For example, striking laborers have been adjudged guilty of contempt for attempting to prevent employés of a receiver of a railroad from working for him.27 In one of these cases it was said: "If the testimony makes it clear that when these parties went in such numbers, and conducted themselves in such a way, that while they simply said, 'Please get off this engine,' or 'We want you to get off this engine,' they intended to overawe, intended, by the demonstrations which they made, to impress upon the minds of the engineers and train-men that personal prudence compelled them to leave, - why, then the government has made out its case. As my brother Treat said in a similar case,28 that we had before us in St. Louis, a request, under these circumstances, is a threat. Every sensible man knows what it means, and courts are bound to look at things just as they are, to pass upon facts just as they are developed, to treat the conduct of men just as it is, and to impute to them that intention which their acts and their conduct disclose was their intention." 29 And in another case the same judge said: "Now, if a party engaged in a lawful undertaking unintentionally interferes with some of the officers of this court, and obstructs them in the discharge of their duties, this court is not tenacious of any mere prerogative, and would let such action pass almost without notice; but where parties are engaged in that which is of itself unlawful, in doing that which they have no right to do, and in so doing obstruct the officers of the court although intending no contempt, that is a very different thing." 30 It has been held that in an action by the receiver of a national banking association against stockholders or debtors of the bank, the defendants cannot contest the validity of the appointment of the receiver.31 § 250. Duties of Receivers. A receiver holds the property of which he is given the care in trust for all persons interested therein, whether parties to the suit or not, provided that they do not claim it by a title paramount to his own. 27 Secor v. Toledo, P. & W. R. R. Co., 7 Biss. 513; King v. Ohio & M. Ry. Co., 7 Biss. 529; In re Doolittle, 23 Fed. R. 544; United States v. Kane, 23 Fed. R. 748; In re Higgins, 27 F. R. 443. 28 In re Doolittle, 23 Fed. R. 544, 548. 29 Brewer, J., in United States v. Kane, 23 Fed. R. 748, 751. His duties, 80 Brewer, J., In re Doolittle, 23 Fed. R. 544, 547. 81 Young v. Wempe, 46 Fed. R. 354. § 250. Davis v. Gray, 16 Wall. 203, 217, 218; Central Trust Co. v. Wabash, St. L. & P. Ry. Co., 23 Fed. R. 863. 2 Davis v. The Duke of Marlborough, 2 Swanst. 108, 118, 137, 138; Georgia therefore, are substantially those of a trustee, although his powers are usually more limited; and the decisions concerning the duties and liabilities of trustees, executors, administrators, and assignees in bankruptcy and insolvency are often of service in determining those of a receiver. A receiver's first duty after his appointment is to take possession of the property entrusted him by the order, using all the powers therein given him. If any of it is under lease he should notify the tenants of his appointment and demand that they attorn to him. It seems that as soon as he has obtained possession of all the estate that consists of personal property he should make an inventory thereof.6 "Under some circumstances a receiver would be derelict in duty, if he did not cause property in his hands to be insured against fire." All moneys that he receives he should either pay into court or deposit in a bank to the credit of himself as receiver, in a separate account from that for his private deposits. In remitting money from one place to another, he may do so by using the ordinary means, provided that he uses due care.9 He will be personally liable for all loss to the estate caused by his making any other disposition of the funds collected by him.10 It is advisable for a receiver to take a receipt for all sums of money exceeding twenty dollars paid out by him. By so doing, and by using such receipts as vouchers, he will have less difficulty in passing his accounts. A receiver should so keep the estate in his hands that it can be easily traced, delivered up, or accounted for.12 He should, at least as often as once a year, account and pay into court all the money which he has received, together with the profits thereof, less all necessary or author v. Atlantic & Gulf R. R. Co., 3 Woods, 377; Hinckley v. Railroad Co., 100 U. S. 434. 153, 157. 3 See, for example, Commonwealth v. Franklin Ins. Co., 115 Mass. 278; People v. National Trust Co., 82 N. Y. 283. 4 Daniell's Ch. Pr. (2d Am. ed.) 1987. 5 Daniell's Ch. Pr. (2d Am. ed.) 1987. 6 Lewin on Trusts (6th ed., London, 1875), 184; England v. Downs, 6 Beav. 269. See also Williamson v. Wilson, 1 Bland (Md.), 418, 436. 7 Thompson v. Phoenix Insurance Co., 136 U. S. 287, 293, per Mr. Justice Harlan. 8 Salway v. Salway, 4 Russ. 60; s. c. 2 R. & M. 215; Wren v. Kirton, 11 Ves. 9 Knight v. Lord Plimouth, 3 Atk. 480; s. c. 1 Dickens, 120. 10 Salway v. Salway, 4 Russ. 60; s. c. 2 R. & M. 215; Rowth v. Howell, 3 Ves565. 11 Remsen v. Remsen, 2 J. Ch. (N. Y.) 495, 501. 12 Williamson v. Wilson, 1 Bland (Md.), 18; Hinckley v. Railroad Co., 100 U. S. 153, 157; Attorney-General v. North American Life Ins. Co., 89 N. Y. 94, 107, 108. ized expenditures, and such compensation as the court allows him.18 If he receives a considerable sum of money during the interval between the regular times for his accounting, it seems that he should apply to the court for directions concerning its investment; 14 and in general, he should apply for instructions whenever any unexpected event occurs of which advantage may be taken for the benefit of the estate, or which necessitates active. measures to preserve the estate from loss.15 Any profit which he may make from the estate belongs to the finally successful party, or to him to whom the surplus, after the payment of prior demands, is finally directed to be paid.16 And if he uses the property over which he has been appointed in his private business, he must pay to the estate for its use. It is usually considered improper for a receiver to retain as his counsel one who has previously acted in the suit for one of the parties.18 But it is proper for a receiver appointed in a suit brought by a creditor for the satisfaction of his own debt alone, to retain the attorney of the complainant. 19 In one case, the court refused to allow the receiver to retain a relative who had previously practised elsewhere, and had come into the circuit apparently for the purpose of acting as counsel for the receiver.20 A receiver of a railroad is a common carrier,21 and is guilty of impropriety, for which he may be removed, when he discriminates between different persons who use the railway.22 A receiver of a railway may be obliged. to repay such sums of money as he has exacted from shippers of freight by unlawful discriminations against them.23 A receiver cannot resign without the permission of the court which appointed him.24 A recent statute provides "that whenever in any cause 18 Daniell's Ch. Pr. (2d Am. ed.) 1992; Shaw v. Rhodes, 2 Russ. 559. See § 256. 14 Shaw v. Rhodes, 2 Russ. 539; Hicks v. Hicks, 3 Atk. 274; Earl of Londsale v. Church, 3 Brown Ch. C. 41. 15 Shaw v. Rhodes, 2 Russ 539; Hicks v. Hicks, 3 Atk. 274; Earl of Lonsdale v. Chureh, 3 Brown Ch. C. 41. 16 Gibbs v. David, L. R. 20 Eq. 373. But see Whitesides v. Lafferty, 3 Humph. (Tenn.) 150. 17 Battaile v. Fisher, 36 Miss. 321. 18 Ryckman v. Parkins, 5 Paige (N. Y.), 543; Blair v. St. Louis, H. & K. R. R. Co., 20 Fed. R. 348. 19 Shainwald v. Lewis, 8 Fed. R. 878. VOL. I.- 28 20 Blair v. St. Louis, H. & K. R. R. Co., 20 Fed. R. 348. 21 Beers v. Wabash, St. L. & P. Ry. Co., 34 Fed. R. 244. 22 Handy v. Cleveland & M. R. R. Co., 31 Fed. R. 689. See Missouri Pac. Ry. Co. v. Texas & P. Ry. Co., 30 Fed. R. 2; Cutting v. Florida Ry. & Nav. Co. (Mallory et ol., Intervenors), 43 Fed. R. 747. 23 Cutting v. Florida Ry. & Nav. Co. (Mallory et al. Intervenors), 43 Fed. R. 747. 24 Daniell's Ch. Pr. (2d Am. ed) 2002. See In the Matter of Jones, 4 Sandford's Ch. (N. Y.) 615. pending in any court of the United States, there shall be a receiver or manager in possession of any property, such receiver or manager shall manage and operate such property according to the requirements of the valid laws of the State in which such property shall be situated, in the same manner that the owner or possessor thereof would be bound to do if in possession thereof. Any receiver or manager who shall wilfully violate the provisions of this section shall be deemed guilty of a misdemeanor, and shall on conviction thereof be punished by a fine not exceeding three thousand dollars, or by imprisonment not exceeding one year, or by both said punishments, in the discretion of the court." 25 § 251. Liability of a Receiver. The liabilities of a receiver are, in many respects, analogous to those of a trustee. He is liable to all persons interested in the estate in his hands for any damage resulting to them from any breach of duty by him, whether intentionally or through negligence. He is, however, free from liability to the parties to the suit on account of any act performed in obedience to an order of the court within its jurisdiction, and not obtained by fraud, until the same has been vacated upon appeal or otherwise.3 A receiver's liability to strangers is much more limited than that of a trustee. He is not liable personally upon a covenant entered into in his official capacity with the sanction of the court. A few cases seem, however, to imply that by retaining the possession for the use of the estate of property held under a lease, he would become personally liable for the rent, where he had made no agreement to retain possession of the premises under the authority of the court. A receiver, even when acting as a common carrier, is not liable personally for injuries caused by the negligence of his 6 Commonwealth v. Franklin Ins. Co., 115 Mass. 278; People v. National Trust Co., 82 N. Y. 283; People v. Universal Life Ins. Co., 30 Hun (37 N. Y. S. C. R.), 142. But see Central Trust Co. v. Wabash, St. L. & P. Ry. Co., 34 Fed. R. 259, 269; s. c. 46 Fed. R. 26; Brown v. Toledo, P. & W. R. Co., 35 Fed. R. 444; Easton v. Houston & T. C. Ry. Co., 38 Fed. R. 784; Farmers' L. & Tr. Co. v. Chicago & A. Ry. Co., 42 Fed. R. 6; s. c. 44 Fed. R. 653; Kneeland v. American Loan & Trust Co., 136 U. S. 89; supra, § 243, p. 457, note 37. employees, when he exercised reasonable care in their selection.7 The only remedy of the person thus aggrieved is by an action against the receiver in his official capacity, seeking satisfaction out of the estate.8 When the receiver has been discharged and the estate sold, or returned to its owner, he has no remedy except against the employee, unless one has been preserved for him by the court; for the owner of the property is not liable for the negligence of the receiver's employees.10 For this reason it is customary to insert in the order for the sale in bulk of property in the possession of a receiver, that the purchaser shall take it subject to all claims for injuries caused while it was managed by the receiver.11 Such a provision, although not mentioned in the order for the sale, may be inserted as a condition in the order confirming the sale, and the purchaser, after taking possession under the latter order, is estopped from disputing the validity of the condition.12 Such claims are usually enforced in the suit in which the receiver was appointed.18 By the former practice, following the old chancery rule, a receiver could not be sued without the permission of the court that appointed him.14 Such an order was revocable, and might have been conditional.15 "The leave to bring suit in any form reserves the right to the receiver to set up any defense he may have, which can be done by plea, answer, or demurrer." 16 The court might direct that service of process be made upon the resident agent of a non-resident receiver.17 A recent statute changes the practice as follows: "Every receiver or manager of any property appointed by any court of the United States may be sued in respect of any act or transac Kennedy v. I. C. & L. R. Co., 3 Fed. 8 Kennedy v. I. C. & L. R. Co., 3 Fed. 9 Davis v. Duncan, 19 Fed. R. 477; White v. Keokuk & D. M. Ry. Co., 52 Iowa, 97. 10 Davis v. Duncan, 19 Fed. R. 477. 11 Farmers's L. & Tr. Co. v. Central R. R. of Iowa, 2 McCrary, 181; s. c. 7 Fed. R. 537; s. c. subsequently considered, 17 Fed. R. 758. 12 Farmers' L. & Tr. Co. v. Central R. R. of Iowa, 17 Fed. R. 758. 18 Farmers' L. & Tr. Co. v. Central R. R. of Iowa, 17 Fed. R. 758. 14 Barton v. Barbour, 104 U. S. 126. 16 Central Trust Co. v. Wabash, St. L. & P. Ry. Co., 26 Fed. R. 74. 16 Davis v. Duncan, 19 Fed. R. 477, 483. See also Jordan v. Wells, 3 Woods, 527. 17 Central Trust Co. v. St. Louis A. & T. Ry. Co., 40 Fed. R. 426. |