Harrigan v. Gilchrist

The following opinion was filed April 19, 1904:

*207 I.

Motions to Dismiss Appeals.

Many questions are presented for consideration on tlie motions to dismiss. Perhaps most of them •could well he jfassed without even a mention thereof. It is certain, as will he seen, that those upon which the motions must turn are few in number and simple. However, as ■others are of interest as practice matters, and distinguished counsel have with great industry briefed all of them, it is considered hest to make this opinion a response to each and all which they so seem to regard of sufficient importance to ask it, and have devoted so much professional energy to aid in a right conclusion in respect to being reached.

1. First, we have the question of whether there was a fatal omission as regards complying with sec. 3049, Stats. 1898, because the notices of appeal were not served on the National Electric Manufacturing Company, the insolvent corporation, and in the initiatory proceedings the sole defendant.

Cases here on appeal must necessarily have their appropriate parties, properly brought into court, else jurisdiction cannot exist to do more than dismiss. One of such parties is known in the initiatory proceedings as the adverse 'party. That does not necessarily include, in a jurisdictional sense, persons on the side of the adverse decision sought by some on that side to have reversed or modified, even if there is an adversity of interest between them (Hunter v. Bosworth, 43 Wis. 583); though it is said that one so circumstanced, — - whether treated as an adverse party or not, for the purposes of service under the section under consideration, — may have all the rights thereof as regards a hearing on the appeal if he so desires. The adverse party does not necessarily include merely the opposite party appearing upon the record. A per *208 son may be an appellant or an adverse party within the meaning of the statute and his name not appear in the litigation resulting in the decision at all. If he has a substantial interest adverse to the decision, that is all that is required for an appellant, whether it be direct or by privity created between himself and the person against whom the decision was rendered by reason of succeeding to his rights after the decision or subsequent to the commencement of the action. Rogers v. Shove, 98 Wis. 271, 73 N. W. 989; Crowns v. Forest L. Co. 99 Wis. 103, 74 N. W. 546; Hiscock v. Phelps, 2 Lans. 106; Cotes v. Carroll, 28 How. Pr. 436; Barnes v. Stoughton, 6 Hun, 254; Pickersgill v. Read, 7 Hun, 636; Baylies, New Trials & Appeals (2d ed.)145. To determine when the appeal statute is satisfied as to an appellant or a party aggrieved or an adverse party, while, prima facie, the original parties on the record may answer, the supreme test is the possession of some substantial' interest adverse to the judgment, a revision of which is sought in the appellate court.

We are unable to see how the insolvent corporation,— which, according to the record, exists at best only in name; that has surrendered all its property to the court so far as it is 'capable of doing so, and in no event, according to the undisputed facts and its own confession, can profit by the judgment ; moreover, that has filed a declaration in this court, in effect, that it has no concern at all with what comes of the matter in controversy here, — can be considered an adverse party to the appellants.

It was held in Gores v. Field, 109 Wis. 408, 415, 84 N. W. 867, 85 N. W. 411, an action to recover of the officers of a corporation circumstanced as this one for the benefit of its creditors, property thereof misappropriated by. such officers while the corporation was a going concern, — that it was not an interested party in the litigation, required to be joined in the suit under the general rule governing the enforcement of the right of a corporation at the suit of another. It would *209 seem to follow logically that, in a sequestration suit under the statutes, after the same has passed the stage rendering the presence of the insolvent necessary in order that its liabilities may be adjudicated and the assets under its control taken into the custody of the court, the corporation is not an adverse party as to its creditors in further proceedings in the litigation to secure the honest application of the trust property — that in the possession of the court and that misapplied, if any, by its officers before suit brought — to the payment of its indebtedness. If that he so, then the insolvent corporation here is not an indispensable party to the appeals. In the case cited it was said that the corporation was as far removed from pecuniary injury as if it were legally dissolved. The situation here is stronger yet. The corporation is dead for all purposes except the settlement of its affairs. The purpose of the suit is to wind it up, in a business sense, and the judgment of this court practically has that effect. It is 'really, for all practical purposes, as though it never was. It can neither injure nor he injured. It has nothing to render up, and that which the pending litigation seeks to obtain can never reach its treasury. Strictly speaking it has no treasury, even though' it has a sort of existence for the purpose of the settlement of its affairs, since all it hadj including that unlawfully parted Avith by its officers, if'any, before the commencement of this action, and that surrendered by it and subsequently dissipated by thosp called upon to administer the same, if any there be, reachable in this litigation, constitutes a trust fund for its creditors. It is their sole property by the undisputed facts, since at the very best it will pay but a small percentage of the corporate liabilities. The corporation cannot in any sense he considered even a remote cestui que trust. It needs no further argument to show that it is as far removed from the status of one having a substantial interest in the judgment in favor of its creditors, now sought to be impeached, as one can imagine.

*210 It may be stated as a rule of practice, deducible from tbe foregoing, tbat in an action under sec. 3216, Stats. 1898, and its associate sections, to sequestrate and distribute tbe assets of an insolvent corporation, wben tbe sequestration shall bave been fully accomplished and tbe liabilities fully ascertained, rendering it certain tbat under no circumstances will tbe assets discharge tbe same, in subsequent proceedings in tbe litigation in respect to realizing upon tbe trust fund by tbe creditors, — whether against unfaithful administrators thereof in tbe suit causing a diminution of the same, or guilty participants with them, or against officers of tbe corporation or guilty participants with, them in misapplying tbe corporate assets after tbe status of tbe same shall have been fixed as a trust fund for tbe benefit of its creditors, — the corporation is not an interested party adverse to either party to tbe litigation under the appeal statute.

2. Tbe next proposition for consideration has to do with tbe character of tbe .appeals as regards • whether they are single or joint. We see no escaping from tbe position of respondents’ counsel tbat tbe parties in each notice of appeal did not intend thereby to take one appeal, but purposed tbat each in his own behalf should appeal. To that end they gave each notice the effect of as many notices as there were parties appellant mentioned therein, and tbe service thereof tbe effect of an attempt to institute an independent appeal for each of such parties. Notwithstanding tbe ingenious argument of able counsel to the contrary, there can be, it seems, no misunderstanding the meaning of these words, which are a fair sample of what is contained in all of the notices: “Fitch Gilbert and John 8. Owen severally and separately appeal.” They mean, if they mean anything, tbat each, independent of the other, invokes the jurisdiction of tbe appellate court. Tbe bond as to each notice is clearly inconsistent therewith. It is a single obligation for $250. The premise, preceding tbe obligatory clause, uses language as regards tbe occasion there *211 •of, appropriate only to a joint appeal and a single undertaking. “The above named appellants intend to appeal,” etc. 'Snob clause is in perfect harmony .therewith: “Appellants will pay all damages that may be awarded against the appellants, not exceeding $250.” So, while we have numerous .groups of persons, each person with a separate appeal, there .are only as many undertakings as groups. That does not satisfy the calls of sec. 3052, condemning every appeal as “ineffectual for any purpose” unless an “undertaking be executed on the part of the appelant by at least two sureties,” to the effect that “the appellant will pay all costs and damages which may be awarded against him on the appeal, not ■exceeding $250.”

Counsel for appellants advance the idea that a proper construction of a single undertaking, in form to answer for the default of several persons, is that it is one to answer for the default of each, hence a several undertaking, thus satisfying the statute, citing Vandyke v. Weil, 18 Wis. 277. We are unable to see that the doctrine of that and similar cases applies here. It is to the effect that a single undertaking for a single appeal by several appealing jointly, is an obligation to answer for the amount specified therein for all of the defaults, whether joint or several, as regards the matters to secure which the undertaking is given. That is quite familiar, but it comes far short of holding that when two persons appeal separately, either by independent notices or joining in one notice so worded as to give it the effect of two, and give one •undertaking appropriate to a single appeal, such undertaking can by construction be held to be two, each for $250, and thus satisfy the calls of the statute. An obligation to the extent of $250 for the defaults, joint or several, of a number of persons acting jointly of course satisfies the statute. It would hardly seem that rules for construction would be required to discover that, though the early decision seems to have been reached by the aid thereof. But there is no way by which one *212 ■undertaking for $250 can be turned into several suck, without plainly violating the statute.

3. Next it is contended on the part of respondents’ counsel that though the notice of appeal was served as required by sec. 3049, and the record transmitted to this court, no jurisdiction was obtained here for any purpose whatever; and that the defect is not remediable. On the other hand appellants’ counsel just as confidently contend that the failure to execute the bonds required, or to serve the same as the statute provides, does not militate against jurisdiction having been conferred here for some purposes; citing in support of that, Helden v. Holden, 9 Wis. 557; Russell v. Bartlett, 9 Wis. 556; Smith v. C. & N. W. R. Co. 19 Wis. 89; White v. Polleys, 20 Wis. 503; Grant v. Connecticut M. L. Ins. Co. 28 Wis. 387; Branger v. Buttrick, 30 Wis. 153; Ulrich v. Farrington Mfg. Co. 69 Wis. 213, 34 N. W. 89. The effect of those cases is that the mere taking of an appeal by the service of a proper notice and sending the record here does not give the court such jurisdiction as to enable it to hear the cause, but does give it the necessary jurisdiction to enable it to permit the appeal to be perfected by the service of a proper bond, or cure any other defect in the proceedings within the period limited by statute for appealing; and that, if the proper undertaking is executed and filed, but not properly served, the court acquires such jurisdiction as to enable it to hear and decide the cause, the adverse party not seasonably objecting, failure in that regard being deemed a waiver of such service or an estoppel as regards suggesting such failure with effect. In that the court, as will be seen, gave force to the statute in all substantial essentials. Sec. 3052 says that: “To render an appeal effectual for any purpose an undertaking must be executed,” etc. That suggests at once that an appeal may have an existence before the execution of the undertaking, though not for all purposes. The term “any purpose” clearly includes the duty of the clerk below to certify *213 up tbe record, and proceedings bere as regards a bearing of tbe canse. Tbe clerk bas no right to act in tbe matter till be can accompany tbe papers with some semblance, at least, of a proper undertaking under sec. 3052. That is tbe effect of sec. 3050. That tbe former section means as indicated must be tbe case to render it harmonious with sec. 3049, to tbe effect that any appeal wiE be deemed “taken by tbe service of tbe notice of appeal and perfected on tbe service of tbe undertaking for costs, or tbe deposit of money instead, or tbe waiver thereof as hereinafter prescribed.” Tbe waiver mentioned is required to be in writing. Sec. 3051. Consistent with tbe meaning we attribute to secs. 3049, 3050, and 3052, we have sec. 3068, providing that:

“When a party shall in good faith give notice of appeal and shall omit, through mistake or accident, to do any other act necessary to perfect tbe appeal or make it effectual or to stay proceedings, tbe court from which tbe appeal is taken or tbe presiding judge thereof, or tbe supreme court or one of tbe justices thereof, may permit an amendment or tbe proper act to be done, on such terms as may be just.”

So, as said in Grant v. Connecticut M. L. Ins. Co. 28 Wis. 387, when a notice of appeal is duly served in good faith, jurisdiction is at once conferred upon this court as well as tbe trial court for some purpose, i. e., that of permitting tbe appeal to be perfected so that it can be beard. Such jurisdiction is not ordinarily exercised bere in advance of tbe transmission of tbe record hereto, though it may be, and should be when necessary to prevent a miscarriage of justice. Obviously, this court could not proceed to bear a cause upon appeal without compliance with sec. 3052. To do so would be to act in defiance of tbe statute as regards a right wholly statutory. White v. Polleys, 20 Wis. 503, does not go so far as to decide to the contrary of this. It is only to tbe effect that, if the bond is executed in compliance with such section and duly transmitted to this court for tbe benefit of tbe adverse party, tbe cause may proceed to judgment unless such *214 adverse party seasonably objects. That is, tbe party may waive tbe service of tbe undertaking, but not tbe execution thereof and filing tbe same in tbe record. Tbe rule obviously cannot apply to tbis case in any event, since, as we bave seen, sec. 3052 was not complied with at all, since it cannot be said that tbe giving of one undertaking in tbe sum of $250, covering several appeals, is tbe giving of a separate undertaking-in that sum for each of sucb appeals.

4. Next counsel for appellants challenge tbe power of tbe legislature to require security for costs as a condition of invoking tbe jurisdiction of tbis court. They refer to tbe constitutional provision conferring appellate jurisdiction here, and also that part of tbe bill of rights adopted from Magna Carta, providing that, “Every person ought to obtain justice freely and without being obliged to purchase it, completely and without denial, promptly and without delay.” Sucb statutes as those under consideration bave existed in tbe face of similar constitutional provisions for a hundred years or more.. Courts exercised authority of a like nature theretofore, though fenced about by Magna Carta. Tbe subject has bad tbe attention of tbis and other courts, and tbe law in respect to it has been so thoroughly settled that any lengthy discussion thereof anew would seem quite out of place were it not for tbe confidence with which tbe matter is now pressed upon our attention and tbe fact that tbis is tbe second time in recent years that tbe subject has been presented to tbis court.

True, appellate jurisdiction conferred here, within tbe meaning of tbe constitution, cannot be restricted by legislative authority, but sucb jurisdiction has regard to that exercised before tbe constitution was adopted, not to remedies by appeal, which are purely legislative creations. 'The permission to use tbe machinery of tbis court as to sucb a right being purely statutory, it is competent for tbe legislature to prescribe sucb conditions in respect thereto as it sees fit, tbe same as it is for it to withhold tbe right altogether, leaving *215 litigants solely to their common-law remedies. Western U. R. Co. v. Dickson, 30 Wis. 389; Gianella v. Bigelow, 92 Wis. 267, 65 N. W. 1030. The law in that regard was very tersely stated by Mr. Justice RyaN in the first case cited, this language being used: “An appeal is purely a statutory remedy, and unless given by statute the right does not exist.” The idea is this: The hearing of an appeal given by statute is within the constitutional jurisdiction of this court; the creation of a right to a particular method of bringing about a review here, of the decision of the lower court, is within the constitutional authority of the legislature. To invoke the jurisdiction of this court, which exists by constitutional grant, is one thing; the remedy by which it is accomplished is another. The only constitutional remedies guaranteed are those specially preserved, exercisable by common-law writs in their-appropriate spheres.

Nor authorities to the effect that courts were never deemed controlled by Magna Oarta as to requiring security for costs, either in law or equity, we refer to Bradwell v. Weeks, 1 Johns. Ch. 325; Mayer v. Tyson, 1 Bland (Md.) 559; Swift v. Collins, 1 Denio, 659; Dyer v. Dunivan, 3 How. Pr. 135; People ex rel. Fuller v. Oneida Common Pleas, 18 Wend. 652; 1 Dan. Ch. Pr. 35; 3 Bla. Com. 399. The question of whether the constitution has changed that was discussed and decided in the negative in the recent case of Christianson v. Pioneer F. Co. 101 Wis. 343, 77 N. W. 174, 917. Por examples that other courts that have spoken on the subject are in harmony therewith, see Nease v. Capepart, 15 W. Va. 299; Haney v. Marshall, 9 Md. 194; Molt v. T. & R. R. Co. 81 Md. 219, 31 Atl. 809; Gesford v. Critzer, 7 Ill. 698.

As explained in Christianson v. Pioneer F. Co., the provision of our bill of rights, taken from Magna Carta, means no more than it formerly did. It grants no new right, but guarantees one existing at common law. Therefore, when we take the measure thereof by common-law rules, we have its *216 constitutional scope. The burdens which the Magna Carta provision was designed to lift and secure immunity from, bear no resemblance whatever to those legitimate expenses of litigation which we call costs, or security for the payment thereof, to the prevailing party. They were those exactions, common once, when standards of official conduct, as regards judicial administration, were so incomparably lower than in modern times that we can hardly appreciate how they could ever have been deemed justifiable, as they doubtless were. They were bribes, so to speak, demanded and received by officers exercising judicial power in the king’s courts, in the nature of consideration for the use of judicial machinery. In effect, justice was to some extent a matter of bargain and sale. The exactions were not to pay for any legitimate expense, but went to enrich the judicial head, or some one acting thereunder and by his authority. Strange as it may seem, that practice was not deemed to involve any moral turpitude. It was supposed to be to such a degree attributable to sovereign prerogative that the uprooting thereof was accomplished only by a formal relinquishment by the sovereign and a grant to the people, the form thereof being this: “We will not sell the right and justice to any one, nor will we refuse it, or put it off.” Sir Edward Coke’s explanation of the scope of that pledge would seem to have given rise to the phrasing of the idea as we now find it in our own and other constitutions:

“The king, in the judgment of the law, is ever present and repeating in all his courts, ‘Nulli vendemus, nulli negabimus„ aut differemus rectum vel justitiam’ (We neither sell nor deny, nor delay, to any person, equity or justice), and therefore every subject, for injury done him ‘in bonis, in terris, vel personé (in person, goods, or body) by any other subject, be he ecclesiastical or temporal, without any exceptions, may take his remedy by the course of the law and have justice and right for the injury done to him, freely without sale, fully without any denial, and speedily without delay.”

*217 In construing any provision of tbe bill of rights taken from tbe English Charter, it must not be forgotten that no new restriction was intended thereby, but that the sole purpose thereof was to preserve those valuable safeguards against excessive use of sovereign authority that had become a distinguishing characteristic of English liberty. That idea cannot be found better stated than by Cooley, J., in Weimer v. Bunbury, 30 Mich. 201, 214:

“The truth is, the bills of rights in the American constitutions have not been drafted for the introduction of new law, but to secure old principles against abrogation or violation. They are conservatory instruments rather than reformatory; and they' assume that the existing principles of the common law are ample for the protection of individual rights, when once incorporated in the fundamental law, and thus secured against violation.”

It is suggested, as conclusive evidence that the right to use judicial remedies under the common-law system was free and that the provision of our bill of rights referred to was designed to prevent conditions thereof being created here, that appeals in England were always allowed, even to the House of Lords, without any burdens being imposed on the appellant. A more careful examination of the subject would have shown that the right to impose reasonable conditions as to costs and security for costs was never questioned in the English courts. Special favors, it is true, were granted to persons in need thereof, to sue in forma pauperis, upon proof being made that otherwise justice would be denied (1 Dan. Oh. Pr. [6th Am. ed.] 38, 155) ; but generally, costs and security for costs, in some form, in personal actions, were exacted, after the days of Magna Carta. At first the system was somewhat after the course of the old mischievous custom, though shorn of the real wickedness thereof, since the exac-tions were required as amercements in the nature of revenue for the sovereign. The imposition went against the losing *218 party as a penalty: in tíre case of the plaintiff for unjustly bringing the defendant into court; and in the case of the defendant for unreasonably resisting the plaintiff’s demand. 3 Bla. Com. 399. Later by legislation costs were given the-plaintiff, when a prevailing party, but not to the defendant under the same circumstances. 6 Edw. I, c. 1. Subsequently the same privilege was extended to defendants. 23 líen. VIII, c. 15. Soon amercements for the enrichment of the sovereign treasury were abolished. 24 Hen. VIII, c. 8. Laws providing for security for costs naturally followed. By the statutes of 3 Jac. I, c. 8, and 3 Car. I, c. 4, § 4, it was provided that in personal actions, with few exceptions to fit particular cases: “No writ of error should be allowed, unless the party bringing the same, with two sufficient sureties, shall first be bound unto the party for whom the judgment is given, by recognizance to be acknowledged in the same court, in double the sum to be recovered by the former judgment, to prosecute the said writ of error with effect, and also to satisfy and pay, if the said judgment be affirmed, or the writ of error non prossed, all and singular the debts, damages, and costs adjudged upon the former judgment, and all costs and damages to be awarded for the delaying of the execution.” 3 Bla. Com. 411, note. Long before the separation of this country from England Blackstone said in giving the state of the law as it then existed:

“If a writ of error be brought . . . after verdict, he that brings the writ or that is plaintiff in error, must find substantial pledges of prosecution, or bail: to prevent delays, by frivolous pretences to appeal; and for securing payment of costs and damages, which are now payable by the vanquished party in all, except in a few particular instances, by virtue of the several statutes.”

Thus it will be seen that substantially every element in our statutes as to costs and security for the payment thereof, is found in the laws of England as they existed before the Revolution, and that it was never supposed there was anything in *219 Magna Carta inconsistent therewith. By gradual approaches,, so to speak, the doctrine of the civil law in its entirety was-reached and engrafted upon the English system: “Yidus, vic-tori in expensis condemnandus ést” — the vanquished is to be-, condemned in costs to the conqueror. We' inherited the principle thereof as part of the common law. In some form it has found a place in the code of every state of the TJnion that has followed common-law ideas, notwithstanding the adoption at the same time, in the constitutions of such states, of the essential principles of Magna Carta.

We often see it stated that costs are a creature of the statute; that costs were not given at common law. Wisconsin C. R. Co. v. Kneale, 79 Wis. 89, 95 N. W. 248; Parsons, Costs, § 1. That is liable to be misunderstood by not considering that the common law of England is not synonymous with the common law of this country. The former does not include the English statutes. As the only way costs were imposed before such statutes was by amercements for the benefit of the king, or possibly an addition to the verdict or the judgment of the jury (5 Ency. Pl. & Pr. 108), it is right to say costs were not allowed by the common law of England. But the principles of the English statutes amending the common law and existing at the time of our Eevolution, suitable to our condition and in harmony with our constitution and statutes, are a part of the common law of this country. Coburn v. Harvey, 18 Wis. 147; Kellogg v. C. & N. W. R. Co. 26 Wis. 223. As only the principle of the English statutes as to costs and security for costs has been regarded as thus made a part of the common law of this country, the idea that costs are regulated wholly by statute is of course‘true. Nash v. Meggett, 89 Wis. 486, 494, 61 N. W. 283.

In harmony with the law as stated, the writ of error, commonly known as the writ of right, which our constitution so carefully preserved, providing that it shall never be prohib *220 ited (see. 21, art. I), bas uniformly been, beld to be subject to reasonable regulations, including tbe imposition of security for costs. 7 Ency. Pl. & Pr. 827. In Ripley v. Morris, 7 Ill. 381, a general statute requiring tbe filing of security for costs in ciyil actions was beld to apply to one commenced by writ of error. Our statute, sec. 3054, Stats. 1898, requiring security for costs when a cause is removed on writ of error to tbis court tbe same as in case of a statutory appeal, was sustained in Lombard v. Cowham, 34 Wis. 300, as a reasonable regulation of tbe use of tbe writ. That, it was said, was permissible before tbe constitution was adopted, and tbe term therein respecting tbe writ is to be construed witb reference to tbe conditions then existing.

Tbe foregoing quite extended discussion of tbe validity of statutes on tbe subject of costs, and tbe incidents thereof, though going no further than to respond to tbe different phases of counsel’s argument, is probably unnecessary; yet it will be helpful if it shall prove efficient to guard against a recurrence of tbe subject being presented to tbis court for consideration. Tbe treatment of tbe matter in Christianson v. Pioneer F. Co. 101 Wis. 343, 77 N. W. 174, 917, it was thought would finally close tbe matter here; but such, it is seen, bas not been tbe case.

5. Tbe next proposition submitted as fatal to tbe motion to dismiss is that sec. 3052, Stats. 1898, is class legislation, hence contrary to tbe spirit of our constitution and tbe fourteenth amendment to tbe national constitution, prohibiting any state from denying to any person within its jurisdiction tbe equal protection of tbe laws. Tbe authorities relied on in support of that are Williamson v. Liverpool, L. & G. Ins. Co. 105 Fed. 31; Yick Wo v. Hopkins, 118 U. S. 356, 6 Sup. Ct. 1064; Gulf, C. & S. F. R. Co. v. Ellis, 165 U. S. 150, 17 Sup. Ct. 255; Mut. F. Ins. Co. v. Hammond, 106 Ky. 386, 51 S. W. 151. All of those cases, if we understand them, support the opposite view to tbe one advocated by coun *221 sel. They deal with enactments arbitrarily creating classes and imposing upon members of one burdens not borne by persons generally. The idea that a law which applies to all alike, as does the one in question, is such an enactment merely because the circumstances of particular members of the community may be such that the burden of complying therewith is harder for them to bear than for others, has no support in the authorities nor in the principle of equality before the law, which is the fundamental idea of our system of government. The fact that one' person may be poor and another rich is something that the law does not take note of, necessarily. It is for all alike, regardless of wealth or station.

6, Counsel for appellants contend that, if there be not an effective answer to respondents’ motion in any of the points heretofore discussed, the supplemental return to this court— showing that before the motions to dismiss were heard due application was made to the court below for leave to perfect the appeals by filing there an undertaking under sec. 3052 as to each of them, regarding every appellant as standing independently of all others, the granting of such application, the execution of an instrument intended to accomplish that purpose, the service thereof as required by sec. 3049, and the return of the same to this court as required by sec. 3050— cures the defect claimed and renders the appeals perfected for all purposes. That the practice, in any view of the matter, was correct, is sufficiently indicated by what has been said; but it is very clearly shown in Tyson v. Tyson, 94 Wis. 225, 68 N. W. 1015. If a failure to give a proper undertaking in the first instance were to be classed as an excusable mistake or accident, then it was in the power of the court below-to allow the omitted act to be done, as it did, under sec. 3068. If such failure cannot be so classed, but the omission was excusable in any view of the matter, then it is proper for this court to allow the supplemental return with effect, if the new undertaking be sufficient in form, and to deny the *222 ■motions to dismiss with, or without terms according as justice, under all the circumstances, would seem to demand. The cases cited in the early part of this opinion amply demonstrate that. Our examination of the new instrument leads ■to the conclusion that it is in legal effect an obligation in the •sum of $250 as to each appellant; that is, it is equivalent to as many undertakings of $250 each as there are appeals, regarding the number thereof to be equal to the number of appellants. In that view, we see no reason why the fact that there is but one instrument for all, instead of one for each ■appellant, should militate against its efficiency as complying with the statute.

Ordinarily the practice in such cases is to allow the appeal to be perfected in the manner sought here upon terms, but exceptional circumstances may justify or demand that no terms be imposed, as was the case in Tyson v. Tyson. Here there can be no doubt that appellants’ counsel acted in the best of faith in serving the first undertakings. They erred in a matter of judgment. Had their attention been seasonably called to such error it would probably have been corrected without the labor the matter has given to the attorneys on both sides and to this court. It appears that the first undertakings were served on respondents’ counsel December 6, 1900. For nearly two years thereafter they treated the case as properly in this court for a hearing when reached in its order; and the rules in regard to the service of cases and briefs were satisfied. In the meantime several stipulations were made with appellants’ attorneys in respect to the ease, in effect conceding full jurisdiction here. The cause was continued on stipulation twice, on one of which occasions the writing required appellants’ attorneys to pay respond•ents’ attorneys the sum of $100. True, the record shows payment of a less sum, which was probably according to some supplementary agreement, but the effect is the same. -Several supplemental returns were made. One motion was *223 made by respondents’ attorneys to dismiss tbe appeals for want of prosecution, which was disposed of upon the 'theory that the case was here for all purposes. Not till the September term of court for 1902, the fourth term after the first return was filed here, and not till the case was about to be ■set down for argument, was the defect in the appeals called to the attention of the court or counsel on the other side by the making of these motions. Moreover, there is no showing in the moving papers why the motions were not made at an earlier date. Nothing said, of course, militates against the right to make the motions, to secure the benefit of a proper bond and to raise the judicial question; but the situation ■shows fault upon the part of respondents’ attorneys in not moving in the matter at a much earlier day. It would seem that, if there could be a case justifying the withholding of terms for granting the favor to appellants’ attorneys of allowing the supplemental return to stand as effective for the purposes intended, even if the granting of the application in the court below does not remove the matter beyond the discretionary power of this court — which it probably does if the difficulty to be remedied falls under sec. 3068 — other than that the favor shall not cause delay in the final disposition •of the case, this is one. That has been submitted to. It is therefore considered that the supplemental return fully perfects the appeals, and that the motion to dismiss the same should be denied without costs; and it is so ordered.

II.

'JuRISDIOTIOW OR THE TeIAX, COURT.

An important subject remains to be considered before reaching a point where the merits of the appeals can be examined. All questions pertaining to the jurisdiction of this court to entertain the appeals being settled favorably thereto, except for an incidental statement in the original briefs of *224 counsel, tbe next subject calling for consideration, so far as counsel are concerned, would be tbe alleged errors of tbe trial court in tbe exercise of its jurisdiction. Quite independently of sucb incidental suggestion, serious doubt arose during our deliberations as to tbe right of tbe circuit court, under any circumstances, to entertain a suit of tbe nature' of tbis one, as presented by tbe supplemental bill. Tbat concerns, of course, tbe jurisdiction of sucb court of tbe subject of tbe action, and was not waived by going to trial upon tbe merits. It seems, respecting tbe principal defendants at least, tbat'tbe point was not urged below, if suggested, nor presented by counsel bere at first in a way to call tbe attention of tbe court to tbe matter as one likely to be vital to tbe case.

A challenge to tbe jurisdiction of tbe trial court of tbe subject'matter of tbe action is proper at any time; and, without tbe question being urged by counsel. It is not only proper for tbis court, but it is its duty, to malee all investigations necessary to satisfy itself in regard thereto with reasonable certainty. Pollard v. Wegener, 13 Wis. 569; Damp v. Dane, 29 Wis. 419; Butler v. Wagner, 35 Wis. 54; Mathie v. McIntosh, 40 Wis. 120; Meyer v. Garthwaite, 92 Wis. 571, 66 N. W. 704; In re Klein, 95 Wis. 246, 70 N. W. 64; Burnham v. Norton, 100 Wis. 8, 75 N. W. 304; 12 Ency. Pl. & Pr. 187, 190:

“When it appears tbat tbe court has no jurisdiction over tbe subject matter of tbe suit, it will take notice of tbe defect whether objection is made or not, and will dismiss or stay proceedings ex mero motu, and it is its duty to do so without determining any other matter involved in the litigation.”

Tbe instances are very rare where any court has ventured to invade tbe salutary doctrine above stated for tbe purpose of saving a party from consequences, however severe. It would be difficult to assign any justification for sucb an invasion tbat *225 would leave it free from condemnation, as being an act of usurpation, since it goes to tbe question of power. A court is all-powerful within its jurisdiction, but is absolutely powerless in any legitimate sense when acting outside thereof. Notwithstanding that limitation upon the judicial function which cannot be passed without enterings the field of usurpation, and the duty of the judiciary to set, most significantly, an example of submission to law, the call for vindication of right from a plane seemingly beyond the legitimate realms of law, in the strict sense of the term, a plane of mere moral obligation, has sometimes been too strong, it is feared, to be resisted; and in the endeavor to respond thereto, jurisdictional boundaries have been overstepped, actually or in effect (Boone's Adm'r v. Shackleford's Adm’r, 66 Mo. 493)- — the court seeking to justify it upon grounds of es-toppel in pais, or some other, — preventing the party against whom relief is granted from being heard to raise the jurisdictional question. It is doubtful whether a court would be justified under any circumstances in assuming jurisdiction of a subject matter which neither the law gives nor the parties could bestow by consent, by either neglect or refusal to take its bearings in that regard, by the limitations upon its power set by the organic act by which it was created.

With the views above expressed, notwithstanding, as indicated, it seemed that there was practical submission to the power of the trial court in this case by appellants, when the appeals were taken up for decision, after a full argument thereof upon the merits, we were confronted at the threshold of our deliberations by the necessity to determine whether such court had not gone so far in an attempt to do justice as to transgress its jurisdiction. Doubts in that regard became so serious that it seemed that counsel for the respective parties should have a full opportunity to aid the court to the best of their ability in reaching a right conclusion, and to *226 that end tbis question was formulated, definitely covering the subject, and a reargument thereon ordered:

“The property of an insolvent corporation having been placed under the control of a receiver appointed by the court in a winding-up suit, and it being claimed that sucb receiver, in tbe course of bis administration, bas wrongfully lost sucb property or some portion thereof, bis attorneys and others participating in the wrong; is it competent for tbe court to make tbe alleged guilty parties defendants in tbe pending suit with some creditor, or creditors, standing for all persons so circumstanced, as plaintiff or plaintiffs, broaden out the complaint so as to cover tbe new matters by a supplemental bill, litigate tbe same, and include in tbe general decree in sucb suit recoveries against all of sucb alleged guilty parties according to tbe nature or extent of their liabilities ?”

Tbe eminent counsel upon both sides responded to tbe order for a bearing upon sucb question by elaborate, learned, and helpful arguments covering a wide range of principles deemed by them to aid in or control its solution. We have endeavored not to pass over one of tbe learned counsel’s suggestions without devoting thereto that careful study which in any reasonable view of tbe matter it seemed to require to enable us, in tbe end, to arrive at a just conclusion, all tbe time being taken for that purpose which seemed necessary or could be used to any appreciable advantage. We shall not undertake to embody in tbis opinion all of tbe counsel’s points in detail with tbe reasons for our conclusions in respect thereto, but we will endeavor to treat all specially, not involved in and answered by the declaration of some general principles.

Some observations at tbe outset seem proper in view of tbe broad field covered by tbe arguments of counsel and tbe court’s study of tbe subject, respecting tbe scope of tbe jurisdiction of tbe circuit courts; not with tbe idea of declaring anything new, but that we may have a perspective, so to speak, before tbe mental vision as we proceed, of tbe vast *227 extent to wbicb such jurisdiction extends in weighing out justice between man and man. We shall see that, standing where we will and looking where we may, judicial power is present to prevent and redress wrongs. We take a view to the very horizon of our mental perception within the scope of human capacity to violate obligations other than those of a purely moral nature, and the jurisdiction of our circuit ■courts, except as specially restricted by statute within legislative power to do so or by the constitution itself — those exceptions not, however, affecting the matter in hand — is found to occupy the whole field with instrumentalities designed, and as well adapted as human wisdom has been capable of mak'ing them, to execute its function to completeness. Such ■court, subject to the exceptions suggested, has original jurisdiction in all matters, civil and criminal, within the state, together with appellate jurisdiction from all inferior courts, with power to use all writs necessary to carry into effect its orders, judgments, or decrees (Const, art. VII, sec. 8), a jurisdiction early declared by this court to be “greater, probably, than was ever before our time, in a free government, delegated to one tribunal: the united powers of the English King’s Bench, Common Pleas, Exchequer, and Chancery.” How vast that is in its chancery field can best be appreciated by applying thereto the standard of measurement which the distinguished men who have been significant in the development of our system have taught us must be used to span it: “Equity will not suffer a wrong to go without a remedy.” The term “wrong” in the maxim, as before indicated, has here a significance which does not reach violations of mere moral rights. Any other wrong is said to involve a corresponding primary legal or equitable right, with an equitable or legal ■remedy, according to circumstances, for the former, and an equitable remedy for the latter. Pomeroy, Eq. Jur. 424.

In the foregoing the term “jurisdiction” is used in its broad, general sense, — that of judicial power. A court may *228 bave jurisdiction of a particular subject matter, but by settled judicial policy ought not to exercise it. Again, it may,— by tbe settled law, established by its own practice, deemed to be as binding as-the written law — have power in a constitutional sense to adjudicate disputed matters of a particular character, acting by recognized unbending principles of procedure, but not jurisdiction to adjudicate such matters in the particular way attempted. In either case it is common to say of an excessive exercise of authority, that the court is without jurisdiction. If the excess has reference to want of power over the subject matter, strictly so called, the result is void and may be successfully challenged directly or collaterally. If it has reference merely to the judicial method of exercising power, the result is’binding upon the parties to the litigation till reversed or set aside in some of the ways appointed by law. The former is usurpation; the latter error of judgment. That rule is said to be universal, — to apply to the highest court as well as the lowest. The former cannot render a valid judgment outside of its constitutional authority, while its error within the scope of its authority stands on no higher plane than that of the latter, except for the fact that there is no tribunal to which an appeal can be taken to correct it. As Justice BaldwiN, in Voorhees v. Jackson, 10 Pet. 449, 474, put the matter:

“The only difference in this respect between this and any other court is, that no court can revise our proceedings. . . . If not warranted by the constitution or law of the land, our most solemn proceedings can confer no right which is denied to any judicial act under color of law, which can properly be deemed to have been done coram non judice; that is, by persons assuming the judicial function in the given case without lawful authority.”

Applying the foregoing to the question in hand, time need not be spent in demonstrating that there was no want of jurisdiction in respect thereto in the sense of want of power. Upon the face of the complaint and the evidence in support *229 of it, there were many wrongs to be righted. The matter had not passed beyond the control of the court. It had constitutional authority, or, in other words, jurisdiction over such subjects and of the parties. Was judicial power invoked in a proper way, — one which, by settled principles, it was permissible for the court to recognize as legitimate, whether consented to by the adverse party or not ? If that must be answered in the negative, then, irrespective of whether the question was suggested for consideration by appellants, and although the judgment entered may be binding as long as it stands, the trial court obtained no jurisdiction of the subject matter of the litigation and its decree must be reversed on .that ground. The rule is well stated in 12 Ency. PL & Pr. 120, thus:

“Every power exercised by any court must be found in and derived from the law of the land, and be exercised in the mode and manner prescribed by that law. If the court cannot try the question except under particular conditions or when approached in a particular way, the law withholds jurisdiction unless such conditions exist or the court is approached in the manner provided, and consent will not avail to change the provisions of the law in this regard.”

This and other courts have frequently declared that principle this way, in substance: Where the circuit court possesses jurisdiction in the broad sense of the term, but ought not to exercise it in the way invoked, or at all in the given circumstances, it should be deemed, to all intents and purposes, except in the sense of want of power strictly so called, to be without jurisdiction. Where it ought, regardless of the attitude of the parties, to decline to act, it should be deemed, regardless of such attitude, not to have jurisdiction to act. In re Klein, 95 Wis. 246, 70 N. W. 64; Burnham v. Norton, 100 Wis. 8, 75 N. W. 304; Scott v. Whitlow, 20 Ill. 310, 312; Curtiss v. Brown, 29 Ill. 201; Williams v. Detroit, 2 Mich. 560, 585; People ex rel. Davis v. Sturtevant, 9 N. Y. 263; Bangs v. Duckinfield, 18 N. Y. 592; People ex rel. *230 Gaynor v. McKane, 78 Hun, 154, 28 N. Y. Supp. 981. An examination of those cases will demonstrate that, while the term “want of jurisdiction of the subject matter,” strictly speaking, refers to want of power, in most cases in equity it applies either to whether power possessed should be exercised at all, or in the particular way, or under the particular circumstances; and in all of such cases error is deemed to be judicial in the sense that the result is binding till reversed or set aside in some proper way. When there is said to be want of jurisdiction in such cases, the idea intended to be conveyed is that “it would be erroneous to exercise judicial power, and the decree would be reversed on appeal.” Curtiss v. Brown, supra. This remark was made in that case:

“We often find the jurisdiction denied, where the power exists, but ought not to be exercised, and in this sense is the word ‘jurisdiction’ usually used, when applied to courts of chancery. Where there is a want of power, the decree is void collaterally; but where there is said to be a want of jurisdiction merely, it is only meant that it would be erroneous to exercise the power, and the decree would be reversed on appeal.”

In Bangs v. Duckinfield, supra, the court said:

“There are, I apprehend, few cases in which the position [that the decree is void for want of power] could be .affirmed in respect to a court possessing general jurisdiction in law and equity, on grounds relating to the subject matter of the controversy.”

And in Williams v. Detroit, supra, the rule was declared to be that:

“When the subject of the suit is embraced under any of the appropriate heads of equitable jurisdiction, the court will take cognizance of it, notwithstanding there may be a remedy at law, or other circumstances exist, which would induce the court to refuse to' entertain jurisdiction in the particular case, unless the defendant raises the objection by demurrer,, or claims the benefit in his answer.”

*231 Tbe foregoing leads to tbis: Tbe circuit courts of tbis state bave, under tbe constitution, succeeded to all tbe jurisdiction formerly exercised by courts of law and courts of chancery as well; and though old forms of enforcing judicial remedies have been abolished, that does not mean, necessarily, that tbe remedies have been abolished. Tbe forms have ceased to exist, but substituted therefor and in place of all we bave one form of remedy, denominated a “civil action.” Sec. 2600, Stats. 1898. "Whether a plaintiff declares in equity or at law, or if at law declares in respect to matters ordinarily cognizable by a court of equity, so long as tbe subject matter is within tbe power, strictly so called, of tbe court to adjudicate it, does not generally involve any question of tbe jurisdiction of tbe subject matter or question of whether tbe complaint states a cause of action, or any other question not subject to waiver by failure to raise it by demurrer or answer or which is not so waived by going to trial upon tbe merits without objecting other than by a demurrer ore tenus. Becker v. Trickel, 80 Wis. 484, 50 N. W. 406; Sweetser v. Silber, 87 Wis. 102, 58 N. W. 239; Hoff v. Olson, 101 Wis. 118, 76 N. W. 1121. Tbe question of whether principles of equity jurisprudence are involved in such a case and can be applied therein, involves a question of practice, strictly speaking. Martin v. Martin, 112 Wis. 314, 317, 87 N. W. 232, 88 N. W. 215.

Applying tbe foregoing here, there is good ground for bold-ing that there is no jurisdictional question in any sense of tbe term that should be considered at tbis stage of tbe litigation, barring tbe subject of whether the statutes (secs. 3216 and 3239, Stats. 1898) in effect prohibit an action being reorganized as tbis was, — which will be considered later. But, as before indicated, a departure from established practice may be deemed so important as to be legitimately regarded as jurisdictional error to the extent that, though not available to avoid the judgment as the result of an excess of *232 power, it may be raised by tbe adverse party for tbe first time on appeal as a ground of reversal, or tbe court may and ought to take notice of it — whether insisted upon by such adverse party or not, and even if such party expressly waives it — and reverse tbe judgment upon that ground alone. That is recognized in Livingston v. Livingston, 4 Johns. Ch. 290, where Chancellor BjsNt suggested the power of waiver in such cases as exercisable as a general but not as a universal rule. In Williams v. Detroit, 2 Mich. 560, it was said:

“It is obvious there must be exceptions to the rule. Otherwise, every question which could be litigated at law, might be brought into a court of chancery for adjudication, if both parties should consent thereto.”

True, and so any number of questions between any number of parties, so long as such questions were proper, in any view, for judicial determination, might be so presented, and this court, notwithstanding its power of superintending control, would be powerless to compel observation of those orderly methods prescribed by the unwritten and written law as the embodiment of judicial and legislative wisdom for the highest attainable degree of perfection in the administration of justice: all semblance of a definite system would be lost sight of and the confusion of things would fatally affect the ability of trial courts, and appellate courts as well, to arrive at the real truth and justice of disputed matters with due regard to the convenience of litigants and the safeguarding of their rights. In that view the judicial rule should be firmly applied, suggested in Meyer v. Garthwaite, 92 Wis. 571, 66 N. W. 704, and Burnham v. Norton, 100 Wis. 8, 75 N. W. 304, that while a trial court, though possessing power and jurisdiction in the general sense, ought not under the circumstances to exercise it, such exercise, whether by consent of the parties or not, is to be deemed, for the purposes of a reversal upon appeal, akin to total want of *233 jurisdiction of the subject matter in the broad sense of the term.

It was the purpose of the court in framing the question for counsel, to draw their attention upon the reargument to the suggestion on the main inquiry, of whether the circuit court possessed jurisdiction of the subject of this action in the sense of that term used in the closing lines of the last paragraph. Erom the arguments of counsel it is not clear that they fully comprehended the import of the question, though the numerous points presented by them in the main hear more or less upon the vital point of uncertainty in respect thereto. Counsel upon the side of appellants do not wholly agree between themselves as to the nature of the defect in the proceedings. It is referred to on the one hand as a defect in procedure, and upon the other as a total want of jurisdiction because in effect prohibited by statute. Appreciating, during the argument, that a defect in a mere matter of procedure is generally waived by not seasonably insisting upon it, and that it does not go to the jurisdiction of the subject matter other than in an exceptional sense, circumscribed within very narrow limits, when the point is not raised specially in the trial court, it was denominated a defect in jurisdiction of the subject matter, because, first, judicial power over the subject, proper to be litigated in this form of action, is dependent upon and wholly given by statute, and does not include the matter in controversy; and, second, the proceedings adopted for vindicating the rights claimed to exist are so utterly foreign to the practice of courts and inconsistent with the status of the parties and the property sought to be recovered in the form of money, that appellants should not be compelled to submit to it, nor should the court in any event permit it. This latter ground, at least, is within the domain of practice, hut suggests such an abuse of it as to amount to- a defect of jurisdiction of the subject matter, under the doctrine already discussed.

*234 To support tbe proposition last suggested it is insisted tbat there are no precedents to be found in the books, of any suit exactly like this, one where the creditors have been permitted, in a winding-up action, — upon its being alleged that the court’s receiver and others, by various moans, including frauds upon the court,- have converted assets of the insolvent to their own use under the forms of law, in part execution of a collusive agreement entered into by them before the receivership proceedings commenced, such commencement and the final payment of the receiver and his legal assistants for their services being also in part execution of such agreement, which in the whole had in contemplation the conversion of all of the property constituting the insolvent’s estate, — to make such alleged guilty parties defendants and to redress the wrongs committed by them, enforcing by means of money judgments the restoration to the court’s control for the benefit of creditors of an equivalent for the property so wrongfully appropriated. True, the suit is novel in character, but so are the alleged circumstances giving rise thereto. If, before a court of equity could take jurisdiction of a principal subject, complicated by numerous incidental matters germane thereto, it were always obliged to test its authority by precedent, in any other sense than to refer thereto as illustrative of principles to be applied, it would often find itself incompetent to settle a controversy without a multiplicity of suits or to grant relief at all adequate to the nature of the case. The scope of equity jurisdiction is by no means closely fenced about by precedent. It it were, there could be no further development to meet new conditions as they arise. Certain principles in equity jurisdiction are established, and dominate in the administration of justice in that field with as much certainty as do principles upon the law side, so to-speak, of the court. But mere precedents are of no avail except to illustrate the extent to which principles have been applied. The textwriters disagree, in some respects, in the *235 manner of stating that rule, but are in harmony in this: While new principles are not to be added to those long established for the government of equitable remedies, the rules, not the precedents, are to control. There is no vitality in precedents; there is in rules. They are susceptible of expansion along every line necessary to reach new conditions. The ingenuity of man in devising new forms of wrong cannot outstrip such development. In all situations and under all circumstances, whether new or old, the principles of equity will point the way to justice where legal remedies are infirm. Precedents will be a constant guide, but never a bar. Where a new condition exists, and legal remedies afforded are inadequate or none are afforded at all, the never-failing capacity of equity to adapt itself to ..all situations will be found equal to the case, extending old principles, if necessary, not adopting new ones, for that purpose." That is a very old doctrine. It will be found declared in the decisions of this and other courts. Lord Eedesdaxe’s statement of it in Bond v. Hopkins, 1 Sch. & Lef. 413, 429, has been adopted by eminent textwriters as being so accurate and clear as to leave little or no room for improvement:

“There are certain principles, on which courts of equity act, which are very well settled. The cases which occur are various; but they are decided on fixed principles. Courts of equity have, in this respect, no more discretionary power than courts of law. They decide new cases as they arise by the principles on which former cases have been decided, and may thus illustrate or enlarge the operation of those principles ; but the principles are as fixed and certain as the principles on which the courts of common law proceed.”

So, it is said, grantable relief in equity, the case falling within its principles, is limited only by the primary right and those so germane thereto as to be deemed properly connected therewith for the purposes of the litigation, or the primary wrong, including those incidental thereto and proper to be redressed therewith.

*236 “It has never placed any limitations to the remedies it can grant, either with respect to their substance, their form, or their extent; bnt has always preserved the elements of flexibility and expansiveness, so that new ones may be invented, or old ones modified, in order to meet the requirements of every case, and to satisfy the needs of a progressive social condition, in which new primary rights and duties are constantly arising, and new kinds of wrongs are constantly committed.” 1 Pom. Eq. Jur. § 111.

Mr. Pomeroy, in those few lines, most fittingly pictured the nature and scope of equity power. Though no precedent may be at hand in a given situation, since principles of equity are so broad that the wrong involved need not go without a remedy, its doors will swing open for the asking, and a new precedent be made, an old principle again being illustrated. Applying that to the matter in hand, if it falls within some one of the well-recognized heads or principles of equity, we need not hesitate to sustain the jurisdiction of the circuit court because there are no precedents to go by, even if the claim in that regard be borne out by the facts.

The conclusion reached in the last paragraph suggests” the next subject to be treated. Does the matter in hand, on principle, belong within the field of equity jurisprudence ? That suggests, as a minor question, What is the dominant purpose of this litigation? That is governed by a few elementary principles. It is the settled law that the property of a corporation in a state of suspension because of insolvency, constitutes a trust fund for the benefit, principally, of its creditors, so that its officers cannot deal therewith to their personal advantage. Their status in such circumstances is that of trustees for the creditors, subject, however, to their right to deal with the property, until taken into the possession of the court, as any other debtor might deal with his property, excepting, however, the disability as regards special benefits to themselves. Hinz v. Van Dusen, 95 Wis. 503, 70 N. W. *237 657; Slack v. N. W. Nat. Bank, 103 Wis. 57, 79 N. W. 51; Marvin v. Anderson, 111 Wis. 387, 87 N. W. 226. Until by proper proceedings the corporation shall have been deprived of its liberty to deal with its creditors, it may, as before indicated, pay one of them in preference to another; but when so deprived by the remedy of sequestration, in an action where such remedy is appropriate, the effect thereof is to impress upon its property a trust for creditors, subject to valid liens thereon, and any interference with such property thereafter in violation of the trust is unlawful. In such circumstances every person in possession of any part of the trust property is in a proper sense a trustee, and subject to be dealt with accordingly. That has become elementary. A receiver, appointed by the court to take charge of such property, by virtue of his office succeeds, for the benefit of creditors, to all the property and all the causes of action belonging to the corporation, in its right, and to all corporate property transferred by it in fraud of creditors, the transferee participating in the fraud, in the right of the creditors themselves; and he becomes, as holder thereof, trustee for such creditors. High, Receivers, § 315.

The last-mentioned feature of the status of a receiver is not always recognized, and for that reason it is sometimes suggested, as in this case, that the right to recover property transferred by a corporation in fraud of creditors is a right of creditors only, — does not pass to the receiver in a winding-up proceeding, and cannot be vindicated in the receivership action. That overlooks the fact that a transfer in fraud of creditors is deemed, as to them, to leave the property subject to their claims substantially as before, that such property constitutes a part of the trust fund for general creditors, and as the entire trust must necessarily be worked out through one proceeding, every holder of property of the corporation, and every holder of property in the right of a corporation, but in fraud of creditors, is, as to them, the pos *238 sessor of a part of the fund, and is, as such, a trustee and liable to account as such in tbe action. The true doctrine on this subject, as applied to an insolvent corporation in a state of suspension, is well stated in Gluck & Becker on Eeeeivers of Corporations, § 58, in these words:

“Property — and by this is meant any conceivable kind— may have gone beyond the recall and reach of the corporation itself, and yet, by reason of the fraud practiced, may still be subjected to the claims of creditors and the rights of stockholders, under the familiar rule that fraud vitiates nearly, if not all transactions. Such property, so far as the creditors and stockholders are concerned, still remains a part of the trust estate and therefore a part of the assets of the corporation. There is no sound reason why the court cannot marshal those assets as well as other assets of the corporation for the benefit of the same parties.”

See, on the same point, Pittsburg C. Co. v. McMillin, 119 N. Y. 53, 23 N. E. 530; Rudd v. Robinson, 54 Hun, 347, 7 N. Y. Supp. 535; Oneida v. Thompson, 92 Hun, 16, 37 N. Y. Supp. 889; Cummings v. Am. G. & S. Co. 87 Hun, 598, 34 N. Y. Supp. 541; Proctor v. Sidney S. B. & F. Co. 8 App. Div. 42, 40 H. Y. Supp. 454; Hayes v. Kenyon, 7 R. I. 142; Monitor F. Co. v. Peters, 40 Ohio St. 575; Chicago & A. B. Co. v. Fowler, 55 Kan. 17, 39 Pac. 727; Alexander v. Relfe, 74 Mo. 495; Thompson, Corp. §§ 3562-3564; 2 Morawetz, Priv. Corp. 867. The authorities cited are to the effect 'that all the assets in which the creditors of the insolvent corporation are entitled to share equally, whether the same are under the control of or have passed from the corporation, constitute a trust fund, and every one holding any part of the same in the capacity of a trustee, whether of an express trust, in any sense, or in any trust capacity known to the law, may be charged in a single action for the conservation of the whole for the use of all the beneficiaries.

Much has been written on the subject under discussion in recent years, but nothing has been really added to what was *239 decided in Hurlbut v. Marshall, 62 Wis. 590, 22 N. W. 852, which followed the decisions in New York under a statutory system similar to ours. The court there said, in effect, that in a suit of this kind all officers, directors, stockholders and all other persons who shall have taken and carried away and converted property or funds of the corporation wrongfully, are trustees for the corporation, and remotely for creditors, and may be compelled in the winding-up suit to account therefor as parties defendant. In the recent case of Williams v. Brewster, 117 Wis. 370, 93 N. W. 479, all previous cases on the subject were collated and discussed. It would seem a work of supererogation to go over the subject, 6r any branch of it again. It is sufficient to state the doctrine, which is as old as the system found in our statutes and long antedates its adoption here. Such doctrine is this: The primary purpose of a suit being to wind up an insolvent corporation and distribute its assets ratably among its creditors, the enforcement of all liabilities of officers and stockholders to the corporation, whether created by law or otherwise, and all liabilities of directors and stockholders to creditors created by law, are germane to the main purpose of the litigation and not only may be joined therewith as a part thereof under the established rules of equity jurisdiction, but, under the scheme of the Code for working out the various'liabilities in which creditors of a corporation as a class are interested, must be so joined, and the liabilities of all others to creditors, of a trust nature, may be so joined.

The rule which, independently of the statute, charges an officer of a corporation who has dissipated, wrongfully, a part of the trust fund as a trustee thereof and renders him liable to account accordingly as a party defendant in the action, must, of necessity, charge any other person who has obtained property of a corporation in fraud of creditors as a trustee thereof. So far as they are concerned, the property belongs to the trust fund for the payment of the debts of the corpo *240 ration, tbe same in tbe one case as in tbe other. Tbe fact that in tbe one case tbe liability is to tbe corporation primarily, and in tbe other primarily to tbe creditors, makes no difference. The winding-np suit is to be regarded as impounding all such liabilities for tbe benefit of all tbe creditors. If that were not so, while creditors as a class were participating in tbe distribution of tbe assets acquired in tbe right, of tbe corporation, individual creditors would be enforcing liabilities of persons not officers of tbe corporation who obtained property from it in fraud of its creditors. Tbe orderly way, and tbe only way consistent with our system, as the court has repeatedly declared, is to treat all who have, as to creditors, directly or indirectly obtained possession of corporate property wrongfully, as liable to account therefor as parties defendant, after tbe manner of trustees.

Some difficulty has seemed to exist in determining who are and who are not proper parties defendant in such a suit according to tbe foregoing doctrine, because of tbe use of tbe term in Hurlbut v. Marshall, “if the officers, directors or stockholders, or any one else have,” etc., conveyed or carried away any part of tbe trust fund; and tbe language in Arthur v. Willius, 44 Minn. 409, 413, 46 N. W. 861, “The proceedings are intended to be so elastic as to be susceptible of development during their successive stages of progress, as to reach not only all tbe corporate assets, but also all liabilities of stockholders and others so far as necessary for tbe payment of creditors.” That language was used in respect to the proper parties to bring into tbe litigation as defendants. No serious difficulty need be experienced when it is comprehended that tbe subject of tbe litigation in tbe whole is the gathering in of tbe parts of a trust fund and the administration of such fund,.and that tbe theory is that tbe fund is impressed with tbe trust for all purposes of tbe suit as soon, at least, as sequestration has been effected, and till tbe same is turned over to the court or its officers tbe holders *241 thereof are in the nature of trustees and liable to account as such. This, of course, does not include mere debtors of the corporation. Neither the language in Hurlbut v. Marshall, nor that in Arthur v. Willius, was intended to be so understood. If it were otherwise, some evidence thereof would be found in subsequent cases. The result of the decisions on this branch of the case leads to the conclusion that, all the liabilities in this litigation are legitimately to be considered as parts of one trust fund held for’ the time being by many persons chargeable therewith as trustees,' the whole, when gathered into the control of the court, to be distributed among the creditors of the defendant corporation as cestuis que trustent; that none of the persons charged occupy the status of mere creditors of the corporation or of any one else.

We have now reached a point where it seems that when this litigation started and when it was reorganized into its present form, the subject to be dealt with in a physical sense was a trust fund. There was then a trust. There were trustees holding the trust fund subject to the order or decision of the court, — to that extent equitably, in any event, bound to execute the trust. There were creditors, a class of persons who were the equitable owners of the trust property — cestuis que trustent within well-settled principles — equally interested in the primary right to have the trust fully executed. Where was to be found the remedy to enforce that right? Unity of procedure was necessary to avoid a multiplicity of suits. The right was purely of an equitable character. Does it not follow, necessarily, that the only jurisdiction to cope adequately with the matter was that of equity % The doctrine is elementary, that where the remedial right is equitable the remedy is in equity and. nowhere else. So the administration of trusts was, as a rule, never entertained by courts of law. Their machinery and methods are entirely inadequate for the purpose. Equity jurisdiction is exclusive in such mat *242 ters in the absence of any statutory regulation of the matter. 22 Ency. Pl. &Pr. 91; 1 Perry, Trusts, § 17.

“All actions for the establishment of the fiduciary relation, for the execution and enforcement of trusts, or of the obligations arising out of the trust relation, and for the investigation and adjustment of differences between the parties to a trust, are within the exclusive jurisdiction of equity,” except as modified by statute or special rules of court. “This rule includes, not only express trusts, but also trusts arising by implication of law/’ 2 Beach, Trusts and Trustees, § 150.

It is not to be understood by the foregoing that no action can be maintained by a cestui que trust in any circumstances against a trustee of any sort except in equity. Such actions may be brought, are brought, under a very great variety of cases. The purpose thereof, though, is not to establish and administer or enforce a trust. That is a special field of jurisdictional activity which originated and took its form in courts of chancery and has always been deemed peculiarly a function of such courts. In 27 Am. & Eng. Ency. of Law (1st ed.) 271, the law on the subject, deduced from a multitude of authorities, is stated thus:

“The execution and enforcement of trusts and trust obligations, the adjustment of disputed rights under them, the investigation and settlement of accounts between parties in confidential relations, the establishing of the existence of a fiduciary relationship, are questions which fall naturally within the primary and exclusive jurisdiction of chancery courts.”

What has been said would seem to conclusively answer in the affirmative the inquiry as to whether the subject of this action, in its entirety, must be classed as one governed by principles of equity, and be dealt with in the manner attempted, unless the long line of decisions of this court in respect to the matter, pertaining to winding-up suits, either were wrongly decided or do not extend to persons not officers *243 ■or stockholders of the corporation who, wrongfully as to creditors, have become possessed of the trust fund or some'part thereof so that they may be charged with liability therefor ■as defendants in the action; or unless bringing into the litigation, as defendants, the receiver and his alleged guilty participants in the wrongs complained of, as they were brought in, and the litigation of the alleged matters in respect to them, was a fatal invasion of a statutory proceeding or such a prejudicial departure from established methods of dealing with such matters as to require the court to condemn the proceedings as fatally tainted with jurisdictional error.

We have now arrived at a point where propositions suggested by counsel for appellants challenge special attention. The following are so dependent upon one of them that they can best be considered together:

A winding-up suit under the Code, with the sequestration feature, is a new remedy given by statute.

Being purely statutory and in derogation of the common law, the legislative enactment authorizing it should be strictly construed.

There is no power of sequestration independent of the statute. Such being the case, every feature of this suit for which justification cannot be found in the statute, evinces a jurisdictional defect.

If the first of such propositions falls, all must fall with it. True, without disclaiming judicial power in the matter, it is laid down by textwriters, and in many judicial opinions, that the general jurisdiction of courts of equity, independently of the statutes, does not extend to the sequestration of the property of a corporation, — its destruction, so to speak, as regards the exercise of its franchise. High, Eeceivers, § 288. But. the remedy by sequestration, as formerly understood, is not a suit, but a means in a suit, ancillary in character, of rendering the purposes of the litigation effective, like the remedy by attachment in an action at law; or it was a means *244 to enforce a decree in equity, like an execution to enforce a judgment at law. Tbe instrument formerly used was tbe writ of sequestration. It lias been superseded or rendered useless, in most jurisdictions at least, in tbis country, by a statutory method of sequestration, but tbe name and tbe nature of tbe remedy have not been changed. It is not improbable that tbe old method of sequestration could yet be resorted to if necessary. Many courts in tbis country bave so held, and some bave held to tbe contrary. A full discussion of tbe subject may be found in tbe text and bote thereto in 19 Ency. Pl. & Pr. 542. We need not go into tbe question.. It is enough for tbe matter in band that tbe right of sequestration in a suit of tbis kind, either under tbe statute or independently thereof, according to tbe holdings of tbis court on tbe subject since 1860, at least, exists; that it goes only to ousting tbe corporation from tbe possession and control of its assets; and that tbe remedy is not necessary nor used in respect to any of tbe numerous liabilities to creditors in such an action, which tbe corporation itself could not enforce. No one on reflection, it would seem, would venture to assert that tbe rights of creditors of an insolvent corporation to treat its property as a trust fund primarily for their benefit, and to a remedy in equity to administer tbe trust, are dependent on tbe statutory remedy or any other remedy of sequestration. Tbe trust-fund doctrine itself is purely a judicial creation. 8 Thompson, Corp. § 2951. That author suggests, as tbe originator of it, Mr. Justice Stoet, and tbe occasion of its incorporation into tbe jurisprudence of tbis country, or tbe initiation thereof, tbe decision in Wood v. Dummer, 8 Mason (U. S.) 308, decided in 1824.

Can there be any doubt that, if there were no statutory aid in tbe matter, courts of equity would bave power to deal with any kind of a trust fund, effectually protecting tbe interests of all parties therein, and in a single action bringing all of them before tbe court ? There is no such thing under *245 tbe statute, nor was there at common law, as a suit or action, so to speak, of sequestration. There was and is a judicial remedy in equity to enforce a trust in favor of creditors respecting the property of an insolvent corporation, and in aid thereof we have the sequestration remedy afforded by the statute. This court early took most advanced ground on the subject of whether the equity power of the court in such matters was dependent upon the statute. Adler v. Milwaukee P. B. Mfg. Co, 13 Wis. 57; Nazro v. Merchants’ Mut. Ins. Co. 14 Wis. 295; Coleman v. White, 14 Wis. 700; Merchants’ Bank v. Chandler, 19 Wis. 434; Terry v. Chandler, 23 Wis. 456. At the time of the early decisions the only suggestion in the statutes of a remedy to sequestrate the property of a corporation was by petition to the court in an action after the return of an execution, upon the judgment therein, unsatisfied. The statute read as follows:

i

“Whenever a judgment shall be obtained against any corporation incorporated under the laws of this state, and an execution issued thereon shall have been returned unsatisfied, in whole or in part, upon the petition of the person obtaining such judgment, or his representatives, the circuit court within the proper county may sequestrate the stock, property, things in action, and effects of such corporation, and may appoint a receiver of the same.” Sec. 18, ch. 148, R. S. 1858.

When Adler v. Milwaukee P. B. Mfg. Co. was before the court, it was insisted that the statutory method of obtaining sequestration was exclusive, and that it was not by action, but by petition. Some uncertainty existed as to whether the statute on the subject was sufficiently definite to be enforcible. This court, after a thorough review of the subject, held as indicated in the following language:

“From this view of the general powers of courts of equity-to manage and control the affairs of failing and bankrupt corporations it becomes a matter of very little practical importance whether . . . sections 18 and 19 of chapter 148 *246 of the revision, of 1858 [now sec. 3216, Stats. 1898] are operative or not. If operative they are in affirmance of the law as it was previously understood; if inoperative, no substantial change is occasioned. If they can be enforced, they only go to strengthen the powers which courts of equity heretofore possessed, to remove doubts, and to render the rules by which such proceedings are governed more stable and undeviating.”

Our statute was adopted verbatim from New York, and the-courts there early held that a bill in equity, according to the practice in vogue in this state since the decision of the case-to which we have referred, was proper, irrespective of the statute on the subject. The same difficulty was experienced there as here, in respect to the real purpose of the statute makers,, as will be found by reference to Judson v. Rossie G. Co. 9 Paige, 598. In High, Receivers, § 298, the statutory remedy,, so called, of sequestration is referred to as a “right which is given by statute in many if not in most of the states; and it may be regarded as an extension or enlargement of the general jurisdiction of courts of equity.” It will be noted that in the early case decided in this state it was held that the statute did not give any right not possessed before. In Hanson v. Davison, 73 Minn. 454, 461, 76 N. W. 254, under a system the same as ours, the court referred to the statutes on the-subject in effect thus:

They indicate and regulate to some extent the remedy, leaving to the court the duty of making it effectual by an application of the principles of equity jurisprudence:

We should say in passing, that after the early decisions in this state were made, to which we have referred, the statute-was changed by adding the word “action” after the word “petition” so as to make the same conform to the judicial policy of the state.

Enough has been said on this subject to indicate clearly that it long since ceased to be an open question here, as to-whether the sequestration feature of our statutes in respect *247 to insolvent corporations is anything more than an aid to the power previously possessed hv courts of equity, if even that. It has been common to speak of a winding-np suit as a statutory action, but that came about because of statutory features or aids: by no means because the remedy afforded creditors, to treat the property of an insolvent corporation and other liabilities as a trust fund for their benefit, was originated by statute.

Counsel for appellants say that the plaintiffs could act only in the right of the receiver, and as he could not pursue' the winding-up action they have not the capacity to do so. That proposition primarily goes to the legal capacity to sue, and would have been good ground, if true, for a demurrer to the amended complaint. Since no such demurrer was interposed, and the defect, if there be one, appears on the face of the complaint, it was of course waived. Moir v. Dodson, 14 Wis. 279; Smith v. Peckham, 39 Wis. 414; Wood v. Union G. C. B. Asso. 63 Wis. 9, 22 N. W. 756.

Viewing the proposition in its jurisdictional aspect — that of whether the reorganization of the action so as to permit it to proceed as it did was such a violation of established practice that it should be condemned on that ground alone — we are unable to perceive why respondents should not pursue the winding-up action because the receiver could not. Counsel cite to our attention authorities to the effect that a receiver cannot institute a winding-up action; that if a receiver sues in the progress of administering his trust, as he obviously may in many situations, he must use the same remedies as any other party. That is, if the cause of action is equitable he must sue in equity, and if at law he must institute a legal action; that a receiver cannot prosecute for the collection of a penalty upon an official bond of the person whose property he is appointed receiver of, because the creditors are not bem eficially interested in such a penalty, and that a winding-up suit must be brought by one entitled by statute to bring it. *248 How any of those propositions, if correct, support the idea that because a receiver cannot prosecute a winding-up action the creditor cannot, is not perceived. The logic indulged in by counsel would seem to be that because a party not entitled to prosecute a particular suit is not entitled to do so, tbe party so entitled cannot. Certainly, we are not called upon at this late day to declare that creditors of an insolvent corporation may institute an action to administer its property primarily for their benefit, and use therein all the machinery provided by law to make such action effective, including that for sequestering the corporate property, — taking it from the corporate control into that of the court. The receiver never institutes such an action, nor does he prosecute it, except in the name of the creditors, by their consent, and under the order of the court. The action is the creditors’ action, when brought by them, from start to final judgment, the purpose thereof being to bring all the property of the corporation, and all property, whether belonging to the corporation or not, to which its creditors on the basis of equality have a right to look for the payment of their debts, into one fund, and to administer the same primarily for their benefit. It may, and necessarily must, be pursued to the end by the equitable owners of the fund. The fact that the receiver cannot pursue the action only argues that the creditors may and must. In their names the trust fund must be brought under the control of the court. If a judgment in the action for the recovery of property or its value be entered, it is to be executed in the names of the plaintiffs, not that of the receiver, the proceeds, however, remaining under the control of the court. The office of the receiver is administrative from beginning to end. Lyman v. C. V. R. Co. 59 Vt. 167, 180, 10 Atl. 346. He can institute suits which appertain to such duties. The creditors cannot, without violating established practice, bring such suits. So it seems that the cestuis que trustent, the creditors, and the receiver, have separate and'well-defined spheres of *249 action. All that appertain to tlie establishment and enforcement of the trust belong in that of the former; all that appertain to the mere administration thereof belong in that of the latter. So to say that because a receiver cannot institute or prosecute an action of this hind the creditor cannot, is clearly a non sequiiur.

Again it is said that a person colluding with the receiver in wasting the trust fund cannot be made a party to a suit originally commenced, and called to account in that way: (a) because there is no authority for such practice in the statutes; (b) because the receiver is not a trustee for creditors; (c) because only specific property could be followed in any event, and that, as shown by the complaint, not being attainable, there is no remedy. We will consider each of such propositions.

a. We have already shown that the statute is not a limitation upon the equity power of the court to enforce a trust where the subject of the trust is the property of the insolvent corporation. It is rather an extension of such power, if any were needed, so that, under general principles of equity jurisprudence, in a suit to establish a trust or to enforce it, every person holding any part of the trust fund in the capacity of a trustee in any legitimate sense, may be made a party defendant. We need not look into the statute for authority to do so.

b. The idea that the receiver is not a trustee for creditors seems to have no merit. It springs from the idea that a receiver is the agent of the court — “the arm of the court,” as the term is often used. But he is not the trustee for the court in any legitimate sense. Neither the court nor its receiver has any real interest in the property to be administered. The legal title which vests in the receiver is in trust, not for the court, but for those having the equitable title, who, in a case' of this kind, obviously, are primarily the creditors. So, while he represents the court in the sense that he derives his power from the court and acts for the court, he represents all the *250 parties entitled, primarily or otherwise, to tbe trust fund, and is a trustee for them, and is so treated in all tbe authorities. Atchison v. Davidson, 2 Pin. 48; Henning v. Raymond, 35 Minn. 303, 29 N. W. 132; Haxton v. Bishop, 3 Wend. 13; Curtis v. Leavitt, 15 N. Y. 9, 44; Libby v. Rosekrans, 55 Barb. 202; High, Receivers, § 314; Beach, Receivers, § 667; 23 Am. & Eng. Ency. of Law, 1065. The law on this question, as it is found generally laid down in the books, is not anywhere more tersely stated than in the early case decided in this court and above cited, where it is said: “The property, to all intents and purposes, is the property of the creditors; and the receiver holds the property and assets in trust for the' creditors, as the agent of the court.”

c. We fail to see how the doctrine — that when trust property has lost its identity as such and there is no property into which it can be traced and which can be said to presently include it, when there is no specific thing which can be pointed to as the subject of the trust, in a controversy between the' beneficiary and debtor of the trustee for the payment of his claim out of such debtor’s property, the trust must be deemed to have perished with the destruction of the identity of the' subject thereof — changes the status of such beneficiary as regards such property’to that of a mere creditor, as held in Nonotuck S. Co. v. Flanders, 87 Wis. 237, 58 N. W. 383; nor how the general doctrine, that when trust property has-changed in form so as to be impossible of identification the cestui que trust cannot claim any specific thing as forming the subject of the trust, — applies to this case, or leads to the-conclusion that a destruction of the subject of the trust terminates the trust-relation not only as to the property but as to the beneficiary. True the court, in the Nonotuck Case, quoted with approval from Little v. Chadwick, 151 Mass. 110, 23 N. E. 1005, these words: “Wien trust money becomes so mixed up with the trustee’s individual funds that it is impossible to trace and identify it as entering into some *251 specific property, the trust ceases. Tbe court will go as far as it can in thus tracing and following trust money; but when, as a matter of fact, it cannot be traced, the equitable right of the cestui que trust to follow it fails.” But the words “the trust ceases,” and the words, “the equitable right of the cestui que trust to follow it fails,” refer, not to the destruction of the trust relation when once established between the trustee and the cestui que trust, and disability of the latter to-compel the former to account, but to disability to claim any specific property as constituting the subject of the trust. The-trust fails only in respect to there being property impressed by a trust and recoverable in specie. It would be a strange doctrine to promulgate, that a trustee, by destroying the trust fund, could thereby terminate his trust in all respects and the-cestui que trust have neither a remedy to reach the specific-property, nor one to compel the trustee as such to account for the value thereof. We assume, when counsel say there is no -remedy, that they mean there is no remedy in equity. They cannot mean that there is no remedy at all. The mere statement of the matter would seem to so exhibit the infirmity of the proposition suggested as to leave little justification for further considering it. Property impressed with a trust retains its character in that regard in the hands of the trustee regardless of any change in form which leaves the identity of' it in any legitimate sense discoverable, and also in the hands of any other person claiming under the trustee, with notice of the trust, till such trust shall have been executed. 27 Am. & Eng. Ency. of Law (1st ed.) 262, and cases cited; Perry, Trusts, § 828. Trust relations once created, as regards the-personal element, survive the wrongful removal of the subject of the trust in any way beyond the reach of the beneficiary. The latter may, by judicial proceedings, enforce an accounting by the trustee for the full value of the property wasted or otherwise wrongfully converted. The uniform rule as to administrators, executors, receivers, and trustees, in> *252 general, is to charge them with tbe trust fund and require .them to account for it or its value. Barker v. Barker, 14 Wis. 131; Williams v. Williams, 55 Wis. 300, 12 N. W. 465, 13 N. W. 274; Simmons v. Oliver, 74 Wis. 633, 43 N. W. 561; Oliver v. Piatt, 3 How. 333; Lathrop v. Bampton, 31 Cal. 17. True, tbe liability of tbe trustee, when there is no trust property, is personal, and be may be sued at law. True, Also, there are authorities to the effect that the right is strictly legal and the remedy legal. Lathrop v. Bampton, supra. But the better rule, it seems, is that the cestui que trust may .always sue in equity for an accounting. Perry, Trusts, § 843. But, in any event, when the liability is germane to a principal •cause of action which is equitable, as in this case, it is en-forcible as a part of a single subject matter.

The point is made that the suit, as reorganized, was to remover upon a cause of action sounding in tort, and that such matters are not within equity jurisdiction. The conclusive answer to that is that the cause of action as to each of the parties here is for an accounting, not for damages. Whether the recoveries went beyond the cause of action does not go to 'the subject we now have under consideration. Dunphy v. Kleinsmith, 11 Wall. 610, upon which counsel rely, supports, •so far as it goes, their claim that appellants may be made to restore to the trust fund whatever they wrongfully obtained from it.

Appellants put great confidence in the proposition that the 'creditors have no right of action against the receiver. Why the cestuis que trustent have not the same right to a suit in equity to enforce a trust when the receiver is the trustee and the court appointing permits or orders that he be proceeded against that way, as in case of any other trustee, is difficult to understand. Counsel upon neither side of the case have produced any authority directly upon the question. That authorities are difficult to find in respect to the matter is not to >be wondered at, since the remedy by summary proceedings *253 before tbe court for an accounting, and an action thereafter upon tbe receiver’s bond, if necessary, are the usual methods adopted to redress a wrong committed by a receiver. While it is true that the court may compel the receiver to account-at any time,-and in any manner it sees fit, not transcending the limits of judicial discretion, and true that he is not a litigant in the action unless legitimately made so, — he is the agent of the court still, being trustee for the creditors as we have seen, and under the control of the court. Why may not the court, then, adopt the-method resorted to in this case under the peculiar circumstances disclosed in the complaint ? That it was within judicial power to do so, unless for some reason judicial discretion was abused, follows necessarily from the fact that the trial judge in such a matter is not limited to any particular method. The fact that the usual course-is to cite the receiver before the court without the use of any process, strictly so called, does not argue that he cannot^be compelled by such a process to appear, as he undoubtedly may be. The fact that the disputed matters upon the receiver’s account are usually tried by the court in a summary, way, or, if complicated, they are referred to a master and passed upon by the court upon the coming in of his report,, does not argue very strongly that the court might not cause issues to be framed in respect thereto and tried as ordinary-issues are tried before the court; and that even an advisory verdict of a jury might be taken if deemed proper by the court, cannot well be doubted. The dearth of decided cases as to such matters only evidences that the control of a court of equity over its receiver, and the manner in which he shall account, is so absolute that whatever proceeding may have been adopted from time to time in such matters, the instances are extremely rare where any one has ventured to question it, and in such instances, so far as we can discover, not successfully.

In Akers v. Veal, 66 Ga. 302, it was held that the general *254 power of a court of equity as to a receiver’s account extends to even requiring a formal trial of issues, but that the receiver is not entitled to a jury trial as a matter of right, in the absence of a special statute creating it. In 23 Am. & Eng. Ency. of Law, 1061, a rule is deduced from the authorities cited, and stated thus:

“A receiver is directly responsible to the court by which he was appointed, and is accountable in such manner, or to such persons, as the court may directand such court “may) in its discretion, require him to account at any time.”

In Schenck v. Ingraham, 5 Hun, 397, the facts were these: In a suit to wind up a partnership, the partnership assets came into the possession of a receiver appointed for that purpose. In the settlement of his account, by false representations made to the court respecting the amount of labor performed by him and his attorneys in the administration of the trust fund, an order was obtained allowing them $6,218 ■out of a total fund of $8,415.04. The entire fund was distributed by order of the court. The creditors commenced an independent action in equity to annul the order upon the ground of fraud. Such creditors had not become parties to the original action. Issues were joined in the second action, and upon a trial thereof the complaint was dismissed upon the mei’its. The plaintiffs appealed. In the right of the plaintiffs in such action a motion was then made in the original suit to have the order set aside and vacated, and the motion was denied. An appeal was then taken from both the judgment in the creditors’ action and the order in the receivership action. On the appeal the judgment in the creditors’ action was affirmed on the merits, but it was held that, were the evidence sufficient to sustain the allegations of fraud, the judgment would be reversed. The appeal as to the order was successful. It was reversed upon the ground that sufficient was shown upon the motion to establish that it was fraudulently obtained. The court directed the appellants to *255 be made parties to tbe proceedings in tbe receivership action, and that tbe order awarding to tbe receiver compensation for bis services and expense of legal assistance, and distributing tbe residue of tbe trust property and discharging him, should .be vacated. We do not find that this case has been disturbed in tbe courts of New York. It would indicate that an order ■obtained by fraudulent representations to tbe court, settling a receiver’s account and distributing tbe trust property, may, if tbe court having jurisdiction of tbe matter permits, be set aside in an equitable action brought in tbe same court by a person interested in such fund; and that in such action all 'the guilty participants in tbe fraud may be made to account. We need not apply the doctrine of that case further than' to bold that tbe action in which tbe receiver was appointed being still pending, and tbe jurisdiction of tbe court to vacate tbe order still perfect, it may be vacated on motion, and an issue then be raised in tbe action covering tbe matter of tbe .■account, and tried. Tbe particular manner of causing tbe issue to be formed being within tbe .discretion of tbe court, ■some serious prejudice to tbe rights of tbe adverse parties must needs be shown to warrant condemning tbe one adopted ;as jurisdictional error.

Monitor F. Co. v. Peters, 40 Ohio St. 575, is another instance of a court entertaining an independent action in equity do coerce its receiver to do bis duty. Tbe decision was grounded on the idea that creditors are entitled to have tbe trust fund out of which they are to obtain their pay, if at all, promptly administered, and that, though tbe ordinary method of enforcing that right is by proceeding in tbe receivership action, tbe discretionary power of tbe court over tbe matter is sufficient to permit such right to be vindicated in an independent action. Counsel seem to concede here that if such is tbe case, tbe power in that regard is broad enough to accomplish tbe same thing by making tbe defendant respond as a party in an action wherein he is accountable.

*256 Mills v. Ross, 57 N. Y. Supp. 680, is cited to our attention. Tbe facts there were these: A receiver, bj order of the court, paid out the fund in his hands. Persons claiming to be the real owners thereof, and that it was obtained from the receiver wrongfully, brought an independent action against the persons so acquiring it to recover the same, and it was held that the action was not maintainable; that the plaintiffs should have sought relief in the receivership action. We are unable to discover anything in the decision militating against the right of a court to allow its receiver to be proceeded against in the action in which he was appointed, if it sees fit.

Clapp v. Clapp, 7 N. Y. Supp. 495, is cited to our attention as indicating that the practice adopted in this case was entirely wrong. A careful analysis of the case shows that it is rather against appellants’ position than in favor of it. The facts were these: A receiver having been guilty of misfeasance and nonfeasance to the prejudice of creditors, to whom the property he was appointed to take possession of and administer primarily belonged, was induced to resign his trust and surrender the property in his possession to a successor without any legal proceedings to that end. A successor was appointed. The order entered in respect to the matter designated a referee to state the predecessor’s accounts with the trust property and to ascertain what allowance should be awarded him for expenses and services, and what payments he had received. In advance of the coming in of the report he turned over to his successor all the trust property in hand. Tie made a claim for a balance due, of $15,995.15 for expenses, commissions, and services. On the hearing before the referee the creditors were parties and were fully heard. The referee allowed $9,762.62. Thereupon the new receiver paid $5,000 upon such allowance. There was proof before the referee of gross mismanagement of the trust, both by acts of commission and omission. The court upon the coming in *257 of tbe report changed tbe conclusions of tbe referee in a' radical manner. One of tbe changes consisted in this: Upon tbe ground that tbe receiver failed to collect certain claims which be ought to have collected, and failed in other respects to perform ljis duty, to tbe great prejudice of tbe creditors, whereby greater loss to tbe trust fund was suffered .than tbe total amount due such creditors, be was peremptorily ordered to pay tbe claims of such creditors, aggregating over $12,000. Tbe idea entertained by tbe court was that tbe amount of tbe uncollected claims should be counted as loss regardless of tbe fact that tbe title to such claims passed to tbe new receiver upon bis appointment, and regardless of whether they were collectible by such receiver or not. There was no proof before tbe referee or tbe court as to tbe collectibility of such claims. Upon appeal it was held that tbe deposed receiver was liable to account for tbe full amount of all loss caused by bis mismanagement, but only upon proof being produced establishing tbe amount thereof; that since a new receiver was appointed, tbe liability was to him, tbe whole matter to-be worked out through that channel, and that be possessed title to tbe uncollected claims and title* to the liability of tbe old receiver to account for tbe loss caused by him. “It is to him,” said tbe court, “that be [tbe old receiver] has become accountable, inasmuch as tbe latter has been placed' in bis own relation to tbe creditors who are seeking payment, out of this estate, of tbe debts owing to them.” 1 N. Y. Supp. 926. Tbe order of tbe court below was reversed, with directions to such court to send tbe matter to a referee to determine tbe amount of loss to tbe estate caused by tbe misconduct of tbe ex-receiver, giving the creditors interested full opportunity to be beard, a final order to be entered upon tbe coming in of bis report in accordance with tbe opinion of tbe court.

Tbe foregoing history is not taken from 7 N. Y. Supp. 495, referred to by counsel. Tbe opinion there was delivered *258 upon a reargument. It cannot well be understood without being read in connection with the. opinion given when the case was in fact decided. Clapp v. Clapp, 1 N. Y. Supp. 919. From such history it will be seen that the liabilities claimed against the receiver here are, in the main at least, within the principle of that decision. The idea advanced by counsel, with supporting authorities, that for whatever the receiver lost by negligence or fraud he is only personally liable to the creditors in an action at law, or that there is no liability at all because a destruction of the trust fund ends the trust, and the idea that the only liability for the breach of trust is on the receiver’s bond, do not seem to have occurred to or been appreciated by the learned court that made the decision. Every expression in the opinion, and every conclusion reached is in strict harmony with the liability of the receiver here as claimed upon the face of the complaint. The practice adopted there in settling the receiver’s account was by trial before the referee. Whether a trial in some other way would have been permissible is not adverted to in any respect. The practice adopted, of assuming that assets have been lost merely because not collected in money as they should have been by the ex-receiver, notwithstanding the title thereto has passed to the new receiver and notwithstanding they may be convertible into money by him, was condemned. There being a receiver, through whom the rights of the creditors could be worked out, the practice of requiring the old receiver to make good the loss caused by him by compensating the creditors directly, was condemned. The practice challenged here by counsel, as we have seen, that the unfaithful receiver is liable to respond to a trustee for the creditors to the extent of the full amount the trust property has by his mismanagement been diminished, was approved. The practice of forming and trying issues in that regard, giving to' creditors a full opportunity to be heard in respect thereto, they being deemed the real parties in interest, was ap *259 proved. All these principles, on the reargument, were affirmed, the court using the language quoted by counsel as supporting their contention that the creditors have no cause of action and cannot have one in the circumstances of this case:

“What-was left against the appellant [the old receiver, after he delivered to his successor the property on hand] was a liability to account for and pay over to his successor so much as the estate had been diminished or lost by his inattention, carelessness, or misconduct. And no authority has been found or cited imposing any greater degree of liability than this upon him. To that extent he should . . . indemnify this estate for the loss it has sustained through his mismanagement and misconduct. But before any further proceedings can be had for the payment of the loss so sustained, it must be ascertained by proof showing how far the assets diminished in value, or were lost, owing to the misconduct of appellant as receiver. The proceeding in the end, so far as he may be liable in case of his nonpayment of the amount in this manner to be proved against him, will be one for his punishment by way of contempt.”

The court, as will readily be seen, used the expression with reference to the proceedings in that case, that “before the court should compel the old receiver to pay any sum of money on account of the loss sustained by creditors through his mismanagement, the amount of the loss should be ascertained.” That is, of course, sound. The respondents proceeded here in harmony therewith. The court further said that, the amount of the receiver’s liability having been ascertained upon a trial of the issue before the referee, and the finding in that regard affirmed, and he having refused to pay the same, the proceeding to enforce payment is “one for his punishment by way of contempt.” That certainly is the usual way of enforcing a judicial order for the payment of money. It is an unwarranted conclusion to draw therefrom, however, that judicial power cannot be exercised in any other manner. The learned court did not say that it could not. *260 We certainly cannot hold that a person, possessed of ample property within the reach of the court to pay a sum of money ordered by it to he paid by him, can successfully defy it to enforce its order other than by contempt proceedings. The constitutional power of circuit courts, as we have seen, extends to the use of any writ necessary to “carry into effect their orders, judgments and decrees.” It may use a writ of fi. fa., or any other known to the law, which is appropriate, or even frame a new one if no old one is sufficient. Since the policy of our law is against imprisonment for debt, it would seem that no legitimate objection can be raised by the wrongdoer because his liability is enforced by a mere judgment for money collectible by execution instead of an order or judgment in form requiring payment of money, enforcible by contempt proceedings. So it seems, as indicated at the outset, that instead of Clapp v. Clapp sustaining counsel’s position that in the circumstances of this case there is not, and cannot be, any cause of action in favor, of creditors, it supports the very opposite, except as regards the mere matter of practice here adopted, of compelling the receiver and his associate wrongdoers to account to the court for the benefit of the creditors and at their suit as parties in the action; and that is not condemned in any way, so far as we can discover, since the holding that the account should be made to the new receiver as the representative of the creditors, instead of to them directly as a class, the money recovered to be paid into court and distributed according to the court’s order, is grounded on the fact that there was a receiver standing in the place of the creditors, to whom an accounting could be made. It is inferable from the court’s opinion that, if the amount of the liability had been properly established in the trial before the referee, the order for the payment thereof directly to the creditors in accordance with their respective equitable interests therein, instead of to the receiver for them, would not have been deemed a prejudicial *261 departure from tbe regular order of judicial administration in such matters. We have spent much time on tbis case because of tbe great importance appellants’ counsel seem to attribute thereto in support of tbeir views, while, as indicated, to us it is more in harmony with tbe views of respondents’ counsel.

A number of cases are cited to our attention, bolding that proceedings must be bad in tbe receivership action to settle tbe receiver’s account before action is maintainable upon bis bond. We are unable to see bow tbe decisions or tbe expressions made therein throw any light on tbe point under discussion. Tbis quotation is made from Gluck & Becker, Ee-oeivers, 414:

“If be owes a duty to a creditor of tbe corporation and be fails or omits to perform that duty, tbe trust estate will not be made chargeable for such neglect of duty if tbe loss has been sustained by tbe creditor, but tbe liability of tbe receiver will rest entirely upon bis personal undertaking, and can only be enforced in a court of law.”

Taking that literally, tbe absurdity of it is such that no comment thereon would seem to be necessary. Tbe idea that tbe only remedy of a creditor of a corporation, whose property is in tbe bands of a receiver, for misfeasance or non-feasance in bis office to tbe injury of such creditor, is an action at law, has no support in principle or authority. Tbe textwriter did not mean that, though bis language might well be taken that way, without careful consideration, as indicated by tbe use thereof by tbe learned counsel for appellants. Tbe author based tbe text on Gaehle v. Snowden, 56 Md. 345. Counsel cite tbe same case, and it seems without appreciating what is really there decided, which is that tbe violation of a purely personal obligation incurred by a receiver to a creditor — such as a failure by tbe former to file tbe latter’s claim left with him for that purpose, whereby tbe claim is lost — does not create any liability of tbe former as trustee, to be re *262 dressed in equity or at all; that it is a mere negligent act, to be redressed, if at all, tbe same'as if committed by any other person to whom tbe claim might be intrusted for placing it on file. The court said it was the duty of the creditor to file his claim with the court, not with the receiver. It will be readily seen that the decision is sound, but very far removed from any question involved here.

The proposition of counsel, that there is no cause of action against a receiver in favor of the. creditors, pursuable in the winding-up action in the circumstances of this case, has better support in Boyd v. Mut. F. Asso. 116 Wis. 155, 90 N. W. 1086, 94 N. W. 171, than anywhere else, or than any authority cited to our attention by counsel, so far as appears, or any which we can discover. It is confidently asserted that such decision really rules this case on such proposition in favor of appellants, if adhered to. That action was reorganized very much as this was. The difference between the two is this: There a new receiver was appointed, who was by order of the court joined with the creditors, while here the action was ordered to proceed in the name of the creditors alone. The question there, as to whether the ex-receiver could be required to account by action, was not raised by counsel nor referred to in the opinion. It seems to have been taken for granted that he could be so required, if the court so ordered. It was held that a good cause of action was stated in the complaint against such ex-receiver in favor of his successor, but that it was solely the cause of action of the latter; that the creditors had no cause of action against him, while they did have a cause of action, well stated in the complaint, for winding up the corporation and administering its property as a trust fund for the benefit of creditors, in which all parties holding parts of such trust fund were properly made defendants in order to reduce all to the possession of the court, represented by its receiver, for the benefit of creditors. The liability of Smith was made up of *263 two elements: $281.73 alleged to bave been fraudulently paid bim by tbe officers of tbe corporation before the receivership action was commenced, be being a guilty participant in tbe fraud; and $500 and other sums not specified, lost or wasted by bim through nonfeasance or misfeasance in tbe performance of bis duties as receiver. That tbe liability of tbe old receiver for whatever it was worth was an asset, so to speak, of tbe trust fund, was not and of course could not well be questioned. But as tbe court, — perhaps without that careful consideration of tbe matter that might bave been given thereto, that, however, not being apparent at tbe time of tbe decision, — held tbe title to tbe liability to be legal in character, to be vested in tbe new receiver and enforciblo only by bim in an action legal- or equitable in form, it was decided that tbe two causes of action — one in favor of tbe new receiver against tbe ex-receiver, and tbe creditors’ action against tbe other defendants — were improperly united. From tbe foregoing analysis of tbe situation it will be seen that tbe legal title to tbe right against tbe old receiver as such, and that against bim by reason of bis having obtained moneys of tbe corporation by fraud before bis appointment, were no more vested in tbe new receiver than tbe title to anything else forming a part of tbe corporate assets, and that tbe equitable right to such liability was in tbe creditors of the corporation tbe same as tbe right to any other of tbe numerous liabilities which they were entitled to bave mar-shalled into tbe possession of tbe court in tbe form of money for tbe payment of their debts. As to the $281.73, tbe old receiver, upon principles well established, might bave been made a defendant at tbe time tbe action was commenced. ITe was properly made a defendant as to that part of the trust fund which be came to tbe possession of after be was appointed receiver, and which be wrongfully retained, if any one so circumstanced was properly joinable, unless tbe fact that be was answerable to tbe court therefor in a sum *264 mary way, after the maimer generally adopted for compelling receivers to account, was exclusive. If that feature of his case precluded the creditors from proceeding against him by action, so it did, likewise, the new receiver. The latter, in the performance of his administrative duties, had a right to institute proceedings to compel the old receiver to account. The creditors, as equitable owners of the property misappropriated by the old receiver, had the same right. In either case, money produced would form a part of the trust fund in the hands of the new receiver. Neither the receiver nor the creditors had a right, strictly speaking, to a remedy by action against the old receiver. Both had a right to the ordinary remedy against him. That either did not have a right to the extraordinary remedy in such cases of a civil action, if the court was willing or ordered its receiver to be charged in that way, unless to permit such a proceeding would be an abuse of judicial discretion, would be difficult to maintain. It seems that the creditors did have, as part ,of the primary purpose of that action, the right to join the old receiver and call him to account for the money fraudulently obtained by him before the receivership suit was commenced, without the permission of the court except as to time of bringing him in, and the right to join him as to the wrongful use of the trust fund, by the court’s permission, unless such practice, as before indicated, must be deemed so prejudicial to the rights of parties and the orderly conduct of judicial proceedings as to be regarded as jurisdictional error.

The conclusion from the foregoing is that, while it is true that creditors in the circumstances of those in this case have no right of action against the court’s receiver, using the term in the sense of a civil action pursuable as a matter of absolute right, they have a wrong to be redressed, either by a civil action or by a special proceeding to be instituted by them; and since the court has, within the boundaries of a *265 broad discretionary authority, tbe right to say how such redress shall be accomplished, circumstances may justify a procedure in the form of a civil action, the parties being arranged according to their interests; and if the court orders that prbcedure to be adopted, then the creditors may be said to have a right of action against the receiver.

Counsel urge upon our attention these propositions: (a) The court has no pow.er to enter a judgment in a winding-up action against the receiver and those acting guiltily with him in diminishing the trust property, for the amount of the loss caused by them, (b) The statute does not authorize making the receiver, or any officer of the court, a party, (c) The word “trustees” in sec. 3237, Stats. 1898, does not include receivers, (d) The statutory right against officers has reference to such officers while acting in office for the corporation, (e) The power of the court is limited by the provisions of the statute, (f) No judgment can be entered in such an action as this, other than one specifically authorized by statute. They all proceed upon the theory that the statutes, sections 3216 to 3239, inclusive, give a new right and a new remedy, with appropriate procedure, and axe exclusive. That, as we have seen, is not the case. The statutes, generally speaking, are merely declaratory of the common law. Gores v. Day, 99 Wis. 276, 74 N. W. 787, is to that effect, so far as it was necessary to go in that case; while in Adler v. Milwaukee P. B. Mfg. Co. 13 Wis. 57, as we have before seen, even as to the sequestration feature of the statutes, it was held to have added nothing to the power of the court which it did not possess independently thereof and was permitted to exercise when necessary; that “they [the statutes] only go to strengthen the powers which courts of equity heretofore possessed, to remove doubts, and to' render the rules by which such proceedings are governed more stable and undeviating;” that in any event they only govern the proceeding against the corporation itself “when *266 a sequestration of its stock, property, things in action, and effects, and the appointment of a receiver, are sought.” The method of reaching others holding property to which such sections are applicable, so far as not specially prescribed, was left to be governed by the. usual practice in courts of equity.

Counsel for respondents on this branch of the case, contend that the word “trustees,” as used .in sec. 3237, Id., includes a receiver. We are unable to read the statute that way. It seems to plainly refer, as counsel for appellants contend, to a trustee in his capacity as an officer of a corporation, not to one acting for the corporation and others as agent of the court. The proposition that R. E. Rust was properly made a party defendant as a trastee of the corporation, cannot be approved.

Clarke v. Banner & V. P. Co. 50 Wis. 416, 7 N. W. 309, is cited as indicating that in any event the making of Rust and his associates parties for any purpose except that of discovery, was improper. It is difficult to see how that case can have any bearing on any question raised here, except to condemn' the practice of making persons parties defendant who are alleged to have come into possession of assets of the corporation before sequestration proceedings were started, in fraud of creditors. It would be decisive against the respondents on that subject, if sound. That it is otherwise, tested by any or all of the numerous decisions made before and after its rendition, touching to some extent or entirely the subject involved, will appear obvious frpm a mere statement of what was there held- The gist of the decision is stated correctly in the syllabus thus:

“In an action under secs. 3216-3228, R. S., . . . where it is not sought to hold the officers or stockholders personally liable under sec. 3221, the circuit court has power only to sequester the property, to appoint a receiver, and to compel the corporation to account.”

*267 “In respect to any person to whom it is alleged that any transfer of property of tbe insolvent corporation has- been made,” it can “merely compel such person To testify in relation thereto,5 55 under sec. 3228.

It will be seen that the court adopted the idea that the statute affords a new and exclusive remedy, and that, as it makes no provision for judgment against persons obtaining property of the corporation in fraud thereof or of its creditors, but does provide by sec. 3228 that such persons may be compelled to testify in relation to such property, and does provide by sec. 3219 that the receiver appointed in the action may sue for and recover property belonging to the corporation, the right of action is vested wholly in the receiver. The fact was overlooked that sec. 3219, as it has many times been construed, does not refer to persons holding the property of the corporation as trustees for it or for its creditors; also the fact that secs. 3237 and 3239 expressly provide that officers of corporations may be made to account in a suit by creditors for all loss caused by their mismanagement, and to render up an equivalent in money for such loss, and that guilty participants with them may also be made to account as parties and render up their ill-gotten gains. The further fact was overlooked that sec. 3228 prescribes only a rule of evidence, so that guilty parties may be made to testify in respect to their wrongful conduct regardless of the general rule that a person cannot be compelled to incriminate himself.' In Hurlbut v. Marshall, 62 Wis. 590, 22 N. W. 852, decided a few years later, the doctrine of Clarke v. Banner & V. P. Co. 50 Wis. 416, 7 N. W. 309, was entirely ignored, as it has been ever since the case was decided. We do not find it referred to in any subsequent case. It has been cited to the court’s attention in. briefs of counsel, but for some reason the opportunity has not been heretofore improved to record the fact that it does not state the law correctly — that it is entirely out of har *268 ■mony with tbe decisions of tbis court from Adler v. Milwaukee P. B. Mfg. Co. to Hurlbut v. Marshall, and was in the latter case in effect overruled.

From numerous authorities holding that a court of equity has no inherent power to dissolve a corporation, and that statutory power in that regard, “both as to the conditions upon which it may act and the judgment it may enter, must be strictly followed,” counsel for appellants deduce the con-clusión, seemingly, that such doctrine applies to the judicial power to sequester property of an insolvent corporation and to wind up its affairs so far as necessary to apply its assets in payment of its liabilities. The language of the proposition is borrowed from 22 Ency. PI. & Pr. 1236, but changed by substituting for the idea of dissolving the corporation, strictly so called, that of taking possession of corporate property and administering the same for the payment of its debts, 'The two are entirely distinct, and so far as they are referred to in the statutes are there so treated. Secs. 3216 to 3239 refer to the latter; secs. 3240 to 3251 to the former. The one, as we have seen, merely supplements the general equity jurisdiction of the court, no provision being made therein for a statutory judgment. If the proposition under discussion affected this and similar cases, no judgment could be rendered at all. The other not only gives the right of' action, but provides the procedure to be followed, including the judgment to be rendered, and being by its terms not cumulative, it is exclusive, upon familiar principles often proclaimed by this court. May v. Blade, 77 Wis. 101, 45 N. W. 949; Finney v. Guy, 106 Wis. 256, 265, 82 N. W. 595; Pollard v. Bailey, 20 Wall. 520; Fourth Nat. Bank v. Franklyn, 120 U. S. 747, 7 Sup. Ct. 757; Huntington v. Attrill, 146 U. S. 657, 13 Sup. Ct. 224; Patterson v. Lynde, 112 Ill. 196. Of course, if one confuses an action to dissolve a corporation with one to administer the property of .an insolvent corporation as a trust fund for the benefit of its *269 creditors, lie will very readily fall into tlie error that a winding-np action, using the term with reference to the rights of creditors being primary, is a statutory action in all respects, and that the warrant for every step therein must be found in the statutes. There seems to be no need for such confusion, since it would be impossible to conduct such an action wholly according to specific statutory guides. Such an action is statutory only in that the statute indicates by implication that a suit in equity, covering all the matters directly and incidentally material to the interests of creditors, is the remedy to be resorted to. The statute contains-no complete system on the subject in any other sense, nor anything approaching one, and the practice of the court since Adler v. Milwaukee P. B. Mfg. Co. 13 Wis. 57, has always-been in harmony with this idea.

We are referred to the principle that no creditor in a winding-up proceeding has a right to proceed against the receiver to obtain any part of the property in the custody of the law till it has been duly awarded to him by the order of' distribution. True, but this is not an action of that kind. It is one to accumulate in custodia legis, in the form of' money, the assets properly belonging to the trust fund, so-that an order of distribution may be made. An action to enforce a trust so as to put the court in possession of the-trust fund is one thing; and an action by a cestui que trust to obtain an equitable proportion of such trust fund is quite another.

The point is suggested that the creditors could not properly maintain this action because the legal title to the property recoverable is not in them. In support of that numerous decisions of the federal courts are mentioned, holding-that where an assignee in bankruptcy has been appointed, creditors cannot, during the pendency of the trust or after it has been closed, maintain an action to recover any liability for the benefit of creditors; that all such liabilities must *270 be realized and distributed through the medium of the as-signee in whom the title thereto vests. We. are unable to see how such cases have anything to do with this class of cases. The procedure referred to is governed by the terms of the bankruptcy statute as construed by the federal courts. The procedure in this class of cases is governed by the general principles of equity jurisprudence, supplemented by such aids as the statute affords in the administration of a trust and the marshalling of all assets, whether at the time of the institution of the suit under the control of the corporation, or whether equitable or legal, possessed by persons in the capacity of trustees in any sense for creditors. The practice in respect thereto is entirely different from that under the national bankruptcy act. The creditors’ action reaches directly all assets of the nature referred to, not because they have any legal right thereto, but because they have an equitable right with an appropriate equitable remedy to enforce the same to the extent of reducing the possession thereof to that of the court for the satisfaction of their claims.

Many propositions are presented for consideration upon the theory that the property, whether consisting of tangible things or the mere personal liability of parties who have wrongfully converted the tangible property to their own use, or otherwise wrongfully lost it, must necessarily be recovered by a receiver. That is a mistake. Wlren the situation presented is that of a trustee who has squandered the trust property, and the cestui que trust only desires to make him account in money for the loss, an action for such accounting may be maintained in equity without any receiver. A receiver is necessary only where there is property to be protected and administered pending the suit, or to be taken possession of and converted into money in administering a trust, or there are wrongs which cannot be remedied without one. At the time this suit was reorganized and again made active, the trust property, as alleged in the complaint, had all been *271 wrongfully lost in one way and another. As to the greater part of it, the only recourse for creditors was to hold the wrongdoers to their liability to account and make compensation for the loss they had caused. The only way to encompass the whole situation in one suit was by a proceeding of some sort in the one pending. It did not take a receiver to give the court jurisdiction of the subject matter. Hone was needed, because there was no property in the custody of the court, and none to come into such possession other than in the form of money as a result of the accounting and submission to the commands of the court. Where only .an accounting is required, a receiver is never deemed necessary. High, Receivers, §§ 34, 35. There are many instances in the books of creditors’ bills to enforce such liabilities without the use of a receiver. Of course, from the very nature of the remedy, no receiver can well be used till there is something to receive. Gores v. Day, 99 Wis. 276, 74 N. W. 787; Gores v. Murphy, 109 Wis. 408, 84 H W. 867, 85 H. W. 411; Schenck v. Ingraham, 5 Hun, 397; Chicago & A. B. Co. v. Fowler, 55 Kan. 17, 39 Pac. 727. In Gores v. Day, because there was an assignee, he was said to be a necessary party; but the maintenance of the action in the right of the creditors was sustained both under the statute and independently thereof. The common practice in creditors’ actions, so far as relates to those holding property forming the subject of the trust or some part thereof .as trustees, in a capacity hostile to the creditors or otherwise, is to charge them as defendants, making no use of .a receiver, necessarily, till one is needed to hold property as the agent of the court. It will be remembered that in Clapp v. Clapp, 7 N. Y. Supp. 495, it was in effect held that if there was not a receiver standing as the representative of creditors as to property once in custodia legis and lost by the wrongdoing of the court’s agent, such agent could be compelled to account directly to the creditors at the instance *272 of the injured beneficiaries, and made to compensate them directly for the amount of their loss.

It is said that the statutory action cannot be regarded as in any respect a suit commenced by creditors’ bill in analogy to the old equity practice, nor as a modification of it. The only authority cited in support of that is Clarke v. Banner & V. P. Co. 50 Wis. 416, 7 N. W. 309. As we have seen, so far as it bears on counsel’s point it was wrongly decided and was in effect overruled in Hurlbut v. Marshall, 62 Wis. 590, 22 N. W. 852, and subsequent cases. Further, as we have shown, the manner of administering the property of an insolvent corporation is not by a statutory action in any other sense than that it is by an equitable action with the ordinary incidents of such actions, supplemented by whatever aids the statute affords. That was early held in Mann v. Pentz, 3 N. Y. 415, which was followed here in Adler v. Milwaukee P. B. Mfg., Co. 13 Wis. 57. The same authorities hold that the complaint in such an action is to all intents and purposes a creditors’ bill. The authorities generally maintain that view.

“It has become the settled law of this country that the assets of an insolvent corporation constitute a trust fund for the payment of its debts. ... A creditor’s remedy, by creditor’s bill, or proceeding in the nature of a creditor’s bill, against a corporation, its officers and stockholders, is firmly established.” Smith, Eq. Rem. of Cred. § 29.

To the same effect is Ballin v. Loeb, 78 Wis. 404, 47 N. W. 516. The action was there called a statutory action, merely in the sense, however, that the sections of the statute for the administration of the assets of an insolvent corporation require that it shall constitute the subject matter of one suit to be commenced and carried on according to principles of equity. It seems almost a waste of energy to pursue this subject, as the authorities are uniform against counsel’s proposition. When we speak of a creditors’ bill *273 under the Code, we mean, of course,' the Code substitute for the eommou-law pleading. It is only mere forms of action that are abolished by the Code. The substance survives. In place of the bill in equity of the old practice, we have the complaint in the civil action of the Code. Where the pleading is in an action to redress a wrong such as formerly was the subject of a suit in equity commenced by creditors’ bill, we often speak of it by its old name. The better way would be to speak of it as a complaint in the nature of a creditors’ bill, so as not to lose sight of the fact -that the Code, so far as forms of action are concerned, is a complete substitute for the old system, while so far as the,, real substance of things is concerned it remains substantially as before. Kolloch v. Scribner, 98 Wis. 104, 73 N. W. 776; Crowns v. Forest L. Co. 102 Wis. 97, 99, 78 N. W. 433. The prime essential of a creditors’ suit is the exhaustion of legal remedies. Northwestern I. Co. v. Central T. Co. 90 Wis. 570, 63 N. W. 752, 64 N. W. 323; Hughes v. Hunner, 91 Wis. 116, 120, 64 N. W. 887. A proceeding by a judgment debtor, after the return of an execution upon his judgment unsatisfied, to charge the unleviable property of an insolvent corporation with the payment of its debts and to wind up its business affairs as regards creditors, satisfies that essential and is probably the most common of any way of doing so in modern practice where equity jurisdiction is resorted to as formerly, respecting the remedy by creditors’ bill, but by the new form of action created by the Code. The pleading is a creditors’ bill, strictly so called, but under the Code name for the plaintiff’s first pleading. Speaking on the general subject of creditors’ bills, in 5 Ency. Pl. & Pr. 395, the; author uses this language:

“A class of creditors’ bills constantly increasing in frequency, comprises bills brought by creditors of insolvent corporations for a ratable distribution of their assets, to reach property that has been misappropriated and misapplied, or to *274 collect for tbe benefit of creditors unpaid stock subscriptions.”

So it is plain that the claim of counsel that it was not proper practice to bring in the new defendants and litigate the matters as to them, alleged in the complaint, in the manner common in suits in equity commenced by a general creditors’ bill, cannot be sustained.

But, say counsel, it is not permissible to bring in, by a supplemental complaint, a subject matter not existing at the commencement of the action. The answer to that is that no such subject was so brought in, in this case. The new matter was germane to and formed a part of the original subject. It is only new matter, constituting a new and independent cause of action,- that is necessarily excluded from a supplemental bill. That is the rule of the old practice (21 Ency. Pl.. & Pr. 28), and it is preserved by sec. 2687 of the Code in the following language:

“The plaintiff and defendant, respectively, may be allowed, on motion and on such terms as may be just, to make a supplemental complaint, answer, or reply alleging facts material to the case occurring after the former complaint, answer, or reply, or of which the party was ignorant when his former pleading was made.”

The restriction thus indicated has always been distinctly recognized in the decisions of this court. Noonan v. Orton, 21 Wis. 283, 293; Ely v. Wilcox, 26 Wis. 91; Orton v. Noonan, 29 Wis. 541, 544; Orton v. Noonan, 30 Wis. 611, 613. The general practice in creditors’ actions, to reach the property under the control of an insolvent corporation, and other property, tangible and intangible, proper to be deemed parts of the trust fund for the payment of the corporate creditors, is to commence the same in a simple form. Great diligence, as a rule, is required in the initiatory step in order to effect an equitable levy upon the corporate assets before they can be dissipated or become incumbered. *275 Danger in those respects baring been guarded against, upon those interested primarily in the success of the litigation becoming conversant with the full scope of the subject proper to be brought into the action, it is customary, with or without permission of the court, as the situation of the case may require, to serve an amended and .supplemental complaint covering the entire field as it existed at the time of the commencement of the action and as enlarged by subsequent •events. That has been repeatedly sanctioned by this court. The extent to which a complaint may thus be broadened out, the location of the original parties upon the record be changed, and the way new ones may be placed, so that, so far as practicable, those united in interest as creditors to woik out the trust, may appear as plaintiffs and all adverse parties appear as' defendants, is well illustrated in Hurlbut v. Marshall, 62 Wis. 590, 22 N. W. 852; Gager v. Marsden, 101 Wis. 598, 77 N. W. 922; and Boyd v. Mut. F. Asso. 116 Wis. 155, 90 N. W. 1086, 94 N. W. 171. The practice elsewhere, under systems similár to ours, is the same, and is indicated by the treatment of the subject in the able opinion by Mitchell, J., in Arthur v. Willius, 44 Minn. 409, 412, 46 N. W. 851:

“ ‘It is an action not proceeding in the ordinary way of actions at law by trial of simple issues, judgment, and execution, but by the exercise of powers peculiar to the former courts of chancery.’ The proeeédings are susceptible of being molded into almost any form necessary to accomplish their purpose of securing a full and final adjustment of the rights and liabilities of all parties growing out of the corporate business. During the progress of the proceedings new parties may be admitted or brought in, and new issues introduced from time to time, as they become necessary for the final winding up of the affairs of the corporation, and the enforcement of all the rights of creditors. The original complaint need not state more than a case for the sequestration of the corporate assets. Neither stockholders, directors, nor. creditors (save the one who institutes the suit), need be *276 made parties in the first instance. Other creditors may subsequently come in or be brought in. Stockholders and directors may also be brought in for the purpose of enforcing, their individual liability. This may be done at the instance or upon the complaint of any creditor who has become a party to the proceedings. In short, the proceedings are intended to be so elastic as to be susceptible of development during their successive stages of progress, as to reach not only all the corporate assets, but also all liabilities of stockholders and others so far as necessary for the payment 6f creditors.”

The conclusion on this point must be that there is nothing subject to criticisrii in the practice adopted here, unless the fact that, though enforcing the liability of the receiver and his associates in wrongfully wasting or converting its property to their own use as alleged, is germane to the original purpose of the suit, the practice in the enforcement of such exceptional liabilities was so prejudicially departed from, as to constitute jurisdictional error.

Rut, it is said, if ch. 140, Stats. 1898, does not permit such an action as this, no other statute does, hence it cannot be maintained. In support of that counsel points (a) to the doctrine that the Code is a complete substitute for common-law forms of action and procedure both at law and in equity, and that it furnishes no form for a complaint or a judgment to fit this case; (b) that a cause of action not existing at the time of the commencement of the action cannot be brought in by amendment or supplemental complaint; (c) that the new cause of action here does not affect all the parties, hence is not joinable with the original cause of' action; (d) that the defect of misjoinder is not waived by not objecting on that ground; and (e) that the statutes, secs. 3217 to 3245, provide a form for a final order and a judgment, but that the former was not followed and the latter does not fit this case. Assuming, as we must, that all of such propositions are supposed by counsel to have merit in respect to. *277 tbe controversy to be solved, we will consider them seriously.

a. Trne, the Code is a complete system. It took a long time for the bench and bar to thoroughly appreciate that,*» and it would now be a misfortune to say anything or render any decision which would cast a shadow of doubt upon it. But in order to maintain the integrity of the new system we must not confuse it with matters that have nothing to do-therewith. Much difficulty has been experienced since the inception of the reformed procedure in New York, by confusing the term “remedy,” as used in the statutes, with “procedure,” forms of action with the substance thereof, and procedure, as regards statutory essentials, with mere details of practice. In a strict statutory sense there are but two remedies known to our system to protect any right or redress any wrong. They are denominated “actions” and “special proceedings.” Sec. 2954, Stats. 1898. Every ordinary proceeding in a court of justice by which one party prosecutes another for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense, is an action. Sec. 2595, Id. Every other remedy is a special proceeding. Sec. 2596. Every action for the enforcement or protection of private rights or the redress or prevention of private wrongs is a civil action. The distinction between actions at law and suits in equity, and the forms of such actions and suits, have been abolished. Sec. 2600. The persons having an interest in the subject of the action and in obtaining the relief demanded, other than in exceptional cases, are plaintiffs and joinable as such. Sec. 2602. All persons claiming an interest in the controversy adverse to the plaintiff, or who are necessary parties to a complete determination or settlement of the question involved, may be defendants. Sec. 2603. The first pleading, in the case is denominated the “complaint,” its general features only being.prescribed by statute. The central idea thereof is that it must deal only with facts constituting the *278 cause of action. Sec. 2646. Tlie general features, only, of tlie judgment to be rendered are prescribed by statute. Sec. 2883 et seq. The Code, other than in exceptional cases, furnishes no form, strictly so called, either for the complaint or the judgment. The general requisites of both are pointed out, and fit a winding-up action as well as a simple action to* recover upon a promissory note.

b and e. These we. have answered. The error of counsel is in assuming that the new matter brought in constitutes a new subject of action. It was a part only of the original subject matter.

d. W'e cannot agree with counsel that a misjoinder of causes of action is not a subject of waiver. They overlook the-fact that sec. 2649 of the Code expressly provides that improper union of causes of action is ground for demurrer, and that see. -2654- expressly provides that a failure to object to such joinder in the manner pointed out by the statute waives the question.

e. True, where the Code furnishes a form for a judgment which is, expressly or by implication, exclusive, that form must be followed. But there is nothing in sec. 3217, or in sec. 3245, condemning the judgment here under that rule,, or condemning the procedure calling for such judgment, as-prejudicial error or error at all. Sec. 3217 does not deal with the matter of a judgment, but with an order closing a special proceeding instituted in an action where legal remedies for the collection of the judgment therein shall have been exhausted or an administrative order executed after a judgment rendered in an independent action. Sec. 3245 has no reference to an action of this kind at all. It refers only to-proceedings to dissolve corporations. An action to that end is in every sense statutory, and of course statutory requisites of the judgment must be followed.

This is stated for consideration: The recoveries against the receiver and his alleged guilty associates should be re *279 versed because (a) the statute does not authorize them; (b) the proceeding is entirely unwarranted; (c) the complaint does not support them; (d) the receiver cannot be charged in. an incidental proceeding with liability for loss wrongfully caused or permitted by him.

a. This has already been answered. The statute does not prohibit redressing the wrongs in the manner resorted to. It indicates that a proceeding in the nature of a creditors' bill is the proper proceeding. It may add to, but does not take from, what might be brought into the action upon the general principles of equity jurisprudence. Those principles include making the liabilities of the parties available for creditors in the winding-up suit. Whether the particular. manner of accomplishing that adopted here was within the discretionary power of the court is the only question left.

b. Counsel base this on Stahl v. Gotzenberger, 45 Wis. 121, where a statutory action — one to foreclose a mortgage, but with incidents showing that the trial was necessarily by the court — was tried before a jury and a judgment was entered by the clerk without the court’s- passing on the issues involved or even directing the entry of the judgment. Of course it has no relevancy whatever to the question to be determined here.

c. This is based on Reynolds v. Stockton, 140 U. S. 254, 11 Sup. Ct. 773, where, in a creditors’ action commenced in New York to reach property in the possession of a receiver, and upon a complaint limited in its scope thereto, a judgment was rendered as if the action were brought to reach that and property in the hands of a receiver in an adjoining state as well. We are utterly unable to see any analogy between that and the ease in hand. The judgment here is responsive to the complaint in every particular.

d. This is based on Mechanics’ Nat. Bank v. Landauer, 68 Wis. 44, 31 N. W. 160. That relates to an independent action against a receiver. Counsel used the term “incidental *280 proceeding.” “Independent action” would have been more appropriate; as the one used tends to give a wrong idea of the* ease cited. The authority is in harmony with others cited in the course of this opinion, that a receiver may he made to account for loss sustained by creditors through his unfaithfulness, and that the manner of the accounting is within the absolute control of the court appointing him 'to the extent of sound judicial discretion, and that circumstances may justify even an independent action against the receiver. These words are quoted with approval from High, Receivers:

“The more common practice, and that which has been generally commended by the courts, is to hear and determine all rights of action and demands against a receiver by petition in the cause in which he was appointed, without remitting the parties to a new and independent suit; and it rests wholly, within the discretion of the court to grant leave to bring an independent action against its receiver, or to determine the controversy upon petition in the original cause, directing, if necessary, an issue to be tried by a jury as to questions of fact or of damages.” Sec. 254b.

The point is made that in no event can a receiver and his alleged guilty associates be legitimately charged in an equitable action with any greater liability than to respond, each for himself, for the amount of the trust property he received. That has very little, if anything, to do with the subject of jurisdiction. We say this in passing to prevent any misconception as to why it is noticed that counsel make the point. The charge in the complaint is that such alleged guilty parties fraudulently colluded together to appropriate to their own use the trust fund, and consummated their purpose. The facts found' support the charge and specify the amount in money so lost to the creditors. The judgment is based, as to them, upon their joint participation in the wrong. In siich circumstances all are liable as constructive cotrustees, and may be made to account in an equitable action. Every person who, through fraud of which he- is guilty or has guilty *281 knowledge, obtains property of another, equity will convert into a trustee for such other and deal with him in many respects the same in redressing the wrong to such other as if he were a trustee of an express trust. 1 Perry, Trusts, §§ 166, 167. When the fraud is perpetrated by several acting in concert, all are equally trustees and are jointly liable. Neither can escape any part of the liability because of the fact that his co-conspirator was the real beneficiary. The property received by each is deemed to have been received by all, and to constitute the subject of a single trust, with all the liabilities incident to the trust relation. Fountain S. P. Co. v. Roberts, 92 Wis. 345, 66 N. W. 399; Pittsburg M. Co. v. Spooner, 74 Wis. 307, 42 N. W. 259; Franey v. Warner, 96 Wis. 222, 71 N. W. 81; Zinc C. Co. v. First Nat. Bank, 103 Wis. 125, 79 N. W. 229; Hebgen v. Koeffler, 97 Wis. 313, 72 N. W. 745. This subject, for the purpose of orderly treatment of the appeals, might better have been reserved for another branch thereof, — that which merely concerns whether the proper judgments were rendered.

The practice adopted violates the right of trial by jury, say the learned counsel. This is based upon two erroneous assumptions: (a) that the right to a sequestration remedy is a right of action; (b) that a statutory action is necessarily an action at law within the constitutional guaranty. The right' of sequestration, as we have seen, is a mere right to a special proceeding in an action.; A statutory action may or may not-be an action at law according as the statutory incidents conform to one or the other from a common-law standpoint. Willer v. Bergenthal, 50 Wis. 474, 7 N. W. 352; Bentley v. Davidson, 74 Wis. 420, 43 N. W. 139. The only right of trial by jury guaranteed by the constitution is the right as enjoyed at the time the constitution was adopted. There is no such right as regards a statutory action unless such action is coupled with statutory incidents indicating that it is strictly legal in character, or the remedy of trial by jury *282 is expressly given by tbe statute. There is no such thing as-the right of trial by jury in suclí a case as this, because the action is not statutory in any sense, because all the statutory incidents of the action indicate that it is strictly of equitable-cognizance, and further, because it is strictly an equitable-action with statutory aids, and cannot properly be called a statutory action at all in any other sense than that the statutes, as the court has frequently held, indicate, as plainly as if they contained an express declaration on the subject, that the action is of the nature known only to courts of equity under the old system, to enforce a trust for the benefit of creditors; and because, if it were otherwise, there is-no suggestion in the statute of any right of trial by jury as to any of the issues, and all the statutory incidents point to-an action in equity as the only one that will encompass the whole situation. We must say in passing that we treat this feature of counsel’s argument only because it is suggested^ It is the first time, so far as any indications in the books show, that a court has been called upon to declare that there-is no such thing as a constitutional right of trial by jury in an action to marshal the assets of an insolvent corporation into a fund for the benefit of its creditors.

Respondents’ counsel suggest that it was proper to bring R. E. Rust and all the officers of the corporation into the litigation, and T. F. Frawley as well, both under the statute- and independently thereof, by reason of what was alleged on-good ground to have occurred before the receivership commenced, and which, though not found in all respects as alleged, was to such an extent as to warrant the court in retaining the case as to all of them and to redress the wrong of' which they were guilty as alleged, committed before as well as after the suit was commenced. That is entitled to a prominent place in our considerations.. It gives to the situation-to be dealt with an aspect not necessarily involving at all the question of whether a receiver, fairly appointed in a *283 winding-up action, and those thereafter colluding with him' in wasting the trust fund placed in his charge, may be brought into such action as defendants and made to account as such for their wrongdoing.

It is alleged in the complaint that as early as January 1,, 1893, the directors of the corporation, which included substantially all of the appellants except T. E. Erawley, alleged to have been guilty participants with Eust, receiver, in the' wrongs committed by him as such, as alleged, knew that the corporation must necessarily go into liquidation, and that they then entered into an agreement between themselves te divert the corporate assets from their proper channel, — that of a trust fund for the creditors of the corporation, — to their own benefit, and that all the steps thereafter taken, which resulted in accomplishing that end, including the commencement of this action and the appointment of Eust as receiver,, were but steps in the execution of the fraudulent agreement entered into. It is further alleged that T. E. Erawley thereafter, with full knowledge of all the facts, became a co-conspirator with the others. The claim of the respondents, so> alleged, is consistent with the findings, with this exception: The date of the fraudulent agreement is placed between May 15 and May 18, 1893. It is sufficient for this discussion to-say that the agreement was found to have been entered into-before the commencement of the action, and that all of the wrongs for which redress is adjudged are found to have been committed in execution thereof. “The receivership,” the-court found, “from its inception on May 23, 1893, to its close on December 30, 1897, was managed by said receiver,, and by his attorney, T. E. Erawley, and his counsel, II. II. Hayden, for the sole interest and benefit of the said receiver and said attorney and counsel and said Geo. T. Thompson, Fitch Gilbert, and the said corporation, the Chippewa Valley Bank, in pursuance of said conspiracy to unlawfully appropriate the assets of said defendant company for the benefit *284 •of said parties above named against the interests and rights -of the general creditors of the said defendant, the National Electric Manufacturing Company.” We have nothing to do at this point with the question of whether that severe indictment of, the appellants is borne out by the evidence. That will come later. It has nothing to do with the jurisdiction •of the court to entertain the case as it did. If it be true that the court was defrauded into selecting Rust as its receiver, •and that the scheme of appellants, entered into and carried • out, was as alleged, then the effect thereof, as contemplated -and in fact, was to leave the property of the corporation more •completely under the control of its officers than it would hav$ been had no receiver been appointed, and the receiver and his attorneys and counselors, the active participants in the fraud, cannot be considered in any other light than as agents -of the corporation or of its officers. Under the forms of law, •according to the complaint and the findings, the court was •used as a shield to protect the officers of the corporation and their attorneys from hostile attack, while they proceeded at their leisure to put the assets of the corporation into their •own pockets. Can it be possible that such things can be done in such a way, and yet the court that has been imposed upon is powerless, responding to. the appeals of creditors upon whom the loss has fallen, to treat the wrongdoers so mildly as 'to make them defendants in the suit commenced ostensibly for the benefit of creditors, and compel them to account the same as if no receiver had been appointed? Is it true, as claimed, that in such a suit as this the court can be imposed upon and made unconsciously to be the very source of power to commit a great wrong to creditors, and yet the order obtained by means of the imposition have such efficacy that when the whole scheme is exposed prima facie to the view of the court, showing that it had its inception before the action was commenced, and that such action was a step in the ■execution thereof, the fraudulent receiver can successfully *285 claim to have rights by reason of his office, entitling him to-such a measnre of protection at the hands of the conrt that', with all the vast power it is said to possess, it cannot, if it sees fit, make him account in the manner adopted here, or, if necessary, treat the whole receivership proceeding as a- mere means of enabling the officers of the corporation to handle its property regardless of the rights of those equitably entitled' thereto, and.as such so far void that all parties concerned are-accountable as defendants the same as if the receivership order had never been made ? If a court, in an action commenced and pending before it, cannot treat an order, obtained, as the complaint alleges and the trial court found the one appointing Rust receiver was, and those obtained by him, alleged and found to have been fraudulently secured in the execution of a wicked purpose, as at least so far- void as to warrant making the guilty persons parties defendant in the action, either as original wrongdoers or as an efficient way of trying the ¿|sues in respect to the charges made against them, then the elementary principle that fraud vitiates everything, rendering that into which it enters void or voidable, and the-doetrine that a court with full chancery jurisdiction may compel its receiver to account to such persons and in such manner • and at such times as in the exercise of sound judicial discretion it may deem best, must have a very important exception.

In Schenck v. Ingraham, 5 Hun, 397, which we have before alluded to, where the receiver and his attorneys converted the trust fund to their own use very much as if is-said the receiver and his attorneys did in this case, it was held that upon the facts being established showing that the orders in question were obtained by fraud upon the court and in fraud of creditors, it was the “duty of the court to disregard them as a mere device or fraud, invented for misappropriating what justice required should be paid to the creditors-of the firm whose affairs it was the object of the action to settle.” The claim was made in that case, as here, that the order- *286 •of the court furnished the receiver and bis co-conspirators -some measure of protection, and to that the court said:

“The object of the law in allowing the court to take it in •charge, was to prevent it from being wasted, destroyed, or ■squandered, in order that a proper disposition of its proceeds ■ could be-made among the persons having lawful claims upon •them. That has been completely frustrated and defeated in the present instance. The fund designed for creditors and • others interested in the property producing it, in this in-stance, has been entirely exhausted by the claims allowed to the receiver and his counsel, and it is confidently claimed "that this court shall, after all that has been done, maintain 'the proceedings as valid through which that has been accom•plished. A result of that character would justly involve the ■administration of the law in the most unqualified and de- ■ served condemnation. Eor, under the forms of law, it would protect and sanction the most apparent injustice. No lapse ■of time less than that prescribed for the commencement of actions would either justify or excuse the court for a failure •to vacate and annul proceedings which appear to have been ■resorted to as, and successfully rendered, the means of such transparent injustice. Its power in this respect is ample, .■and it would be unworthy of the name of a court of justice if this distribution of the property put into the hands of its ■officer for preservation and protection should be permitted to •stand,”

It will sufficiently appear by the language quoted, that the holding was that the order obtained by a fraud upon the court was utterly void; that it was subject to be regarded as of no force whatever if properly challenged at any time within the period of the statute of limitations.

Looking only to the charges made against the appellants in the complaint and the findings in support thereof, the quoted language applies very fittingly here. If the findings are borne out by the evidence, then the property of the cor-' •poration never really passed out from under the control of its officers and their attorneys, except as it was divided up be"tween them as private property. The office of receiver was *287 a mere cover behind which, in fancied security, such officers and attorneys, those who conspired together to defraud the creditors before the action was commenced, at a time when they were responsible to the creditors as trustees of the corporate property, used up the trust fund for their private benefit. It would seem that, upon the most familiar principles of equity jurisprudence, the court having jurisdiction of the parties and the subject matter could deal with such a situation as if the order obtained by fraud upon it were entirely effaced from the record, so far as operating to any extent to protect the guilty parties. If that be not so, then the tribunal supposed to be the embodiment of the accumulated wisdom of ages, and possessing jurisdiction greater than any other earthly tribunal ever created to the end that justice might prevail between man and man, may, by cunning and selfishness, be made the most efficient means of defeating justice, the court being induced, unconsciously, to tie its own hands, rendering fraud within the very temple of equity, in the very case in hand, a bar to its administration. We cannot indorse that doctrine.

In justice to the learned counsel for appellants, to whose industry and professional acumen we owe much, enabling us to elucidate the question submitted for reargument, we acquit them, as does the learned counsel for respondents,' of at least making prominent in defense óf their clients any claim that they can shield themselves behind the office of receiver, if the findings of the court are borne out by the evidence that the whole proceedings which resulted in the wrongs complained of were but the means resorted to to carry out a fraudulent conspiracy to defeat the rights of the creditors of the corporation, entered into before the action was commenced. True, one' of the counsel argues that Mr. Erawley was not properly made a party defendant because he was never an officer of the corporation, and that the act making him a party was jurisdictional error because the action was statutory and be *288 cause there is uo provision in the statute for making other persons parties than officers. But other counsel appear to admit, inferentially, that Mr. Frawley was properly made a party if he was a participant in executing a fraudulent conspiracy to defraud creditors, entered into before the action was commenced. As we have before seen, the fact that he was not an officer of the corporation makes no difference with the power of the court in respect to him, if he in fact was a constructive trustee for creditors, of some part of the trust fund, as in effect alleged. Of course, all officers, and all colluding with them to defraud creditors before the action was commenced, were proper parties under sec. 3227, and on general principles of equity, as has been uniformly held in this class of cases, and as we have heretofore seen. In addition to the authorities we have heretofore cited to that, we will name the following, some of which are aptly referred to in the brief of the learned counsel for respondents: Powers v. Hamilton P. Co. 60 Wis. 23, 18 N. W. 20; South Bend C. P. Co. v. George C. Cribb Co. 105 Wis. 443, 81 N. W. 675; Proctor v. Sidney S., B. & P. Co. 8 App. Div. 42, 40 N. Y. Supp. 454, 456; Cummings v. Am. G. & S. Co. 87 Hun, 598, 34 N. Y. Supp. 541; Wood v. Sidney S., B. & F. Co. 92 Hun, 22, 37 N. Y. Supp. 885; Reed v. Stryker, 4 Abb. Dec. 26; Randolph v. Daly, 16 N. J. Eq. 313; Burns v. Beck & G. H. Co. 83 Ga. 471, 10 S. E. 121. A few quotations from the cited cases will emphasize what has been said. This from the opinion of PutNam;, J., in Proctor v. Sidney S., B. & F. Co., is in harmony with judicial expressions generally on the subject:

“I am inclined, therefore, to believe that this action, the object of which is to reach corporate assets, was properly brought, not only against the corporation, but also against those parties who have such corporate assets in their possession; that the complaint, which joined the corporation with those who had illegally obtained its property, claiming to recover that property for the benefit of creditors, contained but *289 a single cause of action; that the -well-settled principles applicable to a creditor’s suit against an individual should be deemed to apply to this creditor’s action against a corporation.”

Wood v. Sidney S., B. & F. Co. was a creditor’s action in which there was a claim that the debtor’s property had been placed beyond the reach of the creditors pursuant to a fraudulent scheme. All parties concerned in the alleged wrongful transaction were made defendants. The court said in respect to the complaint:

“The unlawful transfer, both through the sales under the judgments and the sale to Brooks, is treated as an act done in pursuance of one scheme, and the complaint is framed upon the theory that in equity a right existed on behalf of the plaintiffs to have anything that was done in pursuance of that scheme adjudged fraudulent and void, and to require all those who had received any property through it to account for the amount so received. All persons are therefore made parties who did in any manner participate in such transaction, and received anything through it.”

In Reed v. Stryker, the court said in respect to an analogous transaction, quoting with approval from a previously decided case:

“The general right claimed by the bill is a due application of the property of John Fellows to the payment of the judgment. The subject of the bill and of the relief, and the only-matter in litigation, is the fraud charged in the management and disposition of that property, and in which charge all the defendants are implicated, though in different degrees and proportions. The defendants, therefore, have one common interest among them all, centering in the point in issue in the cause; and different matters of different natures are not demanded by the bill. It is one matter.”

The court further said, quoting from Chancellor Kent, in Brinkerhoff v. Brown, 6 Johns. Ch. 139:

“There-was a series of acts on the part of the persons concerned in this company, all produced by the same fraudulent intent, and terminating in the deception and injury of the *290 plaintiffs. The defendants performed different parts in the same drama; hut it was still one piece — one entire performance, marked by different scenes.”

The importance of the feature of this case, upon the complaint and findings, in determining the question under consideration, that Rust, receiver, was, though ostensibly the hand of the court, in fact the hand of the officers of the corporation defendant, and that Mr. Hayden and Mr. Frawley, though ostensibly the attorney and counsel of the court’s officer, were in reality in that capacity for the officers of the corporation, justifies us in some further discussion of it.

The conception of a receiver is some one to take manual possession, for the court, of property, — to take it out from the possession of others and hold it for the better security of those who may be ultimately entitled thereto. The proceedings are in their very nature adversary to those holding the property ¿nd controlling it at the time of the appointment. When the receiver acts, in a legal sense the court acts. It reaches out “its arm” so to speak, and does the work requiring physical action, directed by business judgment, by using that of its officer. Now when such officer secures his appointment in the interests of those as to whom, in form, the proceedings are adversary, by imposing upon the court; when he acts in form for the court but in fact by a preconceived plan for the very persons from the possession and control of Avhom the property involved was designed to be removed; when by reason of the fraud the officers of the corporation, as in this case alleged and found, instead of being ousted from the control of its property by an equitable levy for the benefit of creditors in the only way the court could accomplish that, judicial instrumentalities are turned into mere means of enabling the officers of the corporation, through their agent, in greater security than before, to control the corporate assets for their own benefit: — it seems that the receiver has no status whatever as an agent of the court; that his real position is *291 that of an agent for the guilty parties who secured his appointment ; and that his possession is but a continuation of their possession. If there were no authorities to guide us on that, it would seem, on principle, that there would be no escaping the conclusion indicated. But we are not entirely without guides. The fact that there are but few does not cause doubt in our minds upon the soundness of the doctrine. It rather indicates that the instances are rare where any such imposition upon creditors and the court, as is alleged and found here, was successfully attempted, and perhaps still more rare where it has been exposed.

In Taber v. Royal Ins. Co. 124 Ala. 681, 26 South. 252, the court had to deal, in a creditor’s- action, with an action previously commenced, in which a receiver was appointed as a result of collusive proceedings. It was said most emphatically that there can be but one administration of a trust fund, and that the court having, by the legitimate appointment of a receiver, really taken to itself such fund, other proceedings interfering therewith were necessarily superseded. But it was held that the appointment of the first receiver, ostensibly as the agent of the court but really as the agent of those already in possession of the trust fund, was not the commencement of an administrative proceeding by a-court in any legitimate sense, and a real taking of the trust fund into its possession for that purpose; that the property in the hands of •such receiver should be deemed not to be in the possession of the court, but in the possession of the corporation through its agent. -The receiver was so treated, the court saying of the situation, this:

“We dismiss the consideration of the previous suit commenced by the absconding officers of the company, in which a receiver was improvidently appointed by the court, as having no bearing whatever in this case. It was collusive and fraudulent, and never amounted to a Us pendens in behalf of -creditors, nor was there any administrative decree rendered therein. . . . Though a receiver was nominally appointed, *292 bis position could amount to nothing more than a custodian introduced by the corporation itself.”

The supreme court of Texas had occasion to speak of the same subject in Texas & P. R. Co. v. Gay, 86 Tex. 571, 605, 26 S. W. 599, 613, and did so in these words:

“The theory on which a receiver is held to be an officer of the court appointing him, and not the agent of the owner, whose property is placed in his possession, is that the property to be controlled is taken from the custody and management of its owner and made subject to the control of the court without his consent; but when the defendant owner asks the court to do this, he, in effect, asks the court to make an appointment for him, and it is but just that a receiver so appointed should be held to be his agent.

“That a plaintiff collusively acts with a defendant for such a purpose only aggravates the case: for this enables the owner to impose upon the court, and such plaintiff has no ground for complaint if the receiver be held the agent of the owner in reference to every act out of which, in the management of the property, obligations to other persons may arise.”

That doctrine seems so reasonable and so in accord with principle, that we venture to say no court or reputable text-writer can be found to have said anything to the contrary. We find an express adoption of such doctrine in Beach, Receivers, §§ 206, 384; and find it referred to significantly in 23 Am. & Eng. Ency. of Law (2d ed.) 1040, subd. 10.

In view of the last foregoing discussion, the point made by respondents’ counsel, that it is expressly given to the court, if the power does not otherwise exist, by sec. 3239, Stats. 1898, to direct the liabilities sought to be enforced in this litigation to be treated as they were, is not without force. Sec. 3237 provides that:

“The circuit court shall have jurisdiction over directors, managers, trustees and other officers of corporations: to coni' pel them to account for their official conduct in the management and disposition of the funds and property committed to their charge; ... to compel payment by them to the cor *293 poration whom they represent and to its creditors of all sums of money and of the value of all property which they may have acquired to themselves or transferred to others, or may have lost or wasted by any violation of their duties as such directors, managers, trustees or other officers;” and “to set aside all alienations of property made by the directors, trustees or other officers of any corporation contrary to the provisions of law or for purposes foreign to the lawful business and objects of such corporation, in cases where the person receiving such alienation knew the purposes fo'r which it was made.”

Sec. 3239, Id., provides that jurisdiction to do all those-things “shall be exercised in an action ... by any creditor of such corporation” if the case may require it or the court so direct. Here E. E. Eust, as alleged by respondents and found by the court, was introduced into this litigation by fraud, to act as the agent of the corporation and its officers, and did so act, with the results complained of. If that be true, then the misappropriation of the trust property was to all intents and purposes the act of such persons, their agents, and other guilty participants, the same as if the semblance of a possession of such property by the court were entirely out of the case. That would present a plain case within the statute, authorizing the court to take jurisdiction of the matter at the suit of the injured creditors. The language of the statute is significant in that it is to the effect that the jurisdiction shall be exercised by either of several persons named, including creditors, as may be necessary or as the court may direct. It has heretofore been suggested that in so far as authority to instigate a suit of this nature is indicated by the statute it is a mere declaration of the common law. Gores v. Day, 99 Wis. 276, 74 N. W. 787. To that we adhere. If there is any significance in the words of the statute, “as the case may require or as the court may direct,” it is in the indication that the court has absolute authority within the boundaries of judicial discretion, to determine who shall represent as plaintiffs the per *294 sons primarily interested in redressing the wrongs referred to in sec. 3237. The courts have uniformly exercised that discretion, as we have before seen, to the extent of entirely rearranging the parties to the record in suits of this kind, making those who instituted the suit defendants, and substituting new parties as plaintiffs. The court exercised the same discretionary power here; and that brings us back to the point, at which we have several times arrived: Whether the court committed jurisdictional error or not depends upon whether discretionary power was abused, and under the circumstances of this case so abused that, after a trial upon the merits, this court should say that jurisdiction of the subject matter was not acquired.

We have now been over, point by point, specifically or generally, all except one of the reasons suggested for our consideration of why the practice in this case should be condemned as jurisdictionally infirm. Assuming, as we must, that each reason put forward by the learned counsel for appellants was thought by them to have merit, we have avoided ignoring any one of them, regardless of whether any seemed to us to be without significance. The result is that some subjects have-received as careful attention as if the case might turn thereon, which, we must say, are not really open to serious discussion from a judicial standpoint. How best to frame an opinion where a large number of points are presented by able counsel, with supporting authorities supposed to demonstrate the soundness of each and with reasons supposed to make the same applicable to some phase of the case in hand, is not always easy to determine. To consider and decide the vital questions only, which are usually few in number, and brush the rest aside, greatly economizes labor and space and furnishes all that is essential for the final decision to rest upon, and probably satisfies the strict measure of judicial duty; but it is liable sometimes to leave counsel more or less uncertain in mind as to whether their labor to aid the court has been appreciated and their labor to serve their clients not been in *295 great part wasted, and whether the decision might not hare been different had the points treated, apparently, as so unimportant as not to call for more than a mere mention if even that, been carefully examined. Though it has entailed much labor upon the court, the broader method has been adopted in this case, of discussing to some extent every question presented, though it seemed to us in some instances that only elementary principles were involved, or questions not open to controversy in view of previous decisions of the court. Our references have been chiefly to points suggested by appellants’ counsel, because that seemed to be the logical way of treating the matter, and because the discussion of appellants’ points incidentally covered the grounds upon which respondents claim that an affirmative answer to the court’s question should be given. We will now proceed to consider the remaining proposition submitted by appellants’ counsel.

We may briefly state counsel’s proposition thus: The complicated character a suit may assume, as evidenced by the one before us, in the practice which an affirmative answer to the court’s question would establish, indicates the absurdity of such practice and condemns it utterly. . Numerous illustrations are given by the learned counsel, of their conception of the practice in these winding-up suits, extended, as it is supposed it would be, in order to cover the matters litigated in this suit. Viewing the practice as counsel treats it, we do not wonder that the exclamation is made: “Can it be claimed that the legislature ever intended such a result!” After all that has been written, endeavoring to make the scope of this class of suits easily determinable, it is evident by the illustrations given by counsel that if this one falls within the rule a very erroneous idea of such scope is yet liable to be entertained by the profession. That suggests further effort to mark the boundaries of the principles involved. This is the result which counsel apprehend might follow stamping the practice in question as proper:

If, subsequent to the commencement of an administration *296 suit and the sequestration of the assets possessed by or under the control of the debtor, these liabilities should be incurred, the parties responsible could, by supplemental bill, be brought into the litigation and the wrongs redressed:

A tenant of some part of the trust property, liable to an action of unlawful detainer.

A hostile claimant of some part of the land belonging to the trust property, so circumstanced as to be liable under ordinary conditions to an action of ejectment.

A person, so circumstanced, as to land belonging to the trust, as ordinarily to be liable to an action to remove a cloud upon title.

A. person takes some part of the trust property under claim of title in such circumstances as commonly to render him liable at the suit of the rightful owner to an action of replevin.

A person in the employ of the receiver embezzles some part of the trust fund.

One commits a trespass upon realty belonging to the trust.

Now, so far as the legislature, has spoken on the subject of the administration of the property of an insolvent corporation for the benefit of its creditors, as we have heretofore seen, it has merely indicated by implication, though as plainly as if it were done expressly, that it shall be after the manner of suits in equity commenced by general creditors’ bill. Such a bill is properly filed against every person as defendant, possessed of any part of the trust fund in the capacity of trustee for creditors, and also against any person who should be made a defendant for his due protection and to prevent multiplicity of suits. He is liable to the creditors as a class, but upon grounds rendering the liability not enforcihle except so far as necessary. There is the test of the scope of the subject matter of the suit. That it does not include any such matters as those suggested in counsel’s illustrations, or any claim involving merely the relation of debtor and creditor, or any liability of an officer of the corporation purely personal to a particular creditor, as explained in Killen v. *297 Barnes, 106 Wis. 546, 82 N. W. 536, seems plain. .That it does include all claims, statutory or otherwise, against officers and stockholders of the corporation as such, whether considered as assets of the corporation and so a part of the trust fund proper, or liabilities to the creditors as a class to he enforced only so far as necessary to pay them, and forming a part of the trust to that extent, and all liabilities against persons occupying the position of constructive trustees for the creditors by reason of their having obtained the property of the corporation in fraud of creditors, has often, in terms or in effect, been heretofore declared, the most recent instance being Williams v. Brewster, 117 Wis. 370, 93 N. W. 479. The trust relation to creditors, within these rules, of all the defendants brought into this litigation by amendment, has heretofore, it seems, been clearly demonstrated. While it does not appear especially difficult to apply the proper test and determine what matters may he and what may not be brought into a winding-up suit without violating established practice, in view of the difficulties experienced in the administration of the remedy, as indicated by the recurrence of controversies in respect to the matter, since the court many years ago recorded its judgment in respect thereto in Hurlbut v. Marshall, 62 Wis. 590, 22 N. W. 852, where, after explaining in detail the scope of the remedy in harmony with the foregoing, the court said, “all of the principles involved are elementary and not at all abstruse,” — something further, it seems, should he said. The declaration that all of the principles involved are elementary and not at all abstruse does not necessarily mean that there may not he many situations where difficulties may legitimately exist after applying established principles, in determining whether a person is liable to account as trustee, within the broad meaning of that term, to the creditors, but only in case of clear error in that regard should the ruling in respect thereto, by the court charged with thé duty of supervising the administration of a trust, be disturbed.

It has been common to point to the supposed complicated *298 character of these administration suits, as counsel have done in this case, as a reason for restricting their scope, or as a reason why some particular matter involved should not he deemed a legitimate part of the subject matter of the action. In many cases that has been done apparently without appreciating the dominating principle involved. A good instance of that is Gager v. Marsden, 101 Wis. 598, 71 N. W. 922, where, as in this case, the appellant’s counsel mistook mere parts of one subject matter for distinct causes of action, and confused the relation between the trustee and the cestui que trust with that between debtor and creditor, and liabilities purely personal to one with liabilities to a class and only contingently enforcible; and so misconceiving the true boundaries of an administration suit referred to the practice in such cases, as this court has been constrained to outline it, as “confusing and complicated to a degree entirely inconsistent with a safe and reasonably convenient administration of justice.”

Of course, nothing new was declared in Hurlbut v. Marshall as to the legitimate scope of a suit in equity to administer the trust fund. The whole subject involved was covered by the doctrine that the liabilities referred to were to be deemed a trust fund and treated as such. The case only went to the extent of holding, perhaps more plainly than before, that the legislature intended, by secs. 3216 to 3239, inclusive, Stats. 1898, that a creditors’ action against an insolvent corporation should be commenced and prosecuted according to principles of equity for the judicial administration of a trust, all the beneficiaries thereof being proper plaintiffs and all holders of property in the capacity of trustees for them in any sense, or liable to them as a class, by virtue of the statute being considered as legitimate parts of the trust fund to be administered, being defendants. The principles of the judicial administration of a trust fund for creditors had long been theretofore established. There can be but one such administra *299 tion. The court first acquiring jurisdiction by the filing of a proper bill and the commencement of a proper suit, whether all of the necessary parties are first brought in or not, retains it to the end. Northwestern I. Co. v. Land & R. I. Co. 92 Wis. 487, 66 N. W. 515. All actions theretofore commenced •affecting the trust property are adjourned, so to speak, there-into, and all subsequent actions interfering with the trust property are thereby barred. The whole subject matter is necessarily encompassed by the one suit, and nothing can be legitimately allowed to judicially occur that will impair its unity. One of the purposes of such unity is to avoid multiplicity of suits. The dominating idea is that equality is equity, that it should exist as to benefits and burdens, and that such end can only be accomplished by participation of all persons standing in the relation of cestuis que trustent and trustee, and all affected by extraordinary liabilities not to be enforced except upon equitable principles, so far as necessary to meet the demands of the creditors contingently and equally, should be brought into the litigation. The principles involved mark the boundaries of the subject matter to be administered. So far as the boundaries are thus set courts should not endeavor to restrict them because they include a great number of issues of different sorts between plaintiffs and defendants, and different equities as to one class of plaintiffs from those of others, all to be worked out in one omnibus proceeding. It is not infrequent that the profession and the bench feel like revolting at the magnitude of such an undertaking, and yet one of the most valuable features of equitable remedies is the opportunity they afford the court to lay hold of a subject matter, however large, made up of a single primary right and all rights germane thereto, however numerous, or several such subject matters under certain circumstances, bring all parties directly interested before the court, with all parties necessary to be there for their due protection, and settle the entire controversy by a single decree in a single administration proceed *300 ing, giving to each party his just measure of relief or protection, and each his just measure of punishment, forever closing the primary dispute and all so connected therewith as to be legitimately considered a part thereof. It would he a backward step in the administration of justice to let the magnitude and complexities of a single subject matter lead to a sacrifice of one iota of such principle.

If the mere magnitude of the work, the number of parties and issues, and variety of relief demanded, legitimately included within a single subject matter, would furnish any justification for failing to vindicate the established practice to its full extent, this case — with its record» of between 6,000 and 7,000 pages, and requiring, after all the industry of counsel had been exhausted in condensing such a vast amount of material into as small a compass as practicable, about 3,400 pages of printed matter to present it — would accomplish that result; but it does not. Principles do not change with the magnitude and difficulties of cases. Of course, there is no danger of such liabilities as the learned counsel suggests in his illustrations being included within the subject matter of an administration suit. They, like any other mere thing in action, pass to the receiver and become a part of the trust property in his possession, to he converted into money at his suit if necessary, while the liabilities of trustee defendants and of those whose responsibilities are only enforcihle upon equitable principles, are to he marshaled into the trust.fund in money by direct proceedings in the main suit. The dividing line, go far as the principles involved are concerned, is plain. Probably, except for the bar that established practice has set up in the matter, the liabilities enforcihle for beneficiaries of the trust fund in a winding-up suit might he very much extended, as intimated in Peck v. Elliott, 79 Fed. 10, cited by respondents’ counsel. There the federal court held that its authority extended to gathering mere dues from creditors of the corporation defendant into the trust fund in *301 money, by independent suits in the name of its receiver, or by making the debtors defendants in the winding-up suit. That is in harmony with what we have said to the effect that the power of the court in such matters is plenary except so far as it is limited by sound judicial discretion. It is so effectually limited here that the making of mere debtors parties defendant in the original suit would be deemed most serious error.

The final conclusions that must be drawn from the foregoing seem clear.

All of the alleged liabilities made a part of the subject.matter of this suit by the supplemental bill, either were unknown to the creditors when the suit was commenced, or they thereafter accrued. They are all material to the original purpose of the action, — the one subject thereof. Had they existed at the origin of the litigation, they could have been made a part of the plaintiff’s cause of action. Unless the receivership feature is a bar, it is within the discretionary authority of the court to permit them to be made a part thereof by the supplemental bill. While the general practice in settling a receiver’s account, and the amount for which he is liable for breach of trust is by special proceedings in the action wherein he was appointed, issues being made up and tried before the court or referee or otherwise as to the court may seem best, the beneficiaries having full opportunity to be heard in the matter, and the general way of enforcing payment of whatever sum the receiver may in such proceedings be adjudged liable for is by way of contempt proceedings, — that method is not exclusive. The whole subject is under the control of the court within the boundaries of sound judicial discretion. It might in exceptional circumstances permit an independent action to be brought against its receiver by the beneficiaries of the trust; or, if the original suit were yet open, permit him to be made a defendant therein and the matter involved be closed by the general decree.

*302 If it is alleged as to a receiver, that during tbe course of bis administration be pursued a systematic course hostile to tbe primary beneficiaries, concealing bis conduct from the knowledge of tbe court till tbe trust fund was, by him and those fraudulently colluding with him, wasted or put beyond tbe reach of such beneficiaries, except so far as tbe same could be recovered by judicial proceedings, and there is probable ground for believing that tbe charge is true, and tbe issues raised in tbe action in respect to tbe trust are still open, it is competent for tbe court, on such showing, to permit tbe claim on behalf of tbe creditors, against tbe receiver and bis alleged guilty participants, to be treated as a part of tbe original subject of tbe action, and to be brought into it for trial by supplemental bill.

If an action is commenced ostensibly to administer tbe assets of an insolvent corporation, but really pursuant to a fraudulent agreement between its officers or its officers and others, to enable them to control tbe corporate assets for their own benefit, and in execution of such fraudulent scheme those controlling tbe suit induce tbe court, by false pretenses, to appoint as receiver one of their own number who will use bis office to enable them to effect their wrongful purpose, and be does so use it, the court may, upon being satisfied of a probability that such fraud has been committed, for tbe purpose of having tbe truth of tbe matter judicially determined, permit tbe creditors to treat such receiver as having been tbe agent of tbe corporation and its officers, and tbe assets of the corporation to have been by bis aid continued under their control, though being ostensibly under tbe control of tbe court. In such circumstances it is eminently proper for tbe court— tbe condition of tbe suit being such that under any circumstances a supplemental complaint might be made — to allow such officers and such agent to be made parties defendant and charged as trustees for creditors, as to tbe property of tbe corporation still in their bands, and tbe value of all wrongfully *303 •appropriated by tbem or otherwise lost through their wrongful conduct, or that of either of them, in execution of the original fraudulent design. To bring such parties into the ■suit as defendants on either of the contingencies mentioned, it is believed, would not be a stretch of judicial discretion, and on the last one mentioned would be a very wise exercise ■of judicial power.

Upon a review of the whole situation, we can see no legitimate ground for appellants to complain. They had as full an opportunity to be heard in their defense as they would have had if any other method, adequate under the circumstances to meet the case, had been adopted. Certainly, no ■good ground exists for the court to hold that the practice adopted was such an abuse of judicial power as to constitute jurisdictional error. On the contrary, in view of the feature of the case as to Eust being really the arm of the corporation defendant and its officers, instead of that of the ■court, the practice adopted meets with our approval.

III.

Appeals.

We have now reached the merits of the appeals. There are many questions to be considered in respect thereto. If we were to discuss each appeal at length as regards matters of evidence, and the legal principles applicable thereto as well, this opinion would unavoidably be extended to such length that it seems best not to take such course, but to confine what we may say mainly to conclusions reached on minor and ultimate questions. The details involved have been studied with nil the care that could reasonably be devoted thereto, having regard to the important interests involved. Notwithstanding the great length of the record, we trust nothing has been overlooked. The importance of fully understanding the evidence *304 in all its bearings, in view of the extraordinary character of the findings, could not well be overestimated. By such findings a score or more of men of the foremost in professional and business life in the community in which they resided, as appears, and whose integrity in their relations with their fellow-men we must assume was above reproach, are condemned as having been guilty of conceiving and executing one of the most far-reaching and dangerous frauds of which we have any history in the records of judicial investigations; a fraud that required in its consummation the services of the agents of one of the highest judicial tribunals known to our láw, and which obtained that aid; a fraud, if we must take the findings as right, so manifest in the various steps in its consummation, as they were brought before the court, that it could not have escaped the notice of the judicial head having charge of the matter, without such inattention thereto as to make him, morally at least, a party to the wrong. Nothing equal to it has before come to our attention in experience or research. The characters of these prominent men, in business, professional, and official life, stand condemned before the bar of justice, and condemned so severely as to blacken their reputations beyond reasonable hope of the cloud being lifted, if the indictment be found to be justified by the law and the evidence. Eour of the most prominent figures in this picture, and the three most prominent of them, have, as the record shows, since the action was commenced, entered upon that journey from which there is no return. If the conclusions reached by the trial judge are warranted by the evidence and the law, the judgment complained of comes far short of fully remedying the wrongs these men were guilty of, as regards the parties plaintiff directly interested; much less the administration of justice which they abused and in effect corrupted. If the conclusions of fact were reached by the trial court by overlooking material evidence or disregarding it, or drawing unwarranted inferences, and by misconceiving the rules of law *305 applicable to tbe case, a wrong has been done to these men, under the sanction of the law, and by distinguished and conscientious administration of it in the court whose judgment we are to review, of such a nature that, after the jurisdiction of this court shall have been exhausted to remedy it, the living parties now resting under the condemnation and those who stand for and feel the load of the absent participants will still be sufferers. These considerations are all entitled to, and will, receive attention in determining the scope of what should be said in order to vindicate the justice of the judgment complained of, if it is right; and vindicate the integrity of the condemned parties, so far as the evidence and the law will warrant, if the conclusions of the trial court and the judgment based thereon are found to be unjust.

A few questions are common to all the appeals. We will give attention to them at the outset.

A demurrer ore terms was interposed as to each defendant. This seems to have been done upon the theory «that it was not permissible to bring the matter litigated before the court by a supplemental bill or by proceedings in the way attempted, as to the receiver and his alleged co-wrongdoers; or upon the ground that a creditors’ action against an insolvent corporation is wholly statutory and that no warrant is found in secs. 3216 to 3239, inclusive, Stats. 1898, covering the subject, for including the matters charged against the appellants; or because the supplemental complaint did not show that the condition precedent to the right to commence a creditors’ action — the issuance of an execution to enforce a money judgment against the corporation and return thereof unsatisfied— had been fulfilled; or because the facts pleaded show inexcusable laches; or because damages caused by an actionable fraud cannot be recovered in an equitable action, and particularly not as part of a trust fund in a winding-up proceeding of this sort. We are left somewhat in the dark as to just what counsel did rely upon. Errors are assigned as to each appeal, *306 because the demurrer was overruled, but very little is said by counsel in respect thereto. Most of the reasons we have mentioned as likely to have been in the mind of counsel as a basis for their position have been treated in discussing the jurisdictional question. There, incidentally, it seems, enough was said to indicate that none of the suggested reasons can be successfully urged in support of the alleged insufficiency. The pleader stated in the complaint but one cause of action, and in that charged each defendant with a degree of responsibility fatally involving him in the wrong complained of. In other words, if there is a cause of action against one, it is against all.

True, as counsel suggest, it is essential to a cause of action in equity by creditors, to administer the property of an insolvent corporation for their benefit, by statutory regulation and otherwise, that it be alleged that all legal remedies for the collection of the moving creditor’s claim have been exhausted by the establishment thereof at law, the issuance of an execution thereon in a good-faith-attempt to collect the same, and a return of such execution unsatisfied. Hinckley v. Pfister, 83 Wis. 64, 82, 53 N. W. 21; State ex rel. Fowler v. Circuit Court, 98 Wis. 143, 151, 73 N. W. 788; Davelaar v. Blue Mound I. Co. 110 Wis. 470, 474, 86 N. W. 185; sec. 3216, Stats. 1898. Respondents’ counsel, answering that proposition, suggest, in effect, that the rule laid down in Hinckley v. Pfister, that a defect in the complaint in regard to such essential cannot be raised by demurrer ore tenus, has been overruled, citing Hoff v. Olson, 101 Wis. 118, 76 N. W. 1121, and Johnson v. Huber, 106 Wis. 282, 284, 82 N. W. 137. Meyer v. Garthwaite, 92 Wis. 571, 66 N. W. 704; Bigelow v. Washburn, 98 Wis. 553, 74 N. W. 362; Post v. Campbell, 110 Wis. 378, 384, 85 N. W. 1032, and many other such cases, might have been added. They are only to the point that an objection to the sufficiency of a complaint in equity, that it shows the plaintiff has an adequate remedy at law, is *307 waived unless raised by demurrer on tbat ground. That does not reach tbe question of whether the essential to a cause of notion in a creditors’ suit, where sequestration is sought, that all legal remedies shall have been exhausted in the manner before indicated, not being stated in the complaint, the defect eanhe raised by demurrer ore terms. A defect of that character does not involve a mere matter of practice, such as whether the proper forum for the plaintiff to invoke is that •of law or that of equity, as in the cases cited by counsel for respondents (Martin v. Martin, 112 Wis. 314, 317, 87 N. W. 232, 88 N. W. 215), but whether there is any cause of action -at all. However, we are unable to discover that there is any -such defect in the complaint in this case. It shows by appropriate allegations that a judgment was duly rendered at law in favor of H. H. Hayden against the insolvent corporation; that execution was duly issued on such judgment, and was •duly returned unsatisfied; that thereafter the judgment creditors commenced an action which by due proceedings assumed the form of, and is in fact, the action in which the judgment •complained of was rendered. Because, in the supplemental •complaint, Mr. Hayden was made a defendant, so that it did not appear that any plaintiff, as the parties appeared upon the record at the trial, was so circumstanced as to be competent to commence such an action, is not material.. The court having legitimately become possessed of the subject matter involved, the place thereafter occupied on the record by the person invoking the jurisdiction of the court at the start, whether plaintiff or defendant, or whether he dropped out of the litigation altogether, the fact still appearing by the complaint that the jurisdiction of the. court was properly invoked, could make no difference. The mere arrangement of parties on the record in an equity case, in order that those united in interest may appear as plaintiffs and those adverse thereto may appear as defendants, the former standing for the subject mat-iter of the action upon sufficient facts alleged, pertains to mere *308 judicial administration and is under the supreme control of the court within the boundaries of sound judicial discretion.

The point that the complaint shows the conduct of plaintiffs respecting the matters of controversy presented by the supplemental complaint was fatally tainted with laches, does not appear to have support. The complaint contains specific allegations to the effect that none of the facts alleged, upon which the liability of appellants is predicated, came to the knowledge of the respondents till shortly before the application was made for a reopening of the litigation and leave to bring in the new matter and new parties. No situation is disclosed indicating that respondents were guilty of negligence in not earlier discovering the facts so that, by the rules on that subject, they should be denied judicial aid. Bostwick v. Mut. L. Ins. Co. 116 Wis. 392, 421, 89 N. W. 538, 92 N. W. 246. It is fairly inferable from the complaint as a whole that the circumstances which moved respondents to action, resulting in their appeal to the court to reopen the case, occurred at the time of and within a short period before the final closing-up of the receivership matter, and that nothing occurred prior to such period, known to plaintiffs or which they could reasonably be charged with knowledge of, so tending to suggest unfaithfulness on the part of the receiver that the respondents should have discovered, earlier than they did, the evidence of wrongdoing if it existed. In any event, there being no element of estoppel to be dealt with, and no fatal negligence on the part of the respondents, and no difficulty as regards the subject matter of the supplemental complaint, except as regards the time of bringing such matter to the attention of the court, whether the facts justified the court in permitting such complaint or not, does not go to the cause of action. It was a mere practice matter, addressed to the sound discretion of the court.

A point is made that the consolidation of the action commenced by James T. Barber and another, and the one com- *309 meneed by H. H. Hayden, into one, and tbe allowance of a supplemental complaint as if only a single action remained, was an unwarranted proceeding. Counsel suggest, seemingly with confidence, that consolidation of actions means only consolidation of trials; that is, a trial of several actions together, not the trial of one action instead of several actions. Counsel •cite authorities supposed to support that view. We do not feel justified in taking time to discuss them. In our judgment their import has been overlooked by counsel, and they have further overlooked the statute, sec. 2192, Stats. 1898, which expressly indicates, as o'f course the fact is, that consolidation of actions means the creation of one out of two or more that might reasonably have been brought as one. That power, as to actions formerly cognizable only in equity, exists independently of the statute. Biron v. Edwards, 77 Wis. 477, 46 N. W. 813. This was eminently a proper ease for the exercise of such power. There could not be, without violating established practice, more than one action allowed to administer the property of the corporation and, incidently, ether liabilities for the benefit of its creditors. Necessarily, the first one properly commenced superseded the other. Such other, since both were commenced in the same court, and judicial consent was given, became adjourned, so to speak, into the properly commenced action, as a matter of course, and the entry of the formal order in that regard only recorded the fact. From the time of the commencement of the Hayden action and the proceedings thereafter recognizing the status of the first action and affirming what had been done therein, there was really but one action to proceed.

The complaint charged that, as early as January 1, 1893, appellants Thompson, Gilbert, Owen, and Barber, and the deceased persons, Rust, Hayden, and Moon, all of whom were officers and stockholders of the corporation, knew that it was hopelessly insolvent, and then entered into a conspiracy to appropriate to their own use its assets in fraud of general *310 creditors, and that in pursuance thereof, prior to May 18,. 1893, they caused to be hypothecated to themselves and to-corporations in which they were interested, for the purpose of securing previously contracted debts of the insolvent to themselves and such corporations, a large amount of the insolvent’s-assets. Acts, in great detail, were alleged to have occurred pursuant to such conspiracy, all of which were covered, favorably to the respondents, with lite detail in the findings, followed by a conclusion to the effect that all of such hypotheca-tions were legitimately made, and that no such conspiracy as that alleged, or any other, prejudicial to the creditors of the insolvent, was formed by the alleged guilty parties prior to May 15, 1893. None of the-acts on the part of such persons,, alleged to have occurred to the wrongful prejudice of creditors prior to that time, were so found, and none before the-commencement of the first receivership, May 23, 1893, except one, viz., the giving of the Brookville mortgage May 18, 1893,. which will be considered in appeal No. 5; but it was found' that some time after May 15, 1893, and before the commencement of the Barber action, the alleged guilty persons formed a conspiracy to place the property of the corporation, with a court receiver, and to cause it to be administered by him, acting ostensibly as agent of the court but really as their agent, so as, in the end, under the forms of law, to appropriate such property to their own use. That finding, as indicated, was not based upon any direct or circumstantial evidence showing wrongdoing as to any occurrence before the date of the supposed conspiracy. Up to that time, which, as has been seen,. was on the eve of the commencement of the receivership action,- all of the alleged guilty parties-stand forth wholly innocent of the indictment against them-contained in the complaint. The hypothecations alleged to-have been made were in fact made, but all but one of them, as found by the court, and that iñ legal effect, as we shall see-hereafter, were made for a sufficient consideration while the- *311 corporation was a going concern and its assets were free from any impress of a trust for the benefit of creditors. Slack v. N. W. Nat. Bank, 103 Wis. 57, 79 N. W. 51. The law in that regard in this state, when the supplemental complaint was made, was not so well settled as it was later when the cause was tried.

It seems quite evident from the complaint that it was framed upon the theory that the mere fact that the corporation was insolvent, if such were the fact, at the time the hy-pothecations were made, notwithstanding it was a going concern and might, so far as then known, continue in business indefinitely, impressed its assets with a trust for creditors, disabling its officers from dealing therewith, as to creditors, by taking security for debts due from it to them or those due to others secured by their responsibilities. Facts were alleged in great array, as regards occurrences long prior to the commencement of the action, which at the outset, it seems, were supposed to point conclusively to a precedent agreement and to its consummation, the legal effect of which, whether the occurrence took place by concert of action or not, would be a fraud upon creditors. However, in harmony with the settled principles as understood at the time of the trial, the court held, in the end, that no fraud was inferable therefrom as a fact, nor resulted therefrom as a matter of law. Up to this point the learned court, in reaching minor conclusions, followed the order adopted in the complaint. The evidentiary facts were first found, upon which the ultimate facts and conclusion of law claimed depended. When that was reached the alleged guilty parties were exonerated, not condemned. The findings were framed in an orderly and logical way, since the truth of the matter which the court was in quest of was to be disclosed if at all by circumstances. From that point on, the order seems to have been reversed. Instead of finding the existence of facts from which fraud might reasonably be inferred,, if inferable at all, followed by the ultimate con- *312 elusion in respect thereto which the circumstances seemed to call for, the conclusion was reached at the outset and from that standpoint the actions of the parties thereafter — which in the main at least, if found wrongful at all, would under ordinary circumstances have been attributable and attributed to error of judgment from a business standpoint, or mistake of law, in the absence of some very clear indication to the contrary — were found to be successive steps in consummating the original design. The structural features of the findings, which the learned court which tried the case doubtless adopted at the suggestion of the learned counsel for the prevailing parties, are not entirely without significance in determining whether the evidentiary circumstances were found from the proper standpoint, and in determining whether fraud should or should not be inferred therefrom, which is in the main the basis for the judgment complained of.

The question of whether the findings of fact are supported by the evidence in the light of correct principles of law, is common to all the appeals. We are constrained in our considerations not to review at the outset the finding as to the alleged guilty parties having entered into the fraudulent combination held to have been made, but to consider the eviden-tiary circumstances as found, and after passing upon the exceptions to the findings in that regard, to then consider whether what remains of such findings supports the conclusion of fact as to the fraudulent conspiracy or not.

In considering the exceptions to the findings, these familiar principles will be recognized and applied. They are mentioned here to avoid referring to them in detail as the review of the case proceeds:

1. ‘Since the circuit judge who tried this issue had the benefit and advantage of a personal examination of the witnesses, and was better qualified to judge of the weight to be given to their testimony by the usual tests of credibility, than this court can be, his finding of the main facts ought not to be dis *313 turbed without sucb a clear and palpable preponderance of the evidence against it as will create a positive conviction in our minds that he erred in his conclusion.’ Rice v. Jerenson, 54 Wis. 248, 251, 11 N. W. 549; Zoesch v. Thielman, 105 Wis. 117, 80 N. W. 1107; Vilas v. Bundy, 106 Wis. 168, 81 N. W. 812; Johnson v. Goult, 106 Wis. 247, 82 N. W. 139; Wyss v. Grunert, 108 Wis. 38, 83 N. W. 1095; Wussow v. Hase, 108 Wis. 382, 84 N. W. 433; Remington v. Eastern R. Co. 109 Wis. 154, 190, 84 N. W. 898, 85 N. W. 321; Endress v. Shove, 110 Wis. 141, 85 N. W. 651; Hill v. Am. Surety Co. 112 Wis. 627, 88 N. W. 642.

2. The foregoing rule requires, in order to warrant the disturbance of a trial court’s findings of fact upon appeal, that such findings shall appear so plainly against the preponderance of the evidence as to be explainable only by want of proper consideration of the evidence, mistake in overlooking material portions thereof, or prejudice, or some other improper cause. Wyss v. Grunert, 108 Wis. 44, 83 N. W. 1095.

3. The burden of proof is on him who alleges fraud to establish the same by clear and satisfactory evidence, — not to that degree of certainty which is said to be beyond a reasonable doubt, but by a preponderance of the evidence so clear and satisfactory as to establish the fact found with reasonable certainty, giving due weight to the presumption that human actions in business relations are characterized by good faith, at least as regards responsibilities of which the law takes notice. "Odiosa et inhonesta non sunt in lege prcesu-menda; et in facto quod se habet ad bonum et malum, magis de bono quam de malo prcesumenda est.” (Odious and dishonest things are not to be presumed in law; and in an act which partakes both of good and bad, the presumption should be more in favor of what is good than what is bad.) Co. Litt. 78; Rice v. Jerenson, supra; F. Dohmen Co. v. Niagara F. Ins. Co. 96 Wis. 38, 52, 71 N. W. 69; Jones, Ev. § 190; 14 Am. & Eng. Ency. of Law (2d ed.) 190.

*314 4. Tbe first rule mentioned does not apply where it is manifest that tbe findings were based upon a mistaken view of tbe law. Milwaukee Co. v. Pabst, 70 Wis. 352, 35 N. W. 337.

5. Tbe first and second rules mentioned apply with more or less force according as tbe record discloses tbe existence or nonexistence of those elements upon which it is based. So far as tbe ultimate facts are dependent upon inferences from undisputed evidentiary matters fully appearing upon tbe record, tbe supposed better opportunity for tbe trial court to discover tbe proper inference is not to be overcome upon appeal by greater clearness in tbe evidentiary effect of such circumstances than would be required in viewing tbe same from an original standpoint.

6. Tbe admission and consideration of improper evidence is deemed immaterial upon appeal in considering tbe question of whether findings made by tbe court are supported by tbe evidence, unless it clearly appears that otherwise tbe findings would have been different. Hill v. Am. Surety Co. supra; Duncan v. Duncan, 111 Wis. 75, 86 N. W. 562. Tbe rejection of proper evidence is deemed immaterial in tbe circumstances mentioned in tbe foregoing rule, unless it appears that bad it not been for such rejection tbe findings might probably have been materially different.

7. It is presumed in viewing a trial court’s finding that improper evidence taken under objection was given no weight in reaching tbe final conclusion, unless the contrary appears. Rozek v. Redzinski, 87 Wis. 525, 58 N. W. 262; Farr v. Semple, 81 Wis. 230, 51 N. W. 319.

While from tbe wording of tbe notices of appeal as regards sec. 3052, Stats. 1898, we were compelled to bold that nineteen distinct appeals were taken, appellants are united in interest according as their names appear in tbe several instruments by which tbe appeals were taken, except in one case, where there are two appellants, but two distinct interests as regards costs. That is to say, testing tbe appeals by tbe in *315 terests to be dealt with, we have but eight parties appellant. We will treat them that way.

All questions that will how be treated should be understood to have been raised by proper exceptions. Except where necessary we shall not undertake to mention exceptions or assignments of error.

Appeal No. 1.

Appeal by W. A', and 'A. J. Bust, as personal representatives of R. E. Rust, deceased.

The facts found by the trial court in respect to this matter appear in detail in the statement preceding the opinion in findings 175 to 181 inclusive. The following history of the matter appears wholly or substantially undisputed in the evidence as we view it. Many of the features are embodied in the findings, though those omitted have a material and perhaps controlling bearing.

The National Electric Manufacturing Company, some three years before the commencement of the first receivership action, which for convenience we will hereafter call the Barber action, installed an electric lighting plant at Asheville, North Carolina, on lands owned by J. A. Lyman, it being understood then or some time thereafter, and prior to May 5, 1891, that he would take $1,000 in bonds secured upon the property, for such land. The local company which owned the plant, and the debtor of the electric company, was the People’s Light, Heat & Power Company, which we will hereafter call the proprietor company. Prior to May 5, 1891, such company plaeed a trust deed on the electric plant and the land upon which it was situated, to secure thirty-four $500 bonds, which were to be used, in the main at least, to pay the electric company on construction account. On the day named' the latter company opened an account with this bond matter by a debit item of $17,000, and a memorandum that the bonds were received and delivered to George B. Shaw. On *316 tbe same date the account was credited with numbers 1 and 2 of the bonds, $1,000, with a memorandum explaining that they were left with Gobb & Merriman, attorneys at Asheville, to pay Mr. Lyman for the land upon which the electric plant was situated; and was also credited with numbers 10 to 14 inclusive of the bonds, $2,500, with a memorandum indicating that the same had been delivered to J. A. Lyman. For what purpose the latter delivery was made does not appear, but it does appear that the electric company did not at any time own the bonds so delivered, after May 5, 1891. The $1,000 in bonds “were left with Cobb & Merriman” pursuant to some arrangement to which the proprietor company was a party. Whether the electric company at any time was the owner of such bonds, or controlled them for any purpose, except to deposit the same with Cobb & Merriman for the uáe of Mr. Lyman, does not appear. The indications are that it did not, and that they were never taken from Asheville by the electric company or its receiver, or any one acting for either to the knowledge of the latter. It never had possession of the bonds, if at all, subsequent to May 5, 1891, the day, so far as indicated, when it first had dealings with the bond matter. In addition we find in the record, in the form of an agree-menton the trial: “It is conceded that the amount owned by the receiver was $2,500.” That must have been overlooked in drawing the findings. The deposit with Cobb & Merriman was made by the electric company and the proprietor company for the special purpose of paying Mr. Lyman.

Default, was early made in the payment of interest upon the bonds, only the first six months’ interest being paid. Prior to January 1, 1893, and while it was competent to do so, twelve of the bonds were turned out by the electric company to the Chippewa Valley Bank of Eau Claire, Wisconsin, as collateral security, and ten of the bonds were likewise turned out to M. G-. Shaw of Eau Claire, five bonds, of $2,500 only, remaining under the control of the electric company. The *317 facts in that -regard were duly entered on the company’s boohs. Thereafter, and before January 1, 1893, the Chippewa Valley Bank took charge of the matter of protecting the interests of the Ean Claire bondholders, itself, M. G. Shaw, and the electric company, employing H. B. Walmsley and H. H. Hayden, attorneys of Ean Claire, Wisconsin, in respect thereto. Snch attorneys, from first to last, the period reaching down to the trial of this action, looked to the bank as their employer and were paid by it. In all of the transactions by such attorneys as to the matter Mr. Walmsley was the active man, spending considerable time in respect thereto in Asheville.

About January, 1893, Mr. Walmsley discovered that Cobb & Merriman had possession of $1,000 of the bonds for the purpose before indicated, and that Mr. Lyman would not accept the same for the real estate upon which the electric plant was located. Some time thereafter, and long prior to the commencement of the receivership, he obtained possession of such bonds, acting in the interests of all the bondholders he represented. At this time, and at all times thereafter, the $2,500 of bonds sent to Lyman as aforesaid were owned, $1,500 by him, and $1,000 by William Mi Barnard, both of Asheville.

Mr. Walmsley took such measures to enforce payment of the bonds, by authority of all the Eau Claire bondholders, but looking to the bank as his employer, that some time prior to the commencement of the Barber action he caused the trust deed securing them to be foreclosed and the property to be sold, being himself compelled to bid in the same for the protection of his clients, which he did for $5,001. Lyman and Barnard would not participate as purchasers, and demanded their pro rata share of the $5,001. To settle with them, and with Mr. Lyman for the realty, and pay the trustee’s fees upon the foreclosure'sale, $1,835 was required. Mr. Wahns-ley arranged all the matters in that regard at Asheville, mak *318 •ing a draft upon tbe G hip pew a Valley Bank for tbe amount required less tbe trustee’s fees.

About tbe time tbe draft arrived at Eau Olaire tbe Barter .action was commenced, tbe property of tbe electric company being placed in tbe bands of R. E. Rust as receiver. The ■books of tbe insolvent then showed but $2,500 of Asheville bonds controlled by it. Tbe receiver thereafter dealt with tbe matter in all transactions in regard thereto upon the basis of bis bolding, in some capacity, five twenty-sevenths, or $2,500 ■only, of tbe bonds represented by Walmsley, tbe others so represented being those held by tbe OMppewa Valley Bank .and M. G-. Shaw.

Aside from some doubtful liabilities of stockholders and -officers of tbe proprietor company, tbe bonds were valueless ■except so far as money could be realized out of tbe property acquired at tbe foreclosure sale. Eive twenty-sevenths of the money necessary to protect tbe title to such property in Walmsley and make tbe same available for tbe Eau Olaire bondholders was a valid charge thereon. No one could have acquired any interest therein under tbe circumstances, on account of tbe receivership bonds, except by paying five twenty-sevenths of such money. In that situation Mr. Rust was applied to by Mr. Walmsley, or some other agent of tbe Chippewa Valley Bank, for bis share of tbe $1,835. He complied, using bis private funds. He did not deem it proper, without permission of tbe court, to risk receivership money in tbe matter, but was willing to take tbe risk personally ■rather than to forego all opportunity to realize on tbe bonds.

Before doing as above indicated, Rust caused tbe whole situation to be presented to tbe circuit judge by bis attorney, for tbe purpose of obtaining judicial authority to participate in tbe proceedings to acquire tbe Asheville plant and enforce collection of tbe bonds at tbe expense of tbe trust fund, with tbe result that such authority was refused. Tbe evidence is -so undisputed and conclusive on this point that it must be *319 taken as true unless all rules for weighing evidence are to be set aside.. There is much evidence on the subject, and many circumstances, all in harmony. Counsel for respondents, on ■cross-examination, asked Mr. Erawley: “Why did the court decline to authorize the expenditure, while he authorized the expenditure in the Bucyrus and other matters ?” to which the answer was given, “The matter was presented to the court, — ” to which counsel said: “I know that,” when the witness continued : “I will simply tell you what he said: He said he did not think anything would ever be realized out of it, and did not think it would be good business judgment to put in any money down there, — did not think anything would be realized.”

Thereafter, during the whole time of the receivership, except as to $524.26 which will be'hereafter referred to, when money was required to be advanced on account of the Ashe-ville matter as to the receivership bonds, Mr. Eust paid the same out of his private funds, or assumed liability to do so, as between himself, the Chippewa Valley Bank, or George T. Thompson as its representative, and M. G. Shaw.

Eust had no knowledge of the $1,000 of bonds before mentioned other than what appeared upon the books as they came into his possession as receiver. He made no account thereof, and though he made some effort to discover their location and ownership, it does not appear that he succeeded. He made inquiry of Mr. Walmsley while the latter was at Asheville about one year after the receivership commenced, but it does not appear to have been made from any supposed value in the bonds, or ownership in himself as. receiver, but in order that he might have a complete record of the entire issue of $17,000. Mr. Walmsley, upon the trial, explained his silence as to the $1,000 of bonds by saying that he understood they were deposited by the proprietor company and the electric oompany to pay Lyman for the realty, and that upon his being compelled, representing the Eau 'Claire bondholders, *320 to pay money in lien of tbe bonds, be regarded tbe same as belonging to those wbo advanced sncb money. In all tbe transactions by Rust as receiver, whether with bis associates Thompson and Shaw, of otherwise, no account was taken of bonds owned by tbe electric company at tbe time of tbe commencement of tbe Barber action, except tbe $2,500.

After tbe title to tbe Asheville plant was perfected in Mr. Walmsley for tbe Eau Claire bondholders, they believing— and with good reasons therefor — that tbe best way to realize thereon in money was to disorganize tbe plant and sell tbe wreckage, shipping tbe major part thereof to Eau Claire for that purpose, that course was taken. There is nothing in tbe record to impeach tbe good faith of this proceeding, or tbe judgment which dictated it. Tbe amount thus realized was $4,482.30, out of which Mr. Rust bandied $1,452.02, which was accounted for between him,’ tbe Chippewa Valley Bank, and M. G. Shaw. Tbe amount paid out in respect to tbe matter, including tbe first payment of $1,835, and exclusive of attorney’s fees, was not less than $2,934.45. We make it from tbe evidence somewhat more, but as that is all counsel claim we will adopt their figures. Mr. Rust personally, directly or indirectly, paid five twenty-sevenths of tbe $2,934.45, or became liable therefor. There was left, out of tbe sum realized from tbe property acquired at tbe foreclosure sale, not more than $1,548.45 — somewhat less, it seems — to pay tbe expenses of tbe attorneys and to apply upon tbe bonds. Expenses were incurred in connection with disorganizing tbe Asheville plant and turning tbe same into money, in addition to tbe above, to tbe amount of $524.26. These expenses were incurred largely by tbe regular agent of tbe receiver, and were paid by tbe latter out of receivership moneys, be charging tbe same to himself, Thompson, and Shaw.

After tbe foreclosure of tbe trust deed Walmsley and Hayden continued in tbe employ of tbe Ghippewa Valley Bank *321 in respect to the collection of the Asheville bonds, Mr. Walms-ley spending much time at Asheville for that purpose. In his judgment there were certain liabilities of stockholders and officers of the proprietor company enforcible for the payment of the bonds. TJpon his advice several suits were commenced, some in the state court and some in the federal court, in North Carolina, to enforce such liabilities. The litigation in that regard was commenced in 1894 and was still pending at the time of the trial of this action, there then being no reasonable hope of recovering anything for bondholders, and nothing having been theretofore recovered. At first Mr. Rust’s name as receiver was used with those of other Eau Claire bondholders, in the prosecution of the suits referred to, but upon that fact being brought to his_ attention he promptly demanded that his name should not appear in that way, as he claimed the $2,500 of bonds personally. The demand was made and reason given therefor by letter. A few days subsequent thereto he again wrote Mr. Walmsley on the subject, explaining that he claimed ownership of the bonds personally because the court would not permit him to represent them in the litigation as receiver, — would not allow any receivership money to be risked in the matter, and that he had to treat the bonds as his own. He directed reports to be made to him as receiver, as the bonds, or the proceeds, might ultimately revert to the trust fund. Seasonably after receiving such letters Mr. Walmsley caused Mr. Rust to appear in the litigation in his personal capacity instead of as receiver. He did not thereafter, as receiver, in any way participate in the litigation.

The entire expenses of the litigation, including those of local attorneys and the amounts paid Hayden and Walmsley for services and expenses, were about $4,000, about $3,000 of which was paid to Hayden and Walmsley, the greater part being paid prior to July 20, 1894. The entire expenditures made in the enforcement of the Asheville bonds, including *322 tbe $2,934.45 aforesaid, were $6,970.33, not counting tbe $524.26 paid by Bust, receiver. Tbe net result of tbe matter,' leaving out tbe $524.26, was a loss of $2,488.03, five twenty-seventbs of wbicb Mr. Bust paid or became liable for personally. Tbe account witb tbe matter, as to bim, should be stated thus:

Thus, if tbe liabilities adjudged as to Bust for tbe $524.26 and tbe bonds stand, tbe trust fund will be relieved from all tbe burdens of bis participating in tbe Asheville matter, and will be enriched by $1,000 and interest, while a loss of $945.07 and interest will fall on bis personal representatives.

In May, 1897, nothing was left to be done»to close up tbe receivership matter, except to close out a large amount of book accounts supposed to be of little or no value, and other accounts where moneys were paid out by tbe receiver in enforcing hypothecated matters and charged to the holders of the security, to sell some few articles of tangible property, to pass upon the receiver’s account, and to distribute the remaining funds in his hands according as the court might order. About this time Mr. Bust’s relation to the $2,500 of bonds as stated, and to the suits pending at Asheville, was such that be desired to acquire title to such bonds, and he so informed his attorney, Mr. Erawley, asking him to bring that about. The absolute passing of the title to the bonds to any one without recognizing the equitable claim for the outlay made by him in efforts to collect the same, would have left him without any opportunity whatever to retrieve his loss, and at the same time introduce a person into the pending litigation that might not act in harmony witb those wbo had risked much in pursuing the same. Bust verified his final account *323 May 28, 1897, and thereafter filed the same in the office of tbe clerk of tbe circuit court for Eau Claire county. The aforesaid worthless book accounts were therein plainly scheduled, and.also the other accounts of the moneys paid out of the trust fund and charged to holders of the collateral. The so-called worthless accounts included the bond account of $2,500. In respect thereto a memorandum was made to the effect that .a suit was pending at Asheville, the outcome of which was doubtful. On the day the account was verified, a petition was also prepared and verified for presentation to the court, to obtain authority to dispose of the so-called worthless accounts in the discretion of -the receiver. An order was entered accordingly. Later a second order was entered in respect to the same matter, particularly directing the time and manner of disposing of the accounts and authorizing, also, the sale of all personal property still on hand. The order was duly executed, the sale being made at public auction. De Alton S. Thomas purchased the accounts for $53, the face of the same being upwards of $22,000.

Before the sale took place notice was publicly given that certain of the accounts had been adjusted by order of the court, including the account of $524.26 against Thompson, •Shaw, and Rust, and that such accounts would be withdrawn from the sale; that an account against John S. Owen had been paid and would be withdrawn; that a claim against the Bucyrus Steam Shovel & Dredge Company was involved in a suit pending in the circuit court for Milwaukee county, John S. Owen, D. R. Moon, J. T. Barter, Fitch Gilbert, and George T. Thompson having advanced upwards of $5,000 in respect thereto; that “Asheville bond account, face value $2,500,” with like bonds owned by the Ghippewa Talley Bank, were in suit in North Carolina; that the court, upon application for directions as to the course the receiver should pursue in reference thereto, had declined to permit him to -expend trust funds in the matter; that substantially $1,000 *324 bad been advanced in tbe litigation by tbe bondholders interested, and tbat such amount would have to be paid before any sum realized out of tbe litigation or upon tbe bonds could be made available for the purchaser at tbe sale. Further notice was given tbat all accounts noted in tbe schedule as assigned or hypothecated would be sold subject to tbe rights of tbe assignees or those to whom tbe hypothecations bad been made. Mr. Thomas bid off tbe accounts for $53, subject to tbe conditions indicated. After tbe sale a report of the same was made to tbe court; stating particularly tbe circumstances thereof, including tbe notice given as regards tbe Asheville bond account. Eeport was further made tbat tbe purchaser desired not to take tbe incumbered accounts, but to have them transferred directly to tbe parties bolding tbe incumbrances. Am order was prayed for confirming tbe sale, and for authority to transfer tbe accounts in tbe manner indicated. An order to tbat effect was thereupon entered.

Tbe disposition of tbe account against Eust, Thompson, and Shaw, of $524.26, will be considered in the next appeal. Suffice it to say here tbat there is nothing in respect thereto which materially affects the merits of this appeal.

We have studied tbe foregoing history in vain for a well-grounded suspicion that Eust converted $3,500, or any other amount of receivership bonds to bis own use, fraudulently or otherwise, or tbat tbe bonds tbat came to bis bands could have been of any value to tbe trust fund, or for any definite indication tbat more than $2,500 of tbe bonds ever belonged to such fund. We cannot set aside tbe positive testimony of un-impeached witnesses, and find contrary thereto upon conjecture. Tbe material parts of tbe findings, 175 to 181 inclusive,, upon which tbe judgment is based, as regards tbe Asheville-bonds, cannot be sustained.

Finding 175, to tbe effect tbat tbe insolvent held $3,500 of bonds at tbe time of Eust’s appointment as receiver, is contrary to tbe plain evidence tbat $1,000 thereof were set aside- *325 by tbe proprietor company in connection with the electric company, representing all parties interested in the bonds, for a particular purpose, and that such $1,000 did not thereafter come to the possession of the insolvent or its receiver. It seems that the position taken by Mr. Walmsley, — that the Eau Claire bondholders having contributed the money necessary to take the place of the bonds, they thereby became the owners thereof, inasmuch as the bondholders in the whole, subject to the rights of the proprietor company, owned the escrow, — is not without force. How the conclusion was reached, recorded in the 175th finding, that the electric company received $14,500 of the bonds on construction account, instead of $13,500, we cannot discover, since the evidence shows, as before indicated, that it received for some purpose the entire $17,000 of bonds. That it was a mere conduit, however, for the transmission of $1,000 of the bonds to Cobb & Merriman, all the remaining bonds to be in effect a lien thereon, the same as it was a conduit for the transmission of $2,500 of bonds to Mr. Lyman, which the court found, ultimately, belonged $1,500 to him and $1,000 to Barnard, seems plain. The proof is just as clear that it was the owner of the $2,500 in bonds as that it was the owner of the $1,000. We venture to say that there can be no reasonable doubt on that question.

Einding 176, to the effect that $1,000 of the bonds were sent to Asheville for use in purchasing the real estate of Lyman shortly before the receivership commenced, must be seen from what has been said, to be clearly unsupported. Those 'bonds were never out of Asheville till long after the receiver was appointed, if at all.

Einding 178, to the effect that the receiver never had nor ■asked for judicial direction as to the Asheville matter, must he wrong, because the direct evidence, and substantially all evidentiary circumstances as well, are to the contrary. Mr. Erawley, with all the directness, clearness, and fairness, so *326 far as appears from the record, that could he expected of one called upon to give in detail the history of a transaction many years after its occurrence, testified, in effect, that shortly after Rust was appointed receiver he, Frawley, prepared a petition for such receiver to present to the court for the purpose of obtaining judicial advice in such matter, setting forth therein the whole situation, that such petition was presented’ to the court, permission being asked therein for the receiver to participate in such matter at the expense of the trust fund,, and that such permission was refused.- No one testified to the-contrary. Mr. Walmsley testified that Mr. Rust informed him that such was the attitude of the court. Mr. Rust’s letters to Walmsley, while the latter was at Asheville, written in 1894, indicate the same, and further that the receiver expected, if he realized anything net out of the Asheville matter, to account therefor. 'Mr. Thompson, who, as agent for the Ohippewa Valley Bank, disbursed most of the money used in the endeavors to realize upon the Asheville property, testified that he dealt with Mr. Rust, personally, from first to last, understanding that the court would not permit the trust funds to be used. Rone were used at any time, except the $524.26. Rust’s personal participation in the matter was brought particularly to the attention of the court, with the reasons therefor, in the petition presented for confirmation of the sale of the bond and other accounts to Thomas, and then received judicial sanction. The testimony is undisputed that the circuit judge was fully conversant with Rust’s conduct in-respect to the bonds when that order was entered. Other circumstances of a significant character might be mentioned, in-harmony with those stated. The only one on the other side-is the feature that the written petition which Mr. Frawley testified was presented to the court in May, 1893, asking for permission for the receiver to participate as such in the Ashe-ville matters, was not on file or produced. Give it all the significance it will reasonably bear, and it comes far short, under *327 tbe rules governing tbe subject, of being sufficient to warrant this court in finding that Mr. Erawley, and tbe other witnesses as well, all testified falsely, and that tbe circuit judge gave bis judicial sanction to a statement of facts that was untrue.

Einding 179, as to Éust’s dealing with tbe Asheville bonds in a capacity adverse to tbe trust, cannot be sustained for tbe reasons before indicated. It is wrong as to bis having failed to disclose tbe ownership of tbe $1,000 of bonds designed to be used in paying Mr. Lyman for tbe land upon which tbe electric plant at Asheville was situated, and representing to tbe court that there were but $2,500 in receivership bonds,, well knowing that tbe amount was $3,500. That is sufficiently indicated by what has been said. It is wrong as to bis having wrongfully failed to disclose to tbe court receipt by him of $1,400 from sales of machinery taken from tbe Asheville plant. Tbe finding is framed so as to indicate that Mr. Eust made a profit of $1,400 out of tbe Asheville matter and concealed tbe same from tbe court, when tbe facts in respect thereto, as we have stated, were these: Mr. Eust went into tbe matter in good faith after informing tbe court of tbe situation. He came out with a serious loss, even if matters were left where tbe circuit judge who passed bis account left them. Tbe other parts of finding 179, as to fraudulent or any conduct on tbe part of tbe receiver to tbe prejudice of bis trust, we find not to be supported by tbe evidence.

Tbe final conclusion of fact, No. 181, that tbe receiver fraudulently converted to bis own use $3,500 of Asheville bonds of tbe value of $1,000, and tbe conclusion of law that bis personal representatives, W. A. and A. J. Bust as executors of bis last will and testament, are liable for tbe $1,000 and interest, is clearly wrong, as we have seen. In tbe circumstances tbe bonds were in at tbe time be was appointed receiver, they were of no value. Tbe court displayed good *328 judgment in not allowing receivership money to be jeopardized by investing the same in the Asheville matter. If it had taken a different course and allowed Rust to burden the trust fund with a proportionate share of the expenses of trying to realize on the bonds, such fund would have been depleted, and the greater the amount of bonds owned by the trust the greater the depletion would havq been. It does not appear that Rust at any time purposed making a profit to himself in this matter. He advanced his own money when the court would not permit him to use the trust funds. He was entitled, clearly, under the circumstances, to reimburse himself out of the avails of the Asheville property for the money so advanced, before accounting for any part of it to the trust fund. Aside from the $524.26 which will be considered later, his conduct respecting the bonds, from first to last, in any view we can take of the evidence, was without prejudice to respondents.

The circumstance that, before the proceedings were taken to obtain authority to sell the bonds with other worthless matters, the receiver requested his attorney to have the bond account transferred to him and that his wish was accomplished in the manner indicated, which is pressed upon our attention as quite conclusive evidence of fraud, and presumably greatly influenced the learned trial judge, seems, under the circumstances, to’ indicate to the contrary. Its influence upon the mind may be various, according to whether viewed through the coloring of a belief, more or less firmly fixed, that there was a fraudulent purpose ruling all the proceedings of the receiver and his attorneys, or viewed from the standpoint of judicial rules, the presumption of innocence being in the balance on the one side, and the searcher after truth looking for evidence of fraud outweighing such presumption and its supports. The bonds were necessarily to go into the hands of some one if the receivership matter was to be closed up. No person would take them and reimburse Rust for his outlay in trying to collect them. There was a faint hope that something *329 might yet be realized out of the pending litigation. How natural it was that Mr. Eust should desire to possess the bonds, and how appropriate it was that his desire should prevail if the rights of the creditors were in no wise prejudiced!' The worthless securities, with other worthless matters, were sold at public vendue by order of the court in the ordinary way of disposing of such property preparatory to closing up a, trust for creditors, whether in bankruptcy, in a receivership administration, or in an ordinary assignment for the benefit of creditors. At the sale the situation of the bonds was fairly stated and the sale fairly made. So far as appears there is no claim that can be seriously made, that the bonds were then of any considerable value. After the sale, with a full ■explanation to the court, it was confirmed, and the receiver, by permission of the purchaser, authorized to turn the bonds ever to the party equitably interested therein, whose rights were protected at the sale. That such person was Mr. Eust, it seems the learned court must have understood. True, Mr. Eust in this way possessed himself of the bonds, but he did it, in effect, after they had passed by a fair sale to Mr. Thomas. If it were trüe that the learned circuit judge was induced to allow such course to be taken because he was deceived, the case might be different. But it seems clear that he must have understood the situation, as Mr. Frawley testified. We cannot look at the failure to call him as a witness, ■■as it seems the learned trial court did. Counsel for respondents now argue with confidence, that since appellants were ■charged with fraud, it was up to them to call the circuit judge ■and use all means within their reach to exonerate themselves. We cannot think so. The fact that appellants were charged with fraud did not call upon them to disprove it. They rested their case, on the subject of the knowledge of the circuit judge, on the positive evidence of Mr. Frawley; and numerous circumstances corroborated the same, with substantially nothing to impeach it. To call in the former circuit judge *330 under the circumstances was not necessary from their standpoint, but was highly important from that of respondents. The latter’s attitude indicates that it was deemed immaterial whether the judge acted under standingly or not. If the latter, the evidence of Mr. Frawley was false or the judge was-inexcusably inattentive to what was occurring almost under-his eyes. If the former, so much the worse for the judge.

In reaching the foregoing conclusion we fully appreciate-that a person, acting in a fiduciary capacity, whether he is a guardian, administrator, receiver, or other trustee, can at the best obtain but a voidable title by purchasing the subject of the trust of himself, whether he acts directly or indirectly in the matter. We are not disposed to look with any favor whatever upon any act which has the appearance of violating that salutary doctrine. In re Taylor Orphan Asylum, 36 Wis. 534; Pittsburg M. Co. v. Spooner, 74 Wis. 320, 42 N. W. 259; Hutson v. Jenson, 110 Wis. 26, 40, 85 N. W. 689; Ludington v. Patton, 111 Wis. 208, 239, 86 N. W. 571; Heyl v. Goelz, 97 Wis. 327, 72 N. W. 626; McCrubb v. Bray, 36 Wis. 333; Melms v. Pabst B. Co. 93 Wis. 153, 66 N. W. 518. However, it does not apply where the trustee has a legitimate interest of his own to protect and his course upon full explanation to the court has been approved. Scholle v. Scholle, 101 N. Y. 167, 4 N. E. 334. Nor does it prevent the trustee from purchasing from his vendee, there being no understanding in that regard prior to the sale. Welch v. McGrath, 59 Iowa, 519, 10 N. W. 810, 13 N. W. 638; West v. Waddill, 33 Ark. 575, 585; 1 Perry, Trusts, § 195; 2 Woerner, Am. Law of Adm’n, 1086. Furthermore, where the trustee has a legitimate interest in the property as in this case, having in good faith and properly advanced money thereon before the> sale, the rule is not so stringent as to permit the sale to stand and at the same time punish the purchaser by compelling him to pay for the property to the cestuis que trusbent regardless of his equity. Elliott v. Pool, 59 N. C. (6 Jones Eq.) 42.

*331 Appeal No. A

Appeal of tbe Chippewa YaMey Bank, W. A. and A. J. Busl, executors, and George T. Thompson. Three distinct matters are involved. We will designate them, for convenience, a, b, and c.

a. Tbe trial court’s view as to tbis is indicated in subdivisions 175 to 183 inclusive, and 195 to 200 inclusive, as to facts, and 12 as to law, in tbe statement preceding tbis opinion. Tbe general result, in addition to that stated in Appeal No. 1, is that tbe receiver, in collusion with tbe bank and: George T. Thompson, its agent, used $52426 for tbeir own benefit in handling tbe Asheville matter, tbe receiver charging tbe same to himself, Shaw, and Thompson in tbe first place with tbe knowledge, consent, and connivance of bis associate, Thompson, who was tbe bank’s agent, all concerned knowing that tbe interests of tbe trust were not involved, and in tbe end by falsely representing tbe character of tbe account to tbe court, obtaining an order authorizing tbe asset to be charged off to expense or loss account.

Tbe facts as to bow tbe receiver came* to deal with tbe Ashe-ville matter personally, as heretofore determined, will be considered verities for tbe purposes of tbis appeal. We find nothing in tbe evidence warranting tbe finding of tbe court that there was a fraudulent conspiracy in respect to tbe matter. The bank bad no connection with it except through Mr. Thompson, and be bad no connection with it except as tbe bank’s representative. There is no reason that we can perceive, according to tbe principles governing judicial investigations, why Mr. Thompson’s positive evidence on tbis point should not be believed. It is corroborated by tbe circumstances in tbe cáse, and not impeached so far as we can discover. According thereto be did not deal with Mr. Eust as receiver in respect to tbe Asheville matter; be dealt with him personally, with tbe understanding that tbe court would not *332 permit trust funds to be invested, and that he was not a party to any such use in a representative capacity or otherwise. The circumstances substantially all corroborate that. As a general thing, all the money expended in the Asheville matter was advanced by the bank through Mr. Thompson and subsequently prorated between the bank, or himself as its representative, Mr. Shaw, and Mr. Rust, the latter being understood to represent five twenty-sevenths of the bonds.

The particulars of how the money in question came to be paid by Mr. Rust and charged as before indicated, in addition to what has been stated, appear to be these: The account covers the period from August 3, 1893, to July 30, 1895. Excepting the first charge of $25, and the last four charges aggregating $19.36 it consists of wages and expenses of W. E. Smith covering a period for some three months prior to July 5, 1894. He was the receiver’s employee, looking after receivership matters in various parts of the country and otherwise assisting in the performance of the receiver’s duties. He was especially familiar with the Asheville matter. He paid attention thereto to a considerable extent while the plant was being disorganized and the machinery disposed of, rendering his bills for wages and expenses to the receiver as his regular employer. Some money was advanced to him by Mr. Thompson as the agent of the bank, which was returned by Mr. Rust.

August 6, 1894, which was prior to the receipt by Mr. Rust of any money out of the Asheville matter, he separated the expense accounts rendered him by Mr. Smith into that pertaining to the Asheville matter from the balance, being $479.90, and charged the same in four items, with full explanation thereof, to himself, Thompson, and Rust. That, with the $25, and $19.36 aforesaid, likewise charged, makes the $524.26.

At the time of the aforesaid occurrences the receiver, as such, was interested in nearly all the Asheville bonds. He held $2,500 of them absolutely, and was the owner of the *333 $11,000 beld by the bank and Mr. Shaw, subject to their claims thereon. The indebtedness to Shaw and the bank, secured by the collateral, was provable against the trust fund regardless of the security, as we shall hereafter see. Five twenty-sevenths of all that could be obtained out of the results of the foreclosure, over and above the expenditures in realizing, and the same proportion of all the sums collected out of the supposed personal liabilities of the officers and stockholders of the proprietor company at Asheville, after reimbursing Mr. Rust for his personal outlay, belonged in equity to the trust fund, and Rust so understood it. Suits were pending to enforce such liabilities, with hopes of success based on the advice of eminent counsel. Under all these circumstances the expenditure might well have been authorized by the court out of the trust fund. If, without authorization, under ordinary conditions, it had been charged to the receivership expense account subject to the approval or disapproval of the court when the matter should be brought .to its attention, there would have been in the transaction no evidence of fraud, nor evidence, even, of bad judgment. The fact that these matters, which came to the receiver mixed up with others which were unquestionably chargeable to the expense account, were paid before he received any money from the Asheville matters, and were carefully separated from such other matters and spread upon the books as an asset, is inconsistent with the finding of fraud when correct legal principles are applied thereto. Unless the circumstances characterizing the subsequent turning of such asset into a liability are sufficient to warrant such finding, or, looking backward at all the circumstances shown by the record as they will appear at the end of our considerations, it shall appear that the finding of fraud is sustained, it cannot be. The fact, if it were a fact, that the receiver, when he made the expenditure, expected that he would ultimately make the same a charge against the trust funds, without reasonable ground to expect that it would *334 ■be balanced, by money received into the fund or through, bis assuming personal responsibility in pursuing such matters, ■would not of itself necessarily indicate fraud. The idea of •the law entertained by the learned tidal court on this point, which doubtless was largely a controlling factor in reaching the conclusion attacked, cannot be approved, but we will speak •of that at length later.

The circumstances characterizing the conversion of the asset into a liability are these: As before seen, on May 28, 1897, the preliminary report of the receiver, looking to a final closing-up of his trust, was verified, and a few days later it was placed on file. It showed a large amount of accounts receivable, most of which came -to the receiver from the National Electric Company, which were of little or no value, but which it was necessary to dispose of in some way in order to close the trust. In addition, there was a class of accounts receivable created by the expenditure of moneys, sometimes under" the •direction or with the consent of the court and sometimes not, in the completion of contracts for the installation of electric machinery made by the electric company, which contracts were properly hypothecated by it before any trust for creditors was impressed thereon, and which contracts were unfinished at the time the receivership commenced, and the expenditure of money in other ways by the direction of the court or otherwise, in collecting hypothecated accounts, — and charging such expenditures to the holders of the collateral, but without any relations between the receiver and such holders rendering the latter liable to pay the same. Charges were so made, as it would appear in some cases, as a method of keeping account with the transactions, the amount being deemed •a preferred claim upon any money that might be realized out •of the collaterals, and in others because of doubt as to whether the sum was proper receivership expense, but in no case be•cause of a request, express or implied, by the persons charged, to make the expenditure for them. One of such accounts was ••■the $524.26.

*335 It was necessary in order to close np the receivership to ■dispose of such accounts by making a sale thereof, or by collecting the same, or by charging the same to expense or loss and gain account. They were not collectible, nor was it proper to sell them for the reasons stated. They were either ■chargeable to the receiver or to his expense or loss and gain account. He went through the form of demanding payment of the apparent debtors, but payment was refused, as was evidently expected. The proceedings in that regard seem to have been taken, and not improperly, to create proof that the accounts did not represent legal liabilities though such in form. Thereafter, when the general situation was familiar to the court, a petition was prepared by the receiver’s attorney, Mr. Erawley, verified by the former, and presented to the court, for an order authorizing the closing out of such accounts by treating the same as matters of receivership expense or loss. The number of such matters was quite large. The manner adopted in presenting the subject to the court was to-■describe several of them, six in all, including the one in question, and to ask for authority to charge the same off as expense or loss, and to treat all similar accounts in that way. The representation made in the petition as to the $524.26 was this:

“Prior to the appointment of said receiver as aforesaid, the National Electric Manufacturing Company had a contract to install certain electrical machinery at Asheville, North Carolina, and the same has been assigned to Messrs. Thompson> Shaw, and Rust, as collateral security for moneys loaned and advanced to said National Electric Manufacturing Company; in moving the machinery from Asheville, and minor details of said plant, the sum of $524.26 was expended necessarily.”

In respect to the claims generally, this was said:

“None of the parties against whom said accounts exist, and to whom they are charged . . . received any benefit directly, but were incidentally and indirectly benefited, in that the expenditures enabled them to realize some amount of their collateral; but that the items of expense were small as com *336 pare’d with eacb of tbe amounts evidenced by tbe contracts existing therefor, and at tbe time such expenses were so incurred it was believed that some margin might he obtained, and tbat, in addition to paying tbe indebtedness due to said several parties, a surplus would he obtained to the estate.”

“Said several parties insist tbat such items are not justly chargeable to tbem, but tbat each should be paid out of tbe surplus that might or may he received upon the said several matters, and tbat it was for the benefit of your petitioner’s estate tbat eacb be so paid.”

“Each of said claims should be adjusted and settled with said parties, so tbat tbe said individuals aforesaid be released from all liábility, and tbat said items be by him charged up to expense or other suitable account.”

An order was entered in accordance with tbe receiver’s suggestion. Of course it was not true tbat an indebtedness on contract, growing out of tbe installation of tbe Asheville plant, was assigned to Bust, Shaw, and Thompson as collateral to ‘a loan made by tbem before tbe receivership commenced. It was true tbat an indebtedness accrued on contract for such installation, and was covered into bonds secured upon tbe Asheville plant, and was then, in tbe main, so turned over to Shaw and tbe Ohippewa Valley Barite, which Mr. Thompson represented. It was true tbat by reason of tbe facts heretofore stated, at tbe time tbe expenditures were made, Bust was united in interest with Mr. Shaw and Mr. Thompson as tbe representative of tbe bank, to tbe extent of bis personal expenditures to recover upon tbe bonds. He bad a legitimate interest in tbe bonds under tbe circumstances. He was to tbat extent in substantially tbe stone position as Thompson and Shaw, and they were in substantially tbe same situation as they would have been bad they held as collateral tbe original contract liability for tbe installation of the Ashe-ville plant instead of tbe bonds which were substituted therefor some two years before tbe receivership commenced. Tbe $524.26 was expended necessarily for tbe purpose stated in tbe petition; tbat is, as regards realizing on tbe indebtedness *337 created bj the original Asheville contract in its form as an indebtedness upon the Asheville bonds; not necessarily in the sense that it was necessary to take the money from the trust fund — and that is not the fair interpretation of the language of the petition when considered in all its parts — but necessary in the .sense of what was required to conserve the interests of all who were concerned in the indebtedness held by the parties as collateral. In effect, when the expenditure was made, the three parties, as regards the trust, had a status the same as that of the other persons named in the petition, and as described. The person who drew the petition was negligent. That conclusion we cannot escape. But we see no good reason thus far, under all the circumstances, to hold that he or the receiver were guilty of any greater fault, or that the Chippewa Valley Bank or its agent, Thompson, was concerned in the matter at all.

The record, at and about the date of the order, showed that the Asheville indebtedness was on bonds, not on contract. Mr. Erawley was not so stupid as to intentionally present three petitions to the court substantially at the same time, followed by a carefully drawn report of a sale a few days thereafter, speaking of the Asheville indebtedness as being on. bonds in three of the presentations, and bringing the matter so sharply before the court that it could not well' have failed to be appreciated, and in the other speaking of such, indebtedness as existing on contract. Nor can we believe the-court was so blind as to sign two orders on the same day, and probably at the same time, one mentioning the Asheville indebtedness as existing on bonds and the other on contract at the time the receivership commenced, appreciating that indebtedness in the one was the indebtedness named in the -.other, and a few days afterwards to sign another order inconsistent with those two. The burden of the petition related to expenditures in respect to hypothecated choses in action of a particular kind, — indebtedness upon contract. That was *338 the subject undoubtedly in tbe mind of tbe person drafting it. Tbe $524.26, except for one circumstance, was governed substantially by tbe same principles as tbe others spoken of in tbe petition. That they should all have been put in tbe same class is at least excusable. That tbe one should have been so misdescribed, while indicative of negligence, is not to be wondered at when we see in tbe deliberate finding of tbe conscientious court, in dealing with a multitude of matters, mistakes quite as bad. True, if tbe receiver bad kept from tbe knowledge of bis judicial director tbe true amount of the bonds, as was here found, but with which we cannot agree, and made a profit of $1,400 in dealing therewith, as also found but for which we find no support, tbe matter would look different.

This language in tbe petition seems to have bad much influence with tbe trial court in finding tbe element of fraud:

“Said several parties insist that such items are not justly chargeable to them, but that each should be paid out of tbe surplus that might or may be received upon the said several matters, and that it was for tbe benefit of your petitioner’s estate that each be so paid.”

We are asked to believe that tbe attorney who drew tbe petition, and tbe receiver who verified it, intended by that language to convey tbe idea that tbe parties against whom the accounts appeared claimed that tbe same should be paid out of tbe surplus to be yet received out of tbe hypothecated matters, notwithstanding tbe petition informed tbe court that tbe “said several matters” bad been entirely closed out or were worthless. Tbe indications are that tbe learned trial court gave weight to that idea to a considerable degree. We cannot do so. Tbe meaning of tbe language is obscure; but with its context, when we apply tbe whole to the subject under consideration, it seems clear that tbe idea intended to be expressed is that, when tbe expenditure was made it was believed a surplus would be realized for tbe trust fund *339 and that the parties interested thought they were not justly ■chargeable and that the items should be paid as originally intended, or, if there were no surplus, that they should take the proper course in such cases, and that in the judgment of the receiver such idea should prevail. If we can get any sense out of the language it is not that which is pressed upon our attention. The idea that the petitioner intended the court •to understand that it was for the interests of the estate that •the items should be paid out of the surplus that had been realized or might be realized from the collateral, which the petition showed was in fact of little value at any time, and at the time of making the petition of no value at all, does not strike us as even possible.

Our conclusion is that the court may probably have been misled as to the character of the account in question, and that otherwise he probably would have denied the petition as to the matter in question, compelling the receiver to charge himself therewith and take his chances of reimbursement from the source he was dependent upon as to other moneys he had advanced in the Asheville matter; that his account should be surcharged to that extent; but that Thompson and the bank are in no way liable; that looking at this matter by itself, relief should not go further; that the evidence, so far, will not sustain the finding of fraud; and that, unless a general view of the whole case will change the situation, neither the bank nor Mr. Thompson is liable.

The idea advanced by counsel — that, the charge against Bust and his associates being that they fraudulently appropriated receivership money, the cause of action must fall with failure to establish fraud — cannot prevail. The real cause of action is to administer all property for the benefit of the •creditors of the National Electric Company properly applicable thereto. The element of fraud has no significance except to raise a trust by construction. Constructive fraud is as effective as actual fraud. Again, a court of equity having *340 jurisdiction of tbe whole matter upon a sufficient complaint made in good faith, if the proof fails to show a liability tO' account on the particular grounds alleged, but does show that the party charged has money or property that should be accounted for to the trust fund, it will not send the parties out of court or let the defendant go free, but will enforce his liability by the proper order or judgment. Gates v. Paul, 117 Wis. 170, 94 N. W. 55.

The further idea advanced by appellants’ counsel, that by the death of Mr. Rust the action as to him abated, cannot prevail. The claim against the personal representatives, in any view of it, is not a mere action for damages disassociated from property. In one sense it is for the recovery of personal property or for damages to personal estate, and survivable under sec. 4253, Stats. 1898. John V. Farwell Co. v. Wolf, 96 Wis. 10, 70 N. W. 289, 71 N. W. 109; Lane v. Frawley, 102 Wis. 373, 78 N. W. 593. In the proper aspect the cause of action is for an accounting, which survives at common law and is enforcible against the personal representative. Whittemore v. Hamilton, 51 Conn. 153; Wilby v. Phinney, 15 Mass. 116; Hazard v. Durant, 19 Fed. 471; Reyburn v. Mitchell, 106 Mo. 365, 16 S. W. 592; Hook v. Dyer, 47 Mo. 214; Hill, Trustees, *303. The general rule is that the maxim, Actio personalis moritur cum persona (A personal action dies with the person), where property is involved, does not apply in cases of equitable cognizance, and that remedies in that regard which would exist against a decedent if he were living, exist against his personal representatives. Schley v. Dixon, 24 Ga. 273; Reed v. Copeland, 50 Conn. 488; 3 Redfield, Wills, ch. 10, § 40.

Many of such actions are covered by'our statute, sec. 4253, Stats. 1898, which is supplementary to common-law survivor-ships. It may safely be stated as a rule without exception, that whenever an action would lie against a trustee if he were living-to account for the subject of the trust, his personal rep *341 resentatives may be beld if they bave come into the possession of tbe trust fund or property out of wbicb it could be satisfied if the trustee were in being.

b. The next matter involved in this appeal is $184.97. The facts, as found by the court, are contained in findings 191 to 192 of the statement, and are to this effect: Prior to the commencement of the receivership, when it was competent to do so, the National Electric Company assigned to the Chippewa Valley Bank as collateral security, an indebtedness to it of $9,000, and an account against the National Electric Manufacturing & Construction Company of New York of some $6,000, and during the receivership, with knowledge that nothing could be collected thereon which would come into the trust fund, the receiver expended $184.97 in attempting to collect the same. On the theory running all through the case, that expenditure under such circumstances must necessarily be fraudulent, and that the persons holding the collateral, knowing of such expenditure and consenting thereto by not objecting, were necessarily guilty participants,, the conclusion was reached that the receiver, the Chippewa Valley Bank, and Mr. Thompson, were liable jointly.

In this matter the learned trial court made as grave a mistake as to the facts as was made in the petition we have just reviewed; and also seriously erred in applying the law to the facts as found.

The undisputed evidence as to the expenditure in question is to this effect: The account against the construction company was validly assigned to the Chippewa Valley Bank as collateral. While efforts were being made to collect the account, in the right of the debtor, whose property was in the hands of a receiver, the latter became a party to the proceedings against the National Electric Company by filing a claim therein for $29,746.78. It became necessary to obtain evidence in New York, in the form of depositions, to be used in resisting such claim. The expenditure in question was *342 made for that purpose. The depositions were duly filed. A trial was had in respect to the claim, the Chippeiua Valley Banlc, as an interested party, taking part in the proceedings, which were all conducted, however, upon the part of the receiver, by his attorney, Mr. Erawley. The depositions so filed were used on the trial, and the result was a decision and judgment in favor of Mr. Rust for costs. The record shows the filing of the claim December 18, 1893, seasonable filing of objections by the receiver, subsequent entry of an order for formal pleadings, filing of an answer by the receiver in accordance therewith, it being entitled in the receivership action and signed by T. E. Erawley, attorney for the defendant and receiver, a reply thereto in due form, by the claimant, proceedings for bringing the issues thus formed to a trial, a trial before the court in March, 1895, and a judgment on the 12th day of such month, deciding the issues and decreeing judgment as before stated. Evidence was given, explaining the items, making the $184.97, the same being $157.73 for services of Countryman & Deboys, and $27.24 fees of Sea-more & Hopkins; and that when the matter of paying the same was brought to the attention of the receiver, because of the interests of the Chippewa Valley Bank in the matter he declined to pay the charges, and paid them only after referring the matter to his attorney.

It needs no argument to show that the outlay was proper receivership expenses. We cannot believe that the learned trial court considerately found otherwise. It could not well be understandingly found that expense of resisting a claim against the trust fund under the eye of thé court, expense that he could not have avoided without abuse of trust, was fraudulently or wi’ongfully paid out of the trust fund because the Chippewa Valley Bank was also interested in the matter. This matter, we apprehend, was confused in the judicial mind, by the dealings with a multitude of things in the final closing-up of this case, in another class of expend!- *343 tures, receiving much, attention during tbe trial, and necessarily so, witb tbe court’s view of tbe matter, in framing tbe findings.

But if tbe facts were that tbe expenditure under consideration was made to enforce tbe collateral witb knowledge that no surplus would come out of tbe same to be added to the trust fund, it would by no means follow that it was wrongful. "We do not understand tbe law to be that a receiver must abandon all assets belonging to tbe trust because be only bolds a right thereto subject to tbe claim of a creditor So large as to exhaust it. Such a rule would lead to tbe greatest confusion in tbe administration of trusts of this character. If a receiver must entirely abandon a chose in action because it is incumbered by a mortgage, so to speak, to secure an indebtedness of tbe insolvent, be must do tbe same witb any other kind of property. If a horse or any other tangible thing comes into bis possession or control, subject to such an in-cumbrance, be cannot take any proceedings at tbe expense of tbe trust fund to tbe end that tbe full value of tbe security may be realized, without being liable to be charged witb a fraudulent expenditure of trust funds. Tbe mere statement of tbe proposition, and its unavoidable consequences, shows its utter absurdity.

Tbe trial court reached tbe conclusion we must condemn, evidently upon tbe theory that only tbe amount of a secured claim against a trust estate in tbe bands of a receiver, less tbe value of tbe security, concerns tbe receiver. Even that would not necessarily condemn as fraudulent, or wrongful, expenditure from tbe trust fund in tbe interest of securing as great a reduction of tbe secured debt by tbe collateral as possible; because tbe bolder thereof is not bound to have bis collateral valued and applied upon bis claim, nor is be bound to exhaust bis collateral and confine bis claim against tbe trust fund to tbe balance. True, there is some conflict in tbe authorities on this, but tbe better rule, it seems, and tbe only *344 one that can be enforced without trespassing upon the constitutional right of property, is that every creditor of an insolvent, whose property is in the hands of a court receiver for the benefit of creditors, has an equal right with every other creditor in any general distribution that may be made of the trust fund. His right in that regard becomes vested when the creditor relation is established. Every contract right includes, by implication, the law for its enforcement, existing at the time of its inception. Peninsular L. & C. Works v. Union O. & P. Co. 100 Wis. 488, 76 N. W. 359; Bronson v. Kinzie, 1 How. 311. A creditor, having a vested right to the property of his debtor generally for. the collection of his claim, does not lose or impair it by taking security. Having such right, he does not lose or impair it by the circumstance that a receiver stands in the place of his debtor. He may prove his claim to the full amount and share with all other creditors on the basis of the face thereof in every general distribution of trust funds, till such time as, with the dividends received and the proceeds of his security, he shall have received full payment; and if there is then anything left of his security, it will belong to the trust fund. He is entitled to all the advantages of his position as a general creditor, and all the advantages accruing out of holding security, because such was the contract with the debtor.

The general equitable doctrine stated in Speiser v. Merchants' Exch. Bank, 110 Wis. 506, 86 N. W. 243, does not militate against what has been said; nor does the doctrine, rightly understood, that when a creditor has two funds of his debtor available for the payment of his claim, while to a general creditor only one of them is available, equity will compel resort by the first creditor in the first instance to the fund in which his right is exclusive, — since such principle is not applicable to situations that will prejudicially affect his contract rights. This court has spoken most decidedly upon that subject. In re Meyer, 78 Wis. 615, 623, 48 N. W. 55. A *345 misapprehension of snob principle and a failure to take note that tbe restriction npon the right of secured creditors in bankruptcy proceedings, as to participating with general creditors in the distribution of the trust fund, is statutory, has led to most of the decisions to the effect that, in the settlement of the affairs of an insolvent through proceedings under a creditors’ bill,, secured creditors can prove their entire elaims and share in the distribution of the fund on that basis only upon surrendering the security. The general rule is to the contrary, as the following authorities will amply show: In re Meyer, supra; People v. Remington, 121 N. Y. 328, 24 N. E. 793; Allen v. Danielson, 15 R. I. 480, 8 Atl. 705; West v. Bank of Rutland, 19 Vt. 403; Findlay v. Hosmer, 2 Conn. 350; Logan v. Anderson, 18 B. Mon. 114; Citizens’ Bank v. Patterson, 78 Ky. 291; Miller’s Appeal, 35 Pa. St. 481; Patten's Appeal, 45 Pa. St. 151; Brough’s Estate, 71 Pa. St. 460; Smith’s Appeal, 74 Pa. St. 191; Graeff’s Appeal, 79 Pa. St. 148; Jamison’s Estate, 163 Pa. St. 143, 29 Atl. 1001; Moses v. Ranlet, 2 N. H. 488; Drew v. McDaniel, 60 N. H. 481; Bank Comm’rs v. Security T. Co. 70 N. H. 536, 49 Atl. 113; In re Bates, 118 Ill. 524, 9 N. E. 257; Furness v. Union Nat. Bank, 147 Ill. 570, 573, 35 N. E. 624; First Nat. Bank v. Comm. Nat. Bank, 151 Ill. 308, 37 N. E. 1019; Levy v. Chicago Nat. Bank, 158 Ill. 88, 42 N. E. 129; Friedlander v. Fenton, 180 Ill. 312, 54 N. E. 329; Lewis v. United States, 92 U. S. 618; Merrill v. Nat. Bank, 173 U. S. 131, 19 Sup. Ct. 360; Aldrich v. Chemical Nat. Bank, 176 U. S. 619, 20 Sup. Ct. 498; In re Crystal Springs Bottling Co. 96 Fed. 945.

An examination of the authorities cited will show plainly that the few exceptions to the rule here adopted grew out of cither a misconception of the proper application to be made cf the equitable rule as to the rights of parties in a fund where two have a legal right thereto as security and one has also another security; or the adoption of the bankruptcy rule, *346 either by special statute, or in. failing in tbe beginning to comprehend that the latter rule is wholly statutory. As to the-equitable rule mentioned, the Illinois court said in Friedlander v. Fenton, supra: “It will not be enforced where it operates to the prejudice of the party holding the double interest.”

The Ehode Island court at first, through mistake, adopted the bankruptcy rule, but in Allen v. Danielson, supra, acknowledged the error and held that in a general trust for creditors their rights, regardless of security held by them, are measured by their respective claims at the time of the creation of the trust, and that so long as the relation of debtor and' creditor exists they are entitled to participate on the basis of the face of their claims in the distribution of the fund. The rule was stated in People v. Remington, supra, after a-, full review of the authorities, thus:

“The creditor is entitled to prove against the estate for-what is due to him, and to receive a dividend upon that amount. If the collateral securities are more than sufficient to satisfy any deficiency in the payment of the debt from the-dividends, the personal representatives may redeem them for the benefit of the estate.”

In Merrill v. Nat. Bank, supra, in a masterly opinion by Mr. Justice Field, in which the leading authorities in this-country and England were reviewed, the rule thus stated was adopted. It was said to be the chancery rule, and that the-other rule was wholly a creation of bankruptcy legislation. The prevailing rule in the absence of such regulations, or .some statute, was stated thus:

“The secured creditor is a creditor to the full amount due him, when the insolvency is declared, just as much as the unsecured creditor is, and cannot be subjected to a different rule. And as the basis on which all creditors are to draw dividends is the amount of their claims at the time of the declaration of insolvency, it necessarily results, for the purpose of fixing that basis, that it is immaterial what collateral any par *347 ticular creditor may have. The secured creditor cannot be-charged with tbe estimated value of the collateral, or be compelled to exhaust it before enforcing his direct remedies-against the debtor, or to surrender it as a condition thereto, though the receiver may redeem or be subrogated as circumstances may require.”

“When secured creditors have received payment in full,, their right to dividends, and their right to retain their securities cease, but collections therefrom are not otherwise material. Insolvency gives unsecured creditors no greater rights-than they had before, though through redemption or subrogation or the realization of a surplus they may be benefited.”

We must adopt that rule. It does not appear that this-court has spoken very decidedly on the subject. The principle involved, though, was fully recognized in In re Meyer, supra, — In re Bates and other cases here cited being referred to.

c. The court’s view of the evidence as to the third matter in this appeal is contained in subdivision 188 of the findings- and 15 of the law appearing in the statement. In short it is-this: The receiver, the Ohippewa Yalley Bank', and Oeorge T. Thompson, its managing, agent, fraudulently converted to-their own use $161.11, because the receiver, with knowledge of such agent, expended that sum in the collection of a collateral claim validly hypothecated by the electric company to-such bank as collateral-to the former’s indebtedness thereto, all parties knowing at the time of such expenditure that no-surplus could be obtained out of the collection for general creditors. The statement of the matter, in view of what has been said, shows without argument that the court’s conclusion was reached by a misapprehension of the law. The disbursement appears to have been ordinary receivership expense,— expense of a kind that would be expected, under ordinary conditions, to be allowed by the court in passing his receiver’s account, as a matter of course. The collateral claim exceeded to some extent — small, it is true — the principal debt. The- *348 ■claim was large, however, being $1,800. It was against a perfectly responsible party, and was collectible to the full amount, as the receiver was bound to regard it, in advance, .at least, of a full investigation and reasonable efforts being made by some one to collect it. The bolder of the collateral bad a right to throw the burden thereof onto the receiver by refusing to incur any expense in the matter and looking wholly to the trust fund, though still retaining the security.

The consideration for the collateral claim was electrical ■machinery. Complaints with reference thereto needed careful attention by some one familiar therewith in order to enable the parties interested in the collection of the claim to .have any standing in regard thereto. In such circumstances the receiver sent his regular agent to look after the matter, and his wages and expenses constitute the expenditure in -question. Had the receiver not done as he did, even without any order of the court to protect him, he might have been •chargeable with breach of duty. Nevertheless he took the .precaution to charge the expenses to the holder of the collateral and leave it that way till authorized by the court to -charge the same to expense account. The charge to the holder ■of the collateral was not authorized by it. Neither the bank nor Mr. Thompson, so far as the evidence goes, when correct rules are applied thereto, had any connection with the matter rendering them or either of them liable.

Appeal No. 8.

Appeal of Filch Gilbert, John 8. Owen, the' personal rep-resentatives of E. E. Bust, and those of D. E. Moon. This involves the question of whether appellants are liable for $2,642.24 expended in completing an assigned contract, and $187.90 for expenses incurred in endeavors to collect the same and an unincumbered claim against the debtor. The -view taken of the matter by the trial court will be found in •subdivisions 157 to 173 as to facts, and 11 as to law in the *349 statement. In short, tbe undisputed material facts are these At the time the receivership commenced the electric company was in default on a contract to install an electrical plant for-the Bucyrus Steam Shovel & Dredge Company, which it agreed to complete by December 15, 1892, and was under-bond, with sureties, to do so or suffer a penalty of $50 per-day, the sureties being E. E. Eust, George T. Thompson, and C. A. Daigh. The direct primary benefits to flow to the electric company were held by George T. Thompson, John S.Owen, Fitch Gilbert, and D. E. Moon, to secure them against loss by reason of their having indorsed a note of the electric-company to the National Exchange Bank of Milwaukee for $12,000. The amount of the contract was about $4,750, and. there had been expended thereon at the time the receivership commenced nearly $1,000 in excess thereof. Independently of such contract the Bucyrus Company owned the electric company $1,195.34. So far as appears, during the period covered by the expenditure in question, the contract claim, and the other claim mentioned were collectible contingent upon the. completion of such contract. .The material for such completion, largely in a manufactured state, designed by the-electric company for use in that regard, was on hand with the receiver. Substantially the only thing required, as was supposed, was a generator rated at $2,500. Mr. Eust, after his appointment, was importuned to complete the contract, by the holders of the collateral claim, they offering to become-responsible for any expenditure in that regard for which they would be justly liable. The situation in regard to the contract was thereupon presented to the court by the receiver for-advice, the value of the generator being placed at $1,500 and no statement being made that he was interested by reason of ‘ his position as surety for the completion of the contract. The result was that he was advised to ship the generator, to collect what was due upon the contract for the benefit of the-holders of the collateral, except $1,500, and to retain that sub *350 ject to tbe further order of the court. The generator was thereupon shipped, and thereafter, in efforts to satisfy the . Bucyrus Company in respect to the plant, so that it would be willing to pay the amount due upon the contract, prior to November 16, 1893, other, expenses were incurred, which, with •the value of the generator, aggregated $2,642.24.

There came to the receiver from the insolvent a number of unfinished contracts and partly constructed electrical appliances, and some manufacturer’s stock. He was ordered to continue the manufacturing business for a time for the purpose of enabling him to convert the partly manufactured electrical appliances and the manufacturer’s stock on hand into money to the best advantage, and, impliedly, to finish outstanding contracts where the interests of the trust required it.

Prior to February 7, 1894, the Bucyrus contract was completed. There was then due from such company all that was •collectible out of an expenditure of $5,710.09 made by the •electric company, and $2,646.24 made by the receiver, and an indebtedness otherwise of $1,195.34, all of which it refused to pay, rendering judicial proceedings necessary to collect the same. This situation was brought to the attention of •the court and authority asked for the receiver to proceed to -collect the entire indebtedness, the claim of the holders of the •collateral to be transferred therefrom to the proceeds thereof, -they consenting. Authority was so granted. Appropriate proceedings were then taken by the receiver through his attorney, to collect all of said indebtedness, a lien being filed in that regard. Such proceedings were, with due discretion, so far as appears, pursued with effect so far as possible, and at the expense of the trust; but the claim proved entirely uncol-lectible.

When the generator was used, as aforesaid, it was charged -to Thompson, Owen, and Moon, and was one of the matters -charged off to loss and gain account pursuant to the order of June 2, 1897, aforesaid. The court, in the petition upon *351 which the order was granted, was truthfully informed of the facts as to the charge, showing that it did not constitute a legal or equitable liability against the apparent dehors.

We are unable to discover in this history anything to warrant an inference of fraud or wrongdoing of any kind, when correct rules of law are applied thereto. The court found that all parties knew that nothing could be realized out of the Bueyrus indebtedness for general creditors when the expenditures were made to complete the contract and to make the collection. That seems highly inconsistent with the un■disputed facts, that a large proportion of the indebtedness at the start belonged absolutely to the trust property, and that in the end about one half of all that could be collected under any circumstances so belonged, and that there was no evidence that the debtor would not or could not pay because of ■insolvency.

The court found, in effect, that the proceedings whereby the receiver took upon himself the burden of collecting all of the Bueyrus indebtedness in one proceeding was a scheme to which Gilbert, Thompson, Owen, and Moon were parties, in •order to make the expense of collecting the collateral claim a burden upon the trust fund. The evidence seems plain that the course adopted was the only one to avoid two suits; one on the. collateral, in which the trust was indirectly interested to a large amount and indirectly interested otherwise, and one on the claim for $1,195.34. The only orderly way was the one resorted to. The court would doubtless have directed proceedings to be so taken upon being fully advised, even against the protest of the owners of the collateral, so long as ■their rights were preserved.

The trial court viewed the situation as if any expenditure by the receiver to collect the collateral was necessarily fraudulent, both as to the receiver and the other parties interested in and consenting thereto. That was error, as we have seen.

The court further assumed that the expenditure of any *352 sum in tbe completion of tbe contract, in excess of tbat involved in tbe generator, was unwarranted, and under tbe circumstances fraudulent as to all concerned. Tbat was clearly a misconception. Tbe general order under wbicb tbe receiver operated must bave contemplated tbat be was to complete unfinished contracts where, in bis judgment, tbe interests of tbe trust would best be subserved thereby. Tbat suggested reasonably, in some cases, a moderate outlay without expectation of any direct addition thereby to tbe trust fund. In other cases it reasonably suggested the propriety of an expenditure to complete a contract, tbe outlay being treated as a proper claim upon tbe proceeds to be collected. Both of these situations were presented to tbe receiver for action, and bis decision is not to be condemned merely because in tbe end tbe outlay led to a loss, especially when his. action was approved by bis judicial director and was as directed. We must test it by what might bave been deemed reasonable at tbe time tbe expenditure was made, resolving fair doubts in favor of tbe receiver rather than against him. He was called upon to deal with many perplexing business propositions in getting something like order out of tbe confusion of things tbat came to bis bands, and to determine whether there was any real substance therein for general creditors.

A receiver in tbe position occupied by Mr. Bust is by no means expected to abandon as a matter of course unfinished contracts. While be is not bound to finish -them, or warranted in doing so where property of tbe trust fund would not be otherwise jeopardized, be is bound to investigate them, to pass judgment upon what is for tbe best interests of bis trust under all tbe circumstances, or to act upon such judgment and take tbe chances of judicial approval, or take tbe advice of bis principal in advance in respect thereto, and follow it. Wait, Insolv. Corp. § 214; Gluck & Becker, Beceivers, 316; Smith, Beceiverships, § 35; Beach, Beceivers, § 378; Florence G. E. L. & P. Co. v. Hanby, 101 Ala. 15, 13 South. 343; *353 Blake Crusher Co. v. New Haven, 46 Conn. 473; Cooke v. Orange, 48 Conn. 409; Sager Mfg. Co. v. Smith, 60 N. Y. Supp. 849. Ordinarily a receiver would take serious risks in completing a contract of the insolvent at tbe expense of the trust where no property was to be saved thereby, because the court, as will be seen by the authorities, in such cases is not bound to approve even if it appears that such completion was for the best interests of the trust. But in case of a manufacturing industry like the one in question, where a general order is made for its temporary continuance for the very purpose, among other things, of finishing uncompleted contracts, where the interests of the trust seem to require it, it is expected that the details of executing the order will be passed upon by the receiver, other than in exceptional cases. Mere mistakes of judgment as to such details will not work to his loss, much less subject him to the charge of fraud, and his attorneys and all parties concerned with him as well.

Here there was not only an implied direction to complete .unfinished contracts where it seemed for the interests of the trust to do so, which would have authorized finishing a contract under some circumstances where no property was to be saved thereby, but it particularly applied to cases where property belonging to the trust was incumbered, as in the case in hand, and the completion of the contract was necessary to save such property. In such cases a receiver might be guilty of a serious breach of trust by failing to give attention to the matter, especially in a situation where, as in this case, there was a special order to expend money to the amount of $1,500, which, of course, would necessarily be lost unless further expenditures were made so far as necessary to complete the contract and render the $1,500 collectible. In this Bucyrus matter, in 1893, when the expenditure was made, the receiver had a right to believe that the whole amount was collectible and that at the closing of his trust there would be a considerable dividend for creditors, and that the entire indebtedness *354 secured by tbe collateral might be represented in tbe distribution regardless of tbe value of tbe security, and tbe loss of tbe collateral be wholly attributable to him. He knew, if be was correctly advised as to this, and it seems that be was, that tbe holders of tbe collateral were not compelled to look to it primarily for their pay, or to do anything in regard thereto, except not to allow tbe same to be lost through their negligence.

We see no indication of fraud or negligence in tbe completion of tbe contract. Putting tbe generator in at $1,500 that bad been rated at $2,500 has no significance. We speak of that particularly because counsel refer to it as a strong indication of fraud, and probably tbe trial court so viewed tbe matter. It is quite easy to understand bow an electric generator, with tbe usual guaranty that goes with one, when put out by a going concern might be rated at $2,500 and be worth that, and tbe same machine, in tbe bankrupt stock of a concern not expected to resume operations, — an article of a sort that no other manufacturer would care to supply extras for or keep in repair, or would otherwise be interested in except to condemn it, — might not be worth $1,500. It is more than probable that tbe machine in question was not salable at that sum for cash when tbe petition was made upon which tbe order was entered, authorizing it to be used in completing tbe Bueyrus contract. Many other circumstances pointed to as indicating fraud might be referred to with like effect. Suffice it to say that there are none which we can discover, when properly analyzed and correct principles of law applied thereto, that change the situation above indicated.

Appeal No.

Appeal of Fitch Gilbert, James T. Barber; and the personal representatives of R. E. Rust. For the trial court’s history of this matter, in the main, we refer to subdivisions 187, 198, and 199 as to the facts and 16 as to the law, in our *355 statement. Tbe further circumstances found by tbe court or appearing in evidence are contained in tbe following summary :

February 13, 1893, Gilbert, Barber, and Eust indorsed a note of $2,800 for tbe electric company, taking as security tbe liability of tbe St. Louis Light, Heat & Power Company for $3,000 upon a contract for tbe installation of some electrical machinery. Such liability matured only upon tbe full completion of tbe contract by tbe machinery being put in successful operation. Tbe indorsers were compelled to pay tbe note. When tbe receiver was appointed tbe expense of installing tbe machinery, as was supposed, bad all been incurred, except that of putting tbe same in successful operation. At tbe request of tbe purchaser tbe receiver sent an electrician to demonstrate the competency of tbe machinery to satisfy tbe terms of tbe contract. Before bis efforts in tbat regard were completed tbe armature of tbe electrical machine burned out. The purchaser was a responsible party, and tbe collection of the $3,000 claim only awaited upon a satisfactory operation of tbe machinery. Tbe receiver, about August 3, 1893, furnished a new armature, rated at $800, and incurred expense in regard thereto of $53.80 for freight. After tbe new armature was in place tbe machinery was not made to operate satisfactorily to tbe purchaser, tbe result being that, without fault on tbe part of tbe receiver, tbe entire original expenditure, and tbat for tbe new armature and freight were lost. The price of tbe new armature and tbe freight bill in regard to tbe same were charged by the receiver to tbe holders- of the collateral. Barber and Gilbert did not authorize the same or tbe expense. In tbe petition upon which tbe order of June 2, 1897, referred to in previous appeals, was granted, tbe whole matter in respect to tbe $853.40- was explained to the court so far as it was material to do so, and an order was entered authorizing tbe account to be charged-to loss and gain account.

Tbe court found tbat when tbe expenditure was made Eust, *356 Gilbert, and Barber were all parties to it; that it was for tbeir sole benefit; that they knew at that time that nothing could be realized for general creditors, and were guilty of a fraudulent appropriation of trust property. Those conclusions seem to be clearly against the law, as we have heretofore declared the same, and against the evidence. Why the positive evidence of Mr. Barber and Mr. Gilbert that they had nothing to do with the expenditure in question, unimpeached by any circumstance to the contrary, should have been ignored, is not perceived. It is equally difficult to perceive how the conclusion could have been reached that the purpose of the expenditure was for" the sole benefit of the holders of the collateral, when the collateral in fact exceeded the principal debt, its collectibility, as it appeared at the time the expenditure was made, was dependent only upon the completion of the contract, the whole of the principal debt was provable in the receivership proceedings regardless of the security, and the expenditure was made in the early .history of the receivership when it was reasonable to expect a substantial sum for distribution among creditors. It is equally difficult to understand how the conclusion could have been reached, that when the expenditure was made it was not expected that any benefit, would grow out of the transaction for general creditors, when, from the standpoint of the receiver when the expense was incurred, both direct and indirect benefits to general creditors-were apparent. It seems that a wrong conclusion was arrived at by overlooking or ignoring material credible evidence, the drawing of unwarranted inferences from undisputed facts, and a misconception of legal principles which we have heretofore discussed. There is no need to say more in respect to-this matter.

Appeal No. 5.

Appeal of Fitch Gilbert, George T. Thompson, and the personal representatives of R. E. Rust. This involves six dis- *357 tinet matters, •wRicli will be treated, under the heads of a, b, c, d, e, and f.

a. The idea of the trial court as to this, in the main, will be found in subdivisions 129 to 133 as to facts, and 6 as to •law, in the statement. The following appear to be the undisputed facts: May 16, 1892, Gilbert, Thompson, and Rust indorsed a note of $8,000 for the electric company to the National Exchange Bank of Milwaukee, which was renewed with the same indorsers January 1, 1893, such indorsers taking as security an instrument whereby an attempt was made by the electric company to pledge to them as security an electric plant at Brookville, Indiana, said plant consisting of land and buildings and machinery therein, so circumstanced that all was real estate. The instrument was so executed as to show clearly the purpose thereof, but not so as to legally convey an interest in the property under the laws of Indiana ■or so as to be entitled to record under such laws. It was not recorded. May 18, 1893, the insolvent, without any.new consideration, and upon the. eve of its suspension to the knowledge of all parties concerned, made a mortgage in due form in place of the defective instrument, such mortgage being thereafter duly recorded. The mortgagees were compelled to pay the indorsed note about May 24, 1893, $8,164 being required for that purpose.

July 12th after the receiver was appointed, the history of the matter above referred to was brought to the attention of the court by petition, with information that the mortgage was about to be foreclosed; that the property was nonproductive ■and noninsurable; and that it was for the interest of the trust that it should be sold. That was accompanied by proof that the holders of the mortgage concurred in the judgment of the receiver, and consented to the sale as prayed for by him. An •order of sale was thereupon entered, the receiver being directed to dispose of the property at public vendue in manner specified, unless at private sale the full amount of the mort *358 gage indebtedness could be obtained. That was equal to tbe full value of tbe property. Subsequently a private sale was made in accordance with tbe order, ostensibly to George T. Thompson, for $8,287.30 in tbe form of a release of tbe indebtedness. A deed was made accordingly, and thereafter tbe sale was duly reported to tbe circuit court and confirmed. Thompson in fact bought tbe property in tbe interests of all tbe mortgagees, taking tbe title with tbe understanding that it was to be conveyed to a corporation to be formed, tbe stock to be distributed between tbe mortgagees according to their respective interests. That was subsequently done.

Upon such facts and others not necessary to be detailed, tbe court held that tbe attempted mortgaging or pledging of tbe property January 18, 1893, was wholly ineffective; that tbe instrument then executed was wholly invalid; that tbe one of May 18, 1893, was wholly without consideration, was made when all tbe property of tbe mortgagor was impressed with a trust for its creditors, and for the purpose of giving, and received for tbe purpose of obtaining, an unlawful preference over tbe general creditors of tbe mortgagor; that tbe subsequent proceedings were in furtherance of this fraud and a general fraudulent purpose as to tbe creditors of tbe electric company, and that by reason of tbe facts tbe persons so obtaining possession of tbe property became liable to such creditors for tbe full value thereof.

Many questions suggested as to this matter need not be discussed. It is not contended by appellants’ counsel but that tbe secret interest of Mr. Rust in tbe purchase of tbe property was .sufficient to invalidate it at tbe election of creditors; but it is contended by them that it was not permissible to treat tbe sale as valid and recover more of tbe receiver, or of him and those participating with him, than tbe actual damages which tbe creditors sustained, if any. That is elementary. Tbe undisputed evidence is that they did not suffer any damage if tbe mortgage was a valid security, since tbe mort *359 gage indebtedness was equal to tbe full value of tbe property. Tbe result is this. If tbe mortgage was valid, tben tbe judgment on tbis matter is wholly wrong.

Tbe trial court’s conclusion as to tbe validity of tbe mortgage rests on tbe finding that it was without consideration and taken for tbe purpose of obtaining an unlawful preference ; and that rests on tbe finding that tbe attempted mortgaging of tbe property January 18, 1893, was wholly ineffective, and that tbe character of tbe second transaction was to be determined wholly by tbe circumstances existing at its date. In that serious error was committed.

Tbe instrument of January 18th was made upon a sufficient consideration, and when it was perfectly competent for tbe electric company to mortgage tbe property as it attempted to do. That is not questioned. It was not a mortgage good at law, but was clearly an attempt to make such a mortgage, or to pledge tbe property as security. That is clear beyond reasonable controversy. It contained no unexplainable ambiguity as to tbe property intended to be mortgaged, or tbe debt or liability intended to be secured, or tbe parties. That made a good mortgage in equity. It could -have been foreclosed as such, or perhaps regarded as a good contract to make a mortgage valid at law, and specific performance enforced. It was, tben, a good consideration and justification for tbe mortgage of May 18, 1893. The latter act is no more than a court of equity would have compelled, if necessary, to protect tbe rights of tbe mortgagees. Tbe instrument of May 18th related back to that of January 18th, taking effect in equity as of tbe earlier date. Tbe fact that tbe first paper was not recorded when tbe receiver was appointed or tbe suspension of tbe electric company occurred, has no significance, since, of course, neither tbe creditors nor tbe receiver for them could take any better right to tbe property involved than tbe electric company bad. Tbe receiver did not stand in tbe position of a bona fide purchaser. An equitable mortgage is *360 as good as any as regards tlie mortgagor and every person dealing with him with notice of the facts, or any person claiming under him having no superior equities.

It follows that the rights of Rust, Thompson, and Gilbert are not referred, necessarily, to the instrument of May 18th, hut to the attempt to make a mortgage January 18th prior thereto. It was on the latter as well as the former that the sale was ordered by the court, and it might as well have been ordered if the instrument of the later date had been entirely omitted from the proceedings. Thus it is seen that the foundation upon which the learned trial court rested the judgment as to the wrongful appropriation of the Brookville property is wholly wanting. The learned judge failed to appreciate that an attempt to make a mortgage, both parties intending to accomplish that result, sufficient being done in that regard, upon a valuable consideration, to enable a court of equity to discover with certainty the purpose of the parties, the terms of their contract, and the property involved, so as to deal with the matter, is a good mortgage in equity, — is just as good as any mortgage, so long as there are no superior intervening equities.

The law on this subject is well settled, as the following authorities will show: Mowry v. Wood, 12 Wis. 413; Jarvis v. Dutcher, 16 Wis. 307; Dreutzer v. Lawrence, 58 Wis. 594, 17 R. W. 423; Dreutzer v. Baker, 60 Wis. 179, 18 N. W. 776; Flagg v. Mann, 2 Sumn. 486; Talieferro v. Barnett, 37 Ark. 511; Waddell v. Carlock, 41 Ark. 523; Bell v. Pelt, 51 Ark. 433, 11 S. W. 684; Peers v. McLaughlin, 88 Cal. 294, 26 Pac. 119; Daggett v. Rankin, 31 Cal. 321; Love v. Sierra Nevada, L. W. & M. Co. 32 Cal. 639; Remington v. Higgins, 54 Cal. 620; Higgins v. Manson, 126 Cal. 467, 58 Pac. 907; Gardner v. McClure, 6 Minn. 250; Howard v. Iron & L. Co. 62 Minn. 298, 64 R. W. 896; Payne v. Wilson, 74 N. Y. 348; Hale v. Omaha Nat. Bank, 64 N. Y. 550; Perry v. Board of Missions, 102 N. Y. 99, 6 N. E. 116; Sprague v. *361 Cochran, 144 N. Y. 104, 38 N. E. 1000; Hamilton T. Co. v. Clemes, 163 N. Y. 423, 57 N. E. 614; In re Howe, 1 Paige, 125; Knott v. Mfg. Co. 30 W. Va. 790, 5 S. E. 266; White Water Valley C. 30. v. Vallette, 21 How. 414; Watkins v. Vrooman, 51 Hun, 175, 5 N. Y. Supp. 172; Burdick v. Jackson, 7 Hun, 488; Price v. Cutts, 29 Ga. 142; Courtney v. Scott, Litt. Sel. Cas. 457; Pingrey, Mortgages, 278; Tones, Mortgages, §§ 163-168; 3 Pomeroy, Eq. Jur. § 1237; Miller’s Eq. Mortgages (45 Law Library) 1, 2, 216; Jones, Corporate Bonds & Mortgages (2d ed.) §§ 33-38.

We quote verbatim or in effect from tbe above authorities, showing how plainly the law as here declared governs the facts of this case:

“If a transaction resolve itself into a security, 'whatever may be its form, and whatever name the parties may choose to give it, it is in equity a mortgage.” Judge Stoet, in Flagg v. Mann, supra.

The recital in a promissory ¿ote given for land, “This note is to stand as a lien on said land until fully paid,” held to create a mortgage. Waddell v. Carlock, supra.

“An attempt to create a security in legal form having-failed, equity will give effect to the intention of the parties and enforce the lien as an equitable mortgage. Any agreement that shows an intention to create a lien is in equity a mortgage.” Bell v. Pelt, 51 Ark. 438, 11 S. W. 685.

“An imperfect attempt to create a mortgage upon specific property for the purpose of securing a debt, will create a specific lien upon the property so intended to be mortgaged.” Peers v. McLaughlin, 88 Cal. 297, 26 Pac. 119.

“Every express agreement in writing, whereby the party clearly indicates an intention to make some particular property therein described a security for a debt, creates an equitable lien upon the property, which is enforcible. The form of the writing is not important, provided it sufficiently appears it was thereby intended to create a security. If that intention appears, it will create a mortgage in equity, or a specific lien on the property so intended to be mortgaged.” Howard v. Iron & L. Co., supra.

*362 “An agreement based upon a valuable consideration to give-a mortgage, will be treated in equity as a mortgage.”

So an agreement or transaction good as an equitable mortgage, the transaction between the parties occurring when, as regards the rights of creditors of the mortgagor, a mortgage-good at law might be given, is a sufficient support for the-giving of a mortgage good in law within the time when disability would otherwise exist in regard thereto under the-bankrupt act. The second transaction will take effect by relation as of the date of the equitable mortgage. The assignee-in bankruptcy will take the property subject to the incum-brance. Burdick v. Jackson, supra.

The principle “is of frequent application under the bankrupt laws, where it operates to make valid a mortgage given to a creditor shortly before the filing of a petition in bankruptcy by the mortgagor, when this is done in pursuance of' an agreement made at a time when the giving of the mortgage would not have been a fraudulent preference.” 1 Jones,, Mortgages, § 163.

“An equitable mortgage may be constituted by any writing from which the intention so to do may be gathered, and' an attempt to make a legal mortgage, which fails for the want of some solemnity, is valid in equity; and ... an agreement for a mortgage is, in equity, a specific lien upon the land; and an equitable mortgage thus created is entitled to-a preference over subsequent judgment creditors.” Judge Eolgeb, in Payne v. Wilson, 74 N. Y. 348.

The law as thus indicated prevails without exception in-this country and England. Equity holds parties to their mutual intentions, when supported by a valuable consideration and sufficient definiteness that such intentions may be-understood and the matter dealt with by equity jurisdiction. Therefore, an imperfect attempt to give a mortgage, which creates a good mortgage in equity, if perfected by the acts of" the parties at a time when, by reason of the rights of the creditors, a good mortgage could not be made, will constitute a. *363 mortgage good at law; and if not perfected till sucb time, equity will nevertheless regard the rights of the intended, mortgagee as superior to those of creditors. So the learned, court’s decision that the paper made to E. E. Enst and his associates January 18, 1893, was not a valid mortgage in law, should not have led to the holding that it was of no force whatever and rendered all proceedings in regard to the mortgage given in lieu thereof May 18, 1893, fraudulent, and the result a fraudulent appropriation of property.

As before indicated, the participation by the receiver, as a purchaser at his own sale, however innocent it may have been — and we are constrained to believe thát no wrong was in fact intended — rendered the sale voidable, and it might have been decreed void in this litigation, and such proceedings, taken as seemed best to protect the rights of the respondents. But such rights only extended to the value of the property involved over and above the amount of the mortgage indebtedness, which, as it seems, was not worth seeking after. True, the rule cannot be stated too broadly or enforced too firmly,that a trustee can at best obtain but a voidable title by purchasing the subject of his trust at his own sale. Such a proceeding is voidable, as before indicated, at the election of the cestuis que trustent if they move seasonably, and that is so whether the sale was really injurious to them or not. The rule is established on those broad lines for the purpose of rendering inquiry into the real motives of the purchaser, or whether there was any real injury to the cestuis que trustent or not, unnecessary. It is one of absolute disability at the election of the adverse parties if they move seasonably. Gluck & Becker, Receivers, 284; Heyl v. Goelz, 97 Wis. 327, 72 N. W. 626; Perry, Trusts, 195. In this case the court might have treated the sale of the property as void and restored the-former situation,- or caused the property to be sold free from, the incumbrance, using the proceeds to pay off the same and turning the surplus, if any, over to the trust fund, or treated! *364 ■the holders of the title as trustees for the creditors and caused tbe property to be redeemed, or taken other courses that might be suggested, to protect the legal and equitable interests of the respondents. But, as whatever course that might have been chosen would have resulted, or that might now be chosen would result, in expense to both sides for the mere satisfaction of going through the form of compelling appellants to realize on their security legitimately, without adding anything to the trust fund, the better way, it seems, is to let the matter rest where the trial court found it.

b. Eor the trial court’s idea of this, see 136 to 148 inclusive •of the facts, and 8 as to the law, in our statement. It bears such close relation to the subject last treated that many of the facts in regard to it do not need to be restated. This is •a fair summary, as the court viewed the matter:

At the time of the sale of the Brookville plant to Thompson, representing himself, Rust, and Gilbert, there stood, when corrected, charged on the books of the electric company in the receiver’s hands against Charles B. Searrin, who had managed the property from the start for the electric company, $1,160.30. At the time of the sale Rust and Gilbert were familiar with this account, and had reason to believe that it represented a considerable sum of money belonging to the trust fund, that was obtainable. After the sale to Thompson> Searrin continued to operate the plant for the new owners, treating the old accounts as belonging to his new employer. Tie collected $862.37 out of such accounts, $305.87 of which was used for attorney’s fees chargeable to the receiver, and the balance was knowingly appropriated by Rust, Thompson, and Gilbert to their own use in meeting the expenses of the Brookville business. The account on the receiver’s books was included in the sale to Thomas, made under the order of June 2d, heretofore referred to, the entire account being lost to the trust fund.

We are unable to find any definite evidence showing with *365 any reasonable degree of satisfaction tbe facts thus found. Tbe evidence shows that tbe account of $1,160.30 was constructed mainly before tbe receiver was appointed, by charging Searrin with bis reports of earnings made by tbe plant and crediting him with bis pay rolls for salaries and other disbursements, so that tbe balance indicated money on band ancL uncolleeted bills. What amount was money and what amount, was uncollected bills, and what part of tbe latter-was of any value, did not appear. It further satisfactorily.appears that Mr. Eust and bis associates understood, so far as they knew anything about tbe matter, that substantially all tbe money represented by tbe account at tbe time of tbe sale was $520.38. in bank, under attachment. That is included in tbe $862.37 said to have been collected by Searrin, upon which credit is given of $305.87 paid as attorney’s fees, which tbe evidence shows without dispute was not so paid, but was disbursed,. $299.87 to pay attaching creditors, and $6 for expenses,, which, with salary accounts chargeable to tbe bank fund, exhausted tbe same except $74.51. That amount, it is claimed,, was at some time diverted by Searrin to tbe accounts of the-new proprietor. We do not deem it important to state or discuss tbe details of tbe evidence in regard to it. Suffice it to say, if it were so converted, we find nothing bringing tbe matter distinctly to tbe attention of tbe parties charged until tbe trial of this action, and then nothing except the unsworn statements of Searrin. Tbe report, however, made in respect to. tbe matter in September, 1893, simply showed that after paying tbe attaching creditors, and expenses, and tbe salary bills chargeable to tbe fund, there was left in tbe bank account the-sum named. There was nothing in tbe communication in respect to tbe matter indicating that tbe money was tabe used-for tbe new proprietors. It was not at any time transferred to the accounts of tbe new proprietors in an item of $74.51.. It is claimed that at some time $30.60 of it was used to pay a freight bill, and tbe residue, $43.91, in June, 1894, was de *366 posited as money of Thompson and Ms associates, this information being contained in Searrin’s statements. The balance of the $1,160.30 account, over and above the bank balance as aforesaid, consisted of a sum of money assumed to be in Sear-rin’s hands, determined in the manner hereinafter stated, and included bills to the amount of $478.78, of all sorts, $283.89 admitted to be worthless, and $140.50 in serious dispute at the time of the sale, and, if collected at all, not collected till some five months thereafter, leaving $54.39 unaccounted for. So, assuming that the .$54.39 was collected by Searrin, and the $140.50 as well, and that the same was used for the benefit of Mr. Thompson and his associates, and that the $74.51 was likewise used — all of which is at best supported only by the unsworn statements of Searrin — we have but $269.40 that can be ciphered out as having been obtained out of the Sear-rin account of $1,160.30 and used for the benefit of Thompson and his associates. From this it is quite clear that such account was never supposed to be more than merely representative of what Searrin should account for by uncollected matters, expense bills, or cash; that it did not indicate an indebtedness to the amount of $1,160.30, or any other sum in particular, and was so involved at the time of the sale that it was probably regarded as of such trifling significance as not to be worthy of attention. Of the whole $1,160.30 there was only $54.39, in the old bills, which under the circumstances might have been considered doubtful, the $140.50 due from the municipality, which was in dispute, and the assumed amount of money in hand as aforesaid, or whatever there might be in fact, of such money, that there could have been any reasonable expectation, by Mr. Rust, that anything would •come out of. This being the nature of the account, doubtless reliance was placed in Searrin to report and pay over any money coming out of the same which belonged to the receiver, such amount being considered in any event so small as to be of little significance.

*367 Notwithstanding the character of the Searrin account was .•such that we discover no evidence of fraud in the fact that Mr. Rust treated the same as not worthy of his attention, we •cannot acquit him entirely of negligence in not investigating it and securing from Searrin the benefits to the trust fund, whatever they were, which belonged to it. Any loss that occurred from such negligence should be charged to his legal representatives, which can be determined with any reasonable •degree of definiteness from the evidence, the order of the circuit court of December 30, 1897, passing upon his account, ■not being regarded as any protection to him in that regard, •since it appears that such matter was not brought understand.ingly to the court’s attention.

We shall not take time to review at length the evidence in -respect to all the details of this account. It seems to us undisputed that no knowledge came to Rust, Thompson, or Gilbert, until the trial of this action, at least, that any money “had been realized out of the account and used in their business. They did not visit Brookville, and knew nothing about the business there, except what they gathered from Searrin’s -reports. None of such reports showed, definitely, that any •of the receivership money -was used in such business; and if they did, they were but the unsworn statements of Searrin as •to his doing what he had no authority from his employer to do. :Such reports failed to prove that any money belonging to the receiver came to the use of Mr. Thompson and his associates. No action could have been maintained against them on such -proof as was made in this case. Mr. Thompson and Mr. Gilbert demonstrated by their own and other testimony that they •did not obtain or use any of the receivership money, or have any information that any such money was used, except what -they obtained from Searrin during the trial of the action; .and we see nothing in the record to impeach their evidence.

The subject was brought into the action by amendment .-granted on the trial, the understanding being that a continu- *368 anee would be granted, if needed by appellants. Thereafter, it seems, an investigation was made by correspondence with. Mr. Searrin, resulting in a statement by him that $'74.51 was used in their business, and that $140.50 due for municipal lighting, included in the $478.78 of uncollected accounts, was collected in December, 1893, and was so used. Whether Sear-rin’s unsworn statements are true or false does not appear. Standing alone, they do not show that any money belonging to the receiver was used at all for Thompson and his associates, much less do they show, against the sworn testimony,, that any such money was used fraudulently.

The learned counsel for respondents does not appear to claim that the finding, as to $556.50 being collected of the Searrin account of $1,160.30 and misappropriated, is according to the evidence, but the amount is made up this wise: The $74.51, $140.50, and $54.39 before mentioned are assumed to be established-in the manner before indicated, as having been misappropriated. Seventeen days’ earnings of the plant in July, 1893, not included in the $1,160.30, computed at $157.34, less seventeen days’ wages of Mr. Searrin and his assistant, $60.32, was assumed to belong to the receiver. In this it was thought there were no expenses for the period named other than for labor, that all of the service accounts should be counted as money, and that such accounts— not ordinarily deemed as earned till the end of the month— were apportionable and did not go with the plant by the sale. An estimate was made — from freight bills as to coal purchased, from statements made by Searrin respecting the average consumption of coal per day, and from coal bills showing the price paid for coal per ton, — that the value of coal on hand at the time of the foreclosure was $98.58. Erom that was deducted $71.66, which Searrin’s communications indicated was owing for this coal at the time of the sale, leaving a balance of $26.92. From a general statement of Searrin’s cash account from May 10 to August 11, 1893, items of cash *369 collections for May and June were taken, against which were credited expense vouchers for money paid from June 1st to July 10, 1893, leaving a balance of $161.14, and it was assumed that such balance represented money in Searrin’s hands, without any bills outstanding to be paid out of the same. Lastly, $2 appearing by Searrin’s statement to'have been paid for recording the Brookville mortgage, was charged as part of the misappropriations. In this the following assumptions were made which it seems are not warranted: First, that the unsworn statements of Mr. Searrin prove what appears upon their face as to Matters wholly unwarranted. We say “unwarranted” because we do not interpret the instructions from Thompson, to treat all the property as his as of a certain date, to include any money at that time in hand, or uncollected bills. Second, that the balance between May and June collections of $420.88, and vouchers paid from June 1 to July 10 of $200.34, leaving a balance of $161.14, should be regarded as free cash on hand, when it appears that the account was thus made up wholly by taking the items from Mr. Searrin’s cash account before mentioned, wherein it appears that bills were paid so near to July 17, 1893, the date of the sale, that indebtedness must have existed prior thereto sufficient to exhaust the entire $161.14 except the sum of $5.36. The total debit in the cash account up to the time of the sale was $1,124.49. The credits up to^ and inclusive of July 22, 1893, were $598.75, leaving a balance of $525.74. Against that balance must be charged the $520.38 in bank under attachment, leaving the balance indicated, $5.36. It must be assumed in view of the way business is ordinarily conducted, and in the absence of any evidence to the contrary, that bills paid for supplies up to July 22, 1893, probably represented debts contracted considerably earlier than that date. Third, that the $54.39 of old bills were collected and used in the business of Thompson and his: associates. Fourth, that there was $26.92 in coal on hand at *370 the time of the sale. Fifth, that the small amount of coal on hand for immediate nse in operating the plant was not an incident thereof and did not pass therewith at the sale. Sixth, that the July service bills were apportionable and that there were no claims justly chargeable thereto except salary accounts. The items discovered by respondents’ counsel make up the $556.50 found by the court to have been fraudulently appropriated, as thus appears:

The following statement of the matter will exhibit definitely, and in proper form, we think, the manner in which the balance above indicated is arrived at. The above statement is in the form presented by respondents’ counsel.

It seems we should not pass this matter without demonstrating that the Searrin cash account from which respondents’ counsel determined that Mr. Searrin had on hand at the time of the sale of the Brookville plant, $161.14, will not legitimately bear the treatment resorted to by them in sup *371 port of tbe court’s finding. Here is tbe account, balanced July 22, 1893:

While tbe balance of cash in band, less outstanding claims, was not to exceed $5.36 at tbe time tbe plant was sold — it was probably less — it is more than likely that there were numerous small liabilities, in addition to those paid up to tbe date we close tbe account, which properly should bare been paid out of any money available for that purpose. How just it is to include in tbe liabilities those paid within five days after tbe sale seems to be confessed by respondents’ counsel in that one paid July 18, 1893, is treated by them as a proper charge in that regard in their treatment of tbe coal matter. It is no legitimate answer to this to say that late bills represent supplies on band, because tbe moderate supplies for immediate use in tbe operation of tbe plant were as much a *372 part thereof as the tools and many other things that might be mentioned, not strictly speaking a part of the real estate.

The court, we must assume from the way the matter is presented here, obtained the item of $161.14 by taking from the above cash account three items on the debit side and nine items on the credit side, thus:

That not only makes a misleading statement to the extent indicated, but is quite likely further erroneous in that the $54.39 of back bills, in whole or in part, are liable to be included therein, though still uncollected.

The foregoing lengthy analysis of the manner in which the court’s finding as to the $556.50 must be supported, if at all, shows, it would seem, that at many points the finding is not supported by evidence at all, and that at others the evidence is altogether too vague to establish a legal liability, much less one of a fraudulent character. That seems too clear to warrant further discussion of the matter. We have studied the record in regard thereto endeavoring to look at all of the evidence legitimately bearing thereon, stating and restating the account to such an extent that it would not do to spread the evidence of all our labor upon the printed pages. The finding as to $556.50 having been collected out of the Searrin account of $1,160.30 may have been based upon a different theory than the one advanced by the learned counsel in sup *373 port of it. We have been unable to discover what that theory was from the record.

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