The issue of the certificate is, however, confined strictly to the purposes expressed in the order, and these purposes cannot be extended by application.1

§ 884. Compensation. The question of what compensation a receiver should receive for his services is one the determination of which falls peculiarly and exclusively within the province of the court under whose order he derives his authority to act. There is no fixed rule or measure of compensation either in England or in this country; and in the absence of a statute on this subject it should be fixed after due consideration of the capacity and business tact which he has exhibited in the discharge of the duties of the position and the degree of difficulty and labor involved in each particular case.2

road, Turner v. P. & S. R. Co., 95 Ill. 134; Stanton v. A. & C. R. Co., 2 Woods, 506; to procure rolling stock machinery and necessary supplies, and to repair and operate the road, Swan v. Clark, 110 U. S. 602; and in payment for labor, materials, supplies and taxes due prior to the receivership, Humphreys v. Allen, 101 Ill. 490; Taylor v. P. & R. R. Co., 7 Fed. Rep. 377; High on Receivers, 2d Ed. sec. 398, d.

1 When the receiver is authorized to issue certificates as material is furnished and labor performed in extending the road, not to exceed a given amount per mile, he cannot issue them in advance of the actual performance of the labor or furnishing of the materials. Bank of Montreal v. C. C. & W. R. Co., 48 Iowa,

518.

2 Day v. Croft, 2 Beav. 488; Abbott v. Baltimore & Rappahannock Steam Packet Co., 4 Md. Ch. 310; Cowdrey v. The Railroad Co., 1 Woods, 331. The surviving receiver is entitled to fees for his services rendered after the death of his colleague and of a trustee of the same estate. Burroughs v. Bunnell, 70 Md. 18: 16 A. 447.

An excessive claim by the receiver for compensation for his services is not necessarily a fraudulent charge, particularly where he merely declares his opinion as to the value of his services, and where witnesses of known respectability and high business standing give opinions supporting his claim. United States v. Late Corporation of Church of Jesus Christ of Latter-Day Saints (Utah), 21 P. 506.

Ten thousand dollars is an adequate compensation for the services rendered by the receiver of the late corporation of the Church of Jesus Christ of LatterDay Saints, in view of the facts and the property which he collected and handled, amounting to $725,000, consisting in part of real estate, which required but little trouble in caring for, and of personal property which he acquired without litiga

In Massachusetts a rule seems to have been established whose fairness it would be difficult to impeach. It allows receivers such sum as would be reasonable compensation for the services of a person of ordinary business ability who is competent to perform the duties of the position.

§ 885. Counsel fees.-Receivers would in most cases be unable to effectually administer the estates entrusted to them without either considerable practical knowledge of law or the aid of counsel possessing such knowledge.

And the duty of fixing the amount of counsel fees, like that of determining upon the receiver's compensation, rests principally with the court. But unlike the compensation of the receiver, the fees of counsel

tion, and collected and otherwise disposed of without difficulty, and that his active duties covered only about one year. United States v. Late Corporation of Church of Jesus Christ of Latter Day Saints (Utah), 21 P. 516.

Where the master reports that the compensation allowed a receiver is fair and reasonable, and his finding is sustained by the testimony of competent and experienced men, it will not be disturbed. Karn v. Rorer Iron Co., 86 Va. 754; 11 S. E. 431. Where a receiver is appointed to manage the business of a corporation, his compensation should be regulated as far as possible by analogy to the rate of compensation allowed guardians and trustees for like services, and whatever compensation may be given, the order making the allowance should be definite, so that it may not be doubted on what basis or for what service the particular allowance is made. Tome v. King, 21 A. 279; 6 Md. 166; Hambleton v. Same, Id.

See also Greeley v. Provident Sav. Bank (Mo.), 15 S. W. 429. Upon the allowance of compensation, to a receiver and his counsel on final settlement, there is no error in not requiring, at the hands of the receiver and his counsel, an itemized account of their services. The allowance of compensation to a receiver cannot be resisted on the ground that the court had no power to appoint the receiver, that objection being a collateral attack on the order appointing him. Id. The rule that the compensation of a receiver appointed to take charge of the assets and wind up the affairs of a corporation should be retained from and paid out of the funds coming into his hands, generally applies to those cases where the receiver closes up the business and settles his accounts in pursuance of his appointment, and not to cases where the order appointing the receiver is set aside as improperly made, before such time. French v. Gifford, 31 Iowa, 428.

1 Grant v. Bryant, 101 Mass. 567; Jones v. Keen, 115 Mass. 170.

are usually fixed primarily by the receiver, subject, however, to the approval of the court.1

A receiver is seldom authorized by the order of appointment to employ counsel, but receives direction or permission for that purpose upon proper occasion, and is at liberty to select and employ his own counsel. He is not, however, personally liable for the misconduct of his attorney or for losses caused by the latter's embezzlements without the participation or gross negligence of the receiver.

The receiver may make payments to counsel for services rendered by him from time to time, according to contract, and present the amount of the fees so paid in his current or final accounts for allowance and settle

ment out of the trust fund. It is scarcely necessary to say that such fees should be not only necessary but should have been promised and paid in good faith.

Counsel fees paid out in good faith in resisting a motion for his removal have been held to be a proper charge upon the trust fund in the hands of a receiver.2

Fees due counsel for services performed outside the receivership do not generally come under the head of

1 Where the employment of an attorney by a receiver is unlawful by reason of his employment by an adverse party, he should not for that reason be denied a reasonable compensation for services which were valuable to the receiver, when performed with fidelity and ability; but a charge for services rendered in resisting an application for an accounting by the receiver is properly excluded, as well as charges for services rendered in a manner influenced by the attorney's professional connection with the adverse party. Clapp v. Clapp, 49 Hun, 195; 1 N. Y. S. 919. Independent counsel and solicitor for the receiver of an insolvent corporation should be appointed, instead of permitting the counsel and solicitor of the com plainant, in the proceedings to wind up the corporation, to act for him. Emons v. Davis & Dowd Pottery Co. (N. J.), 16 A. 167. The receiver of a national bank gave a claim to an attorney, agreeing to give him one-half the proceeds, and directed him not to compromise without his consent. This contract was not authorized by any court, nor by the comptroller of the currency. Held, that the receiver had no authority to make the contract, and that the attorney could recover no part of a lot conveyed to the receiver in compromise of the claim. Barrett v. Henrietta Nat. Bank (Tex.), 14 S. W. 569.

* Cowdrey v. Railroad Co., 1 Woods, 331.

labor. But where a receiver was directed to pay all claims existing on the pay rolls for services rendered among other things subsequent to a given time, the court required the counsel to specify the character of their services in order that the receiver might understandingly comply with the order with respect to the various services performed by them.1

§ 886. Removal and discharge.—As a receiver derives his authority solely from the court and is its administrative instrument, it is plain that he may be either removed or discharged at any time by the same source of authority. The right of a court of equity to remove a receiver for any satisfactory reason at any stage of the litigation is well settled.2

1 Baylies v. Lafayette, etc., R. Co., 9 Biss. 90.

2 The entire capital stock of a railroad company, and more, had been expended in building and equipping the railroad, and an indebtedness of at least $11,000 had been incurred, and subsequently mortgage bonds to the amount of $29,000 had been issued, but the indebtedness had not been liquidated, or the interest on the bonds paid, that the company was insolvent. Held, that the court properly refused to discharge the receiver. Sewell v. Cape May & S. P. R. Co. (N. J.), 9 A. 785.

Courts of equity will protect the interests of the minority holders of mortgages of a railroad company as against the majority, and will remove receivers appointed at the instigation of the majority, where it appears that the receivers are incompetent, and that part of them have interests in other corporations, adverse to the interests of the minority mortgagees, and are using their influence and powers as receivers in advancing such corporations, at the expense of the railroad. Atkins v. Wabash, St. L. & P. Ry. Co., 29 F. 161.

Upon original application of the insolvent Wabash Railroad Company, in the United States circuit court for the Eastern District of Missouri, certain receivers were appointed and their appointment confirmed by the several circuit courts exercising ancillary administration. Afterwards one of these latter courts, acting within its circuit, removed these receivers for unfitness, and appointed another to act within the jurisdiction of the appointing court. Held, by the court originally appointing the removed receivers, that, although this action was not according to the comity between the various circuit courts, yet an order would issue directing the receivers removed in such circuit to surrender the control of the lines within the jurisdiction of the court making the removal order to the receiver appointed in their stead. Central Trust Co. v. Wabash, St. L. & P. Ry. Co., 29 F. 618.

And the exercise of the discretionary power to remove a receiver will not be interfered with on appeal except in a clear case of abuse.1

The functions of a receiver usually terminate with the litigation in which he was appointed.2

But, as in the case of his removal, the court has a discretion in the determination of the question whether the necessity for the services of a receiver has ceased. For instance, in the case of a receiver of the estate of a lunatic upon the appointment of an administrator pendente lite by the proper court of probate; and in the case where a receiver has been appointed over the property of a person not a party to the cause.*

The receivership does not, however, necessarily terminate at the end of the litigation, and the court may, if the exigencies of the case require, continue him until no longer needed.5

And it may be stated generally that whenever the

The receiver of an insolvent railroad company cannot unjustly discriminate in the charges imposed upon rival shippers over his road, in order to increase his revenues, and if guilty of discrimination, may be removed by the court therefor. Handy v. Cleveland & M. R. Co., 31 F. 689.

A receiver is appointed to subserve the interests of all persons interested in the matter committed to his care, and the power to remove him is in the discretion of the court. First Nat. Bank v. E. T. Barnum Wire & Iron Works, 27 N. W. 657; 60 Mich. 487.

Where a receiver is ready and willing to pay the debt of a creditor of the estate, who has petitioned for his removal, in full, where the other creditors are satisfied with the receiver, the petition will be denied. First Nat. Bank v. E. T. Barnum Wire & Iron Works, 27 N. W. 657; 60 Mich. 487.

Where the receiver of an insolvent corporation has no assets in his hands, it is not error to discharge him upon the application of those at whose instance he was appointed, without making payment of his compensation and charges, a condition precedent to the discharge. Joslyn v. Athens Coach & Car Co. (Minn.), 46 N. W. 77.

1 Ferry v. Bánk, 15 How. Pr. 446; In re Colvin, 3 Md. Ch. 300.

2 Ireland v. Nichols, 40 How. Pr. 87; Field v. Jones, 11 Ga. 413; Beverly v. Brooke, 4 Gratt. 220.

3 In re Colvin, 3 Md. Ch. 297.

4 Lavender v. Lavender, Ir., Rep. 9 Eq. 593.

5 McCosker v. Brady, 1 Barb. Ch. 346; Whiteside v. Prendergast, 2 Barb. Ch. 471; Ireland v. Nichols, 40 How. Pr. 85.