Gray, Rec., v. Covert.

tain judgment creditors in that city. They were also indebted to the Wilcox Silver Plate Company and others, of the state of Connecticut. At the same time, Bagley & Oberreich, at La Porte, Indiana, were indebted in a considerable sum to Clapp & Davies. One of the judgment creditors instituted proceedings against the firm in Chicago, and on April 14, 1897, Catlin was appointed receiver. The court made an order requiring Clapp & Davies to execute a deed of general assignment transferring all their partnership property and effects to the receiver. Subsequently, in the month of June, the Wilcox Silver Plate Company brought an attachment suit in the La Porte Circuit Court against Clapp & Davies, and Bagley & Oberreich as garnishees. Other creditors became parties thereto. Catlin, the receiver, intervened and claimed the property attached by virtue of his prior appointment. The attachment creditors were sustained. In the course of the opinion, the court say: "A receiver is nothing more than an officer or creature of the court that appoints him. His acts are those of the court, whose jurisdiction may be aided, but in no wise enlarged or extended, by his appointment. His power is only coextensive with that of the court which gives him his official character. While it has been held that a court may appoint a receiver, and authorize him to take possession of property in a foreign jurisdiction, the doctrine is universal that the appointment confers no authority which the receiver can exert over the property without the aid of the courts in whose jurisdiction it is found. The appointment of its own force gives him the right to take possession of the property, but it confers upon him no power to compel the recognition of that right outside the jurisdiction of the court making the appointment." Upon the question of non-resident attaching creditors, the court say: "It is said, however, that the principles of comity which control in aid of the receiver of a foreign court, who is seeking to obtain possession of a fund, should only be suspended in their operation in favor

Gray, Rec., v. Covert.

of domestic creditors, and that inasmuch as the attaching creditors in the present case are all non-residents of the State, the aid of the court should have been extended to the receiver and denied the creditors. While this position is not without support, it is not in our view maintainable. Although non-residents, the attaching creditors are properly in our courts, pursuing a remedy which the statute confers upon foreign as well as domestic creditors. Until the legislature shall declare a different policy, the rights of a foreign creditor against the property of a debtor must be regarded by the courts as in all respects the same as those of resident creditors, so far as respects proceedings in attachment and garnishment. The rule which commends itself to our judg ment is thus declared: 'Once properly in court and accepted as a suitor, neither the law, nor court administering the law, will admit any distinction between the citizen of its own state and that of another. Before the law and its tribunals there can be no preference of one over the other.' Hibernia Bank v. Lacombe, 84 N. Y. 367; Rhawn v. Pearce, 110 Ill. 350; Warner v. Jaffray, 96 N. Y. 248; Paine v. Lester, 44 Conn. 196. This rule governs the more recent decisions." In Woolson v. Pipher, 100 Ind. 306, it was held that the voluntary assignment of his property by a failing debtor in the state of Ohio for the benefit of his creditors where possession of his goods is not taken by the assignee, will not defeat the liens of attaching creditors. To the same effect is Pitman v. Marquardt, 20 Ind. App. 431.

While counsel for appellants insist that the receivers hav ing been appointed under the law of New Jersey, vesting in them the property of the Herring-Hall-Marvin Company, "wherever situate," prior to the bringing of the attachment proceedings by appellee, that the judgment of the trial court was without evidence to sustain it. They further insist that the record shows that the receivers had taken actual possession of the property of the insolvent company, before the commencement of the attachment proceedings, and that

Aurora, etc,, Turnpike Co. v. Niebruggee.

therefore even under the rule stated in Woolson v. Pipher, supra, requiring actual possession of the property to perfect appellants' title, the judgment must be reversed. Whether appellants had taken actual possession of the property in question before the commencement of the attachment proceedings was a question of fact to be determined by the trial court. The burden of showing the actual possession in the receivers was upon the appellants. We can not say after reading the evidence that the finding of the trial court upon this question was without support.

It is argued by counsel for appellee that the questions discussed by counsel for appellants can not be considered for the reason that it affirmatively appears that all the evidence introduced upon the trial of the cause has not been made a part of the record. As in our opinion the judg ment of the trial court should be affirmed, we do not further refer to the question of the completeness of the record. Judgment affirmed.

THE AURORA AND LAUGHERY TURNPIKE COMPANY V. NIEBRUGGEE ET AL.

[No. 3,220. Filed November 27, 1900.]

CORPORATIONS.-Toll Roads.-Action for Toll.-Defense.-Want of Repair. Where a turnpike company was incorporated by special act of the General Assembly in the year 1848, the company in accepting the charter impliedly agreed to maintain the road in good repair, and the act of 1859 (§3684 Burns 1894) rendering tolls uncollectible where turnpike roads are permitted to remain out of repair, does not impose any additional burden, and its provisions are therefore binding on such company. pp. 568-570. TURNPIKES AND TOLL ROADS.—Action for Toll.-Instructions.—In an action by a turnpike company to recover tolls, to which the defendant pleaded as a bar to recovery, under §3684 Burns 1894, that the road was out of repair, it was proper for the court to inform the jury by proper instruction what constituted condition of repair or want of repair; whether such condition existed or not having been submitted to the jury in other instructions. It was also proper to instruct the jury that if, at any time, any one or more of the trips

Aurora, etc., Turnpike Co. v. Niebruggee.

for which recovery was sought were taken, the road was in good repair, they should find for the plaintiff for the amount charged for such trip or trips. p. 571.

TRIAL.-Misconduct of Jury.—New Trial.-A new trial will not be granted on account of misconduct of jurors, unless it be made to appear affirmatively that the party complaining had no knowledge of such misconduct before the jury retired to consider their verdict. p. 572.

From the Dearborn Circuit Court. Affirmed.

H. D. McMullen, H. R. McMullen, C. W. McMullen, and W. R. Johnston, for appellant.

COMSTOCK, J.-The appellant was incorporated by a special act of the General Assembly of this State, approved February 15, 1848, Local Laws of Indiana 1848, p. 229. By section 26 of said act, it is declared to be a public act.

This action was commenced before a justice of the peace of Dearborn county, to recover tolls amounting to $51.31. A trial resulted in a judgment in favor of the appellees. Upon appeal to the Dearborn Circuit Court, the trial again resulted in a judgment in favor of appellees. From this judgment the turnpike company appeals. Before the trial began in the circuit court, the appellees, defendants below, withdrew all their pleadings except the amended third paragraph of answer. Two errors are assigned: (1) Overruling the demurrer to the amended third paragraph of answer, and (2) overruling the motion for a new trial.

The amended third paragraph of answer alleges, in substance, that the turnpike in question was constructed upon an existing highway; and that at and prior to the accruing of the tolls sued for, the turnpike had become and remained out of repair for more than a reasonable length of time. The question presented by the demurrer to this answer and by the first assigned error is this: The plaintiff having been incorporated by special act of the General Assembly, and having built its road by virtue of and pursuant to the act of incorporation, does $3684 R. S. 1881, §4812 Burns 1894, apply in an action by this company to collect tolls?

Aurora, etc., Turnpike Co. v. Niebruggee.

This action having been commenced before a justice of the peace, the facts alleged in the paragraph of answer if material could have been proved without any plea. But the same question is presented by reason seven and onehalf for a new trial, being the admission of the testimony of the witness, Gear, that the turnpike was out of repair; and the giving of instructions numbered three, five, six, seven, eight, nine, and ten by the court of its own motion, the admission of which testimony and the giving of each of which instructions was upon the theory that §3684, supra, applied to the appellant corporation.

Twenty-four reasons are assigned in the motion for a new trial. We will consider only such as are discussed. The seventh and eighth reasons for a new trial are based upon the refusal of the court to permit appellant (plaintiff below) to prove by its secretary the expenditure for repairs on the road during the years 1889 to 1898, inclusive, of the sum of $15,588.96, and the amount expended for repairs for each of said years. Upon the part of the appellee testimony was introduced to show that the road was out of repair August 5, 1898, and for several years prior thereto. Evidence was introduced by appellant of repairs of the entire road during the year referred to. It would not have been error to have permitted evidence of the amount so expended, but as appellant introduced evidence to show the actual condition of the road at the time in issue, it was not harmed by this ruling of the court. In support of reason seven and one-half for a new trial and the giving of the foregoing instructions, the learned counsel for appellant argue (we have not been favored with a brief by appellee) that the charter of the corporation constitutes a contract between the corporation and the State, and secures rights in the franchise which can not be diminished by subsequent legislation; that section seventeen of the act of incorporation authorized the company to collect tolls of all persons using said road; that statutes are to be prospective in their application un