§ 630. Same-Possessory actions Solvency of possessor. A court will not interfere to grant a receiver, where the parties have an adequate remedy at law, and for this reason a receiver will be refused, although an action for possession of mining property is pending, where the party in possession is solvent and able to respond in damages, and no mismanagement or other resulting injury to the property is shown.1 But where it appears that the party in possession is perhaps unable to respond in damages, should his title fail, a receiver will be appointed to secure the profits to the rightful owner.2

Greeley v. Mo. Pac. Co., 123 Mo. 157; Chicago Oil Co. v. U. S. Petroleum Co., 57 Pa. St. 91; St. Louis Coal Co. v. Sandoval Coal Co., 111 Ill. 32; 17 Enc. Pl. & Pr. 682. There must be a pending suit before a receiver will be appointed. Davis v. Flagstaff Silver Min. Co., 2 Utah, 93; 17 Enc. Pl. & Pr. 684. While the allowance of receivers is discretionary, the court cannot allow more than a fair and just compensation. Geyser Mining Co. v. Salt Lake Bank, 16 Utah, 165; Karn v. Rorer Iron Co., 86 Va. 754; St. Paul Co. v. Diagonal Coal Co., 95 Iowa, 551; 17 Enc. Pl. & Pr. 878. Where a lessee's operations are enjoined he will not be entitled to a receiver merely because the injunction bond will not afford him an adequate remedy for damages. Hickey v. Parrot Sil. & Cop. Co. (Mont. 1901), 64 Pac. Rep. 330.

1 Carter v. Hoke, 64 N. C. 348; Chicago Co. v. N. S. Co., 57 Pa. 83; Enterprise Co.'s App., 9 W. M. C. 225; Emerson's App., 95 Pa. 258. "The 11 and 12 Geo. II., c. 10, does not authorize the appointment of a receiver over mines in the respondent's possession." Frere v. Hibernian M. Co., 2 Hog. 30; M. M. D. 310.

2 Parker v. Parker, 82 N. C. 165; 12 M. M. R. 596. "A receiver ought not to be appointed, in a suit involving the title of mining property, where, on account of there being no funds in his hands, it involves a stoppage of the works, in a case where there is no allegation of the insolvency of the defendants, or that the property is being injured by their mismanagement." Carter v. Hoke, 64 N. C. 348; M. M. D. 310. Insol. vency and resulting injury to the property from that or some other cause, must, generally, be alleged. Banner v. Dingus (W. Va.) 33 S. E. Rep. 530; Newton v. Rickets, 10 Beav. 525; Irwin v. Everson, 95 Ala. 64; Clark v. Johnston, 15 W. Va. 810; 17 Enc. Pl. & Pr. 735; Dickerson v. Bank, 95 Iowa, 392. If defendant insolvent receiver should be appointed.

§ 631. Receivers of corporations. The directors of a corporation are the trustees of its corporate property and business for the benefit of its creditors and stockholders. In the absence of mismanagement amounting to a direct impairment of the company's business and property, the affairs and property of the concern would not be taken out of the hands of the directors and, indeed, since they are the properly constituted agents to handle such property, in the absence of statute, it has been held that a court possesses no power to appoint a receiver for a mining corporation. But where there has been fraud, deceit or mismanagement on the part of the directors, likely to impair the value of the property or affect the business of a corporation, in the exercise of its discretion, a court of equity, in a proper case, to preserve the property and subserve the interests of creditors and stockholders, will appoint a receiver and take the property out of the possession of the directors. 2 In contests between stock

Bigbee v. Summerhour, 101 Ga. 201; 28 S. E. Rep. 642. A receiver will be appointed to protect the rights of a lessee in an ejectment suit. Ulman v. Clark (W. Va.), 75 Fed. Rep. 868.

1 Davis v. Flagstaff Company, 2 Mor. Min. Rep. 661; Neall v. Hill, 16 Cal. 146. "A court cannot appoint a receiver or decree the winding up of the affairs of a company and sale of its property on allegations of mismanagement by its trustees, for its jurisdiction in such case is over the officers personally." Neall v. Hill, 16 Cal. 146; M. M. D. 310. "In dealing with the relations between the corporation and its officers on one hand, and the stockholders on the other, in the management of the corporate affairs, courts of equity will look beyond the mere observance of the forms of law, and inquire if the authority has been in good faith exercised to promote the interest of the stockholders." Wright v. Oroville M. Co., 40 Cal. 20; M. M. D. 354. In absence of statute equity cannot dissolve a corporation and appoint a receiver. Rep. Mt. Silver Mines v. Brown, 58 Fed. Rep. 644; Davis v. Flagstaff Silver Min. Co., 2 Utah, 74; Coquard v. Linseed Oil Co., 171 Ill. 480; 17 Enc. Pl & Pr. 689.

Deep River G. M. Louis Co., 138 Mo. 148.

Co. v. Fox, 4 Ired. Eq. (N. C.) 61; Glover v. St.
Evidence that a corporation owning large timber

holders alone, however, perhaps the better rule is that mere mismanagement alone will not justify a receiver at the instance of the minority stockholders, but to authorize a receiver at the request of a minority of the stockholders there must be some fraud upon the rights of the minority, or mismanagement so gross as to threaten a destruction of their interests.1

§ 632. When cotenant entitled to.-A mere dispute or disagreement between cotenants of a mine or quarry, without more, will not entitle either disputant to the appointment of a receiver, as they will be left to settle their disputes out of court. But where there is an interference with the possession of one tenant to the extent of injuring his property rights, or where a plain case of exclusion is established, a receiver will be appointed by the court, to preserve the common property for the injured owner.

and coal land had executed lease to irresponsible party who was running down the value of the property, will not justify the appointment of a receiver at the instance of minority bondholders where the defendant proves the value of the property advanced after the lease and denies mismanagement or fraud. Romare v. Broken Arrow Coal & Min. Co., 114 Fed. Rep. 194 (Ala. 1902). A simple contract creditor is not entitled to have the property of a firm or corporation taken from the hands of its directors or owners and placed in the hands of a receiver. Dodge v. Manganese Co., 69 Ga. 665; Barrett v. Pollak Co., 108 Ala. 390; Lehigh Coal Co. v. R. R. Co., 43 Hun (N. Y.) 546; Cowan v. Pa. Glass Co., 184 Pa. St. 1; St. L. Coal Co. v. Edwards, 103 Ill. 472; Hollins v. Briarfield Coal Co., 150 U. S. 371; Brown v. Lake Sup. Iron Co., 134 U. S. 530; 17 Enc. Pl. & Pr. 705.

1 Farwell v. Babcock (Texas), 65 S. W. 509; Gamble v. Water Co., 123 N. Y. 91; Wheeler v Steel Co., 143 Ill. 197. See also 54 Cent. Law Jour., p. 381.

2 Roberts v. Eberhardt, Kay, 148, 159; MacSwinney Mines, p. 111. But see, contra, Jeffries v. Smith, 1 J. & W. 203; Bentley v. Bates, 4 Y. & C. Eq. Ex. 187.

3 Standford v. Ballard, 33 Beav. 401.

4 Roberts v. Eberhardt, supra. Although a receiver would not be ap

And if the applicant seeks a sale, or partition of the common property, even in the absence of exclusive dominion, if one of the cotenants is in possession, a receiver will usually be appointed, on interlocutory application, to preserve the property and continue the operations of the mine or quarry, pending the sale or partition.1

As in the case of co

§ 633. As between copartners. owners, who may not be jointly interested in the working of a mine, copartners will not be entitled to a receiver for any mere disagreement or difference about the working of the mine, but something more than a mere “ negative want of co-operation," must, usually, be shown. But in an action for a dissolution and accounting of the partnership affairs, and especially where there is also an exclusion, or interference with the partnership rights of the applicant a receiver for the firm property, pending the final winding up of the business, will be appointed.3 However, a re

pointed to take out of the management of cotenants valuable oil lands, developed by them, it would, at the instance of the heirs of a deceased cotenant, appoint a receiver to represent them and collect their portion of the rents and profits and royalties. Higgins Oil & Fuel Co. Snow, 113 Fed. Rep. 433.

v.

1 Porter v. Lopes, 7 Ch. D. 358; Ex parte Cambrian Co., 14 Ch. D. 653; Roberts v. Eberhardt, Kay, 148. "A co-owner in a mine may be appointed the receiver by the master." Jeffries v. Smith, 1 Jac. & W. 208; M. M. D. 310. "It is competent for a court of chancery, by an interlocutory order, to take possession of a mine which is the subject of litigation, pending the proceedings; but when the rights of third persons, in no manner parties to the suit, and who have purchased in good faith, have intervened, such power should not be exercised." Levi v. Karrick, 13 Iowa, 344; 8 Id. 150; M. M. D. 308.

2 Lees v. Jones, 3 Jur. (N. 8.) 954; Roberts v. Eberhardt, Kay, 148; Clegg v. Fishwick, 1 M. & G. 294; MacSwinney, pp. 113, 115. "On bill to dissolve partnership, where defendant denies the partnership and is insolvent, a receiver should not be appointed." Wood v. Wood (W. Va.), 40 S. E. Rep. 416.

Roberts v. Eberhardt, supra; Clark v. Smith, Sel. 418; Sheppard v.

ceiver will not, generally, be appointed, unless the partner applying therefor seeks a final dissolution and winding up of the business, as the property will not be taken out of the hands of the firm, as a mere temporary expedient, pending a passing disagreement or misunderstanding of the members of the firm.1

Oxenford, 1 K. & J. 491; Jeffries v. Smith, 1 J. & W. 298; Lees v. Jones, supra. Before a receiver by partners will be appointed, it must be made to appear that the assets are liable to be depleted or injured, from mismanagement or fraud. Quinlivan v. English, 44 Mo. 46; Painter v. Painter (Cal.), 36 Pac. Rep. 865; Snyder v. Leland, 127 Mass. 291; Crawshay v. Maule, 1 Swanst. 495; Harding v. Glover, 18 Ves. Jr. 281; 17 Enc. Pl. & Pr., p. 730. No member of a firm has a right to interfere with the possession of a receiver, after his appointment, as his possession is that of the court. Merrick v. Nat. Bank, 11 Ohio S. & Com. Pl. 293.

1 Roberts v. Eberhardt, Kay, 148; MacSwinney Mines, pp. 113, 115, 116; Williams v. Rowlands, 30 Beav. 302. "A receiver may be appointed to preserve the property of a mining partnership." Sheppard v. Oxenford. See 1 Kay & J. 491; M. M. D. 308. "The expenditure made and the hazard run by defendant in opening a coal mine, considered upon application for receiver, based on a claim of partnership not made until the success of the adventure was assured, and the motion denied." Norway v. Rowe, 19 Ves. Jr. 144; M. M. D. 308. "Upon appointment of a receiver of a colliery about to be sold, the decree allowed any partner to propose himself for such office, but without salary." Wild v. Milne, 26 Beav. 504; M. M. D. 308. "Where tenants in common of a mine have been working it in partnership, or where the mine itself is the partnership property, the court will not appoint a receiver or manager at the instance of one of the partners, in a suit which does not seek to dissolve the partnership." Roberts v. Eberhardt, 1 Kay, 148; s. c. 23 Eng. L. & E. 245; 23 Law J. Rep. (N. s.) Ch. 201; M. M. D. 308. "Nor even in a suit to dissolve the partnership will the court appoint a receiver on an interlocutory application, merely upon evidence that the partners do not co-operate in the management of the business; but to sustain such an application, it must be shown that one partner has interfered so as to prevent the business being carried on." Id. "If it is shown to the court that a sudden stoppage of the working of the mines would work material injury to the interest of the partners, the court may direct a continuance of the same by the receiver, until such time as the work may be advantageously stopped, or until the partners may make some