in an action in the Supreme Court or a county court, or in a special proceeding for the voluntary dissolution of a corporation, take and hold real property as the court may direct. Doubtless the like power can be conferred by order of court. But this statute gives no title, but only power to take title.

A receiver in supplementary proceedings has no title to the real property.

19a

Where an assignment is directed to be made, if there be doubt as to the property, or as to defendant's compliance, a reference should be ordered.20

The court, however, has power, in some cases at least, to transfer the title without depending on an assignment by the defendant.21

29. direction to collect debts.] A general authority to collect debts allows the receiver to receive them in advance of becoming due,22 and also to take a security or obligation in place of money, if the parties in interest consent to receive it.

30. direction to give possession, attorn, etc.]—An implied or express direction to the receiver to take possession, etc., is enough to authorize the receiver to do so, and to make a refusal to deliver possession to him actionable. Moreover, after such direction, those who (having notice) actively interfere with such possession, will be guilty of contempt. But such a direction is not enough to make it a contempt to refuse to deliver.23 The order appointing a receiver should therefore usually contain a direction that the party and third persons in possession under

19a Chadeayne v. Gwyer, 83 App. Div. 403, 82 N. Y. Supp. 198. 20 See Forms below.

21 Mr. Justice Miller, in delivering the opinion of the court in Silver . Ladd, 7 Wall. 219, 228, holding that plaintiff was equitably entitled to land which had been awarded to defendant, says: "The most usual mode under the chancery practice, unaffected by statute, is to compel the defendant, in person, to convey to plaintiff, or to have such conveyance made in his name, by a commissioner appointed by the court for that purpose. In some of the States it is provided by statute that a decree of the court shall operate as a conveyance where it is so expressed in the decree, and additional relief may be granted by giving possession of the land to plaintiff, quieting his title as against defendants, and enjoining them from asserting theirs. The prayer for general relief in the bill in this case is sufficient to justify any or all these modes of relief." S. P., Burrall v. Eames, 5 Wisc. 260; Sproule v. Winant, 7 T. B. Monr. (Ky.) 195; Baker v. City St. Louis, 75 Mo. 671. 22 Olcott v. Heermans, 3 Hun, 431, 435.

23 McKelsey v. Lewis, 3 Abb. N. C. 61.

him shall deliver possession to the receiver, and this direction should be so clearly expressed that the person intended can be punished for content if on service of a copy of the order and proper demand by the receiver he refuses to obey.

If there be doubt as to the specific articles, a reference should be ordered, or the receiver left to sue.

The receiver's appointment gives him no right to property in the custody of the defendant which the latter does not own, and his creditors cannot claim as against the real owner.24

31. to lease.] To avoid personal liability, the receiver will usually ask leave to lease vacant premises, unless leave be given by the order of appointment, although it is generally understood that leave to lease for periods not exceeding one year may be granted of couse, without notice to the parties.25

Leasing for more than a year's term should not be done except by leave of court, had on notice to the parties in interest.28

32. to carry on business.]-The urt has power to direct the receiver, whenever necessary for the benefit of the property in his possession and the interests of the parties therein, to carry on the business,27 so far at least as to keep a going concern still going; and even to complete the construction of an unfinished railroad.28

33. to sell.]-Authority may be conferred to sell personal property so far as necessary to realize the assets without loss or depreciation, and even where the receivership is merely for cus

24 Corn Ex. Bank r. Blye, 101 N. Y. 306.

25 See N. Y. Gen. Rules No. 77; Booth v. Clark, 17 How. (U. S.) 322. 26 Weeks r. Cornwall, 19 Abb. N. C. 356.

27 Barton t. Barbour, 104 U. S. 126 (railroad); Witherbee v. Witherbee, 17 App. Div. 181, 45 N. Y. Supp. 297; Larsen v. U. S. Mort. & T. Co., 104 App. Div. 76, 93 N. Y. Supp. 610; Bernheimer v. Schmid, 71 App. Div. 244, 75 N. Y. Supp. 899 (power to borrow money and pledge assets erroneously given). Nason Mfg. Co. v. Garden, 52 App. Div. 365, 65 N. Y. Supp. 147 (authority by statute to a temporary receiver to preserve property includes the completion by him of contracts for work entered into by the corporation).

In the absence of statutory authority, or express authorization from the court, a receiver has no power to continue the business. Appleton r. Welch, 20 Misc. 343, 45 N. Y. Supp. 751. He is not obliged to complete unfinished contracts of the corporation. Matter of Chasmar Co., 22 Misc. 680, 50 N. Y. Supp. 1065. If he continues the business without authority, he becomes per sonally liable. Meyer v. Lexow, 1 App. Div. 116, 37 N. Y. Supp. 67. 28 Moran v. Lydecker, 11 Abb. N. C. 298.

tody, such a direction may doubtless be given as to perishable property.

29

34. suits by; express authority.] - Mere appointment as receiver does not, in the absence of statutory or judicial authority, enable to sue as receiver, even for the purpose of reducing the assets to possession.

30

A permanent receiver31 appointed on the dissolution of a corporation, or the forfeiture of a charter, or on the sequestration of all the corporate assets for distribution, needs no judicial authority to sue, for he is a statutory receiver, with title by force of appointment, and, without assignment,32 is authorized to sue in his own name.

33

36

If there is a general statutory authority or rule of court35 authorizing receivers to sue, leave to sue is not needed, except for the better protection of the receiver from liability for costs, etc., if the case be doubtful and proves unsuccessful; or as supporting an intended suit in a foreign jurisdiction in which the receiver must rely on the comity of the courts.

But a general statute authority to receivers to sue in their own. names, intended to supersede the old practice requiring them to sue in the name of the defendant, does not dispense with the necessity of leave to sue in any particular case.

37

29 See ATTACHMENT. But not to sell property of a non-perishable character, the title to which is in issue in the action. Brush v. Jay, 113 N. Y. 482.

30 Seymour v. Wilson, 16 Barb. 294, 2 Dan. Ch. Pr. 938; Battle v. Davis, 66 N. Č. 252; Singerly v. Fox, 75 Pa. St. 112; Yeager v. Wallace, 44 id. 294, 296; Screven v. Clark, 48 Ga. 41 (holding that authority "to collect" does not authorize suit). Contra, Case v. Berwin, 22 La. Ann. 321; Everett v. State, 28 Md. 190.

Where the receiver took neither an assignment nor leave to sue, held that the statute of limitations as against the party was not suspended. Fincke v. Funke, 25 Hun, 616.

31 So of a receiver on voluntary dissolution. N. Y. Code Civ. Pro., § 2419. And of a receiver in supplementary proceedings. N. Y. Code Civ. Pro., § 2447, etc.

32 Gillet v. Fairchild, 4 Den. 80.

33 Nathan v. Whitlock, 9 Paige, 152, aff'g, 3 Edw. 215. See paragraph 5, supra.

So a receiver of a national bank may sue in his own name or that of the bank (First Nat. Bank of Bethel v. Nat. Pahquioque Bank, 14 Wall. 383, 401; S. P., Kennedy v. Gibson, 8 id. 498, 506), notwithstanding the statute is silent on the point.

34 As in case of statutory receivers in New York. S. P., Hayes v. Brotzman, 46 Md. 519.

35 N. Y. Gen. Rules No. 77.

36 See note in 5 Abb. N. C. 346.

37 Seymour v. Wilson, 16 Barb. 294.

It is improper to add, in the order of appointment, a general authority to sue or defend without further order of court. 8

A receiver, with full power to sue, may properly seek instruetion from the court to protect himself as against those beneficially interested.39

35.-- in other jurisdictions.]— The American doctrine as now settled in the State of New York and I believe in most of the other States, is that a receiver having an assignment, or the powers of a statutory assignee, may sue in any State, and will be rcognized as having a standing in court; but the courts of a jurisdiction other than that from which he derives authority will not usually recognize his claim to assets within their jurisdietion, to the prejudice of creditors resident there.40

Hence it is important, in case of a receiver whose appointment does not by statute vest him with the powers of an assignee, to take an assignment; and if there are assets and creditors in a sister State, it is the better practice in important cases to obtain there the appointment of an ancillary receiver who may sue there without question.*1

36.

compromises.] Power to compromise is implied in some cases; but application for leave, upon the special facts of each case, is safer in cases involving doubt or any large amount, rather than relying on a general direction.12

37.suits against.] The court may direct that he shall not be liable to sue unless leave is first obtained from the appoint

38 Witherbee v. Witherbee, 17 App. Div. 181, 45 N. Y. Supp. 297.

39 People v. Com. Bank, 6 App. Div. 194, 39 N. Y. Supp. 1000; and see section IV of this article, title INSTRUCTIONS.

40 The principle is fully discussed in the Matter of Waite, 99 N. Y. 433; Mabon v. Ongley Elec. Co., 156 N. Y. 196; Pruyn v. McCreary, 105 App. Div. 302, 93 N. Y. Supp. 995. See, also, cases collected in 24 Am. L. Reg. 403; 59 Am. Dec. 524, note; 7 South. Law Rev. 233; Howard Nat. Bank c. King. 10 Abb. N. C. 346; Lycoming Fire Ins. Co. v. Wright, 55 Vt. 526, and cases cited. A different principle applies to policy-holders in insurance companies. Parsons v. Charter Oak Ins. Co., 31 Fed. Rep. 305.

41 An action will not lie to procure such appointment. Mabon v. Ongley Elec. Co., 156 N. Y. 196.

42 See note in 5 Abb. N. C. 346, and L. 1882, § 133, as to bank, etc., receivers. N. Y. Gen. Rules No. 77 gives this power to the receiver of "the debtor," but he disburses the fund at his peril if he acts without the court's direction. Matter of Hone, 152 N. Y. 522.

43

ing court, except so far as the right to sue is given by statute, as in the case of the Act of Congress of March 3, 1887, § 3.

But it is the better opinion that such a clause in the order cannot protect the receiver from being sued personally to charge him in his individual capacity with damages, if by mistake or wrongfully he takes possession of the property of a stranger, or does any wrongful act for which he may be sued individually as a trespasser. But if he acted under order of his court in the alleged trespass, that court should be applied to to correct its order before suing him.45

44

Whether the receiver should litigate a claim is a question for the court.46

38. distribution.]· Directions as to distribution of proceeds should not usually be given in the order of appointment, for they depend on a determination of the merits, by judgment.47

The receiver will be protected for payments made under direction of court, though the order was improvidently made; 48 but this protection is effective only against those creditors properly notified or in default.19

39.

direction for security.] — The clause as to security formerly usual was that " upon executing a bond, etc., he be ap

43 Barton v. Barbour, 104 U. S. 126.

44 Hills v. Parker, 111 Mass. 508; Curran v. Craig, 22 Fed. Rep. 101; Barton v. Barbour, 104 U. S. 126. See the conflicting authorities reviewed in 21 Am. Law Reg. (N. S.) 553. The true distinction is not between actions which seek to reach specific property in his custody and actions for damages, but between actions a recovery in which would reduce the fund, and actions a recovery in which could not do so nor properly appear in his accounts in any way. modern doctrine and practice is that the title or possession is in the court, of which the receiver is only the servant, and that any proceeding to get satisfaction out of the assets directly or indirectly should be by application to the appointing court.

The

This is subject to the qualification that the courts of another jurisdiction will aid creditors and claimants domiciled in that jurisdiction to reach and hold assets in that jurisdiction, as against a foreign receiver, whatever his expressed powers may be.

45 Curran v. Craig, 22 Fed. Rep. 101.

46 Troy Sav. Bank v. Morrison, 27 App. Div. 423, 50 N. Y. Supp. 225.

47 High on Recs. (2d ed.), citing West v. Chasten, 12 Fla. 315; Hubbard v. Guild, 2 Duer, 685 (order that the petitioner have payment, in priority, reversed, and funds stayed in receiver's hands with leave to the petitioner to sue).

48 See Willis v. Sharp, 124 N. Y. 406.

49 People v. Family Fund Soc., 31 App. Div. 166, 52 N. Y. Supp. 867; appeal dismissed, 159 N. Y. 534.