committed to him any powers of management which ought properly to be exercised by the corporation itself.

And for decree, with direction for receiver of the rents, profits, and income of tolls, toll gates, and toll houses of turnpike roads, and application of moneys received, on bill by mortgagee, see L. Crewe v. Edleston, 1 D. & J. 93.

For form of order directing inquiry what was due to judgment creditors of a railway company, and what lands and property had been extended under writs of elegit, see In re Hull, Barnsley, and West Riding Junction Railway Co., 40 Ch. Div. 119.

35. Receiver of Freight of Ship (with Injunction).

INJUNCTION to stay Deft collecting, getting in, or receiving any moneys on account of the ship or vessel called &c., or the freight due, or to accrue due, in respect of her present voyage, until further order "And Let a proper person be appointed to collect, get in, and receive such moneys and freight; And Let the Plt and Deft deliver over to such person so to be appointed all documents in their or either of their hands relating to such moneys and freight."-Directions to pass accounts, and pay in balances, and for investment and accumulation.-Roberts v. R., V.-C. W., 23 Feb. 1854, B. 448.

And for order appointing a person to receive the homeward cargo and get in the freight, see Gibson v. Lee, V.-C. E., 1842, A. 1637.

For orders, appointing a ship's husband, at the suit of some of the part owners against the others, who were under contract ship's husbands; and for receiver and manager of the ship's machinery removed by Defts; and staying actions in respect of same matters, see Brenan v. Preston, 10 Ha. 331; and staying ship's husbands interfering with her sailing by detention of the machinery, and for receiver of it, S. C., 2 D. M. G. 813, sup., p. 614.

For the addition of a direction that receiver be at liberty to apply in Chambers for leave to realize the cargo, see Skelton v. Edwards, V.-C. B., 7 Dec. 1876, B. 1905.

NOTES.

APPOINTMENT OF RECEIVER.

By the Jud. Act, 1873, s. 25 (8), a receiver may be appointed by an interlocutory order of the Court in all cases in which it shall appear to the Court to be just or convenient that such order should be made; and the order may be made either unconditionally or upon such terms and conditions as the Court shall think just; and see sect. 24, sub-sect. 7, enabling the Court in every cause or matter pending to grant, either absolutely or on reasonable terms, all such remedies as the parties may appear entitled to in respect of any and every legal or equitable claim brought forward therein.

The expression "interlocutory order" includes orders made after as well as before final judgment: Smith v. Cowell, 6 Q. B. Div. 75; and the power given by section 25 can be exercised at the trial of the action as well as upon an interlocutory application: Re Prytherch, P. v. Williams, 42 Ch. D. 590, and so long as the judgment remains unsatisfied the action is "pending" within sect. 24, sub-sect. 7: Salt v. Cooper, 16 Ch. Div. 544; Hart v. H., 18 Ch. D. 670, 680; but after final foreclosure of property, subject to an equitable charge, though an assignment of the mortgaged premises to the Plt (not required by him) remains to be settled, the action is at an end, and the Plt cannot obtain the appointment of a receiver: Wills v. Luff, 38 Ch. D. 197; and as to the extensive nature of the power conferred by the Act, see Re Coney, C. v. Bennett, 29 Ch. D. 993, and cases inf., Section II., pp. 667 et seq.

By O. L. 6, an application for a receiver may be made to the Court or a Judge by any party. If the application be by the Plt, under sect. 25, subsect. 8, it may be made either ex parte or with notice, and if by any other party, on notice to Plt, and at any time after appearance by the party applying. The application ex parte may be made before service of the writ or appearance: see Taylor v. Eckersley, 2 Ch. D. 302, sup., Form 3; Re H.'s Estate, H. v. H., 1 Ch. D. 276, sup., p. 636; Colebourne v. C., 1 Ch. D. 690; and may be entertained in cases of emergency, e. g., for receiver of estate of supposed lunatic, pending an application for an inquisition: Re Pountain, 37 Ch. Div. 609; and see Fuggle v. Bland, 11 Q. B. D. 711, where a judgment creditor of husband and wife was, on his application ex parte, appointed receiver of the income of the wife's reversionary interest; but, even after judgment, the order ought not to be granted ex parte, except in cases of emergency: Lucas v. Harris, 18 Q. B. D. 127, 134.

Under this rule, a receiver may be appointed, on the application of either party, either before or after judgment: Salt v. Cooper, 16 Ch. Div. 544; Bryan v. Bull, 10 Ch. D. 153; Anglo-Ital. Bank v. Davies, 9 Ch. D. 275; Smith v. Cowell, 6 Q. B. Div. 75. The Deft, therefore, may now, before judgment, apply for a receiver: Sargant v. Read, 1 Ch. D. 600; though this was not the case under the old practice: Robinson v. Hadley, 11 Beav. 614; Hiles v. Moore, 15 Beav. 175; Barlow v. Gains, 8 Beav. 329; from which it appears that the Deft could not apply for a receiver before decree, and that his application should have been made by petition.

In any case of urgency an ex parte application may be made; and such an application may be made by a Deft under sect. 25, sub-sect. 8, notwithstanding the provision of r. 6 as to notice to Plt: Hick v. Lockwood, W. N. (83) 48.

Although under the old practice a receiver might, under special circumstances, be appointed before appearance (Ramsbottom v. Freeman, 4 Beav. 145; Meaden v. Sealey, 6 Ha. 620; Dowling v. Hudson, 14 Beav. 423, 424, n.), and before service, when service could not be effected by reason of the Deft having absconded (L. & S. W. Bank v. Facey, 19 W. R. 676), a receiver was not appointed before decree unless the bill prayed such appointment; and leave to amend would not in general be granted: Pare v. Clegg, 29 Beav. 589; secus at the hearing: Osborne v. Harvey, 1 Y. & C. C. 116; or, in a case of urgency, on motion after decree: Thomas v. Davies, 11 Beav. 29; Bowman v. Bell, 14 Sim. 392; Wright v. Vernon, 3 Drew. 112.

But although, under the new practice, if the appointment of a receiver is a substantial object of the action, the writ should be so indorsed, the indorsement may be amended under O. XXVIII. 1, and upon such amendment an interim receiver (or injunction) may be obtained: Colebourne v. C., 1 Ch. D. 690; and also though not claimed by the indorsement of the writ, original or amended: Norton v. Gover, W. N. (77) 206; Salt v. Cooper,

sup.

Leave cannot be granted for service out of the jurisdiction of a summons after judgment calling on Deft to show cause why a receiver should not be appointed: Weldon v. Gounod, 15 Q. B. D. 622; distinguishing Crédit Gerundeuse v. Van Weede, 12 Q. B. D. 171; v. sup. Chap. II., p. 17.

The order should state distinctly over what property the receiver is appointed: Crow v. Wood, 13 Beav. 271; or else refer to the pleadings or some other document describing it.

A receiver may be appointed in an action commenced by summons: Re Francke, Drake v. F., 57 L. J. Ch. 437; 58 L. T. N.S. 305; Weston v. Levy, W. N. (87) 76; and see Gee v. Bell, 35 Ch. D. 160; or where the application is by consent: Blackborough v. Ravenhill, 16 Jur. 1085; or where a vacancy occurs by the decease or otherwise of a receiver already appointed: Grote v. Bing, 9 Ha. App. 1; Booth v. Coulton, 16 W. R. 683. And for the appointment, upon ex parte motion, of a receiver in place of one deceased, see Molloy v. Hamilton, I. R. 8 Eq. 499; Re Stone, ib., 9 Eq. 404.

As to the appointment of a receiver in an admon action commenced in a district registry, see Re Capper, 26 W. R. 434.

The costs of a motion for a receiver are sometimes reserved until the hearing: Chaplin v. Young, 6 L. T. N.S. 97; even though the application is refused: Coope v. Cresswell, 12 W. R. 299.

On the question of the jurisdiction to appoint a receiver over estates in

Ireland or out of the jurisdiction, which seems upon the authorities cited to be in the nature of a recommendation to the Irish Court rather than an appointment by this Court directly of such receiver, see Re Trant, 2 Sol. Jour. 11; S. C., M. R., in Chambers, 8 July, 1857, B. 1366, and cases collected on the subject in Penn v. L. Baltimore, 2 L. C. Eq. 923; Houlditch v. M. Donegal, Beat. 146; 8 Bli. N.S. 301.

As to the power of the Court to appoint a receiver and stay all further proceedings, with a view to a reference to arbitration, see Compagnie du Senegal v. Woods, 53 L. J. Ch. 16, and sup., p. 534.

As to the jurisdiction of the Court to appoint a receiver and manager of property in the colonies or abroad, see inf., Section IV.

PERSON TO BE APPOINTED.

The right to the appointment of a receiver belongs in the first instance to the parties interested in the suit, and not to a stranger: A. G. v. Day, 2 Mad. 246; but the selection is matter for the discretion of the Court: Morison v. M., 4 M. & Cr. 216.

The most fit person should be appointed, without regard to which party may propose him: Lespinasse v. Bell, 2 J. & W. 436; but generally the person having the carriage of the order has the right of nominating, and effect will be given to his nomination, unless good cause to the contrary is shown by the other side.

Leave of the Court must be obtained before a party to the suit can propose himself as receiver: see Davis v. D. Marlborough, 2 Swa. 118.

A person whose duty it is to watch and check the receiver when appointed is ineligible: Sutton v. Jones, 15 Ves. 584. Thus the Plt's solicitor will not be appointed, even by consent: Allen v. Lloyd, 12 Ch. Div. 447; and as to the next friend or guardian of an infant being ineligible, see Simpson, 438.

The selection of a receiver by a Judge will not be disturbed by the Court of Appeal, except in extreme cases, or on some objection in point of principle: Cookes v. C., 2 D. J. & S. 526; Perry v. Oriental Hotels Co., 5 Ch. 450; Nothard v. Proctor, 1 Ch. D. 4; Ley v. L., 27 L. T. 267.

Except in very special cases (see Sargant v. Read, 1 Ch. D. 400; Taylor V. Eckersley, 2 Ch. D. 302), one of the parties to the action will not be appointed receiver without the consent of the other party: see Allen v. Lloyd, 12 Ch. D. 447, 451.

SALARY AND ALLOWANCES.

The usual allowance was formerly 51. p. c. on the gross rental of the estates: Day v. Croft, 2 Beav. 488; but 37. p. c. is now very commonly given. There is, however, no settled scale: Prior v. Bagster, 57 L. T. N.S. 760; W. N. (87) 194; and the amount must depend on the circumstances of the particular case.

Where the rental is very considerable, a percentage at a lower rate has been allowed, or a fixed salary may be given; and if there is any special difficulty in collecting the rents, the allowance has been increased; if facility, diminished: Day v. Croft, sup.

The scale allowed to liquidators is no guide: Prior v. Bagster, 57 L. T. N.S. 760.

By Order as to Supreme Court Fees, 1884, Sched., item 72, the Court fee on taking an account of a receiver or consignee is 18. for every 1007. or portion of 1007. of the amount found to have been received, without deducting any payment.

A receiver may be entitled to an allowance beyond his salary for extraordinary trouble and expenses: Potts v. Leighton, 15 Ves. 276; but not without previous order: Re Ormsby, 1 Ba. & B. 189.

He is not entitled to expenses of journeys abroad and proceedings there, without the Court's express sanction, though they may be allowed where the proceedings are successful; and for the practice of the Court as to extraordinary allowances, see Malcolm v. O'Callaghan, 3 M. & Cr. 52. And see, as to receiver in bankruptcy, Exp. Izard, Re Bushell, 23 Ch. Div. 75.

He has been held entitled to repay himself such sums as have been reasonably expended in the collection of rents (including a salary or

percentage to a collector), before applying the rents in satisfaction of the arrears of interest on mortgages: Gilbert v. Denely, 3 Scott, N. R. 364. When a trustee is appointed on his own undertaking to act as receiver of the trust property, he is not ordinarily entitled to a salary, though the words "without salary" ought, it seems, to be inserted in the order: Pilkington v. Baker, 24 W. R. 234.

And a party interested proposing himself is usually required to act without salary, unless by consent.

In bankruptcy, the receiver is entitled to his costs next after the costs of realizing the estate: Exp. Royle, 23 W. R. 908.

SECURITY.

By O. L. 16, when an order is made directing a receiver to be appointed, unless otherwise ordered, he is first to give security to be allowed by the Court or a Judge, and taken before a person authorized to administer oaths, duly to account for what he shall receive as such receiver, and to pay the same, as the Court or Judge shall direct; and the person so to be appointed shall, unless otherwise ordered, be allowed a proper salary, or allowance. The above directions, formerly inserted in the order to appoint a receiver, are therefore now omitted.

The security is to be by recognizance of the receiver, in Form 21, in R. S. C. Appx. L. In Poole v. Wood, V.-C., 21 Dec. 1832, leave was given to pay part of the sum to be secured into Court, and to give security for the

rest.

By O. L. 17, where a named receiver is appointed in Court, the Court or a Judge may adjourn to Chambers the cause or matter then pending, in order that the person named as receiver may give security, and may thereupon direct the judgment or order to be drawn up.

Where a receiver is appointed merely for the purpose of securing a charge, e.g., by way of equitable execution, security may be dispensed with: Hewett v. Murray, 54 L. J. Ch. 572; 53 L. T. N.S. 380; and see Forms 1, 2, inf. p. 666; and for the preservation of property pending an appeal, the Plt was appointed interim receiver and manager of a farm without security on his undertaking to abide by any order of the Court: Hyde v. Warden, Ex. Div. 309; and see Taylor v. Eckersley, 2 Ch. Div. 302; Gardner v. Blane, 1 Ha. 381.

After reference the Court will not dispense with the usual security, even with the consent of the parties interested. If the parties desire it, they should nominate of their own authority, and then apply that the receiver appointed by themselves shall not be required to give security: Manners v. Furze, 11 Beav. 30; Ridout v. E. Plymouth, 1 Dick. 68. And the parties so applying must be sui juris: Tylee v. T., 17 Beav. 583.

And for the appointment under special circumstances of a receiver on his own recognizance only, see Hibbert v. H., 3 Mer. 681; C. Carlisle v. L. Berkley, Amb. 599.

In Bainbrigge v. Blair, 3 Beav. 421, the receiver was discharged on the trustees undertaking, without recognizance, to account half-yearly like a receiver.

It was questioned whether the bond of an incorporated guarantee association (though sufficient as a security for costs: Plestow v. Johnston, 2 W. R. 3), would be accepted instead of the usual recognizance: Manners v. Furze, 11 Beav. 30; but see Clarke v. Thornton, inf. Sect. III., Form 6, p. 678; Carpenter v. Solicitor to Treasury, 7 P. D. 235; Colmore v. North, 42 L. J. Ch. 4; 27 L. T. N.S. 405; 21 W. R. 43; and such a bond is commonly accepted now.

The security is usually for double the annual rental; though two sureties are usual, the number may be increased, to reduce the amount of each.

Money due from a receiver, whether an ascertained balance or not, is, so long as the recognizance is existing, a debt of record: Seagram v. Tuck, 18 Ch. D. 296.

By O. LXI. 14, no recognizance shall be enrolled after six months from the acknowledgment thereof, except under special circumstances, and by an order made by the Court or a Judge upon motion for the enrolment thereof after that time. Leave may be given to enrol it nunc pro tune: Bothomley

v. Fairfax, 1 P. W. 334, 340; Vaughan v. V., 1 Dick. 90; for such order, see Marchant v. M., M. R., 3 Nov. 1853, B. 15; but it will be made so as not to prejudice intervening incumbrances: Bothomley v. Fairfax, sup.; and see Fothergill v. Kendrick, 2 Ver. 234. The enrolment precedes the appointment: see Form 8, sup. p. 638.

By O. LX. 4, where, by the practice of the Ch. Div., recognizances are required to be given, such recognizances shall be given to the two senior chief clerks for the time being of the Judge to whom the cause or matter is assigned; and when the same are, by any judgment or order, directed to be vacated, the proper officer shall, on due notice thereof, attend one of the said chief clerks, who shall thereupon vacate such recognizances in the usual

manner.

The sureties must be resident within the jurisdiction: Cockburn v. Raphael, 2 S. & S. 453; and upon any event, such as death or bankruptcy, happening, which would prevent the recognizance being effectually put in force against them, an order will be made at Chambers on summons, directing the receiver to give a new security.

Additional security has been required when the property over which the receiver has been appointed has since increased in value: Dan. 1687, citing Spence v. Hangford, M. R., in Chambers, 17 Feb. 1865.

EFFECT OF APPOINTMENT.

The appointment of a receiver, so far as it affects the rights of creditors or third parties, dates not from the order appointing him, but from the completion of the security required to be given by the order; and, accordingly, until the appointment has been perfected by certificate that the security has been completed, a judgment creditor is not debarred from proceeding to execution: Edwards v. E., 2 Ch. D. 291; and see Exp. Evans, Re Watkins, 13 Ch. D. 252, 255. But if no security is required (which should appear on the face of the order), the appointment is complete upon possession being taken under the order: Morrison v. Skerne Ironworks Co., 60 L. T. N.S. 588. His liability to account in respect of moneys received and expended by him as receiver at once arises, whether the security has been completed or not: Smart v. Flood, 49 L. T. N.S. 467.

His possession is the possession of the Court, and the effect of his appointment is to remove the parties to the suit from possession: Russell v. E. Ang. Ry., 3 Mac. & G. 104; Ames v. Birkenhead Docks, 20 Beav. 350; and, as against the subsequent trustee in bankruptcy, to exclude the doctrine of reputed ownership: Taylor v. Eckersley, 5 Ch. D. 740; and as to the appointment of a receiver and manager of a co. operating as a discharge to the co.'s servants, see Reid v. Explosives Co., 19 Q. B. Div. 264.

He is entitled to rents in arrear when he is appointed: Codrington v. Johnstone, 1 Beav. 524; and his right to collect a sum admitted to be due to the estate cannot be disputed by the person making the admission: Wood v. Hitchings, 2 Beav. 294.

Money due to him in his character of receiver was a debt, legal or equitable, upon which a debtor's summons might be grounded under the Bankruptcy Act, 1869, ss. 6, 7 (see now Bankruptcy Act, 1883, ss. 4, 6, sub-s. 1(d)): Exp. Harris, 2 Ch. D. 423.

He is not "owner" within the Public Health Act, 1875, and, consequently, service on him of notices as to improvement expenses, under sect. 150, is bad: see Corp. of Bacup v. Smith, 45 Ch. D. 395.

A solr receiving rents must pay them over to the receiver without reference to any lien for costs, though it might have been proper for him to receive them: Wickens v. Townshend, 1 Rus. & M. 361, 363.

But the right of the receiver to collect will not prevent payment of money into Court by a debtor to the estate, on the petition of parties interested, to save the receiver's poundage: Haigh v. Grattan, 1 Beav.

201.

As against a receiver appointed by the Court, an exor cannot retain a debt due to him: Davenport v. Moss, 14 W. R. 453; Re Jones, Calver v. Laxton, 31 Ch. D. 440 (following Re Birt, 22 Ch. D. 604; Richmond v. White, 12 Ch. D. 161).

A partner who had got in debts adversely to the receiver was ordered,