2 Barb. Ch. 471 | New York Court of Chancery | 1847
It was no valid objection to the application that the parties in the suit had submitted the matters in controversy between them to an arbitration without the consent of the receiver. For that did not alter, or affect, his liability to account, as receiver, for the property which had come to his hands. Even if there had been a formal discontinuance'of the suit, that would not have discharged him from his trust, as an officer of the court. The discontinuance of a suit does not discharge a receiver appointed therein. But it will entitle him to apply for his discharge, and to pass his account, so that he may pay over the balance, if any, in his hands, and exonerate himself and his sureties from further liability; unless the interests of the defendants require that he should continue in the receivership to protect their rights. If the protection of the rights of a defendant requires the continuance of the receiver^ the court will not grant a discharge although the suit is át ah end; but it will require the defendant thus protected, to file a
This appears to be a proper casé therefore to direct the bond to bé filed nunc pro tunc, so as to complete the appointment of the receiver, and to render him liable to account, as an officer "of the court, for thé property which came to his hands subsequent to the time when his bond should have been-filed. Whether it will have thé efféct to fender his suretiés liable for property which had been wasted, by his negligence or misconduct, before the making of the order appealed from, is a question wnlch does not properly arise here, and upon which it is not necessary to express an opinion. That question will properly be disposed of in the suit at law upon the bond, if it should become necessary to institute such a suit.
The appeal also seems to be defective for want of proper parties. It appears that the complainants in the suit have a common interest with the defendant in sustaining the order to file the bond nunc pro tunc. They should therefore have been served with notice of the appeal, and should also have been named in the appéal bond; or a separate bond should have been given to them upon the appeal. For that reason, instead of affirming the order of the vice chancellor, the appeal should be dismissed, with costs to be taxed.
