Wheat

Jones brought an action against Richter, alleging a partnership in the business of selling street railway cables, and asked for the appointment of a receiver, an accounting, and a decree of dissolution. Subsequently Seale intervened, setting out that he was a partner of Richter in the business of selling cables, and that Jones was not. He also asked for an accounting and a dissolution of the partnership. Upon the aforesaid application of Jones one Bisbee was appointed receiver by the judge, “to collect, .... the outstanding debts and moneys due, or to become due, on account of the partnership alleged in the complaint herein to exist between plaintiff and defendant,” and to receive and take possession of all the property of said partnership upon filing a bond, etc. Soon after the intervention of Seale there came into the possession of the Bank of California about two thousand six hundred dollars, the net proceeds of the sales of two cables. This money was held under a certificate of deposit made out in favor of Thomas Brown, cashier. Bisbee, the receiver, notified the bank of his appointment. *6 Scale and liis attorney notified the bank that, he, Seale, was a partner with Richter…

I dissent from the order denying a rehearing in this cause. The only point decided by the court is that neither Bisbee, nor bis successor in the receivership, ever had title to the fund in the hands of defendant. This decision is placed upon the ground that since the receiver was only authorized to take possession of the property of the partnership, alleged *8 by Jones to have existed between him and Richter, and since it was finally determined that there was no sneh partnership, he never got title to any property.

The order appointing the receiver is to be construed in the light of the circumstances as they existed at the time it was made, and, when those circumstances are taken into account, I think the evidence is ample and uncontradicted to sustain the allegation printed in italics in the opinion of the court; the allegation, that is to say, that Bisbee was appointed with power to take and keep possession “especially of all the proceeds of the sales of said wire cables mentioned in said action.”

When the order appointing Bisbee was made, there was nothing before the court except the complaint in Jones v. Richter, and the complaint being expressly referred to in the order,…