RECEIVER. In Suits in Equity;-Obtaining Title and Possession, in Creditors' Suits. unless the rights of a defendant require his perior Ct., Chambers, 1848, Dickerson v. Van 98. The abatement of a suit does not discharge a receiver, previously appointed. [3 Dan. Ch. Pr., 225; 1 Hog., 174.] Chancery, 1846, McCosker v. Brady,* 1 Barb. Ch., 329. 99. Resignation. A receiver will not be discharged, upon his own application, unless he shows reasonable cause, especially where it might inconvenience parties in interest and third persons. Pressure of his own business, and the difficulty of the trust, are not sufficient V. Chan. Ct., 1843, Beers v. Chelsea reasons. Bank, 4 Edw., 277. 100. Removing: The fact that the receiver has employed the complainant's counsel, is not ground for removing him, if there was no collusion. V. Chan. Ct., 1840, Bank of Monroe v. Schermerhorn, Clarke, 366. 101. Accounting. A receiver passes his accounts before a master, and the report needs no confirmation, nor can exceptions be taken to it; but any party in interest may apply to the court to review the principles on which the accounting has been had. [2 S. & S., 170; 3 Russ., 522.] V. Chan. Ct., 1836, Brower v. Brower, 2 Edw., 621. 102. A receiver cannot be compelled, in the middle of a suit, to account to a party. He is only to account to the court, under the rules. V. Chan. Ct., 1837, Musgrove v. Nash, 3 Edw., 172. 105. An order should not be made requiring a defendant in a creditor's bill to deliver property or money to a receiver, unless it appears that the party has the power to obey the order. The failure of the party to show to whom he has paid money which was in his possession several months before the bill was filed, is not sufficient to warrant an order on him to pay the money to the receiver, if he states positively that he had paid it away. Supreme Ct., Sp. T., 1848, Sheldon v. Weeks, 7 N. Y. Leg. Obs., 57. 106. Neglect to assign. The neglect of the defendant in a creditor's bill to assign to the receiver, is no ground for the master's refusing to compel him to deliver over his property to the receiver upon oath. Chancery, 1842, Eldred v. Hall, 9 Paige, 640. 107. That though the debtor neglected to make an assignment to the receiver, the court would protect the equitable title of the latter. Chancery, 1842, Albany City Bank v. Schermerhorn, 9 Paige, 372. 108. The receiver's acceptance of an assignment, excepting an annuity, is no waiver of the right to contest the master's decision excepting it. Chancery, 1844, Degraw v. Clason, 11 Paige, 136. 109. Debtor must assign. Although the defendant in a creditor's suit deny on oath that he has any property, he must comply with 3. Obtaining Title and Possession, in Cred- the order requiring him to execute to the re itors' Suits. ceiver a formal assignment of all his property. Chancery, 1837, Chipman v. Sabbaton, 7 Paige, 47; and see Bloodgood v. Clark, 4 Id., 574. 103. Order for delivery. If the creditor desires an actual delivery of property to the receiver, he must call upon the master to as110. Receiver's title. The appointment of certain the property under defendant's control, and order its delivery, especially where a receiver vests the debtor's personal propthe defendant swears it is in another person's erty in him without formal assignment. A. V. possession. The defendant may controvert Chan. Ct., 1845, Storm v. Waddell, 2 Sandf. the fact of possession, and he may appeal from Ch., 494. To same effect, V. Chan. Ct., 1840, the master. Chancery, 1840, Cassilear v. Si- Albany City Bank v. Schermerhorn,* Clarke, 297. mons, 8 Paige, 273. 104. In a creditor's suit the referee should decide and specify what effects are to be delivered to the receiver; specifying those which are excepted because exempt from execution. If the effects are ponderous, he should fix a time for the debtor to deliver them. N. Y. Su * Affirmed, Ct. of Appeals, 1848, 1 N. Y. (1 Comst.), 111. That a receiver is not vested with the title to real estate by the mere order of the court, and without an actual conveyance to him. Chancery, 1846, Wilson v. Wilson,† 1 Barb. Ch., 592. * Reversed, on the question of contempt, 10 Paige, In Actions under the Code of Procedure. 112. One who is not a party to a creditor's have been valid. Supreme Ct., Sp. T., 1857, suit cannot object to the receiver's title, that Bowery Bank Case, 5 Abbotts' Pr., 415. the debtor's tenant was not served with a copy of the order appointing the receiver, or that he did not attorn to the receiver. V. Chan. Ct., 1840, Albany City Bank v. Scher-debtor, to protect his property and effectuate merhorn,* Clarke, 297. 118. Creditor's action. A plaintiff should always apply for a receiver, when he has obtained an injunction against the judgment his lien. Supreme Ct., 1857, Lent v. McQueen, 15 How. Pr., 313; Sp. T., 1857, Webb v. Over III. IN ACTIONS UNDER THE CODE OF mann, 6 Abbotts' Pr., 92. PROCEDURE. 113. Partnership. Where one of two partners or joint adventurers has filed a cross-complaint, and obtained an injunction against the other, in respect to the partnership affairs, a receiver will be granted on the latter's motion, although his original complaint contains no prayer for a receiver. N. Y. Superior Ct., 1850, McCrackan v. Ware, 3 Sandf., 688. 114. In an action to close up a partnership, brought by one whose right as a partner is wholly denied by defendant, and is not clearly established by the affidavits, a receiver or an injunction should not be granted; there being no proof that the fund is in danger. N. Y. Superior Ct., 1852, Goulding v. Bain, 4 Sandf., 716. 115. Limited partnership. A receiver of a limited partnership may be appointed after dissolution, as in other cases of partnership; for 1 Rev. Stat., 766, § 18, allows an accounting between general and special partners, the same as other partners. Supreme Ct., Sp. T., 1853, Hogg v. Ellis, 8 How. Pr., 473. 119. Where an action was brought on behalf of one firm out of a large number of creditors of an insolvent firm, and was brought not only against the general partners of the firm indebted, but also against a special partner who denied his indebtedness;-Held, that an application for an injunction and the appointment of a receiver must be denied. N. Y. Com. Pl., Sp. T., 1855, La Chaise v. Lord, 1 Abbotts' Pr., 213; S. C., 10 How. Pr., 461; 4 E. D. Smith, 612, note. 120. To warrant the granting of such an application, it should be made in behalf of all the creditors of the insolvent firm who will unite therein, and all the defendants sought to be made liable as partners should admit the indebtedness. Ib. 121. Contingent judgment. The application for appointment of a receiver in a creditor's suit, cannot be resisted on the ground that the judgment was one confessed to secure a contingent liability not yet matured. On such an application the court cannot go behind the judgment and execution. The question whether the plaintiff was entitled to issue 116. Of the modes of proceeding in an ac-execution, must be raised by motion. [8 Paige, tion by a member of a voluntary association to dissolve the partnership. Kapp v. Barthan, 1 E. D. Smith, 622. 373; 3 Edw., 393.] Supreme Ct., 1857, Lent v. McQueen, 15 How. Pr., 313. 122. A simple contract-creditor cannot maintain an action to set aside a fraudulent assignment for the benefit of the debtor's creditors, and for a receiver. Supreme Ct., Sp. T., 1851, McCarthy v. Hancock, 9 N. Y. Leg. Obs., 98; S. P., CREDITOR'S SUIT, 115, 116. 117. Receiver of bank. The holder of a certified check protested for non-payment, obtained, on the day of protest, an order to show cause against the bank, returnable on the same day; and the cause was, at the appointed hour, heard, the bank declared insolvent, 123. Chattel mortgage. To appoint a rewithout opposition, and a receiver appointed. ceiver of chattel property held by a mortgagee Held, that these proceedings must be treated in possession, except in case of necessity to seas equivalent to a voluntary assignment by cure the rights of other parties, is to impair the the bank of its property for the benefit of obligations of the contract between such mortits creditors; and the validity of the appoint-gagee and the mortgagor, and so is beyond the ment of the receiver must be tested by the constitutional powers both of the court and of question, whether such an assignment would the Legislature. Supreme Ct., 1857, Patten v. Accessory Transit Co., 4 Abbotts' Pr., 235; * Reversed, on the question of contempt, Chan- S. C., 13 How. Pr., 502; reversing S. C., 4 cery, 1843, 10 Paige, 263. Abbotts' Pr., 139. RECEIVER. In Actions under the Code of Procedure. 128. Receivers, in what cases appointed under the Code. Laws of 1852, 656, ch. 392, § 244 (amending Code of Pro., § 244); amended by Laws of 1858, 496, ch. 306, § 20; 1862, 849, 124. The appointment of a receiver involves, in effect, an injunction; and is, therefore, to be directed with great caution, and only in cases of pressing and apparent neces-ch. 460, § 10.* sity. Ib. 125. Relationship to a party is not alone a sufficient ground for the removal of a receiver; at most, it is but a circumstance to be taken into consideration at the time of making the appointment. N. Y. Com. Pl., Sp. T., 1854, Wetter v. Schlieper, 7 Abbotts' Pr., 92. 129. The fact that there is danger that the property will be "lost or materially injured or impaired," is important as the basis of an application for a receiver under section 244 of Supreme Ct., Sp. T., 1856, Hamilthe Code. ton v. Accessory Transit Co., 3 Abbotts' Pr., 255. 130. Enforcing delivery. In a creditor's suit, if the debtor does not comply with the referee's direction to deliver property to the receiver, the plaintiff should proceed by attachment, on the application for which, the debtor will be heard by way of appeal from the decision of the referee in ordering the delivery. The receiver is not to resort to force, or to measures tending to produce violence. N. Y. Superior Ct., 1848, Dickerson v. Van Tine, 1 Sandf., 724. 131. A receiver having, without specific direction by the referee, taken goods apparently in the debtor's possession, but which were claimed by one not a party to the suit, was ordered to restore them, on the claimant's undertaking to hold them subject to the order of the court; and a reference as to title was directed. Ib. 126. Rival creditors. Pending a creditor's action, negotiations were had for a compromise with creditors, upon an understanding that the plaintiffs in the action should not be prejudiced by the delay necessary. But meanwhile other plaintiffs commenced a second action for the same purpose, and obtained a reference to appoint a receiver. The defendants appealed from the order, and stayed the proceedings thereon, and meanwhile suffered the plaintiffs in the first action to obtain a like order, from which they took no appeal, and thereupon a receiver was appointed in the first action. Held, on application of the plaintiffs in the second action, 1. That the defendants having been guilty of no fraud or collusion, the order of appointment in the first action should not be vacated. 2. That no objection being shown to the receiver actually appointed, the order should not be modified. The receiver is the officer of the court, not the agent of the party. 3. That the plaintiffs in the second suit were entitled to have been heard on the application | for his appointment, and that they should be allowed to take an order so far opening the reference as to permit them to be heard, and that the referee inquire whether the receiver was suitable to be appointed in both suits. N. Y. Com. Pl., 1855, Lottimer v. Lord, 4 E. D. Smith, 183. 127. Several hostile receivers. Where judgment-creditor and the receiver were liable creditors, claiming in affirmance of an assignment, recovered a judgment in an action in which one of the assignees only was a party, and other creditors subsequently brought an action on their own behalf alone to set aside the assignment, in which they succeeded,Held, that the receiver appointed in the former suit was not entitled to have the decree in the latter suit opened to allow him to defend and interpose the claim of the plaintiffs in the former suit to priority. Supreme Ct., 1853, Wheeler v. Wheedon, 9 How. Pr., 293. 132. A receiver appointed in supplementary proceedings, having applied to the court for leave to take and sell property of the judgmentdebtor, which was covered by a chattel mortgage not yet due, and leave having been refused, subsequently, by direction of the judgment-creditor, took possession forcibly; and pending an order to show cause why he should not return it, and restraining him from selling meantime, he sold the same in parcels without giving notice of the mortgage. Held, that the to the mortgagee, in an action for the illegal taking and selling the property without recog nition of plaintiff's rights, for the amount of the debt and interest, with interest on the aggregate from the time it fell due. N. Y. Su The amendments of 1858 consist in excepting from subd. 1 the cases where judgment on failure to answer may be had without application to the court; and in extending subd. 4 to foreign corporations having property in this State. The amendment of 1862 fixes the compensation of receivers of foreign corporations. The Statute. Intent. perior Ct., 1857, Manning v. Monaghan, 1 him the title to real estate. That is transferred Bosw., 459. 133. The receiver in such case has not the justification of process which the sheriff selling under execution has. [1 Kern., 501.] He had at most a right to keep the property, or to sell only the debtor's right of possession, and he should not have sold in parcels, so that the mortgagee could not follow the property. Ib. 134. The title of a receiver relates back to the order for his appointment, and is not affected by an intermediate levy. N. Y. Superior Ct., 1852, Rutter v. Tallis, 5 Sandf., 610. 135. Where the order appointing a receiver provided that, before acting, he should give security,-Held, that when the security was perfected, the title vested in him as of the date of his appointment, and defeated an intermediate levy. Supreme Ct., Sp. T., 1857, Steele . Sturges, 5 Abbotts' Pr., 442. only by force of the debtor's own conveyance, which the court has power to compel him to execute. Such a conveyance is, in substance, but the creation of a trust for creditors. Judg ment-creditors, not parties to the proceedings, and not affected by a lis pendens, filed before their liens attach, are not compelled to renounce their legal rights, and come in under the trust. Ct. of Appeals, 1859, Chautauque County Bank v. Risley, 19 N. Y. (5 Smith), 369. 141. Powers and duties of receivers of debtors' estates regulated. Rule 92 of 1858. RECEIVING STOLEN GOODS. 1. The statute. "Every person who shalt buy or receive, in any manner, upon any conper-whatsoever, that shall have been feloniously sideration, any personal property, of any value taken away, or stolen from any other, knowing the same to have been stolen,' to be punished by imprisonment, or fine, or both. 2 Rev. Stat., 680, § 71. 136. The title of the receiver becomes fect when he has given the requisite security, and it then relates back to the order appointing him. A sequestration or an assignment of personal property is unnecessary. N. Y. Superior Ct., 1852, West v. Fraser, 5 Sandƒ., 653. 137. A receiver appointed in supplementary proceedings against one who, in acting as an agent,-e. g., an auctioneer,-kept a general bank account, in which were mingled his funds and those of his principals, is, by virtue of his appointment as such, vested with the legal title to the balance in bank. N. Y. Superior Ct., 1857, Levy v. Cavanagh, 2 Bosw., 100. 138. The debtor cannot, in such cases, by drawing a check, or assigning a part of the balance, transfer the same, as against the receiver, to a customer who employed him with knowledge of his practice of mingling the proceeds of sales with his own funds. Ib. 139. Personalty. An order appointing a receiver in a creditor's action, when it is consummated by his giving security, vests in him the judgment-debtor's personal estate and equitable interests, as of the date of the order, without any assignment. Supreme Ct., 1849, Wilson v. Allen, 6 Barb., 542. Compare Mann v. Pentz, 2 Sandf. Ch., 257; reversed, Ct. of Appeals, 1850, 3 N. Y. (3 Comst.), 415. 140. Real property. In an action by a creditor, to remove a fraudulent obstruction to his remedy, by execution, the appointment of a receiver, though it may vest in him the title to the debtor's personal estate, does not vest in 2. Intent. In order to constitute the crime of receiving stolen goods, the property must be received feloniously, or with intent to secrete it from the owner, or in some other way to defraud him of the property. Though the statute is silent as to the intent of the receiver, it must be construed according to its manifest object, which is to punish persons who receive stolen property, to defraud the owner of his property. Supreme Ct., 1854, People v. Johnson, 1 Park. Cr., 564. 3. A receiving of goods, knowing them to be stolen, with intent to extort from the owner a reward for delivering them to him, is within the prohibition of the statute. Supreme Ct., 1842, People v. Wiley, 3 Hill, 194. 4. A police - justice, having learned that bonds had been stolen from a bank, procured an interview with agents of the bank, in which he proposed to procure a restoration of the property, if they would pay a certain reward. This was agreed to; and he procured and brought the property to them, and they paid the reward. Held, that upon all the circumstances proved, the jury were justified in finding that he procured this agency from the bank, under a previous arrangement with the thief, intending to make a profit to himself from the crime, but concealing this intent from Who may take it. the bank; in which case he was punishable as a receiver. Ib. What it should contain. of read to the person recognized. All other recognizances in any criminal proceeding, or proceeding under the laws respecting internal police, 5. The English statutes upon receiving shall be in writing and subscribed by the parties stolen goods,-reviewed. Ib. 6. Bonds. That an indictment for receiv ing bonds is not supported by proof of receiving simple contracts. Ib. 7. Place of trial. Under 2 Rev. Stat., 726, § 43, a person may be tried and convicted of the offence of feloniously receiving and having stolen goods, either in the county where the prisoner originally received the stolen property, or in any county in which he afterwards had it. Supreme Ct., 1857, Wills v. People, 3 Park. Cr., 473. 8. What facts are sufficient to show that the accused has had the stolen property in the county in which he is brought to trial. Ib. 9. Not necessary to aver in indictment, or prove on trial, for receiving stolen goods, that the principal who stole the property has been convicted. 2 Rev. Stat., 680, § 72; Malcolm's Case, 1 City H. Rec., 60. 10. Embezzled property. Receiving embezzled money, goods, &c., knowing them to have been embezzled, punishable in same manner as embezzlement. 2 Rev. Stat., 678, § 61. 11. Forged tickets. Receiving forged or counterfeited railroad tickets, knowing them to be forged, &c., and with intent to injure or defraud, declared forgery in third degree. Laws of 1855, 914, ch. 499, § 4. As to Receiving property by falsely personating another person, see FALSE PERSONATING. RECOGNIZANCE. 1. Who may take it. A recognizance voluntarily given, pursuant to the order of an officer who has general jurisdiction to let to bail, and to take recognizances, is valid, though the officer who took it was not the one before whom the application was pending. Supreme Ct., 1849, People v. Leggett, 5 Barb., 360. 2. One arrested in C. county on an indorsed warrant issued in S. county, on a charge of false pretences, was released on entering into a recognizance in C. county. Held, the recognizance was a nullity. He should have been carried to S. county. Supreme Ct., 1844, Clark v. Cleveland, 6 Hill, 344. 3. How it should be taken. Recognizances authorized to be taken in any criminal proceeding in open court by any court of record, shall be entered in the minutes, and the substance there to be bound thereby. 2 Rev. Stat., 746, § 24. 4. A recognizance taken pursuant to 2 Rev. Stat., 746, § 24, must be entered in the minutes of the court; and the entry must contain all the substantial parts of the indebtedness. An entry of the fact that a recognizance was taken, is not sufficient. Supreme Ct., 1848, People v. Graham, 1 Park. Cr., 141. 5. It is not necessary, in order to charge the surety in a recognizance, that the principal should unite in the same recognizance. It is enough if the instrument is signed by the person sought to be charged. Supreme Ct., 1833, People v. Huggins, 10 Wend., 465. 6. What it should contain. In a recognizance it is not necessary to set forth the offence with the particularity required in an indictment. Supreme Ct., 1837, People v. Blankman, 17 Wend., 252. 7. Where the recognizance is conditional for the doing some act for which a recognizance may properly be taken, and the officer before whom it was acknowledged had authority to act in that class of cases, the recognizance is valid although it does not recite the special circumstances under which it was taken. Supreme Ct., 1847, People v. Kane,* 4 Den., 530. Followed, 1849, People v. Millis, 5 Barb., 511; 1850, Gildersleeve v. People, 10 Id., 35; S. C., 9 N. Y. Leg. Obs., 18. 8. A recognizance which requires the party to "appear at the next Court of General Sessions, and answer all such matters as shall be alleged against him, and not depart the court without leave," is valid. It is not necessary that it should recite any particular charge. The legal effect of it is to require the recognitor to answer any charge that may be preferred against him until discharged by act of the court. Supreme Ct., 1850, Gildersleeve v. People, 10 Barb., 35; S. C., 9 N. Y. Leg. Obs., 18. 9. Where defendant, instead of being examined, gives recognizance for his appearance, he is presumed to have waived an examination. Hence a recognizance need not show probable cause for believing the accused guilty, or that the magistrate has made any adjudication in * Overrules People v. Koeber, 7 Hill, 89; and People v. Young, Id., 44. |