his appointment was made. A Federal court may, however, after the removal of a suit, remove a receiver therein appointed by a State court. And it has been held that when a Circuit Court of the United States has appointed a receiver of a line of railroads running through another circuit, as well as through that wherein the appointment is made, his authority in the other circuit is recognized merely by judicial comity, and he may be removed from all control over property therein by the Federal court there held, upon a bill there filed. When a receiver is removed, the court may appoint another in his place. A delay of ten months after knowledge of the facts upon which the motion is founded, in moving for the discharge of a receivership and the removal of a receiver, has been held a sufficient reason for denying the application. Upon an application for the removal of a receiver of a mine, the court ordered that the agent of the applicant be permitted to inspect the mine.10 The successor to a receiver can usually enforce, at least in equity, contracts made with his predecessor in his official capacity," and is usually responsible in his official capacity for liabilities incurred by his predecessor in the same manner as if he were a corporation sole. 12 Whether a receiver who is not a party to a suit can appeal from an order for his removal is doubtful.13 § 260. Discharge of a receiver.- The discharge of a receiver is a termination of the receivership, and no successor to him is then appointed. It will be ordered when the court is satisfied either that no occasion for a receivership existed when

C. R. Co. v. Jones, 7 N. B. R. 145, 169; Jones, 7 Nat. B. Reg. 145, 169; supra, Beach on Receivers, §§ 777, 778. § 242.

6 Davis v. Michelbacher (S. C. Wis.), 31 N. W. R. 168; Beach on Receivers, $$ 777, 778.

7 Texas & St. L. Ry. Co. v. Rust, 17 Fed. R. 275. See infra, $$ 260,

391.

8 Atkins v. Wabash, St. L. & P. Ry. Co., 29 Fed. R. 161; Farmers' L. & Tr. Co. v. No. Pac. R. Co., 69 Fed. R. 871. But see Central Trust Co. v. Wabash, St. L. & P. Ry. Co., 29 Fed. R. 618; Muller v. Dows, 94 U. S. 444; Young v. Montgomery & E. R. Co., 2 Woods, 606, 618; Alabama & C. R. Co. v.

9 Brown v. Lake Superior Iron Co., 134 U. S. 530.

10 Henszey v. Langdon-Henszey Coal Min. Co., 80 Fed. R. 178.

11 Thompson v. Phenix Ins. Co., 136 U. S. 287.

12 McNulta v. Lochridge, 141 U. S. 327.

13 See Conner v. Belden, 8 Daly (N. Y. C. P.), 257; Wilson v. Barney, 5 Hun (N. Y.), 257; Connolly v. Kretz, 78 N. Y. 620.

§ 260. 1 Beach on Receivers, § 791.

the appointment was made, or that in the course of subsequent events the necessity for the receivership has ceased. Ordinarily, a receiver can be discharged only by the court that appointed him. After the removal of a case from a State to a Federal court, the Federal court may discharge a receiver therein appointed. Any person injured by the appointment of a receiver can move for his discharge although not a party to the suit in which he was appointed. The motion should be made on notice to all parties interested.' A motion for the discharge of a receiver may be denied on account of the laches of the moving party. A receiver of the estate of an infant will not be discharged until a year after the infant's majority, unless the ward after majority consents to his discharge. The receiver will not be discharged, as of course, at the motion of the party who procured his appointment, if other parties who have acquired an interest in the receivership object.1 The entry of a final decree which does not provide for the continuance of a receivership supersedes the appointment of a receiver." Where a receivership had been extended so as to cover the property of a corporation not a party to the bill, an order directing the receiver to return its property to such corporation was held to be equivalent to a revocation of the receivership

2 Lavender v. Lavender, Irish R. 9 Eq. 593; Furlong v. Edwards, 3 Md. 99; Sage v. Memphis & L. R. Co., 18 Fed. R. 571; s. c., 125 U. S. 361.

3 Davis v. Duke of Marlborough, 2 Swanst. 108, 168; Bainbrigge v. Blair, 3 Beav. 421.

4 Young v. Montgomery & E. R. Co., 2 Woods, 606; Beach on Receivers, § 791.

5 Texas & St. L. Ry. Co. v. Rust, 17 Fed. R. 275; Mahoney Mining Co. v. Bennett, 4 Shaw, 287. As to the disposition of the money in the hands of a receiver thus discharged, see Mack v. Jones, 31 Fed. R. 189, 196.

6 Thomas v. Brigstocke, 4 Russ. 64; Grenfell v. Dean of Windsor, 2 Beav. 544; Milwaukee & M. R. Co. v. Soutter, 2 Wall. 510.

7 Davis v. Duke of Marlborough, 2

Swanst. 108, 168; Bainbrigge v. Blair, 3 Beav. 421, 423.

8 Allen v. Dallas & W. R. Co., 3 Woods, 316, 331; National M. B. Ass'n v. Mariposa Co., 60 Barb. (N. Y.) 423; Hazard v. Credit Mobilier of America, 38 Fed. R. 195; Brown v. Lake Superior Iron Co., 134 U. S. 530.

9 Matter of Van Horne, 7 Paige Ch. (N. Y.) 346; Wildridge v. McKane, 2 Molloy, 545. See also Bainbrigge v. Blair, 3 Beav. 421.

10 Bainbrigge v. Blair, 3 Beav. 421; People v. Globe M. L. Ins. Co., 57 How. Pr. (N. Y.) 481; Fay v. Erie & K. R. R. Bank, Harring. (Mich.) 194. See, however, Davis v. Duke of Marlborough, 2 Swanst. 108, 168; Whiteside v. Prendergast, 2 Barb. Ch. (N. Y.) 471.

11 Daniell's Ch. Pr. (2d Am. ed.) 1765.

as to that company.12 A receiver may be discharged from the control of real estate, and the rents and profits which he has collected be continued in his control until the termination of the litigation.1 It has been held that the discharge of a receiver by a decree cannot be set aside upon a motion entered after the term at which it was made." The discharge of a receiver terminates his liability for acts done in his official capacity.15 After a receiver's discharge damages to the estate resulting from his mismanagement cannot be recovered from the sureties upon an injunction bond concurrent with his appointment.16 Where a decree discharged a receiver upon condition that he should file a release from the person to whom the property was given by the decree, it was held that his omission to file the release did not make him liable to strangers for former injuries by his employees." Upon the discharge of a receiver and the return of the property to the original owner, who did not oppose the receiver's appointment, the owner is liable for all contracts by the receiver entered into by the authority of the court, and also for the damages caused by the negligence or other torts of the receiver's agents which are incidental to the ordinary management of the property.18 An order discharging a receiver and directing him to deliver the property to a person from whom he had taken it was held not to be an adjudication that the latter was entitled to the same.19 It was held where a receiver was discharged because his appointment was not justified, that the expenses of his administration, including his compensation, should be charged against the funds in his hands, and that the party who moved for his appointment should not be obliged to pay them.20

12 Hook v. Bosworth, 64 Fed. R. 443. 13 Jones v. Smith, 40 Fed. R. 314. 14 Davis v. Duncan, 19 Fed. R. 477. 15 Davis v. Duncan, 19 Fed. R. 477; White v. Keokuk & D. M. Ry. Co., 52 Iowa, 97.

20 Elk Fork O. & G. Co. v. Jennings, 90 Fed. R. 767; New Birmingham L & L. Co. v. Blevins (Tex. Civ. App.), 34 S. W. R. 828. But see Industrial & Min. G. Co. v. El. Supply Co., 58 Fed. R. 732, 734; Ogden City v. Bear L &

16 Lehman v. M'Quown, 31 Fed. R. W. & Imp. Co., 55 Fed. R. 385; Farm138.

17 Davis v. Duncan, 18 Fed. R. 477. 18 Texas & Pac. Ry. Co. v. Huron, 164 U. S. 636, 640; Texas & Pac. Ry. Co. v. Johnson, 151 U. S. 81, 89.

19 Marshall v. Otto, 59 Fed. R. 249, 255.

ers' Nat. Bank v. Backus, 77 N. W. R. 142; Northern Ala. Ry. Co. v. Hopkins, 31 C. C. A. 94; s. c., 87 Fed. R. 505; Gallagher v. Gingrich, 105 Iowa, 237; Cutter v. Pollock, 4 N. D. 205.

CHAPTER XVIII.

THE WRIT OF NE EXEAT REPUBLICA.

§ 261. Definition of the writ of ne exeat republica, and when it will issue.-The writ of ne exeat republica is a writ which issues from a Federal court of equity to restrain a defendant to a suit therein from departing from the United States without the leave of the court. In England it was called ne exeat regno, and was considered a writ of high prerogative. It was originally applicable to purposes of state only, but afterwards extended to private transactions. In the United States the writ has hitherto been issued only at the request of a private party. The Revised Statutes provide that "writs of ne exeat may be granted by any justice of the Supreme Court, in cases where they might be granted by the Supreme Court; and by any circuit justice or circuit judge, in cases where they might be granted by the Circuit Court of which he is a judge. But no writ of ne exeat shall be granted unless a suit in equity is commenced, and satisfactory proof is made to the court or judge granting the same that the defendant designs quickly to depart from the United States." It is unsettled whether the writ can now issue from a Federal court held in a State which has abolished imprisonment for debt. It has been held that the writ cannot be granted by a judge of the District Court, except when holding a court of equity. The intention of the defendant to depart from the judicial district is not enough to authorize the issue of the writ.' The claim of the party applying for the writ must be one enforceable by a suit in a court of equity; except where a decree for permanent

§ 261. Daniell's Ch. Pr. (2d Am. ed.) 1925.

2 Jackson v. Petrie, 10 Ves. 164; Daniell's Ch. Pr. (2d Am. ed.) 1925; Beames on Ne Exeat, 1-21.

3 U. S. R. S., § 717.

4 Cf. U. S. R. S., § 990; Mallory Mfg. Co. v. Fox, 20 Fed. R. 409; and infra, § 370. See also 24 Am. Law Rev. 535.

5 Gernon v. Boecaline, 2 Wash. 130. 6 Lewis v. Shainwald, 7 Saw. 403, 417, 418.

7 Loewenstein v. Biernbaum, 8 W. N. C. (Pa.) 163.

8 Pearne v. Lisle, Amb. 75; Seymour v. Hazard, 1 J. Ch. (N. Y.) 1.

10

alimony has been entered and no appeal therefrom is pending, in which case the English rule was that the writ might issue to compel obedience to the same." The claim must be for the payment of a certain fixed sum of money. A claim for unliquidated damages is insufficient." Thus, the writ cannot issue under a bill to set aside a bill of sale of a vessel, for a return of the vessel or her value, and for an account of her earnings." The debt must be already due.13 A debt which is contingent," or certain but future,15 is insufficient. The motives for the defendant's departure, no matter how innocent they may be,as, for example, that he is about to sail upon a ship of which he is captain,16 will not prevent the issue of the writ." § 262. Against whom the writ will issue. The writ was originally confined to subjects of the King of England.1 It has been extended, however, so as to apply to foreigners as well as subjects of the country from the courts of which the writ issues; and where the court has jurisdiction, the writ may be issued at the suit of one foreigner against another. It seems that the writ may be issued against a married woman in a suit affecting her separate estate. The writ will not issue against a defendant who is under arrest or held to bail in an action at law. The Constitution provides that Senators and Representatives shall, in all cases, except treason, felony, and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same." And the Revised Statutes, that when

9 Pearne v. Lisle, Amb. 75; Read v. Read, 1 Ch. Cas. 115; Ex parte Whitmore, 1 Dick. 143; Shaftoe v. Shaftoe, 7 Ves. 171; Street v. Street, 1 T. & R. 322; Daniell's Ch. Pr. (2d Am. ed.) 1926, 1927.

10 Graham v. Stucken, 4 Blatchf. 50; Daniell's Ch. Pr. (2d Am. ed.) 1931. 11 Graham v. Stucken, 4 Blatchf. 50. 12 Ibid.

13 Whitehouse V. Partridge, 3 Swanst. 365, 377; Seymour v. Hazard, 1 J. Ch. (N. Y.) 1.

3

17 Stewart v. Graham, 19 Ves. 313; Daniell's Ch. Pr.. (2d Am. ed.) 1934, 1935.

§ 262. Daniell's Ch. Pr. (2d Am. ed.) 1933; Beames on Ne Exeat, 1-20.

2 Flack v. Holm, 1 J. & W. 405; Daniell's Ch. Pr. (2d Am. ed.) 1933, 1934.

3 De Carriere v. De Calonne, 4 Ves. 577; Mitchell v. Bunch, 2 Paige (N. Y.), 606.

4 Moore v. Hudson, Mad. & Geld. 218; Moore v. Meynell, 1 Dick. 30; Daniell's Ch. Pr. (2d Am. ed.) 191. Raynes v. Wyse, 2 Meriv. 472; Daniell's Ch. Pr. (2d Am. ed.) 1930, 1931.

14 Anon., 1 Atk. 521. 15 Whitehouse V. 5 Partridge, Swanst. 365, 377; Seymour v. Hazard, 1 J. Ch. (N. Y.) 1.

16 Dick v. Swinton, 1 V. & B. 371.

6 Const., art. I, § 6.