WOOD V. OREGON DEVELOPlIfENT CO.
sisted therein should affect the rights of Goupil & Co., or their successors, whenever they should see fit to exercise those rights. There can be no estoppel, or even waiver, by silence, escept under circumstances where it becomes the duty of the party to speak. The decree of the circuit court is affirmed, with costs.
WOOD v. OREGON DEVELOPMENT' CO. et al (Circuit Court, D. Oregon. May 20, 1893.) No. 2,005.
RECEIVERS COURT. ApPOIl'TMENT OF WITH REFERENCE TO PROCEEDINGS IN STATE
A receiver was appointed by the United States circuit court, for the Oregon Development Compr.ny, upon the representation that the appointment was concurred in by the officers of that corporation, and all parties in interest. It afterwards appeared that the development company was auxiliary to the operation of the road of the Oregon Pacific Company, and was indirectly involved in a controversy going on in a state court over the latter company; that hITo factions wei'e contending fOl' the control of the Pacific Company, one of which had succeeded in ousting the other, and proposed to apply to the state court for the 3ppointment of a receiver for the development company, the defendnnt company herein. The dispossessed faction secured the resignation of the tnlstee of the bondholders of the development company, who was a citizen of the state, and the snb,;titution of another, who was not, so ns to give the federal court jurisdiction, and thereupon secured the appointment of a receiver before the state court could act. Hdd, thnt a receiver would not be appointed with a view to controversy with a receiver in the state court, or with reference to proceedings in such court; that the receiver appointed WOuld be removed, and another appointed, who would stand indifferent between the contending fadions.
In Equity. On motion to remove a receiver appointed in the cause of George S. Wood, trustee, against the Oregon Development Company and the Manhattan Trust Company. Motion granted. E. H. Peery, for complainant. JohnP. Fay, for interveners Brown & Blair. E. C. Bronaugh, for receiver, R. A. BenseIl. Wallis Nash, for bondholders. BELLINGER, District Judge. The receiver was appointed at chambers on May 1, 1893, upon the filing of the bill of complaint herein. It was done upon an application in behalf of what is claimed to be all but a small proportion of the creditors of the Oregon Development Company, acquiesced in by the attorney of the Manhattan Trust Company, the other defendant, and by the defendant as well. Mr. ·William M. Hoag, the then manager of the company, was also present, apparently co-operating in the movement to secure the appointment of such receiver. The ap" pointment was made by the judge of this court, under the belief that substantially all interests to be affected by what was done were united in such application. Mr. R. A. Bensell was appointed
at the request of the parties so moving. It now appears that there are two hostile camps, waging war over the Oregon Pacific Railroad Company's property; that tht Oregon Development Oompany's property is auxiliary to the operating of the former's road; that one of thest' factions has recently been dispossessed of the control of the railway property by the action of a state court, and, according to the representation of the dispossessed party, the other faction installed instead; that the successful party was about to proceed in the state court for the appointment of a receiver of the Oregon Development Oompany's property when their opponents, by securing the resignation of a trustee who was a citizen of Oregon, which was done OIl Sunday, the 30th of April, and the substitution of a new trustee, with the requisite citizenship to give this court jurisdiction, were able to move in this court, on the following Monday morning, for the appointment of their receiver, and to secure it in advance of the proceedings of their opponenw. which were begun in the state court on Tuesday, in ignorance of what had been done in this court in the mean time. As a reason for the appointment of a receiver, the complaint alleges the insolvency of the development company, and the alleged fact that a large part of the property of the -company is in imminent danger of being lost and wasted or sold for taxes, and that rentals thereof are in danger of being squandered; and, as if to emphasize the fact of this danger, Mr. vVilliam M. Haag, the then manager of the property, was present, as already stated, in apparent co-operation with the movement for a receiver, to preserve the property of which he was manager from being thus wasted, lost, and squandered; and, the appointment being made, Mr. Hoag, acting as attorney in fact for his brother, T. Edgerton Hoag, the leader of one of these warring factions, executed the receiver's bond, as One of the sureties theron. Upon these facts I do not doubt as to the course to be pursued. I do not care to consider any matters touching the integrity, independence, or qualifications of ::VII'. Bensell, the receiver, nor to consider the averments of the affidavits filed by the respective parties. I may, for the purposes of this motion, presume that either party is quite ready to do all that the other has done; but it is due to this court to discourage, as far as practicable, the enterprise that has been shown in the particular features of the case under conv. Railsideration. As was said by ::VII'. Justice Miller in way Co., 5 Dill. 478: "It becomes a duty of the court to see that its powers are exercised on principles of strict neutrality as regards the belligerents; and this can be done in this case by removing the representative of these hostile interests, and appointling a receiver who, in feeling and in conduct, will bestr'ictly neutral and strictly honest." The receiver is solely the officer of this court. He must be, in the full sense of the term, the "representative of the court." He is in no way the representative of either party. His past relations, the influences that secured his appointment, his sympathies from whatever cause, must not be
CENTRAL TRUST CO. V. VALLEY RY. CO.
such as to predispose him either way. He must be the appointee of the court. This, 1\fr. Bensell is not. He is the nominee of one hostile party, bitterly opposed by the other, whose appointment was made in the mistaken belief that all interests were united in 'him. The feeling which his appointment creates in the party opposed to those asking his appointment is such that his position will be an embarrassing one, and his usefulness as an officer of the court impaired. The unmistakable inference from the argument in support of the appointment is that the receivership of the Oregon Pacific property in the state court is one·sided and partisan; that such receiver's position is a menace to the in· terests of the development company; and that it is the duty of this court to interpose for the protection of such interests. I can· not consider such a suggestion. 'fhe propriety of what the state court has done or may do cannot be the subject of discussion here. I shall not appoint a receiver upon the idea that there is to be controversy with the receiver of the state court. On the other hand, it is the duty of this court to make such an appointment as will avoid any controversy between the two receivers, which would be an unseemly thing. 'l'he motion for the removal of 1\fr. Bensell as receiver is allowed, for the reasons stated, to take effect upon the appointment and qualification of his successor. I will give opportunity for an agree· ment between the parties; and, if they are unable to agree, I will make an appointment agreeable to myself.
CEKTHAL TRUST CO. 01<' KEW YOHK v. VALLEY RY. CO. (Circuit Court, N. D. Ohio.
RECEIVERS-LIA RILITmS- A EYS' FE 1,8.
D. June 1, 1893.)
A trust company, which has been compelled to come into court in order to collect from the reccivel' of a mill'oad company certain rentals justly clue, cannot claim compensation for tlw services of its solicitors in procuring the order for payment, when snch services were for its own benefit, and not for the purpose of saving or adding to the fund which is to be distributed to the creditors in general. Investment Co. of Philadelphia v. Ohio & N. \V. It. Co., 4G l.'ed. Hep. m)(). and gaston v. Rail· road Co., 40 Fed. Hep. 189, distinguished.
In Equity. Application for an order requiring the receiver to pay solicitors' fees. Denied. C. E. Pennewell and .Amos Dennison, for petitioner. S. E. Williamson, for bondholder committee. District Judge. This case comes before the court on the application of the Fidelity Insurance, 'l'rust & Safe·Deposit Company of Philadelphia, Pa., trustee, for compensation to its solicitors for services rendered in procuring an order upon the reo ceivers to pay the car rental due under the contract. In support