showing his conduct of the business of the receivership,* since it is his duty to render an account of his receivership.5

After a receiver has been appointed the partners are not entitled to any portion of the money into which partnership assets have been converted until all partnership debts have been paid."

§ 181. Disposition of Earnings and Meeting Losses in Operations by Receiver.

Funds earned by a receiver after dissolution of a firm should not be credited to the capital account, but should be paid into the general fund to be applied with other assets to capital and profits, according to the proportion that the original capital bore to the profits earned.1

If a judgment is recovered against a receiver of a partnership for funds advanced to him to publish a directory, and the publication results in a loss, it is proper to order

4 Maund v. Allies, 4 Myl. & Cr. 503.

Where a receiver of partnership property was appointed, and the parties were ordered to deliver to him all the partnership books and papers, which were to be open to the inspection of the parties and their attorneys and accountants only, and a paper purporting to be a subpoena duces tecum was served upon the receiver requiring him to appear before the commissioner of accounts and produce all of the books, etc., an order to show cause, directed to the parties, why the order directing the parties to deliver the books, etc., to the receiver should not be amended to permit him to obey the subpoena, was improperly made, since he had no standing

in the action to apply for such relief, he not being a party and not standing in the shoes of the copartners, and, though he could apply to the court for instructions as to whether he should obey the subpoena, he could not seek a modification of the order which did not concern him. In re Foster, 139 App. Div. 769, 124 N. Y. Supp. 667 (affirming order, 68 Misc. Rep. 120, 123 N. Y. Supp. 465).

5 Gridley v. Conner, 2 La. Ann. 87; Clapp v. Clapp, 10 N. Y. St. Rep. 733.

6 Rochat v. Gee, 137 Cal. 497, 70 Pac. 478; Bishop v. Pendley, 138 Ga. 738, 76 S. E. 63; Slater v. Slater, 78 App. Div. 449, 80 N. Y. Supp. 363.

1 Kennedy v. Hill, 89 S. C. 462, 71 S. E. 974.

the judgment satisfied out of any of the assets of the firm except the directory business.2

§ 182. Vacation of the Appointment.

The general rules applicable to the vacation of orders appointing receivers will be treated in a subsequent chapter.

Where, however, receivers have been appointed in a suit between partners to wind up a partnership formed to carry out a contract for the construction of a public work, on a bill alleging insolvency and that the completion of the contract by receivers will be for the benefit of creditors, to which the majority of the creditors have consented, an affidavit of the attorney for a single judgment creditor, stating his belief merely that the firm is solvent and that the receivership was obtained for the purpose of hindering and delaying the creditors, and for the benefit of the partners, is insufficient to justify the vacation of the receivership or the granting of leave to such creditor to issue an execution and levy the same on partnership property in the hands of the receivers.1

2 Painter v. Painter, 138 Cal. 231, 94 Am. St. Rep. 47, 71 Pac. 90.

1 Patterson V. Patterson, 184 Fed. 547.

CHAPTER VIII.

RECEIVER IN RELATION TO JOINT ADVENTURES.

§ 183. When Receiver Will Be Appointed.

A receiver will not be appointed in a suit by one of the parties to a joint adventure without a showing of fraud or mismanagement or damage to the joint assets.1

Thus a receiver has been appointed to take possession of a race horse of great value, and to sell it and divide the proceeds among those entitled thereto, where one of the several owners of the horse secured a third party to attach the horse and it was appraised at a low value and was about to be sold.2

But where, in a suit for dissolution of a joint adventure and for an accounting, there was a sharp contest between the parties as to the nature of the agreement, and the question of whether the relationship existed was contested and the business was of such a nature that the court could not carry it on under a receivership, and the defendants were solvent and able to respond in damages, the application for a receiver will be denied."

1 Warwick v. Stockton, 55 N. J. Eq. 61, 36 Atl. 488.

A receiver of uncollected accounts due in a joint enterprise was appointed. Candler v. Cand

ler, Jac. 225.

In King v. Barnes, 51 Hun 550, 4 N. Y. Supp. 247, the action was brought to establish and enforce the rights of the parties who had advanced money and incurred liabilities in reliance upon the agreement for a joint enterprise, and it was held that the case was peculiarly within the jurisdiction of a

court of equity and that a receiver was necessary to final and complete relief. See same case on joint relationship of the parties in 109 N. Y. 267, 16 N. E. 332.

Receiver may be appointed in a partition suit whenever facts appear which justify such an appointment. Goodale v. Fifteenth Dist. Court, 56 Cal. 26; Reas v. Clemence, 173 Cal. 106, 159 Pac. 432.

2 Shehan V. Mahar, 17 Hun (N. Y.) 129. See, also, Andrews v. Betts, 8 Hun (N. Y.) 322.

3 Bernitt v. Smith-Powers Logging Co., 184 Fed. 139.

One of the parties to an action for the appointment of a receiver, who concedes that it is proper to appoint a receiver to take charge of and sell property belonging jointly to the parties, and divide the proceeds between them, may properly be required to pay over to the receiver money in his hands, arising from a sale by him of other property which had belonged to himself and the other party, the title to which they had derived by virtue of the same transaction as that by which they acquired the ownership of the property turned over to the receiver, where there has been no accounting and settlement as to the property sold.1

4 Whitley v. Berry, 105 Ga. 251, 31 S. E. 171.

CHAPTER IX.

RECEIVERS IN PARTITION PROCEEDINGS.

Receivers are frequently appointed in suits for partition,1 but ordinarily in a partition suit there is less occa