§ 47. Leave of court, when required.

The possession of the receiver, being the possession of the court, such possession cannot be interfered with without leave of the court appointing the receiver. The permission of the court is a prerequisite, even where the claimant claims under a right or title paramount to the receiver,' and while the possession does not affect the rights of a landlord, yet he cannot enforce such rights as against a receiver in possession without leave, nor is it permissible to intercept or prevent payment to a receiver of money he has been appointed to receive. In general, it is the

But on proper application the court may adjust difficulties between the receiver and his employees, where in the absence of such adjustment there is danger of loss to the receivership property, or the purposes of the receivership may be frustrated. Waterhouse v. Comer, 55 Fed. Rep. 149, 19 L. R. A. 403.

A receiver of a railroad has no right to refuse freight from a connecting road for the purpose of preventing a strike of his own employees where the employees of the connecting road are on a strike and are attempting to boycott it. Beers v. Wabash, St. L. & P. R. Co. 34 Fed. Rep. 244.

Re

Receivers of a railroad are the sworn officers of the court and their employees are pro hac vice officers of the court and responsible as such. Higgins, 27 Fed. Rep. 443; Chattanooga Terminal R. Co. v. Felton, 69 Fed. Rep. 273.

A simple request to do or not to do a thing made by one or more of a body of strikers under such circumstances as are calculated to convey a threatening intimidation, with a design to hinder or obstruct employees in the performance of their duties is not less obnoxious than the use of physical force for the same purpose, and will be punished as a contempt. Re Doolittle, 23 Fed. Rep. 544.

As to injunctions against strikes and proceedings under interstate commerce act, see valuable note in Longshore Printing & Pub. Co. v. Howell, 28 L. R. A. 464.

Day v. Postal Teleg. Co. 66 Md. 354; Ex parte Cochrane, L. R. 20 Eq. 282; De Winton v. Brecon, 28 Beav. 203. In Iowa resisting a receiver is a criminal offense. State v. Rivers, 66 Iowa, 653; Spinning v. Ohio L. Ins. & T. Co. 2 Disney, 368; Vermont & C. R. Co. v. Vermont C. R. Co. 46 Vt. 792; Angel v. Smith, 9 Ves. Jr. 315; Ex parte Cochrane, L. R. 20 Eq. 282; Russell v. East Anglian R. Co. 3 Macn. & G. 104; Ames v. Birkenhead Dock Co. 20 Beav. 332; Skinner v. Maxwell, 68 N. C. 400. How to proceed, see Jacobson v. Landolt, 73 Wis. 142.

2 Sutton v. Rees, 9 Jur. N. S. 456; Ex parte Cochrane, Re Mead, L. R. 20 Eq. 282; and the same rule applies to a claimant of real estate. Angel v. Smith, 9 Ves. Jr. 335; Fort Wayne, M. & C. R. Co. v. Mellett, 92 Ind. 535; Potter v. Spa Spring Brick Co. 47 N. J. Eq. 442; Palys v. Jewett, 32 N. J. Eq. 302.

Hazelrigg v. Bronaugh, 78 Ky. 62; Thornton v. Washington Sav. Bank, 76 Va. 432. Though a person interfering with property in the possession of a receiver does so under a mistake of the law, he will nevertheless be

duty of the court in all cases to protect its receiver in the possession of the property over which he is appointed.' And this protection extends to property that may be beyond the jurisdiction of the court, if the court has jurisdiction over the person of the offender."

§ 48.

Duty of receiver to take possession of property. The receiver is sometimes empowered by statute with power to obtain possession of property over which he has been appointed, and on refusal by the party in custody to surrender a warrant may be issued for the purpose of enforcing the orders of court," but, whether so empowered or not, it is the duty of the receiver to take possession of all the property covered by the order of his appointment, and he cannot assume a position of indifference and allow persons holding property to deliver it to him or not as they see fit. He must use active diligence on his part to secure possession.*

chargeable with the costs of the proceedings against him for contempt, though he may be excused from further punishment. Noe v. Gibson, 7 Paige, 513.

Moore v. Mercer Wire Co. (N. J.) 15 Atl. 305, 737. Lord Romilly, in De Winton v. Mayor, 28 Beav. 200, says: "I apprehend this is clear: that the court never allows any person to interfere, either with money or property in the hands of its receiver, without its leave, whether it is done by the consent or submission of the receiver or by compulsory process against him. The court is obliged to keep a strict hand over property in the hands of a receiver, or which by virtue of the order of the court may come in his hands, in order to preserve entire jurisdiction over the whole matter and to do that which is just in the case between the parties."

See also Ames v. Birkenhead Dock Co. 20 Beav. 322; Brooks v. Greathead, 1 Jac. & W. 178; Wordle v. Lloyd, 2 Moll. 288.

Chafee v. Quidnick Co. 13 R. I. 442; Sercomb v. Catlin, 128 Ill. 556. 3 Noble v. Halliday, 1 N. Y. 330. Withholding contracts from a receiver of one of the contracting parties cannot be justified upon the ground that they are held as security for commissions earned by the persons who procured them, and wages due them, where such commissions are not payable until collections have been made on the contracts, and no wages are in fact due. Ex parte Corran (Cal.) 41 Pac. 464.

Withholding contracts from the receiver of one of the contracting parties cannot be justified on the ground that they cannot be utilized by the receiver, or that the withholding of them will not injure him or the contracting party. Ex parte Corran (Cal.) 41 Pac. 464.

Clapp v. Clapp, 49 Hun, 195.

A receiver is not required to apply to the court to aid him in obtaining possession of property which should be surrendered to him. Filkins v. Adams, 60 Ill. App. 410.

But a receiver of an insolvent cannot claim possession of land in which the insolvent had an interest under contract which did not pass the title, in the absence of a provision therein for possession in advance of the conveyance of title;' nor is he entitled to the possession of a fund which, prior to his appointment, has been placed in the hands of a trustee, for special purposes, such as a safety and tontine pension fund in case of an insurance company." Where property prior to the appointment has been fraudulently assigned to an insolvent assignee, the plaintiff should have the receivership extended to such assignee, and where complaint is made of an act of the defendant after the decree appointing a receiver but before the appointment is completed, the proper persons to make complaint are the parties to the suit and not the receiver.*

While the decisions are not entirely harmonious, the weight of authority, as well as reason, is in effect that where the receiver obtains possession such possession will be protected in foreign jurisdictions. If he obtains possession of property in the state of his appointment and takes it to another state for a lawful pur pose, his possession will be protected in the latter state as against creditors residing in such state."

1 Stratton v. California Land & T. Co. 86 Cal. 353.

2 Re Home Provident Safety Fund Asso. 129 N. Y. 288, reversing 39 N. Y. S. R. 437.

Cassilear v. Simmons, 8 Paige, 273. The court cannot make a summary order on an assignee to turn over property to a receiver, the assignee acting under orders of another court. Com. v. Order of Vesta, 156 Pa. 531.

Fox v. Toronto & N. R. Co. 29 Ch. (Ont.) 11.

Chicago, M. & St. P. R. Co. v. Keokuk N. L. Packet Co. 108 Ill. 317. Where a receiver takes possession of property within the jurisdiction of the court appointing him he becomes vested with a special property in it similar to that of a sheriff. Boyle v. Townes, 9 Leigh, 158; Singerly v. Fox,

75 Pa. 112; Dick v. Bailey, 2 La. Ann. 974; Killmer v. Hobart, 58 How. Pr. 452; Cagill v. Wooldridge, 8 Baxt. 580. Where property has once vested in an assignee or receiver by the law of the state where the property is situated, the law of another state will not divest him of it if he should take it into such state in the performance of his duty. A receiver appointed by a court in such a case stands in the same position as an assignee or trustee in insolvency. Pond v. Cooke, 45 Conn. 126.

See also Cammell v. Sewell, 5 Hurlst. & N. 728; Clark v. Connecticut Peat Co. 35 Conn. 303; Taylor v. Boardman, 25 Vt. 581; Crapo v. Kelly, 83 U. S. 16 Wall. 610, 21 L. ed. 430; Waters v. Barton, 1 Caldw. 450; Cagill v. Wooldridge, 8 Baxt. 580; Mc

Courts will even punish for contempt persons who are not parties to the suit for interfering with the property in the receiver's possession.' While the receiver is not permitted to take possession of the receivership property until he has given bond, yet if the possession has been ordered the receiver will be protected.'

49. As against public improvements.

While the court zealously guards the possession of receivership property in the interest of the parties to the litigation, yet it will not permit the possession of the receiver to be an obstacle to a public improvement, as, for instance, to prevent the crossing of a road in the hands of a receiver by the tracks of another road.' The court otherwise would overrule the laws of the state and make its will superior to the sovereign power of a co-ordinate branch of the government.

$50. Duty as to opening a new business.

The receiver's possession of property does not justify him, without an order of court expressly authorizing him, or the business is such as to imperatively require it, to open a business with the property or moneys in his hands." As we have seen, the ordinary duty of the receiver relates to the preservation and safe keeping of the property or fund, and he has no duty which re

Alpin v. Jones, 10 La. Ann. 552. But see contra, Humphreys v. Hopkins, 81 Cal. 551, 6 L. R. A. 792. This case is apparently against the weight of authority, and was by a divided court, and against principles previously enunciated by the same court. Low v. Burrows, 12 Cal. 188; Lewis v. Adams, 70 Cal. 403.

1 Helmore v. Smith, L. R. 35 Ch. Div. 449. In this case a former clerk by means of a circular to the customers interfered with the business of the receiver as manager and was committed for contempt.

Morrison v. Skerne Iron Works Co. 60 L. T. N. S. 588.

3 Central Trust Co. v. Wabash, St. L. & P. R. Co. 26 Fed. Rep. 3. In this case Mr. Justice Brewer says: "It is not gracious in the federal court which has taken possession of property by its receivers to make that possession an obstacle to any proposed public improvement. We should, so far as lies in our power, extend every facility to every proposed public improvement, simply aiming to preserve the rights which attach to property while it is in our possession, and that is all."

quires him to build up a business for the benefit of the parties in interest. Of course this restriction has no application to the business of a going concern where the chief value arises from its being such, as in the case of a newspaper; nor to a business quasi public in its nature where public interests are concerned.

§ 51. As to tenants.

In a case where the receiver is to collect the rents and profits the proper course is to apply for an order on the tenants in possession to attorn, and it is not necessary that they should be parties to the suit,' but in such case the tenants are not liable for costs. The power of the court as to the property carries with it the implied power to make all necessary and proper orders upon those who are in custody or charge not inconsistent with their rights of possession, or valid contracts relating thereto.

$ 52. To whom restored.

After the dismissal of a bill for want of jurisdiction, property left in the hands of a receiver in such case must be restored to the party from whom possession was taken, though the opposing party may have a good claim to the possession by reason of a purchase and possession before the bill was filed, and in such case it makes no difference to the receiver that the party to whom he restores the property is insolvent.' In the very nature of the case the court, without an adjudication, cannot return the property to a person other than the one from whom the possession was taken. § 53. Extent of.

A receiver appointed upon the application of a secured creditor has no right to the custody of funds not arising from the property which has been pledged as security, and which may be applied upon the claims of general unsecured creditors, if any. The

'Reid v. Middleton, Turn. & R. 455. Hobhouse v. Hollcombe, 2 DeG. & S.

208.

3 Warren v. Bunch, 80 Ga. 124.

4 Wormser v. Merchants' Nat. Bank, 49 Ark. 117. The right of custody extends only to the property which is the subject-matter of the litigation. In a proceeding under a general cred

itors' bill of course the receiver is entitled to the entire property, as in the case of bankruptcy and insolvency, or proceedings to wind up banks, etc. Noyes v. Rich, 52 Me. 115. But in case of a mortgage foreclosure the right to possession extends only to the property mortgaged. Id.