cible obstacle to the court appointing a manager or receiver to have charge of the business of a corporation, that it might subject the court to the care and responsibility of conducting for the time the business of the company. That in equity becomes indispensable, in order to enforce the execution of a judgment or lien against them. But the court will so modify its order as to do as little injury as possible, and to assume as little charge or responsibility as practicable.3

5. The rules of the courts of equity in regard to the office and agency of a receiver is very strict and stringent. The property while in his custody is regarded as in legal contemplation in the custody of the court. The assets are thenceforth in gremio legis, and cannot be seized by process from any other court.*

4

6. The appointment of the receiver does not operate to derange the priority of legal or equitable liens. The money in his hands is in the custody of the law for whoever can make title to it, and when the party entitled to the estate is ascertained, the receiver will be his receiver.5

7. Where there are different mortgages, and the first mortgagee does not assume possession of the property, or take any steps towards foreclosure, any subsequent encumbrancer may take possession, or have a receiver appointed to hold the rents, issues, and profits for his benefit until those who have a prior right claim them by some definite action in that direction.6 But where the prior mortgagee takes proceedings to enforce his lien, the same receiver will be appointed in his suit, which is, in fact, but an extension of the receivership so as to include the prior mortgage and suit. And the subsequent encumbrancer will not be obliged to refund any rents received by himself before the prior encumbrancers took possession or brought suit.7

Where the receiver of a railway company was appointed to receive the rents, issues, and profits of the railway, it was held that it was his duty to receive the gross receipts of the company for the carriage of passengers, freights, mails, and the like, and to pay the bills for running expenses thereout, and not to receive only the surplus after paying the expenses. Simpson v. Ottawa & Prescott Railw., 10 U. C. L. J. 108.

Peale v. Phillips, 14 How. 368, 374, 375.

↳ Nelson, J., in Wiswall v. Sampson, 14 How. 52, 65.

Howell v. Ripley, 10 Paige, 43.

Thomas v. Bugstocke, 4 Russ. 64.

8. It is not in conformity with the practice of courts of equity to appoint different persons to be receivers in different suits affecting the same property, but to extend the receivership from time to time as different suits are instituted, so as to have the one receivership embrace the whole property and all the suits.8 And if the former receiver declines to act after the receivership is extended to other suits, he will be discharged, and another appointed embracing all the suits.8

9. It seems to be entirely well settled, that the receiver represents all the parties in the suits wherein he has been appointed, but that he does not represent strangers to the suits, or any not in privity with the parties.9

If

10. The degree of responsibility of the receiver for money once in his hands is much the same as that of any other trustee. he mix it with his own money, or deposit it on private account, he thereby becomes responsible for any accident befalling it.10 It has been held, that where the trustee deposits the money to the credit of the trust with a bank or banker of good credit, at the time, and the money is lost through the unexpected insolvency of the depositary, he will not be held accountable. But if he deposit the money in his own name, or part with the control of it to any extent, even to permitting a surety to have a veto upon drawing it, and the banker fail, he must bear the loss.12

11. All persons into whose hands the trust funds can be traced and identified will be responsible for their restoration, as becoming themselves involuntary trustees, or trustees in invitum. This is a familiar principle of equity law, applicable to all matters of trust, and illustrated by numerous decisions.13 This principle is illustrated in a very recent case, where the receiver paid over

8

Caggee v. Howard, 1 Barb. Ch. 368.

• Booth v. Clark, 16 How. 322; Porter v. Williams, 5 How. Pr. 441; s. c. 5 Seld. 142.

10 2 Redf. on Wills, 881, 882, and cases cited.

Knight v. Lord Plimouth, 3 Atk. 480; Rowth v. Howell, 5 Vesey, 565.

12 Massey v. Banner, 4 Madd. 416, 417; Clarke v. Tapping, 9 Beav. 284; White v. Baugh, 9 Bligh. N. S. 181; s. c. 3 Cl. & Fin. 44; Thew v. Kiston, 1 Vesey, 377.

13 Bodenham v. Hoskins, 21 Eng. L. & Eq. 643.

the money in pursuance of a garnishee's order, supposing it proper that it should go in that direction, but the court being of a different opinion, ordered the person to whom it had been so paid to refund the money.14 And in the same case,15 the Master of the Rolls said: "The receiver could not have received anything except under the order of the court, and the money is therefore strictly money belonging to the court, and the receiver can only discharge himself by paying obedience to its order.”

12. Where property is laid under an injunction by a court of equity, and placed in the hands of a manager or receiver, every person concerned in the custody or disbursement of the receipts of such property, or in its use, is responsible to refund the same to the court to enable it to decree the same to the parties found ultimately to be entitled to it.16

14 De Winton v. Mayor of Brecon, 8 Jur. N. S. 1046; s. c. 28 Beav. 200. 15 Lane v. Stone, 9 Jur. N. S. 320.

16 In re Ward, 31 Beavan, 1.

*CHAPTER XXX.

INDICTMENT.

SECTION I.

Indictments against Railway Companies.

1. Are liable to indictment for obstructing | 5. All that is requisite is, that it produce no

public highway.

serious public inconvenience.

2. Corporations liable to indictment for mis- 6. Order, or conviction of company, in rela

feasance as well as nonfeasance.

3. Not liable to indictment for disturbing quiet by proper use of locomotives.

7.

tion to repair of highways, may be general.

Signals required to be given at highway crossing on level.

4. Where the company have the right to divert highways, it is for the jury to determine n. 2. Review of the cases upon the subject. whether it is done in a reasonable manner.

1

§ 225. 1. RAILWAY companies are liable to indictment for obstructing a public highway contrary to the powers granted in their act. For instance, obstructing a carriage turnpike-road, by the piers of a railway bridge. So also for cutting off a public highway, and obstructing travel upon it, wthout, or before, constructing a substitute in the manner required by their act.2 Reg. v. Rigby, 6 Railw. C. 479. The footpaths upon the bridge are not to be reckoned as a part of the requisite width of the bridge. Ante, § 105. See also Bristol & Exeter Railw. v. Tucker, 7 L. T. N. S. 464; Fosberry v. Waterford & Limerick Railw., 13 Ir. Com. Law Rep. 411. An indictment cannot be sustained against a railway company for a nuisance in the obstruction of a highway while it is under the sole management of a receiver, appointed by the Court of Chancery, over whose acts the company have no control. State v. Vt. Central Railw., 30 Vt. R. 108. But on an indictment for obstructing a highway, if it appear that the obstruction has been removed, that is substantially an end of the proceedings, the object having been already attained. Per Wightman, J., Regina v. Paget, 3 F. & F. 29.

2 Queen v. Scott and others, 3 Q. B. 543. This is an indictment against the officers and agents of the company. But it is held the company is also liable to indictment. Queen v. Great N. of Eng. Railw., 9 Q. B. 315; State v. Vermont Central Railw., 27 Vt. R. 103. Ante, § 130; Commonwealth v. Nashua & Lowell Railw., 2 Gray, 54; Springfield v. Conn. River Railw., 4 Cush. 63; Commonwealth v. New Bedford Bridge Company, 2 Gray, 339. This subject

The company may use the highways for making up their trains to a reasonable extent, if they do not abridge the rights of others was very considerably discussed in Reg. v. Birmingham & Gloucester Railw. Company, 9 C. & P. 469 ; s. c. 3 Q. B. 223, and the same result reached as in the late case of Queen v. Great North of England Railway. The opinion of Patteson, J., 3 Q. B. 231, when the former case was determined in the Queen's Bench, embraces a brief and comprehensive abstract of the earlier English decisions upon the subject.

Upon the argument it was not contended on the part of the company that an action of trespass might not be maintained against a corporation; for, notwithstanding some dicta to the contrary in the older cases, it may be taken for settled law, since the case of Yarborough v. The Bank of England, 16 East, 6, in which the cases were reviewed, that both trover and trespass are maintainable; but it was said that an indictment will not lie against a corporation. Only one direct authority was cited for this position; and it is a dictum of Lord Holt in an anonymous case reported in 12 Mod. 559. The report itself is as follows: Note: per Holt, Ch. J. A corporation is not indictable, but the particular members of it are.' What the nature of the offence was to which the observation was intended to apply does not appear; and as a general proposition it is opposed to a number of cases, which show that a corporation may be indicted for breach of a duty imposed upon it by law, though not for a felony, or for crimes involving personal violence, as for riots or assaults. Hawk. P. C., B. 1, c. 66, § 13, Vol. ii. p. 58, 7th ed.

"A corporation aggregate may be liable by prescription, and compelled to repair a highway or a bridge. Hawk. P. C., B. 1, c. 76, § 8; c. 77, § 2, Vol. ii. pp. 156, 258; and in the case of Rex v. The Mayor, &c. of Liverpool, 3 East, 86, the corporation were indicted by their corporate name for non-repair of a highway, and, upon argument in this court, the indictment was held to be defective; but no question was made as to the liability of a corporation to be indicted.

"In the case of Rex v. The Mayor, &c. of Stratford-upon-Avon, 14 East, 348, the corporation was indicted by its corporate name for non-repair of a bridge, and found guilty, and upon argument in this court, the verdict was sustained, and no question made as to the liability generally of a corporation to an indictment for breach of a duty cast upon it by law.

Upon the discussion of the question in the present case, the counsel for the company relied chiefly upon the circumstance of the indictment being found at the Quarter Sessions (it was so put, hypothetically, in the argument for the defendants), where the company could not appear and take their trial, even if so disposed, as a corporation can only appear by attorney, and the appearance at the sessions must be in person. We think there is no weight in this objection. It may indeed impose some difficulty upon the prosecutor, and render his proceeding more circuitous, as he will be obliged to remove the indictment by certiorari into this court in order to make it effective; but the liability of the corporation is not affected.

"In the case of Rex v. Gardner, 1 Cowp. 79, it was objected that a corpora