Where part of the assets of a deceased consisted of his share of a partnership business, the Probate Court would not, against the wish of the surviving partner, appoint an admor pendente lite unless on a strong case of improper dealing with the business: Horrell v. Witts, L. R. 1 P. & M. 103.

If part owners of a mine cannot agree as to the working, the Court will appoint a manager and receiver: Jefferys v. Smith, 1 J. & W. 298; and see Lees v. Jones, 3 Jur. N.S. 954.

For the appointment of a receiver and manager of a colliery on the appli cation of a purchaser in possession, who sought to rescind his contract on the ground of fraudulent misrepresentation, see Gibbs v. David, 20 Eq. 373.

Where tenants in common work a mine in partnership, or it is partnership property, the Court will not appoint a receiver and manager at the suit of one partner not seeking to dissolve; nor, if so seeking, before the hearing merely for non-co-operation; the managing partner can defray all necessary working expenses from profits: Roberts v. Eberhardt, Kay, 148.

Where a receiver has been appointed in a solr's partnership which has expired by effluxion of time, the Deft (the former managing partner) will not be compelled to deliver over to the receiver the partnership books and accounts, if free access for examination of the books, &c. in the office be offered by the Deft: Dacie v. John, M'Clel. 206.

The remuneration of a receiver and manager appointed by partners to wind up their business is to be quantum meruit, and is not governed by any scale: Prior v. Bagster, W. N. (87) 194.

There is no jurisdiction to restrain a manager of a business, after his official position has ceased, from soliciting orders from the customers on his own behalf: Re Irish, I. v. I., 40 Ch. D. 49.

And see as to the appointment of receivers of partnership property, Lindl.

545-554.

Companies:-

The Court has jurisdiction, at the instance of an unpaid vendor, or mortgagee or debenture holder of a co. or corporation, to appoint a receiver and manager, for the protection of the property or security: Boyle v. Bettws Colliery Co., 2 Ch. D. 727; Peek v. Trinsmaran Iron Co., Ib. 115; Hopkins V. Worcester, &c. Canal, 6 Eq. 437; Makins v. Ibotson & Sons, (1891) 1 Ch. 133; and where the debenture holders' security is in jeopardy through the insolvency of the co., a receiver may be appointed, though the principal money is not immediately payable, and there has been no default in payment of interest: McMahon v. North Kent Ironworks Co., (1891) 2 Ch. 148.

But where debentures constitute merely a charge upon a public undertaking, such as a railway or waterworks co., and confer no power to sell or stop the undertaking, the Court will not (in the absence of express stipulation or statutory enactment) appoint a manager at the instance of a debenture holder: Blaker v. Herts and Essex Water Co., 41 Ch. D. 399, 406; Gardner v. London, Chatham and Dover Ry. Co., L. R. 2 Ch. 201, 212; Potts v. Warwick and Birmingham Canal, Kay, 142; Re Yerbury; Ker v. Dent, 62 L. T. N.S. 55.

The independent jurisdiction of the Court is not affected by the Cos. Cl. Act, ss. 53, 54, providing that the appointment of a receiver on behalf of mortgagees of an undertaking shall be by two justices: see Fripp v. Chard Ry., 11 Ha. 241.

Similar provisions for the appointment on behalf of debenture holders in railway and other joint stock cos., whose interest is in arrear, are contained in the Cos. Cl. Act, 1863 (26 & 27 V. c. 118), ss. 25, 26.

A receiver and manager of a joint stock co. was appointed, while there was no properly-constituted governing body, until a meeting could be called: Trade Auxiliary Co. v. Vickers, 21 W. R. 836; and see sup., Chap. XXXI., p. 602.

In winding up, the official liquidator is in the position of the receiver of the property of the co. appointed by the Court for the benefit of all parties interested: Campbell v. Cie. Gen. de Bellegarde, 2 Ch. D. 181; Perry v. Oriental Hotels Co., 5 Ch. 420.

In the absence of special circumstances, he will generally, when a receiver is applied for in a debenture holders' action, be the person appointed: Giles v. Nuttall, W. N. (85) 51; and although there is no general rule that a

receiver already appointed must be displaced by the liquidator (see Bartlett v. North Avenue Co., 53 L. T. N.S. 611, 612), a receiver appointed before winding up has been removed, and the liquidator appointed in his place: Tottenham v. Swansea Zinc Co., 51 L. T. N.Š. 61; 53 L. J. Ch. 776; Perry v. Oriental Hotels Co.; Campbell v. Cie. Gen, de Bellegarde, sup.; Palm. Comp. Prec. 625; and this course will ordinarily be taken where there are outstanding assets which can be more expeditiously and inexpensively got in under the winding-up machinery provided by the Companies Acts: Re Stubbs, Barney v. Stubbs, (1891) 1 Ch. (C. A.) 475.

But where, after a winding-up, and appointment of a liquidator, debenture holders, having under their deed power to appoint a receiver to carry on the company's business, and manage and dispose of their undertaking and property, appointed a receiver, the Court held that the right of the debenture holders ought not to be interfered with, and gave leave to the receiver to take possession, but without prejudice to any question as to his powers other than of taking possession and selling the property: Re Pound, Son & Hutchins, 42 Ch. Div. 402; citing Re David Lloyd & Co., 6 Ch. D. 339; and see Re Stubbs, sup.

Where the Judge has refused to displace the receiver, the Court of Appeal will not interfere with his discretion in the absence of special circumstances: Re Stubbs, sup.

By the Companies (Winding-up) Act, 1890, s. 4 (6), where an application is made to the Court to appoint a receiver on behalf of the debenture holders or other creditors of a company, the official receiver may be so appointed.

Under special circumstances, the unpaid vendor of an insolvent company in voluntary liquidation was appointed receiver without security or salary: Boyle v. Bettws, &c. Co., 2 Ch. D. 726.

The costs and remuneration of the receiver and manager in a debenture holder's action have priority over the costs of the Plt: Batten v. Wedgwood Coal Co., 28 Ch. D. 317.

As to the right of an unpaid vendor to an injunction and a receiver for the purpose of enforcing his lien against a railway co., see sup., Chap. XXXI., Section XIII., p. 593.

Railway Companies Act, 1867 :

The Ry. Cos. Act, 1867 (30 & 31 V. c. 127), s. 4, which takes away from the judgment creditor of a railway co. the right of taking in execution the rolling-stock and plant of the co., enables him to obtain the appointment of a receiver, and, if necessary, of a manager of the undertaking of the co., on application by petition: see Re The Scarborough and Whitby Ry. Co., Form 30, p. 649; Re Manchester & Milford Ry. Co., 14 Ch. Div. 645.

Applications under the Ry. Cos. Act, 1867, s. 4, are regulated by Gen. Ord. 24 Jan. 1868 (see L. R. 3 Ch. xxxv.), which provides (r. xxxi.) that every order appointing a receiver and manager under this section shall direct such accounts and inquiries as the Court may think fit for ascertaining the debts of the co., and the rights and priorities of the persons interested in the moneys to come to the hands of such receiver and manager. The effect of this section is that a judgment creditor of a railway co., whose debt is unsatisfied, is entitled as of right to the appointment of a receiver, and, if the business of the co. is to be continued as a going concern, a manager will be appointed: Re Manchester & Milford Ry. Co., 14 Ch. Div. 645.

No priority is gained by the judgment creditor who obtains an order under the section; but his receiver will not be discharged until all judgment creditors, whose judgments were so recovered as to entitle them to a receiving order, have been satisfied, and a second receiver will not be appointed while there is a receiver already in possession: Re Mersey Ry. Co., 37 Ch. Div. 610.

The provisions of the section apply to "every co. constituted by Act of Parliament for the purpose of constructing, maintaining, and working a railway either alone or in conjunction with any other purpose (sect. 3), even though the railway is merely ancillary, and not the primary object of the co. (e. g., a dock co., with power to construct a short line connecting the dock with other railways): Re E. & W. India Dock Co., 38 Ch. Div. 576; G. N. Ry. Co. v. Tahourdin, 13 Q. B. D. 320.

But a co. which has never commenced to acquire the land or construct the line authorized by the Act is not an "undertaking" of which a receiver can be appointed: Re Birming. & Lichfield Junc. Ry. Co., 18 Ch. D. 155.

As a general rule, the directors, or secretary, or some of them, will be appointed managers, when they are acting fairly: Re Manchester & Milford Ry. Co., sup.; and while the concern is going the debenture holders have no voice in the management: Re Hull, Barnsley, &c. Ry. Co., 57 L. T. N.S. 82.

Where a scheme of arrangement under the Act has been filed, a judgment creditor who has previously served a notice of motion for equitable execution will not be regarded as in an exceptional position: Devas v. E. & W. India Dock Co., 58 L. J. Ch. 522; 61 L. T. N.S. 217.

The protection of the rolling-stock continues, although the railway is afterwards closed for traffic: Midland Wagon Co. v. Potteries Ry. Co., 6 Q. B. D. 36.

The moneys received by such a receiver must be applied in the first place in providing for "working expenses": Re Eastern and Midland Ry. Co., 45 Ch. Div. 367; q. v. as to the meaning of that expression.

As to the effect of the appointment of a receiver of the tolls, profits, &c., of the undertaking, see Eyton v. Denbigh, &c. Ry., 6 Eq. 14, sup. p. 656.

Rates:

According to Drewry v. Barnes, 3 Russ. 94, there can be no receiver of (parish) rates which are to be assessed at a future period; for until the assessment there is nothing to collect. See also Preston v. Corp. of Yarmouth, 7 Ch. 655, negativing the right of creditors secured by bonds on the rates, and paid off by periodical drawings, to obtain immediate payment, or a receiver of the rates.

But in Gibbons v. Fletcher (cited 11 Ha. 251), Lord St. Leonards affirmed the right of mortgagees, under a special Act, of parish rates to a receiver.

Ship:

Sée Burn v. Herlopson, 56 L. T. N.S. 722; The Ampthill, 5 P. D. 224. Benefice, Office:

A receiver may be appointed of the profits of a college fellowship: Feistel v. King's Coll., 10 Beav. 602; though in the earlier case of Berkeley v. King's Coll., Ib. 602 (V.-C., 6 Aug. 1830), the incumbrancer's motion for a receiver was refused with costs.

And see Grenfell v. Dean of Windsor, 2 Beav. 544, for the appointment of a receiver of a canonry without cure of souls.

But as a benefice with cure of souls cannot be charged (see 13 Eliz. c. 20, repealed by 43 Geo. 3, c. 84, but revived by 57 Geo. 3, c. 99, and unaffected by 1 & 2 V. c. 110; Kerr, 91), there cannot be a receiver of the profits of an ecclesiastical benefice: Hawkins v. Gathercole, 6 D. M. & G. 1; or of a pension allowed to a retiring incumbent under the Incumbents' Resignation Act, 1871 (34 & 35 V. c. 44), and thereby charged upon the revenues of the benefice: Gathercole v. Smith, 17 Ch. D. 1; secus, sums payable by way of compensation to a retired incumbent under the Union of Benefices Act, 1860 (23 & 24 V. c. 142), which can be validly mortgaged, and semble a receiver of which can be appointed: McBean v. Deane, 30 Ch. D. 520; and see Bates v. Brothers, 2 Sm. & G. 509.

A receiver of the office of master forester of the royal forest of Wyersdale was granted, with an injunction to stay owners of land in the forest from sporting therein: Blanchard v. Cawthorne, 4 Sim. 566; 6 Sim. 155.

Newspaper :

Receiver and manager of, may be appointed until the hearing, on undertaking to print, publish, and edit the paper in the meantime, and forthwith to register himself as proprietor according to the statute: Chaplin v. Young, 6 L. T. N.S. 97; Kelly v. Hutton, 17 W. R. 425.

Pension:

A receiver may be appointed of a government pension: Noad v. Backhouse, 2 Y. & C. C. 529; or it may be sequestrated: Willcock v. Terrell, 3 Ex. D. 323; Dent v. D., L. R. 1 P. & D. 366; provided the pension has not been made inalienable by the Legislature (e.g., under the Army Act, 1881, 44 & 45

V. c. 58, s. 141): Lucas v. Harris, 18 Q. B. D. 127; Birch v. B., 8 P. D. 163; Heald v. Hay, 3 Giff. 467.

In respect of an annual allowance in the nature of fees payable by the Treasury, for which no action could be maintained, a receiver was refused: Cooper v. Reilly, 1 R. & M. 560; 2 Sim. 560; and see Ib. 564, n.

Pending an inquiry as to the validity of the assignment, a receiver of the profits of the office of clerk of the peace of the county was appointed: Palmer v. Vaughan, 3 Sw. 173.

25 Ch.D.

SECTION II.-RECEIVER BY WAY OF EQUITABLE EXECUTION.

1. Appointment of Receiver by way of Equitable Execution. UPON motion &c., by counsel for the Plts, and upon hearing counsel for the Deft and for C. D., Let X., the receiver in this action, appointed by an order dated &c., and who by the said order dated &c., was appointed interim receiver of the share and interest hereinafter mentioned, be continued as such receiver without further security to receive the share and interest of the Deft in a syndicate or joint undertaking known as &c., and of and in the property or effects belonging in equity to the persons comprising such syndicate, by way of equitable execution for enforcing against the Deft the said order dated &c., whereby the Deft was ordered to pay into Court &c., Deft to hand over to such receiver all scrip and other papers relating to such share and interest. -Usual directions to pass accounts and lodge balances in Court.— [Add Lodgment Schedule, Form No. 5.]-Re Coney, C. v. Bennett, Chitty, J., 12 June, 1885, A. 1849.

2. Another Form.

UPON motion &c. by counsel for the Plt, and upon hearing &c. for the Deft C. D., Let A. B. of &c. be appointed without salary or security to receive the taxed costs of C. D. in an action of &c. in the Court of Chancery of the County Palatine of Lancaster, which, by an order in that action, are directed to be paid to C. D., and to satisfy thereout (so far as the same will extend) £—, the amount of principal &c. remaining unsatisfied payable to the Plt in this action under the judgment dated &c. Liberty to receiver to apply to Palatine Court for payment of such costs to himself. Injunction against C. D. applying for, dealing with, or receiving the said costs payable to him under order of Palatine Court until payment of the said £--Westhead v. Riley, Chitty, J., 21 Dec. 1883, B. 1684.

And see Form 12, sup. p. 640.

3. Charging Funds in hands of Receiver with Amount of Judgment in another Action.

UPON motion &c. by counsel for A. B., and upon hearing counsel for the Plt and the Deft, Declare that the said A. B. is entitled to a charge

for the amount of his judgment debt, interest, and costs recovered against the Deft by judgment dated &c., in an action in the Q. B. Div. of C. v. D., and for the costs of the said order dated &c., and of this application to be taxed &c., upon the assets which now are in or may hereafter come to the hands of the receiver in this action, the said A. B. by his counsel submitting that such charge shall be dealt with in such manner as the Judge shall direct, the intention of the Judge being to preserve to the said A. B. such legal rights as he would have had if the sheriff had seized under the execution and sold on this day.-Kewney v. Attrill, Kay, J., 21 Dec. 1886, A. 1719; 34 Ch. D.

345.

NOTES.

Previously to the Jud. Acts, and to the stat. 1 & 2 V. c. 110, a Plt "having a judgment which, owing to legal impediments, could not be enforced at law, came into equity, not for the purpose of enforcing such a right by way of charge as is given by the Act of 1 & 2 V. c. 110, but to have what is called equitable execution; that is to say, to have the lands delivered in execution to him in equity when he would have got them at law in the ordinary process but for certain difficulties existing :" Anglo-Italian Bank v. Davies, 19 Ch. Div. 275, 290, per Cotton, L. J., referring to Neate v. The Duke of Marlborough, 3 My. & C. 407; and in such a case relief was given by granting a receiver.

Equitable execution was most commonly required in cases where the judgment debtor was entitled to an interest in land not extendible under the writ of elegit. For a historical statement of the law on this subject, and as to judgments against cs. q. t., see Lewin, 794 et seq.

Under the extensive power of appointing receivers conferred on the Court by the Jud. Act, 1873, s. 25 (8), this form of relief is of frequent occurrence; and the remedy by appointment of a receiver may now be regarded as available not merely-(1) for its primary purpose of the preservation of property, but (2) as a method of enforcing in many cases the judgments of the Court.

Where the issue of an elegit, fi. fa., or the like process, would be ineffectual for obtaining payment of the judgment debt, the Court, since the Jud. Acts, which in this respect confirm and expand, where defective, the remedies of judgment creditors, will grant equitable execution by the appointment of a receiver on the application of a judgment creditor (by application in the action and not upon petition, under 27 & 28 V. c. 112, see Re Nixon, W. N. (86) 191): Re Pope, 17 Q. B. D. 743, 749; Exp. Evans, 13 Ch. D. 252; AngloItalian Bank v. Davies, 9 Ch. D. 285; as also where (a) sequestration, see Whiteley v. Learoyd, 56 L. T. N.S. 846; Bryant v. Bull, 10 Ch. D. 153; (b) writ of attachment (in case of defaulting trustee), see Coney v. Bennett, 29 Ch. D. 399, would be the ordinary remedy, but could not be enforced.

But this mode of procedure, though called equitable execution, is in truth not execution, but equitable relief: Re Shephard, Atkins v. S., 43 Ch. Div. 131; and is only available where there is some impediment in the way of execution at law, and special circumstances make the appointment just or convenient" within the Jud. Act, 1873, s. 25 (8): Hatton v. Haywood, 9 Ch. 235; Manchester and Liverpool District Banking Co. v. Parkinson, 22 Q. B. Div. 173; Re Shephard, Atkins v. S., sup.

66

A receivership order, though apparently made in a case where execution could have been had by elegit, was held to operate as a taking in execution by process of law" within the meaning of a forfeiture clause in a will: Blackman v. Fysh, 39 W. R. 520.

By O. L. 15a, "in every case in which an application is made for the appointment of a receiver by way of equitable execution, the Court or a Judge, in determining whether it is just or convenient that such appointment should