is misleading, for these acts can be ratified by a subsequent authorization in the authorized mode [McCracken v. S. F., 16 Cal. 591], or, where an oral agency would suffice, by accepting the benefits arising therefrom. [Pixley v. West. P. R. R. Co., 33 Cal. 183, Sec. 2310 C. C.; Gribble v. Columbus Buggy Co., 100 Cal. 67, 34 Pac. 527.] Also, a corporation can be estopped to assert unauthorized modes, as, for example, where the mode is prescribed by the by-laws. [Underhill v. Santa Barbara Co., 93 Cal. 300, 28 Pac. 1049; Illinois etc. Bank v. Pac. Ry. Co., 117 Cal. 332, 49 Pac. 197.] Acts, the mode of exercise of which is unauthorized, are, therefore, not governed by the same principles that regulate the effect of true ultra vires acts, and only for want of a better term are they called such. [See Chap. XVI, post, as to effects of acts done by the directors that only the directors and stockholders together can do; see also Hall v. Crandall, 29 Cal. 568.]

SECTION 74-SAME-WHO CAN ASSERT.

Thus far this chapter has dealt with ultra vires as a defense available to the corporation. Any person, however, who is not being sued on a contract made with the corporation, by which making or by receiving the benefits thereof he has been estopped to deny the corporation's power [Camp v. Land, 122 Cal. 167, 54 Pac. 839], can plead ultra vires as a defense to

any action, wherein issue.1

the act so

done is in

1 Illinois, etc. Bank v. Pac. Ry. Co., 117 Cal. 332, 49 Pac. 197; Bank of Shasta v. Boyd, 99 Cal., 604, 34 Pac. 337; Yancy v. Morton, 94 Cal. 558, 29 Pac. 1111; Fresno, etc. Co. v. Warner, 72 Cal. 379, 14 Pac. 1; Waterloo Turnpike Co. v. Cole, 51 Cal. 381; Williams v. Gold Hill M. Co., 96 Fed. 454.

CHAPTER IX.

RECEIVERS.

SEC. 75.-IN GENERAL.

SEC. 76.-RECEIVERS BEFORE DISSOLUTION.
SEC. 77,-RECEIVERS AFTER DISSOLUTION.
SEC. 78.-EFFECT OF APPOINTMENT.

SECTION 75-IN GENERAL.

There is no power in the courts of this state by virtue of their equity jurisdiction to appoint a receiver for a corporation. The power to appoint receivers is wholly statutory; is contained in two sections of the Code of Civil Procedure [Secs. 564-5], and no receiver can be appointed until the party making the application has stated facts which bring his case within those sections. Murry v. Superior Court, 129 Cal. 628, 62 Pac. 191; La Societe Francaise v. Dist. Court, 53 Cal. 495; Fischer v. Superior Court, 110 Cal. at 141, 42 Pac. 561; Neall v. Hill, 16 Cal. 146; Havemeyer v. Superior Court, 84 Cal. at 364, 24 Pac. 121; People etc. Bank v. Superior Court, 103 Cal. 27, 36 Pac. 1015; Harrison v. Hebbard, 101 Cal. 152, 35 Pac. 555.

"There is no power in a court of equity," says the court in Neall v. Hill, 16 Cal. 146, "to remove the officers of a corporation; there is provided at law a direct method for the accomplishment of that purpose. Courts of

equity have, therefore, no power to appoint receivers or to decree a sale of the property and settlement of the affairs of a corporation, for that would be to dissolve the corporation indirectly and equity has no such power." SECTION 76-RECEIVERS BEFORE DISSOLUTION.

re

Receivers before dissolution can only be appointed pursuant to section 564, C. C. P. That section makes no special mention of corporations, except in subdivision 5, but the application of some of the other subdivisions to corporations has been judicially decided. The second subdivision authorizing a ceiver in actions to foreclose mortgages, when it appears that the mortgage security is in danger or is probably insufficient, applies to corporations and a receiver pendente lite to take possession of the mortgaged property can be appointed, even when the mortgagor is a corporation. Illinois Trust etc. Bank ช. Alvord, 99 Cal. 407, 33 Pac. 1132.

The third subdivision authorizing the appointment of a receiver after judgment to carry it into effect is a substitution for the creditor's bill in equity, and applies to corporations whenever the power to carry out the judgment is not specially given to other persons. [Fox v. Hale & Norcross M. Co., 108 Cal. 475, 41 Pac. 328; Bates v. International Co., 84 Fed. 514.] Thus, there is no power to appoint a receiver for a corporation by virtue of a judgment of ouster in quo warranto proceedings [Havemeyer v. Sup. Ct., 84 Cal.

327, 24 Pac. 121], because the law provides that the directors in office at time of dissolution have the right to wind up and distribute the corporate assets. C. C. 400.

The fifth subdivision authorizing receivers in cases where a corporation is insolvent or is in imminent danger of insolvency, do not authorize courts to appoint receivers for corporations for the following reason: There is no statute in California which confers upon a private person the right to bring an action to dissolve a corporation because it is insolvent, or to obtain relief by seizing its property or putting it in a receiver's hands; and as the appointment of a receiver is always ancillary to some action begun-there being no action to appoint a receiver merely-no private person can have a receiver for a corporation appointed. La Societe Francaise v. Dist. Court, 53 Cal. 495.

The last subdivision of the section, authorizing receivers in all other cases where receivers have heretofore been appointed by the usages of courts of equity can have no application to corporations, for courts of equity have no power to appoint receivers to take possession of the property of a corporation pending litigation. Fischer v. Superior Court, 98 Cal. 67, 32 Pac. 875; Jacobs v. Supervisors, 100 Cal. 121 at p. 129, 34 Pac. 630; Loftus v. Fischer, 117 Cal. 128, 48 Pac. 1030; Murry v. Superior Court, 129 Cal. 628, 62 Pac. 191; Smith v. Superior Court, 97 Cal. 348, 32 Pac.