name is used is indemnified out of the fund for all costs to which he is thereby made liable. Receivers of corporations are usually authorized to sue and defend in the name of the corporation. Costs recovered against a receiver in an action brought by him in his official capacity, are entitled upon the distribution of the fund to a priority over claims that existed against it before the receiver's appointment. In the conduct of litigation, as in every other proceeding by him, a receiver is under the constant supervision of the court.' He is not bound by a stipulation which is not advantageous to the estate, made by himself or his counsel without the sanction of the court. He cannot waive a defense on the merits. He cannot allow a set-off not authorized by law. 10 He may be allowed to discontinue without costs an action honestly but erroneously begun by him." The rights of a receiver are in general no greater than those of the person whose estate he holds.12 Thus, a receiver of an insolvent corporation appointed in a creditor's suit cannot "enforce a collateral obligation given to a creditor or to a body of creditors by a third person for the

8

4 Daniell's Ch. Pr. (2d Am. ed.) 1991. 5 Frankle v. Jackson, 30 Fed. R. 398; Davis v. Gray, 16 Wall. 203; Harland v. B. & M. Tel. Co., 33 Fed. R. 199; Hale v. Hardon, 89 Fed. R. 283, 287. Cf. Wilder v. New Orleans (C. C. A.), 87 Fed. R. 843; Braddock Br. Co. v. Pfandler V. M. Co. (C. C. A.), 106 Fed. R. 604.

6 Camp v. Receivers Niagara Bank, 2 Paige (N. Y.), 283; Columbian Ins. Co. v. Stevens, 37 N. Y. 536; Locke v. Covert, 42 Hun (49 N. Y. S. C. R.), 484. 7 Van Dyck v. McQuade, 85 N. Y. 616; McEvers v. Lawrence, Hoff. Ch. (N. Y.) 175.

8 Van Dyck v. McQuade, 85 N. Y. 616. Cf. Vance v. Royal C. Mfg. Co., 82 Fed. R. 251.

9 McEvers v. Lawrence, Hoffman Ch. (N. Y.) 172; Keiley v. Dusenbury, 10 J. & S. (N. Y. Superior Ct.) 238; s. C., 77 N. Y. 597; Van Dyck v. McQuade, 85 N. Y. 616. A receiver may waive service of process and an objection to the jurisdiction founded upon resi

dence. Whitcomb v. Hooper (C. C. A.), 81 Fed. R. 946. It was held that a receiver who had removed an action brought against him in a State court could not afterwards object that the Federal court had not acquired jurisdiction. Baggs v. Martin, 179 U. S. 206. A receiver is bound by an admission in the litigation made in good faith by the corporation before his appointment. Perry v. Godbe, 82 Fed. R. 141. He is not, however, bound by a promise of his own made before his appointment. Stanton v. Ala. & C. R. Co., 31 Fed. R. 585.

10 Van Dyck v. McQuade, 85 N. Y. 616. Cf. Central Tr. Co. v. Clark (C. C. A.), 81 Fed. R. 269.

11 St. John v. Denison, 9 How. Pr. (N. Y.) 343; Reeder v. Seely, 4 Cowen, 548; Arnoux v. Steinbrenner, 1 Paige (N. Y.), 82.

12 Jacobson v. Allen, 12 Fed. R. 454, 457. But see Hart v. Barney & S. Mfg. Co., 7 Fed. R. 543.

payment of the debts of the insolvent; "" for example, a statutory liability of stockholders to creditors. It has, however, been said: "It is the settled doctrine that the receiver of an insolvent corporation represents not only the corporation but also creditors and stockholders, and that in his character as trustee for the latter, he may disaffirm and maintain an action as receiver to set aside illegal or fraudulent transfers of the property of the corporation made by its agents or officers, or to recover its funds or securities invested or misapplied.” 15 The defendant to an action by the receiver of an insolvent's estate cannot set off claims against the insolvent which have been assigned to him since the application for the receiver's appointment.16 A receiver has no absolute right to sue in the courts of a sovereignty foreign to that from which he holds his authority." He may sue in a foreign court upon a judg ment which he has recovered in the court which appointed him.18 By comity he is usually allowed to sue in a foreign court,19 unless by so doing he would interfere with a preference given to domestic creditors by the laws or public policy of the State wherein he brings the action.20 In this respect, it seems, that a court of the State within which a Federal court is held is considered as foreign to the latter, at least when sit

13 Wallace, J., in Jacobson v. Allen, suit there instituted is brought in his 12 Fed. R. 454. ancillary capacity. Sullivan v. Sheehan, 89 Fed. R. 247.

14 Jacobson v. Allen, 12 Fed. R. 454. 15 Andrews, J., in Atty. Gen. v. Guardian M. L. Ins. Co., 77 N. Y. 272, 275. See also Gillet v. Moody, 3 N. Y. 479, 488; Talmage v. Pell, 7 N. Y. 328; Whittlesey v. Delaney, 73 N. Y. 571; National T. Co. v. Miller, 33 N. J. Eq. 155, 158; Jacobson v. Allen, 12 Fed. R. 454, 455.

16 In re Van Allen, 37 Barb. (N. Y.) 225, 231; Van Dyck v. Quade, 85 N. Y. 616.

17 Booth v. Clark, 17 How. 322; Brigham v. Luddington, 12 Blatchf. 237; Olney v. Tanner, 10 Fed. R. 101; Hazard v. Durant, 19 Fed. R. 471, 476; Holmes v. Sherwood, 16 Fed. R. 725; S. C., 3 McCrary, 405. In a court that has appointed an ancillary receiver, it will be presumed, in the absence of allegations to the contrary, that a

18 Wilkinson v. Culver, 25 Fed. R. 639. Or to recover land conveyed to him as receiver. Oliver v. Clarke (C. C. A.), 106 Fed. R. 402.

19 Ex parte Norwood, 3 Biss. 504; Hunt v. Jackson, 5 Blatchf. 349; Cuykendall v. Miles, 10 Fed. R. 342; Chambers v. M'Dougal, 42 Fed. R. 694, 696; Phoenix Ins. Co. v. Schultz (C. C. A.), 80 Fed. R. 337; Hurd v. Elizabeth, 41 N. J. Law (12 Vroom), 1; Bank v. McLeod, 38 Ohio St. 174. But see Booth v. Clark, 17 How. 322; Holmes v. Sherwood, 16 Fed. R. 725.

20 Booth v. Clark, 17 How. 322; Brigham v. Luddington, 12 Blatchf. 237; Olney v. Tanner, 10 Fed. R. 101; Zacher v. Fidelity Tr. & S. D. Co. (C. C. A.), 106 Fed. R. 593; Hale v. Tyler, 104 Fed. R. 757; supra, § 34.

ting in bankruptcy." A substituted trustee can, however, sue in a foreign jurisdiction, even though the trial court that appointed him required him to give a bond and to account to itself in the same manner as a receiver.22 A receiver is especially favored in the enforcement of causes of action arising after his appointment. He can, upon motion or petition in the suit wherein he is appointed, obtain injunctions to prevent disobedience to contracts made with him," or prevent interference with property in his possession," whether the person enjoined is a party to the suit or not, even if he be a state officer; for example, a tax collector.25 In nearly every case, interference with a receiver in the discharge of his duties is a contempt of court, even when no injunction expressly forbidding it has been issued. For example, striking laborers have been adjudged guilty of contempt for attempting to prevent employees of a receiver of a railroad from working for him.27 The court

21 Olney v. Tanner, 10 Fed. R. 101. But see Chambers v. M'Dougal, 42 Fed. R. 694, 696; Hale v. Hardon, 89 Fed. R. 283; Phoenix Ins. Co. v. Schultz (C. C. A.), 80 Fed. R. 337. In an action in a State court by a receiver of a Federal court it will be presumed that he has duly qualified in accordance with the order for his appointment, if a subsequent order of the Federal court recognizing him as receiver is put in evidence. Hegewich v. Silver, 140 N. Y. 414. See Young v. Wempe, 46 Fed. R. 354.

22 Glenn v. Soule, 22 Fed. R. 417; Holmes v. Sherwood, 16 Fed. R. 725; s. C., 3 McCrary, 405. Cf. Hale v. Hardon, 89 Fed. R. 283, 287, 288.

23 Walton v. Johnson, 15 Sim. 352. 24 Angel v. Smith, 9 Ves. 335; Lake Shore & M. S. Ry. Co. v. Felton (C. C. A.), 103 Fed. R. 227.

25 In re Tyler's Petition, 149 U. S. 164; Ex parte Chamberlain, 55 Fed. R. 704; Ex parte Huidekoper, 55 Fed. R. 709; Ledoux v. La Bee, 83 Fed. R. 761. A sale for taxes without leave of the court is void. Va., T. & C. Steel & I. Co. v. Bristol Land Co., 88 Fed. R. 134. A valid tax upon the assets is, it seems, a prior lien after

the judicial costs. Ledoux v. La Bee, 83 Fed. R. 761.

26 Thompson v. Scott, 4 Dill. 508; Davis v. Gray, 16 Wall. 203, 218.

27 Secor v. Toledo, P. & W. R. Co., 7 Biss. 513; King v. Ohio & M. Ry. Co., 7 Biss. 529; In re Higgins, 27 Fed. R. 443. "If the testimony makes it clear that when these parties went in such numbers, and conducted themselves in such a way, that while they simply said, 'Please get off this engine,' or 'We want you to get off this engine,' they intended to overawe,-intended, by the demonstrations which they made, to impress upon the minds of the engineers and train-men that personal prudence compelled them to leave,- why, then the government has made out its case. As my brother Treat said in a similar case, that we had before us in St. Louis, a request, under these circumstances, is a threat. Every sensible man knows what it means, and courts are bound to look at things just as they are, to pass upon facts just as they are developed, to treat the conduct of men just as it is, and to impute to them that intention which their acts and their con

will not enjoin the employees of a receiver from a peaceable strike, unaccompanied by violence or intimidation.28 He can compel, by a summary proceeding in the court that appointed him, the delivery of property of his estate in the possession of a stranger to the suit who claims no right to its possession." Where a marshal had levied on property previously in the possession of a receiver of a State court, the receiver was allowed to proceed by a rule to take the possession of the same, although the regular practice was an intervention by him." It has been held, however, that the court should not enjoin a stranger to the suit who is a citizen of another State from enforcing legal process in his own State against land there in the possession of the receiver;" and a receiver must proceed by an original suit to recover property held by a stranger to the litigation under a claim of title. Since a proceeding to collect assets of an estate, whether brought in personam to recover damages, or in rem, as by replevin or ejectment, is ancillary to the principal suit, a receiver appointed by a Federal court can bring a suit for that purpose in the court of his appointment irrespective of the citizenship of the parties or the amount involved. He cannot, however, sue out a writ of error from

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duct disclose was their intention." Brewer, J., U. S. v. Kane, 23 Fed. R. 748, 751, citing In re Doolittle, 23 Fed. R. 544, 548. And in another case the same judge said: "Now, if a party engaged in a lawful undertak ing unintentionally interferes with some of the officers of this court, and obstructs them in the discharge of their duties, this court is not tenacious of any mere prerogative, and would let such action pass almost without notice; but where parties are engaged in that which is of itself unlawful, in doing that which they have no right to do, and in so doing obstruct the officers of the court although intending no contempt, that is a very different thing." Brewer, J., In re Doolittle, 23 Fed. R. 544, 548.

28 Arthur v. Oakes (C. C. A.), 63 Fed. R. 310; supra, § 215.

29 Miles v. New So. B. & L. Ass'n, 95 Fed. R. 919.

30 Remington P. Co. v. Louisiana Pr. & Pub. Co., 56 Fed. R. 287.

31 Schindelholz v. Cullum (C. C. A.), 55 Fed. R. 885.

82 Davis v. Gray, 16 Wall. 203, 218; Parker v. Browning, 8 Paige (N. Y.), 388; Noe v. Gibson, 7 Paige (N. Y.), 513. Or to collect a claim of the corporation. Eau Claire v. Payson (C. C. A.), 107 Fed. R. 557. A receiver cannot by petition in the suit obtain an injunction against unlawful discrimination by a railroad company which is not a party to the suit. Wood v. N. Y. & N. E. R. Co., 61 Fed. R. 236. Where a receiver took pay for corporate property in stock which he kept himself, crediting his fund with price in cash, held, that he could not sue individually for fraudulent representations by the vendor of the stock. Kenedy v. Benson, 54 Fed. R. 836.

33 White v. Ewing, 159 U. S. 36; Pope v. Louisville, N. A. & C. R. Co., 173 U. S. 573; supra, §§ 15, 21.

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the Supreme Court of the United States to the judgment of a State court, except in a case where that might be done by an individual. He has the right of appeal from an appealable order or decree of a Federal court which sustains a claim antagonistic to the rights of both parties to the suit, or antago nistic to the rights of either party; subject to the limitation that he may not question any order or decree which distributes burdens, or apportions rights, or distributes the estate in his hands between the parties, or any clause in the order or decree appointing him, or any order or decree resting in discretion. He may appeal from an order or decree which affects his personal rights, such as an order which disallows his fees or commissions; but it seems that he cannot appeal from an order which rests in the discretion of the court; for example, an order which discharges or removes him, or directs him in the administration of the estate, as, for example, to issue receiver's certificates or to make improvements.36 "His right to appeal from an allowance or claim against the estate does not necessarily fail when his receivership is terminated, to the extent of surrendering the property in the possession of the receiver." Upon an appeal in a suit brought by him, in the absence of any Federal question, the jurisdiction is considered as dependent upon the difference of citizenship in the suit in which he was appointed; and the judgment or decree of the Circuit Court of Appeals is final." A receiver is presumed to represent all parties to the suit, and he cannot object because other parties have no notice of an application duly served on him;" although, of course, the court may listen to a suggestion of that nature by him.

34 Bausman v. Dixon, 173 U. S. 113. 35 Bosworth v. St. Louis T. R. Ass'n, 174 U. S. 182, 186, 187.

36 Bosworth v. St. Louis T. R. Ass'n 174 U. S. 182, 189. An order directing the receiver of a railroad to construct and maintain gates and other safeguards at the crossing of another road, in accordance with a contract made between two railroad companies, with covenants running with the land, is not a decree for specific performance, but merely an interlocutory order affecting the ad

ministration of the estate from which he cannot appeal. Hunt v. Ill. Cent. Co. (C. C. A.), 96 Fed. R. 644. But see Felton v. Ackerman, 61 Fed. R. 225. 37 Bosworth v. St. Louis T. R. Ass'n, 174 U. S. 182, 189.

38 Pope v. Louisville, N. A. & C. Ry. Co., 173 U. S. 573.

39 McLeod v. New Albany (C. C. A.), 66 Fed. R. 378. As to the right of a creditor to enforce a cause of action owned by a receiver, see Werner v. Murphy, 60 Fed. R. 769; Swope v. Villard, 61 Fed. R. 417.