ed by leave of the court. His seizureis show cause why an attachment should a contempt of the order of the court, not be issued against Sheriff Young and subjects him and his assistants and others, parties in the writ, and asto punishment and restoration of the sistants, for contempt of the court, in property. bringing an action against the receiver, Even though the title of a claimant and interfering with the possession of may be paramount to that of a re ceiver appointed by a court of property in his hands. equity, yet he will be quilty of con Held The possession of a receiver of tempt if he asserts his rights by tak- the property embraced in the order of ing possession, or by instituting an action without leave of the court. On the 9th day of June last, at the intance of bondholders securd by mortgages, executed by the Hancock Steel and Iron Company, the court appointed B. K. Rhodes, Esq., receiver of the rents and profits of the mortgage estate, consisting of a rolling mill, rolls, machine shop and other property. Owing to embarassments of the company, and depression in the iron trade, the works were not in operation, but fully equipped for business. There were at the time several rolls for making railroad iron on the premises. Some of them were finished, except the groove which shapes the rails in manufacturing railroad iron; others were in the rough. None of them had been in actual use, but all were made as duplicates to supply the place of those in use, in case of breaks or other necessity for a change. his appointment is the possession of the court: any attempt to disturb that possession without leave of the court is a contempt of the court. A sheriff who seizes goods in possession of a receiver, after notice, is not protected by the process in his hands, unless it is issued by leave of the court. When a party claims title paramount to that of a receiver, he must apply to the court for leave to proceed, to assert his right, notwithstanding the appointnient of a receiver. Where the property is legally in the possession of the receiver, it is the duty of the court to protect such possession, not only against violence, but also against suits at law. Whereupon it is ordered and adjudged that the defendants pay the costs of this rule. Also, that they return the said property to the premises whence it was taken within five days. On the 6th day of January last a writ When possession is fully restored, the of replevin was placed in the hands of receiver is directed to retire therefrom, Sheriff Young, at the suit of Jacob W. in order that the respective claimants Moyer and others, against the receiver. may assert their legal rights against This writ was executed by the sheriff each other. It is further ordered that against the protest of the receiver, and no further proceedings be had in the six of the nine rolls were taken and car- suit in replevin. Attachments ordered; ried away as personal property, which parties to be released on compliance had been sold at constable sale to the with this order. plaintiffs. At the February Term a rule was obtained in behalf of the receiver to Opinion by Elwell, P. J. RECEIVER OF NATIONAL BANK Dunning, Edsall & Hunt for respt. Held, The receiver was not an officer Ocean National Bank, respt, v. Selah of this or of any other court. C. Carll, applt. appointed by the Comptroller of the Currency under section 50 of the Na Decided March 31, 1876. The Supreme Court has no jurisdic- tional Currency Act, and as such was tion to direct a receiver appointed the agent or officer of the Comptroller, under Section 50 of the National clothed with the powers and duties Currency act, who is not a party to specially conferred by the act of Conthe record, to pay over moneys in his hands to a judgment creditor of the gress. bank over which he is appointed receiver. Such receiver being under the control of the Comptroller of the Currency, such judgment creditor should present his claim to the Comptroller of the Currency for payment. Appeal from order of Special Term denying defendant's motion that the receiver of the Ocean National Bank, (the plaintiff,) pay out of the money in his hands the judgment in favor of the defendants for costs in this action. It seems to us very clear, under the provisions of the act referred to, that no order can be made by this court directing the receiver to pay the costs of the judgment against the bank; first, because the court has not jurisdiction of the receiver in a case in which he has not been made a party to the record, to make such an order; secondly, because the receiver has no power to pay out the moneys collected by him for the purpose of extinguishing the judgment, inasmuch as his duty is to pay the same into the treasury of the United States, subject to the order of the Comptroller. The demand upon him is therefore nugatory. The action was commenced in this Court by the Ocean National Bank, in December, 1870, and has been continued in the name of such bank. On the second trial thereof, which took place December 24th, 1874, the plaintiff's complaint was dismissed with his claim to the Comptroller of the costs, and judgment was entered against Currency for payment out of the prothe Ocean National Bank for such ceeds received by him. costs. The defendant shonld have presented We do not intend, in deciding the On the 15th of December, 1871, motion, to determine what power the Theodore M. Davis was appointed by courts may possess if the receiver had the Comptroller of the Currency, under brought the action, or had been made section 50 of the National Banking a party to the record and prosecuted Act, receiver of said bank, and under the same after his appointment in his that appointment took possession of the own name as such receiver. assets of the bank, and had in his hands money sufficient to satisfy the judgment. The bank is insolvent. Prior to making this motion, the defendant's attorney requested the receiver to pay the judgment, which he refused to do The motion was denied. The only question now determined is that upon the state of facts presented upon the motion, the defendant was not entitled to the order sought for. The order must be affirmed with $10 costs and disbursements. Opinion by Davis, P. J.; Daniels and Brady, J. J., concurring. Upon these two grounds the court, at the trial, dismissed the complaint. In an action against the City of New Held (as to the first objection), That York to recover the contract price of material actually delivered to and as chapter 381, Laws of 1865, as amendused by the defendant, for the con- ed by chapter 551, Laws of 1866, construction of sewers, which contract ferred directly upon the Croton Acquewas made with the Commissioners duct Board the power to contract in of Public Works, in April, 1871, it is no defence that there was no ordi nance of the common council authorizing the contract, or other proof that the commissioner was authorized by defendant to make the contract. That although the contract was illegal by reason of creating an indebtedness beyond what was authorized by law, it was competent for the legislature to legalize it, and it has been so legalized. pursuance of law for such materials used in the construction of sewers, and in such quantities as they might deem proper, and no action of the common council was required; and as this power was, by the charter of 1870, transferred to the commissioner of public works, the objection was not available; that the expression "contract in pursuance of law" does not refer to any acIt seems that in case such a contract is tion of the common council, but to the illegal, that the contractor is not with out his remedy, where the city has manner of making the contract, which received and used the property. In was provided for by section 3, of chapsuch a case there is, independent of ter 381, Laws of 1865. the contract, an implied obligation to to pay its value. This action was brought to recover a balance due on a contract for furnishing sewer drain-pipes, &c. The contract was made April 29, 1871, between plaintiff and the commissioner of public works, acting for the defendant. The materials were furnished pursuant to the contract, and accepted and used by defendant to the amount of $181,835, and the necessary certificates to entitle plaintiff to payment for $127,284 had been give and $51,550 remained due and unpaid. The defendants alleged: As to the second ground of non suit, Held, That as under the provision of the charter of 1857, (chap. 446, Laws of 1857) which was in force when the Act of 1866 was passed, no expense could be incurred unless there was an appropriation previously made covering it, which provision was re-enacted in the charter of 1870, and was repeated in the amendments of 1871 (101, chap. 574, Laws of 1871), which latter act was in force at the time the contract in question was executed, and as by said act of 1866 the issue of bonds for the purposes of the act was restricted to $100,000, the con tract purported to create an indebtedness beyond what was authorized by law, and was invalid. But that, although when the contract was made it was illegal, because the expense incurred was in excess of the appropriation, it was within the power of the legislature subsequently to validate it, and that this was done by the act of 1872 (§ 8, chap. 872), authorizing the comptroller, in addition the amounts authorized by then existing laws to issue bonds to the amount of $100,000 annually, to be applied to the payment of "expenses incurred in the construction of sewers already built," &c., and to reimburse advances made under the said acts of 1865 and 1866; and as before the commencement of the action the comptroller had been authorized to issue bonds to more than the amount necessary to pay plaintiff's claim, he had a right to maintain his action. It seems, also, that it does not follow that because such a contract was illegal that the contractor is without remedy, when the city has received and used the property obtained under it. In such case, independent of the contract, there is an implied obligation to pay the value of the property. Judgment of General Term affiming a dismissal of the complaint at Circuit reversed, and new trial granted. Opinion by Rapallo, J. RECEIVER. ENGLISH HIGH COURT OF JUSTICE. Edwards v. Edwards. Decided December 16, 1875. Where, on motion for a receiver, an order is made that a named person on giving security be appointed re ceiver, the appointment takes effect from the date of the order; "and therefore where, after such an order, and before the receiver so appointed perfected his securities, certain execution creditors who had not received notice of the appointment put the sheriff in possession of the goods over which the receiver was appointed: Held, That immediately on notice being given of the appointment the sheriff ought to have been withdrawn. This suit was instituted by bill filed on the 26th of July, 1875, for the purpose of realizing a security consisting in part of an unregistered bill of sale of the trade effects of a printing business. The plaintiffs were the acting executors under the will, dated the 31st of January, 1870, of Frederick Howarth Edwards, who died on the 17th of December, 1872. The testator, by a deed of the 1st of July, 1869, sold the business to the defendant for £8,000, together with his interest in the leasehold premises where it was carried on, and the stock-in-trade. and effects of the concern; and it was provided that £500 only of the purchase money should be paid in cash, the rest, with interest, remaining a charge upon the property. By another deed of the same date a debt of £6,500 also owing by the defendant was made. a charge upon the property. Neither of these deeds was registered under the bill of Sale Act. Default was made in payment of the interest on these sums, the bill was filed, and on the 29th of July, 1875, the plaintiffs, on an affidavit of service of notice, obtained an order which was partly as follows: "This court doth order that Charles Edward Mason, of No. 30, Essex street, Strand, in the county of Middlesex, public accountant, upon his giving security, be appointed to receive the Reeves Lovell for a debt of £419 5s. 3d., rents and profits of the leasehold hered-seized the stock in trade and business efitaments in the bill mentioned, and fects and thereupon the receiver instructto collect and get in the debts now due ed his solicitor to give notice of his claim and outstanding, and other assets, prop- to the goods to the attorneys of the erty, and effects belonging to the busi- plaintiffs in the action, which was done ness in the bill mentioned, and to man- on the following day. age and carry on the said business, and the tenants of the said leasehold premi | ses are to attorn and pay their rents in arrear and growing rents to such receiver. An interpleader summons was then taken out by the sheriff, at the hearing of which Cleasby, B., barred the claim. of the receiver without prejudice to any application to the court, on the ground that the claim was an equitable one. "And it is ordered that the plaintiffs and the defendant do deliver over to the said Charles Edward Mason all the stock-in-trade and effects of the said the 23d of August, when he advertised business, and also all securities in their or either of their hands for such outstanding estate, and all books and papers relating thereto. And it is ordered that the said Chas. Edward Mason do, out of the first moneys to be received in respect of the said rents and debts and effects, pay the ground or other rents and debts due and to become due in respect of the said business." For twelve months before the institution of the suit C. E. Mason had superintended the business on behalf of the plaintiffs and other creditors, and was accustomed to attend at the business premises for a short time on most days. The sheriff remained in possession till the property for sale. The plaintiff's thereupon, on the 25th of August, applied to the vacation judge ex parte, and obtained an order restraining the sale extending over the 1st of September, and on the 14th of September the vacation judge made a further order in the presence of all parties directing the sheriff to withdraw, on an undertaking by the plaintiffs and the receiver to deal with property under the direction of the court. The receiver completed his securities on the 25th of August, and this fact was certified by the chief clerk on the 3d of September. that the receiver should be ordered to The execution creditors now moved The defendant, however, continued ostensibly to carry on the business, and pay their debt, interest, and costs, out of the same course was pursued after the order of the 29th of July, 1875, and no step was taken to give notice to the public or persons dealing with the defendant of the appointment of the re ceiver. On the 4th of August, 1875, the sheriff of Middlesex, under a writ of fi. fa. issued an action against the defendant by Francis Lesiter Soper and the moneys of the plaintiffs or the defendant in his hands; or in the alternative, that they might be at liberty to enforce their judgment in the action against the defendant, and that the sheriff might be at liberty to execute the writ of fi. fa. against the defendgard to the plaintiff's mortgages in the ant in due course of law, without reDill mentioned; or, as a third alternative, that the excention creditors might |