Tomlinson v. Ward

Swift, Ch. J. It appears, that Tomlinson, the plaintiff in error, borrowed money, on the credit of the company, to pay his private debts ; and then, without, the consent oí Ward, took money at an extra rate of interest to meet the payments ; which extra interest was charged to the company. I am of opinion, that he had no right to do this ; and that such extra interest was justly and properly charged to him. In regard to the debt due -from -Victory Tomlinson, Tyler and Frost, it appears that the- defendant, (now plaintiff in [400] error) remonstrated against tiic acceptance of the report of ⅛⅜» committee, because they bad charged it against him on the ground, that he liad suffered it tobe outlawed: but in the second report of the committee, it is explicitly stated, that it was allowed, because the defendant had misapplied the provisions delivered to the company in payment ol' this debt, to the payment of a private debt due from frost to him, and then suffered it to be barred by the statute of limitations. This was no ground for setting aside the report of the committee, and the court did right in accepting it. It was a proper exercise of the discretionary power of the court to appoint distributors to divide the joint property between the parties. Courts of equity have undoubtedly a power to appoint receivers in proper cases : but the facts should be stated in the bill, which shew' the necessity or propriety of the appointment,. so that the other party may answer them. A receiver ought to give security for the faithful discharge of the trust. As no facts were stated in the bill, and no security given by the receiver, I am of opinion, that this part of the decree be reversed ; and that the same be affirmed on every other point. EdMond, Smith, BeainaRD and Hosmeii, Js. were of the same opinion.