Gatzmer v. Philadelphia and Atlantic City R. R. Co.

and interest thereon to the date of the report, but has allowed only the cost of making the fence on the east side, so that he has made no provision for maintaining the fence. But there are no exceptions on the part of the defendants. The exceptions will be overruled, with costs.

WILLIAM H. GATZMER et al., trustees &c.,

υ.

PHILADELPHIA AND ATLANTIC CITY RAILWAY COMPANY.

A manager was employed by the receiver of an insolvent railroad company mainly to perform duties which the receiver himself should have attended to. In a subsequent order for the disposition of the proceeds of the foreclosure of a mortgage on the railroad, an amount was awarded to the receiver as compensation for his services, and he was thereby directed to pay the manager a specified portion thereof. He refused to do so, claiming that the manager was indebted to him individually in a larger amount.-Held, the indebtedness from the manager to the receiver being admitted, that a petition by the manager for an order compelling the receiver to pay him the amount specified should be dismissed for want of equity.

Bill to foreclose. On petition of Samuel Richards for order on master to pay to him certain money.

Mr. H. A. Drake, for petitioner.

Mr. S. H. Grey, for respondent.

THE CHANCELLOR.

This application is made by Samuel Richards for an order for the payment to him instead of Charles R. Colwell, of the sum of $2,839.75, part of the sum of $5,000 which, by the execution in this suit, the master to whom the writ was directed and who sold the mortgaged premises thereunder, is required to pay to

Gatzmer v. Philadelphia and Atlantic City R. R. Co.

Colwell. By the decree (made July 10th, 1883), the master is required to pay to Colwell, as receiver in insolvency of the Philadelphia and Atlantic City Railway Company, the defendant, certain moneys in and for settlement of claims against him as receiver, remaining unpaid, and also the further sum of $5,000 which was thereby adjudged to be a reasonable compensation for his services in the management of his trust (as receiver), from which sum was to be paid by said Colwell the balance, $2,839.75, found due to Samuel Richards (the petitioner), the manager of the company during the receivership. Colwell, as receiver, employed Richards to act as manager, but at no specified rate of compensation. He paid him some money ($2,405) on account. Richards, by his petition filed in the insolvency suit in April, 1882 (his services ended in July, 1879), applied to this court for payment of the balance due him, and thereupon an order of reference was made to a master to ascertain what was due him, and the master reported that he was entitled to receive a balance of $2,839.75. After this report and in July, 1883, the decree in this suit (which was for foreclosure and sale of the railroad &c., as mortgaged premises under a mortgage existing when the proceedings in insolvency were begun) was made, and in it were the directions before mentioned. It will be observed that the decree adjudges that, $5,000 be paid to Colwell for his services as receiver, from which was to be paid the balance due Richards for his services. Colwell, as before stated, employed Richards and paid him the $2,405 on account. The services rendered by Richards were such, to a considerable extent at least, as in contemplation of law the receiver himself was bound to render. Colwell employed Richards to do his work. Therefore, in awarding compensation to Colwell it was proper, in justice to the trust, to provide that he should pay out of the money given to him for compensation what Richards was entitled to from him. Colwell claims that he is entitled to the balance due Richards to apply it to a debt due him from Richards, and the latter now applies for an order requiring the payment of the money to him instead of to Colwell. Richards admits that he knew when the decree was made that it awarded the $5,000 to

Applegate v. Tyson.

Colwell, merely providing that Colwell should pay him out of it, but he made no objection. He owes Colwell about $5,700 on account of a loan of $5,000 (and interest thereon) made by the latter to him in August, 1877. The indebtedness is not denied, but Richards asks this court to require the master to pay the money to him instead of to Colwell, so that it may not be applied to the payment of his debt. There is no equity in the application. The petition will be dismissed, with costs.

JOHN S. APPLEGATE, receiver &c.,

υ.

WASHINGTON L. TYSON et al.

In a litigation in this court over a bond and mortgage made to A in trust for B, the complainant was appointed the receiver thereof, with authority to collect the money due thereon and distribute it among C, D and E. In a subsequent foreclosure suit upon the mortgage by the receiver-Held, on demurrer, that A, B, C, D and E were not, nor was any of them, necessary parties.

Bill to foreclose. On demurrer.

Mr. R. Wayne Parker, for the demurrants.

Mr. R. Allen, Jr., and Mr. S. M. Dickinson, for complainant.

THE CHANCELLOR.

This is a demurrer for want of parties complainant. The suit is brought to foreclose a mortgage, and is instituted by a receiver appointed by this court to collect the money due upon the mortgage, and make distribution thereof. The receiver is the only party complainant, and the defendants are the mortgagor and his wife, and other persons owning part of the land. The demurrants insist that Maria L. Parker, James Eugene

Applegate v. Tyson.

Parker, Maria Louisa Parker, Samuel Parker, and Elizabeth B. Parker, are necessary parties. It appears by the bill that the complainant was appointed receiver in this court in a suit in which James Eugene Parker, Maria Louisa Parker, Samuel Parker, and Elizabeth B. Parker, were complainants, and Frank S. Winchester, Washington L. Tyson, and Maria L. Parker, were defendants; that in that suit it was adjudged that Maria Louisa, Samuel and Elizabeth B. Parker were entitled to recover from Winchester the sum of $11,525, with interest, and that they were entitled to the mortgage now in suit (which had been given to him as trustee for Maria L. Parker by Winchester) and the bond, the payment of which it was given to secure, or to the moneys due thereon; and that John S. Applegate (the complainant in this cause) be and he was thereby appointed receiver in that suit to take possession of the bond and mortgage, and take such measures as might be necessary to recover the money due thereon and to make distribution of the proceeds. The bill also states that the complainant, under and by virtue of the authority and direction of the decree, has received the bond and mortgage from the clerk of this court, with whom it had been deposited by order of this court, and has possession thereof. It also states that he is thereby and by virtue of his office of receiver, entitled to recover, collect and receive the money due and to become due on the bond and mortgage, and under the direction of this court to institute and prosecute proceedings for the recovery and collection of the money. It also states that Maria Louisa, Samuel and Elizabeth B. Parker are entitled to the bond and mortgage and the money due upon them. The receiver has title to the bond and mortgage. By the authority given him to collect the money due and to grow due upon them he has such an interest in them as enables him to maintain suit thereon in his own name alone. They were, as before stated, made in favor of Frank S. Winchester, trustee of Maria L. Parker. The decree divested the former of all title thereto, and Maria L. Parker of all interest therein, and invested the complainant as receiver with title for the purposes of collection, directing him to collect the money and make distribution of it among the

Atlantic City Water Works v. Atlantic City.

three, Maria Louisa, Samuel and Elizabeth B. Parker, according to the directions of the decree.

It is quite clear that it is not necessary to join either Winchester or Maria L. Parker as complainant, and it is equally clear that it is not necessary to join the persons decreed to be entitled to the bond and mortgage. James Eugene Parker has not, and for aught that appears never had, any interest in them.

It is urged that unless Maria L. Parker be made a party, she may defeat the title of the purchaser under the foreclosure sale, by a successful appeal from the decree by which she was divested of her interest. This objection would not be obviated by making her a party; for she would not be a party voluntarily, but would be made such against her will, and only by virtue of the order or decree, if one were made, directing that she be made a party. If she should not, by appeal, stay the proceedings, the sale will be binding upon her. None of the persons named in the demurrer are necessary parties. The demurrer will, therefore, be overruled.

ATLANTIC CITY WATER WORKS COMPANY

υ.

ATLANTIC CITY et al.

The complainants were incorporated, under a general statute, to supply Atlantic City, the defendant, with water. They afterwards contracted with the city for that purpose, and thereby accepted the provisions of certain ordinances regulating the mode of supplying the water, both for public and private purposes. They received in return exemption from municipal taxation, and also the exclusive privilege of furnishing water to the city and its inhabitants. They constructed their works at a large expense, and supplied the water, as required by their contract, satisfactorily.-Held, that whether or not the city's grant of the exclusive privilege of furnishing water was ultra vires, and void as creating a monopoly, the city had exhausted its power as to providing a water supply; that the complainants' franchise was exclusive, and that conse