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very hard to their recognizance, and not discharged at their request to have new sureties appointed, for then there would be no end of it." If a surety should procure his discharge during the continuance of the receivership, the receiver must enter into a fresh recognizance.10 In law, a surety is liable to the full amount of the penalty of the recognizance, bond, or undertaking by which he is bound." In equity, however, he is only liable to the full amount, including interest as well as principal, which the receiver is liable in equity to pay," unless that exceeds the amount of the penalty, which fixes the extreme limit of his liability. It has been held in England that a surety who has undertaken to be responsible for whatever a receiver "should receive or become liable to pay" as such receiver, is liable for funds received by the receiver before the security was given.14 Where the parties interested have been guilty of gross delay in compelling the receiver to pass his accounts, the court may excuse the surety from the payment of the whole or part of the interest. According to Daniell, “When an action is brought against a receiver's surety upon the recognizance, the proper course for him to pursue appears to be to apply to the court by motion to stay the proceedings on the recognizance, offering at the same time to pay the amount due from the receiver, so as the same does not exceed the amount of the recognizance, into court; and upon such motion, the order will be made, upon the surety's paying the cost of the application, and of the proceedings consequent upon it. When the receiver's account has not been taken, the motion should also pray a reference to the master to see what is due from the receiver; and it seems that upon such application the court will indulge the surety by allowing him to pay the balance by instalments." 16 When a surety has been obliged to pay anything on account of the receiver, he will be entitled to a lien for his reimbursement upon anything which may subsequently be due to the receiver from the suit. The sureties may be liable for

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17

9 Lord Hardwicke in Griffith v. Griffith, 2 Ves. Sen. 400.

10 Vaughan v. Vaughan, 1 Dick. 90; Blois v. Betts, 1 Dick. 336.

14 Smart v. Flood, 49 L. T. 467. 15 Dawson v. Raynes, 2 Russ. 466. 16 Daniell's Ch. Pr. (2d Am. ed.) 2005, 2006, citing Walker v. Wild, 1 Madd.

11 Dawson v. Raynes, 2 Russ. 466, 528. 468.

12 Dawson v. Raynes, 2 Russ. 466. 13 Walker v. Wild, 1 Madd. 528.

17 Glossop v. Harrison, Cooper, 61; S. C., 3 V. & B. 134.

the malfeasance of the receiver, although the bill under which the appointment was made has been dismissed for want of jurisdiction. In the absence of a rule of court, or of a stipulation in the bond, the liability of the surety should be enforced in an independent action.19

$257. Receiver's accounts. A receiver should account annually to the court unless accounts at shorter intervals are required of him. His accounts are filed and passed in the office of the master to whom matters pertaining to the receivership are referred.2 A receiver's account should describe the situation of the estate at the time when he received it, and any changes that have since taken place. He should then state his receipts and disbursements, which should be set forth in schedules as specifically as possible. He should also state such indebtedness as he has incurred; and, in general, give as full a description of the estate in his hands, and of his actions concerning the same, as is practicable. If a person has not been paid for services rendered to the estate, but has agreed with the receiver to be content with what the court allows him, that fact should be stated in the account together with a description of the services thus performed. Allowances for counsel fees will usually be small, until the final accounting of the receiver, when the full amount earned will be ordered paid. Such allowances are the property of the receiver, not

18 Baltimore B. & L. Ass'n v. Alderson (C. C. A.), 99 Fed. R. 489.

19 Kirker v. Owings (C. C. A.), 98 Fed. R. 499.

§ 257. Potts v. Leighton, 15 Ves. 273: General Order, 15 Ves. 278; Lowe v. Lowe, 1 Tenn. Ch. 515.

2 Daniell's Ch. Pr. (2d Am. ed.) 1996, 1997.

3 Daniell's Ch. Pr. (2d Am. ed.) 1996, 1997. But see Lafayette Co. v. Neely, 21 Fed. R. 738. He has a lien upon the estate for the repayment of his individual funds advanced to execute orders of the court. Union Tr. Co. v. Illinois Midland Ry. Co., 117 U. S. 434. For a case where the receiver's expenses on a journey to Europe were allowed: N. Ala. Ry.

Co. v. Hopkins (C. C. A.), 87 Fed. R. 805.

4 Daniell's Ch. Pr. (2d Am. ed.) 1996, 1997; Hooper v. Winston, 24 Ill. 353; Hinckley v. Railroad Co., 100 U. S. 153; Atty. Gen. v. N. A. L. I. Co., 89 N. Y. 94, 107; Bourne v. Maybin, 3 Woods, 724, 741; Equity Rule 79. 5 Adams v. Woods, 8 Cal. 306.

6 Central Tr. Co. v. Wabash, St. L & P. Ry. Co.. 23 Fed. R. 675; Bound v. S. Carolina Ry. Co., 43 Fed. R. 404; Maxwell v. Wilmington Mfg. Co.. 82 Fed. R. 214; Central Tr. Co. v. Wabash, St. L. & P. Ry. Co., 23 Fed. R. 675; Boston S. D. & Tr. Co. v. Chamberlain (C. C. A.), 66 Fed. R. 847. Cf. Sowles v. Nat. Union Bank, 82 Fed. R. 139; Am. Loan & Tr. Co. v. S. Atl.

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of his counsel.' Where before his appointment a receiver had received rent paid to him in his individual capacity in advance, he was obliged to apportion the rent, and to account for so much of it as was paid for the time during which he acted as receiver of the property, for the use of which the rent was paid. Exceptions should not be taken after a master's report upon a receiver's accounting has been filed, the master acting in the place of the court in a judicial and not in a ministerial capacity. Should the receiver or any other party to the accounting feel aggrieved at a ruling of the master, he should take an exception at the time,1o and subsequently petition the court to refer the matter back to the master for correction." The court's duty upon such a petition consists in reviewing the principles and rules adopted and followed by the master in allowing the receiver's accounts, rather than in examining the items of the account in detail, or the evidence upon which those items are severally founded; the latter duty belonging more especially to the province of the master acting in his judicial capacity, analogous to the province and duty of a jury on questions of fact.12 Where the receiver claimed in his accounts a balance as due him, and it was found that he was indebted to the estate, he was charged personally with the costs of the accounting.13 In a proper case, the receiver, as well as any other party interested, may appeal to the Supreme Court from the final decree entered after his accounting.'

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§ 258. Compensation of receivers. The compensation of a receiver is usually fixed in the first instance by the master,' with whose determination the court will not ordinarily inter

& O. R. Co., 81 Fed. R. 62: Kernochan
v. Ballance, 56 N. Y. Supp. 132; s. C.,
26 N. Y. Misc. 435. It has been held
in New York that a receiver's part-
ner may be paid for legal services
rendered to him when it is proved
that the receiver is not to share in
the compensation. In re Simpson,
36 App. Div. 562.

7 Stuart v. Boulware, 133 U. S. 78.
8 In re Allin, 8 Fed. R. 753.

9 Cowdrey v. Railroad Co., 1 Woods, 331, 334.

10 Ibid.

11 Ibid.

12 Ibid.

13 Gunn v. Ewan, 93 Fed. R. 80. 14 Cake v. Mohun, 164 U. S. 311; Petersburg S. & I. Co. v. Dellatorre (C. C. A.), 70 Fed. R. 643.

15 Hinckley v. Gilman C. & S. R. Co., 94 U. S. 467; Hinckley v. Railroad Co., 100 U. S. 153; Hovey v. McDonald, 109 U. S. 150.

$258. Cowdrey v. Railroad Co., 1 Woods, 331, 341; Central Trust Co. v. Wabash, St. L. & P. Ry. Co., 32 Fed. R. 187.

fere. The compensation will rarely, if ever, be increased upon appeal. Where the court has fixed a receiver's compensation in advance, it has the power to award him an additional sum for extraordinary labors. In cases of moderate amount, a commission of five per cent upon the receipts and disbursements is not unusual. Where the amounts received and disbursed are large, it is customary to pay the receiver a salary or a lump sum graduated according to the amount of his time employed, the value of the property, the difficulty of his task, and the success of his administration. It has been said that the peculiar duties and responsibilities and accountability of a receiver of a railroad entitle him to a larger amount than would be demanded by the head officer of a railroad, of the same size and business. The receiver's right to compensation

2 Cowdrey v. Railroad Co., 1 Woods, 331, 341; Central Trust Co. v. Wabash, St. L. & P. Ry. Co., 32 Fed. R. 187.

3 Hinckley v. Railroad Co., 100 U. S. 153; Stuart v. Boulware, 133 U. S. 78.

R. of Iowa, 8 Fed. R. 60. In one reported case two receivers were each allowed $70,000 for three and a half years' work. Central Trust Co. v. Wabash, St. L. & P. Ry. Co., 32 Fed. R. 187. In a few cases not reported larger fees have been allowed. In

4 Farmers' L. & Tr. Co. v. Central other cases annual salaries of $6,000, R. R. of Iowa, 8 Fed. R. 60.

5 Cowdrey v. Railroad Co., 1 Woods, 331, 346; Day v. Croft, 2 Beav. 488. Ten per cent. upon the receipts and five per cent. upon the disbursements was allowed in Cake v. Mohun, 164 U. S. 311.

6 Cowdrey v. Railroad Co., 1 Woods, 331, 346; Farmers' L. & Tr. Co. v. Central R. R. of Iowa, 8 Fed. R. 60; Central Trust Co. v. Wabash, St. L. & P. Ry. Co., 32 Fed. R. 187.

7 Bradley, J., in Cowdrey v. Railroad Co., 1 Woods, 331, 347. Approved by Brewer, J., in Central Trust Co. v. Wabash, St. L. & P. Ry. Co., 32 Fed. R. 187, 188. See also Williams v. Morgan, 111 U. S. 684. Receivers of railroads have been frequently allowed as much as $10,000 a year. Hinckley v. Railroad Co., 100 U. S. 153; Cowdrey v. Railroad Co., 1 Woods, 331, 347. But see Farmers' L & Tr. Co. v. Central R.

Boston S. D. & Tr. Co. v. Am. R. Tel. Co., 67 Fed. R. 165, 168; Boston S. D. & Tr. Co. v. Chamberlain (C. C. A.), 66 Fed. R. 847, where, for winding up the estate after the railroad was sold, only $1,750 was allowed for seven months; $4,500, Easton v. H. & T. C. Ry. Co., 40 Fed. R. 189; and $2,500, Central Tr. Co. v. Cincinnati, J. & N. Ry. Co., 58 Fed. R. 500, 512. In street-railroad cases much less is allowed. Montgomery v. Petersburg S. & I. Co. (C. C. A.), 70 Fed. R. 746. For a case where the Federal court refused to allow its receiver to set off the amount of compensation awarded him by a State court, for compensation for services as a receiver of the same property in another suit, against the sum he was directed to pay by a decree of the Federal court, see Hinckley v. Railroad Co., 100 U. S. 153; In re Hinckley, 3 Fed. R. 556. For a case of es

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passes to his personal representatives upon his death, and has precedence of the claims of holders of receiver's certificates." $259. Removal of receivers.- A receiver may be removed for misconduct in office,' or because his original appointment was obtained by collusion or fraud, or was improper on account of his interest in the subject of the receivership or connection with the parties in interest. A receiver will not be removed or discharged at his own request except for good cause shown, nor ordinarily for a reason which he knew or had ground to anticipate when he accepted the receivership. Ordinarily, a receiver can only be removed by the court which appointed him," upon an application made in the suit in which

toppel against objecting to the amount of compensation, see Dillingham v. Moran (C. C. A.), 81 Fed. R. 759.

8 Cake v. Mohun, 164 U. S. 311. 9 Petersburg S. & L. Co. v. Deletorre (C. C. A.), 70 Fed. R. 643.

§ 259.1 Handy v. Cleveland & Marietta R. Co., 31 Fed. R. 689; Atkins v. Wabash, St. L. & P. Ry. Co., 29 Fed. R. 161; Clarke v. Central R. R. & B. Co., 66 Fed. R. 16. Instances of such misconduct as will be a cause for the removal of a receiver are: unlawful discrimination in charges between different shippers upon a ralroad; Handy v. Cleveland & M. R. Co., 31 Fed. R. 689; Atkins v. Wabash, St. L. & P. Ry. Co., 29 Fed. R. 161; but see Central Tr. Co. v. Ohio Cent. R. Co., 23 Fed. 306; the purchase of supplies for the purpose of the receivership from a firm or corporation in which he is largely interested, Atkins v. Wabash, St. L. & P. Ry. Co., 29 Fed. R. 161; and in the case of two receivers, where they are unable to act in harmony, and the interests of the estate suffer from their discord. Meier v. Kansas Pac. R. Co., 5 Dill. 476. But see Conner v. Belden, 8 Daly (N. Y. C. P.), 257. In the Eastern District of Georgia, the court refused to remove a receiver, who had continued in good faith reports of the

condition of the property similar to those issued by the corporation before his appointment, who had aided in a scheme for reorganizing the property, who had in good faith allowed a special rate to a shipper, and whose agents had been guilty of fraud. Clarke v. Central R. R. & B. Co., 66 Fed. R. 16. But in the Second Circuit a receiver very properly is not allowed to become a member of a reorganization committee.

2 O'Mahoney v. Belmont, 62 N. Y. 133: s. c., 37 N. Y. Super. Ct. 223. 3 Atkins v. Wabash, St. L. & P. Ry. Co., 29 Fed. R. 161.

4 Richardson v. Ward, 6 Madd. 266; In re Lytle, 3 Paige Ch. (N. Y.) 251; Smith v. Vaughan, Ridg. temp. Hardw. 251; Beach on Receivers, § 782. Thus the court refused to remove, at his own request, a receiver upon the sole ground that the duties of his office interfere with his private business. Beers v. Chelsea Bank, 4 Edw. Ch. (N. Y.) 277. But see Purdy v. Rapalye (N. Y. Ch. 1835); Edwards on Receivers, 661. A receiver may be removed at his own request when by reason of blindness he has become physically incapable of performing the duties of his receivership. Richardson v. Ward, 6 Madd. 266.

5 Young v. Montgomery & E. R. Co., 2 Woods, 606, 618; Alabama &

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