each succeeding year, to be the day on which the said is annually to cause his account to be delivered into the chambers of the said Judge. And that the said Judge has also appointed the day of in every year to be the day on which the said is to pay the balances appearing due on the accounts so to be delivered in, or such part thereof as shall be certified to be proper to be paid as directed by the said of the -day

A Receiver appointed by this Court is appointed on behalf of all parties, and not of the plaintiff or of one defendant only; therefore, if any loss arises from deficiency in his accounts, the estate must bear it. The effect of the appointment, however, is not to oust any party of his right to the possession of the property, but merely to retain it for the benefit of the party who may ultimately appear to be entitled to it, and when the party entitled to the estate has been ascertained, the Receiver will be considered as his Receiver. It is to be observed, however, that where, in consequence of the inability of the vendor of an estate sold under a decree to make out his title, a Receiver had been appointed, the Court thought that the expenses of the Receiver ought not to be borne by the purchaser, and directed that they should be repaid to him out of the fund in Court, together with the costs of the application.5

1 Davis v. The Duke of Marlborough, 2 Swanst. 118; In re Colvin, 3 Maryland Ch. Decis. 278. This applies to receivers appointed of the estate of an infant during his minority. Neate v. Pink, 2 Mac. & Gor. 480.

* Lord Hutchinson v. Lord Massareene, 2 B. & B. 55.

Sharp v. Carter, 3 P. W. 379. See Tillinghast v. Champlin, 4 Rhode Is. 173; In re Colvin, 3 Maryland Ch. Decis. 278. The appointment of a receiver determines no right, and in no way affects the title to the property; his holding is the holding of the Court for him from whom the possession is taken, and he has no right to ask for a revision of an order removing him, any more than a stranger to the cause. In re Colvin, supra; Ellicott v. Warford, 4 Maryland, 80; Field v. Jones, 11 Georgia, 413.

✦ Boehm v. Wood, T. & R. 345; Ellicott v. Warford, 4 Maryland, 80; In re Colvin, 3 Maryland Ch. Decis. 278.

M'Leod v. Phelps, Jan. 1838, 962.

It has been already stated, that where sequestrators, upon mesne process, are in possession of the lands or tenements in question in the cause, the appointment of a Receiver of the rents and profits will have the effect of discharging the sequestration.?

to

When a Receiver has been appointed of lands or tenements, it is the duty of any party to the record to deliver up to him the pos session of such of the lands or tenements as may happen to be in such party's possession. If, however, the party should refuse t do So, the proper course to compel him is to obtain an order, upor motion, that he may, on or before a given day, deliver up the pos session to the Receiver; and if upon service of such order he refuses to deliver up the possession, the plaintiff may sue out 1 writ of assistance in the manner pointed out in the 1 Will. IV. c. 36, s. 15, Rule 19.5 It is to be observed, that the person to enforce the delivery of the possession to the Receiver is the party obtaining the order, and not the Receiver himself.

3

Where the lands or tenements, or any of them, are not in the actual occupation of the party, the order for the appointment of s Receiver usually contains a direction that the tenants shall attora to the Receiver, and shall pay their rents in arrear, as well as the growing rents, to such Receiver.6 Under this order, application should be made by the Receiver to the tenants to attorn, and i they, or any of them, refuse to do so, the party obtaining the order for the appointment of the Receiver should serve them. such of them as refuse to attorn, with a copy of the order for the appointment of the Receiver, and the certificate of his appoint ment. He should also serve them with a notice of motion, th they may be ordered to attorn within four days from the servi of the order, or stand committed.7

1 Ante, p. 1077.

* Heyn v. Heyn, Jac. 49; Shaw v. Wright, 3 Ves. 22; Atlas Bank v. Nabar Bank, 23 Pick. 480, 488, 489, 490.

3 Griffith v. Griffith, 2 Ves. 401; 82d Order, August, 1841; ante, p

1058

In Davis v. Duke of Marlborough, 2 Swanst. 116, the order appointing receiver directed the Duke of Marlborough to deliver up possession to the

ceiver.

Ante, p. 1082.

Simmonds v. Lord Kinnaird, 4 Ves. 747.

Reid v. Middleton, T. & R. 455. It is not the course of the Court to m the tenants pay the costs of this motion. Hobhouse v. Hollcombe, 2 De G. &

208.

In Reid v. Middleton,1 which has been before referred to, it appeared that the tenant in possession had not agreed to pay any specific rent, and, in consequence, an order was made that an occupation-rent should be settled, and that the tenant should pay the arrears and future payments of such occupation-rent.

When a Receiver has been appointed, his possession is that of the Court, and any attempt to disturb it without the leave of the Court first obtained, will be a contempt on the part of the person making it. It was so settled in Angel v. Smith, where the rule was laid down, both with respect to Receivers and Sequestrators, that their possession is not to be disturbed without leave. When, therefore, a party is prejudiced by having a Receiver put in his way, the course has either been, to give him leave to bring an ejectment, or to permit him to be examined pro interesse suo.5

The rule that the possession of a Receiver is not to be disturbed, extends even to cases in which he has been appointed expressly without prejudice to the rights of persons having prior estates; and the individuals having such prior estates must, if they wish to avail themselves of them, apply to the Court either for liberty to bring an ejectment, or to be examined pro interesse suo; and this although their right to take possession is clear. In this respect there is no distinction between possession by a Receiver, and that by sequestrators under a commission of sequestration; and a Receiver, appointed over property which is in the possession of another Receiver, ought to obtain the special authority of the

1 1 T. & R. 455.

See De Groot v. Jay, 30 Barb. (N. Y.) 483.

8

3 9 Ves. 335; and see Russell v. The East Anglian Railway Company, 3 Mac. & Gor. 104.

Where the property is legally and properly in the possession of the receiver, it is the duty of the Court to protect such possession, not only against violence, but also against suits at law. But if the property is in the possession of a third person, under a claim of title, the Court will not protect the officer, who attempts by violence to obtain possession, any further than the law will protect him; his general authority being unquestioned. Parker v. Browning, 8 Paige, 388; 2 Story Eq. Jur. § 833 a, 833 b, and note; Noe v. Gibson, 7 Paige, 513. Brooks v. Greathed, 1 J. & W. 176; Hawkins v. Gathercole, 1 Drew. 12. See Bryan v. Cormick, 1 Cox, 422. Anon. 6 Ves. 287.

• Brooks v. Greathed, 1 J. & W. 178; Gomme v. West, 2 Dick. 472.

Court to recover this property; and the Directors of a Railway Company, proceeding under the Lands Clauses Consolidation Act, 1845, were restrained from taking possession of a piece of ground in the possession of a Receiver.2

It may be mentioned here, that where an ejectment was actually brought against a Receiver, although it was without the previous leave of the Court, the Court made a reference to the Master, to inquire whether it would be for the benefit of the parties interested, who were adults, that the Receiver should defend the ejectment and charge the expense in his accounts.3

SECTION IV.

Salary and Allowances.*

IT will be recollected that the General Orders direct that the Receiver is to be allowed a proper salary. The Receiver's salary, however, has not generally been fixed till the passing of the first account, when he is allowed a per centage upon his receipts in his discharge, for his care and pains, by way of salary.

The usual allowance to a Receiver of the rents and profits of s landed estate has generally been 57. per cent. on the gross rental; this, however, has been the maximum: and where the rental has been very considerable, a per centage at a much lower rate has been allowed, or a stated salary sufficient to compensate the Re ceiver's services.5

1 Ward v. Swift, 6 Hare, 312.

Tink v. Rundle, 10 Beav. 318.

Anon. 6 Ves. 287.

For a full consideration of this subject, see Edwards, Receivers, 530 ₫ *% Matter of Kellogg, 7 Paige, 265; Vanderheyden v. Vanderheyden, 2 Paige, Matter of Roberts, 3 John. Ch. 43; Williamson v. Wilson, 1 Bland, 439.

In Price v. White, 1 Bailey Eq. 240, it was held, that a receiver who is charges the duty assigned to him, is entitled to the usual commissions, alth they appear to be more than a reasonable compensation for the services rendered In some instances they may be more, and in some instances less, than an ais quate remuneration; but even this is preferable to the uncertainty of suffering the rate of compensation to depend upon the discretion of the Master. Nor is any ground for an exception to the general rule, that the business was conducteu almost entirely by overseers and factors, inasmuch as the receiver has incurred the responsibilities incident to these sub-agencies.

The subject of per centage proper to be allowed to a Receiver, by way of salary, underwent investigation in the case of Day v. Croft; and, in his judgment upon that case, Lord Langdale, M. R., who had inquired what was the practice adopted on this point, thus states the result of his inquiries:-"The Masters have each of them been good enough to furnish me with a certificate; and I find that there is no general rule which universally prevails as to the allowance to a Receiver. Where the receipts consist of rents of freehold and leasehold estates, 51. per cent upon the amount received, is most frequently allowed. If there be any special difficulty in collecting the rents, on account of the sums being extremely small, or of the payments being very frequent, as weekly payments, then the allowance is increased; on the other hand, if there should be very great facility in receiving the rents, then less than 57. per cent is allowed. One of the Masters has certified to me a case where, after consideration, he allowed only 41. per cent for the receipts of rents and profits of freehold and leasehold estates. Another Master has certified to me a case in which the sum paid to the Receiver amounted to 3007. a year for the first year; the Receiver was afterwards allowed 1507. only for a succession of years, which was afterwards reduced to 50l. a year for the receipt of the same rents; it cannot, therefore, be considered as an universal or general rule, that 51. per cent should be allowed even upon the receipts of rents and profits. It may be increased if there be any extraordinary difficulty, or diminished if there be any extraordinary facility in the collection.

"With respect to other receipts, each Master considers himself bound to have regard to the degree of facility or difficulty there may be in receiving them. They have sometimes allowed 211. per cent, but for gross sums of money this has been very much reduced, and 111. per cent has been allowed upon 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."

A Receiver may be entitled to allowances beyond his salary for any extraordinary trouble or expenses he may have been put to in the performance of his duties. The Court will not, however,

1 See Potts v. Leighton, 15 Ves. 276. See Williamson v. Wilson, 1 Bland, 433; Adams v. Haskell, 6 Cal. 475. The commissions allowed by law are in