seem to be, not a matter of discretion with the court, but an inflexible rule which the courts are not at liberty to disregard. To warrant a court in entertaining an application for a receiver without notice, it must be clearly shown that the delay which would result from giving notice would defeat the rights of the complainant, or would result in great injury to him. When a receiver is sought upon an ex parte application, the particular facts and circumstances rendering such summary proceeding necessary should be set forth in the application, and a mere statement of opinion as to such necessity, even though made under oath, will not justify a departure from the established rule requiring notice.38

$468. Form of notice of motion for appointment of a receiver. [Title of court and cause.]

To J. S., Solicitor for Defendant, C. D.:

at

Please take notice that on ———, the

day of

A. D.

o'clock, -M., or as soon thereafter as counsel can be heard, we shall appear before his honor, Judge in the room usually occupied by him as a court room, in -, in the city of —, and on behalf of the complainant in the above-entitled cause will move the court to appoint a receiver of the rents and profits of the estate [or of the estate, property, and effects] of the defendant, C. D., referred to in the pleadings in this cause, with the usual powers, and upon the usual directions, which motion will be founded upon the pleadings in this cause, and upon affidavits, with copies of which you are herewith served, at which time and place you may appear, if you see fit. Dated

C. & F.,

Solicitors for Complainant.

38 English v. People, 90 Ill. App. 54, citing High, Receivers, §§ 111113; North American Land & Timber Co. v. Watkins, 109 Fed. 101; Smith, Receiverships, p. 19; Verplanck v. Mercantile Ins. Co. of New York, 2 Paige (N. Y.) 438. The exceptions to the rule that the court will not appoint a receiver until the defendant, or a party in possession of property, has had an opportunity to be heard, are thus stated by Mr. Smith in his recent work: (1) Where the appointment is prayed as a measure of final relief; (2) where all parties are before the court, either in person or by attorney, consenting to the appointment; (3) where the defendants or parties in interest have absconded, or are beyond the court's jurisdiction, or cannot be found; (4) where there

§ 469. By whom appointed.

On hearing a motion for a receiver, the court will either make the appointment itself, in the first instance, or refer it to a master to inquire and report to the court whether or not a receiver should be appointed.39

§ 470. Order of appointment.

The order of appointment must of necessity be shaped with reference to the facts and circumstances of each particular case. It should specifically describe the property over which the receiver is to have custody and control, if the property is capable of description,10 and it should specifically define the duties and powers of the receiver.41

§ 471. Form of order appointing receiver.

[Title of court and cause.]

Comes on this cause upon the application of the complainant, asking for the appointment of a receiver of all the partnership property, assets, and effects of D. & B., doing business in the city of Chicago, county of Cook and state of Illinois, under the firm name and style of E. S. D. & Company, and also asking for an injunction; and defendant appearing and having answered and consented to the entry of this order, and the court having duly considered the premises, and being fully advised thereof, it is ordered,

(1) That G. B. H., of the city of Chicago, be and he is hereby appointed receiver of all the property, assets, effects, real, personal, and mixed, wheresoever situate, now belonging to or to which the copartnership composed of E. S. D. and R. B., and doing business as E. S. D. & Company, is entitled, whether in law or equity, including all books, papers, documents, etc., with all the general powers of a receiver in chancery.

(2) That the said receiver give bond for the faithful performance of his duty as such receiver in the penal sum of twenty thousand dollars, the same to be approved by this court.

(3) That the said receiver forth with take possession of said property, assets, effects, real, personal, and mixed, of every kind, nature. or description, now belonging to or to which the said copartnership is

Is imminent danger of loss, or great damage, or irreparable injury, or the gravest emergency. Smith, Receiverships, pp. 14, 19.

to 1 Barbour, Ch. Pr. 669; Attorney General v. Bank of Columbia, 1 Paige (N. Y.) 511.

40 Smith, Receiverships, p. 63; Crow v. Wood, 13 Beav. 271.

41 Smith, Receiverships, p. 63; Merrill v. Elam, 2 Tenn. Ch. 513.

entitled, whether in law or equity, including all books, papers, and documents of every kind, nature, and description.

(4) That the said E. S. D. and R. B., so constituting said copartnership, do, for and on behalf of said copartnership, forthwith execute and deliver to said receiver, and under the control and direction of a master in chancery, a full, proper, and complete deed, transferring and assigning to said receiver all of said property, assets, and effects, real, personal, and mixed, wheresoever situate, belonging to or to which said copartnership is entitled either in law or equity.

(5) That said D. and B., and their and each of their agents and representatives, and all other persons whatsoever, be and they are hereby enjoined from interfering or attempting to interfere in any way with said receiver or said property, assets, effects, real, personal, and mixed, of every kind, nature, and description, and said books, papers, documents, etc.

(6) That said cause be and the same is hereby referred to B. G., a master in chancery of this court, and that said master shall summon before him said D. and B. for the purpose of directing and controlling the execution and delivery by them to the said receiver of the deed as herein before provided; that said master is hereby also directed, empowered, and authorized to ascertain and take an account between said copartners, and he is hereby authorized to require to ap pear before him from time to time, as he may specify and direct, such parties hereto, and such other persons as said master may deem proper, or as the parties hereto may require for the purpose of ascertaining the true state of the accounts by and between the parties hereto, and for the purpose of stating and striking an account, and also for the purpose of ascertaining, protecting, and conserving the assets and liabilities of said estate.

(7) That any creditor of said copartnership, upon making a proper showing to this court or said master, be allowed to be present and participate, under the direction and control of the master, in the examination of said parties, and of any other person whom said master may be required to subpoena before him for the purpose of investigating into the assets and liabilities of said estate, and the whereabouts of the claimants.

(8) That said receiver, who now appears in open court, doth accept said appointment, and tenders his bond in compliance with this order, and, the same being approved by the court, shall be and is hereby authorized and empowered to retain counsel, and to hire a sufficient number of clerks and assistants, and to incur other reasonable and proper expenses for rent, insurance, gas, heat, and other reasonable and proper purposes, to enable said receiver properly to conduct and administer said estate.

(9) That this order be subject to such further orders, changes, and modifications as the court from time to time may direct in the prem

ises.

L. M..

Judge.

$ 472. Form of order appointing receiver on foreclosure of mort

gage.

[Title of court and cause.]

This cause coming on this day to be heard upon the verified petition of A. B., complainant herein, praying that a receiver be appointed of the rents and profits of the premises involved herein, and the court having read said petition, and it appearing that due notice thereof has been given to all parties in interest, and that the mortgaged premises are inadequate security for the mortgage debt, and that no one except the defendant, E. F., is personally liable for the debt, and that he is insolvent, and that he is collecting the rents, and that said property was, on September 20, 1900, sold for taxes of 1899, and that the taxes for the year 1900 are due and unpaid, and the court being fully advised in the premises,

It is ordered that G. H. be and he is hereby appointed receiver, with the usual powers of receivers in equity, of the property, together with the improvements and buildings thereon, and the rents, issues, and profits thereof, involved in this cause, and situated in the county of Cook and state of Illinois, and described as follows [here describe the property], upon filing with the clerk of this court a bond in the penal sum of $2,000, with two sureties, to be approved by this court, conditioned for the faithful discharge of his duties as such receiver, and for due accounting for all moneys and property received by him.

It is further ordered that said receiver be and he is hereby directed to demand, collect, and receive from the tenant or tenants, or any persons who may occupy or be in possession of said premises, or other persons liable therefor, the rents thereof now due and unpaid, or hereafter to become due and unpaid, until the further order and direction of this court; that the said tenants in possession of said premises, and other persons liable for said rents, are hereby enjoined and restrained from paying any rent for said premises to the defendant, his agents, servants, or attorneys; that all persons now or hereafter holding possession of said premises, or any part thereof, and not holding such possession under valid and existing leases, do forthwith surrender such possession to said receiver; that the said receiver shall be and he hereby is authorized in his own name to institute and carry on all legal proceedings necessary for the protection of the property referred to in this order, including such proceedings as may be necessary to recover possession of the whole or any part of said premises, and to institute and prosecute suits for the collection of rents now due, or hereafter co become due, on the aforesaid premises, or any part thereof, and to institute and prosecute summary proceedings for the removal of any tenant or tenants or other persons therefrom; that said receiver be and he hereby is authorized from time to time to rent or lease, as may be necessary, for terms not exceeding one year, any of said premises, and to keep the property insured against loss or damage by fire, and

in repair, and to pay the taxes, assessments, and water rates upon said premises; that said receiver be and he hereby is authorized to employ an agent, if he deem proper, to rent and manage said premises, collect the rents, and keep the premises insured and in repair, and to pay the reasonable value of his services out of the rents received; that, during the pendency of this suit, the defendant, his agents and attorneys, be enjoined and restrained from collecting the rents of said premises, and from interfering in any manner with the property or its possession.

It is further ordered that the said receiver may retain the moneys which may come into his hands by virtue of his said appointment until the further order of this court; that the said receiver, and any party hereto, may at any time, upon proper notice to any parties who may have appeared in this cause, apply to this court for further or other directions, and for further power to enable said receiver properly to perform his duties.

§ 473. Renewal of application for receiver.

The court may, on denying a motion for a receiver, grant leave to the applicant to renew the motion, upon additional proof, if it appears that he may obtain additional proof, sufficient to present a strong case. But when the application has been once heard, and has been denied, a receiver will not be appointed. upon a subsequent application, founded upon the same papers as before, without affidavits or other proofs to show a necessity for such an order.42

$ 474. Vacating order appointing receiver.

The court may entertain an application to open and rehear the motion for the receiver after his appointment, and may allow the defendant to introduce proofs which could not have been produced upon the former hearing of such motion, and, if satisfied that no receiver should have been appointed, the court may, upon such rehearing, vacate the order appointing the receiver;43 and if subsequently it should become apparent to the court that

42 Fenton v. Lumberman's Bank, Clarke Ch. (N. Y.) 360; Jones v. Thorne, 80 N. C. 72.

43 Edwards, Receivers (2d Ed.) 81; Beach, Receivers, 847, 880; High, Receivers, § 92; Belmont v. Erie Ry. Co., 52 Barb. (N. Y.) 637.