the interests of the absconding partner in the partnership in the absence of waste or other equitable grounds for a receiver over the partnership.1 § 170. Effect of One of the Partners Being Appointed Receiver. Where one of the partners has been appointed receiver over the partnership he will not be permitted to retain funds collected by himself in his receivership capacity upon the plea that they were due him personally. The disposition of the funds collected by him is a matter within the control of the court since the funds when collected are in the custody of the court.1 And where one of the partners is appointed receiver of the partnership, his possession of the partnership property thereupon becomes that of the court, and if he uses such property for his private benefit or profit he must account to the court and not to his copartner.2 § 171. Suing and Being Sued. The same general rules in respect to the necessity of obtaining leave of court to sue a receiver apply to receivers of partnerships. They can not ordinarily be sued without the permission of the court.1 Unless restricted by order of court, the receiver in an action to liquidate partnership affairs may intervene in a suit against the firm and set up as many defenses as he may have reason to believe can be sustained, notwith 1 Hamill v. Hamill, 27 Md. 679. 1 Gridley v. Conner, 2 La. Ann. 87. 2 Whitesides v. Lafferty, 3 Humph. (Tenn.) 150. 1 Robinson V. Hodgkins, 168 Mass. 465, 47 N. E. 195; Blum v. Van Vechten, 92 Wis. 378, 66 N. W. 507. A common law receiver appointed in pursuance of the court's equitable powers to hold the assets of a firm pendente lite and dispose of them as the court shall direct can not be sued for a partnership debt. Bogert v. Turner, 135 App. Div. 530, 120 N. Y. Supp. 420. standing such defenses might inure to the benefit of the members of the firm, though not pleaded by them.2 The receiver may generally sue without leave of court where he is doing so for the purpose of recovering possession of partnership property with the intent of applying it to the purposes of the receivership." § 172. Binding Force of Previous Orders or Judgments Upon Receiver. In a suit by a receiver of a partnership to foreclose a vendor's lien on property sold by him the defendants. can not assert as a defense that one of the partners was not a party to the litigation in which the receiver was appointed where it is not shown that he was in fact alive or within the jurisdiction of the court.1 A receiver in a suit between partners for dissolution can not question judgments confessed by the firm to give preferences.2 2 Honegger V. Wettstein, 15 Jones & S. (N. Y.) 125. 3 A partnership receiver, appointed in a suit by a representative of a deceased partner against the surviving partner to compel a settlement of the affairs of the partnership, and the application of its property to its debts, is an officer of the court, invested with the whole equitable title to the firm assets without an assignment; represents, in any suit affecting the partnership property, the interests therein of all parties to the suit in which he was appointed, if not of persons who are not parties; is clothed with all the rights and equities of the deceased partner for the purposes of his trust; and may sue, without leave, in this country, to obtain possession of the partnership property for the purpose of applying it to the partnership debts, I Rec.-30 and need not, on a bill filed for that purpose, join the representative of the deceased partner as a party. Tillinghast v. Champlin, 4 R. I. 173, 67 Am. Dec. 510. 1 Stelzer v. LaRose, 79 Ind. 435. An order made under Code Civ. Proc., § 564, authorizing a receivership in certain actions between partners, can not be attacked in an action by the receiver except for want of jurisdiction to make it, since in such action the appointment is only collaterally involved. Title Ins. & Trust Co. v. Grider, 152 Cal. 746, 94 Pac. 601. 2 The appointment of a receiver of a partnership at the instance of an attaching creditor does not prevent the issuance of another order of attachment without a new affidavit or bond, to another county, against land belonging to one of the partners. Runner v. Scott, 150 Ind. 441, 50 N. E. 479; A judgment against the receiver of a partnership in a suit commenced under leave of court on a claim in the nature of costs incurred by the receiver in the management and conduct of the business during his receivership and the estate under receivership was chargeable with its payment. The receiver represented all persons interested in the estate and the judgment was conclusive upon them and was conclusive against the surviving partner and creditors whether made parties to the action or not.3 § 173. Receiver Is Bound by Equities Against Partnership. The receiver is under the general rule bound to recognize the equities and liens existing against the partnership. Thus where a retiring member of a partnership sold his interest in the business to his copartners upon consideration that they would pay certain partnership notes but he, nevertheless, was compelled to pay them, he may recover the amount so paid by him from the receiver of the new firm made up of the remaining partners since his rights of reimbursement were the same against the new partnership as they were, had the old partnership not been discontinued.1 But the fact that creditors of a partnership had from time to time deposited money with it as security for advances will not require the receiver of the partnership Weber v. Weber, 90 Wis. 467, 63 The receiver of a partnership engaged in the brewing business may be directed by the court to take charge of the stock in trade and continue the business with a view to closing it up. Skipp v. Harwood, Dick 114. The court may continue a part nership business through its receiver after the termination of the partnership for the purpose of disposing of it as a going business where it is to the best interests of the interested parties to do so. Taylor v. Neate, 39 Ch. D. 538. 3 Painter v. Painter, 138 Cal. 231, 94 Am. St. Rep. 47, 71 Pac. 90. 1 Allyn v. Boorman, 30 Wis. 684. after its insolvency to pay moneys so received in full where the deposits were not special ones and the moneys were not kept separate since in the circumstances the creditors had no special lien upon the funds.2 § 174. Conducting of the Partnership Business by the Receiver. A receiver will not be appointed over a partnership for the mere purpose of carrying on the business. The carrying on of business operations by the receiver must be incidental to the receivership.1 A court will not per 2 Butler v. Sprague, 66 N. Y. 392; Attorney-General v. Continental Life Ins. Co., 71 N. Y. 325, 27 Am. Rep. 55. 14 App. 1 Schloss v. Schloss, Div. 333, 43 N. Y. Supp. 788. In Hall v. Hall, 3 Macn. & G. 79, the purpose of the suit was to continue the business through a receiver. It was held that the object being to continue the partnership it was not according to the practice of the court to appoint a receiver. See, also, Wilson v. Greenwood, 1 Swanst. 471; Goodman v. Whitcomb, 1 Jac. & W. 589; Walworth v. Holt, 4 Myl. & C. 619; Const v. Harris, Turn. & R. 496. "The conclusion," the court says, "I come to is that by the rule and practice of this court, a receiver or manager is only granted where it is ancillary to the object of dissolution." In Roberts v. Eberhardt, Kay 148, it is said that where the purpose is the appointing of a receiver to continue the business the court does not readily grant the order. In Jackson v. De Forest, 14 How. Pr. (N. Y.) 81, it was held that the court would not take upon itself the responsibility of carrying on the partnership busi ness. In some cases where it may be necessary to secure the good will of the partnership business to the purchaser and the full value of the partnership property to the partners on the sale a receiver is allowed to carry on the business until he can make a favorable sale of the property. Cf. Dayton v. Wilkes, 17 How. Pr. (N. Y.) 510, where sufficient time was allowed to dispose of the property advantageously. Marten v. Van Schaick, 4 Paige (N. Y.) 479, is to the same effect. In Allen v. Hawley, 6 Fla. 142 (164), 63 Am. Dec. 198, it is said that it could never have been contemplated that a court of chancery should become the superintendent of the private affairs of individuals. Its legitimate purpose is to adjust the rights and settle the disagreements of the parties growing out of such transactions. See, also, Wolbert v. Harris, 7 N. J. Eq. 605. In Waters v. Taylor, 15 Ves. Jr. 10, the Lord Chancellor (Eldon) said. "Then considering the nature of this property can the plaintiff call upon the court to assume the management of the theater? My opinion is that this court has no jurisdiction to man .. mit its receiver to continue the business unless the failure to do so will result in a serious loss because of loss of the good will attached to it or where the nature of the business is such that its principal value consists in its existence as a going business. Under such circumstance the maintenance of the business by the receiver will be incidental to the duty of the receiver to preserve the receivership property for the benefit of those ultimately entitled to it.2 Where a business is not at the age this concern merely for the purpose of carrying it on. The court will order it to be sold or foreclosed; will deal with it as property, but no further. . . . I do not see my way to make such an order, and if I did I must, by acting, ruin all concerned. They have still the locus pœnitentiæ, and if they will not settle their own interests, it is immaterial, whether the consequences shall be produced by their own acts or by mine." See, also, Niemann v. Niemann, L. R. 43 Ch. Div. 198, where it is held that a receiver will not be appointed over a partnership, and authorized to do acts in the nature of a compromise or settlement which the partners were not authorized to do. The liquidator of a partnership or corporation which has been dissolved by vote of the parties in interest and gone into liquidation is without authority to continue its business as a going concern, and will be held to strict responsibility for so doing. In re Browne & Jenkins Co., 106 La. 486, 31 So. 67. See § 61, supra, in respect to general rule as to conducting the receivership as a going business. 2 Rochat v. Gee, 137 Cal. 497, 70 Pac. 478; Allen v. Hawley, 6 Fla. 142, 164, 63 Am. Dec. 198; Gillam v. Nussbaum, 95 Ill. App. 277; Blythe v. Gibbons, 141 Ind. 332, 35 N. E. 557; Levi v. Karrick, 8 Iowa 150; Wolbert v. Harris, 7 N. J. Eq. 605; Crane v. Ford, 1 Hopk. Ch. (N. Y.) 114; Jackson v. DeForest, 14 How. Pr. (N. Y.) 81; Marten v. Van Schaick, 4 Paige (N. Y.) 479; Heatherton v. Hastings, 5 Hun (N. Y.) 459; Henn v. Walsh, 2 Edw. Ch. (N. Y.) 129, 130; Williams v. Wilson, 4 Sandf. Ch. (N. Y.) 379; Witherbee v. Witherbee, 17 App. Div. 181, 45 N. Y. Supp. 297. The value of a business engaged in publishing a newspaper is so largely dependent upon its being continued as a going concern that a receiver will generally be permitted to continue it. Dayton v. Wilkes, 17 How. Pr. (N. Y.) 510; Marten v. Van Schaick, 4 Paige (N. Y.) 479. The receiver of a partnership appointed in an action for dissolution has authority to sell manufactured articles on hand. Montross v. Mabie, 30 Fed. 234. In Heatherton v. Hastings, 5 Hun (N. Y.) 459, the court said: "Although ordinarily a court of equity will not undertake to carry |