UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY UNIVER% ^LOSANGElfr. &UIBRARY0, \WEUNIVEItf// y ^OilWDJO- ^0FCA11F0% HZT^I C^j "- ^X5 6^ c> 7, 271 v. Duignan, 172 Harrup v. Winslet, 18 Hart v. Eastern Union Railway Co., 74 v. Tulk, 21, 148, 155 Hartz v. Schrader, 92 Harvey v A'arney, 168, 207 Hatbornthwaitev. Russell, 20 Havers v. Havers, 21, 22 Hawkins v. Gathercole, 132, 133, 179,183, 185, 191 Heald v. Hay. 130 Henn v. Walsh, 103 Henry v. Kaufman, 173 TABLE OF CASES CITED. Xlll Henshaw v. Wells, 39, 150, 153 Her v. Hinde, 79 Herbert v. Greene, 52 Herman v. Dunbar, 244, 270 Herricks, Re, 274 Hervey v. Fitzpatrick, 37 Hewitt v. Adams, 84 Hibbertv. Hibbert, 163, 233 Hicks v. Hicks, 17, 254, 258 Hilles v. Moore, 45, 46, 47, 146, 151, 152, 153, 154 Hill v. Hibbitt, 15 v. Kirwan, 87 v. Paul. 129 v. Rimmell, 147, 148 v. Taylor, 119 Hills v. Parker, 180, 203 Hinton v. Galli, 134 Hitchen v. Birks, 31, 34, 121 Hobhouse v. Hollcombe, 199, 204 Hobson v. Shearwood, 199, 201, 203 Hodson v. Watson, 134 Hoffman v. Duncan, 109, 136 Holbrook v. The Receivers, 209 Holden v. McMakin, 91, 101, 104, 150 Hollenstein v. Conrad, 105, 151 Hollier v. Hedges, 201 Hollis v. Bryant, 62 Holmes v. Bell, 53 Hooper v. Winston, 196 Hope Insurance Co. v. Taylor, 207 Hopkins v. Worcester and Bir- mingham Railway Co., 52, 67, 68, 73 Horlock v. Smith, 171 Horrell v. Witts, 101 Hosack v. Rogers, 24 Houlditch v. Donegal, 133, 134 Howard v. Papera, 20 Howell v. Ripley. 2, 52, 182 Howe v. Deuel, 82 Hoyt v. Thompson, 207 Hugh v. McRae, 83 Hubbard v. Curtis, 95 v. Hubbard, 57 Hudson v. Plets, 128 Hughes v, Hughes, 202, 203 v. Wheeler, 22 Huguenin v. Basley, 7, 8, 85, 124, 125 Hull and Hornsea Railway Co., Re, 65 Hungerford v. dishing, 147 Hunt v. Priest, 185 v. Columbian Ins. Co., The, 168, 207 Hunter v. Pring. 167 Hutchinson v. Massareene, 175, 177 v. Hampton, 215, 237 Hutton v. Beeton, 256 Hydev. Lynd, 225 Hyman v. Kelly, 39, 43 Iddings v. Bruen, 207 Imperial Mercantile Credit As- sociations. Newryand Armagh Railway Co., &c, 67, 72, 77, 78 Ireland v. Eade, 222, 244 v. Nichols, 127 Jackltn v. Wilkins, 148 Jackson v. De Forest, 278 Janeway v. Green, 20 Jay, Ex parte, 2 Jefferys v. Dickson, 38 v. Smith, 104, 108, 119 Jenkins v. Brvant, 260 v. Jenkins, 4, 20, 33 Jervis v. White, 146 Jewett v. Miller, 227 Johnes v. Claughton, 183, 185, 187, 192 Johns v. Johns, 147 Johnson v. Gunter, 173 Jolly v. Arbuthnot, 38, 202 Jones v. Dougherty, 10, 23, 147 Jones v. Frost, 34, 35 v. Goodrich, 29, 36 v. Holliday, 4, 150 v. Jones, 34. 35, 121 v. Keen, 237 v. Pugh, 56 Jordan v. Beale, 85 Joyce, In re, 2, 236 Kaiser v. Kellar, 235 Keenan v. Shannon, 112, 201 Keene v. Riley, 56 XIV TABLE OF CASES CITED. Keep v. Michigan Lake Shore R. R. Co., 81 Kelley v. Neshanic Mining Co., 84 Kellogg. Matter of. 237 Kelly v. Hutton, 128 v. Staunton, 44 Kennedy v. Gibson, 207 v. Lee, 85 v. St. Paul R. R., 67 Kenton, Case of, 114 Kershaw v. Matthews, 105 Keyes v. Brush, 23 v. Keys, 133, 134 Kiffin v. Kiffin, 17 Kilkenny, Earl of, Re, 222 Kincaid v. Dwindle, 170 Kinderly v. Jervis, 65 King v. Abbotson, 24 v. Cutts, 207 v. King, 29 v. O'Brien, 212 Kinney v. Crocker, 234 Kipp v. Hanna, 123, 125 Kirby v. Ingersoll, 90 Klein v. Jewett, 234 Knapp v. AVilliams, 68, 130 Knight v. Duplessis, 121 v. Lord Plymouth, 227 Knott v. The Receivers of the Morris Canal Co., 212 Koontz v. Northern Bank, 182, 225 Kuhl v. Martin, 57 Ladd v. Harvey, 10 Lafavette Bank v. Buckingham, 169 La Follet v. Akin, 225 Lambery v. Helsham, 128 Lancashire v. Lancashire, 123 Lane v. Lutz, 225 v. Sterne, 177, 191, 193 v. Townsend, 273 Langford v. Langford. 134 Langham, Re, 114, 217 Langley v. Hawke, 23 Langolf v. Seiberlitch, 6, 9 Langton v. Langton, 50, 184 Lansing v. Manton, 308 Largan v. Bowen, 55. 265, 266 Luthrop V. Knapp, 225 Law v. Ford, 83, 91 Lawrence v. The Greenwich Fire Insurance Co., 83, 84 Lawson, Ex parte, 141 Lechmere Charlton's Case, 142 v. Brasier, 56 Leddels' Extr. v. Starr, 18, 153 Leeming, Re, 144 Lees v. Jones, 108 v. Waring. 186 Leighton v. Harwood, 180 Legg v. Matthieson, 70, 72, 75 Lenox v. Notrebe, 6 Leonard v. Storrs, 207 Lespinasse v. Bell, 156 Levi v. Karrick, 2 Lewis v. Zouche, 54, 171, 185 Ley v. Ley, 158 Libby v. Rosekrans, 2 Lilia v. Airey, 57 Littleboy v. Spooner. 259 Lloyd v. Mason, 176 v. Passingham, 123, 124, 125, 153, 198 Locke v. Ash, 255 Lockey, Re, 274 Logan v. Princess of Coorg, 133, 281 Long Branch etc. R. R., In re, 84, 267 Long v. Storie, 132 Long Wellesley's Case, 142 Lottimer v. Lord, 2 Low v. Holmes, 92, 115 Lonsdale, Earl of, v. Church, 246 Louisville etc. R. R. v. Cauble, 234 Ludgater v. Channel, 260, 262 McCarthy v. Peake, 147 McDermott v. Kealey, 210 McDonnell v. Clarke, 154, 188 v. White, 170, 200 McDougald v. Dougherty, 147 McEvers v. Lawrence, 208 McGoldrick v. Slevin. 57 Mcllarg v. Donelly, 225 McLoud v. Phelps, 85, 175 McMillan v. Richards, 38 McNabv. Noonan, 224, 226 McVicker v. Ross, 6 TABLE OF CASES CITED. XV Mack v. Wetzlaf, 38 Madgwick v. Wimble, 90, 104 Maguire v. Allen, 146 Major v. Major,, 12, 13, 35, 36 Malcolm v. Montgomery, 22, 150 v. O'Callaghan, 240, 245 Mandel v. Peay, 20 Manlove v. Burger, 206, 207 v. Naylor, 207 Mann v. Stennett, 276 v. Fairchild, 226 Manners v. Furze, 162, 163 Mansfield v. Hamilton, 176, 215, 216 Mansony v. The Bank, 150 Marr v. Littlewood, 33, 34, 243 Marsden v. Kaye, 98 Marshall v. Colman, 103 v. Holloway, 283 Martin v. Black, 184 v. Van Schaick, 90, 218 v. Davis, 181 Marvine v. Drexel's Ex., 119, 225 Massay v. Banner, 227 Maund v. Allies, 109 Maunsell v. Egan, 274 May hew, In re, 110 Maynard v. Raily, 10, 105, 107 Mays v. Rose, 10 Mead v. Lord Orrery, 161, 162 Meadeu v. Sealey, 53, 147, 148, 157 Meagher v. O'Shaugnessy, 212 Mears, Administrator, v. Hol- brook, 232 Mears v. Holbrook, 235 Mechanic's Bank v. Bank of New Brunswick, 249 Merritt, Matter of, 177, 208, 235 v. Lyon, 203, 207, 208, 235 Metcalf v. Archbishop of York, 88, 132, 133 v. Pulvertoft, 9, 10, 87, 146 Methodist Episcopal Church v. Jaques, 57 Meux v. Smith, 111 Meyers v. Estell, 3, 39 Micklethwaite v. Micklethwaite, 9, 60 Middleton v. Dodswell, 9, 18, 20, 22, 27, 146, 154 Middletown v. N. J. West Line R. R., 84, 182 Millbank v. Revett, 116 Mijler v. Bowles, 3. 178 v. Elkins, 216 v. Jones, 101, 104, 222 v. Lock, 248 v. Loeh. 270 Mills v. Fry, 205, 223 Milwaukee Railroad Co. v. Sout- ter, 4, 81, 149, 266 and St Paul R. R. Co. v. The Milwaukee and Min- nesota R. R. Co., 13, 178 Mitchell v. The Duke of Man- chester, 203 Montgomery, Re, 216, 241, 244 v. Merrill, 172 Mordaunt v. Hooper, 124, 125 Morgan v. The Railroad Co.. 84 Morison v. M orison, 240, 281 Morris v. Elme. 212, 217, 283 Moies v. O'Neill, 90 Morse v. Brainerd, 233 Morrison v. Bnckner, 43 v. Morrison, 240, 281, 282, 284 Mountford, Ex parte, 17, 144, 145 Muller v. Pondir, 237 Munt v. Shrewsbury & Chester R. R. Co.. 82 Munns v. Isle of Wight R. R. Co., 224 Murray v. Yanderbilt, 83 Murrough v. French, 265, 266 Musgrove v. Nash, 247 Mver v. Crystal Lake W T orks, 193 Nangle v. Lord Fingal, 223 National Bank v. Colby, 84, 170, 177 National Bank v. Sprague, 225 Neale v. Bealing, 209 Neall v. Hill, 280 Neate v. Pink, 175, 219 Neave v. Douglas, 237 Newell v. Fisher, 207 XVI TABLE OF CASES CITED. Newman v. Mills, 205, 2G3 v. Hammond, 144 Newport v. Bury, 243 Newton v. Ricketts, 31, 32, 33 New York Life lus. Co. v. Glass, 3, 47 Nichols v. The Perry Patent Arm Co., 84 Noad v. Backhouse, 25, 26, 130, 148 Noe v. Gibson, 177,184, 208 Noonan v. McXab, 169 Norway v. Rowe, 11, 51, 108, 115 Noyes v. Rich, 43, 169 Nusbaum v. Stein, 147 Oakley v. Patterson Bank, 3, 83, 150 O'Bryan v. Gibbons, 91, 108 Ogden v. Kip, 24 Ogilvie v. The Knox Ins. Co., 67 O'Keele v. Armstrong, 272, 274 Olcott v. Heermans, 226, 251 Oldfield v. Cobbett, 9, 20, 23, 55 Oliver v. Decatur, 43 Ormesby, Re, 242 Orphan Asylum v. McCartee, 3. 10,21 Osborn v. Heyer, 62 Osborne v. Harvey, 86, 150 Osgood v. Laytin, 225 Overington v. Ward, 36 Owen v. Homan, 3, 6, 8, 55, 57, 169 O wing's Case, 89 Page v. Vankirk. 105 Paige v. Smith, 279 Palmer v. Bate, 129 v. Vaughan, 14, 129 v. Wright, 26, 240 Pare v. Clegg, 150 Parker v. Browning, 168, 177, 178,187,197,233,235 v. Dunn, 222 v. Moore, 62 Parkhurst v. Muir, 99 Parkin v. Seddons, 34. 121 Parsons v. The Manufacturing Co., 83 Partridge v. Foster, 62, 63 Paynter v. Carew, 191, 256, 266 Peacock v. Peacock, 99, 105, 107 Pell v. Northampton & Bunburg Junction R. R. Co., 224 Pemberton v. McGill, 24 Penn v. Whiteheads, 58 Pennell v. Roy, 110 People v. The Bank, 169 v. The Central City Bank, 165 v. The Mayor of New York, 127 v. Norton, 147 v. Rogers, 197 v. The Third Avenue Sav- ings Bank, 138 Perkins v. Deptford Pier Co., 75 v. Fourniquet, 149 Perrv v. Oriental Hotels Co., 140, 159 Pfeltz v. Pfeltz, 121 Philipps v. Atkinson, 99, 101, 102 Phipps v. Bishop of Bath and Wells, 50 Phcenix Warehousing Co. v. Badger, 193 Piddock v. Boultbee, 173, 174 Pignolet v. Bushe, 115 Pincke, Ex parte, 140, 141, 143 Pitcher v. Helliar, 146 Pitt v. Bonner, 256 v. Snowden, 202, 203 Plaskett v. Lord Dillon, 52, 62 Poague v. Greenlee, 205 Podmore v. Gunning, 28 Ponsonby v. Ponsonby, 263 Poole v. Ward, 161 Porter v. Williams, 207, 224 Portman v. Mill, 171 Post v. Dorr. 52 Postgate v. Barnes, 25 Potter v . Bunnell, 234 Potts v. Leighton, 241, 254, 257, 259 v. Warwick and Birming- ham Canal Co., 67, 70, 71. 72, 73,130, 138,186, 188 Powell, Abram. Case of, 141 Powis, //( re, 102 Powys v. Blagrave, 89, 136, 138, 155 TABLE OF CASES CITED. XV11 Poythrees v. Poythrees, 24 Prebble v. Boghurst, 14 Preston v. Corp. of Gt. Yarmouth, 77 Price v. Price, 20 v. White, 237 v. Williams, 52 Pritchard v. Fleetwood, 11, 14, 126 Pullan v. Cincinnati and Chicago R. R. Co., 6, 39, 81 Purcell v. Woodley, 257 Quarrell v. Beckford, 42, 45 Quincy v. Cheeseman, 39 Quin v. Holland, 268 Quinu v. Britain, 45 Radcliffe, Ex parte, 113, 114 Re, 114 Railroad Co. v. Brown, 172 Raincock v. Simpson, 202 Rainsdon, Re, 25 Ramsbottom v. Freeman, 147, 148 Ramsden v. Fairthorpe, 16, 118, 155 Randall v. Morrell, 100 RandBeld v. Randfield, 179, 187, 190, 197 Rankin v. Harwood, 182 Rawes v. Rawes, 186, 200 Rawson v. Rawson, 147, 155 v. Raynes, 274 Ray v . Macomb, 241 Read v. Bowers, 96 Receivers v. The Paterson Gas- light Co., 84 Receiver, Spencer, et al. v. Dar- lington, 184 Redmund v. Enfield Manufactur- ing Co., 82 v. Hoge, 68 Reed v. Harris, 36 Reeves v. Cox, 17 v. Neville, 263 Reid v. Middleton. 53, 199, 200 v. Reid, 4, 150 Rendall v. Rendall, 30, 31, 33 Renton v. Chaplain, 101 Republic Ins. Co., In re, 208 Reynolds. Re, 144 Rhodes v. Lord Mostyn, 50, 62, 63, 64 Rice v. Tonnele, 16, 30 Rich v. Loutrel, 194 Richards v. Chave, 29 v. Perkins, 21 v. Richards, 186 Richardson v. Ward, 264 Riches v. Owen, 88, 89, 111, 112 Rickman v. Johns, 72 Ridway v. Roberts, 131 Rigge v. Bowater, 175 Riggs v. AVhitney, 201, 208 Roberts, Matter of, 237 v. Eberhardt, 94,97,103, 108, 120 Robinson v. Hadlev, 55, 153, 154 v. Pett, 236 v. Rose, 126, 150 v. Smith, 82 v. The Atlantic and Great Western Rail- way Co., 177, 208 Rock v. Cook, 193 Rockwell v. Merwin, 207 Rogers v. Marshall, 121 v. Newton, 152; v. Ross, 89 v. Wheeler, 233 Root v. Safford, 155 Rose v. Bevan, 64 Rowe v. Wood, 45, 48, 49, 103, 105, 108 Rowlands v. Williams, 108, 109 Rowth v. Howell, 227 Rooth v. Howell, 209 Rnggles v. Brock, 225 Runk v. St. John, 207 Runyon v. The Farmers' and Mechanics' Bank, 197 Russell v. East Anglian Railway Co., 76, 77, 178, 179, 180,185,186,187, 188, 189, 191, 193, 194 v. Russell, 200 Rutherford v. Douglass, 32 V.Wilkinson, 282, 284 Ryckman v. Parkins, 241 Sadijer v. Green, 244 Sailing v. Johnson, 150 Salt v. Lord Donegal, 173 XV111 TABLE OF CASES CITED. Sal way v. Sal way, 227, 228 Sandford v. Ballard, 115, 116, 117 v. Sinclair, 147 Sankey v. O'Maley, 265 Sargent v. Reed, 136, 153 Satro v. Wagner, 90 Sawn v. Gesser, 81 Saylor v. Mockbie, 9, 95, 104 Schlecht's Appeal, 5, 19, 32, 121 Scott v. Becker, 22, 146 v. Hastings, 65 v. Platel. 136, 255, 256 Screven v. Clark, 206 Scurrah v. Scurrah, 115 Sea Insurance Company v. Steb- bins, 39 Seamen. Re, 114 Searle v. Smales, 115, 117 Sedgwick v. Place, 20, 111 Seibert v . Seibert, 105 Seigliortner v. Weissenborn, 90, 258 Seymour v. Vernon, 173 Shaftesbury, Earl of, v. Duke of Marlborough, 130 Shakel v. Duke of Marlborough, 88 Sharp v. Carter, 171 v. Wright, 251 v. St. Paul Railway Co., 22 Shaw v. Rhodes, 223, 229, 246, 254 v. Simpson, 286 v. Wright, 17 Shee v. Harris, 127, 150, 152 Shelly v. Pelham. 203 Sheppard v. Oxen ford, 22, 95, 104, 106, 108, 109. 280, 281 Shewell v. Jones, 253 Shore v. Shore, 89, 246 Shotwell v. Smith, 39 Shuff v. Holdway, 210, 272 Shulte v. Hoffman, 105 Silver v. Bishop of Norwich, 8, 38, 51, 60, 61, 133 Simmons v. Henderson, 146 v. Rose, 274 Simpkins v. The Smith & Parme- lee Gold Co., 135 Simpson v. Roberts, 44 Sinonen v. Wood, 184, 225 Skerrett's Minor. 229 Skinners' Societv v. Irish Society, 7, 8, 11, 12, 15 Skinner v. Maxwell, 2, 15, 181 Skip v. Harwood, 3, 171 Slemmer's Appeal, 97, 99 Sloan v. Moore, 3, 91, 128 Small v. Marwood, 19 Smith v. Hurst, 62, 63, 64 v. Jeyes, 97, 99, 103, 104 v. Lord Effingham, 54, 185, 186 v. Lowe, 103 v. Lyster, 118, 119, 269 v. New York Stage Co., 169,241,278 v.Smith, 18,19,23,26, 134 v. The Metropolitan Gas Light Co., 82 v. Yaughan, 264 Sollory v. Leaver, 11, 42 Speights v. Peters, 91 Spencer v. Darlington, 220 Sprague v. Smith. 233 Stack, Re, 190, 264 Stafford and Uttoxeter Railway Co., Re, 280 Stainton v. Carron Co., 23 Stairley v. Rabe, 20 State of Illinois v. Dela6eld, 20 The, v. The Northern Cen- tral R. R. Co., 10, 67 of Maryland v. Northern Central R. R. Co., 51 Bank v. The Receivers, 173, 175 of Tennessee v.J. C. Allen, 121 Steele v. Cobham, 12, 22 Steer v. Steer, 278 Stevens v. Davison, 278 Stewart v. Beebe, 207 Stillwell v. Wilkins, 123, 124, 125, 185 Stilwell v. Mellersh, 264 Stitwell v. Williams, 1 Stone v. Wetmore, 129 v, Wishart, 140 Story v. Furman, 207 Stratton v. Davidson, 148 Street v. Anderton, 115, 117, 118 Sturch v. Young, 38, 40 Sluyvesant v. Davies, 123 Sutton v. Jones, 137, 138, 139 v. Rees, 184, 188 Suydam v. North Western Ins. Co., 62 TABLE OF CASES CITED. XIX Suydam v. The Receivers, 209 Swaby v. Dickon, 215, 216, 242, 244 Swain v. Smith, 272 Swale v. Swale, 26 Sweet v. Partridge, 56 Swing v. Townsend, 150 Sykes v. Hastings, 137, 138, 139, 243 Sylvester v. Reed. 62 Symons v. Symons, 210 Syracuse Bank v. Tallrnan, 38, 39 Tait v. Jenkins, 19 Talbott v. Hope Scott, 14, 22, 121 Talmage v. Pell, 224 Tanfield v. Irvine, 50, 52, 148 Tantum v. Green, 63 Tappan v. Grey, 129 Tatham v. Parker, 189 Taylor v. Allen, 24 v. Baldwin, 208 v. Emerson, 52 v. Gillean, 181 v. Oldham, 140 Tempest v. Ord, 217 Terrell v. Goddard, 91, 99 Tew v. Lord Winterton, 260 Tharp, In re, 284 v. Tharp, 158 Thomas v. Brigstock, 52, 172, 173, 180, 263 v. Davies, 9, 151 v. Duwkin, 158 Thompson v. Derham, 111 v. Diffenderfer, 10 v. Scott, 208 v. Selby, 12 v. Sherrard. 127 v. Van Vechten, 49 Thornhill v. Thornhill, 209 Thurgood, Ex parte, 188 Thurlow v.Thurlow, 261 Tibbals v. Sargeant, 11, 147 Tidd v. Lister, 27 Till, Ex parte. 110 Tillinghast v. Champlin, 101, 207 Tink v. Runkle, 192 Todd v. Lee, 57 Tomlinson v. Ward, 10, 91, 99, 150, 160 Topping v. Searson, 15, 56 Towusend v. Somerville, 186 Townson v. Tickell, 19 Trade Auxiliary Co. v. Vichard, 66, 82 Transatlantic Co. v. Pietroni, 13, 28 Triebert v. Burgess, 147 Try v. Try, 193 Tullet v. Armstrong, 3 Tupper, Ex parte, 113, 145 Turgeau v. Brady, 83, 147 Turner v. Chrichton, 150 v. Major, 107 v. Turner, 192 Tylee v. Tylee, 133, 135, 163 Tyler v. Poppe, 9 v. Willis, 156 Tyson v. Fairclough, 115, 116, 117 Uhl v. Dillon, 57 Utica Ins Co., The, v. Lynch, 228, 241 Utterson v. Mair, 22 Van Allen, matter of, 209 Van Alstyne v. Cook, 182 Van Buren v. The Ins. Co., 237 Vann v. Barnett, 146, 149 Vance v. Woods, 10, 147 Vaughan v. Vaughan, 165, 272 Venet v. Duprez, 34 Vermont and Canada R. R. v. Vermont Cent. R. R., 178 Verplank v. Caines, 4 v. The Mercantile Ins. Co., 147, 171, 196 Very v. Watkins, 263 Vincent v. Parker, 2, 185 Vose v. Reed, 6 Voshell v. Hynson, 6, 10 Wade v. The American Col. Soc, 150 Wadmore v. Trevanion, 178 Walker, Ex parte, 4, 23 Walker v. Bell, 189 v. House, 91, 101 v. Morris, 21 v. Wild, 275 v. Wollaston, 29 Wall Street Insurance Co. v. Loud, 44 Wallworth v. Holt, 95 Walsh v. Walsh, 184, 188, 189 XX TABLE OF CASES CITED. Walton v. Johnson, 219 Ward, Re, 161 v. Swift, 179, 192, 216, 246,259 v. The Sea Insurance Co., 84 Ware v. Ware, 4, 117 Warfield v. Owen, 57 Waring v. Robinson, 58, 91, 182 Warner v. Gouverneur's Ex'rs, 39 Warren, Ex parte, 113, 236 v. Fake, 82 v. Sprague, 241 Wastell v. Leslie, 220, 252 Waterbury v. Merchants' Union Exp. Co., 81 Waterloo v. Sharp, 72 Waters v. Taylor, 94, 98, 217, 278,280 Watkins v. Brent, 29, 30, 31, 32 v. Pinkney, 177 Weale v. Ireland, 240 Weems v. Lathrop, 147, 257, 262, 265 Weguelin v. Lawson, 149 Weissenborn v. Sieghortner, 278 Wellman v. Harker, 91 Wells v. Wales, 252 Westby v. Westby, 25 Whilpley v. The Erie R. R. Co., 6 Whipple, In re, 178 White v. Baugh, 220, 229 v. Bishop of Peterborough, 52,60, 133 v. James, 10, 44 v. Joy, 208 v. Snuile, 10, 11, 42, 44 Whitehead v. Lynes, 256 v. Wooten, 41, 146, 147 Whitclaw v. Sandys, 16 Whitely v. Lowe, 172 Whiteside v. Prendergast, 265 White Water Valley Canal Co. v. Vallette. 67 Whitfield, Exparte, 144,145 Whitworth v. Gaugain, 65, 127 v. Whyddon, 8, 9, 18, 19, 30, 65 Wickens v. Townsend, 169, 176, 223, 230 Wickham v. New Brunswick, etc., Railway Co., 65, 75 Wildridge v. McKane, 231 Wildy v. North Hants Railway Co., 72 Wilkins v. Lynch, 211 v. Williams, 142, 157 Wilkinson v. Bewick, 229 v. Colly, 215 Williams, Ex parte, 102 Williams v. Jenkins, 115, 147 v. Monroe, 151 v. Robinson, 43 Williamson v. New Albany R. R., 6, 81 v.Wilson, 2, 99, 146, 160, 274 Willis v. Corlies. 9, 123 Willoughby v. Willoughby, 117 Wilmer v. Kidd, 194 Wilson v. Allen, 225 v. Davis, 150, 226 v. Greenwood, 102, 105, 109, 136 v. Poe, 140, 141, 156 v.Wilson, 15. 22,52, 163 Wise v. Beresford, 127 Wis wall v. Sampson, 51, 177 Wood v. Brewer, 150 v. Hickings, 201 v. Hitchings, 11, 15, 29, 31, 35, 156 v. Wood, 230 Wooding v. Malone, 9 Woods v. Creaghe, 276 Woodyatt v. Gresley, 27, 125 v. Seeley, 146 Wren v. Kirton, 227, 228 Wright v. Merchants' Nat. Bank, 84 v. Mitchell, 191 v. Vernon, 2, 9, 151, 152 v. Wilkins, 123 Wrixon v. Vize, 172 Wynne v. Griffith, 54 v. Lord Ncwborough. 142,157,210,212,213, 216 YK.\fiF,R v. Wallace, 168, 196, 197, 206, 207 Yctts v. Palmer, 25 A TREATISE ON THE LAW AND PRACTICE AS TO RECEIVERS APPOINTED BY THE COURT OF CHANCERY. CHAPTER, I. PRINCIPLES ON WHICH A RECEIVER IS APPOINTED BY THE COURT OF CHANCERY. Jurisdiction.— The jurisdiction of the Court of Chan- cery to appoint a receiver has been assumed for the advancement of justice, and is founded on the inade- quacy of the remedy to be obtained in the courts of ordinary jurisdiction. (a) There are few cases that can be stated in which the court has not jurisdiction where it is essential to the justice of the case to interfere by appointing a receiver.(i) If the remedy afforded by the courts of ordinary jurisdiction is inadequate for the purposes of justice, the Court of Chancery will, on (a) See 3 Akt. 564, 2 Sw. 165, (&) See Bainbrigge v. Badde- Mitf. PL 145 ; Stitwell v. Wil- ley, 3 Mac. & G. 419. Hams, 6 Madd. 49. 1 2 APPOINTMENT a proper case being made out, ex debito justitice, appoint a receiver.(c) 1 Nature of the Office.— A receiver is an indifferent per- son between the parties, appointed by the court to col- lect and receive the rents, issues, and profits of land, or the produce of personal estate, or other things in question pending the suit, which it does not seem rea- sonable to the court that either party should do ; or where a party is incompetent to do so, as in the case of an infant.(d) 2 A receiver can only be properly granted for the purpose of getting in and securing funds which this court at the hearing, or in the course of the cause, will have the means of distributing among the persons entitled to those fuuds.(e) 3 (c) See Cupit v. Jackson, 13 (d) Dan. Ch. Pr. 1552. Pri. 734; see also L. R. 6 Eq. (e) Evans v. Coventry, 3 Drew. 447, per Giffard, L. J. 80 ; see Wright v. Vernon, lb 121. 1 See the remarks of Chancellor Bland in Williamson v. Wilson, 1 Bland, 420, 421. See also, Skinner v. Maxwell, 66 N. C. 45. 2 A receiver is not in any particular more bound to the party upon whose motion he is appointed, than to any other party in the cause ; he owes an equal duty to all alike, and he is responsible to the court alone. Booth v. Clark, 17 Howard, 331 ; Ex parte Jay, L. R. 9 Ch. 133; Loitimer v. Lord, 4 E. D. Smith, 183; Lilly v. Rosekrans, 55 Barb. 202 ; Baker v. Backus, 32 111. 79 ; Beverley v. Brooke, 4 ({rattan, 208. The general principles regulating the appointment of a receiver, and the nature of his office, are well stated in this last case by Baldwin, J. 3 But a receiver is sometimes appointed to take charge of property in which a stranger to the cause may have an interest. Vincent v. Parker, 7 Paige, 0. R. 65. In such a case the court is careful to make such orders, from lime to time, as will protect the rights of the third party; Id.; and sec ffowell v. Ripley, 10 Paige, 0. 11.43; and Iv re Joyce, L. B. 10 Oh. 222. But in Levi v. Karrick, 13 OF RECEIVER. The object sought by the appointment of a receiver may be generally described to be to provide for the safety of property, pending the litigation which is to decide the right of litigant parties,(/) or during the minority of infants,^) or to preserve property iu dan- ger of being dissipated or destroyed by those to whom it is by law entrusted, or by persons having immediate but partial interests therein. (A) 1 Appointment a Matter of Discretion.— The appointment of a receiver is a matter resting in the sound discretion of the court. (i) 2 In exercising its discretion, the court (/) Tullett v. Armstrong, 1 (li) Mitf. PL 133. Keen, 428 ; Owen v. Homan, 4 (i) Skip v. Harwood, 3 Atk. H. L. 1032. 564 ; Greville v. Fleming, 2 J. {g) Dan. Oh. Pr. 1552. & L. 339. Withrow, 344, it is said that when the rights of bond fide purchasers have intervened, the court will not appoint a receiver. And a re- ceiver will not be appointed at the suit of a mortgagee, over property which is in possession of one who claims to hold free of the mortgage and who is not a party to the suit ; N. Y. Life Ins. Co. v. Glass et al., 50 How. 88. 1 " Receivership," say the court in Meyers v. Est ell, 48 Miss. 401, " is one of those remedial agencies devised originally in order to preserve the fund or thing from removal beyond the jurisdiction or from spoliation, waste, or deterioration, pending the litigation. This was the original purpose ; a preservation of the thing so that it might be appropriated as the final decree shall appoint." The custody of receivers "is that of the law, and is in its nature pro- visional and suspensive, leaving the rights of the parties concerned to be controlled by the ultimate judgment of the Court." Per Johnson, J., Court of Appeals, N. Y., in Miller v. Bowles, 10 Nat. Bank. R. 515. 2 Copper Hill Mining Co. v. Spencer, 25 Cal. 13 ; Oakley v. Patterson Bank, 1 Green, C. R. 181 ; Sloan v. Moore, 37 Penna. St. R. 217 ; The Orphan Asylum v. McCartee, Hopkins, 429. But 4 APPOINTMENT proceeds with caution, and is governed by a view of the whole circumstances of the case. No positive or unvarying rule can be laid down as to whether the court will or will not interfere by this kind of interim this discretion does not exist in all cases ; see Milwaukee Rail- road Co. v. Soutter, 2 Wallace, 521. In this case a receiver had been appointed, by the Circuit Court, on application of a mort- gage creditor of a railroad, who had filed a foreclosure bill. The amount due for interest on the mortgage was afterwards ascertained when the case went up to the Supreme Court on appeal. After the case had gone back to the Circuit Court, a junior mortgagee moved to discharge the receiver, offering, at the same time, to pay the in- terest which bad been ascertained to be due. The court refused the application, but this decision was reversed on appeal. " The only doubt," said Miller, J., " which the court could have on the question, arises from the principle that the appointment and dis- charge of a receiver are ordinarily matters of discretion in the Circuit Court, with which this court will not interfere. As a general rule, this proposition is not denied. But we do not think it applicable to the case before us. While the parties to this suit were fiercely liti- gating the amount of the mortgage debt, aud questions of fraud in the origin of that debt, the appointment or the discharge of a re- ceiver for the mortgaged property very properly belonged to the discretion of the court in which the litigation was pending. But when those questions had been passed upon by the Circuit Court and by this court on appeal, and the amount of the debt definitely fixed by this court, the right of the defendant to pay that sum, and have a restoration of his property by discharge of the receiver, is clear, and does not depend on the discretion of the Circuit Court. It is a right which the party can claim ; and if he shows himself entitled to it on the facts on the record, there is no discretion in the court to withhold it. A refusal is error — judicial error — which this court is bound to correct when the matter, as in this instance, is fairly before it." See also Jones v. Holliday, 37 Georgia. 573 ; Reid v. Reid, 38 Id. 29 ; Crawford v. Ross, 39 Id. 44 ; Ware v. Ware, 42 Id. 408; Jenkim v. Jenkins, 1 Paige, C. B. 24:?; /•:.»■ parte Walker, 25 Alab. 81. In some cases the propriety of appoint- ing a receiver cannot be determined until the hearing — sec Verplank v. Caines, 1 Johns. <'. If. 57, where a demurrer to a bill praying for a receiver was overruled. OF RECEIVER. 5 protection of the property. Where, indeed, the pro- perty is as it were in medio, in the enjoyment of no one, the court can hardly do wrong in taking posses- sion. It is the common interest of all parties that the court should prevent a scramble. Such is the case where the receiver of property of a deceased person is appointed pending a litigation as to the right of pro- bate or administration. !No one is in the actual enjoy- ment of property so circumstanced, and no wrong can be done to any one by taking and preserving it for the benefit of the successful litigant. But where the ob- ject of the plaintiff is to assert a right to property of which the defendant is in enjoyment, the case is neces- sarily involved in farther questions. The court by taking possession at the instance of the plaintiff may be doing a wrong to the defendant ; in some cases an irreparable wrong. If the plaintiff should eventually fail in establishing his right against the defendant, the court may by its interim inteference have caused mischief to the defendant, for which the subsequent restoration of the property may afford no adequate compensation. 1 In all cases, therefore, where the court interferes by appointing a receiver of property in the possession of the defendant, before the title of the plaintiff is established by decree, it exercises a discre- tion to be governed by all the circumstances of the case. "Where the evidence on which the court is to act is very clear in favor of the plaintiff, there the risk of eventual injury to the defendant is very small, and 1 See Schlecht's Appeal, 60 Penna. St. R. 176, and Chap. II. Sect. 14, infra. 6 APPOINTMENT the court does not hesitate to interfere. Where there is more of doubt, there is of course more of difficulty. The question is one of degree, as to which, therefore, it is impossible to lay down any precise or unvarying rule.^) 1 Principles which Govern the Discretion of the Court.— The duty of the court upon a motion for a receiver is (k) Owen v. Homan, 4 H. L. 1032, per Lord Cranworth ; see Gray v. Chaplin, 2 Russ. 145. 1 Where one party has a clear right to the possession of property and where the dispute is as to the title only, the court would very reluctantly disturb that possession. But when the property is ex- posed to danger and to loss, and the party in possession has not a clear legal right to the possession, it is the duty of the court to interfere and have it secured by appointing a receiver. Lenox v Notrebe, 1 Hempstead, 225. See also Hamberlain v. Marble, 24 Miss. 586. Such an appointment is a strong measure, and is not to be exercised doubtingly. Chicago Co. v. U. S. Pet. Co., 57 Penna. St. R. 83; Langolf Seiberlitch, 2 Pars. Eq. Cas. 79, 80; Blondheim v. Moore, 11 Maryl. 365-374, 376 ; Voshell v. Hynson, 26 Marly. 83 ; Pullan v. Cincinnati Sf Chicago R. R. Co., 4 Biss. 47 ; Williamson v. New Albany, SfC, R. R., 1 Id. 198 ; Beecher v. Bininger, 7 Blatch. 170 ; Whilpley v. The Erie R. R. Co., 6 Id. 271 ; Mc VicTcer v. .Ross, 55 Barbour, 248. " All the circumstances of the case are to be taken into consideration, and if the case be such that a greater injury would come from the appointment of a receiver than from leaving the pro- perty in the hands now holding it, or if any other considerations of propriety or conveniency render the appointment of a receiver im- proper or inexpedient, none will be appointed. In this case the trustees having possession of the trust fund and property arc public officers of the State and trustees ex officio. . . . The State has a great interest in the trust. . . These public and political objects of the trust make it extremely fitting that the chief executive officers of the State should administer the fund. And it must be a very strong case indeed which will induce the Court to take the property out of their hands and put it into the hands of its own officers. . . . The motion for a receiver is therefore denied." Per Bradley, J., in Vose v. Reed, 1 Woods, 647, 650, 651, 652. OF KECEIVER. I merely to protect the property in the mean time for the benefit of those persons to whom the court at the hearing of the cause, when it will have before it all the evidence and materials necessary for a determina- tion, shall think it properly belongs.(7) On motion for a receiver, the court will not prejudice the cause.(w) The court does not in appointing a receiver say what view it shall take at the hearing.(??) On motion for a receiver, the court has not to consider the question of what may be the result at the hearing, nor whether the time may not come when, on a different state of things, the court would appoint a receiver.(o) In deal- ing with the application, the court is bound not to go out of its way in order to give the plaintiff an oppor- tunity of obtaining previously to the hearing the opinion of the court upon the subject-matter of the suit. 1 The court is bound to express its opinion only so far as it is necessary to show the grounds on which the interlocutory motion is disposed of. It is the duty of the court to confine itself strictly to the point upon which it is called upon to decide, and not to go into the merits of the case.(^) The court will give no (l) Blakeney v. 'Dufaur, 15 (o) Gray v. Chaplin, 2 Euss. Beav. 42. 141. (m) Huguenin v. Baseley, 13 (p) Skinners' Society v. Irish Ves. 107. Society, 1 M. & C. 164; see (n) Fripp v. Chard Railway Evans v. Coventry, 5 D. M. & Co., 11 Ha. 2G4. G. 918 ; Blakeney v. Dufaur, 15 Beav. 42. 1 The appointment of a receiver determines nothing as to the title to the subject-matter of the cause. In the matter of Rachel Colvtn, 3 Maryl. Ch. Decis. 278-302 ; Chase's Case, 1 Bland, 206-213 ; Beverley v. Brooke, 4 Grattan, 208. 8 APPOINTMENT encouragement to any attempt to obtain its decision on important questions before the hearing.^) The court will not, indeed, appoint a receiver at the in- stance of a person whose right is disputed, where the effect of the order would be to establish the right, even if the court be satisfied that the person against whom the demand is made is fencing off the claim. (r) In determining whether it shall appoint a receiver, the court deals with the case as it appears upon the pleadings and evidence, and stands on the record. (s) If the court is satisfied upon the materials it has before it that the relief prayed by the bill will be given when a decree is pronounced, and that it is necessary or ex- pedient to secure the property until the hearing, there is a case for the appointment of a receiver.(^) If it appears to the court that the plaintiff has established a good 'prima facie equitable title, and that the pro- perty, the subject-matter of the suit, is in danger if left in the possession of the party against whom the receiver is prayed until the hearing,^) or, at least, that there is reason to apprehend that the plaintiff will be in a worse situation if the appointment of a (q) Bates v. Brothers, 2 Eq. (t) Huguemn v. Baseley, 13 327. Yes. 107 ; Davis v. DuJce of Marl- (r) Greville v. Fleming, 2 J. borough, 2 Sw. 138 ; Clegg v. & L. 335. Fishwick, 1 Mac. & G. 299 ; (s) Silver v. Bishop of Nor- Witioorth v. Wliyddon, 2 Mac. ivich, 3 Sw. 116 n. ; Skinners' & G. 55 ; Owen v. Homan, 3 Society v. Irish Society, 1 M. & Mac. & G. 412, 4 H. L. 1033. C. 164 ; Evans v. Co ventry, 5 D. (u) Evans v. Coventry, 5 D. M. & G. 918. M. & G. 918. OF RECEIVEK. receiver be delayed,(x) the appointment of a receiver is almost a matter of course. (y) 1 If there is no dan- ger to the property, and no fact is in evidence to show the necessity or expediency of appointing a receiver, a receiver will not be appointed, unless there be some other equity in the case to support the application.^) 2 The mere allegation of danger to the property is not sufficient, if the court is satisfied that no loss need be apprehended. (a) If, however, it be the true and ne- cessary result of the pleadings as they stand, that the {x) Aberdeen v. Chitty, 3Y. 2 Mac. & G. 55; Wright v. Ver- & C. 382 ; Thomas v. Davies, 11 non, 3 Drew. 121 ; MicMethioaite Beav. 29; see Metcalfe v. Pul- v. Micklethwaite, 1 D. & J. 530; vertoft, 1 V. & B. 180. Bowker v. Henry, 6 L. T. N. S. (y) See Middleton v. Dodswell, 43. 13 Ves. 266; Oldfieldv. Cobbett, (a) Witworth v. Wlxyddon 4 L. J. Ch. N. S. 272. 2 Mac. & G. 55. (z) Whitivorth v. Whyddon, 1 In Iowa it is expressly provided by statute that where a party to civil action shows a probable right to the subject matter of the litigation, aud that the property would be jeopardized by remaining in the custody of the adverse party, a receiver shall be appointed. Revised Laws of Iowa, 622 (Section 1656 of the Code). And see Saylor v. Mockbie, 9 Iowa, 209. So, too, by the California Code; " where a prima facie right is established, and the property is in danger," a receiver may be appointed. "Wood's Digest, 185. 2 Baker v. Backus, 32 111. 79-95. The fact that the fund is in danger is not of itself sufficient ; the party in possession of the pro- perty must be irresponsible. Willis v. Corlies, 2 Edwards, C. R. 281, 286-7 ; Tyler v. Poppe, 4 Id. 430 ; Langolf v. Seiberlitch, 2 Pars. Eq. Cas. 79-80; Clark v. Ridgely, 1 Maryl. Ch. Dec. 70; Blondheim v. Moore, 11 Maryl. 365-374 ; Wooding v. Malone, 30 Georgia, 979 ; see also Burt v. Burt, 41 New York, 46 ; Haggarty v. Pitt- man, 1 Paige, C. R. 298 ; Gofer v. Echerson, 6 Iowa, 502 ; and Edie v. Applegate, 14 Iowa, 273. 10 APPOINTMENT property is in danger or that loss may be apprehended, there is a case for a receiver.(6) 1 It is not, however, necessary, to entitle a party to the appointment of a receiver, that the property in question should appear to be in danger unless the ap- pointment be made. It is enough that a good equi- table title be made to appear, and that the remedy at law should not fulfil the requisition of justice. (c) A (b) Evans v. Coventry, 5 D. Pri. 734; White v. Smale, 22 M. & G. 917 ; see Metcalfe v. Pal- Beav. 73 ; White v. James, 26 vertoft, 1 V. & B. 180. Beav. 191 ; Hall v. Burt, 2 J. & (c) See Cupit v. Jackson, 13 H. 76 ; supra, p. 1. 1 In Blondheim v. Moore, 11 Maryland, 364 (a leading case) , it was said that the authorities upon the subject established the follow- ing propositions : — 1st. The power of appointment is a delicate one, and to be exer- cised with great circumspection. 2d. It must appear that the claimant has a title to the property, and the court must be satisfied by affidavit that a receiver is necessary to preserve the property. 3d. There is no case where the court appoiuts a receiver merely because the measure can do no harm. 4th. Fraud or imminent danger, if the intermediate possession should not be taken by the court, must be clearly proved. 5th. 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. These rules were approved and followed in Voshell v. Hynson, 26 Maryland, 83. See also The State v. The Northern Central R. B. Co., 18 Id. 193 ; llaight v. Burr, 19 Id. 134 ; Furlong v. Edwards, 3 Id. 99 ; Thompson v. Diffcndtrfer, 1 Maryl. Ch. Decis. 489 ; Tom- linson v. Ward, 2 Connecticut, 391; The Orphan Asylum v. McCartee, Hopkins, 429; Mays v. Rose, 1 Freeman (Chan.), 703; Vance v. Woods, 46 Miss. 120; Coddington v. Tappan, 11 C. E. Green, 141 ; Ladd v. Harvey, 1 Foster, 514 ; Maynard v. Raily, 2 Nevada, 313; Jones v. Dougherty, 10 Georgia, 281 ; Crawford v. Ross, 39 Georgia, 44; Crane v. McCoy, 1 Bond, 422. OF RECEIVER. 11 receiver, accordingly, may, on a proper case being made out, be appointed to raise the arrears of an anuity,(e£) or a rent-charge ;{e) so, also, an equitable mortgagee may have a receiver appointed if the payment of in- terest on his security be in arrear ;(/) so, also, if a person takes the conveyance of a legal estate, subject to equitable interests, he must satisfy these equitable interests, or submit to the appointment of a receiver.^/) Conduct of the Party who makes the Application looked to.— The court, on the application for a receiver, always looks to the conduct of the party who makes the ap- plication, and will refuse to interfere unless his con- duct has been free from blame.(/i) Parties who have acquiesced in property being enjoyed against their own alleged rights cannot come to the court for a receiver.(z) 1 Pleading, Parties,'&c.— The record should be in such a state as will enable the judge to determine who is to take out of court the fund which the appointment of the receiver shall have brought into court.(&) But if {d) See Cupit v. Jackson, 13 L. J. Ch. 169. Comp. Wood v. Pri. 734. [Sollory v. Leaver, L. Hitchings, 2 Beav. 297. &. 9 Eq. 22. J (i) Norway v. Rowe, 19 Ves. (e) White v. Smale, 22 Beav. 144; Gray v. Chaplin, 2 Russ. 73; infra, p. 44. 147 ; Skinners' Society v. Irish (/) Infra, Chap. II. Sect, 4. Society, 1 M. & C. 162. (g) Pritchard v. Fleetivood, 1 (k) Gray v. Chaplin, 2 Russ. Mer. 54. 147. (h) See Baxter v. West, 28 1 Tibials v. Sargeant, 1 AlcCart. 449. 12 APPOINTMENT the court sees that there is a case upon the record for the appointment of a receiver, it is no sufficient an- swer that the record is not perfect as to particulars, and is not in the shape in which the court may find it necessary that it should be placed in order to admin- ister complete justice. If the objection is a formal one, and such as may be removed by amendment, it will not stay its hand on account of any such objec- tions. Objections to the bill on the ground of mis- joinder, multifariousness, or want of parties, are no answer on the application for a receiver, if a case for the appointment of a receiver be shown. (I) If the subject of the suit in respect of which a re- ceiver is sought is a matter of public interest, the At- torney-General should be made a party. (m) When the original bill had been answered, it was held that the pendency of a plea to the amended bill did not prevent a motion for a receiver.(?z) If certain statements in the bill and affidavits are relevant to the relief asked, the court will not on mo- tion allow exceptions to be taken to them.(o) Where, for instance, on bill for a receiver alleging that the executor was of bad character and drunken habits, the court would not, on the motion for a receiver, allow exceptions for scandal and impertinence.^) (/) Evans v. Coventry, 5 D. M. (n) Thompson v. Selhy, 12 Sim. & G. 918 ; Steele v. Cobham, L. 100. R. 1 Ch. App. 325 ; see Major v. (o) Everett v. Prythergh, 12 Major, 8 Jur. 799. Sim. 365. (m) Gray v. Chaplin, 2 Ituss, (p) Ibid. 147 ; Skinners' Society v. Irish Society, 1 M. & C. 162. OF RECEIVER. 13 If a reeeiver is asked for generally, the court may grant the prayer as far as is proper, or in a limited form.(<7) Receiver Appointed pending Litigation in a foreign Court— The court has jurisdiction to appoint a re- ceiver pending litigation in a foreign court.(r) 1 Order for Receiver operates as an Injunction.— The appointment of a receiver operates as an injunction. An order for an injunction is always more or less in- cluded in an order for a receiver. 2 It is not necessary, if a receiver he appointed, to go on and grant an in- junction in terms ; but in cases where persons in a fiduciary character have misconducted themselves, the court will often grant an injunction as wellas a re- ceiver, not because an injunction is necessary to pre- vent a party from receiving, when a receiver is once appointed, but for the purpose of marking its sense of the conduct of the parties who have misconducted themselves.(s) (q) Major v. Major, 8 Jur. (s) Evans v. Coventry, 3 Drew. 799. 82. (?•) Transatlantic Co. v. Pie- troni, John. 607. 1 The court will not appoint a receiver over property which is already in the custody of a proper tribunal. See Alabama Sf Chat- tanooga R. R. Co. v. Jones, 7 Nat. Bank. R. 145-169 ; Blake v. The Alabama §• Chattanooga R. R. Co., 7 Id. 331-335 ; The Mil- waukee & St. Paul's R. R. Co. v. Tlie Mihvaukee& 3Iinnesota R. R. Co., 20 Wisconsin, 165. 2 See, however, Boyd v. Murray, 3 Johns. C. R. 48. 14 APPOINTMENT Receiver not Appointed if Defendant submits to a cer- tain Order.— The court may abstain from appointing a receiver on the submission of the defendant to submit to a certain order,(0 to pay the moneys into court,(w) or to deal with the moneys as the court shall direct.^) "What the Order for a Receiver Directs.— The order ap- pointing a receiver should state distinctly on the face of it over what property the receiver is appointed,(y) or else refer to the pleadings or some document in the cause which describes the property.(^) It usually directs the receiver to pass his accounts from time to time, and to pay the balances found due from him into court to the credit of the cause, to be there invested and accumulated, or otherwise, as may be directed. (a) If the appointment of a receiver is over real or lease- hold estate, the order usually directs the parties to the record who are in possession, not as tenants but as owners, to deliver up to him the poSSession.(6) If tenants are in possession of real or leasehold estates over which a receiver is appointed, the order should direct them to attorn, and pay their rents in (t) Pritchard v. Fleetwood, 1 (z) Set. on Deer. 1005. Mer. 54. (a) Set. on Deer. 1002 ; Dan. (u) Prebble v. Boghurst, 1 Oh. Pr. 1573. Sw. 313 ; Curling v. Lord Town- (b) Griffith v. Griffith, 2 Ves. shend, 19 Ves. 633; Palmer v. 401; Everett v.Belding, 22 L.J. Vaughan, 3 Sw. 173. Ch. 75, 1 W. R. 44; see as to (x) Talbolt v. Hope Scott, 4 K. form of order, Davis v. Duke of & J. 141. Marlborough, 2 Sw. 108, 116 ; (y) Crow v. Wood, 13 Beav. Baylies v. Baylies, 1 Coll. 548; 271. Set. on Deer. 1023. OF RECEIVER. 15 arrear and the growing rents to the receiver,(c) but this direction should be omitted when the estates are out of England.^ If the property over which a receiver is appointed is outstanding personal estate, the order should direct the parties in possession of such estate to deliver over to the receiver all such estate, and also all securities in their hands for such estate or property, together with all books and papers relating thereto.(e) 1 Costs of Motion.— The court may, at its discretion, deal with the costs of the motion for a receiver at the time of the application^/) or the costs of the applica- tion may be ordered to be costs in the cause.Q/) The costs of the motion for a receiver are sometimes reserved until the hearing,(A) even although the appli- cation is refused. (i) (c) Set. on Deer. 1002, 1012 4 Jur. 858; Skinners' Society v. et seq. ; see, as to form of order, Irish Society, 1 M. & C. 169: ib. Fall v. Elkins, 9 W. R. 861. (rf) Ib. 1007, 1039. (g) Topping v. Searson, 6 L. T. (e) Set. on Deer. 1002, 1030, N. S. 450; Fall v. Elkins, 9 1031. If necessary, a receiver W. R. 861 ; Bowker v. Henry, 6 will be ordered to keep separate L. T. N. S. 43 ; see Morg. & Dav. accounts of real and personal on Costs, 31, 32. . estates. Hill v. Htbbitt, 18 L. T. (h) Chaplin v. Young, 6 L. T. N. S. 553. N. S. 97. (/) Goodman v. Whitcomb, 1 (i) Baxter v. West, 28 L.J. J. & W. 593 ; Wilson v. Wilson, Ch. 169 ; Coope v. Creswell, 21 2 Keen, 249 ; Wood v. Hitchings, W. R. 299. 1 For forms of orders appointing receivers, see Appendix. CHAPTER II. IN WHAT CASES A RECEIVER WILL BE APPOINTED. SECTION I. — IN THE CASE OF INFANTS. The court will, upon a proper case being made out, protect the estate of an infant by appointing a re- ceiver.^) 1 ^Vhere infants are concerned, the court considers chiefly what would be most beneficial to their interests.(i) The court will protect the estate of an infant, even against his father.(V) If an infant has or becomes possessed of an estate, a receiver will be appointed if it appear that his father is insolvent or («) Butler v. Freeman, Arab. 1 X. R. 389; see Whitelaw v. 303. Sandys. 12 Ir. Eq. 393. (b) Eamsden v. Fatrthorpe, (c) Butler v. Freeman, Amb. 303. ' Iu Rice v. Tonnele. 4 Sandf. C. R. §68, the validity of a will was being contested, and an active litigation thereon was pending. An infant to whom an annuity had been bequeathed by the testator, and who. in the event of the will being set aside, was entitled, as heir, to one-fourth of the estate, filed a bill praying that maintenance might be furnished to her out of the estate, and asking that a receiver should be appointed to that end. It also appeared that, owing to her pecuniary condition, maintenance was necessary. It was held that the bill was properly filed, and that maintenance ought to be allowed to the infant, to an amount not exceeding the annuity; and that, if necessary to carry out the decree, a receiver ought to be appointed. INFANTS. 17 of bad character, or that there is clanger of the rents being lost.(Y/) In a case where the mother of infants was dead, and the father was a man of irregular habits who had married his servant, the minors being entitled to real estate in right of their mother, a receiver was appointed.(e) If there be no testamentary guardian appointed by the testator,(/) or if the testamentary guardian ap- pointed by the will declines to act,(#) a receiver will be appointed on a proper case being made out. The appointment, however, of a testamentary guardian of an infant by his father does not, under stat. 12 Car. 2, c. 24, constitute any objection to the appointment of a receiver of the estate of the infant. The exercise by the father of an infant of the power given by the act to appoint a testamentary guardian, to whom the statute gives the custody of the profits of the infant's lands, and the management of his personal estate, does not affect the right of the court to appoint a receiver, the guardian having no estate, and the extent of his powers being uncertain. (A) Guardians appointed by will under the statute, have no more power than guardians in socage, and are but trustees. If it be made to appear that the estate of an infant is likely to suffer by the conduct of his guardian, the court will interpose and appoint a receiver, upon the same (a 7 ) Kiffin v. Kiffin, cited 1 (/) Hicks v. Hicks, 3 Atk. P.W.704; Ex parte Mountfort, 273. 15 Yes. 449 n. (g) Bridges v. Hales, Mose> (e) Re Cormicks, 2 Ir. Eq. 111. 264. (/ t ) Gardner v. Blane, 1 Ha. 2 381. 18 EXECUTORS principles upon which it interposes in the case of trustees and executors.(z') In a case, accordingly, where the mother of infant children, who had been appointed by her husband executrix and guardian of the children, married a man in necessitous circum- stances, a receiver was appointed.(Z;) SECTION II. — IN THE CASE OF EXECUTORS AND TRUSTEES. Receiver not Appointed on Slight Grounds.— The court will, upon a proper case being made out, dispossess an executor or trustee of the trust estate by appointing a receiver, but it will not do so upon slight grounds. 1 It is for the testator or creator of the trust, and not for the court, to say in whom the trust for the administra- tion of the property shall be reposed. Though a suit be instituted by a party having an interest in the estate, it does not follow that the trust created by the testator or settlor is to be set aside.(7) A strong case must be made out to induce the court to dispossess a trustee or executor who is willing to act.(?n) 2 If there (*) Duke of Beaufort v. Ber- (I) Middleton v. Dodswell, 13 ty, 1 P. W. 704; infra, p. 20; Yes. 268; Smith v. Smith, 2 Y. see, as to order for receiver and & 0. 361; Whitworthv. Whyd- injunction, Brooke v. Cooke, Set. don, 2 Mac. & G. 52. on Deer. 919. (m) Smith v. Smith, 2 Y. & (k) Dillon v. Lord Mount- C. 361; see Bainbndgev. Blair, cashell, 4 Bro. P. C. 306. 4 L. J. Ch. N. S. 207. 1 See the remarks of Baldwin, J., in Beverley v. Brooke, 4 Grattan, 208 ; also LeddeVs Executor v. Starr, 4 C. E. Green, 163; Harrup v. Winslet, 27 Ga. 65.") ; and Delaney v. Tipton, 3 Hapv. 11. 2 Humes v. Carpenter, 1 Woods (Cir. Ct. R.), 265-6; affirmed on appeal, 1 Otto, 254. AND TRUSTEES. 19 is no danger to property, and no fact is in evidence to show the necessity of interfering by appointing a receiver, the court will not appoint one.(n) 1 The court will not, at the instance of one of several parties interested in an estate, displace a competent trustee, or take the possession from him, unless he has wilfully or ignorantly permitted the property to be placed in a state of insecurity, which due care or conduct would have prevented. It is not enough that the estate may have depreciated in value, and that the incumbrances thereon may have been increasing, if the management of the trustee does not appear to have been improper.(o) It is no sufficient cause for the appointment of a re- ceiver that one of several trustees has disclaimed ;(p) for the disclaimer of one of several trustees does not in law affect the estate of the others, but has the effect of vesting it in them exclusively ;(q) and the testator or creator of the trust must be presumed to know what the legal consequences of the death or disclaimer of some of them must be. "Where, accordingly, there are several trustees, the disclaimer of some of them is not alone a sufficient ground for the appointment of a re- ceiver without the consent of those who remain.(r) (n) Whitworth v. Whyddon, 434 ; but see Tait v. Jenkins, 1 2 Mac. & G. 52. Y. & C. C. C. 492. (o) Barkley v. Lord Reay, 2 (q) Small v. Marwood, 9 B. & Ha. 308 ; see Smith v. Smith, 2 C. 300 ; Townson v. Tickell, 3 B. Y. & C. 353. Comp. Bainbridge & Aid. 31. v. Blair, 4 L. J. Ch. N. S. 207. (r) Browell v. Reed, 1 Ha. (p) Browell v. Reed, 1 Ha. 434. 1 See SchlechVs Appeal, 60 Penna. St. E. 172 ; Burt v. Burt, 41 New York, 46. 20 EXECUTORS Nor is it a sufficient cause for the appointment of a receiver that the trustees or executors are poor or in mean circumstances,^) 1 or that, being trustees for sale, they have let the purchaser into possession before they received the purchase-moneys, for the court will not necessarily infer this to be misconcluct.(^) Nor is it a sufficient cause for the appointment of a receiver that one of several trustees is inactive,^) or has gone abroad. (a:) Misconduct, &c, a Ground for a Receiver.— If any mis- conduct, waste, or improper disposition of the assets can be shown,(y) 2 or if it appear that the trust pro- perty has been improperly managed, or is in danger of being lost,(z) there is a case for a receiver. If it can (s) Anon., 12 Yes. 4; Howard (x) lb., per Wigram, Y. C. v. Papera, 1 Madd. 142 ; see (y) Anon., 12 Yes. 4, per Sir Hathornthwaite v. Russell, 2 W. Grant ; see Oldfield v. Cob- Atk. 126. belt, 4 L. J. Ch. N. S. 272. (£) Browell v. Reed, 1 Ha. (z) Middleton v. Dodswell, 13 434. Yes. 266. (u) Broivell v. Reed, 1 Ha. 434. 1 See Stairley v. Rabe, McMul. Eq. 22, for an exceptional case in which a receiver was appointed. 2 AY here an executor who has had the actual management of the estate has wasted or misappropriated the fund in his hands, and claims that he can permit a co-executor, who is insolvent, to take funds of the estate without being responsible, and has once permitted this, and such co-executor has appropriated the funds so taken to his own use, a receiver will be appointed; Price's Ex'r v. Price's Ex'r, 8 C. E. Green, 428. See also State of Illinois v. Delafield, 8 Paige, C. R. 527 ; Jenkins v. Jenkins, 1 Paige, 0. II. 243 ; Janeway v. Green, 16 Abb. Pr. R. 215 (note); Sedgwick v. Place, 3 Bank. Reg. 35; Calhoun v. King, 5 Alab. 525; Mandel v. Peay, 20 Ar- kansas, 325 ; Chappell v. Akin, 3D Georgia, 177. AND TRUSTEES. 21 be satisfactorily established that parties in a fiduciary position have been guilty of a breach of duty, there is a sufficient foundation for the appointment of a re- ceiver.^) 1 Where a portion of a trust fund has been lost, that loss is primd facie evidence of a breach of duty on the part of the trustees, sufficient to authorize the inter- ference of the court by the appointment of a receiver.(6) So also it was held to be a good ground for the appoint- ment of a receiver that an executor or trustee had omitted to raise a certain sum, as he should according to the will of his testator have done, for the mainte- nance and education of infant legatees.(c) "To au- thorize the court," said Alderson, B.,(d) "to appoint a receiver, it is enough to say that the executor has not done what he could to get in the personal estate of the testator ; that he has left a considerable portion of it outstanding on improper securities ; and that he has not raised a certain sum, as according to the testator's will he should have done, in order that the parties might know what they had to look to. "(e) So also a {a) Evans v. Coventry, 5 D. Brooker v. Brooker, 3 Sm. & G. M. & G. 918; see Havers v. 475. Havers, Barn. Ch. 23 ; Att.-Gen. (6) Evans v. Coventry, 5 D. M. v. Bowyer, 3 Ves. 714; Baylies & G. 918. v. Baylies, 1 Col. 537 ; Re Cor- (c) Richards v. Perkins, 3 Y. micks, 2 Ir. Eq. 264 ; Brenan v. & 0. 307. Preston, 2 D. M. & G. 839 ; Bain- (d) lb. brigge v. Blair, 3 Beav. 421 ; (e) See Hart v. Tulk, 6 Ha. Bowman v. Bell, 14 L. J. Ch. 119; 611. Re Bywater, 1 Jur. N. S. 227 ; 1 See Walker v. Morris, 14 Georgia, 323. That the trustee mixes trust funds with his own, is not a sufficient ground for the appoint- ment of a receiver. Orphan Asylum v. McCartee, Hopkins, 429. 22 EXECUTORS receiver will be appointed if it appear that the trus- tees have an undue leaning or bias towards one of the contending parties.(/) So also where, in consequence of disputes among the trustees, the payment of rents has been permitted to fall into arrear, on bill filed by the party entitled to the rents and profits for her life, a receiver was appointed.^) " A receiver," said Lord Langdale,(A) " must be appointed in order to secure to her the recovery of the arrears of rents and the punc- tual payment of the accruing rents." 1 In Sheppard v. Oxenford,{i) where a man who had accepted and held moneys for certain parties upon cer- tain trusts, afterwards denied the legality of the trust on which he held the moneys, the court appointed a receiver. Bankruptcy, &c, of a Trustee, when a Ground for a Re- ceiver.— If a sole executor or trustee becomes bankrupt, there is a case for the appointment of a receiver.^') But if a testator has selected an insolvent debtor as his executor, with full knowledge of his insolvency, the court will not on the bare fact of the insolvency alone (/) Earl Talbot v. Hope Scott, (j) Steele v. Cobham, L. R. 1 1 K. & J. 139; see Malcolm v. Cli. App. 325; see Havers v. Montgomery, 1 Hog. 93. Havers, Barnard, Ch. 23; Mid- (g) Wilson v. Wilson, 2 Keen, dleton v. Dodswell, 13 Ves. 268 249. Utterson v. Mair, 2 Yes. Jr. 95 (/.) lb. 252. Scott v. Becker, 4 Pri. 34G (*) 1 K. & J. 492. Hughes v. Wheeler, 11 Beav. 178. 1 A receiver may be appointed for the purpose of collecting a debt due to the trust estate when the trustee refuses to institute the suit. See remarks of Lord Justice James in Sharp v. San Paulo Railway Co., L. 11. 8, Ch. App. 009, CIO: AND TRUSTEES. 23 interfere, by appointing a receiver.(&) The practice, however, of not appointing a receiver where a testator ha3 selected as his executor an insolvent debtor, with knowledge of his insolvency, has not gone so far as to permit a person, against whom there is evidence of in- solvency, to prevail against creditors claiming to have the property secured for their benefit, when it is not more than sufficient to pay them.(^) 1 Nor is it to be inferred, from the circumstances of the will having been made some time before the insolvency, and not altered afterwards, that the testator had a deliberate intention to intrust the management of his estate to an insolvent executor.(?n) In Smith v. Smith,{n) the fact that the party who had obtained administration of the testator's real and personal estate was an uncer- tificated bankrupt, and was not appointed to his office bv the testator, but had taken out administration to (k) Gladdon v. Stoneman, 1 (m) Langley v. Haivke, 5 Mackl.l43n. \Langley v. Hawke, Madd. 46 ; Oldfield v. Cobbett, 5 Madd. 46 ; Stainton v. Carron 4 L. J. Ch. N. S. 271. Co., 18 Beav. 146, 161. (n) 2 Y. & C. 361. (I) Oldfield v. Cobbett, 4 L. J. Ch. N. S. 272. 1 When a debtor in failing circumstances makes an assignment for the benefit of his creditors to a person who is insolvent, a receiver will be appointed. Haggerty v.Pittman, 1 Paige, C. E. 298. See also Jenkins v. Jenkins, 1 Paige, 0. R. 243 ; Keyes v. Brush, 2 Id. 311 ; Ex parte Walker, 25 Alab. 81 ; Dougherty v. McDougald, 10 Georgia, 121. In this last case a receiver was refused, but subse- quently (in the same estate), upon a bill filed by a creditor against the trustee for the benefit of creditors, wherein gross mismanagement of, and imminent danger to, the property was shown, a receiver was appointed. Jones v. Dougherty, 10 Georgia, 274. 24 EXECUTOKS the widow of the testator, was held not a sufficient reason to induce the court to appoint a receiver before answer, where several of the parties interested declined to join in the application. Poverty, &c., of Trustee, when a Ground for a Receiver. — Although it is not a sufficient cause for the appoint- ment of a receiver that an executor or trustee is poor or in mean circumstances,(o) the case is different if an executor or administrator he proved to be of bad char- acter, drunken habits, and great poverty.(p) 1 So also where the executrix and guardian of infant children married a man in necessitous circumstances, a receiver was appointed.(^) So also a receiver was appointed in a case where a wife was an executrix, and the husband, besides being in indifferent circumstances, was out of the jurisdiction, because, in a case where the husband is out of the jurisdiction, there is no- remedy, if the wife waste the assets ;(r) but if a woman who has been deserted by her husband has obtained an order for the (o) Supra, p. 20. (q) Dillon v. Lord Mount- (p) Everett v. Prijthergh, 12 cashell, 4 Bro. P. C. 30G. Sim. 3G8; see King v. Abbotson, (r) Taylor v. Allen, 2 Atk. 7 L. J. Exch. N. S. 6. 213 ; see Pemberton v. McGill, 3 W. R. 557. 1 Fairbaim v. Fisher, 4 Jones (Eq.), 390. But in Poythress v. Poythress, 16 Georgia, 40G, where a bill was filed to remove a testa- mentary trustee, the court held that mere bad habits and capricious conduct on the part of the trustee towards the cestui que trust were not sufficient to justify the appointment of a receiver, although they mighl be grounds ultimately for his removal from the trust. See also Ogden v. Kip, G Johns. C. I!. 160. Great age is not a ground for removal, llosaek v. lingers, G 1'aige, 0. 11. 431. AND TRUSTEES. 25 protection of her property under the 21st section of the Divorce and Matrimonial Causes Act, 20 & 21 Vict. c. 85, the court will not interfere.(s) In a case where a married woman, whose husband was of unsound mind, was appointed executrix along with another person as her co-executor, and it appeared that the co-executor, who had taken out probate, could not sell the estate or collect the assets, a receiver was appointed, (t) Sole Executor Abroad.— Although it is not a sufficient ground for the appointment of a receiver that one of several trustees may have gone abroad, (u) the case is otherwise if a sole executor resides abroad(v) or be abroad, and the beneficiaries under the will are unable to obtain an account from the person left in control of the property during the executor's absence.(re) 1 Receiver Appointed on Consent of Parties.— If all the cestuis qui trustent, or parties beneficially interested in an estate, concur in the application for a receiver, and the trustee consents, the court will make the orderly) (s) Bathe v. Bank of Eng- C. C. 210; see Noad v. Back- land, 4 K. & J. 564; see Re house, 2 Y. & C. C. C. 529. Rainsdon, 4 Drew. 447 ; Post- (x) Dickins v. Harris, 14 L. gate v. Barnes, 9 Jur. N. S. 456. T. N. S. 98 ; sea Faith v. Dun- (t) Yetts v. Palmer, 9 Jur. N. bar, Coop. 200. S. 954. (y) Brodie v. Barry, 3 Mer. (u) Supra, p. 20. 696 ; see Bartley v. Bartley, 9 (v) Westby v. Westby, 2 Coo. Jur. 224. 1 See Ex parte Galluchat, 1 Hill, C. K. 150; and Edmonds v. Crenshaw, 1 McCord, C. R. 252. 26 EXECUTORS So also in a case where it appeared that one trustee had disclaimed, and that all the other parties desired it, and the other trustee cousented, the court ordered that there should be a receiver.(z) So also in a case where there were two executors and trustees, and one had died and the survivor refused to act, the persons beneficially interested were held entitled to the pro- tection of the court by the appointment of a receiver.(a) The fact that the trustee who had died may have ad- vanced moneys out of his own pocket to an annuitant under the will, in the expectation of repayment out of assets, was not considered a sufficient ground for his representatives to resist the appointment of a receiver, in the event of the, assets proving deficient.(6) Other Cases in which a Receiver will be Appointed — In a case where two out of three trustees chose to act separately, and took securities in their own name, omitting that of the dissentient trustee, a cestui que trust was held entitled to a receiver ;(c) and the court will grant a receiver at the instance of the cestui que trust, where the single trustee, or all the trustees, are out of the jurisdiction.^) A receiver will necessarily be appointed where the co-trustees cannot act through disagreement among themselves.(e) (z) Beaumont v. Beaumont, [d] Noad v. Bad-house, 2 Y. cited, 3 Mer. GOG. & C. C. C. 529 ; Smith v. Smith, (a) Palmer v. Wright, 10 10 Ha. App. 71. Beav. 237. (e) Bagot v. Bagot, 10 L. J. (b) lb. Ch. N. S. 116; Day v. Croft, (c) Sivalc v. Swale, 22 Beav. Lewin on Trustees, 731. 584. AND TRUSTEES. 27 In Tidd v. Lister(f) there had been four trustees, one of whom was dead and another was abroad, and the third had scarcely interfered in the trust; the business of the trust fell almost exclusively on one trustee, and upon the consent of the acting trustee, Sir J. Leach considered he was justified in appointing a receiver.(^) So also a receiver was granted on the misconduct of one trustee, the other executors consent- ing to the order.(A) Implied Trusts.— In the case of misconduct by trustees, the court will appoint a receiver, as well where the trust arises by implication as where it is expressed. 1 If, for example, a tenant for life of leaseholds is bound to renew, he is in such case clothed with the character of a trustee ; and if by his threats or acts he manifests an intention to suffer the lease to expire, the court will appoint a receiver in order to provide a fund for renewal.(i) A similar order for the appointment of a receiver of the rents and profits of an estate, for the purpose of accumulating a fund, was made where the tenant for life had fraudulently obtained a sum of stock to which the trustees of the settlement were entitled, (k) In a case where a testator had bequeathed the (/) 5 Madd. 433. (*') See Bennett v. Colley, 2 M. (g) 1 Ha. 434, per Wigram. & K. 233. (h) Middletonv. Dodswell, 13 (it) Woodyatt v. Gresley, 8 Ves. 268. Sim. 180. 1 Gunn v. Blair, 9 Wisconsin, 352. 28 PENDING LITIGATION residue of his real and personal estate to his widow, stating in his will that he had done so "in perfect confidence that she will act up to those wishes which I have communicated to her in the ultimate disposal of my property after my decease," the court, being satisfied on the evidence that the bequest had been made on the faith of a promise made by her that she would dispose of her property in favor of the plaintiffs, the natural children of the testator, and that an implied trust was accordingly raised in their favor, granted a receiver of the real and personal estates, on the death of the widow, against the heir at law of the real estates and the second husband of the widow.(7) Receiver Pending Proceedings Abroad.— If one of the next of kin of a foreigner were to obtain administra- tion here, pending proceedings abroad to ascertain who the next of kin are, a bill for a receiver will lie at the suit -of a party claiming as next of km.(wi) SECTION III. — PENDING LITIGATION AS TO PROBATE. During a litigation in the Ecclesiastical Court for probate or administration, the Court of Chancery would entertain a bill for the mere preservation of the property of the deceased till the litigation was deter- mined, and appoint a receiver, although the Ecclesi- astical Court, by granting an administrator, might (Z) Podmore v. Gunning, 7 (m) Transatlantic Co. y. Pie- Sim. 644. troni, John. 604. AS TO PROBATE. 29 have provided for the collection of the effects pendente lite.(ny It was, indeed, a matter of course, where no (n) King v. King, 6 Ves. 172 ; pending a contest in that court. Atkinson v. Henshaw, 2 Y. &B. "When, however, it was decided 85 ; Ball v. Oliver, lb. 96 ; Wat- in Walker v. TToZ/asifoM, 2 P. W. jfciws v. Brent, 1 M. & C. 102 576, that the Ecclesiastical Court (overruling' the distinction taken had that power, the Court of by Lord Erskine in Richards Chancery followed the course v. Chave, 12 Yes. 465) ; Wood v. usually adopted by it, and did Hitchings, 2 Beav. 289, on ap- not on that account abandon its peal 4 Jur. 858. The jurisdic- jurisdiction, but continued to ap- tion was originally assumed by point a receiver in aid of the the Court of Chancery, under Ecclesiastical Court for the pro- the impression that the Eccle- tection of the personal property of siastical Court had no power to the deceased. Jonesv. Goodrich, name an administrator to collect 4 Jur. 98, per Lord Cottenham. the property of a deceased person 1 In Rachel Colvin's Case, 3 Maryl. Chan. Dec. 279, a lunatic died, leaving a will which she had made when compos mentis. The duties of her committee terminated on her death. An administration pendente lite was granted by the Orphans' Court, the probate of the will having been disputed. Previous to the grant of letterspe><\ Barbour, 207 ; McMil- lan v. Richards, 9 Cal. 365 ; Mack v. Wetzlar, 39 Id. 254. It has AND MORTGAGEE. 39 the court to depart from the general rule that the tenants may be numerous, and that there may be dif- consequently been held in some cases that the complainant in a foreclosure suit, or in analogous statutory proceedings, although a first mortgagee, will, under certain circumstances, be entitled to a receiver. See Hyman v. Kelly, 1 Nevada, 183, where the doctrine upon this subject is well considered. In New York it is said that " the rule in these cases, when the mortgagee has not taken care to keep down the accruing interest by securing a lieu on the rents and profits, is to interfere with the mortgagor's possession prior to a decree of foreclosure, and appoint a receiver of the rents and profits, when the premises are an inadequate security for the debt secured by the mortgage, and the mortgagor or other person in possession who is personally liable for the debt is not of sufficient ability to an- swer for the deficiency." Warner v. Gouverneur's Ex'rs, 1 Bar- bour, 36. See also Bank of Ogdensburgh v. Arnold, 5 Paige, C. R. 38-42 ; Shotwell v. Smith, 3 Edw. C. R. 588 ; Sea Insurance Com- pany v. Stehhins, 8 Paige, 0. R. 565 ; Astor v. Turner, 11 Id. 436 ; Frelingliuysen v. Colden, 4 Id. 204; Syracuse Bank v. Tollman, 31 Barb. 201. But such au appointment is made with caution, and only when it appears that there is a clear inadequacy of security. Shohvell v. Smith, 3 Edw. C. R. 588 ; Pullan v. Cincinnati and Chicago R. R., 4 Biss. 35, 49, 50. And when the mortgaged pro- perty can be sold in parcels, and oue parcel is sufficient to satisfy the mortgage debt, a receiver will not be appointed over the whole. Quincy v. Cheeseman, 4 Sand. C. R. 405. In Iowa the appointment of a receiver at the instance of a mortgagee as against a mortgagor in possession is looked upon as an appointment against the legal title, and is therefore to be governed by the same rules as are estab- lished in England in regard to the appointment of a receiver upon the application of a second mortgagee when a prior mortgagee is in possession. Callanan v. Shaiv, 19 Iowa, 183. Infra, p. 44 See also Henshaw v. Wells, 9 Humph. 567. In Mississippi the question was elaborately argued and carefully considered in the recent case of Myers v. Estell, 48 Miss. 372. The court said : " Upon what principle may a receiver be appointed in a foreclosure suit ? Unless there be a stipulation in the contract that the mortgagee shall have the rents, he has no claim merely on the ground that the debt is due and the title has become absolute. He may enter after default made, or he may recover possession at law, and out of the rents and profits satisfy the debt ; that is one of 40 BETWEEN MORTGAGOR Acuity in collecting the rents ;(a) or that the exercise of the legal right may be obstructed by difficulties.^) (a) Sturch v. Young, 5 Beav. L. 680; see Brady v. Fitzgerald, 557. 12 Ir. Eq. 278. (b) Crenien v. Hughes, 2 J. & his remedies, more commonly employed in Great Britain than in this country. But if he proceeds to foreclose he elects to raise the money by a sale of the property The mortgagee or trust creditor, if he has no lien upon the rents, must rest his claim to them on the ground that the property is insufficient to pay the debt, and that without the redress he will lose the residue of it ; or he must go upon the predicate that it is necessary to interfere with the mort- gagor's possession in order to prevent the removal of the property beyond the reach of the court, or to save it from wasture and dete- rioration. In these latter circumstances, the debtor perpetrates a positive wrong, which either endangers altogether a realization of the fruits of the suit, or diminishes the value of the security. The elec- tion of the chancery forum is to prefer to convert the property into money and pay the debt, rather than the legal remedy to get pay- ment out of the rents and profits. In this case the application is to be maintained, if at all, upon the allegation of the insufficiency of the property to pay the debt. If the only means or source of pay- ment was out of the property, the creditor could present a very urgent reason why the property should be made to produce the utmost farthing pending the litigation. But suppose the debtor is abundantly able to pay the deficit, upon sale of the mortgaged pre- mises, and there is, therefore, no apparent danger that the creditor will lose any part of his debt, must a receiver be appointed ? The bill does not in terms allege that Myers is personally insolvent, or that he is unable to pay an expected deficiency on foreclosure sale." The court then reviewed some of the English and American authorities and went on to say : " Regarding the mortgage as more especially a security for the debt, we think the better rule to be that which will grant the receiver or not as it may or may not be an essential means to pay the debt. There can be no necessity for this auxiliary remedy if the mortgagee is solvent and able to pay any deficiency. In such cases the creditor ought to be left to his legal remedy to get at the rents." The court then proceeded to discuss the difference between an ordinary mortgage and the case of a AND MORTGAGEE. 41 Upon the same principle the court would not grant a receiver to an equitable incumbrancer, whose security security in the form of a deed of trust, and called attention to the fact that in the case under consideration the trustee had simply the power to sell and no power to enter and take the rents as could be done by a first mortgagee; and, reaching the conclusion that in the case of a trust deed the appointment of a receiver must depend very much upon the circumstances of the case, said : " In view of the fact that the property is a precarious security for the debt, and the further fact that the obligations of tenants for rent amounting to several thousand dollars, have been assigned to a non-resident, in part to create a fund subject to Myers' control out of the State ; of the fact that he has conveyed one-third of the plantation in trust for his children ; that he has combined with the trustee and deprived the complainant of the enforcement of the trust security according to its tenor and, notwithstanding the forbearance of the creditor for four years, has made no payment on the debt, ought he to be suffered to reap the advantages which he has thus obtained ? We think not. In no other mode productive of such little injury to either party, can this be done, as entrusting the property to a receiver, whose control over it will not be adverse or hostile to either, but who will hold it and its income so as to answer the ends of justice when the final decree shall be rendered. If, as stated in the answer, the sale was advertised to have been made in Washington County instead of Bolivar, or if the suit had been brought prematurely, it would have been the duty of the trustee to have called in the advertisement and to have dismissed the suit, so that there might have been a recti- fication of the mistakes and errors. But he abandoned the trust altogether. The non-payment of taxes or suffering the title to be embarrassed by a tax sale ( Wall Street Ins. Co. v. Loud, 20 How. Pr. 96) or the unfairness of the covenant of the mortgagor, will justify the appointment of a receiver. Finch's Adm'r v. Houghton, 19 Wis. 158 ; Callanan v. Shaiv, 19 Iowa, 183. We think that the combined influence of the circumstances in this case authorized the chancellor to appoint a receiver." See, also, Whitehead v. Wrothen, 43 Miss. 523. The rule, therefore, in Mississippi seems to be that while in the case of an ordinary mortgage a receiver will not be appointed unless the mortgaged premises are inadequate to secure the debt and the mortgagor is insolvent, yet that such an appointment will be made where the security has assumed the shape of a deed of trust which does not give the trustee the power of enter- 42 BETWEEN MORTGAGOR was vested in a trustee with powers of distress and entry.(c) (c) Buxton v. Monkhouse, Sollory v. Leaver, L. R. 9 Eq. Coop. 41 ; comp. White v. Smale, 22.] 22 Beav. 73 ; infra, p. 44. [See ing and taking the rents, and where the special circumstances of the case are such as to call for the interposition of the court. In New Jersey, however, an opposite doctrine is held. The courts do not follow the New York rule, that the insolvency of the mort- gagor and the inadequacy of the security will justify the appoint- ment of a receiver. Gortleyeu v. Hathaway, 3 Stockton, 39. " The rule so broadly laid down," says the chancellor, " is not sustained by precedents, and is not free from objections. No distinction is drawn between a first and subsequent mortgagee. Their rights are entirely different. The first mortgagee has a legal right to the rents and profits, but a court of equity has been reluctant to appoint a receiver upon his application, for the reason that he has a remedy at law by ejectment, by which he may get into the receipt of the rents and profits." And again : " The rule as laid down by the New York cases has never been adopted by the Court of Chancery in this State. It has not been the practice in this court to appoint a receiver in a mortgage case simply on the ground of inadequacy of the mortgaged premises to pay the debt, and the mortgagor's being insolvent. This court has gone upon the ground, that, where a man takes a mortgage security for his debt, and permits the morgagor to remain in possession, if there is a default in payment, the mortgagee must appropriate the property in the usual way to the payment of his 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 disadvantages of a second incumbrance. The application for receivers in mortgage cases has been very unusual in this court. There is no reported case. There was an application to Chancellor Pennington, and it was successful ; but the circumstances of the case I have not been able to ascertain. Subse- quently Chancellor Halstead, in the case of Best v. Shcrmier, 2 Hals. C. R. 154, refused the application on behalf of the mortgagee, on the ground that such had not been the practice of this court." Id. p. 43. And this rule was approved and followed in the later case of Frisbie v. Bateman, 9 C. E. Green, 28. And so in Beverley AND MORTGAGEE. 43 Except in Special Cases.— Under special circumstances, however, a receiver may be granted at the instance of a mortgagee having the legal estate. Where, for ex- ample, A., together with B., mortgaged their respec- tive estates for the debt of A., but it was provided in the deed that recourse should not be had to B.'s es- tate unless A.'s estate should prove insufficient, and, upon bill of foreclosure, the insufficiency of A.'s estate was denied, a receiver was appointed, on the ground that if the plaintiff were to bring ejectment, it would be in the power of B. to deny the insufficiency of A.'s v. Brooke, 4 Grattan, 209, it was said : " But equity will not, unless in a very strong case, disturb his (the mortgagee's) possession by the appointment of a receiver on the application of a subsequent mortgagee, or other equitable incumbrancer, and never if the validity of his mortgage be unimpeached, and he swears there is anything due to him. On the other hand, because of the remedies which the mortgagee of the legal estate has in his own hands, equity will never appoint a receiver on his application." See also Williams v. Robinson, 16 Conn. 524, Morrison v. Buclcner, Hempstead, 442, and Oliver v. Decatur, 4 Cranch., C. C. It. 458. These conflicting authorities may perhaps be reconciled upon the theory stated above, namely, that in those States where a receiver will be appointed, the common law rule that the legal title to the mortgaged premises is in the mortgagee, and that he is entitled to bring ejectment, has been modified or entirely abrogated, and the equitable remedy by appoint- ment of a receiver is adopted in the absence of relief by the common law action. See Hi/man v. Kelly, 1 Nevada, 187, and the remarks in that case on Guy v. Ide, 6 Cal. 101. In some States the appointment of a receiver at the suit of a mortgagee is authorized and regulated by statute. Such is the case in Ohio (Seney's Code, Title VIII. Chap. V.), Kentucky (Myers' Code of Practice, 95 and 9G), and Kansas (General Stats. G77). After a decree of foreclosure, the appointment of a receiver to take charge of the mortgaged premises is said to be unusual. Adair v. Wright, 16 Iowa, 385. See also, on the general subject, Cheever v. The Rutland Rad- road Co., 39 Vermont, 653 ; Noyes v. Rich, 52 Maine, 115. 44 BETWEEN MORTGAGOR estate, and that the defence, if set up at law, would lead to the trial of questions of account which might be tried much more satisfactorily in equity .(d) So, also, a mortgagee of leaseholds, who has made ad- vances to preserve the premises from eviction for non-payment of rent by the mortgagor, may apply for a receiver, notwithstanding that the interest on the mortgage debt may have been regularly paid.(e) So, also, in a suit on behalf of a number of grantees of rent-charges on the same property, who had powers of distress and entry, a receiver was appointed to protect the property pending the litigation, it being unten- anted, and it being impossible to obtain tenants, for want of protection against the powers of the several grantees of the rent-charge.(/) 1 Receiver not appointed against a Prior Legal Mortgagee in Possession at Suit of Second Mortgagee.— The court will not appoint a receiver at the instance of a second mortgagee or equitable incumbrancer, against a prior (d) AcJdand v. Gravener, 31 (/) White v. Smale, 22 Beav. Beav. 482. 73 ; see Cup it v. Jackson, 13 Pri. (e) Kelly v. Staunton, 1 Hog. 734; White v. James, 2G Beav. 393. 191 ; Hall v. Hurt, 2 J. & H. 7t>. 1 And where the whole mortgage debt was due, and large arrears of interest had accrued, and the party in possession had neglected to pay the taxes, and had also endeavored todefeat the mortgage by conveyances under tax-titles, it was held that this was such negligent and unfair conduct as would justify the appointment of a receiver. Finch v. Houghton, 1!' Wis. 149. And see Brown v. Chase, Walk- er's Oh. Rep. 43; Callanan v. Shaw, 19 Iowa, 183; Simpson v. Roberts, 35 Georgia, 180; Wall Street Ins. Co. v. Loud, 20 LIow. IV. II. 95 ; and Ckujelt v. Salmon, 5 Ciill & J. 314. AND MOKTGAGEE. 45 legal mortgagee in possession, as long as anything remains due to him on the mortgage security. A prior legal mortgagee in possession, having anything clue to him, is entitled to retain that possession until he is fully paid. 1 When a prior mortgagee is in pos- session, a receiver will not be appointed against him except on his own confession that he has been paid off, or on his refusal to accept what is due to him.(^) If he swear that something is due to him on the mort- gage security, no receiver will be appointed against him, (A) 2 and the only course is to pay him off according to his own statement of the debt.(7) It is not neces- sary, in order to save his possession, that he should be able to state with any great precision what sum is due to him. It is enough if he can swear that something is due to him (however small it may be) on the secu- rity.^-) If he distinctly says by his answer that some- thing is due to him, the court will not try the truth of the statement by affidavits against the answer.(/) If, however, he will not state that something is due to him, the court will appoint a receiver. (?n) The state- (g) Berney v. Seivell, 1 J. & (k) Chambers v. Goldwin, W. 659; Hilesv. Moore, 15 Beav. cited 13 Yes. 378; Quarrell v. 180. BecJcford, 13 Ves. 378. (/() Chambers v. Goldioin, (I) Rowe v. Wood, 2 J. & W. cited 13 Yes. 378 ; Quarrell v. 558. Bedford, 13 Ves. 378. (m) Chambers v. Goldwin, (i) Berney v. Seivell, 1 J. & cited 13 Ves. 378 ; Quarrell v. W. 647 ; Rowe v. Wood, 2 J. & Bedford, 13 Ves. 378 ; Rowe v. W. 557. Wood, 2 J. & W. 558. 1 Callanan v. Shaiv, 19 Iowa, 183. 2 Quinn v. Britain, 3 Edw. C. R. 314. 46 BETWEEN MORTGAGOR ment must, in order to satisfy the court, be a distinct and positive statement. It is not enough that it should merely amount to a vague assertion, (n) or that he should say in general terms that he believes that, when the accounts are taken, some particular sums, and parts of other sums, will be found due, without supporting the statements by any accounts which will serve to test its truth. (o) !Nbr can the incomplete state of his accounts be admitted as an excuse for his not being able to say that something is due to him. If a mortgagee in possession keep his accounts so negligently that neither he, nor a subsequent incum- brancer, nor the owner of the estate, can ascertain what is due, the court may assume that nothing is due, and appoint a receiver.(p) Time, however, may be given him to make an affidavit of the debt.(g) The rule that a receiver will not be granted against a prior legal mortgagee in possession as long as any- thing remains due on the mortgage security, applies equally, whether the priority is original or has been acquired subsequently by an assignment of the mort- gage.^-) Where, accordingly, as between two equitable incumbrancers, the one later in date had acquired the legal possession, the court would not, at the suit of the one who was prior in date, appoint a receiver.(s) (n) Hiles v. Moore, 15 Beav. (q) Codrington v. Parker, 16 181. Ves. 469. (o) lb. (?•) Berney v. Seioell, 1 J & (p) Codrington v. Parker, 16 W 048; Hiles v. Moore, 15 Ves. 469; Hiles \. Moore, L5 Beav. 181 ; Bates v. Brothers, 17 Beav. 180. Jur. 1174, 2 Sm. A- <;. 509. (s) Bales v. Brothers, lb. AND MORTGAGEE. 47 The rule that a receiver will not be appointed against a prior legal mortgagee in possession, only applies as long as anything is due with reference to which the mortgagee has a right to retain possession. (i) It is not the rule of the court that a third mortgagee, who has advanced his moneys with notice of the second mort- gage, and who has taken possession, and has then bought up a first incumbrance, can retain it as against the second mortgagee, after the first mortgage has been paid ofF.(u) 1 The rule that a receiver will not be appointed against a prior legal mortgagee in possession, has been held to apply in favor of persons in possession, entitled to a mortgage and prior charges on the estate, though they had applied part of the rents in payment of the interest on those charges, instead of discharging the principal of the mortgage ; it being the proper course, as be- tween the tenant for life, and the owners of the in- heritance, to keep down such interest out of the rents, and not to treat the surplus rents, after payment of the interest of the unpaid part of the principal, as applicable to the discharge of such unpaid principal.(x) In order to deprive an equitable mortgagee of his (t) Codrington v. Parker, 16 (x) Faulkner v. Daniel, 3 Ves. 469. Ha. 204 n., 10 L. J. Ch. N. S. 34. (u) Hiles v. Moore, 15 Beav. 181. 1 "Where the premises are of doubtful security, the first mortgagee may have a receiver as against a second mortgagee who has fore- closed and bought in the property. New York Life Ins. Co. v. Glass, 50 How. Pr. R. 81. 48 BETWEEN MORTGAGOR right to a receiver, the possession of the party must he such a possession as invests him with a title to receive the rents and profits. A mere possession as tenant is not sufficient. An incumbrancer who is in possession, not in that character, but as tenant, cannot set up his possession as tenant as a reason against the appoint- ment of a receiver. A second mortgagee, having sold part of his mortgage to the tenant in possession of part of the premises, applied for a receiver; the tenant in possession objected on the ground that the rent which he was to pay was just equal to the interest he was entitled to receive on his share of the money due on the mortgage, and that therefore it would but increase the expense by his paying into court as rent what he must receive back as interest. But it was held that the defendant could not unite his two cha- racters of mortgagee and tenant, and that his position being as tenant could not be set up against the other mortgagee.(y) In particular Cases Receiver appointed against Legal Mortgagee in Possession.— Although a receiver will not as a general rule, be appointed against a prior legal mortgagee in possession, the court may if a case of gross mismanagement of the estate be made to appear, deprive a mortgagee of possession by appointing a re- ceiver ; but to warrant such an interference the mis- management must be of a clear and specified nature.^) (y) Archdeacon v. Bowes, 3 (z) Koive v. Wood, 2 J. & W. Aust. 752. 553. AND MORTGAGEE. 49 In Howe v. Wood,(a) a motion for the appointment of a receiver upon a mortgagee of mines, who had be- come a partner by purchasing shares in them, upon the ground of mismanagement, and excluding the mortgagee, upon interference was refused ; it not being shown and the mortgagee not admitting that the mort- gage was satisfied. It was also said that the rights and duties of a person in that situation were not to be governed solely by principles applicable to one who stands simply in the character of a mortgagee or part- ner, and that if a first mortgagee in possession can in any case be deprived of that possession on the ground of mismanagement, it must be mismanagement of a clear and specified nature. Though it could not appoint a receiver, the court, however, ordered that the plaintiff had a clear right, subject to the equities which might ultimately be de- clared between the parties, to insist that regular ac- counts should be kept of all receipts, payments and transactions relative to the mine, and to have constant access for the purpose of inspecting the accounts ; and declared also that, subject to those equities, he had a clear right to control the working of the mine, and that if he was impeded in the exercise of any of those rights he should come to the court again.(6) x (a) Roive v. Wood.. 2 J. & W. (6) lb. 559. 553. 1 A receiver with modified power was appointed in Tliompson v. Van Vechten, 5 Duer, 618. In that case a junior mortgagee of a steamboat filed a bill praying for a receiver. A few days prior to 4 50 BETWEEN MORTGAGOR Receiver appointed against Prior Legal Mortgagee, if not in Possession.— Although an equitable mortgagee or incumbrancer cannot have a receiver appointed against a prior legal mortgagee in possession, the case is dif- ferent if the prior legal mortgagee is not in possession. If an incumbrancer having a prior legal estate be not in possession, whether from refusing to take posses- sion or from being otherwise out of possession, an equitable incumbrancer having a charge subsequent in date may have a receiver, without prejudice, however, to the right of the person having a prior legal estate to take possession, if he think fit.(c) 1 (c) Bryan v. Cormick, 1 Cox, was appointed at the suit of a 422 ; Dalrner v. Dasluoood, 2 puisn6 incumbrancer, and the first Cox, 383 ; Davis v. Duke of legal incumbrancer was not enti- Marlborough, 2 Sw'. 135 ; Berney tied to take possession because v. Sewell, 1 J. & W. 648 ; Tan- he was by the terms of his se- field v. Irvine, 2 Russ. 151 ; curity obliged before doing so to Rhodes v. Mostyn, 17 Jur. 1007 ; give three months notice after comp. Coope v. Creswell, 12 W. default made in payment of the R. 299 ; see Langton v. Langton, mortgage money. 7 D. M. & G. 30, where a receiver the commencement of this suit the U. S. Marshal had taken posses- sion of the vessel under liens of material-men. The court declined to appoint a receiver with authority to take possession, but appointed one to represent in the U. S. District Court those persons who had not filed libels, and to receive the surplus, if any, and to distribute it under the control of the court. 1 In an earlier case, Phipps v. The Bishop of Bath $f Wells j 2 Pickens, 608, where the first mortgagee was not in possession, a re- ceiver was refused, Lord Thurlow saying, " a second mortgagee, the mortgagor living, cannot have a receiver without the consent of the first mortgagee, because the court cannot prevent the first mortgagee from bringing an ejectment against the receiver as soon as he is ap- AND MORTGAGEE. 51 If a mortgagee will not take possession, a receiver will be appointed without his consent. The court will not allow a prior legal incumbrancer to object to the appointment of a receiver by anything short of a personal assertion of his legal right, and on taking possession himself.(d) 1 If care be taken that a prior mortgagee is not prejudiced, he has nothing to do with the motion for a receiver. He may enter as mortgagee ; and the appointment of a receiver will not prejudice that right. The habit of the court on such a motion is not to look at mortgagees further than to see that they are not prejudiced.(e) The court may in a suit instituted by a puisne* mortgagee appoint a receiver, although the first mort- gagee has by his deed of security a power to appoint one.(/) The appointment of a receiver may be made at the suit of a puisne mortgagee or other legal incumbrancer, for the purpose of keeping down the interest, even though the applicant be unable at the time to enforce the usual mortgagee's remedies, as if he have cove- nanted not to call in the mortgage debt during a cer- tain time ;{g) and though by the transaction itself the (d) Silver v. Bishop of Nor- (/) Bordv. Tollemache, 1 N. luich, 3 Sw. 114 n. R. 177. (e) Norway v. Rowe, 19 Ves. (g) Burrows v. Molloy, 2 J. & 153, per Lord Eldon. L. 521. pointed ;" but the later cases (see note c) have established the rule as stated in the text. See also Cortleyeu v. Hathaivay, 3 Stockton 39-42 ; State of Maryland v. The Northern Central R. R. Co., 18 Maryl. 213. 1 See Wiswall v. Sampson, 14 Howard, 65. 52 BETWEEN MORTGAGOR security gave the creditor no right to he considered as a mortgagee of the estate, but only made the rents a fund for the payment of interest and of the pre- miums upon a policy of insurance, out of the produce of which the principal was to be paid.(A) Arrears of Interest a Ground for Keceiver .— It is enough to grant a receiver at the suit of a secoud or puisne" mortgagee that the payment of interest is in arrear,(z) or that there is reason to apprehend that the property is insufficient to pay the charges, or is in dan- ger of being evicted {e.g., for non-payment of head rent).(A) 1 Parties.— To a bill by second or third mortgagees for a receiver, it is not necessary to make the first mort- gagees parties to the suit.(^) (h) Taylor v Emerson, 4 Dr. (k) Herbert v. Greene, 3 Ir. & War. 122. Ch. 273 ; see Plaskett v. Dillon, 1 (i) White v. Bishop of Peter- Hog. 201 ; Racket v. Snow, 10 borough, 3 Sw. 109 ; Plaskett v. Ir. Eq. 220. Dillon, 1 Hog. 201 ; Tanfield v. (I) Dalmer v. Dashivood, 2 Irvine, 2 Russ. 151 ; Wilson v. Cox, 383; Davis v. Duke of Wilson, 2 Keen, 249; see Hop- Marlborough, 1 Sw. 77 ; but see kins v. Worcester and Birming- Price v. Williams, Coop. 31. ham Canal Co., L. R. 6 Eq. 447. 1 It is said in Post v. Dorr, 4 Edw. C. R. 412, to be an established rule that a second or third mortgagee who succeeds in getting a receiver appointed becomes thereby entitled to the rents collected during the appointment, although (in New York) a prior mortgagee steps in and obtains a receivership in his behalf, and fails to obtain enough out of the property to pay his debt. This is on the principle that the mortgagee acquires a specific lien on the rents by obtaining the appointment of a receiver of them. See also Howell v. Ripley, 10 Paige, C. R. 43 ; Thomas v. Brig- stocke, 4 Russ. 64; post, Chap. VI. AND MORTGAGEE. 53 Mortgagee of Tolls, &c, may have a Receiver.— A mortgagee of turnpike or other tolls may come to the court for a receiver, instead of taking steps to ob- tain possession at law.(m) " Under an ordinary mort- gage," said Turner, L. J.,(n) " the mortgagee when he enters into possession holds for his own benefit. Under a mortgage of this description he becomes, when he enters into possession, liable to the other mortgagees to the extent of their interest. This liability would entitle him, upon possession taken, to come to the court to have it ascertained what is due upon the other mortgages, and for a receiver to aid him in the due application of the tolls ; and if this court can be called upon to appoint a receiver immediately after the possession recovered at law, it can hardly be neces- sary that the proceeding at law should first be taken." Equitable Mortgagee may have a Receiver.— A receiver may be appointed on the application of an equitable mortgagee in a foreclosure suit or other suit for enforc- ing his security against the mortgagor in possession having the legal estate. (o) So, also, a receiver may be appointed on the application of an equitable mort- gagee against a person in possession under agreement of assignment from a person having the legal title.(p) In Holmes v. Bell(q) a receiver of the rents and profits (m) Lord Crewe v. Edleston, 620 ; see Crowe v. Halliday, 2 1 D. & J. 93. Ridg. P. C. 58. (n) lb. 109. (_p) Reid v. Middleton, T. & R. (o) Reid v. Middleton, T. & R. 455. 255 ; Aberdeen v. Chitty, 3 Y. & (q) 2 Beav. 298. C. 379 ; Meaden v. Sealey, 6 Ha. 54 BETWEEN MORTGAGOR of an estate belonging to the defendants as tenants in common, was appointed at the suit of equitable mort- gagees, though one of the mortgagors was out of the jurisdiction, the whole of the rents being received by the other. Form of Order for Receiver at Suit of Subsequent In- cumbrancers.— If a receiver is appointed on behalf of one of several incumbrancers, the order generally con- tains a declaration that the appointment of the re- ceiver is to be without prejudice to the rights of, or is not to affect the prior incumbrancers on the estate, who may think proper to take possession of the estates and premises by virtue of their respective securities ; and usually directs that the receiver do, out of the rents and profits to be received by him, keep down the interest and payments in respect of such incum- brancers, according to their priorities, and be allowed the same in passing his accounts. (>•) Whether a Receiver can be had in a Redemption Suit. — There is a difficulty in granting a receiver in a re- demption suit, because it is not generally competent for a defendant to apply for relief against a plaintiff without filing a cross-bill.^) A receiver was accord- ingly refused on an application after the hearing, to add the appointment of a receiver to the decree ; but (r) Sot. on Doer. 1026, 1027; (s) See }Y>/)nir v. Griffith,! see Lewis v. Zouche, 2 Sim. 388, Sim. & St. 147 , Brotun v. New- :','.):',: Smith v. Lord Effinham, all, 2 M. & 0. 574, infra. 2 Beav. 232. AND MORTGAGEE. 55 it was said that perhaps it might have been done on petition, upon due notice being given. (t) And even when the plaintiff has asked for a receiver by his bill, the court will not make the appointment on the defendant's application, if the plaintiff oppose it, but no costs will be given under such circumstances to the plaintiff.(w) Receiver is in Law the Agent of the Mortgagor within 3 & 4 Will. 4, c. 71.— When an estate is mortgaged, and a receiver is appointed at the suit of mortgagees, the receiver is, in law, the agent of the mortgagor, the owner of the estate subject to the mortgage, and pay- ment by him in pursuance of the order is payment by the legal agent of the party liable to pay within the 40th section of 3 & 4 Will. 4, c. 27.(x) SECTION V. — IN CASES BETWEEN DEBTOR AND CREDITOR. Receiver Appointed at Suit of General Creditor. — General creditors may, like specific appointees of pro- perty, have a receiver of the property of a debtor.Q/) In a case, accordingly, where it is made to appear that an executor or devisee of the real estate is wasting the real or personal estate, a receiver will, it would seem, be appointed at the instance of single contract credi- (t) Barlow v. Gains, 8 Beav. (y) Owen v. Homan, 4 H. L. 330. 1036; Oldfield v. Cobbett, 4 L. J. (u) Robinson v. Haclley, 11 Oh. N. S. 272 ; see Largan v. Beav. 614. Bowen, 1 Sch. & Lef. 296. (x) Chinnery v. Evans, 11 H. L. 134. 56 BETWEEN DEBTOR tors.(^) So also where upon bill by creditors claiming satisfaction out of real and personal assets, it appeared that the real estate must eventually be responsible, as there was no personal estate to be applied to discharge the debts, a receiver was appointed. (a) So also in a case where a bill was filed by creditors for satisfaction out of the personal assets, and if those were not suffi- cient, out of the real estate, descended to an infant heir, the court appointed a receiver of the real estate descended.(6) If the real estates over which a receiver is sought are in mortgage, but the mortgagee is not in posses- sion, a receiver will be appointed on the application of creditors, without prejudice to the right of the mort- gagee to take possession.(c) Though general creditors may, like specific ap- pointees of property, have a receiver of the property of the debtor, a strong case must be made out to war- rant the interference of the court. The court will not, unless a clear case be established, deprive a per- son of property in which the claimant has no specific claim, in order that, if he establish his claim as a creditor, there may be assets wherewith to satisfy (z) See Keene v. Riley, 3 Mer. (b) Sweet v. Partridge, 1 Cox, 436. 433 ; 2 Dick. 696 ; see Lechmere («) Jones v. Pugh, 8 Ves. 71 ; v. Brasier, 2 J. & W. 287. Chalk v. Paine, 13 Jur. 981; see (c) Bryan v. Cormtck, 1 Cox, Coope v. Cresswcll, 12 W. R. 422 ; see Berney v. Seivell, 1 J. 299 ; Topping v. Searson, 6 L. T. pon,3 Will. 4, c. 55, ss. 31,32; and 3 Jur. 7, 8 L. J. Oh. N. S. 139; & 4 Vict., o. 105, ss. 21, 23, 24; Hollis v. Bryant, 6 Jur. 356 ; see Reilly on Petitions. It has, Smith v. Hurst, 1 Coll. 705, 10 however, been much restricted Ha. 48 ; Rhodes v. Lord Mostyn, by more recent legislation ; 12 & 17 Jur. 1007 ; Partridge v. Fos- 13 Vict., c. 95; 13 & 14 Vict., c. ter, 34 Beav. 1 ; see Re Coiv- 29 ; 19 & 20 Vict., c. 77, ss. 2, 3. bridge Railway Co., L. R. 5 See Reilly on Summ. Petit. 374 Eq. 417. The jurisdiction of the et seq. Court of Chancery in Ireland to 1 In New York, independently of the provisions in the Revised Statutes, it had been held, in Hadden v. Spader, 20 John. 554, that a judgment creditor whose execution had been returned unsatisfied might come into chancery to reach an interest of the debtor in pro- perty which could not be sold under the execution at law ; see Farn- ham v. Campbell, 10 Paige. C. R. 601 ; Suydam v. North Western Ins. Co., 51 Penna. St. R. 398 ; Bispham's Equity, 469 (§ 527). In such cases it is the duty of the complainant to apply for a receiver ; Osbom v. Ileyer, 2 Paige, C. R. 342 ; and his appointment is almost a matter of course; Bloodgood v. Clark, 4 Id. 577; Corning v. White, 2 Id. 568 ; Bank v. Schermerhom, Clarke, 214 ; Austin v. Figueira, 7 Paige, C. R. 56 ; Congden v. Lee, 3 Edw. C. R. 304 : Gregory v. Gregory, 33 N. Y. 1 ; but not when there is property which can be seized under afi.fa., Parker v. Moore, 3 Id. 234. In Sylvester v. Reed, 3 Edw. 0. It. 296, a receiver was refused because the defendant had died pendente lite. It was said that under such circumstances the plaintiff ought to come in under the general administration of the decedent's estate. But a different conclusion has recently been reached by the Court of Appeals in Brown v. A/W/rV,, 42 New York (3 Hand), 26. This subject in this State is now regulated by statute. In New Jersey a judgment creditor who has exhausted his remedy AND CREDITOR. 63 A judgment or other specialty creditor cannot, how- ever, maintain any suit at all till he has taken the steps necessary for acquiring a charge upon the pro- perty. He must go up to the point at which he will be met by the obstruction, before he can say that he is embarrassed by it. Till he can do so, he can have no locus standi in equity. (s) Before being able to procure relief in equity, the creditor must show by his bill that he has proceeded at law to the extent necessary to give him a complete title. He must show that he has sued out the writ of ji. fa. or elegit, the execution of which is avoided, or the defendant may demur.(^) A creditor is obliged to sue out the wit, even in the case where the debtor's estate is a mere equity of re- demption, and therefore incapable of extension.(u) If he has sued out an elegit, a judgment creditor may have a receiver of the real estate of his debtor appointed without delay.(x) But if no elegit has been sued out, and the judgment creditor proceeds under (s) Per Christian, L. J., Ir. L. (x) Smith v. Hurst, 1 Coll. R. 2 Eq. 542. 705 ; Rhodes v. Lord Mostyn, 17 (t) Mitf. Plead. 101 ; Smith v. Jur. 1007 ; Partridge v. Foster, Hurst, 1 Coll. 705, 10 Ha. 48. 34 Beav. 1. (u) Re Cowbridge Railway Co., L. R. 5 Eq. 417. by execution, may proceed in equity against the choses in action of his debtor, and have them collected by a receiver. Tantum v. Green, 6 C. E. Green, 364. In some cases a receiver may be ap- pointed in proceedings in divorce in aid of a decree for alimony ; see Barker v. Dayton, 28 Wis. 367. But it seems that such an appoint- ment will not be made in the first instance, but only in the event of the husband failing to give security, or of the surety's default. Davis v. Davis 1 Hun, 444. 64 BETWEEN DEBTOR the statute 1 & 2 Vict., c. 110, a receiver will not be appointed of the real estate of the debtor, unless one year has elapsed from the time of entering up the judgment.(y) By a late act, 27 & 28 Vict., c. 112, s. 1, however, it is declared that no judgment entered up thereafter shall affect any land, until such land shall have been actually delivered in execution by virtue of a writ of elegit, and the writ shall have been duly re- gistered, but that the judgment creditor to whom land has been actually delivered in execution, shall be en- titled forthwith to have the benefit of his judgment. If there are prior or outstanding mortgages, but the mortgagees are not in possession, or refuse to take pos- session, the court will appoint a receiver of the mort- gaged premises at the suit of judgment creditors, without prejudice, however, to the rights of the mort- gagees to take possession, if they think fit.(>) As soon as the writ of ji. fa. is in the hands of the sheriff, a receiver of the chattels of the debtor will be appointed at the suit of the judgment creditor, if the property is in danger.(a) 1 A judgment creditor under an execution takes all that belongs to the debtor, and nothing more. The judgment operates as a charge upon the beneficial interest of the debtor, and only attaches upon what is at the time it is entered up or afterwards becomes his ( v ) lb. (a) Smith v. Hurst, 1 Ooll. (z) Rhodes v. Mostyn, 17 Jur. 705; sec Blanchard v. Caw- 1007 ; sec supra, p. 50. thorne, 4 Sim. 566. 1 See Hose v. Bevan, 10 Maryl. 4GC. AND CKEDITOR. 65 property. The creditor takes the property subject to every incumbrance to which it was subject in the hands of the debtor. If the debtor has a legal estate, subject to an equity, the judgment will be a charge upon the estate, subject to the same equity. In the case of an equitable estate, it will be a charge upon the equitable estate. A judgment creditor does not, by giving notice or taking out a stop order, acquire priority over a prior mortgagee or assignee who has not done so.(6) A judgment creditor may, under the provisions of 27 & 28 Vict., c. 112, s. 4, have an order for the sale of land.(c) The judgment creditor of a corporation, whose debt originated prior to the Municipal Corporation Act, is entitled to have a receiver over the whole corporate property including lands that may have been acquired since the Act.(c/) 1 (b) Whitworth v. Gaugain, 3 Re Bishops Waltham Railway Ha. 425, 1 Ph. 735 ; Abbott v. Co., lb. 2 Oh. App. 382 ; Re Cow- Stratten, 3 J. & L. 603; Ander- bridge Railway Co., lb. 5 Eq. son v. Kemshead, 16 Beav. 339 ; 417. Ames v. Birkenhead Docks, 20 (d) Arnold v. Mayor, §-c, of Beav. 342 ; Scott v. Hastings, 4 Gravesend, 2 K. & J. 574 ; see K. & J. 633; Kinderley v.Jervis, S. C, 2 Jur. N. S. 706, as to right 22 Beav. 1 ; Wickham v. New of mortgagee, after the Corpo- Brunswick, #•<;., Raihoay Co., ration Act, against a receiver L. R. 1 P. C. 64. appointed at suit of judgment (c) See Re Hull and Hornsea creditor whose debt originated Railway Co., L. R. 2 Eq. 262 ; before the act. 1 Besides the cases mentioned in the text, in which receivers are appointed at the instance of creditors, the statutes of many States authorize their appointment, under certain circumstances, either for 5 66 COMPANIES. SECTION VI. — IN THE CASE OF PUBLIC COMPANIES. 1 Receiver of Tolls, &c, Appointed at Suit of Mortgagee.— The ground on which the Court of Chancery will not appoint a receiver at the suit of a mortgagee of real estate who has the legal estate, being that there is open to him a full and perfect remedy at law,(e) the objection to the appointment of a receiver is removed in cases where the mortgagee has not open to him a remedy at law by ejectment. Inasmuch, therefore, as the mortgage by a railway or canal company of their (e) Supra, p. 38. the purpose of reaching and guarding the debtor's property before judgment, or to preserve it after judgment, or to carry the judgment into effect. Such is the case in Ohio (Seney's Code, Title 8, Chap. 5), Indiana, Kansas (Gen. Stats. 667), Kentucky (Myers's Code of Prac- tice, 95 and 96), California (Wood's Dig. 185), and New York. The cases in which it is proper to appoint these receivers, together with their powers, duties, and responsibilities when appointed, are to a great extent regulated by the various statutes, the provisions of which and the judicial interpretations whereof it would be impossible, even if it were desirable, to notice here in detail. Of course they throw no light upon the subject of the appointment of receivers in ecpjity, independently of legislation. It may be remarked, however, that the practice of Courts of Chancery has been generally followed for the purpose of regulating the conduct of statutory receivers in those cases which are not governed by express legislative provisions. In Pennsylvania, where a petitioner for the benefit of the Insolvent Act has been bound over or committed for trial under the criminal provisions of the Act, a receiver may be appointed. See 1 Purdon Dig. 784. 1 If the governing body of a company is so divided that it cannot act together, the court will grant an injunction and appoint a receiver, if necessary, until a meeting is held by the company and a proper governing body appointed. Feather stone \. Cooke; Trade Auxiliary Co. v. Vickcrs, L. It. 16 Eq. 298. COMPANIES. 67 " undertaking," or the rates, tolls, and dues arising therefrom, does not give the mortgagee such an in- terest as will enable him to maintain ejectment,(/) he may come to the court for a receiver.^) 1 (/) Doe v. St. Helen's, fyc, Eq. 534. A railway mortgage Railway Co., 2 Q. B. 364. debenture holder is entitled to a (g) Fripp v. Chard Raihvay receiver of the tolls and the un- Co., 11 Ha. 241 ; Potts v. War- dertaking, and not merely of the wick and Birmingham Canal profits. The order for the ap- Co., Kay, 146 ; Ames v. Birken- pointment of a receiver should head Docks, 20Beav. 342 ; Bowen follow the terms of the mortgage v. Brecon Raihvay Co., L. R. 3 deed as to the property in respect Eq. 541; Gardner v. London, of which the appointment is made. Chatham and Dover Raihvay Griffin v. Bishops Castle Rail- Co., lb. 2 Ch. App. 201 ; Hopkins way Co., 15 W. R. 1058; see v. Worcester and Birmingham Fripp v. Chard Railway Co., Raihvay Co., lb. 6 Eq. 447 ; see 11 Ha. 241, Set. on Deer. 1034. Imperial and Mercantile Credit See as to form of order, Griffin v. Association v. Neivry and Ar- Bishops Castle Railway Co., 1& magh Raihvay Co., Ir. L. R. 2 L. T. N. S. 345. 1 Courts of Equity in this country have exercised the jurisdiction of chancery in the appointment of receivers of public companies. In the case of The Covington Drawbridge Company v. Shepherd, 21 Howard, 125, it was decided that the United States Courts had power to appoint a receiver of the tolls of a drawbridge company at the instance of an execution creditor who had levied upon the rents and profits of the bridge, purchased the same at the marshal's sale, demanded possession of the bridge for the purpose of collecting the tolls, and had been refused. The like power was exercised in The State v. The Northern Central Raihvay Co., 18 Maryl. 193. See also Ogilvie v. The Knox Ins. Co., 22 Howard, 380 ; and White Water Valley Canal Co. v. Vallette, 21 Howard, 414. In Kennedy v. The St. Paul §■ Pacific R. R. Co., 2 Dillon, 448, a receiver of a railroad company was appointed for the purpose of preserving a valuable land grant which would have been otherwise lost to the corporation ; and to that end the receiver was authorized to borrow money to complete the unfinished portions of the road, audi 68 COMPANIES. So, also, and upon the same principle, a man who has sold land to a railway company in consideration of a rent-charge, may come to the court for a re- ceiver.^) So, also, and upon the same principle, a mortgagee of turnpike,(z) dock,(j) and market(/^) tolls has a right to come to the court to have a receiver appointed. The court has jurisdiction to appoint a receiver at the suit of a mortgagee of tolls, independently of any Act of Parliament.(7) The appointment of a receiver at the suit of a mortgagee of tolls is one of the oldest remedies of the court.(m) It is not necessary that the Act should give the court power to appoint a receiver to enable the court to do so. When an Act of Parlia- ment authorizes a mortgage, it authorizes, as incident to it, all necessary remedies to compel payment, and in the case of tolls a power to appoint a receiver.(?i) {h) Eyton v. Denbigh, fyc, {k) De Winton v. Mayor of Railway Co., L. R. 6 Eq. 14. Brecon, 26 Beav. 533. (i) Knapp v. Williams, 4 Ves. [I) lb. 430 n., per Lord Loughborough ; (m) Hopkins v. Worcester and Lord Crewe v. Edleston, 1 D & Birmingham Canal Co., L. R. 6 J. 109. Eq. 447. (j) Amesv. Birkenhead Docks, (n) De Winton v. Mayor of 20 Beav. 342. Brecon, 26 Beav. 541. to issue debentures which were made (by the terms of the order) a lien on the corporate property. Where a fund belonging to a foreign corporation is deposited with parties within the jurisdiction, a receiver of that fund will be ap- pointed on a proper case being made out. Redmond v. Hoge, 3 Hun, 171. In many States there arc statutory provisions authorizing the appointment of receivers of public companies, under certain circum- stances, and regulating their duties and authority. Sec infra, page 80, note. COMPANIES. G9 The fact that a precise and specific remedy may be pointed out by the Act of Incorporation, which pro- vides that persons aggrieved by any order of the man- agers of the corporate body may appeal to the quarter sessions, does not deprive a party of his right to a re- ceiver ; nor does a proviso in the Act of Incorporation, that no suit should be commenced against any person for anything done in pursuance of the Act, until a certain notice had been given, apply to a suit for a re- ceiver;^) nor does a proviso in the Act of Incorpora- tion of a railway company, that a committee of twelve of the proprietors of the company should be elected at every annual meeting to manage the affairs of the company, deprive a mortgagee of his right to a receiver of the rates, tolls, and dues of the company.(^) Nor is the jurisdiction to appoint a receiver at the suit of a mortgagee taken away by the fact that there is a pro- vision by statute for the appointment of a receiver through the medium of two justices of the peace.(^) Nor is it any objection to the appointment of a re- ceiver, that the company has duties to perform, the neglect of which might subject them to indictment, for the order of the court always gives the parties liberty to apply, whereby such consequences may be averted.(r) (o) Drewry v. Barnes, 3 Russ. appointment of a receiver at the 104. suit of mortgagees by two justices (p) Fripp v. Chard Railway of the peace. A provision to the Co., 11 Ha. 241. same effect is contained in 10 & 11 (q) lb. 259. By the Lands Vict., c. 16, ss. 86, 87. Clauses Act, 8 & 9 Vict., c. 26, ss. (r) Fripp v. Chard Railway 53, 54, provision is made for the Co., 11 Ha. 259. 70 COMPANIES. Pleading.— A mortgagee of the tolls of a company, seeking to obtain the appointment of a receiver, must sue on behalf of himself and all other mortgagees who have an interest identical with his own, or are in the same class with himself.(s) 1 Where such a suit has been instituted, a mortgagee holding a mortgage in the statutory form of a debenture of the company is not entitled to sue out execution on a judgment which he has obtained at law in an action on the same instrument, except as a trustee for himself and all other debenture holders entitled to be paid pari passu with him;(Y) and, that being the opinion of the court, an inquiry was directed upon the petition for leave to issue execution, and in the suit whether it would be for the benefit of the debenture holders that any pro- ceedings should be taken by the receiver for the pur- pose of making such judgment available for the benefit of such creditors.(w) (s) Potts v. Warivick and Bir- [t) Bowen v. Brecon Railway mingham Canal Co., Kay, 142 ; Co., L. R. 3 Eq. 541. Fripp v. ChardRaihvay Co., 11 (u) lb. 551. Ha. 241 ; Legg v. Matthieson, 2 Gin*. 71. 1 In Gravenstine'8 Appeal, 4!) Penna. St. R. 310. a creditor of a corporation filed a bill to restrain another creditor, who had obtained judgment, from issuing execution and levying upon the corporate property. The court below granted an injunction and appointed a receiver, but this decree was reversed by the Supreme Court, partly it pon the ground that the court would not interfere on behalf of one creditor to restrain another from obtaining satisfaction by means ofa prior levy upon tin 1 debtor's goods, ami partly also because the corpo- ration was mi! made a parly to the bill, and the appointment of a re- ceiver of thecorporate property was therefore highly irregular. And Bee Ellicott v. United States li have been some difference of opinion whether there was any general equity jurisdiction over corporations, as such, or whether the jurisdiction of Courts of Chancery attached only by virtue of such recognized heads of jurisdiction as trusts, injunctions and the like. This question was elaborately examined by Chancellor Cent in Alt. BETWEEN VENDOR AND PURCHASER. 81 SECTION VII. — IN CASES BETWEEN VENDOR AND PURCHASER. The court will, upon a proper case being made out, interfere upon motion and appoint a receiver, in cases Gen. v. Utica Ins. Co., 2 Johns. Ch. 371, and the conclusion reached that in the absence of a case of breach of trust or for an injunction, there was no general equity jurisdiction over corporations. See, also, The Att. Gen. v. The Bank of Niagara, Hopkins R. 354; and Bangs v. Mcintosh, 23 Barb. 591. On the other hand, in Pennsyl- vania a rather more extended view of the jurisdiction of Courts of Equity over corporations seems to be entertained. See Common- wealth v. Bank of Pennsylvania, 3 Watts & Serg. 184-193 ; -Bap- tist Church v. Scannel, 3 Grants' Cases, 48 ; Saion v. Gesser, 1 Weekly Notes, 55. And the same conclusion seems to have been reached in Wisconsin ; Adler v. Milwaukee Patent Brick Manuf. Co., 13 Wis. 57. But whatever is the true view, one thing seems to be tolerably well settled, that (independently of statutory juris- diction), a court will not entertain a bill for the dissolution of a corporation and the consequent appointment of a receiver. See Waterbury v. Merchants' Union Express Co., 50 Barb. 157. In other words, a Court of Chancery will not assume jurisdiction to appoint a receiver merely for the purpose of carrying out a decree for dissolution; for it has no jurisdiction to decree the dissolution. Independently of statutory enactments, therefore, Courts of Equity will appoint a receiver over corporate property in the following cases : — 1. At the suit of mortgagees or of bondholders who have a lien on the corporate property. The appointment of receivers in such cases is very frequent, and has been, most generally, exercised in suits to foreclose mortgages of railways. To such actions, the general principles as to the appointment of receivers at the suit of mort- gagees, already stated in this chapter, are applicable. See Keep v. Michigan Lake Shore R. R. Co., 6 Chicago Leg. News, 101. Also Milwaukee Railroad Co. v. Soutter, 2 Wallace, 501 ; Pullan v. Cincinnati and Chicago R. R. Co., 4 Bissell, 35 ; Williamson v. Neio Albany, Sfc, R. R. Co., 1 Bissell, 198 ; State of Maryland v. Northern Central R. R. Co., 18 Maryl. 193; Bill v. The New Albany, Sfc, R. R. Co., 2 Bissell, 390. 2. At the suit of creditors who have obtained judgment which they are unable to collect by levy under a common law execution. 6 82 BETWEEN VENDOR between vendor and purchaser. In a case, accordingly, where, on a bill impeaching a sale of land on the ground This is simply the application of the principles, already discussed in this chapter, which regulate the appointment of receivers as between debtor and creditor. Adler v. Mihvaukee Patent Brick Manvfac. Co., 13 Wis. 57; Covington Drawbridge Co. v. Shepherd, 21 How. 112. 3. At the suit of any one (creditor or stockholder) interested in the funds of a moneyed corporation, where there is a breach of duty on the part of the directors and a loss or threatened loss of funds ; Evans v. Coventry, 5 DeG. M. & G. 911 ; Eedmund v. Enfield Manufac. Co., 13 Abb. Pr. R. (N. S.), 332 ; or a state of things exists in which the governing body are so divided that they cannot act together; Featherstone v. Cooke, L. R., 16 Eq. 301; Trade Aux- iliary Co. v. Vickers, Id. 303 ; or where a corporation has prac- tically closed its business ; Warren v. Fake, 49 How. Pr. R. 430. But ordinarily a stockholder cannot have a receiver upon a prelimi- nary application, for such an order would work a dissolution of the company. The question was considered in Howe v. Deuel, 43 Barb. 507, where Ingraham, P. J., used the following language: "It only remains to inquire whether the court, under its general powers as a Court of Equity, can make the order appealed from. . . . That the court has power to restrain a corporation, or its trustees or direc- tors, by injunction from doing any act in violation of its charter or in misapplying the funds of the corporation, I have no doubt; but it must be against such specific acts, and not to enjoin them from carry- ing on the legitimate business of the corporation. Nor can I doubt the power of the court, in like manner, to restrain trustees or directors from fraudulent dispositions of corporate property or a misapplication of the funds (Eobinson v. Smith, 3 Paige, 222 ; Munt v. The Shreivs- bury and Chester E. E. Co., 3 Phig. Law and Eq. 144). Various cases may be found cited in Hoffman's Pr. Reps. (pp. 267, 268) to the „«ame effect. But I have been unable to find any cases where, except in regard to moneyed corporations or insolvent corporations, a stockholder may have a receiver appointed on a preliminary injunc- tion, with authority to take entire possession of the corporation and thereby work its dissolution. It is said in this case the plaintiff asks for such dissolution. This is so in the complaint; but such an appli- cation can only be made by the Attorney General (Code, \ 430 ; Smith v. Metropolitan Gas Light Co., 12 How. Pr. Rep. 187); or by the parties specified in section 35 of the revised statutes above AND PURCHASER. 83 of fraud, and alleging gross inadequacy of considera- tion and undue influence taken of the ignorance of the referred to." See also Gilman v. Green Point Sugar Co., 4 Lans. 482 ; and Turgeau v. Brady, 24 Louisiana Ann. 348. 4. Where a corporation is dissolved and has no officer to attend to its affairs. The cases of the Accessory Transit Company may be usefully referred to in this connection. In the first place, it was held that when a foreign corporation has been dissolved by a decree of a foreign government, but the degree of dissolution is not absolute, a receiver will not be appointed. And even if such a decree were unqualified, and, although made in the absence of the corporate officers, should be recognized as valid, yet if by its terms the title to the corporate property passed to certain commissioners, a stockholder,- having thus been deprived of his title, has no standing to ask for a receiver. Hamilton v. Transit Co., 26 Barb. 46. But a receiver of the company was subsequently appointed at the suit of judgment creditors, and in an action brought by him against the president of the company his title was sustained; Murray v. Yanderbilt, 39 Barb. 140. The court said : " But for the purpose of preserving the pro- perty for the benefit of creditors or stockholders, I think a Court of Equity has ample power to take charge of it and appoint a receiver. This undoubtedly is the rule in regard to domestic corporations, in- dependent of any statutory provisions." Such was the case in Law- rence v. The Greeniuich Fire Insurance Co., 1 Paige, 587. There the bill alleged that the corporation was dissolved, and had no officers to attend to its concerns. The chancellor said : " It was evi- dent there was no person authorized to take charge of, or to conduct the affairs of the corporation. Under these circumstances it was proper to appoint a receiver to take charge of the effects of the company and preserve them for the benefit of tbe stockholders gene- rally. The amendment of the 244th section of the Code, applying the appointment of receivers to like cases of foreign corporations with those' which existed in the case of other corporations, would extend this power to the present case, if any doubt existed prior thereto." It seems that an insolvent corporation cannot, itself, apply for the appointment of a receiver; Hugh v. McRae, Chase's Dec. 466. The general equity jurisdiction, indicated above, has in many States been extended by statute. Such is the case in New Jersey — Nixon's Dig. 406 and 539; and see Parsons v. The Manufac- turing Co., 3 Green, C. R. 187 ; Brundred v. The Paterson Ma- chine Co., 3 Green, C. R. 294; Oakley v. The Bank, 1 Green, C. R. 84 BETWEEN VENDOR vendor, the court was of opinion, from the materials before it, that it was hardly possible the transaction could stand at the hearing, a receiver was appointed in a suit instituted against the devisees of the party 173 ; Eager v. Stephens, 2 Halst. C. R. 374 ; Receivers v. The Pater- son Gas Light Co., 3 Zabriskie, 292 ; Kelley v. Neshanic Mining Co., 3 Halst. 0. R. 579; Corrigan v. The Trenton Bel. Falls Co., Id. 489 ; Nichols v. The Perry Patent Arm Co., 3 Stock. C. R. 126 ; The AmericanCo. v. The Paterson Co., 7 C. E. Green, 72 ; In re Long Branch and Sea Shore R. R. Co., 9 C. E. Green, 398, 1] Id. 539 ; and Middleton v. N. J. West Line R. R. Co., 10 Id. 306 ; New York — Rev. Stats, vol. iii. p. 739 et seq. ; and see Galwey v. The United States Refining Co., 36 Barb. 256 ; Bell v. Shibley, 33 Barb. 614 ; Belmont v. The Erie R. R. Co., 52 Barb. 637 ; Att. Gen. v. The Bank of Columbia, 1 Paige C. R. 511 ; Lawrence v. The Greenwich Fire Insurance Co., 1 Paige, C. R. 587 ; Bank Commis- sioners v. The Bank of Buffalo, 6 Paige, C. R. 497 ; Morgan v. The Railroad Co., 10 Id. 290 ; Ward v. The Sea Ins. Co., 7 Id. 294 ; and Clinch v. The Southside Railroad Co., 1 Hun, 636 ; Pennsyl- vania— Purdon Dig. 120-122 ; Id. Supplement, 1980, 2026; Maine- Rev. Stats, cb. 47, \ 61-86 ; and see Hewitt v. Adams, 54 Maine 206 ; Ohio— Seney's Code, Title 8, Ch. 5 ; Saylor's Stats. 269, 1304-5 ; Rhode Island— Rev. Stats. 299, 300, 309, 310; Massachusetts— Gen. Stats. 388-389 ; Vermont— Rev. Stats. 383 ; Michigan— Comp. Laws, 1296, 1301, 1302 ; and see Fay v. The Bank, Harrington, C. R. 194; Minnesota— Stats. 335; Alabama— Rev. Code,?? 730, 731, 1417- 1439, 3441, 4422; California— Civil Procedure, Chap. V.; Connecti- cut—Rev. Stats. 288, 293, 309, 458, 482. The Act of Congress, also, creating the system of National Banks, provides for the appointment of receivers of these institutions by the controller of the currency whenever they are in default in the payment of their notes of circu- lation. Brightly'a Dig. 1125. The decision of a receiver appointed under this Act, upon a claim against the bank, is not conclusive; Bankof Bethel v. Pahquioque l'xnik, U Wall. 383, S. C. 36 Conn. 325. As to the effect of appointing a receiver under the act of Con- -sec the same case, and also National Bank v. Colby, 21 Wal. 609. The provisions of the act do not oust the jurisdiction of the courts to appoint a receiver under an ordinary creditor's bill; Wright v. The Merchants 1 National Bank, 3 Cent. Law J. 351. AND PURCHASER. 85 charged with fraud. (e) So, also, where it appeared that the defendants had obtained the conveyance of the legal estate from the plaintiff upon a strong suspicion of abused confidence, a receiver was appointed. (/) In George v. Evans ^{g) where a bill was filed by a cestui que trust to set aside a purchase by a trustee from him, the motion for the appointment of a re- ceiver was refused, though the trustees admitted the purchase of the trust property ; the ground of the de- cision being, though the case was one of suspicion, that the court could not interfere till the purchase- deed was actually set aside, no clear evidence having been given to show that the property was likely to perish from the neglect or misconduct of the defend- ant. If a fair 'prima facie case for the specific performance of a contract be made to appear, the court may inter- fere upon motion and appoint a receiver.(A) In a case, accordingly, where the bill alleged that the defendant had taken possession, that he was insolvent, and had attempted to sell and convey the estate, a receiver was appointed. (Z) 1 So also where an agreement was entered into by the defendant for the sale of an estate to A., the purchase to be completed and the purchase-moneys (e) Stilhvell v. Wilhins, Jac. (7i) See Kennedy v. Lee, 3 282. Mer. 448 ; McCloud v. Phelps, 2 (/) Huguenin v. Basley, 13 Jur. 962. "Ves. 107. (*) Hall v. Jenkinson, 2 V. & (flf) 4 Y. & C. 211. B. 125. 1 But the court will not appoint a receiver, solely on the ground that a purchaser is insolvent. Jordan v. Beal, 51 Georgia, 602. 86 BETWEEN VENDOR AND PURCHASER. to be paid on or before the expiration of five years, and in the mean time interest to be paid half yearly by A., with power to the defendant to avoid the contract in the event of the interest being in arrear for twenty- one days; and the defendant afterwards virtually agreed with the plaintiff, who had advanced moneys to A. to enable him to pay arrears of interest, to ex- tend the term for payment of the half-} T early interest, but notwithstanding the agreement re-entered as for a forfeiture, the court, upon a bill for a specific perform- ance, appointed a receiver.^:) So also a receiver was appointed on motion of the vendor, pending a refer- ence to the Master as to title in a suit for the specific performance of a contract for the sale of an estate, which consisted of buildings and offices, on which it would be necessary to effect insurances, and of orna- mental grounds which required considerable expendi- ture and attention. (I) So also a receiver may be appointed against a purchaser in possession who deals with the land in a manner contrary to former usage, or to the usual course of husbandry, at the suit of the vendor and before specific performanee.(m) So also where, pending a suit instituted by a married woman against her husband, praying the execution of a post- nuptial settlement and lor an injunction to restrain him from selling or encumbering, the husband sold the estate, comprised in the settlement, to the plain- (k) Damson v. Votes, l Beav. (to) Osborne v. Harvey, 1 Y. 301. & 0. 0. 0. L16. [I Boehm v. Wood,2 J. & W. 230. COVENANTOR AND COVENANTEE. 87 tiffs, for valuable consideration, and the plaintiffs there- upon filed a bill alleging that the settlement was void against them as being voluntary, and charging that the defendant was taking advantage of the legal estate to prevent the purchaser proceeding at law, and pray- ing, amongst other things, a receiver, the court, being satisfied, upon the pleadings, that the decree would be in favor of the plaintiffs, and that the contract would be enforced, granted the motion for a receiver.(n) In a case where a purchaser was discharged on a report that a good title could not be made out, and there was no fund in court to pay him his interest and costs, a receiver was appointed over the lands, with directions to apply the rents in discharge of his in- terest and costs.(o) SECTION VIII. — IN CASES BETWEEN COVENANTOR AND COVENANTEE. The court will interfere in cases between covenantor and covenantee, and appoint a receiver, where a fair prirnd facie case is made out for the specific perform- ance of the covenant. In a case, for instance, where a tenant in tail in remainder, upon an advance of money to him by the plaintiff, had agreed to repay it after the death or failure of issue of his brother, the tenant in tail in possession, and had secured the money by a mortgage of the estate, and covenanted to levy a fine (n) Metcalfe v. Pulvertoft, 1 (o) Hill v. Kirwan, 1 Hog. V. & B. 181. 175. 88 COVENANTOR AND COVENANTEE. and suffer a recovery to give effect to the mortgage, but on coming into possession refused to perform his covenant, the court, on bill for specific performance, appointed a receiver of the rents.(p) So also where the defendant, on an advance of money being made to him, agreed to execute a mortgage of certain lands, but afterwards refused to perform his agreement, and there was an arrear of interest due on the money advanced, on bill for specific performance, the motion for a receiver was granted. (q) So also where, in a case which took place between the years 1811 and 1817, when the incumbent of a benefice might charge his benefice, an incumbent duly charged his benefice with an annuity, and covenanted that if he should after- wards be preferred to any other benefice he would charge the same with an annuity to the same amount; but afterwards, on being preferred to another benefice, refused to fulfil his covenant, the court held that the covenant constituted a good equitable charge, which attached on the new benefice, and granted a receiver.(r) The court will interfere, when necessary, to prevent irreparable mischief from breach of covenant, although the property may have to be distributed in bankruptcy, and though the Court of Bankruptcy may be able to give the same relief.(s) Where, accordingly, inspectors appointed by a deed of inspectorship, registered under the Bankruptcy Act, 1861, filed a bill against the (/>) Free v. Hinde, 2 Sim. 7. (r) Metcalf v. Archbishop of { Mae. k G. 79, 0. 86. where although an injunction (a) See Read v. Bowers, 4 was granted, a receiver was re- Bro. 0.0.441; Bartz v. Schra- fused. der, B Ves. 317; Ball v. Ball, • Roc Oarretton v. Weaver, 3 Edw. 0. It. 385; also Low v. Bolmes, 2 0. E, Green, L48, where a receiver was refused, bul security was required to be given, with a proviso thai in default of giving the security, a receiver would be appointed. BETWEEN PARTNERS. 93 proper means, those breaches recurring which have before happened by reason of the conduct of the parties.(6) Receiver not Appointed unless a Dissolution be sought. — It is not according to the practice of the court, where it is not the object of the suit to obtain a dissolution of a partnership, but, on the contrary, to continue the partnership, to grant in the course of that suit the appointment of a receiver and manager.(c) The court does not interfere for the management of a partner- ship, except as incidental to the object of the suit, to wind up the concern and divide the assets.(^) If the court were not to adopt such a rule, it might be called upon to make itself the manager of every trade in the kingdom.(e) Cases, however, may arise in which a partner was so conducting himself, that, unless a manager was ap- pointed before the hearing, the partnership concern might in the mean time be destroyed. In such case the court would appoint an interim receiver and man- ager^/) A receiver would also, there is no reason to doubt, be appointed, although the dissolution of the partnership were not sought, in a case where the ques- tion was one of the receipt of money only, where, (6) Hall v. Hall, 3 Mac. & G. (d) Waters v. Taylor, 15 Yes. 86 ; see Goodman v. Whitcomb, 13. 1 J. & W. 593. (e) Goodman v. Whitcomb, 1 (c) Goodman v. Whitcomb, 1 J. & W. 592 ; Roberts v. Eber- J. & W. 589 ; Hall v. Hall, 3 hardt, Kay, 148. Mac. & G. 79 ; Roberts v. Eber- (/) Hall v. Hall, 3 Mac. & G. hardt, Kay, 148. 91. 94 BETWEEN PARTNERS. if the money were allowed to be received by the par- ties, it w r ould not be applied to its proper purposes, and thus at the hearing there would be a failure of justice, unless the court interposed in the mean time.Q/) In Const v. Harris,(h) Lord Eldon said that a re- ceiver might be appointed in a suit where a decree could be made for carrying on the concern according to the terms of some specific instrument, which by the agreement of the parties was to regulate the mode of its being carried on, as well as in a suit for wholly putting an end to the concern ; and a receiver was ap- pointed in that case, although a dissolution was not sought by the bill. The case itself was a peculiar one. The proprietors of a theatre had executed a deed by which they covenanted and agreed that the profits of the theatre should be exclusively appropriated to par- ticular purposes, and that the treasurer for the time being should be irrevocably directed so to apply the profits. Some years afterwards the parties entitled to seven-eighths of the theatre entered into an agreement which provided in some respects for a different appli- cation of the profits, and otherwise affecting the rights of a party interested in the remaining one-eighth, who ■was not consulted on the subject, and upon tin; appli- cation of that part}' for the specific performance of the covenants and agreements of the original deed, a receiver was appointed. The receiver was a receiver wholly unconnected with the management. Hisoffice {g) Hall v. l/nii. :: Mac. & G. (/■) T. ft R. 517. 90. BETWEEN PARTNERS. 95 was purely a ministerial one. He was to receive alj that persons paid for their entrance to the theatre, and to apply it according to certain terms and pro- visions which the parties themselves had agreed on.(i) It is not necessary that the Bill should Pray a Dissolu- tion.— It is not necessary, in order to induce the court to appoint a receiver, that the bill should expressly pray for a dissolution. It is enough that it be plain that it is necessary to put an end to the eoncern.(/fc) If such be the case, the case stands upon precisely the same basis as if the bill had been filed exclusively for the purpose of the dissolution and the winding up of the concern.(7) The court will, in all cases, entertain an application for a receiver, if the object of the suit is to wind up the partnership affairs, and the appoint- ment of a receiver is sought with that view. 1 Thus in Sheppard v. Oxenford(m) a bill was filed on behalf of himself and other shareholders, by a shareholder in the National Brazilian Mining Company, against the defendant, its sole director and manager, praying for an account of moneys received and paid by the directors on behalf of the association, and of its debts and the payment thereof out of the assets of the-com- pany, and for a division of profits among the share- (t) See Hall v. Hall, 3 Mac. {I) Hall v. Hall, 3 Mac. & G. & G. 90. 89. (£) Wallworth v. Holt, 4 M. & (m) 1 K. & J. 491. C. 619. 1 See Iowa Code, Sect. 1656 ; also Saylor v. Mockbie, 9 Withrow (Iowa), 209 ; Hubbard v. Curtis, 8 Clark (Iowa), 1. 96 BETWEEN PARTNERS. holders. The bill also prayed for an injunction to restrain the defendant from selling the property, aud for a receiver to get in the debts owing to the company, and all remittances made to it from abroad, and gene- rally to conduct the business and affairs of the associa- tion, until the accounts should be taken. JSTo dissolu- tion was expressly asked for, but the whole object of the suit evidently was to wind up the company, and have its assets applied in liquidation of its liabilities ; and on a motion by the plaintiff for an injunction and a receiver, an injunction was granted, and a receiver and manager was appointed as prayed by the bill. The defendant, who had gone out to the Brazils after the bill had been filed, was appointed receiver and manager out there.(n) Again, in Evans v. Coventry, (6) the members of two societies, or rather, it would seem, of one society having two branches of business, viz., a loan branch and an insurance branch, filed a bill for the purpose of having the funds of the societies made good by the defaulting directors, and of having the accounts in- vestigated, the affairs of the societies wound up, if necessary, and their assets in the mean time protected by the appointment of a manager and a receiver. It was proved that some of the funds had already been made away with by the secretary ; and a manager and receiver was appointed to protect what remained until the hearing of the cause, upon the ground that the (n) lb. .001. (o) 5 D. M. X- (i. 911, revers- ing 3 Drew. 75. BETWEEN PARTNERS. 97 plaintiffs had an interest in the funds in question, and that the funds were in danger of being lost. It does not appear very distinctly what the manager as dis- tinct from the receiver was expected to do. The Vice- Chancellor refused the motion, mainly on the ground that he could not take upon himself the management of such societies even until the hearing of the cause. The Court of Appeal did not allude to this. The mere Fact that the Bill may Pray a Dissolution is not enough unless there be a Case for Dissolution.— The mere fact that the bill may pray a dissolution is not a sufficient ground for the appointment of a receiver unless a state of facts is shown upon the bill as will, if proved at the hearing, entitle the plaintiff to a decree for dissolution.^;) 1 The court will not upon motion appoint a receiver, unless it sees that there is an actual present dissolution arising from the acts of the parties, (p) Goodman v. Whitcomb, 1 Beav. 503 ; Roberts v. Eberliardt, J. & W. 589 ; Smith v. Jeyes, 4 Kay, 148. 1 Even when a dissolution is contemplated by the decree, and there is a disagreement ainoug the partners, it is not in all cases proper to appoint a receiver. In Slemmer's Appeal, 58 Penna. St. R. 168, the court directed that the assets of the firm should be transferred to that one or more of the partners who should pay or secure to be paid, within a reasonable time, the highest price for the same, and that upon such assignment and transfer the partnership should be dissolved. " Where a valuable business," said Sharswood, J., " has grown up by the joint labors and contributions of all, the court should be careful to preserve it if possible, and to put all the parties upon a fair and equal footing in competing for it. To appoint a receiver, to direct a sale of the whole, and a winding up of the business, would destroy its value without benefiting either party." 7 98 BETWEEN PARTNERS. or that at the hearing it will dissolve the partnership. If there has been no misconduct, or no such violation of the articles as to entitle the plaintiff to a dissolu- tion, a receiver will not be appointed. (g) If, however, the court sees its way to a dissolution at the hearing, there is a case for a receiver.(r) 1 If the case made stands in such a state that the court cannot see whether or not there shall be a decree for dissolution at the hearing, it will not take into its own hands the conduct of a partnership which only may be dissolved. (s) If the partnership is a continuing one and may con- tinue, a receiver will not be appointed. If partners agree upon a term for the partnership to continue, neither partner can dissolve the partnership until the end of the term. But if there be misconduct, the court can and will before the term expires appoint a receiver, and will, though disinclined to such orders, appoint a receiver on interlocutory application. But the case then to be made must not be one raising merely a question whether there is or is not miscon- duct as between the partners. The court must, espe- cially if there be no term, see its way to a dissolution at the hearing.(J) The question whether there is or is ( 7 ) Baxter v. West, 28 L. J. (0 Baxter v. West, 28 L. J. Ch. L69. Oh. 1C9; see Waters v. Taylor, (r) Marsdenv. Kaye, 30 L.T. L5 Ves. 25; Baily v. Ford, L3 197. Sim. 495; 12 L. J. Ch. 482; (s) Goodman v. Whitcomb, 1 Bmoker v. Henry, 6 L. T. N. S. J. & W. 592. 43. Oowan v. Jeffries, 2 Ashmead, 296. BETWEEN PARTNERS. 99 not a term, is one proper at the hearing, and is not one that the court will try on an interlocutory application. If there is not sufficient to enable the court upon the interlocutory application to say that at the hearing it will appear there was a term, a receiver will not be appointecl.(w) Receiver not Ordered in every Case where a Case for Dissolution is made. — The court will not, as a matter of course, appoint a receiver of the partnership assets, even where a case for dissolution is made.(a:) The very basis of a partnership contract being the mutual confidence reposed in each other by the parties,(?/) the court will not appoint a receiver in a suit between members of the partnership firm, unless some special ground for its interference be established.^) 1 It must appear that the member of the firm against whom the appointment of a receiver is sought has done acts- which are inconsistent with the duty of a partner, and are of a nature to destroy the mutual confidence which ought to subsist between the parties.(a) 2 (u) Baxter v. West, 28 L. J. Bro. C. C. 272 ; see Peacock v. Ch. 169 ; see S. C. at the hearing, Peacock, 16 Yes. 51. 1 Dr. & Sni. 175 ; Bowker v. (z) Harding v. Glover, 18 Henry, 6 L. T. N. S. 43. Yes. 281. (x) Harding v. Glover, 18 (a) Smith v. Jeyes, 4 Beav. Yes. 281 ; Fairburn v. Pearson, 505 ; see Peacock v. Peacock, 16 2 Mac. & G. 145. Yes. 51 ; Chapman v. Beach, 1 (y) Philipps v. Atkinson, 2 J &. W. 594 n. 1 See Terrell v. Goddard, 18 Georgia, 664, where a receiver was refused ; as also in Parkhurst v. Muir, 3 Halsted, C. R. 307; Tom- linson v. Ward, 2 Conn. 396; and Slemmer's Appeal, ante, p. 97. 1 The doctrine on this subject is well illustrated by the case of Williamson v. Wilson, 1 Bland, 418, and the law well stated by the 100 BETWEEN PARTNERS. Death or Bankruptcy of one Member of a Firm not a Ground for a Receiver.— The death or bankruptcy of one of the members of a firm is not of itself a ground for the appointment of a receiver as against the sur- viving or solvent partner or partners. The mutual confidence which the members of the firm reposed in each other at the date of the contract, and which formed the very basis of the partnership contract, is not as regards the surviving or solvent partner or part- Chancellor (p. 426), in commenting upon the facts of that case. " These parties," he says, " admit themselves to be insolvent debtors. The plaintiff charges his copartners, the defendants, with a design to waste the joint property and apply it to their own use. The defend- ants deny these allegations, and charge the plaintiff with a design to misapply the funds, and to give some of the creditors an undue preference. Taking the charges of the plaintiff and of the defend- ants, or of either party, 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 principles of equity, which it is the peculiar province of this court to prevent. None of the creditors of these insolvent debtors, so far as it appears, have as yet obtained any legal advantage. It is proper, therefore, that this court should now lay its hands upon the joint property of this partnership, and let all its creditors come in pari i^assu, and according as their respective priorities, if any, should appear. Both parties profess to have had this equitable distribution in contemplation ; both acknow- ledge themselves to be in that insolvent condition, in which the making of such an equitable distribution has devolved upon them as a duty. And each charges the other with having made an effort and formed a fixed design to disregard this duty. Neither of them seems to have the least confidence in the other. Under all these circumstances, 1 consider this as a case in which if is peculiarly fit and proper that a receiver should have been appointed before answer, :ind should now be continued as a means of winding up the affairs of this partnership in safety, and with justice and equality to all concerned." Sec also Randall v. Mm-rrll, 2 0. E. Green, 346. BETWEEN PARTNERS. 101 ners affected by the death or insolvency of one of the members of the firm. (7/) If a partner dies,(c) or be- comes bankrupt,(c/) a right to wind up the partnership concern and collect the assets is by law vested in the surviving(V) or solvent(/) partner or partners, as the case may be. Before the court will interfere and ap- point a receiver, some breach or neglect of duty on their part must be established. [g) x The reasoning on which the court proceeds in refus- ing to appoint a receiver at the suit of one member of a firm against another, does not apply to the case of persons who acquire an interest in the partnership assets by events over which the parties have no con- (6) See Philipps v. Atkinson, Sra. & G. 487; Fraser v. Ker- 2 Bro. C. C. 272. shaw, 2 K. & J. 499. (c) Collins v. Young, 1 Macq. (g) Collins v. Young, 1 Macq. 385. 385. The Court of Probate will (d) Fraser v. Kershaw, 2 K. not appoint a receiver pendente & J. 499. lite against a surviving partner, (e) Collins v. Young, 1 Macq. unless under very special cir- 385 ; see Philipps v. Atkinson, 2 cumstances. Horrell v. Witts, Bro. C. C. 272. L. R. 1 Pr. & Div. 103. (/) Freeland v. Stansfield, 2 1 See Renton v. Chaplain, 1 Stockton, 62, and Walker v. House, 4 Maryl. C. Dec. 45 ; Hamill v. Hamill, 27 Maryl. 679. But a receiver will be appointed as a matter of course, at the suit of the representative of a deceased partner, against a surviving partner, when the latter has been guilty of gross and flagrant violation of duty, such as making a fraudulent conveyance of the partnership assets, abscond- ing from creditors, &c. Such was the case in the firm of Gardner & Brother, whose receiver filed the bill in Tillinghast v. Champlin, 4 B. Island, 173. And so also where the surviving partner neglects and refuses to settle up the business of the concern within a reason- able time. Holden v. McMackin, 1 Pars. Sel. Eq. Cas. 270 ; Miller v. Jones, 39 Illinois, 54. 102 BETWEEN PARTNERS. trol. If a member of a firm dies, or becomes bankrupt, the partnership is determined, as far as his representa- tives or assignees in bankruptcy are concerned. The representatives of a deceased partner and the assignees of a bankrupt partner are not strictly partners with the surviving or solvent partner or partners ; but are only tenants in common with them to the extent of the interest which the partner whom they represent had in the partnership assets at the time of his death or bankruptcy, as the case may be.(A) It is conse- quently a matter of course to appoint a receiver when all the partners are dead, and a suit is pending between their representatives;^') or when such appointment is sought by a partner against the representatives or assignees in bankruptcy of his late copartner^/:) Fra- ser v. Kershaw{l) is a good illustration of the doctrine. There one partner had become bankrupt ; the share of the other partner had been taken in execution under a f. fa. for a separate debt, and had been assigned to his creditor by the sheriff. The creditor, as the assignee of the sheriff of all the share and interest of the non-bankrupt partner, claimed the right of wind- ing up the affairs of the partnership, and to exclude the assignees of the bankrupt partner from interfering. But, on bill filed by them against the judgment credi- tor, the court granted an injunction and appointed a receiver, holding that the right of the non-bankrupt (A) /•;./■ parte Williams, 11 (/') Philippa v. A/Li/ison, 2 Vcs. 5, <*i ; Wilson v. Greenwood, Bro. 0. 0. 272. 1 Sw.480; Fraserv. Kershaw, I {/>■) Freeland v. Stansfield, 1G K. A: .). 499. Jur. 792 ; 2 Sin. & U. 471). (/) 2 K. & J. 496. BETWEEN PARTNERS. 103 partner to wind up the affairs was personal to himself and was not transferable, and did not, therefore, pass with his shares and interest in the partnership assets. Misconduct of Partner a Ground for a Receiver.— The ground on which the court is most commonly asked to appoint a receiver is where by the misconduct of a partner his right of personal intervention in the part- nership affairs has been forfeited, and the partnership funds are in danger of being lost. Mere quarrels and disagreements between the partners, arising from in- firmities of temper, are not a sufficient ground for the interference of the court. (m) 1 The due winding up of the affairs of the concern must be endangered to induce the court to appoint a receiver.(?i) The non-coopera- tion of one partner, whereby the whole responsibility of management is thrown on his copartner, is not sufiicient.(o) 2 "Where, however, a partner has so misconducted himself as to show that he is no longer to be trusted ; as, for example, if one partner colludes with the debtors of the firm, and allows them to delay paying their (m) See Goodman v. Whit- comb, 1 J. & "W. 593; Smith v. comb, 1 J. & "YV. 593 ; Chapman Jeyes, 4 Beav. 505. v. Beach, lb. 594 n. ; Marshall v. (o) Roberts v. Eberhardt, Colman, 2 J. & W. 266; Smith Kay, 148; see Roive v. Wood, 2 v. Jeyes, 4 Beav. 504. J. & W. 556, where one partner (») See Goodman v. Whit- declined to advance more money to work a mine. 1 Henn v. Walsh, 2 Edvv. C. R. 129. 2 See Smith v. Lowe, 1 Edw. C. R. 33. 104 BETWEEN PARTNERS. debts ;(p) or is carrying on a separate trade on his own account with the partnership property;^) or if a surviving partner insists on carrying on the business and employing therein the assets of his deceased part- ner;^') 1 or where, the partnership property being abroad, one of the partners goes off in order to do what he likes with it ;(s) or if the persons having the control of the partnership assets have already made away with some of them ;(t) or if there has been such mismanagement as to endanger the whole con- cern ;(w) or if one of the partners has acted in a manner inconsistent with the duties and obligations which are implied in every partnership contract;^) 2 in all such cases a receiver will be appointed. The unwillingness of the court to appoint a receiver at the suit of one member of a firm against another, being based on the confidence originally reposed in each other by the parties, the ground of the rule has no longer any place if it appear that the confidence (p) Estwiclc v. Conningsby, 1 (t) Evans v. Coventry, 5 D. Tern. 118. M. & G. 911 (q) Hardingv. Glover, 18 Vcs. (u) See De Tastet v. Bordieu, 281. cited 2 Bro. C. C. 272 ; Jcfferys (>•) Madgwick v. Wimble, 6 v. Smith,! J. & W. 298 j Hall Beav. 495; see Crawshay v. t. Hall, 3 Mac. & G. 79; see Maule, 1 S. W. 507. Chaplin v. Young, G L. T. N. S. (.s) Sheppard v. Oxevford, 1 97. K. & J. -l'.n. (.>:) Smith v. Jcycs, 4 Beav. 505. 1 Holden v. McMakin, ] Pata. Sel. Eq. Oas. 270 ; Miller v. Jones, :;'.» I Hindis, 54. « Sir Saylor \. Mockbie, 9 Withrow (la.), 209 ; Boycc v. Bur- chard, 21 Georgia, 74. BETWEEN PARTNERS. 105 has been misplaced.(a) Where, accordingly, a defend- ant, by false and fraudulent representations, induced the plaintiff to enter into partnership with him, and the plaintiff soon afterwards, on discovering the fraud, filed a bill praying that the partnership might be declared void and for a receiver, the court on motion ordered that a receiver should be appointed. (b) There is a case for a receiver, even although there be no misconduct endangering the partnership assets, if one partner excludes another partner from the management of the partnership affairs.^) 1 This doc- trine is acted on where the defendant contends that the plaintiff is not a partner,^) or that he has no interest in the partnership assets.(e) In Hale v. Hale,(J) where the defendant sought to exclude the plaintiff from all interest in the partner- (rt) See Chapman v. Beach, 1 therefore be a foundation for a J. & W. 594 n. receiver; Kershaw v. Matthews, (b) See Ex parte Broome. 1 2 Russ. 62. Rose, 69. [d) Peacock v. Peacock, 16 (c) See Wilson v. Greeniuood, Yes. 49; Blakeney v. Dafaur, 1 Sw. 481; Goodman v. Whit- 15 Beav. 40. comb, 1 J. & W. 592 : Bowe v. (e) Wilson v. Greenwood, 1 Wood, 2 J. & W. 558 ; Const v. Sw. 471, where the plaintiffs were Harris, T. & R. 525. A dissolu- the assignees of a bankrupt part- tion which takes place on the ner. See also Clegg v. Fishwick, refusal of an appointee under a 1 Mac. & G. 294, where the will to become a partner is not a plaintiff was the administratrix dissolution arising from the ex- of a deceased partner, elusion of the appointee by the (/) 4 Beav. 369. surviving partner, and will not 1 See Maynard v. Bailey, 2 Nevada, 313-318; Shulte v. Hoff- man, 18 Texas, 678 ; Hottenstein v. Conrad, 9 Kansas, 435 ; Sei- bert v. Seibert, 1 Brewster, 531 ; and Page v VanJcirk, Id. 287. 106 BETWEEN PARTNERS. ship assets, and relied on illegality as a defence to the suit, a receiver was appointed. In that case the plaintiff and defendant had carried on the business of brewers for many years in partnership together. The plaintiff filed a bill for a dissolution, and the defendant then denied the plaintiff's right to any account or relief whatever, on the ground that he being a spiritual person was not competent by law to engage in any trading concern, and claimed the whole property him- self. A receiver and manager was appointed on the ground that the defendant insisted on a legal objection as destroying all right of his copartner to a share in the profits, although the plaintiff was only a dormant partner, and the defendant's management of the busi- ness was in no way complained of.(^) Inasmuch as the court will not appoint a receiver against a partner, unless some special ground for doing so can be shown, it follows that in a firm of several members there is more difficulty in obtaining a re- ceiver than in a firm of two. For the appointment of a receiver operating in fact as an injunction against the members, there must be some ground for excluding all who oppose the application. If the object is to exclude some or one only from intermeddling, the appropriate remedy is rather by injunction than by a receiver.(/i) (f/) See :iVm)SIh jijuirif v. Oxen- the legality of the partnership ford, I K. 9 ; Lees v. Jones, 3 Jur. necessity for such cutting in order N. S.954. A colliery partnership to carry on the concern. Lees v. having been dissolved by decree, Jones, 3 Jur. N. S. 954. and the sale of the colliery as a (p) 2 J. & W. 553. going concern directed, the court (q) 19 Vcs. 159. will not, until it is found impos- '_' Nevada, 313; see also in this connection, O'firyati v. Gibbons, 2 Alaryl. Ch. Dec. 9. BETWEEN PARTNERS. 109 some time, and had taken no steps to assert his rights until the mine proved profitable. (V) In Rowland v. Williams,(s) where one of the part- ners in a mining concern had become a lunatic, the court would not appoint a manager to carry on the business, but ordered a sale, and appointed an interim manager only. Partner appointed Receiver.— If the court, on being applied to for the appointment of a receiver, thinks that a proper case for such appointment is made, and the partner actually carrying on the business has not been guilty of such misconduct as to have rendered it unsafe to trust him, the court generally appoints him receiver and manager without a salary. (t) It is usual, however, to require him to give security duly to manage the partnership affairs, and to account for moneys re- ceived by him.(w) In other cases the appointment of a receiver is referred by the judge to the chief clerk, and leave is frequently given for each partuer to pro- pose himself. A partner who is appointed receiver becomes the officer of the court, and must act and be regarded accordingly.^) (?•) See Clegg v. Edmondson, (u) Wilson v. Greenwood, 1 8 D. M. &. G. 808. Sw. 471 ; Blakeney v. Dufaur, 15 (s) 30 Beav. 310. Beav. 44. {t) Wilson v. Greenwood, 1 (x) See Blakeney v. Dufaur, Sw. 471 ; see Maund v. Allies, 4 15 Beav. 43. See as to forms of M. & C. 507 ; Sheppard v. Oxen- order for a receiver, Set. ou Deer. ford, 1 K. & J. 501 ; Hoffman v. 1030, 1032 ; Wilson v. Green- Duncan, 18 Jur. 69. wood, 1 Sw.484. (See Appendix.) 110 BANKRUPTCY. Order.— In cases where a receiver is appointed, of partnership property, the order should direct the other partners and all other parties to deliver over to the receiver all securities in their hands for such estate or property, and also the stock in trade and effects of the partnership, together with all books and papers relating thereto.(y) The court may abstain from making an order for the delivery of partnership books and papers if there is no necessity for it, and it would occasion inconvenience.^) SECTION XL — IN CASES OF BANKRUPTCY. 1 If an equitable case can be made out, the Court of Chancery will interfere in aid of the Court of Bank- ruptcy.^) It is in many cases impossible to arrive at any safe conclusion upon the question of debt or no debt by any other means than a bill in equity. What, too, is joint and separate estate, whether or not specific property is part of the bankrupt's estate, or whether the assignees are about to give to one class of creditors property which belongs to another, or whether the (?/) Set. on Deer. 1002, 1030, {a) Pennell v. Roij, 3 D. M. & 1031. 0.137. (z) Dacie v. John, McOlell. 206. 1 The position of a receiver in bankruptcy (appointed under the English Bankruptcy rules) is not the same as that of a receiver in chancery. \ landlord may distrain against him. Ex 'parte Till, Re May hew, 42 L. J. Rep. N. S. 84. BANKRUPTCY. Ill creditors are not entitled to proceed in equity to prove that they are creditors upon the estate, are questions that must often be decided by other courts.(ft) But as soon as it has been determined what is the bankrupt's estate, the whole administration of it falls under the jurisdiction of the Court of Bankruptcy. A court of equity has no jurisdiction to interfere in the mere dis- tribution of the estate on the ground of trust or other- wise.^) The Court of Chancery has jurisdiction to preserve property for the purpose of handing it over to the Court of Bankruptcy, but it is not the proper court to deal with the proofs of creditors, or with the administration and distribution of property when secured and capable of being dealt with by the Court of Bankruptcy. (d) 1 (b) Thompson v. Derham, 1 Ha. 358 ; Half or cl v. Gilloiv, 13 Ha. 373 ; see Meux v. Smith, 1 Sim. 44. M. D. & D. 396 ; 2 M. D. & D. (d) Etches v. Owen, 16 W. R. 789. 964. (c) Thompson v. Derham, 1 1 Under the Act of Congress of March 2, 1867, " To establish a uniform system of bankruptcy throughout the United States," the appointment of a receiver is not an ordinary step, as it is not usually necessary for the preservation of the property of the bankrupt or alleged bankrupt. That end is ordinarily attained through the powers conferred upon the marshal under the proper order of the court. Cases, however, have arisen in which the appointment of a receiver has been held to be eminently proper. Such was Sedgwick v. Place, 3 Bank. Reg. 35. In this case P. and S. had made an as- signment to another for the benefit of creditors. They were subse- quently adjudicated bankrupts, and Sedgwick became their assignee in bankruptcy. The bill was filed to set aside the assignment for the benefit of creditors. An injunction was granted restraining the assignors and assignees from interfering with or disposing of the property, aud, at a subsequent stage of the cause, a motion was made 112 BANKRUPTCY. The Court of Chancery has no jurisdiction to ad- minister assets subject to a trust deed registered under the Bankruptcy Act, 1861. The court will not, at the instance of creditors, appoint a receiver over the trus- tees of such a deed, except where a very special case for such appointment is made out.(e) In Riches v. Owen(f) a receiver was appointed ; but the bill in that (e) Bell v. Bird, lb. 1 165. (/) lb. 964, on Appeal, L. K. 3 Ch. App. 821. for a receiver. It appeared by affidavits that certain debts due the bankrupts were withheld by the debtors in consequence of this con- flict between the two sets of assignees. It was held (by Blatchford, J.) that the appointment of a receiver was a proper and necessary measure. " By the injunction granted by this court on the bill, and which the defendants have not moved to vacate or to modify, the voluntary assignees are restrained from in any manner interfering with the property in question. They, therefore, cannot lawfully collect any of the debts or realize any of the assets, nor can they meddle with the property even to secure it from loss. ... A re- ceiver who will represent the conflicting titles to the property ought to be put into possession of it, that he may effectually collect all the debts which are collectible, and sell, if necessary, with a clear title, the merchandise which is on hand." So, also, in Barnes v. Rettew, 28 Leg. Int. 125, where a bill was filed by an assignee in bankruptcy to set aside a prior assignment for the benefit of creditors, the court said in their opinion (delivered by Cadwalader, J.) that in such a case an injunction would be granted and a receiver appointed, when such a measure was required in order to prevent the purposes of the bankrupt law from being frustrated or impeded. And see Alabama §• Chattanooga R. R. Co. v. Jones, 5 Nat. Bank. Reg. 97 ; and Kcenan v. Shannon, 9 Id. 441. In this last case the Judge said : " I am generally averse to this course in bankruptcy, but where the apparent titles to property arc such on their face that the marshal cannot act efficiently under the usual warrant, a receivership may in some cases be indispensable." In some instances (not reported) 1 lie court has appointed a receiver to act as provisional assignee, pending the election of an assignee, when the exigencies of the case required such appointment. LUNACY. 113 case was filed by the trustees of the deed against the debtor, and the deed was a special one and contained peculiar covenants. The court appointed a receiver so as to preserve the property, and insure its being brought within the limits of the deed, but put the plaintiffs on an undertaking to abide by any directions the Court of Bankruptcy might give as to the property when received and secured. When assignees in bankruptcy possess themselves of effects which belong to the bankrupt as executor only, the court, on bill filed, will, to secure such effects, ap- point a receiver, to whom the assignees shall account for so much as they have got in of the testator's estate.^) SECTION XII. — IN CASES OF LUNACY. A receiver will be appointed over the estate- of a lunatic, iu cases where it is clearly shown that neither the heir at law nor any of the kin will act as committee, or can give the necessary security, and also* that no other person can be found who will act as committee and give the necessary security without being paid.(A) So, also, a receiver may be appointed where the commit- tee is infirm, or where the management of the estate is very onerous ;(i) or where the committee lives far from (g) Ex parte Tapper, 1 Rose, 621 ; Ex parte Radcliffe, 1J. & 179 ; 2 Madd. Ch. 641. W. 639. ■(h) Ex parte Warren,lOVes. (i) Re Birch, Shelf, on Lun. 187. 8 114 TENANTS IN COMMON. the estate.(Zr) 1 In one case, where it was thought expe- dient to appoint a receiver, and the person appointed as committee of the estate declined to act as committee if another person was appointed receiver, an inquiry was directed as to the propriety of employing the com- mittee in the latter capacity. (I) The expense of a receiver, it would seem, is not to be incurred in order that a person who cannot give security may be appointed committee.(m) Notwith- standing the appointment of a receiver, it may happen that a committee of the estate also is required for the more effectual management of the lunatic's property, granting of leases, or the performance of other legal acts which a receiver, not having the legal custody of the estate, is unable to fulfil. In such cases the com- mittee is restrained by the order appointing him from receiving any part of the lunatic's moneys, and gives usually nominal security only.(n) SECTION XIII. — IN THE CASE OF TENANTS IN COMMON. The court will not grant a receiver against a tenant in common in possession at the suit of another tenant in (k) lie Seaman, Shelf, on Lun. (n) Re Billinghurst, Amb.104 j 187. Re Radcliffe, 1J. & W. 639 ; 1 (/) Re Langham, 1 Jur. 281. Coop. 0. C. 250. (m) lie Frank, 2 Russ. 450. 1 In the case of Kenton (a lunatic), 5 Binncy, 613, a commission de lunatico inquirendo had issued, and the party had been found to be a lunatic, but the inquisition was not yet returnable. It being shown that the estate was suffering, and that there was no proper person to take care of it, the court appointed a receiver. TENANTS IN COMMON. 115 common, unless in case3 of destructive waste or gross exclusion.(o) 1 In Tyson v. Fair dough, {p) Sir J. Leach, M.R., expressed a doubt, whether, even in the case of an actual exclusion of one tenant in common by another, the court would appoint a receiver, when the party complaining has an estate which he can assert at law, upon the ground that he may relieve himself at law by writ of partition. But the remarks of his Honor do not seem to be borne out by the cases, if indeed they have not been misunderstood. (7) There are two cases in Dickens' Reports, Calvert v. Adams, {r) and Evelyn v. JEvelyn,(s) where a receiver was appointed of undivided estates. They were probably cases of an aggravated nature, warranting the interposition of the court. The ground for the order for a receiver in Street v. Anderton{t) does not appear. But it was said by the counsel in his argument, in Archdeacon v. Bowes, {u) that the reason of it was because the tenant (0) Norioay v. Roioe, 19 Ves. (q) See Searle v. Smales, 3 W. 159 ; see Scurrah v. Scurrah, 14 K. 437. Jur. 874; Sanford v. Ballard, (r) 2 Dick. 478. 30 Beav. 109; but see Searle v. (s) lb. 800. Smales, 3 W. R. 437. (t) 4 Bro. C. C. 414. (p) 2 Sim. & St. 142. («) 3 Anst. 752. 1 In Williams v. Jenkins, 11 Georgia, 595, it was held that the appointment of a receiver upon the application of one tenant in com- mon against his co-tenants, was proper in a case where the defend- ants were in possession of undivided valuable property, were re- ceiving the whole of the rents and profits, were excluding their companion from the receipt of any portion thereof, and were insol- vent. See also Low v. Holmes, 2 0. E. Green, 148 ; Delaware, Sfc. R. R. v. Erie R. R., 6 Id. 298 ; and Pignolet v. Bushe, 28 How. Pr. R. 9. 116 TENANTS IN COMMON. in common in possession took more than his share of the profits. In the notes to 4 Bro. C. C. 414, Bell states an anonymous case taken by himself before Sir "W. Grant, M.R., sitting for the Lord Chancellor, wherein a receiver was appointed on the motion of a younger brother against the eldest brother, who ex- cluded him on the ground that an agreement made between them to compromise adverse claims, and whereby the eldest brother and heir at law admitted his younger brother to a tenancy in common with him, was entered into while he, the eldest brother, was in a state of intoxication. In Milbank v. Hevett,(x) it seems to have been con- sidered that the principles upon which a receiver is appointed in partnership cases are also applicable to the case of tenants in common. But the case was very shortly and very loosely argued. There can be little doubt that such would not have been the opinion of the court, had the case been more fully argued.(?/) Exclusion, in the true legal sense of the word, is where one tenant in common receives the whole rents and profits, and refuses to pay over to his companion the share due him.(Y) A bare notice to the tenants by one tenant in common not to pay the rents any longer to the other tenant in common, is not an ex- clusion. A motion, therefore, for a receiver by one tenant in common, against his co-tenant, on the ground (x) 2 Mer. 405. (-.-) Tyson v. Fairclough, lb. ; (y) Tyson v. Fairclough, 2 Sandford v. Ballard, 33 Bcav. Sim. & St. U2,per Sir J. Leach, 401. M. It. TENANTS IN COMMON. 117 that the latter had advertised the estate for sale, and had given notice to the tenants to pay their rents to him alone, was refused hecause the conduct complained of did not amount to an exclusion. (a) It would seem that in the absence of exclusion, a receiver of the applicant's share of the rents and profits may be appointed ;(b) though Lord Northington ob- jected to appoint a receiver of an undivided moiety, because he cannot let, set, or distrain without the owner's consent. (c) Equitable Tenants in Common.— The same considera- tions are applicable to the case of tenancy in common in equitable estates. An equitable tenant in common is not entitled to have a receiver appointed as against his companion, unless there be exclusion. If the con- duct of the tenant in common in possession amounts to exclusion, or if the trustee puts him in possession of the whole estate to the exclusion of the other, a receiver of the whole property will be appointed. If there be no exclusion, a receiver of the applicant's share only will be appointed.^) 1 (a) Tyson v. Fairdough, 2 (d) Sanford v. Ballard, 30 Sim. & St. 142 ; but see Searle v. Beav. 109 ; 33 Beav. 401 ; see Smales, 3 W. E. 437. Street v. Anderton, 5 Bro. C. C. (b) Fall v. Elkins, 9 W. R. 414; Tyson v. Fairdough, 2 Sim. 861 ; see Hargrave v. Hargrave, & St. 145 ; Hargrave v. Har- 9 Beav. 549. grave, 9 Beav. 549 ; comp. Searle (c) Willoughby v. Willoughby, v. Smales, 3 W. R. 437. cited 2 Dick. 478. 1 In Ware v. Ware, 42 Georgia, 408, the complainant, a minor, had, in a previous suit, obtained a decree against the defendaut for a 118 TENANTS IN COMMON. Receiver not Appointed on Submission of Party.— In- stead of granting the order for a receiver, the court may order the tenant in common in possession to give security for payment of the due proportion of the rents to his co-tenant.(e) Some of the Tenants in Common Infants. — Where some of the tenants in common are infants, there ma} 7 he a receiver over the whole estate, with directions to pay to the adults their shares in the rents.(/) In a case where there was a dispute between tenants in common of real estate, in reference to the receipt of rents, and some of the parties interested were infants and other tenants for life, the court appointed one of the disputants, who had an estate for life, and another person nominated by the other parties, joint receivers of the whole estate.(^) If a receiver has been ap- pointed for the benefit of two infant tenants in com- (e) Street v. Anderton. 4 Bro. (g) Rimsden v. Fairthrope, 1 C. C. 414. N. R.389. (/) Smith v. Lyster, 4 Beav. 227. certain sum of money improperly appropriated by him, but which was directed, by its terms, to be charged upon certain real estate of the defendant, and to operate as a conveyance to the complainant of an undivided interest to that extent in the same. In the present bill the complainant alleged insolvency on the part of the defendant, that he had refused a sale, was in collusion with others and was committing waste. It was held that it was proper that the court should take possession of the property and compel all parties in in- terest to come forward and present their respective claims for adju- dication and settlement, and to thai end the cause was remanded to the Court below with directions to appoint a receiver. TENANTS IN COMMON. 119 mon, he will not be discharged as to the share of one of them who has attained his fall age. The object of appointment having been to protect the property during the infancy of both, and the purpose for which the receiver was appointed not having therefore been fully accomplished, the application for his discharge should be delayed until both are of age.(/i) The one who since the appointment of a receiver has become adult, may, however, apply for the payment of his share to himself.(T) Tenancy in Common when the Interest in Land is in the Nature of a Trade.— If the interest in land in which parties take as tenants in common is in the nature of a trade, a receiver will be appointed or refused on the same principles as in partnership cases. 1 Mines, for instance, are to be considered in the nature of a trade, and where persons have different interests, it is to be regarded as a partnership ; and the difficulty of knowing what is to 'be paid for wages, and the ex- penses of management, gives the court a jurisdiction as to the mesne profits which it would not assume in other lands.(/<:) 2 (7i) Smith v. Lyster, 4 Beav. (k) Jefferys v. Smith, 1 J. & 227. W. 298. (V) lb. 1 Where M. was interested in unimproved city lots jointly with D., who held the legal title and died having given his executors a power of sale, it was held that the power was subject to the control of the Court for M.'s benefit, and to that end a receiver was ap- pointed. Marvin's v. Drexel's Extrs., 18 P. F. Sm. 362. 2 See the language of the court in Hill v. Taylor, 22 Cal. 191. 120 POSSESSION UNDER A LEGAL TITLE. There are two ways in which a mining concern may be viewed ; it may be a mining concern really held as property by parties who have acquired it for the pur- poses of trade, as in a case where an estate containing mines has descended from the owners to two co-heirs ; and such owners, though they did not acquire it for mining purposes, may nevertheless agree to work the mines together with their joint property. That would be working the mines in partnership. There would be a partnership in the working, though not in the land. The other case would be one in which the whole property was intended to be used as a part- nership concern. In either case a receiver may be appointed upon the same principles as in other part- nership cases. (I) SECTION XIV. — IN THE CASE OF PARTIES IN POSSESSION OF REAL ESTATE UNDER A LEGAL TITLE. In what Cases a Receiver will not be Granted.— The court will not, at the instance of a person alleging a mere legal title against another party who is in possession of real estate, and who also claims to hold by a like legal title, disturb that possession by appointing a re- ceiver. There being open to the plaintiff a full and adequate remedy at law, he has no equity to come to the court for relief. The court cannot interfere with a legal title, unless there be some equity by which it can affect the conscience of the party in possession. (I) Roberts v. Eberhardt. Kay, 159, per Lord Ilatherley. POSSESSION UNDER A LEGAL TITLE. 121 "Where there is an entire want of privity between the parties, and the party in possession is simply a wrong- doer at law, the court will not take upon itself to inter- pose, unless in certain very exceptional cases. There may be cases in which the court would interfere to pre- vent absolute destructive waste, where the value of the property would be destroyed, if steps were not taken, or where the contest lies between a person having a well- established pedigree, and a person without any reason- able appearance of title ; but, as a general rule, where one person is in possession of the rents and profits of an estate, claiming to be the holder by a legal title, and another person claims to hold by a like legal title, the former cannot be ousted in this court until that legal title has been finally determined at law. 1 As re- gards the enjoyment of the ordinary rents and profits of an estate, the court has never assumed a right to interfere with that title which the law confers upon every terre tenant in possession of real property .(m) a (to) EarlTalbot v. Hope Scott, v. Duplessts, 1 Yes. 324 ; 2 Yes. 4 K. & J. 112; Carroivv. Ferrier, 360; Clark x. Dew, 1 R. & M. L. R. 3 Ch. App. 720 ; see Knight 109 ; Jones v. Jones, 3 Mer. 173. 1 This rule does not apply where the property is already in the custody of a receiver in suits between adverse claimants, and a third party, claiming adversely to all other litigants, asks that the receivership be continued. State of Tennessee v. J. C. Allen, 1 Cooper, 512. 2 See Hitchen v. BirTcs, L. R. 10 Eq. 471 ; Parkin v. Seddons, L. R. 16 Eq. 34; Schlecht's Appeal, 60 Penna. St. R. 176 ; Pfeltz v. Pfeltz, 14 Maryl. 376 ; Fellows v. Heermans, 13 Abb. Prac. Rep. (N. S.) 1. See, however, Rogers v. Marshall, 6 Abb. Pr. R. (N. S.) 457. 122 POSSESSION UNDER A LEGAL TITLE. The fact that the estates may be of great value makes no difference in the principle : nor can the argument that immediate injury will be occasioned in the loss of the rents and profits in case a receiver is not ap- pointed be listened to. The court might be inflicting as much injury by granting a receiver as by withhold- ing one.(?i) If the devisee of an estate obtains posses- sion by the tenants attorning to liim, he holds the estate till some other person can show that he, as heir or otherwise, has a better right to possession. (o) Un- less there be a case of collusion between the devisee and the tenants, in inducing them to attorn to him, there is no equity for a receiver.^) Nor is the fact that some of the tenants may not have attorned to the devisee in possession, a ground for granting a receiver of such rents.(g) In a case, accordingly, where a bill was filed alleging that the plaintiff' claiming a certain peerage was entitled to certain estates, as having been inalienably annexed to such peerage by Act of Parlia- ment, and praying for a receiver of the rents and profits of the estate as against the devisee of the late holder of the peerage, who had got into possession of the estates, a demurrer was allowed. (r) So, also, in a case where a party was in possession of property under a will, which he had established against the heir at law in a suit to which the plaintiff* was not a party, and the plaintiff* claiming as devisee under a prior will, and impugning the validity of the will under which (//) Earl Talbot v. Hope Scott, (?>) lb. 1 19. 4 K. & .1. 119. (q) lb. 120. (o) lb. 117. (r) lb. 96. POSSESSION UNDER A LEGAL TITLE. 123 the defendant claimed, has recovered a verdict at law, but the verdict had not been confirmed by judgment, the court would not, at the instance of the plaintiff, appoint a receiver, inasmuch as the possession of the defendant was not shown to have been obtained by violence or wrong, and he was in possession under the sanction of the court.(s) 1 The fact that the legal estate may be outstanding in trustees is immaterial to the question.(^) The exist- ence of outstanding terms makes no difference as to the appointment of a receiver, the course of the court being merely to put the outstanding terms out of the way, and not to treat them as introducing new equities.(tt) It is also immaterial to the question that the posses- sion may be vacant, and that the court may not be asked to turn any one out of possession. The law looks on a person in possession of real estate as enti- tled to keep it till some one else can show a better title. Though the court will interfere to protect per- (s) Bainbrigge v. Baddeley, 621 ; Wright v. Wilhins, 7 "W. R. 3 Mac. & G. 413 ; see also Lloyd 337. v. Passingham, 16 Ves. 70 ; Still- (t) Bainbrigge v. Baddeley, 3 well v. Wilkins, Jac. 282 ; Lan- Mac. & G. 413. cashire v . Lancashire, 9 Beav. (it) lb. ; Carroiv v. Ferrier, 1j. 127 ; Toldervy v. Colt, 1 Y. & C. R. 3 Ch. App. 728, per Lord Hatherley. 1 The general rule on this subject is followed in the United States. See Willis v. Corlies, 2 Edwards, C. R. 281 ; The Chicago, §•<;., Co. v. The U. S. Petroleum Co., 57 Penna. St. R. 83; Stuyvesant v. Davis, 9 Paige, C. R. 427 ; Kipp v. Hanna, 2 Bland, 26 ; Cofer v. Echer- son, 6 Clarke, 504; Brady v. Furlow, 22 Georgia, 613. 124 POSSESSION UNDER A LEGAL TITLE. sonal estate pending litigation as to probate, the case is different where real estate is the subject of contest. The court will not interfere as to real estate unless there is an equity.(a;) The fact that the party by whose decease the succes- sion has opened may have been a lunatic does not affect the principle. Nor is any equity raised by the circumstance that the person who has been solicitor to the committee of the deceased lunatic was acting as the solictor of the party who had got possession, and had induced the tenants to attorn to him, nor by the circumstance that some of the tenants had been in- duced to attorn by the party who had taken posses- sion, granting them leases on very favorable terms. Q/) In what Cases the Court will appoint a Receiver against the Legal Estate.— The court will, however, interfere with the possession of a party holding under a legal title, by appointing a receiver, if a good equitable case be made to appear. If the court is satisfied, upon the pleadings and the materials it has before it, that the relief prayed by the bill will be given at the hearing, and that it is necessary, expedient, or equitable that the property in question should be secured until the hearing, there is a case for a receiver.(^) A receiver, according^ will bo appointed against a party having (x) lb. 729. Ves. 70 ; StUlwell v. Will-ins, Jac. [y) lb. 720. 282 ; Clark v. Dew, 1 R. & M. (z) Mordaunt v. Hooper, Amb. 103 ; George v. Evans, 4 Y. & C. 311 ; Hugueninv.Basley, 13 Ves. 2U ; Baiubrigge v. Baddeley, 3 107; Lloyd v. Passingham, 16 Mac. & G. 420. POSSESSION UNDER A LEGAL TITLE. 125 the legal title, if a case of fraud be made out to the satisfaction of the court.(a) 1 Where, for example, a man who had taken a lease of copyholds during the widowhood of a woman who was entitled thereto for her widowhood, had concealed the death of the widow, and, taking advantage of the loss of the court rolls, pretended that the premises were freehold, and had descended to him as heir, Lord Hardwicke granted a receiver.(6) So, also, in a case where a bill was liled impeaching a sale of land on the ground of fraud, and alleging gross inadequacy of consideration and undue influence, the court appointed a receiver in a suit in- stituted against the devisees of the party charged with fraud.(. Bui as a general rule snch an application will be refused; Chicago, Ac Co. v. U. ^. Petroleum Co., 7 P. P. Sm. 83. POSSESSION UNDER A LEGAL TITLE. 127 rent-charge, refuse to pay the rent-charge, a receiver will be appointed. (A) So, also, where a judgment creditor had obtained possession of land under an elegit, a receiver was appointed at the suit of an equita- ble mortgagee by deposit of deeds, whose security was prior in date to the recovery of the judgment debt.(f) The rule that a receiver will not be appointed when the party having the legal estate is in actual possession of the property, does not apply where the party in possession is merely so upon execution under a judg- ment. In such case, a creditor having taken out execution cannot hold property against an estate created prior to his debt.(Zr) 1 (h) lb. ; see Shec v. Harris, 1 728 ; Andersonv. Kemshead, 16 J. &. L. 92. Beav. 344. (») Whttworth v.Gaugain, Cr. (k) Supra, p. 58. & Ph. 325 ; 3 Ha. 416 ; 1 Ph. 1 In some States there are statutes providing that where a party to a civil action shows a probable right to the property which is the subject of the action, a receiver will, under certain circumstances, be appointed. This provision in the New York Code of Procedure has been held to apply to actions to recover the possession of real estate ; Ireland v. Nichols, 37 How. Pr. R. 222. In this case the previous decisions of Thompson v. Sherrard, 12 Abb. Pr. R. 427, 35 Barb. 593, and The People v. The Mayor of New York, 10 Abb. Pr. R. Ill, were not approved. See also p. 9, ante, note 1, as to the Iowa and California statutes on this subject. CHAPTER III. OVER WHAT PROPERTY A RECEIVER MAY BE APPOINTED. A receiver may be appointed of the rents and profits of real estate, and also of all personal estate which may be taken in execution at law.(a) 1 In all cases where execution may be had at law by writ of Ji. fa. or elegit, it is competent to a court of equity to grant a receiver.(6) The appointment of a receiver is not limited to such property as may be taken in execution at law, but extends to whatever is considered in equity as assets.(e) Salaries, &c— There cannot be a receiver of the pay or halt-pay of officers in the army or navy, for the assignment of such moneys is void upon the grounds of public policy. () 1 Sw. 83 ; 2 Sw. L32. v. Moore, '.'<~ Penna. St. II. (r) Blanehanl v. Cawthome, 217J; Over tithes. Lumber;/ v. 4 Sim. 572. Helaham, l lr. Ch. 033; and (d) See 2 Beav. 549. 1 Sec Hudson v. PUts, 11 Paige, 0. E. 183. OVER WHAT A RECEIVER MAY BE APPOINTED. 129 a sum is annually voted by Parliament for the pur- pose.^) 1 The salaries of officers in the public service, indeed, do not appear under any circumstances to be assignable, where the payment is to enable the grantee to perform future duties, and the emoluments of the office are considered necessary to the due discharge of the duties.(/) There may be a receiver of the office of Master Forester of a Royal Forest.(^) In Palmer v. Vaughan,(h) 2 the profits of an office of clerk of the peace having been assigned for the benefit of creditors, a receiver was appointed pending the question as to the validity of the assignment. 3 (e) Cooper v. Reilly, 2 Sim. Moo. 28 ; Hill v. Paul, 8 CI. & 564; 1 E. & M. 560; see 2 Fin. 307. Beav. 550. (g) Blanchard v. Caivthome, (/) See Palmer v. Bate, 6 4 Sim. 566. (7i) 3 Sw. 173. 1 In Stone v. Wetmore, 42 Georgia, 601, the court refused to appoint a receiver pending a controversy, under a quo warranto, between one in possession of a public office (that of ordinary) and a claimant thereto. 2 In Tappan v. Grey, 9 Paige, 0. R. 507, a flour inspector had been illegally appointed by the Governor of New York during the recess of the Senate, and was in the actual discharge of the duties of the office. The former inspector filed a bill claiming the right to hold over until a successor was duly appointed by the Governor with the consent of the Senate, and praying that a receiver might be ap- pointed. It was held that the court had no jurisdiction to appoint a receiver to discharge the duties of the office until the rights of the parties could be legally determined, or to receive the fees and emolu- ments of the office in the mean time. 3 In Pennsylvania, in cases of contested elections in Philadelphia County, the Court of Common Pleas is directed, upon the applica- tion of any citizen, to appoint a receiver to take the fees and emolu- ments of the office. Purdon's Digest, 586, \ 261. 9 130 OVER WHAT A RECEIVER Pensions.— A receiver will be appointed over pensions which may be lawfully assigned. (0 There may be a receiver of a government pension for past services.(Z;) There cannot, however, be a receiver of a pension granted as well to support the grantee in the perform- ance of future duties as for past services.(?) Heirlooms.— A receiver will be appointed of heir- looms or of articles specifically bequeathed by will.(m) Rates, Tolls, &e.— There can be no receiver of rates which are to be assessed at a future period, for until the assessment there is nothing to collect.(n) The case of tolls is different from the case of rates. Tolls being a fixed payment and in the nature of a rent, there may be a receiver of the tolls of turnpike roads, or of canal or railway, dock or market companies. (o) 1 The appointment of a receiver of a public undertaking which is carried on by trustees or rather empowered by statute, does not supersede the powers of the act or (t) Healdv. Hay, 3 Giff. 467. 11 Ha. 251; per Lord St. (A) Noad v. Backhouse, 2 Y. Leonards. & C. C. C. 529. (o) Knappv. Williams, 4Ves. (I) Davis v. Duke of Marl- 429 n. ; Dumville v. Ashbrook, borough, 1 Sw. 74, 79; see 2 3 Russ. 98 n. ; Drewry v. Barnes, Beav. 549. 3 Russ. 105 ; Potts v. Warwick (m) Earl of Shaftesbury v. and Birmingham Canal Co., Duke of Marlborough, Set. on Kay, 142 ; Ames v. Birkenhead Deer. 1025. Docks, 20 Beav. 332 ; De Winton (n) Drewry v. Barnes, 3 Russ. v. Mayor fyc. of Brecon, 26 94 ; but see Gibbons v. Fletcher, Beav. 533 ; Lord Creioe v. Edle- ston, 1 D. & J. 93. — * _ — — . — . — 1 See ante, p. 67, note 1. MAY BE APPOINTED. 131 make the future management illegal, as being carried on by unauthorized persons. The management re- mains in the hands of the trustees or others empow- ered by statute to manage it; a receiver does no more than take the rates, tolls, and taxes, and pay the expenses of the undertaking and the interest of the mortgages, and then pay the surplus into court.(^>) Ships— A receiver may be appointed of the freight of a ship(g) and of the machinery of a steam vessel.(r) In a case where the legal title to a ship was in ques- tion, and the plaintiff had no equitable as distinct from a legal title, a receiver was refused, but an order was made by which the legal proceedings for ascer- taining the title were accelerated, and the court took possession of the ship, giving each party liberty to apply for the possession and use upon giving security to deal with her as the court should direct.(s) Business of Solicitor.— A receiver may be appointed of the profits of the business of a solicitor.^) Fellowships, &c— The question as to whether a re- ceiver can be appointed of the profits arising from the fellowship of a college has been the subject of conflict- ing decisions. In one case,(w) a motion for a receiver (p) Ames v. Birkenhead (s) Ridgivay v. Roberts, 4 Ha. Docks, 20 Beav. 350. 106. (q) Set. on Deer. 1035. {t) Candler v. Candler, Jac. (r) Brenan v. Preston, 2 D. 225. M. & G. 831 ; 10 Ha. 334 {u) Berkley v. King's Col- lege, 10 Beav. 602. 132 OVER WHAT A RECEIVER was refused with costs. But in a later case,(#) the court held that there might be a receiver both of past and future appropriations in respect of the profits of a fellowship, the duties being so light that no questions of public policy could interfere with the validity of the assignment. So also a receiver has been appointed of the profits of a canonry of a collegiate church, to which no cure of souls belonged, but only the duty of a certain residence and of attendance on divine service, the performance of which duty by the canon was of no benefit to the public.(?/) Ecclesiastical Benefices.— There cannot be a receiver of the profits of an ecclesiastical benefice, for a beneficed clergyman is prohibited by the statute 13 Eliz., c. 20, from charging the fruits of his living.(z) The statute of Elizabeth was repealed by the statute 43 Geo. III., c. 84, which was passed in the year 1803, and so the law remained till the year 1817, when by the statute 57 Geo. III., c. 99, the charging ecclesiastical benefices was again prohibited, and the statute of Elizabeth was re- vived ; so that between the years 1803 and 1817 there was no law prohibiting a clergyman from charging his ecclesiastical benefice ;(a) and a receiver was accord- ingly, on several occasions in cases arising between (x) Feistel v. King's College, (z) Haxokins v. Gathercole, 6 10 Beav. 491. D. M. & G. 1 ; see Long v. Storie, (y) Grenfell v. Dean and 3 DeG. & Sm. 309. Canons of Windsor, 2 Beav. (a) Metcalfe v. Archbishop of 544. York, 1 M. & C. 553. MAY BE APPOINTED. 133 those years, appointed over an ecclesiastical benefice.(6) The policy of the statute 13 Eliz., c. 20, which was re- vived by 57 Geo. III., c. 99, has not been in any way affected by 1 & 2 Vict., c. 110. A judgment does not create a charge upon a benefice giving a right to a receiver under 1 & 2 Vict., c. 110. The judgment creditor of a beneficed clergyman is prevented by the statute of Elizabeth from suing in equity, to have his judgment made a charge under statute 1 & 2 Vict., c. 110, and cannot have a receiver appointed over the profits of the benefice.(c) Property in Foreign Parts.— It is not necessary, in order to authorize the court to appoint a receiver, that the property in respect of which he is to be appointed should be in England, or indeed in any of her Majesty's dominions.^) Thus, persons have been appointed to receive the rents and profits of real estates, and to con- vert, get in, and remit the proceeds of property and assets, when such property is situate in Ireland,(e) in the West Indies,(/) in India,(#) in Canada,(A) in (b) Silver v. Bishop of Nor- gal, 8 Bligh, 344; Set. on Dec. wich, 3 Sw. 112 n. ; White v. 1007 ; see 2 & 3 Will. IV., c. 33 ; 4 Bishop of Peterborough, 3 Sw. & 5 Will. IV., c. 82. 109; Metcalfe v. Archbishop of (/) Bunbury v. Bunbury, 1 York, 1 M. & C. 553 ; Courand Beav. 336 ; Barkley v. Lord v. Hanmer, 9 Beav. 3 ; Set. on Reay, 2 Ha. 308 ; Faulkner v. Deer. 1029. Daniel, 3 Ha. 204. (c) Hawkins v. Gathercole, 6 (g) Logan v. Princess of Coorg, D. M. & G. 1 ; Bates v. Brothers, Set. on Dec. 1038 ; Keys v. Keys, 2 Sm. & G. 509. lb. ; 1 Beav. 425. (d) Houlditch v. Lord Done- (h) Tylee v. Tylee, Set. on gal, 8 Bligh, 344. Deer. 1039. (e) Hoidditch v. Lord Done- 134: OVER WHAT A RECEIVER China,(0 in Italy,(&) in America,(7) in New South "Wales,(m) in Jersey.(n) Although the court has no power of sending its officers to places beyond the juris- diction to enforce its orders and decrees, a party to the cause who resists them will be guilty of contempt.(o) A man will not, however, be appointed receiver of an estate which is out of the jurisdiction, unless he be within the reach of the court, or have submitted him- self to, or be amenable to, its jurisdiction. (p) The course which the court usually adopts where an estate is in a foreign country or out of the jurisdiction, is to appoint a receiver in this country, with power, if it he found expedient, to appoint an agent, with the approbation of the judge, in the country where the estate is situate, to collect the estate and remit the same to the receiver in this country.^) The receiver or his agent will recover possession of the estate according to the laws of the country in which it is found. (r) The receiver will, when necessary, be em- (*) Hodson v. Watson, Set. on ford, 5 L. J. Ch. N. S. 60 ; Houl- Decr. 1038. ditch v. Donegal, 8 Bligh. 344 ; (k) Hinton v. Galli, 24 L. J. Carron Iron Co. v. Maclaren, 5 Ch. 121 ; 2 Eq. Rep. 479 ; Drewry H. L. 436. v. Darwin, Set. on Deer. 1039. (q) — v. Lindsay, 15 Ves. 91 (I) Hanson v. Walker, Set. on Keys v. Keys, 1 Beav. 425 Deer. 1039. Smith v. Smith, 10 Ha. App. 71 (m) Set. on Deer. 1038. Hinton v. Galli, 24 L. J. Ch. (n) Smith v. Smith, 10 Ha. 211; 2 Eq. Rep. 479; Set. on App. 71. Deer. 1039. (o) Langford v. Langford, 5 (r) Smith v. Smith, 10 JIa. L. J. Ch. N. S. 60. App. 71. (p) See Langford v. Lang- MAY BE APPOINTED. 135 powered to sell lauds abroad, according to a scheme approved by the judge.(s) 1 (s) Tylee v. Tylee, Set. on Deer. 1039. 1 It has recently been held, in the Supreme Court of New York, that the appointment, in that State, of a receiver of a mining com- pany whose property consisted entirely of real estate situated in another State, conferred no title. Sirnpkins v. The Smith §- Par- melee Gold Co., 50 How. Pr. R. 56. CHAPTER IV. WHO MAY BE APPOINTED RECEIVERS. Party to Suit.— A receiver should, as a general rule, be a person wholly disinterested in the subject-matter of the suit, but it is competent to the court, upon the consent of the parties, to appoint as receiver a person who is mixed up in the subject-matter of the suit, if it is satisfied that the appointment would be attended with benefit to the estate. A tenant for life has accord- ingly been appointed a receiver.(a) So also in a suit to dissolve a partnership, one of the partners was ap- pointed receiver.^) 1 So also a retired partner who had advanced all the capital and was liable for the partner- ship debts, was appointed receiver.(c) A party to the suit will not be appointed a receiver, unless on his undertaking to act without salary. (d) When a party to the cause has been appointed re- ceiver, he does not thereby lose his privilege as such party in the cause. (e) 2 (a) Powys v.Blagrave, 18 Jur. (d) Wilson v. Greenwood, 1 463. Sw. 471, 483; Blakeney v. Du- (b) Wilson v. Greenwood, 1 faur, 15 Beav. 40, 44; Hoffman Sw. 471, 483; Blakeney v. Du- v. Duncan, 18 Jur. 69; Powys faur, 15 Beav. 40, 44. v. Blagrave, lb. 463. (c) Hoffman v. Duncan, 18 (e) Scott v. Platel, 2 Ph. 229. Jur. 69. 1 Sargant v. Read, L. R. 1 Oh. D. 600. 2 Of course, if a party to a cause accepts the position of receiver, his interest must not be permitted to interfere with his duties as receiver. See Bolles v. Duff, 54 Barbour, 216. WHO MAT BE APPOINTED RECEIVERS. 137 Trustee.— It is not according to the course of the court to appoint a trustee receiver. A person on whom the character and duties of a trustee are substantially imposed, and who is directly connected with the man- agement of the estate, cannot in general be appointed a receiver.(/) The court on appointing a receiver looks to the trustee to see that the receiver is doing his duty. The cestui que trust, if he is to have a re- ceiver, is entitled to the superintendence of the trustee as a check.(^) The two characters of trustee and re- ceiver are in fact incompatible, and in addition to this, the appointment of a trustee as receiver would be in violation of the fundamental rule of equity that a trustee cannot derive any benefit from the discharge of his duty as trustee.(A) The court will even remove a receiver whose private interests are in conflict with his duties, though his acts have for the most part been for the general good of the property, and though a majority, both in number and value, of the incum- brancers, desire that he should be retained. (i) The rule that a trustee cannot be a receiver applies whether he is sole trustee or is acting jointly with others.(&) In special cases, however, where the appointment of a trustee as receiver would be beneficial to the estate, as when he has a peculiar knowledge of the estate, or no one else can be found who will act with the same (/) Sutton v. Jones, 15 Yes. (h) lb. 587. (i) Fripp v. Chard Raihvay, (g) Anon., 3 Ves. 515 ; SyTces 11 Ha. 241, 260 ; see Gookes v. v. Hastings, 11 Ves. 363 ; Sutton Cookes, 2 D. J. & S. 530. v. Jones, 15 Yes. 587. {k) — v. Jolland, 8 Yes. 72. 138 "WHO MAY BE APPOINTED RECEIVERS. benefit to the estate, the court will make the appoint- ment. But the trustee must engage to act as receiver without emolument.(7) Upon this undertaking a testa- mentary guardian and executor,(m) and a tenant for life who was also a trustee,(??) has been appointed a receiver. In Ames v. Birkenhead Docks fa) the chairman of the trustees of a dock company was appointed receiver of the tolls of the company. So also in Polls v. Warwick and Birmingham Canal Company fa)) one of the com- mittee of management of a company was appointed receiver of the tolls of the company. 1 (I) Sykes v. Hastings, 1L Yes. (n) Powys v. Blagrave, 18 Jur. 363 ; Sutton v. Jones, 15 Ves. 463. 584. (o) 20 Beav. 232. (in) Gardner v. Blaine, 1 Ha. ( p) Kay, 143. 381. 1 It has been decided in New York, in proceedings under the statute of that State against insolvent corporations at the relation of the Attorney-General, that an officer of the corporation is not a proper person to be appointed receiver of its assets. The case of the Franklin Bank, cited in The Attorney- General v. The Bank of Columbia, 1 Paige, C. R. 511-517. ..." Public policy," said the court, in the case last cited, " requires that the directors shall under- stand distinctly that if they so manage the concerns of the institu- tion as to produce insolvency, the property and effects of the institu- tion will be taken from them entirely, and will be placed in the hands of those who will investigate their conduct fearlessly and im- partially." But the same learned judge also held, in a subsequent case, that the same rule did not apply to proceedings under the statute relative to voluntary dissolutions, the appointment of the officers of the institution being expressly authorized by the act. In the matter of the Eagle Iron Works, 8 Paige, C. R. 385; 3 Ed- wards, C. R. 385. In The People v. The Third Avenue Savings Bank, 50 How. Pr. R. 22 ; it was held that the secretary of an insolvent savings bank should not be appointed receiver. WHO MAY BE APPOINTED RECEIVERS. 139 "Where indeed a trustee offers to act as receiver with- out salary, he will be allowed to propose himself, but the judge is not bound to accept him.(g') The court will not appoint a trustee as receiver, even although he agrees to act without emolument, if he is the person that ought to check the receiver for the benefit of the parties interested. (r) Under very special circumstances a trustee may be appointed receiver with a salary. Where, for instance, a testator had appointed as trustee a person who for many years had been paid receiver and manager of his estate, the tenant for life being an infant, he was con- tinued a receiver with a salary. (s) The objection to the appointment as receiver of a trustee who has active duties to perform in relation to the estate, does not apply to the case of a trustee to preserve contingent remainders, or with powers ot sale and exchange which cannot be immediately ex- ercised.^) A trustee with power to lease cannot, how- ever, be a receiver.(w) Party in a Fiduciary Position, &c— The rule that the court will not sanction the appointment as receiver of a person whose duty it is to check and control the receiver is extended to other persons besides trustees.(#) (q) Banks v. Banks, 14 Jur. (t) Sutton v. Jones, 15 Ves. 659. 587. (r) Sykes v. Hastings, 11 Yes. (u) lb. 363; Sutton v. Jones, 15 Ves. 584. (x) See Cookes v. Cookes, 2 D. (s) Bury v. Newport, 23 Beav. J. & S. 530. 30. 140 WHO MAY BE APPOINTED RECEIVERS. Thus it has been held, that, as it is the duty of the next friend of an infant to watch the accounts and check the conduct of a receiver of the infant's estate, the two characters are incompatible with each other ;(?/) and in Taylor v. Oldham,(z) Lord Eldon held that the son of a next friend ought not to be receiver. Upon similar grounds it has been held that a solicitor in the cause cannot be appointed receiver, because it is his duty to control the receiver's accounts.(a) Nor will a man be appointed receiver whose posi- tion may cause difficulty in administering justice. A Master of Chancery, accordingly, was disqualified from being appointed a receiver, for, being an officer whose duty it was to pass the accounts and check the conduct of a receiver, his appointment as a receiver was open to objection on very obvious grounds.(7>) 1 The same reason which disqualified a Master in Chancery from being receiver applies to the appointment of a person who acts as solicitor under a commission of lunacy. (c) There can be no doubt it also applies to the chief clerk of a judge. 2 (y) Stone v. Wishart, 2 Madd. {b) Ex parte Fletcher, 6 Ves. 64. 427. (z) Jac. 527, 529. (c) Ex parte Pincke, 2 Mer. (a) Garland v. Garland, 2 452. Ves. Jr. 137 ; Wilson v. Poe, 1 Hog. 322. 1 The same point was decided in Benneson v. Bill, 62 111. 408. 2 An official liquidator, appointed upon the voluntary winding up of a company, may be appointed receiver. Perry v. Oriental Hotels Company, L. R. 5 Chan. A pp. 420. WHO MAY BE APPOINTED RECEIVERS. 141 Solicitor.— Though a solicitor in the cause,^) 1 or a solicitor under a commission of lunacy ,(e) cannot be appointed receiver of the estate in which they are retained as solicitors, there is no objection in general to the appointment of a solicitor as receiver.(/) In Bagot v. Bagot,(g) the solicitor of a married woman was on her application appointed receiver of her separate estate, although a strong affidavit was made by the husband showing the unfitness of the solicitor for the office. Considerations looked to in making the Appointment. — The person appointed as receiver should be a person (d) Garland v. Garland, 2 (/) See Wilson v. Poe, 1 Hog. Ves. Jr. 137. 322 ;Della Cainiea v. Hayward, (e) Ex parte Pincke, 2 Mer. McClell. & Y. 272. 452. {g) 2 Jur. 1063. 1 This rule was recognized in Baker v. Backus, 32 Illinois, 79-95. "There was a fatal objection," said the court "to the person ap- pointed receiver. He was not disinterested ; he was the legel adviser of the complainant, and framed the bill ; he was the legal adviser of the company, and he was the largest single creditor — all these dis- qualified him." But in the Case of Abraham Powell, an involuntary bankrupt (in the U. S. District Court for the Eastern District of Pennsylvania), the solicitor for the petitioning creditors was ap- pointed a temporary receiver of the estate. This case, however, is not to be regarded as in conflict with the general rule, for the pro- perty of the bankrupt had previously become vested in assignees for the benefit of creditors under the State law, and the duties of the receiver (who was to act as such pending the election of an assignee in bankruptcy) were mainly, if not altogether, supervisory. This appointmeut was also in accordance with the rule which permits the creditor's attorney to act as assignee in bankruptcy. See Ex parte Clairmont, 1 Bank. Reg. 42 ; Ex parte Lawson, 1 Gaz. 132 ; Ex parte Barrett, 1 Chicago Leg. News, 202. 142 WHO MAY BE APPOINTED RECEIVERS. who, consistently with his professional and other pur- suits, can spare sufficient time for the duties of his office, and the court will attend to circumstances tend- ing to show that the person proposed as receiver is unable to fulfil this condition.^) In a case, accor- dingly, where a man proposed as receiver was both a member of Parliament and a practising barrister, and also resided at a very considerable distance from the estate, the court held that these circumstances, though not amounting to an absolute disqualification, formed a sufficient ground to render further consideration ad- visable.^") There is no objection to the appointment as receiver of a practising barrister not being a mem- ber of Parliament.^) Peer; Member of Parliament.— The court will not ap- point as receiver a person whose privileges protect him from the ordinary remedies which it may become proper to enforce.^) A peer accordingly is disquali- fied.^) Lord Eldon would not say that a member of Parliament was absolutely disqualified,^) but the same considerations which render the appointment of a peer objectionable would seem also to apply to the case of a member of Parliament.(o) (h) Wynne v. Lord Neiobor- (m) lb. ough, 15 Ves. 284. (n) Wynne v. Lord Neiubor- (*) lb. 283. ough, 15 Ves. 284. (Jfc) lb.; Garland v. Garland, (o) See Long Wellesley's Case, 2 Ves. Jr. 137 ; Wtlkins v. Wil- 2 K. & M. G39 ; Lechmere Charl- liams, 3 Ves. 587. ion's Case, 2 M. & C. 31 G. (I) Alt. Gen. v. Gee, 2 V. & B. 208. WHO MAY BE APPOINTED RECEIVERS. 143 Accountant to Crown, &c— A person who is under security to the Crown, as the receiver-general of a county, cannot be appointed a receiver, for if he were to be indebted to the Crown, the Crown might by its prerogative process sweep away all his property, and his debt to the estate would be lost.Q)) Upon the same principle it might be held that any person who is in the position of an accountant to the Crown would be objectionable.^) Mortgagee of West India Estate appointed Consignee. — The mortgagee of a West Indian estate who does not take possession will not be appointed consignee unless he has stipulated for the advantage. If a mort- gagee of a West Indian estate has not a contract that he shall have the consignments, he cannot have any such emoluments from the estate. If it were allowed, the second mortgagee would move for a receiver and consignee, and the first mortgagee would be appointed, and thus circuitously obtain an advantage which he could not have obtained directly.(r) (p) Att.-Gen. v. Day, 2 Madd. (?•) Cox v. Champneys, Jac. 254. 576 ; Ex parte Pincke, 2 Mer. (q) Dan. Ch. Pr. 1570. 452. CHAPTER V. MODE OF THE APPOINTMENT OP A RECEIVER. Receiver not appointed unless in a Suit.— The court has no jurisdiction to appoint a receiver unless a suit is pending.(a) 1 The case of infants forms no exception to the rule.(6) In some cases the same person has heen appointed guardian and receiver of the person and estate of an infant on petition or summons in cham- bers, without suit ; and in other cases separate persons have been appointed guardian and receiver on sum- mons in chambers.(c) The more usual course, how- (a) In cases coming within the Railway Companies Act, 1867, 30 & 31 Vict., c. 127, a receiver may be appointed on petition, supra, p. 76. The Court of Chan- cery in Ireland may appoint a receiver on summary petition by a judgment creditor. Under the Acts 5 & 6 Will. IV., c. 55, ss. 31, 32, and 3 & 4 Vict, c. 105, ss. 21, 23, 24, the jurisdiction of the Court of Chancery in Ireland to appoint a receiver on summary petition by a judgment creditor was very extensive. See Ileilly on Petitions. It has, however, been much restricted by more re- cent legislation, 12 & 13 Vict., c. 95 ; 13 & 14 Vict., c. 29 ; 19 & 20 Vict., c. 77, s. 3. See Eeilly on Summ. Petit. 374 et seq. [Baker v. Backus, 32 Illinois 79-95] (6) Ex parte Whiff eld, 2 Atk. 315 ; Ex parte Mount/ord, 15 Ves. 445, 449. (c) Re Leaning, 20 L. J. Ch. 550 ; 17 L. T. 231; Re Reynolds, 19 L. T. 311 ; Re Gascoyne, 20 L. J. Ch. 551 ; Set. on Deer. 705. The Lord Chancellor of Ireland has power under 5 & 6 Will. IV., c. 78, 8. 7, to appoint a receiver over the estate of a minor upon petition, Be Goode, 1 Ir. Ch. 256. ' In Newman v. Hammond, 46 Indiana, 119, it was held that, under the Indiana statute, the court would not appoint a receiver in vacation. MODE OF APPOINTMENT. 145 ever, is to appoint a guardian of the person and estate without a receiver.(^) The case of lunatics is the only exception to the rule that a receiver will not be ap- pointed unless a suit is pending. In the case of lunatics a receiver may be appointed on petition with- out bill filed. (~r.\; and cases cited in the next note. MODE OF APPOINTMENT. 147 An application for a receiver cannot, except under very exceptional circumstances, be made without no- tice. 1 Notice of the motion or summons, as the case may be, must be served on the party against whom the motion is made.(o) An application, ex jJarte, for a receiver before appearance, is irregular,(p) except a case of great urgency be made to appear.(g) Leave may be had in cases where the circumstances are urgent to serve the defendant with notice of motion for a receiver before the expiration of the time fixed for appearance. The notice of the motion must be served on the de- fendant personally ;(r) and the fact of leave having (o) Pan. Ch. Pr. 1571. T. N. S. 595 ; see Dickens v. (p) Buxton v. Monklwuse, Harris, 14 L. T. N. S. 98. Coop. 41 ; Caillard v. Caillard, (?•) Hill v. Rimmell, 2 M. & C. 25 Beav. 512. 641 ; Ramsbottom v. Freeman, 4 {q) Raivson v. Raivson, 11 L. Beav. 145 ; Meaden v. Sealey, 6 Ha. G20. 1 A receiver will not be appointed without notice except where pressing necessity exists, and there is clear proof of the exigency of the particular case. Triebert v. Burgess, 11 Maryl. 456 ; Blond- heimv. Moore, Id. 374; Clark v. Ridgely, 1 Maryl. Ch. Pec. 70; Nusbaum v. Stein, 12 Maryl. 315-322 ; Gravenstine's Appeal, 49 Penna. St. R. 310; Boshcick v. Isbell, 41 Conn. 305; Weems v. Laf.hrop, 42 Tex. 211 ; The People v. Norton, 1 Paige, C. P. 17 ; Tibbals v. Sargeant, 1 McCart. 449 ; Sandford v. Sinclair, 8 Paige, 0. R. 373 ; 3 Edwards. C. R. 393 ; Gibson v. Martin, 8 Paige, C. R. 481 ;Yerplanck v. The Mercantile Ins. Co., 2 Id. 450; French v. Gifford, 30 Iowa, 148 ; Bisson v. Curry, 35 Id. 72 ; Whitehead v. Wooten, 43 Miss. 523; Vause v. Wood, 46 Miss. 120; Turgeauv. Brady, 24 Louisiana Ann. 348 ; Field v. Ripley, 20 How. Pr. R. 26 ; McCarthy v. Peake, 18 Id. 138; Devoe v. The Ithaca and Osiuego Railroad Co., 5 Paige, C. R. 521. In this last case, however, the court, although refusing to appoint a receiver on an ex parte appli- cation, nevertheless granted an injunction pending the motion. See also Austin v. Figueira, 7 Paige, C. R. 56. 148 MODE OF APPOINTMENT. been obtained must be mentioned in the notice of motion. (s) The order will be granted on affidavit of service of notice of the motion. (t) The application for a receiver cannot be granted before appearance on notice of motion served personally, unless such service be by special leave of the court.(w) Leave to serve de- fendant with notice of motion for a receiver before appearance does not include leave to give short notice of motion. Short notice of motion cannot be given without express leave for that purpose.(x) The rule which requires previous notice to be served on a defendant who has not appeared is subject to an exception where the defendant has absconded to avoid service, and his residence is unknown. (y) So, also, it was under the old practice held to be subject to an ex- ception where the defendant was out of the jurisdic- tion and could not be served. (z) But inasmuch as under the new practice an order may now be made for service of the bill on a party who is out of the juris- diction,(a) a receiver will not, there is reason to be- lieve, be appointed before service of the bill, where a party whose interest is sought to be affected by the decree is out of the jurisdiction,^) unless his residence (.s) Bill v. Riv.mcll, 8 Sim. {?.) Tav field v. Irvine, 2 Russ. G32;Jacklinv. WilJcins, 6 Reav. 149; Coward v. Chadwick, lb. G08. 150 n., 634 n.; Gibbins v. Main- it) Meaden v. Sealer/, 6 Ila. waring, 9 Sim. 77 ; see Noad v. 620. Backhouse, 2 Y. & C. C. C. 529. (u) Bamsbottomy. Freeman, (a) Orel. X. r. 7 ; Morg. Oh. 4 Beav. 145. Ord. 423. (x) I /art v. Tulk, 6 11a. 611. {b) See Stratton v. Davidson, (y) Dowlinrj v. Hudson, 14 1 R. & M. 484 ; Broion v. Blount, Beav. 423. 2 R. & M. 83. MODE OF APPOINTMENT. 149 be unknown, or the circumstances of the case be urgent. The leave of the court, however, is neces- sary, it would seem, to serve personally a party out of the jurisdiction with notice of motion in the cause, although such party has been served with a copy of the bill and appearance has been entered for him.(c) If a defendant has made an affidavit in the cause, although no formal appearance be entered, he will be considered to have appeared for the purpose of appoint- ing a receiver.(d) Receiver appointed at any Stage of the Suit.— The ap- plication for a receiver may be made at any stage of the suit, according as the urgency of the case requires it. 1 (c) Green v. Pledger, 3 Ha. {d) Vann v. Barnett, 2 Bro. C. 165 : see Weguelin v. Lawson, 8 C. 158. L. T. N. S. 763. 1 As a receiver may be appointed at any stage in the cause, it may be proper to notice here the authority of superior courts to review the action of inferior tribunals in making or refusing to make such an appointment. In England an appeal lies from an interlocutory order. Daniel's Chancery Prac. 1568. In the United States courts, however, the rule is different, as the Act of Congress of September 24, 1789 (Rev. Stats. Sects. 631 and 699), by which this subject is regulated, allows appeals from final decrees alone. Hence no appeal will lie from an interlocutory order, such as the appointment of a receiver, or the like. See remarks of Taney, C. J., in Forgay v. Conrad, 6 Howard, 204 ; also Perkins v. Fourniquet, Id. 206. But cases may arise in which an order appointing or discharging a receiver may operate as a final decree ; and in such a case an appeal would lie. See The Milwaukee R. R. Co. v. Soutter, 2 Wallace, 521, stated ante, p. 4, note ; and Cain v. Warford, 7 Maryl. 282, and Barry v. Briggs, 22 Mich. 201, are to the same effect. In the State courts the rule on this subject is not uniform, being 150 MODE OF APPOINTMENT. If the application for a receiver is made before de- cree, it will not be granted, unless the appointment of a receiver be prayed by the bill. The court will not even give leave to amend for the purposes of the motion, (e) Receiver appointed at hearing, though not prayed for — A receiver may be appointed at the hearing, although not prayed by the bill, if the facts stated are sufficient to authorize the appointment, and the urgency of the case requires it.(Z) 1 A receiver may also be appointed (e) Pare v. Clegg, 7 Jur. N. S. 2 Moll. 500 ; Osborne v. Harvey, 1136; 9 W. R. 216; but see 1 Y. & C. 0. C. 116 ; see Shee v. Malcolm v. Montgomery, 2 Moll. Harris, 1 J. & L. 91 ; comp. 3 500. Drew. 120. (/) Malcolm v. Montgomery, in many instances regulated by statute. It was held in Jones v. Holliday, 37 Georgia, 573, and Reid v. Reid, 24 Id. 38, that the discretion or the inferior court in appointing a receiver would be reviewed on appeal, if shown to have been abused, but not otherwise. See also Robenson v. Ross, 40 Georgia, 375. An appeal does not lie from such an order in Pennsylvania, Holdin v. McMakiris Admrs., 1 Pars. 289; nor in New York, Twrm r v. Chrichton, 53 N. Y. 641 ; nor in Montana, Wilson v. Davis, 1 Mont. II. 98 ; nor in Indiana, Wood v. Brewer, 9 Indiana, 86 ; nor in Ala- bama, Mansony v. The Bank, 4 Alab. 745 ; nor in Michigan, Col- gate v. Michigan Lake Shore R. R. Co., 28 Mich. 288, Sailing v. Johnson, 25 Id. 489. In Mississippi it has been held to be autho- rized by the statute; Wade v. The American Col. Soc, 4 Sin. ') Wright*. Vernon, 3 Drew. (n) Fallows v. Lord Dillon, 1 121 ; sec Hacked v.Snoiv, 10 Ir. W. i;. mi. Bq. 220. (o) Att.-Oen.Y. Mayor of (lal- (a) Rogers v. Newton, 2 Ir. way, 1 Mull. 'J.>. 104.' Eq. 40. (]>) Hilea v. Moore, l."> Beav. 175. MODE OF APPOINTMENT. . 153 Keceiver not appointed before hearing on motion founded on Evidence in the Cause.— Before the hearing of the cause, the court will not hear a motion for a receiver founded upon evidence which has been taken in the cause.(7) When Application for Receiver may be made by De- fendant—After the decree, application for a receiver may he made by one defendant against a co-defend- ant ;(m) but before decree the application for a receiver cannot be made by a defendant.^) 1 A motion by a defendant for a receiver made before decree, was held to be irregular, even in a case where one executor filed a bill against his co-executor, insisting that a receiver was necessary. 2 The plaintiff", though he had prayed for a receiver, refused to move for one.(y) (t) Lloyd v. Passingham, 3 {x) Robinson v. Hadley, 11 Mer. 697. Beav. 614. [u) Hiles v. Moore, 15 Beav. (y) lb. ; see Grote v. Bury, 1 175. W. R. 92. 1 To the same effect is LeddeVs Extr. v. Starr, 4 C. E. Green, 159. By the New York Code receivers may be appointed on the application of either party. And now in England, in certain cases (as in partnership bills, for example), the defendant may apply for a receiver before judgment. Sargant v. Read, L. It. 1 Ch. D. 600. 2 In Henshaw v. Wells, 9 Humph. 568, a bill was filed by a second mortgagee of one of two parcels of land against the mortgagor and the first mortgagee of both parcels. The bill prayed that a receiver might be appointed of the parcel mortgaged to the complainant. The first mortgagee asked that the receivership should embrace both parcels. It was objected on behalf of the mortgagor that a receiver could not be appointed upon the application of a co-defendant, but it was held that the application was proper under the circumstances, as both mortgagees were seeking relief. 154 MODE OF APPOINTMENT. At the hearing of a suit for redemption, the court would not, on the application of the defendant, grant a receiver against the plaintiff.(z) If a defendant re- quires a receiver against a plaintiff, he must, as a general rule, file a cross bill.(«) In cases where the application may be made by the defendant, it should be by petition. (b) Affidavits.— The application for a receiver must be supported by evidence showing that the appointment is necessary.(c) If the application is made before de- cree, the affidavits must be founded on the allegations in the bill. If statements not founded on the allega- tions in the bill are introduced into the affidavits, the court will not attend to them.(d) Where the case made by the bill fails, it seems that the plaintiff' will not be allowed to rely, as a ground for a receiver, upon the equity confessed b}^ the answer.(e) If the applica- tion was made before answer, the practice formerly was that the plaintiff could rely on the admissions contained therein, and could not enter into evidence in opposition thereto; but now, upon any application for a receiver, or to discharge an order appointing a receiver, the answer of the defendant is for the purpose (z) Barlow v. Gains, 8 Beav. (c) See Middlcton v. Dodsiocll, 329. 13Ves. 269. (a) Robinson v. Hadley, 11 ('.>'.). A railroad corporation is not relieved from the responsibilities im- posed upon it by its charter, because of the appointment of a receiver over a portion of the road. Railroad Co. v. Broion, 17 Wal. 450. EFFECT OF APPOINTMENT. 173 titles.(m) The appointment of a receiver is not for the benefit of the plaintiff merely, but for all other persons who may establish rights in the cause. Moneys in the hands of a receiver are in custodia legis for who- ever can make title thereto.^) 1 The appointment of a receiver, however, is for the benefit of incumbrancers only so far as expressed to be for their benefit and as they choose to avail themselves of it.(o) If a mort- gagee claiming under a title paramount to that under which the receiver was appointed suffers the receiver to pay away the surplus rents to the beneficial owner, or to apply them for purposes other than the satisfac- tion of his security, he is not entitled to a retrospec- tive account of rents and profits.(p) (m)Re Butter, 13 Ir. Ch. 456 ; accordingly: Seymour v. Vernon, Bertrand v. Davies, 31 Beav. 19 L. T. 58. 436. (o) Gresleyv. Adderley,lQw. (n) Delaney v. Mansfield, 1 579 ; Salt v. Lord Donegal, LI. Hog. 235. Where a receiver is & G. temp. Sug. 91. Conip. Pid- ordered to keep up certain poli- dock v. Boultbee, 16 L. T. N. S. cies of insurance, the direction 837. must be taken to be for the bene- ( p) Gresley v. Adderley, 1 Sw. fit of all parties who, in the re- 576 ; see Thomas v. Brigstocke, suit of the decision, should prove 4 Russ. 64; Flight v. Camac, 4 to be parties really interested, W. R. 664. and the outgoings must be borne 1 See State Bank v. The Receivers, 2 Green, C. R. 273 ; Green v" Bostivick, 1 Sandf. C. R. 185. A receiver who is ordered to pay over money cannot set off his individual claims against the party to whom he is directed to make the payment. Johnson v. Gunter, 6 Bush (Ky.) , 534. No discretion is allowed him as to the disposition of the fund. He holds it subject to the order of the court, and to be paid to whom the court shall adjudge it. Id. The circumstance that a receiver is afterwards made trustee of the same fund in insolvent proceedings, does not take away the authority of the court, by which he was appointed receiver, over the fund. Henry v. Kaufman, 24 Maryl. 1. 174 EFFECT OF APPOINTMENT. Incumbrancers may or may not avail themselves of the order by applying to the receiver. If they apply to him, they will be paid their interest, or if he refuses or neglects to pay them, they may complain to the court of such neglect or refusal ; but if they neglect to apply for the interest, it is to be presumed that they are satisfied with the security they have both for interest and principal.^) The direction given by the court to the receiver to keep down the interest of the incumbrances, has not the effect of an appropriation of the rents and profits to that specific purpose. It is given without the least view to the interests of the real and personal representatives. It is given partly injustice to the incumbrancers, that they may not be injured by the act of the court in taking possession of the rents and profits to which they had a right to resort for payment of their interests, partly for the benefit of the estate itself, lest the incumbrancers, having their interest stopped, might be induced to resort to proceedings injurious to those who stand behind them.(r) Receiver considered as Agent of Party entitled.— When the party entitled to an estate over which a receiver has been appointed is ascertained, the receiver (q) Bertie v. Lord Abingdon, Camac, 4 W. R. 664. Comp. 3 Mer. 567. Comp. Phldock v. Piddock v. Boultbee, 16 L. T. Boullbee, 16 L. T. N. S. 837. N. S. 837. (r) 3 Mer. 567 ; see Flight v. EFFECT OF APPOINTMENT. 175 will be considered as his receiver.(s) 1 Where accord- ingly a receiver was appointed in a suit for specific performance at the suit of a vendor, and the purchaser was compelled to accept the title, it was held that the receiver must be considered as his receiver.(^) In a case, however, where a receiver had been appointed in consequence of the inability of the vendor of an estate, sold under a decree, to make out his title, the court was of opinion that the expenses of a receiver ought not to be borne by the purchaser, and directed that they should be repaid to him out of a fund in court, together with the costs of the application. (w) Loss arising from Default of Solicitor must be borne by the Estate.— A receiver appointed by the court, being appointed on behalf and for the benefit of all persons interested, parties to the suit,(v) if a loss arises from the default of a receiver appointed by the court, the estate must bear it as between the parties to the suit.(x) (s) Boehm v. Wood, T. & R. (r) Davis v. Duke of Marl- Mo; Be Butler, 13 Ir. Ch. 456 ; borough, 2 Sw. 118 ; Bainbngge see Bigge v. Bowater, 3 Bro. C. v. Blair, 3 Beav. 421; Bertrand C. 365. v. Davies, 31 Beav. 436 ; Fraser (t) Boehm v. Wood, T. & R. v. Burgess, 13 Moo. P. C. 314 ; 345; see Re Butler, 13 Ir. Ch. see Neate v. Pink, 3 Mac. & G. 456. 476. {u) McCleod v. Phelps, 2 Jur. (x) Hutchinson v. 3Iassareene, 962. 2 Ba. & Be. 55. 1 Ellicott v. Warford, 4 Maryl. 85; Ellicott v. U. S. Ins. Co., 7 Gill, 307 ; Field v. Jones, 11 Georgia, 416 ; State Bank v. 77ie Receivers, 2 Green, C. R. 266. 176 EFFECT OF APPOINTMENT. Rents, &c, bound from Date of Appointment.— The rents and profits of the estate over which a receiver has been appointed are, as far as respects parties to the suit, bound from the date of the order for the appointment^?/) 1 If a solicitor in the cause has received rents without the authority of the court, he must pay them over to the receiver appointed therein, although he may not have been actually clothed with the cha- racter of receiver at the time the rents were received. The solicitor cannot be permitted to set up a lien on them for his costs.(^) If the tenant for life of a mortgaged estate with power to lease, exercise the power pending a foreclosure suit, and after the appointment of a receiver, the lessees are considered, as against prior incumbrancers, as tenants from year to year to the receivers.(a) The order appointing a receiver is, however, an order for the benefit of the parties to the suit.(6) The order on tenants to pay their rents to the receiver attaches all rents in their hands unpaid at the time of service. (y) Lloyd v.Mason, 2 M. & is improper; Davenport v. Moss, C. 487; Codringtonv. Johnstone, 14 W. R. 453. 1 Beav. 520. (a) Lord Mansfield v. Hamil- (z) Wickens v. Townsend, 1 ton, 2 Sch. & Lef. 28. R. & ML 361. The retainer of (b) Defries v. Creed, 34 L. J. his debt by an executor against a Ch. G07. receiver appointed by the court 1 The title of a receiver appointed overchosesin action alleged to be fraudulently assigned dates from the filing of the bill, and the debtor in the chose inaction cannot set off a cross judgment obtained by him since that date. Clark v. Drockway, 1 Abb. App. Dec. 351. POSSESSION OF RECEIVER. 177 As to rents which have been paid by them prior to the service, they are not answerable.(c) Interference by Third Parties with the Possession of the Receiver.— When the court has appointed a receiver and the receiver is in possession, his possession is the possession of the court, and may not be disturbed without the leave of the court.(^) 1 Where the court has taken possession of property by its receiver, if any one, whoever he be, disturb the possession of the receiver, it holds that person as guilty of a contempt of court, and liable to be imprisoned for that con- tempt.^) 2 The court will not allow the possession of (c) Daly v. Blake, cit. Smith kenhead Docks, 20 Beav. 353 ; on Rec. 27. Defries v. Creed, 34 L. J. Ch. (d) Angel v. Smith, 9 Ves. 607. 335 ; Hutchinson v. Massareene, (e) Fripp v. Bridgewater, frc, 2 Ba. & Be. 55 ; Aston v. Heron, Raihoay Co., 3 W. R. 356 ; 2 M. & K. 391 ; Ames v. Bir- Lane v. Sterne, 3 Giff. 629. 1 The court will not permit this possession to be disturbed by an execution. Robinson v. The Atlantic and Great Western Raihoay Co., 66 Penna. St. R. 160 ; Albany City Bank v. Schermerhorn, 9 Paige, C. R. 372; Wiswall v. Sampson, 14 Howard, 52. See also National Bank v. Colby, 21 Wal. 609. 2 An assignee in bankruptcy is so liable. Clark v. Bininger, 9 Am. Law Reg. (N. S.) 304 ; Watkins v. Pinkney, 3 Edw. C. R. 533 (and see Davis v. Alabama and Florida R. R. Co., 13 Nat. Bank Reg. 258; S. C, 1 Woods, 661). And so is a landlord distraining for rent. Noe v. Gibson, 7 Paige, C. R. 513 ; and see the Matter of Merritt, 5 Id. 131 ; In the matter of Cohen and Jones, 5 Cal. 494; Parker v. Browning, 8 Paige, C. R. 388. But the defendant in a creditor's bill is not liable to process for contempt for refusing to deliver to the receiver property claimed by a third party, in the absence of a decision by the master (to whom the cause was referred for the purpose of appointing a receiver), that the defendant had 12 178 POSSESSSION OF RECEIVER. its receiver to be interfered with or disturbed by any- one, whether claiming paramount to or under the right which the receiver was appointed to protect.^/") 1 A man who thinks he has a right paramount to that of the receiver, must, before he presumes to take any steps of his own motion, apply to the court for leave (/) Evelyn v. Lewis, 3 Ha. glian Railway Co., 3 Mac. & G. 475; Wadmore v. Trevanion, 114. cit. lb. 473; Russel v. East An- such a control and possession of the goods as to entitle the receiver to a delivery thereof without the consent of the claimant. Cassi- lear v. Simons, 8 Paige, C. R. 273. And the rights of a receiver appointed by a State Court under an attachment by mesne process, are subordinate to those of an assignee in bankruptcy, the effect of the bankrupt proceedings having been that the mesne process of the State Court was dissolved. Miller v. Boivles, 10 Nat. B. R. 515 (see Miller v. Bowles, 58 N. Y. 253). See also In re Whipple, 8 Chicago Leg. N. 134. ' But if the property is in possession of a third person who claims the right to retain it, the receiver must either proceed by suit in the ordinary way to try his right to it, or the complainant should make such third person a party to the suit, and apply to have the receiver- ship extended to the property in his hands ; so that an order for the delivery of the property may be made which will be binding upon him, and which may be enforced by process of contempt if it is not obeyed. Parker v. Browning, 8 Paige, 388, 390 Hence it has been ruled in a foreclosure suit, that the assignee of the equity of redemption who has not been made a party to the suit was not liable to process for contempt for collecting the rents of the mortgaged premises after a receiver had been appointed. Bowery Savings Bank v. Richards, 3 Hun, 3C6 ; see further on this subject. The Vermont and Canada R. R. Co. v. The Vermont Central R. R. Co., 46 Verm. 792. A court will not interfere with the possession of a receiver duly appointed by another court of competent juris- diction. The Milwaukee and St. Raid's R. R. Co. v. The Mil- waukee and Minnesota R. R. Co., 20 Wisconsin, 165 ; and note to page 13, ante. POSSESSION OP RECEIVER. 179 to assert his right against the receiver.^) A receiver, indeed, appointed to get in property, part of which he finds in the possession of another receiver, ought not to take proceedings to deprive the latter of such pos- session without the authority of the court. He, or the parties at whose instance he was appointed, should ask for the direction of the court how to proceed. (A) It is immaterial that the order appointing a receiver may have been improper or erroneous. It is not com- petent for any one to interfere with the possession of a receiver on the ground that the order appointing him ought not to have been made. It is enough that it be a subsisting order. Parties who feel aggrieved by an order of the court must take a proper course to question its validity, but while it lasts it must be obeyed, (i) 1 The court requires and insists that applications should be made to it for permission to take possession of any property of which the receiver has taken, or is directed to take, possession. The rule is not confined to property actually in the hands of a receiver. The (g) lb. Hawkins v. Gather- [i) Russell v. East Anglian cole, 1 Drew, 17; Randfield v. Railway Co., 3 Mac. & G. 117 ; Randfield, 1 Dr. & Sra. 314. Ames v. Birkenhead Docks, 20 (7i) Ward v. Swift, 6 Ha. 312. Beav. 353. 1 The debtors of a National Bank, when sued by a receiver ap- pointed under the Act of Congress, cannot inquire into the legality of his appointment. It is sufficient for the purposes of such a suit that he has been appointed and is receiver in fact. As to debtors, the action of the comptroller in making the appointment is conclu- sive until set aside on the application of the bank. Cadle v. Baker, 20 "Wal. 650. bee also In the matter of Day, 34 "Wise. 638. 180 POSSESSION OF RECEIVER. court will not permit any one, without its sanction and authority, to intercept or prevent payment to the receiver of any property which he has been appointed to receive, though it may not be actually in his hands. (k) 1 The possession of a receiver appointed over an estate is not affected by notice given by a mortgagee who alleges that his title is prior to that under which the receiver claims to the tenants to pay their rents to him.(0 A receiver appointed by the Court of Chancery can- not, on the ground that his appointment has been improper, be called upon to interplead in a court of law ; but he may, if summoned, appear for the purpose of asserting his right, and denying the right of any other court to interfere with his possession. (m) If a receiver improperly submit to an order made by a court of law, and pay money in his hands contrary (k) Ames v. Birkenhead (m) Russell v. East Anglian Docks, 20 Beav. 353. Railway Co., 3 Mac. & G. 115, (/) Thomas v. Brigstocke, 4 123. Euss. 64. 1 But the decree of a Court of Chancery appointing a receiver, entitles 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 em- braced in the decree appointing him, and to which the debtor never had any title, he is not acting as the representative or officer of the Court of Chancery, but is a mere trespasser, and the rightful owner of the property may sue him in any appropriate form of action for damages, or to recover possession of the property illegally taken or detained. Hills v. Parker, 111 Mass. 508. The same rule has also been applied to an assignee in bankruptcy. See Leighton v. liar- vjood, 1 L 1 Mass. 67. POSSESSION OF RECEIVER. 181 to the order of the court, the person to whom it has been paid will be ordered to repay it, and the receiver may be liable to pay the costs of the motion. The court never allows any person to interfere either with money or property in the hands of its receiver without leave, whether it is done by the consent or submission of the receiver, or by compulsory process against him. All moneys which come to the hands of a receiver by the order of the court, enabling him to receive, and entitling him to give a good discharge to the persons paying them, are moneys belonging to the Court of Chancery, and the receiver can only discharge himself by paying them in obedience to the direction and order of the court. A judgment-creditor cannot, without leave, attach under a garnishee order under the Com- mon Law Procedure Act, 1854, moneys in the hands of a receiver which have been directed to be paid by him to the judgment-debtor.^) 1 It is not necessary to wait for the passing of a receiver's accounts before applying to the court to prevent him from misapplying moneys in his hands.(o) What constitutes Disturbance of a Receiver.— The rule that the possession of a receiver may not be disturbed without leave, does not, however, apply, as far at least (n) Be Winton v. Mayor, fyc. of Brecon, 28 Beav. 200, 203. (o) lb. ' See Field v. Jones, 11 Georgia, 417 ; Taylor v. Gillean, 23 Tex. 508 ; Skinner v. Maxwell, 68 North Carol. 404 ; Martin v. Bavis, 21 Iowa, 535 ; Glenn v. Gill, 2 Maryl. 1. 182 POSSESSION OF RECEIVER. as third parties are concerned, until a receiver has been actually appointed, and is in actual possession. It is not enough that an order has been made directing the appointment of a receiver. Until the appointment has been perfected, and the receiver is actually in possession, a creditor is not debarred from proceeding to execution. 1 The order appointing a receiver is for the benefit of parties to the suit. 2 It does not affect third parties until the appointment is completed and perfected. (^) 3 Nor is there disturbance of a receiver unless the order for the appointment of a receiver states so dis- tinctly on the face of it, over what property the receiver is appointed, that it may be known what is the pro- perty that he is in possession of.(y) Hence, where a receiver was appointed " of the income of the out- standing trust property in the pleadings mentioned," and the receiver entered into and remained in posses- (p) Defries v. Creed, 34 L. J. (q) Crow v. Wood, 13 Bcav. Ch. 607. 271. 1 Davenport v. Kelly, 42 New York, 193 ; Rankin v. JIarwood, 2 Phillips, 22 ; Ellicott v. The United States Ins. Co., 7 Gill, 307 ; Waring v. Robinson, Hoffman's C. R. 524 ; Van Alstyne v. Cook, 25 New York, 489 ; Becker v. Torrance, 31 New York, 631. See also in tli is connection, Fessenden v. Woods, 3 Bosw. 550. « Howell v. Ripley, 10 Paige, C. R. 46. 8 In Tin- Albany City Bank v. SchermerJiom, 9 Paige, 372, pro- ceedings for contempt were instituted against two sheriffs for levying upon certain property. The sheriffs were held not to be in contempt, as it appeared ultimately that the possession of the receiver had DOl been actually disturbed. (See 10 Paige, 0. R. 263.) Put 1 lie doctrine laid down by the court was substantially the same as that Btated in the text. POSSESSION OF RECEIVER. 183 sion of the real estate for several years, and the tenants attorned to him, an application to restrain the legal owner from proceeding against the tenants without the leave of the court was refused with costs. The appointment should have been over the rents of the particular property, and should have been followed by a direction to the owner to deliver possession, or that the tenants should attorn.(r) To constitute disturbance of a receiver, it is not necessary that the party complained of should be about to turn him out of possession. The court will not allow the first step to be taken in an action of ejectment against a receiver by any party, without an application having been first made to the court for permission to do so.(s) Parties who claim under a Right paramount to the Receiver must apply to the Court.— If at the time a receiver is appointed, a party claiming a right in the same subject-matter is in possession of the right which he claims, the appointment of the receiver leaves him in the possession of the right, and does not interfere with the exercise of it.(0 If, on the other hand, the claimant was out of possession, he must apply to the court before he institutes any legal proceedings affect- ing the possession which the receiver has acquired.^) The rule applies even to cases where the receiver has (r) lb. ; supra, p. 14. 573; Evelyn v. Lewis, 3 Ha. (s) Hawkins v. Gathercole, 1 472. Drew. 18. («) Evelyn v. Lewis, 3 Ha. (t) Johnes v. Claughton, Jac. 472. 18-4 POSSESSION OF RECEIVER. been appointed without prejudice to the right of persons having prior charges.^) The rule applies to cases where a receiver has been appointed over the estate of a tenant in possession. The appointment of a receiver as against the estate of a tenant does not affect the rights of the landlord, but he will not be permitted to exercise those rights without first obtain- ing the leave of the court. Before distraining he should come to the court and ask for authority to distrain, notwithstanding the presence of a receiver^?/) 1 Parties whose rights are interfered with by having a receiver put in their way, may, on making a proper application to the court, obtain all that they may (a;) Bryan v. Cormick, 1 Cox. occupiers for rent, without any 422 ; see Langton v. Langton, 7 order for the purpose. Furlong D. M. & G. 30. on Land, and Ten, 744. Where (y) Sutton v. Rees, 9 Jur. N. a receiver is appointed of lease- S. 456 ; see McDonnell v. Clarke, holds, and the landlord gives him 2 Hog. 109 ; Walsh v. Walsh, 1 notice of a claim for rent, but Ir. Eq. 209. Where, however, a takes no other steps, and the re- receiver is placed over the estate ceiver sells the furniture, the land- of an inheritor, or superior land- lord has no priority over other lord, and the lands are ocuupied creditors in the proceeds of the by under-tenants, the interme- sale : Sutton v. Rees, 9 Jur. N. diate tenant may distrain the S. 456. 1 See Everett v. Neff, 28 Maryl. 187, and Noev. Gibson, 7 Paige, C. R. 513. But where the receiver enters into possession of the de- mised premises, or otherwise indicates his election to take the term, he will (it is said) take it cum onere, and the landlord could (under the statute) follow ^oods removed from the premises, as in the case of an ordinary tenant. Hut where the receiver has done no act indi- cating an acceptance of the term, but simply takes possession of the goods, and removes them, the landlord cannot follow them. Martin v. Black, 9 Paige, C. R. 641-644, affirming the decision of the Vice- Chancellor iu 3 Edw. C. R. 580. See also Matter of Brown, 3 Edw. C. R. 384. POSSESSION OF RECEIVER. 185 justly require.(z) The court has the power, and will always take care to give a party who applies in a regular manner for the protection of his rights the means of obtaining justice, and will even assist him in asserting that right and having the benefit of it.(a) 1 The proper course for a party to adopt who claims a right paramount to that of the receiver, or rather to that of the party obtaining the receiver, and is prejudiced by having the receiver put in his way, is to apply to the court for leave to proceed, notwith- standing the possession of the receiver, or to come iu and be examined jpro interesse suo.(b) 2 The application (z) Angel v. Smith, 9 Ves. v. Haivorth, 3 Beav. 428; Russell 335; Russell v. East Anglian v. East Anglian Railway Co., 3 Raihoay Co., 3 Mac. & G. 117. Mac.& G. 117; Fowler v. Hay nes, (a) Evelyn v. Lewis, 3 Ha. 2 N. R. 156. In a case where a 475 ; Hawkins v. Gathercole, 1 receiver had been appointed in a Drew. 17. suit instituted by incumbrancers, (b) Hunt v. Priest, 2 Dick, it was held that a judgment- 540 ; Gomme v. West, lb. 472 ; creditor might file a bill against Anon., 6Ves. 281; Angel \. Smith, the owner and the receiver to 9 Ves. 345 ; Brooks v. G reathed, have his debts paid out of the 1 J. & W. 178 ; Johnes v. Claugh- surplus. The incumbrancers in ton, Jac. 573 ; Smith v. Lord the former suit need not be made Effingham, 2 Beav. 232 ; Gooch parties; Lewis v. Lord Zouche, 1 In Vincent v. Parker, 7 Paige, C. R. 65, a receiver was appoint- ed of the rents and profits of certain real estate, to a portion of which one Halbert and his wife were entitled for life, in right of the wife. This portion was not in controversy in the suit in which the receiver was appointed. A dispute arose between Halbert and his wife as to this portion of the fund ; and the court directed the amount to be paid into court by the receiver, to the credit of the suit between the husband and wife. 2 See DeGruot v. Jay, 30 Barb. 483. 186 POSSESSION OF RECEIVER. may be made on summons by motion or on petitionee) with notice,(<0 and is usually framed in the alterna- tive, that the receiver may pay the amount of the claimant's demand, or that the latter may be allowed to proceed .(e) It was held in an Irish case that a party who had, without the leave of the court, instituted proceedings at law to recover lands in the possession of a receiver, cannot come to the court for leave to continue his pro- ceedings.(/) If a special case, however, be made out, the court will allow a party to continue an action, notwithstanding that it has been commenced after the appointment of a receiver, and that the leave of 2 Sim. 388. So, also, in a case where a receiver had been ap- pointed at the suit of certain in- cumbrancers, in which suit the first incumbrancer was not a party, it was held that a bill would lie by him against the re- ceiver and the several parties to the suit to establish his priority : Smith v. Lord Effingham, 2 Beav. 232. In a later stage of tlic same case, lb. 7 Beav. 37 1, it. was said by Lord Langdale that u receiver is not a necessary party tn -.i bill by a first incumbrancer ililisli his right, and that there wa rea ion to doubl whether even he was a proper party. It is irregular to apply for an in- junction to restrain a receiver from paying moneys to other in« enmbrancers (2 Him v. 232), or to restrain a person from receiving moneys from a receiver. lb. ."><>7. (r) Where the application is made by a person not a party to the cause, and the property over which the receiver has been ap- pointed is landed property, the proper mode of proceeding is by petition : Richards v. Richards. John. 255. (d) See as to form of notice of motion or summons for examina- tion pro interesse suo, 3 Dan. Oh. 1'r. 1745. (e) Angel v. Smith, 9 Ves.335 ; Dixonv.Smith,l Sw.457 ; Brooks v. Oreathed, 1 J. & W. 176; (,'ooch v. JT«w<>rth,'.\ I'.rav. 128; Potts v. Warwick and Birming- ham <'anal Co., Kay, 148 ; Rim- sell v. East Anglian Railway Co., 3 Mac & <;. L25. (/) Lees v. Waring, 1 Hog. 216. Comp. Townsend v. Somer- villc, lb. 100. POSSESSION OF RECEIVER. 187 the court had not in the first instance been applied for in reference to the action.^) 1 In a case where ejectment was brought against a receiver, although it was without the previous leave of the court, the court directed an inquiry whether it would be for the benefit of the parties interested, who were adults, that the receiver should defend the ejectment, and charge the expenses in his accounts.(A) If a man has already brought an action against a receiver, or has otherwise interfered with the posses- sion of a receiver without the leave of the court, the order which retains these acts will also give leave or direct that he be examined pro interesse suo, the plain- tiff in the cause being directed to exhibit inter- rogatories^?) 2 The inquiry as to interest is conducted in the same manner as it would be if the property were in the possession of sequestrators under a commission of sequestration.(T) If the court, on examining the title, is satisfied that the right of the claimant is clear, it will at once decide the matter in his favor, without directing an inquiry, and order the receiver to pay him what he claims,(?) or give the claimant leave to {g) Gotver v. Bennett, 9 L. T. (&) Dan. Ch. Pr. 952, 1580. 310 ; see Aston v. Heron, 2 M. & {I) Dixon v. Smith, 1 Sw. 457 ; K. 397. Russell v. East Anglian Rail- {h) Anon., 6 Ves. 287. way Co., 3 Mac. &G. 118 ; Rand- (i) Johnes v. Claughton, Jac. field v. Randfield, 1 Dr. & Sm. 573. 314, per Kindersley, Y. C; see 1 See post, p. 205, note. 2 Parker v. Browning, 8 Paige, C. R. 391. 188 POSSESSION OF RECEIVER. enforce his remedy at law, notwithstanding the possession of the receiver.(?w) Thus, leave was given on the petition of a judgment-creditor, to sue out an elegit against property in the possession of a re- ceiver.^) So also, where a party wishes to distrain for rent on property in the possession of a receiver, the court, on being satisfied that the legal right of distress is paramount to the title of the party for whose benefit the receiver was appointed, will allow the distress to be made.(o) So also, where a rent- charge created by a railway company under the Lands Clauses Act, had been reserved to a landowner, the court gave him liberty to distrain, notwithstanding a receiver had been appointed of the tolls of the com- pany, in a suit instituted by the owner of a similar rent-charge, on behalf of all the other owners of similar rent-charges who should come in and con- tribute to the expenses of the suit.(p) So also in a case where it was held that a receiver ought not to Ex parte Thurgood, 18 L. T. N. S. 18, where damages for injuries sustained by a collision had been recovered against a railway com- pany over which a receiver had been appointed. (m) Where a party, claiming under a title paramount i<> that under which the receiver ifl ;ip- pointed, makes out tin- title lie alleges, and ifl permitted t<» en- force hia remedy at law, lie will i.c allowed the coats of the appli cat i"ii : Eyton v. I>> ribigh, jrc, Railway ' '<<., I.. &. G Eq. l I ; see Walsh v. Walsh, 1 Ir. Eq. 209. Comp. McDonnel v. Clarke, 2 Bog. 109. (it) Gooch v. Haworth,2 Beav. 428; Potts v. Warwick and Bir- mingham Canal Co., Kay, 142. (o) Sec Cramer v. Griffith,Z Ir. Eq. 232 ; Russell v. East An- glian Railway ''<>...'! Mac. & ) Eyton v. Denbigh, jpc, /,'. itlway Co., I- R. 6 Eq. 1 l, C. L6 W. It. 928. POSSESSION OF RECEIVER. 189 have been appointed, leave was given at the same time to the execution-creditor to levy, notwithstand- ing the appointment.^) In cases where the court is not satisfied that a receiver ought to have been appointed, the court may also, in order that the execution-creditor may not suffer loss by the possession of the receiver, in case it shall appear in proceedings taken by the creditor that his right ought not to have been interfered with by such possession, order that the receiver keep within the bailiwick for a certain period sufficient property to answer the demand ; or it will be ordered that the petitioner may levy unless the amount of the demand oe paid into the bank to the credit of the cause, within a week from the service of the order, the money to remain in the bank subject to the order of the court, and the receiver to be at liberty to pay it in.(r) If incumbrancers come in for examination pro inter- esso suo, and it turns out upon inquiry that their claim is made out, they are entitled to have the rents and profits which have been received and which are to be received by the receiver, applied in payment of their incumbrances, after paying the costs of the applica- tion.^) (q) Russell v. East Anglian Raihvay Co., 3 Mac. & G. 151, Railway Co., 3 Mac. & G. 125; 153. see Fowler v. Haynes, 2 N. R. (s) Walker v. Bell, 2 Madd. 156. 21 ; Tatham v. Parker, 1 Sm. & (?•) Russell v. East Anglian G. 506; see Walsh v. Walsh, 1 Ir. Eq. 209. 190 POSSESSION OF RECEIVER. If there is a doubtful question, and the question to be tried is a pure matter of title, the court will give the claimant leave to bring ejectment, taking care, however, to protect the possession by giving proper directions.^) It is not the course of the court, unless it is perfectly clear that there is no foundation for the claim, to refuse liberty in any case to try a right which is claimed against its receiver.(«) In a case where a prior incumbrancer had delayed too long in pursuing his remedies, the court refused his application that a receiver who had been appointed at the suit of a second incumbrancer should apply the rents according to their priorities, but leave was given to bring ejectment. The ground of the decision was that the prior mortgagee had no right to that relief by petition which he had sought, but had not followed up in another proceeding. But no costs were given against the prior incumbrancer.^) Where a receiver has been appointed over the estate of a tenant for life, the remainderman has a right immediately on the death of the tenant for life to go into possession without making any application to the court.(y) To whom Moneys in the Hands of a Receiver appointed in a Foreclosure Suit belong on dismissal of Bill.— W hen (/) Angel v. Smith, 9 Ves. 335; (*) Brooka v. Oreathead, 1 J. Brooks \. Oreathed, I J. & W. & W. 178. Empringham v. Short, .'! [y) Britton v. McDonald, 5 Ha. I7(i; Re Butler, L3 Ir. Oh. [r.Eq. 275; ReStack, L3 Ir. Oh. 457. 213. ■ Randfield v. Randfield, '.', I). V. A ■). 772. POSSESSION OF RECEIVER. 191 money comes into the hands of a receiver appointed in a foreclosure suit, and no particular direction has been given for its application, it belongs in the first instance to the plaintiff, who will be entitled to receive it on the dismissal of the bill.(e) An order for pay- ment may be made on motion after the suit is out of court by the dismissal of the bill. (a) Committal, &c., for Disturbance of Receiver.— A man who disturbs or interferes with the possession of a receiver is guilty of a contempt, and is liable to be committed. (6) In extreme or aggravated cases the court will for the purpose of vindicating its authority order a committal ;(c) but the court does not ordi- narily punish by actual committal. It is generally satisfied with ordering the party in contempt to pay the costs and expenses occasioned by his improper conduct and the costs of the application. (d) 1 In cases where the contempt consists in entering upon land in the possession of a receiver, or in bringing an action at law against a receiver, or against a party over (z) Paynter v. Carew, 18 Jur. sion against a receiver. Broad 417. v. Wickham, 4 Sim. 511. (a) Wright v. Mitchell, 18 (d) Russell v. East Anglian Ves. 292. Railway Co., 3 Mac. & G. 119; (b) Supra, p. 177. Haiokins v. Gathercole, 1 Drew. (c) Broad v. Wickham, 4 Sim. 18; Fripp v. Bridgwater, fyc, 511. No order nisi is necessary Railway Co., 3 W. R. 356 ; on an application to commit a Ames v. Birkenhead Docks, 20 person for taking forcible posses- Beav. 345 ; Lane v. Sterne, 3 Giff. 629. 1 See Clark v. Bcninger, 9 Am. Law Reg. (N. S.) 304. 192 POSSESSION OF RECEIVER. whose property a receiver has been appointed, the course of the court is to restrain by injunction the party in contempt from trespassing or prosecuting the action, as the case may be, and ordering him to pay the costs of the application. (e) AVhether the party proceeding at law did or did not know that a receiver has been appointed over property, or however clear his right may be, the court will restrain the prosecu- tion of the claim if it be instituted without leave.(/) In Turner v. Turner(g) the agents of the receiver in the cause, acting under the leave of the court, having taken forcible possession of a house occupied by a ser- vant of one of the defendants, an order was made restraining that defendant from prosecuting an indict- ment against the agents. An action, however, against a person who professes to act under the authority of a receiver will not be restrained unless it be clear that he was acting under authority. (A) A motion ought not to be made to commit a person for disturbing the possession of a receiver, when it is made long after the act complained of, and is made, not for the protection of the receiver's possession, but to compel payment of expenses after the question relating to the possession is settled. The proper course is to make such a direct application for the costs as is warranted by the circumstances. (I) (r) Johneay. Olanghton, Jac. (/) Evelyn v. Lewis, ',) Ha. DTK; Aston v. Heron, 2 M. A- K. 1T.5. 390; Tink v. Bundle, 10 Bear. (;/) L5 Jur. 218. :'.1H; Evelyn v. Lewie, •'! Ma. (h) Birch V. Oldis, Sail. & Sc. •17:'. ; Ames v. Birkenhead 1><>c/cs, 1 46. 20 Bear. 364 (»') Ward v. Swift, f> Ha. 312. POSSESSION OF RECEIVEK. 193 Sheriff may not disturb Possession of a Receiver.— The court will not protect a sheriff who executes process after notice from a receiver that he is in possession.^) 1 A sheriff who seizes goods in the possession of a re- ceiver is guilty of contempt,(Z) and may be committed, even although the act is the act of the under-sheriff, and there is no reason to infer that it is the personal act of the sheriff.(?w) In a case, however, where the under-sheriff had seized goods in the possession of a receiver, the court on the submission of the sheriff would not commit him, but ordered him to withdraw from possession, and to pay the costs. It was consid- ered that this order was sufficient under the circum- stances of the case for the maintenance of the juris- diction.^) 2 "Where the sheriff has taken property, part of which is claimed by a receiver, the latter will be directed to give a list of the property claimed by him to the (k) Try v. Try, 13 Beav. 422 ; (I) Lane v. Sterne, 3 Giff. 629. see Rock v. Cook, 2 Ph. 691, (m) Russell v. East Anglian where the sheriff entered under a Railway Co., 3 Mac. & G. 112. fi.fa. issued out of chancery. (n) lb. 119. 1 The appointment of a receiver after suit brought does not cause the suit to abate; Phoenix Warehousing Co. v. Badger, 6 Hun, 293. If a receiver is appointed by a State court, in a suit by stockholders against a corporation, the court will not, at the instance of creditors, on the subsequent bankruptcy of the corporation, discharge the receiver and turn the property over to the assignee. Myer v. Crys- tal Lake, fyc, Works, 14 Nat. Bank. B. 9. 2 See The Albany City Bank v. Schermerhorn, 9 Paige, C. B. 372, and 10 Id. 263, stated ante, p. 182, note. 13 194 POSSESSION OF RECEIVER. sheriff, who will be ordered to withdraw from the possession of the specified property .(o) The sheriff may also be restrained, if necessary, from compelling the receiver to interplead, and will be ordered to pay the costs of proceedings for that pur- pose. If the execution-creditor is before the court, he will be restrained from proceeding against the sheriff' in relation to the property seized by him, or any other property in the possession of the receiver. If the execution-creditor is not before the court, this cannot be done, but the sheriff' can come to the court for pro- tection, if necessary. (p) In cases where the court is not satisfied that a re- ceiver ought to have been appointed, the court may, in order that the execution-creditor may not suffer loss by the possession of the receiver in case it shall appear in proceedings taken by the creditor that his right ought not to have been interfered with by such posses- sion, order that the receiver retain within the bailiwick for fourteen days goods, chattels, and effects equal in value to those seized by the sheriff, not exceeding what would be necessary to satisfy the levy in the writ of ji.fa., such value to be settled, if necessary, by the judge, (g-) 1 (o) Wilmer v. Kidd, Set. on Railway Co., 3 Mac. & G. 120, Deer. L002. 122. (p) Russell v. East Anglian (?) lb. 121, 122. 1 See. in this connection, R*c7i v, Loutrel, Al>l>. Pr. R. 356. In this case, however, the sheriff's levy was prior to the appointmenl of the receiver. In Edwards v. Edwards, 34 L, T. Rep., N. S. 472, if was held thai the appointmenl of a receiver, by an order which POSSESSION OF RECEIVER. 195 provides that the person named therein shall be appointed receiver upon his giving security, takes effect only from the date of the chief clerk's certificate, that the security is perfected. Therefore, when after such an order, and before the receiver so appointed had per- fected his security, an execution creditor who had not received notice of the appointment put the sheriff in possession of the goods over which the receiver was appointed; Held, reversing the judgment of Malins, T. C, that the execution creditor was entitled to the goods. CHAPTER VII. POWERS AND DUTIES OF A RECEIVER. The general duty of a receiver may be said to be to take possession of the estate and premises, or any other property, the subject-matter of dispute in the cause, in the room or place of the owner thereof; and, under the sanction of the court, when necessary, to do all such acts of ownership as to the receipt of rents, com- pelling payment of them, management, and letting the lands and houses, and otherwise making the pro- perty as productive for the parties to be ultimately declared to be entitled thereto as the owner himself could do if he were in possession. 1 1 A receiver is, as a general rule, a mere costodian, and has no powers except those conferred upon him by the order of his appoint- ment. See Yeager v. Wallace, 44 Penn. St. E. 296; Verplanck v. The Mercantile Ins. Co., 2 Paige, C. R. 453; Hooper v. Winston, 24 Illinois, 3G3; Grant v. The City of Davenport, 18 Iowa, 194. See, also, Btnneson v. Bill, G2 Illinois, 408, where it was held that a receiver of an insolvent insurance company appointed at the suit of creditors should not be directed by the terms of his appointment to pay the debts of the company. His functions should be simply to collect the assets and bring the money into court for distribution. J'.ut " in the progress and growth of equity jurisdiction it has become usual to clothe such officers with much larger powers than were for- merly conferred," per Bwayne, J., in Davis v. Qray, L6 Wal. 219. In many of the United States, moreover, enlarged powers are con- ferred by statute upon receivers in certain cases j but persons in- vested with such authority arc not strictly receivers— they are statutory assignees, and have much more extensive duties and powers than those of a mere custodian of property. Sec the Ian- POWERS AND DUTIES OF RECEIVER. 197 Parties required to deliver up Possession.— "Where parties to the record are directed by the order to de- liver up to the receiver the possession of such parts of the property as are in their holding,(a) the receiver, as soon as his appointment is complete, should apply to all such parties to deliver up possession accordingly. If any of them refuse to do so, the receiver should report the refusal to the solicitor of the party having the conduct of the proceedings, who must then serve such party personally with the order directing the possession to be delivered up.(6) If possession is still withheld from the receiver, an application should be made by motion ex 7parte for a writ of assistance directed to the sheriff of the county wherein the property is situate, to put the receiver in possession pursuant to the order.(c) The application should be supported by an affidavit of service of the order and of non-compliance.(^) The writ is prepared, issued, and executed in the ordinary manner.(e) 1 (a) Supra, p. 14. for writ of assistance, 3 Pan. Ch. (6) Green v. Green, 2 Sim. Pr. 51, 1734. 430 ; Ord. XXIX. r. 5. (d) Dan. Oh. Pr. 1578 ; see as (c) Dan. Ch. Pr. 1578 ; see as to form of affidavit, 3 Dan. Ch. to form of order, Set. on Deer. Pr. 1735. 1229 ; as to form of motion-paper (e) See Dan. Ch. Pr. 957. guage of Judge Strong in Yeager v. Wallace (supra) ; also Runyon v. The Farmers' and Mechanics' Bank, 3 Green, C. R. 480 ; Cooney v. Cooney, 65 Barb. 524; and the statutes of the different States cited, ante, in the notes to Chapter I. 1 The property may be sequestered, and the agents and servants of the party may be prohibited from delivering it to him, or applying it to his use, on pain of contempt. The People v. Rogers, 2 Paige, C. R. 103. See also Parker v. Browning, 8 Paige, C. R. 388, cited ante, page 178, note ; and In re Cohen §■ Jones, 5 Cal. 494. 198 POWERS AND DUTIES OF RECEIVER. If the party to the proceedings is not ordered to deliver up possession to the receiver, he is not bound to do so; but he will be charged with an occupation rent for the premises in his possession.(/) A person in possession, it may be observed, who has been ordered to pay an occupation rent, will not be ordered on motion before the hearing to pay an occupation rent for a period antecedent to the order for fixing occupa- tion rent, if under the circumstances of the case the period for fixing the occupation rent and appointing the receiver is the origin of his tenancy.^) Tenants should be required to attorn.— If tenants in possession of real or leasehold estates over which a receiver is appointed, are directed by the order to attorn to the receiver,(/t) the receiver should, as soon as his appointment is complete, call on them to attorn accord ingly.(Y) If the tenant refuses to attorn to the receiver, the party prosecuting the order should serve him person- ally with a copy of the order for the appointment of a (/) Randfieldv.Randfidd," care that the tenants shall be W. K. 65 1 . protected, both while the receiver (g) Lloyd v. J!/aso?t, 2M.& C. continues to act, and when, by 487. the authority of the court, he is (h) Supra, p. 14. withdrawn. Evans v. Mathias, (*) The attornment to a re- 7 E. & B. 602. The attornment ceivcr appointed by the Court of creates a tenancy between the Chancery constitutes a tenancy tenant and receiver only, and by estoppel between the tenant does not enure for the person and receiver, which the court who may ultimately be found to applies to the purpose of collect- be entitled to the legal estate, so ing and securing the rents till a as to enable him to distrain, lb. decree can be pronounced, taking POWERS AND DUTIES OF RECEIVER. 199 receiver, and of the order or certificate completing the appointment,^) and with a notice in writing signed by the receiver requiring him to attorn and pay.(7) If he still refuse to attorn, the tenant should be served with notice of motion to attorn and pay within a limited time after the service of the order to be made on the motion. (m) The person served may appear on the motion and inform the court whether he is in possession as tenant or not.(rc) If he does not appear, the order will be made upon an affidavit of service of the notice of motion, orders, certificate, and notice to attorn, and on proof by affidavit of the refusal to attorn. (o) The order will be made without costs in cases where the tenant had reasonable ground for refusing to attorn. (p) A copy of the order indorsed in the usual manner is then served personally upon the person thereby directed to attorn :(q) and upon production to the record and writ clerk of an affidavit of such service, and of an affidavit by the receiver of non-compliance, he will seal an attachment against the party in contempt. (r) (Jc) Supra, p. 165-6. (I) Dan. Ch. Pr. 1578 ; see as to form of notice to tenant to attorn, 3 Dan. Ch. Pr. 1737 ; as to form of attornment, lb. 1738. (m) See as to form of notice of motion for tenant to attorn and pay, 3 Dan. Ch. Pr. 1739. (n) Keid v. Middleton, T. & E. 457 ; Hobhouse v. Hollcombe, 2DeG.&S. 208. (o) Dan. Ch. 1578; Hobson v. Shearwood, 19 Beav. 575 ; see as to form of affidavit in support of motion to attorn, 3 Dan. Ch. Pr. 1741. (p) Hobhouse v. Hollcombe, 2 DeG. & S. 208. Comp. Hobson v. Sheanvood, 19 Beav. 575. (q) Dan. Ch. Pr. 1579. (?•) See as to form of affidavit, 3 Dan. Ch. Pr. 1743. 200 POWERS AND DUTIES OF RECEIVER. The attachment is prepared, issued, and executed in the ordinary manner.(s) In cases where it does not clearly appear what is the nature of the interest of the person in possession of property, it is not necessary to make him a party to the suit. The court will upon the allegation that he is a tenant treat him as a tenant, and require him to attorn, unless he can satisfy the court that he holds the pos- session in some other character.(0 In Reid v. Middle- ton{u) it appeared that the tenant in possession had not agreed to pay any specific rent, and an order was made in consequence, that an occupation rent should be settled by the Master, and that the tenant should pay the arrears and future payments of such occupa- tion rent. If a judgment-creditor be in possession under his judgment, the court cannot order him to attorn. {x) Delivery of Court Rolls.— The court will, on the petition of the lord, order the steward of a manor who holds the court rolls as the lord's agent, to de- liver them up to the receiver.(y) Rents in Arrear, &c.— A receiver is entitled to all the rents in arrear at the date of his appointment,^) and (s) Dan. Oh. Pr. 941. (z) Codrington v. Johnstone,! (/) Reid v. Middleton, T. & R. Beav. 524 ; McDonnell v. White, 455. 11 II. L. 570; see Russell v. (u) It.. Russell, 2 Ir. Cti. 574. Although (x) Davia v. Duke of Marl- the tenants are only responsible borough, 2 Sw. 1 L8. from the time when the order to [y) Jtawes v. ltaives, 7 Sim. pay their rents to the receiver is 624. served on them, the person cnii- POWERS AND DUTIES OF RECEIVER. 201 to all the rents which accrue during the continuance of his receivership ; an order may be obtained on motion or summons with notice to the tenant for pay- ment thereof by him to the receiver, notwithstanding that he may not have attorned. The tenant will have to pay the cost of the application. (a) 1 A person who admits a sum of money to be due from him to the estate, cannot dispute the right of the receiver to collect it.(6) Although a receiver is entitled to all arrears of rent at the date of his appointment, produce which has been already separated from the estate before the date of the order, though not yet converted into money, does not belong to the receiver. "Where, therefore, a manager was appointed of a "West Indian estate with directions to receive and remit the rents and produce, the consignees were not ordered to pay into court the surplus moneys arising from the produce of the estate which had been severed and shipped by the mortgagor tied to receive such rent and Beav. 575 ; see as to form of arrears is bound from the date of notice of motion for summons, 3 the order for a receiver, when he Dan. Ch. 1744. has notice of such order. Hollier (b) Wood v. Hickings, 2 Beav. v. Hedges, 2 Ir. Ch. 376. 294. [See post, p. 205, note l.J (a) Hobson v. Shearwood, 19 1 In a creditor's suit, where a receiver had been appointed, and where the debtor was a tenant and had underlet, it was held that rents which came into the receiver's hands from the under-tenants ought not to be considered as subject to distribution among creditors until the claim of the original landlord for rent had been extin- guished. Biggs v. Whitney, 15 Abb. Pr. Rep. 388. As to the duties of a receiver of rents, see Keenan v. Shannon, 9 Nat. Bank. Res?. 441. 202 POAVERS AND DUTIES OF RECEIVER. to the consignees, but had not been received by them at the date of the order.(c) Duty of Receiver to take Proper Receipts.— When the order directs that the receiver shall put down the interest of incumbrancers, or make any other payments, he must, of course, comply with that order, and the sums so paid by him will be allowed in his accounts. He must, however, take proper receipts from the per- sons to whom he makes such payments, and it must be remembered that in passing his accounts he will be subject to the rules to which all other accounting parties are subjected) and he will only be allowed to discharge himself by affidavits as to those payments which are under 40s. ; for all other payments he must produce proper vouchers.(i) ; Hughes v. Hughes, 3 (/<) Hughes v. Hughes, 3 Bro. Bro. (J. C. BG; 1 Ves. Jr 1G1 ; 0. C. 85; 1 Vcs. Jr. 161. POWERS AND DUTIES OF RECEIVER. 203 Leave that the receiver may distrain in the name of the person having the legal estate may always be obtained from the court on motion or petition.^") 1 If there is any doubt who has the legal right to the rent, the receiver should make an application to the court for directions thereon ; but in cases where there is no doubt who has the legal right to the rent, the leave of the court to distrain in the name of the person having the legal estate does not seem to be necessary.(&) If, however, the person having the legal estate is a trustee, and the receiver is a solicitor, the court is unwilling to give him power of instituting proceedings against a tenant for arrears of rent if the trustee is opposed to the proceedings. A reference to the Master as to the propriety of proceeding in the name of the trustee was refused in such a case.(f) Instead of moving that he may have liberty to distrain in the name of the party having the legal estate, the receiver may obtain an order on motion or summons, with notice to the tenant for payment, not- withstanding that he may not have attorned,(m) or he may move that the tenants do attorn, and the distress may afterwards be made in his name. This will be (i) Shelly v.Pelham,! Dick. 750; Brandon v. Brandon, 5 123 ; Mitchell v. Duke of Man- Madd. 473. Chester, 2 lb. 787; Hughes v. {1) Delia Caineax. Hay ward, Hughes, 1 Ves. Jr. 161 ; 3 Bro. McClell. & Y. 272. C. C. 85. See as to form of order (m) Hobson v. Shearwood, 19 Set. on Deer. 1013. Beav. 575 ; supra, p. 198. (&) Pitt v. Snowdon, 3 Atk. 1 See remarks of Cowen, J., in Merritt v. Lyon, 16 Wend. 410. 204 POWERS AND DUTIES OF RECEIVER. ordered ou motion ; and if the tenants oppose on the ground of the pendency of an action commenced be- fore the appointment of the receiver for the same rent, the motion will be ordered to stand over until the action has been tried. (n) In Brandon v. Brandon ,(o) it was said to be the practice for the receiver to distrain upon his own dis- cretion for rent in arrear within the year ; but as to rent in arrear for more than a year, that an order from the court was necessary. Brandon v. Brandon was, it must be observed, a case in which the legal estate was in trustees, and a motion was made that the receiver might be at liberty to distrain in the name of the trustees, so that the statement as laid down by Leach, M. R., must perhaps be taken as referable to cases where the legal estate is outstanding, and there has been no attornment to the receiver. As a receiver is entitled to all arrears of rent, he may, it would appear, if there has been attornment, distrain without obtain- ing the leave of the court for all arrears accrued during the tenancy. An application for leave to distrain is made in cham- bers and ordinarily by summons, but it is not usual to draw up an order in such cases, the minute made by the chief clerk of the directions given being deemed sufficient, (p) (?/) ffobhouae v. Hullcombe, 2 (o) 5 Madd. 473. DeG as. 208; see as to form of (}>) Dan. Oh. Pr. l. r >84; see as notice of motion for tenant to to form of summons for leave for attorn and pay rent, and afli- receiver to distrain, 3 Han. Ch. davits, 3 Dan. Ch. Pr. 17:i'J- Pr. 1746; and bring actions for 17 11. arrears of rent, lb. 17-17. POWERS AND DUTIES OF RECEIVER. 205 In a case where a plaintiff upon whose application the receiver has been appointed was proceeding both at law and in equity, the court would not give leave to the receiver to distrain upon the tenants unless the plaintiff would undertake to proceed in equity only, because the tenants might file bills of interpleader.^) The abatement of the suit does not affect or deter- mine the appointment of a receiver, or suspend his authority to proceed against the tenants. His autho- rity continues until an order is made for his removal. Until such an order is made a receiver may distrain or perform his other duties, notwithstanding a total abatement of the suit.(r) It was held in an Irish case that a tenant who rescues a distress made by the receiver, will not be attached for the rescue, but that the receiver must proceed at common law or under the statute.(s) Duty of Receiver appointed over Personal Property. — Where a receiver is appointed by the court to get in outstanding personal property, it is his duty to collect all he can get in. 1 The order appointing a (q) Mills v. Fry, Coop. 107. (s) Fitzpatrickv. Eyre,lHog. (r) Neivman v. Mills, 1 Hog. 171. 291; Brennan v. Kenny, 2 Ir. Ch. 583. 1 A receiver to whom money is paid is not bound to investigate the liability of the party paying it, and he can part with it only under an order of the court. Even if the money is paid by mistake, the court alone can order it to be refunded. Getty v. Campbell, 2 Robt. 664. When a good tender cannot be made to a receiver, see Poague v. Greenlee, 22 Grat. 724. 206 POWERS AND DUTIES OF RECEIVER. receiver of outstanding personal estate generally com- prises a direction that the parties in whose possession the same may be shall deliver over to the person to be appointed receiver all securities in their possession for such outstanding personal estate, together with all books and papers relating thereto.(^) If the parties in whose hands such securities and papers are, refuse to deliver them up, the receiver should give notice of such refusal to the party conducting the proceedings, who must take the necessary steps for enforcing the order.(w) If the person indebted to the estate refuse to pay the amount due to them, the sanction of the judge must be obtained to the receiver putting them in suit.(:c) Applications for the sanction of the judge in such cases are usually made by summons supported by affidavits or other evidence of the facts.fj/) 1 (<) Set. on Deer. 1002. unless it appears likely that some (u) Dan. Ch. Pr. 938 et seq. fruits may be derived from the (x) lb.; Set. on Deer. 1013, suit. Daciev. John, McClell. 575. 1031. The court will not em- (?/) See as to form of summons, power a receiver to sue for debts 3 Dan. Ch. Pr. 1268. 1 The right of a receiver to bring actions against persons not parties to the suit in which he is appointed, for the recovery of real or personal preperty, or for the collection of debts, is subject to two restrictions — in the tirst place, the sanction of the court must be pre- viously obtained, and secondly, the action must be brought in the name of the party in whom the legal right or title to the property to be recovered is vested. Daniel's Ch. Pr. 1439; and see the cases cited in note g, p. 216, infra, and Manlove v. Burger, 38 Ind. 211 ; Battle v. Davis, 66 North Carolina, 252 ; Screven v. Clark, 48 Georgia, 41. This rule is generally followed in the United States. The receiver is regarded as a mere custodian, and not as having any legal right to the property. See Yeager v. Wallace, 44 Penn. St. Rep. 294 (where the doctrine is stated by Strong, J.) ; Freeman v. POWERS AND DUTIES OF RECEIVER. 207 Receiver of Partnership— When a receiver is ap- pointed to manage a partnership concern, he must be Winchester, 10 Sm. & Marsh. 577 ; Newell v. Fisher, 24 Miss. 392 ; Leonard v. Storrs. 31 Alab. 488 ; Green v. Winter, 1 Johns. 0. R. 60 ; Merritt v. Lyon, 16 Wend. 405 ; King v. Cntts, 24 Wis. 627 ; though in Tillinghast v. Champlin, 4 R. Island, 177, it was said that the better practice is for the receiver to bring actions suo motu, and without special leave. The court, however, may by its decree, under certain circum- stances, confer upon the receiver the right to sue in his own name. Leonard v. Storrs, 31 Ala. 488 ; see also Hardivick v. Hook, 8 Georgia. 358 ; Adams v. Woods, 15 Cal. 206 ; and Iddings v. Bruen, 4 Sand. 0. R. 417; and such an order is frequently made. And in some States the authority to bring actions is conferred upon some receivers by statute. Hamlin v. Wright, 23 Wisconsin, 493; Grant v. The City of Davenport, 18 Iowa, 194; Everett v. The State, 28 Maryl. 208 ; Hoyt v. Thompson, 1 Selden, 320 ; Porter v. Williams, 5 Selden, 142 ; Steivart v. Beebe, 28 Barb. 34 ; Coope v. Boivles, 42 Barb. 87; Bolles v. Duff, 43 N. Y. 469; RocTcioell v. Memvin, 45 Id. 166; Story v. Furman, 25 Id. 214; Calkins v. Atkinson, 2 Lans. 12 ; The Albany City Lis. Co. v. Van Yranken, 42 How. Pr. R. 281 ; Manlove v. Burger, 38 Ind. 211 ; Same v. Naylor, Id. 424. See the remarks of Judge Strong on this subject, in Yeager v. Wallace, 44 Penn. St. R. 296 ; and of Wayne, J., in Booth v. Clark, 17 Howard, 331 ; see, also, Bank of North America v. Wlieeler, 28 Conn. 441. The receivers of national banks may sue without special orders. Bank v. Kennedy. 17 Wal. 19. See also Kennedy v. Gibson, 8 Id. 506 ; Bank of Bethel v. The Pahquioque Bank, 14 Id. 383. In Booth v. Clark, it was decided that a receiver had no authority to sue outside the jurisdiction in which he was appointed ; and this rule was followed in Graydon v. Church, 7 Michigan, 36. and Hope Ins. Co. v. Taylor, 2 Robt. 278 ; and see Hunt v. Columbian Jns. Co., 55 Maine, 297 ; Harvey v. Varney, 104 Mass. 436-443 ; and supra, pp. 172-3. But Runk v. St. John, 29 Barb. 585, is the other way. See also Bidlack v. Mason, 11 0. E. Green, 230. Where, however, the legal title has been conferred upon the receiver by an assignment from the former holder, he may sue. Graydon v. Church (supra). The appointment of a receiver of a bank by a 208 POWERS AND DUTIES OF RECEIVER. guided by the terras of the order of appointment, keeping in mind the general maxim that as his au- State court, will not prevent an action in another State against the company. See City Ins. Co. v. Commercial Bank, 68 111. 348. And a receiver may prove a debt against a bankrupt in another State. In re Republic Ins. Co., 8 Nat. Bank. Reg. 197. So also Armstrong v. Armstrong, L. R. 12 Eq. 614. The receiver appointed in bankruptcy proceedings before the election of an assignee is not entitled to bring suit for the recovery of property transferred before the commencement of bankrupt pro- ceedings in violation of the bankrupt act; he is a mere custodian. Lansing v. Manton, 14 Nat. Bank. Beg. 127. The court will restrain a receiver from bringing an unauthorized and unjust action. See the Matter of Merritt, 5 Baige, 131, where the law upon this subject is stated by Chancellor Walworth, whose decree was affirmed in Merritt v. Lyon, 16 Wend. 405. The receiver's authority to sue must be duly alleged, and if tra- versed duly proved. Gillett v. Fairchild, 4 Denio, 80 ; White v. Joy, 3 Kern. 83 ; Bangs v. Mcintosh, 23 Barb. 598. See, however, Case v. Marchentl, 23 Louisiana Ann. 60. A receiver cannot be sued without leave of the court : De Groot v. Jay, 30 Barb. 483 ; and a violation of this rule will be regarded as a contempt, and punished accordingly; Taylor v. Baldwin, 14 Ab- bott's Pr. R. 166 ; Riggs v. Whitney, 15 Id. 388 ; Noe v. Gibson, 7 Paige, C. R. 515; Robinson v. Atlantic and Great Western Rail- way Co., 66 Penna. St. R. 16 ; Thompson v. Scott, 3 Cent. Law J. 737 ; Allen v. Central R. R., Id. 434, 2 Law and Eq. Rep. 202. But a receiver may be sued for a breach of any obligation or duty assumed by him in conducting a business in which he is acting as receiver. Thus a receiver of a railroad has been held liable as a common carrier. See Blumenthal v. Brainerd, 38 Vermont, 408; Paige v. Smith, 99 Mass. 395. See 2 Southern Law Rev. (N. S.) 576; article by Mr. High. And a receiver is liable for taking possession of property not embraced in the decree appointing him. Ihlls v. Parker, 111 Mass. 508. In actions against receivers, they ought not to waive any legal technical defence. McEvers v. Lawrence, Boflfraan, 0. It. 172. When actions are properly brought or defended by a receiver, the court will not suffer the costs to be laid upon him. Devendorf v. Dickinson, 21 How. Pr. R. 275 ; sec also the judgment in Common- wealth v. Runk, 26 Penna. St. R. 237 j The Columbian Ins. Co. v. POWERS AND DUTIES OF RECEIVER. 209 thority flows from the court, he must, in all cases, act under a special order to be obtained from the court. Power and Duty of Receiver as to letting Estates.— A receiver being appointed by the court for the man- agement of the estate, it was formerly a motion of course to give liberty for a receiver to set or let. An express power to that effect was afterwards inserted in most orders.O) By the 64th order of April, 1828, it was ordered that in any order directing the appoint- ment of a receiver of a landed estate, there be inserted a direction that he should have power to set and let with the approbation of the Master, who was empow- ered without the special order of the court to receive and report on proposals from the parties interested, for the management or letting of the estate.(a) Since the 15 & 16 Vict., ss. 80 and 86, a direction to manage or set and let is no longer inserted in the order of appointment, the judge having power to give any (z) Need v. Bealing, 3 Sw. lull, 14 Sim. 600 ; Dvffield v. 304 11. Ehves, 11 Beav. 590. (a) See Thornhill v. Thorn- Stevens, 37 New York, 536 ; and infra, p. 231. "Where, however, the matter is purely personal with the receiver, costs maybe imposed on him. Chapin v. Thompson, 4 Hun, 779. As to a receiver's compromising a claim under the direction of the court, see Suydam v. The Receivers, 2 Green, C. R. 278 ; refer- ring claims, Guardian Savings Institution v. Bowling Green Sav- ings Bank, 65 Barb. 275; and settling mutual claims, Matter of Van Allen, 37 Barb. 225. The court may, upon summary application, direct a receiver of an insolvent corporation to allow a set-off in favor of a party against whom the receiver has brought an action. Holbrook v. The Re- ceivers, 6 Paige, C. R. 220. 14 210 POWERS AND DUTIES OF RECEIVER. directions in chambers as to the management of the estate.(6) Under the old practice the course of the court was to order the Master to receive proposals as to leases of property over which a receiver had been appointed, and to report his opinion thereon. The court did not delegate to the Master the power of approving or sanc- tioning leases. The order was simply that he should receive proposals for leases, and report his opinion thereon to the court.(c) A receiver could not, without the sanction of the court, set or let,(W) even for a single year.(e) A lease granted by the receiver with- out the consent of the court, as evidenced by the Master's Report, was invalid. (/) If, however, a re- ceiver had contracted for a lease without the consent of the court, the court would, on motion, refer it to the Master to see if the contract was for the benefit of the parties, and what better rent could be obtained. If the contract was approved of, it was confirmed. (g) A receiver under the present practice may let at his discretion for a year certain or less, or for any time not exceeding three years, without applying for the sanction of the judge.(A) But the power of a receiver to grant leases is limited to such parol leases as are authorized by the second section of the Statute of (b) Set.011 Deer. L016. (/) DurD/urdv.Laiie^^M]^. Mr lh nniiii v. Kealey, Jac. Ch. 303. :;T I ; Symona v. Symons, '1 Y. &. (g) Anon., lb. 0.1. (A) Shujr v. Holdway, Dan. (,t, 1 Ws. Jr. 138. Ch. l*r. LI ('■j Wynne v. Lord A'< wbor- ough, Hi. id. POWERS AND DUTIES OF RECEIVER. 211 Frauds.(/) If a receiver grants a lease for a longer period than three years, the lease will be binding as between him and the party who takes the lease, because the latter cannot be suffered to repudiate his agree- ment and say that the lease is invalid on the ground that it was not made by the person having the legal estate or power of leasing.^') As, however, between the lessee and the owner of the legal estate, the lease has, in the absence of special circumstances, no binding force, even though it may have been made with the sanction of the judge. The powers of the receiver are limited to the receiving proposals, and making arrange- ments as to the leasing of the property, and granting the parol lease before referred to. lie has no power to transfer the legal estate in the property over which he has been appointed receiver, nor can such a power be given to him by the judged) Leases of property in the hands of a receiver should be made or signed by the person having the legal estate or pow T er of leasing. If necessary, recourse is to be had to the provisions of the various statutes conferring jurisdic- tion on the court to sanction leases.(7) A receiver should move for liberty to let before the old lease expires; although, if he neglect to do so, he will be at liberty to make what he can of the estate during the current year, he will be visited with any loss which may arise.(m) (?') 29 Car. 2, c. 2. Madd. 469 ; Evans v. Matthias, (j) Dancer v. Hastings, 4 7 E. & B. 602 ; supra, p. 202. Bing. 2 ; 12 iAIoo. 34. {I) Dan. Ch. Fr. 1727 et seq. {k) See Gibbons x. Howell, 3 (m) Wilkins v. Lynch, 2 Moll. 499. 212 POWERS AND DUTIES OF RECEIVER. "Where the court directs the receiver to give any one the option of being tenant, it reserves power to the receiver to inspect the state and condition of the property.(n) In cases where the estate over which a receiver is appointed is in the colonies, the East Indies, or a foreign country, it is usual to give the receiver more extensive powers of managing and letting than in the case of estates situated in this country. (o) An inquiry is generally directed to ascertain the terms beyond which the receiver shall not be permitted to let. This is done with the view of preventing the necessity of constant applications to the court for permissions to let.(p) A receiver must let the estate over which he is act- ing as receiver, to the best advantage. He is bound to obtain the best terms.(^) 1 He may not, either in his own name or through the medium of a trustee, become a tenant of any part of the estate over which he is acting as receiver.(r) A receiver cannot raise the rents on slight grounds without the leave of the (n) Baylies v. Baylies, 1 Coll. (r) Meagher v. O'Shaugnessy, 545. cit. PL & K. 207, 224; see An- (o) Morris v. Elme, 1 Ves. Jr. derson v. Anderson, 9 Ir. Eq. 130. 23; Eyre v. McDonnell, 15 Ir. ( p) — v. Lindsay, ] 5 Ves. 91. Ch. f)34 ; Comp. King v. O'Brien {q) Wynne v. Lord Newbor- 15 L. T. N. S. ~:*. ongh, 1 Ves. Jr. 164. 1 He Is bound not only to obtain the besl rent, but also to lease to those who would take the best care of tlic property. See Knott v. The Receivers of the Morris Canal Co., 3 Green, C. R. 42G ; also Ballet v. Ditf, 87 How. Pr. B, L62. POWERS AND DUTIES OF RECEIVER. 213 court,(s) nor can he abate the rents or forgive the tenants their arrears without the consent of the par- ties beneficially interested. (t) Mode in which Proposals for Leases are dealt with. — Applications with reference to property under the management of a receiver are usually made by sum- mons at chambers.(w) The judge at chambers receives proposals for the management and letting of the estate from the parties interested, and gives his directions thereon. The usual course is for the proposed tenant to enter into a provisional agreement to become tenant or lessee of the property upon the terms therein specified, sub- ject, however, to the approval of the judge. A sum- mons for an order to carry the agreement into effect is then taken out by the plaintiff's solicitor and served on the parties interested. The application is supported by the production of the agreement and the affidavit of a land agent, or other competent person, stating the grounds on which, in his judgment, the agreement should be adopted. (v) The power to demise on the terms specified must also be shown by proper evidence. If the agreement is approved, either an order is made (s) Wynne v. Lord Neiobor- applications, Set. on Deer. 1012 ough, 1 Ves. Jr. 164. et seq. {t) Evans v. Taylor, Sau. & (v) Dan. Ch. Pr. 1157 ; Smith, Sc. 681. Ch. Pr. 1033 ; see as to form of (u) Dan. Ch. Pr. 1587; Set. summons to approve, of agree- on Deer. 1017 ; see as to form of ment to grant a lease, and of affi- summons, 3 Dan. Ch. Pr. 1746- davits to support, 3 Dan. Ch. Pr. 1750 ; see form of orders on such 1281, 1282. 214 POWERS AND DUTIES OF RECEIVER. directing it to be carried into effect, and that the lease to be granted in pursuance thereof be settled by the judge, either absolutely or in case the parties differ; or, to save expense, the chief clerk endorses a minute of the approval on the summons, and adjourns the matter till the draft lease has been brought in for approval. Upon the draft lease, or a certified copy of the order (if any), approving the agreement, being left at chambers, a summons is taken out to settle the draft lease ;(x) or if no order has been drawn up, an appoint- ment for this purpose is given. The summons or ap- pointment is then served on the parties interested. The draft lease is then settled either by the judge or his chief clerk, with the assistance, if necessary, of one of the conveyancing counsel. The draft is then engrossed, and an affidavit verifying the engrossment of the lease, and of the counterpart (if any), is brought in, and the chief clerk signs a memorandum of allow- ance in the margin of each engrossment. An affidavit is then made verifying the engrossment with the draft as settled. A copy of the affidavit is left at chambers, with the engrossment and draft.(y) The chief clerk then signs the memorandum in the margin of each engrossment, and issues his certificate that the lease has been settled, or if an order approving the agreement lias been drawn up, an order is made ap- (x) See as to form of summons Ch. Pr. 1033; see as to form of ttle draft lease, Hi. 117">, affidavit verifying engrossment 1283. of lease and counterpart, 3 Dan. (>/) Dan. Oh. Pr. 1157 j Smith Ch. Pr. 1284. POWERS AND DUTIES OF RECEIVER. 215 proving the agreement and the lease. The certificate is completed in the usual way.(^) Power of Receiver to give Notice to quit.— A receiver appointed by the Court of Chancery, with a general authority to let the lands from year to year, has thereby also an implied authority to determine such tenancies by regular notices to quit.(a) In Mansfield v. Hamilton, (b) Lord Redesdale said that the tenants of an estate being, under the circumstances of the case, tenants from year to year to the receiver, he would not turn them out without notices to quit. If a tenant hold on after regular notice to quit given to him by a receiver, the Court of Chancery will give the receiver leave to sue the tenant for double the yearly value of the premises, under the 4 Geo. II., c. 28, s. l.( fi ) Receiver must not involve Estate in Expense.— As a general rule, a receiver must do no act which may involve the estate in expense without the sanction of the court. It is not proper for a receiver to defend actions which may be brought against him without the sanction of the judge.(cf) In a case where a re- (z) Dan. Ch. Pr. 1157 ; Smith Crosbie v. Barry, Jon. & C. 106 ; Ch. Pr. 1033 ; see as to form of Wilkinson v. Colly, 4 Burr, certificate of settlement of lease, 2697. 3 Dan. Ch. Pr. 1286 ; as to min- (&) 2 Sch. & Lef. 30. utesof order approving the agree- (c) Wilkinson v. Colly, 4 Burr, ment and the lease to be issued in 2694. pursuance thereof, lb. 1287. (d) Anon., 6 Yes. 287 ; Sivaby (a) Doe v. Read, 12 East, 61 ; v. Dinkon, 5 Sim. 629. The re- 216 POWERS AND DUTIES OF RECEIVER. ceiver had, without the authority of the court, de- fended an action arising out of a distress made by him upon a tenant of the estate for rent, and was unsuc- cessful, the court refused to allow him his costs of the action.(e) But if he defends an action brought against him successfully, without putting the estate to the expense of an application to the court, which he might have made for his own benefit, he has the same right to be indemnified as if he had applied to the court.(/) Nor can a receiver bring ejectment without the leave of the court.(^) 1 A motion, however, on the part of the tenants of an estate to restrain a receiver from doing acts which are within his authority, will be rejected with costs, as they have no sufficient interest to support it.(/i) Power of Receiver as to Repairs.— A receiver may lay out small sums of money in customary repairs, or ceiver should not wait to apply turbance, the tenant is entitled to for leave to defend an action till the costs of protecting his own just before trial. Anon., 6 Ves. possession. Miller v. Elkins, 3 286. L. J. Oh. 128. (e) Stoaby v. Dickon, 5 Sim. ( ; Parker v. Dunn, 8 Eq. 594. Beav. A'JH; see Duke of Dorset (/) Ireland v. Eade, 7 Bear, v. Crosbie, Sau. & Sc. 683; 55; Parker v. Dunn, 8 Beav. Clarke v. Eishcr, lb. C84; Evans 498 ; see Miller v. Elkins, 3 L. J. V. Taylor, lb. 681. The receiver Ch. 128. of tlie estate of a lunatic should () Gurden v. Babcock, 6 558. Beav. L62. Wickeru v. Townsend, 1 (p) [b. 157. H.& M. 361. LIABILITIES OF RECEIVER. 231 such produce ; and the consignees of the produce to whom express directions have been given for its ap- plication are liable to be sued on the allegation that they are colluding with the receiver for the purpose of satisfying the claim against him out of moneys in their hands received from the estate and due to the plaintiff.^) Upon motion on behalf of a late ward of court, charging that the accounts formerly passed were such as should not bind the applicant, and stating errors and neglect, the receiver was ordered to account again from the beginning.(r) Liabilities of Heeeiver to Third Parties for Misconduct in the Exercise of his Duties. 1 — Although the court will (q) Fitzgerald v. Stewart, 2 (r) Wildridge v. McKane, 2 Sim. 333. Moll. 545. 1 The subject of the liability of a receiver to third parties for in- juries resulting from negligence in the discharge of his duties, was examined in Camp v. Barney, 4 Hun, 373, and the opinion of E. D. Smith, J., contains such a clear statement of the law and a full re- view of the authorities, that it is here given in extenso. The action was brought to recover damages for personal injuries received by the plaintiff while she was travelling from the town of Brockton, N. Y., to Corry, Penna., upon a railroad operated by the defendant as special receiver. The court said : " By the order appointing the defendant receiver, he was vested with all and singular the estate, franchises, property, and effects, of every name and nature and description, be- longing to the Buffalo, Corry, and Pittsburg Railroad Company; and he was authorized to employ such assistants, operatives, mechanics, laborers, and firemen, as he might deem necessary ; to purchase sup- plies ; to borrow or hire such rolling stock, and make such running arrangements into connecting lines as he should deem necessary ; and to operate the railroad of said company from Brockton to Corry ; and 232 LIABILITIES OF KECEIVER. not allow the possession of its receiver to be disturbed without leave,(s) the court in its discretion will, if the (s) Supra, p. 177. that he have all the usual powers of receivers in like cases, as pro- vided by the rules and practice of said court. At the close of the evidence iu the case, the counsel for the defendant requested the court to decide, that inasmuch as the defendant was operating said railway as receiver only, and pursuant to the order aforesaid, he could not be made personally liable in this action for the injuries received by the plaintiff. The court then charged the jury that the defendant should be held in this action, to the ordinary liability of a common carrier of passengers by railroad, and also that the defend- ant was to be treated in this action as if the defendant at the time of the injury had been carrying on said railroad for his own personal benefit and advantage. To both these propositions, the defendant's counsel duly excepted. These exceptions all present substantially the single point, whether the defendant, being in fact a receiver of said railroad, can be held personally liable to the plaintiff for the in- jury for which this action was brought. No reasonable doubt I think can exist, if the action had been brought against the defendant as receiver by leave of the court appointing the defendant such receiver, that the action could be maintained. This point was distinctly de- cided by the Supreme Court of Ohio in the case of Mears, Adminis- trator,v. HolbrooTc et ah, Receivers, ^-c, of the Columbus P. and I. R. R. Co. (20 Ohio St. 137). It was there held that the receivers were the governing power, operating said railroad, and the only persons having authority to employ, direct, control, and dismiss the various agents employed by them to operate said railroad, and that the various employees of tlie said receivers were their servants and agents, and they were responsible for injuries resulting from their negligence iu tin: discharge of their duties assigned to them respectively. " The ruling at the Circuit was doubtless made upon the ground thai the defendant being thus the acting, directing, and governing power in operating said railroad, and the only tangible principal known to the pnblic, the plain till' had a right to hold him responsible for the discharge of the duty of the common carrier in respect to her, as assumed when he received her money in payment lor her safe transportation over said railroad, and that the contract was formally LIABILITIES OF RECEIVER. 233 misconduct of a receiver in the performance of his duty becomes the subject of proceedings in another and nominally with him personally. This view of the defendant's liability is held in several cases in the Supreme Court of Vermont. " In the case of Bhimenthal v. Brainerd et al. (38 Vt. 407), the defendants were operating the Vermont Central, and Vermont and Canada Railroads, as receivers under the appointment of the Court of Chancery of that State, and claimed as the defendant does in this case, that they were only liable to account as officers of that court. The court held that the mere fact that the defendants were acting as receivers under the appointment of the Court of Chancery, could not be recognized as a defence to a suit at law for a breach of any duty or obligation which was assumed by them while acting as such receivers, and referred to the case of Sprague v. Smith (29 Vt. 421), where it was held that trustees operating a railroad and exercising its franchises, were responsible for the negligence of the operatives under their control. " The same doctrine in respect to trustees operating a railroad was held in Rogers v. Wheeler (43 N. Y. 602 ; S. C, 2 Lans. 486), and in Ballon v. Farnum (9 Allen, 47). Executors and administrators also are personally liable upon all contracts made by them, after the death of the testator [Ferrin v. Myrick, 41 N. Y. 315). Receivers stand in the same general position with other trustees having an in- dependent power of control in the affairs of business, and are prima- rily responsible for their affirmative acts and neglects and contracts, and for the negligence of those in their employ. " The only exception in favor of receivers or distinction between them and other trustees, is, that they are officers of the court ap- pointing them, and are under its control and protection. But this protection is only accorded to them on their own application, and is granted or refused by the court appointing them in its discretion, depending upon the circumstances of each case, as is held in the case of Blumenthal v. Brainerd [supra) ; Story's Equity, \ 833 ; and Parker v. Browning (8 Paige, 388) ; Angel v. Smith (9 Vesey, 336). The case of Morse v. Brainerd et al. (41 Vt. 551) illustrates and confirms this view. In that case an action at law was com- menced against the defendants who were in fact receivers, for the loss and damage sustained by injury to a car load of cattle trans- ported over the road in charge of the said defendants as such re- ceivers. That action was restrained by injunction from the Court 234 LIABILITIES OF RECEIVER. court, either itself take cognizance of the complaint, or leave the matter to be dealt with upon such pro- of Chancery, and the cause of action was brought into that court and disposed of by a reference to a master. " This was upon the assumption that it was no defence at law, that the defendants were officers appointed by and acting under the authority of the Court of Chancery. If the receiver in such case seeks the protection of the court by which he was appointed, he must, in proper form, invoke such protection by injunction, and it follows, I think, in such a case, that if the receiver does not ask for such protection from the proper court, the action may proceed against him at law, and he must be deemed to have waived, if need be, such ground of objection to the action, as to have voluntarily elected to defend the action at law, to the same effect as if leave had been given by the proper court to the institution of such suit at law. The Supreme Court of Massachusetts, recognized this principle in Paige v. Smith (99 Mass. 395), and held that as the defendants were liable to be sued at law in Vermont, they must be held so liable in that State. The action in this case was a proper one to be tried at law, and if application had been made to the District Court to re- strain the action, I should think that court might very properly have refused such order, and allowed the cause to proceed to trial and judgment at law, and have directed the receiver to defend the same and abide by the decision of the court, and if it were of any practical consequence, I do not see why the record might not now be amended, and the judgment be entered and affirmed as against the receiver in form, to the same effect as if he had in fact been sued as receiver." See also Louisville, 8fc.,R. R. v. Cauble, 46 Indiana, 277 ; Allen v. Central It. R. Co., 2 Law & Eq. Rep. 202 ; Kinney v. Crocker, 18 Wis. 74 ; and Potter v. Bunnell, 20 Ohio St. 150. In Klein v. Jewett, 11 C. E. Green, 474, the following language was used : " The rule may be considered settled that where an injury results from the fault or misconduct of a receiver appointed by a Court of Equity, while acting under color of the authority of the court, there 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, either take cognizance of the question of the receiver's liability and determine it, or permit the aggrieved party to sue at law. lint if the power of the court is disputed, the court then has no choice; it must assume exclusive jurisdiction and inhibit the ag- grieved perSOD from seeking redress against the receiver in any other LIABILITIES OF RECEIVER. 235 ceeclings. 1 There is a clear and well-recognized dis- tinction between cases where the jurisdiction of the court, or the validity and propriety of its orders or process is disputed, and cases where the authority of the court is admitted, but redress is sought against its officer for irregularity or excess in the performance of its orders. In the former case the court has no choice, but must draw the whole matter over to its own cognizance. In the latter case the court has an indis- putable right to assume the exclusive jurisdiction ; but may, if it think fit, on the circumstances being specially brought before it, permit other courts to pro- ceed for punishment or redress. (t) (t) Aston v. Heron, 2 M. & K. 396 ; see Chalie v. Pickering, 1 Keen, 749. tribunal. Aston v. Heron, 2 Myl. & K. 390; Parker v. Browning, 8 Paige, 388." In this case the rule was laid down that the lia- bility of a receiver opei'ating a railroad is the same as that of the corporation, citing Mears v. Holbrook (supra). Where a plaintiff, at whose instance a receiver was appointed to take charge of personal property, acted in good faith upon probable cause, he was held not liable for injuries done to the property while in the hands of such receiver. Kaiser v. Kellar, 21 Iowa, 95. 1 Parker v. Broivning, 8 Paige, C. R. 389. Permission of the court is necessary to warrant an action against a receiver. De Groot v. Jay, 30 Barb. 483. See, also, in the Matter of Merritt, 5 Paige, C. R. 131 ; Merritt v. Lyon, 16 Wendell, 405 ; and the cases cited in note, p. 206, ante. See, further, as to responsibility of re- ceivers, Commonivealth v. Franklin Ins. Co., 115 Mass. 278. CHAPTER IX. SALARY AND ALLOWANCES OF A RECEIVER. A receiver will, unless it is otherwise ordered, or unless he consents to act without a salary, be allowed a proper salary, or have allowances made to him for his care and pains in the execution of his duties.(a) 1 The amount of the salary or allowance is not in general fixed until the passing of the first account, when the receiver will be allowed either a percentage upon his receipts, or a gross sum by way of salary. (b) 2 (a) Ord. XXIV. 1. (&) Dan. Oh. Pr. 1581. 1 In proceedings in bankruptcy a receiver is treated as the agent of the creditors, and the expenses of his trust cannot be charged against a mortgagee. Ex parte Warren (In re Joyce), L. R., 10 Ch. A pp. 222. 1 The subject of the compensation of trustees, executors, and other persons standing in a fiduciary capacity, is treated at length in the American note to Robinson v. Pelt, 2 Leading Cases in Equity, 208. The amount of compensation is, in many of the United States, prescribed by statute ; in others it is established by judicial decision. See, in this connection, Gardiner v. Tyler, 40 N. York, 508. As a general rule, it may be Baid that the allowance to receivers is hum mill liv tin- same standard as that by which the compensation of other fiduciaries is regulated. Sec, however, Gardiner v. Tyler, 2 A 1. 1.. A pp. Dec. 2 17. In Niw STork, prior to the Revised Statutes, the usual allowance to receive) was 5 per cent, on amounts received and paid out — i. e., 2 | per cent, on receipts and 2i on disbursements, in the Matter of The /-'">.'.■!•. L006 ; Dan. (<•) 2 Beav. 491. Ch. Pr. L581. SALARY AND ALLOWANCES OF RECEIVER. 239 rents and profits. It may be increased if there be any extraordinary difficulty, or diminished if there be any extraordinary facility in the collection. "With respect to other receipts, each Master considers himself bound to have regard to the degree of facility or difficulty there may be in receiving them. They have some- times allowed £2| per cent., but for gross sums of money this has been very much reduced, and £1| per cent, has been allowed on many occasions. It appears, therefore, that the Masters, as they ought, consider upon each occasion what is fit, or proper to be allowed, having regard to the degree of difficulty or facility experienced by the receiver." In the case in which these observations were made, an objection was taken to an allowance which had been made to the receiver of £5 per cent, on certain large sums of money which had been paid to him for redemption of annuities, for interest upon mortgages and annuities, and it appear- ing that the particular circumstances and the particu- lar nature of the items had not been brought to the attention of the Master, Lord Langdale thought there was sufficient in the case to warrant an order to review the report. The practice of the Master's office as above stated is generally followed in the judge's chambers in fixing the salary or making an allowance to a receiver.(/) A receiver is entitled out of the funds to his costs, charges, and expenses properly incurred in the dis- charge of his ordinary duties, or in extraordinary (/) Dan. Ch. Pr. 1582. 240 SALARY AND ALLOWANCES OF RECEIVER. services which have been sanctioned by the court. (g) 1 In a case where a receiver has paid sums out of his own pocket in satisfaction of legacies, he will be re- imbursed.^) So also in a suit to administer a West Indian estate, a consignee appointed by the court, who had become in advance to the estate, was held entitled to repayment out of the corpus of the estate, in priority to the costs of the suit.(f) It. is not necessary for a receiver to apply to the court for the payment of his costs, charges, and expenses properly incurred in the discharge of his duties.(A-) A receiver, it may be observed, has not such a vested right to the collection of moneys payable in respect of the estate as will entitle him to prevent the money being paid into court without passing through his hands, where poundage may be saved by a direct pay- ment into court. Lord Langdale accordingly made an order on the petition of some of the parties inter- ested, that a debtor who was willing to pay the amount of his debt to the Accountant-General at once, might be at liberty to do so.(l) (g) Malcolm v. 0' Callaghan, (k) Fitzgerald v. Fitzgerald, 3 M. & 0. 52; Fitzgerald v. 4 Ir. Eq. 525. Fitzgerald, 5 Ir. Eq. 525 (I) Haigh v.Grattan, 1 Bcav. (/i) Palmer v. Wright, 10 201 ; Weale v. Ireland, 5 Jur. I'<;i v. 230. 405 ; sec as to the practice in lu- (t) Morison v. Mori&on, 7 P. nacy, Ex parte Clayton, 1 Ross. M. & G. 215. 47(5; Ex parte Cranmer, lb. 477, n. 1 Sec Adams v. Woods, L5 California, 206 ; Devendorf v. Dickin- son. 21 How. Pr. It. 275; /// re Gomersall, I>. II. 20 Eq. 29] ; ante, notes to 20G-7. SALARY AND ALLOWANCES OF RECEIVER. 241 A receiver may be entitled to allowances beyond his salary for an extraordinary trouble or expense he may have been put to in the performance of his duties,(v/i) or in bringing actions, or defending legal proceedings which have been brought against him.(n) Where, for example, an adverse application had been made against a receiver by a party to the cause, which was refused with costs, the applicant being wholly unable to pay those costs, it was held that the re- ceiver was entitled to be indemnified, and have his costs as between solicitor and client out of the fund in hand, although it belonged to iucumbrancers.(o) 1 (m) Potts v. Leighton, 15 Ves. wait to apply for leave to defend 276. an action till just before trial. (n) Re Montgomery, 1 Moll. Anon., 6 Ves. 286. 419; Bristotve v. Needham, 2 (o) Courand v. Hanmer, 9 Ph. 190 ; Courand v. Hanmer, 9 Beav. 3 ; see Att.-Gen. v. Lewis, Beav. 3. The receiver should not 8 Beav. 179. 1 A receiver who acts as his own counsel is not entitled to make an extra charge for such services. Where, however, he employs counsel under proper circumstances, he will be allowed for their payment. In the Matter of the Bank of Niagara, 6 Paige, C. R. 213. See also Battaile v. Fisher, 36 Miss. 321 ; The Utica Insur- ance Co. v. Lynch, 2 Barb. C. R. 573 ; Ryckman v. Parkins, 5 Paige, C. R. 545 ; and Adams v. Haskell, 6 Cal. 475. A receiver should not retain as his solicitor the counsel for a party to the suit. Adams v. Woods, 8 Cal. 319 ; RyckmanY. Parkins, 5 Paige, C. R. 543 ; Ainsley's Petition, 1 Edw. C. R. 576 ; Ray v. Macomb, 2 Id. 165 ; Branch v. Sheffield, 49 How. Pr. R. 196. But the receiver may do so if the parties have no objection, and a stranger is not en- titled to object. Warren v. Sprague, 11 Paige, C. R. 200 ; 4 Edw. C. R. 416 ; and see Smith v. The New York Stage Co., 18 Abb. Pr. R. 420. A receiver may be allowed his expenses and his counsel and witness fees in defending himself against a motion for his removal. Cowdrey v. The Galveston Railroad Co., 1 Woods, 338. See this 16 242 SALARY AND ALLOWANCES OF RECEIVER. So also where a receiver defended an action of law, and the defence was completely successful, the extra expenses were allowed, although the receiver had acted without the leave of the court.(^) But if any extraordinary expenses have been in- curred by the receiver, allowances for them will not be in general sanctioned, unless they have been in- curred with the approbation of the.court or judge,(g) or unless the estate has been benefited thereby. (r) Where accordingly a receiver without the leave of the court defended an action arising out of a distress for rent made by him, and compromised it on the terms of the plaintiff abandoning it, and each party bearing his own costs, he was disallowed his costs.(s) So also where the receiver of a lunatic's estate instituted pro- ceedings in a wrong form of action, which he aban- doned, and then adopted a form in which he succeeded, he was refused the costs of the abandoned proceed- ings, although the master reported that he had acted bondfide.fy) The receiver is not entitled to be reimbursed the expenses of journeys to and residence in a foreign country for the purpose of prosecuting proceedings for (p) Bristowe v. Ncedham, 2 Ph. 190; Malcolm v. O'Calla- Ph. 190 ; see Malcolm v. O'Cal- ghan, 3 M. & 0. 58. laghan, 3 M. & C. 58. (s) Swaby v. Dickon, 5 Sim. {q) lie Onnsby, 1 Ba. & Be. C29. 189. (t) lie Montgomery, 1 Mol. (r) Dristotvc v. Ncedham, 2 419. case, also, as to the outlays which are within the discretion of a re- ceiver of a railroad. Dpon the general subject of allowances to receivers, bcc Corey v. Long, 12 Abb. 1'r. It. (N. S.) 427. SALARY AND ALLOWANCES OF RECEIVER. 243 the recovery of property belonging to the estate before the tribunals of that country, unless he has the ex- press sanction and authority of the court for such journeys and residence.(w) If, however, the result of the suit be successful, and it appear that the success has been due to or has arisen from the presence of the receiver, it may be in the opinion of the court inequi- table for the parties to take the benefit of the exer- tions of the receiver without defraying the expenses which had attended them, although no previous au- thority for incurring them had been given. (x) The fact that some of the parties interested may have given him authority, furnishes no ground for the court to allow his expenses out of the estate.(?/) If the property in dispute is small, the court may appoint a receiver without a percentage. (z) If a trustee,(a) or party interested, ask leave to pro- pose himself as receiver, he will be usually required to act without salary, unless by consent.(6) In a case, however, where a testator had appointed as trustee and executor a person who for many years had been the paid receiver and manager of his estate, the court appointed him as receiver at a salary, the tenant for life being an infant.(c) Where a receiver is served with a petition in the cause, he should not appear, and will get no costs of (u) Malcolm v. O'Callaghan, (a) SyJces v. Hastings, 11 Ves. 3 M. & 0. 52. 363; supra, p. 137. (x) lb. 58. (6) Set on Deer. 1007 ; supra, {y) lb. 61. pp. 136-137. (z) Marr v. Littlewood, 2 M. (c) Neivport v. Bury, 23 Beav. & C. 458. 30. 244 SALARY AND ALLOWANCES OF RECEIVER. appearance if he does ao.(d) But where the receiver had incurred costs which the parties had long neg- lected to provide for, he was allowed to petition for the payment.(e) If a receiver suffer any costs to accrue which ought to have been prevented, he will have to pay them out of his own pocket.(/) The costs of drawing out a scheme of the estate and of the holdings of the tenants are chargeable, if at all, as part of the receiver's costs, and not of the solicitor's ; but it seems that no allowance would be made to the receiver for such an item where he is paid by a percentage, though it may be necessary for the due performance of his duties. (7) If the exertions of a receiver have been successful in creating a benefit to the estate, allowance will be made to him for the costs to which lie has been put,(/i) but no costs will be allowed of a defence improperly made,(j) or of a proceeding improperly taken and abandoned, though the receiver acted bond fide and succeeded in a subsequent proceeding.^) In a case where the receiver of a lunatic's estate had instituted proceedings which, being wrong in form, he abandoned, and afterwardfl took proper proceedings which were {,!) Rermon v. Dunbar, 23 (g) Re Catlin, 18 Beav. 511. Beav. 312. (A) Bristowe \. Needham, 2 / etandv. Eade,1 Beav. Ph. L90; supra, p. 216. 55; supra, p. 222. (i) Swaby v. Dickon, 5 Sim. (/) Cook v. Shanmin, S Ir. C81 ; supra, p. 210. Eq. 515, Bee 06 I- co U which [k) He Montgomery, 1 Moll. will 1 >r will noi be allowed to a i 1 'J. r< ■ eiver in Ireland, Sadleir v. Qreene, 2 Ir. Ch. 330. SALARY AND ALLOWANCES OF RECEIVER. 245 successful for the estate, the court refused to allow him the costs of the abandoned proceedings, although the master reported that the receiver had acted bond fide and ought to be allowed the costs.(7) "Where an application by a defendant against a receiver was refused with costs, and the defendant was unable to pay the costs, the receiver was held to be entitled to deduct his costs as between solicitor and client from the balance in his hands.(m) If a receiver, without the leave of the court, pay out moneys to a judgment creditor of the party, over whose estate he has been appointed receiver under an order of a Court of Common Law, he will not be allowed the same in his accounts, if the moneys are not repaid by the judgment-creditor. He will also, along with the judgment-creditor, have to pay the costs of the motion.(n) A receiver may, on its being ascertained to be for the benefit of the estate, be entitled to an allowance for money laid out on the estate without previous order.(o) In a case where the receiver's default in bringing in his accounts on the appointed days was known to the parties, and the accounts had been passed and pound- age allowed without objection, no loss having been sustained by the receiver's fault, and no balance being due from him, the court would not afterwards listen (l) lb. (n) Be Wintonv.Mayor,fyc. (m) Courand v. Hanmer, 9 of Brecon, 28 Beav. 204. Beav. 3. [o) Supra, p. 217. 246 SALARY AND ALLOWANCES OF RECEIVER. to an application to strike out his allowance of pound- age and cost at the instance of parties who had the benefit of his services ;(p) but the amount of the allowance made to a receiver may be reconsidered, where, though an objection was originally made, the particular circumstances of the case and the nature of the items were not taken into consideration. (q) Receiver may not make Interest on Balances in hand.— A receiver, though he passes his accounts and pays his balances regularly, is not entitled to make interest for his own benefit of moneys which come into his hands in his character of receiver, during the intervals between the times of passing his accounts. (r) Life Estate subject to Expenses of Receiver.— If it is necessary, from the condition of the estate, not from the conduct of the parties, to have a receiver appointed over the estate of a tenant for life of real estate, it is an expense to which the estate for life is inherently subject. It is the right of the remainderman to have a receiver appointed, and to have the ordinary ex- penses of such appointment paid out of the life- estate.^) (p) Ward v.Svrift, 8 Ba. 139 ; Church, 3 Bro. 0. C. 40 ; infra, I. in ee infra, p. 259. p. 253-254 (. 1752. If moneys (;/) Bertie v. Lord Abingdon, have been paid to the receiver k Beav. r>:$. under protest, he musl by alii- (h) Ord. XXIV. ?,; Bee as to davit distingui li them from the form ofsummoDS, 3 Dan. Oh. Pr. rest. Brownhead v. Smith, I L753, On leaving tin' first ac- Jur. 237. count, ;i copy of the order ap- ACCOUNTS. 249 parties as are entitled to attend the passing of the accounts.^') 1 In the absence of any directions made at the hear- ing of the cause, the court will not, on interlocutory application, make an order to restrain parties entitled to attend the passing of the accounts from attending, though the result would be a very large saving to the estate. If no directions have been given at the hear- ing, persons who are interested are entitled to attend the subsequent proceedings. The court cannot order that they should attend at their own expense, and that it should be unnecessary to serve them.(A-) On the return of the summons the receiver's solicitor attends with the vouchers like any other accounting party, and the account is gone through before the Chief Clerk. (I) 2 Any person who seeks to charge the pointing the receiver, certified by (i) Dan. Ch. Pr. 1588; Smith, the solicitor to be a true copy Ch. Pr. 1035. thereof, must be lodged at cham- (k) Day v. Croft, 14Beav. 29 ; bers, if not previously done ; Dan. 20 L. J. Ch. 423. Ch. Pr. 1588 n.; see as to form of (/) Smith, Ch. Pr. 1035 ; Dan. certificate, 3 lb. 1174. Ch. Pr. 1143 et seq. 1 Mechanics 1 Bank v. Bank of New Brunswick, 2 Green, C. R. 437. 2 A receiver is an officer of the court, as -well as a Master, and states his own accounts, and submits them to a Master for inspection under the order of the court ; the Master acting in place of the court in a judicial, rather than a ministerial capacity. Strictly speaking, exceptions to his report in such cases do not properly lie, as they do to an account stated by himself, as in the case of executors, ad- ministrators, trustees, or partners, who are ordered to account before him. Nevertheless, if the Master adopt any erroneous principle in allowing a receiver's account, the court on petition of the proper parties will refer the matter back to him for correction. Cowdry v. The Galveston Railroad Company, 1 Woods, 334. 250 ACCOUNTS. receiver beyond the amount of which he has admitted the receipt, should give him notice of his intention, stating, as far as he can, the amount sought to be charged and the particulars thereof, in a short and succinct manner.(m) The receiver brings in also his bill of costs upon passing the account. The bill is then taxed, and the amount included in his disbursements. On passing his first account, the receiver's costs of completing the appointment are taxed and allowed.(?z) Parties at- tending the passing of a receiver's accounts only have costs from the receiver after a decree disposing of the costs of the suit and showing who is intitled to costs out of the rents ; in other cases the costs of the parties are costs in the cause.(o) Where the parties are en- titled to have their costs paid by the receiver, such costs are taxed at chambers and paid by the receiver, and included in his account.^) If the receiver brings in his account, but fails to take out a summons to proceed upon it, the party prosecuting the order takes out and serves on the receiver's solicitor a summons to show cause why his accounts have not been passed, and to proceed to pass the accounts. If the receiver does not attend, the Chief Clerk allows the sums wherewith the receiver (m) Ord. XX X V. 34. (o) Blox. 52. (?/) Dan. Ch. Pr. 1588 ; Smith, (p) Pan. Oh. Pr. 1589 ; see as Oh. Pr. 1035; hoc as to scale of to scale of such costs, Reg. 8th costs, Beg. 8th August, 1857, August, 1857, Belied. No. 15; Bched. No. L5; Blox. 32; Morg. Morg. Ch. Ord. App. 70; Blox. Ch. Ord. App. 76. 32. ACCOUNTS. 251 has charged himself, and disallows such of his pay- ments as he has failed to vouch.(^) The receiver is usually directed to hand copies of his accounts to such of the parties as are entitled to attend upon the passing thereof, and to charge for the same in his costs.(r) A plaintiff or defendant entitled to attend a receiver's account is not allowed in costs a copy of the account, if his solicitor is also the solicitor for the receiver.(s) 1 Allowance of Accounts.— When the account is passed, it is entered by the solicitor of the receiver in a book called " the receiver's book," and also in a book which is the property of the receiver. The entry in each book must be verified by the affidavit of the receiver, and the affidavit must refer to the account as an ex- hibit, and not be annexed to it.(t) The books, with an office copy of the affidavit, are then left at the judge's chambers, and a memorandum of the allowance (q) Smith, Ch. Pr. 1036 ; Set. ings. Dixon v. Wilkinson, 4 on Deer. 1020 ; see Drever v. Drew. 619. [Adams v. Woods, Maivdedey, 7 Jur. 8. 8 California, 319-320 ; and cases (r) Dan. Ch. Pr. 1588. cited in note to page 241, ante.] (s) Sharp v. Wright, L. E. 1 (0 Ord. XXIV. 3 ; XXXV. Eq. 634. See observations of 33; Smith, Ch. Pr. 1035; Dan. Kindersley, V. C, as to the im- Ch. Pr. 1589 ; see as to form of propriety of the same solicitor affidavit, Reg. 8th Aug. 1857, acting for the receiver and the Sched. No. 17 ; Blox. 35 ; Morg. party conducting the proceed- Ch. Ord. App. 78. 1 Question as to payments to proper parties and allowance of pro- per credits should be raised on the settlement of a receiver's accounts. They should not be made the subject of a subsequent action. Olcott v. Heermans, 3 Hun, 431. 252 ACCOUNTS. of the account is written at the foot of it and signed by the Chief Clerk.(w) The book called " the receiver's book" is retained in chambers until the completion of the receivership, when it is deposited at the Record and Writ Clerk's Office.(¥) The other is delivered back from time to time to the receiver. Certificate of Allowance.— After the allowance of the account, a certificate of the allowance, stating the balance due from the receiver, and the days on which it is paid into court,(x) is then made and signed D3 7 the Chief Clerk, and approved and signed by the judge without delay, and, upon being so signed, is left at the Report Office, and forthwith acted on.(?/) The rules concerning the time and manner in which the opinion of the judge may be taken upon an} r pro- ceedings as to which the Chief Clerk's certificate has not been signed and adopted by the judge, do not apply to certificates upon passing receivers' accounts. Such certificates may be approved and signed by the judge without delay, and, upon being so signed, shall (h) Dan. Ch. Pr. L589; Smith, fee of 10*. in respect of eacli £100 Ch. Pr. Id:!."); see as to form of of the Del balance received, after memorandum of allowance, 3 Dan. deducting all necessary outgoings Ch. Pr. IT."'."). for rent, taxes, rates, repairs, and (v) Ord. XXIV. I. management of the property. 3eeOrd. XXIV. •_>. Sch. to Consul. Ord. I: Bee as Ord. XXXV. 46, IT, 48, to the practice before this order, 54,65; Dan. Oh. Pr. L589; Bee Wells v. Wales, 4 !>. M. & G. as io form of certificate of allow- 816 ; Wastellv. Leslie, Lb. 818 a.\ ance 3 Dan. Oh. Pr. 1754. The Buckmaster v. Buckmaster, 28 certificate bears a £1 stamp, and L. J. Ch. 564 also proper Btamps lor the further ACCOUNTS. . 253 be filed and forthwith acted upon.(>) This provision follows the old practice under which the Master's report of the receiver's account required no confirma- tion, (a) and therefore did not admit of exceptions. 1 Hence the court would not enter into the consideration of any of the items of the account, but would, upon the petition of the party complaining, examine any principle upon which the Master had proceeded when error was imputed to him. (b) Receiver must pay in Moneys.— Where the certificate directs a payment to be made into court, the solicitor for the receiver should obtain an office copy of the certificate, and leave it at the Accountant-General's office, together with the order directing the payment of the receiver's balances into the Bank, and obtain a direction for such payment. The amount is paid on such direction in the usual manner.(c) Although a receiver is only bound by his recogni- zances to pass his accounts at the periods appointed by the judge, he may at any time apply to the court to pay in moneys in his hands ; and if in the intervals between passing his accounts he receives sums of such (z) Ord. XXXY. 54. in a receiver's accounts, though (a) 2 P. W. 729 ; Shewell v. an erroneous principle be not Jones, 2 Sim. & St. 170; 3 Russ. adopted ;■ Beytagh v. Concan- 522. non, 10 Ir. Eq. 351. (6) Shewell v. Jones, lb. In (c) Dan. Ch. Pr. 1589; Smith, Ireland objections are enter- Ch. Pr. 1037. tained to the amount of the items 1 This practice was adopted in Brower v. Brower, 2 Edw. C. R. 621. 254 ACCOUNTS. an amount as to make it worth while to lay them out, he ought to apply by summons for an order to pay them into court, that they may be productive for the benefit of the estate.(^) If the receiver keep in his hands moneys which he was directed to pay in, it is no excuse for him to say that the circumstances of the estate made it necessary to keep large sums in hand, nor will it prevent the court from directing an inquiry as to what sums might or ought to have been reason- ably laid out at interest.(e) Where the order for ap- pointing a receiver does not provide for the payment of his balances into the bank, the receiver will not be allowed to avail himself of the omission and to keep a balance in his hands without interest, under a pretence of waiting for some party in the cause to obtain an order upon him for payment.(/) He ought to apply by summons, which should be served on the parties to the cause, for an order for that purpose, and that the costs be allowed him in his next account; and unless he does so, the court will charge him with interest.(y) Order at Suit of Parties interested that Receiver pass his Accounts or pay in the Balance.— If a receiver makes default in leaving or passing his accounts, or in paying in the balance found due from him at the appointed time, any party interested in the accounts may apply [d) Shdw v. Rhodes, 2 Bass. (/) Potta v. Leighton, L5 Yes. in form of sum in* uis, 'JTm, 274 ; Bee l Ba. & Be. -'■'<"■ 3 Dan. Ch IV. L758. {g) Dan. Oh. Pr. L590. Bee as (c) Hickt v. i/fl.s, :! Aik. to form of the summons, 3 Dun. 271. Oh. Pr! it;. u. ACCOUNTS. 255 by summons that he may leave his account or pay in the balances within a limited time (usually four days) after service upon him of the order to be made on the summons, and pay the costs of the application.(A) The summons must be served on the receiver, and if he does not appear, the order will be made, on production of an affidavit of the service of the summons ; or where the default consists in not making a payment into court, of the order and certificate under which such payment is to be made ; and the Accountant-General's certificate of such default must be produced in support of the application.^) The order is drawn up by the registrar, and an indorsed copy must be served person- ally on the receiver -,(k) or, if personal service of the order cannot be effected, an order giving leave to sub- stitute service should be obtained at chambers on an ex parte application by summons, supported by affi- davit, and the order must be served in conformity with the directions thereby given.(^) If after such original or substituted service the receiver neglect to obey the order, it may be enforced against him by process of contempt.(m) A similar course should be (ft) Ord. XXXY. 23 ; Dan. Ch. (Z) Pan. Ch. Pr. 1591. Pr. 1590. Creditors after a de- (m) lb.; Ord. XXIX. 2, 3 ; cree may make an application to Set. on Deer. 1020 ; see as to compel a receiver to bring in his order nisi for committal, Davies accounts ; Locke v. Ash, 1 Hog. v. Cracraft, 14 Ves. 143 ; Scott 143; see as to form of summons, v. Platel, 2 Ph. 229; see as to 3 Dan. Ch. Pr. 1 757, 1760 ; see as order absolute, Blair v. Toppitt > to form of order, Set. on Deer. Set. on Deer. 1019 ; see as to 1018. whether attachment can be is- (i) Ord. XXXV. 23 ; Dan. Ch. sued against a receiver, Dan. Ch. Pr. 1590. Pr- 1591 n. (k) Ord. XXIX. 2, 3. 256 ACCOUNTS. pursued against a receiver who is directed to pay his balance to the parties instead of into court, and neglects to do so. It is irregular to issue a writ of ji. fa. for such balance.(n) The four days' order may be had by one of several joint receivers against another who is in default. For though the receivers be duly bound to account jointly, each of them must bring in his accounts of what he individually receives, and so long as one of them is in default, the four day order is of course.(o) A receiver may be ordered to pass his accounts and pay over the balance, although the bill has been dis- missed,^) or the proceedings have been ordered to be stayed.^) Disallowance of Salary and Charge of Interest for Non-payment, or not leaving Accounts.— TVhere a re- ceiver neglects to leave or pass his accounts and pay balances thereof at the times fixed for the purpose, the judge before whom such receiver has to account will, from time to time, when his subsequent accounts are produced to be examined and passed, not only disallow the salary therein claimed by such receiver, but also (n) Whitehead v. Lyncs, 34 the matter should be tried and Beav. L61 ; affd. 12 L. T. N. S. the damages assessed in au action 332. A writ of fi. fa. having at law ; lb. 34 Beav. 165. been pnl in execution against a {<>) Scott v. Platel, 2 Ph. 229. receiver to Compel payment of (/>) Pitt v. Jioinnr. ."> Sim. "iTT ; moneys whicb he had neglected sec ffutton v. Beeton, '.) Jur. N. in pay, the court, on the desire of S. L339. the defendant, would not itself {,/) Paywter v. Carcw, Kay, the damages sustained by App. 36, 44. the receiver. I»ut ordered that ACCOUNTS. 257 charge him with interest after the rate of £5 per cent, per annum upon the balance so neglected to be paid by him, during the time the same shall appear to have remained in his hands.(r) In the case of a receiver of annual rents and profits, he will be charged with interest from the time of receipt ;* but in a case where a receiver was appointed of the personal estate of a testator, the court would not charge him with interest on each sum from the time it was received, but charged him as an executor would be charged ; that is, by making yearly or half- yearly rests in his account. (s) The same remedies appear to be available against a receiver after he has been discharged. In a case where a receiver who had been discharged had not paid in his balance, he was ordered to pay in the same, and also the amount allowed for his salary, together with interest on both sums at £5 per cent, from the day appointed, and to pay the costs of the application. (t) Where, how r ever, default has been made by the execu- {)■) Orel. XXTV. 2; Bristowe Broionhead v. Smith, Uur. 237 ; v. Needham, 9 Jur. N. S. 1168 ; see as to the practice of the Court 11 W. K. 926; see as to the of Chancery in Ireland, Purcell practice before the Order of v. Woodley, 10 Ir. Kq. 422; Dease April, 1796, Fletcher v. Bodd, 1 v. Reilly, 4 Dr. & War. 284. Ves. Jr. 85 ; see as to the prac- (s) Potts v. Leighton, 15 Ves. tice under the order of April, 277. 1796, v. Jolland, 8 Ves. 72 ; (t) Harrison v. Boydell, 6 Sim. Potts v. Leighton, 15 Ves. 277 ; 211. 1 See Weems v. Lathrop, 42 Tex. 207. 17 258 ACCOUNTS. tors of a deceased receiver, the sureties were only ordered to pay interest at £4 per cent.(w) A receiver may be charged with interest on moneys improperly kept in his hands, although he has passed his accounts, and all parties have expressed themselves satisfied ; and for this purpose an inquiry what money he has received from time to time, and how long he has kept it in his hands, may be directed ;(x) and in v. Jolland,(y) Lord Eldon appeared to think that if such a case should be brought before him, he should direct a receiver to make good any loss which might be occasioned from a difference in the price of the funds between the time when the receiver's balance was paid in and the times when they ought to have been paid in. In Hicks v. Bicks,(z) where a receiver had been ap- pointed during the minority of an infant who had no guardian, and was directed to place out the surplus rents and profits, when they should amount to a com- petent sum, with the approbation of the Master, on Government or other securities, but omitted so to do, Lord llardwicke directed that he should pay interest at the rate of £4 per cent, on the surplus rents and profits from the date of the decree until the infant (•nine of age, although the infant two days after he came of age settled accounts with the receiver, who [n) Clements v. Bereaford, 1<> (.v) 8 Ves. VJ, 7.'{. Jup. 771. I I 3 A.tk.279. , Fletcher v. Dodd, I Ves. ACCOUNTS. 259 delivered up his vouchers and gave him copies of all the accounts passed by the Master. It seems to have been considered by the Masters that they were not bound to be actors is applying the General Order of April, 1796, upon which the present Order XXIV. 2, is founded, and that unless the objec- tion to the allowance of poundage to the receiver was raised by the parties before the Masters, the court would not, as far as regarded poundage and costs pro- perly incurred, open the report of the Master ;(a) but it is not quite so clear that this was always the rule,(6) nor does such a construction appear to be consistent with the peremptory terms of the order.(c) Accounts of Deceased Receiver.— An order may be obtained at chambers for the executors of a deceased receiver to be at liberty to pass his accounts and pay in the balance.(^) In a case where, on the executors' application, liberty had been given them to pass their accounts and pay in the balance, they were not allowed after the lapse of many years to object to the order on the ground of want of assets.(e) The order cannot, however, be obtained, except upon the consent of the executors. If the executors do not (a) Ward v. Swift, 8 Ha. 142. on Deer. 1022 ; see 15 Sim. 483 ; (6) See Potts v. Leighton, 15 see as to form of summons, 3 Dan. Ves. 276. Oh. Pr. 1761. (c) See Bristoive v. Needham, (e) Gurden v. Badcock, 6 9 Jr. N. S. 1168 ; 11 W. R. 926. Beav. 157. (d) Litthboy v. Spooner, Set. 260 ACCOUNTS. consent, the court has no jurisdiction to order in a summary way that they shall bring in and pass his accounts, and pay the balance out of his assets.(/) The proper course to follow, if the recognizance can- not be put in suit, is to file a bill against them for an account, {g) The admission by the executor of a receiver of assets to answer what is due from his testator is sufficient to make the executor liable to pay such interest as the receiver's estate may be charged with in respect of the moneys produced by the rents retained in his hands.(A) But if there has been laches of the parties, the executor will only be ordered to pay in the princi- pal money and the costs of the application. (7) Putting Recognizance in Suit.— Where the receiver neglects to bring in his accounts, or, having brought them in, fails to pay the balance certified to be due from him within the time limited, if he has been pro- ceeded against to a contempt, the party prosecuting the contempt may put the recognizance in suit against I lie sureties. But he is not at liberty to sue the sureties until he has proceeded to get the receiver into contempt, unless the receiver has become bankrupt, or unless he is prepared to .show that such proceedings would 1>«' uscless.(/;) {j) Jenkins v. Bryant, 7 Sim. •'. •'. 616; Tew v. Lord Win- 17 1: see Ludgaterv. Channell, terton,c\t.4 Ves. 606. m. 482 ; 3 Mac. & G. 180. (t) Gurden v. Badcock, (,/! hudgalery. Channel^ 1"> Beav. L57. 182-; 3 Mac. & <:. L80. (/.•) Smith, Oh. Pr. L037. (/i) Foster \ . Fosti r. 2 Bro. ACCOUNTS. 261 The recognizance being given to the Master of the Rolls, and the senior Vice-Chancellor for the time being,(7) it cannot be enforced without the leave of the court ; and whether or not it shall be enforced is a matter for the discretion of the court. (m) An order accordingly must be obtained to authorize the pro- ceeding. This order is usuall}- obtained on summons which must be served personally on the receiver, or his representatives, and the sureties also, if they are to be proceeded against.(n) An order for leave to put the recognizance in suit having been obtained, the next step is to proceed by sci. fa., in the names of the Master of the Rolls and senior Vice-Chaucellor, or other the cognizees named in the recognizance, or the survivor of them, or the executors or administrators of the survivor,(o) against the cognizors therein named, or any of them, or their respective heirs, executors, or administrators.(p) Upon the death of a receiver, the parties interested may come to the court either against his representa- tives or against his sureties, and they should in the first place apply against both, to avoid the objection which each might raise to the absence of the other. The court, therefore, without deciding which of these (/) Supra, pp. 1G0, 161. (o) Set, on Deer. 1019. (m) 1 Dr. & War. 226 ; 3 Mac. (p) Dan. Ch. Pr. 159-4 ; see as & G. 178. to proceedings by sci. fa., lb. (n) Thurlow v. Thurlow, 4 1595, 1596,1597, 1598, 1599 ; see Jur. 982 ; Dan. Ch. Pr. 1593; see also, as to form of writs, &c. in as to form of summons, 3 lb. proceedings by sci. fa., 3 II). 1763 1762 ; see as to order in such -1772. case, Set, on Deer. 1018. 262 ACCOUNTS. parties are primarily liable, will order on petition that the deceased receiver's recognizance may be enforced against his real and personal representatives and sure- ties, notwithstanding an alternative prayer that the personal representatives may pass the accounts.^) 1 It was laid down by Shadwell, V.-C.,on the authority of the registrars, to be the practice not to put the recognizance in suit against the surety in default of the receiver paying what was due from him without the amount being first ascertained, except where the receiver had absconded ; and that a breach of the recognizance by non-payment of the balance reported due from the receiver ought to be shown as a ground for granting an application for liberty to put the recognizance in suit ;(r) but Lord Truro thought that the recognizance may also be enforced against the surety in the case of a deceased receiver without ascer- taining the amount due, when there is no means of ascertaining or enforcing the claim. The case of an absconding receiver, as put by the registrars, he re- L:;ir'•) [b.; L5 Sim. 480. Mac. & G. 175. (s) [b.; :t Mac. 4 G. L80. 1 Sue Weema v. Lathorp, 42 Tex. 213. CHAPTER XL DISCHARGE OF A RECEIVER. To divest the possession of a receiver, an application to the court for his discharge is in general necessary .(a) The appointment of a receiver, however, made previous to a decree, will be superseded by it, unless the receiver is expressly continued.(6) So, also, an injunction to put a purchaser into possession is in itself a discharge of the order for a receiver as to the lands mentioned in the injunction.(c) 1 So, also, where the estate expires over which a receiver has been appointed, the rever- sioner or remainderman need not apply to have the receiver discharged, for the legal estate vesting in pos- session, and there being an indisputable right to enter, (a) Thomas v. Brigstocke, 4 see as to form of order, Set. on Russ. 64: see Neivman v. Mills, Deer. 1003. 1 Hog. 291. (c) Ponsonby v. Ponsonby. 1 (&)°Dan. Oh. Pr. 1601 ; see Hog. 321 ; Anon., 2 Ir. Eq. 416. Reeves v. Neville, 10 W. R. 335 ; 1 So, also, where a decree was made in a cause, in which a receiver had been appointed, authorizing and directing one of the parties to take certain goods from the receiver, and the part} 7 refused to take the goods, or withdraw them from the custody of the receiver, it was decided that the latter held the property specified only as the trustee for the party, and not as receiver, although there had been no formal order of discharge. Very v. Watkins, 23 How. 475. 264 DISCHARGE OF A RECEIVER. it is not necessary there should be an order discharging the reeeiver.(rf) Discharge of Receiver on his own Application.— When a receiver has been appointed and has given security, he cannot be discharged upon his own application without showing some reasonable cause why he should put the parties to the expense of a change.(e) 1 If, how- ever, he can show reasonable cause for his discharge, he will he allowed to deduct the costs of and incidental to the application for discharge out of the balance in hand.(/) Infirmity, which prevents the receiver from properly performing his duties, and ill health increased by the anxieties of the duties of his office, afford a sufficient excuse for his diseharge.(^) A receiver who wishes to be discharged, and cannot show any reasonable cause for putting the parties to the expense of a change, will not be discharged at his own request, unless on the terms of his paying the costs of the appointment of another receiver and con- sequent thereon. A receiver ought not to present a petition to be dis- charged to come on with the cause on further direc- tions, as the court will make an order on further directions without any such petition. The costs of the petition will be refused. (A) ( (/) Richardson v. Ward, (> [r. Bq. '27:. ; Re Stack, 13 Er. Ch. Madd. 266. 213. (.'»<>. 1 See Beers v. The Chelsea Bank, I Edw. C. K. 277. DISCHARGE OP A RECEIVER. 265 Discharge of Receiver on Satisfaction of Incumbrance. — A receiver is generally continued until the decree ;* but if the right of the plaintiff ceases before that time, the receiver may be discharged, and cannot be continued at the instance of a defendant. (i) In a case, accordingly, where a receiver had been appointed at the suit of an annuitant, and the plaintiff had been satisfied by the payment of his demand, Lord Eldon held that the order for a receiver must be discharged, although the discharge was opposed by two creditors having prior annuities to the plaintiff. " With the right of the plaintiff to have a receiver," he said, " must fall the rights of the other parties. It would be most extraordinary, if, because a receiver has been appointed on a behalf of the plaintiff, a defendant is entitled to have a receiver appointed on his behalf."(&) 2 ' (i) Davis v. DuJce of JIarl- Largan v. Bowen, 1 Sch. & Lef. borough, 2 Sw. 167,168. 296; Murrough v. French, 2 (k) lb.; see Sanlcey v. O'Maley, Moll. 498. 2 Moll. 421 ; but see 2 Sw. 118 ; 1 Ordinarily the appointment of a receiver continues during the pendency of the suit until a decree is rendered ; and where the term of his office is intended to be limited, that intention should be ex- pressed in the order. Weems v. Lathrop, 42 Tex. 210. 2 This subject was discussed and the authorities reviewed in Beverley v. Brooke, and Beverley v. Scott, 4t Grattan, 187. Ac- tions had been instituted by conflicting claimants of a trust fund, and a receiver appointed in one. It was held that the appointment should enure to the benefit of the plaintiff in the other action upon the establishment of his superior right to the fund ; and the court repudiated the idea that a receiver could not be continued for the benefit of parties other than the complainant in the cause. See the remarks of Baldwin, J., in pp. 223-224. And so in Wiiteside v. Prendergast, 2 Barb. C. 472, the Chan- 266 DISCHARGE OF A RECEIVER. In other cases, however, of a somewhat similar charac- ter, proceedings have been stayed without prejudice to the order appointing a receiver.(£) Discharge of Receiver on his Continuance being un- necessary.— If, during the course of the proceedings, the continuance of a receiver becomes unnecessary, he will be discharged. Thus, in a case where a receiver had been appointed in consequence of the misconduct and incapacity of trustees under a will, he was ordered to be discharged on the appointment of new trustees who undertook to enter into a recognizance to account half-yearly in the same way as a receiver, and agreed to act without a salary. (m) So, also, in a case where a receiver, who had been appointed by reason of the executors having refused to act under a testator's will, quitted his place of residence in the vicinity of the estates in respect of which he had been appointed receiver, the court, on the consent of the other parties to the cause, and the executors expressing their willing- ness to act, made an order that the receiver should {I) Darner v. Lord Partarling- {»») Bairibrigge v. Blair, :s ton, 2 Pli.:: I; Paynterv. Carew, Beav. 421, 423. 18 Jur. 419; sic Murrough v. French, •-' Moll. 498. cellor ( Walworth) approved <>!* Murrough v. Fn nch, and Largan v. Jlmr, n [supra, notefc), and Baid thai " if tin' protection of tin- rights of.a defendanl requires the continuance ofn receiver, the courl will ihiI granl ;> discharge, although tin' suit is :M an end ; liui it will re- quire the defendant thus protected to files bill forthwith to settle liin rights. " Bee also on the general subject, Milwaukee, §rc. /•'• />'• Soutter, '-' Wallace, 510. DISCHARGE OF A RECEIVER. 2G7 pass his accounts.(?i) So, also, in a case where a re- ceiver had been appointed at the suit of an annuitant, he was discharged on the payment of the arrears of the annuity, there being no reason, under the circum- stances of the case, why he should be continued.(o) 1 Other Causes for discharging a Receiver.— A receiver is liable to be discharged for irregularity in carrying in his accounts, and for making it necessary for com- pelling him to do so, and for so passing his accounts that the amount of the balance in his hands cannot he ascertained. (_p) It seems that a charge of misbehavior against a receiver for suffering the owner of the estate to remain in part possession, to the prejudice of the estate, will not be admitted as a reason for discharging the re- ceiver, because the parties themselves have caused the loss by not compelling the owner by the authority of the court to deliver up possession to the receiver.(^) Where a receiver becomes bankrupt, he will be dis- charged and a new receiver appointed. (r) (n) Davyy. Gronoiv, 14 L. J. (?>) Bertie v. Lord Abingdon, Ch. 134. 8 Boav. 53. (o) Braham v. Strathmore, 8 {q) Griffith v. Griffith, 2 Yes. Jur. 567. 400. (r) Dan. Cb. Pr. 1601. 1 When a railroad company, whose property has been placed in the hands of a receiver shall satisfy the Chancellor of its ability and readiness to operate the road, the receiver will be ordered to deliver it up. In re Long Branch and Seaside R. R. Co., 9 C. E. Green, 398-401. But it must also show that it is entitled to the possession. Id. 402. 268 DISCHARGE OF A RECEIVER. Discharge of Receiver over Estate of Infant.— In the case of an infant, it is not right, to vacate the recogni- zance of a receiver appointed in his behalf on his coming of age, and the receiver passing his accounts, for defalcations are sometimes found after a great length of time ; and if it be proved twenty years after that a receiver has not accounted for what he has received, the money might be recovered under the re- cognizance if it has not been vacated. (5) Lord Kenyon held that a receiver should not have his recognizance discharged till one year after the infant has attained his age of twenty-one, and Lord Eldon approved of the rule.(/") Discharge of Receiver of Estates decreed to be sold.— Where estates have been decreed to be sold, the re- ceiver will be continued until the conveyances are executed under the decree, in order that he may collect the arrears of rent.(w) In this case the party refused to execute a conveyance, as there were arrears of rent due, and lie would thereby extinguish his remedy, but the court directed the receiver to be continued in regard to those rents down to the day of executing the conveyance before the purchaser should be let into possession, and directed the tenants to be compelled to p;i\ their arrears in the name of the receiver according to the course of the court.(v) (s) Anon., cited '1 Bfadd. Ch. (it) Quin v. Hull .ml, Etidg. temp. Hard. 295. (I) \\>. {<■) II,. DISCHARGE OF A RECEIVER. 269 Receiver not discharged until Balance due to him on his Accounts shall be paid.— A receiver will not be dis- charged until he shall have received from the parties interested in the estate the balance that shall be fouud due to him on passing his accounts.^) Receiver not discharged on Application of one Party- only.— A receiver being appointed for the benefit of all the parties interested, he will not be discharged merely on the application of the party at whose in- stance he was appointed ;(y) nor where a receiver has been appointed on behalf of infant tenants in common will he be discharged as to the share of one of them who has attained twenty-one.(^) Mode of Application to discharge a Receiver.— The application to discharge a receiver may be made by petition, motion, or summons,(a) or the direction for the discharge of a receiver may be given in the decree at the hearing, or in the order upon further considerations.^) Application must be served on Parties.— The petition, or summons, or notice of motion should be served on [x) Bert '-and v. Davies, 31 (a) Set. on Deer. 1023 ; see, as Beav. 436, infra. to forms of petition, notice of [y) Dnvies v. Duke of Marl- motion, and summons, 3 Dan. Ch. bor.ugh, 2 Sw. 118; Bairibrigge Pr. 1774, 1775. v. Blair, 3 Beav. 421, 423. (6) Set. on Deer. 1023. (z) Smyth v. Lyster, 4 Beav. 227, 229. 270 DISCHARGE OF A RECEIVER. all the parties.^) 1 The service should be personally on the receiver, and such service will not be dispensed with, unless an order for substituted service be ob- tained.^) But a receiver though served is not entitled to appear at the hearing of the application. If he appear, he will not be allowed the costs of the applica- tion.^) Form of Order on discharging Receiver.— If the re- ceiver has not passed his final account and paid over the balance found due from him, the order directs him so to do ; and if he has given a recognizance, it directs the recognizance to be vacated on his passing his final accounts and paying the balance found due from him, if that has not already been done.(/) An office copy of the recognizance, if any, must be procured from the Enrolment Office, and left at the time of bespeaking the order.(^) Vacating Recognizance.— When a recognizance is directed to be vacated, the order must be taken, (r) Dan. <'h. Pr. L601. vacate a receiver's recognisance (d)Att.-Gen. v. Haberdashers' may ho made by petition of Company, 2 Jur. 915. course. Dan. Ch. Pr. 1601, n.; (e) Herman v. Dunbar, 23 Bee as to form of summons to IJeav. 312. vacate recognizance, :t Dan. Ob, (/) Set. mi Deer. 1021, L022. Pr. L776. Dan. Ch. Pr. L602. Bj consenl (g) Reg. L5th March. L860; r. of all parties an application to .''>'"> ; Dan. Oh. IV. L602. 1 A receiver is not freed by his discharge from liability to a party who had n<> notice of the motiou for discharge. Miller v. Loeb, 64 Barb. 154 DISCHARGE OF A RECEIVER. 271 together with an office copy of the Chief Clerk's cer- tificate, and the Accountant General's certificate of payment of the balance into court, or an office copy of the affidavit of payment of the balance to the person entitled to it, where the order directs such payment to the Secretary of the Master of the Rolls, who, if the evidence of payment is satisfactory, makes a note of it, and marks the order with his initials. The order must then be taken to the Enrolment Office, and the recognizance will be marked as vacated. (A) Receiver who has been discharged, not paying in his Balance, disallowed Salary and charged Interest.— A re- ceiver who has been discharged and does not pay in his balance as directed, is subject to the order of 1796, and the order which is founded on it, and will be ordered to pay in the balance, with the amount of his salary, and interest at five per cent, on both sums, from the day first appointed, as well as the costs of the motion, (i) Deposit of Receivership Book.— Where a receivership has been completed, the book containing the accounts is to be deposited in the Clerk of Records and Writs Office.(&) (7i) Dan. Oh. Pr. 1602 ; Smith (*) Harrison v. Boy dell, 6 Sim. Ch. Pr. 1039. 211. (k) Ord. XXIV. 4. CHAPTER XII. LIABILITIES AND RIGHTS OF SURETIES. Where Sureties discharged at their own Request— The sureties for a receiver will not be discharged at their own request. AYhere, therefore, an application was made to discharge a receiver on the ground of misconduct, and the sureties joined in the application, Lord Ilardwicke held that no regard was to be had to their application unless it was for the benefit of the estate, or unless there be special circumstances in the case,(a) as, for instance, where underhand practice can be proved, and the person secured can be shown to have been connected with such practice.(6) In Swain v. Smith,{c) a surety was discharged on his own appli- cation, where he had become such in violation of partnership articles. On Discharge of Surety fresh Recognizance is neces- 8ary ._\Vhcre a surety procures his discharge during the continuance of the receivership, the receiver must enter into a fresh recognizance with new sureties.(^) (a) Griffith v. Griffith,* Ves. {<■) Set. on Deer. L021. 4oi): Bee as i" iippliruthm l.y a [d) See Vaughan v.Vaughan, mretj for his discharge, O'Kee/e 1 Dick. 90; Blot's v, Betta, Lb. v. . I rmstrong, 2 Ir. » !h. 1 1 5. 336. (i,) Hamilton v. Bn water, 2 Moll. 117. LIABILITIES AND RIGHTS OF SURETIES. 273 Death, &c, of Surety.— Where one of the sureties of a receiver dies leaving real property bound by his recognizance, his decease is no ground for requiring the receiver to procure a new surety. But where it appears that the deceased surety has not left any pro- perty which could be made available for the purpose of satisfying the recognizance, the court directed a new surety to be appointed. (e) Where one of the sureties dies, or goes abroad, and the receiver is unable to procure another surety, it is not the practice to charge the receiver with the ex- pense of his discharge, or the appointment of a new receiver.(/) When a surety becomes bankrupt, the receiver is usually required to enter into a fresh recognizance with two or more sureties. The order is made on summons.^) Order on Discharge of Surety.— In Shuff v. Holdaway, an order was made on the application of the surety, directing the receiver's accounts to that time to be passed, and that on payment by the receiver or by the applicant of the certified balance (not exceeding the penalty) into court, the applicant should be discharged as surety, and be at liberty to apply to have the recog- nizance vacated as to him ; and that the applicant should be at liberty to attend the taking of the ac- (e) Averall v. Wade, Fl. & K. (g) Dan. Ch. Pr. 1603 ; see as 341. to form of summons, 3 lb. 1777. (/) Lane v. Toivnsend, 2 Ir. Ch. 120. 18 274 LIABILITIES AND RIGHTS OF SURETIES. counts ; but he was ordered to pay the costs of the application.(A) 1 Surety allowed to attend passing of Accounts of Bank- rupt Receiver.— Where a receiver has become bankrupt, and the sureties are likely to be called upon to pay the balance due from him, liberty will be given to them to attend the passing of the receiver's account ;(?') and so where a receiver had died in insolvent circum- stances, and his personal representatives had consented to his final account being taken in the suit in which he was appointed, liberty was given him to attend.(A) Extent of Liability of Surety.— The surety is answer- able to the extent of the amount of the recognizance for whatever sum of money, whether principal, interest, or costs, the receiver has become liable, including the costs of his removal, and of the appointment of a new receiver in his place.(7) In a case, however, where a receiver had been bankrupt, with the knowledge of all parties, for a considerable time, during which no steps were taken to compel the passing of his accounts, the surety was excused the payment of interest.(m) (/i) Dan. Oh. Pr. 1603; see (k) Simmons v. Rose, cit. Dan. also O'A'eefe v. Armstrong, 2 lr. Ch. Pr. 1004. Ch. 115. (0 Maunsclly. Egan, 3 J. & (i) Raivson v. Raynca, 2 Rubs. L. 251 ; see Dawson v. Raynes, 167; Bee as to form of summons 2 Rubb. 467; ReLockey,] Ph. by surety to attend the passing 509. of a receiver's accounts, 3 Dan. (rn) Dawson v. Raynes, 2 (li Pr. L778. Russ. 466; see Re Herricks, 3 lr. Ch. 187. 1 See Williamson v. Wilson, 1 Jiland,439. LIABILITIES AND RIGHTS OF SURETIES. 275 Course for the Surety to pursue when Action is brought against him on the Recognizance.— Where an action is brought against the surety upon the recognizance, the proper course for him to pursue appears to be to apply to the court by motion or summons, with notice to the parties interested in the suit to stay the proceed- ings on the recognizance, offering at the same time to pay the amount due from the receiver, but not ex- ceeding the penalty of the recognizance, into court.(n) The surety must pay the costs of the application, and of the proceedings in consequence of it.(o) If the re- ceiver's account has not been taken, the application should also pray an inquiry as to what is due from the receiver. The court may, it would seem, upon an application of this kind, indulge the surety by allow- ing him to pay the balance in instalments.^) Sureties should not pay the Moneys to the Solicitor of the Plaintiff.— Payment by the surety to the solicitor prosecuting the proceedings is insufficient. In a case where a surety, when sued upon his recognizance, had paid the amount to the solicitor prosecuting the pro- ceedings, and then applied to have his recognizance vacated, and served the petition on the plaintiff' who did not appear, the court would not order the recogni- zance to be vacated, but directed the plaintiff to be served with notice that an order should be made on a (n) Walker v. Wild, 1 Madd. recognizance, 3 Dan. Cb. Pr. 528; Dan. Ch. Pr. 1604; see as 1773. to notice of motion on summons (o) Walker v. Wild, 1 Madd. by surety to stay actions on tbe 628. (p) lb. 276 LIABILITIES AND RIGHTS OF SURETIES. certain day, that the recognizance should he vacated, unless he should show cause to the contrary.^) Surety paying Moneys for Receiver entitled to be indemnified.— If a surety has been called upon to pay anything on account of the receiver, he is entitled to be indemnified for what he has paid for the receiver out of any balance which may be coming to him in the suit. Therefore, where a receiver had borrowed money from his surety to make necessary payments, it was held that the surety was entitled to be repaid the amount lent out of the balance in court, reported due to the receiver.(r) Upon the same principle, the share of a receiver in property which was being admin- istered by the court, was held liable to make good to the surety the amount paid by him for the receiver, although it was not included in a mortgage which the receiver had given the surety as an indemnity.(s) Right of Surety who has paid the Amount due by the Receiver to enforce Recognizance against his Co-surety. — A surety who pays the debt of his principal has the same right against his co-surety that he has against the principal, and will be permitted to put the recog- nizance in suit as against the co-surety. (/) (q) Mann v. Stenndt, 8 Beav. (s) Brandon v. Brandon, 3 D. 189. & J. 524. (r) Olosaup v. Harrison, 3 V. (() Woods v. Creayhe, 2 Hog. & B. 134; Coop. Gl. 51. CHAPTER XIII. MANAGERS AND CONSIGNEES. Manager.— "Where a receiver is required for the purpose not only of receiving rents and profits, or of getting in outstanding property, but of carrying on or superintending a trade or business, he is usually called a manager, or a receiver and manager. The ap- pointment of a manager implies that he has power to deal with the property over which he is appointed manager, and to appropriate the proceeds in a proper manner.(a) In what Cases appointed.— Where the court appoints a manager of a business or undertaking, it in effect assumes the management into its own hands ; for the manager is the servant and officer of the court, and upon any question arising as to the character or details of the management, it is the court must direct and decide. Managers, when appointed by the court, are responsible to the court, and no orders of any of the parties interested, in the business over which they are appointed managers, can interfere with this responsi- bility. The court will in no case assume the manage- ment of a business or undertaking except with a view (a) Sheppard v. Oxenford, 1 K. & J. 500. 278 MANAGERS AND CONSIGNEES. to the winding up and sale of the business or under- taking. The management is an interim management ; its necessity and its justification spring out of the jurisdiction to liquidate and sell; the business or under- taking is managed and continued in order that it may be sold as a growing concern, and with the sale the management en els. (b) A manager may be appointed to carry on a private trade or business so as to wind it up for the benefit of the parties interested. In Steer v. Steer,{c) a manager was appointed to carry on the business of the intestate, there being no existing representative to his estate.((/) 1 The cases in which managers are generally appointed are partnership cases. The principles on which the court acts in appointing managers in such cases have been already pointed out.(e) 2 Manager of Railway Company.— The court will not appoint a manager of a railway company ,(/) 3 for, in (b) L. R. 2 Ch. App. 21 1, 212 ; (c) Supra, p. 90, el seq. per Lord Cairns, see Waters v. •(/) Gardner v. London, Chat- Taylor, 1 5 Ves. 25 ; supra, p. 90. ham, and Dover Railway Co., L. (c) 2 Dr. & Sm. 311. R. 2 Ch. App. 212; Bowen v. (d) See as to manager of a Brecon Railway Co., lb.; 3 Eq. newspaper, Chaplin v. Young, 6 545; Griffin v. Bishop's Castle I, T. N. S. 97. Railway Co., 15 W. R. 1058. 1 The court may authorize :i receiver to carry ou business; see Marten v. Van Schaick, I Paige C. R. 479; Cram- v. Ford, Hop- kins, ('. I:. Ill ; Jackson v. De Fores/, L4 How. Pr. R.81 ; Smith v. New ForkStage Co., 18 AM.. Pr. Rep. 420; 28 How. IV. R. 377. 2 See the cases cited in the notes to page 90, supra, and also Weissenborn v. Seighortner, 6 C. R. Green, 483, where Sieghortner v. Weissenborn, 5 M. 177, is overruled. 3 It witssiud in Stevens v. Davison, L8 Grattan, 828, that, while, for the reasons assigned in Gardiner v. The Railway Co., L. R. 2 MANAGERS AND CONSIGNEES. 279 addition to the general principle that the Court of Chancery will not in any case assume the permanent management of a business or undertaking, there is that peculiarity in the undertaking of a railway which would make it improper for the Court of Chancery to assume the management of it at all. Where the legislature, acting for the public interest, authorizes the construction and maintenance of a railway, both as a highway for the public and as a road on which the company may themselves become carriers of passen- gers and goods, it confers powers and imposes duties and responsibilities of the largest and most important kind, and it confers and imposes them upon the com- pany which the legislature has before it, and upon no other body of persons. These powers must be executed and these duties discharged by the company. They cannot be delegated or transferred. The company will, of course, act by its servants, for a corporation cannot act otherwise, but the responsibility will be that of the company. The company could not by agreement hand over the management of the railway to the debenture holders. It is impossible to suppose that the Court of Chancery can make itself or its Ch. App. 201, a Court of Chancery will be reluctant to appoint a receiver to take charge of and manage a railroad, it is competent to do so where such a course is indispensable to secure the rights of the legitimate stockholders and to prevent a failure of justice. Under the circumstances of this case the court deemed the appointment of such a receiver a proper measure. Such an appointment is now frequently made. See Paige v. Smith, 99 Mass. 395 ; Blumenthal v. Brainerd, 38 Vermont, 408; The Delaware, Lackaivanna, and Western Railroad Co. v. The Erie Railway Co., 6 C. E. Green, 298, and ante p. 223, note. 280 MANAGERS AND CONSIGNEES. officers, without any parliamentary authority, the hand to execute these powers, and all the more im- possible where it is obvious there can be no real and correlative responsibility for the consequences of any imperfect management. It is immaterial that the company do not object to, or may even desire, the appointment of a manager.^) Under the provisions, however, of a late act, the Eailways Companies' Act, 1867, 30 & 31 Vict., c. 127, s. 4, a creditor who has recovered judgment against a railway company may obtain, if necessary, the ap- pointment of a manager of the undertaking.(A) Manager of Market, &c— Though a receiver may be appointed of the tolls of a market, the court will not appoint a manager of a market or of the affairs of a corporation, (i) 1 Manager of Property abroad.— "Where the suit relates to property abroad or in the colonies, which partakes of the nature of a trade, it is competent for the court to appoint a manager. 2 The manager is appointed in such cases, not for the purpose of carrying on the trade, but to enable the court to give relief when the cause shall be heard. (k) Persons, for instance, have been [g) L. R.2 CI). App. 212,213, (?') De Winlon v. Mayor, frc, per Lord Cairns. of Brecdn, 2(3 Beav. 542. (1i) Supra, p. 70; roc Re (k) Waters v. Taylor, 15VeB. Stafford and Uttoxeter Railway 25; per Lord Eldon; Sheppard Co., 3 W. N. 113. v. Oxenford, 1 K. & J. 500. 1 See Neall v. Hill, 1G Cal. 150. 2 See Daniel's Chan. Prac. 1149, 3d Am. ed. MANAGERS AND CONSIGNEES. 281 appointed to manage landed property, to receive the rents and profits, and convert, get in, and remit the proceeds of property and assets, when such property has been situated in India,(/) the West Indies,(w) Demerara,(?i) and the Brazils.(o) A person resident in England may be appointed manager, with authority to appoint an agent abroad in the country where the property is situated ;(p) and sometimes a person resident in the country where the estate is situated is appointed manager.^) Consignee.— In cases where the manager of the estate must necessarily reside in the country where the estate is situated, it is usual to add, to the order directing the appointment of a manager, an order for appointment of one or more consignee or consignees resident in this country, to whom the produce of the property in question may be remitted, and by whom it may be disposed of.(r) A consignee acting under the appointment of the court is the paid agent of the court to manage the estate which is in the hands of the court.(s) Mode of Appointments.— The course of proceeding (I) Logan v. Princess of Coorg, K. & J. 500; see as to form of Set. on Deer. 1038. order, lb. 501 ; Set. on Deer. (m) Set. on Deer. 1036„1037 ; 1034. see BarHey v. Lord Reay, 2 Ha. ( p) Set. oo Deer. 1036-1039. 308. (?) lb. (n) Bunbury v. Bu'nbury, 1 (r) Set. on Deer. 1035, 1036, Beav. 336 ; Bentinck v. Wilh'nk, 1037. 1 L. T. 410. (s) Morrison v. Morrison, 7 (o) Sheppard v. Oxen/ord, 1 D. M. & G. 226. 282 MANAGERS AND CONSIGNEES. under an order for the appointment of a manager and consignee is the same as that under an order for the appointment of a receiver,^) and the general orders of the court which apply to receivers apply to managers and consignees also.(?<) Security in general must be given.— In some cases a manager of a West India estate has been appointed without giving any security whatever ;(x) but in Rutherford v. Wilkinson, (y) Lord Giftbrd, M.R., said it had been only done under special circumstances, and that in general, to warrant such a course, it should appear that no manager could be found who would give security, or that the person proposed was fit to be appointed without security. Under the circum- stances, however, he made the order for the appoint- ment without security, with the consent of such of the parties as could consent, but on a subsequent applica- tion in the same cause security was required. (z) A manager or consignee in England, unless he is the trustee or other legal personal representative of the property, is required to give the usual security to account for what he may receive ;(a) and ordinarily the person appointed to act abroad as manager must give the like security of persons resident in this country. (ft) The manager of ji W'esl India estate is not required to give security faithfully to manage. Having a dis- Dan. Oh. IV. L605. (z) [b. Prel. Ord. X.. r. LO. (a) Ord. XXIV. I. (x) Set. on Deer. LO (6) lb. Cockburn. v. Raphael, {>,) II.. 1036, I 2 Sim. «< rl riiuil v. Davies, 31 were entitled to be reimbursed Beav. 136. out of moneys which had been (.s) Fnr//uha7-son v. Balfour, awarded under the Act for the H Sim. 213. Abolition of Slavery, lb.; Shaw (t) lb.; see, as to cases in v. Simpson, I Y. & O.C. ('. 732. APPENDIX OF FORMS. [The usual form of prayers for Receivers is, simply, that " a re- ceiver be appointed to (here set out the purpose of his appointment, whether to take charge of the estate of a decedent, or the assets of a firm, or the property of a corporation, or otherwise, as the case may be), with such power and authority therein as to this Court may seem meet, and as the justice of this cause may require." If, in any case, it is desirable that certain powers should be specifically prayed for (which will seldom occur), frame such prayers by setting out therein the powers desired to be conferred, for which see forms here- inafter given.] I. Order Appointing a Receiver of a Railroad Company. In the Court of the United States for the Between a citizen of the State of and the IS. 0. and C. Railroad Company, complainants, and The S. Railroad Association, defendants, respect- ively bodies corporate as particularly stated in the Bill filed. And now, upon filing the Bill in the above-entitled suit and on motion of solicitor for the plaintiff therein, it is ordered and decreed as follows : 288 APPENDIX OF FORMS. That be and he is hereby appointed Receiver of all and singular the railroads, rolling stock, boats, equipments, materials, supplies, income, choses in action, personal property of every descrip- tion, rights, privileges and franchises, lands, tene- ments and hereditaments, now held by or belonging, or appertaining to the N. 0. and C. Railroad Com- pany, and of all the books, accounts, records, docu- ments, and papers of the said Company. And it is hereby further ordered that, so soon after entering upon the duties of his said office as may be practicable, the said Receiver shall cause an inventory of all and singular the rolling stock, and other personal property which shall have come into his possession to be made and filed in the office of the Court. And is is further ordered that the said Receiver shall be invested with full power and authority I. To continue the business now carried on by the said N. 0. and C. Railroad Company in operating the railroad in the said bill mentioned as extending from N. in the State of Louisiana to F. in the State of Ken- tucky and the several branches thereof, and the navi- gation connecting the said railroad with the railroad of the I. C. Company, in such manner as he shall deem most advantageous, and for such purposes to make such traffic arrangements for the interchange of business with other carriers by railroad or water, and to do and perform such things as may be necessary or advisable to continue and increase the business of the said railroad, as may at the same time be not incon- APPENDIX OF FORMS. 289 sistent with any requirement of law relating to the said business. II. To keep the said railroad and branches, boats, or vessels, rolling stock, and all the property of the said Company, real and personal, in good condition and repair, so that the said railroad may be safely and efficiently operated ; and to the same end he may make such additions, by purchase or lease, to the equipment of the said railroads as may be hereafter required to keep up the transportation facilities thereon to a pro- per state of capacity and efficiency. III. To employ, pay, and when necessary discharge all agents and employees required to enable him to discharge his duties as Receiver, and to purchase and pay for all necessary material and supplies. And, fur- ther, to pay all wages and salaries due by the IS". 0. and C. Railroad Company for services rendered during the months preceding the date of the said Receiver entering upon the duties of his office. IV. To pay all lawful taxes and other charges and assessments upon any and all the said property, real or personal. And generally to make from the income of the said railroad all such other payments as may be necessary or incident to the possession, control, and operation of the said railroad in accordance with this order. V. To prosecute or defend without the further order of this Court all existing actions by or against said Company or either of the companies consolidated into it, and to pay and defray the expenses properly inci- 19 290 APPENDIX OF FORMS. dent thereto ; to commence and prosecute any actions which in the course of business he may deem neces- sary or proper to commence hereafter, either in the name of the said company, or in his own name, as such Receiver, as he may be advised, and to defend all suits that may hereafter he brought against the said companies or any of them, and to defray the rea- sonable and proper expenses thereof, and to pay the fees of counsel with whom he may consult in the dis- charge of his duties as Receiver, and also to pay all reasonable fees and legal expenses incurred by the par- ties to the present suit up to the date of his appoint- ment. VI. To protect and preserve the franchises of the said Company, and to do whatever may be needful and lawful for that purpose and for maintaining the ad in- terim corporate organization of the said Company, and to defray the necessary and proper expenses thereof: and in all and singular the premises the said Receiver shall be subject to such orders and directions as this Court may from time to time make in the premises, and for which the said Receiver may apply as he shall be advised. The said Receiver shall keep full, particu- lar, and accurate accounts of all the earnings, revenue, and income of the said railroad, and of all expendi- tures made by him in performance of the duties of his Baid office, and shall preserve vouchers therefor ; and lie shall once in every months, and oftencr if re- quired, file with the Clerk of this Court a true and particular account of all such receipta and disburse- ments. APPENDIX OF FORMS. 291 He shall keep all money received by him on deposit in one or more banks of good credit, subject to bis order and to be drawn therefrom on his check only for the proper purposes of the said receivership, and all-sums not required for making such payments shall be safely kept subject to the further order of this Court. The said Receiver shall be paid, so long as he shall faithfully discharge his duty, at the rate of thousand dollars per annum in full for all services. And it is hereby further ordered that the said IS". 0. and C. Railroad Company and all the officers and agents thereof shall deliver up and render to the said Receiver, upon his qualification as aforesaid, all and singular the premises whereof he is appointed receiver as aforesaid. And it is finally ordered that before the said Re- ceiver shall enter upon the duties of his office he shall file a bond, with two or more sureties, to be approved by this Court or one of the Judges thereof, conditioned for the faithful performance of his duties as such Re- ceiver. 202 APPENDIX OF FORMS. II. Order Appointing Receiver of Railroad Company in a Foreclosure Suit. r It is ordered by the Court : First— That C. L. P., of Xew York, and H. F., of Lynchburg, Va., be and they are hereby appointed joint receivers of all and singular the mortgaged premises specified and described in the deed of trust referred to in the plaintiff's bill of complaint, includ- ing the entire line of railroad therein mentioned ; all and singular the franchises, lands, tenements and here- ditaments of the said defendant company ; all and singular the books, papers, and records thereof; all and singular the rolling stock, tools, machinery, en- gines, and all the personal property of every kind and description of the said company. Second.— That the said receivers, before .entering upon the performance of their duties as such under this order, do each of them severally execute a bond, with sureties, to be approved as to form and suffi- ciency by a judge of this Court, and filed with the clerk thereof, in the sum of $100,000, for the faithful discharge of his duties in the premises. 7 T A?W.— That upon filing of such bonds the said re- ceivers proceed to take possession of all and singular the premises whereof they an- hereby appointed re- ceivers; that they continue to run and operate the said railroad of the defendant as the same is now ope- rated for the common carriage of freight and pas sen- APPENDIX OF FORMS. 293 gers, keeping the premises and property both real and personal in good condition and repair, to the end that said road may be operated efficiently and with safety to the public; that they as such receivers have au- thority to employ, pay and discharge from time to time, in their discretion, all needful laborers, servants, agents, attorneys and counsel ; to purchase and pay for all needful materials and supplies; to settle and adjust with other roads all traffic balances in the usual course of business; to make from time to time, in their best dis- cretion, all needful and proper traffic arrangements with other roads for the interchange of business; to pay all taxes on the property whereof they are appointed re- ceivers that may be due and pa} T able or become due and payable during their receivership ; to prosecute and de- fend without the further order of this Court all existing actions by or against said company ; and to defend all actions that may hereafter be brought against the said company or against themselves as such receivers, by the permission of this Court, and to pay the expenses of such prosecution and defence, and also the expenses and disbursements of the plaintiffs, trustees in and about the appointment of said receivers ; to use the name of said company in the prosecution of all such ac- tions as they ma} r find it proper and necessaiy, in their discretion, to bring, maintain or defend, with full power to compromise, adjust and settle, in their best discretion, all such actions, suits or controversies now existing or that may hereafter arise; to do whatever may be needful and proper to maintain and preserve the corporate organization and franchises of the com- 294 APPENDIX OF FORMS. pany until the further order of this court, and to pay and expend such sum, and no more, for that purpose as may he hereafter on application and hearing ordered by this Court; to redeem any and all securities now- pledged as security for loans of money, if any there be, if it shall be for the interest of the trust hereby re- posed in the said receivers so to do, but not otherwise. Fourth. — It is further ordered that as soon as may be after the said receivers have entered upon the per- formance of their duty, they make a true, full and per- fect inventory of all and singular the real and personal property of every kind and description whereof they are appointed receivers and which may come into their possession, and file the same with the clerk of this Court, and due notice of such filing to be given to the plaintiff's solicitors. That the said receivers do keep full, true and accurate accounts of all and singular their acts and doings in the premises; that they ren- der and tile with the clerk of the Circuit Court of the United States for District of such account within ten days after the expiration of every month of their receivership, and serve copies thereof upon the plaintiff's solicitors, and that they have liberty to pass their accounts from time to time before M. F., who is hereby appointed a master for that purpose, on ten days' notice to the plaintiff's solicitors after the service on them of such copy thereof; that any questions which may arise on such accounting lie reported to this court for examina- tion and decision, and that such accounting, when from time to time had ami completed, shall he final APPENDIX OF FORMS. 295 and conclusive upon all parties, unless on clue cause shown the same shall, during the pendency of this action, be opened on special application. Fifth. — It is further ordered that all moneys com- ing into the hands of said receivers or either of them be by them deposited in one or more safe banks of deposit, to be approved by this Court or a judge thereof, to the joint credit of the receivers, to be by them drawn out on their joint order or on the order of an agent or attorney to be by them agreed upon. It is further ordered that the said receivers, exercising due prudence and caution in the selection thereof, shall not be responsible for the wrongful acts of their servants and agents. It is further ordered, that the said receivers shall not, nor shall either of them, in any case incur any personal or individual liability in the operation of the said line of railroad or otherwise in the premises by reason of any act or thing done by them or either of them as. re- ceivers, or by their servants, agents or attorneys, the said receivers respectively acting in good faith and in the exercise of their best discretion ; but the mort- gaged premises shall nevertheless be chargeable with any judgment which maybe established against the receivers in any action brought against them by any person under leave of this Court first had and obtained. It is further ordered that the said receivers respect- ively shall in no case be responsible for the acts of each other, but shall be responsible only severally each for his own acts. Sixth.— -It is further ordered that all applications 296 APPENDIX OF FORMS. for interlocutory order or relief in this action, by or on behalf of any party thereto or the receivers therein, shall be made on notice by the moving party to the party or parties of at least ten days exclusive of the day of service, and on due proof of personal service of notice, unless the notice hereby required be waived in writing. Seventh. — It is further ordered that the said defend- ants and all persons whatsoever be and they are hereby strictly commanded and enjoined peacefully to deliver up and surrender to the said receivers all and singular the premises whereof they are hereby appointed re- ceivers, under the penalty attaching by law to disobe- dience. And in the mean time, and until the actual taking possession of the said property by the said re- ceivers, it is ordered that the said A., M., and 0. Rail- road Company, its president, officers, agents and attor- nej's, be and they are hereby enjoined and restrained from disposing of or parting with any of the said property, real or personal, except in the payment of the necessary daily expenses of said road, and that the said company forthwith deposit all moneys and available balances now in its possession or control and which comes into its possession from day to day, except what is needed for the said necessary expenses, in the A. National Bank of N., subject to the order of this Court in this cause. APPENDIX OF FORMS. 297 III. Receiver of Heal and Personal Estate of Decedent. It is ordered and decreed, that A. B. be appointed receiver, upon his giving security, of the rents and profits of the real estates (freehold and leasehold), and to collect and get in the outstanding personal estate of C. D., the testator (or intestate) in the pleadings mentioned. And the tenants of the said real estate are to attorn and pay their rents in arrear and growing rents to such receiver. And it is further ordered that E. and F., the executors of the will of the testator (or the administrators of the effects of the intestate), de- liver over to such receiver all securities in their hands for such outstanding personal estate, together with all books and papers relating thereto. And it is further ordered that the receiver from time to time do pass his accounts, and pay the balances which shall be certified to be due from him, into the bank of Z. to the credit of this cause (or into the Registry of the court to the credit of this cause). IV. Order Appointing Party to a Cause Receiver to Act Without Salary or Security. It is ordered that A. B. be at liberty to propose himself as such receiver without giving security, he undertaking to act without salary in case he shall be appointed. 298 APPENDIX OF FORMS. V. Order Requiring Tenant to Attorn and Pay Bent and Arrears. Upon consideration of the orders heretofore made in this cause, whereby it appears that A. B. has been duty appointed receiver of etc. ; and an affidavit of the said A. 13. and of C. D., filed of personal service of the said order, and of notice in writing signed by the said A. B. and E. F., requiring the said E. F. to attorn to him as such receiver, for the [describe the property] occupied by the said E. F., situate at being part of the said estates, and to pay his rent in arrear and growing rent for the same to the said re- ceiver; and of the said E. F.'s refusal [or neglect] to attorn to and become the tenant of the said receiver, or to pay any rent to him, and an affidavit of G. filed of notice of this motion to the said E. F. ; let the said E. F., within eight days after service of the order, attorn to and become the tenant of the said A. B., the receiver appointed in this cause in respect of the etc., occupied by the said E. F., situate at part of the estate etc. VI. Receiver to Distrain. Let C, the receiver of the rents and profits of the estates of etc., be at liberty to distrain upon the goods and chattels of the several tenants named in the said affidavit, for the several amounts of rent due and APPENDIX OF FORMS. 299 owing from the said tenants; and let such distraints be made in the name of the defendant A., in whom the legal estate in the said etc. is vested. VII. Receiver to Bring Action for Rent, and Tenants to Attorn. Let etc., the receiver of the rents and profits of the charity lands in etc., be at liberty, in the names of the defendants, to bring actions in the [proper court], against the several persons named in his said affidavit, for recovery of the arrears of rent due from them respectively to the said charity ; and let E. etc., in the said affidavit named, who are respectively in possession of part of the said estates respectively [If on notice, on or before etc., or within etc.], attorn as tenants to the said receiver. yiii. Inquiry as to Cutting Timber, with Consequent Directions. Let an inquiry be made, whether there are any and what timber or other trees standing or growing on the estates etc., which are fit to be cut down ; and let such timber and other trees as shall appear to be fit to be cut down, be cut down and sold with the approbation of the judge; and let a proper person, upon his giving security, be appointed to receive the proceeds of such sale ; and be at liberty to pay and retain thereout such 300 APPENDIX OF FORMS. costs, charges, and expenses of surveying, valuing and selling such timber and other trees as the judge shall allow ; and let such persons within (14 days) after the date of the chief clerk's certificate, or such other time as shall he thereby appointed, pay the residue of the proceeds of such sale into the bank, to the cred.t of this cause \_If so, to an account to be entitled etc.], subject etc. IX. Receiver to Cut and Sell Timber. Let W., the receiver appointed in this cause, be at liberty to cut down the timber and other trees men- tioned in the affidavit of etc., filed, etc., and to sell the same, and include the proceeds thereof in his accounts as such receiver ; and let the said receiver pay and re- tain out of such proceeds the costs, charges, and ex- penses of the applicants properly incurred of this application, and of cutting doAvn and selling the said timber and other trees, such costs, charges and ex- penses to be ascertained by the chief clerk to the judge and allowed the receiver in his accounts. X. Receiver and Manager of Testator's Mines and Realty. Let a proper person be appointed to manage, carry on, and work the mines devised by the will of IT., the testator iti the pleadings named, and to raise, get, and dispose of the coal, iron-stone, quarry-stone, and other APPENDIX OF FORMS. 301 minerals from the said mines, and to receive the pro- duce of such sales, and the rents and profits of the said mines, and pay and discharge the current expenses and charges of working the same, and to receive the rents and profits of the lands (and hereditaments) in or under which the said mines are now lying or being, and to collect and get in the outstanding debts belong- ing to the said business. And the tenants of the said lands are to attorn etc. ; and let defendants etc. deliver up the possession of the said mines to such manager and receiver as form etc. ; and also all secu- rities in their hands in respect of such outstanding debts, and the stock, goods, effects, and accounts belonging to the said mining business. [Direction to pass accounts and pay in balances.] XI. Receiver and Manager of Testator's Business. Let a proper person be appointed to collect, get in, and receive the debts now due and outstanding, belonging to the trade or business in the pleadings mentioned, carried on by the testator, and since by the defendants M. and C. and by the defendant M., and, out of the first moneys to be received, to pay the debts due from the said trade or business, and to manage the same until the sale thereof; and let the plaintiffs and defendants deliver over to such person all the stock in trade, goods, effects, books, and accounts belonging to the said business. [Direction to pass accounts and pay in balances.] 302 APPENDIX OF FORMS. XII. Receiver of Leasehold and Partnership. Let a proper person be appointed to receive the rents and profits of the leasehold hereditaments in the pleadings mentioned (other than the house in which the defendant resides), and also to receive and get in the debts and effects of the partnership in the plead- ings mentioned; tenants to attorn; plaintiffs and defendant to deliver to receiver all partnership effects and securities in their hands for outstanding partner- ship estates, and books and papers relating thereto; out of the money to be received in respect of the rents, debts and effects, receiver to pay the ground-rents, and debts due and to become due from the partner- ship, and to pass accounts and pay in balances. XIII. Receiver and Manager of Partnership Business. Let a proper person or persons be appointed, either jointly or separately, to collect, get in, and receive the debts now due and outstanding, and other assets, property, or effects belonging to the said partnership business of etc. at etc., and out of the first moneys to be received to pay the debts due from the said business, and to manage the same so far as relates to any contract subsisting on the day of and either of the parties is to be at liberty to propose himself as such receiver and manager, to act without salary. And let the plaintiff and defendant deliver APPENDIX OF FORMS. 303 over to the person or persons so appointed, all the stock in trade and effects of the said partnership, and also all securities in their or either of their hands, for such outstanding partnership estate, together with all books and papers relating thereto. [Direction that all the partnership property and effects, other than stock in trade and the good will of the partnership, be sold, either as a going concern or otherwise as the judge shall direct, and either of the parties not having the conduct of such sale to be at liberty to bid. Liberty to apply in chambers as to the payment of any liabilities of the partnership prior to the appoint- ment of such receiver and manager or receivers and managers.] XIV. Manager and Receiver of Partnership Colliery. And let a proper person be appointed to take and have the management of the partnership colliery, stock, and effects in the mean time, and until a sale thereof as aforesaid, and to have the direction and superintendence of the work of the said partnership business, and to collect and get in the outstanding debts and effects belonging to the said partnership, and any of the defendants are to be at liberty to propose themselves as such manager and receiver. And let the plaintiff and defendant deliver over to such mana- ger and receiver all securities in their hands for such outstanding partnership debts and effects, together with all the stock, goods, effects, books, and accounts 304 APPENDIX OF FORMS. belonging to the said partnership. And in case it shall be necessary to put any of the debts in suit for the recovery thereof, the same is to be done with the approbation of the judge. And the person so to be appointed is to be at liberty to make use of the names of the said plaintiff and defendants, who are to be indemnified therein out of the stock, goods, and effects of the said partnership, and out of the money to be received in respect of the said debts, by such manager and receiver. And let him pay the debts due and to accrue due from the said partnership and from time to time pass his accounts, and after retain- ing in his hands such sums as shall be deemed suffi- cient for carrying on the said colliery, pay the balances that shall from time to time be certified to be due from him into the bank, etc. XV. Receiver to Repair Hereditaments. Let the receiver appointed etc. be at liberty to ex- pend a sum not exceeding dollars in the repair of the hereditaments at etc., part of the estates in question in this cause, such repairs to be done accord- ing to the specification and plan marked A. in the affidavit of M. (surveyor) referred to, and to the satis- faction of the said M., and the said receiver is to be allowed what he shall so expend in passing his ac- counts. GENERAL INDEX. ABATEMENT, of rents of tenants by receiver, 213. of suit does not suspend the authority of a receiver, 205. ACCOUNTANT TO THE CROWN, cannot be receiver, 143. ACCOUNTS, form of receiver's, 247, 248. delivery of, 247. mode of passing, 247, 248. how to compel the leaving and passing, 248, 249. parties interested may attend passing, 249. entitled to copies of, 250, 251. allowance of, 251, 252. certificate of, 252, 253. receiver neglecting to leave or pass, must pay interest on the balance, and will lose his salary, 254, 255, 256. receiver ordered to pass, although bill has been dismissed, 256. of deceased receiver, 259, 260. as to passing, with infants after coming of age, 258, 268. as to opening, with a ward of court, 231. ACQUIESCENCE, a bar to the appointment of a receiver, 11. ACTION AT LAW. See Damages. receiver should not bring or defend, without leave, 206, 207, 215, 216. receiver's right to bring, subject to two restrictions, 206. must be in the name of holder of legal title, 206. may be brought in receiver's name if specially authorized, 207. cannot be brought by receiver outside the jurisdiction, 168, 207. except where legal title is vested in him, 207. cannot be brought against receiver without leave, 208. for double rent or double yearly value, 215. 20 30G GENERAL INDEX. ADMINISTRATION. See Probate. decree, receiver appointed after, in suit commenced by sum- mons, 145. ADMINISTRATOR. See Executors. receiver appointed against, of foreigner, at suit of one of next of kin, pending proceedings abroad, 28. receiver appointed at suit of. against a judge in a colony who claimed to be official administrator of a person who had died there, 37. AFFIDAVITS, on application for receiver, 154, 155. verifying the accounts, 251. ALLOWANCES. See Salary. to a receiver, 236, 237, 238, 239, 241, 242. for extraordinary trouble, &c, 241, 242. not made, if accounts are not passed, 245, 256, 257, 258. for repairs, 218, 245. of manager of a West India estate, 285. ANNUITY, receiver appointed of arrears of, 11. ANSWER, receiver appointed before, 146. APPEAL, lies from an interlocutory order in England, 149. not in the United States courts, 149. as to, from orders appointing or discharging receivers, 149,150. APPEARANCE, receiver appointed before, 147, 148. APPOINTMENT OF RECEIVER, general ol>ject of the, 3. B matter for the discretion of the court, 3, 4, 5, 6. rule- regulating, LO. ,■ l ii< t 1 UC SOUTHERN REGIONAL LIBRARY FACILITY AA 000 760 097 6