each of the partners who should show to the satisfaction of the master he was legally a partner, entitled to a share of the mines and its profits, might have the liberty to propose himself or such other person as he should think fit (such other person being a practical miner) to the said master to be appointed manager and receiver. And in another partnership case, Wilson v. Greenwood, 1 Swanst. 483, there being no imputation of misconduct or suspicion of insolvency against the partners defendants, one of them, with the consent of the complainants, was made receiver, but without salary, and upon giving security for the management, &c.

And in the bankrupt case of Ex parte Stoveld, 1 Glyn & Jam. 307, a solvent partner was appointed receiver of the partnership property, but without a salary. In that case it was a condition of the partnership that, upon one partner dying or becoming a bankrupt and indebted to the firm, then the surviving insolvent partners might deduct the deficiency from his share and also hold the stock, debts and property as their own, subject to payment and indemnity to executors, &c., or assignees; so that the partnership was not to end as to the survivors.

In Fingal v. Blake, 2 Molloy, 50, the court allowed a defendant heir at law to offer himself for receiver: but that permission was to have no influence beyond this to put aside the disability under which a party ordinarily is of becoming the receiver in the cause in which he is a party. Upon a bill by equitable mortgagees where a receiver was directed to be

appointed, the court gave liberty to the parties to propose themselves: Meaden v. Sealey, 6 Hare, 620; S. C. 18 L. J. (N. S.) Ch. 168.

A party in a cause becoming a receiver is entitled to no poundage: Fingal v. Blake, supra.

CHAPTER IV.

GENERAL PRACTICE ON THE APPOINTING A
RECEIVER. (a)

MOTION FOR A RECEIVER. ORDER. SUMMONS. ATTACHMENT WHERE A PARTY DOES NOT ATTEND BEFORE A REFEREE OR MASTER. PROCEEDINGS ON THE REFERENCE. RECEIVER'S OWN SOLICITOR AND COUNSEL. THE EFFECT OF A RECEIVER PENDENTE LITE. REMOVING A RECEIVER FROM PART OF A LARGER PROPERTY.

Motion for a receiver. Order. Summons.

A MOTION by a defendant for a receiver, is irregular: Robinson v. Hadley, 11 Beav. 614.

The New York Code of Procedure has not altered the practice in the appointment of receivers, so far as notice to parties to be affected is concerned: Kemp v. Harding, 4 Howard's Pract. Rep. 178.

Previous notice of a motion for the appointment of a receiver is not necessary, when counsel for the opposite party are present in court: M'Lean v. La Fayette Bank, 3 M'Lean, 503.

(a) The particular practice under proceedings by judgment creditors, will be found in an after chapter.

A motion for a receiver is generally made on the answer of the defendant; but it may be made on affidavits before answer, where the complainant can clearly satisfy the court that he has an equitable claim to the property in controversy, and that a receiver is necessary to preserve the same from loss: Metcalfe v. Pulvertoft, 1 Ves. & Beames, 182; Duckworth v. Trafford, 18 Ves. 283; Bloodgood v. Clark, 4 Paige's C. R. 574.

Such a motion is special and, therefore, notice of it must given to all necessary and interested parties: 2 Brown's Ch. Pract. 833; Buxton v. Monkhouse, Coop. 41; Devoe v. Ithaca and Owego Railroad Co. 5 Paige, 521. Still, a defendant who is in contempt, although he may have appeared in the action, is not entitled to notice of motion for a receiver: Fitzpatrick v. Hawkshaw, 1 Hog. 82. The notice is to be served like ordinary notices; and where affidavits are used, they should, of course, verify such facts and circumstances as are deemed to constitute the necessity for the appointment-and a copy of them be served with the notice.

This notice must express, shortly but clearly, the object of the application; for in general the court will not extend the order beyond the notice: 1 Grant's Ch. Pr. 144.

The English form of notice runs—“That a re"ceiver may be appointed (of the rents and profits "of the estate or estate and effects of the defend"ant, A. B.) in the pleadings in this cause mentioned, with the usual directions: " 2 Grant, 174; and this will be enough under our own practice

although it may not be amiss to add, after the word "directions"-" or for such further order and direc"tions as may be just:" 1 Hoffm. Ch. Pr. 422.

The notice must, also, state on what papers and pleadings the motion will be grounded. If the papers to be used are already in the possession of the party or are on file or of record in the court, they can be referred to in the notice and copies need not be served: Ib.

A plaintiff can move on his bill and on affidavits besides; and the defendant, in such case, may use his answer as an affidavit: Goodman v. Whitcomb, 1 Jac. & W. 569; Kershaw v. Mathews, 1 Rus. 361; and also the latter may, where the plaintiff has affidavits, read depositions.

This is to be considered as the practice in ordinary cases; but it may not hold upon the mere point of title between the parties. Affidavits are used to show conduct, and, I take it, there can be no objection to them where the bill and answer are to be read, where such affidavits show the temper and act of the party, and are not intended to go against the mere title claimed by the defendant in his answer. They cannot be read as to the matter of his title: 2 Madd. Ch. Pract. 292, 3d edition. Although, on a motion for a receiver, affidavits may be read in support of the complaint or bill, still they cannot be read to enlarge the case made by it: Hayes v. Heyer, 4 Sand. Chan. Rep. 485.

In Michigan, affidavits are not admissible to contradict an answer, on a motion for the appointment of a receiver: Connor v. Allen, Harring. Ch. 371.