Beceiveb

One who receives anything belonging to another or others. 1. One who receives stolen goods. See further Steaj,. 3. A person appointed by a court of equity to take charge of property in dispute. "An indifferent person between parties, appointed by the court to receive the rents, issues, or profits of laud, or other thing in question in court, pending the suit, where it does not seem reasonable to the court that either of the parties should receive it." ^ He is an of Hoer of the court; his appointment is provisional — for the benefit of all the parties who mayestablish rights in the cause. He is but the creature of the court. He has suph powers only as are conferred upon him by the order of his appointment and the course and practice of the court." The order appointing him is in the nature of an injunction or writ of sequestration, preventing any disposition of or interference with the property without the consent of the court. ^ To authorize 3^ partner to demand the appointment of a receiver, he must show such a case of gross abuse and misconduct in his co-partner that a dissolution ought to be decreed and the business wound up.^ When a debtor is insolvent, and his mortgaged property is an insufficient security for the debt, and there is reason to believe that it will be wasted or deteriorated in his hands, as by cutting timber, suffering dilapidation, etc., a court or equity may ta,ke charge 1 1 Greenl. Ev. §§ 805, 812; Bishop, Contr. § 176, cases; 2 Story, Contr. § 1333, cases; 3 Whart. Contr. §§ 938-41, cases; 7 Wait, Actions & Def. 444-50, cases; 63 Ind. 574; 69 Iowa, 367; 16 N. H. 489. = See Story, Bailm. § 124; Stevens v. Bailey, 68 N. H. 564 (1879); Hunter v. Peaks, 74 Me. 363 (1883). ' Booth V. Clark, 17 How. 331 (1854), Wayne, J., citing Wyatt's Prao. Reg. 355. ' Thornton v. Washington Savings Bank, 76 Va. 433 (1882). "Story, Partn. §§ 328, 231; 2 Bates, Partn. §§ 993-1008, of the property by means of a receiver, and preserve not only the corpus of the property, but the rents and profits, for the satisfaction of the debt.' He is appointed upon a principle of justice for the benefit of all concerned. Every kind of property of such nature that, if legal, it might be taken in execution, may, if equitable, be put into his possession. Hence, the appointment has been called an " equitable execution." He is virtually a representative of the court, and of all the parties in interest. He is required to take possession of property as directed, because it is deemed more for the interests of justice that he should do so than that the property should be in the possession of either of the parties in litigation. The property in his hands is in the custody of the law. The court gives consent to sue him touching the property, or for malfeasance, and will not permit his possession to be disturbed by force, nor violence to be offered his person. Property claimed by another may be tried by an issue at law, by reference to a master, or otherwise, as the court may direct... In the progi'ess of equity jurisdiction it has become usual to clothe such officers with much larger powers than were formerly conferred. In some States they, by statute, settle the affairs of certain insolvent corporations, and sue in their own names. It is not unusual for courts of -equity to put them in charge of railroads financially embarrassed, and to require them to operate such roads until the difficulties are removed or until the roads can be sold with the least sacriiice of the interests of those concerned. In all such cases th(? receiver is the right arm of the jurisdiction invoked. A court of equitj' may, perhaps, accomplish all tha results intended by such legislation. ^ Whether a receiver of the property of a railroad company shall be appointed is a matter within the discretion of the court, which discretion is to be exercised sparingly, and with caution, and with reference to the circumstances of each case." Very little discretion is allowed him. He must apply to the court for liberty to sue, to let the estate, or to lay out money on repairs. Where there are tenants, the court is virtually the landlord.* The practice is to ask the court for permission to sue him, as to the property. An unauthorized suit would be a contemptof court.* This rule likewise applies to suits for a money demand, or damages." Without previous consent of court he may not incur any expense on account of the property beyond what 1 Kountze v. Omaha Hotel Co., 107 U. S. 305 (1882), Bradley, J. 2 Davis -!). Gray, 16 Wall. 217-22 (1872), cases, Swayne, J. See 14 W. N. C. 581 (1884), cases. "Sage V. Memphis, &c. R. Co., 125 TJ. S. 376 (1888), Harlan, J. « Booth V. Clark, 17 How. 331 (1854), cases. ' People's Bank of Belville v. Calhoun, 102 U. S. 262 (1880). ' Barton v. Barbour, 104 IT. S. 128-36 (1881), cases. Actions by and against him, 25 Am. Law Eeg. 289-304 (1886), cases; against him, for a personal wrong, Misis absolutely necessary to its preservation and use, as contemplated by his appointment.^ He has no extra-territorial power of official action. If he seeks to be recognized in another jurisdiction, it is to take the fund there out of it, without such court having any control of his subsequent action in respect to it." Receiver's certificate. A non-negotiable evidence of debt, or debenture, issued by authority of a court of chancery, as a first lien upon the property of a debtor corporation in the hands of a receiver.^ The power in a coiu:tof equity to appoint managing receivers of such property as a railroad, when taken under its charge as a trust fund for the payment of incumbrances, and to authorize such receivers to raise money necessary for the preservation and management of the property, and make the same chargeable as a lien thereon for its repayment, cannot at this day be seriously disputed. It is a part of that jurisdiction by which it is its duty to protect and preserve the trust funds in its hands. It is, undoubtedly, a power to be exercised with great caution; and, if possible, with the consent or acquiescence of the parties interested in the fund.* Many circumstances may exist to make it necessary for the receiver to pay pre-existing debts of certain classes out of the earnings of the receivership, or even out of the corpus of the property, with a priority of hen. Yet the discretion allowing this should be exercised with great care.^ The court, in order to preserve the road, and, perhaps, to complete inconsiderable portions of it, and put it into a condition for the transaction of business, may make money borrowed on certificates a lien on the property superior to that of the first mortgage." But, in order to complet-e an unfinished road, except imder extraordinary circumstances, the power of the court ought not to be exercised to enable the trustee to borrow money on certificates and create a paramount lien therefor. It is better to reorganize the enterprise on the basis of existing mortgages as stock, or an equivalent, and by a new mortgage, with a lien superior to the old, raise the money required without asking the court to engage in railroad building.' 1 Cowdrey v. Galveston, &c. R. Co., 93 U. S. 354 (1876). a Booth u Clark, 17 How. 338-39 (1854), cases. On suing in foreign jurisdictions without leave of the appointing court, see 21 Am. Law Eev. 551-70 (1887), cases. ' Beach, Receivers, § 379; ib. 380-402, cases. See also, generally, High, Eec, §§ 398 c-g, cases; 3 Wood, Railw. Law, 1676-77, cases. « Wallace v. Loomis, 97 U. S. 162 (1877), Bradley, J. Quoted, 106 id. 310, infra. s Miltenberger v. Logansport B. Co., 106 U. S. 811 (1882), Blatchford, J. « Stanton v. Alabama, &c. R. Co., 3 Woods, 506 (1875); Kennedy v. St. Paul, &c. E. Co., 2 Dill. 448 (1873). ' Shaw V. Little Rock, &c. R. Co., 100 U. S. 605, 612 (1879), Waite, 0. J. In foreclosing mortgages, see 26 Where receivers issue and dispose of certificatea contrary to orders, the certificates are invalid, even in the hands of a subsequent bona fide taker for value.*