established principles which are decisive of the point. Lessee of Patterson v. Prather, 11 Ohio, 35. The following cases decide that such a proceeding as that now under review is not within the judicial power of any one, and is a pure usurpation. People v. Simonson, 10 Mich. 201; Salling v. Johnson, 25 Mich. 489; People ex rel. v. Judge of St. Clair, 31 Mich. 456; Barry v. Briggs, 22 Mich. 456; Gravenstein's Appeal, 49 Penn. St. 310; Whitehead v. Wooten, 43 Miss. 523; Hyslop v. Hoppock, 5 Ben. 447. A motion for the appointment of a receiver is special, and, therefore, notice of it must be given to all necessary and interested parties. Tibbals v. Sargeant, 14 N. J. Eq. 449; 2 Brown Ch. Pr. 883; Buxton v. Monkhouse, Coop. 41; Devoe v. Ithaca, etc., R. R. Co., 5 Paige, 521; 2 Daniell Ch. Pr. 1735; High on Receivers, § 111. The code has not altered the practice in the appointment of receivers so far as notice to the parties to be affected is concerned. The appointment must still be made according to the principles and practice of courts of chancery, as established and existing when the code took effect. So held under the New York code. Kemp v. Harding, 4 How. Pr. 178. The usages of courts of equity, both as to the manner of appointing and discharging a receiver, where it is not otherwise provided by statute, are applicable to cases arising under the code. C., S. & C. R. R. Co. v. Sloan, 31 Ohio St. 1. It is apparent that the court below made the order appointing a receiver solely because it was supposed that the original restraining order had been violated by the stockholders of the Ohio Railway Company holding an election for directors thereof. And this, too, when the directors of the C., C., C. & I. Ry. Co. were not defendants in the action; and when it is not even alleged, much less made to appear, that they did anything in disobedience of the original restraining order, or that they intended or contemplated surrendering the possession, management, and control of the road until the controverted right of the Ohio Railway Company should be judicially determined. This latter fact, of itself, shows that the order of the court below was wholly unauthorized.

Converse, Booth & Keating, for defendant in error.

I. On October 22, the date of the orders complained of, there was an action pending. The plaintiffs had commenced their action by filing a petition, and causing writs of summons to be issued thereon, which were duly served on the several defendants named in the petition, on the 19th and 20th of October. The provisions of the code, relating to the commencement of civil actions, had been fully complied with. Rev. Stat. §§ 4987, 5035, 5037, 5038, 5040, 5044, 5577. The statutory provisions now in force, determining when personal actions may be brought against domestic corporations are Rev. Stat. §§ 5026, 5027.

II. Was the court warranted in appointing a receiver, and allow

ing the restraining order of October 22, without notice? 1. Notice of the application for an injunction is not required in this state; on the contrary, the power to allow an order of injunction without notice to adverse parties is clearly recognized by our statute law. Rev. Stat. § 5574, 5575, 5578; High on Injunctions (2d ed.), § 1575, 1578, 1579. 2. Notice of the application for the appointment of a receiver is generally required, but courts may, in their discretion, in cases of grave emergency and under circumstances rendering such a summary proceeding necessary, make the appointment without notice. High on Receivers, §§ 106, 111; People v. Norton, 1 Paige, 17; Gibson v. Martin, 8 Paige, 481; Verplanck v. Ins. Co., 2 Paige, 438; Johns v. Johns, 23 Ga. 31. On October 19, the court of common pleas rightly held that the Ohio Ry. Co. had not yet succeeded to the rights, privileges and franchises of the Cleveland, Columbus, Cincinnati and Indianapolis Ry. Co., and the Cincinnati, Hamilton and Dayton Ry. Co. R. R. Co. v. Brown, 26 Ohio St. 224, 239. But on October 22, on the showing made in the affidavits and supplemental petition, it clearly appeared that the Cleveland, Columbus, Cincinnati and Indianapolis Ry. Co. no longer claimed the right to control its large property interests, assets and valuable franchises, and was about to surrender possession thereof to the pretended new company. It would not have been reasonable in such an emergency to require the plaintiffs below to notify the Cleveland, Columbus, Cincinnati and Indianapolis Ry. Co., à corporation that, through its officers and agents, denied their own existence, of the application for the appointment of a receiver. The doctrine is well settled that a receiver may be appointed without notice, when the party to be affected thereby is beyond the jurisdiction of the court, or in case of great emergency, even if the adverse party be within the jurisdiction of the court. The showing made to the court of common pleas, on October 22, was sufficient to justify that court in appointing a receiver, without notice to the company which had attempted to commit suicide, and, through its officers, claimed that its purpose had been accomplished. A strong probability, amounting almost to a certainty, that, unless a receiver be appointed, a corporation will, within a few hours, in violation of law, surrender complete possession and control of property worth millions of dollars, is, we submit, a "grave emergency." If the emergency was, as we claim, sufficient to justify the appointment without notice to the corporation itself, then it was not error to make such appointment without notice to the other parties defendant.

III. Did the petition and supplemental petition state facts sufficient to authorize the appointment of a receiver? The plaintiffs below claimed relief, by injunction, and the appointment of a receiver, on the ground that the proposed consolidation was not authorized by law, and, if consummated, would cause irreparable

injury to the stockholders of the Cleveland, Columbus, Cincinnati and Indianapolis Ry. Co. On the showing made in the common pleas, the plaintiffs below were entitled to the appointment of a receiver. The corporation had ceased to act. The president and chief officers and a majority of the stockholders assumed that the property and franchises of the company had vested in another corporation, and were proceeding, without authority of law and in violation of the order of the court, to surrender to strangers the property of the defendant company, to the irreparable injury of its stockholders. It is a well-established rule of law that where a corporation ceases to act as such, and there are no persons authorized to conduct its affairs and preserve its property, a receiver will be appointed for that purpose; and on reason the duty of the court to appoint a receiver is even more imperative where a corporation ceases to act as such, and its officers, who are charged with the duty of conducting its affairs and preserving its property, betray their trust and neglect and refuse to perform their duty. And a court will act more promptly in granting such relief when the adverse parties are in contempt of court for violating its orders. High on Receivers, SS 15, 366; 2 Redfield on Railways, 360, 361; Conro v. Gray, 4 How. Pr. 166; Penn v. Whitehead, 12 Gratt. 74–83; Stevenson v. Davison, 18 Watt, 819.

IV. Did the petition and supplemental petition state facts sufficient to authorize the allowance of the restraining order of October 22? The order allowed against the Cleveland, Columbus, Cincinnati and Indianapolis Ry. Co., its trustees, directors, officers, managers, attorneys, agents, servants and employees, restraining them from collecting or paying out moneys, and from delivering the property of the company to any person except the receiver, was a proper order to be made in connection with the appointment of the receiver. The facts were such as to justify a court of equity in interfering, by injunction, to protect the interests of complaining stockholders. The relief granted was clearly within the doctrine stated in the following authorities: Pierce on Railways, 73, 520; High on Injunctions (2d ed.), §§ 605, 1203, 1207; Ang. & Ames on Corp. § 391; Ward v. Society of Attys., 1 Collyer, 370; Wright v. Oroville, 40 Cal. 20; Rev. Stats. of Ohio, § 5006; Green's Brice's Ultra Vires, 653.

E. A. Ferguson, also for defendant in error.

WHITE, J.-The only question before us for determination relates to the order appointing the receiver, and the orders made in aid of such appointment.

Whether the service of process upon the original defendants, Devereux, Burke, Short and Russell, in Cuyahoga county, was effective to subject them to the jurisdiction of the court issuing the process, is not before us for consideration; that branch of the case

is still in the court of common pleas. The only parties interested in the question of the appointment of the receiver, are the Cleveland, Columbus, Cincinnati and Indianapolis Ry. Co., and the original plaintiffs Jewett and Grant. The company, for any cause of action against it, was brought into court under the last clause of section 5027 of the Revised Statutes, which provides, that "an action against a railroad company may be brought in any county through or into which such road or line passes.

The meeting held at Cleveland was a meeting of the stockholders only. The corporations had no corporate duty to perform at the meeting. The object of the meeting was to comply with section 3383 of the Revised Statutes. The section provides for a meeting of the stockholders of the original companies, at a time and place to be fixed by themselves, to elect directors and other officers of the new company formed by the consolidation; and it is declared that the "election shall be conducted in such a manner as may be prescribed by the stockholders at such meeting."

The ground of action stated in the petition was the invalidity of the consolidation. This invalidity arose from the incapacity of the corporations, under the statute, to effect such consolidation. There being no power to consolidate, the original corporations continued to exist in their integrity, with all their rights of property and franchises. As such corporations they were respectively enjoined, under the original petition, "from surrendering the possession of the railways and properties, books, papers and records of the said corporations, or either of them, to the said alleged Ohio Ry. Co., or to any board of directors or officers pretending or claiming to represent the same."

The alleged violation, at the meeting, of the injunction, by the defendants, Devereux, Burke, Short and Russell, did not constitute ground against the corporation of which they were stockholders, for the appointment of the receiver; and it was only in the capacity of stockholders that they acted or had any authority to act at the meeting.

It does not appear who constituted the other directors of the defendant company; nor is it averred that the company or any of the directors were intending, in violation of the injunction against the company, to surrender or transfer its property to the alleged Ohio R. R. Co., its directors or officers. No such transfer could be effected by operation of the statute, for the consolidation was not authorized by the statute.

There was no obstacle to giving notice to the company before acting on the appointment of a receiver. No fraud or insolvency was charged against any of the parties; nor that the property of the company was in danger of removal beyond the jurisdiction of the court, or of otherwise being lost. The controversy was solely as to the effect of the attempted consolidation.

Under the circumstances of the case, the appointment of the receiver was an unwarranted exercise of judicial power, which it is the duty of this court to reverse and set aside. R. R. Co. v. Sloan, 31 Ohio St. 15; Verplanck v. Insurance Co., 2 Paige, 438. Judgment accordingly.

BRIGHTHOPE RY, CO.

V.

ROGERS.

(Advance Case, Virginia. 1882.)

An insurance company which has paid the assured the amount due him upon the policy can maintain an action for reimbursement, in the name of the assured, against the person by whose misconduct or negligence the loss was occasioned.

It is admissible, in an action for damages, caused by a railway fire, to show that the defendant's locomotive, on other occasions than that for which the action was brought, emitted sparks and communicated fire along the track and right-of-way.

It is incumbent on a railroad company to use all practicable and reasonable precautions to prevent injury to the property along their right-of-way by fire from their locomotives: (a) by keeping their road and right-of-way clear from all accumulation of combustible materials; (b) by using the most approved and best mechanical appliances and safeguards, in the nature of ash pans and spark arresters, such as are generally adopted by and used upon modern railroads in this country; and a failure to do so is negligence, and will render it liable in damages for a fire consequent thereupon.

This was a writ of error to a judgment rendered by the circuit court of Chesterfield county, in a suit brought by George J. Rogers, who sues for the benefit of the Watertown Fire Insurance Company, of New York, against the Brighthope Ry. Co. The facts of the case, other than than those stated in the opinion, and which are necessary to be known for a proper understanding of the points decided, are these: Rogers had a lot of cord-wood cut and piled on the line of the Brighthope Ry. Co., which he insured with the Watertown Fire Insurance Company by two policies, aggregating $1500. The wood was set on fire by the locomotive of the defendant, and about $1000 worth of it destroyed. Rogers claimed the insurance. The claim was compromised at $701.51, and this amount was paid him by the insurance company, which then sued the defendant in his name, alleging that the fire was caused by the railroad company's negligence. After the suit was brought, Rogers executed a formal release to the railroad company of all claims and demands, on his part, against them on account of