People ex rel. National Cash Register Co. v. Murdoch , 50 Ill. App. 311 ( 1893 )

Opinion of the Court,

Gary, P. J.

This is an action of debt upon a bond for the discharge of his duties given by a receiver in a chancery suit wherein Simon Bied and Thomas Murdock were complainants and John Laurie was defendant.

The breach assigned is that the receiver sold some registers which the usees had sold to Laurie under an agreement that the title should not pass until they were paid for. What the nature of the chancery suit was, does not appear. It may have been, what our local knowledge leads us to suspect, a judgment creditor’s suit. It is a fair inference that when the receiver was appointed the registers were in the possession of Laurie.

As payments were to be made monthly, and nearly three months elapsed after the receiver was appointed before he sold the registers, and as it is not probable that Laurie paid anything during that period, the usees probably knew that Laurie’s property was in the hands of a receiver. The averment that the receiver acted without the consent of, and without notice to the usees, does not negative knowledge by them.

Constructive notice, by record of the interest of the usees, to the receiver, is alleged, but no actual notice. It is consistent with the declaration that the receiver, without notice in fact of the interest of the usees, under the orders of the court appointing him, took from Laurie possession of, and then sold, the property. Such conduct would be no breach of the condition of his bond. That condition is to “ duly account for what shall come to his hands or control as such receiver, and pay and apply the same from time to time as he may be directed by said court, and obey such orders as said court may make in relation to said trust, and in all respects faithfully discharge the duties of said trust.”

Property in which Laurie had any interest, and in his possession, should be taken by the receiver, and the claims of any person upon it, made to the court appointing him. Beach, Receiver, Sec. 6; High, Receiver, Sec. 163; Heise v. Starr, 44 Ill. App. 406; so in insolvency cases under the statute. Hanchett v. Waterbury, 115 Ill. 220.

The court rightfully sustained the demurrer to the declaration and the judgment is affirmed.

Waterman, J.

I do not think that the declaration in this case showed any breach of the conditions of the receiver’s bond. I do not understand that anything more than this was decided below or is here.