It has been held that when a bond has been given to secure an injunction against the interference with the possession of personal property, and the injunction has been subsequently dissolved, damages can be recovered under the bond for the damage caused the defendant by his delay in obtaining possession of the property and the proceeds thereof; that such damages include any loss caused by a fall in the market price of the property, provided it were property which had a market price and could have been sold at once on the market for a sum nearly equal to its value, but not if it were property which had no market price and could not have been sold immediately for a sum "anything like its value;" and that the profits which the defendant might have made by the use of the property in his business during the time that he was enjoined, are too remote and speculative to be recovered under the bond.16 It has been held that "an injunction bond in an action in the District Court of the United States for the District of Louisiana, conditioned that the obligors will well and truly pay the' obligee, 'defendant in said injunction, all such damages as he may recover against us, in case it should be decided that the said writ of injunction was wrongfully issued,' which bond was made under an order of the court that the injunction be maintained on the complaining creditors giving bond and security to save the parties harmless from the effects of said injunction,' is a sufficient compliance with the order of the court, and when construed with reference to the rule prevailing in the Federal courts (contrary to that prevailing in the State courts of Louisiana), that without a bond and in the absence of malice no damages can be recovered in such case, means that the obligors will pay such damages as the obligee may recover against them in a suit on the bond itself, whether incurred before or after the giving of the bond." 17

238. Perpetual Injunctions.- Perpetual injunctions can only be granted at the entry of a decree.1 It is irregular to grant one upon affidavits.2 In patent, trademark and copyright cases, however, they are often granted by an interlocutory decree which also directs a reference to a master for an accounting; but the court

16 Lehman v. McQuown, 31 Fed. R. 138; by Mr. Justice Brewer.

17 Meyers v. Block, 120 U. S. 206.
§ 238. 1 Daniell's Ch. Pr. (2d Am. ed.)

2 Adams v. Crittenden, 17 Fed. R. 42. 3 Rumford Chemical Works v. Hecker, 11 Off. Gaz. 330; Brown v. Deere, 6 Fed. R. 484; s. c. 2 McCrary, 425.

has the power to suspend the injunction until an appeal can be taken. A perpetual injunction is either originally granted, or continued. They may be granted originally in all cases in which temporary injunctions might have been granted, and also to restrain the setting up of outstanding terms when it would be inequitable to do so.5 In order to obtain a perpetual injunction, it is not necessary that a provisional injunction should have been asked for. For after the commencement of a suit seeking to prevent an act upon the defendant's part, he is said to proceed at his peril, and if the court finally decides in favor of the plaintiff it may order him to undo the result of his acts since he first had notice of the suit. A perpetual injunction may be obtained in a case where a preliminary injunction has been asked for and refused, or obtained and dissolved.8 If, however, the plaintiff has not previously obtained a preliminary injunction and, at the hearing fails to make out a clear title, he usually will not be allowed to use the facts proved by him, as evidence of a prima facie case, entitling him then to a temporary injunction till be can establish his case beyond a doubt;9 unless indeed, the injunction sought be one that is never granted before a hearing.10 The most common kinds of perpetual injunctions, however, are those which are made by continuing, or extending and making perpetual preliminary injunctions at the hearing. This can only be done by inserting a direction to that effect in the decree."1 In order to support a decree for a perpetual injunction, it has been said that the court requires that there should be nothing like a doubt in the case.12 The granting of such an injunction is in the discretion of the court,

4 Barnard v. Gibson, 7 How. 650, 658; Potter v. Mack, 3 Fisher, 428; Brown v. Deere, 6 Fed. R. 487; Munson v. The Mayor, 19 Fed. R. 313.

Askew v. Poulterers' Co., 2 Ves. Sen. 89; Duke of Buckingham v. Duchess of Buckingham, 2 Eq. Cases Abr. 527.

6 Daniell's Ch. Pr. (2d Am. ed.) 1900. See also Baily v. Taylor, 1 R. & M. 73.

1 Charles River Bridge v. Warren Bridge, 6 Pick. (Mass.) 376; Wing v. Fairhaven, 8 Cush. (Mass.) 363; Winslow v. Nayson, 113 Mass. 411; Smith v. Day, L. R. 13 Ch. D. 651.

8 Daniell's Ch. Pr. (2d Am. ed.) 1900; Bailey v. Taylor, 1 R. & M. 73; Bacon v.

and, like a provisional injunc

Spottiswoode, 1 Beav. 382; Bacon v. Jones, 4 M. & C. 433; Tucker v. Carpenter, Hempst. 440.

9 Bacon v. Spottiswoode, 1 Beav. 382; s. c. on appeal, sub nom. Bacon v. Jones, 4 M. & C. 433, 438; Daniell's Ch. Pr. (2d Am. ed.) 1901.

10 Daniell's Ch. Pr. (2d Am. ed.) 1901. See supra, § 226.

11 Daniell's Ch. Pr. (2d Am. ed.) 1902; Gardner v. Gardner, 87 N. Y. 14.

12 Whittingham v. Wooler, 2 Swanst. 428 n. ; Troy & B. R. R. Co. v. Boston, H. T. & W. Ry. Co., 86 N. Y. 107; Daniell's Ch. Pr. (2d Am. ed.) 1900.

14

tion, it may be allowed 13 or refused 4 upon terms. terms. On account of the weight as a precedent given to a decree for a perpetual injunction in a patent case, the court may refuse to grant one when the case has been compromised and the defendant abandons it at the hearing.15

18 Southern Express Co. v. St. Louis Iron M., & Southern Ry. Co., 10 Fed. R. 210; s. c. 10 Fed. R. 869.

14 McCrary v. Penn. Canal Co., 5 Fed.

R. 367; Brown v. Deere, Mansur & Co., 6
Fed. R. 487.

15 Hayes v. Leton, 5 Fed. R. 521.

CHAPTER XVII.

RECEIVERS.

§ 239. Definition of Receiver.-A receiver is an officer appointed by a court of equity to assume the custody of property pending litigation concerning the same. The utmost effect of the appointment of a receiver is to put the property from that time in his custody as an officer of the court, for the benefit of the party ultimately proved to be entitled, but not to change the title or even the right of possession to the property.1 In England the term is usually applied only to those appointed to receive the rents and profits of land and to get in outstanding property; and one selected to carry on or superintend a trade or business is usually denominated "a manager," or "a receiver and manager."2 But in the United States both classes of officers are called receivers. The Revised Statutes authorize the Comptroller of the Currency to appoint in certain cases a receiver of a national banking association, whose powers and duties are in many respects analogous to those of a receiver appointed by a court of equity. But, as the learning upon this subject does not concern the practice of courts of equity, it will not be considered here.

§ 240. When Receivers will be Appointed. A receiver may be appointed to provide for the safety of property pending litigation to determine the title to the same; to preserve property in danger of being dissipated or destroyed by those having the legal title to its possession; to preserve the property of infants during their minority, when they have no guardian and their parents are dead or unfit to be trusted with it; to preserve the property of idiots and lunatics when it is impossible to obtain a proper person as committee; and when the appointment is authorized by statute.1 A receiver may be appointed to provide for the safety of property

§ 239. 1 Union Bank of Chicago v. Kansas City Bank, 136 U. S. 223, 236.

2 Daniell's Ch. Pr. (2d Am. ed.) 2006. 8 See U. S. R. S. §§ 5234-5237; Laws of 1876, ch. 156 (19 St. at L. 63); 1st. Supp.

U. S. R. S. 216; 24 St. at L. ch. 28, p. 8; Price v. Abbott, 17 Fed. R. 506; supra, § 15; and infra, §§ 210, 330.

§ 240. 1 Kerr on Receivers (2d Am

ed.) 3.

pending litigation; to determine the title to the same, whether the litigation is in a court of equity,2 of probate,3 of bankruptcy, in a foreign court,5 and sometimes, though very rarely, in a court of law. By far the most ordinary cases where a receiver is appointed are, however, suits in equity to obtain equitable assets, for the foreclosure of a mortgage, and for the dissolution or winding up of the affairs of a partnership. It was the English rule that a receiver could not be appointed at the suit of a first mortgagee, since he had it in his power to take possession himself.7 In this country, however, receivers are frequently appointed in such a case. As a general rule, a receiver of the effects of a partnership will not be appointed unless the bill prays a dissolution and shows a proper case for the same. But it has been said that "where suits have been instituted to compel partners to act according to the provisions of instruments into which they have entered; in such cases, the Court will take care that the decree shall not be defeated by anything to be done in the mean time, and will appoint a receiver to protect the property." 10 Receivers may be appointed to preserve property in danger of being dissipated or destroyed by those having the legal title to its possession, at the suit of beneficiaries, legatees, next of kin, or creditors, when a trustee,11 executor,12 or administrator 13 is in

2 Davis v. The Duke of Marlborough, 2 Swanst. 108; Curling v. Marquis Townshend, 19 Ves. 628.

8 King v. King, 6 Ves. 172; Matter of Colvin, 3 Md. Ch. Dec. 279; Robinson v. Taylor, 42 Fed. R. 803; Kerr on Receivers (2d Am. ed.), 28-37.

4 Sedgwick v. Place, 3 N. B. R. 35; Alabama & Chattanooga R. R. Co. v. Jones, 5 N. B. R. 97; Keenan v. Shannon, 9 N. B. R. 441; Kerr on Receivers (2d Am. ed.), 110-113.

9 Goodman v. Whitcomb, 1 J. & W. 589; Oliver v. Hamilton, 2 Anst. 453; Daniell's Ch. Pr. (2d Am. ed.) 1966, 1967; Kerr on Receivers (2d Am. ed.), 93.

10 Daniell's Ch. Pr. (2d Am. ed.) 1967; Const v. Harris, T. & R. 496.

11 McCosker v. Brady, 1 Barb. Ch. (N. Y.) 329; Brodie v. Barry, 3 Meriv. 695; Janeway v. Green, 16 Abb. Pr. (N. Y.) 215, note. In Benedict v. St. Joseph & W. R. Co., 19 Fed. R. 173, the fact that there was a dispute between the

5 Transatlantic Co. v. Pietroni, Johns. majority and a minority of the bondhold604.

6 Talbot v. Scott, 4 K. & J. 96; Fingal v. Blake, 2 Molloy, 50; Whitney v. Buckman, 26 Cal. 447; Horton v. White, 84 N. C. 297; Jefferys v. Smith, 1 J. & W. 298; Robinson v. Taylor, 42 Fed. R. 803; Kerr on Receivers (2d Am. ed.), 114-129.

7 Berney v. Sewell, 1 J. & W. 647.

8 See, for example, Stanton v. Alabama & Chattanooga R. R. Co., 2 Woods, 506; Allen v. The Dallas & Wichita R. R. Co., 8 Woods, 316, 326.

ers, the former being in possession, was held to make the appointment of a receiver necessary.

12 Utterson v. Mair, 2 Ves. Jr. 95; Scott v. Becher, 4 Price, 346. But see Gladdon v. Stoneman, 1 Madd. 143 n.; Langley v. Hawk, 5 Madd. 46; Kerr on Receivers (2d Am. ed.), 20.

18 Hervey v. Fitzpatrick, Kay, 421; Ware v. Ware, 42 Ga. 408.