10 D.C. 212 | D.C. | 1881
delivered the opinion of the court:
The plea demurred to would probably not be sustained in the State of Vermont, because the courts of that State appear to have decided that a receiver, operating a railroad as a common carrier, would be liable in an action for damages occasioned by any breach of his obligation while acting in that capacity. In Paige v. Smith, 99 Mass., 395, this doctrine is imputed to the courts of that State, and it is held that a receiver appointed there would be equally liable to an action in the courts of another State for a similar cause of action, instituted without the permission of the court appointing the receiver. In Kinney v. Crocker, 18 Wis., 74, and Allen v. The Central R. R. of Iowa, the same rule is asserted. With the exception of these authorities, it is not too much to say that the decisions in England and in the United States are to
It was earnestly urged by counsel for plaintiff that this was a mere claim for damages, and that it- did not affect the possession of the property in'the receiver. The same view was relied upon in Wiswall v. Sampson, 14 How., 52. The Supreine Court disposed of that view of the case by observing: “But conceding the proceeding [at law] did not disturb the possession of the receiver, the argument does not meet the objection. The property is a fund in court, to abide the event of the litigation, and to be applied to the payment of the judgment creditor, who has filed his bill to remove impediments in the way of his execution. If he has succeeded in establishing his right to the application of any portion of the -fund, it is the duty of the court to see that such applies tion is made; and in order to effect this, the court must administer it independently of any rights acquired by third persons pending the litigation.” So that wherever a claim is made which will affect the estate, the court will pay no respect to it when acquired during the suit, unless presented for audit and adjudication. The court will administer the
There must be judgment for the defendant upon the demurrer.