But a receiver appointed by the controller of the currency for a National Bank located in another state is not a foreign receiver, and may sue in the courts of New York for an assessment levied on shareholders of the bank without regard to the doctrine of comity.1

The title of a receiver of an insolvent corporation to the personal estate of the corporation prevails over attachments of individual creditors in states foreign to that of the domicile of the corporation.2 Independent of any statute recognizing the title and right to sue by virtue of his appointment as receiver from foreign juris

Co., 31 F. 305. A New York Telegraph Co. owning lines in Maryland became insolvent, and a receiver was appointed by the New York court. Afterwards, at the instance of a creditor, the Maryland court appointed receivers of the Maryland property. The New York receiver after such appointment made an agreement for the disposal of the Maryland property. It was held that the New York receiver not having been appointed by a court having jurisdiction of the property, he could not alter its status in the hands of the Maryland receivers, and that, as against the latter, the contracting parties acquired no rights under the agreement. Day v. Postal Tel. Co., 66 Md. 354; 7 A. 608.

In a suit to foreclose a mortgage upon a railway extending through several estates where original bill is filed in Tennessee and ancillary bills in Georgia, Alabama, Mississippi, upon application to the ancillary court in Georgia by judgment creditor of the mortgagor to have an order against the receiver to pay his claim out of the earnings of the mortgagor that were on hand at the date of the appointment of the receiver, held, dismissing the petition without prejudice that the court in Tennessee, in which the original bill was filed, and upon whose order the receiver had paid out all funds coming to his hands, is the proper tribunal to which a judgment creditor should make application for relief. Central Trust Co. v. East Tennessee V. & G. R. Co., 30 F. 895.

A receiver appointed in another state by an order directing a resident member of a firm owning stock to assign it to the receiver and to make him an attorney, in fact to transfer the stock to himself as receiver on the company's books, acquires the legal title to the stock by the assignment and power of attorney regardless of his title as receiver; and a court of New York will assist him to effect such transfer. Weller v. J. B. Pace Tobacco Co., 2 N. Y. S. 292.

1 Peters v. Foster, 56 Hun, 607; 10 N. Y. S. 389. But the rule that the court appointing a receiver will reserve the right and power to control him, and the property under his charge, cannot prevent a receiver appointed by a state court from bringing in the federal courts suits affecting the receivership property. Chambers v. McDougal, 42 F. 694.

2 The principle of the text applied in a case where the receiver had chartered a barge which had belonged to the corporation and allowed it to be taken under the contract to another state where it was attached. Chicago, etc., R. R. Co. v. Keokuk Packet Co., 108 Hl. 317.

dictions, courts, on principles of a just comity, will usually extend to him the same remedies and rules of judgment in the recovery of the assets of the corporation that it would give to one appointed over a domestic corporation.1

§ 863. Cannot affect title to real estate. But although the appointment of a receiver have the effect of vesting him with the title to the property of the corporation yet the appointment cannot have extra territorial effect upon the title to real estate.

It remains the property of the corporation, and is subject to seizure by its creditors notwithstanding the insolvency proceedings and appointment of a receiver.2 The receiver is entitled to the possession and control of the rents and profits of real estate.3

864. Not bound by previous illegal acts. He may in all cases bring actions to set aside transfers of the property and other transactions of the corporation, the natural tendency and result of which has been to defraud creditors and stockholders, and to annul trans

Nat. Trust Co. v. Miller, 33 N. J. Eq. 155.

2 Simpkins v. Smith, etc., Gold Co., 50 How. Pr. 56. One not a party to a suit, in which a receiver was appointed of an insolvent corporation, may file his petition in equity setting up a right to the possession of certain land in the possession of receiver as such, and praying the court to adjudicate upon such right, and award him the possession, in the absence of any appearance of a ground of claim of right of possession on the part of any other party not before the court, although the claim of petitioner is within the jurisdiction of a court of law. Smith v. Perth Amboy Brick Co. (N. J.), 20 A. 852; Potter v. Spa Spring Brick Co., Id.

3 The receiver of the late corporation known as "The Church of Jesus Christ of Latter-Day Saints," appointed by the court under act Cong. March 3, 1887, as he represents, not only the late corporation, but also the government and all who have interests in the property, may take possession under an order of court, of property of the corporation, assigned in fraud of the government, though such assignment might be good as between the parties thereto. United States v. Late Corporation of Church of Jesus Christ, etc. (Utah), 18 P. 35.

actions and recover the property represented by them or its value.1

On the same principle of the illegality of the transaction and upon the additional ground that the shareholders will be protected from a multiplicity of actions brought by individual creditors, a receiver may maintain an action on behalf of the creditors to recover back dividends which have been improperly paid.2

§ 865. Where powers are defined by statute.-Receivers over corporations appointed under statutes which regulate their authority and prescribe their duties and powers, derive their powers exclusively from such statutes and have no additional powers to those conferred. But their authority is not limited to the express terms employed in the statute. They may exercise any powers coming by implication within the general scope and purpose of the statute or are incidental to those expressly given.3

§ 866. Presumed authority.—And when title is claimed under acts done or transfers made by a receiver the presumption will be indulged that he has acted in pursuance of his lawful authority and in the bona fide discharge of his duties until the contrary is shown.*

1 Gillett v. Moody, 3 N. Y. 479; Butterworth v. O'Brien, 24 How. Pr. 438; Gillett v. Phillips, 13 N. Y. 114.

2 Osgood v. Laytin, 3 Keyes, 521; Osgood v. Odgen, 4 Keyes, 70. Per contra, Butterworth v. O'Brien, supra. The reasoning in support of the doctrine of the text was very clearly expressed in the first case here cited. It was an action by the receiver of an insolvent insurance company to recover back dividends paid in violation of a statute which provided that no dividend should ever be made when the capital stock was impaired or when the effect of such dividend would be to impair it, and that any shareholder receiving such dividend should be individu ally liable to the creditors of the corporation to the extent of the dividend received.

The court affirmed the right of the receiver to maintain the action.

2 Runyon v. Farmers', etc., Bank, 3 Green Ch. 480.

This presumption prevailed in a case where the receivers of a banking cor

§ 867. Duties of receivers with respect to assessments and calls. A receiver, standing in the place and stead of the corporation, has general power to make calls upon shareholders for any balances of capital remaining unpaid upon their subscriptions in such amounts and at such times as may be necessary for the satisfaction of the demands of creditors. He may call upon them from time to time until their entire liability is exhausted, or he may, if he considers the same will be needed, at once or at an early date require the payment of the whole in the first instance.1

In ascertaining the amount of the indebtedness of the corporation, and in making assessments upon the stockholders to meet the same, a receiver acts in the place and stead of the directors. But in making assessments he must have the sanction of the court which operates as a limitation upon his authority. The assessment is actually made, however, by the receiver and not by the court, and the former passes upon the question whether facts exist which render the assessments necessary and proper.2 In ordering a receiver to make an assessment upon the premium notes of an insurance company, a court does not adjudicate upon the liability of the company, or determine

poration had transferred to a third party a negotiable note, part of the assets of the bank in satisfaction of a claim held by him against the bank in favor of the title of such creditor under the action of the receivers in making the assignment in a suit upon it against the makers. Atchison v. Davidson, 2 Pin. Wis. 48. 1 Penz v. Hawley, 1 Barb. Ch. 122; Kennedy v. Gibson, 8 Wall, 498. 2 Thomas v. Whallon, 31 Barb. 172. See McDonald v. Ross Lewin, 29 Hun, 87. An order contained these words: "And if there shall be any sums due upon the capital stock of said company, the said receiver will proceed to collect and recover the same unless the persons from whom the said sums may be due shall be wholly insolvent, and for this purpose may prosecute action, etc." Held, that the authority intended to be conferred was merely to bring suit in case the court should levy an assessment, and that the order of itself did not amount to a call, from which prescription would begin to run. Glenn v. Macon, 32 F. 7.

the amounts for which assessments shall be made. In sanctioning the act of the receiver in making the assessment, the court merely acts as a check upon his powers, in the exercise of which he acts ministerially and not judicially.'

A receiver may include in the amount of an assessment sums remaining unpaid upon former assessments which were not collected on account of the insolvency of the delinquent shareholder.

868. Possesses only powers of corporation with respect to subscriptions.—But the receiver as the representative of the corporation possesses no more power in the matter of enforcing the payment of subscriptions than the corporation itself possessed. No contractual rights are varied by his appointment.2

In determining who are liable as shareholders he is not concluded by the showing made by the stock-books, but may enforce any valid subscriptions which the corporation itself might have enforced, and avail himself of any securities for capital due on subscriptions which the corporation could have made available either at law or in equity.3

1 Id.

2 Where the subscriptions expressly stipulated that only twenty per cent. should be paid at certain specified dates and that the balance could only be called for by the directors except upon instructions given at a regular meeting it was held that a receiver after the insolvency of the corporation could not compel payment of the unpaid eighty per cent. See also, Chandler v. Keith, 42 Ia. 99; Shaughnessy v. Rensselaer Ins. Co., 21 Barb. 605; Republic L. Ins. Co. v. Sweiger (Ill.), 25 N. E. 680; Williams v. Babcock, 25 Id. 109; Bell v. Shibley, 33 Id. 610.

8 Battershall v. Davis, 31 Barb. 323. In an action by the receiver of a national bank against a shareholder to recover an assessment ordered by the comptroller, an allegation in the petition that on a day named "the comptroller of the currency, in order to pay the liabilities of" the bank, "made an assessment upon all the said shares, of the capital stock of said " bank of 100 per cent. upon its par value" and ordered the stockholders to pay the same on or before" a day named, is sufficient to show that the requisite action was had by the comptroller, not only as to determining upon the necessity of an assessment, but also as to the enforcement thereof by suit against the delinquent stockholders. Wells v. Stout, 38 F.