchants' & Mfrs. 
 Nat. Bank v. Kent Circuit Judge, 43 
 Mich. 292 ; Eoc parte Mountfort, 15 
 Ves. Jr. 445; Re Hancock, 27 Hun, 
 575. 
 
 The filing of the petition in an ac- 
 tion between partners is a prerequi- 
 site to the appointment of a receiver 
 by the district court, under Tex. Rev. 
 Stat. 1895, art. 14(55. Wehh v. Al- 
 len, 15 Tex. Civ. App. 506. 
 
 A cause cannot be pending, within 
 Ohio Rev. Stat. § 5587, so as to au- 
 thorize the appointment of a re- 
 ceiver, before it has been commenced 
 as provided in § 5035 ; and the ap- 
 pointment of a receiver in a cause 
 where a petition has been filed, but 
 before a summons has been issued, 
 is invalid. Dwelle v. Hinde, 8 Ohio 
 10 
 
 C. D. 177 ; Barher Bros. v. Manier, 
 
 71 Miss. 725; Hardy v. McClellan, 
 53 Miss. 507 ; Guy v. Doak, 47 Kan. 
 236. 
 
 A receiver will not be appointed 
 on a petition, but only on a bill, — 
 when. Rice v. Tonnele, 4 Sandf. Ch. 
 568. 
 
 An action may be pending, so that 
 the court may appoint a receiver, 
 though the notice or service was de- 
 fective. Hellcbush v. Blake, 119 
 Ind. 349. 
 
 A motion for the appointment, 
 where the order to show cause 
 against the appointment is served 
 before the commencement of the 
 suit, is irregular. Kattenstroth v. 
 Astor Bank, 2 Duer, 632. 
 
 A receiver cannot be appointed 
 preliminary to the commencement of 
 suit, and without notice such ap- 
 pointment is void. Jones v. Schall,
 
 MATTERS RELATING TO THE APPOINTMENT. 
 
 § 15 
 
 45 Mich. 379; Merchants' d Mfrs. 
 Nat. Bank v. Kent Circuit Judge, 43 
 Mich. 292. 
 
 An agreement to receive property 
 in part payment of a judgment, and 
 an indorsed note for the balance, 
 does not prevent the filing of a cred- 
 itors' bill and the appointment of a 
 receiver. Balde v. Smith, 5 Ch. Sent. 
 11. 
 
 What court may appoint. 
 
 The better practice in an applica- 
 tion for a receiver after an appeal 
 has been taken in the supreme court 
 is to apply to the court of original 
 jurisdiction. Coleman v. Fisher 
 (Ark.) 48 S. W. 807. 
 
 In Alabama, on appeal from the 
 register the question comes before 
 
 the chancellor as an original peti- 
 tion, and lie may hear other evidence. 
 Efoivali Min. Co. v. Wills Valley 
 Min. c6 3Ifg. Co. 106 Ala. 492. 
 
 An application for the appoint- 
 ment of a receiver in supplementary 
 proceedings must be made to the 
 judge who granted the order of ref- 
 erence and appointed the referee. 
 Ball V. Goodenough, 37 How. Pr. 
 479. 
 
 Ordinarily a motion under the 
 North Carolina Code for the appoint- 
 ment of a receiver for a corporation 
 must, at the option of the mover, 
 be made before the resident judge of 
 the district, or one assigned to the 
 district, or holding the courts there- 
 of by exchange. Worth v. Piedmont 
 Bank, 121 N. C. 343. 
 
 Page 37, sec. 15. — Grounds upon which jurisdiction is entertained. 
 
 A receiver will not be appointed if 
 any other remedy will afi'ord ample 
 protection. Etoivah Min. Co. v. 
 Wills Valley Min. & Mfg. Co. 106 
 Ala. 492. 
 
 If made under statutory power it 
 is with great caution. Brabrook 
 Tailoring Co. v. Belding Bros. 40 
 111. App. 326. 
 
 Where a city which is a stock- 
 holder in a corporation is competent 
 to prosecute all actions against it, 
 and there are no funds to take charge 
 of, the appointment is void and 
 should not be made. Burnes v. 
 Atchison, 48 Kan. 507. 
 
 To justify the appointment it 
 must appear that the possession of 
 defendant was obtained by fraud, or 
 that the income is in danger of loss 
 from neglect, waste, or misconduct. 
 Gilhert v. Block, 51 111. App. 516. 
 
 Courts do not appoint receivers as 
 a punishment for past dereliction or 
 because of past dangers. In pass- 
 ing upon the appointment of a re- 
 ceiver for a solvent, prosperous cor- 
 poration, something more must be 
 shown than past misconduct. Orig- 
 inal Vienna Bakery, C. & N. Co. v. 
 Eeissler, 50 111. App. 406. 
 
 The appointment of a receiver for 
 a railroad will not be made merely 
 for default in payment of interest. 
 
 Loss must be shown. Union Trust 
 Co. V. St. Louis, I. M. £ S. R. Co. 4 
 Dill. 114; Buffalo Chemical Works 
 V. Bank of Commerce, 79 Hun, 93; 
 Drought v. Perceval, 2 Molloy, 502. 
 
 A partner who upon dissolution 
 leaves assets with his copartner to 
 be applied to the payment of firm 
 debts, which the latter assumes, is 
 entitled to the appointment of a re- 
 ceiver to prevent waste and misap- 
 plication of the assets by the copart- 
 ner. Allen V. Coolcy, 53 S. C. 414. 
 
 A receiver should not be appointed 
 of a fund in the hands of the sheriff, 
 on which a lien is claimed, unless 
 it appears, as required by Ky. Civ. 
 Code, § 298, that there is danger of 
 its loss or removal. Combs v. 
 Breatldtt County, 20 Ky. L. Rep. 
 1247. 
 
 A receiver may be appointed in a 
 suit by a judgment creditor, over 
 stock standing in the name of the 
 debtor's wife, where there is reason- 
 able ground to apprehend that it will 
 be removed beyond the jurisdiction 
 of the court, or will be lost. State 
 Bank v. Gill, 23 Hun, 410. 
 
 But the appointment is never in 
 anticipation of something that may 
 happen. Chadron Bkg. Co. v. Ma- 
 honey, 43 Neb. 214. 
 
 A receiver pendente lite will not 
 
 11
 
 § 15 
 
 RECEIVERSHIjt»S— SUPPLEMENT. 
 
 be appointed in an action to recover 
 possession of real property, where 
 plaintiff's title is piit in issue, in the 
 absence of some special circum- 
 stances rendering such an appoint- 
 ment necessary to preserve plaintiir's 
 rights. Sengfclder v. Hill, IG Wash. 
 355. 
 
 The power to appoint a receiver of 
 a corporation will not be exercised 
 except upon a grave necessity and a 
 clear showing that the applicant has 
 otherwise no adequate remedy, and 
 is in danger of suffering irreparable 
 loss. People's Invest. Co. v. Craw- 
 ford (Tex. Civ. App.) 45 S. W. 738. 
 
 Nor because an ollicer is in a posi- 
 tion to betray it, where there is no 
 evidence to establish any probability 
 that he will so act. Young v. Rutan, 
 69 111. App. 513; Dozier v. Logan, 
 101 Ga. 173; Boston Invest. Co. v. 
 Pacific Short-Line Bridge Co. 104 
 Iowa, 311. 
 
 A receiver should not be appointed 
 on the ground that a corporation is 
 insolvent or in imminent danger of 
 insolvency, when its assets are three 
 times its stated indebtedness, and it 
 is not shown that it is attempting 
 fraudulently to dispose of its prop- 
 erty. Miller v. Southern Land <& 
 Lumber Co. 53 S. C. 364. 
 
 A receiver of property conveyed 
 by an insolvent partnership to one 
 of the firm creditors at an overvalua- 
 tion, to hinder and defeat other 
 creditors, should not be appointed ab- 
 solutely without giving the pur- 
 chasers the alternative of giving 
 bond and security, where they are 
 not alleged to be insolvent, and the 
 property consists of a sawmill and 
 fixtures and a large number of ani- 
 mals used therewith, the care of 
 which would be a great expense to a 
 receiver. Stillwcll v. Savannah 
 Grocery Co. 88 Ga. 100. 
 
 The appointment of a receiver is 
 a common practice in case of the 
 mortgage of tolls or income. Rug- 
 gles v. Southern Minnesota R. Co. 5 
 Chicago Legal News, 110, 17 Int. 
 Rev. Rec. 29; Potts v. Warwick d 
 B. Canal Nav. Co. 1 Kay, 142, 143; 
 Tripj) v. Chard R. Co. 11 Hare, 249, 
 17 Jur. 887 ; Dumville v. Ashbrooke, 
 3 Russ. Ch. 98; Imperial Mercantile 
 12 
 
 Credit Asso. v. Newry & A. R. Co. 
 Ir. Rep. 2 Eq. 1 ; Knapp v. Williams, 
 4 Ves. Jr. 430, note a; Crewe v. 
 Edleston, 1 De G. & J. 93. 
 
 A judgment creditor of a railroad 
 company, to whom the company's 
 lands have been delivered under a 
 writ of elegit, is entitled to a re- 
 ceiver of the tolls and earnings. 
 Kingston v. Cambridge R. Co. 41 L. 
 J. Ch. N. S. 152. 
 
 The appointment of a receiver for 
 ' the purpose of preserving the future 
 rents of real property, to abide the 
 result of an action concerning the 
 same, is not authorized where the ac- 
 tion proceeds on the assumed owner- 
 ship by plaintiff of the land and the 
 profits thereof, and involves merely 
 legal, as distinguished from equi- 
 table, rights. San Jose Safe Deposit 
 Bank of Savings v. Bank of Madera, 
 121 Cal. 543. 
 
 A receiver may be appointed un- 
 der § 24 of the garnishment act of 
 Illinois. Myres v. Frankenthal, 55 
 111. App. 390. 
 
 A receiver of corporate stock 
 pledged to secure a debt which is past 
 due may be appointed in proceedings 
 in aid of a garnishment against the 
 pledgee, with the garnishee's con- 
 sent, to sell the stock for payment 
 of the amount due the pledgee and 
 to impound the surplus to await the 
 result of the original action against 
 the debtor, where the latter is in- 
 solvent. Kimbrough v. J. K. Orr 
 Shoe Co. 98 Ga. 537. 
 
 The court will refuse to appoint 
 a receiver pending a plea to the ju- 
 risdiction, but may order an im- 
 mediate hearing on the plea. Ewing 
 v. Blight, 3 Wall. Jr. 139. 
 
 Nor will a receiver of the prop- 
 erty of a railroad in Florida be ap- 
 pointed in a suit in New York. Kit- 
 tel v. Augusta, T. & G. R. Co. 78 
 Fed. Rep. 855. 
 
 The power to remove a receiver 
 and appoint another does not depend 
 on notice to the stockholders. Hoyt 
 V. Continental Ins. Co. 21 N. Y. 
 Week. Dig. 145. 
 
 An appointment may be made and 
 an early sale of the property or- 
 dered, to save forfeiture of the fran- 
 chises of a corporation. Boston In-
 
 MATTERS RELATING TO THE APPOINTMENT. §g 16, 17 
 
 vest. Co. V. Pacific Short-Line Bridge 
 Co. 104 Iowa, 311. 
 
 On application of the seller of 
 goods in an action to rescind a sale 
 for fraud, the court may appoint a 
 receiver, where the goods are in the 
 hands of a sheriff, to secure the pay- 
 ment of mortgages, and this, though 
 the mortgagees are solvent. Ex- 
 change Batik V. U. B. Claflin Co. 100 
 Ga. G40. 
 
 The court will not appoint a re- 
 ceiver of a partnership in supplemen- 
 tal proceedings against the firm, 
 when a receiver has already been ap- 
 pointed in an action to dissolve the 
 firm, where the former proceedings 
 are bona fide. Price v. Price, 2,1 
 App. Div. 597. 
 
 That mandamus will lie to compel 
 a cemetery company to repair princi- 
 pal approach to cemetery grounds 
 will not prevent the appointment of 
 a receiver to accomplish such object, 
 where the duty to repair is clear and 
 the latter method will be more ex- 
 peditious. Houston Cemetery Co. v. 
 Drew, 13 Tex. Civ. App. 530. 
 
 As a condition of the appointment 
 
 the court in a foreclosure proceeding 
 may order the receiver to pay such 
 outstanding debts for labor, supplies, 
 equipments, and permanent improve- 
 ments as are reasonable. Central 
 Trust Co. V. Vtah C. R. Co. 16 Utah, 
 12. 
 
 In the absence of a cause of action 
 entitling the plaintiff to recover, the 
 court will not appoint a receiver an- 
 cillary to a stockholder's suit. 
 Peoples' Invest. Co. v. Crawford 
 (Tex. Civ. App.) 45 S. W. 738. 
 
 A court has no power to appoint 
 a receiver of property out of its ju- 
 risdiction. Baltimore Bldg. <& Loan 
 Asso. V. Alderson, 99 Fed. Rep. 142, 
 32 C. C. A. 542. 
 
 Where the mortgage provides for 
 the appointment upon the com- 
 mencement of an action to foreclose, 
 without regard to the solvency or in- 
 solvency of the mortgagor or the 
 value of the premises, and without 
 notice, and it appears that the water 
 taxes and insurance are unpaid, as 
 well as the principal and interest, 
 a receiver will be appointed. Fletch- 
 er V. Erupp, 35 App. Div. 586. 
 
 Page 45, sec. 16. — When jurisdiction not entertained. 
 
 The court will not by mandamus 
 compel the governor to appoint a re- 
 ceiver to collect taxes. League v. 
 
 Brownsville Taxing Dist. 29 
 Rep. 742, 752. 
 
 Fed. 
 
 Page 45, sec. 17. — Effects of appointment. 
 
 (a) Settlement of disputes as to title. 
 
 In an action where two parties 
 claim possession and are interfer- 
 ing with each other, appointment is 
 proper. Hlawacek v. Bohman, 51 
 Wis. 92; Corbin v. Thompson, 141 
 Ind. 128. 
 
 The appointment of a receiver in 
 the case of a disputed title to real 
 property is in the judicial discretion 
 of the court, and will be made before 
 judgment in a proper case, although 
 there is a tenant in possession to re- 
 ceive the rents. Foxwell v. Van 
 Grutten, 75 L. T. N. S. 311. 
 
 The court since tlie passage of the 
 
 English judicature act 1873, § 25, 
 subs. 8, has jurisdiction to appoint 
 a receiver in the case of a disputed 
 title to real property. Ibid. 
 
 Appointment where title involved 
 and the party in possession is com- 
 mitting waste. Collins v. Richart, 
 14 Bush, 621. 
 
 A receiver may be appointed 
 against the legal title, in a clear case. 
 Lloyd V. Passingham, 16 Ves. Jr. 59. 
 
 Where upon answer there is a 
 strong presumption against the de- 
 fendant's title, a receiver will be 
 granted. Stitioell v. Williams, 6 
 
 13
 
 § 17 
 
 RECEIVERSHIPS— SUPPLEMENT. 
 
 3IadcI. & G. 49, Same case on appeal, 
 Jac. 280. 
 
 Places property in custodia legis. 
 
 Money or property in the receiv- 
 ers' hands is in custodia legis. De- 
 luny V. Mansfield, 1 Hogan, 234. 
 
 But an order that a receiver shall 
 be appointed to take charge of goods 
 does not place such goods in custodia 
 leqis. Dutcher v. Culver, 24 Minn. 
 584. 
 
 Page 51. — (f) Leaves the riglils of all parties in statu quu. 
 
 The mere appointment determines 
 no right existinii; at the time. Chase's 
 Case, 1 Bland Ch. 20(). 
 
 The appointment of a receiver does 
 not determine the rights existing, or 
 alTect the liens attaching to the prop- 
 erty over which the receivership ex- 
 tends, — such as the lien of attorneys 
 for services performed for a corpo- 
 poration. Re Montgomery (N. J. 
 Eq.) 30 Chicago Legal News, 237; 
 Bennett v. Complete Electric Constr. 
 Co. 8 App. Div. 301 ; Loivenberg v. 
 Jeff cries, 74 Fed. Rep. 385; Hays v. 
 Lycoming F. Ins. Co. 99 Pa. 621. 
 
 But it has been held that the dis- 
 
 solution of a corporation and the ap- 
 pointment of a receiver dissolve at- 
 tachments pending. Wilcox v. Con- 
 tinental L. Ins. Co. 50 Conn. 408. 
 
 And does not disable tlie corpora- 
 tion from moving to vacate the at- 
 tachment against property. Waver- 
 ly Co. V. Worthington Co. 4 Misc. 
 447. 
 
 The lien of an execution is unaf- 
 fected. Re Muehlfeld cG H. Piano 
 Co. 12 App. Div. 492. 
 
 And so with the lien of encum- 
 brances. Bryant v. Bull, L. R. 10 
 Ch. Div. 153. 
 
 Page 52. — (g) Presumption of appointment. 
 
 There is no presumption that re- 
 ceivers were appointed from the fact 
 that they have acted. This presump- 
 
 tion only applies to public officers. 
 International cC- G. A^. R. Co. v. Moore 
 (Tex. Civ. App.) 32 S. W. 379. 
 
 Page 53. — (li) Over what property. 
 
 If the appointment of a receiver 
 to take possession of the property of 
 a natural person upon the complaint 
 of the holder of matured chattel 
 mortgages were proper in any case, 
 it could only be for the property cov- 
 ered by the mortgage, and could not 
 include other property. State v. 
 Union Nat. Bank, 145 Ind. 537. 
 
 The appointment of a receiver in 
 an action to foreclose a mortgage 
 which does not purport to cover 
 rents, issues, or profits does not cre- 
 ate a lien upon a growing crop, un- 
 der Cal. Code Civ. Proc. § 564, subd. 
 2. Locke V. Klunker, 123 Cal. 231; 
 FAlis V. Vernon Ice, L. & W. Co. 86 
 Tex. 109; Georgia v. Atlantic & G. 
 R. Co. 3 Woods, 434; Roxbury v. The 
 14 
 
 Lotta. 05 Fed. Rep. 319: J .W. Dann 
 Mfg. Co. V. Parkhurst, 125 Ind. 317; 
 Arnold v. Wcimer, 40 Neb. 216; Van 
 Wagoner v. Paterson Gaslight Co. 23 
 N. J. L. 283. 
 
 A lien on funds is followed into 
 the hands of a receiver, — as, where 
 a dividend has been declared and set 
 apart for stockholders. Re Le Blanc, 
 14 Ilun, 8. 
 
 By adjudication of insolvency and 
 the appointmenl of a receiver, the 
 debts of creditors at large are fas- 
 tened on its property. Graham But- 
 ton Co. V. tSpielmann, 50 N. J. Eq. 
 120. 
 
 The duty to repair a section of a 
 turnpike road in a receiver's hands 
 will be shifted from the owner to the
 
 MATTERS RELATING TO THE APPOINTMENT. 
 
 § 17 
 
 receiver by a decree placing- a por- 
 tion of tlie road in the hands of a re- 
 ceiver, and directing him to collect 
 the tolls. Lock v. Franklin & H. 
 Turnpk. Co. 100 Tenn. 163. 
 
 The equitable rights of parties. 
 
 The receiver takes the property 
 subject to the equity of a mortga- 
 gee to have the mortgage reformed so 
 as to include all the property in- 
 tended, though the mortgage may be 
 invalid because not recorded. Ryder 
 v. Ryder, 19 R. I. 188. 
 
 The equity of § 3009, Ga. Code, ap- 
 plies to the taking possession of 
 property by a receiver under the or- 
 der of court, as well as the levy of 
 an execution. Georgia, v. Atlantic 
 tG G. R. Co. 3 Woods, 434. 
 
 The mere filing of a bill and serv- 
 ice of process do not prevent a rail- 
 road company from surrendering 
 steel rails on its right of way but 
 not attached to the road. Illinois 
 Steel Co. V. Putnam, 30 U. S. App. 
 358, 08 Fed. Rep. 515, 15 C. C. A. 
 556. 
 
 Gives plaintiff a lien. 
 
 The filing of a creditors' bill and 
 appointment of a receiver gave plain- 
 tifl's a lien on the debtor's property 
 prior to a subsequent bill against the 
 lessee debtor, though the specific 
 property was not mentioned in the 
 first. Sicift's Iron tC- Steel Works 
 v. Johnson, 20 Fed. Rep. 828. 
 
 Prevents creditors from prosecuting 
 suits icithout leave of court. 
 
 First Nat. Bank v. Dovetail Body 
 c6 Gear Co. 143 Ind. 534; National 
 State Bank v. Vigo County Nat. 
 Bank, 141 Md. 352; Ellis v. Vernon 
 lee, L. & W. Co. 80 Tex. 109. 
 
 Does not abate suits pending. 
 
 Toledo, W. & W. R. Co. v. Begqs, 
 85 111. 80, 28 Am. Rep. 013; Kitt- 
 rcdgc v. Osgood, 101 Mass. 384. 
 
 A claim against a receiver may be 
 reduced to judgment in a suit pond- 
 ing when appointment is made. Pine 
 Lake Iron Co. v. La Fayette Car 
 Works, 53 Fed. Rep. 853. 
 
 The fact that a railroad has gone 
 into the hands of a receiver is not 
 
 an abatement of mandamus proceed- 
 ings. People V. Barnett, 91 111. 422. 
 
 Notice of appointment, effect of. 
 
 The appointment of a receiver is 
 notice tq all parties to the cause, 
 but is not notice to tenants who are 
 not parties. As to such it is only 
 notice from the time the order is 
 served. Uensworth v. Maunsell, 1 
 Ilogan, 170. 
 
 An agent of an insurance com- 
 pany, authorized to surrender pol- 
 icies and return the unearned pre- 
 miums to policy holders upon ten 
 days' notice in writing, is not en- 
 titled to do so after learning of the 
 insolvency of the insurance com- 
 pany and the intention to apply for 
 the appointment of a receiver. 
 American Casualty Ins. c6 S. Co. v. 
 Arrott, 180 Pa. I. 
 
 Effect of, as to injunction. 
 
 An injunction against a corpora- 
 tion is binding on its receiver sub- 
 sequently appointed. Steel v. Gor- 
 don, 14 Wash. 521. 
 
 And it is the duty of a receiver to 
 see that the injunction is obeyed. 
 Stafford v. People, 85 111. 558. 
 
 Effect as to statute of limitations. 
 
 The appointment of a receiver does 
 not set in motion the statute of lim- 
 itations. Riddle V. First Nat. Bank, 
 27 Fed. Rep. 503; Harrison v. Dig- 
 nan, 1 Connor & L. 370. 
 
 Effect as to specific performance. 
 
 Specific performance of a contract 
 to lease the joint use of part of the 
 track of a railroad is not prevented 
 by the fact that receivers have been 
 appointed of such road, where it does 
 not appear that specific performance 
 will cast a burden upon the track 
 property, injurious or prejudicial to 
 the interests of those interested 
 therein. Chicago, B. & Q. R. Co. v. 
 Union P. R. Co. 74 Fed. Rep. 989, 
 
 Effect as to corporations. 
 
 The mere appointment of a re- 
 ceiver of an insurance company, and 
 partial assumption and control of its 
 affairs, are not a judicial recogni- 
 tion of the due incorporation of tlie 
 
 15
 
 § 18 
 
 RECEIVERSHIPS— SUPPLEMENT. 
 
 company. People v. Van Rensse- 
 laer his. Co. 38 Barb. 323. 
 
 The mere appointment of a re- 
 ceiver does not work a dissolution of 
 a corporation. Stcinhauer v. Vol- 
 niar, 11 Colo. App. 494; Del Valle v. 
 Navarro, 21 Abb. N. C. 136. 
 
 Or destroy the corporate entity. 
 Second Xat. Batik v. New York 8ilk 
 Mfg. Co. 11 Fed. Rep. 532. 
 
 Or take from it the exercise of the 
 corporate franchises. Notwithstand- 
 ing the receivership the corpora- 
 tion may still exercise its franchises, 
 if in so doing the receiver is not in- 
 terfered with. Ohio d- M. K. Co. v. 
 Russell, 115 111. 52; Auburn Button 
 Co. V. kylvcster, (58 Hun, 401. 
 
 And the sale of property by a re- 
 ceiver does not prohibit stockhold- 
 ers from electing directors. State, 
 Atty. Gen., v. Merchant, 37 Ohio St. 
 251. 
 
 Receivers of corporations are not 
 purchasers for valuable considera- 
 tion, but are voluntary assignees 
 and personal representatives of the 
 company. Van Wagoner v. Pater- 
 son Gaslight Co. 23 N. J. L. 283. 
 
 An order of a court having juris- 
 diction, appointing a general receiv- 
 er of a corporation for the purpose 
 of liquidation, is an adjudication 
 which operates as a sequestration of 
 the property, — especially when it is 
 plain that such is the intention and 
 scope of the order. Temple v. Glas- 
 gow, 42 U. S. App. 417, 80 Fed. Rep. 
 441, 25 C. C. A. 540. 
 
 Suits by and against. 
 
 An act repealing a charter and ap- 
 pointing receivers incapacitates the 
 corporation from suing or being 
 sued. Whitman v. Cox, 26 Me. 335. 
 
 The effect of a general receivership 
 of a corporation, accompanied by an 
 injunction restraining its officers 
 and agents from exercising any con- 
 trol over its property or books, or 
 from interfering with the control of 
 the receivers, and enjoining any suits 
 
 against the corporation, — precludes 
 creditors from prosecuting claims tn 
 judgment without leave of the court. 
 Temple v. Glasgow, 42 U. S. App. 
 417, 80 Fed. Rep. 441, 25 C. C. A. 
 540. 
 
 Except in rare cases, stockholders 
 cannot intervene where the corpora- 
 tion is dissolved and a receiver is ap- 
 pointed. People v. Cataract Bank, 
 5 Misc. 14. 
 
 The appointment of a receiver for 
 a national bank does not preclude a 
 stockholder from maintaining an ac- 
 tion against the directors for their 
 fraud or negligence in allowing the 
 publication of a false statement of 
 the condition of tlie bank, by which 
 the plaintiff was induced to purchase 
 his stocI<. Houston v. Thornton, 
 122 N. C. 365. 
 
 Discharges officers and servants of 
 corporation. 
 
 The order of court appointing a 
 receiver and manager of a railroad 
 company has the effect of a notice 
 discharging the company's officers 
 and servants. Rcid v. Explosives 
 Co. 56 L. J. Q. B. N. S. 08 ; Rochester 
 V. Bronson, 41 How. Pr. 78, 82. 
 
 Terminates stockholders' liability, 
 when. 
 
 The appointment of a receiver for 
 a building and loan association ter- 
 minates the liability of stockholders 
 for monthly dues. Buist v. Bryan, 
 4:4. S. C. 121, 29 L. R. A. 127. 
 
 Makes funds of bank trust fund. 
 
 Riddle v. First Nat. Bank, 27 Fed. 
 Rep. 503. 
 
 Disables corporation from assigning. 
 
 After a receiver has been ordered 
 an insolvent corporation has no right 
 to assign portions of its rent and 
 personal estate. It would be a fraud 
 upon the process and proceedings of 
 the court. Leavitt v. Tylee, 1 Sandf. 
 Ch. 207. 
 
 Page 54, sec. 18. — Courts exercising jurisdiction. 
 
 For the provisions of N. C. Code, 
 §§ 338, 339, enlarging jurisdiction 
 in the appointment of receivers, see 
 16 
 
 John L. Loper Lumber Co. v. Wal- 
 lace, 93 N. C. 22. 
 
 Prior to April 26, 1893, the court
 
 MATTERS RELATING TO THE APPOINTMENT. 
 
 18 
 
 of common pleas of Pennsylvania 
 had no jurisdiction to appoint re- 
 ceivers. Fraternal Guardian's As- 
 signed Estate, 159 Pa. G03. 
 
 The English judicature act 1873, 
 § 25, subs. 8, enables any judge of 
 the high court to appoint a receiver 
 of a decedent's estate, notwithstand- 
 ing the absence of lis jjendens ; but 
 applications for such order, being on 
 the way to probate proceedings, are 
 properly made in the probate divi- 
 sion, and, if made elsewhere, will not 
 be encouraged. Bearing v. Brooks, 
 54 L. J. Ch. N. S. 694. 
 
 The appointment of a receiver of 
 a natural person at the instance of 
 a creditor, not in an auxiliary pro- 
 ceeding, but upon a complaint in 
 which the appointment is tlie sole re- 
 lief sought, is not authorized by the 
 practice under the common law or 
 by the Indiana statutes. State v. 
 Union 'Nat. Bank, 145 Ind. 537. 
 
 Circuit courts are authorized by 
 W. Va. Code, chap. 53, §§ 58, 59, in 
 proper cases therein set forth, to ap- 
 point receivers for and wind up the 
 affairs of foreign corporations which 
 have done business, acquired prop- 
 erty, and contracted debts in the 
 state. Swing v. Bentley <& G. Fur- 
 niture Co. (W. Va.) 31 S. E. 925. 
 
 The jurisdiction conferred upon 
 the circuit court by Mo. Rev. Stat. 
 1889, §§ 2790-2792, to appoint re- 
 ceivers for business corporations at 
 the instance of creditors in certain 
 cases, may be exercised by the judge 
 in vacation, in view of § 2792, pro- 
 viding that the jurisdiction is to be 
 "exercised as in ordinary cases." 
 Glover v. .S'^ Louis Mut. Bond In- 
 vest. Co. 138 Mo. 408. 
 
 The previous execution of an as- 
 signment for creditors by a corpora- 
 tion does not defeat the jurisdiction 
 of the court, under the Texas stat- 
 ute, to appoint a receiver for an in- 
 solvent corporation. Milam Comity 
 Co-Op. Cotton & M. Alliance v. Ten- 
 nerit Stribling Shoe Co. (Tex. Civ. 
 App.) 40 S. W. 331, Rehearing De- 
 nied in 40 S. W. 1027. 
 
 N. C. Rev. Code, chap. 26, §§ 5. 6, 
 oust the former equity jurisdiction 
 to appoint receivers at the instiince 
 of creditors. The statutory remedy 
 
 is exclusive. Von Glahn v. Do Ros- 
 set, 81 N. C. 467. 
 
 State courts have jurisdictions of 
 actions against receivers of the Fed- 
 eral court. Schonberg v. Coioen, 7 
 Ohio Dec. 522. 
 
 The jurisdiction of a state court 
 which has appointed a railroad re- 
 ceiver, to direct him as to the wages 
 to be paid for operating the road 
 within that state, is not defeated by 
 the fact that the employees in oper- 
 ating the road cross the state bound- 
 ary and incidentally perform some 
 services in another state, although 
 the receivership is ancillary to a re- 
 ceivership in such other state. Guar- 
 antee Trust d S. D. Co. v. Philadel- 
 phia, K. d N. E. R. Co. 69 Conn. 709, 
 38 L. R. A. 804. 
 
 A receiver in a Federal court, who 
 voluntarily goes into a state court, 
 cannot question the right of that 
 court to determine the controversy 
 between himself and the other partv. 
 Grant v. Buckner, 172 U. S. 232, 43 
 L. ed. 430. 
 
 A state court has jurisdiction of 
 an action against a purchaser of a 
 railroad under a mortgage fore- 
 closure to recover for personal in- 
 juries sustained in the collision of 
 two trains while the road was being 
 operated by receivers appointed by 
 the United States circuit court, 
 where the decree of that court di- 
 recting foreclosure of the railroad 
 required the purchaser as a part of 
 the purchase price, and in addition 
 to the sum paid, to pay all liabilities 
 incurred by the receivers before de- 
 livery of possession of the property. 
 Atchison, T. & S. F. R. Co. v. Cun- 
 ningham, 59 Kan. 722. 
 
 A state court will not direct the 
 payment into court of the funds in 
 the hands of a relief department of 
 a railroad company, for which re- 
 ceivers have been appointed by a 
 Federal court, with a provision that 
 they shall continue the operation of 
 the features of such relief depart- 
 ment in accordance with the regula- 
 tions adopted by the officers of the 
 company. Baltimore d 0. R. Co. v. 
 Flaherty, 87 Md. 102. 
 
 A Federal court will not appoint 
 a receiver and direct the possession 
 
 17
 
 § 18 
 
 RECEIVERSHIPS— SUPPLEMENT. 
 
 of property in the possession of a 
 state court under attachment, 
 thougli tlie attachment proceedings 
 are defective. Southern Bank c€ T. 
 Co. V. Folsom. 4.3 U. S. App. 713, 75 
 Fed. Rep. 929, 21 C. C. A. 508; Val 
 Blatz Brewing Co. v. Walsh, 84 Fed. 
 Rep. 5. 
 
 A circuit court of the United 
 States sitting in one district has 
 power to appoint a receiver of the 
 property of a railroad company in 
 anotlier district, for the purpose of 
 preserving it pending litigation, 
 where a proceeding to foreclose a 
 mortgage thereon has been insti- 
 tuted. Triniiy & S. R. Co. v. Broivn, 
 91 Tex. 073. 
 
 Jurisdiction of a United States 
 court to appoint is not defeated by 
 the fact of incipient suits in a state 
 court. Buck v. Piedmont d A. L. 
 Ins. Co. 4 Fed. Rep. 849. 
 
 A receiver defendant has a right 
 to remove a cause to the United 
 States court when he is appointed 
 over a national bank. He acts as 
 receiver under the laws of the United 
 States, and the removal act there- 
 fore applies. Soivles v. Witters, 43 
 Fed. Rep. 700. 
 
 The appointment of a receiver does 
 not deprive a bankrupt court of ju- 
 risdiction. Re Independent Ins. Go. 
 Holmes, 103 ; Re National L. Ins. Co. 
 6 Biss. 35. 
 
 Federal courts of another state 
 will not refuse to entertain garnish- 
 ment against a receiver on the pe- 
 tition of citizens within its juris- 
 diction, when no objection to the ju- 
 risdiction on other grounds exists. 
 Central Trust Co. v. Chattanooga R. 
 cG C. R. Co. 68 Fed. Rep. 685. 
 
 The filing of a bond and its ap- 
 proval by a state court, as required 
 by the state statute in case of an as- 
 signment for creditors, is not a ju- 
 dicial proceeding which gives the 
 state court jurisdiction of the prop- 
 erty, so as to prevent a Federal court 
 from appointing a receiver for it. 
 Watsoti V. Bettman, 88 Fed. Rep. 
 825. 
 
 In case of conflict between the di- 
 rections of the primary court and 
 one of ancillary jurisdiction, to a re- 
 ceiver, the directions of the primary 
 18 
 
 court will control in matters of gen- 
 eral administration, and those of the 
 local court in local administration; 
 and the question as to what shall be 
 done with personal property within 
 the jurisdiction of the local court 
 and encumbered with a local lien is 
 pre-eminently a matter of local ad- 
 ministration. Fletcher v. Harney 
 Peak Tin-Min. Co. 84 Fed. Rep. 555. 
 
 The infirmity in the jurisdiction 
 of a suit to foreclose a mortgage up- 
 on the property of a corporation, in 
 which a receiver has been appointed, 
 arising from the collusion of the 
 original parties, which would other- 
 wise require dismissal of the suit, 
 will not deprive the court of power 
 to take cognizance of intervening 
 petitions, determine the validity of 
 the claims asserted, and give due ef- 
 fect to valid claims by affording the 
 petitioners appropriate relief. Elec- 
 trical Supply Co. V. Put-In-Bay 
 Waterworks, Light & R. Co. 84 Fed. 
 Rep. 740. 
 
 The receiver must be appointed 
 by the judge, and not the clerk. 
 Parks v. Sprinkle, 04 N. C. 037. 
 
 And by the court, and not the 
 chancellor. Dclaivare Bay & C. M. 
 R. Co. V. Markley, 45 N. J. Eq. 139. 
 
 A receiver may be appointed in an- 
 other district than that in which 
 supplementary proceedings are pend- 
 ing. Jacobson v. Doty Plaster Mfg. 
 Co. 32 Hun, 430. 
 
 The general rule in regard to con- 
 current jurisdiction, that the court 
 first obtaining control excludes the 
 other, does not apply to a ease where 
 an insignificant portion of the prop- 
 erty is taken possession of, and the 
 case dismissed before suit in the 
 other court. Liggett v. Glenn, 4 U. 
 S. App. 438, 51 Fed. Rep. 381, 2 C. 
 C. A. 280; Bell v. Ohio Life d T. Co. 
 1 Biss. 200. 
 
 Where a United States circuit 
 court has appointed receivers for 
 that part of a line of road within 
 its jurisdiction, anotlier court with- 
 in whose jurisdiction a part of the 
 line runs may appoint the same re- 
 ceivers, where the parts of the road 
 are not capable of separate manage- 
 ment. Dillon V. Oreqon Short Line 
 & U. N. R. Co. 66 Fed. Rep. 622.
 
 MATTERS RELATING TO TJU: APPOINTMENT. 
 
 § IS 
 
 The right of a creditor in a court 
 of equity to the appointment of a re- 
 ceiver is not taken away by the Illi- 
 nois statute conferring power on 
 the state auditor to file a bill and 
 procure such appointment. People 
 V. Globe 8av. Bank (111. C. C.) 29 
 Chicago Legal News, 396, 14 Nat. 
 Corp. Rep. 723, Distinguishing Peo- 
 ple V. Weigley, 155 111. 491. 
 
 A court of equity has no jurisdic- 
 tion to appoint a receiver for the col- 
 lection of taxes of a school district 
 where the trustees are unable to get 
 anyone to serve. Grand Raj) ids 
 School-Furniture Co. v. School Dist. 
 No. 29, 19 Ky. L. Rep. 1610. 
 
 A court of equity has power to ap- 
 point a receiver to wind up a part- 
 nership and sell its real estate, 
 though part of it lies in another 
 state. Dunlap v. Byers, 110 Mich. 
 109. 
 
 A court of equity having jurisdic- 
 tion of a railroad in a foreclosure 
 suit may order the payment of a ven- 
 dor's lien for property taken by the 
 road, out of earnings in the hands 
 of the receiver, or out of the pro- 
 ceeds of the sale of the road, or, in 
 the last extremity, it may order a 
 separate sale of the portion of the 
 road subject to the lien. Wheeling 
 Bridge & T. R. Go. v. Reymann Brew- 
 ing Co. 90 Fed. Rep. 189, 32 C. C. A. 
 571. 
 
 Courts of equity by virtue of their 
 general equitable jurisdiction will 
 not appoint a receiver of a corpora- 
 tion, and assume control and man- 
 agement of its affairs, at the suit of 
 a stockholder alleging fraud, mis- 
 management, and collusion on the 
 part of the corporate authorities, 
 or ultra vires acts of the directors or 
 of the corporation itself, but in such 
 cases will limit the redress granted 
 to the specific wrongs charged, and 
 will go no further than to enjoin or 
 forbid the misconduct complained 
 of. People's Invest Co. v. Craw- 
 ford (Tex. Civ. App.) 45 S. W. 738. 
 
 A court of law has no power to ap- 
 point. Myres v. Frankenthal, 55 
 111. App. 390; Smith v. Los Angeles 
 County Super. Ct. 97 Cal. 348. 
 
 The supreme court of a state will 
 not take cognizance of an alleged 
 
 wrongful diversion of the income ol 
 a railroad during a receivership ap- 
 pointed by the United States dis- 
 trict court, but the complainant 
 should seek redress in that court, or 
 in its appellate tribunal. Kurtz v. 
 Philadelphia d R. R. Co. 187 Pa. 59. 
 The appellate court will not ap- 
 point or direct the appointment of a 
 receiver upon reversing a judgment 
 dismissing a bill by creditors to 
 reach the property of their debtor, 
 where the property is already in the 
 possession of a receiver the validity 
 of whose appointment is attacked in 
 the action. Albion Malleable Iron 
 Co. V. First Nat. Bank, 116 Mich. 
 218. 
 
 Power of the court. 
 
 The powers given the receiver will 
 be enlarged from time to time when 
 necessary. Ohio Turnpike Co. v. 
 Howard, 1 West. L. J. 216. 
 
 The court may authorize the re- 
 ceiver of a railway to allow an elec- 
 tric railroad company to cross its 
 tracks in the interest of the public. 
 Stewart v. Wisconsin Cent. Co. 89 
 Fed. Rep. 617. 
 
 The court has no power to order 
 the sheriff to deliver to its receiver 
 treasury warrants seized by him un- 
 der a writ of replevin in a suit by a 
 person not a party to the suit in 
 which the receiver was appointed, 
 such warrants not being in the cus- 
 tody of the court. Elwell v. Good- 
 now, 71 Minn. 383. 
 
 A court of equity having posses- 
 sion, through its receiver, of a rail- 
 road system, will not prevent mort- 
 gagees from filing suits to foreclose 
 their mortgages on the property 
 pending proceedings for a reorgan- 
 ization of the road, if the litigation 
 over the reorganization will require 
 a month or more for its determina- 
 tion. Mercantile Trust Co. v. Balti- 
 more cG 0. R. Co. 89 Fed. Rep. 606. 
 
 The court appointing a receiver of 
 a corporation has no authority sum- 
 marily to order one not a party to 
 tlie action to deliver to the receiver 
 jjroperty claimed to belong to the 
 corporation, as he h.as a right to have 
 his title determin(;d in an a[)pr<)[)ri- 
 ate action; and the fact that the ac- 
 
 19
 
 S 19 
 
 RECEIVERSHIPS— SUPPLEMENT. 
 
 tual possession was in the plaintiff 
 in the action in which the receiver 
 was appointed is not material, if 
 such possession was not in his own 
 right. Stuparich Mfg. Co. v. ISan 
 Fra)icisco 8uper. Ct. 123 Cal. 290. 
 
 The court should not direct a re- 
 ceiA'er to expose the property to the 
 hazard incident to the conduct of a 
 precarious business, except so far as 
 is necessary to preserve the existing 
 status and maintain the rights of the 
 parties. Bigbee v. Summerour, 101 
 Ga. 201. 
 
 The district court has authority, 
 either on its own motion or that of 
 defendants, to require an accounting 
 from a receiver appointed in the ac- 
 tion, and a return of the property to 
 the owners after a decision of the su- 
 preme court in their favor. Hamm 
 V. J. Stone d Sons Livestock Co. 13 
 Tex. Civ. App. 414. 
 
 Mere oral directions by the judge 
 who appointed a receiver of a cor- 
 poration, which were never reduced 
 to writing, may be disregarded by 
 another judge in passing upon the 
 acounts of the receiver and his 
 
 claims to allowance for compensa- 
 tion and expenditures, — especially 
 where the appointing judge had such 
 an interest as to disqualify him. 
 United States Nat. Bank v. National 
 Bank, G Okla. 103. 
 
 The court which appointed a re- 
 ceiver of a corporation may render a 
 judgment directing the sheriff to sell 
 land previously conveyed to the cor- 
 poration, to satisfy judgments 
 against the corporation's grantor, 
 upon determining in an action by the 
 judgment creditors that the convey- 
 ance to the corporation was fraudu- 
 lent as to them ; and it is not bound 
 to leave the property in the hands of 
 the receiver and direct him to sell 
 the same in the receivership action. 
 Cass V. Sutherland, 98 Wis. 551. 
 
 The court having the custody of 
 the property of an insolvent corpora- 
 tion may, on the bringing of an ac- 
 tion to foreclose a mortgage, order 
 a sale by the receivers of all the as- 
 sets of the corporation not embraced 
 in the mortgage. Kurtz v. Phila- 
 delphia & R. R. Co. 187 Pa. 59. 
 
 Page 56, sec. 19. — Conflict of jurisdiction. 
 
 The enactment of the Federal 
 bankruptcy law of July 1, 1898, did 
 not suspend the right of a state 
 court to appoint a receiver for an in- 
 solvent corporation under state laws, 
 when it had not been adjudged a 
 bankrupt under the law of Congress. 
 State, Strohl, v. King County Super. 
 Ct. (1899) 20 Wash. 545, 45 L. R. 
 A. 177. 
 
 But the appointment of a receiver 
 by a state court will not prevent 
 subsequent bankrupt proceedings in 
 the Federal court. Re Independent 
 Ins. Co. (1872) Holmes, 103, Affirm- 
 ing 2 Low. Dec. 97 ; Re Safe Deposit 
 cC- Sav. Inst. (1872) 7 Nat. Bankr. 
 Reg. 392; Re Green Pond R. Co. 
 (1876) 13 Nat. Bankr. Reg. 118; 
 Re National L. Ins. Co. (1874) 6 
 Biss. 35; Re Noonan (1873) 3 Biss. 
 491; Thornhill v. Bank of Louisiana 
 (1870) 1 Woods, 1, Affirming (1870) 
 3 Nat. Bankr. Reg. 435 
 20 
 
 As to the effect of the appoint- 
 ment of a receiver as an act of bank- 
 ruptcy, see fiote in 45 L. R. A. on 
 page 190. 
 
 A court in which a foreclosure 
 suit is brought, and which has en- 
 tered a final decree adjudging fore- 
 closure and sale by a special master, 
 has such jurisdiction over the specif- 
 ic property as to entitle it to hold 
 exclusive jurisdiction and possession 
 thereof to the exclusion of any other 
 court and of a receiver appointed 
 thereby after such decree and before 
 the sale, so as to render the sale sub- 
 sequent to the appointment of the 
 receiver valid. McLajie v. Holland 
 Trust Co. 52 U. S. App. 599, suh 
 nom. Holland Trust Co. v. Interna- 
 tional Bridge d Tramway Co. 85 Fed. 
 Rep. 865, 29 C. C. A. 400.
 
 MATTERS RELATING TO THE APPOINTMENT. §§ 20, 21 
 Page 58, sec. 20. — Scope of jurisdiction. 
 
 Jurisdiction must be exercised in 
 good faith and for the common bene- 
 fit of all. Re Maskelyne British 
 
 Typeicriter Co. [1898] 1 Ch. 133, 77 
 L. T. N. S. 579. 
 
 Page 59, sec. 21. — Who appointed. 
 
 As a rule but one receiver appointed. 
 
 As a general rule, subject to the 
 discretion of the court, but one re- 
 ceiver should be appointed over the 
 same property. 
 
 Where a receiver has been ap- 
 pointed in a creditors' bill, and sub- 
 sequently on a bill to foreclose the 
 same property a receiver is asked, 
 the receivership in the former should 
 be extended. Myrick v. Selden, 36 
 Barb. 15; Lloyd v. Chesapeake, 0. & 
 8. W. R. Co. 65 Fed. Rep. 351. 
 
 After consolidation of causes, a 
 receiver in the former may be made 
 receiver in the consolidated suit. 
 Central Trust Co. v. Wahash, St. L. 
 & P. R. Co. 23 Fed. Rep. 863. 
 
 After the appointment of a re- 
 ceiver of a street-railroad company 
 the court will not appoint a separate 
 receiver for one of its branches. 
 Clapp V. Interstate Street R. Co. 61 
 Fed. Rep. 537. 
 
 As a general rule a receiver ap- 
 pointed in a prior suit should not 
 be replaced by the same court for 
 the same property. This rule . has 
 its exceptions, however. State v. 
 Jacksonville, P. d M. R. Co. 15 Fla. 
 201. 
 
 The appointment of a receiver in a 
 supplementary proceeding is not a 
 bar to the appointment in a credit- 
 ors' proceeding; nor need the same 
 person be appointed. State Bank v. 
 Gill, 23 Hun, 410. 
 
 A receiver may be appointed by 
 one court, though a different receiver 
 has been previously appointed by an- 
 other court, and particularly so 
 where there is a reasonable suspicion 
 of collusion in the former appoint- 
 ment. Young v. Aronson, 27 Fed. 
 Rep. 241. 
 
 Extension of receivership justifies 
 additional security or removal of. 
 Wise v. Ashe, 1 Ir. Eq. Rep. 210. 
 
 On motion to extend, the only par- 
 ties to be heard are the petitioner 
 and debtor. Walsh v. Walsh, 11 Ir. 
 Eq. Rep. 607. 
 
 A receiver will not be appointed 
 over the possession of another re- 
 ceiver. In such case the former re- 
 ceivership should be extended. Valle 
 V. O'Reilly, 1 Hogan, 199. 
 
 Two receivers of the same property 
 should not be appointed; and if an 
 attempt is made in a second suit the 
 first receiver or the creditors he rep- 
 resents should be made parties. 
 Bank of Mutual Redemption v. 
 Sturgis, 9 Bosw. 608. 
 
 A receiver in one suit may be com- 
 pelled to serve in a second suit about 
 the same projierty, and on refusal 
 may be removed from the first. 
 Cagger v. Howard, 1 Barb. Ch. 368. 
 
 N. Y. Code Civ. Proc. § 2466, pro- 
 hibits more than one receiver for the 
 same debtor, but provides for an ex- 
 tension of the receivership already 
 made. Garfield Nat. Bank v. Bost- 
 wick, 39 N. Y. S. R. 358. 
 
 The object of the 139th rule in 
 New York, relative to the appoint- 
 ment of the same person as receiver 
 in different suits over the same prop- 
 erty, was to save expense and con- 
 flict between receivers. Cagger v. 
 Howard, 1 Barb. Ch. 368. 
 
 But the appointment of a second 
 receiver is within the discretion of 
 the court. Thau v. Bankers c£- M. 
 Teleg. Co. 24 Jones & S. 588. 
 
 The rule (which is of general ap- 
 plication) has been laid down that 
 two receivers will not be appointed 
 unless necessary, and they must be 
 not interested in the litigation, nor 
 partisans of any of the litigants, nor 
 nonresidents. Meier v. Kansas P. 
 R. Co. 5 Dill. 476. 
 
 31
 
 § 21 
 
 RECEIVERSHIPS— SUPPLEMENT. 
 
 Receiver should be disinterested. 
 
 An interest in the business of a 
 corporation is not a necessary quali- 
 fication of a receiver of the corpora- 
 tion, but, on the other hand, lack of 
 interest is a strong recommendation. 
 Bai/itc V. Breiocr Pottery Co. 82 Fed. 
 Rep. 391. 
 
 And the best party. 
 
 The best person should be ap- 
 pointed without reference to who 
 may suggest his name. Lespinasse v. 
 Bell, 2 Jac. & W. 436. 
 
 Plaintiff's solicitor not appointed. 
 
 The law partner of plaintiff's 
 solicitor should not be appointed, 
 even by consent. Merchants <& Mfrs. 
 'Nat. Bank v. Kent Circtiit Judge, 43 
 Mich. 292. 
 
 Officers of a corporation not. 
 
 Neither party, counsel, nor officer 
 will be appointed receiver of a cor- 
 poration. Finance Co. of Pennsyl- 
 vania V. Charleston, C. d C. R. Co. 45 
 Fed. Rep. 430. 
 
 The secretary of an insolvent sav- 
 ings bank is not a proper person to 
 be appointed, where he has made 
 false statements as to its solvency, 
 and verified the same. People v. 
 Third Avenue Sav. Bank, 50 How. 
 Pr. 22. 
 
 The treasurer of a railroad com- 
 pany may be appointed receiver. 
 Houston V. Rcdioine, 85 Ga. 130. 
 
 In England the general rule is that 
 the directors or secretary, or some of 
 them, of a railway, will be appointed 
 managers. Re Manchester & M. R. 
 Co. L. R. 14 Ch. Div. 645. 
 
 The officers of a corporation may be 
 appointed receivers. Ralston v. 
 Washington cG C. River R. Co. 65 
 Fed. Rep. 557. 
 
 Party to suit. 
 
 Being a party to the suit does not 
 disqualify a person from being re- 
 ceiver. People, Gore, v. Illinois 
 Bldg. & L. Asso. 56 111. App. 642. 
 
 A solvent partner who is a party 
 may be appointed receiver of part- 
 nership property without compensa- 
 tion. Ex parte Stoveld, 1 Glyn & J. 
 303. 
 22 
 
 A peer. 
 
 A peer will not be appointed. Atty. 
 Gen. V. Gee, 2 Ves. & B. 208. 
 
 Trustee. 
 
 The position of receiver is incom- 
 patible with the position of trustee, 
 in bankruptcy. Re Stuyvesant Bank, 
 5 Ben. 566. 
 
 A trustee of an estate will not be 
 appointed receiver if another can be 
 procured. Hibbert v. Jenkins, Mss., 
 quoted in Sykes v. Hastings, 11 Ves. 
 
 Jr. 363 ; v. Jolland, 8 Ves. 
 
 Jr. 72. 
 
 Assignee. 
 
 Eichherg v. Wickham, 21 N. Y. 
 Supp. 647. 
 
 An assignee for the benefit of 
 creditors should not, after attach- 
 ment of the property and in a suit 
 to which he is a party, be appointed 
 a receiver of it, since under Mansf. 
 (Ark.) Dig. § 5290, an interested 
 party is not eligible to such appoint- 
 ment. Tail V. Carey (Ind. Terr.) 
 49 S. W. 50. 
 
 Clerk of court 
 
 The court may appoint the clerk 
 of court receiver, and his sureties 
 on his official bond will be liable. 
 Waters v. Melso7i, 112 N. C. 89. 
 
 One not acquainted with business. 
 
 A receiver, if otherwise competent, 
 is not disqualified because he is not 
 acquainted with all the details of 
 the mechanical work of a railroad 
 plant. Farmers' Loan d T. Co. v. 
 Cape Fear d Y. Valley R. Co. 62 Fed. 
 Rep. 675. 
 
 Resident. 
 
 A receiver of a corporation ap- 
 pointed by a United States circuit 
 court need not necessarily be a resi- 
 dent of the district in which the ap- 
 pointment is made. Bayne v. 
 Brewer Pottery Co. 82 Fed. Rep. 391. 
 
 Citizen. 
 
 Citizenship of a person is not a 
 disqualification for receivership. 
 Farmers' Loan d T. Co. v. Cape Fear 
 d T. Valley R. Co. 62 Fed. Rep. 675. 
 
 The appointment of an improper 
 person does not render the appoint-
 
 MATTERS RELATING TO THE APPOINTMENT. 
 
 § 2S 
 
 ment void, or make him the agent of 
 the corporation. San Antonio & A. 
 P. It. Co. V. Adams, 11 Tex. Civ. App. 
 198. 
 
 Receiver not a puhlic officer. 
 
 Cohnen v. Stceenie, 105 Mich. 643. 
 
 Co7isent. 
 
 Consent to the appointment of a 
 particular person should not be 
 made a rule of court. Leach v. Tis- 
 dal, 4 Ir. Ch. Rep. 209. 
 
 Only parties to a suit can object 
 to appointment. Creed v. Moore, 
 4 Ir. Eq. Rep. 084. 
 
 Page 63, sec. 22. — Form and scope of order. 
 
 A decree directing that the prop- 
 erty of a corporation be turned over 
 to its receiver should protect the 
 right of its manager to have the 
 secret of certain manufacturing 
 
 processes owned by him preserved 
 inviolate. Wilt v. Reed Electric Go. 
 187 Pa. 424; Wehb v. Allen, 15 Tex. 
 Civ. App. 506. 
 
 Page QQ. — (li) Collateral attach. 
 
 The appointment, if made in a 
 court of competent jurisdiction, and 
 in an action where the power to ap- 
 point exists, cannot be collaterally 
 attacked. Andrews v. Steele City 
 Bank (Neb.) 9 Am. & Eng. Corp. Cas. 
 N. S. 452, 77 N. W. 342 ; Carroll v. 
 Pacific X at. Bank, 19 Wash. 639; 
 Roby V. Title Guarantee d- T. Co. 166 
 III. 336; Comer v. Brady, 83 Ala. 
 217. 
 
 A creditor who has brought suit 
 against a private corporation in a 
 Federal court, and caused its prop- 
 erty to be attached and sequestered 
 on a vendor's lien, which property is 
 subequently ordered to be surrend- 
 ered to a receiver previously ap- 
 pointed in a state court, cannot suc- 
 cessfully assail the order of appoint- 
 ment for informality in the proceed- 
 ings, without asking for judgment on 
 its demand, or disclosing a well- 
 grounded claim for damages against 
 the receiver personally. Remington 
 Paper Go. v. Watson, 49 La. Ann. 
 1296. 
 
 The vendee of a receiver cannot, in 
 the absence of fraud or mistake, deny 
 the validity of the appointment, 
 where possession has been taken by 
 the receiver. Stclzer v. La Rose, 79 
 Tnd. 435; Jay v. De Groot, 17 Abb. 
 Pr. 36, note; Storm v. Ermantrout, 
 89 Ind. 214. 
 
 Under N. Y. Rev. Stat. vol. 2, p. 
 
 463, § 36, it was held that if the ap- 
 pointment was binding on the cor- 
 poration no one else could question 
 it. Whittlesey v. Frantz, 74 N. Y. 
 456 ; Peters v. Garr, 2 Dem. 22 ; Bar- 
 nett v. kelson, 54 Iowa, 41, 37 Am. 
 Rep. 183; Thompson v. Greeley, 107 
 Mo. 577; Elderkin v. Peterson, 8 
 Wash. 674. 
 
 The appointment of a receiver by a 
 Federal court in an action to fore- 
 close a mortgage is absolutely void 
 and subject to collateral attack, 
 where the court never acquired any 
 jurisdiction of the cause. Thurber 
 V. Miller (S. D.) 75 N. W. 900. 
 
 The legality of the appointment 
 of a receiver made in open court, in 
 the presence of the adverse party, 
 without objection or exception, can- 
 not be raised by motion to set it 
 aside. Gray v. Oughton, 146 Ind. 
 285. 
 
 , The appointment of a receiver can- 
 not be revoked or the decree modified 
 upon the application of a stranger 
 to the action, although he has ac- 
 quired rights adverse or superior to 
 those of the receiver. Wright v. 
 Weisel, 19 App. Div. 630. 
 
 Where parties stipulate that a re- 
 ceiver acted as such and should be 
 protected, the validity of the ap- 
 pointment cannot be questioiu'd. 
 Kelsey v. Sargent, 40 Hun, 150, 104 
 N. Y. 663. 
 
 23
 
 § -^3 
 
 RECEIVERSHIPS— SUPPLEMENT. 
 
 Page 69. — (j) Vacation of. 
 
 An ex parte order for a receiver- 
 ship of property by a judge in vaca- 
 tion should also appoint a very early 
 day for the showing of cause against 
 the order. Utate, tit. Louis, K. <& S. 
 R. Co., V. ^Year, 135 Mo. 230, 33 L. R. 
 A. 341. 
 
 An early opportunity to combat 
 and, if desired, to review an ex parte 
 appointment of a receiver, is con- 
 templated by Mo. Laws 1895, p. 91, 
 providing for an appeal and the very 
 
 summary determination thereof, 
 from any order refusing to revoke, 
 modify, or change an interlocutory 
 order appointing a receiver. State, 
 St. Louis, K. & S. R. Co., v. Wear, 
 135 Mo. 230, 33 L. R. A. 341. 
 
 A motion to set aside an order ap- 
 pointing a receiver is made to the 
 court, and not the judge. Lippin- 
 eott v. Westray, G N. Y. Civ. Proc. 
 Rep. 74. 
 
 Page TO. — (k) Appeal. 
 
 A receiver cannot be appointed to 
 take and keep possession of land, and 
 to collect the rents, issues, and profits 
 thereof, from the date of a judgment 
 for such rents, until the further or- 
 der of the court, in order to carry 
 such money judgment into effect, 
 where such judgment has been 
 stayed by a proper bond on appeal. 
 San Jose Safe-Deposit Baltic of Sav- 
 incjs V. Bank of Madera, 121 Cal. 543. 
 
 The appointment will not be inter- 
 fered with on appeal, where it ap- 
 pears that there is not a clear pre- 
 ponderance of evidence against the 
 appointment. Cameron v. Grove- 
 land Improv. Co. 20 Wash. 169. 
 
 Abuse of discretion must be shown 
 to justify appellate review of the ap- 
 pointment of a receiver. Armstrong 
 V. Alabama Fertilizer Co. 105 Ga. 
 515. 
 
 In a foreclosure action a bond con- 
 ditioned in accordance with Neb. 
 Code Civ. Proc. § 677, that the appel- 
 lants will prosecute an appeal with- 
 out delay, and will not during its 
 pendency commit or suffer waste 
 upon the premises, will not super- 
 sede an order appointing a receiver 
 for the property. Lowe v. Riley 
 (Neb.) 77 N. W. 758. 
 
 As to the effect of supersedeas, see 
 Downing v. Dunlap Coal Co. 93 Tenn. 
 221. 
 
 An order appointing a receiver 
 upon conflicting affidavits will not 
 be disturbed on appeal. Houston 
 Cemetery Co. v. Drew, 13 Tex. Civ. 
 App. 530. 
 24 
 
 A stockholder and officer of a cor- 
 poration sued for an accounting for 
 mismanagement, in which suit the 
 corporation is a defendant, has no 
 right of appeal from the order ap- 
 pointing a receiver under Ind. Rev. 
 Stat. 1894, § 1245. McFarland v. 
 Pierce, 151 Ind. 546. 
 
 An order that, pending appeal, the 
 receiver should not sell or distribute 
 the property that might come into 
 his hands, pending appeal or until the 
 further order of court, is as strong 
 a stay order as the court will make. 
 People V. North River Sugar Ref. Co. 
 23 Abb. N. C. 311. 
 
 The lien acquired by the appoint- 
 ment of a receiver of a debtor's prop- 
 erty is not abrogated by an appeal. 
 Stanton v. Heard, 100 Ala. 515. 
 
 A defendant who fails to appeal 
 from an order of appointment can- 
 not afterwards claim that the ap- 
 pointment was irregular. Saunders 
 V. Kempner (Tex. Civ. App.) 32 S. 
 W. 585. 
 
 On an appeal from the appoint- 
 ment of a receiver, all irregularities 
 not brought up are waived. Tinkey 
 V. Langdon, 60 How. Pr. 180. 
 
 Pending appeal a receiver was re- 
 fused, no danger appearing. Munic- 
 ipal Conirs. V. Lockhart. Ir. Rep. 
 3 Eq. 515. 
 
 When appeal is taken from an or- 
 der of appointment, and supersedeas 
 is granted, the custody does not pass 
 to the receiver pending appeal. Cook 
 V. Cole, 55 Iowa, 70. 
 
 A supersedeas bond on appeal un-
 
 MATTERS RELATING TO THE APPOINTMENT. 
 
 § 22 
 
 der Mo. Rev. Stat. 1889, § 2249, from 
 an order overruling a motion to va- 
 cate the appointment of a temporary 
 receiver to preserve and manage a 
 railway line pending an action, re- 
 leases the property that has reached 
 the hands of the temporary receiver 
 by way of execution of the original 
 order of appointment. State, 8t. 
 Louis & K. R. Co., V. Hirzel, 137 Mo. 
 435. 
 
 An order appointing a receiver will 
 be affirmed where an appeal is taken 
 by one having no interest affected 
 thereby; but such affirmance will not 
 bo binding upon any interested 
 party. Sherwood v. Prussing (111. 
 App.) 1 Chic. L. J. WIdy. 179. 
 
 An attempted appeal to the Texas 
 supreme court from a judgment of 
 the Texas court of civil appeals af- 
 firming a judgment so far as it 
 grants a divorce, but reversing and 
 remanding the case for a new trial 
 as to property rights, does not de- 
 prive the trial court of jurisdiction 
 to appoint a receiver of the prop- 
 
 erty, even if an effectual appeal 
 would have that result, since the 
 jurisdiction of the court of civil ap- 
 peals is final as to both branches of 
 the case. Stone v. Stone (Tex. Civ. 
 App.) 43 S. W. 567. 
 
 On appeal to review the appoint- 
 ment of a receiver, the only question 
 to be considered is the jurisdiction 
 of the court to make the appoint- 
 ment, and not whether it properly 
 exercised its discretion. State, In- 
 dependent Dist. Teleg. Co. v. Second 
 Judicial Dist. Ct. 15 Mont. 324, 27 
 L. R. A. 392. 
 
 On appeal from an order appoint- 
 ing a receiver the court must deter- 
 mine whether the order was author- 
 ized by the law and facts, and is not 
 limited to the question of jurisdic- 
 tion. Roberts v. Washington Nat. 
 Bank, 9 Wash. 12. 
 
 On appeal the court will not dis- 
 turb the appointment of a receiver 
 where the evidence is conflicting and 
 there is no abuse of discretion. 
 Bliley v. Taylor, 86 Ga. 163. 
 
 Page 72. — (1) Appeal from; order; rents and profits. 
 
 In a foreclosure suit where an or- 
 der appointing a receiver was super- 
 seded by a bond given by the appel- 
 lants to account for rents and profits 
 if the receivership order should be 
 affirmed, the court may, upon an or- 
 der to show cause issued in the fore- 
 closure case after such affirmance, 
 enter a judgment against the appel- 
 lants for the rents and profits of the 
 premises during the time the re- 
 ceivership was suspended. Loice v. 
 Riley (Neb.) 77 N. W. 758. 
 
 Successor to dead receiver. 
 
 Where the order appointing a re- 
 ceiver is in force the refusal to ap- 
 point a successor on the death of the 
 first is error. Smith v. Harris, 135 
 Ind. 621. 
 
 On the death of a receiver the new 
 receiver will be authorized to con- 
 tinue an action by supplemental 
 complaint. Palmer v. Murray, 18 
 How. Pr. 545. 
 
 On the death of a receiver the 
 property vests in the court ; and on 
 the death of the debtor a new re- 
 ceiver may be appointed. Nicoll v. 
 Boijd, 90 N. Y. 516. 
 
 Validity; not heard on appeal, when. 
 
 Where the propriety of an appoint- 
 ment is not raised in the court below 
 it cannot be raised on appeal. Bliley 
 V. Taylor, 86 Ga. 163. 
 
 Who may attack. 
 
 Irregularity in the appointment of 
 a receiver is not to be raised in an 
 action by the receiver. Green v. 
 Bookhart, 19 S. C. 406. 
 
 And irregularity in the appoint- 
 ment is no ground for defendant's 
 objecting to an examination. 
 Thomas v. Gartner, 97 Mich. 608; 
 Cf. JIo ward V. Palmer (Mich.) Walk. 
 Ch. 391 
 
 25
 
 § 23 RECEIVERSHIPS— SUPPLEMENT. 
 
 Page 73, sec. 23. — Bond; sureties on; liability on. 
 
 Sureties on a bond reciting the ap- 
 pointment of the principal obligor 
 as receiver of a corporation, and con- 
 ditioned for the faithful discharge of 
 his duties as such, are estopped to 
 deny his appointment, where the 
 right of the court to make the ap- 
 pointment existed, although the ap- 
 pointment at the time was improper 
 because of tlie insufliciency of the pe- 
 tition asking therefor. Thompson 
 V. Dvnner, 10 App. Div. 1(50, Citing 
 Culler Y. Dickinson, 8 ' Pick. 385; 
 Distinguishing Mittnacht v. Keller- 
 mann, 105 N. Y. 409. 
 
 A surety on a receiver's bond vpho 
 purchases from the receiver, for a 
 sum much less than its real value, 
 the real estate of the latter's cestuis 
 que trust, which he has no lawful 
 right to sell, is not a purchaser of 
 the land in good faith. Donahue v. 
 Quaclcenhush (Minn.) 77 N. W. 430. 
 
 The appointment of a receiver 
 without requiring a bond of the com- 
 plainants is invalid, since Ala. act 
 February 18, 1895, providing that a 
 bond shall be required of the com- 
 plainant whenever application shall 
 be made for a receiver, repeals by 
 implication Ala. act December 14, 
 1894, in so far as the lat.ter invested 
 the appointing officer with a discre- 
 tion in the matter of requiring such 
 bond. David v. Levy (Ala.) 24 So. 
 589. 
 
 An independent action may be 
 maintained to ascertain and enforce 
 the liability of sureties on the bond 
 of a receiver. Black v. Gentery, 119 
 N. C. 502. 
 
 The filing of a bond duly approved, 
 which by an order appointing a re- 
 ceiver of a corporation is made a con- 
 dition of his taking possession of the 
 property, is not sufficiently shown 
 for the purposes of N. Y. Code Civ. 
 Proc. § 082, authorizing any person 
 who has acquired a lien upon or in- 
 terest in an attachment debtor's 
 property after attachment to move 
 to vacate or modify the attachment, 
 by an affidavit of such filing by the 
 managing clerk of the receiver's at- 
 torneys, which does not disclose 
 facts or circumstances justifying an 
 
 26 
 
 inference that he had personal 
 knowledge of the fact. Belmont v. 
 Sigua Iron Co. 12 App. Div. 441. 
 
 A receiver's bond filed in the 
 wrong office through inadvertence 
 may be properly filed nunc pro tunc. 
 Whiteside v. Prendergast, 2 Barb. 
 Ch. 471. 
 
 As to liability of sureties on bond 
 of clerk of court appointed receiver, 
 see Syme v. Bunting, 91 N. C. 48. 
 
 Where a temporary receiver is ap- 
 pointed, and subsequently he is made 
 permanent receiver, the court may 
 require further bond, but if the 
 bond is not so required his acts are 
 legal. Jones v. Blun, 145 N. Y. 333. 
 
 For suits on receiver's bond which 
 turned wholly on a question of plead- 
 ing, see Wilde v. Baker, 14 Allen, 
 349; Keg. v. Bayly, 1 Dru. & War. 
 210. 
 
 A receiver is not liable on his bond 
 until he has failed to obey some or- 
 der of the court. State v. Gibson, 
 21 Ark. 140. 
 
 Where a receiver's surety dies or 
 goes abroad, he cannot be charged 
 with expense of new appointment. 
 Lane v. Townsend, 2 Ir. Ch. Rep. 
 120. 
 
 Sometimes the receiver will be ap- 
 pointed on his own recognizance. 
 Carlisle v. Berkley, 2 Ambl. 599; 
 Ridout V. Plymouth, 1 Dick. 08. 
 
 A surety, having paid, may compel 
 cosureties to contribute. Ross v. 
 Williams, 11 Heisk. 410. 
 
 Sureties on the bond of a clerk are 
 not liable for funds misappropriated 
 by him as receiver over which the 
 court has no control. State^ Rogers, 
 V. Odom, 80 N. C. 432. 
 
 A receiver under JST. Y. Laws 1853, 
 918, chap. 406, § 24, is required to 
 give security. Mechanics' F. Ins. 
 Go's Case, 5 Abb. Pr. 444. 
 
 The surety of a receiver is liable 
 for interest on his balances, in the 
 discretion of the court. Re Uerrick, 
 3 Ir. Ch. Rep. 183. 
 
 A receiver and his sureties are lia- 
 ble to a creditor though he is not 
 named in the bond. Ross v. Will- 
 iams, 11 Heisk. 410.
 
 RECEIVER'S POWERS. §§25,26 
 
 Page 82, sec. 25. — Source of power of receivers. 
 
 (a) (1) Application fo7- instructions. 
 
 Morgcll v. Royce, 2 Hogan, 235; 
 People, Atty. Gen., v. Security L. 
 Ins. d Annuity Co. 79 N. Y. 267. 
 
 To justify the receiver in apply- 
 ing for power it is not necessary tliat 
 
 the power to lease should be given in 
 the order of appointment or that it 
 gives liberty to apply for instruc- 
 tions. Weeks v. Weeks, lOG N. Y. 
 G2G. 
 
 Page 84. — (c) Powee of statutory eeceiveks. 
 
 statutory receivers of railroads 
 are, to some extent, state agents, and 
 unless acting within the scope of au- 
 thority the state is not liable for 
 their acts. Such receivers have no 
 power to contract debts to be paid 
 
 otherwise than from earnings. State 
 V. Edgefield & K. R. Co. 6 Lea, 353. 
 Statutory receivers are to some ex- 
 tent public agents, and the state is 
 bound by their acts when within the 
 scope of authority. Ihid. 
 
 Page 84. 
 
 -(d) Power being- limited is notice to ael. 
 
 Under Sayles's (Tex.) Civ. Stat. 
 art. 14G4, a receiver cannot as- 
 sume 2J0wers and risks not within 
 the grant or control of the court 
 whose agent he is. International & 
 G. Y. A'. Co. V. Wetitworth, 8 Tex. 
 Civ. App. 5. 
 
 A receiver appointed in an action 
 to foreclose a mortgage on street- 
 railway property, to take possession 
 of the mortgaged property and to 
 operate the road, has no authority 
 
 to collect claims due the company 
 not covered by the mortgage. Cali- 
 fornia Title Ins. cC- T. Co. v. Consoli- 
 dated Piedmont Cable Co. 117 Cal. 
 237. 
 
 One who contracts with a receiver 
 does so with the knowledge that for 
 an injury received he can get re- 
 dress only by leave of the court. 
 Vanderbilt v. Central R. Co. 43 N. 
 J. Eq. 669. 
 
 Page 85, sec. 26. — Power to borrow money. 
 
 The court has power to authorize 
 receiver to borrow money and make 
 the same a first lien on property in 
 the hands of the receiver. Blythe v. 
 Gibbons, 141 Ind. 332. 
 
 The borrowing of money by a re- 
 ceiver of the furniture and other per- 
 sonal property in a hotel may be au- 
 thorized by the court in order to 
 prevent the closing of the hotel and 
 the loss of the goodwill of its busi- 
 ness during the pendency of a suit 
 for foreclosure. Cake v. Mohun, 
 164 U. S. 311, 41 L. ed. 448. 
 
 Where a court appoints a receiver 
 
 of oil leases, the right to which is in 
 litigation, for the purpose of de- 
 veloping the property for the bene- 
 fit of the successful claimant, and 
 permits advances to be made to him 
 by the parties to aid in the develop- 
 ment, with the understanding that 
 the amount advanced to him shall be 
 returned to the unsuccessful litigant 
 in case the amount is realized from 
 the oil produced, it will order a re- 
 turn of the advances to the unsuc- 
 cesssful party if the funds warrant 
 it. Elk Fork Oil & Gas Co. v. Jen- 
 nings, 90 Fed. Rep. 767. 
 
 27
 
 g§ 27—29 RECEIVERSHIPS— SUPPLEMENT. 
 
 Page 87, sec, 27. — Power to loan money. 
 
 Receiver must loan receivership's 
 funds as directed by the court, or be- 
 come responsible in case of loss, 
 though no bad faith is shown. Carr 
 V. Morris, 85 Va. 21. 
 
 The court is prohibited by Ky. 
 
 Civ. Code, § 308, after the appoint- 
 ment of a receiver to take charge of 
 a fund in controversy, from ordering 
 it to be loaned out against the pro- 
 test of a claimant. Comhs v. Breat- 
 hitt County, 20 Ky. L. Rep. 1247. 
 
 Page 88, sec. 28. — Power to compromise debts. 
 
 The authority of a receiver of a 
 mutual insurance company imder R. 
 I. Gen. Laws, chap. 177, § 28, to do 
 all acts which might be done by the 
 corporation that may be necessary 
 for the final settlement of its un- 
 
 finished business and the winding up 
 of the corporation, includes power to 
 contest or compromise a claim which 
 he is not satisfied is just. Insur- 
 ance Commissioners v. Commercial 
 Mut. Ins. Co. 20 R. I. part. 1, p. 7. 
 
 Page 89, sec. 29. — Counsel for receiver and compensation of. 
 
 Reasonable allowance for plain- 
 tiffs' attorney, on bill filed for dis- 
 solution of partnership when fund 
 brought into court for benefit of cred- 
 itors by receiver, — see Payne v. Mc- 
 Namara, 9 Ohio C. C. 132. 
 
 Factors who, after receiving a con- 
 signment, are enjoined from dispos- 
 ing of it, at the instance of a receiver 
 of the consignor, are not entitled to 
 charge the counsel fees expended in 
 defending their title to the property, 
 to the funds in the receiver's hands 
 as part of the damages caused by 
 the injunction. Fidelity Ins. Trust 
 d S. D. Co. V. Roanoke Iron Co. 91 
 Fed. Rep. 19. 
 
 Fees of counsel for a receiver in 
 sustaining his own charges should 
 be disallowed, as success would tend 
 to deplete, and not protect, assets in 
 the hands of the receiver. Soicles v. 
 National Union Bank, 82 Fed. Rep. 
 139. 
 
 Fees of counsel for a receiver 
 should not be allowed for the con- 
 duct of the cause in which the receiv- 
 er was appointed, as counsel fees can 
 be chargeable to him only for secur- 
 ing the assets. Ibid. 
 
 Counsel employed by one other 
 than the receiver of a corporation to 
 aid in resisting a motion to remove 
 the receiver is not entitled to com- 
 pensation out of the corporate ef- 
 28 
 
 fects, where the receiver had counsel 
 who appeared for him in resistance 
 of the motion. Anderson v. Fidelity 
 cC D. Co. 100 Ga. 739. 
 
 Services of attorneys for the re- 
 ceiver of an employers' liability in- 
 surance company, rendered in de- 
 fending against claims against em- 
 ployers holding policies therein in- 
 demnifying them against such 
 claims, and giving the company the 
 right to take full charge of the de- 
 fense against them, are rendered for 
 the protection and benefit of all the 
 policy-holders, so that the receiver 
 is entitled to pay for them out of the 
 fund in his hands. Ross v. Ameri- 
 can Employers' Liability Ins. Co. 
 56 N. J. Eq. 41. 
 
 Creditors who come in to take the 
 benefit of a litigation begun by one 
 of the creditors of an insolvent cor- 
 poration to reach funds belonging to 
 it will not be permitted to defeat the 
 right of the complainant's solicitors 
 to payment out of the fund distrib- 
 uted to the creditors, for services 
 rendered, even after appointment of 
 a receiver, if it was the duty of such 
 solicitors to protect the fund against 
 unfounded claims, and their efforts 
 were successful in defeating claims, 
 the benefit of which went to the cred- 
 itors. Burden Central Sugar Ref. 
 Co. V. Murphy, 58 U. S. App. 166, 31
 
 RECEIVER'S POWERS. 
 
 §29 
 
 C. C. A. 233j sub nom. Burdon Cen- 
 tral Sugar-Ref. Co. v. Ferris Sugar 
 Mfg. Co. 87 Fed. Eep. 810. 
 
 Attorneys' fees in sustaining the 
 receiver's appointment is a proper 
 charge for expenses. Kimmerle v. 
 Dowagiac Mfg. Co. 105 Mich. 640. 
 
 An order to a receiver to pay "la- 
 borers and employees for labor and 
 services, etc., includes professional 
 services of counsel. Gurney v. At- 
 lantic cC G. W. R. Co. 58 N. Y. 358. 
 
 Counsel fees should be an annual 
 allowance. Boston Safe Deposit & 
 T. Co. V. Chamberlain, 25 U. S. App. 
 251, GO Fed. Rep. 847, 14 C. C A. 363. 
 
 An agreement between a receiver 
 whose compensation is fixed by the 
 court, and his attorney, whereby the 
 latter is to get only half of the at- 
 torney's fees stipulated for in the 
 obligations on which he may bring 
 suit for the receiver, inures to the 
 benefit of the debtors, and, if known 
 to them, is available as a defense pro 
 tanto, and, if unknown to them, 
 may be made the basis of a direct 
 proceeding to set aside a judgment 
 including the full amount of such 
 fees. Hammond v. Atlee, 15 Tex. 
 Civ. App. 267. 
 
 An allowance of only $1,000 to a 
 receiver for services of counsel ex- 
 tending over thirteen months, con- 
 sisting of advice required in the 
 proper performance of his duties, 
 and applications to the court as to 
 the payment of dividends, and serv- 
 ices in adjudications determining the 
 liability of funds in his hands for 
 certificates of profits amounting to 
 about $38,000, — is insufficient. Re 
 'New York Mut. Ins. Co. 17 App. Div. 
 633. 
 
 A fund in the hands of a receiver 
 of a corporation, representing the 
 proceeds of a judgment obtained by 
 it, is not subject to the lien of an at- 
 torney for services rendered general- 
 ly to the corporation at its request, 
 but not in the action in which the 
 judgment was obtained. Anderson 
 v. /•;. De Braekeleer d Co. 25 Misc. 
 343, Confirming Referee's Report in 
 28 N. Y. Civ. Proc. Rep. 306. 
 
 A receiver of an insolvent, who is 
 also an attorney at law, will be al- 
 lowed counsel fees only for services 
 requiring special legal skill, as he is 
 
 under obligation to perform such 
 duties in respect to the trust as an 
 ordinarily competent business man 
 is presumed to be capable of perform- 
 ing. Olson V. State Bank (Minn.) 
 75 N. W. 378. 
 
 An intervention by a debtor in a 
 judgment in favor of a receiver, in 
 an application by the attorney of the 
 receiver to have the attorney's fees 
 fixed and allowed, whereby such 
 debtor seeks to reduce the judgment 
 by one half of the attorney's fees in- 
 cluded therein, which the attorney 
 had agreed to allow the receiver to 
 retain, is a direct proceeding within 
 the rule that a judgment may be as- 
 sailed in a direct proceeding for 
 fraud or accident preventing the 
 party from availing himself of a 
 valid defense, where the court is the 
 same which rendered the judgment, 
 and has jurisdiction of all the par- 
 ties interested and control of the 
 funds. Hammond v. Atlee, 15 Tex. 
 Civ. App. 267. 
 
 A counsel fee and a proportionate 
 part of the expenses of an account- 
 ing by a receiver of a corporation 
 are properly charged against a fund 
 realized from collateral pledged 
 with the corporation to secure the 
 performance of a contract with it, 
 which was completed on behalf of the 
 corporation by the receiver, where 
 such expenses were rendered neces- 
 sary by the denial of his right to de- 
 duct the expenses of completing the 
 contract from such fund. Re A. E. 
 Chasmar & Co. 22 Misc. 680. 
 
 An attorney employed by a corpo- 
 ration without leave of court to re- 
 sist claims against the receiver of the 
 corporation who has all the assets 
 of the corporation in his hands, 
 whose services availed nothing, is 
 not entitled to compensation out of 
 the funds in the hands of the re- 
 ceiver. Anderson v. Fidelity & De- 
 posit Co. 100 Ga. 739. 
 
 No allowance should be made upon 
 the accounting of a receiver for ser- 
 vices of counsel in obtaining the ap- 
 pointment of a former receiver who 
 is superseded. Soivles v. National 
 Union Bank, 82 Fed. Rep. 139. 
 
 From what paid. 
 Counsel fees not for services in be- 
 
 39
 
 § 30 
 
 RECEIVERSHIPS— SUPPLEMENT. 
 
 half of a trust, but in opposition, are 
 not payable out of funds in hands of 
 receivers. Com. v. Mechanics Mut. 
 F. Ins. Co. 122 Mass. 421. 
 
 The attorney of an intervening 
 creditor in sequestration proceedings 
 against an insolvent corporation for 
 which a receiver was appointed pur- 
 suant to Minn. Gen. Stat. 1894, chap. 
 76, is not entitled to payment for 
 his services out of the corporate as- 
 sets in the hands of the receiver, al- 
 though the attorney brought the resi- 
 dent stockholders into court for the 
 purpose of enforcing their statutory 
 liability, where the latter made up a 
 fund to the amount of their unpaid 
 stocK subscriptions, with which they 
 paid or compromised the corporate 
 debts. lie Xorllicrn Trust Co. 
 (Minn.) 77 N. W. 219. 
 
 A Federal court cannot authorize 
 its receiver to pay out of the funds 
 in his hands, as part of the costs in 
 the suit, counsel fees contracted for 
 by a receiver appointed by a state 
 court over the same property. Amer- 
 ican Loan d T. Co. v. 8outh Atlantic 
 & 0. R. Co. 81 Fed. Rep. 62. 
 
 Not entitled to priority, when. 
 
 An attorney employed by a re- 
 ceiver of an insolvent railroad com- 
 pany appointed by a Federal court 
 to defend suits brought in such court 
 against the company for claims for 
 right of way taken by the company 
 is not entitled to priority for the rea- 
 sonable value of his services in such 
 suits, in a general creditors' bill in a 
 state court against the company, 
 where the Federal court did not have 
 jurisdiction because it did not have 
 the custody of the asssets of the com- 
 pany or the right to sell the same; 
 but such claim may be allowed as a 
 debt against the company on an 
 
 equality with other claims, where 
 other creditors do not object thereto, 
 although the receiver appointetl by 
 the state court does object, where 
 the order appointing him defines his 
 duties, and such objection does not 
 fall within the same. Crosby v. 
 Morristown <& C. G. li. Co. (Tenn. 
 Ch. App.) 42 S. W. 507. 
 
 Attorneys for an insolvent corpo- 
 ration are not entitled to be paid as 
 ))referred creditors of the corpora- 
 tion for services performed before 
 the commencement of proceedings for 
 the appointment of a receiver, al- 
 though he continues their employ- 
 ment after his appointment. Re 
 Montgomery (N. J. Eq.) 30 Chicago 
 Leg. NewSj 237. 
 
 By tohom appointed; corr^ensation. 
 
 A receiver has no right to employ 
 counsel without the consent of the 
 court. When appointed, the court de- 
 termines their charges. Walsh v. 
 Raymond, 58 Conn. 251. 
 
 Who employed. 
 
 A receiver in supplementary pro- 
 ceedings may employ the attorney 
 of the party for whose benefit the 
 proceedings are instituted. Baker 
 V. Van Epps, 60 How. Pr. 79. 
 
 Counsel for either party are not 
 employed as a rule, but it is only 
 when the receiver is acting adversely 
 to one or the other that the rule ap- 
 plies. Hynes v. McDermott, 14 
 Daly, 104. 
 
 Independent counsel for a receiver 
 should be appointed. Emmons v. 
 Davis d D. Pottery Co. (N. J. Eq.) 
 16 Atl. 157. 
 
 Case referred to master to ascer- 
 tain whether there was a valid claim 
 for counsel fees. People v. E. Bern' 
 ington & 8ons, 45 Hun, 347. 
 
 Page 91, sec. 30. — Power to sue. 
 
 Power of a receiver to convert 
 property into money and distribute 
 the same convej^s the implied power 
 to manage and preserve. Vander- 
 bilt V. Central R. Co. 43 N. J. Eq. 
 669. 
 
 Mo. Rev. Stat. §§ 551, 2193, 2194, 
 30 
 
 confer no authority on a receiver of 
 an insolvent corporation to prosecute 
 actions for damages for the miscon- 
 duct of directors. A court of equity 
 under its general power may do so. 
 Thompson v. Greeley, 107 Mo. 577. 
 Where the judgment debtor is in
 
 RECEIVER'S POWERS. 
 
 8S 31—33 
 
 possession of property as agent of a 
 third person who owns by paper title 
 apparently good, it is improper to 
 order a delivery to the receiver. The 
 receiver in such case must sue. Rod- 
 man V. Henry, 17 N. Y. 482. 
 
 A receiver of anoiner's personal 
 property, with power to take, col- 
 lect, recover, and sequester all the 
 rents and profits of his real estate, 
 and to sell and dispose of his person- 
 al estate, has no authority, after bid- 
 ding in the projjerty at a sale under 
 an execution, to sell it while acting 
 in his fiduciary capacity as receiver. 
 Donahue v. Quackenbush (Minn.) 
 77 N. W. 430. 
 
 A receiver of a corporation ap- 
 pointed in another state should not 
 be allowed, by an exercise of comity, 
 to sue for the enforcement of the li- 
 ability of stockholders, when it 
 would be in contravention of the 
 
 rights of the citizens of the state, 
 and operate to their injury. Wy- 
 man v. Eaton, 107 Iowa, 214, 43 L. 
 R. A. G95. 
 
 A receiver of a building and loan 
 association, empowered, ordered, and 
 directed by the court to collect all 
 claims due to such association, by 
 suit or otherwise, has authority to 
 bring an action to foreclose a mort- 
 gage due to the association. Hat- 
 field V. Cummings, 152 Ind. 280. 
 
 Poxcer to vote stock. 
 
 Where a receiver has been ap- 
 pointed under a creditors' bill, the 
 court may order the defendant to ex- 
 ecute a proxy or power of attorney 
 to enable the receiver to vote the 
 stock of the corporation, over which 
 he is appointed at the meeting of 
 stockholders. Atkinson v. Foster, 27 
 111. App. 63. 
 
 Page 93, sec. 31. — Power to make repairs. 
 
 A receiver in charge of a railroad 
 will not be prevented from renewing 
 the piling supporting a bridge across 
 a stream, at the suit of county com- 
 missioners, on the ground that the 
 piling interferes with the flow of the 
 water, if there is a county bridge 25 
 feet above the railroad bridge, un- 
 der which the clear space is only one 
 half as great as under the railroad 
 bridge, while the piling is not shown 
 to interfere with the How of water. 
 Van Wert County v. Peirce, 90 Fed. 
 Rep. 764. 
 
 The receivers of a railroad com- 
 pany appointed by an order direct- 
 ing them to continue the operation 
 
 of the company as it had been oper- 
 ated, keep the premises and property 
 in good condition and repair, and at 
 their discretion carry out any and 
 all contracts that the company has 
 made, and renew the same, have au- 
 thority, without further orders of 
 the court, to continue contracts for 
 the rental and repair of cars pre- 
 viously entered into by the company. 
 Mercantile Trust & D. Go. v. South- 
 ern Iron Car Line Co. 113 Ala. 543. 
 
 An order to change the location of 
 a railroad and build a bridge should 
 be made only on report of the master 
 showing the necessity. Hand v. Sa- 
 vannah d C. R. Co. 10 S. C. N. S. 406. 
 
 Page 94, sec. 32. — Power to purchase supplies, labor, etc. 
 
 Where a receiver is appointed to order of 
 
 run a hotel and make such purchases Ave. cG B 
 
 as may be necessary, he has implied Ala. 
 
 authority to purchase on a credit, in Ave. 
 the absence of any provision in the 
 
 appointment. Highland 
 R. Co. V. Thornton. 105 
 255 ; cf. Thornton v. Highland 
 & B. R. Co. 94 Ala. 353. 
 
 Page 96, sec. 33. — Power to continue business. 
 
 A receiver appointed on the ap- purpose of protecting the interests 
 plication of a subscriber to secure of the subscriber, sliouhl not be au- 
 the location of a factory, for the thorized to continue the business 
 
 31
 
 34 
 
 RECEIVERSHl PS— SUPPLEMENT. 
 
 generally, but only to collect debts 
 and protect the property. Vance v. 
 Shiawassee Circuit Judge, 102 Mich. 
 342. 
 
 In an action to restrain an insol- 
 vent defendant from mining for gold 
 upon the land of the plaintiff, the 
 receiver appointed to beat out the 
 ore already taken out, and prevent 
 its waste, will not be directed to con- 
 tinue the mining operations on his 
 own account, where such an order is 
 not necessary to preserve the prop- 
 erty or to maintain the rights of the 
 parties. Bigbee v. Summerour, 101 
 Ga. 201. 
 
 Power to operate a railroad. 
 
 The express power given by N. J. 
 
 act Feb. 11, 1874, to operate a rail- 
 road for the use of the public, is not 
 conferred on the receiver as an inde- 
 pendent person, but as an olficer of 
 court. Vanderbilt v. Central R. Co. 
 43 N. J. Eq. 069. 
 
 The order of April 5, 1894, direct- 
 ing a schedule of wages to be 
 adopted by the receivers of the Union 
 Pacific Railroad Company, did not 
 prevent them from making changes 
 in the train service or exercising 
 their discretion in the operation of 
 the railroad, although a little more 
 service is required of the trainmen, 
 where no unjust, unreasonable, or 
 excessive service is required. Dex- 
 ter v. Union P. R. Go. 75 Fed. Rep. 
 947. 
 
 Page 98, sec. 34. — Power to sell. 
 
 failure to give notice to the attor- 
 ney general, as required by the New 
 York statute, of an application to 
 sell land, is cured by a confirmation 
 of the sale. Johnson v. Rayner, 25 
 App. Div. 598. 
 
 Purchaser, no setoff. 
 
 The purchaser at a receivers' sale 
 has no right of setoflf against the re- 
 ceiver for money due from him indi- 
 vidually. Polk V. Garver Coal & 
 Min. Co. 91 Iowa, 570. 
 
 Refusal of court to extend time not 
 revieivable. 
 
 The discretion of the court in not 
 extending the time of payment for 
 goods sold at receivers' sale is not re- 
 viewable. Alvord V. Strickler, 10 
 Colo. 89. 
 
 A sale by a receiver appointed in 
 proceedings supplementary to a 
 judgment against a corporation 
 passes no title. Conner v. Todd, 48 
 N. J. L. 361. 
 
 Expense of sale deducted before cred- 
 its. 
 
 A chattel mortgagee will not be re- 
 quired to credit on his mortgage the 
 entire proceeds of a sale of the mort- 
 gaged property by a receiver under 
 an order directing the receiver to 
 make the sale and the mortgagee to 
 32 
 
 apply the proceeds to the payment of 
 the mortgage, but only the balance 
 of such proceeds after deducting ex- 
 penses properly incurred in hand- 
 ling and taking care of the mort- 
 gaged property, including amounts 
 paid to watchmen and for insurance 
 while awaiting an opportunity to 
 sell, and also the expense of loading 
 the property for transportation. 
 Hughes v. Edisto Cypress Shingle Co. 
 47 S. C. 1. 
 
 Poicer of the court to order sale. 
 
 The court has no power to direct 
 the sale of real estate free from judg- 
 ment liens. Re Lebanon Brewing 
 Co. 3 Pa. Dist. R. 260; Foster v. 
 Barnes, 81 Pa. 377. 
 
 Receiver protected in making sale. 
 
 A receiver duly appointed is pro- 
 tected in the sale of property in his 
 possession; and he is not a tres- 
 passer, nor is the plaintiff. Walling 
 v. Miller, 108 N. Y. 173. 
 
 Sale is judicial. 
 
 A sale by a receiver of a national 
 bank is a judicial sale. Re Third 
 Nat. Bank, 9 Biss. 535. 
 
 Purchaser protected. 
 The president of a corporation who 
 as such joins in the execution of a
 
 RECEIVER'S POWERS. 
 
 § 34 
 
 mortgage to secure several notes 
 payable to the mortgagee, who is not 
 stated therein to hold them in trust, 
 is estopped, as against good-faith 
 purchasers from one who purchased 
 the mortgaged property in good 
 faith at a sale by the receiver of the 
 corporation, to claim that one of 
 such notes belonging to him was still 
 secured by the mortgage because it 
 was not included at the sale, where 
 he had due notice of the appointment 
 of the receiver and of the sale, which 
 was advertised to be free from en- 
 cumbrances. Broicn v. Union De- 
 pot mreet It. Co. 65 Minn. 508. 
 
 Credit on purchase price. 
 
 A purchaser at a sale by an as- 
 signee and receiver in insolvency un- 
 der the Mississippi statute, which 
 was made with the understanding 
 that all prior liens were to be dis- 
 charged by the purchase price, is en- 
 titled to a credit for the amount he 
 has been obliged to pay as surety on 
 a forthcoming bond given by the re- 
 ceiver to secure the release of the 
 property from attachment, if no oth- 
 er creditor or the receiver has any 
 claim superior to that of the attach- 
 ing creditors; but if there are such 
 superior claims the credit must be 
 limited to the balance. Weems v. 
 Love Mfg. Co. 74 Miss. 831. 
 
 Property not in custodia leg is after 
 sale. 
 
 r'roperty purchased at a receiver's 
 sale is not in custodia legis, so as to 
 preclude its seizure under legal proc- 
 ess, merely because the court ap- 
 pointing the receiver has retained 
 jurisdiction for the purpose of seeing 
 that the purchaser pays off, satisfies, 
 and <lischarges certain claims pend- 
 ing and undetermined in that court. 
 Farrners' d M. Nat. Bank v. Scott 
 (Tex. Civ. App.) 45 S. W. 26. 
 
 To save franchise. 
 
 The property involved in an action 
 by creditors to set aside a convey- 
 ance of the property and franchises 
 of a corporation organized to con- 
 struct a public bridge is in danger of 
 being lost, so as to justify tlie ap- 
 pointment of a receiver to sell the 
 
 same pending the action, where oth- 
 erwise the franchises will be for- 
 feited for noncompletion of the 
 bridge within the required time. 
 Boston Investment Co. v. Pacific 
 Short-Line Bridge Co. 104 Iowa, 311. 
 
 When may object. 
 
 A banking corporation for which 
 a receiver has been appointed to wind 
 up its affairs under the provisions 
 of Neb. Comp. Stat. chap. 8, may be 
 heard to resist an application for an 
 order on the receiver to sell its real 
 estate, and is not estopped because 
 it consented to the appointment of 
 the receiver in the first instance, 
 when the order consented to did not 
 fix the terms, conditions, or time of 
 sale. State, German Sav. Bank, v. 
 Faiccett (Neb.) 78 N. W. 636. 
 
 Rescission; effect of. 
 
 Upon the resale of property sold 
 by a receiver acting under an order 
 of the court, but directed resold be- 
 cause the first sale was improvident- 
 ly made under a mistake of fact, the 
 first purchaser is entitled to be re- 
 paid the purchase price paid by him, 
 and interest thereon, and his reason- 
 able costs and expenses in defending 
 the sale made to him. Horse Springs 
 Cattle Co. V. Schofield, 9 N. M. — , 
 49 Pac. 954. Citing Williamson v. 
 Dale. 3 Johns. Ch. 293; Duncan v. 
 Dodd, 2 Paige, 101. 
 
 Purchaser cannot attack. 
 
 The purchaser at a receiver's sale 
 is estopped from asserting the in- 
 validity of receivers' certificates is- 
 sued by consent of all parties to the 
 suit, and used in preserving the 
 property. Central Trust Co. v. 
 Sheffield d B. Coal, Iron & R. Co. 44 
 Fed. Rep. 526. 
 
 Sale of securities. 
 
 A sale of securities by a receiver is 
 authorized. Re Newark Sav. Inst. 
 (N. J. Eq.) 8 Cent. Rep. 564. 
 
 Sale of property of a corporation. 
 
 An order providing for a receiv- 
 er's sale of property belonging to a 
 corporation, dirc^cting him to require 
 of tlie purchaser an immediate pay- 
 
 33
 
 § 34 
 
 RECEIVERSHIPS— SUPPLEMENT. 
 
 ment of $G,000, and then to accept 
 the first-mortgage bonds to the ex- 
 tent of $20,000, and that the "bal- 
 ance due on tlie purchase price" he 
 shall arrange to secure within thirty 
 days, requires the property to be 
 sold for more than $2(;,000, $20,000 
 of whicli tlie purchaser has the priv- 
 ilege of paying for in bonds, but is 
 not required to do so. Slaughter V. 
 Strothcr, 99 Ga. G33. 
 
 Order for sale; when made. 
 
 The court will not decree a sale of 
 property by a receiver until a party 
 claiming title has a hearing. Lane 
 V. Lutz, 1 Keyes, 203. 
 
 Order for sale set aside, when. 
 
 An order which authorized a re- 
 ceiver to sell cattle, based upon great 
 and material errors as to their num- 
 ber and value, will be set aside and 
 a resale ordered, although the receiv- 
 er acted under a mistake of fact. 
 Horse Springs Cattle Co. v. Scho- 
 field 9 N. M. — , 49 Pac. 954. Cit- 
 ing McGown V. Sandford, 9 Paige, 
 290; Broicn v. Frost, 10 Paige, 243; 
 Anderson v. Foulke, 2 Harr. & G. 
 355 ; Blackburn v. Selma R. Co. 3 
 Fed. Rep. G89; Deford v. Macwatty, 
 82 Md. 168; Graff am v. Burgess, 
 117 U. S. 180, 29 L. ed. 839; Schroe- 
 der V. Young, 161 U. S. 337, 40 L. ed. 
 724. 
 
 Receiver appointed to make sale. 
 
 Marvine v. Drexel, 68 Pa. 362. 
 
 Sale to pay taxes. 
 
 A receiver will be allowed to sell 
 at public or private sale the person- 
 al property of the receivership, in a 
 state where overdue taxes constitute 
 a lien which must be first paid out 
 of the proceeds, and pay such taxes 
 as quickly as possible from the pro- 
 ceeds. Fletcher v. Harney Peak Tin- 
 Min. Co. 84 Fed. Rep. 555. 
 
 As a whole^ ivhen. 
 
 The court may appoint a receiver of 
 a railroad company upon a cross pe- 
 tition by a lienholder in a suit to 
 marshal the liens and sell the prop- 
 erty, although such petition is filed 
 after a decree finding the priority of 
 34 
 
 liens and ordering sale of property 
 levied upon, where no sale has been 
 made for want of bidders; and such 
 receiver may be directed to sell the 
 property of the company as a whole, 
 where the whole is necessary to 
 carry on its enterprise. Mathers v. 
 Cincinnati R. Tunnel Co. 12 Ohio C. 
 C. 136. 
 
 Attack of sale; ground of. 
 
 There is no right of action in a 
 corporation to recover property sold 
 by a receiver except for fraud. New 
 Castle 'Northern R. Co. v. New 
 Castle & S. Valley R. Co. 152 Pa. 96. 
 
 Attack of sale; when made. 
 Relief against the purchaser at a 
 receiver's sale, charging collusion 
 with the receiver, should be in the 
 action when the receiver is ap- 
 pointed. Lockwood V. Reese, 7ft 
 Wis. 404. 
 
 Ratification of sale. 
 
 The unauthorized act of receivers 
 of a corporation appointed in pro- 
 ceedings for its voluntary dissolu- 
 tion, in making a sale of the prop- 
 erty on an order granted without no- 
 tice to the attorney general, is rati- 
 fied where the court, on the full dis- 
 closure of the facts, and with notice 
 to the attorney general, approves 
 and confirms the sale. Johnson v. 
 Rayner, 25 App. Div. 598. 
 
 Private sale ratified if assented to 
 by all parties in interest, though 
 the decree required public sale. Yet- 
 zer V. Applcgate, 85 Iowa, 121. 
 
 Sale of manufactured products. 
 
 A receiver authorized to operate 
 a plant, and sell the manufactured 
 products, and pay into court the pro- 
 ceeds above the cost of production, 
 cannot pay the operating expenses 
 from the money received from the 
 sale of real estate and deprive the 
 wage claimants of their lien. Gil- 
 lespie V. Blair Glass Co. 189 Pa. 50. 
 
 Distribution of proceeds; liens first 
 paid. 
 
 The proceeds of a sale by a receiv- 
 er of property of a corporation, on 
 which one of the creditors had a lien 
 at the time the receiver was ap-
 
 RECEIVER'S POWERS. 
 
 S 34 
 
 pointed, and the amount remaining 
 of such proceeds applicable to the 
 lien after payment of expertses and 
 charges, should be made to appear 
 before dividing the proceeds of the 
 entire corporate property, where 
 the proceeds of the sale of all the 
 property have been mingled to- 
 gether. Re F. X. Muller c£- Co. 47 N. 
 Y. Supp. 277. 
 
 What sale includes. 
 
 A receiver's sale of all assets with- 
 in the jurisdiction of the court in- 
 cludes debts due from nonresidents. 
 Loney v. Penniman, 43 Md. 130. 
 
 Effect of sale as to surety. 
 
 Failure of a receiver in selling 
 property under a decree of court, to 
 retain a lien for the purchase money 
 as authorized by statute and the de- 
 cree, will not release a surety on the 
 note given for the purchase money, 
 since the surety himself will be 
 chargeable with neglect in failing to 
 see that the lien was retained, and 
 the receiver was under no affirmative 
 duty to the surety. Joyce v. 
 Cockrill, 92 Fed. Rep. 838. 
 
 Judgment creditors of an insol- 
 vent corporation, who permit its 
 property to be sold by the receiver 
 subject to a mortgage given by the 
 corporation to one of its own direct- 
 ors, thereby lose their right to object 
 to the mortgage on that ground, and 
 have, after the confirmation of the 
 sale, no right to have such mortgage 
 set aside to which the purchaser at 
 the sale can be subrogated. Rich- 
 ards V. Haliday, 92 Fed. Rep. 798. 
 
 Effect as to liens. 
 
 A sale of property by a receiver of 
 a corporation does not in Pennsyl- 
 vania devest the lien of a prior mort- 
 gage securing bonds of the corpora- 
 tion, where no notice has been given 
 to the mortgagee or the holder of the 
 bonds of the application for tlie order 
 to sell. Fidelity Title d T. Co. v. 
 Schenley Park d H. R. Co. 189 Pa. 
 3G3. 
 
 Subject to liens. 
 
 A sale by a receiver under an or- 
 der not mentioning liens is subject to 
 
 the liens. Hackensack Water Co. v. 
 De Kay, 36 N. J. Eq. 548. 
 
 When free from liens. 
 
 A purchaser of railroad property 
 from one who purchased at a sale by 
 a receiver takes it free from claims 
 against the receiver, unless it is or- 
 dered otherwise by the terms of 
 sale. Houston, E. & W. T. R. Co. v. 
 IS! orris (Tex. Civ. App.) 41 S. W. 
 708. 
 
 When void. 
 
 A sale of assets of an insolvent 
 firm by the receiver thereof, without 
 other authority than that contained 
 in a decree which requires him to sell 
 such assets on a certain day, is not 
 merely irregular, but absolutely 
 void. Ackerman v. Ackerman, 50 
 Neb. 54. 
 
 A sale by a receiver in collusion 
 with the insolvent debtor is void as 
 to creditors, and the receiver is li- 
 able for the full value of the prop- 
 erty. An ex parte order confirming 
 such sale will be set aside. Re Shea, 
 57 Minn. 415. 
 
 When voidable. 
 
 A party cannot complain of a pur- 
 chase by a receiver as an individual 
 of what he sold as receiver, or his 
 purchase as receiver of Avhat he sold 
 as an individual, where he consented 
 beforehand to such transaction and 
 it was clearly for the benefit of the 
 trust property. Patterson v. Ward, 
 6 N. D. 609. 
 
 A purchase by a receiver, as agent 
 of another, of property sold at his 
 own sale, made under order of court, 
 is voidable at the election of a party 
 having a beneficial interest in the 
 property. Carr v. Houser, 46 Ga. 
 477. 
 
 Who are bound by sale. 
 
 An agreement by the receiver of 
 an insolvent corporation to retain 
 from the proceeds of a sale of the 
 corporate property an amount suffi- 
 cient to pay city taxes due from the 
 corporation, in order to induce the 
 city to refrain from attacking as 
 fraudulent a transfer of the property 
 by the corporation, and to induce the 
 purchaser to make the purchase, is 
 
 35
 
 § 34 
 
 RECEIVERSHIPS— SUPPLEMENT. 
 
 liinding upon the ereditors of tlie cor- 
 poration for whom the receiver 
 acted, and wlio were desirous that 
 the sale should be made, so long as 
 they retain the benefits of the sale, 
 even though the receiver exceeded 
 his authority in making such agree- 
 ment. Union Trust Co. v. Mahley, 
 113 Mich. 478. 
 
 When made. 
 
 A sale of personal property may 
 be ordered before the rights of par- 
 ties are determined, but not so of real 
 estate. Cole v. M'Rac, G Rand. (Va.) 
 C44. 
 
 The leave of the court to sell real 
 property of an insolvent corporation 
 in the hands of a receiver, under an- 
 execution on a judgment recovered 
 before his appointment, is implied 
 by its unqualified refusal to continue 
 an injunction against the sale. Pel- 
 letier v. Greenville Lumber Co. 123 
 N. C. 59G. 
 
 The court may properly order an 
 immediate sale of the property and 
 franchises, in a suit to set aside a 
 conveyance by a corporation, in or- 
 der to prevent a forfeiture of fran- 
 chises. Boston Investment Co. v. 
 Pacific Short-Line Bridge Co. 104 
 lowa^ 311. 
 
 An exception by a purchaser to the 
 confirmation of a private sale of the 
 chattels and leasehold estate of a 
 corporation by its receiver, on the 
 ground that two attachments were 
 levied upon the property before it 
 went into the receiver's hands, is 
 properly overruled where the court 
 ordered the receiver to settle with 
 the attaching creditors. Brook- 
 field v. Sharpe (Md.) 41 Atl. 1072. 
 
 The court may in a proper ease 
 permit a sale of real property of an 
 insolvent corporation in the hands of 
 a receiver, under an execution issued 
 upon a valid judgment recovered be- 
 fore the receiver's appointment. Pel- 
 let ier v. Greenville Lumber Co. 123 
 N. C. 596. 
 
 How made. 
 
 An order to sell the business and 
 all personal property as a whole is 
 erroneous and not calculated to sell 
 the property to the best advantage. 
 Case v. Fish, 63 Wis. 475, 497. 
 36 
 
 How enforced. 
 
 A sale by a receiver of a judgment 
 as an asset may be enforced by spe- 
 cific performance. Re Dcnison, 114 
 N. Y. 021. 
 
 Expenses paid by purchaser, when. 
 
 A court which, in decreeing the 
 sale of a railroad in possession 
 of a receiver, requires the pur- 
 chaser, who is a mortgagee, to pay 
 the expenses of the receivership as 
 part of the purchase price, and gives 
 lienholders the right to resort to 
 property not covered by the liens for 
 deficiency, will be 'held to have in- 
 tended that the claims against the 
 receivership should be extinguished 
 by payment, where to permit the 
 purchaser to hold them as claims 
 against the property would enable it 
 to appropriate the whole of the prop- 
 erty not subject to liens, to the ex- 
 clusion of other lien claimants. Mor- 
 gan's L. & T. R. & 8. 8. Co. V. Moran, 
 91 Fed. Rep. 22, 33 C. C. A. 313. 
 
 Reservation of jurisdiction, upon 
 ordering a railroad in the hands of a 
 receiver to be turned over to the pur- 
 chaser at foreclosure sale, for the 
 purpose of enforcing payment of all 
 the receiver's liabilities, will include 
 power to hear and determine ques- 
 tions touching the receiver's liabil- 
 ity for injuries caused by the receiv- 
 er's mismanagement or negligence. 
 Central Trust Co. v. Colorado M. R. 
 Co. (C. C. D. Colo.) 1 Denver Legal 
 Adv. 490. 
 
 Purchaser not liable when. 
 
 The purchaser at a judicial sale la 
 not liable on a contract by the re- 
 ceiver for supplies, and may assume 
 or repudiate the same. 8ioss Iron 
 & 8. Co. V. South Carolina d G. R. 
 Co. 42 U. S. App. 748, 85 Fed. Rep. 
 133, 29 C C. A. 50. 
 
 Purchase by receiver. 
 
 A purchase by the receiver at his 
 own sale, as agent of another, is void- 
 able at the election of a party in in- 
 terest. Carr v. Houser, 46 Ga. 477. 
 
 A sale to a receiver of property 
 over which he is appointed will not 
 be upheld. Eyre v. McDonnell, 15 Ir. 
 Ch. Rep. 534.
 
 RECEIVER'S POWERS. 
 
 §§ 36-3S 
 
 A receiver cannot, without special 
 leave of the court, become the pur- 
 chaser of lands over which he is re- 
 
 ceiver. Alven V. Bond, Flan. & K. 
 196, 3 Ir. Eq. Rep. 305. 
 
 Page 104, sec. 36. — Power to lease. 
 
 The court may order receiver to 
 take a lease of another road, or even 
 order him to build another, if neces- 
 sary for the preservation and pro- 
 tection of the property. Gilbert v. 
 Washington City, V. U. & G. S. B. 
 Co. 33 Gratt. 580. 
 
 Reference to master to determine 
 if receiver should lease. Gibbons v. 
 Hoivell, 3 Madd. 409. 
 
 The court has power to authorize 
 a receiver in a partition proceeding 
 to lease the property. Weeks v. 
 Weeks, 106 N. Y. 626. 
 
 Statutory receivers have no power 
 to lease the railroad over which they 
 
 are appointed; nor can such a lease 
 be ratified. State v. McMinnville 
 & M. R. Co. 6 Lea, 369. 
 
 The court refused to authorize a 
 receiver to surrender a lease and 
 make a new one for less rent. Duty 
 of receiver to advertise for tenant, 
 etc. Lorillard v. Lorillard, 4 Abb. 
 Pr. 210. 
 
 The court has no power to declare 
 void a lease made by receiver in good 
 faith, in accordance with the pro- 
 visions of a will, in the interests of 
 the beneficiaries of such will. Bay- 
 ly V. Gaines (Va.) 2 S. E. 739. 
 
 Page 108, sec. 37. — Power over property in foreign jurisdiction. 
 
 A receiver of rents in India may 
 
 be appointed in England. v. 
 
 Lindsey, 15 Ves. Jr. 91. 
 
 Courts exercise jurisdiction in re- 
 lation to lands abroad, where the par- 
 ties are within control. Massie v. 
 Watts, 6 Cranch, 148, 3 L. ed. 181; 
 Ward V. Arredondo, Hopk. Ch. 213, 
 14 Am. Dec. 543; Le Roy v. Rogers, 
 
 3 Paige, 236 ; Hawley v. James, 7 
 Paige, 218, 32 Am. Dec. 623 ; Sutphen 
 v. Foivler, 9 Paige, 280; Briggs v. 
 French, 1 Sumn. 504; Congden v. 
 Lee, 3 Edw. Ch. 307. 
 
 In England the court has enter- 
 tained jurisdiction to settle bound- 
 aries in Jamaica. Tulloch v. Hart- 
 ley, 1 Younge & C. Ch. Cas. 114. 
 
 Page 111, sec. 38. — Power to impeach fraudulent acts of debtor. 
 
 Fraudulent mortgages. 
 
 A receiver in supplementary pro- 
 ceedings may avoid an invalid mort- 
 gage in behalf of the creditors he 
 represents. Hedges v. Polhemus, 9 
 Misc. 680; Mandeville v. Avery, 124 
 N. Y. 376;A'Mser v. Wright, 52 N. J. 
 Eq. 825. 
 
 A receiver of an insolvent corpo- 
 ration may assail a chattel mortgage 
 executed by the corporation because 
 of the failure to refile it as required 
 by the New York statute. Farmers' 
 Loan d T. Co. v. Baker, 20 Misc. 387. 
 
 The receiver of the property of a 
 corporation may avoid a prior chat- 
 
 tel mortgage upon the corporate 
 property, on the ground that it was 
 not filed as required by the law re- 
 lating to such mortgages. Bayne 
 v. Brewer Pottery Co. 90 Fed. Rep. 
 754. 
 
 Fraudulent conveyances. 
 
 The receiver of an insolvent debt- 
 or may avoid a sale by such debtor of 
 his personal property to defraud his 
 creditors by demanding of the fraud- 
 ulent vendee a return of the prop- 
 erty, and may replevy the proj)crty, 
 or sue the vendee for its value, upon 
 the refusal of such demaiul, witliout 
 first bringing an equitable action to 
 
 37
 
 § 40 
 
 RECEIVERSHIPS— SUPPLEMENT. 
 
 set aside the sale. Rossman v. 
 Mitchell (Minn.) 75 N. W. 1053, De- 
 nyin}^ Koliearing in 70 N. W. 48. 
 
 Without an action for that pur- 
 pose the receiver is in no position to 
 question the validity of a transfer. 
 Be Castle, 2 N. Y. S. R. 302. 
 
 The receiver of an insolvent com- 
 pany may by suit or defense avoid 
 anj- instrument which is a fraud on 
 creditors. Graham Button Co. v. 
 Spielmann, 50 N. J. Eq. 120. 
 
 A receiver appointed in an action 
 by the creditors of a firm in aid of an 
 assignment for creditors by the firm 
 to set aside a prior transfer to a cor- 
 poration cannot properly be treated 
 as a receiver of the corporation, al- 
 though he entertains the belief that 
 he is such a receiver, and has so de- 
 scribed himself in certain papers. 
 Badger v. Sutton, 30 App. Div. 294. 
 
 Notice under New York statute to 
 parties with property in their posses- 
 sion to turn over is not a prerequi- 
 site to a suit by him to compel an ac- 
 counting for property transferred. 
 Sticfel V. Hiew York Novelty Co. 25 
 Misc. 221. 
 
 A receiver in supplementary pro- 
 ceedings of the property of a foreign 
 corporation has the same right as 
 any other receiver of a corporation, 
 under N. Y". Laws 1858, chap. 314, §§ 
 1, 2. Stephens v. Meriden Britan- 
 nia Co. 13 App. Div. 268. 
 
 A receiver in a supplemental pro- 
 ceeding has no right to bring suit 
 to set aside a conveyance to hinder, 
 delay, or defraud creditors. Hayner 
 V. Foioler, 16 Barb. 300. 
 
 A receiver may repudiate the ille- 
 gal transfer of securities. Ohio v. 
 Leavitt, 7 N. Y. 328. 
 
 Before a receiver can disaffirm a 
 
 fraudulent conveyance, he must show 
 a judgment and execution returned, 
 as in such case he does not repre- 
 sent the corporation, but the credit- 
 ors. Buckley v. Harrison, 10 Misc. 
 083. 
 
 A receiver is the only one who can 
 attack a fraudulent conveyance. 
 Angell v. Pickard, 61 Mich. 561. 
 
 Fraudulent judgmetits. 
 
 A receiver of a corporation is not 
 estopped to assail a confession of 
 judgment by the corporation on the 
 ground that it was made while the 
 corporation was insolvent, by an or- 
 der of the court approving the report 
 of a former receiver of the corpora- 
 tion, which falsely represented that 
 all of the debt, except a balance 
 upon the judgment, had been paid, 
 permitting him to turn over the 
 goods in his hands to the corpoi'ation 
 subject to the lien of the judgment, 
 and discharging him as receiver. 
 Compton V. Schwabacher Bros, d Co. 
 15 Wash. 306. 
 
 A receiver of the goods of a debtor 
 is properly appointed under N. C. 
 Code, § 379, subd. 1, in proceedings 
 to restrain the sale of such property 
 by one to whom the debtor has con- 
 fessed judgment and who has seized 
 the same under execution, where 
 there is evidence that such judg- 
 ment was confessed for the purpose 
 of defrauding creditors, and the 
 debtor has no property in the state 
 subject to execution, and that the 
 sheriff sold the property under such 
 execution after the issuance of the 
 restraining order to the judgment 
 creditors, who still have the property 
 or its proceeds. Stern v. Austern, 
 120 N. C. 107. 
 
 Page 117, sec. 40. — Power to issue certificates. 
 
 Formal notice of an application 
 for the issuance of receivers' certifi- 
 cates which shall be prior to existing 
 liens need not be given to the hold- 
 ers of such liens, provided its equiva- 
 
 lent is given and fhey are allowed the 
 opportunity of contesting the appli- 
 cation. Crosby v. Morristoion <& C. 
 G. R. Co. (Tenn. Ch. App.) 42 S. W. 
 507. 
 
 30
 
 RECEIVEK'S POWERS. 
 Page 117, sec. 41. — Power to appeal. 
 
 S 41 
 
 It is not an unbending rule that a 
 receiver is not allowed to appeal 
 from an order to turn over property 
 and funds. Thus, if he is ordered to 
 turn over more than he has in cus- 
 tody, it is essential to the protection 
 of his rights that he be allowed to 
 appeal. How v. Jones, 60 Iowa, 70. 
 
 An order that a receiver invest 
 funds is appealable. Collins v. 
 Case, 25 Wis. 651. 
 
 A receiver appointed in a suit to 
 foreclose a mortgage on a railroad 
 may appeal from a judgment against 
 him for damages for personal in- 
 juries. Thorn V. Pittard, 8 U. S. 
 App. 597, 62 Fed. Rep. 232, 10 C. C. 
 A. 352. 
 
 Where a decree appointing a re- 
 ceiver decides the right to possession 
 of property in contest, and the com- 
 plainant is entitled to have it im- 
 mediately carried into effect, it is 
 final and appealable. Winthrop 
 Iron Co. V. Meeker, 109 U. S. 180, 27 
 L. ed. 898. 
 
 An appeal may be taken from an 
 order to a receiver appointed to set- 
 tle partnership affairs, to pay either 
 or both members, upon request, for 
 services in conducting the firm busi- 
 ness, without reference to the state 
 of the accounts between them as 
 shown by the firm books, the pay- 
 ments to be accounted for on final 
 settlement, where the state of the as- 
 sets is such that the payments, if 
 erroneous, cannot be restored. Tay- 
 lor V. Sweet, 40 Mich. 736. 
 
 An appeal may be taken by re- 
 ceivers for a corporation, either in 
 their own names or that of the cor- 
 poration, from an order continuing 
 an action against them, made in a 
 case pending when the appointment 
 was made. People v. Troy Steel & 
 I. Co. 82 Hun, 303. 
 
 An appeal by a receiver from an 
 order granted on an intervening pe- 
 tition is proper when it is in the na- 
 ture of an adversary proceeding. 
 Dillingham v. Hawk, 23 U. S. App. 
 273, 60 Fed. Rep. 494, 23 L. R. A. 
 617. 
 
 A motion in vacation for the revo- 
 cation of an ex parte appointment of 
 
 a receiver, which was made in vaca- 
 tion, is permitted by a reasonable 
 construction of Mo. Laws 1895, p. 91, 
 providing for an appeal from an or- 
 der refusing to revoke or change an 
 interlocutory order appointing a re- 
 ceiver. St. Louis, K. & S. R. Co. v. 
 Wear, 135 Mo. 230, sub nom. State, 
 St. Louis, K. & S. R. Co., v. Wear, 33 
 L. R. A. 341. 
 
 An order appointing a receiver is 
 appealable as a final judgment, with- 
 in the meaning of Utah Const art. 8, 
 § 9, as the question whether an or- 
 der is appealable depends on its ef- 
 fect on the rights of the parties, 
 rather than the stage of the litiga- 
 tion. Ogden City v. Bear Lake & 
 River Watertcorks & Irrig. Co. 16 
 Utah, 440, 41 L. R. A. 305. 
 
 A receiver may appeal in his in- 
 dividual capacity from an order 
 which determines that after his dis- 
 charge from office he will be per- 
 sonally liable for obligations which 
 he has contracted officially. Re 
 Premier Cycle Mfg. Co. 70 Conn. 473. 
 
 The creditors of an insolvent cor- 
 poration, part of the assets of which 
 consist of the stock in another in- 
 solvent corporation, may appeal 
 from the allowance of claims against 
 the latter corporation by the receiver 
 thereof, where such receiver is also 
 receiver of the other corporation. 
 Blake v. Domestic Mfg. Co. (N. J. 
 Eq.) 14 Bkg. L. J. 550, 38 Atl. 241. 
 
 A corporation can appeal suspen- 
 sively from an order appointing a re- 
 ceiver for it. Metropolitan Bank v. 
 Commercial Soap, C. & S. Manufac- 
 tory, 48 La. Ann. 1383. 
 
 Mandamus will not lie in Michi- 
 gan to review an order for the ap- 
 pointment of a receiver. Scott v. 
 Speed, 58 Mich. 312. 
 
 An attaching creditor whose right 
 to intervene has been denied in a 
 proceeding to appoint a receiver has 
 no appeal. He may resort to pro- 
 hibition. State, J. M. Arthur Mach. 
 Co., V. Snohomish County Super. Ct. 
 7 Wash. 77. 
 
 Objections to the preliminary 
 affidavit in supplementary jiroceed- 
 ings cannot be raised on an appeal 
 
 39
 
 § 41 
 
 RECEIVERSHIPS— SUPPLEMENT. 
 
 from the order appointing the re- 
 ceiver, when not made in the trial 
 court. Union Bank v. Sargent, 53 
 Barb. 422, 35 How. Pr. 87. 
 
 An order by the supreme court of 
 New York, granted u])on the appli- 
 cation of a receiver, extending the 
 time for presentation of chiinis, is 
 discretionary, and therefore not ap- 
 pealable. People, Atty. Gen., v. ;Sfe- 
 curity L. Ins. d Annuity Co. 79 N. 
 Y. 2G7. 
 
 No appeal lies under Miss. Code, 
 § 2311, from an order removing a re- 
 ceiver. Hanon v. Weil, 69 Miss. 
 476. 
 
 An appeal will not lie, in the ab- 
 sence of statutory authority, from 
 an order substituting one person for 
 another as receiver. International 
 Bldg. L. & Invest. Union v. McOoni- 
 gle, 72 111. App. 399. 
 
 An ap])eal from an order substitut- 
 ing one person for another as re- 
 ceiver is not authorized by 111. act 
 1887, providing that whenever an in- 
 terlocutory order is entered "ap- 
 pointing a receiver," an appeal may 
 be taken therefrom. Ihid. 
 
 A receiver cannot appeal from an 
 order removing him from office, on 
 the ground that a finding of facts 
 therein states that he mismanaged 
 the property in various particulars, 
 and that his business reputation may 
 be thereby damaged, where he asked 
 to have such finding made, and there 
 was no necessity for it. Re Premier 
 Cycle Mfg. Co. 70 Conn. 473. 
 
 A receiver cannot, either as such 
 or individually, appeal from an or- 
 der removing him from office, where 
 the court had jurisdiction to make 
 it. Ibid. 
 
 A receiver cannot appeal from an 
 order removing him from office, on 
 the ground that it contains a finding 
 which may be construed to import 
 that he is personally liable for cer- 
 tain bills contracted by him as re- 
 ceiver, as such finding cannot be 
 used against him on any subsequent 
 accounting, or in any other suit. 
 Ibid. 
 
 A receiver has no right to appeal 
 from an order denying a motion 
 made pending a hearing upon a pe- 
 tition for his removal, authorizing 
 him to sell certain property of the 
 
 40 
 
 estate at auction, and from the pro- 
 ceeds pay debts which he had con- 
 tracted in the management of the 
 business. Ibid. 
 
 An appeal will not lie by a rail- 
 road coini)any from the portion of an 
 order denying a petition for the pay- 
 ment of debts incurred for current 
 expenses before the receivers' ap- 
 pointment, out of the assets in his 
 ' hands, which declares that the com- 
 pany is indebted to the petitioners, 
 as such provision would not bind the 
 company in any proceedings taken 
 for the collection of the claim. 
 Guarantee Trust d 8. D. Co. v. 
 Philadelphia, It. d N. E. R. Co. 31 
 App. Div. 511. 
 
 A receiver cannot appeal from a 
 decree allowing certain just claims 
 preference to a mortgage, on the 
 ground that there had been no diver- 
 sion of income, where neither the 
 trustee nor the bondholders object. 
 Bosivorth V. Terminal R. Asso. 53 
 U. S. App. 302, 80 Fed. Rep. 969, 26 
 C. C. A. 279. 
 
 The objection that the receiver ap- 
 pointed to rent out land until it 
 could be sold in partition proceed- 
 ings was a solicitor in the case and 
 interested in the land as an heir is 
 not available on appeal in the parti- 
 tion proceedings after the receiver 
 has made final settlement, — especial- 
 ly where no specific wrong by him is 
 pointed out. Rogers v. Rogers 
 (Tenn. Ch. App.) 42 S. W. 70. 
 
 The creditors of an insolvent cor- 
 poration, part of the assets of which 
 consist of the stock in another in- 
 solvent corporation, maj^ appeal 
 from the allowance of claims against 
 the latter corporation by the receiver 
 thereof, where such receiver is also 
 receiver of the other corporation. 
 Blake v. Domestic Mfg. Co. ( N. • J. 
 Eq.) 14 Bkg. L. J. 550, 38 Atl. 241. 
 
 Time within which appeal taken. 
 
 An appeal must be taken within 
 the time allowed by statute. Rus- 
 sell V. First Nat. Bank, 65 Iowa, 
 242. 
 
 A delay of eight years in appealing 
 from a receiver's disallowance of a 
 claim is a bar to relief. Leo v. 
 Green, 52 N. J. Eq. 1.
 
 EECEIVER'S POWERS. 
 Page 119, sec. 42. — Miscellaneous powers. 
 
 § 42 
 
 A receiver under the direction and 
 authority of the court has power to 
 continue the payment of bounties. 
 Re Rcddington, 1 Molloy, 256. 
 
 To sell horses as perishable prop- 
 erty. Howell V. Frances ( N. J. Eq. ) 
 9 Atl. 379. 
 
 To proceed and act for all credit- 
 ors. Angell v. Silsiury, 19 How. Pr. 
 48. 
 
 To complete an unfinished portion 
 of a railroad. Kennedy v. St. Paul 
 & P. R. Co. 2 Dill. 448. 
 
 And may apply to court for in- 
 structions. Re Knickerbocker Bank, 
 19 Barb. 002. 
 
 The court in possession through its 
 receiver exercises the power of the 
 board of directors of an insolvent in- 
 surance company in addition to the 
 powers conferred by statute. Rand, 
 McN. & Co. V. Mutual F. Ins. Co. 58 
 111. App. 528. 
 
 The receiver has no power to trans- 
 fer to a foreign jurisdiction ques- 
 tions concerning the distribution of 
 assets. Reynolds v. Stockton, 43 N. 
 J. Eq. 211. 
 
 Or to condemn property for rail- 
 road purposes. Minneapolis <& St. 
 L. R. Co. V. Minneapolis d W. R. Co. 
 61 Minn. 502. 
 
 The receiver of a nonresident as- 
 sociation is not, as matter of right, 
 entitled to appear and defend in at- 
 tachment proceedings against it, 
 where its nonresident assignee has 
 appeared and moved to have the pe- 
 tition made more definite, and has 
 thereafter made default, although 
 the receiver's answer was filed be- 
 fore the default was entered against 
 the association and its assignee. 
 Hedrick v. McElroy (Iowa) 76 N. 
 W. 716. 
 
 A sheriff appointed receiver of the 
 property of a judgment debtor as 
 permitted by the Kansas statute has 
 the same authority as any other ap- 
 pointee would have. Teats v. Bank 
 of Herington, 58 Kan. 721. 
 
 A receiver is entitled, the same as 
 any other party in an action to 
 which he is a party, to a trial by 
 jury on questions of fact, the right 
 to which is guaranteed by the Texas 
 
 Constitution. Bamm v. /. Stone & 
 Sons Live-Stock Co. 13 Tex. Civ. 
 App. 414. 
 
 A receiver of a national bank can- 
 not recover upon notes made for the 
 accommodation and advantage of the 
 bank with full notice to its manag- 
 ing officer, as he stands in the shoes 
 of the bank. Stapylton v. Teague, 
 52 U. S. App. 577, 85 Fed. Rep. 407, 
 29 C. C. A. 229. 
 
 In an action upon a promissory 
 note, brought by one who purchased 
 it in good faith at a judicial sale 
 made under the authority and with 
 the sanction of the court, an inter- 
 vening receiver who sets up title to 
 the note cannot be permitted to col- 
 laterally impeach such sale, where 
 the parties at whose suit he was ap- 
 pointed had opportunity to seize the 
 assets before the sale or intervene 
 in the actions which led up to it. 
 Anderson v. Chicago Title d T. Co. 
 101 Wis. 385. 
 
 The power of a receiver to incur 
 obligations for supplies and ma- 
 terials incidental to the business, 
 with permission of the court, follows 
 as a necessary incident to the re- 
 ceivership. Cake V. Mohun, 164 U. S. 
 311, 41 L. ed. 447; Ellis v. Vernon 
 Ice, Light & W. Co. 86 Tex. 109. 
 
 A receiver of a corporation, with 
 only the power specified in N. Y. 
 Code Civ. Proc. § 1788, is a mere cus- 
 todian and manager of the property 
 under direction of the court during 
 the pendency of the action, and can- 
 not discharge an employee under con- 
 tract with the corporation, or au- 
 thorize a deputy to do so. Murray 
 V. Cantor, 18 Misc. 389. 
 
 A receiver and manager of a com- 
 pany cannot annul its contracts. 
 Re Marria(/e [1896] 2 Ch. 603, 65 
 L. J. Ch. N. S. 839, 75 L. T. N. S. 
 169. 
 
 A receiver in chancery who wrong- 
 fully enters into a partnership with 
 anotluM- cannot set up his want of au- 
 thority to enter into such partner- 
 ship as a ground for maintaining an 
 action at law against his partner for 
 a sum alleged to be due by account, 
 where such partner would otherwise 
 
 41
 
 § 42 
 
 RECEIVERSHIPS— SUPPLEMENT. 
 
 be entitled to a partnership account- 
 ing. Etowah Min. Co. v. Christo- 
 pher, 112 Ala. 554. 
 
 A receiver has no power to waive 
 the equitable rights of contractors. 
 Kciley v. Dusenbury, 10 Jones & S. 
 238. 
 
 Or to allow an offset purchased 
 for that purpose after his appoint- 
 ment. Van Dyke v. McQuade, 85 
 N. Y. 616. 
 
 A receiver in a suit in affirmance 
 of an assignment is not permitted to 
 come in and open up a decree in an- 
 other suit, where the assignment is 
 set aside as fraudulent and void. 
 Wheeler v. Wheedon, 9 How. Pr. 293. 
 
 A receiver cannot reach a surplus 
 income created by a person other 
 than the debtor. Such power is in 
 the creditor only in a direct proceed- 
 ing. Levey v. Bull, 47 Hun, 350; 
 Tolles v. Wood, 99 N. Y. 616; Mann- 
 ing v. Evans, 19 Hun, 500. 
 
 A receiver may remove a cause 
 from a state court to a Federal court 
 when he is a Federal court receiver. 
 Evans v. Dillingham, 43 Fed. Rep. 
 177. 
 
 His power ceases in an appeal in 
 an ejectment suit, when the rights of 
 parties are finally declared, after 
 which he holds for the successful 
 party. Garniss v. San Francisco 
 Super. Ct. 88 Cal. 413. 
 
 The acts of a receiver cannot be 
 questioned in a collateral proceed- 
 ing. Bradley v. Marine River Phos- 
 phate Min. d Mfg. Co. 3 Hughes, 
 26. 
 
 Receivers of a national banking 
 association, as such, have not the 
 privilege in all cases of being sued 
 in the United States courts, and can- 
 not remove such cases against them 
 from state to United States courts. 
 Bird V. Cockrem, 2 Woods, 32. 
 
 The power of a receiver is meas- 
 ured by the order of appointment. 
 Grant v. Davenport, 18 Iowa, 194. 
 
 But may be enlarged from time to 
 time. State v. Edgefield & K. R. Co. 
 6 Lea. 353. 
 
 And in all cases he is bound by his 
 instructions and orders. Burroughs 
 V. Bunnell, 70 Md. 18. 
 
 The receiver is a ministerial of- 
 ficer. Lafayette Bank v. Bucking- 
 ham, 12 Ohio St. 419. 
 42 
 
 And as such is not required to ren- 
 der professional services as a lawyer. 
 Olson v. State Bank, 72 Minn. 320. 
 
 The receiver in the management of 
 receivership duties has discretionary 
 power. Morley v. Snow (Mich.) 41 
 L. R. A. 817, 5 Det. L. N. 200. 
 
 A trustee in a mortgage executed 
 to a building and loan association for 
 which a receiver has been appointed 
 may sell the land under a power 
 contained in the mortgage, but must 
 jiay over all the proceeds of the sale 
 to the receiver, although it exceeds 
 the amount of the mortgage, as the 
 liability of the borrowing member 
 cannot be known until it is ascer- 
 tained to what amount the associa- 
 tion is insolvent. Thompson v. 
 North Carolina Bldg. c6 L. Asso. 120 
 N. C. 420. 
 
 If a receiver to collect has no au- 
 thority to pay debts, but does so with 
 the knowledge of the parties, and no 
 objection is made at the time, they 
 cannot afterwards object. Kellar 
 V. Williams, 3 Rob. (La.) 321. 
 
 A receiver may ratify a sale made 
 after insolvency or suspension of 
 business, though the act is void un- 
 der statute. Suydam v. Bank of 
 New Brunswick, 3 N. J. Eq. 114. 
 
 The power conferred upon the di- 
 rectors of an insurance company by 
 a premium note by which the maker 
 promised to pay the company a cer- 
 tain sum of money, "in such pro- 
 portions and at such time or times 
 as the directors of said company 
 may, agreeable to their charter, re- 
 quire," passes to a receiver of the 
 company appointed by the court of 
 chancery in proceedings taken pursu- 
 ant to the New Jersey statute, 
 against the company as an insolvent 
 corporation. Meley v. Whitaker, 61 
 N. J. L. 602, Affirming 38 Atl. 840. 
 
 The power of the court to appoint 
 a receiver to collect the assets of a 
 mutual benefit association does not 
 change the character of the contract 
 between the association and its mem- 
 bers, so as to make them debtors for 
 assessments, when by the contract 
 they were not so. Lehman v. Clark, 
 174 111. 279, 43 L. R. A. 648, Revers- 
 ing 71 111. App. 366. 
 
 A receiver to collect rents has 
 power until he is discharged, al-
 
 RECEIVER'S POWERS. 
 
 § 43 
 
 though the suit has abated. 'New- 
 man V. Mills, 1 Hogan, 291. 
 
 A mortgagee does not exhaust his 
 remedy by a foreclosure and sale, 
 but a receiver may be thereafter ap- 
 pointed to collect the rents and prof- 
 its during the period of redemption 
 and apply them upon an ascertained 
 deficiency, when the mortgagor is in- 
 solvent. First Nat. Bank v. Illinois 
 Steel Co. 174 111. 140, Affirming 72 
 111. App. 640. 
 
 A receiver appointed under Minn. 
 Gen. Stat. 1894, chap. 70, in an ac- 
 tion for the sequestration of the as- 
 sets of an insolvent corporation, has 
 no authority, except in cases where 
 it is otherwise provided by statute, 
 to enforce the individual liability of 
 the stockholders of the corporation 
 for its debts. Minneapolis Baseball 
 Co. V. City Bank, 06 Minn. 441, 38 
 L. R. A. 415. 
 
 The right of receivers of insolvent 
 banking corporations appointed un- 
 der Minn. Laws 1895, chap. 145, § 
 20, to enforce the stockholders' lia- 
 bility, is primarilv exclusive of the 
 right, under Minn. Gen. Stat. 1894, 
 chap. 76, to enforce such liability; 
 but the creditors may for good cause 
 shown be permitted by the court in 
 which the insolvency proceedings are 
 pending to enforce such liability 
 when the receivers neglect to do so. 
 Anderson v. Seymour, 70 Minn. 358. 
 
 A receiver to whom a court of com- 
 petent jurisdiction orders the pay- 
 ment of assessments by stockholders 
 has no authority to consent to a de- 
 cree in another state for the payment 
 of such obligations to the creditor 
 in whose suit he was appointed. 
 
 Castleman v. Templeman, 87 Md. 
 540, 41 L. R. A. 367. 
 
 The receiver of a corporation, in 
 the absence of statutory authority, 
 cannot sue to enforce a liability cre- 
 ated by statute against stockholders 
 in favor of creditors, independently 
 of what they owe the corporation on 
 the amount of their stock. Gainey 
 V. Gilson, 149 Ind. 58. 
 
 The court has power to order a 
 state treasurer to pay over to a re- 
 ceiver money held in his hands as a 
 bank fund. Danhy Bank v. State 
 Treasurer, 39 Vt. 92. 
 
 The receiver of an insolvent cor- 
 poration has no right to file a motion, 
 in assignment proceedings by it, for 
 the dismissal of such proceedings on 
 the ground that the assignment for 
 creditors was made while the pro- 
 ceedings for the appointment of the 
 receiver were pending. Flint v. 
 Poicell, 10 Colo. App. 66. 
 
 A receiver cannot assign an inter- 
 est in a patent right. Gordon v. 
 Anthony, 16 Blatchf. 234. 
 
 And he has no right to a partition 
 of property, but may have dower as- 
 signed. Tayne v. Becker, 87 N. Y. 153. 
 
 Liquidating commissioners of a 
 defunct corporation cannot as such 
 contest debts of copartnerships from 
 the consolidation of which the cor- 
 poration was formed, and whose as- 
 sets it took possession of, and whose 
 indebtedness it assumed to pay, on 
 the ground that more than the legal 
 rate of interest was included in set- 
 tlement of the account by such firm, 
 although dividends to other credit- 
 ors are reduced. Re Leeds & Co. 49 
 La. Ann. 501. 
 
 Page 121. — Receiver's possession. 
 
 The possession of the receiver un- 
 der the direction of the court is the 
 possession of the party entitled to 
 the rents and profits. Horlock v. 
 Smith, ] 1 L. J. Ch. N. S. 157, 6 Jur. 
 478. 
 
 And after his discharge his posses- 
 sion is that of the party in interest. 
 Ibid. 
 
 In supplementary proceedings the 
 judge has control, under the New 
 York Code, over the assets in the 
 
 hands of a receiver. Webber v. Hob- 
 ble, 13 How. Pr. 382. 
 
 A receiver cannot devest himself 
 of trust powers. Mann v. Fairchild, 
 2 Keyes, 100. 
 
 He must not interfere in litigation 
 between parties. Comyn v. Smith, 1 
 Hogan, 81. 
 
 The claim of an equity or lien on 
 property held by an officer of a cor- 
 poration to secure a debt to himself 
 does not defeat the jurisdiction of a 
 
 43
 
 § 43 
 
 RECEIVERSHIPS— SUPPLEMENT. 
 
 court which has appointed a receiver 
 for the corpoiation in a suit to wliich 
 the ollicer is a party, after hearing 
 on due notice and appearance, to or- 
 
 der him to turn over such property 
 to the receiver. Tin.sley v. Ander- 
 son, 171 U. S. 101, 43 L. ed. 91. 
 
 Page 121, sec. 43. — How disturbed. 
 
 After a receiver has been ap- 
 pointed and has become vested with 
 the title to all assets, the creditor in 
 whose behalf he has been appointed 
 lias no right to intervene and seize 
 upon part of the estate. Passavant 
 v. Boicdoin, GO Hun, 433; American 
 Trust iC- 8av. Bank v. Frankenthal, 
 55 111. App. 400 : Parker v. Brown- 
 ing, 8 Paige, 388 ; Wardle v. Lloyd, 
 
 2 IMolloy, 388; State, Remington 
 Paper Co., v. Ellis, 45 La. Ann. 1418; 
 Tink V. Rundle, 10 Beav. 318; Ames 
 V. Birkenhead Docks, 20 Beav. 332, 
 1 Jur. N. S. 529; Klauber v. San 
 Diego Street Car Co. 95 Cal. 353; 
 Dorman v. Dorman, 3 Ir. Eq. Rep. 
 385. 
 
 Unless the title of a receiver of a 
 state court is impeached under the 
 bankrupt act, his possession of the 
 assets will not be interfered with by 
 the Federal court in bankruptcy 
 proceedings. Re Price (1899) 92 
 Fed. Rep. 987 ; Alden v. Boston, H. 
 & E. R. Co. (1871) 5 Nat. Bankr. 
 Reg. 230; Clark v. Bininger (1870) 
 
 3 Nat. Bankr. Reg. 518. 
 
 Funds vested in a receiver four 
 months prior to the bankrupt pro- 
 ceedings will not be interfered with 
 by the bankrupt court. Re Meyer 
 (1899) 1 Nat. Bankr. News, 293. 
 
 A receiver in possession of mort- 
 gaged premises in foreclosure pro- 
 ceedings prior to the commencement 
 of bankruptcy proceedings cannot 
 be dispossessed by the bankrupt 
 court. Davis v. Alabama & F. R. Co. 
 1 Woods, 661. 
 
 After property is taken into the 
 possession of a court, no other court 
 can interfere with the possession. 
 Hammond v. Tarver (Tex. Civ. App.) 
 31 S. W. 841. 
 
 A receiver in supplementary pro- 
 ceedings becomes the legal assignee 
 of the property in the order men- 
 tioned, and the debtor cannot inter- 
 fere with it. Turner v. Holden, 94 
 N. C. 70. 
 44 
 
 Where a receiver is in possession, 
 other persons are not permitted to 
 enter without permission, under a 
 claim not theretofore exercised. 
 Johnes v. Claughton, Jac. 573. 
 
 A sale of land by the trustee in a 
 deed of trust, vmder a power con- 
 tained therein, while all the property 
 of the mortgagor is in the hands of 
 a receiver, is void. Scott v. Craw- 
 ford, 16 Tex. Civ. App. 477. 
 
 The sale of property under execu- 
 tion while in the hands of a receiver 
 is void, though the levy is made be- 
 fore the appointment. Walling v. 
 Miller, 108 N. Y. 173. 
 
 When a receiver is in possession of 
 property, in a suit involving the 
 right of possession merely, the sale 
 of such property by another court is 
 not an interference with the posses- 
 sion, lliekox V. Holladay, 29 Fed. 
 Rep. 226. 
 
 A judgment creditor will not, in 
 general, be allowed to enforce his 
 judgment by sale of property in the 
 hands of a receiver. Mercantile 
 Trust Co. v. Baltimore & 0. R. Co. 
 79 Fed. Rep. 389. 
 
 Property in the hands of a re- 
 ceiver cannot be attached. Adams 
 V. Roman (unreported), cited in 
 Adams v. Hackett, 7 Cal. 204. 
 
 Execution cannot issue on a judg- 
 ment against a receiver. Arnold v. 
 Penn, 11 Tex. Civ. App. 325. 
 
 But a receiver has no right to the 
 l^ossession of property actually at- 
 tached and in the possession of at- 
 taching creditors. State, Perkins, 
 v. Graham, 9 Wash. 528. 
 
 A receivers' possession is not to be 
 interfered with by suits or other 
 legal proceedings without leave. De 
 Graffenried v. Brunswick & A. R. Co. 
 57 Ga. 22. 
 
 An action may be maintained by 
 the direction of the governor for the 
 sole purpose of determining the ques- 
 tion of title to certain lands in con- 
 trover.sy between the state and a des-
 
 RECEIVER'S POSSESSION. 
 
 § 43 
 
 ignated railway company, although 
 such company and the lands in con- 
 troversy are in the custody of a re- 
 ceiver appointed by the Federal 
 court, and such court has not given 
 permission to sue. Houston & T. C 
 R. Co. v. State (Tex. Civ. App.) 39 
 S. W. 390. 
 
 The possession of property by a 
 receiver in a state court is no bar to 
 a bill by a creditor in a Federal 
 court. Rejall Greenwood, 00 Fed. 
 Rep. 784. 
 
 The court cannot permit an at- 
 tachment to be levied upon personal 
 property capable of manual delivery, 
 of a corporation, after the appoint- 
 ment of a receiver, because of a false 
 denial by certain persons to the 
 sheriff that they had such property 
 of the corporation in their posses- 
 sion, as such denial and the conse- 
 quent failure of the sheriff to take 
 the property into his actual custody 
 do not constitute a substitute for the 
 actual custody, which, under X. Y. 
 Code Civ. Proc. § 049, is essential to 
 a levy on such property. Robinson 
 V. Columbia Spinning Co. 23 App. 
 Div. 499. 
 
 That a firm made a number of 
 fraudulent transfers of property a 
 short time before the commencement 
 of an action for the dissolution of the 
 partnership and the appointment of 
 a receiver does not necessarily es- 
 tablish that the appointment of a 
 temporary receiver in the action un- 
 der an agreement of the parties was 
 collusive and obtained for the pur- 
 pose of hindering, delaying, and de- 
 frauding creditors, so as to take the 
 assets of the firm out of the control 
 of the court and subject them to 
 le\^ by creditors. Myers v. Myers, 
 18 Misc. 003. 
 
 The arrest of a receiver in attend- 
 ance on court will not be permitted. 
 Bratazon v. Teynham, 2 Ir. Ch. Rep. 
 503. 
 
 The court will by injunction re- 
 strain the enforcement of a judgment 
 against property in possession of a 
 receiver. Gardner v. Caldwell, 16 
 Mont. 221. 
 
 Uov; acquired or enforced. 
 
 A writ of assistance will be issued 
 to put a receiver in possession of 
 
 leased premises after the lessee's 
 rights have terminated, where it be- 
 comes necessary to enable him to 
 turn the premises over to the person 
 entitled thereto; but the application 
 for such writ must be made by 
 some party to the cause other than 
 the receiver. Stephenson v. Giltenau, 
 5 Ohio N. P. 419. 
 
 When the petition for the appoint- 
 ment alleged that the property of a 
 corporation had been transferred to 
 an alleged new company not made a 
 party, the court has no right to grant 
 a writ putting the receiver in posses- 
 sion. St. Louis, K. & S. R. Co. v. 
 Wear, 135 Mo. 230, sub nom. State, 
 St. Louis K. & S. R. Co., v. Wear, 33 
 L. R. A. 341. 
 
 A rule may be entered to show 
 cause why real estate should not be 
 surrendered to a receiver, and en- 
 force rights of the receiver against a 
 party accused of interfering with his 
 possession or management, unless 
 the answer sets up some right or title 
 of which a jury trial is claimed. 
 Sullivan v. Colby. 34 U. S. App. 432, 
 71 Fed. Rep. 400, 18 C. C. A. 193. 
 
 The court cannot through a re- 
 ceivership interfere with a United 
 States marshal in possession under 
 admiralty process. Tliompson v. 
 Van Vechten, 5 Duer, 018. 
 
 A court will compel the treasurer 
 of a corporation to turn over the 
 funds of the company, or punish by 
 fine or imprisonment. Edrinyton v. 
 Pridham, 05 Tex. 012. 
 
 An assignee who has not obtained 
 possession, but has left the assignor 
 in possession, will be required to de- 
 liver it to a receiver. Eastern Nat. 
 Bank v. Hulshizer, 2 N. Y. S. R. 115. 
 
 A court of equity in another state, 
 on a bill filed by a receiver of a benev- 
 olent society, can order the trustees 
 of the local branch of the association 
 to pay over the funds in its hands to 
 the receiver. Failcy v. Talbee, 55 
 Fed. Rep. 892. 
 
 When the custodian for a pur- 
 chaser of property at a sheriff's sale 
 is not before the court the debtor, 
 who is in possession, will not be di- 
 rected to deliver the property to a re- 
 ceiver. Robeson v. Ford, 3 Edw. Ch. 
 441. 
 
 A receiver of a corporation aj>- 
 
 45
 
 § 43 
 
 RECEIVERSHIPS— SUPPLEMENT. 
 
 pointed after an assignment for 
 creditors by such corporation, in a 
 proceeding for its dissolution com- 
 moncod before such assignment, can- 
 not by motion compel the assignee to 
 deliver possession of corporate prop- 
 erty, lie Muehlfeld, IG App. Div. 
 401. 
 
 A receiver cannot be put in posses- 
 sion of property on the application 
 of a party who is not himself en- 
 titled to possession and has no inter- 
 est in the property. Huerstel v. 
 Lorillard, G llobt. 200, 7 How. Pr. 
 251. 
 
 The court may compel delivery of 
 assets to the receiver, though the 
 party in possession is under indict- 
 ment for stealing the same. Tolle- 
 son V. Greene, 83 Ga. 499. 
 
 Property of a debtor who has 
 fraudulently confessed judgment in 
 favor of one who purchased such 
 property at a sale under execution 
 issued thereon still belongs to such 
 debtor, and should be delivered to a 
 receiver appointed in proceedings to 
 restrain the execution sale. Stern 
 V. Austern, 120 N. C. 107. 
 
 Heirs to whom the legal title to 
 real estate forming part of a trust 
 and situated in another state has 
 passed will be directed to convey to 
 a receiver appointed of the personal 
 property of the trust within the 
 jurisdiction, where the question as to 
 whether or not the trust has termi- 
 nated has been reserved for final hear- 
 ing, and all parties interested are 
 parties to the suit, and it is neces- 
 sary that such real estate be con- 
 served pending the litigation; wheth- 
 er or not such conveyance will give 
 the receiver authority which will be 
 recognized in such other state, where, 
 owing to the fact that there is no 
 litigation in such other state, the 
 courts of that state have no power 
 in the premises. Hogg v. Hoag, 80 
 Fed. Rep. 595. 
 
 When an order is to deliver prop- 
 erty the demand must be made by 
 the receiver personally. McComb v. 
 Weaver, 11 Hun, 271. 
 
 When a receiver demands prop- 
 erty, if the demand is otherwise 
 good, objection cannot be taken at 
 the trial that he did not, when de- 
 mand was made, exhibit evidence of 
 46 
 
 his appointment, if refusal to de- 
 liver was not made on that ground. 
 Livingston v. titoessel, 3 Bosw. 19. 
 
 Mortgagees entitled to possession 
 will be excused from turning it over 
 to a receiver when they are willing 
 to give security for the excess. 
 Weihl V. Atlanta Furniture Mfg. Co. 
 89 Ga. 297. 
 
 The general practice of the deliv- 
 ery of property to a receiver under 
 the old chancery practice and under 
 the Code, — discussed. Dickerson v. 
 Van Tine, 1 Sandf. 724. 
 
 A receiver of an insolvent cor- 
 poration is entitled to the possession 
 of money paid into court under an 
 execution on a judgment against the 
 corporation rendered in favor of a 
 director for the purpose of giving 
 him an illegal preference. Tennant 
 V. Avplehy (N. J. Eq.) 41 Atl. 110. 
 
 A person claiming against a re- 
 ceiver should be examined pro in- 
 teresse suo. Davis v. Greathed, 1 
 Jae. & W. 17G. 
 
 One in jDossession of lumber be- 
 longing to a corporation, claiming a 
 lien thereon under N. C. Code, § 
 1783, for manufacturing the same, 
 should not be required to turn the 
 same over to a receiver of the cor- 
 poration, before a determination of 
 the question as to his right to a lien. 
 Huntsman v. Linville River Luinh&r 
 Co. 122 N. C. 583. 
 
 Contempt. 
 
 It is contempt of court to disturb' 
 the possession of a receiver. Ken- 
 nedy V. Indianapolis, C. c£- L. R. Co. 
 2 Flipp. 704. 
 
 To punish a person for contempt 
 in interfering with the receiver's pos- 
 session, the proof must be clear and 
 beyond reasonable doubt. United 
 States V. Jose, 63 Fed. Rep. 951. 
 
 It is a contempt of court to cause 
 a receiver's arrest for violating a 
 town ordinance, though the ordi- 
 nance is void. United States v. Mur- 
 phy, 44 Fed. Rep. 39. 
 
 When the court is without juris- 
 diction the refusal to obey does not 
 render the person liable for con- 
 tempt. St. Louis, K. d S. R. Co. v. 
 Wear, 135 Mo. 230, sub nom. State, 
 St. Louis, K. d S. R. Co., v. Wear, 33- 
 L. R. A. 341.
 
 RECEIVER'S POSSESSION. 
 
 § 43 
 
 A debtor cannot be punished for 
 failure to turn over property to a 
 receiver when neither the order 
 appointing nor any subsequent or- 
 der directs him to turn it over. 
 Watson V. Fitsjsimmons, 5 Duer, G29. 
 
 Where the estate over which a re- 
 ceiver is appointed expires, the re- 
 mainderman may enter without con- 
 tempt. Britton v. M'Donnell, 5 Ir. 
 Eq. Rep. 275. 
 
 A receiver of a railroad who ousts 
 one immediately after possession of 
 a portion of the railroad's right of 
 way has been restored to him under 
 a writ of possession is not guilty of 
 a contempt of the orders or process 
 of the court, where he was not a 
 party to the action, and not in priv- 
 ity with the defendant. Atioood v. 
 State, 59 Kan. 728. 
 
 A receiver cannot be punished as 
 for contempt for not obeying an or- 
 der made in another court. Merritt 
 V. Sparling, 88 Hun, 491. 
 
 A receiver may be punished for 
 contempt. The proceeding is crimi- 
 nal in its nature. Thus the question 
 of contempt does not dejiend on in- 
 tention. Cartwright's Case, 114 
 Mass. 230. 
 
 A judgment debtor who interferes 
 with the possession and control of 
 his business by a receiver after such 
 possession was yielded by him is 
 guilty of contempt. Sainberg v. 
 Weinberg, 25 Misc. 327. 
 
 A judgment debtor for whom a re- 
 ceiver has been appointed may be ad- 
 judged guilty of contempt in dis- 
 obeying an order to attend a hearing 
 before the circuit court commission- 
 er for examination, although a peti- 
 tion taken by him to stay the receiv- 
 ership proceedings is pending, where 
 no temporary stay preventing the 
 judgment creditor from proceeding 
 has been made. Central Nat. Bank 
 V. Graham (Mich.) 5 Det. L. N. 591, 
 76 N. W. 1042. 
 
 One who claims to be the owner of 
 a chattel mortgage upon a lease of 
 premises and the property thereon 
 used in the conduct of a business is 
 guilty of contempt of court, and may 
 properly be ordered to deliver up the 
 property, where in an action to dis- 
 solve the yjartnership a receiver had 
 been appointed whose representa- 
 
 tive the chattel mortgagee turned 
 out of possession, locking the door 
 upon him. Levy v. Stanion, 53 N. 
 Y. Supp. 472. 
 
 The right to institute proceedings 
 to punish a former receiver as for 
 contempt in failing to pay over the 
 amount due on his accounting to his 
 successor passes to a surety on his 
 bond who pays such amount and re- 
 ceives in pursuance of an order of 
 the court an assignment of all the 
 rights and remedies of the successor. 
 People, Lawyer's Surety Co., v. An- 
 thony, 7 App. Div. 132. 
 
 The proper practice is for the re- 
 ceiver to institute proceedings to set 
 aside transfers, and not by contempt 
 for failure to turn over. Ex parte 
 Eollis, 59 Cal. 405. 
 
 A receiver of a bank whose ap- 
 pointment was invalid because of the 
 prior appointment of another re- 
 ceiver on the same date in another 
 proceeding is not punishable as for 
 contempt in taking and retaining 
 possession of the assets, where he be- 
 lieved in good faith that his appoint- 
 ment was valid. Worth v. Pied- 
 mont Bank, 121 N. C. 343. 
 
 The court has jurisdiction to re- 
 quire an oflicer of a corporation who 
 is a party to the action to turn over 
 property of the corjjoration to a re- 
 ceiver appointed in the action; and 
 disobedience thereof renders him li- 
 able for contempt, although he has a 
 lien upon the property and the judg- 
 ment is therefore erroneous. Ex 
 parte Tinsley, 37 Tex. Crim. App. 
 517. 
 
 Though the court may not punish 
 a contempt in interfering with the 
 possession of property by a receiver, 
 and removing a building therefrom, 
 by imprisonment of indefinite dura- 
 tion, it may coerce obedience to its 
 order to restore possession to the re- 
 ceiver and return the house, by im- 
 prisoning the contumacious party 
 until he shall comply. Delozier v. 
 Bird, 123 N. C. 689. 
 
 To punish for contempt for non- 
 delivery to a receiver, an order to 
 deliver is a necessary prerequisite. 
 Demand alone is not sullicient. 
 Tinkey v. Langdon, 60 How. Pr. 180. 
 
 47
 
 § 51 
 
 RECEIVERSHIPS— SUPPLEMENT. 
 
 Surrender of possession. 
 
 A court having possession of the 
 property of a corporation operating 
 a street railway will not by the pos- 
 session of its receiver prevent the 
 city from taking such course with 
 respect to a remedy as it may be ad- 
 vised, where if the receivership is re- 
 moved the city may urge reasonable 
 arguments in support of its right to 
 oust the compan}' from occupation of 
 its streets: but will, where the com- 
 pany is a mere tenant at will in the 
 
 streets, order redelivery by the re- 
 ceiver of possession of the tracks and 
 property in the streets, and let the 
 company take the risk of operating 
 the invalid portions of its road, and 
 the city that of any course it may see 
 fit to pursue. Louisville Trust Co. 
 V. Cincinnati Inclined Plane R. Co. 
 78 Fed. Rep. 307. 
 
 Possession may be delivered to 
 mortgagees where it is shown that 
 the property is not worth more than 
 the mortgages. Scott v. Crawford, 
 16 Tex. Civ. App. 477. 
 
 Page 136, sec. 51. — As to tenants; rents. 
 
 A receiver may be appointed for 
 rents until the devisee's title vests. 
 Rogers v. Ross. 4 Johns. Ch. 388 ; 
 Pritchard v. Fleetwood, 1 Meriv. 55. 
 
 A mortgagee of land is entitled as 
 against subsequent mortgagees to 
 the appointment of a receiver of the 
 1 ents and profits pendente lite, where 
 he shows that his security is preca- 
 rious and liable to prove inadequate. 
 Ross V. Yernam, G App. Div. 246. 
 
 A person taking possession of 
 mortgaged property, knowing of the 
 mortgage and that the mortgagor 
 cannot pay, may be required to sur- 
 render or pay rent to a receiver ap- 
 pointed to collect the rents and 
 profits for the benefit of the mort- 
 gagee. Mutual L. Ins. Co. v. Spicer, 
 12 Hun, 117. 
 
 It is the duty of a receiver to col- 
 lect rents, but not to assume the 
 management of actions. Callaghan 
 V. Reardon, Sausse & S. 682. 
 
 A receiver is entitled to rents in 
 arrears. Codrington v. Johnstone, 1 
 Beav. 524. 
 
 The court cannot, on the appli- 
 cation of a receiver, remit rents or 
 make reductions. Robinson v. Shear- 
 er, Hayes & J. 799. 
 
 An estate by the curtesy will pass 
 to a receiver and entitle him to rent. 
 Beamish v. Holt, 2 Robt. 307. 
 
 A receiver cannot enforce rent by 
 attachment from a lessee who has 
 assigned his interest. Cane v. 
 Bloomfield, 1 Hogan, 345. 
 
 A receiver is entitled to the ar- 
 rears of rent unpaid when the order 
 48 
 
 of reference is made. Hollier v. 
 Hedges, 2 Ir. Ch. Rep. 370. 
 
 A receiver is not entitled to rents 
 due at the time of the appointment. 
 M'Loughlin v. Longan, 4 Ir. Eq. Rep, 
 325. 
 
 A tenant may be required to pay 
 rent to a receiver. Hohson v. Sher- 
 wood, 19 Beav. 575. 
 
 If a tenant has once paid rent to a 
 receiver, a letter demanding subse- 
 quent rent is all that is necessary. 
 Brown v. O'Connor, 2 Hogan, 77. 
 
 N. Y. Code Civ. Proc. § 2408, con- 
 strued with reference to rents of 
 realty not occupied by debtor. Ver- 
 mont Marble Co. v. Wilkes, 62 N. Y. 
 S. R. 121. 
 
 After filing notice of lis pendens 
 in Wisconsin in a foreclosure pro- 
 ceeding a tenant has no right to pay 
 a year's rent in advance, and on the 
 subsequent appointment of a receiv- 
 er will be required to surrender or 
 pay rent. Gaynor v. Blewett, 82 
 wis. 313. 
 
 A motion for an order requiring 
 the tenants of mortgaged premises 
 to surrender possession to the tem- 
 porary receiver appointed in a fore- 
 closure action under N. Y. Code Civ. 
 Proc. § 714, cannot be resisted on the 
 ground that the owner of the equity 
 of redemption has not been served 
 with summons and complaint, where 
 an order for publication of the sum- 
 mons against her has been made. 
 Citizens' Sav. Batik v. Wilder, 1 1 
 App. Div. 63. 
 
 Order against husband and wife
 
 RECEIVER'S POSSESSION. 
 
 § 51 
 
 to pay rents, when. Dugro v. Vandc- 
 tvater, 35 App. Div. 471. 
 
 A contractor who constructs a 
 building under a contract with a re- 
 mainderman appointed by tlic court 
 under the Kentucky statute as an 
 agent for other remaindermen cannot 
 hold the other remaindermen person- 
 ally liable, or have a mechanic's lien 
 for the amount due iiim ir excess of 
 that which he has received from the 
 jiroceeds of a loan which such agent 
 was directed to make for the pur- 
 poses of improvement, though the 
 court may, as a matter of equity, ap- 
 point a receiver to apply the rents 
 for his reimbursement. Itiuld v. Lit- 
 tell. 20 Ky. L. Rep. 162, Modifying 
 on Rehearing 20 Ky. L. Rep. 158. 
 
 A receiver of land directed to be 
 sold may be appointed by the court 
 to collect the rents and hold the same 
 subject to further order of the court, 
 although there has been no appeal 
 from judgment directing the sale, 
 where a stay of execution has been 
 obtained until the decision of a mo- 
 tion for new trial, Kreling v. Kre- 
 ling, 118 Cal. 413. 
 
 A receiver to collect the rents and 
 profits of morts;aged premises and 
 
 apply them on the mortgage indebt- 
 edness will be appointed where the 
 mortgagor in possession is insolvent, 
 and has failed to pay the taxes and 
 costs of insurance, and there is a 
 question as to whether the mort- 
 gaged premises will prove adequate 
 security for the amount of the mort- 
 gage debt. Winkler v. Magdeburg, 
 100 Wis. 421. 
 
 A receiver is properly appointed 
 to receive the rents of land during 
 the pendency of a foreclosure suit 
 under a contract for its purchase, 
 and should pay over the amount 
 thereof to the complainant in such 
 suit, where the purchaser seeks to 
 avoid the payment of the purchase 
 price, and the contract provides that 
 on the failure of the purchaser to 
 pay any instalment when due the 
 vendor may re-enter and repossess 
 the premises. Belding v. Meloche, 
 113 Mich. 223. 
 
 In an application for an injunc- 
 tion to restrain certain parties from 
 collecting rents from real estate in 
 which bankrupts have any legal in- 
 terest, injunction should be granted 
 and a receiver appointed. Keenan 
 V. Shannon, 9 Nat. Bankr. Reg. 441. 
 
 Page 140. — Receiver's title. 
 
 A receiver does not occupy the po- 
 sition of an innocent bona fide holder 
 for value. Briggs v. Merrill, 58 
 Barb. 389. 
 
 A receiver acquires title by legal 
 process, and not in the regular 
 course of dealing in commercial 
 paper. Briggs v. Merrill, 58 Barb. 
 389; Dubois v. Cassidy, 75 N. Y. 298. 
 
 A receiver's title is no better than 
 the corporation he represents. Cut- 
 ting V. Damerel, 88 N. Y. 410. 
 
 A transfer by order of court to a 
 receiver is not governed by the Cal- 
 ifornia insolvent act of 1852. Naglee 
 v. Lyman, 14 Cal. 450. 
 
 A judgment in an action brought 
 to enforce the right of a creditor to 
 have his debt paid out of the defend- 
 ant's property, though in fact in fa- 
 vor of a receiver appointed by a.n 
 interlocutory judgment, docs not 
 vest in the receiver any interest 
 
 which may be ordered sold by the re- 
 ceiver, but he must collect the judg- 
 ment, if possible. Goldberg v. Sll- 
 berstein, 19 App. Div. 428. 
 
 The appointment of a receiver of 
 a corporation which has made an 
 equitable assignment of a judgment 
 to be recovered against stockholders 
 will give such receiver no right to 
 such judgment as an asset of the 
 company. Clark v. Sigua Iron Co. 
 39 U. S. App. 753, 81 Fed. Rep. 310, 
 26 C. C. A. 423. 
 
 Property in factor's hands. 
 
 The receiver of a corporation suc- 
 ceeds to the title of property of the 
 corporation in possession of a factor, 
 subject to the lien for advances in 
 favor of tlip latter with which it was 
 burdened before his appointment. 
 Cameron v. Crouse, 11 App. Div. 
 391. 
 
 49
 
 § 58 
 
 RECEIVERSHIPS— SUPPLEMENT. 
 
 Property previously transferred. 
 
 A receiver acquires no interest in 
 property previously transferred by 
 the debtor by virtue of the order ap- 
 pointing him, but merely a right of 
 action to set aside the transfer, if it 
 was in fraud of creditors. Thomas 
 V. Van Meter, 164 111. 304. 
 
 Insurance policies. 
 
 The duly appointed and qualified 
 receiver of a debtor is vested with 
 the legal title to insurance policies 
 payable to the debtor or his estate. 
 Rciinolds V. .'Etna L. Ins. Co. 28 App. 
 Div. 591. 
 
 Title of foreign receiver. 
 
 In New York the title of a foreign 
 receiver is upheld on the principle of 
 comity. If the title is by virtue of 
 a voluntary conveyance or transfer it 
 is sustained as against all, includ- 
 ing even domestic creditors; but if 
 it depends on a foreign statute or 
 judgment it is sustained against all 
 except domestic creditors. Subject 
 to their superior rights the receiver 
 can reduce to possession all the 
 property of the defendant in that 
 state, and can bring replevin for that 
 purpose, or trover to recover dam- 
 ages for conversion. Notes and ac- 
 counts may be collected by the ordi- 
 nary proceedings, the court regard- 
 ing the receiver as representing the 
 original owner and opening their 
 doors to him as they do to a domes- 
 tic receiver. Mahon v. Ongley Elec- 
 tric Co. 156 N. Y. 196; citing Barth 
 V. Backus, 140 N. Y. 230, 23 L. R. A. 
 47 ; V under poel v. Gorman, 140 N. 
 Y. 563, 24 L. R. A. 548 ; Toronto Gen- 
 eral Trust Co. V. Chicago, B. d Q. R. 
 Co. 123 N. Y. 37 ; Re Waite, 99 N. Y. 
 433 ; Ockerman v. Cross, 54 N. Y^. 29 ; 
 Petersen v. Chemical Bank, 32 N. Y. 
 21, 88 Am. Dec. 298; Willitts v. 
 Waite, 25 N. Y. 577 ; Hoyt v. Thomp- 
 son, 19 N. Y. 207; Hoyt v. Thomp- 
 son, 5 N. Y. 320; 'Neio Jersey Pro- 
 tection & Lombard Bank v. Thorp, 
 6 Cow. 47 ; Runk v. yS'^. John, 29 
 Barb. 585; Pugh v. Hurtt, 52 How. 
 Pr. 22 ; Middlebrook v. Merchant's 
 Bank, 3 Keyes, 135; Smith v. Tif- 
 fany, 16 Hun, 552. 
 
 And every remedy will be afforded 
 50 
 
 to gather in the assets, unless it 
 would interfere with the policy of 
 the state or impair the rights of its 
 own citizens. A state that does not 
 discriminate between its own citi- 
 zens and those of a foreign state dis- 
 charges all the obligations required 
 by the rule of curtesy. Mobon v. 
 Ongley Electric Co. 156 N. Y. 196. 
 A foreign receiver has no title to 
 property of the debtor in Wisconsin, 
 and cannot maintain an action to set 
 aside a fraudulent conveyance. Fil- 
 kins V. Nunnemachcr, 81 Wis. 91. 
 
 To terminals. 
 
 Where a railroad obtains a lease 
 of terminal facilities in a city, and 
 then leases its road, including such 
 facilities, after which a receiver la 
 appointed for it, which results in dis- 
 solution of the latter lease, if the 
 receiver procures insurance on the^ 
 property included in such terminal 
 facilities "on account of whom it 
 may concern; loss payable to re- 
 ceivers," he has such title as enables 
 him to sue on the policy. Liverpool 
 d- L. cG G. Ins. Co. v. McNeill, 59 U. 
 S. App. 499, 89 Fed. Rep. 131, 32 C. 
 C. A. 173. 
 
 Property in another state. 
 
 A conveyance of the property of a 
 corporation to a receiver, under a de- 
 cree which three quarters of its 
 shareholders had sought and none 
 opposed, is to be deemed voluntary 
 for the purpose of determining its 
 effect on the title of personal prop- 
 erty in another state. Ward v. Con- 
 necticut Pipe Mfg. Co. 71 Conn. 345, 
 42 L. R. A. 706. 
 
 Where receivers of an insolvent 
 Pennsylvania corporation have taken 
 possession of all its property and 
 assets, a Massachusetts creditor can- 
 not attach its property in New Jer- 
 sey. The propert}^ lias passed to the 
 receivers. Merchants' Nat. Bank v. 
 Pennsylvania Steel Co. 57 N. J. L. 
 336; Weil v. Bank of Burr Oak, 76 
 Mo. App. 34. 
 
 Deposits of a foreign building so- 
 ciety. 
 
 Securities deposited by a foreign 
 building and loan association "in
 
 RECEIVER'S TITLE. 
 
 § 58 
 
 trust for the benefit and security of 
 its members in this state," in order 
 to obtain the right to do business in 
 the state under the Wisconsin stat- 
 ute (Sanb. & B. Ann. Stat. §§ 2014a, 
 2014b), will be sold or collected in 
 case of insolvency and the proceeds 
 applied according to the trust, and 
 the residue only turned over to the 
 receiver apjjointed in the state of in- 
 corporation. Lewis V. American 
 Sav. c£- L. Asso. 98 Wis. 203, 39 L. 
 R. A. 559. 
 
 Patents. 
 
 A receiver under R. I. Pub. Stat. 
 chap. 237, § 13, is entitled to a pat- 
 ent right of the debtor. Keach v. 
 Chadtcick, 14 R. I. 571. 
 
 Claims assigned. 
 
 A receiver who has duly qualified 
 is vested with the legal title to 
 claims which have been assigned by 
 the debtor subsequent to the filing 
 of the order appointing the receiver. 
 Fitzpatrick v. Moses, 34 App. Div. 
 242. 
 
 Exempt property. 
 
 An assignment to a receiver should 
 except exempt property. Cogger v. 
 Howard, 1 Barb. Ch. 368. 
 
 Rents. 
 
 The right to collect rent passes to 
 a receiver. Stephen v. Reibling, 45 
 111. App. 40. 
 
 Property of corporation. 
 
 An order appointing a receiver of 
 a corporation gives him the title of 
 the property. Dickey v. Bates, 13 
 Misc. 489. 
 
 Rights of action. 
 
 A right of action passes to a re- 
 ceiver. Rand v. Wright, 141 Ind. 
 220. 
 
 Manufactured articles. 
 
 Articles manufactured for re- 
 ceivers belong to the receivers in 
 trust for creditors and stockholders. 
 Merchants' ^at. Bank v. Pennsyl- 
 vania Steel Co. 57 N. J. L. 336. 
 
 Checks. 
 Ihe appointment of a receiver of a 
 
 corporation after the transmission of 
 a check to it in payment of a con- 
 tract to be periormed by it, but be- 
 fore the check has been cashed, does 
 not authorize the drawer to stop 
 payment on the check, in the absence 
 of fraud. Rouse v. Calvin, 76 111. 
 App. 362. 
 
 A corporation whose checks dur- 
 ing the illness of its treasurer are, 
 without further authority from such 
 treasurer than a direction to the 
 clerk of another company in which 
 he was a stockholder to turn one 
 such check into the funds of the lat- 
 ter company, taken possession of by 
 the latter company, and the proceeds 
 used in buying goods in the regular 
 course of business, may, where the 
 latter company becomes insolvent 
 and goes into the hands of a receiver, 
 recover from such receiver the 
 amount of the checks so used. York 
 X. York Market Co. (N. H.) 37 Atl. 
 1038. 
 
 Property purchased conditionally. 
 
 The receiver of a corporation to 
 which personal property is sold on 
 condition that the title shall pass 
 only on payment of a specified price 
 IS not the "personal representative"' 
 of the corporation, within Conn. 
 Pub. Acts 1895, chap. 212, § 2, pro- 
 viding that all conditional sales of 
 personal property which are not 
 made in conformity with the provi- 
 sions of § 1 shall be held to be ab- 
 solute sales, except as between the 
 vendor and the vendee or their per- 
 sonal representatives, and all such 
 property shall be subject to attach- 
 ment and execution for the debts of 
 the purchaser the same as any other 
 unexempt property. Re Wilcox & 
 H. Co. 70 Conn. 220. 
 
 Legal and equitable interests. 
 
 Under the English judicature act 
 of 1873 a receiver may be apjjointed 
 over tlie whole of phiintiff's security, 
 both legal and equitable. Pease v. 
 Fletcher, L. R. 1 Ch. Div. 273. 
 
 Insurance money. 
 
 Insurance money for property ex- 
 empt destroyed by fire does not pass 
 to tlie receiver. Jt is after-acquired 
 
 51
 
 § 58 
 
 RECEIVERSHIPS— SUPPLEMENT. 
 
 property. Sands v. Roberts, 8 Abb. 
 Pr. 343. 
 
 Seat in cotton exchange. 
 
 The right to a seat in the New 
 York Cotton E.vchange passed to ihe 
 receiver under supplementary pro- 
 ceedings, and he may redeem the 
 same from a pledgee. Poivell v. 
 Waldron, 89 N. Y. 328, 42 Am. Rep. 
 301. 
 
 Joint property. 
 
 One of the parties to an action for 
 the appointment of a receiver, who 
 concedes that it is proper to appoint 
 a receiver to take charge of and sell 
 property belonging jointly to the 
 parties, and divide the proceeds be- 
 tween them, may properly be re- 
 quired to pay over to the receiver 
 money in his hands, arising from a 
 sale by him of other property which 
 had belonged to himself and the oth- 
 er party, the title to which they had 
 derived by virtue of the same trans- 
 action as that by which they ac- 
 quired the ownership of the property 
 turned over to the receiver, where 
 there has been no accounting and 
 settlement as to the property sold. 
 Whitley v. Berry, 105 Ga. 251. 
 
 Securities deposited with state. 
 
 The receiver of an insolvent life 
 insurance company has no right to 
 the securities deposited with the su- 
 perintendent of the insurance de- 
 partment. Ruggles v. Chapman, 59 
 N. Y. 163. See People, Ruggles, v. 
 Chapman, 64 N. Y. 557. 
 
 Property purchased with bank's 
 money.. 
 
 The receiver of a national bank is 
 entitled to a surrender of such prop- 
 erty as has been purchased with 
 money of the bank. If it can be 
 shown that money in a general fund 
 belonged to the bank, and was ap- 
 propriated to buy property, it may 
 be reached. Peters v. Bain, 133 U. 
 S. 670, 33 L. ed. 696. 
 
 Title not impeached. 
 
 The title of a receiver cannot be 
 impeached by a third party for ir- 
 regularity prior to the assignment 
 62 
 
 to the receiver. Richards v. Allen, 
 3 E. D. Smith, 399. 
 
 2Htle if debtor dies. 
 
 The death of the judgment debtor 
 before the appointment of a receiver 
 in supplementary proceedings pre- 
 vents title vesting in the receiver, 
 and lien on the property. RanJcin 
 V. Minor, 72 N. C. 424. 
 
 Title pendente lite. 
 
 The appointment of a receiver 
 pendente lite of a corporation does 
 not devest the corporation of title 
 to the property undisposed of by the 
 receiver, so as to prevent it from 
 maintaining an action to recover for 
 the loss of merchandise occasioned 
 by the negligence of a common car- 
 rier. Mutual Breioing Co. v. New 
 York & C. P. Ferry Co. 16 App. Div. 
 149. 
 
 A temporary receiver of a corpora- 
 tion, appointed under N. Y. Code Civ. 
 Proc. § 2423, to collect and receive 
 debts, and preserve the property, 
 and sell or otherwise dispose of the 
 property as directed by the court, 
 is not within N. Y. Laws 1883, chap. 
 378, §§ 2, 3, relating to receivers of 
 corporations appointed under stat- 
 utory authority, where the title to 
 the property is vested in such receiv- 
 ers. Smith V. Eighth Ward Bank, 
 31 App. Div. 6. 
 
 The title to the property of a gas- 
 light company obtaining its fran- 
 chises from the city does not pass 
 to a receiver pendente lite. Brook- 
 lyn V. Jourdan, 7 Abb. N. C. 23. 
 
 A receiver pendente lite takes no 
 title, but possession only. He has 
 no right to sue to recover property. 
 Feller v. Maddock, 11 Misc. 297. 
 
 A receiver pendente lite has only 
 the right to the possession of the 
 property in controversy as an officer 
 of the court, the title thereto re- 
 maining where it was when the re- 
 ceiver was appointed. Devlin v. 
 Neio York, 4 Misc. 106. 
 
 Land held in trust. 
 
 Land held in trust does not pass 
 to the receiver so that he may sell 
 the same. Jackson v. Horton, 126 
 111. 566. 
 
 A receiver in supplemental pro-
 
 RECEIVER'S TITLE. 
 
 § 58 
 
 ceedings has no interest in real es- 
 tate held Iq trust for the debtor. 
 Bold V. Dean, 48 N. J. Eq. 193. 
 
 Land sold for taxes. 
 
 No valid title can be acquired at 
 a sale for taxes of land which is in 
 possession of a receiver. Virginia 
 T. d C. Steel d I. Co. v. Bristol Land 
 Co. 88 Fed. Rep. 134. 
 
 Supplementary proceedings. 
 
 A receiver appointed in a common 
 law court in supplementary pro- 
 ceedings is vested in New Jersey to 
 title to personalty only. Skinner v. 
 Terhune, 45 N. J. Eq. 505. 
 
 Property subsequently acquired. 
 
 A receiver takes no title to prop- 
 erty acquired after appointment. 
 ]\orc7-oss V. Hollingsicorth, 83 Hun, 
 127. 
 
 A receiver acquires title only to 
 property of debtor owned at the time 
 the proceeding was instituted. Camp- 
 bell V. Ge7iet, 2 Hilt. 290. 
 
 Proceeds of sale. 
 
 The receiver of an insolvent cor- 
 poration has no interest in the dis- 
 tribution of the money arising from 
 the sale of premises mortgaged by 
 the corporation to protect an in- 
 dorser of notes for the corporation, 
 where such indorser has the right to 
 foreclose the mortgage. Miller v. 
 Miller Knitting Co. 23 Misc. 404. 
 
 When title vests. 
 
 A mere order of appointment of a 
 receiver does not confer upon him 
 title to the property of the debtor. 
 Thomas v. Van Meter, 164 111. 304. 
 
 In New York the title of debtor 
 vests in the receiver on his appoint- 
 ment, as to personalty, but not as to 
 realty. People, Williams, v. Hul- 
 hurt, 5 How. Pr. 440. 
 
 In supplemental proceedings the 
 receiver is vested with title to the 
 property and effects of the debtor 
 from the time of filing the orders. 
 Rose V. Baker, 99 N. C. 323. 
 
 The title of a receiver relates to 
 the entry of the order of appoint- 
 ment, and not to the approval of the 
 bond. Connecticut River Bkg. Co. 
 
 V. Rockbridge, Co. 73 Fed. Rep. 709; 
 May hard v. Bond, 67 Mo. 315. 
 
 Auxiliary receiver. 
 
 An auxiliary receiver of a foreign 
 corporation is a mere custodian of 
 the property to preserve the same, 
 and has only the power conferred by 
 the order appointing. Buckley v. 
 Harrison, 10 Misc. 083. 
 
 An auxiliary receiver is not the 
 holder of the legal title, and is not 
 entitled to disaffirm fraudulent 
 transfers. Ibid. 
 
 Title subject to defenses. 
 
 A receiver of a bank holds a note 
 and mortgage taken by the bank or 
 for its benefit subject to the same 
 defenses that applied to the banic it- 
 self. Hatch V. Johnson Loan & T. 
 Co. 79 Fed. Rep. 828. 
 
 Contest by nonresidents. 
 
 Nonresident creditors of a corpo- 
 ration in the hands of a receiver, 
 when they are not residents of the 
 state in which the receiver is ap- 
 pointed, have the same right to con- 
 test the receiver's title to property 
 that domestic creditors have. Liyi- 
 ville V. Haddcn (Md.) 43 L. R. A. 
 222. 
 
 Property pledged. 
 
 The court cannot compel a cred- 
 itor to turn over to a receiver prop- 
 ert}^ which was pledged to secure a 
 loan when it was solvent. National 
 Exch. Bank v. Benbrook School Fur- 
 nishing Co. (Tex. Civ. App.) 27 S. 
 W. 297. 
 
 Money on deposit. 
 
 Money deposited with a banker, 
 derived from the sale by the sheriff 
 on attachments on which he was to 
 pay interest, where the pledgee sub- 
 sequently fails and assigns for the 
 benefit of creditors, will not be or- 
 dered turned over to a subsequent 
 receiver. Coleman v. Salisbury, 52 
 Ga. 470. 
 
 Trust funds. 
 
 The amount collected on claims 
 due a corporation, by its bookkeeper 
 under an agreement between the cor- 
 
 53
 
 § 69 
 
 RECEIVERSHIPS— SUPPLEMENT. 
 
 poration and a bank that the chiinis 
 shall be set aside and used to reim- 
 burse the bank for advancements, 
 and as a matter of convenience shall 
 be collected by the Ijookkeeper and 
 be under his control, is impressed 
 with an equitable trust in favor of 
 the bank as against a receiver of the 
 corporation. Atlantic Trust Co. v. 
 Carbondale Goal Co. 99 Iowa, 234. 
 
 By assignment. 
 
 By an assignment directed by the 
 court the legal title passes inde- 
 pendent of the appointment. Welter 
 
 V ./. B. Pace Tobacco Co. 2 N. Y. 
 Supp. 2!)2. 
 
 An assignment to a receiver is in 
 the nature of a mortgage, and falls 
 as soon as the object of the suit is ac- 
 complished, and no reassignment is 
 necessary. Anderson v. Treadwell, 
 1 Edm. Sel. Cas. 201. 
 
 Where stock in a corporation is 
 ordered to be assigned to a receiver, 
 and a power of attorney given to the 
 receiver, and this is done, the receiv- 
 er is vested with the legal title. 
 Weller v. J. B. Pace Tobacco Co. 2 
 N. Y. Supp. 292. 
 
 Page 152, sec. 69. — Suits by receivers; authority of the court 
 
 necessary. 
 
 A receiver cannot sue without 
 leave of the court appointing him. 
 Viqo Peal Estate Co. v. Reese, 21 
 Ind. App. 20. 
 
 Where debt is due the receiver of- 
 ficially. Bowen v. Needles Nat. 
 Bank, 76 Fed. Rep. 176. 
 
 Where waste has been committed. 
 Nangle v. Fingall. 1 Hogan, 142. 
 
 Leave is in discretion of the 
 court. Wisener v. Myers, 3 Pa. 
 Dist. R. 687 ; South Carolina R. Co. 
 v. People's Sav. Inst. 64 Ga. 18 ; 
 Compton V. Schwabacher Bros. & 
 Co. 15 Wash. 306; Gadsden v. 
 Whaley, 14 S. C. 210. 
 
 When entitled to sue. Porker v. 
 Broicn, 10 Misc. 161 ; Woods v. Ellis, 
 85 Va. 471. 
 
 The receiver does not represent 
 creditors securing the appointment, 
 under N. Y. Code, § 317, authorizing 
 a recovery for costs and making 
 them collectable out of the estate, 
 fund, or party represented. McHarg 
 V. Donelly, 27 Barb. 100. 
 
 The receiver will be required to 
 bring an independent suit to deter- 
 mine the rights of third parties to 
 property. Colton v. Bigelow, 41 N. 
 J. L. 206; Boicery 8av. Bank v. 
 Richards, 3 Hun, 366. 
 
 And to recover property in posses- 
 sion of his predecessor. Holland 
 Trust Co. v. Consolidated Oas & E. 
 L. Co. 85 Hun, 454. 
 
 And to set aside a levy on receiv- 
 ership property made after his ap- 
 54 
 
 pointment and before qualification. 
 Andreics v. Paschen, 67 Wis. 413. 
 
 And to recover money received 
 by a creditor from a bank after his 
 appointment. State Bank v. First 
 Nat. Bank, 34 N. J. Eq. 450, 458. 
 
 The right of a person not a party 
 to the suit cannot be devested in a 
 summary proceeding. Nason v. 
 Blennerhassctt , 1 Hogan, 402. 
 
 The remedy of the receiver under 
 the New York Code of Civil Proced- 
 ure is not to move to vacate or mod- 
 ify an attachment, but by equitable 
 actions. Ross v. Wigg, 100 N. Y. 
 243. 
 
 Where the books of a corporation 
 have by means of mesne convey- 
 ances passed to a third party, the 
 receiver of the corporation can only 
 obtain possession by an action 
 against the present owner, and not 
 by summary proceedings. Olmsted 
 v. Rochester d P. R. Co. 40 Hun, 552. 
 
 A receiver has such special and 
 qualified interest in pi'operty of 
 which he acquires possession that 
 he may maintain an action for 
 wrongful taking and conversion, but 
 he cannot do so if he has never ac- 
 quired possession. Kehr v. Hall, 
 117 Ind. 405. 
 
 The directors of a corporation 
 have no standing by virtue of their 
 relation as parties to the contem- 
 plated action, and independently of 
 their interest as stockholders to con- 
 serve the assets of the corporation,
 
 SUITS BY RECEIVERS— DEFENSES TO. 
 
 to resist an application by a receiver 
 for leave to sue them. People v. 
 
 Cowvmercial Bank, G App. Div. 194; 
 Kimball v. Ives, 30 Hun, 5G8. 
 
 Pag-e 160, sec. 72. — Receiver's power to sue in his own name. 
 
 A receiver may sue in his own 
 name. Davis v. Industrial Mfg. Co. 
 114 N. C. 321, 23 L. R. A. 322; 
 T] eland v. Haugan, 70 Minn. 349; 
 Cockrill V. Cooper, 58 U. S. App. 
 C)48, sub nom. Cockrill v. Abeles, 86 
 Fed. Rep. .505, 30 C. C. A. 226 ; Na- 
 tional Bank of the Metropolis v. Ken- 
 nedy, 17 Wall. 19, 21 L. ed. 554. 
 
 Power to sue in his own name may 
 be granted. Hardwick v. Hook, 8 
 Ga. 354. 
 
 A receiver has no power to sue in 
 his own name. Htafe, Fichtenkamm, 
 V. Gambs, 68 Mo. 289, 296. 
 
 Page 163, sec. 73. — Power of receivers to sue in foreign jurisdiction. 
 
 See Schultz v. Phenix Ins. Co. 
 11 Fed. Rep. 375; Howarth v. Ell- 
 wanger, 86 Fed. Rep. 54 ; Wyman 
 V. Eaton, 107 Iowa, 214, 43 L. R. A. 
 695; Hale v. Hardon. 89 Fed. Rep. 
 283; Johnston v. Rogers, 19 Ky. L. 
 Rep. 1272; Merchants' Nat. Bank v. 
 McLeod, 38 Ohio St. 174. 
 
 ^uit to enjoin. 
 
 An action will lie by the receiver of 
 a national bank to restrain the pros- 
 ecution of suits by a large number 
 of persons having in their possession 
 pass books purporting to have been 
 issued by the bank, but which were in 
 fact issued by another bank, and to 
 have the pass books canceled and 
 surrendered, and an adjudication 
 that the receiver is not liable there- 
 for, and a determination of the 
 rights and liabilities of the respec- 
 tive parties, under the principles ap- 
 plicable to a bill of peace for the 
 prevention of a multiplicity of suits. 
 Kellogg v. Siple, 11 App. Div. 458. 
 
 A receiver under lease may enjoin 
 a sublessee from doing an act where- 
 by the title of his lessor would be 
 affected. Mason v. Mason, Flan. & 
 K. 429. 
 
 Where plaintiff in a foreclosure 
 suit is not a party to the action in 
 which a receiver is appointed, he can- 
 not be enjoined by the latter. Wal- 
 ton V. Grand Belt Copper Co. 56 Hun, 
 211. 
 
 The receiver of a railroad cannot 
 
 enjoin proceedings in admiralty 
 growing out of collision of a vessel. 
 Damages in such case cannot be con- 
 veniently, if at all, applied in courts 
 of equity or law. Paxson v. Cun- 
 ningham, 21 U. S. App. 466, 63 Fed. 
 Rep. 132, 11 C. C. A. 111. 
 
 Substitution of receiver. 
 
 The receiver of a national bank is 
 entitled to be substituted as sole de- 
 fendant in all actions pending at the 
 time of his appointment. The bank 
 after the appointment cannot appeal 
 a case pending. Sioux Falls Nat. 
 Bank v. First Nat. Bank, 6 Dak. 113, 
 Reversed on other grounds in 150 U. 
 S. 231, 37 L. ed. 1063. 
 
 An application by a receiver of a 
 corporation which has not been dis- 
 solved, to be substituted for the cor- 
 poration as plaintiff in a pending ac- 
 tion, is properly refused in the exer- 
 cise of the court's discretion under 
 N. Y. Code Civ. Proc. § 756, where 
 the plaintiff's attorney has a much 
 larger money interest in the recov- 
 ery than the plaintiff or its receiver, 
 and the attorney of the defendant 
 was instrumental in having the re- 
 ceiver appointed. Shaped Sea)nless 
 Stockinq Co. V. Snow Church Co. 19 
 Misc. 421. 
 
 The receiver of a corporation ap- 
 pointed in an action by a judgment 
 creditor for the sequestration of its 
 property is not entitled as of right to 
 be substituted for the corporation as 
 
 55
 
 § 73 
 
 liECElVERSHlPS— SUPPLEAIENT. 
 
 plaintiir in a pending action, but the 
 application for such relief is within 
 N. Y. Code Civ. Proc. § 756, under 
 which the order of substitution is 
 discretionary. Ibid. 
 
 To justify the substitution of a re- 
 ceiver as plaintiff, so much of the 
 record as establishes the fact of due 
 appointment and qualification is all 
 that is required. Seymour v. New- 
 man, 77 Mo. App. 578. 
 
 The burden of proof is on defend- 
 ants in an action by a bank, where 
 persons claiming to have been ap- 
 pointed receivers of the bank are pe- 
 titioning to be substituted as parties 
 plaintiir, and produce a copy of the 
 order of their appointment, attested 
 by the clerk and under seal of the 
 court, to show that the court had no 
 jurisdiction of the subject-matter of 
 the appointment of receivers. Ibid. 
 
 The receiver is entitled to be sub- 
 stituted for the debtor in pending 
 suits. Re Wilds, 6 Abb. N. C. 307 ; 
 Searcy v. Stubbs, 12 Ga. 437 ; Kitt- 
 redge v. Osgood, 161 Mass. 384. 
 
 The order substituting may pro- 
 vide that the receiver shall make no 
 change in attorneys without applica- 
 tion to the court. Re Wilds, 6 Abb. 
 N. C. 307. 
 
 In an action begun the receiver 
 may continue prosecution without 
 substitution, so long as there is no 
 dissolution. United States Vinegar 
 Co. V. Spamer, 143 N. Y. 676. 
 
 Foreign receivers; receivers of for- 
 eign corporations. 
 
 It is not the policy of Illinois to 
 permit foreign receivers to remove 
 from its jurisdiction the pi'operty of 
 foreign corporations, so as to require 
 it? citizens to go into a foreign juris- 
 diction to assert their rights. Hunt 
 V. Gilbert, 54 111. App. 491; Heyer 
 \. Alexander, 108 111. 385; May v. 
 First Nat. Bank, 122 111. 551 ; Wood- 
 ward V. Brooks, 128 111. 222, 3 L. R. 
 A. 702 ; Henderson v. Schaas, 35 111. 
 App. 155; Webster v. Judah, 27 111. 
 App. 294 ; Ford v. Holbrook, 50 111. 
 App. 547, Affirmed in 153 111. 633, 
 27 L. R. A. 324. 
 
 The privilege of a foreign receiver 
 to exercise extra-territorial powers 
 is derived wholly from the doctrine 
 of comity, and this comity is accord- 
 56 
 
 ed except where domestic policy or 
 rights of domestic creditors are in- 
 volved. Hunt V. Gilbert, 54 111. App. 
 491. 
 
 A foreign receiver may prove a 
 debt in bankruptcy. Ex parte Nor- 
 wood, 3 liiss. 504. 
 
 A foreign receiver cannot by cer- 
 tificates bind property wholly in an- 
 other state. Pool V. Farmers Loan 
 d T. Co. 7 Tex. Civ. App. 334. 
 
 The expiration of the period of lim- 
 itation in the interval between the 
 institution of a suit on a demand by 
 a foreign receiver and the filing of an 
 original amended petition by the 
 creditors after the discharge of the 
 receiver bars the action, as a foreign 
 receiver cannot sue and maintain an 
 action in Texas, and the commence- 
 ment of the suit by him did not op- 
 erate to suspend the running of the 
 statute. Kellogg v. Leivis, 10 Tex. 
 Civ. App. 668. 
 
 A receiver appointed by a foreign 
 court to settle the affairs of an insol- 
 vent partnership is not entitled to 
 remove partnership assets from the 
 state, as against resident garnishing 
 creditors of the partnership or of its 
 individual members, unless it ap- 
 pears that the partnership has not 
 been settled, and that the fund is 
 needed for that purpose independent 
 of any claim of the debtor partner 
 thereto. Grogan v. Egbert, 44 W. 
 Va. 75. 
 
 An attachment by a local creditor, 
 of a judgment for a receiver of a for- 
 eign corporation against a Pennsyl- 
 vania corporation, on the day before 
 issuance of execution and making of 
 the levy, entitles him to the fund if 
 sufficient to pay the attachment, in 
 preference to the receiver, as the lat- 
 ter's rights are no higher than those 
 of the corporation, and the princi- 
 ples of interstate comity do not ap- 
 ply when the attaching creditor is a 
 citizen of the state. Verona Tool 
 Works V. E. S. Greely Go. 6 Pa. Dist. 
 R. 638. 
 
 A member of a foreign insolvent 
 mutual benefit association for which 
 a receiver has been appointed in the 
 state of its incorporation will not be 
 allowed to subject property of the 
 association in another state to the 
 payment of his certificate, which ma-
 
 SUITS BY RECEIVERS— DEFENSES TO. 
 
 § 73 
 
 tured after the commencement of the 
 receivership action, thougli before 
 the receiver's api3ointment, but will 
 be relegated to his right to share in 
 the distribution of the assets in the 
 receivership action, where it is ap- 
 parent that he will be accorded such 
 right if he takes proper steps. 
 Wheeler v. Dime Sav. Bank, 116 
 Mich. 271. 
 
 The doctrine of interstate comity 
 is not applicable to a foreign receiv- 
 ership of an insolvent partnership 
 where the evidence tends to show 
 that it is a mere cover to enable a 
 debtor partner to dispose of his own 
 property in the state in hindrance 
 and fraud of creditors; but such re- 
 ceivership will be deemed void as to 
 creditors or purchasers for value, 
 without notice. Grogan v. Egbert, 
 44 W. Va. 75. 
 
 Recognition of a foreign receiver is 
 by comity. Lett v. Thiirber-Why- 
 land Co. 4 Pa. Dist. R. 239. 
 
 A foreign receiver has recognition 
 in our courts, by the doctrine of 
 comity, t'alk v. Janes, 49 N. J. Eq. 
 484. 
 
 A foreign receiver will be recog- 
 nized by comity when domestic citi- 
 zens are not affected. Merchants 
 Nat. Bank v. McLeod, 38 Ohio St. 
 174. 
 
 Where by the rules of a foreign 
 mutual benefit society the reserve 
 fund in the local branches in other 
 states is under the control of the 
 supreme lodges, and a receiver is ap- 
 pointed in the home state of the cor- 
 poration, and ancillary receivers for 
 the branches, equity will decree that 
 the reserve fund of the local branches 
 in the hands of the ancillary receiv- 
 ers be turned over to the general re- 
 ceiver. Ware v. Supreme Sitting, 
 0. of I. H. (N. J. Eq.) 28 Atl. 1041. 
 
 Where members of an association 
 in different states are bound by a 
 common contract and the court at 
 the domic! 1 appoints a receiver on 
 account of insolvency, trust funds 
 in a local branch may be turned over 
 to the home receiver. Duricard v. 
 Jewett, 4G La. Ann. 700. 
 
 A creditor who obtains a judg- 
 ment in Canada against property 
 therein, upon a contract made and 
 performable in one of the United 
 
 States, between parties domiciled 
 therein, cannot be allowed to execute 
 his judgment against property of the 
 defendant which has passed into 
 Canada, where one of the conditions 
 and consequences of the contract un- 
 der the laws of the state is that the 
 right of execution and sale of the 
 property of the defendant shall cease 
 on the appointment of receivers, and 
 receivers have been apointed by the 
 courts of the state. Barker v. Cen- 
 tral Vermont R. Go. Rap. Jud. Que- 
 bec, 13 C. S. 2. 
 
 Appointment of. 
 
 An action for the appointment of 
 a receiver of a foreign corporation 
 and to set aside an assignment may 
 be made without previous demand on 
 the corporation. Walter v. F. E. 
 MeAlister Co. 21 Misc. 747. 
 
 Whether after a foreign corpora- 
 tion doing business in New Jersey 
 has passed into the hands of a re- 
 ceiver in the state of its domicil a 
 receiver will be appointed in the for- 
 mer state, and, if so, whether the 
 domiciliary receiver will be ap- 
 pointed there, depend on the amount 
 and kind of business done in the 
 state, and whether any special inter- 
 est of the creditors or citizens in the 
 state is likely to be involved in the 
 settlement. Irwiti v. Granite State 
 Provident Asso. 50 N. J. Eq. 244. 
 
 A temporary receiver for a foreign 
 corporation may be appointed with- 
 out notice, where the corporation 
 has no authorized agent in the state 
 upon whom notice can be served^ 
 and if the cause is delayed until no- 
 tice can be had by publication, all 
 the assets of the corporation within 
 the state will have been removed 
 from the jurisdiction of the court. 
 Security Sav. & L. Asso. v. Moore, 
 151 Ind. 174. 
 
 An action by a stockholder for the 
 appointment of a receiver of tlic lo- 
 cal assets of a foreign corporation 
 may be maintained upon its insol- 
 vency, when it has oflicers, creditors, 
 and property within the state, and 
 has made an assignment therein, and 
 its afi'airs have passed into the hands 
 of a receiver appointed within the 
 state of its domicil. Walter v. F. 
 E. MeAlister Co. 21 Misc. 747. 
 
 67
 
 ■S 73 
 
 RECEIVERSHIPS— SUPPLEMENT. 
 
 An order appointing a receiver of 
 an insolvent corporation may be 
 niade without notice, where tiie com- 
 plainant is unable to get service of 
 notice on the ollieers of such corpora- 
 tion. Limlgrcn-Malian Chemical 
 Fire Engine Co. v. Revere Rubber 
 Co. 70 Ili. App. 379. 
 
 After jurisdiction obtained 
 against a foreign corporation by its 
 appearance and judgment a receiver 
 may be appointed. De Bemer v. 
 Dreio, 57 Barb. 438. 
 
 The appointment in a foreign 
 state will not defeat rights of at- 
 taching creditor of the state where 
 the property is situated, or credit- 
 ors of other states. John Ray Clark 
 Co. V. Tohi/ Valley Supply Co. 3 Pa. 
 Dist. R. 518. 
 
 The appointment of a foreign re- 
 ceiver will not be made where it will 
 be against the interest of citizens of 
 the state. Borton v. Brines-Chase 
 Co. 175 Pa. 209. 
 
 A nonresident stockholder of a for- 
 eign corporation may maintain an 
 action for the appointment of a re- 
 ceiver of its property within the 
 state, although its affairs are in the 
 hands of a receiver appointed by the 
 courts of its domicil, since the plain- 
 tiff does not sue as a representative 
 of the corporation. Walter v. F. E. 
 McAlister Co. 21 Misc. 747. 
 
 Jurisdiction. 
 
 Where the rights of domestic 
 creditors are not involved the courts 
 will remit the assets to a foreign re- 
 ceiver for distribution in Pennsylva- 
 nia. Keun v. Supreme Sitting, 0. of 
 I. H. 3 Pa. Dist. 323. 
 
 The courts of Massachusetts will 
 not protect against an assignment of 
 credits to a foreign receiver of a for- 
 eign corporation, an attachment of 
 credits made by a nonresident cred- 
 itor after the assignment. Witters 
 V. Globe Sav. Bank, 171 Mass. 425. 
 
 A foreign receiver who has ob- 
 tained possession of property within 
 the jurisdiction of the court appoint- 
 ing him will be protected in such pos- 
 session in any jurisdiction into 
 which he may take the property. 
 Robertson v. Stead, 135 Mo. 135, 33 
 L. R. A. 203. 
 
 A receiver in New Jersey of a for- 
 58 
 
 eign corporation for which a receiver 
 has been appointed in the state of its 
 domicil is amenable only to the di- 
 rection of the courts of New Jersey, 
 and not to the direction of the domi- 
 ciliary receiver. Irwin v. Granite 
 State Provident Asso. 56 N. J. Eq. 
 244. 
 
 Foreign statutory trustees dis- 
 cussed. Re Waite, 99 N. Y. 433. 
 
 Suits by and against. 
 
 A receiver appointed by a chan- 
 cery court in one state of the prop- 
 erty, business, and assets of a build- 
 ing and loan association, under a de- 
 cree adjudging the corporation in- 
 solvent, and directing the winding 
 up of its affairs, and directing him 
 to bring any and all suits necessary 
 for the collection of its assets that 
 they may be distributed inpayment of 
 its debts and among its shareholders, 
 may sue in a Federal court in anoth- 
 er state upon a note and mortgage 
 given by a shareholder, where all the 
 debts have been paid. Rogers v. 
 Riley, 80 Fed. Rep. 759. Citing 
 Hurd v. Elizabeth, 41 N. J. L. 1 ; 
 Metzner v. Bauer, 98 Ind. 427. 
 
 The principles of comity do not ap- 
 ply to an action by a foreign receiver 
 of a foreign mutual insurance com- 
 pany acting under a decree in the 
 foreign jurisdiction making an as- 
 sessment on premium notes, even if 
 otherwise applicable, where the notes 
 were taken for insurance on property 
 in the state while the company was 
 doing business within the state in 
 violation of McClain's (Iowa) Code, 
 § 1144, prohibiting foreign insurance 
 companies from doing business with- 
 out compliance with the conditions 
 therein mentioned. Parker v. Lamb 
 & Sons, 99 Iowa, 265, 34 L. R. A. 
 704. 
 
 A receiver of a foreign nation can- 
 not sue in Texas. Moreau v. Du Bel- 
 let (Tex. Civ. App.) 27 S. W. 503. 
 
 The commencement of an action 
 by a foreign receiver in Texas, where 
 such receivers are not entitled to sue, 
 does not suspend the running of the 
 statute of limitations. Kellogg v. 
 Leicis, 16 Tex. Civ. App. 668. 
 
 A receiver of a foreign corporation 
 properly appointed in the state 
 where such corporation is domiciled
 
 SUITS BY RECEIVERS— DEFENSES TO. 
 
 § 77 
 
 may maintain an action in New York 
 as a matter of comity and interstate 
 curtesy to obtain possession of the 
 propertj' of such corporation within 
 the latter state. Mahon v. Ongley 
 Electric Co. 24 App. Div. 50. 
 
 A receiver appointed in a foreign 
 state may maintain a suit in the 
 courts of the state of Missouri con- 
 cerning the property of his estate as 
 against all foreign creditors, without 
 regard to whether they have a com- 
 mon domicil with him. Weil v. Bank 
 of Burr Oak, 7G Mo. App. 34. 
 
 A receiver of a foreign corpora- 
 tion, appointed in the state of its 
 domicil, may institute in the courts 
 of West Virginia suits in his own or 
 the corporate name, for debts or 
 claims due the corporation, living 
 V. Bentley & G. Furniture Co. (W. 
 Va.) 31 S. E. 92o; Swing v. Park- 
 ersburg Veneer & Panel Co. (W. Va.) 
 31 S. E. 926. 
 
 Tlie receiver of a loreign corpora- 
 tion, appointed and residing in the 
 state of its domicil, cannot maintain 
 an action against the corporation for 
 the sole purpose of having an ancil- 
 lary receiver appointed in New Y'ork, 
 in which state the corporation has 
 property. Mahon v. Ongley Electric 
 Co. 156 N. Y'. 190, Reversing 24 App. 
 Div. 41. 
 
 The receiver of a foreign corpora- 
 tion appointed by a foreign jurisdic- 
 tion will not be permitted to bring 
 suit in the Missouri courts, where 
 this will operate to permit the re- 
 ceiver to take property out of the 
 state to the injury of domestic cred- 
 itors. Waters-Pierce Oil Co. v. 
 American Exch. Bank, 71 Mo. App. 
 653. 
 
 The receivers of a foreign railroad 
 
 corporation may be served with proc- 
 ess in an action for damages accru- 
 ing in the operation of the road by 
 them, in the same manner as the cor- 
 poration might have been served be- 
 fore their appointment. Hill v. Bal- 
 timore c(- O. R. Co. 7 Pa. Dist. R. 473. 
 
 The fact that a foreign corporation 
 is in the hands of a receiver is not 
 sufficient cause for quashing attach- 
 ment proceedings against it. Vogt 
 V. Covenant Bldg. d L. Asso. 21 Pa. 
 Co. Ct. 351. 
 
 The insolvency of a foreign corpo- 
 ration, the affaiis of which are in the 
 hands of a receiver appointed in its 
 domicil, will not prevent a nonresi- 
 dent stockholder from maintaining 
 an action in the state to set aside an 
 assignment executed by the corpora- 
 tion therein to a resident, since the 
 corporate officers are the parties im- 
 plicated. Walter v. F. E. McAlister 
 Co. 21 Misc. 747. 
 
 A foreign receiver may be substi- 
 tuted in a pending suit on terms that 
 will protect resident creditors. Na- 
 tional Trust Co. V. Murpliy, 30 N. J. 
 Eq. 408. 
 
 A foreign receiver has a special 
 property in assets delivered into his 
 possession in the jurisdiction where 
 he was appointed, which will author- 
 ize him to maintain suit for their re- 
 covery even against the claim of do- 
 mestic creditors who attach the 
 property after he has brought it into 
 the United States. Robertson v. 
 Stead, 135 Mo. 135, 33 L. R. A. 203. 
 
 A foreign receiver may sue on de- 
 mand due him, when domestic cred- 
 itors are not aflfected by it or the do- 
 mestic policy involved. Castlcman 
 V. Tetnpleman, 87 Md. 546, 41 L. R. 
 A. 367. 
 
 Page 173, sec. 77. — Suits against stockholders on unpaid subscrip- 
 tions. 
 
 A depositor may enforce by action 
 the liability of a stockholder of an 
 insolvent bank, and such right is not 
 reserved to the receiver. Millisock 
 v. Moore, 76 Mo. App. 528. 
 
 A receiver has power to maintain 
 suit against stockholders for unpaid 
 subscriptions. Wyman v. WiUiains, 
 52 Neb. 833. 
 
 One who purchases stock in a bank 
 cannot avoid his liability for an as- 
 sessment by a receiver of the bank, 
 by alleging that no part of the orig- 
 inal capital was ever paid for as re- 
 quired by law. Wallace v. Hood, 89 
 Fed. Rep. 11. 
 
 The individual liability for debts 
 of the corporation, jJiovidod by Kan. 
 
 59
 
 § 80 
 
 RECEIVERSHIPS— SUPPLEMENT. 
 
 Gen. Stat. II 1192, is not to be en- 
 forced at the suit of a receiver, but 
 by the individual creditors. Dexter 
 V. Edmands, 89 Fed. Rep. 467. 
 
 A receiver may maintain an action 
 to enforce the liability of stockhold- 
 ers to pay calls for assessments 
 made by him, under the order of the 
 court, for the payment of the debts 
 of the corporation. Gaincy v. Gil- 
 son, 149 Ind. 58. 
 
 The procedure prescribed by Minn. 
 Gen. Stat. 1894, chap. 76, 'in pro- 
 ceedings by creditors to enforce the 
 liability of stockholders of an in- 
 solvent bank, governs a proceeding 
 by a receiver appointed under Minn. 
 Gen. Stat. chap. 145, § 20, to enforce 
 such liability, and an order of the 
 court authorizing the institution of 
 such a proceeding by liim is not a 
 necessary preliminary. Ueland v. 
 Hail (J an, 70 Minn. 349. 
 
 The liability of stockholders for 
 the debts of the corporation, imposed 
 by the Kansas laws, is not an asset 
 of the corporation which may be 
 sued for by a receiver. Brown v. 
 Trail, 89 Fed. Rep. 641. 
 
 The liability of stockholders of an 
 insolvent bank under Iowa Acts 18th 
 Gen. Assem. chap. 208, § 1, making 
 them liable, in addition to the 
 amount of stock held by them, to an 
 amount equal to their respective 
 shares for all liabilities of the bank 
 accruing while they remained such 
 stockholders, may be enforced by a 
 receiver of the bank, instead of by the 
 creditors, appointed to collect and 
 distribute such fund. State, Stone, 
 V. Union Stock Yards State Bank, 
 103 Iowa, 549, citing Story v. Fur- 
 man, 25 N. Y. 214; Wilson v. Book, 
 13 Wash. 070. 
 
 For power to sue stockholders, see 
 Van Steemoyck v. Sackett, 17 Wis. 
 646; Elderkin v. Peterson, 8 Wash. 
 674. 
 
 A creditor of a limited partnership 
 association of which a receiver has 
 been appointed is not thereafter en- 
 titled to issue execution on his judg- 
 ment against subscribers to stock of 
 the association whose subscriptions 
 are not paid up. Rouse v. Detroit 
 Cyele Co. Ill Mich. 251, 38 L. R. A. 
 794. ■ 
 
 Page 179, sec. 80. — Suits in distraint. 
 
 Bennett v. Robins, 5 Car. & P. 379 ; 
 Shelly V. Pelham, 1 Dick. 120; Lucas 
 V. Mayne, 1 Hogan, 394; Hughes v. 
 Hughes 1 Ves. Jr. 161, 3 Bro. Ch. 
 Eden's ed. 87 note; Brandon v. 
 Brandon, 5 Madd. 473. 
 
 For suit on bond taken in viola- 
 tion of order of court — see O'Oor- 
 man v. Sabin, 62 Minn. 40. 
 
 Right of receivers to sue generally. 
 
 The bank comptroller, and not the 
 receiver, is the proper person to 
 bring suit under Wis. Rev. Stat, 
 chap. 71, § 33. Rusk v. Van Nos- 
 trand, 21 Wis. 161, Overruling Van 
 Steenwyck v. Sackett, 17 Wis. 646. 
 
 A receiver's right cannot be ques- 
 tioned when he was ordered to effect 
 a settlement and his action was per- 
 mitted by the court. Metropolitan 
 'Nat. Bank v. Commercial State Bank, 
 104 Iowa, 682. 
 
 As to the form of action by re- 
 ceivers, the proper parties, and the 
 liability of stockholders in an in- 
 solvent insurance company — see Os- 
 good V. Lay tin, 3 Keyes, 521. 
 
 Under the English practice it was 
 proper to refer the question of suit 
 
 60 
 
 by the receiver to a master for de- 
 termination. Sturgeon v. Douglas, 
 1 Hogan, 400. 
 
 A tenant served with order to pay 
 rent to a receiver can pay to no one 
 else. Russell v. Baker, 1 Hogan, 
 180. 
 
 The right of the receiver to sue, 
 as a general rule, is limited by the 
 right existing in the debtor. Smith 
 V. Woodruff, 1 Hilt. 402. 
 
 And when his right to sue is ques- 
 tioned he may sue and defend in the 
 name of the debtor. Smith v. United 
 States Exp. Co. 135 111. 279. 
 
 He cannot require an accounting 
 of the debtor as an executor. Wor- 
 rail V. Driggs, 1 Redf. 449.
 
 SUITS BY RECEIVERS— DEFENSES TO. 
 
 S 80 
 
 And cannot maintain an action to 
 recover the value of property sold by 
 a bankrupt. Lansing v. Manton, 14 
 Xat. Bankr. Reg. 127. 
 
 And as receiver of a partnership 
 cannot recover money due one part- 
 ner and a third person. Wheat v. 
 Bank of California, 119 Cal. 4. 
 
 And cannot maintain an action to 
 recover the value of property alleged 
 to have been transferred by an in- 
 solvent in violation of an insolvency 
 act. Tibbets v. Cohn, 116 Cal. 365. 
 Citing Lansing v. Manton, 14 Nat. 
 Bankr. Reg. 127; Sutherland v. Da- 
 vis, 10 Nat. Banlvr. Reg. 424; Re 
 Steadman, 8 Nat. Bankr. Reg. 319. 
 
 And a bill by a receiver against 
 himself as a stockholder will not be 
 sustained. Wiswell v. Starr, 48 Me. 
 401. 
 
 And where the receiver has already 
 prosecuted a sviit the plaintiff for 
 whose benefit the suit was brought 
 by the receiver cannot sue. Tinkham 
 v. Borst, 24 How. Pr. 246. 
 
 It has been held that except where 
 the legal title has been transferred 
 to him the receiver cannot sue in his 
 own name. Wisener v. Myers, 3 Pa. 
 Dist. R. 687. 
 
 An attachment against a tenant, 
 and distress, cannot both be prose- 
 cuted by the receiver at the same 
 time. Nugent v. Nugent, 1 Hogan, 
 169. 
 
 A debt due the sheriff cannot be 
 recovered by the receiver against 
 him individually. Norcross v. Hol- 
 lingsicorth, 83 Hun, 127. 
 
 A receiver may be appointed to 
 conduct a litigation at law specially, 
 if it appears that the interest of cred- 
 itors will be better protected than by 
 allowing receivers of the estate to do 
 so. Vandergrift v. Interstate 8. B. 
 Co. 43 W. N. C. 247. 
 
 On application it is proper to au- 
 thorize a receiver to employ counsel 
 to advise him as to his defense; but 
 the opinion of such counsel is not 
 conclusive. Troy Sav. Bank v. Mor- 
 rison, 27 App. Div. 423. 
 
 And he may be directed to discon- 
 tinue a suit. Merritt v. Lyon, 16 
 Wend. 421. 
 
 As a condition to a recovery of se- 
 curities illegally exchanged by a cor- 
 poration over which he is appointed. 
 
 the receiver is only required to ten- 
 der back such securities as have 
 come to his hands as receiver. Hayne 
 v. Metropolitan Trust Co. 67 Minn. 
 245. 
 
 But the receiver is not required 
 to put the other party in statu quo, 
 or return the money received, wliore 
 he sues to set aside a mortgage as in 
 contravention of insolvent laws. 
 Moore v. Avierican Loan d T. Co. SO 
 Fed. Rep. 49. 
 
 The right to sue is dependcut on 
 the receiver having given bond it re- 
 quired by the order. Seymour v. 
 Newman, 77 Mo. App. 578. 
 
 The receiver of a national bank, in 
 order to sue for an ordinary debt, 
 will not be required to get an order 
 from the comptroller of the cur- 
 rency. National Bank of the Me- 
 tropolis V. Kennedy, 17 Wall. 19, 21 
 L. ed. 554. 
 
 Where a receiver has been ap- 
 pointed under the national currency 
 act, the bank still continuing to 
 exist, suit is properly instituted 
 against it, and the defense is made 
 by it. Security Bank v. National 
 Bank of the Commonicealth, 1 Hun, 
 287; cf. Bank of Bethel v. Pahqui- 
 oque Bank, 14 Wall. 383, 20 L. cd. 
 840. 
 
 Nonresident receivers of national 
 banks are required to give security 
 for costs under U. S. Rev. Stat. § 
 1001. Piatt V. Adriance, 90 Fed. 
 Rep. 772. 
 
 He may bring a suit in equity to 
 set aside a prior voluntary assign- 
 ment and to remove the assignee. 
 Morgan v. South Milwaukee Lake 
 Vieio Co. 100 Wis. 465. 
 
 And to enforce the common-law li- 
 ability of stockholders, to the same 
 extent as the corporation. Gainey 
 V. Gilson, 149 Ind. 58. 
 
 And to collect a note given for 
 stock liability. Hepburn v. Kincan- 
 non, 74 Miss. 691. 
 
 The receiver of an insolvent in- 
 dorser on a note may sue the orig- 
 inal obligor and recover a dividend 
 paid to the holder thereof. Mercan- 
 tile Nat. Bank v. Macfarlane, 71 
 Minn. 497. 
 
 And on a note payable to a bank of 
 which he is receiver he may sue in 
 his own name as receiver, or in the 
 
 61
 
 § 81 
 
 RECEIVERSHIPS— SUPPLEMENT. 
 
 name of the bank. Chicago Fire 
 Proofing Co. v. I'ark Sat. Bank, 145 
 111. 481; Xational Hank of the Me- 
 tropolis V. Kcn>irdi/, 17 Wall. I'J, 21 
 L. ed. 554. 
 
 And to recovor money collected on 
 a jndgment confessed by a corpora- 
 tion with the view of giving a pref- 
 erence. Nealis v. American Tube d 
 Iron Co. 150 N. Y. 42. 
 
 And to redeem demised premises 
 taken for nonpayment of rent. Bien 
 V. Bixby (Sup. Ct. App. Term) 18 
 Misc. 415; Fitzpatrick v. Eyre, 1 IIo- 
 gan, 171. 
 
 And to terminate tenancies on no- 
 tice. Doe, Marsack, v. Read, 12 
 East, 58. 
 
 And may assail the debtor's fraud- 
 ulent transactions. Pender v. Mai- 
 lett, 122 N. C. 1G3; Chamberlain v. 
 O'Brien, 46 Minn. 80. 
 
 The receiver in supplementary pro- 
 ceedings may bring suit for conver- 
 sion against a mortgagee who took 
 possession under a void mortgage. 
 Stephens v. Meriden Britannia Co. 
 13 App. Div. 268. 
 
 And to collect an assessment levied 
 
 by the board of directors. JVgman 
 V. Williams, 53 Neb. 670. 
 
 In an action by a receiver of an 
 insolvent bank to recover a stock as- 
 sessment, a claim of the stockholder 
 that entitles him to be paid in full 
 entitles him to offset the amount. 
 Welles V. titout, 38 Fed. Rep. 807. 
 
 A receiver may defend against an 
 attachment. Paine v. HoUiday, 68 
 Miss. 2!)8. 
 
 But he should not bring attach- 
 ment wliere he knows there is a dis- 
 pute about the tenure. Pread v. 
 Lewis, 2 Molloy, 369. 
 
 He may bring actions to determine 
 conflicting claims. Ornies v. Baker, 
 17 N. Y. Week. Dig. 104. 
 
 A receiver has power prima facie 
 to sue to set aside a fraudulent mort- 
 gage under 2 Wash. Code, S 331. 
 Titlow V. Cascade Oatmeal Co. 15 
 Wash. 652. 
 
 The validity of an assignment for 
 benefit of creditors should be chal- 
 lenged by the receiver of the insol- 
 vent corjjoration, and not by a stock- 
 holder. Walter V. F. E. McAlister 
 Co. 21 Misc. 747. 
 
 Page 180, sec. 81. — Defenses to actions brought by receivers. 
 
 A defense that might have been 
 made against the defendant may be 
 made against the receiver. Wardle 
 V. Hudson, 96 Mich. 432; Moise v. 
 Chapman, 24 Ga. 249. 
 
 And so as to set-off. Van Wagoner 
 V. Paterson Gaslight Co. 23 N. J. L. 
 283. 
 
 An action by the receiver of a bank 
 will, in the absence of any allegation 
 of the insolvency or indebtedness of 
 the bank, be treated as though it was 
 brought directly by the bank, as un- 
 der 2 Hill's (Wasii.) Code, § 326, a 
 receiver may be appointed for other 
 purposes than the winding up of an 
 insolvent concern. Shuey v. Holma, 
 20 Wash. 13. 
 
 The defense is not available in an 
 action on a note by the receiver of a 
 bank, appointed under Neb. Comp. 
 Stat. chap. 8, § 34, that such note 
 was executed by the maker to enable 
 one indebted to the corporation in 
 62 
 
 excess of the maximum limit to in- 
 dorse the same to the bank in place 
 of the illegal excess of his indebted- 
 ness, as such transaction was a fraud 
 on creditors and depositors. Har- 
 rington v. Connor, 51 Neb. 214. 
 
 An order directing a receiver in 
 supplementary proceedings to bring 
 suit on a specified claim in favor of 
 the judgment debtor, and "holding 
 the same subject to the further or- 
 der" of the court, is not objection- 
 able on the ground that such judg- 
 ment debtor is' entitled to a home- 
 stead in such claim. Globe Phos- 
 phate Co. V. Pinson, 52 S. C. 185. 
 
 In the absence of mismanagement 
 or bad faith in prosecuting an ac- 
 tion, a motion for security for costs 
 will not be sustained against a re- 
 ceiver. Kimberly v. Stewart, 22 
 How. Pr. 281 ; Kimberly v. Black- 
 ford, 22 How. Pr. 443. See Kimber- 
 ly V. Goodrich, 22 How. Pr. 424.
 
 SUITS AGAINST THE RECEIVER. §§ 82. 83 
 
 Page 182, sec. 82. — Suits against receivers; generally. 
 
 Equitable relief is obtained in the 
 same court in which the receiver was 
 appointed. Not so, however, as to 
 legal relief. National Bank v. Rich- 
 mond Factory, 91 Ga. 284. 
 
 When the receiver exercises the 
 francliises of the corporation he is 
 subject to the suit as the company. 
 Ball V. Mahry. 91 Ga. 781. 
 
 An independent action cannot be 
 maintained upon a pre-existing 
 claim due from an insolvent corpo- 
 ration against its receiver, appointed 
 under Minn. Gen. Stat. 1894, § .5900, 
 for the recovery of judgment or to 
 have the claim allowed from the 
 trust fund. Buffum v. Hale, 71 
 Minn. 190. 
 
 A receiver exercising the fran- 
 chises of a corporation subjects him- 
 self to the same obligations as the 
 corporation. Hence mandamus will 
 lie to compel him to construct a street 
 crossing. Fort Dodge v. Minneapo- 
 lis & Ht. L. R. Co. 87 Iowa, 389. 
 
 A person prejudiced by the act of 
 a receiver should apply for relief in 
 the court in which the receiver was 
 appointed. Searle v. Choat, L. R. 
 25 Ch. Div. 723. 
 
 A suit brought against a receiver 
 both individually and in his official 
 capacity cannot be sustained. 
 Brandt v. Siedler, 10 Misc. 234. 
 
 The owner of commercial paper de- 
 posited in a bank under circum- 
 stances rendering its receipt a fraud 
 may be relieved from an election 
 made by proving the claim as a gen- 
 eral creditor in ignorance that the 
 better remedy of pursuing the pro- 
 ceeds in the hands of the receiver of 
 the bank is permitted by the law, 
 where no detriment lias been occa- 
 sioned bj^ such action to other par- 
 ties, which will create an estoppel. 
 Standard Oil Co. v. Hawkins, 46 U. 
 S. App. 115, 74 Fed. Rep. 395, 20 C. 
 C. A. 4G8, 33 L. R. A. 739. 
 
 A suit will lie against an insolvent 
 railroad company after the appoint- 
 ment of a receiver, for the killing of 
 an animal by a train, as the title to 
 the property is not changed. State 
 V. Port Royal d A. R. Co. 84 Fed. 
 Rep. 67. 
 
 Service on a station agent, being 
 good as to the corporation, is good 
 as to its receiver. Proctor v. Mis- 
 souri, K. & T. R. Co. 42 Mo. App. 
 124. 
 
 But service on the receiver in a 
 petition in bankruptcy is not suffi- 
 cient. Re Flowers, 65 L. J. Q. B. N. 
 S. 079, 75 L. T. N. S. 306. 
 
 Page 183, sec. 83. — Order of court necessary. 
 
 Unless authorized by statute the 
 court appointing a receiver will not 
 permit him to be sued without leave. 
 Reed v. Richmond & A. R. Co. (Va.) 
 4 S. E. 587 ; Piper v. Straiten (Tex.) 
 7 S. W. 45 ; De Graff enried v. Bruns- 
 wick & A. R. Co. 57 Ga. 22 ; Carrey 
 V. Spencer, 72 N. Y. S. R. 108. 
 
 A suit cannot be maintained in 
 the Federal court against a receiver 
 appointed in a state court, without 
 leave. Rejall v. Greenhood, 60 Fed. 
 Rep. 784. 
 
 The equitable remedies of all cred- 
 itors should be asserted in the case 
 in which the appointment is made. 
 National Bank v. Richmond Factory, 
 91 Ga. 284. 
 
 The resignation of a receiver does 
 not render it necessary to get per- 
 mission to prosecute against his 
 successor. Fordyce v. Dixon, 70 
 Tex. 694. 
 
 An answer in the nature of a cross 
 action against a receiver is only by 
 leave of court. Kortjohn v. Seimers, 
 29 Mo. App. 271. 
 
 The method for the ascertainment 
 of disputed claims against a dis- 
 solved corporation, prescribed by the 
 New York statute authorizing pro- 
 ceedings for the voluntary dissolu- 
 tion of corporations, is not exclusive, 
 and the court may in a proper case 
 authorize! an action to bo brought 
 against a receiver who disputes the 
 
 63
 
 § 83 
 
 llECEIVERSHIPS— SUPPLEMENT. 
 
 validity of a claim. Ludington v. 
 Thompson, 153 N. Y, 499, Ailirming 
 4 App. Div. 117. 
 
 The declaration must allege that 
 leave to sue was obtained. St. Louis, 
 A. t6 S. It. Co. V. Hamilton, 158 111. 
 366; Keen v. Breckenridge, 90 Ind. 
 69; Mulcahcy v. Strauss, 151 111. 70. 
 
 A mere allegation in the complaint 
 in an action in a state court against 
 the receiver of a railroad company 
 appointed by a Federal court, that 
 defendant claims some title to the 
 land in suit for which plaintiff 
 brings an action, is insuflicint to 
 give the court jurisdiction unless 
 leave to sue has been obtained, un- 
 der act of Congress August 13, 1888, 
 § 3. Bennett v. Northern P. R. Co. 
 17 Wash. 534. Citing Barton v. 
 Barbour, 104 U. S. 126, 26 L. ed. 672; 
 Davis V. Grajj, 16 Wall. 203, 21 L. ed. 
 447 ; Central Trust Co. v. East Ten- 
 nessee, V. & G. R. Co. 59 Fed. Rep. 
 523; McNulta v. Lochridge, 141 U. 
 S. 327, 35 L. ed. 796; Re Tyler, 149 
 U. S. 164, 37 L. ed. 689; Eddy v. 
 Lafayette, 4 U. S. App. 247, 49 Fed. 
 Rep. 807, 1 C. C. A. 441; Stvope v. 
 Villard, 61 Fed. Rep. 417; Comer v. 
 Felton. 01 Fed. Rep. 731. Distin- 
 guishing Missouri P. R. Co. v. Texas 
 P. R. Co. 41 Fed. Rep. 311. Criticis- 
 ing Broivn v. Ranch, 1 Wash. 497. 
 
 An attachment suit against a for- 
 eign building and loan association is 
 not cut off by the fact that it has 
 gone into the hands of a receiver in 
 its home state. Southern B. d L. 
 Asso. V. Price, 88 Md. 155, 42 L. R. A. 
 206. 
 
 The appointment of a receiver for 
 a lessor of land, to collect the debts 
 due such lessor, will not prevent a 
 purchaser of the premises at an ex- 
 ecution sale against such lessor from 
 bringing an action to recover rent 
 due under the lease. Griffith v. Bur- 
 lingame, 18 W^ash. 429. 
 
 Leave to sue a receiver for a claim 
 which he admits will not be granted, 
 ■where his refusal to pay at the time 
 is due to his uncertainty as to 
 whether he possesses sufficient as- 
 sets to pay all the creditors in full. 
 Re Machivirth, 15 App. Div. 65. 
 
 The appointment of a receiver will 
 not prevent foreclosure of a prior 
 mortgage. Real Estate Title Ins. & 
 64 
 
 T. Co. V. Mahoning Rolling Mill Co. 
 6 Pa. Dist. R. 409. 
 
 The appointment of a receiver of 
 a corporation will not prevent a suit, 
 judgment, and execution where he is 
 carrying on the corporate business. 
 Hid. 
 
 An action to establish the valid- 
 ity of a claim against an insolvent 
 bank may be brought in a court of 
 competent jurisdiction against both 
 the insolvent bank and the receiver, 
 or against either, and if against the 
 receiver jointly or alone he may be 
 directed by the judgment to recognize 
 the claim and provide for its pay- 
 ment with the other claims against 
 the bank, and if against the bank 
 alone it is binding upon the receiver. 
 Denton v. Baker, 48 U. 8. App. 235, 
 79 Fed. Rep. 189, 24 C. C. A. 476. 
 
 An action at law may be main- 
 tained against a receiver of a na- 
 tional bank upon a judgment ob- 
 tained against the bank in a state 
 court, and the receiver directed 
 therein to recognize the claim and 
 provide for its payment with other 
 claims against the bank, as man- 
 damus will not lie to enforce such 
 claim. Ihid. 
 
 An application for leave to levy 
 an execution on assets of a firm in 
 the hands of a receiver appointed in 
 an action for an accounting after the 
 dissolution of the firm should be 
 granted, even if the firm is insolvent, 
 where the receiver was appointed with 
 the consent of both parties to the 
 action, and the intention was not to 
 wind up the affairs of the firm with 
 the greatest possible speed, but to 
 continue the business for the benefit 
 of the parties, resulting in the hin- 
 dering and delaying of creditors if 
 the assets are held exempt from exe- 
 cution. Schloss v. Schloss, 14 App. 
 Div. 333. 
 
 If a claim is properly cognizable 
 in the court appointing a receiver, 
 leave should not be given to sue the 
 receiver. Re Ilerbst, 63 Hun, 247. 
 
 Leave will not be granted policy 
 holders in an insolvent insurance 
 company to sue the receiver because 
 their policies contain a clause re- 
 quiring suit to be brought within a 
 specified period, as their rights are 
 fixed by the decree of dissolution,
 
 SUITS AGAINST THE RECEIVER. 
 
 g 84 
 
 and the limitation ceases to operate. 
 Com. V. Niagara Mut. F. Ins. Co. 6 
 Pa. Dist. GGO. 
 
 A suit for the flooding of neigh- 
 boring property by a dam and pump 
 cannot be maintained against a re- 
 ceiver who has merely used it as it 
 came into his hands after continu- 
 ous use by the company and various 
 prior receivers as necessary to the 
 operation of the property, unless the 
 suit is limited to the acts of the lat- 
 er receiver alone. Jones v. Schlap- 
 hack, 81 Fed. Rep. 274. 
 
 An agent of a corporation for a 
 specified term of years cannot main- 
 tain an action against the receiver 
 of such corporation on its being de- 
 clared insolvent and its charter for- 
 feited, for damages, because he was 
 
 not continued in his employment as 
 agent after the receiver was ap- 
 pointed. Rosenhaum v. United 
 States Credit Hystem Co. 60 N. J. L. 
 294. Citing Farrow v. Wilson, L. 
 R. 4 C. P. 744; Spalding v. Rosa, 71 
 N. Y. 40, 27 Am. Rep. 7 ; People v. 
 Glohe Mut. L. Ins. Co. 64 How. Pr. 
 240 : People v. Glohe Mut. L. Ins. Co. 
 91 N. Y. 174. 
 
 A motion to abate an action com- 
 menced against the receivers of a 
 railroad company will be sustained 
 where more than a year has elapsed 
 since tlie death of the original re- 
 ceivers and the appointment of a re- 
 ceiver de bonis non, without any at- 
 tempt having been made to revive 
 the action against him. Hutchings 
 T. Eddy, 6 Kan. App. 490, 
 
 Page 186, sec. 84. — Exceptions to the rule. 
 
 By acts of Congress of 1887-88, § 
 3, leave to sue receivers appointed 
 by Federal courts is not required, 
 and tliis applies to any court. 
 Louisville 8. R. Co. v. Tucker, 20 
 Ky. L. Rep. 1303. 
 
 An action may be maintained 
 without leave by the direction of the 
 governor, for the sole purpose of de- 
 termining the question of title to 
 certain lands in controversy between 
 the state and a designated railway 
 company in the custody of a re- 
 ceiver appointed by a Federal court. 
 Houston & T. C. R. Co. v. State 
 (Tex. Civ. App.) 39 S. W. 390. 
 
 But such a receiver cannot with- 
 out such leave be sued in a state 
 court in an action, the purpose of 
 which is to take from his control 
 property belonging to the corpora- 
 tion or held by it under a claim of 
 ownership when the receiver took 
 possession. HolUfield v. Wriqhts- 
 ville d T. R. Co. 99 Ga. 365; Meyer 
 v. Harris, 61 N. J. L. 83. 
 
 And this act applies to actions for 
 negligence of the receiver, his em- 
 ployees, and agents. Hill v. Balti- 
 more d 0. R. Co. 7 Pa. Dist. R. 473. 
 
 The power of the court to protect 
 its receiver is not limited by the 
 above act. Statcler v. California 
 'Nat. Bank, 77 Fed. Rep. 43. 
 
 The act applies to a territorial re- 
 ceiver. Wheeler v. Smith, 81 Fed. 
 Rep. 319. 
 
 The act does not apply when the 
 purpose of the suit is to establish 
 title to personal property placed and 
 then in the receiver's possession. 
 J. I. Case Plow Works v. Finks, 52 
 U. S. App. 253, 81 Fed. Rep. 529, 26 
 C. C. A. 46; Trumbull v. Makeever, 
 9 Colo. App. 350 ; Dillingham v. An- 
 thony, 73 Tex. 47, 3 L. R. A. 634; 
 Fordyee v. Withers, 1 Tex. Civ. App. 
 540. 
 
 The leave to sue generally required 
 may be waived by the entry of ap- 
 jjearance without objections. Flen- 
 tham v. Stcivard, 45 Neb. 640; Mul- 
 caheyv. Strauss, 151 111. 70; Elkhart 
 Car Works Co. v. Ellis, 113 Ind. 215; 
 Ohio d M. R. Co. V. Nickless, 71 Ind. 
 271; Hubbell v. Curran, 9 How. Pr. 
 424. 
 
 Neither an original assignee nor 
 his successor is a receiver so as to 
 require leave of court before bring- 
 ing suit against him, in view of 
 Mont. Code Civ. Proc. §§ 4510-4535, 
 regulating common-law assigninciits 
 for the benefit of creditors, and §§ 
 950-95(1, rehiting to receivers. Hub- 
 cock v. Maxwell, 21 Mont. 507. 
 
 Leave of the court appointing a 
 foreign receiver is not necessary in 
 
 65
 
 § 84 
 
 RECEIVERSHIPS— SUPPLEMENT. 
 
 garnishment proceedings against 
 him. Fhelan v. Ganchin, 5 Colo. 
 14. 
 
 Suit may be brought to foreclose 
 a mortgage, against receivers, with- 
 out leave of court. American Loan 
 d T. Co. V. Central Vermont R. Co. 
 84 Fed. Rep. 917. 
 
 Leave of court is not required in 
 order to sue the corporation over 
 which a receiver is appointed. Real 
 Estate Title ins. & T. Co. v. Mahon- 
 ing Rolling Mill Co. 6 Pa. Dist. 409. 
 
 The cases are not uniform, but the 
 weight of authority seems to be that 
 failure to obtain leave to sue is not 
 a jniisdictional fact. Mulcahey v. 
 St7-auss, 151 111. 70; St. Joseph cG 
 D. C. R. Co. V. Smith, 19 Kan. 225; 
 Chautauqua County Bank v. Risley, 
 19 N. Y. 309, 75 Am. Dec. 347 ; Kin- 
 ney y. Crocker, 18 Wis. 75; Lyman 
 v. Central Vermont R. Co. 59 Vt. 
 167; Allen v. Central R. Co. 42 
 Iowa, 683; Tobias v. Tobias, 51 
 Ohio St. 519. 
 
 It is, however, in the Federal 
 courts. Flcntham v. Steward, 45 
 Neb. 640; Wisjcall v. Sampson, 14 
 How. 52, 14 L. ed. 322; Barton v. 
 Barbour, 104 U. S. 120, 26 L. ed. 
 672. 
 
 Right of substitution. 
 
 The court may permit a receiver 
 to be substituted in a pending action. 
 
 The court may permit the plain- 
 tiff in an action commenced against 
 an elevated-railroad company to re- 
 cover the rental and fee damages to 
 their property, to proceed with the 
 same against the receiver pendente 
 lite appointed in an action to fore- 
 close a mortgage given by the com- 
 pany, and to make such receiver a 
 defendant. Re Jacobson, 23 App. 
 Div. 75. 
 
 But this is not necessary to enable 
 the plaintiff to obtain judgment. 
 Knauer v. Globe Mut. Ins. Co. 14 
 Jones & S. 370. 
 
 A receiver in supplementary pro- 
 ceedings is not entitled to be sub- 
 stituted as a defendant in lieu of 
 the judgment debtor in an action by 
 creditors. Ross v. Wigg, 100 N. Y. 
 243. 
 
 Garnishment. 
 
 A receiver is subject to garnish- 
 ee 
 
 ment, where, pfior to the service of 
 the writ upon him, the court had or- 
 dered him to turn over all the prop- 
 erty to the owner. Russell v. Mil- 
 le.tt, 20 Wash. 212. 
 
 As a general rule a receiver can- 
 not be garnished without leave of 
 court. Citizens' Commercial & Sav. 
 Bank v. Bay Circuit Judge, 110 
 Mich. 033 ; People, Tremper, v. 
 Brooks, 40 Mich. 333; McGoican v. 
 Myers, 60 Iowa, 99. 
 
 A contract completed by the re- 
 ceiver and money due him as receiv- 
 er are not subject to garnishment 
 against the debtor. Cooke v. 
 Orange, 48 Conn. 401. 
 
 A judgment creditor of a company 
 to which a receiver appointed by the 
 Federal court is alleged to be in- 
 debted for rent cannot, for want of 
 privity between the parties, and 
 without leave of the court making 
 such appointment, maintain garn- 
 ishment proceedings in a state court 
 to appropriate the amount due to 
 the payment of his judgment, since 
 the suit does not refer to any act or 
 transaction of the receiver concern- 
 ing the property committed to his 
 care in respect to which he is lia- 
 ble under act of Congress of March 
 3, 1887, as corrected by the act of 
 August 13, 1888, without such leave. 
 Glover v. Thayer, 101 Ga. 824. 
 
 But it has been held that a for- 
 eign receiver may be garnished. 
 Wilson V. Glfford, 12 Ohio C. C. 597. 
 
 A garnishment summons served on 
 one in his individual capacity does 
 not bind any property or money 
 held by him as a receiver. Fleming 
 V. Gillespie, 7 Okla. 430. 
 
 In an attachment execution issued 
 after a judgment has been obtained 
 against the defendant, a national 
 bank or its receiver may be sum- 
 moned as garnishee; and such at- 
 tachment is not prohibited by U. S. 
 Rev. Stat. § 5242, providing that no 
 judgment or execution shall issue 
 against such bank or its property 
 before final judgment. Conicay v. 
 Schall, 42 W. N. C. 328. 
 
 Where the property and business 
 of a corporation are in the hands of 
 a receiver he is the person to serve 
 in garnishment against the corpora-
 
 SUITS AGAINST THE RECEIVER. 
 
 §§ 88, 89 
 
 tion. Phelan v. Oanebin, 5 Colo. 
 14. 
 
 Indebtedness due by receivers ap- 
 pointed in a Federal court may be 
 garnished in a state court, but no 
 executory process can be issued by 
 the court against such receivers. 
 The payment can only be made on 
 application to the court appointing 
 the receiver. Invin v. McKechnie, 
 58 Minn. 145, 26 L. R. A. 218. 
 
 Injunction. 
 
 The receiver, being an officer of 
 court, may be restrained. Lehigh 
 
 Coal d Xav. Co. v. Central R. Co. 
 42 N. J. Eq. 591. 
 
 The court will enjoin a receiver 
 from exercising the fi-anchises of a 
 corporation granted by the legisla- 
 ture. Brooklyn v. Jourdan, 7 Abb. 
 N. C. 2;^. 
 
 Receivers of a railroad company 
 were restrained from diverting 
 freight traffic from another railway, 
 in view of a similar decision in an- 
 other circuit relating to the same 
 subject-matter. Grand Trunk R. 
 Co. V. Central Yerrnont R. Co. 84 
 Fed. Rep. GG. 
 
 Page 194, sec. 88. — Eeceiver's defenses. 
 
 It is no defense to an action 
 against receivers, that they had re- 
 linquished control, where they do 
 not show that their accounts have 
 
 been acted on and that a decree dis- 
 charging them has been entered. 
 Fordyce v. Clancy, 2 Tex. Civ. App. 
 24. 
 
 Page 195, sec. 89. — Character of judgment against receiver. 
 
 A personal judgment will not be 
 rendered against a receiver. Marsh 
 V. Hiissey, 4 Bosw. 614. 
 
 A judgment against a receiver of 
 a railroad company for damages for 
 breach of an agreement constituting 
 the consideration for a portion of its 
 right of way may direct him to pay 
 the amount thereof out of any funds 
 in his hands, and provide that, if it 
 is not paid and the court appointing 
 the receiver refuses to order it paid, 
 the receiver having money subject 
 to the payment thereof, an order of 
 sale shall issue thereon as in other 
 cases of the foreclosure of vendors' 
 liens. Levy v. Tatum (Tex. Civ. 
 App.) 43 S. W. 941. 
 
 The court rendering a judgment 
 against tlie receiver of a railroad 
 company for damages for the breach 
 of a contract of the company to main- 
 tain a station at a certain point in 
 consideration of land for its right 
 of way may establish the same as a 
 lien upon the right of way and road- 
 bed in the nature of a vendor's lien, 
 where the receiver has taken posses- 
 sion of the line and is operating it. 
 Ibid. 
 
 Judgment may be rendered against 
 
 a receiver until he is finally dis- 
 charged. Houston d T. C. R. Co. 
 V. Strycharski (Tex. Civ. App.) 35 
 S. W. 851, Affirmed in Part and Re- 
 versed in Part in 37 S. W. 415. 
 
 A judgment in a state court 
 against a receiver binds only such 
 property as is in his custody in the 
 state in which the judgment is ren- 
 dered. Reynolds v. Stockton, 140 
 U. S. 254, 35 L. ed. 464. 
 
 The title of the property of a rail- 
 road company, not being in the re- 
 ceiver, it is not affected by judg- 
 ment against him. Abbey v. Inter- 
 national d G. N. R. Co. 5 Tex. Civ. 
 App. 261. 
 
 Judgment against a receiver can- 
 not be carried into effect except as 
 directed by the court. Ibid. 
 
 Where a suit is defended by a re- 
 ceiver in the name of the bank over 
 which he is receiver he is barred by 
 the judgment of the court as if he 
 had defended in his own name. 
 Smith V. United States Exp. Co. 135 
 111. 279; Bennitt v. Wilminrjton 
 Star Min. Co. 119 111. 9; Chamber- 
 lain v. Preble, 11 .Mien, 370; Craig 
 v. Ward, 36 Barb. 377. 
 
 67
 
 § 109 RECEEVERSHIPS— SUPPLEMENT. 
 
 Page 199, sec. 109. — Liability of receiver, generally. 
 
 The receiver is not liable where 
 goods are sold, under the order of 
 court, at auction at a loss. Esk- 
 ridge v. Rushicorth, 3 Colo. App. 
 5G2. 
 
 On a lease where there is no adop- 
 tion or what in law is equivalent. 
 Com. V. Franklin Ins. Co. 115 Mass. 
 278. 
 
 Or for services after delay 
 amounting to laches. Daniell v. 
 East Boston Ferry Co. (Mass.) 31 
 N. E. 711. 
 
 Or for neglect, in a court of chan- 
 cery. Keene v. Gaehle, 56 Md. 343. 
 
 Or for a claim filed after distribu- 
 tion. Gaehle v. Snowden, 56 Md. 
 343. 
 
 Or where he has exercised ordi- 
 nary care. Hamm v. J. Stone & 
 Sons Live Stock Co. 13 Tex. Civ. 
 App. 414. 
 
 Or on a judgment rendered after 
 his discharge. Fordyce v. Du Bose, 
 87 Tex. 78. 
 
 Or on a lease after his refusal to 
 accept, if he does so in a reasonable 
 time. Nelson v. Kalkhoff, 60 Minn. 
 305. 
 
 Or for money deposited, if he exer- 
 cises ordinary care. Barton v. Ridge- 
 icay, 92 Va. 163. 
 
 Or for tax against stockholders. 
 People V. Wall Street Bank, 39 Hun, 
 525. 
 
 Or when he uses his best judg- 
 ment. Hynes v. McDermott, 14 
 Daly, 104. 
 
 Or on his contract as receiver. 
 Vanderlilt v. Central R. Co. 43 N. 
 J. Eq. 669. 
 
 Nor is he liable on the uncom- 
 pleted contracts of the person or cor- 
 poration over whom he is receiver. 
 Casey v. Northern P. R. Co. 15 
 Wash. 450; Central Trust Co. v. 
 East Tennessee Land Co. 79 Fed. 
 Rep. 19. 
 
 A receiver of a corporation is not 
 bound to assume its contracts, exe- 
 cute them so far as they remain un- 
 executed, and discharge all liabili- 
 ties which have accrued under them, 
 merely because such company ap- 
 pears to be solvent. Empire Dis- 
 tilling Co. V. McNulta, 46 U. S. App. 
 68 
 
 578, 77 Fed. Rep. 700, 23 C. C. A. 
 415. 
 
 Or to immediately pay a judg- 
 ment. Lesser v. Lesser, 45 N. Y. 
 Supp. 211. 
 
 Or for material and repairs or- 
 dered by a lessee. Estabrook v. 
 Stevenson, 50 Neb. 378. 
 
 Or upon the guaranty of sales of 
 coal. Daube v. Philadelphia & R. 
 Coal d 1. Co. 46 U. S. App. 591, 77 
 Fed. Rep. 713, 23 C. C. A. 420. 
 
 Or for interest on money due for 
 supplies sold, which the purchaser 
 should pay. Southern R. Co. v. 
 Carnegie Steel Co. 42 U. S. App. 
 145, 76 Fed. Rep. 492, 22 C. C. A. 
 289. 
 
 Or for injury on a branch road 
 prior to appointment. Dillon v. 
 Oregon Short Line & U. N. R. Co. 
 75 Fed. Rep. 949. 
 
 Or for a settlement of a trust 
 fund where he has acted in good 
 faith, in the absence of fraud. Neel 
 V. Carson, 18 Ky. L. Rep. 691. 
 
 Or on a contract to furnish a city 
 with light, where there would be a 
 loss. General Electric Co. v. Whit- 
 ney, 41 U. S. App. 165, 74 Fed. Rep. 
 664, 20 C. C. A. 674. 
 
 Or under special statutes fixing 
 the liabilities of railroad companies. 
 Robinson v. Huidekoper, 98 Ga. 306. 
 
 Or for personal injury growing 
 out of the negligence of a coemployee, 
 though the company applied for a 
 receiver. Brown v. Comer, 97 Ga. 
 801. 
 
 Or for the lease of land by a rail- 
 road company where an order 
 amounting to a stipulation has been 
 entered into with the lessor. Thomas 
 V. Cincinnati, N. 0. & T. P. R. Co. 
 11 Fed. Rep. 667. 
 
 Or for uncompleted contracts. 
 Vanderbilt v. Central R. Co. 43 N. J. 
 Eq. 669. 
 
 And he is not subject to penalties. 
 Bonner v. Franklin Co-Operative 
 Asso. 4 Tex. Civ. Rep. 166; United 
 States V. Harris, 78 Fed. Rep. 290; 
 United States v. Harris, 57 U. S. 
 App. 259, 85 Fed. Rep. 533, 29 C. C. 
 A. 327. 
 
 Or on a lease by reason of his
 
 LIABILITY OF RECEIVER. 
 
 109 
 
 possession of the premises. Farm- 
 ers Loan d T. Co. v. Northern P. 
 R. Co. 58 Fed. Rep. 257; Central 
 Trust Co. V. Wabash, St. L. d P. R. 
 Co. 34 Fed. Rep. 259. 
 
 Or for goods consigned when the 
 funds cannot be followed into any 
 property or money in the hands of 
 the receiver. Henika v. Heinemann^ 
 90 Wis. 478. 
 
 Or for costs. St. John v. Denison, 
 9 How. Pr. 343: But see Cook v. 
 Sharman, 8 Ir. Eq. Rep. 515. 
 
 Or for conversion of property 
 taken and sold under orders of court. 
 Tapscott V. Lyon, 103 Cal. 297. 
 
 Nor is he personally liable, when 
 the sale is by joint receivers to a per- 
 son with whom one of the receivers 
 had an agreement to become a part- 
 ner and afterwards did become a 
 partner, in the absence of bad faith, 
 for the difference between the actual 
 value and the price for which it was 
 sold. Wagner v. Sioifts Iron d S. 
 Works, 16 Ky. L. Rep. 273. 
 
 Or to pay the rent under a lease 
 where it does not appear that there 
 are sufficient funds to pay. Empire 
 DistilUnq Co. v. McNulta, 46 U. S, 
 App. 578, 77 Fed. Rep. 700, 23 C. C. 
 A. 415. 
 
 Or for rent for full term of prem- 
 ises taken possession of under orders 
 of court. De Wolf v. Royal Trust 
 Co. 72 111. App. 411, Reversed in 173 
 111. 435. 
 
 Nor is he bound to adopt the con- 
 tracts of a car trust by reason of 
 possession taken. Central Car 
 Trust Co. V. Harris, 55 U. S. App. 
 452, 84 Fed. Rep. 535, 28 C. C. A. 
 488. 
 
 A receiver is not liable for con- 
 tempt in violating the orders of an- 
 other court. Atwood v. State, 59 
 Kan. 728. 
 
 Or for loss of stock on the range 
 and buildings uninsured. Hamm v. 
 J. Stone d Sons Live Stock Co. 13 
 Tex. Civ. App. 414. 
 
 Receivers of a railroad company 
 are not liable for taxes accruing 
 during a time in which such compa- 
 ny was in possession of and enjoyed 
 the revenues of another road upon 
 which such taxes constituted a prior 
 lien, where their connection with 
 such other road has been severed by 
 
 the appointment of a separate re- 
 ceiver in an entirely distinct suit, 
 unless they have assets of such other 
 road, or have diverted its revenues 
 to the improvement or betterment of 
 the road held by them, or to the pay- 
 ment of the bonds secured thereon, 
 as their liability for such taxes can 
 only be as an obligation carrying a 
 first lien upon the property upon 
 which it is chargeable. Comer v. 
 Polk County, 52 U. S. App. 399, 
 
 81 Fed. Rep. 921, 27 C. C. A. 1. 
 Nor are receivers criminally lia- 
 ble under the Interstate Conunerce 
 Act. United States v. De Coiirsey, 
 
 82 Fed. Rep. 302. 
 
 A chattel mortgagee who permits 
 the mortgaged property to go into 
 the venture of a continuance of the 
 business by the receiver of the mort- 
 gagor must bear the loss, where the 
 property is consumed by the liabili- 
 ties of such venture. Sturivold v. 
 George Vehr Parlor Frame Co. 5 
 Ohio N. P. 37. 
 
 A receiver who unlawfully appro- 
 priates money which comes into his 
 hands as receiver, or fails to account 
 for and pay over the same on de- 
 mand, is not within Kan. Comp. 
 Laws 1889, H 2220, providing that if 
 any "agent" shall neglect or refuse 
 to deliver to his "employer or em- 
 I^loyers." on demand, any money 
 Avhich has come into his possession 
 by virtue of such emplojTnent, he 
 shall on conviction be punished. 
 State V. Hubbard, 58 Kan. 797, 39 L. 
 R. A. 800. 
 
 A receiver is not liable for a tort 
 committed by the company before 
 his appointment. Northern P. R. 
 Co. V. Heflin, 48 U. S. App. 502, 83 
 Fed. Rep. 93, 27 C. C. A. 460. 
 
 The court does not so decide, but 
 thinks the receiver should not be lia- 
 ble for money in failing bank, any 
 more than if robbed of it. Lady 
 Shaftesbury's Case, Prec. in Ch. 558, 
 2 Eq. Cas. Abr. 691. 
 
 A receiver was held not liable to 
 judgment creditor for losses on his 
 judgment caused by expenses, in Sec- 
 ond Ward Sav. Bank v. Henes, 100 
 Wis. 480. 
 
 The expenses of a receivership 
 growing out of a contest over a fund 
 may be avoided by depositing the 
 
 69
 
 § 110 
 
 RECEIVERSHIPS— SUPPLEMENT. 
 
 fund in court. Continental Nat. 
 Bank v. Myerle, 24 App. Div. 154. 
 
 Expenses of an expert aceountant 
 will be ordered i)aid by the receiver, 
 where a large sum was realized to 
 the receivership fund thereby. /S'ands 
 V. E. 8. Greeley & Co. 83 Fed Rep. 
 772. 
 
 The income of funds in the hands 
 of a receiver is not liable for fees of 
 a special commissioner for selling 
 property under a foreclosure, in a 
 contest between mortgagees and gen- 
 eral creditors. Randolph v. Farm- 
 er's Loan d T. Co. 91 Tex. 605, Re- 
 versing 41 S. W. 113. 
 
 The term "judicial costs," to which 
 a claim for taxes upon property in 
 the custody of a receiver is alone 
 inferior, does not include the cost of 
 keeping and taking care of unpro- 
 ductive property for over three 
 years by the receiver, — especially 
 where it does not appear that there 
 is not sufficient property to pay both. 
 Ledoux V. La Bee, 83 Fed. Rep. 761. 
 
 Where the receiver acts under the 
 authority and orders of court of 
 competent jurisdiction he is not 
 personally liable. Remington Paper 
 Co. v. Watson, 49 La. Ann. 1296. 
 
 The order of court does not al- 
 ways relieve the receiver as such 
 
 from liability. Levy v. Tatum 
 (Tex. Civ. App.) 43 S. W. 941. 
 
 The liability of the receiver of an 
 insolvent national bank cannot be 
 adjudicated in an action brought to 
 revive a dormant judgment against 
 the bank, to which he is made a par- 
 ty. City IV at. Bank v. Svnnk (Tex. 
 Civ. App.) 49 S. W. 130. 
 
 It is error to submit the question 
 as to a receiver's liability for rents, 
 upon a jury trial of the receiver's ex- 
 ceptions to a master's report upon 
 an accounting by him, where the 
 master found that he was not liable 
 for rents, and neither party excepted 
 to the report in that respect. Ilamm 
 V. J. Stone (6 Sons Live Stock Co. 13 
 Tex. Civ. App. 414. 
 
 For acts within the line of his 
 duty the receiver is only liable offi- 
 cially, and the judgment is against 
 him oflicially and enforceable out of 
 the receivership property. Schmidt 
 V. Gayner, 59 Minn. 303. 
 
 A receiver of a corporation is not 
 relieved from liability, either person- 
 ally or upon his official bond, because 
 of the disqualification for interest of 
 the judge who appointed him. Unit- 
 ed States Nat. Bank v. National 
 Bank, 6 Okla. 163. 
 
 Page 205, sec. 110. — Must obey orders of court. 
 
 A receiver will be compelled to 
 carry out a judgment directing the 
 reconveyance of land to a specified 
 party provided for therein, notwith- 
 stanaing the commencement of an 
 action by other parties in respect to 
 such property, in the absence of any 
 proceedings to enjoin the carrying 
 out of the same. Pierce v. Lees, 17 
 App. Div. 346. 
 
 The receiA^er of a leasehold must 
 pay from subrents the head rent, 
 and may do so without order of 
 court. Balfe v. Blake, 1 Ir. Ch. Rep. 
 365. 
 
 A railroad company which be- 
 comes the agent and representative 
 of a receiver to operate a line of rail- 
 road, with knowledge of the interests 
 of a car trust in the rolling stock 
 upon such line, agreeing to pay "all 
 70 
 
 the expenses of said operations," 
 and a receiver subsequently ap- 
 pointed of such company, are liable 
 for a reasonable compensation for 
 the use of the cars, although not lia- 
 ble for unpaid instalments for the 
 purchase price of the cars. Ce7i- 
 tral Car Trust Co. v. Harris, 55 U. 
 S. App. 452, 84 Fed. Rep. 535, 28 C. 
 C. A. 488. 
 
 The receiver, being an officer of 
 court, may be required to hand over 
 property in his possession. Smith 
 V. Dayton, 94 Iowa, 102. 
 
 Lack of funds in the hands of a re- 
 ceiver of a railroad company was 
 held to be no defense to a motion to 
 compel him to perform a judgment 
 requiring the railroad company to 
 construct a crossing over plaintiff's 
 premises, where a copy of the judg-
 
 LIABILITY OF RECEIVER. 
 
 § HI 
 
 merit had been served upon him. 
 An order directing a compliance or 
 surrender of tlie premises to plain- 
 tiff was proper. Peckham v. Dutch- 
 ess County R. Co. 145 N. Y. 385. 
 
 A receiver in supplementary pro- 
 ceedings is under the control of the 
 court rendering the judgment, 
 though he was appointed by the coun- 
 ty judge. Pool V. Safford, 14 Hun, 
 369. 
 
 A corporation cannot maintain an 
 action at law upon a contract made 
 with it guaranteeing payment for 
 coal purchased from it, for the 
 amount of coal sold by receivers of 
 its property, if sales made by the 
 receivers are within the guaranty, 
 without an assignment of the con- 
 
 tracts of sale by the receivers, or dev- 
 olution of their title by an order 
 of the court discharging them and re- 
 storing the property to the company. 
 Daube v. Philadelphia d R. Coal & I. 
 Co. 40 U. S. App. 591, 77 Fed. Rep. 
 713, 23 C. C. A. 420. 
 
 In the case of a receivership of a 
 national bank the filing of a petition 
 by him in a Federal court does not 
 operate to make him an officer of 
 that court, or to place the assets of 
 the bank within the control of the 
 court in the sense in which control 
 is acquired where a receiver is ap- 
 pointed by the court. Ex parte 
 Chetwood, IG5 U. S. 443, 41 L. ed. 
 782. 
 
 Page 206, sec. 111. — Liability for use of property, etc. 
 
 A receiver is liable for a conver- 
 sion of property in the possession of 
 the firm over whose property he was 
 appointed. Smith v. Hartog, 23 
 Misc. 353. 
 
 Where a receiver operating an en- 
 tire system of railroad converts the 
 property of a third person, and uses 
 it to improve a division of the rail- 
 road, the fact that such division is 
 subsequently placed in the hands 
 of another receiver will not relieve 
 the receiver who made the conver- 
 sion, or the road responsible for his 
 acts, from liability for the conver- 
 sion. Central of Ga. R. Co. v. Hitch- 
 cock, 91 Fed. Rep. 209, 33 C. C. A. 
 453. 
 
 The receiver is liable for a trust 
 fund in the hands of the party for 
 whom he is receiver. Reynolds v. 
 JEtna L. Ins. Co. 28 App. Div. 591. 
 
 When a receiver makes an unau- 
 thorized disposition of the trust fund 
 confided to him, to a person cogniz- 
 ant of the breach of it, who invests 
 the money, such person becomes a 
 trustee in invitum of such fund. 
 (roldthicaite v. Ellison, 99 Ala. 497. 
 
 Collections paid to the receiver of 
 a bank may be a trust fund. First 
 Nat. Bank v. Armstrong, 42 Fed. 
 Rep. 193. 
 
 He is liable for waste. Turner v. 
 Peoria d H. R. Co. 95 111. 134, 35 
 Am. Rep. 144. 
 
 A receiver cannot be compelled to 
 pay over money to an attaching 
 creditor under N. Y''. Laws 1883, 
 chap. 378, § 8, in a district other 
 than that in Avhich he was appointed 
 and without notice to the attorney 
 general. GilUg v. George C. Tread- 
 well Co. 151 N. Y. 552, Reversing 
 9 App. Div. 624. 
 
 Money paid to a receiver can only 
 be refunded by order of court. Gee- 
 ty v. Campbell, 2 Robt. 664. 
 
 A receiver of a national bank will 
 be directed to pay dividends accumu- 
 lated upon stock attached, so far as 
 possible, in suits in a state court, 
 upon a joint acquittance and indem- 
 nity bond tendered by a person hav- 
 ing color of title and a defendant in 
 the attachment who joins in the peti- 
 tion for payment to such person. 
 Soivles V. National Union Bank, 82 
 Fed. Rep. 696. 
 
 A receiver is liable for money 
 paid as a dividend to a person not en- 
 titled to it when ordinaiy care would 
 have prevented it. Todd v. Meding, 
 56 N. J. Eq. 83. 
 
 Money {)aid by a station agent for 
 overcharges on freight should be re- 
 turned to him from the money in 
 the hands of the receiver of the rail- 
 road. Grand Trunk R. Co. v. Cen- 
 tral Vermont R. Co. 88 Fetl. Rep. 
 636. 
 
 And so when he pays money witli- 
 
 71
 
 § 113 
 
 RECEIVERSHIPS— SUPPLEMENT. 
 
 out order of court to a person not 
 entitled to priority. Re Osceola 
 Milling Co. Hi Mo. App. 23. 
 
 A receiver of an infant's estate, 
 required to invest it and report an- 
 nually, was held liable for the loss 
 of money deposited in another state, 
 as receiver, on which interest was 
 paid, where no report to the court 
 
 was made, and the bank failed. 
 State, Collins, v. Gooch, 97 N. C. 186. 
 
 Money wrongfully paid to a bank 
 over which the receiver is appointed 
 must be returned by him. People v. 
 Madison Square Bank, 75 Hun, 114. 
 
 And so, where it is wrongfully 
 paid to the receiver. Barker v. 
 Clark, 12 Abb. Pr. X. S. 100. 
 
 Page 208, sec. 113. — Liability for personal injury. 
 
 The receiver of a short line of road 
 is not liable for injuries by a receiver 
 of the whole line, including the short 
 line, when the operation is for the 
 benefit of creditors of the whole 
 system. Jones v. Schlapback, 81 
 Fed. Rep. 274. 
 
 An action for damages for bodily 
 injuries sustained through the negli- 
 gence of a railroad company within 
 the year preceding the appointment 
 of a receiver of the company, and an 
 order directing him to pay all lia- 
 bilities for such injuries, and giving 
 leave generally to all persons to 
 bring suit against the receiver in 
 other courts of competent jurisdic- 
 tion without previous permission of 
 the court appointing him, — may be 
 maintained against a receiver in a 
 state court, without obtaining spe- 
 cial leave therefor. Walker v. 
 Green (Kan. App.) 55 Pac. 281. 
 
 Nor are the net earnings of the 
 receiver liable for damages of the 
 company. DextervUle Mfg. & B. Co. 
 V. Case, 4 Fed. Rep. 873. 
 
 A receiver of a railroad is a 
 "fellow servant" under IMinn. Gen. 
 Stat. 1894, § 2701, and is liable for 
 an injury to an employee. Mikkel- 
 son V. Truesdale, 03 Minn. 137. 
 
 An action against a receiver of a 
 railroad corporation is within the 
 provisions of Ohio act April 2, 1890, 
 making railroad companies liable in 
 certain cases for the negligence of 
 fellow servants or employees who 
 have power or authority to direct or 
 control the one injured. Pevree v. 
 Van Dusen, 47 U. S. App. 339, 78 
 Fed. Rep. 693, 24 C. C. A. 280. 
 
 The words "any railroad" in Tex. 
 Rev. Stat. 1859, art. 3017, giving a 
 right of action when the death of any 
 person is caused by the negligence or 
 72 
 
 carelessness of a receiver in charge 
 or control of any railroad, his serv- 
 ants, or agents, — include street rail- 
 ways. Bammel v. Kirby (Tex. Civ. 
 App.) 47 S. W. 392. 
 
 The exception made to the com- 
 mon-law rule precluding recovery 
 from a master for injuries sustained 
 through the negligence of a coem- 
 ployee, by Ga. Civ. Code, § 2323, in 
 case of injuries, did not, prior to the 
 2)assage of Ga. act December 16, 
 1895, extend to an employee of a re- 
 ceiver of a railroad company; and 
 a recovery cannot be had for an in- 
 jury sustained by such employee be- 
 fore the passage of that act. Barry 
 V. MeGhee, 100 Ga. 759. 
 
 An action for personal injuries be- 
 fore the appointment of a receiver 
 cannot be maintained against him. 
 It must be brought against the cor- 
 poration. Finance Co. v. Charles- 
 ton, C. & C. R. Co. 46 Fed. Rep. 508. 
 
 Personal injuries inflicted through 
 the negligence of a receiver are pay- 
 able from the current receipts. Tex- 
 as P. R. Co. V. Johnson, 76 Tex. 421 ; 
 Ryan v. Hayes, 62 Tex. 42: Barton 
 V. Barbour, 104 U. S. 130. 26 L. ed. 
 675; Kain v. Smith, 80 N. Y. 470; 
 Hale V. Frost, 99 U. S. 389, 25 L. ed. 
 419. 
 
 In a suit against receivers for 
 personal injury, where no personal 
 judgment is asked, it is not impor- 
 tant whether the defect causing the 
 injury existed when they were ap- 
 pointed, or not, or whether they had 
 sufficient time to repair it. Bonner 
 V. Mayfield, 82 Tex. 234. 
 
 Joint liability of corporation and re- 
 ceiver. 
 
 The rule in regard to the joint 
 liability of the receiver and the cor-
 
 LIABILITY OF RECEIVER. 
 
 SS 114, 118 
 
 poration over which he is appointed 
 does not apply to a corporation 
 where the portion of the road on 
 which the injury happened has been 
 taken out of the hands of the cor- 
 poration and put in the hands of the 
 receiver. Lock v. Franklin d E. 
 Turnpk. Co. 100 Tenn. 163. 
 
 One having a just cause of action 
 for injuries caused by the manage- 
 ment of a locomotive engine may 
 bring his action against both the 
 railroad company and receivers ap- 
 
 pointed to take charge of its prop- 
 erty, in order to establish his de- 
 mand in one action against which- 
 ever is legally liable. Union P. R. 
 Co. V. Smith, .59 Kan. 80. 
 
 When a railroad is in the hands of 
 and being operated by a receiver, 
 neither the company nor the receiver 
 is liable for an injury to one em- 
 ployee by another employee. Young- 
 blood V. Comer, 97 Ga. 152 ; Hender- 
 son V. Walker, 55 Ga. 481 : Thurman 
 \. Cherokee R. Co. 50 Ga. 376. 
 
 Page 211, sec. 114. — Liability for negligence. 
 
 A receiver is liable for negligence 
 in the operation of a railroad to the 
 same extent as the corporation. Con- 
 tinental Trust Co. V. Toledo, 8t. L. 
 d K. C. R. Co. 89 Fed. Rep. 637; 
 Rouse V. Harry, 55 Kan. 589. 
 
 The provision of Mass. Pub. Stat. 
 chap. 112, § 214, that every railroad 
 corporation shall be responsible in 
 damages to one whose property is in- 
 jured by fire communicated by its 
 locomotive engines, is applicable to 
 receivers and authorizes an action 
 against them. Wall v. Piatt, 169 
 Mass. 398. 
 
 And a Federal receiver is required 
 to operate and manage according to 
 the requirement of the valid laws of 
 the state. Peirce v. Van Dusen, 47 
 U. S. App. 339, 78 Fed. Rep. 693, 24 
 C. C. A. 280. 
 
 Although the liability of a receiver 
 of a railroad is official, and not per- 
 sonal, and a judgment against him 
 is payable out of the trust property 
 and funds brought within the cus- 
 tody of the court, a mere allegation 
 by, such receiver that the property 
 and funds have passed out of his pos- 
 session and beyond his control will 
 not constitute a good defense in an 
 action against him for personal in- 
 juries alleged to have been negligent- 
 ly inflicted, where it does not appear 
 that the receivership has terminated. 
 Erb V. Popritz, 59 Kan. 264. 
 
 Generally a receiver is responsible 
 for neglect only, but if he by his ap- 
 pointment assumes the duties of a 
 guardian his liability will be meas- 
 ured by that of a guardian. State, 
 Collins, V. Gooch, 97 N. C. 186. 
 
 Page 217, sec. 118. — Liability for supplies, labor, etc. 
 
 It is the duty of a receiver to pay 
 wages from the first money in his 
 hands, under N. Y. Laws of 1885, 
 chap. 370. Brown v. A. B. C. Fence 
 Co. 52 Hun, 151. 
 
 The receiver by his contracts may 
 make himself personally liable. 
 Walsh V. Raymond, 58 Conn. 251. 
 
 A receiver who, without an order 
 of court employs a person to manage 
 a hotel owned by the company over 
 whose property he is receiver, and 
 afterwards leases it to the manager 
 without notice to a person furnish- 
 
 ing the hotel with supplies, becomes 
 personally liable. Saylcs v. Jour- 
 don, 19 N. Y. S. R. 349. 
 
 A receiver of a railroad company 
 is liable, not only for coal received 
 after his appointment from unloaded 
 cars, but for coal which was in the 
 bins at the date of his appointment, 
 and which he took possession of 
 and used in the operation of the road. 
 Virginia d A. Coal Co. v. Central R. 
 d Bkg. Co. 30 U. S. App. 203 ; Clark 
 V. Central R. d Bkg. Co. 00 Fed. Rep. 
 803, 14 C. C. A. 112. 
 
 78
 
 §§ 119-124 RECEIVERSHIPS— SUPPLEMENT. 
 
 Page 218, sec. 119. — Liability for money deposited in bank. 
 
 A receiver is liable for money de- Ficener v. Bott, 20 Ky. L. Rep. 632. 
 posited ill a bank without authority. 
 
 Page 219, sec. 120. — For costs and expenses. 
 
 A receiver may be allowed inter- 
 est on moneys advanced. lie Bush- 
 ell, L. R. 23 Ch. Div. 75. 
 
 A receiver is not personally liable 
 for expenses in unreasonably de- 
 fending' an action, when no notice 
 was {jiven that an application for 
 such jjurpose would bo made. First 
 Nat. Bunk v. Washburn, 20 App. 
 Div. 518. 
 
 His liability for costs is the same 
 
 as his principal's. Columbia Ins. Co. 
 V. Stevens, 37 N. Y. 530. 
 
 A receiver is chargeable with costs 
 personally for improperly and in bad 
 faith contesting a claim. Bourdon 
 V. Martin, 74 Hun, 246. 
 
 Costs may be awarded against a 
 receiver personally where he acts 
 carelessly and without permission of 
 the court. Re Castle, 2 N. Y. S. R. 
 362. 
 
 Page 220, sec. 121. — For rents. 
 
 The receiver of a national bank ap- 
 pointed by the comptroller of the 
 currency is not responsible to the 
 owner of real estate for rents re- 
 ceived by him and paid into the 
 United States Treasury under U. S. 
 Rev. Stat. § 5234. HUz v. Jenks, 
 123 U. S. 297, 31 L. ed. 156. 
 
 Defendant can collect rents of a 
 receiver on giving security to him. 
 Garr v. Hill, 5 N. J. Eq. 639. 
 
 A receiver is chargeable with rents 
 for such time as he occupies the 
 premises demised. Frank v. New 
 York, L. E. d W. R. Co. 122 N. Y. 
 197. 
 
 A landlord is entitled to an order 
 on a receiver for rent up to the time 
 of the declaration of insolvency, not 
 exceeding one year. Wood v. Mc- 
 Cardell, F. & W. Carriage Co. 49 N. 
 J. Eq. 433. 
 
 Page 224, sec. 124. — Liability on leases. 
 
 Continued possession of the prem- 
 ises by the receiver, under the order 
 of court, is sufficient notice to the 
 landlord of the receiver's intention 
 to carry out the lease. Link Belt 
 Machinery Co. v. Hughes, 174 111. 
 155. Affirming 62 111. App. 318. 
 
 Retaining possession of the prem- 
 ises for more than three months 
 makes the receiver liable for the re- 
 mainder of the term. De Wolf v. 
 Royal Trust Co. 173 ill. 435, Revers- 
 ing 72 111. App. 411. 
 
 Continued occupation of the prem- 
 ises without any act of disaffirmance, 
 or notice to the lessor that he would 
 not be bound by the lease, binds the 
 receiver to pay the stipulated rent. 
 Link Belt Machinery Co. v. Hughes, 
 174 111. 155, Afl'g 62 111. App. 318. 
 
 Express words of adoption are 
 not required. Central Trust Co. v. 
 Continental Trust Co. 58 U. S. App. 
 604, 86 Fed. 517, 30 C. C. A. 23-5. 
 
 Adoption may be implied from the 
 74 
 
 receiver's unequivocal acts inconsist- 
 ent with the landlord's right of re- 
 entry, and indicating an intention to 
 adopt the lease and conform to its 
 condition. Spencer v. World's Col- 
 umbian Exposition, 163 111. 117. 
 
 Taking possession with full au- 
 thority, and using leased property 
 with knowledge of the lease and its 
 burdens, binds the receiver as as- 
 signee of the lease. Easton v. Hous- 
 ton <£• T. C. R. Co. 38 Fed. Rep. 784. 
 
 Receivers are liable for the rentals 
 of branch roads operated as an en- 
 tire system. Central R. & Bkg. Co. 
 v. Farmers' Loan d T. Co. 79 Fed. 
 Rep. 158. 
 
 The payment of rent by a receiver 
 on premises formerly occupied by the 
 company for which he is receiver, up 
 to and including a fixed date, fixes 
 his liability by acceptance for rents 
 ^subsequent. Moore v. Higgins, 2 
 Silv. Sup. Ct. 298. 
 
 Receivers authorized by the court
 
 LIABILITY OF RECEIVER. 
 
 § 125 
 
 to continue a contract for rental and 
 repairs are not released from liabil- 
 ity wiihout notice to the lessor by 
 ceasing to use the cars operated un- 
 der the lease. Mercantile Trust d 
 Deposit Co. V. Southern Iron Car 
 Line Co. .113 Ala. 543. 
 
 If the receiver becomes liable for 
 the rent according to the terms of 
 the lease, the rerenting of the prem- 
 ises after he vacates does not relieve 
 him from liability for the dimin- 
 ished amount of rent, on the ground 
 that it is contingent. People v. 
 Haint yichols Bank, 151 N. Y. 592. 
 
 A receiver who occupies the leased 
 premises during the remaining por- 
 tion of the term must pay the stip- 
 ulated rent. Spencer v. World's 
 Columbian Exposition, 1G3 111. 117; 
 Morrison v. Blackall, 68 111. App. 
 504. 
 
 A reference to ascertain the rea- 
 sonable rental is not necessary where 
 the receiver has adopted the lease. 
 
 Spencer v. World's Columbian Ex- 
 position, 163 111. 117. 
 
 A receiver has a reasonable time 
 to determine Avhether he will adopt 
 a lease; but where the lessor de- 
 mands immediate surrender or adop- 
 tion and several months elapse be- 
 fore determination, the receiver must 
 pay full rental while occupying. 
 Farmers' Loan <& T. Co. v. Northern 
 P. R. Co. 58 Fed. Rep. 257. 
 
 A receiver of a railroad is liable 
 for the reasonable rental value of 
 the use and enjoyment of terminal 
 facilities supplied by another com- 
 pany and indispensable to the suc- 
 cessful operation and management of 
 the road, enhancing the income and 
 value of the property in the receiv- 
 er's hands, although not necessarily 
 at the rate fixed by the contract by 
 the railroad company. Savannah, F. 
 cC- IF. It. Co. V. Jacksonville, T. & K. 
 W. R. Co. 52 U. S. App. 51, 79 Fed, 
 Rep. 35, 24 C. C. A. 437. 
 
 Page 224, sec. 125. — Liability on contracts other than leases. 
 
 The receiver is not permitted to 
 repudiate the existing contracts of 
 the corporation over which he is ap- 
 pointed. Worthington v. Oak & 
 Highland Park Improv. Co. 100 
 Iowa. 39. 
 
 And he is liable for damages grow- 
 ing out of his refusal to complete 
 contracts. Moore v. Potter, 155 N. 
 Y. 481, Reversing 87 Hun, 334. 
 
 If he adopts the contract and re- 
 ceives the benefit, he must pay the 
 contract price. Spencer v. World's 
 Columbian Exposition, 163 111. 117. 
 
 But he has a right, subject to the 
 order of the court, to determine 
 whether he will perform an execu- 
 tory contract, and has a reasonable 
 time in which to determine. Ibid. 
 
 He must perform his own con- 
 tracts. Wahash, St. L. d P. R. Co. 
 v. Central Trust Co. 22 Fed Rep. 
 269. 
 
 If the receiver rescinds a sale, he 
 must pay the purchaser reasonable 
 counsel fees. Drake v. Ooodridqe, 6 
 Blatchf. 531. 
 
 Liability in other cases. 
 
 A receiver of a corporation, in the 
 absence of any sulticient explanation 
 of the circumstances, is properly sur- 
 charged with the difTcrence between 
 the appraised value of goods and the 
 amount for which they were sold, 
 where he had a prospective interest 
 in the firm which purchased the 
 same. French v. Pittsburgh Vehicle 
 & Harness Co. 184 Pa. 161. 
 
 If a receiver is derelict in paying 
 
 out money when he ought, he is li- 
 able for interest. Johnson v. Moon, 
 82 Ga. 247. 
 
 And so where he refuses to pay a 
 lawful claim. People v. E. Reming- 
 ton <£• Sons, 59 Hun, 307. 
 
 A receiver is liable for his tortious 
 acts. Gutsch v. Mcllhargey, 69 
 Mich. 377. 
 
 A receiver may be liable as such 
 for acts of his attorney and agents,
 
 § 125 
 
 RECEIVERSHIPS— SUPPLEMENT. 
 
 payable from fund in court, but not 
 personally. Morris v. Hiler, 57 How. 
 Pr. 322. 
 
 Where a A-alid statute or ordi- 
 nance requires a corporation to do 
 a particular thing, its receiver is al- 
 so liable, as in the case of building 
 fences along a railroad. Ohio tG M. 
 R. Co. V. Russell, 115 111. 52. 
 
 Or the construction of a railroad 
 crossing. Fort Dodge v. Minneapo- 
 lis c6 St. L. R. Co. 87 Iowa, 380. 
 
 The receiver in a mortgage fore- 
 closure is liable only for the net pro- 
 ceeds of crops harvested by him. 
 Locke V. Klunker, 123 Cal. 231. 
 
 A public nuisance erected by a re- 
 ceiver may be removed, such as a 
 fence in the highway, but not by in- 
 junction. Fcltun V. Ackerman, 22 
 U. S. App. 154, 01 Fed. Rep. 225, 9 
 C. C. A. 457. 
 
 He is liable for taxes assessed 
 against an insolvent bank for which 
 he is receiver. Hamacker v. Com- 
 mercial Bank, 95 Wis. 359. 
 
 It is the duty of the judge by 
 whom the receiver of an insolvent 
 corporation was appointed, upon a 
 proper application of the tax col- 
 lector, to order the receiver to sell 
 enough of the property to raise the 
 money with which to pay overdue 
 taxes, where the corporation is al- 
 ready two years in default in the 
 payment of the state and county 
 taxes, and the taxes for a third year 
 will soon become due. Dysart v. 
 Brown, 100 Ga. 1. 
 
 That all the income derived by a 
 receiver from carrying on the busi- 
 ness of a corporation is requisite to 
 the operation of such business is no 
 legal excuse for his failure to pay 
 state and county taxes for which the 
 corporation is two years in default. 
 Ibid. 
 
 A receiver of an assessment insur- 
 ance company, who petitions the 
 court for leave to pay death claim- 
 ants, and carefully avoids giving to 
 
 persistent members notice of his ap- 
 plication, or an opportunity to be 
 heard thereon, will not be protected 
 as to jjayiiiciit to such death claim- 
 ants, made in pursuance of an order 
 granted upon such application. Peo- 
 ple V. Fainilij Fund ISoc. 31 App. Div. 
 IGG. 
 
 The receiver of a mutual insur- 
 ance company cannot allow losses 
 occurring after the entry of the de- 
 cree of forfeiture of the charter. In- 
 surance Comrs. v. Commercial Mut. 
 Ins. Co. 20 R. I. 7. 
 
 A receiver of a mutual insurance 
 company may recognize claims tiled 
 with the company in the same man- 
 ner as is required by the decree, 
 though they have never been pre- 
 sented to him according to the de- 
 cree, if he is satisfied that they are 
 just. Ihid. 
 
 The receivers of the property of 
 the Union Pacific Railroad Conl- 
 pany, who are also appointed receiv- 
 ers of the property of the constitu- 
 ent corpoiation forming with it the 
 Union Pacific system, took the prop- 
 erty of each corporation charged 
 with a trust for tne benefit of its 
 own creditors and stocknolders, and 
 could not divert the income or prop- 
 erty of the Union Pacific Railroad 
 Company to pay a deficit incurred 
 by the operation of a constituent 
 railroad. Ames v. Union P. R. Co. 
 74 Fed. Rep. 335. 
 
 In determining whether there has 
 been a diversion of current income 
 by a railroad company to the pay- 
 ment of interest on a second mort- 
 gage debt, or in present improvement 
 on the mortgaged property, income 
 applied to payment on senior mort- 
 gages is properly excluded from con- 
 sideration. Belknap v. Central 
 Trust Co. 47 U. S. App. 663, suh 
 nom. Central Trust Co. v. East Ten- 
 nessee, V. d G. R. Co. 80 Fed. Rep. 
 624, 26 C. C. A. 30. 
 
 Liability of parties other than receiver. 
 
 Where a receiver is discharged 
 and the property turned back by a 
 consent decree subject to all claims 
 and liabilities, the company is liable 
 76 
 
 for all injuries growing out of neg- 
 ligence. Missouri, K. & T. R. Co. 
 V. Chilton, 7 Tex. Civ. App. 183; 
 Texas & P. R. Co. v. Bloom, 23 U. S.
 
 LIABILITY OF RECEIVER. 
 
 §125 
 
 App. 143, 60 Fed. Rep. 979, 9 C. C. 
 A. 300. 
 
 Where a railroad is run on the 
 joint account of a receiver of part 
 and lessees of part, it is liable for 
 injury to a passenger, committed by 
 a servant, the ticket being in the 
 name of the company. Washington, 
 A. & G. R. Co. V. Broum, 17 Wail. 
 445, 21 L. ed. 675. 
 
 A railroad company is not liable 
 for the negligence of a receiver 
 operating a railroad under direction 
 of the court. Hoice v. St. Clair, 8 
 Tex. Civ. App. 101. 
 
 A corporation to which its prop- 
 erty and control of its affairs have 
 been returned by a receiver is not 
 liable for personal injuries caused by 
 negligence in the operation of its 
 electric plant during the receiver- 
 ship. Bartlett v. Cicero Light, H. 
 <e P. Co. 69 111. App. 576. 
 
 That a railroad was in the hands 
 of a receiver is a defense to an action 
 against it for personal injury. Trin- 
 ity & S. B. Co. V. Brown, 91 Tex. 
 673. 
 
 A railway company is not liable 
 for an injury caused by the man- 
 agement of a locomotive engine, 
 where receivers are in entire and ex- 
 clusive control of the property. 
 Union P. R. Co. v. Smith, 59 Kan. 
 80. 
 
 If the appointment is procured by 
 collusion between the company and 
 its creditors, or if the road is oper- 
 ated by the receiver appointed by a 
 court without jurisdiction, the cor- 
 poration will be liable for the acts 
 of the receiver. Texas d P. R. Co. 
 V. Johnson, 76 Tex. 421. 
 
 A railroad company is not liable 
 to penalties for neglect to feed ani- 
 mals being shipped when in the 
 hands of receivers. Texas & P. R. 
 Co. V. Barnhart, 5 Tex. Civ. App. 
 601. 
 
 The Texas act of March 19, 1889, 
 providing that when a receiver is 
 discharged and the property restored 
 the owner shall be responsible for 
 all liabilities, is not unconstitution- 
 al. Missouri, K. & T. R. Co. v. Chil- 
 ton, 7 Tex. Civ. App. 183. 
 
 A railroad company is liable for 
 the loss of goods by a receiver when 
 he has turned it back with better- 
 
 ments. Houston c£- T. C. R. Co. v. 
 McFadden, 91 Tex. 194, Affirmed in 
 Part and Reversed in Part in 42 S. 
 W. 593. 
 
 An action for injury or death 
 caused by negligence of a receiver of 
 a corporation may be brought 
 against the corporation after the 
 property has been restored to it on 
 the receiver's discharge, and the 
 property or fund charged with the 
 liability. Bartlett v. Cicero Light, 
 H. d P. Co. 177 111. 68, 42 L. R. A. 
 715. 
 
 The rule in Texas is that where 
 there is a sale of the property a rail- 
 way company cannot be held liable 
 for damages accruing while its jjrop- 
 erty is in the hands of a receiver, 
 unless it is alleged and proved that 
 earnings of the road were invested 
 by the receiver in improvements 
 thereon. Ray v. Dillingham (Tex. 
 Civ. App.) 41 S. W. 188. 
 
 The liability of a railroad com- 
 pany for personal injuries is lim- 
 ited by the amount expended in bet- 
 terments. Texas P. R. Co. v. John- 
 son, 76 Tex. 421. 
 
 Liability of a railway company for 
 a personal injury depends upon the 
 return of the road by the receiver 
 improved by his expenditures for 
 betterments. Texas d P. R. Co. v. 
 Brick, 83 Tex. 526 ; Texas P. R. Co. 
 v. Overheiser, 76 Tex. 437; Texas P. 
 R. Co. V. Johnson, 76 Tex. 421. 
 
 A railroad company which pro- 
 cures or acquiesces in the withdraw- 
 al of a receivership and the dis- 
 charge of the receiver and the can- 
 celation of his bond, and accepts the 
 restoration of its road largely en- 
 hanced in value by betterments, may 
 be sued in assumpsit on a claim 
 which was valid against the receiv- 
 er, but not satisfied by him or by the 
 court which discharged him, — at 
 least when it does not claim that the 
 amount of the betterments was less 
 than the demand sued on. Texas d 
 P. R. Co. V. Bloom, 164 U. S. 636, 41 
 L. ed. 580. 
 
 Provision cannot be made for pay- 
 ment by a mortgagor of the compen- 
 sation and expenses of a receiver of 
 the mortgaged premises, appointed 
 ex parte by tlie court without au- 
 thority, as, if any provision is made, 
 
 77
 
 § 125 
 
 RECEIVERSHIPS— SUPPLEMENT. 
 
 the paitj'^ who improperly procures 
 the appointment should be required 
 to pay. Couper v. tihirley, 44 U. S. 
 App. 586, 75 Fed. Rep. 168, 21 C. C. 
 A. 288. 
 
 Parties at wliose instance a re- 
 ceiver is appointed may be compelled 
 to pay expenses incurred by him in 
 the management of the estate, where 
 the estate is insufficient or fails. 
 Knickerhoclcer v. McKindlcy Coal & 
 Min. Co. 67 111. App. 291. 
 
 An action against a railroad com- 
 pany for damages for persoiuil in- 
 juries received by a ])assenger on the 
 railroad when in the hands of a re- 
 ceiver, but which is restored to the 
 company largely enhanced in value, 
 is not cut off by failure to present 
 the claim by intervention in the re- 
 ceivership case, under an order pro- 
 viding for such claims and that if 
 not so presented by a certain date 
 they shall be barred and not a charge 
 on the property of the company, 
 since this merely limits the time for 
 intervention, but does not preclude 
 other remedies which may be within 
 the reach of the claimants. Texas 
 d- P. R. Co. V. Bloom, 164 U. S. 636, 
 41 L. ed. 580. 
 
 A carrier is not liable for injuries 
 to cattle shipped over its line under 
 a contract made with a receiver aft- 
 er all the railroad property was sold 
 and before its delivery to the rail- 
 road company, where no betterments 
 or permanent improvements of the 
 property with funds derived from 
 the operation of the road were made. 
 Holman v. Galveston, H. d S. A. R. 
 Co. 14 Tex. Civ. App. 499. 
 
 A railroad company is not liable 
 for the acts of its receiver or those 
 of his employees. Louisville 8. R. 
 Co. v. Tucker, 20 Ky. L. Rep. 1303. 
 
 A temporary receiver as such has 
 no authority to continue the business 
 of the concern, and unless he is au- 
 thorized to do so by the court the es- 
 tate cannot be charged with liability 
 incurred by him in the business. 
 Appleton V. Welch, 20 Misc. 343. 
 
 A loss growing out of the default 
 of a receiver must be borne by the 
 estate. Hutchinson v. Massareene, 
 
 2 Ball & B. 55; of. Ri(/ge v. Bowater, 
 
 3 Bro. Ch. 365. 
 
 The expenses of operating are 
 
 chargeable first on the net income, 
 and, that being insufficient, on the 
 property or its proceeds. Ellis v. 
 Vernon Ice, Light, & W. Co. 86 Tex. 
 109. 
 
 The first mortgage bondholders of 
 a railroad, purchasing at foreclosure 
 sale, are not required to restore for 
 the benefit of unsecured creditors the 
 amounts jsaid from the earnings 
 while in the hands of receivers for 
 taxes and insurance. Farmers' Loan 
 d T. Co. v. Fidelity Ins. T. d 8. D. 
 Co. (Tex. Civ. App.) 41 S. W. 113. 
 
 A new corporation to whom rail- 
 way property is turned over by re- 
 ceivers the day after the accident of 
 which plaintiff complains is not li- 
 able therefor, since the receivers 
 were neither its agents nor servants,, 
 but were put in control of the prop- 
 erty by an adverse act. Archambeau 
 V. Ncto York d N. E. R. Co. 170 
 Mass. 272. 
 
 A purchaser of a railroad under a 
 mortgage foreclosure is liable to a 
 passenger who sustained personal 
 injuries in a collision of two trains, 
 while the road was operated by re- 
 ceivers, appointed by the United 
 States district court, where the de- 
 cree of that court directing fore- 
 closure required the purchaser, as a 
 part of the purchase price and in ad- 
 dition to the sum paid, to pay all li- 
 abilities incurred by the receivers 
 before delivery of possession of the 
 property. Atchison, T. d 8. F. R. 
 Co. V. Cunningham, 59 Kan. 722. 
 
 A purchaser of a railroad from a 
 prior purchaser at a receiver's sale 
 is not liable for personal injuries ac- 
 cruing during the operation of the 
 road by the receiver, where the evi- 
 dence fails to show whether the bet- 
 terments relied upon to charge it were 
 made before or subsequent to the re- 
 ceiver's sale, and there is no evi- 
 dence tending to show that it had 
 any interest in the property or any 
 control over the same when the in- 
 juries were sustained. Houston 
 Electric 8treet R. Co. v. Bell (Tex. 
 Civ. App.) 42 S. W. 772. 
 
 A purchaser at foreclosure sale of 
 a railroad in the hands of a receiver 
 is liable for personal injury between 
 the date of confirmation and the 
 date of delivery, to the extent of the
 
 LIABILITY OF RECEIVER. 
 
 125 
 
 permanent improvement made dur- 
 ing such period, but not prior there- 
 to. Crawford v. Houston <& T. C. R. 
 Co. 89 Tex. 89. 
 
 A claim for injury from the neg- 
 ligent ojaeration of a railroad, on 
 which judgment was rendered 
 against the receiver after which he 
 settled his accounts and paid over 
 under the order of court the balance 
 in his hands, did not stand on a foot- 
 ing with the expenses of the receiv- 
 ership, and no lien was created on 
 the property; and a purchaser at 
 the foreclosure sale was not liable. 
 White V. Keokuk & D. M. R. Co. 52 
 Iowa, 97. 
 
 The purchaser of a railroad is li- 
 able for damages caused by negli- 
 gence of a receiver, if betterments 
 upon the road by the receiver subse- 
 quent to the sale, and the earnings 
 turned over to the purchaser, ex- 
 ceeded in value the liabilities im- 
 posed upon the purchaser by the de- 
 cree of the court and the operating- 
 expenses of the receiver and claims 
 for damages against him. Houston 
 d T. C. R. Co. V. KelUj (Tex. Civ. 
 App.) 35 S. W. 878. 
 
 The purchaser of a railroad in the 
 hands of a receiver, whose contract 
 makes it liable for the obligations 
 of the receiver, is liable to pay a 
 judgment entered against the re- 
 ceiver on a supersedeas bond which 
 he had executed to appeal a judg- 
 ment against the railroad, — especial- 
 ly where the road was improved and 
 bettered while in the hands of the 
 receiver to an amount in excess of 
 such judgment. Missouri, K. & T. 
 R. Co. V. Lactj, 13 Tex. Civ. App. 
 391. 
 
 The purchaser of a railroad from 
 a receiver is liable for the negligent 
 loss of cotton shipped over such road 
 after the sale of the road and its con- 
 firmation, although it was still being 
 operated by the receiver and no bet- 
 terments or improvements were 
 made during such period, where it 
 continued to be operated by the re- 
 ceiver diiectly in opposition to the or- 
 ders of the court and for the express 
 
 benefit of the purchaser. Houston 
 & T. C. R. Co. v. Bath, 17 Tex. Civ. 
 App. G97. 
 
 Purchasers on foreclosure of the 
 property of a railroad company, who 
 have assumed jjayment of debts due 
 by the receiver, must pay in full a 
 debt due to an association in which 
 they own a half interest, where by 
 the mutual agreement by which 
 such association was formed all the 
 earnings were to go first into the 
 hand of the agents, and the several 
 interests of the principals do not 
 arise until the accounts in the haiids 
 of the agents are made up. State 
 V. For't Royal d A. R. Co. 79 ied. 
 Rep. 397. 
 
 A railroad mortgagee is not liable 
 for unpaid wages or other obliga- 
 tions incurred by a receiver ap- 
 pointed at the mortgagee's instance 
 in a foreclosure suit, although the 
 trust fund is insufficient to pay them, 
 unless such responsibility was im- 
 posed by the court as a condition of 
 the appointment or the continuance 
 of the receiver in office. Farmers' 
 Loan & T. Co. v. Oregon P. R. Co. 
 31 Or. 237, 38 L. R. A. 424. 
 
 Although a receiver of a corpora- 
 tion, appointed by trustees in a 
 mortgage pursuant to a power there- 
 in contained, providing that such re- 
 ceiver shall be the agent of the com- 
 pany, which alone shall be liable for 
 his acts and defaults, ceases to be 
 the agent of the company upon a 
 compulsory winding-up order, he 
 does not thereupon become the 
 agent of the trustees in the mort- 
 gage, so as to render them liable for 
 goods afterwards purchased by him 
 in carrying on the business. Gosling 
 V. Gaskell [1897] A. C. 575, 77 L. T. 
 N. S. 314, 66 L. J. Q. B. N. S. 848. 
 
 When the order appointing is re- 
 versed the receivers' fees must be 
 paid by the unsuccessful party, and 
 iiot from property. Weston v. Watts, 
 45 Hun, 219. 
 
 A defendant is not liable for loss 
 of property in the hands of a receiv- 
 er. Lee v. Cone, 4 Coldw. 392. 
 
 79
 
 § 133-148 RECEIVERSHIPS— SUPPLEMENT. 
 
 Page 233, sec. 133. — Effect of discharge. 
 
 After the discharge of a receiver, 
 and surrender by him of the prop- 
 erty in his hands, he is discharged 
 
 from further liability. New York 
 d \V. U. Teleg. Co. v. Jewett, 115 N. 
 Y. 166. 
 
 Page 235, sec. 146. — Creditors' bills; general nature of remedy. 
 
 A receiver is allowed in favor of a 
 purchaser, in an action to rescind 
 for fraudulent misrepresentations. 
 Gibhs y. David, L. R. 20 Eq. 373. 
 
 Receiver for rents appointed in a 
 creditors' bill. Johnson v. Wood- 
 ruff, 8 N. J. Eq. 120, Affirmed Id. 
 729. 
 
 The appointment of a receiver is 
 proper on filing a creditors' bill. 
 Central Nat. Bank v. Graham 
 (Mich.) 5 Det. L. N. 591, 76 N. W. 
 1042. 
 
 And particularly so where the bill 
 is confessed. Runals v. Harding, 83 
 111. 75. 
 
 A receiver of a corporation will 
 not be appointed on a creditors' bill, 
 based on a judgment recovered 
 against the corporation on notes ex- 
 ecuted by the corporation to a di- 
 rector, while solvent, for money 
 loaned to the corporation, although 
 it subsequently became insolvent be- 
 fore the judgment was taken, as a 
 director of a solvent corporation in 
 good faith may loan it money, and 
 the subsequent insolvency of the cor- 
 poration will not affect his right to 
 recover the loan. Hudlun v. Blakes- 
 lee, 70 111. App. 664. 
 
 Leave to file a creditors' bill 
 against a corporation and its receiver 
 need not be granted in the action in 
 which the receiver was appointed, 
 but is sufficient when obtained in the 
 same court in which the receivership 
 action is pending, where the latter 
 was not instituted for the purpose of 
 winding up the affairs of the corpo- 
 ration and distributing its property 
 among creditors. Sligh v. Sheltoti 
 S. IV. R. Co. 20 Wash.' 16. 
 
 A summons may be issued against 
 a judgment debtor for whom a re- 
 ceiver has been appointed, and 
 against whom a creditors' bill is 
 pending, requiring him to appear be- 
 fore the circuit court commissioner 
 for examination, although proof has 
 not been made of service of the order 
 appointing a receiver, where such or- 
 der directed the commissioner to is- 
 sue a summons on request. Central 
 Nat. Bank v. Graham ( Mich. ) 5 Det. 
 L. N. 591, 76 N. W. 1042. 
 
 t-nder a creditors' bill, where it 
 appears that there is no personal es- 
 tate, and that the real estate must 
 be applied to debts, a receiver will 
 be appointed in the first instance. 
 Jones v. Pugh, 8 Ves. Jr. 71. 
 
 Execution must issue to the coun- 
 ty in which the judgment debtor re- 
 sides. Strange v. Longley, 3 Barb. 
 Ch. 650. 
 
 A proceeding to declare a debtor 
 an insolvent, to set aside alleged 
 preferences, and procure the appoint- 
 ment of a receiver, brought under 
 Wis. Laws 1897, chap. 334, author- 
 izing creditors holding claims aggre- 
 gating not less than $200 to insti- 
 tute such proceeding within thirty 
 days after the creation of the pref- 
 erence, cannot be maintained by 
 creditors whose claims aggregate less 
 than the required amount, nor can 
 their amount be increased by the 
 costs incurred upon their reduc- 
 tion to judgment although incurred 
 within such thirty days. Woodard 
 & S. Co. v. Milnes, 101 Wis. 329. 
 
 Page 241, sec. 148. — Fraudulent conveyances. 
 
 An injunction may properly be 
 granted and receivers appointed in 
 an action involving the fraudulent 
 80 
 
 character of a deed by the executor 
 and sole heir of a decedent, to a sister 
 of the latter in settlement of an al-
 
 CREDITORS' BILLS. ETC. 
 
 148 
 
 legecl debt due to such sister, where 
 there is evidence warranting a judge 
 in finding that no such indebtedness 
 ever really existed. Broion v. Stan- 
 ley, 105 Ga. 469. 
 
 A receiver will not be appointed 
 in an action brought by creditors in 
 their own behalf to set aside a trans- 
 fer of real property as fraudulent 
 against them. Harris v. Buchner, 
 35 App. Div. 594. 
 
 A receiver may be appointed in an 
 action by a judgment creditor to set 
 aside a fraudulent conveyance of the 
 land, although the judgment debtor 
 has only an equity of redemption in 
 the land, — especially where the 
 fraudulent grantee is in possession 
 of the land and receiving the rents 
 thereof. Freeman v. Stuart (Ala.) 
 24 So. 31. 
 
 A receiver pendente lite will not 
 be appointed in an action to set aside 
 conveyances of real property as 
 fraudulent, where it appears that 
 the buildings and improvements on 
 the property are properly kept and 
 cared for by the defendant, and that 
 he is solvent and capable of respond- 
 ing for all rents or profits received 
 during the pendency of the action, — 
 especially if he offers to enter into 
 a bond to the plaintiffs in such sum, 
 with such conditions, and with such 
 sureties as the court may designate, 
 to account for such rents and profits. 
 Spolane v. Amsterdanisch Trustees 
 Kantoor, 18 Wash. 81. 
 
 A receiver appointed in a credit- 
 ors' action to take charge of prop- 
 erty adjudged to have been fraudu- 
 lently mortgaged by the debtor to a 
 corporation is entitled, as against 
 the bona fide holders of bonds of the 
 corporation secured by the mortgage, 
 whose rights are not affected by the 
 decree, to interest upon the amount 
 paid by him to take up bonds which 
 had been pledged as collateral secur- 
 ity for the debts of the corporation 
 and of the debtor in adjusting the 
 rights of the respective parties in the 
 proceeds of the mortgage. Badger 
 V. Sutton, 30 App. Div. 294. 
 
 The appointment of a receiver of 
 the property of a debtor will not be 
 set aside where the debtor does not 
 deny the allegations in the bill charg- 
 ing that specified deeds of trust were 
 
 made with the intent to hinder, de- 
 lay, and defraud creditors and secure 
 a fictitious debt, and the trustee does 
 not deny that he knew of such fraud- 
 ulent intent. Lyle v. Commercial 
 Nat. Bank, 93 Va. 487. 
 
 The appointment of a receiver in 
 an action by judgment creditors to 
 subject to the lien of their judgments 
 personalty in the possession of the 
 debtor and claimed to have been 
 fraudulently mortgaged will not be 
 denied on the ground that the plain- 
 tiffs have an adequate remedy at law 
 by levy and sale under execution, 
 since such remedy is not exclusive. 
 Hirsch v. Israel, lOG Iowa, 498. 
 
 A suit in equity by judgment cred- 
 itors for the purpose of subjecting 
 personalty in the possession of the 
 debtor, and claimed to have been 
 fraudulently mortgaged, to the pay- 
 ment of the plaintiff's judgments, 
 affords a sufficient basis for the ap- 
 pointment of a receiver. Ibid. 
 
 A receiver will be appointed under 
 Ohio Rev. Stat. §§ 5483, 5484, where 
 the debtor has fraudulently or sus- 
 piciously transferred his property to 
 others who hold and claim to own 
 it, if there is a strong possibilty that 
 if a receiver were appointed some of 
 the property could be recovered and 
 its proceeds applied on the creditor's 
 judgment. Hayes v. Moore, 5 Ohio 
 N. P. 220. 
 
 A receiver is properly appointed 
 to take charge of property trans- 
 ferred by a failing debtor in fraud 
 of creditors. Bomar v. Means, 53 
 S. C. 232. 
 
 Property in the hands of a receiver 
 appointed in an action by judgment 
 creditors in aid of their executions 
 to set aside certain transfers by the 
 debtor as fraudulent, at the time of 
 his discharge, pursuant to a decree 
 adjudging that the only relief plain- 
 tiff's could obtain was the removal 
 of the transfers as an obstruction to 
 the enforcement of their executions, 
 and that the appointment of a receiv- 
 er was improper, should be returned 
 to the transferees, and not turned 
 over to the shcrilf holding the execu- 
 tions. Home Bank v. J. B. Brewster 
 & Co. 33 App. Div. 330. 
 
 A receiver is properly appointed 
 pending a creditors' bill, where the 
 
 81
 
 § 149 
 
 RECEIVERSHIPS— SUPPLEMENT. 
 
 property, botli tangible and intangi- 
 ble, is of a kind easily put out of 
 reach, and the amount involved is 
 A'ery considerable, — especially where 
 complainant tenders a bond condi- 
 tioned for the payment of all dam- 
 ages that may result from the ap- 
 pointment. E. A. Moore Furnilnre 
 Co. V. l^iussiiif/, 71 111. App. GOG. 
 
 Where a lien is acquired on the 
 filing of a creditors' bill, a receiver 
 
 is properly appointed upon an avei'- 
 ment that the appointment is neces- 
 sary to preserve and eifectuate the- 
 lien, by reason of the insolvency of 
 the debtor and the disposition of the 
 property by the defendants. Heard 
 V. Murray, 93 Ala. 127 ; cf. Moritz 
 V. Miller, 87 Ala. 331; Thompson v. 
 Tower Mfg. Co. 87 Ala. 733; aims 
 V. Adams, 78 Ala. 395. 
 
 Page 249, sec. 149. — Jurisdiction in matters of assignment. 
 
 A receiver is properly appointed 
 of an assigned estate, where the as- 
 sets have been transferred to a per- 
 son who has bought up claims 
 against the estate, and is to transfer 
 the undisposed-of portion of the es- 
 tate, after reimbursing himself in an 
 agreed sum, to persons named, and 
 the insolvency proceedings have been 
 discontiniunl. Warren v. Hoice (111. 
 App.) 1 Chic. L. ,7. Wkly. 677. 
 
 A receiver may avoid an assign- 
 ment of goods by way of mortgage, 
 made by a corporation, on the 
 ground that it was not recorded 
 within the time required by law in 
 order to make it valid "as against 
 any other person than the parties." 
 Franklin Islat. Bank v. Whitehead, 
 149 Ind. 5G0, 39 L. R. A. 725. 
 
 General creditors of an assignor 
 for creditors may, even after final 
 judgment, intervene in attachment 
 proceedings instituted before the ex- 
 piration of the twenty days limited 
 for filing an inventory, and pray for 
 a distribution pro rata of the pro- 
 ceeds of the property which has been 
 sold under the direction of the court, 
 among all the assignor's creditors, 
 and for the appointment of a receiver 
 to administer the trust, where they 
 claim that the assignment is invalid, 
 or that the assigned property became 
 a trust fund because of a preference 
 in the assignment, rendering the 
 same invalid under the Oklahoma 
 statute. Hockaday v. Drye, 7 Okla. 
 288. 
 
 When it appears that an assign- 
 ment will be set aside on final judg- 
 ment a receiver will be appointed. 
 People's Batik v. Faueher, 21 N. Y. 
 Supp. 545. 
 82 
 
 On a bill filed for the appointment 
 of a receiver and an injunction and 
 to set aside an assignment as void as 
 to creditors, when no actual fraud 
 is shown and the solvency of the as- 
 signees is not questioned, it is proper 
 for the court to allow the assignees 
 to dispose of the property and collect 
 the debts and hold the proceeds sub' 
 ject to the decree of court, though 
 the disposition of the proceeds under 
 the assignment is restrained. Spring 
 v. Strauss, 3 Bosw. 007. 
 
 The Illinois assignment act does, 
 not deprive courts of equity of juris- 
 diction in creditors' bills to set aside 
 a fraudulent assignment or a pref- 
 erence made prior to an assignment, 
 and for the appointment of a re- 
 ceiver. Strong v. Goldman, 8 Biss. 
 552. 
 
 A receiver of the profits of an of- 
 fice assigned for creditors will be ap- 
 pointed pending a contest of the 
 validity of the assignment. Palmer 
 V. Vaughan, 3 Swanst. 173. 
 
 An order appointing a receiver 
 pendente lite in a proceeding under 
 3 How. (Mich.) Ann. Stat. § 8749o, 
 providing for the appointment of a 
 receiver at the instance of persons 
 having preferred claims under a vol- 
 untary assignment, is improvident 
 if not an absolute nullity. Hall v. 
 Wayne Cireuit Judge, 111 Mich. 
 395. 
 
 A charge that an assignee for 
 the benefit of creditors declines tO' 
 account to them from time to time 
 concerning the condition of the trust 
 will not justify his removal and the 
 appointment of a receiver, in the ab- 
 sence of proof of any misfeasance or 
 misappropriation of property, on his
 
 CiiEDlTORS' BILLS, ETC. 
 
 § 150 
 
 part, and where the complaint is evi- 
 dently inspired by the impatience of 
 creditors. Dozier v. Logan, 101 Ga. 
 173. 
 
 An assignee for the benefit of cred- 
 itors will not be, removed and a re- 
 ceiver appointed in his stead, upon an 
 allegation that one of the two sure- 
 ties upon the assignee's bond is in- 
 solvent. Ihid. 
 
 Misconduct on the part of an as- 
 signee for creditors is ground for ap- 
 pointment. Goldsmith v. Fech- 
 heimer, 16 Ky. L. Rep. 432. 
 
 A receiver will be refused where 
 the assignee under the assignment 
 
 has ample power, and is not charged 
 with misconduct. Hyde v. Weitzner, 
 4:5 Minn. 35. 
 
 In the absence of established 
 grounds for equitable interference, 
 the court will not, even with the con- 
 sent of the assignor and the assignee, 
 place an assigned estate in the 
 hands of a receiver. Penzel Grocer 
 Co. v. Williams, 53 Ark. 81. 
 
 An assignee kept out of an estate 
 owing to an old commission in bank- 
 ruptcy is entitled to a receiver and 
 the rents and profits, while kept out 
 of the use thereof. Hollis v. Bry- 
 ant, 12 Sim. 492. 
 
 Page 251, sec. 150. — Supplementary proceedings. 
 
 Pending attachment proceedings 
 will not prevent the appointment of 
 a receiver in supplementary proceed- 
 ings. Hanso)i v. Tripler, 3 Sandf. 
 733. 
 
 Irregularity in the appointment 
 of a receiver is no ground for object- 
 ing to an examination concerning 
 property and effects. Hoicard v. 
 Palmer, Walk. Ch. (Mich.) 391. 
 
 The judge who makes the order 
 for an examination of the debtor is 
 the one to appoint a receiver. Smith 
 V. Johnson, 7 How. Pr. 39. 
 
 A receiver may be appointed in 
 I)roceedings supplementary to execu- 
 tion, on the examination of a third 
 party indebted to the judgment debt- 
 or. De Vivier v. Smith, 6 N. Y. 
 Civ. Proc. Rep. 394, 1 How. Pr. 
 N. S. 48. 
 
 Under supplementary proceedings 
 in New .Jersey, after an order for ex- 
 amination is served, a receiver may 
 be appointed, though the debtor him- 
 self has not been examined. Cotton 
 v. Bigeloiv, 41 N. J. L. 2GG. 
 
 Under the New York act of 1874 
 there was no power to appoint a re- 
 ceiver except when an order for ex- 
 amination had been made; and in a 
 case in which a receiver was ap- 
 pointed before tiie order was made, 
 the appointment was held void. 
 Holhrook v. Oiglcr, 8 Jones & S. 33, 
 49 How. Pr. 289. 
 
 An order for the examination of 
 a third party in supplementary pro- 
 
 ceedings will be set aside where it 
 appears that a receiver has been ap- 
 pointed in sequestration proceedings 
 against the judgment debtor, who is 
 entitled to all the personalty belong- 
 ing to such debtor. Bucki v. Bucki, 
 26 Misc. 69. 
 
 An order appointing a receiver in 
 supplementary proceedings, and di- 
 recting him to bring suit for a bal- 
 ance due on a specified claim in fa- 
 vor of the judgment debtor from a 
 third person, is not objectionable on 
 the ground that the balance due on 
 such claim has been extinguished by 
 an agreement between the parties, as 
 such fact, if it exists, may be shown 
 on the trial. Globe Phosphate Co. 
 V. Pinson, 52 S. C. 185. 
 
 A receiver in supplemental pro- 
 ceedings is only appointed to pre- 
 serve property. Rodman v. Harvey, 
 102 N. C. 1. 
 
 In supplementary proceeding a re- 
 ceiver cannot be appointed of partic- 
 ular debts. Andrews v. Glcnville 
 Woolen Co. 11 Abb. Pr. N. S. 78. 
 
 In supplemental proceedings un- 
 der the statute, against an insolvent 
 corporation, there is no preference 
 obtained. Hamtnond v. Hudson 
 River Iron & ilach. Co. 11 How. Pr. 
 29. 
 
 A receiver in supplementary pro- 
 ceedings may maintain an action to 
 set aside a transfer of property by 
 the judgment debtor with intent to 
 give a preference to certain credit- 
 
 6i
 
 § 150 
 
 RECEIVERSHIPS— SUPPLEMENT. 
 
 ors, under N. Y. Laws 1858, chap. 
 314, authorizing the receiver of the 
 property of an insolvent individual 
 to set aside such a transfer. Stiefel 
 V. Berlin, 28 App. Div. 103. 
 
 A receiver appointed in proceed- 
 ings supplementary to execution may 
 maintain an action to set aside a 
 transfer of property by an insolvent 
 limited partnership as preferential. 
 Stiefel v. Berlin, 20 Misc. 194. 
 
 Tlie authority conferred upon a re- 
 ceiver by N. Y. Laws 1858, chap. 314, 
 as amended by N. Y. Laws 1894, 
 chap. 740, to follow specific property 
 transferred in fraud of creditors, and 
 recover it or its value, does not en- 
 title a receiver in supplementary 
 proceedings to sue at law to recover 
 damages for a fraudulent conspiracy 
 to prevent the collection of the debt. 
 Ward v. Petric, 157 N. Y. 301. 
 
 An appointment in supplementary 
 proceedings vests in the receiver all 
 the property, real and personal, and 
 rights of action of the debtor. Re 
 Wilds, 6 Abb. IST. C. 307. 
 
 A judgment debtor who makes 
 payments upon a mortgage on land 
 belonging to his wife has an equi- 
 table right to a lien upon the land 
 for the money, and such lien is in 
 substance and effect personalty to 
 which a receiver in supplementary 
 proceedings may make claim. Walsh 
 v. Rosso (N. J. Eq.) 41 Atl. 669. 
 
 He has no claim upon property ac- 
 quired subsequent to the date of the 
 order of appointment. Thorn v. Fel- 
 lows, 5 N. Y. Week. Dig. 473. 
 
 The debtor may be required to pay 
 to the receiver a balance of a bank 
 account standing in the name of his 
 wife, which is managed as his own 
 under power of attorney from her. 
 See N. Y. Code Civ. Proe. § 2447. 
 Weld V. Sage, 34 App. Div. 471. 
 
 On motion for the appointment 
 the court has no right to adjudicate 
 the receiver's right to money. Manice 
 v. Smith, 5 N. Y. Week. Dig. 255. 
 
 The receiver represents all cred- 
 itors. Bostwick V. Beizer, 10 Abb. 
 Pr. 197. 
 84 
 
 In a proceeding supplementary to 
 execution under the New York Code 
 a receiver may be appointed al- 
 though the only property discovered 
 is subject to execution. Heroy v. 
 Gibson, 10 Bosw. 591. 
 
 In supplementary proceedings the 
 duties of the receiver end when the 
 judgment is paid or fully secured. 
 Gifford V. Rising, 59 Hun, 42. 
 
 In supplementary proceedings the 
 judge cannot order property of the 
 debtor to be delivered to the cred- 
 itor on his giving the debtor a re- 
 ceipt. Dickinson v. Onderdonk, 18 
 Hun, 479. 
 
 He may be required to give secur- 
 ity for costs. Welch v. Bogert, 3 N. 
 Y. Week. Dig. 402. 
 
 A receiver in supplementary pro- 
 ceedings is not authorized to main- 
 tain an action at law to recover dam- 
 ages for a fraudulent conspiracy to 
 prevent the collection of the debt, 
 carried into effect prior to the com- 
 mencement of the proceedings in 
 which the receiver was appointed. 
 Ward V. Petrie, 157 N. Y. 301. 
 
 A judgment debtor is entitled to 
 notice of the application for appoint- 
 ment. Clark V. Savage, 5 N. Y. 
 Week. Dig. 193; Vandeburgh v. Gay- 
 lord, 7 N. Y. Week. Dig. 136. 
 
 A receiver appointed for a corpo- 
 ration in proceedings supplementary 
 to execution, who has taken posses- 
 sion of its assets, including a policy 
 of insurance issued by an employers' 
 accident liability insurance com- 
 pany, is a necessary party to an ac- 
 tion against the corporation and the 
 insurer by an employee of the former 
 to recover for negligent injuries. 
 Moore v. Los Angeles Iron & S. Co. 
 89 Fed. Rep. 73. 
 
 A receiver may avoid an assign- 
 ment of a chose in action. Coleman 
 V. Rof, 45 N. J. L. 7. 
 
 But has no power to take forcible 
 possession of property in the hands 
 of a third party. Dewey v. Finn, 
 18 N. Y. Week. Dig. 558.
 
 RECEIVERSHIP IN FORECLOSURE OF MORTGAGES. § 170 
 
 Page 266, sec. 170. — Receivership in foreclosure of mortgages; 
 
 generally. 
 
 When the right to retain posses- 
 sion is in the mortgagor and also the 
 right to collect the revenues until 
 default, a receiver appointed in a suit 
 to foreclose the mortgage has no 
 right to earnings prior to the filing 
 of the billj that being the first de- 
 mand though the money was not paid 
 till afterwards. Hook v. Bosworth, 
 24 U. S. App. 341, 64 Fed. Rep. 443, 
 12 C. C. A. 208. 
 
 A purchaser at foreclosure sale is 
 entitled to a receiver of the rents. 
 Atnericari Freehold Land Mortg. Co. 
 v. Turner, 95 Ala. 272. 
 
 Rents paid in advance to a pur- 
 chaser of mortgaged premises in the 
 absence of collusion sustained. Law- 
 rence V. Conlon, 20 Misc. 44. 
 
 A mortgagee who bids in the prem- 
 ises at foreclosure sale for less than 
 the amount due him and obtains a 
 deficiency decree for the balance still 
 has, upon a proper showing, the equi- 
 table right to have the rents of the 
 premises accruing during the re- 
 demption period applied in satisfac- 
 tion of the deficiency, and the ap- 
 pointment of a receiver is the proper 
 procedure to secure him such right. 
 Boruff V. Hinkley, 68 111. App. 274. 
 
 Discharge of mortgage hy release of 
 security. 
 
 Whether a mortgage is discharged 
 as to subsequent mortgagees by the 
 prior mortgagee's voluntarily releas- 
 ing part of his security without re- 
 ducing the amount of his mortgage 
 will not be determined on a motion 
 for the appointment of a receiver of 
 the rents and profits, pending a pro- 
 ceeding to foreclose the prior mort- 
 gage, but will be left for determina- 
 tion at the trial. Ross v. Vernam, 
 6 App. Div. 240. 
 
 Wlien foreclosure restrained. 
 
 The court appointing a receiver of 
 the property of a corporation may 
 properly refuse to permit a foreclos- 
 ure sale under an attachment levied 
 before the receiver was appointed, 
 where there is a mortgage lien on 
 
 the attached property prior to the 
 attachment. Southwestern Invest- 
 ment Co. V. Crawford, 16 Tex. Civ. 
 App. 475. 
 
 When receivership extended. 
 
 Where a creditor pending a fore- 
 closure secures the appointment of a 
 receiver the receivership will be ex- 
 tended to the foreclosure case, where 
 the judgment on which the receiver 
 was appointed was obtained pendente 
 lite. Trye v. Aldborough, 1 Ir. Ch. 
 Rep. 660. 
 
 Effect of foreclosure. 
 
 A mortgagee whose debt is due and 
 defectively secured may, by filing a 
 bill to foreclose and procuring a re- 
 ceiver, obtain an equitable lien on 
 the unpaid rents. Lofsky v. Maujer, 
 3 Sandf. Ch. 70. 
 
 Functions of receiver in. 
 The ordinary duties of a receiver 
 in foreclosure are to collect rents and 
 preserve the property from loss and 
 decay. But they are more extensive 
 in railway foreclosures. New Jer- 
 sey Midland R. Co. v. Wortendyke, 
 27 N. J. Eq. 658, 602. 
 
 Rents in arrear; who entitled to. 
 A receiver cannot in a foreclosure 
 reach rents accrued and in arrears 
 prior to the commencement of suit. 
 Mutual L. Lns. Co. v. Belknap, 19 
 Abb. N. -C. 345. 
 
 Excess on foreclosure. 
 A receiver is entitled to the excess 
 on foreclosure as against a creditor 
 who obtains judgment after the re- 
 ceiver's possession. Jermain v. Hen- 
 dricks, 100 N. Y. 279. 
 
 Bond necessary. 
 The appointment of a receiver in 
 an action to foreclose a mortgage by 
 an order authorizing him to enter 
 on the discharge of his duties "upon 
 giving bond," instead of requiring 
 the l)ond to be given before the ap- 
 pointment as required by Ala. act 
 February 18, 1895, is invalid. Drey- 
 spring V. Loch, 113 Ala. 263. 
 
 85
 
 § 172 RECEIVERSHIPS— SUPPLEMENT. 
 
 Page 267, sec. 172. — Foreclosure; when receiver appointed. 
 
 A receiver is properly appointed 
 during the pendency of a foreclosure 
 suit under a contract for its pur- 
 chase, where the purchaser seeks to 
 avoid the payment of the purchase 
 price, and the contract provides that 
 on the failure of the purchaser to 
 ])ay any instalment when due the ven- 
 dor may re-enter and repossess the 
 premises. Belding v. ileloche, 113 
 Mich. 223, Distinguishing Wagar 
 V. Stone, 36 Mich. 360. 
 
 A receiver may properly be ap- 
 pointed in a suit to foreclose a title 
 bond. Caudle v. Moran, 119 N. C. 
 432. 
 
 A receiver is properly appointed 
 in an action to foreclose a chattel 
 mortgage, on the ground that it will 
 prevent a multiplicitj^ of suits. 
 Wiedemann v. 8ami (N. J. Eq.) 31 
 Atl. 211. 
 
 The appointment of a receiver in 
 an action to foreclose a trust deed 
 securing a debt is justified under the 
 same conditions in which it would be 
 authorized if the action was for the 
 foreclosure of a mortgage. Pearson 
 v. Kendrick, 74 Miss. 235. 
 
 When an assignment is subject to 
 lis pendens a petition for a receiver 
 should be granted. Arnold v. Provi- 
 dence Lumber Co. (R. I.) 1 New 
 Eng. Rep. 44. 
 
 An order appointing a receiver in 
 mortgage foreclosure will not be va- 
 cated at the instance of a trustee in 
 insolvency of the mortgagor's prop- 
 erty, or save at the instance of a 
 party to the cause. Central Trust 
 Co. V. Worcester Cycle Mfg. Co. 86 
 Fed. Rep. 35. 
 
 Page 270. — (a) Where rents and profits ijledged. 
 
 A receiver of the rents and profits 
 will not be appointed 'pendente lite 
 in an action to foreclose a mortgage 
 containing a clause providing for 
 such a remedy, in the absence of any 
 allegation as to the insufficiency of 
 the securit3^ Jarvis v. MeQuaide, 
 24 Misc. 17 J Morrison v. Buckner, 
 
 Hempst. 442; Stetson v. 'Northern 
 Investment Co. 101 Iowa, 435. 
 
 A receiver is entitled to rents to 
 the end of the redemption period, 
 wnere the mortgage pledges them if 
 there is a deficiency. First Nat. 
 Bank v. Illinois Steel Co. 174 111. 
 140, Affirming 72 111. App. 040, 
 
 Page 271. — (b) Where security is inadequate. 
 
 That a mortgagee is not entitled to 
 possession of tlie property before 
 foreclosure will not prevent the ap- 
 pointment of a receiver upon his pe- 
 tition, if he alleges insolvency of the 
 mortgagor, insufficiency of the prop- 
 erty to pay the debt, and a deteri- 
 oration of the property in the mort- 
 gagor's hands. American Nat. Bank 
 V. Northwestern Mut. L. Ins. Co. 89 
 Fed. Rep. GIO, 32 C. C. A. 275. 
 
 Where plaintiff shows a prima 
 facie right and the security is scant, 
 a receiver pendente lite will be ap- 
 pointed. Phillips V. Eiland, 52 Miss. 
 721 ; Kelly v. Butler, 1 Ir. Eq. Rep. 
 86 
 
 435; Marshall c6 /. Bank v. Cady 
 (Minn.) 77 N. W. 831. 
 
 Plaintiff in an action to foreclose 
 a mortgage for unpaid interest is en- 
 titled to the appointment of a re- 
 ceiver, although the principal is not 
 due, where the mortgage is inade- 
 quate security for the principal and 
 interest, and the parties personally 
 liable upon the bond are not respon- 
 sible. Veerhof v. Miller, 30 App. 
 Div. 355. 
 
 The court is authorized by Cal. 
 Code Civ. Proc. § 564, to appoint a 
 receiver in a foreclosure action to 
 take and hold the rents and profits
 
 RECEIVERSHIP IN FORECLOSURE OF MORTGAGES. § 172 
 
 to secure the debts, where the secur- 
 ity is insufficient, iicott v. Hotch- 
 kiss, 115 Cal. 89. 
 
 The mortgagor's assignment for 
 creditors does not defeat the mort- 
 gagee's right under the Indiana stat- 
 .utes to the appointment of a receiv- 
 er pending an action to foreclose the 
 mortgage, if tlie security is inade- 
 <iuate. Sweet d- C. Co. v. Union Nat. 
 Bank, 149 Ind. 305. 
 
 A receiver may be appointed on re- 
 fusal to apply rents on interests due 
 on the mortgage where there is scant 
 securitv. Stockman v. Wallis, 30 N. 
 J. Eq. 449. 
 
 A receiver will be appointed, un- 
 der Mansf. (Ark.) Dig. § 5289, in an 
 action to foreclose an equitable mort- 
 gage, where the mortgagor and his 
 grantee are insolvent and the secur- 
 ity is scant. Wcis v. Neel (Ark.) 
 14 S. W. 1097; Bristow v. ffome 
 Bldg. Co. 91 Va. 18. 
 
 In foreclosure a receiver will be 
 appointed where there is inadequate 
 security, imminent danger of waste, 
 removal, or destruction, or where 
 rents, etc., have been expressly 
 pledged for the payment of the debt. 
 Morrison v. Buckner, Hempst. 442. 
 
 A petition subsequent to a per- 
 sonal judgment and decree of fore- 
 closure of a mortgage for the ap- 
 pointment of a receiver of the rents 
 and profits of the land is sufficient 
 under the Indiana statute, where it 
 appears therefrom that the property 
 is inadequate to secure the debt, that 
 the debtor is insolvent, that the 
 mortgagors do not occupy the prop- 
 erty, and that the security is in peril 
 from lapse of insurance and the ma- 
 turity of taxes. Harris v. United 
 States Sav. Fund c£- Invest. Co. 146 
 Ind. 265. 
 
 A receiver will be apjiointed where 
 the land is deteriorating. Bailey 
 V. Bailey, 10 Ky. L. Rep. 793. 
 
 A receiver of the property of a 
 foreign corporation is properly ap- 
 pointed in an action to foreclose the 
 same, where it appears that the rents 
 of the mortgaged premises are 
 pledged for the payment of the debt, 
 that they are not iaeing applied, and 
 that the corporation is insolvent and 
 the property insufficient to pay the 
 mortgages and overdue taxes, and 
 
 other facts appear showing that the 
 rents are in danger of being lost to 
 the mortgagee. Stetson v. Northern 
 Investment Co. 101 Iowa, 435. 
 
 A receiver should be appointed aft- 
 er a sale under foreclosure for less 
 than the amount of the decree, where 
 the mortgage provides for the ap- 
 pointment of a receiver either before 
 or after a sale leaving a deficiency, 
 and there is no party against whom 
 a decree for the deficiency can be 
 made. Wright v. Krcft (111. App.) 
 2 Chic. L. J. Wkly. 197. 
 
 A receiver may be appointed of 
 the rents and profits of mortgaged 
 premises, where a deficiency is ascer- 
 tained in the foreclosure proceedings, 
 a decree entered for it, and execution 
 returned unsatisfied, and the mort- 
 gage gives authority to collect and 
 receive all rents, issues, and profits. 
 Fountain v. Woi/ier, 60 111. App. 529. 
 
 The provision of 2 Hill's (Wash.) 
 Code, § 326, that when mortgaged 
 property is insufficient to discharge 
 the debt a receiver of the rents and 
 profits may be appointed pending 
 foreclosure, was abrogated by Wash. 
 Laws 1869, p. 130, § 496, directing 
 that a mortgagee shall not recover 
 possession of the property without 
 a foreclosure and sale according to 
 law. Norfor v. Bushy, 19 Wash. 450. 
 
 A receiver will be appointed when 
 plaintiff is entitled to the rents, and 
 the party in possession is insolvent, 
 and security scant. Collins v. Ric- 
 hart, 14 Bush, 621. 
 
 A receiver of the rents and profits 
 of mortgaged lands pending a fore- 
 closure suit will not be appointed 
 where a stranger is in possession of 
 the land, claiming adversely, unless 
 he is insolvent and in consequence 
 tliereof there is imminent danger of 
 the loss of the rents and profits. 
 Warren v. Pitts, 114 Ala. 65. 
 
 A court of equity has power to ap- 
 point a receiver to collect the rents 
 and profits of the mortgaged prem- 
 ises and ap|)ly them upon the indebt- 
 edness, althougli no provision is 
 made thei-efor in the mortgage, when 
 the premises are an insufficient se- 
 curity and the mortgagor is insol- 
 vent. First Nat. Bank v. Illinois 
 Steel Co. 174 111. 140, Affirming 72 
 111. App. 640. 
 
 St
 
 § 173 RECEIVERSHIPS— SUPPLEMENT. 
 
 Page 276. — (d) Nonpayment of taxes. 
 
 An agreement that on default 
 in the payment of taxes and insur- 
 ance the mortgagee may declare the 
 indebtedness due, though not so by 
 the tenure of the notes, and for 
 
 the appointment of a receiver, may 
 be entered into, and the court will 
 enforce the provisions. Niccolls v. 
 Peninsular Stove Co. 48 111. App. 317. 
 
 Page 277. — (f) Special equitable grounds. 
 
 A receiver ought not to be ap- 
 pointed in an action to foreclose a 
 mortgage, unless it clearly appears 
 that the equities of the case demand 
 it, especially where there is an undi- 
 vided interest in the land, not owned 
 by the mortgagors, and not covered 
 by the mortgage. Holmes v. Stix, 
 20 Ky. L. Rep. 593. 
 
 A receiver will be appointed where 
 a mortgage upon the corporate prop- 
 
 erty is being foreclosed, judgments 
 have been recovered against it, un- 
 der which levies have been made, 
 when its management is in the 
 hands of a minority of its directors, 
 its business receipts are unaccounted 
 for, and no effort is being made to 
 remove the company from its peril- 
 ous condition. Ft. Wayne Electric 
 Corp. V. Franklin Electric Light Co. 
 57 N. J. Eq. 7. 
 
 Page 278. — (j) Where indebtedness not due, htit interest due. 
 
 A receiver and manager of the 
 business of a corporation will be ap- 
 pointed in a debenture holder's ac- 
 tion where a winding-up petition has 
 been presented but no order for wind- 
 ing up made, and there is a possibil- 
 ity that the property covered by the 
 debentures will have to be sold in 
 the near future, although nothing 
 has become actually due upon the 
 debentures, lie Victoria Steamboats 
 
 [1897] 1 Ch. 158, 66 L. J. Ch. N. S. 
 21, 75 L. T. N. S. 374. 
 
 Where the suit is on a judgment 
 on a bond, the interest only being 
 due, a receiver should be appointed 
 with reference to the interest only. 
 Kyerson v. Minton, 3 Edw. Ch. 382. 
 
 A receiver may be appointed on 
 the admission of a debtor that inter- 
 est is due and unpaid. Page v. 
 Wellesley, 1 Hogan, 179. 
 
 Page 278, sec. 173. — When not appointed. 
 
 On the application for the ap- 
 pointment of receivers in a mort- 
 gage foreclosure the court should not 
 appoint receivers over other com- 
 panies not parties to the mortgage. 
 Hook v. Bosworth, 24 U. S. App. 
 341, 64 Fed. Rep. 443, 12 C. C. A. 
 208. 
 
 An application for the appoint- 
 ment of a receiver pending proceed- 
 ings to foreclose a mortgage is prop- 
 erly refused under 2 How. (Mich.) 
 Anno. Stat. § 7847. Fifth Nat. 
 Bank v. C. P. Kellogg Co. 5 Det. L. 
 N. 251, suh nom. Fifth Nat. Bank 
 V. Pierce, 75 N. W. 1058. 
 
 The rule in England formerly was, 
 
 that if a mortgagee had the legal es- 
 tate a receiver would not be ap- 
 pointed, a remedy at law existing; 
 but this rule did not apply when 
 there was a prior mortgage. Ack- 
 land V. Gravener, 31 Beav. 482. 
 
 Where legal title is in mortgagor. 
 
 A receiver will not be appointed 
 in foreclosure proceedings where the 
 estate remains in the mortgagor un- 
 til sale. Guy v. Ide, Cal. 99. 
 
 Where by terms of mortgage right 
 not given. 
 
 A stipulation in a mortgage for 
 the appointment of a receiver of the
 
 RECEIVERSHIP IN FORECLOSURE OF MORTGAGES. S 173 
 
 rents and profits, and their applica- 
 tion to payment of the amount due, 
 in case a bill to foreclose the mort- 
 gage is filed, does not authorize a 
 court of equity to appoint a receiver 
 under the Oregon statute. Coiiper 
 V. Shirley, 44 U. S. App. 586, 75 Fed. 
 Rep. 108, 21 C. C. A. 2ss. 
 
 A clause mortgaging the rents and 
 profits does not require the court to 
 appoint a receiver in an action to 
 foreclose the mortgage; and such an 
 application will be denied notwith- 
 standing the clause, if the land is ad- 
 equate security. Brick v. Horn- 
 beck, 19 Misc. 218. 
 
 Whe7-e mortgage or amount due is in 
 dispute. 
 
 An appointment will be refused in 
 foreclosure if the mortgage is im- 
 peached. Leahy v. Arthur, 1 Ho- 
 gan, 92. 
 
 And before a sale, if the security 
 is ample. Degener v. Stiles, 6 N. Y. 
 Supp. 474. 
 
 And so when the validity of the 
 mortgage is questioned. Darcy v. 
 Blake, 1 Molloy, 247. 
 
 In an action to set aside a con- 
 veyance absolute in form, but 
 claimed to be a trust deed, a receiver 
 of the rents will not be appointed. 
 McCool V. McNamara, 19 Abb. N. C. 
 344. 
 
 Where insolvency and inadequacy 
 not shown. 
 
 A receiver pending an action to 
 foreclose a mortgage should not be 
 appointed upon an affidavit of plain- 
 tiff's attorney stating that he is in- 
 formed by plaintiff that it is ex- 
 tremely doubtful whether the prem- 
 ises will sell for sufficient to pay the 
 mortgage debt, where defendant 
 swears positively that the property 
 is worth much more than sufficient. 
 Sickels V. Canary, 8 App. Div. 308. 
 
 The appointment of a receiver 
 pending foreclosure, on the ground 
 that the property is insufficient to 
 discharge the debt, is not warranted 
 where, by law, the mortgage is a 
 mere security, since under the guise 
 of rents and profits it deprives the 
 mortgagor of the most valuable in- 
 cidents of possession prior to a de- 
 
 cree of foreclosure and sale. Norfor 
 v. Busby, 19 Wash. 450. 
 
 Where mortgagee in possession. 
 
 A receiver will not be appointed 
 where the mortgagee is in possession 
 and there is no dispute as to the 
 amount due, or charge of waste or in- 
 solvency or conversion. Schultz v. 
 Jcrrard (X. J. Eq.) 2 Cent. Rep. 
 211. 
 
 When application by a junior mort- 
 gagee. 
 
 A receiver has been refused on ap- 
 plication of a second mortgagee. 
 Fhipps V. Bishop of Bath, 2 Dick. 
 608. 
 
 When mortgagee not before court. 
 
 A receiver will be refused when the 
 mortgagee is not before the court. 
 Price V. Williams, Coop. Ch. 31. 
 
 In foreclosure of mechanic's lien. 
 
 A receiver will not be appointed in 
 an action to foreclose a mechanic's 
 lien. Meyer v. Seebald, 11 Abb. Pr. 
 N. S. 326, note. 
 
 Ifot appointed on final decree before 
 appeal. 
 
 The appointment of a receiver was 
 refused in foreclosure on final de- 
 cree before appeal and an application 
 for stay of preceedings. Chadron 
 Bkg. Co. V. Mahoney, 43 Neb. 214. 
 
 A^o# appointed m,erely because ten- 
 ants are numerous. 
 
 The fact that the tenants are 
 numerous is no ground for the ap- 
 pointment of a receiver in behalf of 
 a mortgagee. Sturch v. Young, 5 
 Beav. 557. 
 
 Where property leased before mort- 
 gage executed. 
 
 The appointment of a receiver of a 
 railroad during the pendency of an 
 action to foreclose a mortgage on the 
 railroad property is properly refused 
 in the discretion of the court, where 
 the road had been leased before the 
 execution of the mortgage. Louis- 
 ville d N. It. Co. v. Eakin, 100 Ky. 
 745. 
 
 89
 
 i^§ 176-180 
 
 RECEIVERSHIPS— SUPPLEMENT. 
 
 When receivers appointed in an- 
 other foreclosure. 
 
 An independent suit for foreclos- 
 ure of a mortgage and appointment 
 of receivers of the property of a rail- 
 road company cannot be maintained 
 where innnediate possession and the 
 displacement of receivers appointed 
 by another court, or their appoint- 
 ment as receivers in the new suit, is 
 sought without leave of the court in 
 the original case to file a separate 
 
 bill. American Loan c£ T. Co. v. 
 Central Vermont It. Co. 86 Fed. Rep. 
 390. 
 
 When mortgagor in hankruplcy. 
 
 A receiver cannot be appointed in 
 an action to foreclose a chattel 
 mortgage, where the mortgagor has 
 filed a petition in voluntary bank- 
 ruptcy in the United States district 
 court. Carpenter v. O'Connor, 16 
 Ohio C. C. 526. 
 
 Page 295, sec. 176. — Over what appointed. 
 
 The receivcrsliip need not extend 
 to the entire property covered by the 
 
 mortgage. McGrath 
 Hogan, 110. 
 
 V. Veitch, 1 
 
 Page 299, sec. 179. — Relative rights of senior and junior mort- 
 gagees. 
 
 A second encumbrancer is entitled 
 to a receiver. Ilaugan v. Netland, 
 51 Minn. 52; Archdeacon v. Boioes, 
 3 Anstr. 752; White v. Bishop of 
 Peterborough, 3 Swanst. 109. 
 
 The application of a junior encum- 
 brancer for tlie appointment of a re- 
 ceiver pending the action to enforce 
 his encumbrance stands upon more 
 favorable grounds than that of a 
 senior encumbrancer. Pearson v. 
 Eendrick, 75 Miss. 416. 
 
 The fact that, pending an action 
 to foreclose a second mortgage, the 
 holder of the first mortgage has paid 
 the delinquent taxes on the property 
 and added the amount thereof to his 
 mortgage, which he has foreclosed, 
 and on the foreclosure of which he 
 has bid in the property for the full 
 amount due him, furnishes no ground 
 for the discharge of a receiver pen- 
 dente lite appointed in proceedings to 
 foreclose the second mortgage, to 
 collect the rents of the mortgaged 
 premises, and apply them to the pay- 
 
 ment of such delinquent taxes and 
 the interest due on the jDrior mort- 
 gage. Farmers' Nat. Bank v. Back- 
 us, 67 Minn. 43. 
 
 The appointment of a receiver in 
 a proceeding to foreclose a second 
 mortgage does not preclude the ap- 
 pointment in a proceeding to fore- 
 close the first, the property being the 
 same. Holland Trust Co. v. Consoli- 
 dated Gas d E. L. Co. 85 Hun, 454. 
 
 The exclusive right of a second 
 mortgagee to the income is limited 
 to a case when the first mortgagee 
 is not a party. Miltenberger v. 
 Logansport R. Co. 106 U. S. 286, 
 27 L. ed. 117. 
 
 When a receiver has been ap- 
 pointed by a puisne encumbrancee 
 the court will not extend it to the 
 suit of a prior encumbrancee. Broion 
 V. Nolan, 10 Ir. Eq. Rep. 57. 
 
 The court has power to appoint re- 
 ceiver, though not granted in an act 
 of Parliament. DeWinton v. Brecon, 
 26 Beav. 533. 
 
 Page 302, sec. 180. — Receiver in behalf of annuitants. 
 
 A receiver will be appointed for 
 arrears in an annuity. Probasco v. 
 Probasco, 30 N. J. Eq. 108. 
 
 The court by the appointment of a 
 90 
 
 receiver of an annuity attaches the 
 rent due by tenants. Hayden v. 
 Shearmayi, 2 Ir. Ch. Rep. 137. 
 
 An annuitant is entitled to have
 
 EECEIVERSHIP OF PARTNERSHIPS. 
 
 §§ 190, 191 
 
 a receiver appointed over the bene- 
 fice upon an interlocutory applica- 
 tion, made for that purpose, pre- 
 vious LO the hearing of the cause. 
 Battersby v. Eoman, 2 Ir. Ch. Rep. 
 232. 
 
 A receiver may collect an annuity 
 in another state. Frazier v. 
 Barnuni, 19 X. J. Eq. olO, 97 -rvm. 
 Dec. OG(J. 
 
 Page 305, sec. 190. — Partnership; power to appoint receiver. 
 
 The power under Tex. Rev. Stat. 
 1895, art. 1465, to appoint receivers 
 in actions between partners, should 
 not be exercised in the absence of an 
 emergency, without notice to the ad- 
 verse party. Webb V. Allen, 15 Tex. 
 Civ. App. 605. 
 
 The power to appoint receivers in 
 actions between partners, conferred 
 by Tex. Rev. Stat. 1895, art. 1465, is 
 to be exercised only in accord with 
 the general practice and principles 
 of equit}', in cases where some good 
 
 reason or necessity is shown for the 
 appointment. Ibid. 
 
 In an action between partners, 
 where the appointment of a receiver 
 is prayed for, the circuit court ac- 
 quires jurisdiction of the defendant 
 where the notice of motion is left 
 with the defendant's wife at his resi- 
 dence, and the defendant is not 
 shown to have been without the 
 state, — especially when he appears 
 bv counsel and resists the motion. 
 Allen V. Cooley, 53 S. C. 414. 
 
 Page 306, sec. 191. — When appointed. 
 
 Shackelford v. Shackelford, 32 
 Gratt. 481, 510, 514; Shulte v. 
 Hoffman, 18 Tex. 678; Maker v. 
 Bull, 44 111. 97. 
 
 The executors of a deceased part- 
 ner have the right to have a receiver 
 appointed. Davis v. Amer, 3 Drew. 
 64. 
 
 A receiver is properly appointed 
 of goods belonging to a firm on which 
 thei"e are three mortgages, while 
 several unsecured creditors are in- 
 terested and the partners are unable 
 to agree and have applied for a dis- 
 solution of the partnership. Rolfe 
 v. Burnham, 110 IMich. 060. 
 
 A receiver of uncollected accounts 
 due in a joint enterprise was ap- 
 pointed. Candler v. Candler, Jac. 
 225. 
 
 To entitle a partner who has left 
 assets with a copartner for the pay- 
 ment of firm debts which the latter 
 assumed, to the appointment of a re- 
 ceiver to prevent waste and misap- 
 plication, it need not be shown that 
 some partnership creditor has at- 
 tempted or is about to attempt to 
 subject the plaintiff to liability. 
 Allen V. Cooley, 53 S. C. 414. 
 
 A receiver of the property of an al- 
 
 leged partnership will be appointed, 
 although the existence of the part- 
 nership is denied by the defendant, 
 when the court is satisfied from the 
 evidence in support of the applica- 
 tion that a partnership really ex- 
 isted, Leeds v. Toicnsend, 74 111. 
 App. 444. 
 
 Insolvency. 
 
 On insolvency of a firm one who 
 has supplied goods may have a re- 
 ceiver wlien the property sold is 
 about to be turned over to a new con- 
 cern. Ifite Natural Gas Co.'s Ap- 
 peal, lis Pa. 436. 
 
 A member of a partnership may 
 maintain an action to place the af- 
 fairs of the concern in the hands of 
 a receiver, when the partnership has 
 become insolvent and other m'embers 
 of the firm are charged with fraud- 
 ulent misapplication and improper 
 conversion and waste of assets of the 
 ])artnership. Watson v. Bettman, 
 88 Fed. Rep. 825. 
 
 For fraiid of one partner. 
 
 A court will appoint a receiver for 
 property of a partnership, where 
 some of the members are guilty of 
 
 91
 
 193 
 
 KECEIVERSHIPS— SUPPLEMENT. 
 
 a fraudulent misapplication of 
 revenues, and there is inability to 
 discharge heavy claims against the 
 partnership and judgments against 
 its members, while irreconcilable dif- 
 ferences exist between the members 
 as to the management of the jjrop- 
 erty. Watson v. Bettman, 88 Fed. 
 Rep. 825. 
 
 Misappropriation of firm property. 
 
 Misappropriation of partnership 
 property justifies the appointment of 
 a receiver. Coddington v. Tappan, 
 26 N. J. Eq. 141. 
 
 Assignment by each partner. 
 
 When each partner undertakes to 
 make an assignment to different as- 
 signees a receiver will be appointed. 
 Fox V. Curtis, 176 Pa. 52. 
 
 Danger of loss. 
 
 A receiver of a partnership will be 
 appointed when there is danger of 
 ultimate loss. Wellman v. Barker, 
 3 Or. 253. 
 
 Conditional interest. 
 
 A conditional interest in a part- 
 nership is suflicient cause for grant- 
 ing a receiver. Taylor v. Bliley, 86 
 Ga. 154. 
 
 Death of partner. 
 
 A receiver of partnership property 
 is properly appointed after the death 
 
 of one of the partners, where the sur- 
 viving partner has given the admin- 
 istratrix of the deceased partner 
 notes for the share of the deceased 
 partner which he fails to pay, and 
 conducts the business in such man- 
 ner that the property is greatly de- 
 preciated in value ; but such receiver 
 should not be authorized to take 
 possession of the individual property 
 of the surviving partner. Adams v. 
 Hannah, 1)7 Ga. 515. 
 
 Partnership dissolved. 
 
 A receiver of a partnership is 
 properly appointed during the pend- 
 ency of an action for the settlement 
 of the partnership affairs, where the 
 partnership has expired by its own 
 limitation, and the partners do not 
 desire to continue the business, and 
 representatives of five sixths of the 
 interest therein request such ap- 
 pointment. Witherhee v. Wither- 
 hee, 17 App. Div. 181. 
 
 Exclusion of partner. 
 
 A receiver will be appointed when 
 there is a refusal to allow a partner 
 to participate. Wolbert v. Harris, 
 7 N. J. Eq. 605. 
 
 The exclusion of one partner from 
 his full share in the affairs of the 
 partnership is ground for the ap- 
 pointment of a receiver for the part- 
 nership property. Einstein v. 
 SchneUy, 89 Fed. Rep. 540. 
 
 Page 308, sec. 192. — When not appointed. 
 
 Tlie usual rule is not to appoint 
 a temporary receiver of a partner- 
 ship the existence of which is de- 
 nied, until the question of partner- 
 ship vel non is determined. Guild 
 v. Meyer, 56 N. J. Eq. 183. 
 
 A United States circuit court will 
 not appoint a person receiver of a 
 partnership concern who resides out 
 of its jurisdiction in a state where 
 none of the partnership assets are 
 located. Watson v. Bettman, 88 Fed. 
 Rep. 825. 
 
 A plaintiff is not entitled to have 
 a receiver appointed for a partner- 
 ship of which he is not a member or 
 creditor, nor to an account based on 
 92 
 
 its receipts and expenditures. 
 Gtoinn v. Lee, 6 Pa. Super. Ct. 646, 
 42 W. N. C. 124. 
 
 A person will not be appointed as 
 receiver of the affairs of a partner- 
 ship, who is interested in judgments 
 against its property, and is con- 
 nected by marriage with parties se- 
 cured by a deed of assignment for 
 the benefit of its creditors, and who 
 is charged with cognizance of the 
 fraudulent misapplication of assets 
 by members of the partnership. 
 Watson V. Bettman, 88 Fed. Rep. 
 825. 
 
 A receiver of partnership property 
 should not be appointed because of
 
 RECEIVERSHIP OF PARTNERSHIPS. 
 
 209 
 
 the objection of complainants, pend- 
 ing a suit by the surviving partner 
 against the representative of a de- 
 ceased partner for an accounting 
 and a sale of the property with per- 
 mission to the complainants to pur- 
 chase to enable them to continue the 
 business in their own interests, 
 where the complainants appear to be 
 abundantly responsible and able to 
 do justice on a final accounting, and 
 the appointment of a receiver would 
 be detrimental to or destructive of 
 the business. Comstock v. McDon- 
 ald, 113 Mich. C2G. 
 
 The court will not appoint a re- 
 ceiver of the assets of a firm prior to 
 the expiration of the partnership 
 term, except for the purpose of the 
 preservation of the assets in the face 
 of a real danger of loss, although the 
 disagreements between the partners 
 are such as to justify the court in 
 decreeing a dissolution. Wanvick 
 V. Stockton, 55 N. J. Eq. 61. 
 
 A receiver will not be appointed 
 when the only question is whether a 
 partnership has been dissolved. Fair- 
 hum V. Pearson, 2 Macn. & G. 144. 
 
 In an action to dissolve a partner- 
 ship, where it is not alleged that the 
 defendant is insolvent, and the an- 
 swer directly alleges solvency, a re- 
 ceiver will not be appointed. Wales 
 V. Dennis, 9 Wash. 308. 
 
 A receiver of partnership property 
 cannot be appointed where all the 
 partnership property has been sold 
 under a chattel mortgage, on an 
 agreement that upon any sale by the 
 mortgagee, who was the purchaser, 
 the residue above the mortgage debt 
 should belong to the partners, and 
 such mortgagee sells the property to 
 one of the partners for not more than 
 the amount of the debt, even though 
 
 the latter may sell it for an amount 
 in excess of. the debt. Davis v. Nis- 
 ivonger, 145 Ind. 426. 
 
 Question of damage. 
 A receiver will not be appointed 
 over a question of damage. There 
 must be an account to be adjusted. 
 Morrison v. Van Benthuysen, 103 
 N. Y. 675. 
 
 Dissolution by consent. 
 
 Where a partnership is dissolved 
 by mutual consent a court of chan- 
 cery will not place it in the hands of 
 a receiver. Cox v. Peters, 13 N. J. 
 Eq. 39. 
 
 A partner who, upon voluntary 
 dissolution of a firm, accepts a per- 
 sonal covenant of his copartner to 
 pay its liabilities and account to him 
 for his interest in the assets, is not 
 entitled, in an action for an account- 
 ing and the recovery of the amount 
 the copartner agreed to pay him, to 
 the appointment of a receiver of the 
 property. Alcott v. Vultee, 33 App. 
 Div. 245. 
 
 Mere delay. 
 Mere delay on the part of surviv- 
 ing partners will not justify the ap- 
 pointment of a receiver. Collins v. 
 Young, 28 Eng. L. & Eq. 14. 
 
 Abandonment. 
 A partner who abandons the part- 
 nership enterprise is not entitled to 
 the appointment of a receiver and an 
 injunction against the collection or 
 receiving of partnership debts or 
 moneys, where his interest has been 
 sold under execution against the firm 
 to a third person, and the business 
 has been carried on from that time 
 under a new firm name. Yoos v. 
 Doyle, 4 Lack. L. News, 128. 
 
 Page 336, sec. 209. — Receiver's power and duty. 
 
 To set aside transfer; distribution. 
 
 A receiver appointed in supple- 
 mentary proceedings against a part- 
 nership, who brings an action to set 
 aside a transfer by the partnership 
 when insolvent with intent to pre- 
 fer certain creditors, in violation of 
 1 N. Y. Rev. Stat. p. 760, § 20, is not 
 
 entitled to all the proceeds of the 
 property so transferred, without re- 
 gard to its amount, but only to a 
 sufficient amount to pay the judg- 
 ments upon which he was appointed 
 receiver and the expenses of the re- 
 ceivership. Stiefel v. Berlin, 28 App. 
 Div. 103. 
 
 98
 
 § 210 
 
 RECEIVERSHIPS— SUPPLEMENT. 
 
 Over funds deposited before appoint- 
 men t. 
 
 A receiver of a partnership ap- 
 pointed on the same day that a bank 
 l)ahiiK'e in tlie name of the firm was 
 appropriated by the bank, under an 
 agreement with the depositor in pay- 
 ment of sums due it, is not entitled 
 to the fund as against the bank, un- 
 less it appears that he was appointed 
 before the account was closed. Lon- 
 don £ River Plate Bank v. Hanover 
 Nat. Bank, 3G App, Div. 487. 
 
 To prosecute and defend. 
 
 A receiver of partnership assets 
 should not be authorized in advance 
 to prosecute and defend without fur- 
 ther order of the court any actions 
 brought by or against the partners 
 pertaining to the partnership busi- 
 ness. WitJicrbee v. Witherbee, 17 
 App. Div. 181. 
 
 To prevent levy of attachment. 
 
 A receiver appointed in good faith 
 to close up the business of a partner- 
 ship and distribute its assets pro 
 rata among its creditors will not be 
 required to permit a levy on the 
 partnership property of a writ of at- 
 tachment by a firm creditor issued 
 before the proceedings for the dis- 
 solution of the partnership were 
 commenced. Myers v. Myers, 15 App. 
 Div. 448, Affirming 18 Misc. 663. 
 
 To permit levy of execution. 
 
 The court appointing a receiver of 
 a solvent firm pending an action for 
 dissolution should, upon an applica- 
 tion therefor, though not in the ac- 
 tion for dissolution and not made 
 upon notice to the partners, permit 
 the levy of an execution upon the as- 
 sets of the firm in his hands under a 
 judgment against the partners. Re 
 Thompson, 10 App. Div. 40. 
 
 To sell property. 
 
 The jurisdiction of a court of 
 .equity in an action to wind up a 
 partnership is not local merely, but 
 extends so far as to authorize the ap- 
 pointment of a receiver to sell real 
 property constituting a part of the 
 partnership assets, even tlioiigh it 
 may be situated in another state. 
 Dunlap v. Byers, 110 Mich. 109. 
 
 To question judgments. 
 
 A receiver in a suit between part- 
 ners for dissolution cannot question 
 judgments confessed by the firm to 
 give preferences. Weber v. Weber, 90 
 Wis. 467. 
 
 To recover money or property. 
 
 The receiver of a partnership may 
 recover from plaintiff collections 
 made just prior to the application 
 for the appointment. Murphy v. 
 DuBerg, 11 Abb. N. C. 112. 
 
 A receiver of partnership assets, 
 appointed in a suit for an account- 
 ing between the partners, has no au- 
 thority to compel one of the parties 
 to regain and turn over to him prop- 
 erty which has passed out of his 
 hands long before. Ferguson v. 
 Bruckman, 23 App. Div. 182. 
 
 To sell manufactured articles. 
 
 The receiver of a partnership on 
 a bill for dissolution has power to 
 sell manufactured articles on hand. 
 Montross v. 3Iabie, 30 Fed. Pvcp. 234. 
 
 Whom the receiver represents. 
 
 A receiver of a partnership repre- 
 sents, not onlj'^ the members of the 
 firm, but also all the creditors, in an 
 action brought by him. Lees v. Dob- 
 son, 26 App. Div. 624. 
 
 A partnership receiver does not 
 represent creditors to such extent as 
 to attack a chattel mortgage given 
 by the firm. Walsh v. >S7. Paul 
 School Funiture Co. 60 Minn. 397. 
 
 Page 338, sec. 210. — Effect of appointment. 
 
 The appointment of a temporary 
 receiver in an action for the dissolu- 
 tion of an insolvent partnership and 
 the appointment of a receiver puts 
 94 
 
 the firm assets under the control of 
 the court for pro rata distribution 
 among the general creditors, — at 
 least where the insolvencv of the
 
 RECEIVERSHIP OF CORPORATIONS. 
 
 ?, 2U 
 
 firm is sufficiently set up in the 
 pleadings. Myers v. Myers, 18 Misc. 
 G63, Affirmed in 15 App. Div. 448. 
 
 No partnership between two rail- 
 road companies exists either between 
 the parties or as to third persons, be- 
 cause the receiver of one of the com- 
 panies operates both roads jointly, 
 and part of the gross receipts is 
 paid to the other company. Hous- 
 ton t£ T. C. R. Co. V. McFadden, 91 
 Tex. 194, Affirming in Part and Re- 
 versing in Part 40 S. W. 21G. 
 
 In a suit for dissolution of a part- 
 nership, in which a receiver has been 
 appointed, the court may order a sale 
 of the property where the partner- 
 ship is insolvent and the business is 
 being carried on at a loss. Wulff v. 
 San Joaquin County Super Ct. 110 
 Cal. 215. 
 
 An order appointing a receiver of 
 firm assets is an equitable assign- 
 ment for the benetit of the firm 
 creditors. Re Hamilton, 26 Or. 579. 
 
 The appointment of a receiver to 
 take charge of the assets of a part- 
 nership at the instance of a creditor 
 who attached the same for a debt of 
 tne firm does not prevent the issu- 
 ance of another order of attachment 
 without a new affidavit or bond, to 
 
 another county, against land belong- 
 ing to one of the partners. Runner 
 V. Scott, 150 Ind. 441. 
 
 A creditor of a limited partner- 
 ship association of which a receiver 
 has been appointed is not thereafter 
 entitled to issue execution on his 
 judgment against subscribers to 
 stock of the associa-tion whose sub- 
 scriptions are not paid up. Rouse 
 V. Detroit Cycle Co. Ill Mich. 251, 
 38 L. R. A. 794. 
 
 A partner's book accounts or cash 
 on hand are assets and property of 
 the partnership, within the meaning 
 of a bond given by him for the pur- 
 pose of recovering possession of the 
 jjartnership property from a receiver, 
 conditioned upon his accounting for 
 all the assets and property of the 
 partnership then in his possession 
 or under his control, or which might 
 thereafter come into his possession, 
 as ascertained by the court. Larsen 
 y. Winder, 20 Wash. 419. 
 
 A receivership in an action to dis- 
 solve a partnership will be set aside 
 as void as to the firm creditors, where 
 made with the intent to hinder, de- 
 lay, and defraud them. Metcalf v. 
 Moses, 35 App. Div. 59G. 
 
 Receivership of corporations. 
 
 Page 350, sec. 224. — Application; by whom made. 
 
 The application for the appoint- 
 ment of a receiver for a street-rail- 
 way company may be made by a 
 mortgagee for threatened loss of 
 franchises. Union Street R. Co. v. 
 Saginaw, 115 Mich. 300. 
 
 Application by a simple-contract 
 creditor, in the absence of statute, is 
 not sufficient. Smith-Dimmick Lum- 
 ber Co. V. Teaf/ue (Ala.) 24 So. 4. 
 
 Nor is the application by a credit- 
 or who has aocejjtcd a firm as payers, 
 instead of a coii)oration. Tenney v. 
 Ballard, W. & B. Hat Co. 17 Tex. 
 Civ. App. 144. 
 
 Appointment may be made on the 
 application of a lessor of a mining 
 company to whom there is a large in- 
 
 debtedness due. Kanawha Coal Co. 
 V. Ballard & W. Coal Co. 43 W. Va. 
 721. 
 
 And when the corporation is insol- 
 vent. Oleson v. Bank of Tacoma, 15 
 Wash. 148. 
 
 It may be made by a state's attor- 
 ney in proceedings statutory. State, 
 Amsierdamsch Trustees Kantoor, v. 
 Spokane County Super. Ct. 15 Wash. 
 (i08, 37 L. R. A. 111. 
 
 Or by one corporation for an ac- 
 counting by another, the property of 
 the latter being in the hands of trus- 
 tees. American Mortg. Co. v. Sid- 
 tray (III.) 12 Nat. Corp. Rep. 727, 
 28 Chicago Leg. News, .394. 
 
 Or l)y the state in the interest of 
 
 95
 
 § 234 
 
 RECEIVERSHIPS— SUPPLEMENT. 
 
 the public. East Line <£ R. River R. 
 Co. V. l^tate, 75 Tex. 434; Texas 
 Trunk R. Co. v. State, 83 Tex. 1. 
 
 Or on the application of an as- 
 signee of an insolvent foreign cor- 
 poration. Bitsirell V. Supreme Sit- 
 ting of 0. of 1. H. IGl Mass. 224, 23 
 L. R. A. 846. 
 
 Stockholders. 
 
 The appointment will not be made 
 on the application of a stockholder 
 whore no advantage would accrue to 
 him. but a loss to other stockholders 
 would ensue. Robison v. Cleveland 
 City R. Co. 7 Ohio Dec. 312. 
 
 Or on the application of a bond- 
 holder merely because of default in 
 the interest, where the management 
 is proper and the application of the 
 funds judicious. I'rust d Deposit 
 Co. V. Spartanburg Waterworks Co. 
 91 Fed. Rep. 324. 
 
 Or on the application of a stock- 
 holder merely because of the unlaw- 
 ful cancelation of preferred stock, 
 where injunction is available. Em- 
 pire Hotel Co. V. Main, 98 Ga. 176. 
 
 Or at the suit of a minority stock- 
 holder, when the directors are acting 
 honestly and within the scope of 
 their corporate powers. Hunt v. 
 American Grocery Co. 80 Fed. Rep. 
 70. 
 
 Or at the suit of stockholders, 
 when the appointment would hinder 
 and delay creditors. Bell v. Wood, 
 181 Pa. 175. 
 
 Nor is the application sufficient 
 when made by a stockholder on the 
 groimd of mismanagement and in- 
 solvency, unless some undoubted 
 right belonging to him is in danger. 
 Gracey v. Pittsburgh Trolley Co. 28 
 Pittsb. L. J. N. S. 109; People's In- 
 vestment Co. V. Craioford (Tex. Civ. 
 App.) 45 S. W. 738. 
 
 Or by a small stockholder on the 
 ground of a resolution conferring 
 on one stockholder the full manage- 
 ment, and mismanagement. Rumney 
 v. Detroit d M. Cattle Co. (Mich.) 
 5 Det. L. N. 96, 74 N. W. 1043. 
 
 Or by a stockholder alleging a dif- 
 ference of opinion between him and 
 the other stockholders, who are in 
 the majority, as to the management, 
 when there is no fraud appearing on 
 96 
 
 the part of the majority. Ponca 
 Mill Co. V. Mikcscll, 55 Neb. 98. 
 
 Nor by a stockholder who claims 
 to be a creditor on account of divi- 
 dends on his stock, which should 
 have accrued. Lcary v. Columbia 
 River d P. S. Nav. Co. 82 Fed. Rep. 
 775. 
 
 The appointment may be made on 
 the application of a stockholder on 
 the ground of mismanagement and 
 misappropriation. Stevens v. South 
 Ogden Land, Bldg. d Improv. Co. 14 
 Utah, 232. 
 
 Minority bondholders. 
 
 The minority mortgage bondhold- 
 ers of a street railroad are not en- 
 titled to a receiver on foreclosure, 
 notwithstanding interest due and 
 other liens, when the majority bond- 
 holders refuse to request the trustee 
 to foreclose, in the absence of fraud 
 and when the road is in the hands of 
 a receiver of another court, no prob- 
 able danger appearing. Lancaster 
 V. Asheville Street R. Co. 90 Fed. 
 Rep. 129. 
 
 Judgment creditors. 
 
 A receiver may be appointed at the 
 instance of a judgment creditor. 
 Monarch Co. v. Bank of Hardins- 
 burg, 20 Ky. L. Rep. 92; United 
 Glass Co. V. Vary, 152 N. Y. 121 ; 
 Drey fuss v. Gharleo Scale d Co. 18 
 Misc. 551. 
 
 The application may be made by a 
 resident creditor for the appointment 
 over a foreign corporation already in 
 the hands of a receiver at its domi- 
 cil. Seciirity Sav. d L. Asso. v. 
 Moore, 151 Ind. 174. 
 
 To justify the appointment on the 
 application of a creditor, it should 
 appear that he has a valid claim, 
 that there are assets applicable to 
 its payment, that he has exhausted 
 his legal remedies, and that there is 
 danger of loss. Falmouth Nat. Bank 
 V. Cape Cod Ship Canal Co. 166 Mass. 
 5.50. 
 
 Whenever a judgment creditor of 
 a railway company is unpaid the ap- 
 pointment of a receiver is a matter 
 of right; and the appointment is 
 "necessary" witMn the meaning of 
 the English railway companies act
 
 RECEIVERSHIP OF CORPORATIONS. 
 
 225 
 
 of 1867. Re Manchester d M. R. Co. 
 L. R. 14 Ch. Div. G45. 
 
 The appointment of a temporary 
 receiver of a corporation at the in- 
 stance of a judgment creditor un- 
 der Mo. Rev. Stat. 1889, §§ 2790- 
 2792, is justified upon a petition and 
 testimony showing that some of the 
 officers have appropriated the funds 
 to the amount of thousands of 
 dollars to their own use, and have 
 been guilty of other improper acts 
 calculated to defeat the plaintiff's 
 demand, and no contradictory 
 proof is submitted. Glover v. St. 
 Louis Mut. Bond Invest. Co. 138 
 Mo. 408. 
 
 Who appointed. 
 
 The principal manager of an in- 
 solvent corporation may be ap- 
 pointed receiver. Re Premier Cycle 
 Mfg. Co. 70 Conn. 473. But see, 
 contra, Middlesex County Freehold- 
 ers V. State Bank, 28 N. J. Eq. 166. 
 
 Extension of receivership. 
 
 A receivership over so much of a 
 line of railroad as has been com- 
 pleted may be extended over other 
 parts thereafter completed. Re 
 Southern R. Co. Ir. L. R. 5 Eq. 165. 
 
 A receiver of all the property of 
 
 a corporation of which a receiver has 
 already been appointed cannot be 
 appointed in an action to set aside 
 a transfer of property to such corpo- 
 ration by one against whom plaintiff 
 had recovered judgment, — especially 
 where it is not shown that the prop- 
 erty was transferred by such judg- 
 ment debtor. Schulze v. Sizer, 14 
 App. Div. 274. 
 
 The receiver appointed in an ac- 
 tion for dissolution of a corporation 
 should be appointed in an action to 
 foreclose a chattel mortgage by the 
 same corporation. Farmers' Loan 
 i& T. Co. V. Hotel Brunswick Co. 4Z 
 N. Y. Supp. 350. 
 
 Judgment required. 
 
 The appointment of a temporary 
 receiver does not obviate the neces- 
 sity of judgment against the corpo- 
 ration, and the return of an execu- 
 tion unsatisfied, in a proceeding to 
 enforce a stockholder's liability. 
 United States Glass Co. v. Levett, 
 24 Misc. 429. 
 
 A creditor may maintain a suit to 
 enforce unpaid subscriptions, not- 
 withstanding the pendency of a fore- 
 closure action wherein a receiver 
 has been appointed. Lea v. Iron 
 Belt Mercantile Co. (Ala.) 24 So. 28. 
 
 Page 355, sec. 225. — Grounds for appointment. 
 
 In Missouri, statute and extreme 
 necessity will justify appointment. 
 Ford V. Kansas City & I. Short Line 
 R. Co. 52 Mo. App. 439. 
 
 Disagreement between stockhold- 
 ers as to management is not always a 
 ground. Einstein v. Rosenfeld, 38 
 N. .J. Eq. 309. 
 
 Xonpayment of taxes, sale for 
 taxes, insolvency, and refusal of 
 trustees to act justify appointment 
 of railway receiver. Putnam v. 
 Jacksonville, L. & St. L. R. Co. 61 
 Fed. Rep. 440. 
 
 In ^lassachusetts, insolvency and 
 confusion of affairs are not suffi- 
 cient, as in such case the insolvent 
 law affords a complete remedy. Fal- 
 mouth Nat. Bank v. Cape Cod Ship 
 Canal Co. 166 Mass. 550. 
 
 Insolvency alone is not sufficient 
 
 if it appears that business is about 
 to be resumed with safety. Cook v. 
 East Trenton Pottery Co. 53 N. J. 
 Eq. 29. 
 
 But where insolvency is shown, 
 and the rights of creditors are en- 
 dangered, an appointment will be 
 made. Porter v. Industrial Infor- 
 mation Co. 5 Misc. 262. 
 
 In Illinois, to justify the appoint- 
 ment under § 25 of the incorporation 
 act, it must be shown that the sus- 
 pension of business is permanent, 
 and not such as arises from an 
 emergency. Brabrook Tailoring Co. 
 v. Bclding Bros. 40 ill. App. 326. 
 
 Tiie exclusion of bondholders from 
 participation in the management is 
 ground for. Benedict v. St. Joseph 
 d W. R. Co. 19 Fed. Rep. 173. 
 
 Interest due and unpaid, taxes 
 7 »7
 
 § 225 
 
 RECEIVERSHIPS— SUPPLEMENT. 
 
 due, and judgments with failure to 
 elect ollicers, are grounds for. Ralph 
 V. n'is/K-r, 100 Mich. 104. 
 
 Appointment will not be made, un- 
 der tlie Alabama statute, unless such 
 facts exist as call for the general ex- 
 ercise of chancery jurisdiction and 
 procedure. Wcatlicrly v. Capital 
 City Water Co. 115 Ala. 150. 
 
 A])pointment in Maryland is dis- 
 cretionary, and is made only where 
 there is fraud, spoliation, or immi- 
 nent danger of loss. Steinberger v. 
 Independent Loan d Sav. Asso. 84 
 Md. 625. 
 
 Insolvency must exist, and debt 
 must be reduced to a judgment. 
 Wallace v. ]'ierce-Wallacc Pub. Co. 
 101 Iowa, 313, 38 L. R. A. 122. 
 
 On the concurrence of the com- 
 pany and its execution creditors, a 
 receiver will be appointed to prevent 
 the jeopardizing of corporate assets 
 by sherilf sales. Line v. Carlisle 
 Mfg. Co. 5 Pa. Dist. R. 042. 
 
 In New York a receiver of the 
 property and effects of a foreign cor- 
 poration, to wind up its affairs, will 
 not be appointed with a view of 
 winding up, under § 1784 of the Code. 
 Drey fuss v. Charles Seale d Co. 18 
 Misc. 551. 
 
 An appointment will not be made 
 simply because there are unpaid 
 judgments, taxes, and indebtedness, 
 if it appears that the indebtedness 
 will be liquidated by the foi'bearance 
 of the principal creditors. Ft. 
 Wayne Electric Corp. v. Franklin 
 Electric Light Co. (N. J. Eq.) 40 
 Atl. 441. 
 
 The general allegation of expected 
 exposure if the corporation is not 
 wound up is not sufficient. It must 
 be shown that there is mismanage- 
 ment, improper application of funds, 
 or other acts of maladministration. 
 Mulqueeney v. Shaw, 50 La. Ann. 
 1000. 
 
 Disagreement as to the manage- 
 ment and conti'ol is not sufficient to 
 warrant the appointment of a re- 
 ceiver. Wallace v. Pierce-Wallace 
 Pub. Co. 101 Iowa, 313, 38 L. R. A. 
 122. 
 
 A court of equity may decree the 
 dissolution of an unincorporated vol- 
 untary association, and appoint a 
 receiver. Lafond v. Deems, 1 Abb. 
 98 
 
 N. C. 318; Hinckley v. Blethen, 78 
 Me. 221. 
 
 And so of a club. Re St. Jamea 
 Club, 7 Eng. L. & Eq. 140. 
 
 A corporation may be dissolved 
 and a receiver appointed where it 
 has misused its corporate authority. 
 Slate V. Cannon River Mfg. Asso. 07 
 Minn. 14. 
 
 Only by virtue of a statute can the 
 management of a business be taken 
 from a corporation. People, Port 
 Huron d G. R. Co., v. St. Clair Cir- 
 cuit Judge, 31 Mich. 456. 
 
 Appointment as a matter of 
 course follows a decree for dissolu- 
 tion. Tsiichols V. Perry Patent Arm 
 Co. 11 N. J. Eq. 126. 
 
 The appointment of a receiver of 
 a trading corporation is proper pend- 
 ing litigation over its conduct and 
 management, between the owners of 
 its stock, and where its affairs have 
 come to a deadlock. Sternberg v. 
 Wolff, 56 N. J. Eq. 389, 39 L. R. A. 
 702. 
 
 But the appointment can only be 
 made in a civil action. Clinch v. 
 South Side R. Co. 4 Thomp. & C. 224. 
 
 A receiver was properly appointed,, 
 and an injunction against disposi- 
 tion of property of a corporation 
 granted, where such corporation had 
 arranged with two of its principal 
 creditors for additional credit by 
 them, secured by its judgment notes, 
 and a majority of the directors of 
 such corporation were appointed by 
 such creditors, at the suit of other 
 creditors who, in ignorance of the 
 situation and while there was no ap- 
 parent change of management or 
 control of the business, gave credit 
 to such corporation for large sums 
 for which they received no security. 
 United Siates Rubber Co. v. Ameri- 
 can Oak Leather Co. 53 U. S. App. 
 444, 82 Fed. Rep. 248, 27 C. C. A. 118. 
 
 Under Kan. Civ. Code, § 254, a re- 
 ceiver may be appointed at the suit 
 of a stockholder, where the corporate 
 business has been mismanaged so 
 that it has become insolvent, and 
 where officers have conspired to di- 
 vert business to another, dissipate 
 its funds, and apply assets to the 
 benefit of officers. Re Lewis, 52 Kan. 
 060. 
 
 A receiver may be appointed of the
 
 RECEIVERSHIP OF CORPORATIONS. 
 
 S 226 
 
 property of a corporation which has 
 transferred all its property to a for- 
 eign corporation in consideration of 
 the latter's assumption of all its ob- 
 ligations and liabilities, for the en- 
 forcement of a judgment resisted by 
 both companies, where the domestic 
 corporation refuses to take any steps 
 to compel the foreign corporation to 
 perform its agreement to pay the li- 
 ability, and the companies are com- 
 bining and colluding to avoid the 
 judgment and defeat its payment. 
 Bates V. International Co. 84 Fed. 
 Rep. 518. 
 
 A receiver of building and loan as- 
 sociations may be appointed after ex- 
 piration of three years from the dis- 
 solution (provided for by statute), 
 if the application is made before such 
 expiration. Hatfield v. Cummings, 
 152 Ind. 280. 
 
 In determining whether a receiver 
 shall be appointed of a building as- 
 sociation, unpaid dues will be con- 
 sidered an asset of doubtful value 
 where the amount has been suffered 
 to reach undue proportions while the 
 association was financially em- 
 barrassed. Com., McCormick, v. 
 Pennsylvania Bldg. d L. Asso. 20 Pa. 
 Co. Ct. 589. 
 
 A receiver will be appointed of a 
 national building association which 
 has for several years been on the 
 verge of bankruptcy, has been care- 
 lessly managed, and whose expenses 
 have been out of all proper pro- 
 portion to the amount of business 
 transacted, and some of whose offi- 
 cers have preferred their own inter- 
 ests to those of the association. Ibid. 
 
 The auditor of public accounts, 
 after giving notice to a building and 
 loan association requesting it to cor- 
 rect certain illegal practices speci- 
 fied, and stating that the assets of 
 the association are insufficient to 
 justify a continuance of business, 
 may maintain a bill for the appoint- 
 ment of a receiver for such associa- 
 tion under the Illinois statute, al- 
 though the attorney general gives 
 his opinion that a certain by-law of 
 the association on which the auditor 
 based his conclusion as to the illegal 
 practice is valid. Illinois Bldg. <& 
 L. Asso. V. People, Gare, 173 111. 638. 
 
 A building and loan association 
 which has no creditors or liabilities, 
 except its liability to its stockhold- 
 ers on account of its stock, is not 
 "insolvent" within Minn. Gen. Stat. 
 1894, chap. 76, providing for the ap- 
 pointment of a receiver for corpora- 
 tions when they are insolvent, al- 
 though there is a deficiency in its 
 assets so that it cannot mature the 
 stock or pay back to stockholders the 
 actual money paid by them. Sjoberg 
 v. Security Sav. & L. Asso. (Minn.) 
 75 N. W. 1116. 
 
 A receiver of a building and loan 
 association will be appointed pen- 
 dente lite, where a void general as- 
 signment has been made by the di- 
 rectors without authority from the 
 stockholders, — especially where the 
 new board of directors has not been 
 lawfully elected. Powers v. Blue 
 Grass Bldg. & L. Asso. 86 Fed. Rep. 
 705. 
 
 Page 363, sec. 226. — When not appointed. 
 
 A receiver will not be appointed 
 over a corporation pending a writ of 
 error, where collusion is shown and 
 no effort has been made to procure 
 proper action by the directors. Beck- 
 er V. Hoke, 53 U. S. App. 306, 80 Fed. 
 Rep. 973, 20 C. C. A. 282. 
 
 And so where the directors are re- 
 liable and are closing up the busi- 
 ness. City Pottery Co. v. Yates, 37 
 N. J. Eq. 543. 
 
 Xor on the application of bond- 
 
 holders for one quarter of the mileage 
 the other bondholders of three quar- 
 ters of the mileage objecting. Mer- 
 riam v. St. Louis, C. G. & Ft. S. R. 
 Co. 130 Mo. 145. 
 
 Nor on the application of a cred- 
 itor who has been tendered the 
 amount due him. Miller v. Southern 
 Land & Lumber Co. 53 S. C. 364. 
 
 A receiver will not be appointed 
 for a guaranteeing corporation, 
 where there ia no lien and wiiore 
 
 9»
 
 §g 229, 230 
 
 RECEIVERSHIPS— SUPPLEMENT. 
 
 the principal debtor is solvent. Guil- 
 martin v. Middle Georgia d A. It. Co. 
 101 Ga. 5(55. 
 
 Nor on the application of creditors 
 where there is no insolvency and no 
 mismanagement or waste. Weath- 
 erly v. Capital City Water Co. 115 
 Ala. 15G. 
 
 Nor on the application of the in- 
 habitants of a city, to carry on the 
 business of a corporation, where the 
 the charter has been forfeited. Ibid. 
 
 Nor on the application of the at- 
 torney general, when receivers have 
 already been appointed in a proceed- 
 ing for voluntary dissolution. Peo- 
 ple V. Murray Hill Bank, 10 App. 
 Div. 328. 
 
 Nor when the charter provides an 
 adequate method of winding up the 
 
 affairs. Pringle v. Eltringham 
 Constr. Co. 49 La. Ann. 301. 
 
 A previous assignment by an in- 
 solvent corporation is no defense to 
 the appointment under the Texas 
 statute. Milam County Co-Op. Cot- 
 ton d M. Alliance v. Tennent-Strih- 
 ling Shoe Co. (Tex. Civ. App.) 40 S. 
 W. 331. 
 
 The owner of worthless stock in 
 ■ an insolvent corporation cannot ob- 
 tain an order to set aside an order of 
 appointment on the ground of col- 
 lusion between the plaintiff and the 
 officers and directors, in the original 
 cause of action. Darragh v. H. Wet- 
 ter Mfg. Co. 49 U. S. App. 1, 78 Fed. 
 Rep. 7, 23 C. C. A. 009, and see Bar- 
 ron V. Berry (111.) 16 Nat. Corp. 
 Rep. 783. 
 
 Page 371, sec. 229. — In foreclosure proceedings. 
 
 A receiver will not be appointed 
 in the foreclosure of a chattel mort- 
 gage, where the defendant is solvent. 
 Stihcell-Bierce cG Smith-Vaile Co. 
 V. Williainston Oil & Fertilizer Co. 
 80 Fed. Rep. 08. 
 
 Nor in a foreclosure proceeding 
 against a railroad company, where 
 it appears that prior to the execu- 
 tion of the mortgage the road had 
 been leased. Louisville & N. R. Co. 
 V. Eakin, 100 Ky. 745. 
 
 Page 371, sec. 230. — Effect of appointment. 
 
 As to corporate powers. 
 
 The closing of the doors of a na- 
 tional bank by the comptroller of the 
 currency on account of insolvency 
 and the appointment of a receiver, 
 and placing him in charge of its as- 
 sets to administer them for the ben- 
 efit of creditors, do not extinguish 
 the corporation or work a forfeiture 
 of it charter. Hutchison v. Crutch- 
 er, 98 Tenn. 421, 37 L. R. A. 89, cit- 
 ing First Nat. Bank v. National 
 Pahquioque Bank, 14 Wall. 383, 20 
 L. ed. 840 ; Central Nat. Bank v. Con- 
 necticut Mut. L. Ins. Co. 104 U. S. 
 54, 26 L. ed. 693 ; Rosenblatt v. John- 
 ston, 104 U. S. 462, 26 L. ed. 832; 
 Chemical Nat. Bank v. Hartford De- 
 posit Co. 161 U. S. 1, 40 L. ed. 595. 
 
 The appointment of a receiver so 
 far dissolves a corporation that 
 thereafter no duty devolves on the 
 trustees to make an annual re- 
 100 
 
 port. Huguenot Nat. Bank v. Stud- 
 tcell, 74 N. Y. 621. 
 
 The appointment of a receiver does 
 not abate a suit by the corporation. 
 People, Illinois Midland R. Co., v. 
 Barnett Supervisors, 91 111. 422; 
 People V. Troy Steel d I. Co. 82 Hun, 
 303 ; Hasselman v. Japanese Develop- 
 ment Co. 2 Ind. App. 180. 
 
 Nor does dissolution abate pro- 
 ceedings pending. Hayes v. Lycom- 
 ing F. Ins. Co. 99 Pa. 621. 
 
 The appointment does not enlarge 
 or restrict corporate powers and 
 duties. The receiver is bound by the 
 charter. People v. Troy Steel & 
 I. Co. 82 Hun, 303; Safford v. Peo- 
 ple, 85 111. 558. 
 
 And does not suspend the right of 
 a creditor to sue stockholders. Pat- 
 terson V. Stewart, 41 Minn. 84, 4 L. 
 R. A. 745. 
 
 Under a corporation created in 
 Connecticut, domiciled in the United
 
 RECEIVERSHIP OF CORPORATIONS. 
 
 § 231 
 
 States, debentures were secured on 
 land in Mexico, which land became 
 vested in an English company sub- 
 ject to an express obligation to pay 
 off such charges from the sale of the 
 land. It was held that the English 
 company was responsible to the de- 
 benture holders for the proceeds 
 coming into their hands. Mercan- 
 tile Invest. & General Trust Co. v. 
 River Plate Trust Loan, d Agency 
 Co. [1892] 2 Ch. 303. 
 
 After the appointment, directors 
 cannot ratify a transfer of property 
 made without authority. Linville v. 
 Eaddcn, 88 Md. 594, 43 L. R. A. 222. 
 
 The appointment does not affect 
 legal proceedings pending in other 
 states. Ward v. Connecticut Pipe 
 Mfg. Co. 71 Conn. 345, 42 L. R. A. 
 706. 
 
 The remedy for failure of a corpo- 
 ration to fulfil its contract because 
 it is placed in the hands of a receiver 
 is to file an intervention in the suit 
 in which the receiver is appointed. 
 Malcomson v. Wappoo Mills, 88 Fed. 
 Rep. 680. 
 
 Consenting to the appointment of 
 a receiver does not prevent the cor- 
 poration from objecting to an order 
 
 for additional power to the receiver. 
 State v. German Sav. Bank, 50 Neb. 
 734. 
 
 The nonperformance of a contract 
 cannot be recovered for if it was oc- 
 casioned by the appointment of a re- 
 ceiver and injunction against the 
 further transaction of business. Mal- 
 colmson v. Wappoo Mills, 88 Fed. 
 Rep. 680. 
 
 Preferences of employees for labor. 
 
 The preference over bondholders of 
 an employee on a street railroad, for 
 services as mechanic, etc., rendered 
 within six months next preceding the 
 appointment, does not arise in the 
 absence of evidence showing a diver- 
 sion of gross earnings, or an inuring 
 benefit to the bondholders from such 
 service in enhanced values. Picker- 
 ing V. Townsend (Ala.) 23 So. 703. 
 
 Lien of bank on note deposited. 
 
 The lien of a bank upon a note de- 
 posited for collection, as against a 
 receiver, is limited to indebtedness 
 then existing, and not that which 
 may become due. Smith v. Eighth 
 Ward Bank, 31 App. Div. 7. 
 
 Page 375, sec. 231. — Receiver's relationship. 
 
 A receiver of an insolvent bank 
 has no greater rights than the bank 
 in a fund against which the bank 
 had given a check which constituted 
 an equitable transfer or appropria- 
 tion of the fund. Fourth Street 
 Bank v. Yardley, 165 U. S. 634, 41 
 L. ed. 855. 
 
 A receiver appointed to operate a 
 railroad is legally the agent of the 
 company though under the direction 
 of the court. Safford v. People, 85 
 111. 558. 
 
 Presentment and demand of pay- 
 ment made on a receiver pendente 
 lite of an insolvent bank, and notice 
 of nonpayment by him, are insuffi- 
 cient to bind an indorser of a nego- 
 tiable certificate of deposit issued 
 by the bank before its insolvency. 
 Jackson v. Mclnnis (Or.) 43 L. R. A. 
 128. 
 
 A receiver of a railroad is an of- 
 ficer of the court. He is a trustee for 
 
 bondholders, etc. The books of a re- 
 ceiver can be examined on petition. 
 The examination must not interfere 
 with the business of the corporation. 
 Folder's Petition, 9 Abb. N. C. 268. 
 
 Stockholders may be permitted 
 on motion to examine books in the 
 hands of the receiver, and take ex- 
 tracts therefrom. People v. Cata- 
 ract Bank, 5 Misc. 14. 
 
 Plaintiff as receiver not required 
 to produce books for tiie inspection 
 of defendant before decree. Maund 
 V. Allies, 4 Myl. & C. 503. 
 
 The opposite party in a suit 
 against a railroad company is enti- 
 tled to the production of the hitter's 
 books, although it is in the hands of 
 a receiver who is entitled to the cus- 
 tody of such books, if he has not ac- 
 tually taken possession of them. 
 Maxirell v. Manitoba <G N. W. li. Co. 
 11 Manitoba L. Rep. 149. 
 
 101
 
 § 333 RECEIVERSHIPS— SUPPlMeNT. 
 
 Page 380, sec. 233. — Receiver's powers and duties. 
 
 Persons dealing with a receiver 
 must take notice that his powers are 
 limited and he is constantly subject 
 to the orders of the court. Brunner 
 V. Central Glass Co. 18 Ind. App. 
 174. 
 
 A receiver does not represent a 
 policy holder in a mutual fire insur- 
 ance company — when. Wilhclm v. 
 Parker, 17 Ohio C. C. 234. 
 
 He has power to intervene in an 
 attachment suit instituted prior to 
 his appointment. Andrews v. Steele 
 City Bank, 57 Neb. 173. 
 
 And may institute a suit in equity 
 to have the bonds issued by the cor- 
 poration declared void. See v. Hep- 
 penhdnter, 55 N. J. Kq. 240. 
 
 His power is coextensive only with 
 the jurisdiction of the court appoint- 
 ing. Security Sav. d L. Asso. v. 
 Moore, 151 Ind. 174. 
 
 The duty of a receiver under N. Y. 
 act of 1849 to declare a dividend in 
 180 days after his appointment — 
 declared in Re Hollister Bank, 
 23 X. Y. 508. 
 
 The procurement of an order 
 validating the acts of a receiver of 
 an insolvent raili'oad company ap- 
 pointed by a Federal court, and au- 
 thorizing the issuance of certificates 
 by such receiver for the expenses of 
 the receivership, is not within the 
 scope of the powers conferred on a 
 receiver of such company appointed 
 by a state court after the appoint- 
 ment of the former receiver has been 
 held illegal for want of jurisdiction, 
 where the order appointing the state 
 court receiver empowers him to take 
 possession of the railroad and its 
 property and its toll and income, 
 and continue and preserve the same, 
 and employ such necessary agents 
 for the purpose as may be necessary, 
 and contract as receiver for the pay- 
 ment of reasonable sums necessary 
 to defray expenses of such services. 
 
 Crosby v. Morristoicn & C. G. R. Co. 
 (Tenn. Ch.) 42 S. W. 507. 
 
 The abatement of proceedings in 
 which receivers were appointed does 
 not affect assets already received by 
 them, but only affects assets not re- 
 duced to possession. Re Murray 
 Hill Bank, 14 App. Div. 318. 
 
 The assets of a corporation in the 
 hands of a receiver are not subject 
 to an equitable trust for the payment 
 of dividends declared by the court in 
 a former suit subsequently dis- 
 missed, and other dividends declared 
 by the corporation itself after the 
 termination of such suit, which were 
 not paid, where the funds for their 
 payment were unlawfully and 
 wrongfully diverted by the corpora- 
 tion, and no part thereof, or the pro- 
 ceeds thereof, are in the hands of the 
 receiver. Rockwell v. Portland Sav. 
 Bank, 31 Or. 431. 
 
 The execution by a corporation of 
 an assignment for creditors, even 
 though invalid because the general 
 manager of the corporation by whom 
 it was made acted without authority, 
 constitutes an overt act of insolvency 
 where the directors and stockholders 
 do not object, which will render the 
 assets of the corporation a trust 
 fund for pro rata distribution under 
 the Tennessee statute; and a receiv- 
 er of the corporation subsequently 
 appointed, to whom the assignee 
 transfers by consent all his rights, 
 whether treated as successor of the 
 assignee or not, is vested with all the 
 interest of such assignee, and it be- 
 comes his duty to recover for prop- 
 erty sold by the assignee. McClung 
 V. Emhreeville Freehold, Land, Iron 
 & R. Co. (Tenn. Ch.) 42 S. W. 53. 
 
 The receiver of a building and 
 loan association may foreclose a 
 mortgage due the association though 
 the proceeds are not required to pay 
 its debts. Hatfield v. Cumtnings, 
 152 Ind. 280. 
 
 Page 390. — (m) Power to make assessments. 
 
 The court has the right to direct 
 a receiver to make a call upon sub- 
 scribers to pay up unpaid subscrip- 
 102 
 
 tions. Barkaloio v. Totten, 53 N. J. 
 Eq. 573. 
 
 A receiver in making an assess-
 
 RECEI ERSHIP OF CORPORATIONS. 
 
 234 
 
 nient acts in a ministerial capacity, 
 and not judicial. Jackson v. Van 
 myke, 44 Barb. 116, note a. 
 
 Suit by a receiver to collect assess- 
 ment. Boicen v. Kuehn, 79 Wis. 53 ; 
 Pickersgill v. Myers, 99 Pa. 602. 
 
 A judgment recovered by the re- 
 ceiver of an insolvent corporation 
 against each of the corporators, de- 
 termining the amount for which each 
 is liable to creditors, does not au- 
 thorize him to collect any more from 
 each corporator than the demands of 
 the creditors and the cost of the re- 
 ceivership proceedings may require. 
 Cole V. Adams { Tex. Civ. App. ) 1 J. 
 A. 319, 49 S. W. 1052. 
 
 A receiver may be appointed to 
 make an assessment against stock- 
 holders. Ford V. Kansas City & I. 
 Short Line R. Co. 52 Mo. App. 439. 
 
 In addition to liability on assess- 
 ment, a member is liable for a just 
 proportion of losses while his policy 
 is in force. Sands v. Hill, 42 Barb. 
 <351. 
 
 A court through a receiver has no 
 more power to make assessments on 
 corporate stock than the directors. 
 Great Western Teleg. Co. v. Loewen- 
 thal, 154 111. 261. 
 
 An assessment by the receiver on 
 each premium note for the full 
 amount thereof is good. Sands v. 
 Sanders, 28 N. Y. 416. 
 
 The making of an assessment upon 
 members of a mutual benefit associa- 
 
 tion does not make them debtors to 
 the association, or entitle either it 
 or its receiver to enforce payment 
 thereof by suit. Lehman v. Clark, 
 174 111. 279, 43 L. R. A. 648, Revers- 
 ing 71 111. App. 366. 
 
 The cancelation of a policy in a 
 mutual insurance company, and the 
 return of a premium note to the in- 
 sured, terminate the insured's mem- 
 bership and relieve him of further 
 liability as to losses already ac- 
 crued; and he is not bound by a de- 
 cree to which he was not a party, 
 rendered at the instance of a receiver 
 of the company, making an assess- 
 ment upon the premium notes to pay 
 losses. Langworthy v. Saxony Mills, 
 72 Mo. App. 363. 
 
 A second assessment may include 
 the first. Sands v. Sweet, 44 Barb. 
 108, note a 116. 
 
 The New York act of 1852, giving 
 receivers power to make assessments 
 upon premium notes, is constitution- 
 al. Hyatt V. McMahon, 25 Barb. 
 457. 
 
 A receiver may exercise the power 
 of the board of directors in making 
 assessments, if it fails to do so. 
 Maxwell v. Akin, 89 Fed. Rep. 178; 
 People V. United States Mut. Acci. 
 Asso. 10 App. Div. 319. 
 
 In making assessments, a receiver 
 must make allowance for such as are 
 uncollectible. Insurance Comrs. v. 
 Commercial Mut. Ins. Co. 20 R. I. 7. 
 
 Page 391, sec. 234. — Liability of receiver. 
 
 The receiver and manager of a cor- 
 poration may contract for supplies, 
 but not for ten months in advance 
 without the sanction of the court. 
 Brunner v. Central Glass Co. 18 Ind. 
 App. 174. 
 
 Supplies furnished to an iron com- 
 pany prior to the appointment are 
 not entitled to preference, as in the 
 case of a railroad, where the public 
 is interested. Manhattan Trust Co. 
 v. Seattle Coal £ I. Co. 19 Wash. 951. 
 
 A fund in a bank, to be delivered 
 to the person entitled, becomes a 
 trust fund in the hands of a receiver. 
 Capital 'Sat. Bank v. Coldwater Nat. 
 Bank, 49 Neb. 786. 
 
 A cash deposit fraudulently re- 
 
 ceived by an insolvent bank after its 
 officers knew of its insolvency can- 
 not be reclaimed from its receiver, 
 when it went into the general funds 
 of the bank and cannot be identified 
 and separated from other funds on 
 hand when tlie receiver took cliarge. 
 Bruner v. First Nat. Bank, 97 Tenn. 
 540, 34 L. R. A. 532. 
 
 The funds of an insolvent bank in 
 the hands of a receiver are not im- 
 pressed with a trust for the amount 
 of a draft collected by it for the liohl- 
 er, in the absence of any agreement 
 that the holder should receive the 
 specific money collected by the bank, 
 although he never specially agreed. 
 
 103
 
 ^§ 236, 241 
 
 KECEIVERSHIPS— SUPPLEMENT. 
 
 to deposit the proceeds with the bank. 
 HaUam v. TiJlinghast, 19 Wash. 20. 
 The funds in the hands of the re- 
 ceiver of a mutual life association 
 are not impressed with a trust for 
 the payment of a death claim — when. 
 
 People, Atty. Gen., v. Life & Reserve 
 Asso. 150 N. Y. 94. 
 
 A receiver is liable for negligence 
 resulting in a collision. Central 
 Trust Co. V. Colorado M. R. Co. 1 
 Denver Leg. Adv. 496. 
 
 Page 402, sec. 236. — Suits by receiver to recover stock subscription. 
 
 Tlie receiver of an insolvent cor- 
 poration hi\^ the power to recover 
 from subscribers to its stock unpaid 
 subscriptions. Russell v. Easter- 
 Irook, 71 Conn. 50; Watterson v. 
 Masterson, 15 Wash. 511; State v. 
 German Sav. Bank, 50 Neb. 734. 
 
 In a suit to recover against the 
 stockholders a judgment against the 
 corporation is not a prerequisite in 
 Minnesota. Patterson v. Stewart, 
 41 Minn. 84, 4 L. R. A. 745 ; but see 
 United States Glass Co. v. Levett, 
 24 Misc. 429. 
 
 Creditors of an insolvent corpora- 
 tion of which a receiver has been ap- 
 pointed may recover in an action 
 against the stockholders under Minn. 
 Gen. Stat. 1894, chap. 76, to enforce 
 the double liability of the stockhold- 
 ers, not only their debts and the stat- 
 
 utory costs and disbursements of the 
 action, but also the receiver's ex- 
 penses to an amount not exceeding 
 such statutory liability. Harper v. 
 Carroll, 66 Minn. 487, Modified on 
 Rehearing in 69 N. W. 1069. 
 
 Money paid by directors to a re- 
 ceiver to make good an impairment 
 of capital that should be found to ex- 
 ist, in excess of the actual impair- 
 ment, is properly applicable on a 
 subsequent impairment under N. Y. 
 Laws 1892, chap. 688. Dyknian v. 
 Keeney, 10 App. Div. 610. 
 
 Illegality in the subscription can- 
 not be set up and a receiver ap- 
 pointed to the prejudice of other 
 stockholders, where benefits have 
 been accepted growing out of the 
 subscription. Mulqueeney v. Shaw, 
 50 La. Ann. 1060. 
 
 Page 415, sec. 241. — Not subject to collateral attack. 
 
 The appointment of a receiver of a 
 corporation cannot be collaterally 
 attacked. Hatfield v. Cummings, 
 152 Ind. 280. 
 
 The acts of a receiver cannot be 
 questioned in collateral proceedings. 
 Bradly v. Marine & River Phosphate 
 Min. & Mfg. Co. 3 Hughes, 26. 
 
 Page 451. — Receivership of railways. 
 
 Application of income. 
 
 The income of a railroad while in 
 the hands of a receiver appointed at 
 the petition of the mortgagees will be 
 applied upon the mortgage, rather 
 than to the general judgment credit- 
 ors of the road, although the mortgage 
 does not expressly cover income, if 
 it authorizes the mortgagee upon de- 
 fault in payment of interest to take 
 possession of the property. Central 
 Trust Co. v. Chattanooga, R. & C. R. 
 Co. 89 Fed. Rep. 388. 
 104 
 
 A receiver on mortgage foreclosure 
 of a division of a railway is entitled 
 only to the net earnings of the divi- 
 sion after deducting its proportion 
 of the working expenses of the whole 
 line. Grey v. Manitoba d y.'Tf. R. 
 Co. [1897] A. C. 254, 66 L. J. P. C. 
 N. S. 66. 
 
 Where the operation of a railroad 
 by a receiver has demonstrated its 
 ability to pay more than the operat- 
 ing expenses and the interest on the 
 first mortgage, and the receiver has 
 sufficient on hand to pay the delin-
 
 RECEIVERSHIP OF RAILWAYS. 
 
 287 
 
 quent interest on the first mortgage, 
 the second mortgagees are entitled 
 to have it so applied. Peoria, D. & 
 E. R. Co. V. Central Trust Co. 83 
 Fed. Rep. 910. 
 
 The purchasers at foreclosure sale 
 are not entitled to surplus earnings 
 
 of the road in the hands of a re- 
 ceiver, but are entitled to cars and 
 other property put on the road by 
 the receiver to run it. Strang v. 
 Montgomery d E. R. Go. 3 Woods, 
 G13. 
 
 Page 522, sec. 287. — Receivers' certificates. 
 
 Issuance. 
 
 The custody of a contractor for the 
 building of a telegraph line, of the 
 line, is not such possession as will 
 prevent an order for the issuance of 
 receivers' certificates constituting a 
 lien upon the property of the tele- 
 graph company from taking effect 
 upon wires erected by such contract- 
 or, where the wires were furnished 
 by the company. Postal Teleg. Cable 
 Co. V. Vane, 53 U. S. App. 319, 80 
 Fed. Rep. 961, 26 C. C. A. 342. 
 
 Receivers' certificates can be law- 
 fully issued only after due notice to 
 all parties in interest and after a full 
 hearing. Re Cort, 7 Pa. Dist. R. 
 536. 
 
 Receivers' certificates will be is- 
 sued only when the expenditure con- 
 templated is absolutely necessary to 
 preserve the property from destruc- 
 tion or serious injury. Ibid. 
 
 Receivers' certificates will not be 
 issued to pay part of a lien against 
 the estate for the purpose of obtain- 
 ing the consent of the lien creditor 
 to an additional extension of time, 
 as the matter of such extension is in 
 the control of the court independent 
 of such consent. Ibid. 
 
 Receivers' certificates will not be 
 issued in the case of business corpo- 
 rations, unless it appears that there 
 are extraordinary circumstances suf- 
 ficient to prompt the court to ta.ke 
 such action. Ibid. 
 
 Receivers' certificates are issued 
 w ml. necessary. Central Trust Co. 
 V. Tappan, 2 X. Y. S. R. 635, 6 N. Y. 
 Supp. 919. 
 
 Receivers' certificates to pay In- 
 terest on railroad bonds will not be 
 authorized where there is a claim of 
 priority over the bonds by many 
 creditors. Newton v. Eagle & P. 
 Mfg. Co. 76 Fed. Rep. 418. 
 
 A receiver applying for leave to 
 issue receivers' certificates should 
 fully state to the court the purpose 
 for which such certificates are to be 
 issued. Re Cort, 7 Pa. Dist. R. 536. 
 
 The court will refuse to issue cer- 
 tificates for doubtful improvements. 
 Investment Co. v. Ohio & N. W. R. 
 Co. 36 Fed. Rep. 48. 
 
 The court appointing a receiver 
 may authorize it to issue receiver's 
 certificates to take up outstanding 
 tax certificates when it becomes ap- 
 parent that it is impracticable for 
 the receiver to sell a portion of the 
 land for the purpose of redeeming 
 from the tax sales as conl^emplated 
 by the decree appointing him, and 
 may subrogate the holders of the re- 
 ceiver's certificates to the rights of 
 the former owners of the tax certifi- 
 cates. Roby V. Title Guarantee & 
 T. Co. 166 111. 336. 
 
 The appellate court will not dis- 
 turb the decision of the trial court 
 permitting a receiver of a railroad 
 company to issue receiver's certifi- 
 cates for the completion of the road, 
 unless there has been manifest abuse 
 of discretion, — especially where a 
 very large proportion of the bond- 
 holders have consented thereto, and 
 the issuance of the certificates will 
 be without prejudice to the bondhold- 
 ers who have not consented. Ruther- 
 ford V. Pennsylvania M. R. Co. 178 
 Pa. 38. 
 
 A court cannot authorize the is- 
 suance of receivers' certificates up- 
 on the property of a private corpo- 
 ration owing no duty to the public, 
 which shall be a lien prior to that of 
 lien creditors, without their consent. 
 Baltimore lildg. & L. Asso. v. Alder- 
 son, 90 Fed. Rep. 142, 32 C. C. A. 542. 
 
 The court should not direct the is- 
 sue of receivers' certificates and de- 
 cree them a paramount charge upon 
 
 105
 
 § 287 
 
 EECEIVERSHIPS— SUPPLEMENT. 
 
 the franchises, earnings, and prop- 
 erty of corporations under its con- 
 trol, but its i)()\vers in that regard 
 sliould be exeieised only after due 
 notice to all the parties in interest 
 and after a full hearing as to the ne- 
 cessity or propriety of the expendi- 
 ture proposed. Osborne v. Bigstone 
 Gap Colliery Co. 96 Va. 58. 
 
 A state court has power to author- 
 ize the issuance of receivers' certifi- 
 cates for an insolvent corporation by 
 ratifying the acts of the Federal 
 court in accordance with an arrange- 
 ment between the two courts that a 
 receiver of the property should be 
 appointed by the Federal court to act 
 until it should be determined wheth- 
 er the state or the Federal court had 
 jurisdiction, and that the state court 
 should ratify his acts if it should be 
 determined that it, instead of the 
 Federal court, had jurisdiction. 
 Crosby v. Morristoum. d- C. G. R. Co. 
 fTenn. Ch. App.) 42 S. W. 507. 
 [Afi"d by Sup. Ct.] 
 
 The court can order a receiver to 
 issue certificates of indebtedness, to 
 operate and care for a railroad com- 
 pany without funds. Central Trust 
 Co. V. Taj)pan, 25 N. Y. S. R. 035, 6 
 N. Y. Supp. 918. 
 
 Validity of. 
 
 In a proceeding to test the validity 
 of receivers' certificates, the receiver 
 who holds the money to pay them is 
 a necessary party. Central Trust 
 Co. V. Sheffield d B. Coal, I. d R. Co. 
 44 Fed. Rep. 520. 
 
 On intervention relative to the 
 validity of certificates, the receiver 
 is a necessary party. Ibid. 
 
 The right of the holder of shares 
 in a national bank which has been 
 placed in the hands of a receiver, to 
 have his share certificate rescinded 
 for fraud, exists only where his 
 equity is superior to that of the 
 bank, — as, where no credit was given 
 to the bank after he acquired his 
 stock. Wallace v. Hood, 89 Fed. 
 Rep. 11. 
 
 Receivers' certificates without con- 
 sideration cannot be enforced, either 
 at the suit of the payee or a holder 
 for value. Turner v. Peoria d H. R. 
 Co. 95 111. 134. 
 
 106 
 
 Payment. 
 
 The matter of ordering the final 
 payment of receivers' certificates is- 
 sued under the order of a circuit 
 court which has entertained juris- 
 diction of an ancillary suit, and of 
 determining what sums are due 
 thereon, with the compensation of 
 the receiver, will be relegated to that 
 court by the court in which the orig- 
 inal suit is brought. Doe v. North- 
 icestern Coal d T. Co. 78 Fed. Rep. 
 02. 
 
 Certificates are not payable from 
 any particular fund. Neafie's Ap- 
 peal (Pa.) 11 Cent. Rep. 180. 
 
 No preference under. 
 
 Persons taking receivers' certifi- 
 cates issued under order of court not 
 making them a prior lien to all other 
 claims, in place of prior certificates 
 which are ordered to be made such 
 prior lien, are not entitled to the 
 preference given under the first or- 
 der. Lewis V. Linden Steel Co. 183 
 Pa. 248. 
 
 The holder of certificates of de- 
 posit issued by an insolvent national 
 bank is not entitled to a preference in 
 funds in the receiver's hands, because 
 he presented the certificates for pay- 
 ment before the bank had closed its 
 doors, and the cashier was about to 
 pay the same out of the bank's funds 
 when he was forbidden by the presi- 
 dent to do so. St. Mary's Church 
 v. National Bank, 23 Misc. 588. 
 
 The beneficiary in a certificate is- 
 sued by a mutual aid association is 
 not entitled to a preference in the as- 
 sets in the hands of a receiver of the 
 association, by reason of an assess- 
 ment having been made to pay the 
 certificate, even if, under the consti- 
 tution and by-laws of the associa- 
 tion, there was a special application 
 of the assessment to the payment of 
 the certificate, where the fund repre- 
 sented by the assessment did not 
 reach the receiver's hands. People 
 V. Grand Lodqe of E. 0. of M. A. 150 
 N. Y. 533, Affirming 88 Hun, 021. 
 
 Receivers' certificates issued under 
 an order which does not give them 
 priority over other liens are not en- 
 titled to a preference over debts con- 
 tracted by the receiver in carrying
 
 RECEIVERSHIP OF RAILWAYS. 
 
 § 287 
 
 on the business under an order of 
 court. Lewis v. Linden Steel Co. 183 
 Pa. 248. 
 
 Since the act of 1889, p. 56, Texas 
 receivers' certificates liave priority 
 over mortgages. Ellis v. Vernon Ice, 
 Light tt W. Co. 86 Tex. 109. 
 
 A lien of a creditor for supplies 
 furnished a collier company, which 
 has been reported and confirmed 
 without objection, and is further se- 
 cured under the provisions of a trust 
 deed executed by the company in fa- 
 vor of its creditors, should not be 
 subordinated to receivers' certificates 
 issued under decrees, which the lien 
 claimant had no opportunity to re- 
 sist. Osborne v. Bigstone Gap Col- 
 liery Co. 96 Va. 58. 
 
 Not negotiable. 
 
 Receivers' certificates are not ne- 
 gotiable as a promissory note, nor 
 assignable so as to create a liability 
 against the assignor or indorser, nor 
 are thev bills of exchange. McCurdy 
 V. Boiccs, 88 Ind. 583. 
 
 Certificates a first lien. 
 
 Effect should be given to an order 
 authorizing the receiver of an in- 
 solvent corporation to borrow money 
 on certificates which shall be a first 
 lien on the property and assets of 
 the corporation, by allowing the 
 sums borrowed to be paid out of the 
 proceeds of a sale of the corporate 
 propertv. Re F. X. Muller & Co. 47 
 N. Y. Supp. 277. 
 
 Receivers' certificates may be 
 made a first lien. Karn v. Rorer 
 Iron Co. 86 Va. 754. 
 
 The paramount lien of receivers' 
 certificates may be recognized by a 
 mortgage trustee. Kent v. Lake Su- 
 perior Ship Canal R. £ Iron Co. 144 
 U. S. In, 36 L. ed. 352. 
 
 Purchasers of property on which 
 receivers" certificates have been 
 made a prior lien are not permitted 
 to deny the validity of the certifi- 
 cates. Central Trust Co. v. Shef- 
 field d- li. Coal, I. & R. Co. 44 Fed. 
 Rep. 526. 
 
 Receivers' certificates for repairs 
 on road become a first lien. Ex parte 
 Mitchell, 12 S. C. 83. 
 
 Debentures made a lien. 
 
 The debentures of a receiver, is- 
 sued to complete a railroad, may be 
 made a lien on the road and lands of 
 the company. Kennedy v. St. Paul 
 d P. R. Co. 2 Dill. 448. 
 
 Liability of purchaser for. 
 
 For liability of purchaser of a rail- 
 road for certificates — see Stevens v. 
 Union Trust Co. 57 Hun, 498. 
 
 What covered by. 
 
 Strung wires are not deprived of 
 their charcter as lines of telegraph 
 within an order directing receivers' 
 certificates to be secured by a trust 
 deed on all the lines of telegraph be- 
 tween certain places, because the 
 foreman of the contractor for their 
 erection had detached and grounded 
 them. Postal Teleg. Cable Co. v. 
 Vane, 53 U. S. App. 319, 80 Fed. Rep. 
 961, 26 C. C. A. 342. 
 
 Rights of holders. 
 
 Certificate holders in a mutual in- 
 surance association who were mem- 
 bers of a local branch in another 
 state, the receiver of which was pre- 
 vented by the local court from com- 
 plying with the order of the court in 
 which the principal receivership was 
 pending directing all local branches 
 and receivers to pay to the principal 
 receiver by a certain date all funds 
 in their hands or be barred from re- 
 ceiving any distribution on the 
 claims represented by them until all 
 other claims had been paid, — should 
 be allowed to intervene after the 
 date specified, if the funds are still 
 undistributed; and share on equal 
 terms with the other certificate hold- 
 ers, due allowance being made for 
 any amount they may have received 
 from the local receiver, for the dif- 
 ference, if any, between the amount ot 
 assessments paid by the two classes 
 and for any unnecessary expenses 
 incurred in the administration of the 
 funds by the local court, where the 
 order is by its own terms subject to 
 modification at any time "as justice 
 may require," and the court has al- 
 ready extended the time in favor of 
 other receivers and local I)ranches. 
 Cowen v. Failey, 149 Ind. 382. 
 
 107
 
 §§ 300, 301 
 
 RECEIVERSHIPS— SUPPLEMENT. 
 
 When receivers and managers is- 
 sue negotiable obligations, witli the 
 knowledge and consent of the parties 
 in interest, they are estopped as to 
 
 bona fide holders to deny that they 
 are what they purport to be. Lang- 
 don V. Vermont tC- C. R. Co. 53 Vt. 
 228. 
 
 Page 526, sec. 300. — Receivership in decedent's estates. 
 
 Page 527. — (b) Contest ovek wills. 
 
 A receiver may be appointed. 
 Montgomery v. Clark, 2 Atk. 378; 
 Marr V. Littleicood, 2 Myl. & C. 454; 
 Jones V. Goodrich, 10 Sim. 327 ; Wat- 
 kins V. Brent, 1 Myl. & C. 97 ; Whit- 
 icorth V. Whyddon, 2 Macn. & G. 52 ; 
 Podmore v. Gunning, 5 Sim. 485. 
 
 Pending the probate of a will the 
 court will appoint a receiver, but the 
 appointment of receivers elsewhere 
 
 than in the probate division is dis- 
 couraged. Re Parker, 54 L. J. Ch. 
 N. S. 694. 
 
 Reversionary interest under will. 
 
 A receiver was appointed in re a 
 wife's reversionary interest under a 
 will. Fuggle v. Bland, L. R. 11 Q. 
 li. Div. 711. 
 
 Page 528, sec. 301. — As to executors and administrators. 
 
 A court of equity will not, as a 
 general rule, interfere with the ad- 
 ministration of estates by placing 
 the assets thereof in the hands of a 
 receiver, but it will, at the instance 
 of heirs or the sureties upon the ad- 
 ministrator's bond, if there is danger 
 of loss or other injury to their in- 
 terests, afford such extraordinary 
 relief as may be necessary to prevent 
 the same. Thompson v. Orser, 105 
 Ga. 482. 
 
 A receiver will not be appointed of 
 a decedent's estate because an execu- 
 tor has become bankrupt since the 
 death of the testator, where there is 
 a coexecutor willing to act. Boioen 
 v. Phillips [1897] 1 Ch. 174, 66 L. J. 
 Ch. N. S. 165. 
 
 In a suit against executors for an 
 accounting, a receiver may be ap- 
 pointed. Bickford v. Chalker, I 
 Eng. L. & Eq. 113. 
 
 A receiver will not be appointed, 
 however, on application of a devisee 
 under a contested will, except in a 
 clear case of right of recovery and 
 when there is danger of loss. Clark 
 v. Deiv, 1 Russ. & M. 103. 
 
 A receiver was appointed on ac- 
 count of laches of heirs who had 
 been substituted as trustees to exe- 
 cute a devise to charity. Atty. Gen. 
 v. Bowyer, 3 Ves. Jr. 714. 
 
 108 
 
 The court will not interfere, by the 
 appointment of a receiver, with an 
 executor, unless waste of assets is 
 shown. Re Wells, L. R. 45 Ch. Div. 
 569. 
 
 The removal of an executor from 
 the state of his appointment, leaving 
 his cestui que trust and the trust 
 estate behind, will justify the inter- 
 ference of a court of equity by the 
 appointment of a receiver on the ap- 
 plication of the cestui que trust. 
 Elting v. First Nat. Bank, 173 111. 
 308, Affirming 68 111. App. 204. 
 
 A receiver may be appointed over a 
 life estate. M'Craith v. Qtiin, It. 
 Rep. 7 Eq. 324. 
 
 A receiver will not be appointed 
 of the separate estate of a married 
 woman with a restraint on anticipa- 
 tion, where the plaintiff obtained 
 leave to enter final judgment for a 
 debt against her, but delayed enter- 
 ing it for three months, when he 
 knew that arrears had just become 
 due, and then entered judgment and 
 applied for a receiver. Colyer v. 
 Isaacs, 11 L. T. N. S. 198. 
 
 If a tenant for life neglects to 
 keep down taxes and make necessary 
 repairs, a receiver will be appointed. 
 Murch V. J. O. Smith Mfg. Co. 47 N. 
 J. Eq. 193. 
 
 The existence of a suit to recall
 
 RECEIVERSHIP OVER TRUST PROPERTY. 
 
 § 306 
 
 probate is not ground tor appoint- 
 ing a receiver. Newton v. Ricketts, 
 10 Beav. 525. 
 
 Where a husband was permitted 
 by trustees to receive rent belonging 
 tc his Avife, and the trustees after- 
 wards insisted on receiving it them- 
 selves, the husband was not entitled 
 to a receiver. Wiles v. Cooper, 9 
 Beav. 294. 
 
 A receiver is not granted over an 
 estate, where no grounds are shown 
 why an administrator could not be 
 appointed immediately. Jones v. 
 Frost, 3 Madd.'l. 
 
 A receiver pendente lite cannot be 
 appointed of the estate of a testator, 
 where a caveat has been entered and 
 warned, and appearance has been en- 
 tered, but no writ has been issued. 
 Salter v. Salter, 65 L. J. P. D. & A. 
 N. S. 117 [1896] P. 291, 75 L. T. N. 
 S. 7. 
 
 The administration of an estate by 
 a receiver is not purely in rem, and 
 the acts of the receiver and orders of 
 court are not binding on persons not 
 parties. J. W. Dann Mfg. Co. v. 
 Parkhurst, 125 Ind. 317. 
 
 In a suit to carry into execution 
 the trusts of a will a receiver will 
 not be appointed over the lands in pos- 
 
 session of the heir at law, unless he 
 admits the will or until it is proved 
 against him. Dobbin v. Adatns, 8 
 Ir. Eq. Rep. 157. 
 
 Advance by executors to the widow 
 of less than half of the cash on hand, 
 which was prima facie a community 
 fund, does not authorize the appoint- 
 ment of a receiver pending an action 
 by the heirs to recover their alleged 
 interest in the estate, and for parti- 
 tion, upon the ground of misapplica- 
 tion of the funds and refusal to al- 
 low the plaintiffs free access to the 
 books of deceased, where the widow's 
 interest in the estate is apparently 
 largely in excess of the amount paid 
 her, and she was otherwise without 
 means of support. Harris v. Hicks, 
 13 Tex. Civ. App. 134. 
 
 That one of three executors of an 
 estate without bond has been seen a 
 few times playing cards for money 
 is not sufficient cause for the appoint- 
 ment of a receiver pending an action 
 by the heirs to recover their alleged 
 interest in the estate, and for parti- 
 tion, where a large number of busi- 
 ness and professional men in the 
 community where such executor lives 
 affirm his integrity of character and 
 his entire fitness for the trust. Ibid. 
 
 Receivership over trust property. 
 Page 540, sec. 306. — Receiver in lieu of trustee. 
 
 The general rule is that a receiver 
 may be appointed in lieu of trustees, 
 when trustees are negligent and 
 guilty of a breach of duty as such. 
 Boyd V. Murray, 3 Johns. Ch. 48 ; Re 
 Pontius, 26 Hun, 232; Etowah Min. 
 Co. V. Wills Valley Min. & Mfg. Co. 
 106 Ala. 492; Neumian V. Newman, 
 2 Bro. Ch. 92 (Belt's ed.) note 7; 
 Davis V. Browne, 2 Del. Ch. 188. 
 
 Or when creditors are entitled to 
 an estate over certain charges. 
 M'Garry v. White, Jr. L. R. 16 C. L. 
 322. 
 
 Or when a trustee goes out of the 
 jurisdiction of the court to which he 
 is amenable. Noad v. Backhouse, 2 
 Younge & C. Ch. Cas. 529. 
 
 Or when the unfitness of trustees 
 
 is shown. Janeway v. Green, 16 
 Abb. Pr. 215. note. 
 
 Or when an action is pending to 
 determine the distributive shares. 
 Carson v. Powers, 52 U, S. App. 622, 
 sub noni. Carson v. Combe, 86 Fed. 
 Rep. 202, 29 C. C. A. 660. 
 
 But in the absence of mismanage- 
 ment or incompetency, a receiver 
 will not be appointed if the trustee 
 has sufficient power. Buxton v. 
 Monkhouse, Coop. Ch. 41 ; Barkley v. 
 Reay, 2 Hare, 308. 
 
 Nor where the trustee is willing to 
 give security. Branch v. Ward, 114 
 N. C. 148. 
 
 A receiver will not be appointed at 
 the suit of trustees upon a showing 
 that one to whom they sold land has 
 
 109
 
 §§ 310-317 
 
 RECEIVERSHIPS— SUPPLEMENT. 
 
 failed to pay a large part of the pur- 
 chase money and is insolvent, but re- 
 mains in possession of the property, 
 receiving the profits thereof, where 
 an order of resale of the premises di- 
 rected by the court remains unexe- 
 cuted by them, and the defendant has 
 not been heard in response to the 
 application made. Anderson v. Ce- 
 cil, 80 Md. 490. 
 
 "Trustees" appointed in Ohio to 
 wind up the affairs and pay the debts 
 of an insolvent mutual lire insurance 
 company of that state, with the gen- 
 eral powers of receivers in Wiscon- 
 sin, are within Wis. Laws 1893, chap. 
 293, requiring all foreign mutual fire 
 insurance companies which have 
 been declared insolvent and of which 
 a "receiver" has been appointed, to 
 collect all claims from policy hold- 
 ers Within the state for premiums or 
 assessments within six months aft- 
 er the passage of the act. Mansfield 
 V. William Becker Leather Co. 93 
 Wis. 656. 
 
 The court will appoint a receiver 
 over trust funds in the hands of a 
 dc facto trustee, even if no fraud or 
 misconduct is shown. Fidelity Ins. 
 & T. Co. V. Uuhcr, 13 Phila. 52. 
 
 A trustee invested with power to 
 sell the property of an insolvent 
 corporation and to collect demands 
 due it is properly appointed receiver 
 to take charge of its real estate until 
 the validity of liens thereon can be 
 adjudicated. Weigand v. Alliance 
 Supply Co. 44 W. Va. 133. 
 
 A receiver may be appointed in an 
 action by a husband against his wife 
 to enforce the terms of an antenup- 
 tial contract, whose execution the 
 answer admits, but alleges that it 
 was procured by fraud, to collect the 
 rents of real estate which the wife 
 covenanted to convey to a trustee 
 for the purjiose of carrying out the 
 settlement, where the person named 
 in the contract as trustee has refused 
 to act. De Rustafjaell v. De Rustaf~ 
 jaell, 43 W. N. C. 56. 
 
 Page 547, sec. 310. — Lunatics' estates. 
 
 Where no one can be found to act 
 as committee for a lunatic a receiver 
 will be appointed. Ex parte Warren, 
 10 Ves. Jr. 622; Ex parte Billing- 
 hurst, 1 Ambl. 104. 
 
 The appointment of a receiver to 
 prevent the mismanagement or waste 
 
 of an alleged lunatic's property dur- 
 ing the pendency of a proceeding for 
 a commission de lunatico inquirendo 
 rests in the sound discretion of the 
 court in which the inquiry is pend- 
 ing. Re Misselwitz, 177 Pa. 359. 
 
 Miscellaneous receiverships. 
 Page 548, sec. 315. — As between vendor and vendee. 
 
 Where an unpaid vendor of land 
 taken by a, railroad company has 
 commenced an action to enforce his 
 lien, he is not entitled to a receiver 
 until he gets judgment, though the 
 company admits its liability. Lati- 
 mer v. Aylesbury & B. R. Co. L. R. 
 9 Ch. Div. 385. 
 
 To collect taxes. 
 
 Courts of equity have no jurisdic- 
 tion to collect taxes or appoint a re- 
 ceiver for that purpose. Pierce 
 County V. Merrill, 19 Wash. 175. 
 
 Page 549, sec. 317. — In partition and between tenants in common. 
 
 Parties jointly interested in the 
 profits of a business are entitled to 
 a receiver of tiie books and papers 
 necessary to wind up the concern, 
 110 
 
 where it is conceded that an account- 
 ing is required. Davidge v. Coe, 22 
 Jones & S. 360. 
 
 A tenant in common owning a
 
 MISCELLANEOUS RECEIVERSHIPS. 
 
 §§ 318, 320 
 
 third interest in an office building 
 is not entitled to a receiver in a suit 
 for accounting, where his cotenants 
 protest and there is no showing of 
 fraud, entanglement of accounts, or 
 exclusion from a due share of the net 
 profits. Kcll V. Murdock, 4 Ohio N. 
 F. 247, 6 Ohio Dec. 390. 
 
 A receiver was appointed in a 
 divorce suit, of property held under 
 agreement for joint occupancy. 
 Baggs v. Baggs, 55 Ga. 590. 
 
 An application by one tenant in 
 common for a receiver was refused 
 where the prayer of the bill for an 
 accounting and a sale and division of 
 the chattels was not sustained by 
 the evidence. Blood v. Blood, 110 
 Mass. 545. 
 
 Tenants in common are not en- 
 titled to a receiver as against an- 
 other tenant in common, unless the 
 latter has been excluded. Giving 
 notice to tenants to pay to him only 
 is not an exclusion. Tyson v. Fair- 
 dough, 2 Sim. & Stu. 142. 
 
 Where one in possession of joint 
 property is insolvent and is collect- 
 ing the rents and using the same, a 
 receiver is proper. Roche v. Roche, 
 3 N. Y. S. R. 500. 
 
 Such ill-will and hostility between 
 the joint owners of property as pre- 
 vents unity of action in its manage- 
 ment will not warrant the court in 
 placing it in the hands of a receiver, 
 
 when neither of the owners is ex- 
 cluded from the property. Lamas- 
 ter V. Elliott, 53 Neb. 424. 
 
 Dissensions between two persons 
 who are equal owners of the stock of 
 a corporation and are also its officers 
 will not justify the appointment of 
 a receiver so long as no actual 
 wrong is committed by either of 
 them. Wallace v. Pierce-Wallace 
 Pub. Co. 101 Iowa, 313, 38 L. R. A. 
 122. 
 
 A decree appointing a receiver in 
 partition proceedings is an interloc- 
 utory one, and it is not reversible 
 on error. Brachtendorf v. Kehm, 72 
 111. App. 228. 
 
 A receiver will not be appointed 
 in a partition proceeding where the 
 party in possession is solvent. Pierce 
 V. Pierce, 55 Mich. 029. 
 
 And so where the tenant in posses- 
 sion is financially responsible and is 
 willing to account, and no demand 
 has been made. Bathman v. Bath- 
 man, 79 Hun, 477. 
 
 Strong hostility between the ten- 
 ants in common, with probability of 
 future injury, is ground for the ap- 
 pointment. Goldberg v. Richards, 
 5 Misc. 419. 
 
 A receiver in a partition proceed- 
 ing may maintain suit against a co- 
 owner for rent under a lease from 
 the receiver. Smith v. Lavelle, 13 
 Misc. 528. 
 
 Page 551, sec. 318. — In suits for specific performance. 
 
 In a suit for specific performance 
 the receiver of the contracting party 
 is the only necessary party. South- 
 ern Exp. Co. V. Western N. C. R. Co. 
 99 U. S. 191, 198, 25 L. ed. 319, 320. 
 
 A receiver and manager of a hotel 
 business may be appointed in a suit 
 for specific performance of a contract 
 for the sale of the lease, furniture, 
 and goodwill of the business, but he 
 can take no chattels other than those 
 which would pass by an assignment 
 
 of the lease. Poole v. Doiones, 76 L. 
 T. N. S. 110. 
 
 A receiver was appointed in a suit 
 for specific performance. Reade v. 
 Hamlin, 62 N. C. (Phill. Eq.) 128; 
 Boehm v. Wood, Turn. & R. 332, 2 
 Jac. & W. 236. 
 
 A receiver was appointed in case 
 of a bill for specific performance, on 
 application of the vendor, where the 
 purchaser was insolvent. Hall v. 
 Jenkinson, 2 Ves. & B. 125. 
 
 Page 551, sec. 320. — In ejectment suits. 
 
 A receiver will be appointed under 
 the English judicature act 1873, § 
 25, subs. 8, in an ejectment suit in 
 which the title to real property is in 
 
 dispute, where it appears tliat the 
 plaintiir will probably succeed in the 
 action, and that the tenants on the 
 land will run the risk of iiaving to 
 
 111
 
 321 
 
 RECEIVERSHIPS— SUPPLEMENT, 
 
 pay their rents twice if a receiver ia 
 not appointed. John v. John, 07 L. 
 J. Ch. N. S. GIG; Foxicell v. Van- 
 Grutten [1897] 1 Ch. 04, 75 L. T. N. 
 S. 311, 308, OG L. J. Ch. N. S. 53. 
 
 In a strong case a receiver may be 
 appointed. Givatkin v. Bird, 52 L. J. 
 Q. B. N. S. 263 ; Whittcorth v. Wof- 
 fort, 73 Ga. 259 ; Garniss v. San 
 Francisco Super. Ct. 88 Cal. 413. 
 
 A receiver will be appointed of the 
 royalty, rents, and profits of min- 
 ing property involved in an action 
 of ejectment, where it is not pro- 
 posed to disturb the lessee, and there 
 is no direct legal responsibility on 
 the part of anj^one to respond in 
 damages, and the value of the prop- 
 erty is being greatly lessened by its 
 operation, and the defendants have 
 commenced their mining operations 
 in face of notices served of the claim 
 of the plaintiffs. TJlman v. Clark, 
 75 Fed. Rep. 808. 
 
 It has been held, however, that a 
 receiver will not be appointed in an 
 action to recover possession of real 
 
 estate. Guernsey v. Poivers, 9 Hun, 
 78. 
 
 The discretion of the court to ap- 
 point a receiver in ejectment should 
 not be exercised where there is no 
 evidence of waste, although de- 
 fendant is impecunious. Foxwell v. 
 Van Grutten [1897] 1 Ch. 04, 75 
 L. T. N. S. 311, 308, OG L. J. Ch. M. 
 S. 53. 
 
 And judgment must have been ren- 
 dered. Burdell v. Burdell, 54 How. 
 Pr. 91. 
 
 Where land is sold by a person to 
 a railroad company, and its road is 
 constructed thereon, and default is 
 there made, it is proper to appoint 
 a receiver and order possession to be 
 delivered to him. Mumis v. Isle of 
 Wight R. Go. L. R. 5 Ch. 414. 
 
 A tenant may intervene in a re- 
 ceivership appointed in an action of 
 ejectment brought by his landlord 
 against a person who ejected the ten- 
 ant. Ex parte Breedlove (Ala.) 24 
 So. 363. 
 
 Page 552, sec. 321. — In alimony suits. 
 
 An action by a wife for mainte- 
 nance without a divorce, in which it 
 is also sought to set aside transfers 
 made by the husband to defeat plain- 
 tiff's rights to maintenance out of his 
 property, is by reason of the inad- 
 equacy of purely legal remedies so 
 much a subject of equitable cog- 
 nizance that it carries with it the 
 right to have a receiver appointed 
 under the general provision of Cal. 
 Code Civ. Proc. § 5G4, for the ap- 
 pointment of receivers in all cases 
 "where receivers have been hereto- 
 fore appointed by the usages of 
 courts of equity." Murray v. Mur- 
 ray, 115 Cal. 266, 37 L. R. A. 626. 
 
 Trustees should not be appointed 
 to take possession of a husband's 
 property and close up his estate, 
 where he has deserted his wife, re- 
 fused to support her, and has prop- 
 erty which he is about to dispose of 
 without providing for her mainte- 
 nance, as the attachment authorized 
 in such cases by the Pennsylvania 
 statute is an original process and 
 has no relation to domestic attach- 
 ments or the practice thereunder. 
 Longhotham v. Longhotham, 18 Pa. 
 Co. Ct. 460. 
 
 Mechanics' lien. 
 
 Another ground for the appoint- 
 ment of receivers is in a mechanic's 
 lien proceeding, where by statute a 
 receiver is provided for. 
 
 An order authorizing a receiver 
 appointed in an action to enforce a 
 112 
 
 mechanic's lien, to reduce the rental 
 under a lease in force at the time of 
 his appointment, is unauthorized, 
 and he is not entitled to a credit for 
 the amount of the reduction. Fice- 
 ner v. Bott, 20 Ky. L. Rep. 032.
 
 MISCELLi\.N£OUS RECEIVERSHIPS. 
 
 § 321 
 
 A mechanic's lien is not lost by the 
 subsequent appointment of a receiv- 
 er. Totten d H.I.& S. Foundry Co. 
 V. Muncie Nail Co. 148 Ind. 372. 
 
 If the appointment of a receiver 
 of a real estate company devests the 
 creditors of the company of all 
 rights to acquire a mechanic's lien on 
 its property, it will not be a defense 
 available to such company in an ac- 
 tion to enforce such a lien to which 
 it is a party. Vigo Real Estate Co. 
 V. Reese, 21 Ind. App. 20. 
 
 But in the absence of a statute it 
 cannot be done. 
 
 The complainant in an action to 
 foreclose a mechanic's lien is not en- 
 titled, in the absence of any statu- 
 tory provision therefor, to a receiver 
 of the rents and profits of the prop- 
 erty pendente lite, titone v. Tijlcr, 
 173 111. 147, Reversing 67 111. App. 
 17. 
 
 The fact that property is in the 
 hands of a receiver is no defense to 
 an action to enforce a mechanic's 
 lien against it. Richardson v. Hick- 
 man, 32 Ark. 406. 
 
 In attachment suits. 
 
 The rule generally is that a re- 
 ceiver will not be appointed in an 
 attachment proceeding unless the 
 attachment is inadequate and inef- 
 ficacious. Fearee v. Jennings, 94 
 Ala. 524. But see Sackhoff v. Vande- 
 arift, 98 Ala. 192. 
 
 It has been held, however, that a 
 receiver of the property of defendant 
 in attachment is properly appointed 
 
 where the attached property had 
 been mortgaged to secure specified 
 debts, and the attachment plaintiff 
 alleges that the most of such debts 
 were fictitious and fraudulent and 
 that the mortgagor and mortgagee 
 are insolvent. Gassaivay v. Heiden- 
 heimer (Tex. Civ. App.) 37 S. W. 
 343. 
 
 Appointment on application of vendor or purchaser. 
 
 A purchaser at a judicial sale may 
 have a receiver where the debtor re- 
 mains in possession during the re- 
 demption period and is insolvent, in 
 case of a mine where it may be worked 
 out and its value destroyed. It is 
 different from the ordinary real es- 
 tate sale. Hill v. Taylor, 22 Cal. 
 191; Harris v. Reynolds, 13 Cal. 514, 
 73 Am. Dec. 600. 
 
 A receiver should not be appointed 
 in a suit by vendees to recover the 
 purchase money where there is no 
 evidence of waste. Collins v. Rich- 
 art, 14 Bush, 621. 
 
 A receiver will be appointed at the 
 suit of a vendor seeking to rescind 
 a contract for the sale of land 
 against a purchaser in possession, 
 where the subject-matter of the con- 
 tract is imperiled by the latter's acts. 
 Cook v. Andrcics [1897] 1 Ch. 266, 66 
 L. J. Ch. X. S. 137. 
 
 A receiver may be appointed on 
 the application of a purchaser at a 
 
 sheriff's sale pending litigation. Mc- 
 Fadden v. 'Nolan, 15 Phila. 187. 
 
 A purchaser of land at a judicial 
 sale is not entitled to have a receiver 
 of the rents and profits appointed 
 pending an appeal by the residuary 
 legatee from a confirmation of the 
 sale. Pearson v. Gillenwaters, 99 
 Tenn. 446, Affirmed on Rehearing, 99 
 Tenn. 462. 
 
 The purchaser at a void judicial 
 sale, who acquired and retained pos- 
 session under a receiver legally ap- 
 pointed, may offset against the rents 
 whatever credits the court would 
 have allowed the receiver if he had 
 cultivated the land under the court's 
 directions, such as taxes, necessary 
 improvements, etc. Jefferson v. Ed- 
 rington, 53 Ark. 545. 
 
 A purchaser of railroad property 
 from o\w. who purchased at a sale by 
 a icceiver takes it free from claims 
 against the receiver, unless it is or- 
 dered otherwise by the terms of sale. 
 
 113
 
 § 321 
 
 RECEIVERSHIPS— SUPPLEMENT. 
 
 Houston, E. d W. T. R. Go. v. TSlor- 
 rts (Tex. Civ. App.) 41 S. W. 708. 
 Under a bill to set aside a sale for 
 
 inadequacy and fraud a receiver was 
 appointed. Stilwell v. Wilkins, Jac. 
 280. 
 
 Other parties and cases. 
 
 Where funds are in dispute it is 
 proper to appoint a receiver who may 
 apply for an order to turn the money 
 into court, where all parties can be 
 heard. People v. King, 9 How. Pr. 
 97. 
 
 The court may appoint a receiver 
 where property in the possession of 
 one in which another claims an in- 
 terest is allowed to depreciate. Jones 
 V. Quayle (Idaho) 32 Pac. 1134. 
 
 A receiver may be appointed to 
 take possession of and collect a note 
 and mortgage in the hands of an at- 
 torney claiming a lien thereon, upon 
 petition of a third party claiming 
 the same. Gary v. Brown, 33 111. 
 App. 435. 
 
 A deputy county clerk is entitled 
 to a receiver for his portion of fees 
 earned. Cheek v. Tilley, 31 Ind. 
 121. 
 
 Receiver not appointed for the an- 
 nual allowance of assistant parlia- 
 mentary counsel, there being no fixed 
 salary. Cooper v. Reilly, 1 Russ. & 
 M. 560. 
 
 A judgment against a clergyman 
 does not create a charge upon his 
 benefice and entitle a judgment cred- 
 itor to a receiver. Hawkins v. Gath- 
 ereole, 6 De G., M. & G. 1, 1 Jur. 
 N. S. 481. 
 
 Where a canon granted the profits 
 of his canonry as security for money, 
 it appearing that no public duty was 
 involved, a receiver was appointed. 
 Grenfell v. Windsor, 2 Beav. 544. 
 
 A savings and loan association 
 containing a lottery feature, by 
 which certain shareholders who are 
 first paid will obtain an undue ad- 
 vantage over the other members, will 
 be restrained from proceeding with 
 the business, and a receiver of the 
 funds will be appointed to distribute 
 them equitably among all the share- 
 holders. Shaiv V. Interstate Bav. L. 
 & T. Corp. 5 Ohio N. P. 411. 
 
 A court will not appoint a receiver 
 to collect the fees of an officer 
 114 
 
 against whom quo warranto proceed- 
 ings are pending. Stone v. Wet- 
 more, 42 Ga. (iOl. 
 
 A receiver may be appointed to 
 reach a surplus in the admiralty 
 court. Thompson v. Van Vechten, 
 5 Duer, 618. 
 
 In all cases where a creditor en- 
 joins the debtor from disposing of 
 or interfering with his property a 
 receiver should be appointed whether 
 there is such property or not. Webb 
 V. Overman, 6 Abb. Pr. 92; Osborn 
 V. Heyer, 2 Paige, 343. 
 
 Officers of a corporation ordered 
 to continue the operation of an in- 
 solvent road are special receivers. 
 ^Ex parte Brown, 15 S. C. 518. 
 
 Relative duties of employees and 
 receiver in case of a strike — dis- 
 cussed. Frank v. Denver & R. G. R. 
 Co. 23 Fed. Rep. 757, 764. 
 
 A receiver may be appointed to 
 take and state an account of timber 
 cut from premises in dispute, even 
 where the parties are solvent. John 
 L. Roper Lumber Co. v. Wallace, 93 
 N. C. 23. 
 
 Or to preserve property where 
 there is danger of an eviction. Feth- 
 erstone v. Mitchell, 9 Ir. Eq. Rep. 
 480. 
 
 Or to prevent the lapsing of a land 
 grant. Kennedy v. tit. Paul d- P. R. 
 Co. 2 Dill. 448, 5 Dill. 519. 
 
 Or over a savings institution. 
 Savings Inst. v. Makin, 23 Me. 360. 
 
 Or where a creditor who has a 
 right to redeem has tendered the 
 amount required to a mortgagee in 
 possession. Shultz v. Jerrard (N. 
 J. Eq.) 2 Cent. Rep. 211. 
 
 A receiver may be appointed of 
 the master forester of a royal forest. 
 Bla7ichard v. Cawthorne, 4 Sim. 566. 
 
 Or of deeds that are ordered to be 
 produced before a master where there 
 is a refusal. Brigstocke v. Hansel, 
 3 Madd. 47. 
 
 Or to keep a cemetery in repair on 
 failure by a corporation as required
 
 REMOVAL AND DISCHARGE OF RECEIVER. 
 
 § 330 
 
 by its charter, on application of a 
 lotowner. Houston Cemetery Co. v. 
 Drew, 13 Tex. Civ. App. 536. 
 
 Under the provisions of Cal. Code 
 Civ. Proc. § 564, authorizing the 
 court to appoint a receiver to carry 
 a judgment into effect, the court may 
 appoint a receiver to make a convey- 
 ance when the defendants are nu- 
 merous and some are minors. Scad- 
 den Flat Gold Mm. Co. v. Scadden, 
 121 Cal. 33. 
 
 A receiver may be appointed to 
 rent premises until confirmation of 
 the title. Garlington v. McKibben, 
 99 Ga. 128. 
 
 Or to run a newspaper for a lim- 
 ited term. Gwynne v. Memphis Ap- 
 peal-Avalanche Co. 93 Tenn. 603. 
 
 Or where a judgment has been 
 confessed with a view of defrauding 
 creditors. Stern v. Austern, 120 N. 
 C. 107. 
 
 Or for a suit in a stock exchange. 
 Hahenicht v. Lissak, 78 Cal. 351, 5 
 L. R. A. 713. 
 
 Or to collect money due on mort- 
 gage securities. Sidivay v. Ameri- 
 can Mortgage Co. 67 111. App. 24. 
 
 Or for torpedoing an oil-well. Gal- 
 lagher V. Earns, 27 Hun, 375. 
 
 Or to collect taxes levied by judi- 
 cial direction, for the payment of a 
 judgment. Garrett v. Memphis, 5 
 Fed. Rep. 860. 
 
 Or where a stallion is owned 
 
 jointly and one joint owner is in pos- 
 session and is insolvent. Shehan v. 
 Maher, 17 Hun, 129; Andrews v. 
 Betts, 8 Hun, 322. 
 
 But a receiver will not be ap- 
 pointed over a stand in a market, it 
 being only a license. Barry v. Ken- 
 nedy, 11 Abb. Pr. N. S. 421. 
 
 Or to preserve a jail on the appli- 
 cation of a taxpayer. Manly Mfg. 
 Co. V. Broaddus, 94 Va. 547. 
 
 Or of a fellowship. Berkeley v. 
 King's College, 10 Beav. 602. 
 
 A receivership for a municipality 
 and its funds, and an injunction to 
 restrain its officers from improperly 
 paying out the funds, are not proper 
 under a bill in equity whose princi- 
 pal averment is that the officers are 
 neglecting their duties, but which 
 does not allege that irreparable in- 
 jury will result therefrom, or seek 
 by way of mandamus to compel per- 
 formance thereof, and in which the 
 complainants do not, as creditors, al- 
 lege insolvency, or that it is necessary 
 to exercise its taxing powers to raise 
 money to pay debts. Eurlhut v. 
 Lookout Mountain (Tenn. Ch. App.) 
 49 S. W. 30i. [Aff'd by Sup. Ct.] 
 
 Where two parties claim under le- 
 gal titles the validity of which is 
 pending at law, a receiver will not be 
 appoin'ted for the rents and profits. 
 Squire v. Eeivlett, 141 Mass. 597. 
 
 Page 557, sec. 330. — Removal and discharge of receiver. 
 
 A receiver will not be removed be- 
 cause a creditor of the insolvent cor- 
 poration is a stockholder and offi- 
 cer of the receiver corporation. 
 Barker V. Lillibridge (Mich.) 5 Det. 
 L. N. 250, 75 N. W. 886. 
 
 The trusteeship of a receiver ceases 
 on his discharge and payment or de- 
 livery of the property in his hands 
 pursuant to the order of court. 
 Ilovey V. Elliott, 118 N. Y. 124. 
 
 Property in the hands of a receiver 
 after the bill is dismissed sliould be 
 restored to the party from whom it 
 was received. Caswell v. Bunch, 80 
 Ga. 124. 
 
 Plaintiff has a right to dismiss 
 his bill b(?fore the receiver has passed 
 his accounts and paid in his balances. 
 
 White V. Westmeath, Beatty, 174, 2 
 Hogan, 33. 
 
 A receiver cannot be removed with- 
 out notice of the application for such 
 removal. Campbell v. Sprat t, 5 N. 
 y. Week. Dig. 25. 
 
 A receiver may be removed at any 
 time, at the pleasure of the court, 
 under Conn. Gen. Stat. § 1319; and 
 any judge of the superior court may, 
 when the court is not actually in ses- 
 sion, remove the receiver after due 
 notice given under Conn. Pub. Acts 
 1895, chap. 499, § 108. Re Premier 
 Cycle Mfg. Co. 70 Conn. 473. 
 
 It is within the discretion of the 
 circuit court to fix the time for hear- 
 ing a petition for the removal of a 
 receiver. Barker v. Lillibridge 
 
 115
 
 S 330 
 
 EECEIVERSHIPS— SUPPLEMENT. 
 
 (Mich.) 5 Det. L. N. 250, 75 N. W. 
 880. 
 
 A motion to discharge must be on 
 notice. Johnson v. Henderson, 8 Ir. 
 Eq. Rep. 521. 
 
 A receiver may be discharged on 
 motion when his functions under the 
 bill liave ceased. Baughman v. Cal- 
 averas County Super. Ct. 72 Cal. 572. 
 
 Receivers having executed the 
 duty for which they were appointed, 
 it is the right and duty of the party 
 on whose application they are ap- 
 pointed to see to it that they are dis- 
 charged, in order to avoid the con- 
 sequences of their continuing to act. 
 Lanqdon v. Vermont d C. R. Go. 53 
 Vt. 228. 
 
 A provision of an order discharg- 
 ing the receiver of a corporation, 
 making the restoration of the prop- 
 erty to the corporation subject to 
 the debts incurred by him, applies 
 only to such of the debts as could be 
 legally enforced against the trust 
 property. Brunner v. Central Glass 
 Co. 18 Ind. App. 174. 
 
 A receiver may be removed for dis- 
 obeying orders of the court. Guard- 
 ian Sav. Inst. V. Bowling Green Sav. 
 Bank, 65 Barb. 275. 
 
 The payment of the judgment on 
 which supplementary proceedings 
 are based renders the further acts 
 of the receiver as such null and void. 
 Righton v. Pruden, 73 N. C. 61. 
 
 If the balance is to be paid into 
 court, the same order may discharge 
 the recognizance; but if to be paid 
 to a person, it should not. Lawson 
 V. Ricketts, 11 Beav. 627. 
 
 When a corporation satisfies a 
 chancellor that it is able and willing 
 to resume operation of its road, the 
 receiver will be ordered to deliver it 
 up. Re Long Branch d Sea Shore R. 
 Co. 24 N. J. Eq. 398. 
 
 Power to remove is in the discre- 
 tion of the court. First Nat. Bank 
 V. E. T. Barnum Wire & Iron Works, 
 60 Mich. 487. 
 
 An equitable action for injunction 
 and the appointment of a receiver is 
 completely ended by a consent order 
 by which the receiver is discharged 
 and the property in his hands re- 
 stored to the defendants. Conquest 
 V. yational Bank, 97 Ga. 500. 
 
 An order appointing a receiver 
 
 116 
 
 and putting the land in suit in his 
 hands pending the action should, in 
 the absence of special circumstances, 
 be rescinded upon dismissal of the 
 action. Campbell v. Eversole, 18 Ky. 
 L. Rep. 723. 
 
 A receiver appointed in a mort- 
 gage foreclosure action is properly 
 discharged and the possession of the 
 lot restored to the owner of the 
 equity of redemption, who is also en- 
 titled to the balance of the rents left 
 in the receiver's hands after paying 
 the taxes, where the mortgagee has 
 purchased the property for the 
 amount of the decree, interest, and 
 costs, notwithstanding that the ap- 
 plication to discharge is contested 
 by a third person who was liable for 
 the mortgage debt, and who induced 
 the mortgagee to purchase the prop- 
 erty by agreeing to reimburse him 
 and take over the property. Bogard- 
 us V. Moses, 78 111. App. 223. 
 
 The trial judge is not confined, on 
 an application for the removal of a 
 receiver, to the receiver's disobedi- 
 ence of an order set up in the peti- 
 tion as the ground for removal, 
 where the receiver in his answer sets 
 forth the whole history of his man- 
 agement from the beginning, and af- 
 firms that he has never intentional- 
 ly done or omitted any act prejudi- 
 cial to the interests committed to hia 
 charge, and has never disregarded 
 any order of the court, and the reply 
 to such answer is a general denial. 
 Re Premier Cycle Mfg. Co. 70 Conn. 
 473. 
 
 Though after decree, if the receiv- 
 er is not discliarged thereby, he is 
 still receiver. Visage v. Sehofield, 
 60 Ga. 680. 
 
 A decree of the Federal court, dis- 
 charging receivers appointed by it, 
 is a bar to any suit against such re- 
 ceivers for liability incurred solely 
 by virtue of their office, and consti- 
 tutes a complete defense. Fordyce 
 v. Beecher, 2 Tex. Civ. App. 29. 
 
 The granting of an order to put a 
 purchaser in possession is ipso facto 
 a discharge of the receiver as to the 
 land covered by the order. Ponson- 
 by V. Ponsonhy, 1 Hogan, 321. 
 
 Discontinuance of the suit does 
 not discharge the receiver. White- 
 side V, Prendergast, 2 Barb. Ch. 471.
 
 CLAIMS AGAINST RECEIVERSHIP FUNDS. 
 
 340 
 
 A receiver of a corporation should 
 not be discharged and ordered to 
 turn over the property to an assignee 
 subsequently apjjointed by the court 
 of another county, in advance of a 
 hearing upon the merits. France v. 
 Peerless Refining Co. 15 Ohio C. C. 
 232. 
 
 A receiver who presents his resig- 
 nation will be relieved from further 
 administration of the trust, but will 
 not be discharged until his accounts 
 have been duly passed and any sums 
 with which he is surcharged have 
 been paid. Morehead v. Striker, 82 
 Fed. Rep. 1003. 
 
 A bill to set aside a conveyance as 
 fraudulent should not be dismissed 
 without requiring a receiver ap- 
 pointed in the action to report and 
 settle his account. Simmons v. 
 Shelton, 112 Ala. 284. 
 
 A stockholder and bondholder of a 
 mining company, petitioning for the 
 removal of a receiver on the ground 
 of mismanagement and waste, will 
 be permitted to examine the mines 
 by an agent in whom he confides, for 
 the purpose of seeing if the grounds 
 upon which he bases his petition are 
 well founded. Henszey v. Langdon- 
 Henszy Coal Min. Co. 80 Fed. Rep. 
 178. 
 
 Dismissal of a bill does not dis- 
 charge the receiver. State, Peterson, 
 V. Gibson, 21 Ark. 140. 
 
 The dismissal of the bill does not 
 discharge the receiver from his ac- 
 countability to the court. State, 
 Peterson, v. Gibson, 21 Ark. 140. 
 
 A motion to dismiss and discharge 
 the receiver held over until right to 
 
 taxes determined. Hazard v. Credit 
 Mobilier of America, 38 Fed. Rep. 
 195. 
 
 A receiver wrongful]}^ appointed 
 over property will be discharged not- 
 withstanding the abatement of the 
 suit. Lavender v. Lavender. Ir. Rep. 
 9 Eq. 593. 
 
 Alter a receiver has been ap- 
 pointed and has given bond he must 
 show some reasonable cause to en- 
 title himself to be discharged. 
 Smith V. Vaughan, Ridgeway 
 t. Hardw. 251. 
 
 A receiver of a corporation ap- 
 pointed for mismanagement of direct- 
 ors should be discontinued on the re- 
 moval of such mismanaging direct- 
 ors, when the dissolution of the cor- 
 poration is not sought. Duncan v. 
 George C. Treadwell Co. 82 Hun, 
 376. 
 
 The bondsman of a receiver will 
 not upon his resignation be made a 
 party to the action in which he was 
 appointed, but will be given notice 
 that his accounts are being investi- 
 gated, and allowed to take part in the 
 investigation. Morehead v. Striker, 
 82 Fed. Rep. 1003. 
 
 A bank is estopped from endeavor- 
 ing to secure the discharge of a re- 
 ceiver, where it has accepted divi- 
 dends, and suffered entries to be 
 made authorizing the continuance of 
 the business and a sale of the prop- 
 erty by the receiver, without objec- 
 tion, and where it prays payment of 
 its claim out of the proceeds. Equi- 
 table yat. Bank v. Guckenbcrger, 5 
 Ohio N. P. 319. 
 
 Page 568, sec. 340. — Claims against receivership funds. 
 
 The funds in the hands of the re- 
 ceiver should be paid out only on or- 
 der of court. Duffy v. Casey, 7 Robt. 
 79. 
 
 Where an order requiring a re- 
 ceiver to pay out more money than 
 he is likely to have has been entered 
 by mistake, it may be amended by 
 summary action or by the court on 
 its own motion. Ryan v. Thomas, 
 104 Ind. 59. 
 
 It is error, after the expiration of 
 
 the term of court at which the decree 
 was rendered, to modify a decree 
 wliich in effect adjudged certain par- 
 ties to be the owner of funds in pos- 
 session of or to be collected by a re- 
 ceiver, directing that the same be 
 paid to tliom. to rcdocicct the cause, 
 and enter an order whicli in effect di- 
 rects the funds to be ])aid to one ol 
 such parties, ignoring the riglits of 
 the other. Fanning v. Fanning, 173 
 111. 83. 
 
 117
 
 340 
 
 RECEIVERSHIPS— SUPPLEMENT. 
 
 Authority given to receivers to ad- 
 just, compromise, and settle in their 
 best discretion claims against a rail- 
 road company, vests no right in cred- 
 itors to have their claims paid in 
 full. Mercantile Trust Co. v. Bal- 
 timore & 0. R. Co. 79 Fed. Rep. JS9. 
 
 A loss after the appointment of a 
 receiver does not entitle the claim- 
 ants to share in the distribution of 
 assets. Doane v. Millville Mut. M. 
 & F. Ins. Co. 43 N. J. Eq. 522. 
 
 An order directing that no pay- 
 ment of claims shall be made by a re- 
 ceiver without order of the court 
 does not cut ofT claims of the class 
 covered thereby, where the claimants 
 are not parties to the proceeding. 
 yew England R. Co. v. Carnegie 
 Hteel Co. 33 U. S. App. 491, 75 Fed. 
 Rep. 54, 21 C. C. A. 219. 
 
 Heirs who have inherited stock in 
 a corporation are not entitled to an 
 allowance by a receiver for services 
 rendered in preserving the property 
 before his appointment, since their 
 services were in the interest of their 
 own inheritance. Re Osceola Mill- 
 ing Co. 76 Mo. App. 23. 
 
 When a suit is brought to a con- 
 clusion by settlement, the money iii 
 the receiver's hands belongs to the 
 person in possession of the estate 
 when the receiver was granted. 
 Paynter v. Carew, Kay, Appx. 
 xxxvi. 
 
 Neither a railroad company nor 
 one in privity with it can demand 
 the income in the hands of a receiver 
 to pay liens, until they have been 
 satisfied. Schutte v. Florida C. R. 
 Co. 3 Woods, 692, 712. 
 
 Pledgees of bonds entitled to share 
 in the funds in the hands of a re- 
 ceiver of a corporation, who have 
 bought in such bonds upon a sale, 
 are entitled to the full face value, and 
 not merely to the amount for which 
 they were pledged. Atlantic Trust 
 Co. V. Woodbridge Canal d Irrig. Co. 
 86 Fed. Rep. 975. 
 
 Levy of writ of attachment 
 against insolvent railroad company 
 gives the attaching creditor no pref- 
 erence or lien which will deprive the 
 court of the power to equitably ap- 
 portion the income of the property 
 under a receiver appointed in pro- 
 ceedings to foreclose a mortgage, to 
 118 
 
 the operating expenses of the road. 
 Fanners' d M. iSiat. Bank v. Waco 
 Electric R. & L. Co. (Tex. Civ. App.) 
 30 S. W. 131. 
 
 The court may apply a balance of 
 rents in the receiver's hands to the 
 satisfaction of a second mortgage 
 after the payment of the first. 
 Keogh v. McManus, 34 Hun, 521. 
 
 A corporation whose checks dur- 
 ing the illness of its treasurer are, 
 without further authority from such 
 treasurer than a direction to the 
 clerk of another company in which 
 he was a stockholder to turn one 
 such check into the funds of the lat- 
 ter company, taken possession of by 
 the latter company, and the proceeds 
 used in buying goods in the regular 
 course of business, may, where the 
 latter company becomes insolvent and 
 goes into the hands of a receiver, re- 
 cover from such receiver the amount 
 of the checks so used. York v. York 
 Market Co. (N. H.) 37 Atl. 1038. 
 
 Where plaintiff was appointed re- 
 ceiver, with power to repair and pay 
 taxes, and subsequently a mortga- 
 gee foreclosed and bought the prop- 
 erty for less than his mortgage and 
 a balance remained in plaintiff's 
 hands, — held that he was not re- 
 quired to pay it over to the mortga- 
 gee. Ranney v. Peyser, 83 N. Y. 1. 
 
 For a question as to what parties 
 were entitled to a fund in the hands 
 of receivers — see Lanauze v. Belfast, 
 E. & B. R. Co. Ir. Rep. 3 Eq. 454. 
 
 A claim against a construction 
 company is not payable from the 
 funds in the hands of a receiver of 
 a railroad company whose stock is 
 all owned by the construction com- 
 pany. Exchange Bank v. Macon 
 Construction Co. 97 Ga. 1, smT) nom. 
 McTighe v. Macon Construction Co. 
 33 L. R. A. 800. 
 
 After insolvency and the appoint- 
 ment of a receiver for a railroad, the 
 court in a foreclosure proceeding 
 may direct payment of a reasonable 
 amount for land taken for a right of 
 way and included in the mortgage. 
 Coe V. yew Jersey Midland R. Co. 
 30 N. J. Eq. 21. 
 
 The conduct of a real-estate broker 
 in concealing from a receiver who 
 had employed him to procure a pur- 
 chaser for land, his own interest in
 
 CLAIMS AGAINST RECEIVERSHIP FUNDS. 
 
 340 
 
 the prospective purchase, precludes 
 him from obtaining compensation 
 from the latter. Ryan v. Kahler 
 (Tex. Civ. App.) 40 S. W. 71. 
 
 Policy holders in an employers' 
 liability insurance company, in a 
 state whose statutes require the de- 
 posit as security of a certain 
 amount for the benefit of all the pol- 
 icy holders residing therein before 
 such company can do business there- 
 in, are entitled to share in the dis- 
 tribution of dividends by the receiver 
 of the company only after the policy 
 holders in other states have received 
 sums equal to the amounts secured 
 to such first-mentioned policy hold- 
 ers by such deix)sit. Ross v. Ameri- 
 can Employers' Liability Ins. Co. 56 
 N. J. Eq. 41. 
 
 In distributing the proceeds of a 
 crop in the hands of a reciver in a 
 partition suit, a cropper under a co- 
 tenant who was in sole possession 
 should be allowed the proportion 
 called for by his contract, subject to 
 a porportional deduction for the ex- 
 penses of the receiver in harvesting 
 and marketing the crop, and the bal- 
 ance, after deducting a reasonable 
 compensation to such cotenant for 
 the use of his teams and seed and 
 machinery furnished by him, should 
 be divided between the several co- 
 tenants, each share bearing its due 
 proportion of the receivership. 
 Moreland v. i:>tronr/, 115 Mich. 211. 
 
 Assets of a national bank in the 
 hands of a receiver are under the 
 comptroller of the currency, and the 
 receiver has no power to pay divi- 
 dends. Merrill v. National Bank, 
 41 U. S. App. 529, sub nom. Merrill 
 V. First Nat. Bank, 75 Fed. Rep. 148, 
 21 C. C. A. 282. 
 
 A suit to compel the receiver of a 
 national bank to pay certain assets 
 is one arising under the laws of 
 the Cnited States within the mean- 
 ing of the acts of March 3, 1887, and 
 August 13, 1888, regarding the juris- 
 diction of Federal courts. Swope v. 
 Villard, 61 Fed. Rep. 417. 
 
 An agreement between two cor- 
 porations, that if one of them would 
 extend the time of payment of its 
 claim from a third corporation such 
 claim should be paid in full before 
 any payment should be niado or de- 
 
 manded on a claim by the second 
 corporation, made at the solicitation 
 of the third corporation and for its 
 benefit, entitles the first corporation, 
 on the appointment of a receiver of 
 the property of the third corpora- 
 tion and the proof by the first and 
 second corporations of their respec- 
 tive claims, to the dividends on the 
 claim of the second corporation until 
 the claim of the first corporation is 
 paid in full, but does not entitle it 
 to. have paid to it the proceeds of 
 certain collateral transferred to the 
 second corporation before such agree- 
 ment was made. Plymouth Cord- 
 age Co. V. Seymour, 07 Minn. 311. 
 
 The assignee of half of a claim is 
 entitled to his share of dividend. 
 Todd V. Meding, 50 N. J. Eq. 83. 
 
 Rents not charged with the pay- 
 ment of petitioner's claim will not be 
 ordered turned over to him. Balti- 
 more V. Chase, 2 Gill & J. 370. 
 
 The amount collected on claims 
 due a corporation, by its bookkeeper 
 under an agreement between the cor- 
 poration and a bank that the claims 
 shall be set aside and used to reim- 
 burse the bank for advancements, and 
 as a matter of convenience shall be 
 collected by the bookkeeper and be 
 under his control, is impressed with 
 an equitable trust in favor of the bank 
 as against a receiver of the corpora- 
 tion. Atlantic Trust Co. v. Carbon- 
 dale Coal Co. 99 Iowa, 234. 
 
 Wages of an injured employee 
 may be paid by receiver if the em- 
 ployee is deserving. Thomas v. East 
 Tennessee, V. d G. R. Co. 00 Fed. 
 Rep. 7. 
 
 The state is not entitled to a pref- 
 erence, either under the Minnesota 
 statutes or the rules of equity, to the 
 funds in the hands of a receiver of an 
 insolvent trust company which had 
 wrongfully converted and mingled 
 with its own funds and those of 
 other creditors funds which it had 
 collected as an assignee of an insol- 
 vent bank and which it should under 
 an order of the court have applied 
 to a preferred claim of the state, 
 where none of the funds so collected 
 by the trust company ever came into 
 tiie hands of its receiver; but the 
 state is entitled to file a claim 
 against the receiver as a geiu'ral 
 
 11»
 
 §340 
 
 RECEIVERSHIPS— SUPPLEMENT. 
 
 creditor. Ke Receivership of North- 
 ern Trust Co. 70 Minn. 334. 
 
 Funds of a mutual benefit associa- 
 tion are properly distributed by the 
 receiver. Funiitrs' Loan cG T. Co. v. 
 Aberle, 19 App. Div. 79, Modifying 
 18 Misc. 257. 
 
 State laws cannot control the 
 rights of creditors to participate in 
 the distribution by a receiver ap- 
 pointed in a Federal court. London 
 d 8. F. Bank v. Willamette Steam- 
 Mill, Lumbering, & Mfg. Go. 80 Fed. 
 Rep. 220. 
 
 The assets in New York of a Con- 
 necticut corporation, collected by re- 
 ceivers appointed in New York by a 
 Federal court, will be first applied 
 to the protection of the New I'ork 
 creditors before distribution ratably 
 among the general creditors. Sands 
 V. E. S. Greeley d Co. 80 Fed. Rep. 
 195. 
 
 One who has sold personal prop- 
 erty to a corporation cannot, after 
 the corporate property has been 
 placed in the hands of a receiver by 
 a valid order of the court, obtain a 
 lien or benefit under Sand. & H. 
 (Ark.) Dig. §§ 4727, 4728, provid- 
 ing a method for impounding the 
 property to prevent the purchaser 
 from disposing of it. Halpern v. 
 Clarendon Hardwood Lumber Co. 64 
 Ark. 132. 
 
 The surplus proceeds of a vessel 
 seized by a Federal court for satis- 
 faction of maritime liens should be 
 paid to a receiver appointed in an- 
 other state and operating the vessel, 
 and not to creditors having no liens. 
 The Willamette Valley, 76 Fed. Rep. 
 838. 
 
 Trust funds in the hands of a re- 
 ceiver may be recovered after a par- 
 tial dividend where there still remains 
 sufficient to pay the claim, though 
 the specific money is no longer in 
 the hands of the receiver. Standard 
 Oil Co. V. Hawkins, 46 U. S. App. 
 115, 74 Fed. Rep. 395, 20 C. C. A. 
 408, 33 L. R. A. 739. 
 
 As between creditors, funds in the 
 hands of receivers are to be dis- 
 tributed on a basis of equality. Re 
 Waddell-Entz Co. 67 Conn. 324. 
 
 The receiver cannot divert the 
 property from creditors and stock- 
 holders of one corporation to the 
 120 
 
 creditors and stockholders of an- 
 other company. Ames v. Union P. 
 R. Co. 74 Fed. Rep. 335. 
 
 The payments made out of a fund 
 by the attorney of a judgment credit- 
 or as receiver, under orders of the 
 court and without notice to the exe- 
 cution creditor, cannot be considered 
 as consented to by such creditor. 
 Boice V. Conover, 54 N. J. Eq. 531. 
 
 Assets may be sold for the benefit 
 of the parties interested. Orifjith 
 V. Toicer Publishing Co. 75 L. T. N. 
 S. 330. 
 
 A mortgagee having a deficiency 
 decree against a corporation in the 
 hands of a receiver is entitled to a 
 dividend. Re Simpson, 36 App. Div. 
 562. 
 
 A lessor of a bank may, in the in- 
 voluntary insolvency proceedings in- 
 stituted against it under JNlinn. Gen. 
 Stat. 1894, chap. 76, have allowed as 
 a claim the damages he has sustained 
 by reason of the repudiation by its 
 receiver of its executory contract of 
 leasing, and its abandonment of the 
 premises. Minneapolis Base Ball 
 Co. V. City Bank, 76 N. W. 1024. 
 
 No trust arises as to amounts in 
 the hands of a receiver realized upon 
 collaterals pledged to secure a note, 
 which were redelivered to tlie bor- 
 rower for collection as they matured, 
 and paid over to the lender as pay- 
 ments on the note, and mingled with 
 tlie latter's funds, although the lat- 
 ter fraudulently sold and indorsed 
 the note to a third person as wholly 
 unpaid, and such person received the 
 same without knowledge that it was 
 secured by collateral or of the pay- 
 ment of such collateral. Merchants' 
 'Nat. Bank v. Allemania Bank, 71 
 Minn. 477. 
 
 Where a mortgage of cliattels by 
 reason of "defectiveness creates no 
 lien, unsecurded creditors share 
 equally with the mortgagees. Sligh 
 V. Shelton S. W. R. Co. 20 Wash. 16. 
 
 The allowance of claims by a re- 
 ceiver is not conclusive. United 
 States Trust Co. v. United States F. 
 Ins. Co. 18 N. Y. 199. 
 
 There should be no distribution by 
 a. receiver until the rights of parties 
 are determined. Doane v. Corbin, 
 44 111. App. 463. 
 
 In the management by a receiver
 
 CLAIMS AGAINST RECEIVERSHIP FUNDS. 
 
 340 
 
 of several consolidated railroads, the 
 accounts of the subdivisions should 
 be kept separate and the earnings of 
 each made to pay its own expenses, if 
 possible. Central Trust Co. v. Wa- 
 hash, ISt. L. & F. R. Co. 23 Fed. Rep. 
 8G3. 
 
 The Georgia Code, regulating the 
 collection and distribution of assets 
 by a receiver of a bank, in an action 
 for its dissolution, does not apply to 
 a case of voluntary assignment under 
 the statute. Fouche v. Brower, 74 
 Ga. 251. 
 
 The owner of bonds having a lien 
 on a railroad may attack the validity 
 of other claims sought to be made 
 equal to or superior to his own claim. 
 Farmers' & M. Nat. Bank v. Waco 
 Electric R. & Light Co. (Tex. Civ. 
 App.) 36 S. W. 131. 
 
 Money expended for various pur- 
 poses for the benefit of the mort- 
 gagees are not charges on the earn- 
 ings as between mortgagees and gen- 
 eral creditors entitled to be paid out 
 of the earnings of the corporation 
 while in the hands of a receiver. 
 Randolph v. Farmers' Loan & T. 
 Co. 91 Tex. 605, Reversing 41 S. W. 
 113. 
 
 A claim for a rebate under a con- 
 tract made by a superintendent of a 
 road in the hands of a receiver 
 should be paid out of the receiver's 
 fund. Ex -parte Benson, 18 S. C. 38, 
 44 Am. Rep. 564. 
 
 Borrowed money for an insolvent 
 railroad should be paid out of fund 
 in court. Ex parte Carolina Nat. 
 Bank, 18 S. C. 289. 
 
 The day on which the insolvency 
 of a corporation whose business was 
 the indemnifying of creditors for 
 losses incurred on credit sales oc- 
 curred, as adjudged by the order ap- 
 pointing a receiver, fixes the time 
 to which the several claims of credit- 
 ors must be referred for adjustment. 
 Gray v. Reynolds, 55 N. J. Fq. 501. 
 
 One who moves for leave to fik; a 
 claim with a receiver appointed in 
 proceedings instituted under Minn. 
 Gen. Stat. 1894, chap. 76, alleging in 
 his moving papers that the time fixed 
 by the decree for filing has expired, 
 but asking relief on the ground of 
 excusable neglect, cannot shift his 
 position on appeal and contend that 
 
 the time within which claims are re- 
 quired to be exhibited had not ex- 
 pired because the provisions of § 
 5911 were not observed by the court 
 in making the order fixixig the time. 
 Hove V. Bankers' Exch. Bank 
 (Minn.) 77 N. W. 967. 
 
 The respective rights of creditors 
 of a corporation for which a receiver 
 has been appointed under tlie general 
 equity powers of the court will be 
 adjusted as of the date of the ap- 
 pointment of the receiver, and not of 
 the filing of the bill, where no in- 
 junction issued upon the filing of 
 the bill, and the corporation con- 
 tinued its business as usual, and 
 those who dealt with it in the in- 
 terim did so without being influenced 
 by the fact that the suit was pend- 
 ing, and no attachments or other 
 liens were placed upon the jjroperty 
 in the interim. Jones v. Arena Fub- 
 lishing Co. 171 Mass. 22. 
 
 A bona fide purchaser of a valid 
 claim against a corporation is en- 
 titled to a dividend from its receiver 
 upon the entire face value of the 
 claim, although purchased for a less 
 amount. Dimmick v. W. Fred 
 QuimJjy Co. (N. J. Eq.) 41 Atl. 101. 
 
 A receiver may hear and allow 
 claims before the expiration of the 
 time provided for by statute. Bis- 
 sell V. Heath, 98 Mich. 472. 
 
 Where receivers of a railroad 
 have all its property in their hands, 
 and all proceedings are required to 
 be and are had in the one cause for 
 the purpose of establishing the rights 
 of all the claimants, whether the re- 
 ceivers are technically made parties 
 to every proceeding for establishing 
 rights to the property, or not, is im- 
 material. Grand Trunk R. Co. v. 
 Central Vermo)it R. Co. 88 Fed. Rep. 
 622. 
 
 The receiver of a credit system in- 
 surance company stands in the place 
 of tlie company as to the allowance 
 or disallowance of claims accruing 
 before the insolvency of the company 
 and his appointment as receiver, and 
 may by liis conduct waive the re- 
 quirement of a policy as to tlie time 
 of furnishing proofs of loss, in the 
 same manner as the company might 
 have done. Gray v. Blum, 55 N. J. 
 Eq. 553. 
 
 121
 
 § 340 
 
 RECEIVERSHIPS— SUPPLEMENT. 
 
 A judgment recovered against a 
 railroad company for injuries to 
 land from the construction of a track 
 in a street, after the appointment of 
 a receiver for the company but in an 
 action connnenced before his ap- 
 pointment, will be classified as a 
 claim of the sixth class, under Tex. 
 Rev. Stat. 1S95, art. 1472, where the 
 application to have it classified was 
 made before the sale of the property 
 of the railway company by the re- 
 ceiver, and no amendment of the ap- 
 plication was made setting up the 
 sale, or showing that the proceeds 
 thereof were in the receiver's hands. 
 Vollmer v. San Antonio & G. 8. R. 
 Co. (Tex. Civ. App.) 47 S. W. 378. 
 
 An officer of a corporation who 
 files a petition to establish its in- 
 solvency may prove his claim before 
 receivers. Grinnell v. Merchants 
 Ins. Co. 16 X. J. Eq. 283. 
 
 Claims arising by virtue of the 
 death of the insured before the filing 
 of a bill for the appointment of a re- 
 ceiver, but not proved and allowed 
 before that time, are comprehended 
 by the word "accrued" in Mass. Stat. 
 1890, chap. 421, § 14, providing that 
 when an assessment insurance com- 
 pany shall discontinue business a re- 
 ceiver may be appointed to adminis- 
 ter any portion of the emergency 
 funds, which shall be used first in 
 the payment of accrued claims on 
 certificates or policies. Atty. Gen. 
 V. Massachusetts Ben. Life Asso. 171 
 Mass. 193. 
 
 A claim filed with a receiver of a 
 corporation by a nonresident credit- 
 or, with an express reservation or 
 condition that by filing it he does not 
 intend to abandon any rights gained 
 by reason of an attachment suit 
 previously brought in another state, 
 does not estop the creditor from pur- 
 suing the attachment. Linville v. 
 Hadden, 88 Md. 594, 43 L. R. A. 222. 
 
 The statute of limitations does 
 not run in favor of 'a receiver of a 
 dissolved corporation against a claim 
 not barred at the time of his ap- 
 pointment, so long as the receiver- 
 ship is open and continuing. Lud- 
 ington v. Thompson, 153 N. Y. 499, 
 Affirming 4 App. Div. 117. 
 
 Citing Ex parte Ross, 2 Glyn & J. 
 46, 330; Mi^iot v. Thacher, 7 Met. 
 122 
 
 348, 41 Am. Dec. 444; Parker v. San- 
 horn, 7 Gray, 191; Kirkpatrick v. 
 McElroy, 41 N. J. Eq. 555. 
 
 Labor claims not reduced to judg- 
 ment are not the basis for a bill in 
 chancery. Fntman v. Jacksonville, 
 L. & St. L. R. Co. 61 Fed. Rep. 440. 
 
 Where a receiver is discharged and 
 the property turned back, a judg- 
 ment against the receiver is con- 
 clusive as to the amount and exist- 
 ence of a claim. Garrison v. Texas 
 d 1\ R. Co. 10 Tex. Civ. App. 130. 
 
 Earnings of a railroad and light 
 company before the appointment of a 
 receiver in proceedings to foreclose 
 a mortgage, which were applied to 
 the partial extinguishment of the 
 mortgage debt, or invested in better- 
 ments or improvement of the mort- 
 gage security, or were on hand when 
 the receiver was appointed, may in 
 the discretion of the court be applied 
 to claims that arose for operating ex- 
 penses or were necessary or proper 
 to preserve the property before the 
 appointment of the receiver. Farm- 
 ers' & M. Nat. Bank v. Waco Electric 
 R. d Light Co. (Tex. Civ. App.) 36 
 S. W. 131. 
 
 The receiver of an insolvent bank 
 has no authority to allow or disal- 
 low the claims of creditors ; and 
 where he allows some, and pays a 
 dividend thereon, disallowing others, 
 the court may allow the latter, and 
 order the same dividend to be first 
 paid out of the stockholders' double 
 liability, under the Minnesota stat- 
 ute, and order the distribution of the 
 balance to all the creditors pro rata. 
 Palmer v. Bank of Ztimbrota, 05 
 Minn. 90. 
 
 Mortgagees of railroad property 
 cannot insist that funds properly ap- 
 plicable to unpaid claims should be 
 withheld from them and applied 
 upon the mortgage, because the re- 
 ceivers have paid claims which were 
 not proper charges upon the funds 
 in their hands, and which might 
 have been applied in reduction of the 
 claims remaining unpaid. Grand 
 Trunk R. Co. v. Central Vermont R. 
 Co. 88 Fed. Rep. 620. 
 
 In the allowance of claims the re- 
 ceiver has no power to waive rules 
 of law applicable to policies and by-
 
 CLAIMS AGAINST RECEIVERSHIP FUNDS. 
 
 340 
 
 laws. Evans v. Trimountain Mut. 
 F. Ins. Co. 9 Allen, 329. 
 
 The decision of a receiver as to 
 the admission of a claim is not final. 
 Bank of Bethel v. Pahquioque Bank, 
 14 Wall. 383, sub nom. First ISlat. 
 Bank v. National Pahquioque Bank, 
 20 L. ed. 840. 
 
 One who purchases from a bank 
 shares of its stock cannot recover the 
 price paid therefor from the receiver 
 of the bank, on the ground that his 
 purchase was induced by fraud, until 
 he has established his claim in an 
 action at law against the bank. Wal- 
 lace v. Hood, 89 Fed. Rep. 11. 
 
 The breach of a contract of employ- 
 ment by an insolvent corporation 
 entitles the claimant to no more than 
 any other general creditor. The 
 claim is not wages. Spader v. Mural 
 Decoration Mfg. Co. 47 N. J. Eq. 18. 
 
 The receiver of a mutual insur- 
 ance companj' cannot allow losses oc- 
 curring after the entry of the decree 
 of forfeiture of charter. Insurance 
 Commissioner v. Commercial Mut. 
 Ins. Co. 20 R. I. 7. 
 
 General creditors of a railroad 
 who bring suit to have the corpora- 
 tion wound up as insolvent and to 
 have a receiver appointed cannot 
 claim that expenditures made by the 
 receiver out of the income in satisfac- 
 tion of preferential claims should be 
 charged to the mortgagees where 
 they were made parties to the suit 
 and the foreclosure of the mortgage 
 sought, and even if they were not 
 properly made parties the expendi- 
 tures were essential to the preserva- 
 tion of the railroad system, without 
 which substantial earnings for the 
 benefit of the creditors would not 
 have been possible. Kuhlender v. 
 Chesapeake, O. & 8. W. B. Co. 91 
 Fed. Rep. 5, 33 C. C. A. 299. 
 
 A judgment by default for want of 
 an answer, entered against a cor- 
 poration in an action to recover on a 
 contract for the payment of money 
 only, instituted after the assets had 
 been sequestrated and a receiver ap- 
 pointed under Minn. Gen. Stat. 1894, 
 chap. 70, for the benefit of all its 
 creditors, is not entitled to be ex- 
 hibited and allowed as a claim 
 against the estate, without further 
 proof of the existence and bona fide 
 
 character of the claim on which it is 
 based. Danforth v. National Chemi- 
 cal Co. 08 Minn. 308. 
 
 Judgment entered after the ap- 
 pointment of receivers and the issu- 
 ing of an injunction restraining in- 
 terference with the property of the 
 corporation do not become liens 
 upon the real estate of the corpora- 
 tion not embraced in the mortgage, 
 to foreclose which the suit is brought 
 and in which the receivers were ap- 
 pointed, where such suit is also a 
 general creditors' bill for liquida- 
 tion, although such judgments are 
 entered before the receivers' bonds 
 are perfected by approval. Temple 
 V. Glasgow, 42 U. S. App. 417, 80 
 Fed. Rep. 441, 25 C. C. A. 540, Citing 
 Maynard v. Bond, 67 Mo. 315; Dis- 
 tinguishing Frayser v. Richmond & 
 A. R. Co. 81 Va. 388; Edwards v. 
 Edicards, L. R. 2 Ch. Div. 291; 
 Moran v. Sturges, 154 U. S. 250, 
 38 L. ed. 981. 
 
 A receiver of a mutual insurance 
 company may recognize claims filed 
 with the company in the same man- 
 ner as is required by the decree, 
 though they have never been pre- 
 sented to him according to the de- 
 cree, if he is satisfied that they are 
 just. Insurance Commissioner v. 
 Commercial Mut. Ins. Co. 20 R. I. 7. 
 
 A receiver authorized to pay divi- 
 dends on claims proved to his satis- 
 faction is justified in making pay- 
 ment to a creditor who filed a claim 
 establishing an indebtedness evi- 
 denced by a chattel mortgage and 
 four promissory notes of the corpo- 
 ration, and stating that the claim 
 was presented on her own behalf, as 
 well as on the behalf of one to whom 
 a half interest in the indebtedness 
 had been assigned as collateral se- 
 curity, which assignee filed a claim 
 upon another promissory note, and 
 made no mention of his interest as 
 assignee. Meding v. Todd, 50 N. J. 
 Fq. 820. 
 
 The validity of a director's claim 
 against a corporation cannot be 
 questioned by its receiver in a pro- 
 ceeding to secure the possession of 
 money paid into court under a judg- 
 ment in tlic director's favor, where, 
 upon opening the judgment and per- 
 mitting the receiver to defend, judg-
 
 § 340 
 
 RECEIVERSHIPS— SUPPLEMENT. 
 
 ment is recovered against him. Ten- 
 nant v. Appleby (N. J. Eq.) 41 Atl. 
 110. 
 
 One to whom a claim against an 
 insolvent corporation has been as- 
 signed in part as collateral security, 
 but who filed no claim in respect 
 thereto, cannot hold the receiver li- 
 able for a dividend paid thereon up- 
 on satisfaetorj' proof, to the assign- 
 or, on the ground that he is charge- 
 able with notice of the interest of the 
 assignee from circumstances extrin- 
 sic to the proofs on hie. Meding v. 
 Todd. 50 N. J. Eq. 820. 
 
 Judgments which were liens at the 
 time of the appointment are to be 
 paid in full. Couan v. Pennsyl- 
 vania Plate Glass Co. 184 Pa. 1. 
 
 Under statutes giving a certain 
 class of judgments against a lessee 
 of a railroad a prior lien upon roll- 
 ing stock, but not upon the lease- 
 hold, earnings of a receiver ap- 
 pointed under a general creditors' 
 bill will be distributed to such judg- 
 ments in the proportion which the 
 rolling stock bears to the property 
 of the lessee, including rolling stock 
 and leasehold. Thomas v. Cincin- 
 nati, N. 0. d T. P. R. Co. 91 Fed. 
 Rep. 202. 
 
 Liens upon the entire property of 
 an insolvent debtor in the hands of a 
 receiver appointed under the Georgia 
 traders' act, which are superior to 
 a mortgage on a portion of the prop- 
 erty, antedating the filing of the pe- 
 tition, must be paid out of the fund 
 arising from the sale of the property 
 other than that covered by the mort- 
 gage before resorting to the proceeds 
 of the mortgaged property to the 
 prejudice of the mortgagee, and, if 
 the surplus arising from the sale be- 
 yond the amount necessary to pay 
 oflF the mortgage is not sufficient to 
 meet them, the fund necessary to pay 
 the mortgage can only be diminished 
 to the extent that the general fund 
 is deficient. Bradford v. Cooledge, 
 103 Ga. 753. 
 
 The action of a receiver in allow- 
 ing claims is prima facie binding on 
 the members. Sands v. Hill, 42 
 Barb. 651. 
 
 An agreement by the receiver of a 
 corporation, although made without 
 permission of the court, to pay an 
 124 
 
 execution creditor of the corporation 
 for the amount of his judgment from 
 the jjroceeds of propertj' levied up- 
 on and afterwards turned over to 
 such receiver in consideration of hav- 
 ing such property transferred to him, 
 will be enforced. People v. Nation- 
 al Mat. Ins. Co. 19 App. Div. 247. 
 
 Receivers representing both the 
 creditors of a corporation and the 
 corporation itself may assert any de- 
 fense to a claim against the corpo- 
 ration to which creditors are en- 
 titled, although the corporation is 
 itself estopped. Hamor v. Taylor- 
 Rice Engineering Co. 84 Fed. Rep. 
 392. 
 
 A receiver of a corporation as the 
 representative of its creditors is not 
 estopped to claim that a contract of 
 conditional sale, or chattel mortgage, 
 was not properly recorded, by a re- 
 cital in such instrument. Re Wil- 
 cox & H. Co. 70 Conn. 220. 
 
 Moneys realized on executions 
 must first be allowed before distri- 
 bution. Third Nat. Bank v. Weaver, 
 73 111. App. 463. 
 
 The fair value of goods at the time 
 of attachment, although they 
 brought less than their value at 
 sheriff's sale, must be accounted for 
 before the creditor can share in the 
 benefit of a receivership in another 
 state in which the attachment is not 
 recognized as valid. Ward v. Co7t- 
 necticut Pipe Mfg. Co. 71 Conn. 345, 
 42 L. R. A. 700. 
 
 A creditor with notice of the pend- 
 ency of a winding-ujj suit is not en- 
 titled to share in the distribution 
 without a surrender of whatever ad- 
 vantage he may have obtained by at- 
 tachment in another state. ' Ward v. 
 Connecticut Pipe Mfg. Co. 71 Conn. 
 345, 42 L. R. A. 700. 
 
 A bank in another state is not pre- 
 cluded from participating in the dis- 
 tribution by a receiver appointed in 
 Minnesota of the assets of an insolv- 
 ent indorser of a note held by it be- 
 cause after the receiver's appoint- 
 ment it attached a deposit held by 
 it to the credit of the indorser, since 
 no attachment proceedings were nec- 
 essary to protect it as to the deposit, 
 as it had the right upon the insolv- 
 ency of the indorser to retain the 
 deposit and offset the note against
 
 CLAIMS AGAINST RECEIVERSHIP FUNDS. 
 
 § 340 
 
 the same. Mercantile Nat. Bank v. 
 Macfarlane, 71 Minn. 497. 
 
 A creditor whose claim has been 
 presented late is entitled to receive, 
 before further dividends are declared 
 to other creditors, the same propor- 
 tion of its claim as other creditors 
 have received on their claims. Lon- 
 don <& S. F. Bank v. Willamette 
 Steam-Mill Lumbering d Mfg. Co. 80 
 Fed. Rep. 220. 
 
 The right to present an account 
 for allowance in receivership is not 
 prejudiced by having put it into 
 judgment in another state. Ward 
 V. Connecticut Pipe Mfg. Co. 71 
 Conn. 345, 42 L. R. A. 700. 
 
 Order to present claims. 
 
 An order requiring all claims to 
 be presented to the court within a 
 certain time does not bar recovery 
 of a claim against the company, 
 though not presented within the 
 time. Texas P. R. Co. v. Bloom, 23 
 U. S. App. 143, GO Fed. Rep. 979, 9 
 C. C. A. 300. 
 
 It is the duty of the court of its 
 own motion to direct all creditors to 
 come and prove their claims against 
 the corporation; and any sufficient 
 statement of the nature and amount 
 of the debt due such a creditor is 
 good though it does not conform to 
 the technical requirements of a 
 pleading. Biddle Purchasing Co. v. 
 Port Toivnsend Steel Wire d Nail Co. 
 16 Wash. 681. 
 
 Creditors of an assignor for cred- 
 itors whose assignee was, on his ap- 
 plication, appointed receiver by the 
 chancery court upon the commence- 
 ment of attachment actions against 
 the assignor and the levy of the at- 
 tachment upon the assigned prop- 
 erty, are not guilty of laches in fail- 
 ing to present their claims to the re- 
 ceiver until after the latter has 
 made his report, where the attach- 
 ment suits have not been abandoned, 
 or, if abandoned, no notice has been 
 given to creditors to present their 
 claims and prove the same. Taylor 
 V. Moore, 64 Ark. 23. 
 
 The rule that creditors of an in- 
 solvent corporation may come in at 
 any time before final distribution by 
 the receiver and have a new account 
 at their own expense does not ap- 
 
 ply where the court has ordered that 
 all claims shall be presented within 
 a time specified, and that the fund 
 in the receiver's hands shall be ap- 
 plicable solely to the payment of 
 such claims as shall be presented 
 within that time. Abraham v. Mer- 
 cantile Trust d Dep. Co. 80 Md. 254. 
 
 An order limiting the time for pre- 
 sentation of claims against the as- 
 sets of a corporation will not bar a 
 claim to a trust fund which does not 
 constitute part of the assets. New 
 York Security d T. Co. v. Lombard 
 Investment Co. 75 Fed. Rep. 172. 
 
 A notice requiring all persons hav- 
 ing claims or demands against the 
 receiver of a railroad appointed by a 
 Federal court, to present them to a 
 special master within a given time, 
 does not preclude the prosecution to 
 final judgment of a pending action 
 against the receiver in a state court. 
 Erb V. Popritz, 59 Kan. 204. 
 
 Nonresident claimants to funds in 
 the hands of a receiver of an insol- 
 vent corporation have no greater 
 rights or privileges in respect to fil- 
 ing their claims after the time al- 
 lowed for that purpose by the court 
 than residents have, and they are 
 equally bound with the latter by the 
 publication of a notice for presen- 
 tation of claims within the time lim- 
 ited. Abraham v. Mercantile Trust 
 d Deposit Co. 86 Md. 254. 
 
 The limitation of the time for fil- 
 ing a lien for supplies against a cor- 
 poration under the Virgina Code 
 ceases to run at the filing of a gener- 
 al creditors' bill under which a re- 
 ceiver is appointed; and a lien filed 
 after the expiration of the ninety 
 days allowed is in time where such 
 creditors' bill was filed in time. 
 Ihid. 
 
 The court cannot allow a claim 
 against an insolvent corporation, 
 which has not been presented to the 
 receiver in writing under oath, as 
 required by the New Jersey corjjora- 
 tion act 1890, § 76. Blake v. Domes- 
 tic Mfg. Co. (N. J. Eq.) 41 Atl. 376. 
 
 An application for leave to pre- 
 sent a claim to the receiver of an in- 
 solvent corporation, made more than 
 four years after the exiuration of 
 the time ll.ved by an order of the 
 court for presentation of claims, is 
 
 135
 
 § 341 
 
 RECEIVERSHIPS— SUPPLEMENT. 
 
 properly refused, where the question 
 as to the existence of the corpora- 
 tion, as distinct from another corpo- 
 ration, ui)on wliich the applicant 
 bases his right to relief, has been in- 
 volved in liti{,'ation for about three 
 years, of which fact the petitioner 
 might have known if he had made 
 any inquiries about his claim. Ibid. 
 Where a Federal court appointed 
 a receiver of a railroad, and ordered 
 that all claims should be by inter- 
 vention in the receivership proceed- 
 ing before a certain date, a claim 
 which accrued during the receiver- 
 ship and was not presented before 
 the Federal court within the time 
 allowed was barred. DllUngham v. 
 Kelly, 8 Tex. Civ. App. 113. 
 
 Funds distributed pro rata. 
 
 A reserve fund of a mutual benefit 
 association on insolvency and ap- 
 pointment of a receiver is distributed 
 
 proportionately among all creditors, 
 irrespective of residence. Garham 
 v. Mutual Aid ^oc. 101 Mass. 357. 
 
 The net profits realized by receiv- 
 ers in the operation of the business 
 of a corporation may be by order of 
 court apportioned to mortgagees and 
 general creditors. Lehman Bros. v. 
 Tallassee Mfg. Co. 64 Ala. 507. 
 
 A decree in favor of judgment 
 creditors, setting aside fraudulent 
 confessions of judgments and trans- 
 fers of property by a firm, will not 
 appoint a receiver and direct the ap- 
 plication of the property and its pro- 
 ceeds to the payment of the com- 
 plainant's judgments, where a re- 
 ceiver has been appointed in an ac- 
 tion for the dissolution of the firm; 
 but the property realized from such 
 judgments and transfers will go to 
 such receiver, and be distributed 
 among the creditors pro rata. Met- 
 calf V. Moses, 22 Misc. 664. 
 
 Page 572, sec. 341. — Character of claims allowed. 
 
 Attorney and counsel fees. 
 
 A reasonable charge of an attor- 
 ney for services which benefit all the 
 creditors will be paid out of the 
 funds in the hands of a receiver for 
 distribution. Weigand v. Alliance 
 Supply Co. 44 W. Va. 133. 
 
 A 2>artner of a receiver of an in- 
 solvent corporation may be allowed 
 a sum as compensation for legal serv- 
 ices rendered as counsel to the re- 
 ceiver, where the latter is not to 
 share in such comi^ensation. Re 
 Simpson, 36 App. Div. 502. 
 
 Intervening creditors who file an 
 independent petition asking the 
 court to direct the sale of certain 
 property of an insolvent corporation, 
 which still remains undisposed of in 
 the hands of a receiver of such cor- 
 poration who has been duly ap- 
 pointed, are not entitled to an al- 
 lowance of coimsel fees out of the 
 general fund or out of the fund real- 
 ized from the sale of such property, 
 as it was already in the hands of the 
 receiver under the original proceed- 
 ings. G. Ober d Sons Co. v. Macon 
 Constr. Co. 100 Ga. 035 
 126 
 
 Taxes. 
 
 After a bank has become insolvent 
 and passed into the hands of a re- 
 ceiver, the receiver cannot be com- 
 pelled to pay taxes assessed upon the 
 shares of stock. Stapylton v. Thag- 
 gard, 91 Fed. Rep. 93, 33 C. C. A. 
 353. 
 
 A receiver may be directed to pay 
 an assessment levied upon the prop- 
 erty in his possession, although it is. 
 not shown that there are sufficient 
 funds in his hands to pay the tax in 
 question. Wisicall v. Kunz, 173 111. 
 110. 
 
 Where the county has acquired no 
 lien for taxes on personal property 
 which has passed into the hands of a 
 receiver pending litigations of liens 
 more than sufficient to absorb the 
 property, the county has no claim. 
 Hoicard County v. Strother, 71 Iowa,. 
 683. 
 
 When property in the hands of a 
 receiver is not taxable. Brooks v. 
 Hartford, 61 Conn. 112. 
 
 When receiver should pay fran- 
 chise tax. Re George Mather's Son's-- 
 Co. 52 N. J. Eq. 607.
 
 CLAIMS AGAINST RECEIVERSHIP FUNDS. 
 
 § 341 
 
 When receiver is not liable for 
 franchise tax. Ibid. 
 
 The lien of the state for taxes has 
 IH-iority over the equitable claim of 
 a creditor. Re Columbia his. Co. 
 3 Abb. App. Dec. 239. 
 
 The property in the hands of a re- 
 ceiver is bound for taxes. He can 
 appeal to the court if the tax is in- 
 valid. Ex parte Chamberlain, 55 
 Fed. Rep. 704. 
 
 A petition in the same suit for an. 
 injunction is the proper remedy to 
 prevent a sale for taxes of property 
 in the hands of a receiver. Virginia, 
 T. d C. Steel d I. Co. v, Bristol Land 
 Co. 88 Fed. Rep. 134. 
 
 Taxes are not superior to an at- 
 tachment lien subject to which prop- 
 erty was placed in the hands of a 
 receiver. Re Atlas Iron Constr. Co. 
 19 App. Div. 415. 
 
 The court of primary jurisdiction 
 of a receivership will follow the de- 
 cision of the local Federal court in 
 ordering the receiver to pay local 
 taxes, that such taxes are not irregu- 
 lar and constitute a lien upon the 
 property. Fletcher v. Harney Peak 
 Tin-Min. Co. 84 Fed. Rep. 555. 
 
 Funds in the hands of a receiver 
 are liable to taxation though col- 
 lected in other states. Schmidt v. 
 Failey, 148 Ind. 150, 37 L. R. A. 442. 
 Moneys in the hands of a receiver 
 will not be directed applied to the 
 payment of taxes for the year in 
 which the property was sold, at the 
 instance of a purchaser, where there 
 was nothing in any of the decrees to 
 show that the failure to provide for 
 the paj^ment of taxes for that year 
 was a clerical error or mistake, and 
 the taxes were not due at the time 
 of the sale, and the purchasers by ex- 
 amining the master's report and de- 
 crees could readily have ascertained 
 that no provision had been made for 
 the payment of such taxes. Fidelity 
 Ins. T. d S. D. Co. V. Roanoke Iron 
 Co. 84 Fed. Rep. 752. 
 
 Interest. 
 
 Interest should not be allowed 
 upon a claim given priority over a 
 mortgage in funds in a receiver's 
 hands, where it is not shown that 
 there is a fund specially applicable 
 to its payment that will not be ex- 
 
 hausted by the allowance of interest, 
 but interest should be allowed from 
 the time of the decree in favor of the 
 claimant. Ifew England R. Co. v. 
 Carnegie Steel Co. 75 Fed. Rep. 54, 
 21 C. C. A. 219, 33 U. S. App. 491. 
 
 A receiver is not liable for inter- 
 est on money withheld by him until 
 he could be advised as to his duty in 
 the premises. Guignon v. First Nat. 
 Batik (Mont.) 55 Pac. 1051. 
 
 Interest will not be allowed in 
 South Carolina on open accounts 
 against the receiver of a railroad, in 
 the absence of a contract or course of 
 dealing. South Carolina v. Port 
 Royal d A. R. Co. 89 Fed. Rep. 565. 
 
 As to the payment of interest on 
 encumbrances, see Leicis v. Zouche, 
 2 Sim. 388, 393. 
 
 The court will not take the net 
 earnings in the hands of its receiver, 
 when large expenses have accrued 
 in the management, and apply the 
 same to the payment of interest. 
 Cleveland, C. d S. R. Co. v. Knicker- 
 bocker Trust Co. 64 Fed. Rep. 623. 
 
 Rule where creditors hold collaterals. 
 
 The courts in the exercise of the 
 power conferred by Conn. Gen. Stat. 
 § 1942, to make such orders as to the 
 payment of debts and distribution 
 of the effects of an insolvent corpora- 
 tion by the receiver as may be just 
 and conformable to law, will adopt 
 the principle of the provision of 
 Conn. Gen. Stat. § 590, requiring a 
 secured creditor who presents his 
 claim against an insolvent estate to- 
 elect between the surrender of his 
 security and a dividend only upon 
 the excess of such claim above the 
 value of his security. Re Waddell- 
 Eniz Co. 67 Conn. 324. 
 
 That claims of creditors are se- 
 cured by mortgage on property other 
 than that of the insolvent does not 
 debar tlie holders from sharing in 
 the distribution of funds by the re- 
 ceiver of the insolvent. Taylor v. 
 Moore, 64 Ark. 23. 
 
 The holder of the bonds of an in- 
 solvent corporation as collateral se- 
 curity for an indebtedness is not en- 
 titled to a dividend out of the assets 
 of the corjjoration derived from the 
 property covered by the mortgage 
 securing tlie bonds, on the basis of 
 
 127
 
 §341 
 
 RECEIVERSHIPS— SUPPLEMENT. 
 
 the afrgrcgate of the property debt 
 and the iiniount remaining unpaid 
 on the bonds after the mortgage se- 
 curity has been exhausted. Patt- 
 berg v. Lcicis Pa if here/ iG Bros. 55 N. 
 J. Eq. 004. Distinguishing Dun- 
 eomh V. Xcw York, II. i6 A". li. Co. 84 
 N. Y. 190. 
 
 Expenses. 
 
 The following expenses are prop- 
 erly allowed a receiver: — 
 
 Attorney's fees for defense of the 
 estate. Piatt v. Archer, 13 Blatchf. 
 351 ; Kadish v. Chicago Co-Opcra- 
 tive Breiring Asso. 35 111. App. 411. 
 
 All reasonable expenses in a suit 
 ordered by the court. Fitzgerald v. 
 Fitzgerald, 5 Ir. Eq. Rep. 525; Rob- 
 inson V. Bank of Darien, 18 Ga. 65. 
 
 The ordinary outlays made in good 
 faith by a receiver of a railroad, in 
 the ordinary course of business, for 
 the purpose of promoting the busi- 
 ness of the road and to make it 
 profitable, are within the discretion 
 allowed him. Coicdrey v. Galves- 
 ton, U. c6 H. R. Co. 1 Woods, 331. 
 
 Expenses and counsel fees in re- 
 sisting a motion for removal of a re- 
 ceiver, when he has acted in good 
 faith and integrity, may be allowed. 
 Ibid. 
 
 If the outlay is large the receiver 
 should ap])ly to the court for di- 
 rection. Ibid. 
 
 Expenses of a receiver in complet- 
 ing a contract which he was not 
 bound to complete are payable from 
 the sale of collateral, where the 
 work was done by the consent of all 
 parties. Re A. E. Chasmar & Co. 22 
 Misc. G80. 
 
 A receiver appointed without re- 
 muneration is entitled to premiums 
 paid to his surety, and for manual 
 labor beneficial to the estate, though 
 not part of his duty as receiver. 
 Earris v. Bleep [1897] 2 Ch. 80, 66 
 L. J. Ch. N. S. 596, 76 L. T. N. S. 
 670, Reversing 6G L. J. Ch. N. S. 511, 
 76 L. T. N. S. 458. 
 
 Net earnings are applied primari- 
 ly to the payment of wages, supplies, 
 and materials furnished. Calhoun v. 
 8t. Louis & S. E. R. Co. 9 Biss. 330. 
 
 Holders of bonds secured by mort- 
 gage on a railroad, who are parties 
 to a proceeding to foreclose liens on 
 128 
 
 the property, and become purchasers 
 at a sale under a decree requiring 
 them to pay expenses of a receiver- 
 ship, cannot claim to be subrogated 
 to the rights of the holders of claims 
 so jjaid, so as to be entitled to en- 
 force them against property of the 
 railroad not covered by their mort- 
 gage, to the exclusion of holders of 
 other liens on the road, where the 
 decree plainly intended that the 
 claims should be extinguished when 
 paid. Morgan's L. d T. R. t£- S. 8. 
 Co. V. Moran, 91 Fed. Rep. 22, 33 C. 
 C. A. 313. 
 
 Expenses of a receiver of a railroad 
 in traveling to and from his resi- 
 dence to the railroad property and 
 elsewhere about the country, in the 
 interest of the property in his cus- 
 tody, may be reimbursed to him out 
 of the proceeds of the sale. North- 
 ern Alabama R. Co. v. Hopkins, 59 
 U. S. App. 74, 87 Fed. Rep. 505, 31 
 C. C. A. 94. 
 
 Current expenses are chargeable 
 to the corpus where the income has 
 been diverted. Virginia d A. Coal 
 Co. V. Central R. <& Bkg. Co. 30 U. 
 S. App. 203 : Clark v. Central R. d 
 Bkg. Co. 66 Fed. Rep. 803, 14 C. C. 
 A. 112: Central Trust Co. v. Thur- 
 man, 94 Ga. 735. 
 
 And this irrespective of who may 
 be the ultimate owner. Illinois 
 Trust tG Hav. Bank v. Pacific R. Co. 
 115 Cal. 285. 
 
 Where receivership benefits all, 
 the expenses should be borne by all. 
 Johnson v. Garrett, 23 Minn. 565. 
 
 Receivership funds and property 
 are liable for supplies and equip- 
 ments when not unreasonable, as 
 against a purchaser. South Carolina 
 V. Port Royal d A. R. Co. 89 Fed. 
 Rep. 565. 
 
 And for terminal facilities af- 
 forded the receiver. Ibid. 
 
 And for operating expenses for a 
 reasonable time prior to the appoint- 
 ment of the receiver. Central Trust 
 Co. V. Utah C. R. Co. 16 Utah, 12, 
 Citing Farmers' Loan d T. Co. v. 
 Kansas City, W. d N. W. R. Co. 53 
 Fed. Rep. 182; Burnham v. Bowen, 
 111 U. S. 776, 28 L. ed. 596; Wood 
 V. New York d N. E. R. Co. 70 Fed. 
 Rep. 741 ; Thomas v. Peoria d It. I. 
 R. Co. 36 Fed. Rep. 808.
 
 CLAIMS AGAINST RECEIVERSHIP FUNDS. 
 
 § 341 
 
 A receiver of a corporation is en- 
 titled to a lien prior to that of credit- 
 ors under levies prior to his appoint- 
 ment, for interest and taxes paid by 
 him on the loan levied upon to pro- 
 tect it from sale under a mortgage 
 prior to the levies. Dummer v. 
 ^medley, 110 Mich. 466, 38 L. R. A. 
 490. 
 
 Claims for cars of other railroads, 
 destroyed by a railroad company in 
 the operation of its road within the 
 time specifiedj are within an order 
 directing a receiver to pay all such 
 loss and damage claims arising 
 from the operation of the property 
 as in his judgment are proper to be 
 paid as exjienses of operation. 
 Grand Trunk R. Co. v. Central Ver- 
 mont R. Co. 88 Fed. Rep. 636. 
 
 Mortgagees cannot object to the 
 payment by the receivers of a rail- 
 road of claims for supplies furnished 
 to the road before they took posses- 
 sion, if excess of net earnings re- 
 ceived by them from the time they 
 took possession to the time of the 
 breach of the conditions, over operat- 
 ing exjDenses and fixed charges, was 
 more than enough to pay these 
 claims. Grand Trunk R. Co. v. Cen- 
 tral Vermont R. Co. 88 Fed. Rep. 
 620. 
 
 Claims against an insolvent rail- 
 road company for its right of way 
 taken without paying therefor have 
 priority over certificates of a re- 
 ceiver of such company for expenses 
 of its operation under Tenn. Const, 
 art. 1, § 21, providing that no prop- 
 erty shall be taken or applied to pub- 
 lic use without the consent of the 
 owner or without just compensation 
 being made therefor. Crosby v. 
 Morristown d C. G. R. Co. (Tenn. 
 Ch. App.) 42 S. W. 507. [AflT'd by 
 Sup. Ct.] 
 
 Where the receiver is authorized 
 to incur the expenses of operation, 
 the payment of detectives to prevent 
 loss is proper. Grand Trunk R. Co. 
 V. Central Vermont R. Co. 88 Fed. 
 Rep. 636. 
 
 And so are expenses of a trip to 
 Europe at the instance of bondhold- 
 ers to effect a reorganization. North- 
 ern Alabama R. Co. v. Hopkins, 59 
 U. S. App. 74, 87 Fed. Rep. 505, 31 
 C. C. A. 94. 
 
 9 
 
 And clerical services in making 
 out books for the receiver, where it 
 is necessaiy to an adjustment of the 
 accounts. Mattlieios v. Adams, 84 
 Md. 143. 
 
 And fees of a referee for taking 
 testimony and examining the receiv- 
 er's accounts. Re Merry, 11 App. 
 Div. 597. 
 
 N. Y. Code Civ. Proc. §§ 3236, 
 3251, subd. 4, provides for the al- 
 lowance on such a reference of a 
 sum for reference fees and printing 
 disbursements, in the discretion of 
 the court. Anderson v. Brackeleer 
 25 Misc. 343, Confirming Referee's 
 Report in 28 N. Y. Civ. Proc. Rep. 
 306. 
 
 Referees' fees, counsel fees and ex- 
 penses, including attorneys' fees of 
 the receiver of an insolvent corpora- 
 tion, are properly allowed out of 
 the proceeds of a sale of the property 
 of the corporation. Re F. X. Muller 
 & Co. 47 N. Y. Supp. 277. 
 
 While there is no liability it may 
 be policy to pay an employee a salary 
 during his recovery from a personal 
 injury. Missouri P. R. Co. v. Texas 
 d >. R. Co. 33 Fed. Rep. 701. 
 
 The following expenses of the re- 
 ceiver have been held not allowable: 
 
 Attorneys' fees for hunting up and 
 taking possession of receivership 
 property. Saulsbury v. Lady Ens- 
 ley Coal, I. d R. Co. 110 Ala. 585. 
 
 Attorneys' fees in defending an ap- 
 peal from an order appointing a re- 
 ceiver; for preparing receiver's 
 bond ; costs growing out of his resig- 
 nation. Ibid. 
 
 A receiver proceeding in the wrong 
 form of action cannot recover costs 
 in case of a lunatic's estate. Re 
 Montgomery, 1 Molloy, 419. 
 
 Expenses for prosecution of suit 
 in a foreign country not allowed ex- 
 cept on the sanction of court. Mal- 
 colm V. O'Callaghan, 3 Myl. & C. 52. 
 
 The receiver, being an officer of 
 court, is not entitled to costs (though 
 served with a petition) for his ap- 
 pearance. Herman v. Dunbar, 23 
 Reav. 312. 
 
 A person illegally procuring him- 
 self to be appointed is chaigcalilo 
 with costs. Robinson v. Wood, 39 
 N. Y. S. R. 466. 
 
 The court will not decree the pay- 
 
 129
 
 §341 
 
 RECEIVERSHIPS— SUPPLEMENT. 
 
 ment of receivers' expenses against 
 the party securing the appointment, 
 thoui!:h he fail in his suit, where the 
 appointnu'iit was proper and the se- 
 cured creditors consented. It may 
 be done if the appointment was 
 wrongful. French v. Gifford, 31 
 Iowa, 42S; J affray v. Raah, 72 Iowa, 
 335. 
 
 The salary paid the president of a 
 corporation while its property is in 
 the hands of a receiver is no part of 
 the expenses of the receivership. 
 'New Birmingham Iron & Land Co. 
 V. Blcvins (Tex. Civ. App.) 40 S. W. 
 829. 
 
 A claim for a retainer of counsel 
 in a matter not connected with the 
 operation of the road, and for assess- 
 ment of a railroad association, are 
 ' not within an order directing re- 
 ceivers of a railroad to pay expenses 
 of the operation. Grand Trunk R. 
 Co. V. Central Vermont R. Co. 88 
 Fed. Rep. 03(5. 
 
 An employee of a receiver has no 
 right to file a petition for an order 
 to compel the receiver to pay him. 
 Qatzmer v. Philadelphia & A. C. R. 
 Co. 39 N. J. Eq. 303. 
 
 A receiver of a state court is not 
 chargeable with the expenses of a re- 
 ceiver of the Federal court while the 
 property was in his hands. Central 
 Trust Co. V. Thurman, 94 Ga. 735. 
 
 An attorney employed by a receiv- 
 er at a stipulated salary, who seeks 
 in another court to enforce a claim 
 against the receivership property, 
 must show that his claim for services 
 was authorized by the court or ap- 
 proved by it. International <& G. N. 
 R. Co. V. Rerndon, 11 Tex. Civ. App. 
 465. 
 
 A receiver cannot pay out of as- 
 sets in his hands the taxes upon a 
 tug which was not the property of 
 his principal, the tax lien upon 
 \ which has been enforced in the ad- 
 miralty. McRae v. Bowers Dredg- 
 ing Co. 90 Fed. Rep. 300. 
 
 As to what were costs and ex- 
 penses of receivership, see Seligman 
 V. t^aussy, 00 Ga. 20. 25. 
 
 Parties are not relieved from lia- 
 bility for receivership expenses by a 
 purchase of the receivership prop- 
 erty under a foreclosure, where the 
 receivership funds have been di- 
 130 
 
 verted. Knickerbocker v. McKind- 
 ley Coal & Min. Co. 172 111. 535^ 
 Aflirming 07 111. App. 291. In thia- 
 case there was a stipulated decree. 
 
 So much of the funds in the hands 
 of a permanent receiver appointed 
 in a proceeding under the Georgia 
 traders' act against an insolvent 
 debtor, from the sale of property 
 covered by a mortgage executed and 
 recorded prior to the filing of the pe- 
 tition, as is necessary to paj' off the 
 amount due on the mortgage, is not 
 subject to be diminished by costs and 
 expenses of the receivership; but so 
 much of such costs and expenses 
 which cannot be met by the general 
 fund arising from the sale of the 
 debtor's property in excess of the 
 amount of the mortgage, or not 
 covered by the mortgage lien, shall 
 be taxed against the petitioners^ 
 Bradford v. Cooledge, 103 Ga. 753. 
 
 The i^arties to the suit may be re- 
 quired to pay the receivership- 
 costs and expenses. St. Louis v. St. 
 Louis Gaslight Co. 11 Mo. App. 237. 
 
 As, where the jjlaintiflf, on whose 
 motion the receiver was appointed, 
 had no interest in the receivership 
 property. Cutter v. Pollock, 7 N. 
 D. 031. 
 
 Or where the appointment is pro- 
 cured under the assertion of an un- 
 just and wrongful claim. Righley 
 V. Dcane, 108 111. 200. 
 
 Or where a large sum was pro- 
 cured, by reason of the appointment, 
 for the plaintiff's benefit. Farm- 
 ers' Nat. Bank v. Backus (Minn.) 
 77 N. W. 142. 
 
 Or where the bill is filed to fore- 
 close a fraudulent mortgage. High' 
 ley V. Deane, 04 111. App. 389. 
 
 A stipulation that half the receiv- 
 ership expenses shall be paid by one 
 party and half by the other is a 
 recognition of the regularity of the 
 receiver's appointment and of his 
 right to compensation. Kimmerle v. 
 Dowagiac Mfg. Co. 105 Mich. 640. 
 
 A creditor prosecuting a case 
 through the receiver against third 
 parties is liable for costs if he fails, 
 if the suit is for his sole benefit. 
 Ward V. Roy, 69 N. Y. 90. 
 
 When a receiver is appointed 
 without probable cause, the party 
 procuring the appointment should
 
 CLAIMS AGAINST RECEIVERSHIP FUNDS. 
 
 342 
 
 pay the expenses. Myres v. Frank- 
 enthal, 55 111. App. 390. 
 
 The unsuccessful result of the 
 suit does not justify taxing the re- 
 ceivership expenses to plaintiff. 
 Elk Fork Oil <& Gas Co. v. Jennings, 
 
 90 Fed. Rep. 767; Walton v. Will- 
 iams, 5 Okla. 642. 
 
 When receiver's agreement con- 
 cerning expenses is void. Shade- 
 wald V. White (Minn.) 77 X. W. 42. 
 
 Page 574, sec. 342. — Preferred claims. 
 
 Priority may he determined in 
 the suit in which the receiver is ap- 
 pointed. Myrick v. Selden, 36 Barb. 
 15. 
 
 The right of a corporation, al- 
 though insolvent, to prefer creditors, 
 cannot be exercised by its receiver, 
 since such power terminates when 
 the corporate property is placed in 
 eustodia legis. Re Osceola Milling 
 Co. 76 Mo. App. 23. 
 
 That the personnel of a receiver- 
 ship has been changed will not affect 
 the priority of a claim against the 
 receivership. State v. Port Royal & 
 A. R. Co. 84 Fed. Rep. 67. 
 
 A general creditor has the right to 
 intervene in case of a receivership 
 and contest the validity, as well as 
 the priority, of other claims or as- 
 serted liens. Franklin Nat. Bank v. 
 Whitehead, 149 Ind. 560, 39 L. R. A. 
 725. 
 
 An order of court directing a re- 
 ceiver of a corporation to pay a 
 specified dividend on all claims 
 against the corporation does not 
 make the dividend to which a credit- 
 or is entitled thereunder a preferred 
 lien upon the entire assets of the cor- 
 poration; and the remedy of a credit- 
 or whose dividend has not been paid 
 to him is an application to the court. 
 Rockwell v. Portland Sav. Bank, 31 
 Or. 431. 
 
 The date when claims must have 
 accrued in order to be entitled to 
 priority of payment under Mass. 
 Stat. l"890, chap. 421, § 14, provid- 
 ing that when an assessment insur- 
 ance company shall discontinue busi- 
 ness a receiver may be appointed to 
 administer any unexhausted portion 
 of the emergencj' fund, which shall 
 be used first in the payment of ac- 
 crued claims upon certificates or 
 policies, is the date of the filing of 
 the bill. Atty. Gen. v. Massachu- 
 setts Ben. L. Asso. 171 Mass. 193. 
 
 Notes given in the prosecution of 
 the business of a corporation during 
 the pendency of a bill for the ap- 
 pointment of a receiver, and before 
 the appointment, should be allowed 
 whenever they mature, with an ad- 
 dition or rebate of interest, as in in- 
 solvency proceedings, where the cir- 
 cumstances are such as to render it 
 equitable that the rights of the re- 
 spective parties should be adjusted 
 as of the date of the appointment, 
 and not of the filing of the bill. 
 Jones V. Arena Publishing Co. 171 
 Mass. 22. 
 
 There is no fixed arbitrary rule 
 barring preferential claims that have 
 been contracted more than six 
 months before the appointment of a 
 receiver. New York Guaranty & 
 Indemnity Co. v. Broderick dc B. 
 Rope Co. 48 U. S. App. 668, suh nom. 
 New York Guaranty c6 Indemnity 
 Co. v. Tacoma R. & Motor Co. 83 
 Fed. Rep. 365, 27 C. C. A. 550. 
 
 Priority as between receivers of a 
 bank appointed by diflerent judges 
 in proceedings instituted by a credit- 
 or of the bank and the state treas- 
 urer respectively is to be determined 
 by reference to the date of the ap- 
 pointment, and not by the dates of 
 the commencement of the respective 
 proceedings. Worth v. Piedmont 
 Bank, 121 N. C. 343. 
 
 In supplementary proceedings in 
 North Carolina, priority as between 
 creditors is determined from the date 
 of the application for appointment. 
 Parks v. Sprinkle, 64 N. C. 637. 
 
 Delay of a creditor entitled to 
 priority in the funds in the hands of 
 receivers of a railroad over the mort- 
 gages, until after payment of many 
 other claims of the same class, will 
 not bar recovery if there are assets 
 from which tiie claim can still bo 
 paid. New England R. Co. v. Car- 
 
 131
 
 S 342 
 
 RECEIVERSHIPS— SUPPLEMENT. 
 
 negie Sicel Co. 33 U. S. App. 491, 21 
 C. C. A. 219, 75 Fed. Rep. 54. 
 
 A creditor of an insolvent cor- 
 poration in a proper case may be per- 
 mitted to file his claim after the ex- 
 piration of the period limited for 
 that purpose by a rule of the court, 
 and may be allowed a preferential 
 dividend out of the estates coming 
 into the hands of the receiver to such 
 an extent as will put him on an 
 equality with other creditors who 
 have received partial dividends. 
 Pattberg v. Lciins Pattberg d Bros. 
 55 N. J. Eq. G04. 
 
 A creditor securing the appoint- 
 ment in supplementary proceedings, 
 and who through the receiver ob- 
 tains a decree setting aside a trans- 
 fer of the debtors under 1 N. Y. Rev. 
 Stat. p. 766, § 20, is entitled to 
 prioritv. Stiefel v. Berlin, 28 App. 
 Div. 103. 
 
 Billholders of a bank are not en- 
 titled to priority over other credit- 
 ors. Cochituate Bank v. Colt, 1 
 Gray, 382. 
 
 Creditors of a receiver of a part- 
 nership on account of goods pur- 
 chased from them under order of the 
 court and sanction of the creditors 
 of the partnership, to enable him to 
 dispose of the partnersip assets, are 
 entitled to a preference in the fund 
 in the hands of the receiver over 
 other creditors of the receiver on ac- 
 count of similar sales, who are also 
 creditors of the firm and who have 
 received and retained dividends upon 
 their claims against the firm out of 
 money which should have been ap- 
 plied to the payment of the receiver's 
 creditors. Diamond Match Co. v. 
 Taylor, 83 Md. 394. 
 
 A receiver of a corporation is en- 
 titled to a lien prior to that of 
 creditors under levies prior to his ap- 
 pointment, for interest and taxes 
 paid by him on the land levied upon 
 to protect it from sale under a mort- 
 gage prior to the levies. Dummer 
 V. Smedley, 110 Mich. 466, 38 L. R. 
 A. 490. 
 
 A nonresident cannot by filing an 
 attachment in Pennsylvania obtain 
 preference over a receiver previous- 
 ly appointed of the property of a 
 citizen of a third state. Paladini 
 132 
 
 V. Maryland Silk Co. IS Pa. Co. C.t. 
 175. 
 
 The proceeds of property realized 
 by a receiver in whose hands it was 
 placed subject to attachment liens 
 are properly paid to the attachment 
 creditors without regard to other 
 creditors, where they are less than 
 the amount of the attachment liens. 
 Re Atlas Iron Constr. Co. 19 App. 
 Div. 415. 
 
 The lien of an execution or attach- 
 ment secured prior to the appoint- 
 ment will be entitled to a priority. 
 Pease v. Smith, 63 III. App. 411. 
 
 An attachment creditor of a cor- 
 poration is entitled to payment of 
 the amount of his lien out of funds 
 in the hands of a receiver of the cor- 
 poration to whom the attached 
 property was delivered by the sheriff 
 under an order of court reserving 
 the attachment lien, in preference to 
 a claim for personal taxes assessed 
 against the corporation before the 
 attachment, but not made a lien on 
 the property in question by the issu- 
 ance of a warrant for their collection 
 at that time. Wise v. L. & C. Wise 
 Co. 12 App. Div. 319. 
 
 A seizure designed to give priority 
 in favor of one over other creditors, 
 based on imminence of insolvency, 
 does not secure such priority. Grand 
 Trunk R. Co. v. Central V. R. Co. 88 
 Fed. Rep. 622. 
 
 Receivers of a railroad company 
 which has leased another road, sub- 
 ject to a provision that all the gross 
 earnings of the latter shall be ap- 
 plied first to the expense of mainte- 
 nance and improvement and then to 
 the payment of the interest on the 
 bonds issued by the lessor road, will 
 be directed to make payment of the 
 net earnings to the bondholders in 
 preference to claims for damages 
 arising from the operation of the 
 leased road, where the lease provides 
 that the lessee shall assume all obli- 
 gations of the lessor thereafter in- 
 curred as common carrier, ware- 
 houseman, or otherwise, and save 
 the lessor harmless from all loss by 
 reason of any claim for any neglect, 
 accident, or default happening upon 
 or in connection with the road, and 
 from any claims arising from the 
 maintenance and operation of the
 
 CLAIMS AGAINST RECEIVERSHIP FUNDS. 
 
 342 
 
 road. Grand Trunk R. Co. v. Cen- 
 tral Vermont R. Co. 81 Fed. Rep. 
 60. 
 
 Creditors whose claims are pro- 
 vided by a lease of a railroad to be 
 paid before the payment of net earn- 
 ings to bondholders are not entitled 
 to priority of lien upon the assets 
 in the hands of a receiver of a lessee 
 road which has assumed payment of 
 such claims, where they have let pay- 
 ment to the bondholders be made 
 first, and themselves remain cred- 
 itors of the lessee company. Grand 
 Trunk R. Co. v. Central Vermont R. 
 Co. 78 Fed. Rep. 090. 
 
 A consignor to a commission com- 
 pany of cattle whose proceeds were 
 to be applied to payment of a note 
 given by him to the company is not 
 entitled to a preference in the assets 
 in the hands of a receiver of the com- 
 pany because the company applied 
 the proceeds of such cattle to the dis- 
 charge of its other indebtedness, 
 further than such proceeds came into 
 the hands of the receiver or went 
 into property which has come into 
 his hands. Metropolitan Nat. Bank 
 V. Camphell Commission Co. 77 Fed. 
 Rep. 705. 
 
 Rent for a limited period, in South 
 Carolina, has priority. Malcomson 
 V. WapjMo Mills, 85 Fed. Rep. 907. 
 
 A creditor of a railroad corpora- 
 tion whose claim originated in the 
 negligent act of its servant is not en- 
 titled to be paid in preference to the 
 holders of existing liens upon the 
 corporate property. Farmers' Loan 
 d T. Co. V. Irvine, 48 U. S. App. 324, 
 suh nom. Farmers' Lean £ T. Co. v. 
 Xorthern P. R. Co. 79 Fed. Rep. 227, 
 24 C. C. A. 511. 
 
 A claim for services rendered by 
 attorneys under an order of court, in 
 attempting to enforce the collection 
 of a judgment in favor of the master 
 commissioner, which when collected 
 was intended for the benefit of all 
 the creditors of an insolvent corpo- 
 ration in the hands of a receiver, is 
 entitled to priority over the demands 
 of general creditors in the funds of 
 the corporation in the hands of the 
 special master for distribution, 
 Armstrong v. Wagner, 20 Ky, L. 
 Rep. 142. 
 
 Trust funds. 
 
 The fund in the hands of the re- 
 ceiver of a national bank will not be 
 held to have been augmented by a 
 trustee's deposit, so as to entitle the 
 trustee to a return of the fund in 
 preference to other creditors of the 
 bank, if the deposit was a check on the 
 bank itself by one of its officers, and 
 the credit was merely transferred 
 from one account to the other, with- 
 out any actual deposit of money. 
 Beard v. Independent Dist. GO U. S. 
 App. 372, 88 Fed. Rep. 375. 31 C. 
 C. A. 502. 
 
 A cestui que trust who joins in a 
 release to the trustee in order to pro- 
 cure a loan of the trust fund to a 
 corporation in furtherance of his 
 own individual interest cannot claim 
 a preference over other creditors out 
 of the assets of the corporation in 
 the hands of a receiver, as the fund 
 lost its quality as a trust fund 
 through his acts. Todd v. Meding, 
 56 N. J. Eq. 83. 
 
 It is not essential to the creation 
 of a preference in the funds in the 
 hands of a receiver of a bank for 
 trust funds held by the bank that the 
 trust fund shall be actually traced 
 into specific property coming into 
 the hands of the receiver, but it is 
 sufficient if it can be traced into the 
 general assets of the bank. Leonard 
 V. Latimer, 67 Mo. App. 138. 
 
 Receivers' certificates. 
 
 Receivers' certificates are not en- 
 titled to priority as against other 
 lien holders not consenting. Doe v. 
 Northwestern Coal c6 Tra)isp. Co. 78 
 Fed. Rep. 02. 
 
 Persons taking receivers' certifi- 
 cates issued under order of court not 
 making them a prior lien to all other 
 claims, in place of prior certificates 
 which are ordered to be made such 
 prior lien, are not entitled to the 
 preference given under the first or- 
 der. Lewis v. Linden Steel Co. 27 
 Pittsb. L. J. N. S. 395. 
 
 Of mortgagees. 
 
 Claims not in existence wiien a 
 mortgage was executed, and which 
 are not given priority by contract 
 or by law, have no uriority over the 
 
 138
 
 § 342 
 
 RECEIVERSHIPS— SUPPLEMENT. 
 
 mortgage. Farmers' & M. Nat. Bank 
 V. Waco Electric R. & Light Co. 
 (Tex. Civ. App.) 36 S. W. 131. 
 
 The liiw in reference to preferences 
 over tlie mortgage debts in property 
 of railroads in the hands of receivers 
 ip applicable to a water company or- 
 ganized for irrigation purposes, as 
 such purjioses are a public use and 
 it is essential to the interests of the 
 public that the company be kept a 
 going concern. Atlantic Trust Co. 
 V. Woodbridge Canal & Irrig. Co. 79 
 Eed. Rep. 39. 
 
 A receiver of an irrigation com- 
 pany cannot be directed to convey 
 water rights to the holder of scrip 
 expressly stipulating that it is ac- 
 cepted only as a payment for the 
 purchase of a permanent water right, 
 and not as a claim against the com- 
 pany for any other purpose whatever, 
 and the water rights sought to be 
 recognized as against the mortgage 
 lien are not appurtenant or attached 
 to any specific land. Atlantic Trust 
 Co. V. Woodbridge Canal & Irrig. Co. 
 79 Fed. Rep. 501. 
 
 Holders of scrip issued by a water 
 company and receivable in pajinent 
 of any water rights are not entitled 
 to priority over a mortgage in the 
 proceeds of the property of the com- 
 pany in the hands of a receiver, what- 
 ever might have been the rights of 
 the person who furnished the ma- 
 terial and supplies for which such 
 scrip was issued. Ibid. 
 
 All earnings and rents collected by 
 a receiver ajipointed in an action in 
 the nature of a creditors' bill are sub- 
 ject to the lien of a valid mortgage 
 executed before the rendition of the 
 judgment in favor of plaintiff, and 
 must be paid over to the mortgagee 
 alter deducting the expenses of the 
 receivership, where such mortgagee 
 intervenes in the action, provided 
 such payment is necessary to satisfy 
 a deficiency after the sale of the 
 mortgaged property. McKenzie v. 
 Bismarck Water Co. 6 N. D. 361. 
 
 A mortgagee has an equitable 
 claim on the rents due and to accrue 
 superior to any arising subsequent 
 to the mortgage, by reason of a re- 
 ceivership; and the tenants will be 
 compelled to attorn. Woodyatt v. 
 Conncll, 38 111. App. 475. 
 134 
 
 The provision of the acts relating 
 to the Chesapeake & Ohio Canal 
 Company and the Baltimore & Ohio 
 Railroad Company, by which the 
 state of Marjiand subscribed to the 
 stock, that the company shall be 
 bound to pay out of the profits a 
 dividend of 6 per cent per annum, 
 and that the state shall be entitled to 
 have and receive such perpetual divi- 
 dend out of the profits of the work 
 as declared from time to time, does 
 not make any pledge or specific ap- 
 propriation of the profits which will 
 entitle the holders of such preferred 
 stock to priority in the net profits 
 over the liens of subsequent mort- 
 gage bondholders, or the rights of 
 lessors of properties held under 
 leases, or of holders of equipment 
 contracts giving a right of possession 
 upon default. Mercantile Trust Co. 
 V. Baltimore & 0. It. Co. 82 Fed. Rep. 
 360. 
 
 Complainants in a suit to fore- 
 close a mortgage made by a corpo- 
 ration, of all whose property a re- 
 ceiver is appointed in the suit, are 
 upon a par with other general cred- 
 itors who may become parties to the 
 proceeding, as to any unsatisfied bal- 
 ance that may remain due them, aft- 
 er appropriation to their demand of 
 the i^roeeeds of the property upon 
 which the mortgage is foreclosed, in 
 the assets not subject to the mort- 
 gage or the judgment liens. Mer- 
 cantile Trust Co. V. Southern States 
 Land d T. Co. 52 U. S. App. 075, 86 
 Eed. Rep. 711. 30 C. C. A. 349. 
 
 A preferential claim cannot be al- 
 lowed against the property of a les- 
 sor railroad company for the value 
 of rails sold to and on the credit of 
 a stockholder for the benefit of the 
 lessee, over mortgage bondholders of 
 the lessor. Ruhlender v. Chesa- 
 peake, 0. & S. W. R. Co. 91 Fed. Rep. 
 5, 33 C. C. A. 299. 
 
 Where a junior mortgagee obtains 
 the appointment of a receiver, and 
 is authorized to take possession and 
 operate a railroad and receive its 
 earnings, a senior mortgagee may 
 apply for and obtain such earnings. 
 Seibcrt v. Minneapolis d St. L. R. 
 Co. 52 Minn. 246. 
 
 Arrears of salary of the president 
 of a railroad company will not be
 
 CLAIMS AGA NST RECEIVERSHIP FUNDS. 
 
 343 
 
 paid, in preference to the lien of a 
 mortgage, from income. ISlational 
 Bank v. Carolina, K. & W. R. Co. 
 63 Fed. Hep. 25. 
 
 The lien of a valid mortgage on 
 railroad property existing at the 
 time of filing a bill, under Ga. Civ. 
 Code, §§ 2719 et seq., for the ap- 
 pointment of a receiver of the rail- 
 road property, cannot be displaced 
 so as to give a preference to a cred- 
 itor who relies solely on a preferen- 
 tial equity. Alexander v. Mercantile 
 Trust cG D. Co. 100 Ga. 537. 
 
 A mortgage upon city lots after- 
 wards becoming part of street-rail- 
 way property cannot be subordinated 
 to the expenses of a receiver of the 
 property of the company. Third 
 street <C- S. R. Co. v. Lewis, 48 U. S. 
 App. 273. 79 Fed. Rep. 190, 24 C. C. 
 A. 482. 
 
 Preference to railroad mortgagees 
 is not gained by payment of a judg- 
 ment against the railroad company 
 for damages, when it is paid after 
 its afhrmance on appeal by the 
 surety on a supersedeas bond who 
 signed it when the mortgage was in 
 •existence and no default had been 
 made upon it and when the railroad 
 •company was apparently solvent, al- 
 though the bond may have benefited 
 the mortgagees by preventing a levy 
 on the railroad which might have 
 worked detriment to them directly 
 and indirectly as substantial owners 
 of the property. Whiteley v. Cen- 
 tral Trust Co. 43 U. S. App. G43, 76 
 Fed. Rep. 74, 22 C. C. A. 67, 34 L. 
 R. A. 303. 
 
 As to when a mortgagee is entitled 
 to priority in rents over an assignee 
 of the lease from the mortgagor, see 
 Citizens' Sav. d L. Co. v. French, 4 
 Ohio N. P. 61. 
 
 Of judgment creditors. 
 
 Judgments obtained against an in- 
 solvent corporation after the ap- 
 pointment of a receiver of its assets 
 are not liens upon the real estate. 
 Fidelity Ins. T. & H. D. Co. v. Ro- 
 anoke Iron Co. 81 Fed. Rep. 439. 
 
 Judgment creditors an; entitled to 
 be paid out of surplus income real- 
 ized by a receiver appointed in a 
 stockholder's suit prior to tlic filing 
 of a bill of foreclosure in wliidi lie 
 
 was subsequently appointed in pref- 
 erence to the mortg-age debt. Veatch 
 v. American Loan & T. Co. 49 U. S. 
 App. 191, 79 Fed. Rep. 471, 25 C. C. 
 A. 39. 
 
 Judgments recovered against an 
 insolvent corporation after the ap- 
 pointment of a receiver, whether en- 
 tered by leave of court or not, are not 
 such liens on the corporate real es- 
 tate as to be entitled to preference 
 in the distribution of the receiver- 
 ship funds. Coican v. Pennsylvania 
 Flute Glass Co. 184 Pa. 1. 
 
 Judgment cretlitors' liens lost by 
 laches are not entitled to priority. 
 Savings d T. Co. v. Bear Valley 
 Irrig. Co. 89 Fed. Rep. 32. 
 
 An order appointing a receiver of 
 moneys receivable by a corporation 
 from its interest in a ship and her 
 freight does not confer on a judg- 
 ment creditor any charge on the cor- 
 poration's property, so as to make 
 him a secured creditor, and is not 
 equivalent to a seizure of the prop- 
 erty in execution. Croshaw v. Lynd- 
 hurst Ship Co. [1897] 2 Ch. 154, 66 
 L. J. Ch. N. S. 576, 76 L. T. N. S. 
 553. 
 
 Judgment creditors are entitled to 
 priority though the judgment is aft- 
 er the appointment but before the 
 decree in an action to administer 
 the property of a corporation. 
 Moore v. Southern States Land & 
 Timber Co. 83 Fed. Rep. 399. 
 
 A judgment entered nunc pro tunc 
 antedating the appointment is not 
 entitled to priority over other cred- 
 itors. Coivan V. Pennsylvania Plate 
 Glass Co. 184 Pa. 1. 
 
 Nor is one entered after the ap- 
 pointment, though suit was com- 
 menced prior. Lang v. Macon Constr^ 
 Co. 101 Ga. 343. 
 
 A covenant in a lease of a rail- 
 road, that the gross earnings sliall 
 be applied first to satisfy obligations 
 assumed by the lessee of the lessor 
 "as common carrier, warehouseman, 
 or otherwise," and thereafter to ])ay- 
 ment of the interest on mortgage 
 bonds of the h'ssor, does not giv(( pri- 
 ority in earnings of tlie road in the 
 hands of receivers of the lessee, to a 
 judgment upon a note made by tlie 
 lessor company. Wcldrn Xat. Itnnk 
 v. I'ar.ions, 57 U. S. Apj). 136, sub 
 
 135
 
 § 343 
 
 KECEIVERSHIPS— SUPPLEMENT. 
 
 nom. Wcldcn Wat. Bank v. Ismith, 
 86 Fed. Kcp. 398, 30 C. C. A. 133. 
 
 The holders of judgments against 
 a railroad, who are given a lien pri- 
 or to the mortgage, are entitled to 
 priority over of the earnings of the 
 receiver appointed under a general 
 creditors' bill. Thomas v. Cincin- 
 nati, N. 0. tC- T. P. It. Co. 91 Fed. 
 Rep. 202. 
 
 A plaintiff in a general creditors' 
 bill against an insolvent corporation, 
 who bases his claim on a judgment 
 against the company for a specified 
 amount for breach of a contract by 
 the company to construct a depot 
 and perform other agreements made 
 as a consideration for the con- 
 veyance to it by plaintiff of land for 
 a right of way, does not occupy the 
 position of a right-of-way claimant 
 in the creditors' bill as to preference 
 in the funds in the hands of a re- 
 ceiver. Crosby v. Morristoion <& G. 
 a. It. Co. (Tenn. Ch. App.) 42 S. W. 
 507. 
 
 For personal injuries and death. 
 
 A claim for damages for personal 
 injuries resulting fiom a negligent 
 act of a mortgagor railroad company, 
 committed before the appointment of 
 a receiver in a suit to foreclose the 
 mortgage, is not a preferential claim 
 entitled to be paid out of the income 
 or corpus of the mortgaged property, 
 to the exclusion of the mortgage 
 debt. Veatch v. American Loan c€ 
 T. Co. 49 U. S. App. 191, 79 Fed. 
 Rep. 471, 25 C. C. A. 39. 
 
 Claims for injuries by the negli- 
 gence of a railroad company prior to 
 the appointment of a receiver, but 
 after the execution of and recording 
 of mortgages upon the road, cannot 
 be given precedence over the mort- 
 gage liens in the funds in the hands 
 of the receiver. Farmers' Loan d 
 T. Co. v. Northern P. R. Go. 74 Fed. 
 Rep. 431. 
 
 Expenditure by a receiver of in- 
 come for improvements and altera- 
 tion of a railroad will not entitle 
 claims for personal injuries to pref- 
 erence on the ground that such ex- 
 penditure was a diversion, where the 
 mortgage clearly authorizes an ex- 
 penditure of the income of the mort- 
 gaged property for such purposes by 
 136 
 
 the trustee. Veatch v. American 
 Loan d T. Co. 49 U. S. App. 191, 79 
 Fed. Rep., 471, 25 C. C. A. 39. 
 
 Claims for damages caused by 
 negligence in the operation of a 
 mortgaged railroad cannot be paid 
 as jDreferential claims out of the as- 
 sets in the hands of the receiver. 
 Front Street Cable R. Co. v. Drake, 
 84 Fed. Rep. 257. 
 
 The holder of a judgment for per- 
 sonal injuries against a railroad 
 company cannot claim preference to 
 a mortgage debt out of the assets iu 
 the hands of a receiver because an- 
 other railroad company while operat- 
 ing the road of the mortgagor and 
 judgment debtor has expended in- 
 come in making permanent improve- 
 ments instead of appropriating it as 
 required by the contract to the pay- 
 ment of operating expenses, as the 
 breach of such provision can be com- 
 plained of only by the company own- 
 ing the road, since such company 
 could itself have made such expendi- 
 ture. Veatch v. America )i Loan & 
 T. Co. 49 U. S. App. 191,79 Fed. Rep. 
 471, 25 C. C. A. 39. 
 
 The holder of a judgment against 
 a railroad company for negligent 
 death is not entitled to preference 
 over mortgage indebtedness in the 
 assets in the hands of a receiver, be- 
 cause execution and levy upon the 
 judgment were prevented by a writ 
 of error and supersedeas, on the 
 ground that the surety, having saved 
 the property from seizure and sale, 
 is entitled to protection, and such 
 creditor can avail himself of such 
 equity, as the surety, having re- 
 quired no indemnity, must be held 
 to have signed the bond on the per- 
 sonal credit and resijonsibility of the 
 principal. 'Neio York Security & x'. 
 Co. V. Louisville, E. & 8t. L. C. R. Co. 
 79 Fed. Rep. 386. 
 
 For taxes. 
 
 City taxes assessed against a mu- 
 tual insurance company after it had 
 ceased to do business and before the 
 filing of a petition for the forfeiture 
 of its charter are entitled to a pref- 
 erence in the funds in the hands of a 
 receiver, under R. 1. Gen. Laws, chap. 
 50, § 3, providing that when any per- 
 son (which includes a corporation)
 
 CLAIMS AGAINST RECEIVERSHIP FUNDS. 
 
 S 343 
 
 shall become insolvent town taxes 
 shall have preference over general 
 debts. Insurance Commissioner v. 
 Commercial Mut. Ins. Co. 20 R. I. 7. 
 The absence of any effectual stat- 
 utory method for the enforcement of 
 tax liens which have accrued at the 
 time of the appointment of a receiver 
 of an insolvent corporation under the 
 New Jersey corporation act 1896 
 does not prevent the allowance of 
 such liens as a preferred claim, as 
 the possession of the assets of the 
 corporation by the court through the 
 receiver for distribution is in itself 
 a clear source of jurisdiction for the 
 enforcement of the lien. Duryee v. 
 United States Credit System Co. 55 
 N. J. Eq. 311. 
 
 For labor, supplies, and other operat- 
 ing expenses. 
 
 For labor claims allowed, see 
 Putman v. Jacksonville, L. & St. L. 
 R. Co. 61 Fed. Rep. 440. 
 
 A percentage on sales allowed an 
 employee of a corporation in addi- 
 tion to his regular stated salary 
 constitutes a part of his salary, un- 
 der N. Y. Laws 1885, chap. 376, giv- 
 ing employees of corporations of 
 which a receiver has been appointed 
 the right to payment of wages out 
 of the money which first comes into 
 the receiver's hands. Re Luxton d 
 B. Co. 35 App. Div. 243. 
 
 A traveling salesman of a corpo- 
 ration under a contract of employ- 
 ment by the year is within N. Y. 
 Laws 1885, chap. 376, providing that 
 where a receiver of a domestic corpo- 
 ration shall be appointed the wages 
 of the "employees" shall be preferred 
 to all other claims. Re Fitzgerald, 
 21 Misc. 226, Disapproving Re 
 Stryker, 73 Hun, 327. 
 
 An employee of a corporation un- 
 der a contract of employment by the 
 year is not negligent, so as to de- 
 prive him of a preference for his 
 wages on the appointment of a re- 
 ceiver a month after the expiration 
 of the year, where his wages were 
 not due until the end of the year, un- 
 der N. Y. Laws 1885, chap. 376, giv- 
 ing a preference to the wages of em- 
 ployees on the appointment of a re- 
 ceiver for a corporation. Ihid, Dis- 
 tinguishing Re Scott, 148 N. Y. 588. 
 
 One employed by a manufacturing 
 corporation to set up, take down, 
 and repair reapers and mowers, and 
 to unpack and repack them, is with- 
 in N. Y. Laws 1885, chap. 376, pro- 
 viding that where a receiver of a cor- 
 poration organized and doing busi- 
 ness in the state, other than insur- 
 ance and moneyed corporations, shall 
 be appointed, the wages of the em- 
 ployees, operatives, and laborers 
 thereof shall be preferred, although 
 he was also employed to sell ma- 
 chines. Palmer v. Van Santvoord^ 
 17 App. Div. 194. 
 
 A manager of a manufacturing 
 corporation, who does not engage in 
 the performance of manual labor, or 
 render any other service than the 
 general supervision of the affairs of 
 the company, is not an employee 
 within X. Y. Laws 1885, chap. 376, 
 giving a preference to employees for 
 wages in the funds in the hands of a 
 receiver of the corporation. Re 
 American Lace cC- F. P. Works Direct- 
 ors, 30 App. Div. 321. 
 
 A traveling salesman for a firm is 
 an employee within the New York 
 statute, and entitled to a preference 
 for his wages, on a dissolution of the 
 firm and the appointment of a re- 
 ceiver. Mayer v. Stern, 47 N. Y. 
 Supp. 965. 
 
 Debts due the employees of a rail- 
 road company at the time a receiver 
 of all its property is appointed, up- 
 on the application of the mortgagee 
 in an action to foreclose his mort- 
 gage, have a preference in equity 
 over any claim of the mortgagee in 
 the earnings which may come to the 
 receiver while he is so operating the 
 road. Franklin Trust Co. v. North- 
 ern Adirondack R. Co. 11 App. Div. 
 249. 
 
 A receiver appointed to take pos- 
 session of and operate a railroad 
 pending foreclosure of a mortgage 
 thereon, and to make all rei)airs, and 
 keep up a proper standing of cfli- 
 ciency, and pay all such ex])pnse3 
 out of the assets, ineoiiic, and piofits, 
 is entitled to a credit for expendi- 
 tures for necessary repairs and 
 taxes, as against employees of the 
 road having chiims for wages due at 
 the time of his appointment, there 
 being no direction in tlic order of 
 
 137
 
 § 343 
 
 KECEIVERSHIPS— SUPPLEMENT. 
 
 his appointment for paying such 
 claims. Ihid. 
 
 A receiver appointed in an action 
 for tlie foicclosiue of a mortgage ui)- 
 on a railroad, to take possession of 
 the road and operate the same pend- 
 ing the action, is not such a receiver 
 as is contemplated by N. Y. Laws 
 1885, chap. 370, providing that where 
 a receiver of a corporation shall be 
 appointed the wages of employees 
 shall be ])referred to any other debt 
 or claim against the corporation, 
 and shall be paid by the receiver 
 from the moneys of such corporation 
 which shall first come to his hands. 
 Ibid. 
 
 The provision in IJurns's (Ind.) 
 Kev. Stat. 1894, § 7058, which makes 
 all debts due any person for manual 
 or mechanical labor a preferred 
 claim against a corporation whose 
 property is in the hands of a receiv- 
 er, does not include contractors en- 
 gaged to complete certain work for 
 an agreed sum. Anderson Driving 
 Park Asso. v. Thompson, 18 Ind. 
 App. 458. 
 
 The usual rule is to give claims 
 for materials and labor for six 
 months preceding the appointment 
 of a receiver of a railroad corpora- 
 tion preference over prior bonds. 
 Rutherford v. Pennsylvania Midland 
 R. Co. 178 Pa. 38. 
 
 A creditor of a corporation on ac- 
 count of material and labor fur- 
 nished more than six months prior to 
 the appointment of a receiver can- 
 not complain of the action of the 
 court in permitting the issuance of 
 receiver's certificates to be liens on 
 the property prior to the mortgage 
 bonds, on account of similar claims 
 accruing within the six months. 
 lUd. 
 
 A chemist performing services in 
 his profession in the analysis of met- 
 als for an iron company is not en- 
 titled to preference as a laborer to 
 funds in the hands of a receiver of 
 such company under the Pennsyl- 
 vania wages act, although the same 
 work might have been done by any 
 ordinarily intelligent man. Cullum 
 V. Lickdale Iron Co. 5 Pa. Dist. R. 
 622. 
 
 Claims for labor performed for a 
 corporation ai'e not entitled to pri- 
 138 
 
 ority in a fund in the hands of the 
 receiver of a copartnership, arising 
 out of the sale by him of its property 
 to the corporation, discharged of all 
 liens against the jaartnership, under 
 Iowa Laws 23d Gen. Assem. chap. 48, 
 Iowa Code, § 3079. Haw v. Burch 
 (Iowa) 77 N. W. 401. 
 
 The receiver of a manufactviring 
 company can derive no authority of 
 the court, except in railway cases, 
 to pay labor claims in preference to 
 the liens of mortgages. Merchants^ 
 Bank v. Moore, 100 Ala. 040. 
 
 The purchase price of products 
 sold, in the hands of a receiver, is a 
 fund to which employees whose 
 wages accrued within six months 
 have priority. Drennen v. Mercan- 
 tile Trust d Deposit Co. 115 Ala. 592, 
 39 L. R. A. 023. 
 
 Employees of a corporation in the 
 hands of a receiver on foreclosure of 
 a mortgage have a perfect equity m 
 priority of payment of wages earned 
 within six months before the receiv- 
 er's appointment, v/hen the funds 
 from which they ought to have been 
 paid have been used for the benefit 
 of the bondholders, even if the terms 
 of the mortgage embrace income. 
 Ibid. 
 
 Labor necessary to the continua- 
 tion of the business of a corporation 
 does not entitle the workmen to pri- 
 ority of payment out of the assets 
 of a receiver on foreclosure of a 
 mortgage, if the labor is not shown 
 to have been to the advantage of the 
 bondholders, or necessary in conser- 
 vation of their interests, or if the 
 receiver has not realized any income 
 out of which the wages should be 
 paid. Ibid. 
 
 Mere casual and incidental re- 
 pairs to remedy defects caused by 
 current use are not improvements or 
 betterments within the rule which 
 gives priority to wages out of the as- 
 sets of a receiver of a corporation 
 when funds that should have been 
 used to pay wages have gone into 
 improvements. Ibid. 
 
 Assignees of employees may have 
 their priority of payment out of the 
 assets of a receiver. Ibid. 
 
 A receiver of an insolvent corpo- 
 ration appointed under the general 
 equity powers of the court will rec-
 
 CLAIMS AGAINST RECEIVERSHIP FUNDS. 
 
 343 
 
 ognize and enforce preferences which 
 would be accorded to taxes and debts 
 due to workmen for labor in a legal 
 proceeding. Jones v. Arena Publish- 
 ing Co. 171 Mass. 22. 
 
 A purchaser of partnership prop- 
 erty at a sale under foreclosure of u 
 deed of trust, while the property was 
 in the hands of a receiver appointed 
 in an action to dissolve the firm, is 
 estopped to assert his title to defeat 
 a charge upon the property in favor 
 of persons who furnished the sup- 
 plies to the receiver necessary to the 
 operation of the business of the firm, 
 while the property remained in his 
 possession with the consent of the 
 purchaser pending an appeal from an 
 order directing him to turn the same 
 over to the purchaser. Knicker- 
 bocker v. McKindley Coal & M. Co. 
 172 111. 535, Affirming 67 111. App. 
 291. 
 
 The lien of employees of a firm, 
 for labor performed by them, is su- 
 perior to the lien of a mortgage on 
 personal property belonging to the 
 firm, where the partnership goes in- 
 to the hands of a receiver, under 2 
 Starr. & C. (111.) Stat. p. 2580, pro- 
 viding that when the business of any 
 firm is put into the hands of a re- 
 ceiver the debts owing to laborers for 
 labor shall be treated as prefer re. 1 
 claims and be first paid in full. 
 Dolese v. Shepard (111.) 2 Chic. L. 
 J. Wkly. 478, Citing Reynolds v. 
 Black, 91 Iowa, 1; Piatt v. Union P. 
 R. Co. 99 U. S. 48, 25 L. ed. 424 ; 
 Walker v. Whitehead, 10 Wall. 314, 
 21 L. ed. 357. 
 
 The amount due for material used 
 in the construction of rolling stock 
 is entitled to priority over the mort- 
 gage. Ht. Louis, A. & a. R. Co. v. 
 Crews, 75 111. App. 490. 
 
 And so as to labor and material 
 necessary to keep a railroad a going 
 concern. Cleveland, C. & S. R. Co. 
 V. Knickerbocker Trust Co. 80 Fed. 
 Eep. 73 ; Southern R. Co. v. Carnegie 
 Steel Co. 7G Fed. Rep. 492, 42 U. S. 
 App. 145, 22 C. C. A. 289. 
 
 And as to the cost of replacing an 
 old bridge where it has become un- 
 safe. Cleveland, C. & S. R. Co. v. 
 Knickerbocker Trust Co. 80 Fed. 
 Rep. 73 ; Southern R. Co. v. Ameri- 
 can Brake Co. 70 Fed. Rep. 502, 42 
 
 U. S. App. 162, 22 C. C. A. 298; 
 Southern R. Co. v. Adams, 42 U. S. 
 App. 167, 76 Fed. Rep. 504, 22 C. C. 
 A. 300. 
 
 A corporation which assumes the 
 operation of the railroad of another 
 corporation by its lessee, all the 
 earnings of both roads being depos- 
 ited in a common fund out of which 
 wages and supplies are purchased 
 generally by the lessee for the bene- 
 fit of both roads, is not entitled to a 
 lien for supplies and labor furnished 
 for the amount shown to be due from 
 the company for which such road is 
 operated, upon its assets in the 
 hands of a receiver, but such amount 
 is for money advanced. United 
 States Trust Co. v. Western Con- 
 tract Co. 54 U. S. App. 67, 81 Fed. 
 Rep. 454, 20 C. C. A. 472. 
 
 The compensation of the manager 
 and of the secretary and treasurer 
 of a corporation is not within Va. 
 Code, § 2485, giving a lien upon the 
 personal property of a mining or 
 manufacturing corporation for 
 wages, so as to entitle him to a lien 
 upon its assets in the hands of a re- 
 ceiver. Fidelity Ins. Trust d S. D. 
 Co. v. Roanoke Iron Co. 81 Fed. Rep. 
 439. 
 
 A transfer by an iron company, of 
 which a receiver is afterwards ap- 
 pointed, of iron, accompanied bj' a 
 bill of lading, to factors who make 
 advances thereon and are to sell the 
 same and account therefor to the 
 company, deprives the company of 
 any property in the iron, to which 
 the lien given by Va. Code, § 2485, 
 upon the personal property of a man- 
 ufacturing company for supplies can 
 attach. Ibid. 
 
 Labor claims against a railroad, 
 which accrued more than six moniiis 
 before the appointment of a receiver, 
 cannot be given priority of payment 
 out of the funds in his hands. 
 Thomas v. Cincinnati, V. (). iG T. P. 
 R. Co. 91 Fed. Rep. 195. 
 
 Services of a laborer in repairs 
 and iini)rovem(>iits ujion a water- 
 wf)rks cannot be given j)reference 
 to a mortgage lien in the assets 
 ill the hands of a receiver, where 
 there is no diversion of income. At- 
 lantic Trust Co. v. Woodhriilgc Canal 
 it- Irrig. Co. 79 Fed. Rep. 39. 
 
 139
 
 342 
 
 RECEIVERSHIPS— SUPPLEMENT. 
 
 Expenses of proceedings to record 
 a mechanic's lien cannot be <i;iven 
 preference in funds in the hands of 
 a receiver, where all claim to prefer- 
 ence is based upon the ground that 
 the nature of the services rendered 
 gives them an equity superior to that 
 possessed by the bondholders, and 
 not upon the fact of the lien ac- 
 quired. Atlantic Trust Co. v. Wood- 
 hridge Canal c£ Irrig. Co. 86 Fed. 
 Rep. 975. 
 
 Services of a laborer in construc- 
 tion of waterworks cannot be given 
 a preference in the assets in the 
 hands of a receiver to a mortgage 
 lien. Atlantic Trust Co. v. Wood- 
 bridge Canal dc Irrig. Co. 79 Fed. 
 Rep. 39. 
 
 Preference for the construction of 
 an extension canal system cannot 
 be given in funds in the hands of a 
 receiver of the canal company, on 
 the ground that they were incurred 
 to keep the system a going concern, 
 because prior to such extension the 
 company was not a paying concern, 
 where it does not appear that the 
 property was thereby placed upon a 
 paying basis. Atlanta Trust Co. v. 
 Woodbridge Canal d Irrig. Co. 86 
 Fed. Rep. 975. 
 
 A claim for services rendered 
 purely in constructing an addition 
 to a system of canals which was 
 never completed or in operation can- 
 not be given preference in funds in 
 the hands of a receiver over claims 
 of bondholders. Ibid. 
 
 Services or materials rendered in 
 extending a system of canals owned 
 by a corporation are not necessary 
 to the preservation of the existing 
 canals and ditches^ so as to give a 
 claim therefor priority in the funds 
 in the hands of a receiver appointed 
 in a mortgage foreclosure. Ibid. 
 
 Services of a laborer in the opera- 
 tion of a waterworks, keeping it a 
 going concern, may be entitled to 
 preference even out of the corpus of 
 the assets in the hands of a receiver 
 over a mortgage lien. Atlantic 
 Trust Co. V. Woodbridge Canal & 
 Irrig. Co. 79 Fed. Rep. 39. 
 
 A lien for laborer's wages taking 
 precedence of mortgages in assets in 
 a receiver's hands under the Vir- 
 ginia statute is invalid when based 
 140 
 
 upon notes given by a corporation 
 for labor, and there is nothing to 
 show when the labor was performed 
 or when the claims therefor were 
 due, as the statute does not contem- 
 plate that the company may give its 
 note, and that when such note is due 
 ninety days shall be allowed there- 
 after to file a memorandum of the 
 lien. Liberty Perpetual Bldg. & L. 
 Co. V. M. A. Furbush <f- ^on Mach. 
 Co. 42 U. S. App. 031, 80 Fed. Rep. 
 031, 26 C. C. A. 38, Citing Boston v. 
 Chesapeake & O. It. Co. 76 Va. 182; 
 ShacJdeford v. Beck, 80 Va. 573; 
 Mayes v. Ruffners, 8 W. Va. 384; 
 Phillips V. Roberts, 26 W. Va. 783; 
 Davis V. Livingston, 29 Cal. 283 ; 
 Hooper v. Flood, 54 Cal. 218; Noll 
 V. Swineford, Pa. 187; Wiiman v. 
 Walker, 9 Watts & S. 186 ; Thomas v. 
 Barber, 10 Md. 380; Delaicare R. 
 Constr. Co. v. Davenport c6 tit. P. R. 
 Co. 46 Iowa, 406; Valentine v. Raw- 
 son, 57 Iowa, 179; Lyon v. Xew York 
 & N. E. R. Co. 127 Mass. 101 ; Mul- 
 loy V. Lawrence, 31 Mo. 583 ; Cook v. 
 Vreeland, 21 111. 431; Vane v. New- 
 combe, 132 U. S. 220, 33 L. ed. 310; 
 Van Stone v. Stillwell d B. Mfg. Co. 
 142 U. S. 128, 35 L. ed. 901. 
 
 Services in the construction of 
 lateral ditches from the main canals 
 of an irrigating system are not en- 
 titled to preference over a mortgage 
 debt in the assets in the hands of a 
 receiver, on the ground that such 
 laterals are extended from time to 
 time as required in the actual opera- 
 tion of such system. California 
 Safe Dep. & T. Co. v. Yakima Invest. 
 Co. 82 Fed. Rep. 542. 
 
 Services of a civil engineer, per- 
 formed in the original construction 
 of the works of an irrigating com- 
 pany, do not constitute a claim en- 
 titled to preference over a mortgage 
 debt in the funds in the hands of a 
 receiver. Ibid. 
 
 Employees are not creditors at 
 large, but, as against mortgagees, 
 will be preferred out of earnings and 
 corpus. Duncan v. Chesapeake <& 
 0. R. Co. (Va.) 9 Am. Ry. Rep. 386. 
 
 The court refuses to give claims 
 for labor preference to all others. 
 Case v. Fredrickson, 63 Wis. 501. 
 
 The lien given by Va. Code, § 
 2485, to supply creditors in prefer-
 
 CLAIMS AGAINST RECEIVERSHIP FUNDS. 
 
 S 343 
 
 ence to any lien by deed of trust, 
 mortgage, hypothecation, sale, or 
 conveyance previously made, in the 
 assets of a receivership, takes prece- 
 dence of a pledge to a warehouse 
 company to secure advances made 
 after the passage of such statute. 
 Fidelity Ins. Trust d S. D. Co. v. 
 Roanoke Iron Co. 81 Fed. Rep. 439. 
 
 Goods furnished a commissary 
 store conducted by an iron company, 
 upon which it frequently gave its 
 employees, in payment of their 
 wages, orders for goods and supplies, 
 are not within Va. Code, § 2485, giv- 
 ing a lien upon the property of a 
 mining and manufacturing com- 
 pany for supplies necessary to its 
 operation, so as to give a lien upon 
 its assets in a receivers' hands, 
 where the company is located in a 
 city where supplies of every kind are 
 readily accessible to its employees, 
 and not in so remote a locality that 
 furnishing by it of supplies to its 
 employees is necessary. Ihid. 
 
 Freight charges on supplies by a 
 railroad company against a manu- 
 facturing company, of which a re- 
 ceiver is afterwards appointed, are 
 not within Va. Code, § 2485, giving 
 to a person furnishing supplies to a 
 mining or manufacturing company a 
 prior lien upon its personal property 
 to the liens of mortgages or other 
 transfers. IMd. 
 
 The right of a preference over 
 mortgage bondholders of one furnish- 
 ing supplies to a cable street-railway 
 company in Colorado is not waived 
 by suing such company in the courts 
 of New York before receivers are ap- 
 pointed, although the suit is prose- 
 cuted to judgment after his appoint- 
 ment. Central Trust Co. v. Clark, 49 
 U. S. App. 453, 81 Fed. Rep. 209, 26 
 C. C. A. 397. 
 
 Priority may be given in funds in 
 the hands of a receiver to supply 
 bills furnished shortly before or aft- 
 er his appointment, although he 
 was originally appointed upon the 
 application of a stock and Ijondhold- 
 er merely to hold the system intact 
 and protect the company from its 
 creditors, where the mortgagees have 
 come in, asked for a receiver, and 
 had the existing receivership modi- 
 fied so as to give it retroactive eilect 
 
 as of the time of its original creation. 
 ISiew England R. Co. v. Carnegie 
 Steel Co. 33 U. S. App. 491, 75 Fed. 
 Rep. 54, 21 C. C. A. 219. 
 
 A provision for the sequestration 
 by foreclosure of the income of a 
 railroad for the benefit of the bond- 
 holders will not prevent the income 
 from being charged with the prior 
 equity of unpaid supply claimants 
 until a strict foreclosure or a sale of 
 the road. Virginia & A. Coal Co. v. 
 Central R. & Bkg. Co. 170 U. S. 355, 
 42 L. ed. 1008. 
 
 Supplies furnished a lessee of a 
 road are entitled to a preference over 
 payments made by such lessee on the 
 interest of outstanding bonds of the 
 lessor. Southern R. Co. v. Tillett, 
 42 U. S. App. 173, 76 Fed. Rep. 507, 
 22 C. C. A. 303. 
 
 Persons selling personal property 
 to a receiver carrying on the busi- 
 ness of a corporation, with knowl- 
 edge of the order of court under 
 which he is acting, cannot claim a 
 return of a portion of the property 
 not used, but stand on the same foot- 
 ing as other creditors who furnished 
 supplies. Lewis v. Linden Steel Co. 
 27 Pitts. L. J. N. S. 395. 
 
 Labor and materials used in re- 
 building the pier and abutments of a 
 railroad bridge are within an order 
 directing receivers to pay out of net 
 income claims for materials and sup- 
 plies accruing within six months. 
 Cleveland C. £ S. R. Go. v. Knicker- 
 bocker Trust Co. 86 Fed. Rep. 73. 
 
 Supplies for the purpose of recon- 
 structing a railroad cannot be given 
 preference in the assets in a receiv- 
 er's hands to a mortgage, even on the 
 ground that they must have en- 
 hanced the value of the bondholders' 
 security. Lackaicanna Iron & C. Co. 
 V. Farmers' Loan d T. Co. 52 U. S. 
 App. 91, 79 Fed. Rep. 202, 24 C. C. 
 A. 487 ; Morgan's L. <6 T. R. d S. S. 
 Co. V. Farmers' Loan d T. Co. 
 52 U. S. App. 107, 79 Fed. Rep. 210, 
 24 C. C. A. 495; Southern Develop- 
 ment Co. V. Farmers' Loan d T. Co. 
 52 U. S. App. HI, 79 Fed. Rep. 212, 
 24 C. C. A. 497. 
 
 The court may reject the claim of 
 a mining corporation, which has no 
 basis exee[)t in ctjuity, to the pay- 
 ment out of tiie assets in llie lianda 
 
 141
 
 § 342 
 
 llECEIVEESHIPS— SUPPLEMENT. 
 
 of the receiver of a railroad corpora- 
 tion of a bill for coal furnished to 
 the company' within three months be- 
 fore the appointment of the receiver, 
 where the mining company is prac- 
 tically identical with another rail- 
 road company which has assumed 
 the payment of the current expenses 
 of the first railroad company, al- 
 though the two are legally distinct. 
 Guarantee Trust tC- S. D. Co. v. I'hila- 
 ih'lphia It. tt- .Y. E. li. Co. 31 App. 
 Div. 511. 
 
 Receivers of a railroad company, 
 ■under an order directing payment of 
 claims for supplies furnished on or 
 after a certain date, practically six 
 months before the receivership, can- 
 not pay claims incurred for supplies 
 delivered to a carrier, consigned to 
 the railroad company, before such 
 date, but falling due thereafter. 
 Belknap v. Central Trust Co. 47 U. 
 S. App. GG3, sub nom. Central Trust 
 Co. V. East Tennessee, V. d G. B. Co. 
 80 Fed. Rep. 624, 26 C. C. A. 30, 
 
 Claims for advertising cannot be 
 given precedence of a mortgage debt 
 as for supplies. Ibid. 
 
 Money in the hands of a receiver 
 of an insolvent corporation derived 
 solely from collection of book ac- 
 counts after his appointment, can- 
 not be subjected to a trust in favor 
 of one who furnished the corpora- 
 tion's employees with supplies, un- 
 der an agreement for the retention 
 by the company of enough of their 
 wages to pay for the supplies. 
 Arnold v. Porter, 122 N. C. 242. 
 
 Receivers' debts which can displace 
 contract liens upon the property of 
 a railroad must be the necessary 
 operating expenses. Belknap v. 
 Central Trust Co. 47 U. S. App. 663, 
 sub nom. Central Trust Co. v. East 
 Tennessee, V. & G. R. Co. 80 Fed. 
 Rep. 624, 26 C. C. A. 30. 
 
 The doctrine preferring claims 
 against a railroad company to mort- 
 gage indebtedness out of the assets 
 in the hands of a receiver cannot be 
 extended to any other claims than 
 those growing out of debts neces- 
 sarily incurred in keeping the road 
 in operation. New York Seeurity & 
 T. Co. v. Louisville, E. d St. L. C. B. 
 Co. 79 Fed. Rep. 386. 
 
 Where the expenses are limited 
 142 
 
 to the income the court will not make 
 them a lien superior to the mort- 
 gage. United States Trust Co. v. 
 New York, W. S. d B. B. Co. 25 Fed. 
 Rep. 800. 
 
 Plaintiff in an action to foreclose 
 a mortgage given by a railroad com- 
 pany to secure its bonds, who ob- 
 tains an order appointing a receiver 
 and providing that he may pay in- 
 debtedness theretofore incurred for 
 current expenses of operation dur- 
 ing the three months next preceding 
 the date of the order, assents to the 
 payment of such debts out of the 
 property in court as in equity should 
 be so paid. Guarantee Trust d S. 
 D. Co. V. Philadelphia, B. d N. E. B. 
 Co. 31 App. Div. 511. 
 
 Expenses incurred after the sale 
 cannot be made a lien antedating 
 the decree. Bassick Min. Co. v. 
 Schoolfield, 15 Colo. 370. 
 
 Expenses of operation are entitled 
 to priority over a mortgage. Farm- 
 ers' d M. Nat. Bank v. Waco Electric 
 B. d Light Co. (Tex. Civ. App.) 36 
 S. W. 131 : Be Atlas Iron Constr. Co, 
 19 App. Div. 415. 
 
 And so as to the lien of a land- 
 lord. Read v. Corcoran, 1 Ir. Ch. 
 Rep. 235. 
 
 The current operating expenses of 
 mortgaged railroads for a limited 
 time before the appointment of a re- 
 ceiver under a bill to foreclose the 
 mortgage may be charged upon the 
 income earned during the receiver- 
 ship, or upon the corpus of the prop- 
 erty, as liens superior to that of the 
 mortgage. Ames v. Union P. B. Co. 
 74 Fed. Rep. 335. 
 
 And this includes expenses for a 
 limited time before the bill was tiled. 
 Davis V. Denby, 3 Madd. 170; Ames 
 v. Union P. R. Co. 74 Fed. Rep. 335. 
 
 Operating expenses incurred by a 
 railroad company within a reason- 
 able time before the appointment of 
 a receiver in a foreclosure suit, 
 whether before or after the execution 
 of the trust deed, are entitled to a 
 preference over the trust deed, where 
 the earnings subsequently diverted 
 to pay for permanent improvements, 
 together with those in the master's 
 hands, exceed the amount thereof. 
 Central Trust Co. v. Utah C. B. Co. 
 16 Utah, 12, Citing Fosdick v.
 
 CLAIMS AGAINST RECEIVERSHIP FUNDS. 
 
 § 343 
 
 Schall, 99 U. S. 235, 25 L. ed. 339; 
 Burnham v. Bowen, 111 U. S. 776, 
 28 L. ed. 590; Union Trust Co. v. 
 Souther, 107 U. S. 591, 27 L. ed. 488; 
 Litzenbcrger v. Jarvis-Conklin Trust 
 Co. 8 Utah, 10; Farmers' Loan & T. 
 Co. V. Kansas City, W. c6 xY. W. R. 
 Co. 53 Fed. Hep. 182. 
 
 Debts for coal delivered to a rail- 
 road company for the purpose of the 
 operation of the road are current 
 debts for operating expenses, and are 
 a preferred charge upon the income 
 of the receivership. Virginia & A. 
 Coal Co. V. Central It. <& Bkg. Co. 30 
 U. S. App. 203, sub nom. Clark v. 
 Central li. d Bkg. Co. 60 Fed. Rep. 
 803, 14 C. C. A. 112. 
 
 That coal delivered on the lines of 
 a railroad and used in the operation 
 of the road was purchased by the 
 lessee of the road, which was bound 
 by the terms of the lease to pay cur- 
 rent expenses, does not affect the 
 right of the seller of the coal to a 
 preference in payment therefor out 
 of the income derived by a receiver 
 subsequently appointed for the les- 
 sor. Ibid. 
 
 Claims for coal purchased and 
 used by the railroad company in the 
 operation of leased lines under its 
 control, before the appointment of 
 a receiver, are entitled to the same 
 preference in the income of the re- 
 ceivership as claims for coal actual- 
 ly used on the company's own line. 
 Ibid. 
 
 A claim for coal purchased for and 
 used in operating a railroad, when 
 the parties expected payment there- 
 of out of the current earnings, is not 
 excluded from preference over a 
 mortgage on the road in case of a 
 subsequent receivership, because of 
 the fact that the purchase was not 
 made by the owner of the road, but 
 by another party who was in control 
 and operation thereof under a lease, 
 without protest or interference by 
 the bondholders. Virginia cG .4. Coal 
 Co. V. Central It. <t Bkg. Co. 170 U. 
 S. 355, 42 L. ed. 1008. 
 
 Preference over a mortgage debt 
 will not be denied a claim for a cable 
 furnished a cable street railway, be- 
 cause it was purchased twenty-six 
 months before the appointment of a 
 receiver, where the seller commenced 
 
 suit about twelve months thereafter, 
 and recovered judgment after the ap- 
 pointment of the receiver, as the 
 period of time between the com- 
 mencement of such action and the 
 appointment of the receiver cannot 
 properly be included in computing 
 the time of delay in making the 
 claim. 2sew York Guaranty cC In- 
 demnity Co. V. Broderick <& B. Rope 
 Co. 48 U. S. App. 008, sub nom. New 
 York Guaranty d Indemnity Co. v. 
 Tacoma R. d Motor Co. 83 Fed. Rep. 
 305, 27 C. C. A. 550. 
 
 A claim for a new gear wheel and 
 pinion necessary to the operation of 
 a cable railway and to keep it a go- 
 ing concern falls within the cate- 
 gory of claims generally recognized 
 as of a preferential character and 
 equitably entitled to be paid in ad- 
 vance of the claims of mortgage 
 bondholders, — especially where such 
 wheel and pinion have been mort- 
 gaged in thirty days after their de- 
 livery to meet the interest obliga- 
 tions of such mortgage bondholders. 
 Central Trust Co. v. Clark, 49 U. S. 
 App. 453, 81 Fed. Rep. 269, 20 C. C. 
 A. 397. 
 
 One intervening in a receivership 
 of a street-railway company to in- 
 terpose a claim for preference over 
 the mortgage indebtedness, because 
 of the circumstances imder which 
 machinery was supplied to such com- 
 pany, must do equity by allowing the 
 mortgage bondholders to show that 
 they were not benefited to the extent 
 of the full value of the machinery 
 supplied, by reason of failure to de- 
 liver the same within the contract 
 period, notwithstanding a judgment 
 obtained in a state court against the 
 company for the full contract price, 
 as, in order to obtain a preference, 
 the intervener must himself go be- 
 hind such judgment and show the 
 origin and nature of the demand on 
 which it rests. Ibid. 
 
 W'licn track rentals are not al- 
 lowed out of proceeds of foreclosure 
 as against mortgagees. Louisville 
 d N. It. Co. V. Central Trust Co. 59 
 U. S. App. 694, 87 Fed. Rep. 500, 31 
 C. C. A. 89; Mather llumauc Stock 
 Transp. Co. v. Anderson, 40 U. S. 
 App. 138, 70 Fed. Rep. 164, 22 C. C. 
 A. 109. 
 
 148
 
 § 350 
 
 RECEIVERSHIPS— SUPPLEMENT. 
 
 The claim of a sleeping-car com- 
 pany under a contract providing that 
 it shall furnish cars for the use of 
 a railroad company, remaining the 
 owner, and having the right to col- 
 lect fares for seats and berths, the 
 railroad company to pay a certain 
 sum per mile for each mile run oy 
 such cars, — is one for car rental, 
 which cannot be given priority over 
 a mortgage debt, in funds in the 
 hands of a receiver. Pullman's Pal- 
 ace-Car Co. V. American Loan d T. 
 Co. 55 U. S. App. 170, 84 Fed. Rep. 
 18, 28 C. C. A. 2G3. 
 
 The rental of a tunnel under a 
 lease adopted by the court and its 
 receivers, and declared to be essen- 
 tial to the receivership and opera- 
 tion of the road, is properly given a 
 preferential lien upon the assets in 
 the hands of the receivers. Central 
 Trust Co. V. Continental Trust Co. 
 
 58 U. S. App. G04, 8G Fed. Rep. 517. 
 30 C. C. A. 235. 
 
 Rentals of telegraph poles, in pos- 
 session of and retained by a third 
 person jjcnding a dispute as to 
 .whether or not they are within the 
 terms of a mortgage under fore- 
 closure, upon such .person's giving 
 bond to the mortgagee to pay him 
 such rentals in case the decision is 
 in his favor, will belong to a corpo- 
 ration to whom the receiver ap- 
 pointed for the mortgaged property 
 has leased the entire property under 
 permission of the court for a fixed 
 comjiensation, and not to the mortga- 
 gee, in case they are determined to 
 be within the terms of the mortgage. 
 Western U. Teleg. Co. v. Boston Safe 
 Dep. & T. Co. 87 Fed. Rep. 788. 
 
 Rentals due before appointment 
 are not preferential over lien credit- 
 ors. Grand Trunk R. Co. v. Central 
 Vermont R. Co. 90 Fed. Rep, 103. 
 
 Page 582, sec. 350. — Compensation. 
 
 A receiver who after the death of 
 a coreceiver continues to act, and 
 whose acts were ratified by the court, 
 is entitled to commissions. Bur- 
 roughs V. Bunnell, 70 Md. 18. 
 
 A receiver is entitled to a com- 
 mission on deposit notes coming into 
 his hands and surrendered on order 
 of court. Van Buren v. Chenango 
 Count ij Mut. Ins. Co. 12 Barb. 671. 
 
 Receivers are usually allowed such 
 compensation as is allowed by law or 
 by contract between individuals for 
 similar services, to be ascertained by 
 proof, but not from opinions of wit- 
 nesses. Stretch v. Gowdey, 3 Tenn. 
 Ch. 565. 
 
 A receiver is entitled to commis- 
 sions on all property (personal) of 
 which he became possessed and 
 which he transferred. Bennett v. 
 Chapin, 3 Sandf. 673. 
 
 Where the Federal court has 
 passed upon and allowed a receiver's 
 compensation, it will not entertain 
 a petition for an allowance based on 
 a finding in the state court in an- 
 other case. Re Hinckley, 3 Fed. Rep. 
 556. 
 
 Partial or intermediate allowances 
 144 
 
 of compensation to a receiver, or his 
 counsel, of an insolvent corporation, 
 clothed with the duty of winding up 
 its affairs with convenient speed, 
 should be materially less than the 
 value of the services rendered by the 
 receiver prior to the making of such 
 allowances; and the final allowance 
 made at the close of the receivership 
 should be so adjusted tliat the re- 
 ceiver will have fair and just com- 
 pensation for his services as a whole, 
 notwithstanding the inadequacy of 
 the partial or intermediate allow- 
 ances considered by themselves. 
 Maxivell v. Wilmington Dental Mfg. 
 Co. 82 Fed. Rep. 214. 
 
 The receiver of a mutual insur- 
 ance company is entitled to com- 
 missions on the value of deposits 
 or premium notes coming into his 
 hands. Van Buren v. Chenango 
 County Mut. Ins. Co. 12 Barb. 671. 
 
 The want of foresight in regard 
 to the future development of the 
 business is not ground for refusing 
 compensation to a receiver. Cowd- 
 rey v. Galveston, H. & II. R. Co. 1 
 Woods, 331. 
 
 A compensation of 8 per cent is
 
 RECEIVERS' COMPENSATION. 
 
 § 350 
 
 not uniform^ but it varied with each 
 case. Abbott v. Baltimore d R. 
 Steam Packet Co. 4 Md. Ch. 310. 
 
 The court has a right to fix tlie ex- 
 penses of a receivership when the 
 appointment is made. Howell v. 
 Daicson, L. R. 13 Q. B. Div. 07. 
 
 The compensation of a temporary 
 receiver of a corporation appointed 
 under N. Y. Code Civ. Proc. § 2423, 
 to collect and receive debts, preserve 
 the property, and sell or otherwise 
 dispose of the property as directed 
 by the court, and collect and preserve 
 proceeds, is not confined to cash re- 
 ceived by him, but may be reckoned 
 at not more than 21,-3 per cent of the 
 value of other property coming into 
 his hands, under § 3320, providing 
 for the papnent to receivers as com- 
 missions not exceeding 5 per cent of 
 the "sums received and disbursed" 
 by him. lie Warren E. Smith Co. 31 
 App. Div. 39. 
 
 The compensation of a receiver 
 and the expenses of the receivership 
 will not be deferred to the payment 
 of existing liens, where the appoint- 
 ment of the receiver is legal, al- 
 though it was made without preju- 
 dice to the pre-existing liens, and 
 the assets are insufficient to pay 
 them and the expenses of the receiv- 
 ership. Gallagher v. Gingrich, 105 
 Iowa, 237. 
 
 In this case the receiver was al- 
 lowed poundage though his report 
 had been delayed at the request of 
 the parties. Purcell v. Woodley, 10 
 Ir. Eq. Rep. 422. 
 
 A receiver of a corporation is en- 
 titled to compensation for his serv- 
 ices rendered after the revocation of 
 his appointment, where he has no of- 
 ficial notice of such revocation. 
 'New Birmingham Iron & Land Co. 
 V. Blevins ( Tex. Civ. App. ) 40 S. W. 
 829. 
 
 Where the object of a consent is to 
 appoint a receiver over an outstand- 
 ing estate the salary should be fixed 
 by the consent. Burke v. Burke, 
 Flan. & K. 89. 
 
 An allowance to a receiver of ho- 
 tel property, being 10 per cent of the 
 receipts of the business and amount- 
 ing to about $2,500, for his services 
 from May to Deceml>er, during which 
 he spent ordinarily only his evenings 
 
 10 
 
 at the hotel and employed a man- 
 ager at $125 or $150 per month and 
 under bond, will not be disturbed on 
 appeal after it has been approved 
 by two lower courts, where there is 
 testimony by hotel proprietors that 
 $5,000 a year was fair compensation, 
 and he had no comijensation for the 
 custody and responsibility of a large 
 amount of personal property, and 
 the position was attended with con- 
 siderable anxiety, and lae retained it 
 apparently against his own inclina- 
 tions, in compliance with the wishes 
 of the party in interest. Cake v. 
 Mohun, 164 U. S. 311, 41 L. ed. 447. 
 
 A judgment creditor of a receiver 
 cannot maintain an action to compel 
 him to fix the value of his services 
 and pay the same to such creditor, 
 as it is the duty of the court to fix 
 the compensation of the receiver. 
 Hamburger v. Darusmont, 3 Ohio N. 
 P. 222. ' 
 
 Where the order of the court in 
 reference to a receiver's commission 
 is in its discretion it will not be in- 
 terfered with except for abuse. 
 Hembree v. Dawson, 18 Or. 474. 
 
 The compensation of a receiver and 
 the manner of payment should be 
 fixed in the final decree. Cutter v. 
 Pollock, 4 N. D. 205, 25 L. R. A. 377. 
 
 A purchaser who allows the re- 
 ceiver to continue in possession un- 
 til the title is declared good is bound 
 to pay the receiver's fees. Brown v. 
 Dowdall, 2 Hogan, 198. 
 
 The purchasers of a railroad at 
 foreclosure sale are not interested 
 to contest the compensation allowed 
 the receiver out of the proceeds. 
 Northern Alabama R. Co. v. Hop- 
 kins, 59 U. S. App. 74, 87 Fed. Rep. 
 505, 31 C. C. A. 94. 
 
 Compensation of receiver and 
 counsel fees should not be fi.xed ex 
 parte and without notice. Mer- 
 chants' Bank v. Crysler, 32 U. S. 
 App. 187, 67 Fed. Rep. 388, 14 C. C. 
 A. 444. 
 
 The only question was a question 
 before the jury as to receivers' fees 
 and the court held that the instruc- 
 tions were correct. Wilkins v. 
 Georgia Iron Works, 74 Ga. 532, 
 533. 
 
 By agreement of the parties one of 
 them may become liable for the pay- 
 
 145
 
 § 350 
 
 RECEIVERSHIPS— SUPPLEMENT. 
 
 ment of the receiver's commissions. 
 Kelscy v. Sargent, 40 Hun, 150. 
 
 An order requiring a receiver to 
 pay over all funds in his hands, witli- 
 out regard to his commissions, is un- 
 just. Galstcr v. Syracuse Sav. 
 'liauk, 29 Hun, 594. 
 
 The basis of a receiver's commis- 
 sion should be the same as that of 
 trustees under a will. Holcombe v. 
 Holcomhe, 13 N. J. Eq. 415, 417. 
 
 For (inestion of receivers' compen- 
 sation as between them and trustees 
 in bankruptc}', see Ellis v. Boston, 
 H. d E. R. Co. 107 Mass. 1. 
 
 A receiver is entitled to poundage 
 except in cases of executors, trustees, 
 etc. Bevan v. White, 8 Ir. Eq. Rep. 
 675. 
 
 A receiver of a building and loan 
 
 association may be allowed a fee for 
 transferring shares upon the hooka 
 of the association. Chapman v. 
 YoiDip, 65 111. App. 131. 
 
 There is no general rule as to com- 
 pensation of receivers. Day v. Croft,. 
 2 Beav. 488. 
 
 The compensation is payable from 
 time to time. Special Bank Comrs. 
 V. Franklin Inst, for Sav. 11 R. 1. 
 557. 
 
 The fees of a referee appointed to 
 report as to the amount of compen- 
 sation of a receiver who has been re- 
 moved and who has applied for pay- 
 ment of his commission, must be 
 paid by the latter if the report is in 
 his favor. Atty. Gen. v. Continen- 
 tal L. Ins. Co. 27 Hun, 524. 
 
 Page 582. — (a) Ifust he reasonable. 
 
 Compensation is not determined 
 by the amount passing through the 
 receiver's hands, but must be such 
 as would be reasonable for services 
 rendered by a person competent to 
 perform the duties. Jones v. Keen, 
 115 Mass. 170. 
 
 Compensation was held to be rea- 
 sonable in McArthur v. Montclair 
 R. Co. 27 N. J. Eq. 77. 
 
 Compensation fixed by responsibil- 
 ity, skill, labor, and rate usually al- 
 lowed. Special Bank Comrs. v. 
 Franklin Inst, for Sav. 11 R. I. 557. 
 
 A report that a receiver's compen- 
 sation is reasonable, made by a mas- 
 ter and sustained by competent evi- 
 dence, will not be disturbed. Karn 
 V. Rarer Iron Co. 8G Va. 754. 
 
 A special order was made that such 
 compensation should be made a re- 
 ceiver as the judge should think rea- 
 sonable. Neat'C V. Douglas, 26 L. J. 
 Ch. N. S. 756. 
 
 The amount which the receiver of 
 a corporation would be able to earn 
 at his profession during the time 
 covered by the receivership does not 
 necessarily furnish a criterion for 
 determining the amount of his com- 
 pensation as receiver; but the 
 amount for which another person 
 possessing equal qualifications could 
 have been emploj-ed to perform the 
 services is ordinarily a fair and rea- 
 146 
 
 sonable criterion. United States 
 Nat. Bank v. 'National Bank, 6 Okla. 
 163. 
 
 An attorney of a creditor should 
 not be appointed as the attorney of 
 a receiver of an insolvent estate ; but 
 an attorney so appointed may receive 
 a reasonable compensation for his 
 services, if no objection to his ap- 
 jiointment was made to him or to the 
 court. Geyser Min. Co. v. Bank of 
 Salt Lake, 16 Utah, 163. 
 
 In fixing the compensation to be 
 allowed the receivers of an assigned 
 estate and their solicitors, the court 
 should determine from the evidence 
 how much is usually paid to person^ 
 possessing the requisite capacity and 
 experience for like services under 
 similar responsibilities. Ihid. 
 
 The court cannot determine what 
 is reasonable compensation for the 
 services of the attorney of a receiver, 
 in the absence of evidence on that 
 subject, although it is familiar with 
 what has actually been done by him. 
 Hammond v. Atlee, 15 Tex. Civ. App. 
 267. 
 
 The judges of the court in passing 
 on the reasonableness of charges by 
 the receiver of an insolvent for coun- 
 sel fees for himself and other attor- 
 neys employed by him may right- 
 fully use their personal knowledge as 
 to what has been done by the attor-
 
 RECEIVEKS' COMPENSATION. 
 
 § 350 
 
 neys, and also take into considera- 
 tion the character of legal services 
 theretofore rendered by counsel, and 
 the amount already allowed on ac- 
 count thereof, Olson v. State Bank, 
 72 Minn. 320. 
 
 What another competent person 
 would have done the work for is not 
 proper evidence in fixing the com- 
 pensation for receiver. Cowdrey v. 
 Galveston, H. c£- H. li. Co. 1 Woods, 
 331. 
 
 Page 586. — (c) Sometimes a salary. 
 
 A receiver who was placed upon 
 the pay roll at a monthly sum as an 
 allowance upon his compensation as 
 receiver should be allowed such 
 monthly sum after the sale of the 
 railroad for which he was appointed 
 and the payment of a sum as a com- 
 promise for his services, where none 
 of the parties interested moved to 
 reduce such allowance or discharge 
 such receiver, and he was allowed to 
 
 go on as such, with all the responsi- 
 bilities attached to the position and 
 to the business in hand, and his ac- 
 count had been filed and stood, pre- 
 sumably approved by the court, up 
 to within two years of the time when 
 the question was raised, although 
 within such two years objection was 
 made and overruled. Dillingham v. 
 Moran, 52 U. S. App. 425, 81 Fed. 
 Rep. 759, 26 C. C. A. 596. 
 
 Page 587. — (d) When compensation refused. 
 
 A receiver is not entitled to com- 
 pensation for the collection and dis- 
 bursement of the government tax on 
 whisky which belongs to third par- 
 ties. White V. Allen, 10 Ky. L. Rep. 
 1025. 
 
 Fees of trustees will not be al- 
 lowed from a trust fund when they 
 are extravagant. Trustees v. Green- 
 ough, 105 U. S. 527, sub nam. Inter- 
 nal Improvement Fund v. Green- 
 ough, 26 L. ed. 1157. 
 
 The compensation of a receiver, 
 and expenses incurred during the re- 
 ceivership other than those which 
 would necessarily have been incurred 
 had no receiver been appointed, can- 
 not be allowed out of the funds in 
 hia hands, where his appointment 
 has been revoked, but they constitute 
 charges against the parties procur- 
 ing his appointment. Ogden City 
 V. Bear Lake & It. W. & I. Co. 18 
 Utah, 279. 
 
 As to when defendants were re- 
 quired to pay the compensation of 
 the receiver — see Hayes v. Ferguson, 
 15 Lea, 1. 
 
 Compensation may be denied to 
 the receiver of a corporation wliere 
 he has kept no proper accounts, and 
 has put the foiirt to a grc^at deal of 
 trouble in determining his rights, or 
 
 has negligently or wilfully misman- 
 aged the estate. United States Nat. 
 Bank v. National Bank, Okla. 1G3. 
 
 While a receiver's right to com- 
 pensation and allowance for ex- 
 penses does not depend upon the cor- 
 rectness of the order of appointment, 
 nevertheless he is not entitled to 
 compensation out of the fund or 
 property received by him under such 
 order, where its enforcement has 
 be'en subjected to the check of a writ 
 of prohibition on the ground that it 
 was unauthorized on making return 
 to such writ, but is only entitled 
 thereto on his accounting with the 
 court in the suit wherein he was ap- 
 pointed. St. Louis, K. d S. li. Co. 
 v. Wear, 135 IMo. 230, sub nom. State 
 St. Louis, K. d S. R. Co., v. Wear, 
 33 L. R. A. 341. 
 
 A partner appointed receiver is 
 not entitled to compensation. Berry 
 v. Jones, 11 lleisk. 20(1. 
 
 A receiver is not entitled to com- 
 pensation for attending a survey of 
 minor's estate, no order being ob- 
 tained. Re Ormsby, 1 Hall & B. 189. 
 
 Full compensation is not allowed 
 a second receiver for funds collected 
 by the first receiver and turned over. 
 A til/. Gen. v. Continental L. Ins. Co. 
 32 iiun, 223. 
 
 147
 
 § 350 RECEIVERSHIPS— SUPPLEMENT. 
 
 Page 587. — (e) W/ie)i to he jmid by plaintfjf'. 
 
 An order for the appointment be- 
 ing reversed, tlie receiver was di- 
 rected to turn over to the defendant 
 all partnership property held bj' 
 him, and the plaintitl' was ordered to 
 pay the receiver's compensation. 
 HVs/oM v. Watts, 45 Hun, 219. 
 
 The fees of temporary receivers 
 
 appointed pending an action to set 
 aside an alleged fraudulent convey- 
 ance of goods are properly chargeable 
 to the plaintiffs therein, where such 
 fees were incurred in converting 
 such goods into cash, of which such 
 plaintiffs received the benetit. lioun- 
 saville v. Langston, 99 Ga. 117. 
 
 Page 589. — (If) Additional allowances. 
 
 The compensation of temporary 
 receivers of corporations, for which 
 no specific provision is made by stat- 
 ute, is governed by N. Y. Code Civ. 
 Proc. § 3320, providing that a re- 
 ceiver, except as otherwise pre- 
 scribed by law, is entitled, in addi- 
 tion to his lawful expenses, to such 
 commissions, not exceeding 5 per 
 cent of the sums received and dis- 
 bursed by him, as the court by which 
 he is appointed allows. Re Warren 
 E. Smith Co. 31 App. Div. 39. 
 
 The receiver of an insolvent bank 
 is entitled to credit for a charge of 
 $600 made by a surety company for 
 becoming the surety on his bond for 
 $80,000, under Wis. i.aws 1893, 
 
 chap. 190, authorizing the execution 
 of a bond by such a company as 
 surety, and Wis. Laws 1895, chap. 
 219, expressly authorizing a reason- 
 able charge therefor not exceeding 2 
 per cent. Hamacker v. Commercial 
 Bank, 95 Wis. 359. 
 
 The objection that a receiver had 
 no standing in court to oppose a mo- 
 tion vacating his appointment, or to 
 make a motion to vacate the lea^e 
 granted another to sue him, is not 
 available for the purpose of defeating 
 his right to an allowance for services 
 on such motions, where the court per- 
 mitted him to be heard and recog- 
 nized him on the motions. Hardt 
 V. Levy, 20 App. Div. 400. 
 
 Page 590. — (i) /Statutory compensation. 
 
 The compensation of a temporary 
 receiver appointed under N. Y. Code 
 Civ. Proc. § 2423, is not fixed by 2 
 N. Y. Rev. Stat. p. 470, tit. 4, chap. 
 8, § 76, which by N. Y. Laws 1880, 
 chap. 245, was made applicable to 
 receivers appointed under N. Y. Code 
 Civ. Proc. § 2429, which relates to 
 permanent receivers only. Re War- 
 ren E. Smith Co. 31 App. Div. 39. 
 
 As to allowance of expenses and 
 various charges of receivers. — see Re 
 Union Bank, 37 N. J. Eq. 420. 
 
 Fees of receiver as fixed by N. Y. 
 Code Civ. Proc. § 3220. Re Security 
 Life Ins. & Annuity Co. 31 Hun, 36. 
 
 A statute relative to the compen- 
 148. 
 
 sation of receivers was held to be 
 prospective, in People, yeiocomh, 
 V. McCall, 99 N. Y. 587. 
 
 A receiver is an officer of the 
 court, and the court has a right to 
 fix his compensation irrespective of 
 N. Y. Code, § 244, subd. 4. Baldwin 
 V. Eazler, 2 Jones & S. 275. 
 
 The commissions to be allowed a 
 receiver joined in an action in which 
 a decree was rendered setting aside 
 a general assignment for creditors 
 are not definitely fixed by statute, 
 but are left to the discretion of the 
 court in South Carolina. Mann v. 
 Poole, 48 S. C. 154.
 
 REPORTS, ACCOUNTS AND DISTRIBUTION. 
 Page 592, sec. 355. — Keports and accounts. 
 
 § 355 
 
 The report must be full, clear^ and 
 specific. Bertie v. Abingdon, 8 I3eav. 
 53. 
 
 Where a receiver makes default in 
 payment of a balance due from him, 
 payment may be enforced by com- 
 mittal, lie Bell, L. R. 9 Eq. 172. 
 
 The order on a receiver's account 
 is not appealable. Colgate v. Mich- 
 igan L. S. R. Co. 28 Mich. 288. 
 
 On appeals respecting receivers' 
 accounts, it is the practice in this 
 country to entertain objections to 
 the amount of the items. Beytagh 
 V. Concannon, 10 Ir. Eq. Rep. 351. 
 
 In matters pertaining to a receiv- 
 er's account he is entitled to a trial 
 by jury on questions of fact. Hamm 
 V. J. Stone d Sons JAve Stock Co. 13 
 Tex. Civ. App. 414. 
 
 The receiver is entitled to all prop- 
 er legitimate and necessary outlays 
 by him made as receiver. Hardt v. 
 Levij, 20 App. Div. 400. 
 
 It is the duty of the court, whether 
 objections are made by creditors or 
 not, to supervise and closely scrati- 
 nize the account of a receiver of an 
 insolvent. Olson v. State Bank, 72 
 Minn. 320. 
 
 A receiver's account must be filed 
 in court. People v. Knickerbocker 
 L. Ins. Co. 18 X. Y. Week. Dig. 492; 
 Re Burke, 1 Ball & B. 74. 
 
 After bill is dismissed he should 
 be compelled to account. Pitt V. 
 Bonner, 5 Sim. 577. 
 
 But a person not a party to the 
 suit has no right to compel him to 
 account. Colburn v. Cooper, 8 Ir. 
 Eq. Rep. 510; Locke v. Ashe, 1 Ho- 
 gan, 143. 
 
 Nor is he required to unless it is 
 shown that assets have come to his 
 hands. Lyons v. Atlanta Hill Gold 
 Min. & Mill. Co. 38 N. Y. S. R. 892, 
 14 N. Y. Supp. 533. 
 
 In passing upon his accounts the 
 court may consider general prinoi- 
 ples upon which the master has pro- 
 ceeded in taking the account, but not 
 the items. Sheiccll v. Jones, 2 Sim. 
 & Stu. 170. 
 
 His accounts should be presented 
 
 at least once a year. Loicc v. Lowe, 
 1 Tenn. Ch. 515. 
 
 At least where they are large. 
 Day V. Croft, 6 Eng. L. <!c Eq. 02. 
 
 A judge in passing upon the ac- 
 counts of the receiver of a corpora- 
 tion is not bound by the approval of 
 his expenditures by the judge ap- 
 pointing him, even if such judge was 
 a wholly disinterested person and 
 otherwise qualified to act in the 
 premises, where such expenditures 
 were unnecessary and unreasonable. 
 United States Nat. Bank v. Xation- 
 al Bank, 6 Okla. 163. 
 
 The burden is on the receiver to 
 show the correctness of his accounts. 
 Ibid. 
 
 Before a receiver is discharged he 
 should pass his accounts and provi- 
 sion be made for his compensation; 
 and if it has been done by agreement 
 of parties the order may be set aside 
 on application of the receiver. Hoff- 
 man V. Bank of Minot, 4 N. D. 473. 
 
 A final order by the district court, 
 allowing the account of a receiver, 
 and directing the payment of a spe- 
 cific sum for services rendered in con- 
 nection with the receivership, is not 
 within N. D. Rev. Codes, § 5499. pro- 
 viding that "mutual final judgments 
 may be set off pro tanto." Patter- 
 son V. Ward, 8 N. D. 87. 
 
 A final order allowing the account 
 of a receiver, and directing the pay- 
 ment of a specific sum to one who 
 has rendered services connected with 
 the receivership, creates a demand 
 against the receiver in favor of the, 
 claimant, which is free from equities 
 in favor of a judgment creditor of 
 the claimant, and ends the jurisdic- 
 tion of the court over sucli clainx 
 further than to require the ]iaynu'nt 
 of the amount allowcsd to the party 
 to whom it is due. Ibid. 
 
 Rents are enforceable by suit on 
 a bond given in lieu of the appoint- 
 ment of a receiver, and not on motion 
 to compel the obligor to account as 
 a receiver, to wliicli position lie was 
 subsequently appointed, liaker v. 
 Baker, 30 App. Div. 485. 
 
 149
 
 § 355-357 RECEIVERSHIPS— SUPPLEMENT. 
 
 Page 593. — (b) Reference to vnaster. 
 
 Accounts of a receiver, if not as- 
 sented to, should be referred to a 
 master. American Trust & Sav. 
 Bank v. Frankenthal, 55 111. App. 
 400. 
 
 If the master adopts an erroneous 
 principal in the matter of a receiv- 
 er's account, it may be referred back 
 for correction. Cowdrey v. Galves- 
 ton, H. d H. R. Co. 1 Woods, 331. 
 
 The report of a master on a receiv- 
 er's account requires confirmation. 
 Richards v. Morris Canal & Bkg. Co. 
 4 N. J. Eq. 428. 
 
 If the report of the master is not 
 satisfactory it should be excepted to. 
 Mechanics' Bank v. Bank of 'New 
 Brunswick, 3 N. J. Eq. 437; Wool- 
 sey V. Gummings Car Works, 33 N. 
 J. Eq. 432. 
 
 Exceptions to the master's report 
 on a receiver's accounts must first 
 be made before the master. Cow- 
 drey V. Galveston, E. d H. R. Co. 1 
 Woods, 331. 
 
 Page 594, sec. 357. — Distribution. 
 
 Money paid by tenants before an 
 extending order belongs to the first 
 petitioner. O'Callaghan v. O'Cal- 
 laghan, 3 Ir. Ch. Rep. 376. 
 
 Rents collected prior to extension 
 belong to the first plaintiff. Agra 
 & Mastcrmayi's Bank v. Barry, Ir. 
 Rep. 3 Eq. 443. 
 
 Rents must be applied according 
 to the legal rights of the parties. 
 Corbet v. Mahon, 2 Jones & L. 671. 
 
 Rents collected should be applied 
 to the satisfaction of liens. Pepper 
 V. Shepherd, 4 Mackey, 269. 
 
 Application of rents to discharge 
 of liens. Milhous v. Dunham, 78 
 Ala. 48, 59. 
 
 An attachment execution against 
 a corporation in the hands of a re- 
 ceiver is properly served upon him, 
 and when so served the plaintiff in 
 attachment becomes entitled to the 
 dividend in the receiver's hands when 
 declared. Merchant's Nat. Bank v. 
 Binder, 6 Pa. Dist. R. 633. 
 
 A prior mortgagee who is code- 
 fendant in a proceeding to foreclose a 
 junior mortgage is entitled to rents 
 where he has taken an assignment 
 thereof. Harris v. Taylor, 35 App. 
 Div. 462. 
 
 A judgment creditor who files a 
 
 bill in aid of his execution, to remove 
 a prior mortgage as a cloud upon his 
 title, is not entitled to the rents col- 
 lected by a receiver appointed at his 
 instance pending the action, if the 
 mortgage is valid, the mortgagors 
 are insolvent, the property insuffi- 
 cient security, and the receiver was 
 appointed for the benefit of all the 
 parties to the suit, and not for 
 his benefit alone. Cross v. Will 
 County Nat. Bank, 177 111. 33. 
 
 Rents may be applied on taxes, 
 insurance, and repairs. American 
 Nat. Bank v. Northwestern Mut. L. 
 Ins. Co. 89 Fed. Rep. 610, 32 C. C. 
 A. 275. 
 
 Rents may be applied on taxes 
 where there is a deficiency. Elliott 
 V. Magnus, 74 111. App. 436. 
 
 A receiver will not be allowed for 
 rents paid by him which the pur- 
 chaser should have paid. French v. 
 Pittsburgh Vehicle d Harness Co. 
 184 Pa. 161. 
 
 The receiver of rents in an action 
 to foreclose a junior mortgage should 
 not be allowed to pay the rents to the 
 plaintiff until it appears that there 
 is a deficiency upon the sale of the 
 premises. Harris v. Taylor, 22 App. 
 Div. 109. 
 
 Page 601, sec. 370. — Practice and pleading. 
 
 The proper remedy by a party 
 claiming to have a paramount inter- 
 est as a cestui que trust in a fund re- 
 covered by a receiver of a corporation, 
 150 
 
 in case he disputes the propriety of 
 a deduction for services made by the 
 receiver's attorney before turning 
 over the fund to the receiver, is an
 
 PRACTICE AND PLEADING. 
 
 I 373 
 
 application to the court for an order 
 on the receiver to sue the attorney 
 for the money withheld by him, and 
 not a petition to compel the receiver 
 to account for the amount improper- 
 ly withheld by the attorney, — in the 
 absence of collusion between the re- 
 ceiver and attorney. Johnson v. 
 Johnson Railroad Signal Co. 57 N. 
 J. Eq. 79. 
 
 Claims for amounts received by a 
 court receiver in chancery causes 
 should, in an action against the es- 
 
 tate of such receiver and the sureties 
 on his bond, be preferred in the 
 names of those beneficially entitled 
 to the fund, or the parties may go 
 into the several chancery causes and 
 have the accounts settled and a re- 
 ceiver appointed to collect the bal- 
 ance ascertained to be due, notwith- 
 standing a great lapse of time; and 
 they should not be audited simply in 
 the name of the causes in which he 
 was appointed receiver. Williams v. 
 'Newman, 93 Va. 719. 
 
 Page 603, sec. 373. — Parties; allegations. 
 
 In an action by a receiver to set 
 aside an assignment of a chose in 
 action by a judgi/ient debtor the lat- 
 ter is a necessa»y party. Miller v. 
 Ball, 70 N. Y. 250. 
 
 The first mortgagee is a proper 
 party where a reii^iver is prayed for. 
 Miltenberger v. Logansport R. Go. 
 106 U. S. 286, 27 L. ed. 117. 
 
 The receiver of an insolvent rail- 
 road company in possession of its 
 assets and exercising its franchises 
 is a necessary party in a proceeding 
 by the state to restrain the further 
 exercise of its franchises. Re George 
 Mathers' Sons' Go. 52 N. J. Eq. 007. 
 
 In a suit against the fraudulent 
 associates of a corporation the re- 
 ceiver of the corporation is not a 
 necessary party. Wheeler v. Clinton 
 Canal Bank, Harr. Ch. (Mich.) 449. 
 
 A receiver appointed to take 
 charge of mortgaged property in a 
 proceeding between parties is not a 
 necessary party in a proceeding to 
 foreclose a mortgage on the same 
 property, subsequently commenced. 
 Beffron v. Gage, 149 111. 182. 
 
 The receiver of a railroad company 
 is not a necessary party to an action 
 against the company on a note ex- 
 ecuted by it. Dullnig v. Weekes, 16 
 Tex. Civ". App. 1. 
 
 An insolvent corporation is not a 
 necessary party to an action by the 
 temporary receiver thereof to recover 
 money collected under a judgment 
 confessed by the corporation for the 
 purpose of giving the judgment cred- 
 itor an unlawful preference. Nealis 
 v. American Tube d Iron Go. 150 N. 
 Y. 42. 
 
 The receiver of a bank is a neces- 
 sary party in a proceeding in error 
 to reverse a judgment in favor of the 
 bank against an interpleader seeking 
 to recover property from the receiv- 
 er. Mosler v. State Bank, 6 Kan. 
 App. 172. 
 
 A person not a party, claiming 
 property in the hands of a receiver, 
 must intervene in the suit in which 
 the receiver is appointed. Potter v. 
 Spa Spring Brick Go. 47 N. J. Eq. 
 442. 
 
 The receiver is a proper party in 
 an action for an injury from an as- 
 sault by an agent of such receiver 
 while acting for himself and the re- 
 ceiver. Casey v. Oakes, 17 Wash. 
 409, Reversing on Rehearing 15 
 Wash. 450. 
 
 And as such he is entitled to all 
 the constitutional rights guaranteed 
 to any other party. Banini v. ./. 
 Stone d Sons Live Stock Go. 13 Tex. 
 Civ. App. 414. 
 
 But a receiver against whom judg- 
 ment has been taken is not a neces- 
 sary party to an action on the re- 
 ceiver's bond. Black v. Gcntery, 
 119 N. C. 502. 
 
 And the receivers of a railroad 
 company are not necessary parties 
 to a suit brought against it after the 
 receivership is virtually closed and 
 the property has been restored to the 
 company and is operated by it. San 
 Antonio & A. P. R. Co. v. Barnett 
 (Tex. Civ. App.) 44 S. W. 20. 
 
 A certain averment in a suit on a 
 receiver's bond hekl sullicient. Rex 
 V. Lidwfll, 1 Dm. & W. 2(i. 
 
 Where suit is by tlie receiver in be- 
 
 151
 
 t5 383 
 
 RECEIVERSHIPS— SUPPLEMENT. 
 
 half of creditors the pleadings must 
 set forth facts entitling each credi- 
 tor to maintain the action. Fouche 
 V. Broua; 74 Ga. 251, 2G4. 
 
 A receiver's petition in an action 
 by a receiver must set out facts 
 showing his appointment, and by 
 what jurisdiction he was appointed, 
 and so nuich of the proceedings as to 
 show that his appointment was legal. 
 Rhorer v. iliddltsboro Toion & Lands 
 Co. 19 Ivy. L. Rep. 1788. 
 
 It is not necessary to allege that 
 the debtor has no other property, 
 where it is alleged that he is in fail- 
 ing circumstances and has more 
 judgments against him than he can 
 pay. ^Vhitehouse v. Point Defiance, 
 T. d- E. R. Co. 9 Wash. 558. 
 
 An action by a receiver against 
 directors, where it does not appear 
 that they were severally liable, and 
 which is not for accounting, will be 
 regarded as an action at law, and 
 may be demurrable for misjoinder. 
 O'Brien v. Fitzgerald, 143 N. Y. 377. 
 
 In an action by a receiver, aver- 
 ments that on a certain date by or- 
 der of court in a certain suit against 
 his insolvent he was appointed re- 
 ceiver of the insolvent's property, 
 
 with the right to take possession of, 
 sue for, and demand the same, are 
 sullicient. Dagyett v. Gray (Cal.) 
 40 Pac. 959. 
 
 The prayers of a petition for the 
 granting of an injunction and the 
 appointment of a receiver are prop- 
 erly denied where the allegations of 
 the petition do not make out a case 
 either for an injunction or for a re- 
 ceiver. Short V. Melton, 103 Ga. 
 567. 
 
 When, upon decree pro confesso 
 in foi-eclosure, the plaintiff asks for 
 a receiver, he must show by affidavit 
 the amount due for prinoipal, inter- 
 est, and costs, a statement in the bill 
 is insufficient. Rogers v. Newton, 2 
 Ir. Eq. Rep. 40. 
 
 A denial that a receiver was prop- 
 erly appointed is not sufficient; 
 facts must be stated. Goodhue v. 
 Daniels, 54 Iowa, 19. 
 
 Verification. 
 
 Where the petition and answer are 
 not verified in positive terms, and 
 there is no evidence offered, the court 
 should refuse an appointment. New 
 South Bldg. & L. Asso. v. Willing- 
 ham, 93 Ga. 218. 
 
 Page 607, sec. 382.— Scope of order. 
 
 Practice under N. Y. Code, § 298, 
 requiring an order of appointment 
 to be filed and recorded, and also cer- 
 tified copy, etc., — considered and de- 
 termined. Fredericks v. Niver, 28 
 Hun, 417; Scroggs v. Palmer, 66 
 Barb. 505. 
 
 Other property belonging to de- 
 fendant against whom a judgment 
 has been rendered requiring him to 
 discharge a specified indebtedness 
 within a given time, and that in de- 
 fault tlioreof specified land shall be 
 sold and the proceeds applied in pay- 
 ment of the indebtedness, cannot be 
 included in an order appointing a 
 receiver on an application made aft- 
 er the rendition of the judsrment. 
 Ereling v. Kreling, 118 Cal. 421. 
 
 An order allowing an ex parte in- 
 junction in attachment proceedings 
 without the filing of the bond re- 
 quired by 2 How. (Mich.) Stat. § 
 152 
 
 6687, and an order appointing a re- 
 ceiver of the property, are void. 
 Lawton v. Richardson, 115 Mich. 12. 
 
 A substitution of receivers of an 
 insolvent bank cannot be effected 
 under the guise of a resettlement 
 of an order which properly expressed 
 the decision of the court as made .at 
 the time it was granted. People v. 
 Murray Hill Bank, 10 App. Div. 328. 
 
 Parties cannot stipulate away the 
 order of appointment. It is beyond 
 their control. People v. Globe Mut. 
 L. Ins. Co. 57 How. Pr. 482. 
 
 An order appointing a receiver 
 may be admitted as testimony, but 
 may be defeated by the instructions 
 of the court as to its object. A re- 
 ceiver appointed by a master in 
 chancery may defend his action in 
 suit for trespass. Brush v. Blanch- 
 ard, 19 111. 31. 
 
 When the complaint does not al-
 
 PRACTICE AND PLEADING. 
 
 381, 396, 399 
 
 lege the facts constituting the neces- 
 sity for the immediate appointment, 
 an order appointing a receiver with- 
 out notice is erroneous. Bank of 
 Florence v. United States Sav. & L. 
 Co. 104 Ala. 297. 
 
 The order should embrace a find- 
 ing as to facts justifying appoint- 
 ment. Morey v. Grant, 48 Mich. 
 326. 
 
 Page 607, sec. 384. — Affidavits. 
 
 Affidavits may accompany the pe- 
 tition in an action by partners, 
 which ask for the appointment of a 
 receiver, under Tex. Rev. Stat. 1895, 
 art. 1465, and may be read in sup- 
 port of its allegations, but they can- 
 not serve as pleadings in the case or 
 enlarge upon the case made by the 
 petition. Wehh v. Allen, 15 Tex. 
 Civ, App. 605. 
 
 Abatement. 
 
 The appointment of a receiver in 
 one action for a fund to be collected 
 by a city from drainage assessments 
 does not abate other actions then 
 pending against the city to compel 
 payment of claims to which the 
 money in such funds is applicable. 
 Wilder v. "New Orleans, 58 U. S. App. 
 109, 87 Fed. Rep. 843, 31 C. C. A. 
 249. 
 
 Appeal. 
 
 An insurance company which ap- 
 pears on the rule to show cause why 
 the receiver should not be appointed 
 to collect certain policies, and makes 
 no objection to the appointment, can- 
 not claim on appeal that such ap- 
 pointment was error. 'New York L. 
 Ins. Co. V. Davis, 94 Va. 427. 
 
 Suit in bar. 
 
 A judgment in favor of receivers 
 of a bank in one state is a bar to a 
 suit by the receivers in the name of 
 the bank on the same cause of action 
 in another state. Bank of North 
 America v. Wheeler, 28 Conn. 433, 
 73 Am. Dec. 683. 
 
 Attacking judgment. 
 
 An intervention by a debtor in a 
 judgment in favor of a receiver, in an 
 application by the attorney • of the 
 receiver to have the attorney's fees 
 fixed and allowed, whereby such debt- 
 or seeks to reduce the judgment by 
 one half of the attorney's fees in- 
 cluded therein, which the attorney 
 had agreed to allow the receiver to 
 retain, is a direct proceeding within 
 the rule that a judgment may be as- 
 sailed in a direct proceeding for 
 fraud or accident preventing the 
 party from availing himself of a 
 valid defense where the court is the 
 same which rendered the judgment, 
 and has jurisdiction of all tlio par- 
 ties interested, and control of the 
 funds. Uamniond v. Atlee, 15 Tex. 
 Civ. App. 267. 
 
 Page 615, sec. 396. — Void appointment. 
 
 An erroneous appointment does 
 not render the consequent proceed- 
 ings void. Mcllhenny v. Binz, 80 
 Tex. 1. 
 
 An order directing a receiver to 
 sell property of a corporation is nec- 
 essarily erroneous where he was im- 
 properly appointed receiver. Em- 
 pire Hotel Co. V. Main, 98 Ga. 176. 
 
 The appointment of a receiver un- 
 der a judgment which was dis- 
 charged in bankruptcy is void. Qib- 
 S071 V. Oorman, 44 N. J. L. 325. 
 
 An insolvent estate is not liable 
 for money loaned by one acting as 
 its receiver under a void appoint- 
 ment. Ludington v. Thompson, 4 
 App. Div. 117. 
 
 Page 618, sec. 399.— Right of set-off. 
 
 The debts of a bank in the hands 
 of a receiver cannot be deducted from 
 its credits in the hands of a receiver, 
 in fixing the amount of an assess- 
 
 ment against the receiver under the 
 Washington revenue act. Hewitt 
 v. Traders' Bank, 18 Wash. 326. 
 A counterclaim or sot-ofT comes
 
 899 
 
 RECEIVERSHIPS— SUPPLEMENT. 
 
 within tlie spirit of the act of Con- 
 gress of August 13, 1SS8, allowing a 
 receiver of a Federal court to be sued 
 in a state court without leave of the 
 court appointing him. Grant v. 
 Buckncr, 172 U. S. 232, 43 L. ed. 430. 
 
 A claim for breach of covenants 
 of warranty may be set off by the 
 vendee against the receiver of the 
 vendor, in a suit for rent due by the 
 vendee to the vendor, where the re- 
 ceiver is merely a general one to col- 
 lect and preserve assets. Central 
 Appalachian Co. v. Buchanan, 90 
 Fed. Rep. 454, 33 C. C. A. 598. 
 
 A depositor in an insolvent bank 
 is entitled to an equitable set-off of 
 liis deposit against a note on which 
 he is primarily liable, although the 
 note is not due at the time of the 
 appointment of the receiver of the 
 bank, where he elects to waive the 
 additional time. Clute v. Warner, 
 8 App. Div. 40. 
 
 Where receivers are representa- 
 tives of the creditors of an insolvent 
 corporation, and the suit is against 
 the stockholders, the right of set-off 
 does not exist. Osgood v. Ogden, 4 
 Keyes, 70. 
 
 A receiver is entitled to deduct 
 from money due to a creditor any 
 sum paid to him by mistake. Peo- 
 ple V. E. Remington & Sons, 60 Hun, 
 42. 
 
 Indebtedness due from an em- 
 
 154 
 
 ployee may be set off against wages 
 due from a receiver. Davis v. Stover, 
 ,16 Abb. N. S. 225. 
 
 Rights of set-off are not affected 
 by the appointment of a receiver. 
 Re Middle District Bank, 1 Paige, 
 585. 
 
 Rent wrongfully paid to a receiver 
 may be offset against future rents. 
 Grant v. Buckner, 172 U. S. 232, 43 
 L. ed. 430. 
 
 For equitable set-off against funds 
 in the hands of receivers — seeMerrill 
 V. Cape Ann Granite Co. 161 Mass. 
 212. 
 
 Debts of a partner and his firm to 
 a bank cannot be set off by a bank 
 receiver against trust moneys which 
 the partner mixed with his own or 
 the firm's deposit, without the 
 bank's knowledge, the whole amount 
 remaining until the bank failed. 
 Knight v. Fisher, 58 Fed. Rep. 991 ; 
 Fisher v. Knight, 17 U. S. App. 502, 
 61 Fed. Rep. 491, 9 C. C. A. 582. 
 
 Depositors of a bank in the hands 
 of a receiver have a right of set-off" 
 as against the demands of the receiv- 
 er due from them on notes. State 
 V. Brohston, 94 Ga. 95. 
 
 Demands due a lessee before the ap- 
 pointment cannot be set off against 
 rents accruing afterwards. Farmers' 
 Loan c£ T. Co. v. Northern P. R. Co. 
 58 Fed. Rep. 257.
 
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