It is held that suing without leave is mere contempt of court and does not affect the jurisdiction of the court in which the suit is brought ; Phelan v. Ganebin, 5 Colo. 14 ; and that the proceedings are regular till the ap pointing court interferes ; Pruyn v. McCreary, 182 N. Y. 568, 75 N. E. 1133; other cases hold that there is no jurisdiction till leave is granted ; Barton v. Barbour, 104 U. S. 126, 26 L. Ed. 672 ; Keen v. Breckenridge, 96 Ind. 69; Wiswall v. Sampson, 14 How. (U. S.) 52, 14 L. Ed. 322. Leave to sue rests in the dis cretion of the appointing court ; Mechanics' N. B. v. Landauer, 68 Wis. 44, 31 N. W. ordinarily leave will be granted to sue only in the appointing court ; Palmer v. Striven, 21 Fed. 354 ; and a case at law may be ordered to be tried in equity ; Shedd v. Seefeld, 230 Ill. 118, 82 N. E. 580, 13 L. R. A. (N. S.) 709, 120 Am. St. Rep. 269.
A failure to get leave is waived if the case has gone on to an adverse decision against the receiver ; Manker v. Loan Ass'n, 121 Ia. 341, 100 N. W. 38; but in Haag v. Ward, 89 Mo. App. 186, it was held not to be waived where the receiver pleaded. Application for leave to sue may be- made by motion in the receivership case ; Wilson v. Rankin, 129 N. C. 447, 40 S. E. 310.
See, generally, 38 Amer. L. Rev. 516.
Under the strict common law, a receiver must sue in the name of the corporation or firm of which he is receiver ; High, Rec. § 209; the receiver brings suit in the company's name but for his own use ; Yeager v. Wallace, 44 Pa. 294 ; he sues in his own name on his own contracts ; Singerly v. Fox, 75 Pa. 112; in states having codes of procedure he may sue in his own name, as having the ben eficial interest ; 5 Thomps. Corp. § 6979.
Suit should be brought against the com pany, but service made on the receiver ; Mc Nulta v. Lochridge, 141 U. S. 327, 12 Sup. Ct.
11, 35 L. Ed. 796; an attachment execution should be served ou him ; Conshohocken Tube Co. v. Car Co., 167 Pa. 589, 31 Atl. 934.
The receiver of a corporation cannot sue in his own name to recover property of the corporation which has never been in his pos session nor been assigned to him, where au thority to bring such suit has not been con ferred on him by statute or by decree of court ; Wilson v. Welch, 157 Mass. 77, 31 N. E. 712. Actions against the receiver are, in law, actions against the receivership, or the funds in the hands of the receiver, and his contracts, misfeasances, negligences, and lia bilities are official and not personal; and judgments against him as receiver are pay able only out of the funds in his hands ; Mc Nulta v. Lochridge, 141 U. S. 327, 12 Sup. Ct. 11, 35 L. Ed. 796.
He has a summary remedy against one who has possession of receivership funds, ob tained since the appointment, even though the party claims title or a lien ; but must bring suit if possession was had before the receivership, or the party claims adversely ; Horn v. R. Co., 151 Fed. 626.
The court can, by summary proceedings, compel payment by a purchaser from a re ceiver of the price of goods sold and deliv ered ; McCarter v. Finch, 55 N. J. Eq. 245, 36 AU. 937.
Where a circuit court has appointed a re ceiver of a steamer and all other property of a railroad company, and the steamer came into collision with another vessel and was libelled in admiralty, it was held that the cir cuit court did not err in declining to issue an injunction against the admiralty proceed ings; Paxson v. Cunningham, 63 Fed. 132,