Louis Brandeis

“ The Court of Appeals held that the legal sufficiency of the appointment of the plaintiff as ancillary receiver had been put in issue by the answer; and that the plaintiff had not sustained the burden of establishing its legality. It ruled that in the federal courts a foreign receiver may not 'sue outside the district as a matter of comity even by obtaining permission before suit is commenced;' that 'to permit a foreign receiver to obtain an ancillary appointment, on an ex parte application, improperly avoids the rule denying foreign receivers the right to sue in the foreign jurisdiction' ”

“ Third. The alleged invalidity of the order appointing McCandless ancillary receiver is a defect of this character. It is urged that the appointment of an ancillary receiver can be made only as an incident of an independent bill, and upon application of one properly a party thereto; that here there was nothing before the court, because no suit was then pending in the Southern District of New York; that there was neither a plaintiff nor a defendant; that no relief was prayed; that no process had issued; that the corporation did not voluntarily appear ”

“ The importance of reviewing that rulling-in view of an established practice, said to prevail in perhaps a majority of the state courts, of permitting foreign receivers to sue, [1] and a common practice, said to obtain in federal courts, of appointing ancillary receivers on the ex parte application of the primary receiver-was the reason principally urged for granting the petition for certiorari. ”