$879. As a general rule not personally liable.-No such suit will lie against him personally. He is only person

official character, and should not prescribe any particular fund on which it shall be a lien, as all the property of the company is in the hands of the court appointing the receiver, and the latter court should determine matters pertaining to the enforcement of the judgment. Brown v. Brown, 71 Tex. 355; 9 S. W. 261. In trespass against a railroad company, where a receiver is substituted for defendant, without objection, it is not error to refuse to strike out his name during the trial. Jackson v. Dines (Colo.), 21 P. 918.

Where a railroad company, in consideration of a right of way, contracts with the grantor for the erection of a tank on his land for its use, to be supplied with water from his spring, and agrees to pay him therefor, a lien to secure such payment exists on the earnings of the road in the hands of a receiver subsequently appointed, and an action for the breach of such contract will lie, and judgment may be rendered against the receiver, under general laws of Tex. 1877, p. 12, which provides that all causes of action, when determined, existing against the corporation at the time of the appointing of a receiver, shall be paid out of the earnings of the corporation while in his hands, and the same shall be a lien on such earnings. Howe v. Harding, 76 Tex. 17; 13 S. W. 41.

Where a receiver has been appointed on the dissolution of a corporation, against whom an action is pending, a motion to substitute him as party defendant, in its stead, comes too late after he has distributed the assets, under order of the court, allowing proved claims duly advertised for under the statute Owen v. Homeopathic Mut. Life Ins. Co. (Owen v. Kellogg), 10 N. Y. S. 75; 56 Hun, 455.

Where a state court has jurisdiction of the parties and the subject matter, its judgment against the receiver of a United States court is final and conclusive. Central Trust Co. v. St. Louis. A. T. Ry. Co., 41 F. 551.

Receivers appealing in good faith from the judgments of the state courts should not be required to give supersedeas bonds. Central Trust Co., St. Louis A. & T. Ry. Co., 41 F. 551.

Where the receiver has been discharged by the court appointing him and the property returned to defendant, the jurisdiction of the court is ended, and an order in such decree, that the property shall be relieved from any liability on claims not established by intervention in the suit in which receiver was appointed, does not affect defendant's liability for injuries to plaintiff arising from the receiver's negligence, where it has received in improvements, earnings out of which plaintiff was entitled to have such damages paid, though his claim was not established by such intervention. Texas & P. Ry. Co. v. Johnson, 76 Tex. 421; 18 S. W. 463. A receiver appointed by a United States circuit court in a suit to foreclose a general railroad mortgage, and invested with possession of all its property, with power to defend all suits brought against himself or the company, and intervene in pending suits, is not a proper party to an action originally brought against the company for a trespass committed before his appointment. Reversing 11 N. Y. S. 388. Decker v. Gardner, (N. Y.), 26 N. E. 814. In a suit against the receiver of a railroad, appointed by a court of competent jurisdiction, for damage to freight while he was operating the road, a judgment against the company is erroneous, the latter having been made a party by an amended petition, alleging that the receiver had been discharged,

ally liable for losses and injuries sustained through his own personal neglect and misconduct. The doctrine

and all the property in his hands returned to the company, but no facts being alleged or proved making the company liable for loss, which occurred while the road was operated by the receiver. Texas & Pac. Ry. Co. v. Adams (Tex.), 14 S. W. 666. Where several million dollars of the net earnings of a railroad, while in the hands of a receiver, have been invested in betterments and improvements, and the receiver has been discharged, and the property restored to the company, it is liable on a cause of action which accrued against the receiver for the destruction of a street-car by collision with a train. Brown v. Rosedale St. Ry. Co. (Tex.), 15 S. W. 120. Where the receiver has been discharged by the court appointing him, and the property returned to defendant, the jurisdiction of the court is ended; and an order, in such decree, that the property shall be relieved from any liability on claims not established by intervention in the suit in which receiver was appointed, does not affect defendant's liability for injuries to plaintiff arising from the receiver's negligence, where it has received in improvements earnings out of which plaintiff was entitled to have such damages paid, though his claim is not established by such intervention. Following Railway Co. v. Johnson, 13 S. W. 463; Kretz v. Texas & P. Ry. Co. (Tex.),14 S. W. 1067. At the time of commencing suit to foreclose a mortgage and trust-deed on certain mining property, an ex parte order was made on application of complainants, appointing a receiver of the company's property, to take charge of and preserve it, and he was authorized to borrow money to work the mine and do things necessary for the preservation of the property. At this time the company owned an adjoining tract of land not covered by the mortgage and trust-deed, and had a station thereon connected with the mines in the mortgaged tract, and worked as a part of the same general system, under a single management. The minerals extracted from the whole system by the receiver did not pay the expenses, but in the mining done on said adjacent tract there was a profit. Held, that the receiver had no right to take ores from such tract, and that for such profit he was liable to a general creditor of the company on supplementary proceedings against the company. Reversing 23 P. 710; Staples v. May (Cal.), 25 P. 346.

1 Davies v. Duncan, 19 Fed. Rep. 477; Turner v. Indianapolis, etc., R. R. Co., 8 Biss. 527; Camp v. Barney, 4 Hun, 373; Farmers' Loan, etc., Co. v. Central R. R. Co., 2 McCreary, 181. It is no jurisdictional bar to a suit at law, for a tort, against receivers appointed by the court of chancery, that leave to prosecute was not first obtained of that court. Reaffirming Lyman v. Railroad Co., 59 Vt. 167; 10 A. 346; Town of Roxbury v. Central Vt. R. Co., 60 Vt. 121; 14 A. 92.

Where a mining company operates its various mines under one system and the proceeds of the ore extracted from each are used indiscriminately, for the common benefit of all, a receiver appointed on the foreclosure of mortgages covering a part only of the company's property, with power to take possession of the mortgaged premises and to carry on the mines, who is permitted by the company to take possession of its entire property, and to work all its mines, rendering them more valuable and more capable of paying creditors, cannot be considered a trespasser, and is not personally liable to a general creditor of the

respondeat superior has no application in the case of misconduct and negligence of those engaged by him in a subordinate capacity in the execution of the trust without his personal participation therein.1

And a court of a state foreign to that of the receiver, but within whose territory the receiver is carrying on business or using property which forms a part of his trust, has no jurisdiction over a suit brought for damages arising from his negligence, or that of his employees, while in the discharge of their duties in the management of such property, without the consent of the tribunal under whose direction such trust is being administered,2

His act in such case is but the act of a court of equal authority and dignity with that in which the action is brought.

Upon this ground and also upon that of the inconvenience which would result from the operation of a different rule a receiver cannot be made a party to an injunction issued to restrain him in the discharge of his official trust.

The proper remedy in such case is to apply to the

company for sums realized by him from a mine not covered by the mortgage. Staple v. May (Cal.), 23 P. 710.

In an action against a receiver of a railroad company, for injuries received by a passenger, judgment should not be entered against the receiver personally. McNulty v. Enoch (Ill.), 24 N. E. 631.

1 In an action against a receiver of a railroad company for damages for the negligent killing of plaintiff's testator on the road which was being operated under his supervision, the court said: "The property was in the court for management and administration. The defendant was an officer of the court, obeying its orders and carrying out its directions, and there is no principle upon which a receiver or other officers of a court merely obeying the orders of the court having no interest in the prosecution of the work and deriving no profits from it should be held answerable, except for his own acts and neglects." Cardot v. Barney, 63 N. Y. 281. The principle declared in this case holds good, although the damage resulted from negligence, of which the employé was guilty in a different state from that of the receiver's appointment. Kain v. Smith, 11 Hun, 552.

2 Barton v. Barber, 104 U. S. 106.

court under whose order of appointment he acts for instructions.1

§ 880. His title to possession of property.-A receiver's right of possession of all the property of the corporation attaches immediately upon his appointment; and anyone interfering with his possession may be attached for contempt as may a defendant over whose property a receiver has been appointed for refusing to deliver possession to him in compliance with the order.2

And his right of possession carries with it the right to preserve the property and to make all needful expenditures for that purpose.3

But persons who claim title to property in good faith adversely to that of the party represented by the receiver and who have not been made parties to the litigation out of which his appointment arose, are not in contempt in refusing to obey the order.*

But the fact that property is in the hands of a receiver does not prevent the prosecution of an action to establish a mechanic's lien against it."

§ 881. Custody and disbursement of funds.-In extraordinary cases, involving a large outlay of money, the receiver should always apply to the court in advance for authority to make the purchase or improvement proposed, and except in such cases, the submission by

1 Van Rensselaer v. Emery, 9 How. Pr. 135.

2 People v. Rogers, 2 Paige, 103.

3 Grant v. Phoenix L. Ins. Co., 7 S. Ct. 849.

In a case where one had purchased property at a sheriff's sale under execution against a defendant, over whose assets a receiver had been appointed, and he had not been afforded an opportunity of asserting his rights before the court, it was held that he was not in contempt for refusing to deliver the prop erty to the receiver in compliance with the order of a master. Robeson v. Ford, 3 Edw. Ch. 441.

• Richardson v. Hickman, 32 Ark. 105.

the receiver, at frequent intervals, of his accounts to the master, giving the latter an opportunity to disallow whatever he may not approve, will be regarded as a sufficient reference to the court for its ratification of the receiver's proceedings.1

A receiver holds the funds of a corporation in his hands by a different title and in a different capacity from those appertaining to his own private estate; and if he mingle the trust estate with his own he becomes personally liable for the former.2

1 Cowdrey v. R. Co., 1 Woods, 331; Vilas v. Page (N. Y.), 13 N. E. 743. Where the receiver has realized on all the assets except certain stock, bonds, and real estate, which are for the time unmerchantable, except at a sacrifice, the court may, in order to close the trust, direct the security to be sold at public auction, after full notice to all persons interested, at an upset price, and in proper lots to invite buyers. In re Newark Savings Inst. (N. J.), 9 A. 375. On petition of the receivers of an insolvent railway system showing that one branch had earned more than operating expenses, an order was made that out of the profits of that branch the rental thereon be paid until otherwise directed. Held, that the lessor had a right to rely on this order and the receivers would be required to pay the rental from the time specified. Central Trust Co. v. Wabash St. L. & P. Ry. Co., 34 F. 259.

Payments made by liquidators under ex parte orders of a court, are open to inquiry as to their correctness. In re Louisiana Savings Bank and Safe De

posit Co., 40 La. Ann. 514; 4 So. 301.

Though a decree fixing the rights of attachment creditors and the liability of a garnishee, and requiring payment to and disbursements of the fund by a receiver, be final, the court is not precluded from requiring the receiver to obey its order as to the fund. Baltimore & C. R. Co. v. Vanderwerker, 33 W. Va. 191; 10 S. E. 289. See also, In re Mallery, 50 Hun, 601.

Where an insurance company issues to a receiver a policy on his interests as receiver, with full knowledge of the capacity in which he acts, it is no defence to an action on the policy that the receiver had no special instructions to expend money in his hands for the payment of premiums. Thompson v. Phoenix Ins. Co., 10 S. Ct. 1019; 136 U. S. 237.

A receiver cannot, before sale of the goods of the receivership, take an interest therein with one who intends to purchase them. Penzel Grocer Co. v. Williams (Ark), 13 S. W. 736.

The court may correct a mistake in the computation of the amount of a receiver's sale, which is apparent on the record and papers. Bryant & Brown Shoe Co. v. Block, 52 Ark. 458; 12 S. W. 1073.

2 It was held that he becomes a debtor to the estate as a borrower, where a loss ensued from his depositing the funds of the estate in a bank with his own. Matter of Stafford, 11 Barb. 353.