Page:The New International Encyclopædia 1st ed. v. 16.djvu/846

* RECEIPT. 746 KECEIVER. evidence and will have no effect if fraudulently procured or untrue in fact. It is owing to its character as evidence that a receipt is to be dis- tinguished from a release (q.v.), which operates as a discharge or extinguishment of a legal obli- gation. In a few States, however, notably New York, it has been held that a simple receipt, when given with intent to extinguish a debt, would be deemed a gift of the debt although given with- out consideration and would thus extinguish the debt. This is anomalous, inasmuch as a receipt is evidence only and not a contract. A receipt is not subject to the parol evidence rule. ( See Evi- dence. ) It may. however, be incorporated in a con- tract, as in the case of bills of lading (q.v.) or warehouse receipts (q.v.), which may and usually do contain both a receipt for the goods delivered to the carrier or warehouseman and a contract fixing the terms of the bailment. So far as the bill of lading or wareliouse receipt is a contract it is subject to the parol evidence rule and can- not be contradicted by oral testimony; but its effect as a receipt may be explained or contra- dieted by such testimony. This rule, however, varies when the bill of lading or warehouse re- ceipt has been indorsed to an innocent holder for value. The carrier or warehouseman will then be estopjjed to deny the receipt as written. It seems probable that one delivering property or paying money in performance of a legal obligation may not lawfully demand a receipt as a condition of the performance of his obligation. The question, however, is not settled. Receipts are required by statute to be given in some cases. Consult the autliorities referred to under Contract. KECEIVER (OF. recevour, receveur, Fr. re- cevcur, from rccevoir, to receive, from Lat. re- cipere, to receive). An indifferent person be- tween the parties to a litigation appointed by a court of equity to take charge of and preserve property or money involved in the litigation, and to collect the rents, issues, and profits thereof pending a final disposition of the controversy. A receiver is an oflicer of the court. Property placed in his care is regarded as being in custodia Icgis, to be administered by him under direction of the court; and it thus is not subject to other judicial process, and jurisdiction cannot be ac- quired over it by other courts having concurrent jurisdiction over the subject of the suit. See Jurisdiction. The appointment of a receiver is one of the im- portant forms of the ]ireventive remedy exercised by courts of equity, and is of great benefit when there is danger that property which is the subject of judicial controversy may be wasted, destroyed, or removed from the jurisdiction of the court pending the litigation. By the appointment of a receiver the court insures its preservation and final appropriation as its decree may direct. As the mere legal custody of the receiver is suffi- cient for this purpose, he acquires no title or lien upon the property. He is a ministerial officer, and in general his powers are those only which are granted by the order or decree appointing him. If acting within his powers lie has some discretion and may exercise his judgment as to the manner of their exercise. In that case he is not liable for errors of judgment, but if negligent or acting outside his authority, he is personall.y liable for his misconduct. When in dnubt as to his powers he may apply to the court for author- ity and directions as to their use. A creditor or other interested party may also apply to the court for modification of the order appointing the re- ceiver or for supplementary orders to govern his conduct, or in a proper case for an order remov- ing him. In general a receiver has no authority to sue unless directed by the court to bring an action; and action may not be brought against him without the express authority of the court. He is deemed to have implied authority to employ counsel when reasonable and ])roper. The ])overs and duties of receivers are now generally regu- lated by statute or to some extent by rules of court. The following are the more important cases in which a receiver will be appointed, although the classification is not exclusive ; ( 1 ) When there is no present legal owner of property involved in the proceeding, although the parties to the litigation are equitably entitled to it, as in case of an intes- tate's personal property. The same relief is now generally obtained by the appointment of a tem- porarj' administrator. (2) When the legal owner is incompetent to manage his propert.v, as in case of infancy or lunacy, and there is no guardian or commission having legal authority to protect the property. In most jurisdictions guardians of in- fants and committees of lunatics have statutory authoritv sufficient to render the appointment of a receiver in such cases unnecessary. See Guardian. (3) When the litigants are equally entitled to the custody of the property and justice requires that neither one should be permitted to control it to the exclusion of the other, and circumstances do not permit their joint control, as in the case of the dissolution and winding up of a partnership or the partition of real estate. (4) When the title or possession of property is held by one in a fiduciary capacity or relation who is not properly performing his trust, as a mortgagor in an ac- tion to foreclose a mortgage, a trustee in an action for an accounting, or one having property claimed in a judgment creditors' action. (.')) When the appointment of a receiver is necessary to assist in carrying out the decree of the court, as where in judgment creditors' actions, in order to satisfy the judgment, a receiver is required to sell the i)ropert.y conveyed in fraud of creditors. The appointment of a receiver is always a mat- ter within the discretion of the court and cannot be claimed as an absolute right. Often the pro- priety of granting an application for a receiver is a matter of great delicacy and importance, re- quiring the highest judicial capacity. Courts of equity would not exercise their juris- diction to appoint a receiver for an insolvent cor- poration merely because it was insolvent. Statu- tory jurisdiction is now generally given for that pur]iose and in many other cases where it was formerly not the practice to grant relief by the appointment of a receiver. Thus, for example, statutes now authorize the appointment of re- ceivers to take charge of assets in the winding up of corporations ; to preserve the estate of a bank- rupt pending bankruptcy proceedings : to receive simis due on judgment debts and apply them to the pajunent of the judgment; and in many other cases. The expenses of the receivership, including the receiver's own fees, are a first lien on the property held by him as receiver. In some cases the court will authorize a receiver to raise money for the