ant) was treasurer of the combination. He testifies in his affidavit rather fully about the formation of the combination between the two companies. He testified that the reserve fund above mentioned, of $500, accumulated in the hands of the treasurer; that finally Sommers and his party bought the affiant's stock, and he retired from the management; that he turned over to the new management all the funds in three different checks of $911.80, $107.94, and $14.25; that at that time there were expenses outstanding and unpaid of only $400; that when he retired he was just preparing and ready to declare a dividend of $500, but he was instructed by the Sommers party not to pay said dividend; that while affiant was treasurer of the company he paid dividends to the stockholders of about $500 a month. Carl Shultz and his wife, Mary Shultz, each made an affidavit in which they testify as to Lauzier's and Butterfield's negotiations for the purchase of affiants' stock, and threats that if they did not sell that they (Lauzier and Butterfield), would freeze out said affiants. Haupt, one of the plaintiffs, also makes an affidavit that for more than a year after the combination of the two companies he received monthly dividends on his stock of 50 cents per share. This affiant

also alleges, on information and belief, that the combined corporations keep two sets of books, one of which sets of books shows the actual receipts and disbursements and the net profits of the association, and the other set of books does not show the correct accounts of the said corporations, but is kept for the purpose of deceiving and misleading stockholders who have been excluded from the management and participation in the management of said business; that, since the Sommers party obtained control of the business, affiant has received no dividends on his stock, although there have been large profits. This affiant then sets forth the execution of the Puddington notes and mortgage. He also sets forth the facts showing that-the Puddington franchise which he (Puddington) purported to sell to the companies for $9,000 was absolutely void and worthless. One of the employés of the combined corporations testifies to hearing Butterfield say that the business was good and paying as well as any business in town.

An answer was filed by the defendants, and also some affidavits. It is not necessary to recite the contents of these papers, for on the writ of certiorari in this court the question of the discretion of the lower court in appointing a receiver is not under review. After hearing argument in the district court as recited in its order, the court found that the plaintiffs were entitled to the appointment of a receiver pendente lite. It was therefore ordered that A. H. Barrett be appointed receiver pendente lite of the franchises, plants, business, books, and accounts, and of all other property belonging to the

said two corporations, for the purpose of managing and conducting said business; and he was by the order authorized and directed to take possession of the said premises, franchises, plants, and all property, books, and accounts, of any nature whatsoever, belonging to the said corporations, and to manage and control the same during the pendency of this action, and for that purpose to take care of and manage and control the said property and business, and to pay all debts and obligations, and collect all moneys due to the said corporations. It was ordered that the receiver give a bond, with sureties, in the sum of $10,000. Upon the appointment of the receiver, the said G. A. Lauzier made an application to this court upon behalf of himself, and purporting to be also on behalf of the two district telegraph companies, asking for a writ of certiorari to review the action of the district court in appointing a receiver. The application, of course, is made upon the ground that the district court had no jurisdiction to make the appointment. That is the point discussed and decided in the opinion below.

Robinson & Wapleton and John W. Cotter, for relators. Geo. Haldorn and Oliver M. Hall, for respondents.

DE WITT, J. (after stating the facts). The question in this case is simply whether under the facts, as recited in the statement above, the district court had jurisdiction to appoint a receiver. State v. Judge of Second Judicial Dist. Ct., 10 Mont. 401, 25 Pac. 1053. See, also, French Bank Case, 53 Cal., at page 550. There is here no question of the court's discretion under consideration. The relators in this application rely very largely upon the decision in the French Bank Case, but we think that the case at bar is distinguishable from that case in many respects, and, in order to make the distinction apparent, we quote as follows from the California case: "Irrespective of the effect of the fifth subdivision of section 564 of the Code of Civil Procedure, which will be presently considered, there is no jurisdiction vested in courts of equity to appoint a receiver of the property of a corporation in a suit prosecuted by a private party. This is only to say that there is no jurisdiction vested in these courts in such a case to dissolve a corporation; for the power of a receiver, when put in motion, of necessity supersedes the corporate power. It necessarily displaces the corporate management, and substitutes its own, and assumes, in the language of the order under review, 'to do all and everything necessary (in the judgment of the receiver, under the advice of the court) to protect the rights of the creditors and depositors of said corporation.' This precise question was brought directly under consideration here in the case of Neall v. Hill, 16 Cal. 145, where, in a suit brought by a stockholder, a receiver had been appointed

the redress of the specific wrongs which have been charged."

But the case before us is not an ordinary one, and perhaps it may be doubted that many such histories of fraud will be found in the conduct of human affairs. It is difficult to imagine a case more thoroughly saturated with fraud than this which was presented to the district court on the application for the appointment of a receiver. Four shareholders of two small corporations, which were paying handsome dividends, obtained control of the majority of the stock, and elected their own officers. These four conspirators, instead of paying $500 a month dividends which the corporations were earning, proceeded to put that money into their own pockets. They kept false books to deceive the shareholders. They pretended to buy for the corporations an absolutely worthless franchise, when they already owned two good and valid franchises, which were more than ample for the same purpose. They gave the corporations' notes for this worthless franchise, and mortgaged all of the property of the corporations for the purpose of having the mortgage foreclosed, and the property of the corporations wiped out. It is needless to enlarge upon these facts. They are all set forth in the statement preceding this opinion. This is a story of wrecking and robbing that would make a pirate of the Spanish main exclaim, in the language of Lord Clive, "I am surprised at my own moderation." Is not interference here absolutely necessary, as Morawetz says, to the attainment of justice? Again Morawetz remarks, as quoted above, the court of chancery will not interfere at the suit of the shareholders unless this be essential to the protection of the corporate rights. We can scarcely conceive of a case where it would be more essential than it is here, for the protection of the corporate rights, for, if the interference is not had, the corporate property will be swept away from the corporations into the grasp of the conspirators; and, while the investigation into the acts of the Sommers-O'Rourke party is being made by the court, should the court allow this same band of marauders to remain in possession of the corporations and their property, and continue to convert the assets to their own use, and exercise their own pleasure as to the trusts imposed upon them? To allow such a proceeding, it seems to us, would shock the conscience of the most indifferent court. Our statute provides that "a receiver may be appointed by the court in which an action is pending, or by the judge thereof: Sixth. In all other cases where receivers have heretofore been appointed by the usages of courts of equity." Code Civ. Proc. § 229. We are of opinion that the decisions of the courts sustain the doctrine of the powers and the usages of courts of equity in such a case as that which was made in the showing before the district court. We note the following

language from a very recent decision (January, 1894) of the Kansas supreme court. While the Kansas statute is broader than ours, and the case of In re Lewis, 52 Kan. 660, 35 Pac. 287, is decided largely upon the statute of that state, still the following remarks of the Kansas court are valuable, as is also the collection of authorities appended to the decision. We extract from the opinion as follows: "By the averments of the petition, it would appear that all the officers of the corporation have conspired together to divert its business to another company, and to absorb its earnings and assets, and appropriate the same to their own uses. Under those circumstances, it would be useless to apply to the officers to bring an action against themselves, and in such cases the law permits the appointment of a receiver at the instance of a stockholder. In most cases of this character no other adequate remedy exists. The appointment of a receiver is not necessarily a proceeding to dissolve a corporation, nor will it necessarily result in its extinction. The property and assets of the corporation, which are being dissipated and fraudulently absorbed, will be preserved and rightfully applied under the supervision of the court, and may be restored to the officers of the corporation when there has been a change of officers, or when it is deemed prudent and safe to restore the property and affairs of the corporations to its duly-constituted officers. See First Nat. Bank v. United States Tile Co., 105 Ind. 227, 4 N. E. 846; Pike Co. v. Hammons, 129 Ind. 368, 27 N. E. 487; Order of Iron Hall v. Baker (Ind. Sup.) 33 N. E. 1128; Haywood v. Lumber Co., 64 Wis. 639, 26 N. W. 184; Consolidated Tank-Line Co. v. Kansas City Varnish Co., 43 Fed. 204; Mor. Priv. Corp. § 281; Pom. Eq. Jur. § 1334; High, Rec. § 313; Spel. Priv. Corp. § 1001; 20 Am. & Eng. Enc. Law, 272." We also find it stated in High on Receivers as follows: "It has already been shown that in most of the states of this country the general jurisdiction of courts of equity over corporations has been enlarged to the extent of authorizing the appointment of receivers in behalf of creditors and shareholders." Section 313.

The supreme court of Michigan (October, 1892), in Miner v. Ice Co., 93 Mich. 97, 53 N. W. 218, after reviewing the history of a fraud which perhaps is worthy to be ranked with that of the case at bar, says: "The present case furnishes an instance of gross abuse of trust Must the cestui que trust be committed to the domination of a trustee who has for seven years continued to violate the trust? The law requires of the majority the utmost good faith in the control and management of the corporation as to the minority. It is of the essence of this trust that it shall be so managed as to produce for each stockholder the best possible return for his investment. The trustee has so far absorbed all returns. What is the outlook for the future? This court, in

view of the past, can give no assurances. It can make no order that can prevent some other method of bleeding this corporation, if it is allowed to continue. If Lorman be removed, who shall take his place? He has the absolute power to determine. Once deposed, he may elect a dummy to fill his place. There are practically but three persons concerned, Miner, Lorman, and Lorissa Carpenter, and she has for seven years, in fraud of complainant's rights, been paid a dividend to secure her acquiescence. Who has any right to complain if ample and complete justice is awarded to Miner? Who shall be permitted to stand between him and an adequate remedy? This corporation has utterly failed of its purpose, not because of matters beyond its control, but because of fraudulent mismanagement and misappropriation of its funds. Complainant has a right to insist that it shall not continue as a cloak for a fraud upon him, and shall not longer retain his capital, to be used for the sole advantage of the owner of the majority of the stock, and a court of equity will not so far tolerate such a manifest violation of the rules of natural justice as to deny him the relief to which his situation entitles him. I think a court of equity, under the circumstances of this case, in the exercise of its general equity jurisdiction, has the power to grant to this complainant ample relief, even to the dissolution of the trust relations. Complainant is therefore entitled to the relief prayed. A receiver will be appointed, and the affairs of this corporation wound up." In the Michigan case the decision went to the winding up of the corporation, but in the case before us the receiver is only to hold until the charges of fraud are investigated. The Michigan decision is an able discussion of the powers of the court of equity in this respect, and a valuable review of decisions. It may be said here, as was said in the Michigan case, that the corporations have utterly failed of their purpose, not because of matters beyond their control, but because of the fraudulent mismanagement and misappropriation of their funds. An equal if not greater mismanagement and misappropriation has been done by the officers of the corporations who are here made defendants, and whose acts are sought to be restrained and set aside and declared null and void. We also find the same general subject mentioned in the following language in Waterman on the Law of Corporations (volume 2, § 356): "The power to appoint a receiver is necessarily inherent in a court which possesses equitable jurisdiction. It is exercised when an estate or fund is in existence, and there is no competent person entitled to hold it; or the person so entitled is in the nature of a trustee, and is misusing or misapplying the trust; or the property is about to be removed beyond the reach of the court; and, generally, when it is necessary to secure rights and prevent a failure of justice. The property is thus placed

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in the hands of an officer of the law in order that it may be under the protecting care and control of the court, and be delivered unimpaired to the persons to whom it is legally ascertained to belong." See, also, Ranger v. Cotton-Press Co., 52 Fed. 611; Mor. Priv. Corp. § 642.

Upon questions of equity jurisdiction, ald is always found in the records of the courts of chancery of New Jersey, and from a decision rendered in May, 1894, by that learned court, we quote as follows: "The power of this court to appoint a receiver of a corporation, either because it has no properly constituted governing body, or because there are such dissensions in its governing body as to make it impossible for the corporation to carry on its business with advantage to its stockholders, I think must be regarded as settled; but I think it is equally well settled that this power is subject to certain limitations, namely, it must always be exercised with great caution, and only for such time and to such an extent as may be necessary to preserve the property of the corporation, and protect the rights and interests of its stockholders. As soon as a lawfully constituted and competent governing body comes into existence, whether it is brought into existence by an adjustment of the dissensions or by the election of a new body, and such body is ready to take possession of the property of the corporation, and proceed in the proper discharge of its duties, the court must lift its hand and retire. This is the doctrine, as I understand it, which was laid down by Vice Chancellor Malins in Featherstone v. Cooke, L. R. 16 Eq. 298, and Auxiliary Co. v. Vickers, Id. 303, and which was approved by Chancellor Runyon in Einstein v. Rosenfeld, 38 N. J. Eq. 309, and by Chancellor McGill in Archer v. Waterworks Co., 50 N. J. Eq. 33, 24 Atl. 508." Edison v. Phonograph Co., 29 Atl. 197. It is true, of course, that the power must be exercised with great caution, but we are of the opinion that the most scrupulous caution would not cause a court to hesitate in the matter which was before the district court. Furthermore, the district court did not go any further in the appointment than was necessary to preserve the property of the corporations, and protect the rights and interests of its stockholders, as was stated in the New Jersey case. It does not seem necessary to go further in this discussion. The facts of this case will not afford a precedent in the future for any imprudent or unauthorized appointment of a receiver for corporations, or the unwise withdrawal of the business of a corporation from the management of its dulyelected and lawfully acting trustees. The case is a precedent only as to its own facts. Here the objects of the existence, and, indeed, the practical existence itself, of the corporations, are being totally destroyed by the unlawful (not to use a stronger term) acts of its managers; and one object, at least, of

the action in the district court, is to set aside and prevent such unlawful acts of such managers, and the action itself is against such unlawfully acting persons. If they are allowed to go on in their course which they are pursuing, the corporations are to be totally wrecked, their funds are to be embezzled, and their property is to be taken from them by a fraudulent conspiracy of the managers, whose position is one of trust towards the plaintiffs in the action in the district court. Under such a vigorous showing of facts, we believe that the decisions of the courts of equity uphold the powers and usages of those courts to interfere by a receivership. See the cases cited in this opinion and the cases referred to in those citations. We are therefore of the opinion that the writ of certiorari must be dismissed, and it is so ordered. Dismissed.

BURGLARY-INSTRUCTIONS-INTENT.

1. The words "box car," used in an information for burglary, are equivalent to the words "rail car," used in the statute defining burglary.

2. It was error to charge, on a trial for entering a box car with intent to steal, that a "mere entering is sufficient," without expressly charging that the entry must have been made with such intent.

Appeal from district court, Beaverhead county; Frank Showers, Judge.

Edward Green, convicted of burglary, appeals. Reversed.

tory offense of burglary, the pleader must aver that the place entered was one included within the strict terms of the statute. But we think that in the use of the word "box car," instead of "rail car," there was no substantial departure from the rule. A "box car" is defined by the Century Dictionary as "an inclosed and covered freight car," and a freight car, by the same authority, is "a railroad car for carrying freight, commonly a box car." A box car is therefore a rail or railroad car; hence the statute is complied with, and the information is good. The next point necessary to consider is the misdirection of the jury in a matter of law. This was raised by a motion for new trial. The court gave to the jury the statutory definition of "burglary," and, under general instructions, charged them, among other things, that in every criminal act a criminal intent was necessary. But the only particular instruction applicable to the testimony was as follows: "You are instructed that under our statute relating to burglary, as given to you elsewhere in these instructions, it is not necessary, in order to constitute the crime, that there should be a breaking. A mere entering into a building or car is sufficient, and if you believe, beyond a reasonable doubt, that the defendant stole the property mentioned and described in the information, and that said property was in the car mentioned in the information, then you may infer that the defendant did enter the car with the intent to commit the said lar-ceny." The first sentence of this instruction was correct as far as it went, and unless the defendant made special requests for additional instructions, had the court gone no further, error could hardly have been com

HUNT, J. The defendant was charged with the crime of burglary. The charging part of the information was as follows: * willfully, unlawfully, feloniously, and burglariously, a certain box car of S. H. H. Clark, Oliver W. Mink, E. Ellery Anderson, J. W. Doane, and F. R. Coudert, receivers of the Union Pacific Railway Company, there situate, did enter, with the intent then and there the goods, chattels, and valuable property of the said receivers of the said Union Pacific Railway Company, in the said box car then and there being found, willfully, unlawfully, feloniously, and burglariously to take, steal, and carry away, contrary," etc. The defendant was found guilty, and sentenced to the penitentiary. A motion in arrest of judgment was made, for the reason that the facts stated in the information do not constitute a public offense. The point that the appellant makes is that the charge that the defendant entered a certain box car, and not a "rail car," as described in the statute of burglary, is fatal to the information. In charging the statu

fied rules which do not require any breaking or force in the entry to constitute an element of the crime of burglary. But the court, after negativing the common-law ingredient of a breaking, proceeded to positively define the crime by express limitations as to the sufficiency of the evidence necessary to prove it, and to apply the definition so given to the case under consideration, by telling the jury that a "mere entering is sufficient." This by itself was erroneous, because a mere entry is not enough to prove a burglary, unless such entry was made with the intent, at the time thereof, to steal the property described in the information. The two essential averments-the entry and the felonious intent at the time of the entryare indispensable to support the information. State v. Carroll, 13 Mont. 246, 33 Pac. 68. Nor would it seem that the omission was cured by saying to the jury that, if they believed that the coal was stolen by defendant, they might infer that the defendant did enter the car with the intent to commit the larceny, because, except by this incidental charge upon the weight of evidence, the jury were not told that, before they could convict,