The result of the proceeding in equity was an injunction against the enforcement of the judgment upon the verdict of April term, 1895, upon the condition of a new trial of the law case. This latter case was heard in December, 1897, and during the trial a compromise was reached, resulting in a verdict for Threadgill of $6,000. The counsel for Mr. Rufe, who were present at this trial, taking no part therein, but watching the interests of their client, were consulted by counsel for Threadgill before the latter would consent to the compromise. After the compromise was concluded and communicated to the court, the presiding judge instructed the jury to find a verdict for plaintiff for $6,000. Before the verdict was rendered by the jury, counsel for plaintiff, Threadgill, asked the presiding judge "to direct that the verdict, whatever it might be, when rendered by the jury, was for the use of P. Rufe, a creditor of Threadgill, subject to a lien for counsel fees." Counsel representing the Commercial Bank objected to this, and, after discussion, the presiding judge ordered that a memorandum of the statement of Threadgill's counsel be made upon the record.

Threadgill had entered into a contract with his attorneys before the trial, fixing their compensation, at all events, at $10,000. Of their own accord they reduced their fees to $2,000. This amount, with the consent of all parties, without prejudice, has been paid. There remains the sum of $4,000. This last-named sum is the subject-matter of the case before us.

The Commercial Bank of Lynchburg filed its bill, claiming that under assignment from Threadgill they are entitled to the remainder of this judgment, and it prayed that it may be so decreed. To this bill Thomas C. Platt, Charles M. Blackford, survivor of Kirkpatrick & Blackford, who were Threadgill's attorneys, F. M. Threadgill, and P. Rufe are parties defendant. Mr. Platt answers, admitting that he has in hand to pay on this judgment the sum of $4,000, and asks leave to pay this sum into court, and thereupon he disclaims all interest in the suit. Mr. Blackford also disclaims. Mr. Threadgill answers, recognizing Rufe as entitled to the fund by reason of the occurrence at the trial. Rufe claims the fund as under assignment from Threadgill, who, as he claims, began and conducted the suit for his use. The cause, being at issue, was heard by the court below on the pleadings and testimony, and after argument. The decree is wholly in favor of complainant, who is held entitled to the fund. All the defendants but Mr. Rufe are dismissed from this suit. He has been allowed an appeal. The case comes here on exceptions.

Beverley T. Crump and F. S. Kirkpatrick, for appellant.
Randolph Harrison, for appellee.

Before SIMONTON, Circuit Judge, and BRAWLEY and WADDILL, District Judges.

SIMONTON, Circuit Judge (after stating the facts as above). Both parties in this appeal claim under F. M. Threadgill. It is evident that Threadgill, up to the trial in December, 1897, had made no assignment of his claim against the express company to Rufe. He had professed and promised, and was liberal in expressions of future intentions. But no act was done carrying the professions, promises, and intention into effect. This is manifest from the let ter of Mr. Blackford of 21st September, 1897, and by Mr. Rufe's own action of attachment in New York. "An agreement to pay out of a particular fund, however clear in its terms, is not an equitable assignment. A covenant in the most solemn form has no greater effect. The phraseology employed is not material, provided the intent to transfer is manifested. Such an intent and its execution are indispensable. The assignor must not retain any control over the fund, any authority to collect, or any power of revocation. If he

do, it is fatal to the claim of the assignee. The transfer must be of such a character that the fund holder can safely pay, and is compellable to do so, though forbidden by the assignor." Christmas v. Russell, 14 Wall. 69, 20 L. Ed. 762; Removal Cases, 100 U. S., at page 477, 25 L. Ed. 600; Story, Eq. Jur. § 1035a, note 1.

The course taken by Threadgill's counsel at the trial, in December, 1897, just before verdict rendered, would have vested the ver dict in Rufe, if it were then under the control of Threadgill, or if he had not assigned it to some one else. This depends upon the right of the bank. Their case is this: After repeated declarations and promises from Threadgill, with regard to the protection of the debt to the bank out of the express company's claim, he executed the instrument set out above. That instrument, dated January 22, 1897, consists of three parts. It appoints Mr. Charles M. Blackford his attorney in fact, as well as at law, to collect from the United States Express Company the amount of the judgment of April term, 1895, of $54,371. And this power of attorney is declared irrevocable. It thus transfers from Threadgill the dominion and power over the judgment, and vests these absolutely in Mr. Blackford. It then declares the interest coupled with the power which made the latter irrevocable. It makes it the duty of the said Charles M. Blackford, upon collecting the judgment, or so much thereof as may be collectible, first to pay the late firm of Kirkpatrick & Blackford their fee as per contract, next to pay the Commercial Bank of Lynchburg the fixed sum of $8,259 and interest thereon, and next any sums the bank may have paid on life policies of said Threadgill. It thus constituted Mr. Blackford a trustee for these purposes. And, finally, it declares that this assignment shall in no wise control the judgment of that legal firm in the management of the case, or in their power to compromise it, which they had before this assignment was made. Thus, the attorney was invested with an interest in the judgment itself, with the power to control it. This being the case, the instrument operated as an assignment. As is said in Hunt v. Rousmanier's Adm'rs, 8 Wheat. 205, 5 L. Ed. 597:

"If the interest passes with the power, and vests in the person by whom the power is to be exercised, such person acts in his own name. The estate, being in him, passes from him by a conveyance in his own name. He is no longer a substitute acting in the place and name of another, but is a principal acting in his own name, in pursuance of the powers which limit his estate."

See, also, Taylor v. Benham, 5 How. 269, 12 L. Ed. 147.⚫

It is contended that the irrevocable power of attorney did not give Mr. Blackford any interest in the judgment, but only in the proceeds of the judgment. The judgment is nothing but the adjudication of the court in respect to the cause of action. McNulty v. Hurd, 72 N. Y. 521. It furnishes the means of enforcing the collection of the debt. "It is impossible to separate them. The judg ment would be barren, nor can we conceive of its existence without the debt." Pattison v. Hull, 9 Cow. 747. The debt is the principal thing. By whatever terms the assignment was made, if the debt passed all rights and remedies for its collection also passed with it. The right to the debt, as evidenced by the judgment

against the defendants, cannot exist in the hands of different persons. One cannot hold the judgment, and another the debt. They are inseparable. Bolen v. Crosby, 49 N. Y. 183. So, when the instrument passed the whole sum evidenced in the judgment, and devoted it, in the hands of Mr. Blackford, to certain specified uses, with that passed also "all the rights and remedies for its recovery and collection"; that is to say, the judgment and its incidents. See, also, Institute v. Kauffman, 18 Wall. 154, 21 L. Ed. 776. In Hunt v. Rousmanier's Adm'rs, the borrower agreed to secure the lender. To this end a power of attorney was executed by the borrower, authorizing the lender to sell two vessels, property of the borrower, and to apply the proceeds of sale to his debt. The question was, was it such a security as was agreed upon? The court held that it did operate as a security, and that it was as complete as a mortgage would have been, only not as safe; this because, not being irrevocable, the death of the borrower would revoke it. So the power of attorney operated as an assignment. The circumstances of the case at bar strengthens this view. Threadgill, being indebted to the bank, had made repeated promises, and had as repeatedly declared his intention, to secure it by this judgment. So strong were his assurances that the bank officers speak of it as a complete understanding to this effect. Finally, he is induced to act, and, carrying out his promises, he executes this instrument. Its language denotes its purpose. Twice in the paper itself it is spoken of as "this assignment." When the instrument was executed, Mr. Kirkpatrick, one of his attorneys, was present, strongly objecting to it, and doing everything he could to prevent Threadgill from executing it. He realized its effect on Rufe's claim, and he believed that Threadgill was bound to protect Rufe. however, declared that he had pledged his word as a Christian gentleman to carry out his verbal contract with the bank when called on to do so, and that whether it ruined Mr. Rufe or himself or the express company or anybody else he was going to carry out his pledge to the bank, and thus he signed the paper.

Threadgill,

This instrument, therefore, being an assignment, what is its effect? Was it defeated because the judgment of April term, 1895, was set aside, and another judgment obtained on the same cause of action, the judgment under which $6,000 was recovered? At the time this power was executed, the judgment recovered in April, 1894, was in great jeopardy. It was threatened by two formidable modes of attack,-the writ of error in the supreme court, and the bill in equity in the circuit court. Threadgill's counsel, in a letter written in 1896, speaking of it, says that Threadgill incurs a strong chance of losing the greater part, and possibly every dollar, of his claim. For this reason, manifestly, the last clause was inserted in the power of attorney reserving to these gentlemen their full power of managing the cause and of compromising the same. The assignment of the judgment carried with it the claim which was the cause of action. George v. Tate, 102 U. S. 564, 26 L. Ed. 232; Pattison v. Hull, 9 Cow. 747. "The assignment of a judgment which was void, because in excess of the jurisdiction of the court, has been

held to transfer the debt for which the judgment was entered. And it seems that the assignment of a judgment necessarily carries with it the cause of action on which it is based, together with all the beneficial interest of the assignor in the judgment and all its incidents." Freem. Judgm. (Ed. 1886) § 431; Brown v. Scott, 25 Cal. 189. This being so, no act of Threadgill taken after the execution could affect the rights of the bank, nor can the declaration of his attorneys, made in open court, have any effect, that the proceeds of the verdict then about to be taken were the property of Rufe. They could only have done this under instructions from Threadgill.

It has been suggested that the last clause in the power of attor ney saving to Messrs. Kirkpatrick & Blackford the right to exercise their judgment in the management of the said cause, and the same power to compromise the same which they had before this assignment was made, in effect nullified the preceding parts of the instrument, and gave them full power to compromise by paying Rufe, and disappointing the bank. Even if the construction of this clause was doubtful, such a construction would violate the rule, "Ut res magis valeat, quam pereat." It would defeat the purpose of the instrument altogether, and operate a fraud on the bank. But the clause is not of doubtful construction. The judgment was seriously threatened by two formidable modes of attack. Messrs. Kirkpatrick & Blackford were uncertain-perhaps, we may say, were apprehensive of the result. Experienced and able management of the cause -of the whole cause, and not of this incident only-was necessary. Who could better be intrusted with this management than these able counsel? In its result Threadgill, these gentlemen, and the bank were vitally concerned. Therefore there was to be no change of counsel in meeting the dangers of the future. They retained a power to compromise, because, from the circumstances surrounding the cause, a compromise was inevitable, perhaps was necessary, in order to escape total defeat. But what sort of a compromise? Clearly, it must be one affecting the interests of those interested in the cause and its judgment,—a sacrifice of a part of their interest to secure the rest of it, not an abandonment or destruction of it, or a transfer of it to some one else. Mr. Blackford was, to all intents and purposes, a trustee for the bank. He could never have entertained the idea of taking their interest and of giving it to another.

It has been finally suggested that inasmuch as the verdict was only for $6,000, and as Kirkpatrick & Blackford had the first lien on it for a fee of $10,000, they had the right, if they chose, to give a part of their verdict to Rufe. But the record shows that these gentlemen, with great generosity, voluntarily reduced their claim to $2,000, leaving the remainder to be disposed of as right should appear. This ends the contention on that point. The decree of the circuit court is affirmed, each party paying his own costs in this court.

GREENE V. STAR CASH & PACKAGE CAR CO.

(Circuit Court, D. Connecticut. January 30, 1900.)

ANCILLARY RECEIVERS-APPOINTMENT.

An order making an ex parte appointment of G. as ancillary receiver of a corporation will be vacated, there not only being no suit pending in the jurisdiction making the appointment, but the appointment being on application of G., alleging his appointment as receiver in the federal court for another district, in a suit by L., and relief being sought in such suit, not by G., but by L. only, and G. having been appointed receiver therein after counsel claiming to represent the corporation, and desiring to be heard on its behalf, had been informed by the clerk of such court that no such suit had been instituted.

Henry C. White, for complainant.
Brown & Perkins, for defendant.

TOWNSEND, District Judge. On motion to vacate an order, granted ex parte, appointing Gardiner Greene, of Connecticut, ancillary receiver on his own application, wherein he alleged his ap pointment as receiver in the circuit court of the United States for the district of West Virginia, in a suit brought by Wilbur F. Lakin for the dissolution of the defendant corporation. The case relied on by counsel for Greene, opposing the motion, is Platt v. Railroad Co. (C. C.) 54 Fed. 569, where the court said as follows:

"In Mercantile Trust Co. v. Kanawha & O. Ry. Co. (C. C.) 39 Fed. 337, Justice Harlan and Judge Jackson held, in a formal opinion, that the circuit courts of the United States cannot take jurisdiction of a bill whose only purpose is an ancillary receivership; but in other districts such bills have been frequently entertained and acted upon, generally, if not always, on ex parte proceedings, and without argument. The same has been done ex parte on several occasions in this court. We will at present follow this practice; stating, however, that this is without prejudice to a full consideration of the question if hereafter a motion is made to dissolve or annul the order."

On the other hand, the opinions of Mr. Justice Harlan in Mercantile Trust Co. v. Kanawha & O. Ry. Co., supra, and of Judge Wellborn in Re Brant (C. C.) 96 Fed. 257, are to the effect that a court has no jurisdiction to appoint a receiver, except in a pending suit. In the latter case the authorities are cited, collected, and discussed. It is not necessary, in the disposition of this motion, to pass on the question raised in the above-cited cases. Here not only is no suit pending in this jurisdiction, but the application for appointment of the ancillary receiver is not made by Lakin, the only party seeking relief in the circuit court in West Virginia. This bill is filed by the receiver appointed in that suit, who is merely an officer of the West Virginia court, who is not aggrieved, and who is not seeking any relief. It appears that the questions relating to the organization of this corporation, the status of its officers, and the ownership of its property, have long been the subject of litigation in the courts of this. state, and that, shortly after the state court had found that said Lakin was acting collusively in certain suits affecting the property of the corporation in Connecticut, he instituted said suit in the circuit court of West Virginia, and this petitioner was appointed receiver therein, after counsel claiming to represent the said corpora