
    LUVIA A. LYMAN, ADM’X, v. CENTRAL VERMONT R. R. CO.
    
    
      Railroad. Receiver, when liable to an Action at Law for Negligence of Servants. Pleading.
    
    
      1. Recmveb. When tlie same person is receiver oí one railroad and lessee oí another, and both are operated by him together, the leased road is not receivership property; and an employee can maintain an action at law against him, without leave of the Court oí Chancery, to recover for injuries resulting from the negligence oí his servants in operating the leased road.
    2. Such action is also maintainable although the defendant is receiver instead oí lessee of the railroad where the injury occurred.
    3. And in such eases it is not a question of jurisdiction in the courts of law, but only whether equip*, on application ol the receiver, will exercise its own jurisdiction of restraining suits. And if equity interposes, the injunction is in per-'sonam, directed to the party, but not to the court.
    
      4. Plea — Jurisdction. A plea to the jurisdiction is the first plea in the regular order oí pleading; and it is waived when filed with the general issue.
    5. A plea to the jurisdiction is defective that professes to answer the cause of action as a bar, and concludes with a prayer for judgment if the plaintiff ought to have or maintain his action.
    0. JuiusmcTiON — General Issue. A plea that amounts to the general issue acknowledges the jurisdiction of the court.
    7. ARGUMENTATIVE Denial. A mere argumentative denial of a material averment in the declaration amounts to an admission of its truth.
    8. U. S. Supreme Court, Decisions ok. The decisions of the U. S. Supreme Court, though entitled to the highest respect, are controlling upon state courts only in cases affecting rights under Federal cognizance.
    9. Barton v. Barbour, 104 U. S. 126, distinguished and criticised.
    ActioN on the case. . Heard on demurrer, September Term, 1884, Rutland County, Yeazey, J., presiding. Judgment pro forma that the demurrer to the defendant’s special plea be sustained, and that the plea is insufficient. The .pleas and order of pleading are stated in the opinion of the court. The declaration was in part:
    “ For that-the defendant at, to wit, Shoreham, in the County of Addison, was the lessee of a certain railroad, known as the Addison Railroad, passing through said town, and as such lessee was long and had been operating and managing the same, and running locomotives and cars thereon, from, etc.; and the plaintiff’s husband and intestate, Daniel F. S. Lyman, was an employee of the defendant, as master and tender of the drawbridge, forming a part of said Addison Railroad, over Lake Champlain; and as defendant’s employee, in the discharge of his duty as its servant, frequently passed over said road, on his way to Rutland, in the County of Rutland, aforesaid, and return, upon the defendant’s locomotives and cars, and thereupon it became and was the duty of the defendant to provide a suitable, safe and sufficient road-bed and track, and to use due and proper skill, care and diligence in providing a suitable, safe and sufficient roadway for the passage of said locomotives and cars to and fro over said railroad.
    “Yet the said defendant, disregarding and neglecting its duty aforesaid, did not then and there provide a suitable, safe and sufficient road-bed and track for the passage of said locomotives and cars, to and fro over said railroad, but on the contrary thereof did negligently and carelessly provide a road-bed and track which was insufficient, unsuitable and unsafe for the passage of locomotives and cars over the same, whereby and by means of the unsuitable, insufficient and unsafe condition of said road-bed and track a certain locomotive of the defendant, whereon said intestate was then and there riding, said intestate having got upon said locomotive at a preceding stopping place of trains running over said road, for the purpose of being able to attend, to his duties at said drawbridge without delay, when the same should be reached by said locomotive, according to the course of his said employment and in pursuance of his duties therein, was thrown from the track and thrown down the embankment of said railroad and thereby the said intestate was then and there instantly killed; that 'said intestate resided in Rutland, in said County of Rutland, and left surviving him a widow, the plaintiff Luvia A. Lyman, and four children ; and that said children constitute the next of kin of sjiid intestate: Whereby the defendant became liable to an action for damages by force of the statute in such case made and provided at suit of the plaintiff as administratrix as aforesaid for her benefit as widow of said intestate, and for.the benefit of his said next of kin, to the damage of,” etc.
    Pleas — general issue :
    “ And for a further plea in this behalf the said defendant, by leave of court, etc., says that the said plaintiff ought not to have or maintain her aforesaid action thereof against the said defendant, because the defendant saith that at the time of the pretended injury in and by said declaration complained of, the said defendant was not in the possession of' the railroad, engines, cars, or property in said declaration mentioned, nor controlling the same, nor the agents, servants or employees engaged or employed on or about the same; but the defendant avers, that at the time aforesaid, and for a long time before and after, to wit, from the first day of January, 1874, continuously down to the time of the beginning of this suit, said railroad, engines, cars and property were in the sole and exclusive possession, management and control, and each and all of the said agents, servants and'employees, were in the sole and exclusive employment and control of the Central Yermont Railroad Company as receivers and managers of the Vermont Central and Vermont and Canada Railroads, and property connected with and appertaining thereto under and by virtue of a decree or order of the Honorable the Court of Chancery, within and for the County of Franklin and State of Vermont, rendered on the 21st day of Jtme, 1873, in a cause then pending in said Court of Chancery, entitled The Vermont and Canada Railroad Co. et al. v. The Vermont Central Railroad Company et cd., and not otherwise.
    ‘ ‘ And this the said defendant is ready to verify : Wherefore the said defendant prays judgment, if. the said plaintiff ought to have or maintain her aforesaid action thereof against the said defendant, etc.”
    
      Noble & Smith, Stephen E. Royce, and E. J. Ormsby, for the defendant.
    The plea sets forth á perfect defence to the cause of action alleged in the declaration.
    When the affairs of a railroad have passed into the hands of a receiver, who has exclusive charge of its management, possession of its property, and the employment of its operatives and employees, the receiver is liable (leave to sue him having-been first obtained from the court by which he was appointed) for personal injuries sustained by reason of the negligent management of the road. High Bee. s. 395 ; Mearais Adm’r v. Holbrook, 20 Ohio .St. 137; Potter v. Bunnell, lb. 159 ; 0. & M. R. R. Co. v. Anderson, 10 Ill. App. 313; 0. & M. R. R. Co. v. Demis, 23 Ind. 553; Nichols v. Smith, 115 Mass. 332; Barton v. Barbour, 104 U. S. 126; Note, 23 Am. Law Beg. 590.
    The receiver is thus liable, not personally, but in his official capacity; and the damages recovered are collectible only out of the funds hold by him as receiver. Camp v. Barney, 63 N. Y. Sup. Ct. 622; s. c. 4 Hun, 373; Hicks v. R. R. Co. 18 Bep. 479 ; Meara y. Holbrook, supra,; Klein y. Jewelt, 26 N. J. Eq. 474 ; Jordan v. Wells, 3 Woods, 527 ; Kennedy v. R. R. Co. 11 Cent. L. J. 89 ; Davis v. Duncan, 23 Am. Law Beg. 582.
    It follows as a corollary from the above, and is so adjudged upon principle and authority, that since the receiver is thus liable for injuries resulting from his negligence to the same extent that the company itself might have been, the corporation is not liable for the negligent acts of the receiver, or hi's agents or employees. High Rec. s. 396 ; Pierce R. R. 285 ; 0. & M. R. R. Qo. v. Davis, supra; Bell v. R. R. Oo. 53 -Inch 57; Metz v. R. R. Qo. 58 N. Y. 61; Rogers v. R. R. Oo. 17 Cent. L. J. 290; Davis v. Duncan,'supra; Turner v. R. R. Go. 74 Mo. 602.
    The fact that the defendant was receiver may be given in evidence under the general issue, and constitutes a perfect de-fence- 0. & M. R. R. Go. v. Davis, supra. That fact being-pleaded in this case, stands admitted by the demurrer, and.is conclusive of the plaintiffs right under the declaration. Rogers v. Mobile & Q. R. R. Qo. 16 Rep. 536. Nothing appears in the pleadings here to show that the defendant and the receiver are identical, and nothing even indicates or implies it, save the bare fact of identity in name. This, standing alone, would have only slight, if any, tendency to prove the fact. ■ Hartland v. Windsor, 29 Yt. 354. In the case of a natural person, the law necessarily keeps ip? just as sharp a distinction between his personal liabilities and his liabilities incurred purely in a representative capacity, as if there were two persons instead of one.
    The declaration is: “ You were my master and I your servant. You were negligent,” etc. The plea is: “I was not your master, and therefore could not be negligent, etc. The relation did not exist. You were the servant of A. B., receiver.” The liability, if any,.does not exist against any person or corporation, personally. It is simply a claim against a trust fund.
    The above propositions are not at all in conflict with the decisions of this court in Blumenthal v. Brainerd, 38 Vt. 402, and 1Vewell v. Smith, 49 Yt. 255. Morse v. Brainerd, 41 Yt. 550, is not pertinent. See High Rec. 139 ; Pierce R. R. 265 ; Gardot v. Barney, 63 N. Y. 281. The declaration .-is bad in substance. Pierce R. R. 393; Robertonson v. R. R. Qo. 22 Barb. 91; Olarlc v. R. R. -Oo. 15 Rep. 461.-
    
      It does not allege that' the defendant owed any duty to plaintiff’s intestate in respect of the running of locomotives or cars. It does not allege that the plaintiff’s intestate was himself without negligence or fault, and in the exercise of reasonable care, or that he was himself ignorant of the defect or insufficiency in the road-bed or track which caused the injury. These wore necessary allegations. Maxfield v. R. JR. 8 Am. Law Reg. 261; Telfer, Adm’r, v. JST. JR. JR. 3 lb. 665 ; Wilds v. H. R. JR. JR. 2 lb. 76; Mangam v. R. R. 1 lb. 631; O’Brien v. R. R. 6 Ib. (O. S.) 361; lb. 534; Buzzell v. Laconia Mfig Go. 48 Me. 113 ; Shearm. & Red. Neg. s. 94, n.
    
      F. C. Swinington, for the plaintiff.
    The mere fact that the Central Vermont Railroad Company was acting as a receiver in chancery is no defence. From Sprague v. Smith, 29 Vt. 421, down to the present time, our courts have uniformly held that such a defence is not recognized to a suit in the common law courts for the breach of any duty assumed by a receiver while acting as such. Blumenthal v. Brainerd, 38 Vt. 402; Morse v. Brainerd, 41 Vt. 550 ; Quits v. Brainerd, 42 Vt. 566 ; JKewell'v. Smith, 49 Vt. 255. In JSTewell v. Smith, supra, when this question was last before this court, Judge Powers used this language, after stating the above proposition : “We have no occasion nor inclination to modify the doctrine heretofore announced by the courts upon this subject.”
    The courts of several other states have either followed the Vermont doctrine or announced the same on this subject.' Some of them are : Paige v. Smith, 99 Mass. 395 ; Ballou v. Farnum, 9 Allen, 47 ; JSJain v. Smith, 80 N. Y. 458 ; Rogers v. Wheeler, 43 N. Y. 598 ; Meara’s Adm’r v. Holbrook, 20 Ohio St. 137 ; St. Jo. (& JD. R. R. v. Smith, 19 Kan. 255 ; 6 Rep. 331; Allen v. Central R. R. Go. 42 Iowa, .683 ; Klein v. Jewett, 26 N. J. Eq. 474; Palys v. Jewett, 32 N. J. Eq. 302 ; Kinney v. Grocker, 18 Wis. 74; Hills v. Parker, 111 Mass. 508 ; Hopkinson v. Connell, 2 Tenn. Ch. 323.
    
      Upon a careful examination of the above and other authorities upon this subject, it will be seen that they may be classified under, at least, three principal heads, viz. : (1) Actions ex contractu; (2) actions ex delicto, for negligence of servants and agents ; (3) actions for the personal wrong and negligence of the receiver himself. If the-receiver can be held responsible in actions ex contractu, or to go further, and hold him liable for the negligence of his servants and agents, as the above cases do, a fortiori he is liable for his own personal wrong and negligence. That is this case. 3 Wood’s R. R. Law, 482 ; Jones Ry. Sec. s. 511; Cooley Torts, 119; Gar dot v. Barney, 63 N. Y. 281; Gamp v. Barney, 63 N. Y. 625 ; Mersey Dock Cases, 11 H. L. Cases, 443 ; Duncan v. Findlater, 6 C. L. & Fin. 901; Hall v. Smith, 2 Bing. 156. This principle is admitted in Barton v. Barbour, 104 U. S. 126.
    The protection the receiver is seeking is not properly made here ; it is accorded to him only on his own application in the Court of Chancery appointing him. This privilege of protection, however, he can waive, by appearing and pleading. Newell v. Smith, 49 Yt. supra; Blumenthdl v. Brainerd, 38 Vt. supra; Nau/mburg v. Hyatt, 24 Fed. Rep. 901; Jerome v. McGarty, 94 U. S. 734; Gamp v. Barney, supra.
    
    The test is, not how the judgment was taken, but whether it is a claim that falls within that class of claims, costs and expenses incident to the receivership. Possibly the receiver has conducted himself so negligently that he would not be entitled to be reimbursed out of the trust property. Hopkins v. Con-nell, 2 Tenn. Ch. 323 ; Kinney v. Grocker, 18 Wis. 74 ; Jones on R. R. Securities, 527.
    The relation of master and servant exists between a receiver and the employees. The fact that he is a receiver does not change this relation, nor the law applicable thereto. Jones on R. R. Securities, s. 511; Ballou v. Farnum, 9 Allen, 47 ; Meara’s Adm’r v. Holbrook, 20 Ohio St. 137 ; Kain v. Smith, 80 N. Y. 458.
    
      
       Heard at the General Term, 1885.
    
   The opinion of the court was delivered by

Powers, J.

This is au action on the case for negligence in the operation of the Addison Railroad by the defendant as lessee, whereby the plaintiff’s intestate, an employee of the defendant, was killed.

The defendant filed the plea of the general issue to which the similiter was answered, and a special plea to which there was a general demurrer.

The question for consideration arises upon the demurrer.

The substance of this plea is that the defendant Avas not at the time Avhen, etc., in the possession or control of said railroad and the rolling stock of the same, nor in control of the servants and employees operating the same, but that the Central Vermont Railroad Company, as receivers and managers of the Vermont Central and Vermont & Canada railroads, and property connected therewith and appertaining thereto, under and by virtue of a decree or order of the Court of Chancery Avithin and for Franklin County, rendered June 21, 1873, in a cause then pending in said court, entitled Vt. & Canada R. R. Co. v. Vt. Central R. R. Co. et al., was at the time Avheu, etc., in the sole and exclusive possession, management and control of said railroad, its rolling stock, and the servants operating the same.

There is some attempt made in the defendant’s brief to claim that the defendant named in the declaration is a different person from the party sot up as receiver. But if this refinement Avere possible it would not aid the defendant; as in such case ■the plea Avould amount to the general issue, and this Avould acknowledge the jurisdiction of the .court.

But Ave think the terms of the plea should have a reasonable construction; and its natural import is, that the defendant named in the writ as a party primarily responsible, in fact Avas a mere representative not personally answerable; as if A be sued generally and ho pleads that he Avas administrator.

It is to be noticed that the plea does not deny the allegation in the declaration that the defendant Av'as the lessee of the Addison road, and was operating such road as lessee, except argumentatively, which is not enough. The want of a denial is an admission of the fact alleged in the declaration that the defendant Avas such lessee and operator of the road as charged. ‘ ‘ Every pleading is taken to confess such traversable matters alleged on the other side as it does not traverse.” Steph. Pl. 217.

This plea upon the defendant’s theory is a plea to the jurisdiction. It attempts to set up reasons Avhy the Rutland County Court has not jurisdiction over the defendant. In this posture the plea is too late in time. It was filed Avith a plea of the general issue on AArhich issue has been joined, Avhereas a plea to the jurisdiction is “the first plea in the regular order of pleading on the part of the defendant.” Gould Pl. chap. 5, s. 13. It is analogous to a plea in abatement; and if the defendant files any other plea like the general issue, it is rvaived; as a plea of the general issue confesses jurisdiction. Gould, c. 2, s. 37.

As a plea to the jurisdiction, it is defective in that it professes to ansAver the cause of action as a bar, and concludes Avith a prayer for judgment if the plaintiff ought to have or maintain her action; whereas the matter set up does not meet the cause of action. The defendant does not attempt to say the plaintiff has no right to sue anyAvhere, but that she cannot sue where she attempts to. This is the scope and theory of the plea as the defendant argues -his case, though it is manifest that no sufficient allegations appear to Avarrant such claim. Giving to the plea all that the defendant claims for it, it amounts to this : the cause o.f action must be referred to the court appointing the receiver for trial and determination.

The plea does not aArer that' the Addison Railroad and the rolling stock used thereon' is parcel of tlie receivership estate in the hands of the Franklin County Court of Chancery for administration through its receivers and managers, nor does it aver any prohibition upon the plaintiff’s proceeding with her action in the Rutland County Court, but rests upon the. mere proposition that the defendant has been appointed receiver of other railroads impounded in a cause depending in another court, and as such receiver is in possession and control of the Addison road. All this is consistent with the allegation in the declaration that the defendant is the lessee and operator of the Addison road, and such allegation is to be taken as true.

The same person who was the receiver of the other roads was the lessee of the Addison road, but this did not make the Addison road receivership property, nor expose it to administration as receivership estate by the Franklin County Court of Chancery. The.receiver acquired it by contract, not by decree of the Court of Chancery.

If the Court of Chancery consented that its receiver might step outside his proper function as receiver of the Vermont & Canada and Vermont Central railroads and engage as a lessee in business foreign to the administration of the property in the hands of the court, he stands as to such business and as to all persons employed by him or having business relations with him in the conduct of such foreign business, not as a receiver in the sense that he is therein an officer of the court, but as a party mi juris, acting as his own principal and upon his own responsibility. The order of the court, if any, sanctioning his engagement in such outside business, is available to him in the settlement of his accounts as receiver of the roads in the hands of the court, but not as the guage of his responsibility to third persons dealing with him.

The case of Kain v. Smith, 80 N. Y. 458, is a well-considered case and directly in point. There, as here, the plaintiff was an employee of the defendant, who was the lessee of the O. & L. C. Railroad and a receiver of the Canada and Central railroads. The plaintiff was injured in the line of duty by defective machinery used in the operation of the leased road. The declaration charged the defendants as carriers of passengers and freight, and having in use in such business the defective machinery occasioning the plaintiff’s injury.

The defence set up there was substantially that urged here. Tlie court, speaking of tlie defendant’s relation to the injury, say, page 470 : “ He was not in possession of the O. & L. C. Eailroad as an officer of any court or by its authority. The court itself never had possession or control over it. lie went into possession with his associates by virtue of a contract. lie was permitted, not directed, by the court to make it, and this permission will serve him upon his accounting for his management of the Vermont Central road.” Again: “Outside the State he stands as an individual liable for his negligence, whether he acts personally or through agents, alone or in company with others. He cannot be shielded by a description of his office or a declaration that he is acting in ah official character.”

If the defendant would be liable upon the facts in New York, he clearly would be in any jurisdiction.

But pursuing the line of argument taken at the hearing before us, and giving the plea the scope it is claimed to have, we think that if the defendant had been in fact a receiver instead of a lessee of the Addison road, operating it under the orders of the Court of Chancery, then having assumed the character of a common carrier of freight and passengers, it would be answerable for its torts in the management of the road to the same extent that the Addison Eailroad -Company would have been, in the same operation, to its employees as well as third persons.

This court is already committed to this doctrine. In Sprague v. Smith, 29 Vt. 421, the defendant was sued for an injury to a passenger. The defendant was operating the road as trustee for the bondholders. Defence was made that the trustee could not be made liable personally. Ch. J. Redfield, for the court, said: ‘ ‘ And we can see no reason why the defendants are not liable to the same extent as the company would have been, and upon similar grounds to those upon which lessees or any others exercising the franchise of the company for the time must be ;■ that is, that they are the ostensible parties who appear to the public to be exercising the franchise of the company. * * * The party having this independent control is in general liable for the acts of those, under such control, whether of contract or tort.”

In Blumenthal v. Brainerd, 38 Vt. 402, the defendants were sued for the loss of goods, two counts charging them as common carriers, and one as warehousemen. Defence was made that they were receivers in chancery of the railroads, in the operation of which the goods were lost, and that they were subject only to an accounting for the damage in that court, and could not be made liable in this action as common carriers. The court said: “A Court of Chancery will protect a person acting under its process or authority in the execution of a decree or decretal order against suits at law, and will compel parties to apply to that court for relief. This protection is accorded by that court to its officers only on their application, and is granted by the chancellor in the exercise of his discretion ; and it is to lie presumed that -it would be granted in any necessary or proper case for relief. 2 Story Eq. Juris, ss. 833a, 833b, 891; 2 Dan. Ch. 1433. But we think that the mere fact that the defendants were acting as receivers under the appointment of the Court of Chancery cannot be recognized as a defence to a suit at law, for the breach of any obligation or duty, which was fairly and voluntarily assumed by them in matters of business conducted or carried on by them while acting as receivers.” .

In Newell v. Smith, 49 Vt. 255, the defendants were sued as common carriers for negligent delay in the transportation of goods. Defence was made that the defendants had connection only with goods as receivers in chancery. The court said: ‘ ‘ The defendants were receivers in chancery of the property of the railroads employed in part in the transportation of the goods in question. In the operation and management of the roads, they sustained to persons dealing with them the character of common carriers. They at all times might invoke the aid of the Court of Chancery in any matter affecting their duty or liability under their trusteeship; waiving this, they are amen able in the common law courts to actions for negligence as carriers.”

The doctrine is not peculiar to this State.

In Paige v. Smith, 99 Mass., the same defence was made to a claim lor loss of goods entrusted to them as common carriers, and they Avere held liable. And in Nichols v. Smith, 115 Mass. 332, they Avere held in an action at hw for the loss of avooI in a depot under their control.

In Ballou v. Farnum, 9 Allen, 47, the plaintiff claimed damage for the negligence of a sAvitchman on the Norfolk County Eailroad. The defendants Avere trustees, and clenied that they managed the road in a personal capacity; but the court hold them personally liable, as they Avere in control, exercising the franchise of the corporation, and controlling all the servants employed in the conduct of the business. On the same ground like decisions Avere made in Barter & Co. v. Wheeler, 49 N. H. 9, and Lamphear v. Buckingham, 33 Conn. 237. In Kinney v. Crocker, receiver, 18 Wis. 74, the defendant, a receiver, avus sued for the negligence of his servant. The court said : “A court of equity Avill, on proper application, protect its OAvn receiver, when the possession Avhich he holds under, the order of the court is sought to be disturbed.” And again : “ But in all these cases it is not a question of jurisdiction in the courts of lato, but only a question AA'hether equity Avill exercise its own acknoAvledged jurisdiction of restraining suits at larv under such circumstances, and itself dispose of the matter involved. It folioavs that although a plaintiff in such case, desiring to prosecute a legal claim for damages against a receiver, might, in order to relieve himself from the liability to have his proceeding arrested'by an exercise of its equitable jurisdiction, very properly obtain leave to prosecute; yet his failure to do so is no bar to the jurisdiction of the court of law, and no defence to an otherwise legal action in the trial. There can be no room to question this conclusion in all cases Avhere there is no attempt to interfere with the actual jjossession of property which the receiver holds ■under the order of the Court of Chancery, but only an attempt to obtain a judgment at law in. a claim for damages.” In this case the action was brought against the receiver himself, and the question of jurisdiction ivas the exact point in judgment.

In Allen v. Central R. R. 42 Iowa, 683, suit was brought against the corporation whose property was in the hands of a receiver for a trespass in ejecting a passenger from a train. Defence was made that the road ivas in the hands of a receiver. Some question was made whether the receiver, after his appointment a few days prior to the injury, had assumed control, but-the trial court ruled that the action could not be maintained against the company unless leave to prosecute it had first been obtained from the court appointing the receiver; and this was the question for consideration in the Supreme Court. The court cites and quotes from Kinney v. Crocker, last above cited, and says: “This case, in our opinion, announces the correct doctrine.”

That the objection is not a jurisdictional bar is generally, and it may be added, almost universally held. Angel v. Smith, 9 Ves. 335; Chautauque County Bank v. Risley, 19 N. Y. 369; Camp v. Barney, 4 Hun, 373; High on Receivers, s. 398; Cases,supra; Jones R. R. Securities, ss. 509, 510. And on principle, whyshould the rule be otherwise? A receivership of a railroad is created, as in all other cases, as a provisional and pro tempore scheme for the preservation of the estate pendente lite. The scope of the receiver’s duty is purely administrative. He is bound to manage the estate according to the rules of good husbandry— good husbandry as applicable to the character of the estate he holds. If the property happens to be a railroad or other going concern, that for public reasons or its own conservation or ad-vantgage must lie kept in operation, and the receiver, with or without the credentials of the court, deems it advisable to have other railroads, or engage in other ventures foreign to the scope of his administrative duty to the estate he holds, and so must have employees, must create extended business relations with third persons, and must expose the persons and property of others, strangers to the receivership estate, to peril and loss; in short, in addition to the function conferred by the court, must take on another character, as lessee, carrier, etc.; then it is easy to see that in all action had in such other and self-assumed character, he is outside his proper function as receiver, and inside his character as master and manager of a business voluntarily assumed, personally managed, and, so far as third persons are aifected, to all practical intents experimentally his-own. If the sanction of the court be had in advance, this im-jn-esses no new character upon him or the business he assumes, but merely promises indemnity for the hazards of the venture. So long as he holds the property impounded by the receivership, and administers upon it for the purposes for which he was appointed, so far he is a receiver in the true essence and spirit of the office, and as such is entitled to absolute immunity and protection. When he takes on another character without the scope of his appointment and outside the tenor of the decree creating the receivership, he necessarily takes upon himself the burdens, liabilities and responsibilities incident to the business he assumes. And these liabilities are enforceable in the common law courts.

So far there seems to be no conflict in the cases, and the case at bar is precisely within this rule. We do not say that in this class of cases a court of equity has no right under any circumstances to interfere Avith proceedings at law to enforce such voluntarily assumed liabilities; but the circumstances Avarranting such interference would necessarily be of an extraordinary character, and, conceivably, could hardly exist.

But in the other class of cases, where the receiver, in the management of the receivership estate itself, needs the intervention of the court under Avhose decree he acts, there is no question, in proper cases, of its jurisdiction to act. In Blumenthal’s case, 38 Vt., and in Newell’s case, 49 Vt., supra, and in Morse v. Brainerd, 41 Vt. 550, this court has affirmatively recognized this rule. But the intervention of the Court of Chancery is exerted only on the receiver’s call for it (see cases above), and not at all upon any theory that the common law court in which the receiver may be sued lias no jurisdiction either over the subject-matter or the person of the receiver. “The court interferes on the principle of preventing a legal right from being enforced in an inequitable manner, or for an inequitable purpose.” Kerr on Injunctions, 13.

And the only mode of interference is by action directed to the party and not the court before whom the party is proceeding. The writ of injunction is the usual and proper process. “ It is important to remember that in granting this relief equity does not pretend or assume to interfere with another court. The injunction is in personam merely. It is directed to the party, not to the court or the officers thereof. It is not, in other words, a writ of prohibition.” Bispham’s Equity, 459. “ The writ of injunction by which proceedings at law are restrained, is not in the nature of a prohibition. In issuing injunctions courts of equity claim no supremacy over the ordinary tribunals. An injunction is addressed only to the individual, and is not directed to the court. Courts of equity in issuing the writ not only do not deny, but in fact admit, the jurisdiction of the ordinary tribunals.” Kerr on Injunction, 15.

So far it seems to be clear that the defence, under this special plea, does not go to the jurisdiction of the common law court, but is of an equitable character that does not bar all remedy, but refers it to an equitable forum for enforcement.

So far as shown, Barton v. Barbour, 104 U. S. 126, is the only case that squarely upholds the defendant’s contention. In all questions affecting rights under Federal cognizance the decisions of the Supreme Court of the United States are controlling upon State Courts. In other cases its decisions are entitled to the highest respect.

In Barton v. Barbour the facts would be parallel with those in the case at bar, provided it be assumed — which is not true— that the Addison road was part of a receivership' estate, and the defendant had been sued as receiver.

In that case tbe defendant was sued in tbe District of Columbia as receiver of a railroad in Virginia for a personal injury received on said road. He filed a plea to the jurisdiction of tbe court, setting up bis receivership of tbe road,, and averred that the plaintiff had not obtained leave of the court appointing him receiver, to bring and maintain the suit. It was held, on demurrer to this plea, by the majority of the court, that the court had no jurisdiction. Mr. Justice Woods states the question for decision as follows : ‘1 The defendant insists that the Supreme Court of the District of Columbia had no jurisdiction to entertain the suit without leave of the court by which he toas appointed.”

The qualifying words underscored are made the hinge upon which the question of jurisdiction is made to turn.

The learned judge continues : ‘ ‘ It is a general rule that before suit brought against a receiver, leave of the court by. which he was appointed must be obtained. Davis v. Gray, 16 Wall. 203, and the cases there cited. * * * A suit therefore brought without leave to recover judgment against a receiver for a money demand is virtually a suit the purpose of which is, and effect of which may be, to take property of the trust from his hands and apply it to the payment of the plaintiff’s claim without regard to the rights of other creditors or the orders of the court which is administering the. trust property. We think, therefore, it is immaterial whether the suit is brought against him to recover specific property or to obtain judgment for a money demand. In either case leave should be first obtained.” Again, as showing the reason for the rule the court say: “If the court below had entertained jurisdiction of this suit * * * it would have been an usurpation of the povoers and duties which belonged exclusively to another court, and it would have been made impossible of performance the duty of that court to distribute the trust assets to creditors equitably and according to their respective priorities.”

The court thus explicitly lays down the rule that leave to prosecute must first- be had, for the reason that otherwise the trust assets cannot be equitably distributed, and priorities will be disregarded.

What are the assets of the trust that are to be distributed among creditors according to their proper priorities ? Fortunately the learned judge has answered this 'question in his opinion. lie says : “It was said by this court in Cowdrey v. Galveston, H. & H. R. R. Co. 93 U. S. 352, that the allowance for goods lost in transportation and for damages done to property whilst the road was in the hands of the receiver was properly made. The earnings received were as much chargeable with such loss and damage as they were chargeable with the ordinary expenses of managing the road. The bondholders were only entitled to what remained after charges of this kind as well as the expenses incurred in their behalf were paid.” The learned judge then adds his own approval of this doctrine: “The claim of the plaintiff which is against the receiver for a personal injury sustained while travelling on the railroad managed by him stands on precisely the same footing as any of the expenses incurred in the execution of the trust, and must be adjusted and satisfied in the same way.”

All will agree that the learned judge’s definition of receivership expenses is correct. No fund can be available for distribution among the creditors of the trust except net income. All expenses of management and all expenses incidental to management must be paid before the rights of creditors attach to income. >

It is conceded in Barton v. Barbour, that in the bookkeeping of the receivership compensation must be made to the plaintiff as part of the expenses of management before any adjustment of priorities is had or any debts of trust creditors paid. Her compensation for her injury is the same in amount, in the eye of the law, whether it be allowed in one court or another. What difference, then, does it make with the funds of the receivership whether the suit be in the courts of the District of Columbia or in the courts of Virginia? What difference would it make with the assets whether the plaintiff sued in the District of Columbia with leave of the Virginia court or without leave?

With all due respect to that court, it is submitted that some reason other than its effect upon the rights of trust creditors, must bo found for the rule that leave to prosecute is a condition precedent to the existence or exercise of jurisdiction in the common law courts.

In weighing the force of the decision in Barton v. Barbour, it is to be remembered that the question arose upon a plea to the jurisdiction; and jurisdiction is denied for want of leave from the court of equity in Virginia to prosecute the suit. The learned judge does not favor us with the citation of any authorities holding that the jurisdiction of a common law court has ever been held to be dependent upon the consent of a court of equity.

It is not surprising that Justice Miller felt constrained to give expression to his dissent from the position taken by the majority of the court. Speaking of the contest between the courts of equity and the common law courts in England he says : “In the contests between these courts it was never claimed that the Court of Chancery could act directly upon the court of law, or that the latter was bound in any way to follow the decisions of the former. Nor could the chancellor direct his writ to the common law courts or its officers; but if it was determined to give any equitable relief in the matter pending in the law court, the injunction or other chancery process was directed to the suitor. Upon him alone was the power of the court exercised. In such a case as this, if the Court of Chancery was of opinion that the plaintiff ivas improperly interfering with the functions of the receiver, it could restrain him by injunction or punish him by attachment for contempt. * '* * But I know of no principle or precedent whereby a court of law, having before it a plaintiff with a cause of action of which it has jurisdiction, and a defendant charged with an act also within the jurisdiction, is bound or is even at liberty to deny the plaintiff his lawful right to a trial because the defendant is a receiver appointed by some other court, and to leave the suitor to that court for remedy,- when it it is known that some of the most important guaranties of the trial to which ho is entitled, and which are appropriate to the nature of his case, will bo denied him.” Justice Milleii quotes with approval many of the cases cited, supra, including Sprague v. Smith, 29 Vt. 421.

It is quite true that it has often been said by courts and text writers that leave to prosecute must be had before instituting suit against a receiver in the common law courts. But like many other dieta with which the books abound, this proposition has doubtless been accepted upon trust, and promulgated without giving its import careful consideration.

If a plaintiff in a suit at law is enjoined, and the injunction aftorwai’ds removed, he does, in a practical sense, have leave to prosecute his suit, and it is not improbable such procedure gave rise to the notion that leave to prosecute is an essential prerequisite.

The case of Palys v. Jewett, 32 N. J. Eq. 302, is cited, and although the court repeats the proposition above referred to, still the whole drift of the reasoning shows that it rests on no solid foundation in reason. In that case the Court of Chancery had entertained a suit for damages occasioned by the negligence of the servants of the defendant, a receiver of a railroad. On appeal Ch. J. Beasley sharply reprobates the notion that a Court of Chancery can try such a question, and maintains that a court of law with a jury is the only tribunal that can properly determine it. In the course of his opinion he says the power exercised by the Court of Chancery was to prevent the taking-of the receivership property from the receiver, and to prevent baseless litigation against him, and that this is accomplished by requiring leave to prosecute the action at law from the Chancery Court. He adds that such leave will be granted not ex gratia but ex debito justitia. • In the light of-this case, leave to prosecute the action at law accomplishes the same purpose as the dissolution of an injunction restraining the prosecution.

If a Court of Chancery cannot properly try an action for negligence, and leave to institute it will be granted as matter of legalTight, it would seem that a rule requiring a plaintiff to go through the meaningless ceremony of applying for a privilege that he already by right'possesses, to a court powerless in itself to give him relief in the premises, has no substantial ground to rest upon.

This case in its reasoning upholds the conclusions which we roach in the case at bar.

Upon the whole, we think it is demonstrably clear that the defence set up in the case at bar does not go to the jurisdiction of the common law court; and we re-affirm the doctrine announced in Blumenthal’s case in the 38th, and in Nowell’s case in the 49th Vt., and by the other cases and authorities cited, that the defence is one that the receiver can only make by invoking the interference of the Court of Chancery with the party prosecuting him in the common law court.

The defendant further insists that the declaration is bad in substance, hut we think it sufficient. It is not necessary to allege in the declaration affirmatively that the plaintiff was without negligence, or that he was ignorant of the insufficiency of the road-bed and track, or the particulars in which the road was insufficient. It does sufficiently allege the duty of the defendant, its breach, and that the intestate was injured by reason of this breach of duty while he was in the lino of his duty as an employee.

The liability of the master for injuries to his servant is well expressed in Davis v. Central Vt. R. R. Co. 55 Vt. 84; and this declaration covers all the essential elements involved in a right of recovery as there defined.

The pro forma judgment of the County Court sustaining the demurrer and adjudging the special plea insufficient is affirmed, and the case remanded with an order that the defendant answer over.  