a. A receiver would not be appointed in a creditor's suit if the remedy at law had not been exhausted (Starr v. Rathbone, 1 Barb. 70).

b. The selection and appointment of a receiver and taking of security from him is a proper matter for a reference (Wetter v. Schlieper, 7 Abb. 92; Jackson v. De Forrest, 14 How. 82). Where it is referred to a referee to report a proper person to be appointed a receiver, an order of appointment by the court is necessary; but where the reference is to appoint a receiver and take the requisite security, the appointment by the referee needs no confirmation by the court (Re Eagle Iron Works, 8 Paige, 385); the appointment may be reviewed (id.)

e. The regularity of the appointment of a receiver cannot be questioned by any third party (Tyler v. Willis, 33 Barb. 327; and see Battershall v. Davis, 31 Barb. 323; Angel v. Salisbury, 19 How. 48).

d. Receiver appointed, in all cases of fraudulent trusts (6 N. Y. 252); where fraud is shown and the fund is in danger (Podmore v. Gunning, 7 Simons, 485; 1 Barb. Ch. R. 664; 1 Hopk. 429; 3 Johns. Ch. 48; see Reubens v. Joel, 13 N. Y. 488); to prevent the removal of the subject of the action out of the jurisdiction of the court (Gibbins v. Mainwaring, 9 Simons, 77; Tanfield v. Irvine, 2 Russ. 149; see 5 Law. Jour. Rep. Ch. 79); where a trustee is charged with violating his trust (Boyd v. Murray, 3 Johns. Ch. 48; see, however, Orphan Asylum Soc. v. Mc Cartee, Hopk. 429; Jenkins v. Jenkins, 1 Paige, 243); to preserve property of a corporation (Lawrence v. Greenwich Fire Ins. Co. 1 Paige, 587); in a proceeding to foreclose a mechanics' lien (Webb v. Van Zandt, 16 Abb. 314, note); of an estate assigned for benefit of creditors, the assignee being insolvent (Connah v. Sedgwick, 1 Barb. 210); pending an appeal (McMahon v. Allen, 14 Abb. 220).

e. Receiver not appointed, unless there is strong probability the court will decide in favor of the applicant and the fund is in danger (3 Abb. 255); in an action to stay waste (Robinson v. Preswick, 3 Edw. Ch. R. 246); on the application of one defendant against another before trial (Trumbull v. Ogden, Halst. Dig. 178); over real property, unless in extraordinary cases (Willis v. Corlies, 2 Edw. Ch. R. 281; Congden v. Lee, 3 id. 304; Parker v. Moore, id. 234; Cairns v. Chabert, id. 312; Ireland v. Nichols, 7 Rob. 476; Huerstel v. Lorillard, id. 251; 38 How. 43; Rogers v. Marshuli, 6 Abb. N. S. 457; see Receiver in Mortgage cases, and see Ejectment in note to § 455, post); in quo warranto to dissolve a corporation (The People v. Wash. Ice Co. 18 Abb. 382).

f. Who may be receiver.-An officer of an insolvent bank is not to be appointed its receiver (Att. Gen. v. Bank of Columbia, 1 Paige, 511; 3 Wend. 588). But on the voluntary dissolution of a bank, an officer or stockholder may be appointed receiver (Re Eagle Iron Works, 8 Paige, 385; 3 Edw. Ch. R. 385; Bowery Bank case, 5 Abb. 417; 2 R. S. 417). A party to the action may be appointed receiver (Fenn v. Bolles, 7 Abb. 203; Smith v. N. Y. Stage Co. 28 How. 208).

g. Where the same property is involved in two suits, it is the practice to appoint the same person receiver in both suits (Howell v. Ripley 10 Paige, 43; Osborn v. Heyer, 2 id. 342; Cagger v. Howard, 1 Barb. Ch. R. 368; see 4 E. D. Smith, 191).

h. Receiver is an officer of the court.-A receiver is an officer of the court which appoints him (Lottimer v. Lord, 4 E. D. Smith, 183); and entitled to the instructions of the court as to his duty (Re Van Allen, 37 Barb. 225; Curtis v. Leavitt, 1 Abb. 274). And the court will give such directions to a receiver, on the application of one not a party to the suit, as may be necessary to protect his rights (Vincent v. Parker, 7 Paige, 65; see 10 id. 46; 2 Duer, 685).

i. When title vests in receiver.-When an order of reference is made for the appointment of a receiver, and a receiver is subsequently appointed, his title in certain cases vests by relation from the date of the order of reference (Rutter v. Tallis, 5 Sand. 612; Deming v. N. Y. Marble Co. 12

Abb. 66; Clark v. Brockway, 3 Keyes, 15). On the order for the receiver being consummated by his giving security, the personal estate and equitable interest of the party of whom he is receiver, vests in him without any assignment, as of the date of the order of his appointment (Wilson v. Allen, 6 Barb. 542; Wilson v. Wilson, 1 Barb. Ch. R. 592; Porter v. Williams, 9 N. Y. 142; 12 How. 107; Lottimer v. Lord, 4 E. D. Smith, 183; West v. Frazer, 5 Sand. 654; Albany City Bank v. Schumacher, 1 Clark, 278, 300; see § 298 post). Where intermediate the appointment of a receiver and his filing security, the property of which he was appointed receiver was levied on by the sheriff, the court, on motion, after the receiver had filed security, ordered a return of the property to the receiver (Steel v. Sturges, 5 Abb. 442; Rutter v. Tallis, 5 Sand. 612; see Rich v. Loutrel, 9 Abb. 356; 18 How. 121; Re N. Amer. Gutta Percha Co. 17 How. 549).

a. A receiver does not by force of his appointment as receiver become possessed of property in a foreign State (Field v. Ripley, 20 How. 26); nor of real property (Chautauque Co. B'k v. Risley, 19 N. Y. 374).

b. Delivery of property to receiver.-Where an order is made for the delivery of property to a receiver, the demand of delivery must be made by the receiver personally, a demand by the plaintiff in the action, his attorney or the referee appointed to see the delivery made will not warrant an attachment for disobeying the order to deliver (Panton v. Zebley, 19 How. 394).

c. Taking property from receiver.-Where a receiver is in possession of property which is claimed by a third person, the proper course is to apply by petition to the court which appointed such receiver for an order on him to deliver such property to the claimant, an attempt to obtain possession by suit against the receiver is a contempt (Riggs v. Whitney, 15 Abb. 390; see Noe v. Gibson, 7 Paige, 513; Albany City Bank v. Schermerhorn, 9 id. 372; 10 id. 263; Parker v. Browning, 8 id. 388; Chautauque Co. Bank v. Risley, 19 N. Y. 370).

d. Receiver represents creditors.-The receiver represents the creditors and the other persons interested (Porter v. Williams, 9 N. Y. 142; Wilson v. Allen, 6 Barb. 544; Gillett v. Moody, 3 N. Y. 479; Talmadge v. Pell, 7 N. Y. 328; Curtis v. Leavitt, 15 N. Y. 12; Brower v. Hill, 1 Sand. 629).

e. Compensation to receiver.-A receiver is entitled to commissions at the rates prescribed by the revised statutes; and he is also entitled to be repaid actual disbursements prudently made or incurred in the care of the trust property (Howes v. Davis, 4 Abb. 71). If he acts as counsel in the business of the receivership, he is not entitled to special remuneration beyond taxable fees as counsel (Re Bank of Niagara, 6 Paige, 213; Bennett v. Chapin, 3 Sand. 673; Re De Peyster, 4 Sand. Ch. R. 511; Gardner v. Tyler, 4 Abb. N. S. 463).

f. Receiver chargeable with interest when he mixes the trust fund with his own, or with other moneys held in trust, or uses or loans the money (Utica Ins. Co. v. Lynch, 11 Paige, 520).

g. Receiver's accounts.-A receiver is to account to the court only (Musgrove v. Nash, 3 Edw. Ch. R. 172). A report upon a receiver's accounts need not be confirmed; and cannot be excepted to (Brown v. Brown, 2 Edw. Ch. R. 621).

h. Order for receiver to discharge liens.—(Hubbard v. Guild, 2 Duer, 685; see Re Ingraham, 2 Barb. Ch. R. 35).

i. When receiver may sue or be sued.-A receiver could not bring ejectment without leave of the court (1 Ves. jun. 165; 3 Bro. C. C. 88; 16 Wend. 410). Nor could such an action be brought against him without leave of the court (9 Ves. jun. 335). Nor could he make any payment (1 ib. 85; 7 Rob. 79). He cannot sue in a foreign jurisdiction for the property of the debtor of whose estate he is the receiver (Booth v. Clark, 17 How. U. S. Rep.

a. Commencing an action against a receiver as such, without leave of the court first obtained, is a contempt (Taylor V. Baldwin, 14 Abb. 166; De Groot v. Jay, 30 Barb. 483; 9 Abb. 356; 18 How. 121; and see Bailey v. Devereux, 1 Vernon Ch. Cas. 269), and proceedings in the action will be stayed (id.) But leave to sue a receiver is usually granted of course, and, if necessary, can be granted at any stage of the action; and the irregularity in suing a receiver without leave of the court is waived by an appearance in the action without objection (Hubbell v. Dana, 9 How. 424; see 8 Paige, 389).

b. A receiver should apply for an order for leave to sue for a debt (Merritt v. Lyon, 16 Wend. 410; Smith v. Woodruff, 6 Abb. 65). Having obtained leave, he is bound to sue (Winfield v. Bacon, 24 Barb. 154). And if he does not obtain leave, and fails in the suit, he will be personally liable for costs (Phelps v. Cole, 3 Code Rep. 157; Smith v. Woodruff, 6 Abb. 65; see, however, Devendorf v. Dickinson, 21 How. 275).

c. A receiver may maintain an action to set aside a fraudulent assignment made by a party of whose estate he is receiver (Porter v. Williams, 9 N. Y. 142); and he may interplead (Winfield v. Bacon, 24 Barb. 155).

d. An action against a receiver should not be restrained on the ground that a former judgment has disposed of the matters involved in the action; but the receiver should be left to set that up as a defense (Jay's case, 6 Abb. 293); nor should an injunction issue to restrain the prosecution of an action by a receiver, commenced by leave of the court; the proper mode of restraining him is by application to the court appointing him for instructions (Winfield v. Bacon, 24 Barb. 154).

e. A receiver appointed in another State may sue in his character as receiver in this State (Runk v. St. John, 29 Barb. 585; and see Hoyt v. Thompson, 5 N. Y. 320).

f. What attorney the receiver is to employ.-A receiver should not employ, to bring suit for him as such receiver, adverse to any party to the action a person who has been employed for either of the parties to the action, in which the receiver was appointed (Warren v. Sprague, 4 Edw. Ch. R. 416; Re Ainsley, 1 id. 576; Ray v. Macomb, 2 id. 165; Panton v. Zebley, 19 How. 394). If he does, the proceedings may be set aside for irregularity; but the irregularity is so far waived by appearance without objection that on a motion afterwards made to set aside the proceedings, the courts will not do more than stay the proceedings until another attorney is substituted (b.) The rule is for the benefit of the parties, and a stranger sued by the receiver cannot raise the objection (Warren v. Sprague, 11 Paige, 200; Bennett v. Chapin, 3 Sand. 675; Ryckman v. Parkins, 5 Paige, 543).

9. Changing receiver.-It is by no means a matter of course to change a receiver upon his own application. He must show some reasonable cause why he should be relieved (6 Mad. Ch. R. 266; Edw. on Rec. 547; Beers v. The Chelsea Bank, 4 Edw. Ch. R. 278). Relationship to one of the parties is not alone a ground for his removal (Wetter v. Schleiper, 7 Abb. 92; 6 Abb. 123; see 1 Bland, 427).

h. The employment by a receiver of the judgment debtor to collect a portion of the estate, is not in itself ground for removing the receiver (Ross v. Bridge, 15 Abb. 150). On motion to substitute one person for another as receiver, the regularity of the appointment of a receiver is not to be considered (Fassett v. Tallmadge, 13 Abb. 12). An order revoking the appointment of a receiver and appointing another, is not appealable (Siney v. N. Y. Consol. Stage Co. 18 Abb. 435; 28 How. 481).

i. Discharge of receiver.-The discontinuance of the action is not a discharge of the receiver, but on its discontinuance he may apply for a discharge (Whiteside v. Pendergast, 2 Barb. Ch. R. 471).

j. Costs against receiver.—See note to § 317.

k. Receiver in mortgage cases.-Receivers in mortgage cases are allowed with great caution (Shotwell v. Smith, 3 Ed. Ch. R. 688; see Jenkins v. Hinman, 5 Paige, 309; Frelingheysen v. Colden, 4 Paige, 204; Sea Ins. Co. v.

Stebbins, 8 Paige, 565; Bank of Ogdensburg v. Arnold, 5 id. 38; Astor v. Turner, 2 Barb. 444; Warner v. Governeur's Ear. 1 Barb. 36; Quinn v. Brittain, 2 Edw. Ch. R. 314; Wall Street Fire Ins. Co. v. Loud, 20 How. 95). A receiver will not be appointed if the validity of the mortgage is impeached (Leahy v. Arthur, 1 Hogan, 92; Darcy v. Blake, 1 Molloy, 247).

a. A receiver of chattel property held by a mortgagee in possession, is to be directed only in cases of pressing necessity (Patten v. Accessory Transit Co. 4 Abb. 235; and see Thompson v. Van Vechten, 5 Duer, 618; 5 Abb. 458; Bayard v. Fellows, 28 Barb. 451).

b. Receiver of partnership.-Upon a bill filed by one of several partners, to close up a partnership, it is a matter of course to appoint a receiver upon the application of either partner (see Marten v. Van Schaick, 4 Paige, 480; Low v. Ford, 2 Paige, 310; Goulding v. Bain, 4 Sand. 717; Whitewright v. Stimpson, 2 Barb. 379; Dayton v. Wilkes, 17 How. 510; Jackson v. De Forest, 14 How. &1; Williamson v. Wilson, 1 Bland, 423; McCracken v. Ware, 3 Sand. 688; Henn v. Walsh, 2 Edw. Ch. R. 129; Roberts Adm. v. Law, 4 Sand. 644; Dillon v. Horn, 5 How. 35; Innes v. Lansing, 7 Paige, 583; Popper v. Scheider, 7 Abb. N. S. 56; 38 How. 34).

c. The principle on which the court interferes between partners by ap pointing a receiver is merely with a view to the relief by winding up and disposing of the concern, and dividing the produce, not to carry it on (Waters v. Taylor, 15 Ves. 10, 329; Goodman v. Whitcomb, 1 Jac. & W. 569). Therefore, as a general rule, a receiver will not be appointed of a subsisting and continuing partnership, unless it is evident a dissolution will be decreed (Garretson v. Weaver, 3 Edw. Ch. R. 385; Jackson v. De Forest, 14 How. 81). But, to preserve the good-will, the receiver may be directed to carry on the business until a sale can be effected (Marten v. Van Schaick, 4 Paige, 479). The court will not continue the publication of a political newspaper by a receiver, longer than is absolutely necessary to prevent a sacrifice of the property (id.); nor will it continue to run steamboats for an indefinite time (Crane v. Ford, Hopk. 114).

d. There is no ground for a receiver where the partner applying to the court has the property in his own possession, and the other does not object to such possession (Smith v. Lowe, 1 Edw. Ch. R. 33). On a creditor's bill against two partners, one of whom has assumed the debt, the other has a right to insist that the receivership shall be extended to the co-partnership effects, and to the individual property of the owner primarily liable (Henry v. Henry, 11 Paige, 314). The court will not determine what is partnership property (Higgins v. Bailey, 7 Rob. 613).

e. Where a limited co-partnership becomes insolvent, and the members thereof neglect to place their assets in the hands of a proper person to distribute ratably among the creditors, any creditor is entitled to have a receiver appointed (Whiteright v. Simpson, 2 Barb. 379; and see Levy v. Ley, 6 Abb. 89; Lachaise v. Marks, 4 E. D. Smith, 611; 1 Abb. 213; Wetter v. Schlieper, 6 Abb. 123; 7 Abb. 92; and see Geortner v. Trustees of Canajoharie, 2 Barb. 625).

ƒ. The rights, powers, and duties of receivers of insol· vent or dissolved corporations.-The receiver of an insolvent corporation represents both the creditors and stockholders, and may assert their rights when affected by the fraudulent or illegal acts of the institution (Gillett, Receiver, &c. v. Moody, 3 N. Y. 479; Talmadge v. Pell, 7 N. Y. 328; Brower v. Hill, 1 Sand. 629; see Conry v. Gray, 4 How. 166; Livingston v. B'k of N. Y. 5 Abb. 338; Sands v. Birch, 29 How. 305; Osgood v. Laytin, 48 Barb. 463; Laws 1858, ch. 314; Laws 1867, ch. 781). He is vested with all the rights of action which the company had when he was appointed, and he can sue for a tort committed before his appointment (Gillett v. Fairchild, 4 Denio, 80; Brower v. Hill, 1 Sand. 629). It is his duty to require the solvent stockholders to pay up the balance due from them on their stock (Pentz v. Hawley, 1 Barb. Ch. R. 122; and see Nathan v. Whitlock, 9 Paige, 152). He may allow every

claim against the corporation, which he is satisfied is justly due (Attorney General v. Life & Fire Ins. Co. 4 Paige, 224). He may discharge subsisting policies, but not reinsure (Re Croton Ins. Co. 3 Barb. Ch. R. 642). And he may apply for a warrant to bring up for examination any person who is indebted to the corporation, or who has property belonging to it in his custody (Noble v. Halliday, 1 N. Y. 330).

a. The provision of the revised statutes authorizing the receivers of insolvent corporations to sue for and recover any sum remaining due upon any share of its capital stock, is merely a cumulative remedy. And the rule is the same, whether the stock be held by any original stockholder or by an assignee (Mann v. Currie, 2 Barb. 294). The deposit notes of a mutual insurance company are its capital, and the receiver should collect them (Van Buren v. Chenango Mutual Ins. Co. 12 Barb. 671). He may be invested by the court with a general power to compromise disputed claims (Re Croton Ins. Co. 3 Barb. Ch. R. 642). There can be no compromise without his consent (Att'y Gen'l v. Life & Fire Ins. Co. 4 Paige, 224). He may, under the direction of the court, continue a suit commenced by the insolvent company in its own name (Talmadge v. Pell, 9 Paige, 410).

b. A receiver appointed under the 41st section of the revised statutes (2 R. S. 464), is absolutely vested with all the property and effects of the corporation, and has full power to sell and dispose of the same, and to settle its affairs (Verplank v. Mercantile Ins. Co. 2 Paige, 448). But a receiver appointed on the application of a judgment creditor under the 36th section (2 Ŕ. S. 463), is a mere common-law receiver, and has no authority except what is conferred upon him by the order of the court (id.; Mann v. Pentz, 3 N. Y. 415; Re Globe Ins. Co. 6 Paige, 102; Dambman v. Empire Mill, 12 Barb. 341; Re Van Allen, 37 Barb. 225; Bangs v. Duckinfield, 18 N. Y. 592).

c. A receiver appointed in proceedings under Laws of 1853, ch. 466, to close the business of a fire insurance company, should give security (Re Mechanics' Fire Ins. Co. 5 Abb. 444).

d. A receiver of an insolvent mutual insurance company is entitled to his commission on the whole amount of the premium notes (Van Buren v. Chenango Mut. Ins. Co. 12 Barb. 671).

e. A receiver of the effects of an insolvent corporation of another State, appointed under the laws of such State, may dispose of property of such corporation situate within this State, and of debts due such corporation from residents of this State (Hoyt v. Thompson, 5 N. Y. 320).

f. See laws of 1852, ch. 71, amended laws, 1860, ch. 403, to facilitate the collection of debts against corporations (Re Campbell, 13 How. 481).

g. Receiver in action against manufacturing corporation (Galway v. U. S. Steam Sugar Refining Co. 13 Abb. 211; 36 Barb. 256).

h. As to receivers in actions in the nature of creditors' bills and in proceedings supplementary to the execution, see supplementary proceedings, post; and see Lent v. McQueen, 15 How. 313; Rigney v. Tallmadge, 19 Abb. 16.

i. Order to pay amount admitted to be due.—The reported decisions on this subject do not apply to the present wording of the section. Since the last paragraph of this section was amended so as to read "enforces a judgment or provisional remedy," instead of " enforces a provisional remedy," no decisions have been reported. As the section formerly read the order could be enforced only by attachment, as for a contempt, and the court would order payment only under special circumstances. Now the practice is to order payment in almost every case of an admission of a part of the "claim to be just

j. Appeal from order.-An order directing the defendant to pay the amount admitted due by the answer, is an appealable order (Merritt v. Thompson, 1 Abb. 223; 3 E. D. Smith, 600; 10 How. 428).