said application should stand for judgment, and the same standing this day in the paper &c., Let the applicants, the said County Council and D. M. D., be at liberty, notwithstanding the appointment of the receiver and manager, to exercise their statutory powers of distress upon the goods, chattels, and effects of the Deft co., notwithstanding any rights or claims of, or interference from, the debenture holders of the Deft co. for the sum of £-, the amount of the penalties incurred upon disobedience by the Deft co. of an order of the N- Petty Sessional Divisional Court, dated &c., to maintain and keep in good condition and repair the rails of which their tramway consists, and costs. Liberty for the Plts and the said receiver to appeal.-By consent stay all further proceedings in this action until the day of, And Let, if notice of such appeal be served upon the applicants on or before the said day of, all further proceedings under this order be stayed pending such appeal.-Liberty for the applicants to add their costs of application (to be taxed) to their security.-See Pegge v. Neath and District Tramways Co., Ld., North, J., 25 June, 1895, B. 2230; (1895) 2 Ch. 508.

47. Declaration that Receiver and Manager entitled to First Charge for Balance, &c. due to him.

UPON motion &c., by counsel for E. C. B. and R. J. W., the receivers and managers appointed in this action by way of appeal from the order dated &c.; And upon hearing counsel for the Plt and Defts, and for M. T. S. & Co., the L. F. Co., Ld., J. N. & Co., N. & Son, D. & Co., B. F. & Co., B. B. and H. J. C. A. C. W. H. (trading as A. C. W. H. & Co.), and H. B. & Co., in the said order named, the Plts in S. v. The School Board of L-, hereinafter called the Plts in the said action, And upon reading &c., Discharge the said order dated &c., And Declare that the applicants, as such receivers and managers as aforesaid, are entitled to a first charge upon the funds in Court to the credit of this action, and upon all moneys, funds, and properties of the Deft co. comprised in or subject to any of the debentures issued by the Deft co., for the due payment of the balance which shall be found due to them upon taking their accounts as such receivers and managers, and of the costs properly incurred by them, as hereinafter mentioned, which they shall not recover from the Plts in the said action, and also for effectuating and securing to the applicants an indemnity against all liability which they shall have properly incurred in acting as such managers as aforesaid upon the contracts entered into and orders given by them or otherwise; And the applicants are to be at liberty to apply as to raising such balance and costs, and providing for such indemnity out of the funds in Court, or to be brought into Court, or any other moneys, funds, and properties subject to such charge; And Let the Plts in the said action (names) pay to the applicants, E. C. B. and R. J. W., their costs incurred in the said

action, and also their costs of the said order dated &c., and of and occasioned by this appeal, to be taxed.-See Strapp v. Bull, C. A., 12 March, 1895, B. 485; (1895) 2 Ch. 1, C. A.

48. Receiver authorized to borrow on First Charge for Purposes amounting to Salvage.

LET J. W. T., the receiver appointed by the orders dated &c., be at liberty to raise a sum not exceeding £10,000 for the purpose of defraying the costs incurred and to be incurred in repairing damages caused to the Deft co.'s railway by landslips and other causes, and to pay expenses necessary to keep the line open for traffic throughout, and to avoid embargoes or causes of forfeiture to the Spanish Government, and to charge the same as a first charge, with interest at a rate not exceeding 7 p. c. per ann., upon the net revenues of the co., and upon all or upon any part or parts of the Deft co.'s property in priority to the existing debenture stock, debentures, and prior lien bonds of the co.-See Greenwood v. Algeciras Ry. Co., C. A. 20 March, 1894, A. 425; (1894) 2 Ch. 205, C. A.

For order for receiver of canal tolls, rates and dues, on bill by a mortgagee of the co., and for him to pay his balances, after payment of the costs, charges, and expenses of carrying on the business of the co., and the interest of the mortgages created by them, to be verified by affidavit, see Potts v. Warwick, &c. Canal, Kay, 143.

For order for receiver of tolls, rates and duties, and all the rents and profits of the real estate of a canal co., omitting the word "manage," and delivery of books to him; moneys received to be applied, first, in maintaining the canal and paying salaries of receivers, collectors, and of the other officers, and then of the interest of the mortgages, without prejudice to the rights of prior incumbrancers, and to the right of the managing committee to control the trade; on bill by one of several mortgagees whose interest was in arrear: see Fripp v. Chard Ry., V.-C. W., 29 June, 1853, A. 1347; and see De Winton v. Mayor of Brecon, 26 Beav. 533, that the receiver of tolls, &c., of a corporation authorized by their special Act to be mortgaged, will not have 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. Edelston, 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 Ry. Co., 40 Ch. D. 119, C. A.

For form of application, see D. C. F. 887.

49. 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 balances, &c.—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. 725.

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. D. 75, C. A.; 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. D. 544, C. A.; 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. 793 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 7; Re H.'s Estate, H. v. H., 1 Ch. D. 276, sup. p. 749; 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. D. 609, C. A.; 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 er parte, except in cases of emergency: Lucas v. Harris, 18 Q. B. D. 127, 134. The Court of Bankruptcy has jurisdiction under sect. 25 (8) of the Jud. Act, 1873, to appoint a receiver by way of equitable execution for enforcing orders for payment of money to the trustee in bankruptcy, but will not, as a general rule, do so on an ex parte application: Re Goudie, Exp. Official Receiver, (1896) 2 Q. B.

481.

Under O. L, 6, a receiver may be appointed, on the application of either

party, either before or after judgment: Salt v. Cooper, 16 Ch. D. 544, C. A. ; Bryan v. Bull, 10 Ch. D. 153; Anglo-Ital. Bank v. Davies, 9 Ch. D. 275; Smith v. Cowell, 6 Q. B. D. 75, C. A. 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; 24 L. T. 126), 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, 16 Ch. D. 544, C. A.

Where a Deft has not appeared and an application is made for the appointment of a receiver, it is not sufficient to file the summons at the Central Office under O. LXVII, 4, but it must be served on the Deft or leave must be obtained for substituted service: Tilling, Ld. v. Blythe, (1899) 1 Q. B. 557, C. A.

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. 18.

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. 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; 1 W. R. 56; 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; 18 L. T. 384.

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. 97; even though the application is refused: Coope v. Cresswell, 12 W. R. 299.

The Court has jurisdiction under sect. 25, sub-sect. 8, of the Jud. Act, 1873, to appoint a receiver in an action to recover land although the title is legal and the Deft is in possession, but a case must be made to justify such appointment: Foxwell v. Van Grutten, (1897) 1 Ch. 64, C. A.; John v. J., (1898) 2 Ch. 573, C. A.

The jurisdiction is discretionary, and the Court will have regard to all the circumstances, e.g., the interest of the tenants, the pecuniary position of the Deft, and the probability of the Plt's title proving to be superior: John v. J., sup

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, 1 L. C. Eq. 755; Houlditch v. M. Donegal, Beat. 146; 8 Bli. N. S. 301. The mere order of the English Court does not put the receiver into possession of foreign property (e.g. a debt which is to be treated as locally situate abroad), so as to constitute foreign process a contempt of the English Court: Re Maudslay, Sons & Field, (1900) 1 Ch. 602.

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. Smith, 53 L. J. Ch. 16, 166; 49 L. T. 527; 32 W. R. 111, and sup. p. 408.

As to the jurisdiction of the Court to appoint a receiver and manager of property in the colonies or abroad, see inf. Section V. pp. 810 et seq.

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.

Where debentures comprised special securities which could not be realized otherwise than by a commercial liquidator, the receiver appointed by the debenture holders, was as to those assets substituted for the official receiver who had been appointed by the Court below: British Linen Co. v. South American and Mexican Co., (1894) 1 Ch. 108, C. A.

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. D. 447, C. A.; 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; 25 L. J. Ch. 600.

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. But in the case of a partner continuing the business (especially if he has the larger share) it is frequently done.

SALARY AND ALLOWANCES.

The usual allowance was formerly 57. 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. 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. 760; W. N. (87) 194.