
    BANK OF INDIANAPOLIS v. THE MIDDLETOWN NATIONAL BANK.
    Costs — In equitable action discretionary — Receiver—When costs
    SHOULD NOT BE ALLOWED AGAINST HIM.
   Dykman, J.

This case was well disposed of by the trial court, and the appellant brings no complaint against the decision of the main question, but the judgment and order appealed from award costs and an additional allowance against the receiver of the Middletown National Bank, and said allowance is claimed to be an unwise exercise of the discretion of the court. The judgment also directs the cancellation and surrender of the stock certificate number twelve, declared by the judgment to be unlawful and void, The object of the action was the procurement of equitable relief, and the costs were discretionary. Neither the Middletown National Bank nor its receiver were convicted of any wrong, and its principal relief was sought against the Butter and Cheese Association ; the other defendants interposed no obstacle in the way of the plaintiff. The receiver held the worthless certificate, but he could not adjudge it void and yield it up, and it was his duty to use diligence for its retention, as security for the indebtedness of Brown to the bank. He has not transcended the bounds of his duty, and we discover no reason for the imposition of costs upon him, neither do we discover any reason for the surrender of the void certificate. It was assigned to the Middletown National Bank by Brown, and forms the basis of a claim against him, or may be a useful piece of evidence in any proceeding by the receiver prosecuted against Brown. The retention of the void certificate by the receiver constitutes no impediment to the plaintiff in the procurement of free relief under the judgment. The valid stock can be recognized and transferred in pursuance of the mandate of the court, and then the plaintiff will be in the full possession of all its rights in respect thereto.

Our conclusion is, that the judgment should be modified by striking therefrom all costs allowed against the receiver of the Middletown National Bank, and also by striking therefrom the provision requiring the receiver to cancel and deliver up the certificate number twelve, and as so modified affirmed, without costs, and that the order awarding an additional allowance to the plaintiff against the receiver be reversed, with ten dollars costs and disbursements.

Barnard, P. J., and Cullen, J., concur.  