tinguished from the franchise of the corporation.2 In some of the states the rolling stock of a railroad corporation is deemed personal property, which can be levied on and sold as such under an execution against the company. But an opposite rule prevails in other states, and in some the matter has been determined by statute.5 The right of a foreign corporation to a deed from the sheriff of land bought by the corporation on execution is liable to attachment. And a deposit by a corporation in a bank is a debt by the bank to the corporation, which may be attached by a judgment creditor of the corporation.7 Money, bank-bills, or any evidences of debt issued by a moneyed corporation, may be taken on execution. And, as a general rule, a corporation is bound for its just debts on execution, whether the payment is made by a sale of property for that purpose, or with money from its vaults.9 The strictly private property of a municipal corporation, or property owned by it as a mere investment of funds, 10 is liable to seizure on execution. But taxes and revenues due to municipal corporations, whether in the treasury or in transit to it, cannot be seized under execution by a creditor of the corporation; 12 and so of property owned or used by the corporation for public purposes, such as buildings and property necessary to carry on water-works, and the like. 18 And it was held that money received from the sale of tickets and collection of freights, and in possession of a station agent of a railway company, could not be attached by trustee process in a suit against the company by one of its creditors. 14

1 Evangelical etc. Home v. Buffalo Hydraulic Assoc. 4 Hun. 419; 64 N. Y. 561.

2 State v. Rives, 5 Ired. 297; Slee v. Bloom, 19 Johns. 456, 475; Good. rich v. Burbank, 12 Allen, 459.

3 Sec Bement v. Plattsburg etc. R. R. Co. 47 Barb. 104; Beardsley . Ontario Bank, 31 id. 619; Boston etc. R. R. Co. v. Gilmore, 37 N. H. 410; Strickland v. Parker, 54 Me. 263; Railroad Co. v. James, 6 Wall 750; Coer. Railroad Co. 10 Ohio St. 372; Hoyle v. Plattsburgh etc. R. R. Co. 54 N. Y. 314; Howe v. Freeman, 14 Gray, 566; Denmead v. Bank of Baltimore, 9 Md. 179.

4 Applegate v. Ernest, 3 Bush, 649; Covey v. Pittsburg etc. R. R.. BOONE CORP.-22.

Co. 3 Phila. 173; Wood v. Turnpike Co. 24 Cal. 473; West Penn'a R. R. Co. r. Johnston, 5) Pa. St. 250; Titus e. Ginheimer, 27 Ill. 462.

5 Al rolling stock of any rai road company in Wisconsin is by statute made a fixture: see Chicago etc. R. R. Co. v. Borough of Fort Edward, 21 Wis. 44; and see Mere. Rutland etc. R. R. Co. 56 V t. 452. The Constitution of Innois fixes the character of rolling stock as per sonal property: Const. l. art. 11. § 10. In Indiana it is treated as realty for taxable purposes: see Louisville etc. R. R. Co. v. State, 25 Ind. 177.

6 Wright v. Douglass, 2 N. Y. 373.

7 Farmers' etc. Bank r. Ryan, 64 Pa. St. 236. But compare Carroll v. Conc, 41 N. Y. 216; 40 Barb. 220.

8 Turner r. Fendall, 1 Craneh, 117; Seymour v. Dascomb, 12 Wend. 584: Holmes r. Nunca ter, 12 Johns. 395; and see Spencer v. Blaisdell, -4 N. H. 198; Noble r. Kelly, 40 N. Y. 415.

9 Maryland v. Bank of Maryland, 6 Gill & J.205; and see Van Dyke . Besser, 35 Ga. 173.

10 New Orleans v. Ins. Co. 23 La. An. 61.

11 New Orleans v. Ins. Co. 23 La. An. 61; Davenport v. Ins. Co. 17 Iowa. 276; Louisville r. Commonw. 1 Duval, 295; Holliday r. Frisbie, 15 Cal. 630. Compare State v. Milwaukee, 20 Wis. 87; Commonw. v. Perkins, 43 Pa. St. 400.

12 Egerton v. Municipality etc. 1 La. An. 435; and see Railroad Co. . Municipality etc. 7 id. 148.

13 Foster v. Fowler, 60 Pa. St. 27; President etc. v. Indianapolis, 12 Ind. 620; Green v. Marks, 24 Ill. 221; Gooch v. Gregory, 65 No. Car. 14% 14 Pettingil v. Androscoggin R. R. Co. 51 Me. 370. Compare Ever dell v. Sheboygan etc. R. R. Co. 41 Wis. 395.

§ 171. Stock not liable to levy on execution.— The levy and sale upon execution of shares in the stock of a corporation is not authorized at common law; but in some of the states they have been expressly made liable to execution by statute. If the act of incorporation provides a mode in which the shares of members may he attached and sold on execution, the general provision of a statute on the same subject is thereby superseded.

1 Denton v. Livingston, 9 Johns. 96; Denny v. Hamilton, 16 Mass. 402; Johns v. Johns, 1 Ohio St. 350; Ross v. Ross, 25 Ga. 297; Arnold v. Ruggles, IR. I. 165.

2 See Howe r. Starkweather, 17 Mass. 240; Iowa Code, § 2967; Toledo etc. R. R. Co. v. Reynolds, 72 Ill. 457; North. Central R. R. Co. v. Rider, 45 Md. 24; Graw v. Memphis etc. R. R. Co. 5 Cold. 434.

3 Titcomb v. Union Ins. Co. 8 Mass. 326. Compare Martin v. Mobile etc. R. R. Co. 7 Bush, 116. An officer of a corporation may be garnisheed for money or property of the company in his hands: Everdell v. She boygan etc. R. R. Co. 41 Wis. 35. Compare Pettiugil v. Androscoggin R. R. Co. 51 Me. 370; Graw v. Memphis etc. R. R. Co. 5 Cold. 434. A balance due on a subscription to the stock of a corporation, may be attached the same as other debts: Peterson v. Sinclair, 83 Pa. St.

§ 172. When receiver will be appointed.-The appointment of receivers over corporations, in proper cases, is not against public policy,1 and is a common subject of statutory provisions and regulations. And independent of statute, a court of general equity powers may appoint a receiver, where there are no persons authorized to take charge of the corporate property; or where fraud is shown in the defendant, and the fund is in danger of being wasted or misapplied; or to prevent the removal of the property beyond the jurisdiction of the court; 5 or to take charge of and manage a railroad, when such a course is indispensable to secure the rights of the legitimate stockholders, and to prevent a failure of justice.6 And the fact that a charter specially authorizes the appointment of a receiver in a particular contingency, does not oust the ordinary jurisdiction of chancery to appoint a receiver. But receiverships should be granted with great caution, and only in cases of pressing apparent necessity; there must be a well-grounded apprehension of injury about to be done. And a court of equity has not power, by virtue of its general jurisdiction over corporate bodies, to dissolve the corporation, or to wind up its affairs and sequester the corporate property and effects, in the absence of express statutory authority. 10 And where such power is specially delegated by statute, the provisions of the statute must be strictly pursued.11 In case of a mortgage of tolls and income, and the earnings are being so applied as not to be legally applicable to reduce the incumbrance, a receiver inay properly be appointed. 12 But the infidelity or misconduct of some, or all, of the trustees or managers, affords no ground for taking away the rights of the shareholders who constitute the company, either by dissolving it, or taking away its management, and placing it in the hands of an officer of the court; 13 in such case, the principles of preventive justice go no farther than to enjoin the misconduct, or to remove the unfaithful officer.14 The proceeding to appoint a receiver

8

for the purpose of securing the application of the revenues and net profits of the corporate business, to the satisfac tion of a judgment creditor, is usually a matter of statutory regulation. 15 After the creditor has established his claim by a judgment at law, and execution is returned in whole or in part unsatisfied, he may file a bill on behalf of himself and other creditors, against the corporation and its delinquent stockholders, for an account of the assets and the appointment of a receiver, 16

1 State r. Central Railw. Co. 18 Md. 193.

2 See Att.-Gen. e. Ins. Co. 4 Paige, 224; Empire City Bank Case, 18 N. Y. 19; People v. Albany etc. R. R. Co. 55 Barb. 344; 7 Abb. Pr. N. S. 255; Penn'a R. R. Co. c. Pemberton etc. R. R. Co. 23 N. J. Eq. 338; Bangs r. McIntosh, 23 Barb. 5 1; Covington Drawbridge Co. r. Shep herd, 21 How. 112; Bank Comm'rs e. Central Bank, 5 R. 1. 12; Ireland . Nichols, 37 How. Pr. 222. On whose appi.cation appointed: see Kimbail e. Goodburn, 32 Mich. lo; Kennedy č. St. Paul cic. R. R. Co. z Dill. 448.

3 Lawrence . Greenwich Fire Ins. Co. 1 Paige, 587; Conro v. Port Henry Iron Co. 4 How. Pr. 165.

4 Podmore r. Gunning, 5 Sim. 485; Willis v. Corlies, 2 Edw. Ch. 281; Orphan Asylum e. McCartee, 1 Hopk.' Ch. 429.

5 Sandford r. Sinclair, 8 Paige, 373; Couro v. Port Henry Iron Co. 12 Barb. 27; Gibbons v. Mainwaring, 9 Sim. 77.

6 Stevens r. Davison, 18 Gratt. 819; Ohio etc. R. R. Co. v. Davis, 23 Ind. 558; Newell v. Smith, 4) Vt. 255; Meyer e. Johnston, 53 Ala. 237; Cowdrey e. Galveston etc. R. R. Co. 93 U. S. 352.

7 Fripp r. Chard Railw. 11 Hare, 241; 21 Eng. L. & Eq. 53. The reg ularity of the appointment of a receiver cannot be questioned collater ally, by any other tribanal than the one by which he was appointed: Russell. East Ang. Railw. Co. 3 Mach. & G. 104; Att.-Gen. v. Life Ins. Co. 77 N. Y. 272.

8 Patten v. Accessory Transit Co. 13 How. Pr. 502; 4 Abb. Pr. 235. Compare Evans e. Coventry, 5 DeGex M. & G. 911; Owen v. Homan, 4 H. L. Cas. 997.

9 Kean r. Colt, 1 Halst. Ch. 365.

10 See Howe r. Deuel, 43 Barb. 504; Belmont v. Erie Railw. Co. 52 id. 637; Neall e. Hill, 15 Cal. 145; Gaylord r. Fort Wayne etc. R. R. Co. 6 Biss. 286; Baker r. Administrator etc. 32 111. 79.

11 Bangs r. McIntosh, 23 Barb. 591.

12 Ruggles r. Southern Minn. R. R. Co. 17 Int. Rev. Rec. 29. Com. pare Re Hammersmith Town Hall Co. Law R. 6 Ch. Div. 112.

13 Waterbury v. Merchants' Un. Ex. Co. 50 Barb. 157.

14 Waterbury r. Merchants' Un. Ex. Co. 50 Barb. 157. Compare Featherstone r. Cooke, Law R. 16 Eq. 298; Samuel v. Holladay, Woolw.

400.

15 See Covington Drawbridge Co. v. Shepherd, 21 How. 112; Mann v. Pentz, 3 N. Y. 415; Atlas Bank v. Nahant Bank, 23 Pick. 480; Bartlett . Drew, 60 Barb. 648; 4 Lans. 444; 57 N. Y. 587; Osgood v. Maguire, 61

id. 524, 523.

16 Adler v. Milwaukee etc. Manuf. Co. 13 Wis. 57; Ward v. Manuf. Co. 16 Conn. 593; Wool v. Drunmer, 3 Mas. (C. C.) 308; Griffith v. Man aid, 73 N. Y. 611; Bartlett v. Drew, 57 id. 587. Compare linch v. South Side R. R. Co. 4 Thomp. & C. 224; 1 Hun, 636; Galwey v. Sugar Ref. Co. 36 Barb. 256; 13 Abb. Pr. 211; Mills v. Stewart, 62 Barb. 444.

§ 173. Who may be appointed receiver.—A receiver should be a strictly disinterested person, of unimpeachable honor and integrity, possessed of sufficient knowledge and ability to discharge his duties properly.1 An officer or stockholder of an insolvent corporation is not a proper person to be appointed its receiver.2 But on a voluntary dissolution of a corporation, its officers or stockholders may be appointed receivers. As a general rule, a trustee will not be appointed a receiver, if any other can be procured.4 And the attorney in the cause is absolutely disqualified from holding the position.5

1 Fripp v. Chard Railw. 11 Hare, 241; 21 Eng. L. & Eq. 53; Smith . Stage Co. 18 Abb Pr. 419; 28 How. Pf. 208; Freeholders v. State Bank, 28 N. J. Eq. 166.

2 Att.-Gen. v. Fank of Columbia, 1 Paige, 511; 4 Wend. 588; Bank of Mouroe v. Schermerhorn, 1 Clarke Ch. 306.

3 Matter of Eagle Iron Works, 8 Paige, 385; Matter of Bowery Bank. 5 Abb. Pr. 415; 16 How. Pr. 56.

4 Sutton v. Jones, 15 Ves. 584.

5 Baker v. Backus, 32 Ill. 79.

§ 174. Functions of receiver.-The receiver is the officer of the court appointing him,1 and his possession is the possession of the court. He is entitled to the protection of the court while in the proper discharge of his duty,3 and persons interfering with him are guilty of contempt of court. The receiver of an insolvent corporation represents not only the company, but also the creditors and stockholders; 6 and in his character as trustee for the latter, he may disaffirin and maintain an action as receiver to set aside illegal or fraudulent transfers of the property of the corporation made by its agents or officers, or to recover its funds or securities invested or misapplied. But he has no greater rights than the corporation he represents, and he cannot impeach or disaffirm its lawful and authorized acts. The receiver of a national bank duly appointed is an officer of the United States.9