Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1889-11-09

for his rent. He destrained according to the
law of Louisiana, the Sheriff taking possession
Of the property in the proceedings. Que OF the
partners was adjudged bankrupt. The land
lord was EMIT ed TO have the entire property
subjected 10 his lien for rent, and as the solvent
partner could mol be made party TO the bank
ruptcy proceedings the Court had no jurisdic-
ton of the case in the bankruptcy proceeding.
This view fully harmonzes this case with all
the cases we have referred 10 but if this view
cannot be maintained then the case is in con-
flict with the whole current of authority upon
the subject. In addition to the authorities
cited. we cite the following cases in support of
the jurisdiction OF the court in insolvency pro-
ceedings, as stated in Levy vs. Hoake, and
other cases cited I'm re Wallace, . N. B. R.,
1S4; Adams Equity, 1879; Halford VS. Gillow, IS
Sim, A. Morkan VS.. Heany, u n. B. r., 4S4: In
N. B. r., 4s1; In re Smith. . N. B. R.,
297; In re Morks, N. B. r., 575; In re The
Peoples Mail steamship Company, 2 N.
B. K, 553; Foster VS.. Ames n. =. R., Ass;
osene Oil Company, 2 N. B. R.. 52S; Davis VS..
Anderson, 6 n. Z. r., 1916: Reed VS.. Burlington
10 N. b. r., 40S; Sutherland VS.. Lake superior
Ship Canal Railroad and Iron Company, 8 N B.
r., ol2 In this case the case Of Marshall rs KA0T
pds ledrnedEy and SeU5Tely criticised bg most en-
inent Judge. And while he conceded that the
decision upon the facts in that case, but not the
reasoning of the Court, can be sustained upon
the pr nciple that where the Federal Courts and
the Stale Courts have concurrent Jurisdiction
the Court first acquiring jurisdiction over spe-
Clue property Will retain yet the Court lel0
that where the property of the bankrupt is in
the hands of he officers of the Federal Courls
the law OF comfy does not apply, and the bank
ruptcy Court will draw within its jurisdiction
and control all the estate of the bankrupt, and
take il out of the possession of the officers I'm
re Campbell IL N. b, r. 5; Beckman VS.. Dunn,
16 N. B. r., 400 Many of these cases hold that
the jurisdiction of the insolyent Court is ex-
elusive over the affairs of the insolvent debtor
and the others hold that the jurisdiction is CON
current with the other Courts. That the in
solvency Court has ursdiction over the credit
orS and estate OF the lnSOlVent de btOr cannot be
denied in the face of the Constitution statute
and the current of the authorities, and the oily
question is one OF procedure in the exercise of
the Jurisdiction given by the Constitution and
the statute, and This question is solved by Sec
ton lS7 OF the Code or Civil Procedure, which
provides that when jurisdiction is, by the Con-
stitution or this Code, or by any Gtle conferred
on a Court or judicial officer all the means
necessary to carry il into effect are also given,
and in the exercise of this jurisdiction if the
course of proceedings be not specifcal pointed
ont by this code, or the stGtate, any suitah e pro-
cess or mode of proceeding may be adopted
which may appear most conformabie to
the spirit of this code. This provision OF
the code empowers the Court ia insolvency
proceedings to adopt any mode of pro-
eedure eonformable to the spirit of the Code
and in analogy TO the mode OF procedure in
probate proceedings, the jurisdiction of the
Court in insolvency proceedings may he moved
to an active exercise over any matter in course
of the administration of the estate by peti
ton, citation and answer. But as means of pro-
tecting and preserving the property pending
the proceedings in involvtncy, prior to the APP
pointment of an assignee Section to of the In
solvent Act provides for The appointment of a
receiver with all the powers of a receiver in a
Court OF equity. This section is as follows: "A
receiver may be appointed by the Court in
which an inSOlvent proceeding is pending be
fore the election OF an assignee: l. Upon the
applications of creditors when il is shown that
the property or any Jortion thereof is in danger
pf hain mr. mi isl Nv I'M ,
In all other cases where IT ceivers are appointed
by the usage of CouIts of equity. Ana there
upon the appointment, oath, undertaking and
powers OF such receiver shall i'll ali respects, be
regulated by the general laws of the State ap-
Ihcable to receivers" IL follows therefore
that section Sos OF the Code OF Civil Procedure
is applicable to proceedings in insolvency and
it provides that the receiver has, under the
control of the curt power to bring and defend
actions in his own name. as receiver; to take
and keep possession Of the property; to receive
promise the same, TO make transfers
and generally to do such acts respect
ing the property as the Court may authorize.
These statutory provisions eoniers the same
| jurisdiction uponEthe Court of insolvency to
take and keep possession of properly that is
conferred upon court OF equity. The prin-
ciple upon which Courts OF equity act in APP
pointing receivers is well stated in 9 Story
Equity Jurisprudence Section S2g, thus: THE
appointment of receiver when directed is
made for the benefit and on behalf of all the
parties in interest, and Eot for the benefit of the
plh1nt1n or OF the defendant only. IL may be
granted in any case of equitable properly upon
suitable circumstances. And where there are
creditors, annuitants and Others some of
whom are creditors at law claiming under judg-
ments, and others are creditors claiming upon
equitable debts, if the property be of such ma
ture that if legal ii may be taken in execution,
it may, if equtably, be put into the possession
of a receiver. to hold the same and apply the
profits, under the direction of the Court for the
benefit of all the parties according to their re-
spectiye rights and priorties. The same rule
applies to cases where the property is legal, and
judgment creditors have taken possession of it
under writ OF eliG; Tor it is competent for the
Court to appoint a receiver for annuitants and
equitable creditors, not disturbing the just
prior rights OF any OF the Judgment credi orS.
Hence the appointment of receiver in cases of
this sort is often allied an equitable execution"
The difference between common law writ of
eligh and an execution.is, that under the former
the possession OF real properly is taken and
held until the rents and profits pays the debt:
but under the latter the title to the property
may be sold in satisfaction of the debt And a
Sheriff may be required to turn over to the re-
ceiver appointed by Court of equity or In
sovency Court, property levied upon by him
under an execution or writ of attachment; but
the receiver hold the property subject to the
lien of the levy if lien exists, or if the prop
erty is sold by the receiver under the order of
Court, the lien, if valid attaches to the pro-
oeeds. (von houn VS.. The Superior Court, So
Cal 500; Becker VS.. Torrance, 81 n. Y. Gal;
Davenport VS.. Kelley, ~ n. Y. 1887 And the
powers of the Receiver appointed in iE,yolun-
taIy proceeding in insolvency is not suspended
during an appeal IL re The Real Estate Assoeia-
ton, So Cal. 1861 In the case of &c parte Cohn
4 Jones, Cal. 1876, the Court said: Courts of
equity unQuestionably have the power to ap-
point receivers, and 10 order them to take pos
session of the property in controversy, whether
in the immediate possession of the defend ant or
his agent, and ID proper cases they can also
order the defendants agents or employ ees al
though not parties to the record, to deliver the
SPECIFIC property to the receiver. This power
does not conflict with the provisions of law
which provides that no man shall be deprived
of his property without due process OF law.
The surrender to the receiver does not affect
the right of property or the ultimate decision
of the case any more than does the
levy of an attachment. The design is to secure
the property so that it may be handed over to
the party who shall be adjudged entitl ID to its
possession" The principle involved in er pdrte
Conen Il Jones is approved in High on Reeeiv-
ers, Section Ia, and the learned author adds:
And the order for the surrender of the prop
erty to the receiver may, if necessary, be en-
forced by process of attachment" and in Sec
ton of the same author the principle is stated
that: "A Court of equity, by its order appoint
ing receiver, takes the entire subject matter
OF the litigation out of the control of the parties
and into its own hands, and ultimately disposes
of all questions, legal or equitable, growing out
of the proceeding And the possession of the
receiver being the possession of the Court ap-
pointing him, any attempt to disturb such pos
session without leave of the Court may be
treated as contempt of Court, and punished
accordingly" (High on Receivers, Sections
16S, l64, l65 The remedy of a party who claims
adverse interest in the property is stated in
. story Equity Jurisprudence, Section 1913,
where he says 'In the next place, when such
q receiver is in possession, under the process or
authority of the Court, in execution Of decree
or decretal order, his possession is rot to be dis
turbed even by an ejectd ent under an dd-
pgse title, without leave of the Court. For
IL r.F