A receiver may be appointed in lieu of an executor or administrator, where there has been waste or misappropriation; or such a result is probable; or the executor is insol vent and this is coupled with misapplica tion; Fairbairn v. Fisher, 57 N. C. 390 ; but not for poverty alone; id.; or where an ex ecutor is dead or refuses to act; or where the executor is a non-resident; Smith, Rec. § 301.
A receiver will be appointed as between the vendee and vendor of realty where there is a contract of sale under which possession has been delivered and there is a default in payments, The vendee not being responsible ; Smith, Rec. § 315.
The comptroller of the currency has pow er to appoint a receiver of a national bank, to take possession of its assets, collect its debts, and enforce the personal liability of the stockholders. In cases not within the national bank act, equity has jurisdiction to appoint receivers as in case of other corpora tions. A receiver of a national bank is an officer and agent of the United States within R. S. § 380, requiring the district attorney to conduct all suits relating to national banks in which the United States or any of its officers or agents are parties; Gibson v. Peters, 150 U. S. 342, 14 Sup. Ct. 134, 37 L. Ed. 1104. The closing of a national bank and the appointment of a receiver trans fers the assets of the bank to him; Scott v. Armstrong, 146 U. S. 499, 13 Sup. Ct. 148, 36 L. Ed. 1059; be has a reasonable time to elect whether he will take property leased with an option to purchase, or return it; Sunflower Oil Co. v. Wilson, 142 U. S. 313, 12 Sup. Ct. 235, 35 L. Ed. 1025.
Generally any stranger to the suit may be appointed receiver. The court will not ap point attorneys and solicitors in the cause; 1 Hog. Ir. 322 ; masters in chancery ; 6 Yes. 427; an officer of the corporation; Hoppock's Ex'rs v. Ramsey, 28 N. J. Eq. 166; Attorney General v. Bank, 1 Paige, Ch. (N. Y.) 517; though it is sometimes done especially in the case of large railroad systems. There is no general rule about appointing officers of the company as receivers: generally the courts refuse to do so ; Ralston v. R. Co., 65 Fed. 557. Counsel for an adverse party cannot act as receiver's counsel, and if he do he will not be paid out of the funds ; Farwell v. Tel. Co., 161 Ill. 522, 44 N. E. 891; a
public officer charged with the duty of wind ing up an insolvent corporation may be ap pointed ; Taylor v. Life Ass'n, 3 Fed. 465; so also a mortgagee ; 2 Term 238; 9 Ves. 271; a trustee; 3 Ves. 516; but not ordinarily a party in the cause ; Benneson v. Bill, 62 Ill. 408.
A receiver may be appointed without no tice to the adverse party, though generally this should not be done ; Elwood v. Bank, 41 Kan. 475, 21 Pac. 673. It will be done only where the defendant cannot be found or where there is danger of loss or irreparable injury; Smith, Rec. § 5.
The appointment and retention of a re ceiver cannot be collaterally attacked ; Greenawalt v. Wilson, 52 Kan. 109, 34 Pac. 403.
A receiver has no power without the pre vious direction of the court to incur any ex penses, except those absolutely necessary for the preservation and use of the property ; Cowdrey v. R. Co., 93 U. S. 352, 23 L. Ed. 950.
He is responsible for good faith and rea sonable diligence. When the property is lost or injured by any negligence or dishonest execution of the trust, he is liable in dam ages ; but he is not as of course responsible because there has been an embezzlement or theft. He is bound to such ordinary diligence as belongs to a prudent and honest discharge of his duties, and such as is required of all persons who receive compensation for their services ; Story, Bailm. § 620 ; see gain v. Smith, 80 N. Y. 458 ; but he is not the agent of an insolvent railroad company, and hence the company is not liable for damages occa sioned by his negligence in operating the road; Metz v. R. Co., 58 N. Y. 61, 17 Am. Rep. 201; nor is he personally liable ; Cardot v. Barney, 63 N. Y. 281, 20 Am. Rep. 533 ; but he is liable as receiver for loss as a car rier of goods ; Paige v. Smith, 99 Mass. 395. It is held that, where an injury results from the fault or misconduct of a receiver, the court may in its discretion either take cog nizance of the question of the receiver's lia bility, and determine it, or permit' the ag grieved party to sue at law ; Klein v. Jewett, 26 N. J. Eq. 474 ; Camp v. Barney, 4 Hun (N. Y.) 373.