executors, and administrators, and of all and singular their lands and hereditaments, goods and chattels."2 The recognizance, however, was subject to a condition making it void if the receiver should duly account for the rents and profits of the estate over which he was appointed. In the Federal courts no fixed rule prevails, the security required from a receiver being whatever the judge who orders his appointment thinks proper. When a receiver is appointed by consent, the court may appoint him without requiring security, or upon his own recognizance only. The sureties must usually dwell within the jurisdiction of the court ; but under peculiar circumstances sureties residing elsewhere have been accepted. The sureties of a receiver cannot be discharged at their own request, except under special circumstances, "as where underhand practice is proved, and the person secured shown to be connected with such practice." "For if people voluntarily make themselves bail or sureties for another, they know the terms, and will be held very hard to their recognizance, and not discharged at their request to have new sureties appointed, for then there would be no end of it."9 If a surety should procure his discharge during the continuance of the receivership, the receiver must enter into a fresh recognizance.10 In law, a surety is liable to the full amount of the penalty of the recognizance, bond, or undertaking by which he is bound. In equity, however, he is only liable to the full amount, including interest as well as principal, which the receiver is liable in equity to pay,12 unless that exceeds the amount of the penalty, which fixes the extreme limit of his liability.18 It has been held in England that a surety who has undertaken to be responsible for whatever a receiver "should receive or become liable to pay" as such receiver, is liable for funds received by the receiver before the security was given.14 Where the parties interested have been guilty of 2 Daniell's Ch. P. (2d Am. ed.) 1977; Mead v. Lord Orrery, 3 Atk. 235; Tomlinson v. Ward, 2 Conn. 396. 8 Daniell's Ch. Pr. (2d Am. ed.) 1999. 4 Taylor v. Life Association of America, 3 Fed. R. 465. 5 Hibbert v. Hibbert, 3 Meriv. 681; Countess of Carlisle v. Lord Berkley, Amb. 599; Ridout v. Earl of Plymouth, 1 Dickens, 68. Taylor v. Life Association of America, 3 Fed. R. 465. 7 Griffith v. Griffith, 2 Ves. Sen. 400; Gordon v. Calvert, 2 Simons, 253. 8 Hamilton v. Brewster, 2 Molloy, 407. 9 Lord Hardwicke in Griffith v. Griffith, 2 Ves. Sen. 400. 10 Vaughan v. Vaughan, 1 Dickens, 90; Blois v. Betts, 1 Dickens, 336. 11 Dawson v. Raynes, 2 Russ. 466, 468. 14 Smart v. Flood, 49 L. T. 467. gross delay in compelling the receiver to pass his accounts, the court may excuse the surety from the payment of the whole or a part of the interest.15 According to Daniell, "When an action is brought against a receiver's surety upon the recognizance, the proper course for him to pursue appears to be to apply to the court by motion to stay the proceedings on the recognizance, offering at the same time to pay the amount due from the receiver, so as the same does not exceed the amount of the recognizance, into court; and upon such motion, the order will be made, upon the surety's paying the cost of the application, and of the proceedings consequent upon it. When the receiver's account has not been taken, the motion should also pray a reference to the master to see what is due from the receiver; and it seems that upon such application the court will indulge the surety by allowing him to pay the balance by instalments." 16 When a surety has been obliged to pay anything on account of the receiver, he will be entitled to a lien for his reimbursement upon anything which may subsequently be due to the receiver from the suit.17 § 257. Receivers' Accounts. A receiver should account annually to the court unless accounts at shorter intervals are required of him.1 His accounts are filed and passed in the office of the master to whom matters pertaining to the receivership are referred.2 A receiver's account should describe the situation of the estate at the time when he received it, and any changes that have since taken place. He should then state his receipts and disbursements, which should be set forth in schedules as specifically as possible. He should also state such indebtedness as he has incurred; and, in general, give as full a description. of the estate in his hands, and of his actions concerning the same as is practicable. If a person has not been paid for services rendered to the estate, but has agreed with the receiver to be 15 Dawson v. Raynes, 2 Russ. 466. 16 Daniell's Ch. Pr. (2d Am. ed.) 2005, 2006, citing Walker v. Wild, 1 Madd. 528. 17 Glossop v. Harrison, Cooper, 61; s. c. 3 V. & B. 134. § 257. 1 Potts v. Leighton, 15 Ves. 273; General Order, 15 Ves. 278; Lowe v. Lowe, 1 Tenn. Ch. 515. Daniell's Chr. Pr. (2d Am. ed.) 1996, 1997. But see Lafayette Co. v. Neely, 21 Fed. R. 738. 4 Daniell's Ch. Pr. (2d Am. ed.) 1996, 1997; Hooper v. Winston, 24 Ill. 353; Hinckley v. Railroad Co., 100 U. S. 153; Attorney-General v. North America Life Ins. Co., 89 N. Y. 94, 107; Bourne v. 2 Daniell's Ch. Pr. (2d Am. ed.) 1996, Maybin, 3 Woods, 724, 741; Equity content with what the court allows him, that fact should be stated in the account together with a description of the services thus performed.5 Allowances for counsel fees will usually be small, until the final accounting of the receiver, when the full amount earned will be ordered paid. Such allowances are the property of the receiver, not of his counsel. In a recent case, upon an application for the payment of counsel fees pending a receivership, Judge Brewer said: "It is not because we think the counsel have not earned the amount reported by the master in their favor that we do not sustain this report in full; but we do not believe in the policy or propriety, pending a receivership, of making a large allowance to parties who are employed as officers of the court, or in looking after the interests of their clients in that connection. They should wait until the matter comes to a close, and then their bills, as a whole, should be presented. The court can then look at them, and pass upon the question as to whether they are correct or not. It makes a great difference, practically, in the administration of affairs, whether parties present bills for two or three thousand dollars every three or four months, or at the end of the litigation for eight or ten thousand dollars. We do not mean that counsel shall go without compensation as the case progresses, because they cannot afford to, but still these intermediate allowances will always be small, and will not be in the way of a determination of what the services up to that time are really worth, or what they should be at the final disposition of the case. They will be simply in view of the necessities, so to speak, of counsel pending litigation; and while the master in this case recommends an allowance of $6,000, the order will be that these gentlemen be paid $2,000 on account. The matter will then stand over until we come to the final disposition of the Wabash case, and then all fees and claims will be presented, and it will be seen whether there are funds enough in the Wabash road to pay expenses.' 998 Where before his appointment a receiver had received rent paid to him in his individual capacity in advance, he was obliged to apportion the rent, and to account for so much of it as was paid for the time during which he acted 5 Adams v. Woods, 8 Cal. 306. Central Trust Co. v. Wabash, St. L. & P. Ry. Co., 23 Fed. R. 675; Bound v. South Carolina Ry. Co., 43 Fed. R. 404. 7 Stuart v. Boulware, 133 U. S. 78. 8 Central Trust Co. v. Wabash, St. L. & P. Ry. Co., 23 Fed. R. 675. as receiver of the property, for the use of which the rent was paid. Exceptions should not be taken after a master's report upon a receiver's accounting has been filed, the master acting in the place of the court in a judicial and not in a ministerial capacity." Should the receiver or any other party to the accounting feel aggrieved at a ruling of the master, he should take an exception at the time," and subsequently petition the court to refer the matter back to the master for correction.12 The court's duty upon such a petition consists in reviewing the principles and rules adopted and followed by the master in allowing the receiver's accounts, rather than in examining the items of the account in detail, or the evidence upon which those items are severally founded; the latter duty belonging more especially to the province of the master acting in his judicial capacity, analogous to the province and duty of a jury on questions of fact.13 In a proper case, the receiver, as well as any other party interested, may appeal to the Supreme Court from the final decree entered after his accounting.14 § 258. Compensation of Receivers. The compensation of a receiver is usually fixed in the first instance by the master.1 with whose determination the court will not ordinarily interfere.2 The compensation will rarely, if ever, be increased upon appeal.3 Where the court has fixed a receiver's compensation in advance, it has the power to award him an additional sum for extraordinary labors. Concerning the rules regulating the amount of a receiver's compensation, Mr. Justice Bradley said: "It would hardly be a proper rule for governing the case, to inquire what another even competent person would have been willing to do the work for. The receiver's office is not put up at auction. His compensation is not fixed on that principle at all. The 9 In re Allin, 8 Fed. R. 753. 10 Cowdrey v. Railroad Co., 1 Woods, 331, 334. 11 Cowdrey v. Railroad Co., 1 Woods, 331, 333. § 258. 1 Cowdrey v. Railroad Co., 1 Woods, 331, 341; Central Trust Co. v. Wabash, St. L. & P. Ry. Co., 32 Fed. R. 187. 2 Cowdrey v. Railroad Co., 1 Woods, 12 Cowdrey v. Railroad Co., 1 Woods, 331, 341; Central Trust Co. v. Wabash, 331. 18 Cowdrey v. Railroad Co., 1 Woods, 331, 334. 14 Hinckley v. Gilman C. & S. R. R. Co., 94 U. S. 467; Hinckley v. Railroad Co., 100 U S. 153; Hovey v. McDonald, 109 U. S. 150. VOL. I. 29 St. L. & P. Ry. Co., 32 Fed. R. 187. 3 Hinckley v. Railroad Co., 100 U. S. 153; Stuart v. Boulware, 133 U. S. 78. 4 Farmers' L.&Tr. Co. v. Central R. R. of Iowa, 8 Fed. R. 60. 5 chancellor selects a person whom he regards as competent and trustworthy, and the amount of compensation is graduated somewhat by the duties and somewhat by the responsibilities of the situation." In cases of moderate amount, a commission of five per cent upon the receipts and disbursements is not unusual. Where the amounts received and disbursed are large, it is customary to pay the receiver a salary or a lump sum graduated according to the amount of his time employed, the value of the property, the difficulty of his task, and the success of his administration. It has been said that the peculiar duties and responsibilities and accountability of a receiver of a railroad entitle him to a larger amount than would be demanded by the head officer of a railroad of the same size and business. Accordingly, receivers of railroads have been frequently allowed as much as $10,000 a year;9 and in one case two receivers were each allowed $70,000 for three and a half years' work.10 In a late case $4,500 a year to each of two receivers was considered adequate compensation.11 In one case the same man had twice been appointed receiver of the same railroad. Firstly, in a stockholder's suit which remained in a State court, and secondly, in a bondholder's suit which was removed into a Federal court. The stockholder's suit was stricken from the docket; and the bondholder's suit pushed toward a determination. A dispute arose as to the compensation of the receiver. This was determined against him by the Circuit Court, and affirmed upon appeal by the Supreme Court of the United States, he being thus obliged to pay into court the amount thus decreed as due from him.12 He then had the stockholder's suit reinstated in the State court and obtained a reference to a master who reported 5 Cowdrey v. Railroad Co., 1 Woods, 331, 345, 346. Approved by Brewer, J., in Central Trust Co. v. Wabash, St. L. & P. Ry. Co., 32 Fed. R. 187, 188. See also Williams v. Morgan, 111 U. S. 684. 6 Cowdrey v. Railroad Co., 1 Woods, 331, 346; Day v. Croft, 2 Beav. 488. 7 Cowdrey v. Railroad Co., 1 Woods, 331, 346; Farmers' L. & Tr. Co. v. Central R. R. of Iowa, 8 Fed. R. 60; Central Trust Co. v. Wabash, St. L. & P. Ry. Co., 32 Fed. R. 187. 8 Bradley, J., in Cowdrey v. Railroad Co., 1 Woods, 331, 347. Approved by Brewer, J., in Central Trust Co. v. Wabash, St. L. & P. Ry. Co., 32 Fed. R. 187, 188. 9 Hinckley v. Railroad Co., 100 U. S. 153; Cowdrey v. Railroad Co., 1 Woods, 331, 347. But see Farmers' L. & Tr. Co. v. Central R. R. of Iowa, 8 Fed. R. 60. 10 Central Trust Co. v. Wabash, St. L. & P. Ry. Co., 32 Fed. R. 187. 11 Easton & Houston & T. C. Ry. Co., 40 Fed. R. 189. 12 Hinckley v. Railroad Company, 100 U. S. 153; In re Hinckley, 3 Fed. R. 556. . |