upon the power of the court to put its receiver into possession. of the property; and if the property is already in the lawful control of one court, it will not be taken by another. Therefore as between the State courts and the Federal courts in the State, the court first obtaining possession of the property through its receiver will not be disturbed by the other. But though no receiver will be appointed if there are no assets, yet if an execution against a foreign corporation is returned nulla bona, a receiver may nevertheless be appointed, if it be shown that the corporation has fraudulently disposed of property within the State which a receiver might recover.10

§ 792. Receiver for corporation chartered in two States.

Where a corporation is chartered in two or more States, a receiver may be appointed in one of the States for the whole corporation. But the right of such a receiver as principal receiver is not necessarily recognized in the other States. Thus Judge Woods in the Circuit Court of the United States appointed a receiver for the entire line of the Atlantic and Richmond Railway, a corporation of Georgia, South Carolina, and North Carolina, and said that the courts of the other jurisdictions ought to aid him in getting possession of the whole road; but a receiver appointed by a Georgia state court refused to turn over that part of the road in his possession, and an injunction to compel him to do so was refused.12 In Atkins v. Wabash, St. Louis & Pacific Railway, 13 the bondholders brought a bill in the United States Circuit Court for the District of Illinois to foreclose a mortgage on the part of the road in Illinois. The application was resisted on the ground

Shields v. Coleman, 157 U. S. 168, 39 L. ed. 660; Merchants' & P. N. Bank v. Masonic Hall, 63 Ga. 549.

10 Dreyfuss v. Seale, 55 N. Y. S. 1111, 37 App. Div. 351. See also Bates v. International Co., 84 Fed. 518.

11 Ellis v. Boston, H. & E. Ry., 107 Mass. 1; McElrath v. Pittsburgh & S. R. R., 55 Pa. 189.

12 Wilmer v. Atlanta & Richmond Ry., 2 Woods, 409, Fed. Cas. No. 17,775 13 29 Fed. 161.

that the Circuit Court for the District of Missouri had appointed receivers for the whole line, and had thereby acquired exclusive jurisdiction; but Judge Gresham granted the foreclosure.

In a recent case it was held in the Circuit Court for the Eastern District of Louisiana that a Federal court could appoint a receiver for the corporation of another State which had complied with the local law as to doing business, and that this receiver would not be merely ancillary, but would be the principal receiver.14 It seems difficult to sustain the decision. on the last point, even though the corporation had voluntarily appeared in the suit, and its chief business was in that State, and it did no business at all in the State of charter.

$793. Recognition of foreign receiver.

The decrees of a court have proprio vigore no extraterritorial effect. So a receiver who owes his authority to a court of equity cannot of right demand any recognition abroad. The leading case on this point is Booth v. Clark.15 Booth was appointed receiver in New York of the effects of Clark after a judgment obtained by one Camara had been returned unsatisfied. As such receiver he sued in the Circuit Court for the District of Columbia for the possession of a sum of money which had been awarded to the debtor Clark. His suit was contested by the assignee in bankruptcy, Clark having been adjudged a bankrupt in New Hampshire subsequently to the appointment of Booth as receiver. Mr. Justice Wayne in delivering the opinion of the court stated the question for decision to be whether a receiver "as an officer of a court of chancery, for a particular purpose, will be recognized as such by a foreign judicial tribunal, and be allowed to take from the latter a fund belonging to a debtor, for its application to the payment of a particular creditor within the jurisdiction of the receiver's appointment, there being other creditors in the jurisdiction in which he now sues, contesting his right to do so. 14 Lewis v. Am. Naval Stores Co., 119 Fed. 391.

15 17 How. 322, 15 L. ed. 164.

Or can he as receiver claim, in virtue of a decree upon a creditor's bill given in one jurisdiction, a right to have the judgment upon which the creditor's bill was brought, paid out of a fund of a bankrupt debtor in a foreign jurisdiction, because his appointment preceded the bankrupt's petition."

In passing upon this question he says: "He has no extraterritorial power of official action; none which the court appointing him can confer, with authority to enable him to go into a foreign jurisdiction to take possession of the debtor's property; none which can give him, upon the principle of comity, a privilege to sue in a foreign court or another jurisdiction, as the judgment creditor himself might have done, where his debtor may be amenable to the tribunal which the creditor may seek."

Therefore if a receiver is appointed both in the State where the property is situated and also in the State of charter, the former will keep the property.16 A receiver of the State of charter may however always apply to the courts of another State in which there are assets for an ancillary appointment there, and the granting of the petition is within the discretion of the court.17

§ 794. Authorities forbidding suit by foreign receiver.

The last clause of the opinion just quoted has often been cited as authority that under no circumstances can a receiver be accorded any recognition whatever in a foreign jurisdiction. The language taken by itself might bear such a meaning; but it is to be borne in mind that the court was dealing with the demand of one creditor to have his claim satisfied in full out of a fund intended for equal distribution among all the creditors. There are, however, to be found expressions, based on a misapprehension of this

16 Levasseur v. Mason, [1891] 2 Q. B. 73; Whinney v. Gardner, 10 Juta (Cape Col.), 333; In re New Zealand Mid. Ry., 19 New Zealand, 227.

17 In re Free State Colliery Co., 12 Cape L. J. 309 (Orange Free State); In re New Zealand Mid. Ry., supra.

opinion, to the effect that a foreign receiver cannot under any circumstances be recognized; 18 and the same has been held with reference to the trustee of a foreign corporation appointed by a court of the State of charter; 19 and a receiver appointed by a Federal court in Wisconsin was even refused recognition in a Federal court in New York, on the ground. that he was a foreign receiver.20

It is to be noted that a receiver appointed under the general equity powers of the court "merely as its hand to assist it in realizing rights of action which vested, not in the receiver, but in the creditors," 21 which was the case in Booth v. Clark, differs from a receiver often appointed under a statute, who takes title as assignee. In several jurisdictions a receiver who has no legal interest in the property cannot proceed in his own name in a foreign State. 22

§ 795. Authorities permitting suit by foreign receiver.

In spite of these authorities, it is generally held that if no domestic creditor, or one as favorably regarded, is prejudiced thereby a foreign receiver as such will be given a standing in court. Usually no distinction appears to be made between different kinds of receivers; but in States where such a distinction is made, the receiver who has title will be given this

18 Hazard v. Durant, 19 Fed. 471; Day v. Postal Tel. Co., 66 Md. 354; Farmers' & M. Ins. Co. v. Needles, 52 Mo. 17; Hope Mut. L. Ins. Co. v. Taylor, 2 Rob. (N. Y.) 278; Warren v. Union Nat. Bk., 7 Phila. (Pa.) 156; Commercial Nat. Bk. v. Matherwell Iron, etc., Co., 95 Tenn. 172, 31 S. W. 1002; Moreau v. Du Bellet, (Tex. Civ. App.) 27 S. W. 503; Sparks v. Estabrooks, 72 Vt. 101, 47 Atl. 394; Filkins v. Nunnemacher, 81 Wis. 91, 51 N. W. 79. 19 Ayres v. Seibel, 82 Iowa, 347, 47 N. W. 989 (but see Wyman v. Eaton, 107 Ia. 214, 77 N. W. 865).

20 Brigham v. Luddington, 12 Blatch. 237, Fed. Cas. No. 1874. See Olney v. Tanner, 10 Fed. 101. Contra, Peters v. Foster, 56 Hun, 607, 10 N. Y. S. 389.

21 Hale v. Tyler, 104 Fed. 757.

22 Hazard v. Durant, 19 Fed. 471; Hale v. Hardon, 95 Fed. 747; Hilliker v. Hale, 117 Fed. 220; Wigton v. Bosler, 102 Fed. 70; Hale v. Tyler, 104 Fed. 757; Hayward v. Leeson, 176 Mass. 310, 57 N. E. 656. See Hale v. Allinson, 188 U. S. 56, 47 L. ed. 380.

privilege.23 So a foreign receiver may sue to have a fraudulent conveyance of land set aside,24 and to recover possession of property fraudulently or feloniously removed from the State.25 So a foreign receiver may prove in bankruptcy; 26 and in a State where the assignee of a chose in action sues in his own name, the assignee of a foreign receiver may sue.27

So in Ohio a foreign receiver appointed at the request of the trustees under a mortgage was allowed to sue for property temporarily in Ohio and covered by the mortgage.28 The aid of the court will be extended to a foreign receiver seeking to obtain possession of the property fraudulently withheld by the officers of the corporation.29 So if the receiver has taken possession of the property of the corporation and in the discharge of his duties takes it into another State,

23 Rogers v. Riley, 80 Fed. 759; Kirtley v. Holmes, 107 Fed. 1; Lewis v. Amer. Naval Stores Co., 119 Fed. 391; Boulware v. Davis, 90 Ala. 207, 8 So. 84, 9 L. R. A. 601; Patterson v. Lynde, 112 Ill. 196; Higbee v. Peed, 98 Ind. 420; Metzner v. Bauer, 98 Ind. 425; Wyman v. Eaton, 107 Ia. 214, 77 N. W. 865 (semble); Winans v. Gibbs & S. M. Co., 48 Kan. 777, 30 Pac. 163; Johnston v. Rogers, 19 Ky. L. Rep. 1272, 43 S. W. 234; McAlpin v. Jones, 10 La. Ann. 552; Castleman v. Templeman, 87 Md. 546, 40 Atl. 275; Howarth v. Lombard, 175 Mass. 570, 56 N. E. 888; Comstock v. Frederickson, 51 Minn. 350, 53 N. W. 713; Glaser v. Priest, 29 Mo. App. 1; Bidlack v. Mason, 26 N. J. Eq. 230; National Trust Co. v. Miller, 33 N. J. Eq. 155; Sobernheimer v. Wheeler, 45 N. J. Eq. 614, 18 Atl. 234; Hurd v. Elizabeth, 41 N. J. L. 1; Willitts v. Waite, 25 N. Y. 577; Howarth v. Angle, 162 N. Y. 179, 56 N. E. 489; Runk v. St. John, 29 Barb. (N. Y.) 585; Merchants' Nat. Bank v. McLeod, 38 Oh. St. 174; Lycoming Ins. Co. v. Wright, 55 Vt. 526; Swing v. Bentley & G. F. Co., 45 W. Va. 283, 31 S. E. 925; Swing v. Parkersburg, V. & P. Co., 45 W. Va. 288, 31 S. E. 926. See Hoyt v. Thompson, 5 N. Y. 320; Kirwan Mfg. Co. v. Truxton, 1 Penn. (Del.) 409, 44 Atl. 427. On this ground a foreign receiver was not allowed to bring suit against the corporation for the appointment of an ancillary receiver; since such appointment was unnecessary. Mabon v. Ongley Elec. Co., 156 N. Y. 196, 50 N. E. 805.

24 Runk v. St. John, 29 Barb. (N. Y.) 585.

25 McAlpin v. Jones, 10 La. Ann. 552; see also Bates v. International Co., 84 Fed. 518.

26 Ex parte Norwood, 3 Biss. 504, Fed. Cas. No. 10,364.

27 Hoyt v. Thompson, 5 N. Y. 320.

28 Bank v. McLeod, 38 Oh. St. 174.

29 Bidlack v. Mason, 26 N. J. Eq. 230.