« PředchozíPokračovat »
215; Todd v. Crooke, 1 C. R. (N. S.) 324; Gouverneur v. Warner, 2 Sandf. S. C. R. 624, and other decisions there cited.
The statute law on the subject of receiverships of the property of insolvent or dissolved corporations, will be found in articles II. and III. of title IV. chap. VII. part III. of the Revised Statutes, 2 R. S. 466 to 472. See, also, chapter II. title XIII. of the Code, part II., and in particular, see 444 of that chapter.
In Conro v. Gray, 4 How. 166, a long discussion will be found as to the circumstances under which a receiver will be appointed in these cases, and various cases under the old practice are cited.
A receiver of such a corporation cannot impeach or disaffirm its lawful or authorized acts. "For most, if not all purposes, he takes the place, and stands as the representative of the company. He is as much bound by a settlement which the company were authorized to make, as the company itself."Hyde v. Lynde, 4 Comst. 387.
The works as to the former practice, may be consulted as to the different cases saved by subdivision 5.
The duties of receivers in general remain as under the late practice; those of receivers under proceedings supplementary to execution, are prescribed by rule 81 of the supreme court, and have been heretofore considered.
In Porter v. Williams, 5 How. 441, 9 L. O. 307, 1 C. R. (N. S.) 144, although the case is one of receivership in proceedings supplementary to execution, the doctrine is laid down in general terms that, when a receiver has been duly appointed, he becomes, by virtue of his office, legally entitled to the possession of the debtor's estate, and that, though usual, no assignment was necessary to divest the latter's title to personal property, and to vest that property in him. He also becomes thereupon entitled to the rents and income of the debtor's real estate, but the title to such real estate itself, can only be divested by sale on execution. The same doctrine is also laid down in The People ex rel. Williams v. Hulburt, 5 How. 446.
In the case in Re Paddock, 6 How. 215, it was held that, although the court may remove trustees or receivers for insolvency, it is not absolutely bound to do so; and, in that case, an application for such purpose was refused, the fund not ap
pearing to be in danger, and the insolvency of the receiver having been known to the parties, before his appointment.
In Bennett v. Chapin, 3 Sandf. S. C. R. 673, the following principles are laid down, in reference to the duties and powers of a receiver, when appointed:
1. He cannot make rests in his accounts, with a view to his commission, which must be calculated on the aggregate of his receipts and payments.
2. In cases where the fund is for the joint benefit of parties, without the existence of adverse interests between them, he may employ the counsel of one of such parties; but not, if the reverse be the case.
3. He is entitled to charge commission on choses in action actually in his hands, and delivered over by him to the parties before realization, on a final settlement of his accounts.
Before bringing or defending an action on behalf of the estate, a receiver must apply to and obtain the consent of the court; and, if he fail to do so, he will be personally liable for the costs.-Phelps v. Cole, 3. C. R. 157.
In Gouverneur v. Warner, 2 Sandf. S. C. R. 624, it was decided that a plaintiff in a creditor's suit, who had obtained a receiver over the defendant's property, could not afterwards levy an alias execution on personal property covered by such receivership.
By this section as it stood in the Code of 1851, all other provisional remedies then existent, were saved. In relation to those remedies, see the works on the old practice. The questions as to the writ of ne exeat have been already considered under the head of Arrest. The writ of supplicavit, it seems, had not ceased to exist as a provisional remedy, under the Code of 1849.-Forrest y. Forrest, 5 How. 125.
How far the total omission of this reservation, from the section as recently amended, may affect the question as to the future existence of the remedies last alluded to; and what may be the exact construction of this provision henceforth, remains to be settled by judicial construction. See this subject heretofore alluded to.
The remedies provided by the latter part of the section, in relation to funds or property admitted by a defendant to be in
his possession, and for the making and enforcement of an order for their deposit or delivery; and likewise those by which the satisfaction of an admitted portion of a partially disputed claim may be enforced; have already been considered, and the cases cited, under the head of Proceedings on the part of the Plaintiff after Answer, to which reference should be made accordingly.
OF SPECIAL PROCEEDINGS.
OF SPECIAL PROCEEDINGS IN GENERAL.
IN strictness, few, if any, of the remedies coming under this description, fall within the subjects proposed to be treated of in this work. Though formally saved by the Code, and recognized in the division of remedies proposed at the outset, the practice in them is, nevertheless, of a wholly different nature, and governed by different principles from those which regulate proceedings under that measure. Where, therefore, this is wholly the case, and where those proceedings are governed exclusively by the rules of the former practice, or by their own peculiar regulations, any detailed notice of them would be incompatible with the principles laid down at the outset. Nothing beyond a bare enumeration of proceedings of this class, and a bare reference to the statutory provisions on the subject, will, therefore, in these cases, be attempted. Where, however, such proceedings have any direct bearing upon the practice under the Code, they will be considered more fully.
The general saving of proceedings of this nature, is carried out by sec. 471, as follows:
§ 471. Until the legislature shall otherwise provide, the second part of this act shall not affect proceedings upon mandamus, or prohibition; nor appeals from surrogates' courts; nor any special statutory remedy not heretofore obtained by action; nor any existing statutory provisions relating to actions, not inconsistent with this act, and in substance applicable to the actions hereby provided; nor any
proceedings provided for by chapter five of the second part of the Revised Statutes, or by the sixth and eight titles of chapter five of the third part of those Statutes, or by chapter eight of the same part, excluding the second and twelfth titles thereof, or by the first title of chapter nine of the same part; except that when, in consequence of any such proceeding, a civil action shall be brought, such action shall be conducted in conformity to this act; and except, also, that where any particular provisions of the titles and chapters enumerated in this section shall be plainly inconsistent with this act, such provision shall be deemed repealed.
The following observations are made by Barculo J. in Traver v. Traver, 3 How. 351, 1 C. R. 112, in reference to the proceedings here saved. "The true principles applicable to the titles named in this section, are, where the title creates the proceeding, and contains full directions as to the form and mode of conducting it, or, where the title modifies a common law remedy, so as to make it essentially new and statutory, in such cases, the right and remedy remain unseparated and unaltered. But, where the titles merely provide for proceedings preliminary to an action, or establish certain principles of law, or rules of evidence, to govern suits between certain parties, under certain circumstances, without materially affecting the form of the action, or the manner of conducting it in other respects; there the proceedings are retained, and applied to the new system; and the action, not depending upon the old statute, is to be conducted in conformity with the Code. In the latter class may be placed the statutes in relation to suits by poor persons, by and against administrators, fixing the damages for trespass in certain cases, &c. ; which do not seriously affect the forms of action, but are as applicable to the new system as to the old. In the former may be ranked proceedings in partition, proceedings for the collection of demands against ships and vessels, forcible entries and detainers, writs of nuisance, and actions of waste; all of which are either entirely creatures of the statute, by which the right and remedy are made inseparable, or are common law actions, so far modified by the statute, as to be inconsistent with any other general form of remedy."
As regards the particular subject of proceedings in partition, this case is overruled, but the general classification adopted in it, is valuable and apposite, and will throw much light upon the subject in general, if strictly adhered to.