tion of his in carrying on the business connected with such property, without the previous leave of the court in which such receiver or manager was appointed; but such suit shall be subject to the general equity jurisdiction of the court in which such receiver or manager was appointed, so far as the same shall be necessary to the ends of justice." 18 In a recent case, Judge Caldwell thus construed this statute: "This court will not entertain the suggestion that its receiver will not obtain justice in the State courts. The act of Congress gives the right to sue the receiver in the State court. Trust Co. v. Railway Co., 40 Fed. R. 426. The State court has jurisdiction of the parties and the subject-matter, and its judgment against the receiver of this court is as final and conclusive as it is against any other suitor. The right to sue the receiver in the State court would be of little utility, if its judgment could be annulled or modified at the discretion of this court. It is open to the receiver to correct the errors of the inferior courts of the State by an appeal to the Supreme Court. But this court is not invested with appellate or supervisory jurisdiction over the State courts, and cannot annul, vacate, or modify their judgments. Randall v. Howard, 2 Black, 585; Nougue v. Clapp, 101 U. S. 551. It is true the act of Congress provides that, when the receiver is sued, the suit shall be subject to the general equity jurisdiction of the court in which such receiver or manager was appointed, so far as the same shall be necessary to the ends of justice.' This clause of the act establishes no new rule, but is merely declaratory of the previously existing law. The receiver holds the property for the benefit of all persons having any interest in or lien upon it. The road is a unit. Broken into parts, or deprived of its rolling stock, its value would be greatly impaired. Suits, therefore, which seek to deprive the receiver of the possession of the property, and all process the execution of which would have that effect, are subject to the control of the court appointing the receiver, so far as may be necessary to the ends of justice. The marshalling of the assets, and the orderly distribution of the fund or property according to the rights and equities of the several parties in interest, is not to be interfered with by the judgment or process of the State court. The

18 25 St. at L. ch. 866, § 3, p. 436; 24 St. at L. ch. 373, § 3, p. 554. See Croy v. Marshall, 21 Ohio Weekly Law Bulle

tin, 489; Missouri Pac. Ry. Co. v. Texas Pac. Ry. Co. (Sullivan Intervenor), 41 Fed. R. 310, 314.

judgment of the State court is conclusive as to the amount of the debt, but the time and mode of its payment must be controlled by the court appointing the receiver. The receiver should have the right to appeal from the judgments of the State courts. Appeals should not be taken for delay, but that justice may be done. When the receiver, in good faith, takes an appeal, he should not be required by this court to execute a supersedeas bond. The receiver is an officer of the court. His possession of the property is the possession of the court. The property of the railroad stands as security for all the obligations of the court incurred in its operation. The receiver, no more than the judge of the court, should be required to become personally bound as a condition of his appealing, in good faith, from the judgment of a State court rendered against him in his official capacity. The court will not part with the possession of the property until the obligations incurred by the receiver are paid, or proper provision is made to secure their payment. Dow v. Railroad Co., 20 Fed. R. 265, 269. The objection of plaintiff's counsel to the clause of the order, as originally drawn, which required the receiver to execute supersedeas bonds in cases which he appealed, is sustained, and that clause will be stricken out." 19 In another recent case Judge Hammond said, when charging a jury: "This is what we call an 'issue out of chancery,' and comes to us from the equity side of this court, in pursuance of a practice that submits to a jury in a court of law questions of fact that ordinarily, and but for the fact that the equity court is proceeding to exercise its jurisdiction in the premises, would be cognizable in a court of law. It has always been my judgment that a jury should pass upon such questions as these, and, while it must be conceded that the court of equity has the power, without a violation of the constitutional right of trial by jury, to try them in its own way, by the chancellor, or through a reference to a master, yet it is the practice of those courts to submit, upon application of the parties, those questions of fact peculiarly cognizable in a court of law to that court for trial; and this out of deference to the sensibilities of our race of people against the impairment of their cherished institution of trial by jury, which in these States we sought to preserve by constitutional provisions, none of which are so sedulous to preserve it as the Federal constitution itself. Courts of equity 19 Central Trust Co. v. St. Louis, A. & T. Ry. Co., 41 Fed. R. 551, 555–556.

accomplish their purpose of yielding to the parties this preference for a trial by jury, either by permitting them, in proper cases, to proceed against their receivers by a regular suit at law, or by the method adopted in this case, of sending to the court of law issues of fact to be tried by the jury; and, it having seemed to this court, sitting in equity in this case, that recent legislation by Congress is a manifestation of its legislative will that this preference for trial by jury shall be acknowledged and favored by the courts of equity, if not a rebuke to them for the practice of denying it in the exercise of their power to refer them to a master in equity, these issues have been certified to us for trial." 20 In a later case, Judge Pardee said: "The third section of the act of 1887, quoted above, in terms provides that the suit so instituted in another court shall be subject to the general equity jurisdiction of the court in which the receiver is appointed, so far as the same shall be necessary to the ends of justice. The better opinion of the effect of said section is that it merely dispenses with leave of the court appointing the receiver, as a prerequisite to instituting a suit against him in another court, and that a suit brought thereunder has the same status, and a judgment rendered therein has the same effect, as if permission to sue had been regularly granted by the court appointing the receiver. However this may be, it is clear that when a judgment is so obtained, and is brought to the court of original jurisdiction to be ranked as a lien upon the trust funds, such judgment is subject to the general equity jurisdiction, and the duty of determining the rightfulness of the judgment, including whether the amount is just, is still imposed upon this court, as it would be if it had ordered an issue tried at law; for this court must still, in the language of the statute, exercise a 'general equity jurisdiction, so far as the same shall be necessary to the ends of justice.' In the present case, the proceedings before the master show that intervenor offered evidence, in addition to that contained in the record from the State court, tending to show the fact of injury, and the extent of damages, thereby waiving any right intervenor may have had to claim that his judgment was conclusive upon the question of negligence and damages. For these reasons, I am of the opinion that in the present intervention the court may inquire as to whether or not the intervenor has a lien, and, if so, the rank and amount thereof, 20 Atkin v. Wabash Ry. Company, 41 Fed. R. 193, 194.

and that in such inquiry the court is not concluded in any way by the verdict and judgment produced from the district court of Harrison County, Tex." 21 The latest decision on this statute was by the Supreme Court of the United States, as follows: "It was not intended by the word 'his' to limit the right to sue to cases where the cause of action arose from the conduct of the receiver himself or his agents, but that with respect to the question of liability, he stands in place of the corporation. His position is somewhat analogous to that of a corporation sole, with respect to which it is held by the authorities that actions will lie, by and against the actual incumbents of such corporations, for causes of action accruing under their predecessors in office." 22 Accordingly, it was held that the act applied to suits against a receiver for liabilities incurred by his predecessor in office.22 A judgment in a suit thus prosecuted can only be collected out of the property in the hands of the receiver in his official capacity.23 A receiver is personally liable to strangers for trespass,24 fraud,25 or other wilful act, although performed under color of his office. So, if he by mistake, though honestly, takes possession of the property of another, he is personally liable.26 The fact that he does so under authority of an order of the court will not justify him as against a person who was not a party to the suit or proceeding in which the order was granted.27 In all of such cases it seems that he can, independently of the statute, be sued without leave of the court which appointed him.28 But when a receiver of a State court was sued in a Federal court for an infringement of a patent, in obedience to an order of the State court the Federal court stayed its proceedings, to allow time for an application to the State court to modify its order.29 A person who, without having been lawfully appointed, assumes to act as a receiver, has all the

21 Missouri Pac. Ry. Co. v. Texas Pac. Ry. Co., Sullivan intervenor, 41 Fed. R. 311, 314, per Pardee, J.

22 McNulta v. Lochridge, 12 S. C. Rep. 11; 142 U. S. 1, per Mr. Justice Brown.

28 Farmers' L. & Tr. Co. v. Central R. R.

of Iowa, 2 McCrary, 181; s. c. 7 Fed. R. 537; Barton v. Barbour, 104 U. S. 126; Missouri Pac. Ry. Co. v. Texas Pac. Ry. Co. (Sullivan intervenor), 41 Fed. R. 310.

24 In re Young, 7 Fed. R. 855; Olney v. Tanner, 10 Fed. R. 101; Barton v. Barbour, 104 U. S. 126, 134.

25 Bank of Montreal v. Thayer, 7 Fed.

R. 622.

26 Barton v. Barbour, 104 U. S. 126, 134; Curran v. Craig, 22 Fed. R. 101.

27 Curran v. Craig, 22 Fed. R. 101. 28 Barton v. Barbour, 104 U. S. 126, 134; In re Young, 7 Fed. R. 855; Bank of Montreal v. Thayer, 7 Fed. R. 622; Curran v. Craig, 22 Fed. R. 101. But see Aston v. Heron, 2 Myl. & K. 390; Chalie v. Pickering, 1 Keen, 749.

29 Curran v. Craig, 22 Fed. R. 101.

liabilities of one duly appointed.30 Where a statute imposed a penalty for a failure to alter a railroad bridge after notice by the Secretary of War, and such notice had been served upon a railway company over which a receiver was subsequently appointed, but no notice was served upon the receiver, it was held that neither the railway company nor the receiver was liable to the penalty, the proper remedy having been for the Secretary of War to bring to the attention of the court the facts, and request the court to order an alteration of the bridge out of the funds in the receiver's hands.31 It has been held that an action will not lie against a receiver for a personal injury sustained before his appointment.32 The discharge of a receiver until revoked relieves him from all liability to those who had an opportunity to be heard upon the motion for his discharge.33

§ 252. Manner of applying for the Appointment of a Receiver. It has been said that a court has no jurisdiction to appoint a receiver, unless a cause is pending;1 and that, therefore, one will never be appointed upon petition 2 when no suit has been begun, except in the case of lunatics. The grounds of the exception and the reasons why it does not extend to infants + are not very clear. After a suit has been begun, however, a receiver may be appointed at any stage of it when a necessity is shown, — before appearance, between appearance and answer, between answer and decree, at the decree,8 or afterwards, if the cause is still open.9 But a case of pressing necessity must exist to justify the appointment of a receiver before answer. 10 An objection to the bill on account of multifariousness or a misjoinder of parties will not prevent the appointment of a receiver; nor will the pendency of

30 Wood v. Wood, 4 Russ. 558.

31 United States v. St. Louis, A. & T.

R. Co., 43 Fed. R. 414.

Ex parte Whitfield, 2 Atk. 315.

5 Tanfield v. Irvine, 2 Russ. 149.

6 Vann v. Barnett, 2 Brown Ch. C. 158;

22 Finance Co. of Pa. v. Charleston C. Metcalfe v. Pulvertoft, 1 V. & B. 180. & C. R. Co., 46 Fed. R. 508.

83 Lehman v. McQuown, 31 Fed. R. 138; Davis v. Duncan, 19 Fed. R. 477.

§ 252. 1 Anon., 1 Atk. 578. See § 260. 2 Anon., 1 Atk. 578; Ex parte Whitfield, 2 Atk. 315; Merchants' & M. National Bank v. Kent Circuit Judge, 43 Mich. 292.

3 Ex parte Radcliffe, 1 J. & W. 639; Anon., 1 Atk. 578; Ex parte Warren, 10 Ves. 622.

7 Kershaw v. Mathews, 1 Russ. 361. 8 Osborne v. Harvey, 1 Y. & C. N. R. 116.

9 Cooke v. Gwyn, 3 Atk. 689; Attorney-General v. Mayor of Galway, 1 Molloy, 95; Bowman v. Bell, 14 Simons, 392.

10 Latham v. Chafee, 7 Fed. R. 525. See Union Mut. Life Ins. Co. v. Union Mills Plaster Co., 87 Fed. R. 287.