
    FRANCES H. BARTON v. JOHN S. BARBOUR, RECEIVER.
    At Law. —
    No. 17,278.
    The defendant was appointed bj' a decree of the Circuit Court of Alexandria, Virginia, receiver of a railroad in that State. The plaintiff was injured while a passenger on such road, and brings this action against the receiver for damages; and it was held that the action would not be maintained in this jurisdiction without leave of the court which appointed defendant such receiver.
    STATEMENT OE THE CASE.
    This is an action at law against the defendant as receiver of the Washingtou City, Midland and Great Southern Railroad, a corporation organized under a law of the State of Virginia, and doing business and having an office in the District of Columbia. The declaration states that the defendant, on the 11th of January, 1877, was running and operating a railroad through the State of Virginia as a common carrier of freight and passengers for hire, and that the plaintiff was a passenger upon said railroad, and by reason of a defective and insufficient rail upon the track, the car in which the plaintiff was a passenger was thrown from the track, and she was thereby greatly hurt, and injured, and' her bodily health permanently impaired. The plaintiff' claims damages in the sum of $5,000.
    The special plea of the defendant reads as follows:
    “And now comes the defendant in his own proper person and says that the court ought not to take further cognizance of said action, because, he says, at the time of suing out and service on him of the said writ he was the receiver of all the real and personal property, rights, privileges, and franchises of the said Washington City, Virginia Midland and Great Southern Railroad Company, under an order issued by the Circuit Court for the city of Alexandria, in the State of Virginia, in vacation, on the 13th day of July, 1876, in a cause therein depending, on the equity side of said court, of the style of “John C. Graham, who sues for himself and others, v. The Washington City, Virginia Midland and Great Southern Railroad Co. et al.” That by said order or decree he was authorized to defend all actions that might be brought against him as such receiver by permission of the said court, and that he should not in any case incur any personal and -individual liability in the operation of said line of railroad, or otherwise in the premises, by reason of any act or thing done by him, or his servants, agents, or attorneys, the said receiver actiug in good faith and in the exercise of his best discretion ; but the property in his hands as such receiver should nevertheless be chargeable with any claim that maybe established against such receiver in any action brought against him by any person under leave of the court first had and obtained.
    “That the plaintiff' hath not had and obtained leave of the said Circuit Court for the city of Alexandria to bring and maintain this his action aforesaid; and this the defendant is ready to verify. Wherefore he prays judgment whether this court can or will take further cognizance of the action aforesaid.”
    To this plea the plaintiff interposed a general demurrer, ancl the case was certified to the general term to be hoard in •the first instance.
    
      S. S. Henkle, for plaintiff.
    The defendant is sued as receiver of the Washington City, Virginia Midland and Great Southern Kailroad, a Virginia corporation, having an office and doing business in this District. He was appointed by a decree of the Circuit Court of Alexandria, and the only question made by the plea and demurrer is, whether he may be sued in this jurisdiction without leave of the court which appointed him having first • been obtained.
    It is broadly laid down in High on Deceivers, section 254, that it is in all cases necessai’y that a person desiring to bring suit agaiust a receiver should first obtain leave of the court appointing him; and numerous authorities, both English and American, are cited.
    They are all cases in which either application for leave to sue is made, or application for injunction to restrain such suits commenced without leave.
    Sometimes the leave to sue has been granted, and sometimes withheld; and in most cases referred to, if not all, when application was made to restrain suit commenced without leave, the injunction has been allowed. They are, I believe, all cases affecting the property in the possession of the receiver, as in Tink v. Randle, 10 Beav., 318; in the matter of Persse et al, 8 Ire. Eq., 111; Parr v. Bell, 9 Ire. Eq., 55. In the same section of High, 254, it is said that when an action is instituted against a receiver without leave, the plaintiff is in contempt of court and will be punished.
    The cases referred to by High are DeGroot v. Jay et al., 30 Barb., 483, and the same case reported in 9 Abbott’s Practice, 364. The syllabus in Abbott is, “A receiver who is sued as such without leave is entitled to an order perpetually restraining the plaintiff from proceeding in the action.” And the case of Taylor v. Baldwin, 14 A.b. Pr., 166" here the plaintiff applied to the court for leave to bring suit against the receiver to recover jewelry in his possession as receiver, which was< refused, and he thereupon brought the suit. He was fined for contempt and his action stayed. The proceedings were all in the same court.
    It is not in either of these cases intimated that the want of leave goes to the jurisdiction of the court, but that the plaintiff may be punished for contempt, and have his action stayed by injunction or order.
    I think no English case can be found where it was held or claimed that the want of leave to bring suit against a receiver affected the jurisdiction of the court.
    There is a class of American cases in which it has been held that where one court has obtained possession of property, and is proceeding to administer it, another court has no jurisdiction to interfere with such possession. (Sec Mil. and St. P. R. R. v. Mil. and Minn. R. R. et al., 20 Wis., 105.)
    This is as far as any American case has ever gone. No case can be found where it has been held to be an objection to the jurisdiction of the court that leave has not been obtained when the action or proceeding does not directly interfere with the possession of the property in the custody of the receiver.
    In Sill v. Parker, 111 Mass., 508, it is said that where an action is brought against a receiver without leave of the court, the possession of the receiver is not necessarily a defense at law, and the court of chancery, if applied to for an injunction, may in its discretion allow the action to proceed to judgment, and to be defended by the receiver, and several English and American cases are cited as authority. In 6 Vesey, 286, ejectment had been brought, without leave, for property in possession of the receiver. The lord chancellor gave the receiver leave to defend.
    In Asten v. Herm, Myln & Keene, 390, the receiver made a distress for rent. The tenant brought his action of trespass against the receiver and the bailiff. The receiver applied for an injunction, which was granted by the lord chancellor. (High on Eec’rs, sec. 256, p. 169.)
    
      „ Receivers are under the protection of the court appointing them; but this protection is only granted or refused on their own application by the court appointing them, in its discretion, depending upon the circumstances of each case. (McKinnan v. Palmer, 7 Ire. Eq., 496; Kinney v. Crocker, Rec'r, 18 Wis., 74; Camp v. Barney, 11 N. Y. Sup. Ct., 373; Blumenthal v. Brienkerd et al, 38 Vt., 402; Page v. Smith, 99 Mass., 395; Allen v. The Central R. R. of Iowa, 42 Iowa, 638; High on Rec'rs, sec. 398, pp. 283, 284.)
    The receiver is here sued in his official capacity for a tort committed by him or his servants while operating the road. Although, upon the principle of some of the adjudged cases, the defendant might be personally liable, yet I think the weight of authority is, that he is only liable in his official character for the torts of his agents or servants. (High on Rec'rs, sec. 255, pp. 168, 169; Meara's Adm'r v. Holbrook, 20 Ohio St., 137.)
    The defendant was running and operating the road with substantially the same power possessed by the company before his appointment, and is in ‘law, so far as the public is concerned, a common carrier, and in his official capacity is liable as such to the same extent that the company would have been, and may be sued for torts without leave of the court appointing him. (High on Rec'rs, sec. 398, pp. 263, 264; Camp v. Barney, 11 Sup. Ct. of N. Y., 373; Sprague v. Smith, 29 Vt., 421; Blumenthal v. Breinkerd et al., 99 Mass., 395; Allen v. The Central R. R. of Iowa, 42 Iowa, 683.)
    
      Walter S. Cox and Linden Kent, for defendant.
    Receivers are under the control of, and'are amenable only to, the court for their appointment.
    The possession of the receiver is the possession of the court, and any attempt to disturb it without leave of the court first obtained, will be a contempt on the part of the person making it. (Angel v. Smith, 9 Vesey, 335; 6 Vesey, 287; 1 J. & Walker, 178; Wiswall v. Sampson, 14 How., 52.)
    Where the property is legally and properly in the possessiou of the receiver, it is the duty of the court to protect the receiver in the possession thereof, and any proceeding or suit instituted against the receiver without the leave of the court, is considered to bo in contempt of the court, and an action so brought will be stayed. (Parker v. Browning, 8 Paige, 888; Albany City Bank v. Shermerhon, 9 Paige, 372; Taylor v. Baldwin, 14 Abb. Pr., (N. Y.,) 166; DeGroot v. Jay, 30 Barb., 483 ; O. & M. R. R. Co. v. Davis, 23 Ind., 553; Noe v. Gibson, 7 Paige, 513; O. & M. R. R. Co. v. Fitch, 20 Ind., 498; Tink v. Rundell, 10 Beav., 318; Edwards on Rec’rs, p. 145; Meara's Adm'r v. Holbrook, &c., 20 Ohio St., 137; Henderson v. Walker, Rec'r, 55 Ga., 481; Vermont and Canada R. R. Co. v. Vermont Central R. R., 46 Vt., 798.)
    The remedy to a party having a demand against a receiver is by petition to the court of equity to be permitted to bring an action against the receiver, or to be examined before the master pro interesse suo. (3 Dan. Ch. Pr., 1984; 2 Mad., 21; 1 P. Wms., 308; Wiswall v. Sampson, 14 How., 65.)
    The general doctrine already considered, that receivers are answerable only to courts appointing them, is to be accepted with certain qualifications. Says High on Receivers, section 279, citing Paige v. Smith, 99 Mass., 395: “ That where receivers are operating a railroad under appointment of a court of chancery in one State, and the courts of that State hold them liable as common carriers, and they are acting in that capacity, they are liable to an action in the courts of another State for a breach of duty as common carriers.”
    The above qualification is opposed to the current of authorities; but if it be law, it is not applicable to the present case.
    This court has no greater jurisdiction over the receiver than courts of general jurisdiction in Virginia would have.
    Under the authorities relied on, its jurisdiction is only made co-extensive with that of the courts of Virginia.
    The liabilities as well as the rights of this receiver arise under the terms of the order of his appointment.
    The said order, in limiting the manner in which he shall be chargeable, contains this provision: “But the property in his hands as such receiver shall nevertheless be chargeable with any claim which may be established against said receiver in an}’ action brought against him by any person under leave of this court first had and obtained.”
    The same powers and liabilities with which the receiver in this case is clothed, under and by virtue of the order of his appointment, are extended to all receivers in the Slate of Ohio under a general law which provides that a receiver may sue and be sued as receiver, under control of the court: Held, That leave of the court must be obtained to bring suit against the receiver. (Meara's Adm'r v. Rosevelt and Holbrook, 20 Ohio St., 137; Hubbell, &c., v. Receiver Utica Ins. Co., 9 How. Pr., 424.)
    Where the action is against the receiver of a corporation, judgment will be entered, payable out of the corporate funds in his hands. (Commonwealth v. Runk, 26 Penn., 235.)
    The question of the right to sue a receiver in a court other than that in which he is appointed, is one of jurisdiction. (Louisville R. R. Co. v. Canble, 6 Am. R. R. Rep., 349; Potter, Receiver, v. Bunnell, 20 Ohio St., 152.)
   Mr. Justice MacArthur

delivered the opinion of the court:

The plea demurred to would probably not be sustained in the State of Vermont, because the courts of that State appear to have decided that a receiver, operating a railroad as a common carrier, would be liable in an action for damages occasioned by any breach of his obligation while acting in that capacity. In Paige v. Smith, 99 Mass., 395, this doctrine is imputed to the courts of that State, and it is held that a receiver appointed there would be equally liable to an action in the courts of another State for a similar cause of action, instituted without the permission of the court appointing the receiver. In Kinney v. Crocker, 18 Wis., 74, and Allen v. The Central R. R. of Iowa, the same rule is asserted. With the exception of these authorities, it is not too much to say that the decisions in England and in the United States are to the effect that it is requisite to apply to the court of chancery in which the receiver was appointed, when a suit is to be brought against him in his official capacity. This rule is established by so many authorities that citation is scarcely necessary. The briefs of counsel are sufficiently full of such references. The possession of-the receiver is considered that of the court, and it is therefore regarded as the duty of the court to protect the possession of its officer from any invasion of persons or suits at law. Any party may come into court and test the justice of any claim he has upon the fund, and he may be himsef examined pro interesse suo. If he has a prior interest it will be protected, and he will be permitted to bring such suits at law as may be proper to determine any legal or equitable rights he may have upon the estate. The court of chancery having acquired jurisdiction of the subject-matter, will retain it for the benefit of those who may be found ultimately entitled to it. (2 Story Eq. Jur., secs. 331-334; Parker v. Browning, 8 Paige, 388.)

It was earnestly urged by counsel for plaintiff that this was a mere claim for damages, and that it- did not affect the possession of the property in'the receiver. The same view was relied upon in Wiswall v. Sampson, 14 How., 52. The Supreine Court disposed of that view of the case by observing: “But conceding the proceeding [at law] did not disturb the possession of the receiver, the argument does not meet the objection. The property is a fund in court, to abide the event of the litigation, and to be applied to the payment of the judgment creditor, who has filed his bill to remove impediments in the way of his execution. If he has succeeded in establishing his right to the application of any portion of the -fund, it is the duty of the court to see that such applies tion is made; and in order to effect this, the court must administer it independently of any rights acquired by third persons pending the litigation.” So that wherever a claim is made which will affect the estate, the court will pay no respect to it when acquired during the suit, unless presented for audit and adjudication. The court will administer the property and protect and preserve every interest. This is the rule as settled by the Supreme Court, and we must follow it as binding authority. The Supreme Courts of the States may entertain different views, and feel that they are not bound by the decisions of that tribunal. Not so with us. And until a different rule shall prevail, we must adhere to that so clearly established.'

There must be judgment for the defendant upon the demurrer.  