under the terms of the tripartite agreement of December 31, 1900, appropriated from the fund of $6,000,000 deposited with it, pursuant to said last-mentioned agreement, the sum of $745,768.86, and applied the same to meet the semiannual payments then due upon said collateral gold certificates. The Asphalt Company of America thereupon became bound to replace and repay to the said The Land Title & Trust Company, within one year from October 1, 1901, with interest, said sum of $745,768.86, appropriated as aforesaid to meet the said semiannual payments upon said collateral gold certificates. This it has hitherto failed to do.

December 28, 1901, the Land Title & Trust Company, being a corporation organized under the laws of the state of Pennsylvania, filed its bill of complaint in the Circuit Court of the United States for the District of New Jersey, against the Asphalt Company of America, as a corporation organized under the laws of the said state of New Jersey.

After asserting the organization of the Asphalt Company of America, its issue of stock and the creation of the trust in the Land Title & Trust Company, for the purpose of securing the payment of the principal and interest of the collateral gold certificates, as hereinbefore stated, and the organization of the National Asphalt Company, and its acquirement under its proposal of 596,252 shares of the Asphalt Company of America, out of a total issue of 600,000 shares, and the provisions of the tripartite agreement above referred to, alleges the defaults of the said Asphalt Company of America as above stated, and that in consequence thereof, it was subject to the following liabilities due or shortly to mature, for which it is directly liable: Due to said complainant for the replacement of money withdrawn from the $6,000,000 guaranty fund, on April 1, 1901, under and pursuant to the sixth clause of the agreement dated December 31, 1900, without computation of interest...........$ 185,768 86 Due to said complainant, as trustee, to replace money withdrawn from the $6,000,000 guaranty fund, on October 1, 1901, under and pursuant to the sixth clause of the agreement of December 31, 1900, without computation of interest. Due to said complainant, as trustee, on account of the sinking fund payment upon the Collateral Gold Certificates of the Asphalt Company of America, maturing January 1, 1902, as provided in clauses 4 and 7 of the agreement dated December 31, 1900

Total

745,768 86

300,000 00 .$1,231,537 72

In addition to the above, the bill avers that, by reason of the agreements and collateral gold certificates above mentioned, the Asphalt Company of America is subject to future and contingent liabilities of large amount, the extent of which cannot be precisely estimated. It is also averred that the Asphalt Company of America had other liabilities outstanding, consisting of bills payable and due to companies in which the said Asphalt Company of America is interested as stockholder, and also accounts payable to said companies, the aggregate of which exceeds $650,000.

The insolvency of the said Asphalt Company of America is averred, and that it is without funds to meet its obligations as afore

said. By reason thereof, the bill avers that the directors of said company are prohibited by the laws of New Jersey from selling, conveying, assigning or transferring any of its estate, effects, choses in action, goods, chattels, rights, credits, lands or tenements. "That on account of the nature of the business of said Asphalt Company of America, and character and amount of its assets and liabilities, it is impossible for the board of directors of said corporation to take any steps to satisfy the claims of any of its creditors, or to protect the interests of its stockholders, or in any manner to administer its business without selling, conveying, transferring, or assigning some of its property, and that by reason of the prohibition aforesaid, contained in the statutes of New Jersey, the directors of said corporation are, in effect, deprived of all power over its affairs, except for safe custody of its assets, until such time as the court shall direct the administration thereof by a receiver or receivers or trustees for that purpose appointed." That complainant, therefore, has filed its bill in behalf of itself and all other creditors of said Asphalt Company of America, who may come in, etc., having no adequate remedy at law for its grievances stated. It prays for equitable relief.

(1) That the said Asphalt Company of America may be decreed to be insolvent, and that a writ of injunction may issue out of and under the seal of the court, restraining the said corporation, its officers and agents, from exercising any of its privileges or franchises, or from collecting or receiving any debts, or from paying out or disposing of any of its funds, property, or assets, as prohibited by the said New Jersey statute.

(2) That the court appoint a receiver or receivers of said corporation, in behalf of its creditors and stockholders, according to the form of the statute of New Jersey in such case made and provided, with full power and authority to demand, sue for, collect, receive, and take into possession all the goods, chattels, rights and credits. and property of every description of the said corporation, with all the incidental powers ordinarily vested in receivers in like cases, and with full power and authority to exercise all right of ownership in respect to the shares of stock owned by and registered in the name of said corporation, and to collect and receive the dividends, income and profits therefrom, and to apply the same in accordance with the orders and decrees of the court.

"(3) That the rights of complainant and all other creditors of the said Asphalt Company of America may be ascertained, and that the court fully administer the fund in which complainant is interested, being the entire assets and income of said corporation, and for that purpose, marshal all its assets and ascertain the several and respective liens and priorities existing on each and every part thereof, and decree and enforce the rights, liens and equities of all the creditors of said Asphalt Company of America, as the same may be finally ascertained by them, upon interventions or applications of every such creditor or lienor." And further, for such other relief as the nature of the case may require, and as may be agreeable to equity.

On the 28th of December, 1901, the Asphalt Company of America, the defendant in the foregoing suit, appeared by its solicitors, and filed its answer to the bill of complaint of the Land Title & Trust Company, admitting all the averments of said bill; that it, the defendant, was insolvent, and was without funds to meet its obligations as they should respectively mature, and that the future and contingent liabilities of defendant were large, and recognized that in its insolvent position, it was prohibited by the laws of the state of New Jersey from making any application of its assets as a preferential payment on any of the obligations referred to in said bill, and that by reason of its said insolvency, its directors were prohibited by the laws of New Jersey from selling, assigning or transferring its property or assets, as in the said bill of complaint is set forth.

Defendant further joined in a prayer that a decree of insolvency be entered, and that a receiver be appointed by the court to take charge of its property and assets for the benefit of its creditors and stockholders. On the said 28th day of December, 1901, the court below, on the reading of the bill of complaint and affidavits in support of the same, and the answer of the defendant, duly filed, and the hearing of complainant's motion for an injunction and the appointment of receivers, made its interlocutory decree that, being satisfied with the sufficiency of the application of complainant, and of the truth of the allegations contained in said bill of complaint, a writ of injunction forthwith issue out of and under the seal of the court, restraining the said corporation, its officers, directors, agents or employés, from exercising any of its privileges or franchises, or from doing any of the things forbidden by the New Jersey statute above referred to, to be done. Also that receivers be appointed of all the property, real, personal and mixed, of the defendant, the Asphalt Company of America, wheresoever situated, and all its franchises, rights, privileges and effects, more particularly set forth in the decree, and with the powers and authorities usually conferred upon receivers in such cases, for the proper protection of the property and trusts vested in them. After the receivers had been appointed, as aforesaid, about January 27, 1902, the appellant, Harry C. Spinks, applied by petition for leave to intervene in the said suit, as recited by him in one of the petitions now before this court. The court denied this application, and no appeal was taken therefrom. Fed. 484.

On December 8, 1902, the Land Title & Trust Company filed a bill, or petition in the nature of a bill, to foreclose the mortgage or pledge made to it by the Asphalt Company of America, to secure the collateral gold certificates, exceeding $29,000,000 in amount. This bill set up the defaults in the payment of obligations of the defendant company to the amount of $2,723,075.44, stating provisions in the agreements of July 15, 1899, and December 31, 1900, authorizing the resort by the trustee to the court for relief, demands upon the defaulted companies and the receivers thereof for payment of the defendant's debt, the continuance of such default, subsequent to such demands, and requests from holders of the collateral gold certificates,

(for which the securities held by the trustee were pledged) for proceedings to be taken in protection of their interests. All the averments of the bill were admitted by the receivers, in their answer, to be true. This admission by the receivers must be considered in the matter before us, as of important significance, as it is the admission made by officers of the court, appointed independently of the interests involved, and presumably after due inquiry and consideration of all the material facts alleged in the bill and proceedings under which said receivers were originally appointed. This answer was filed February 14, 1903. Prior thereto, to wit, January 2, 1903, Spinks, the appellant, states that he requested the said receivers in writing to set up, in answer to the bill of the Land Title & Trust Company, certain specified defenses fully set forth in the proposed answer and affidavits annexed to his petition for intervention, and that the receivers refused to set up said defenses. On January 14, Spinks filed, in the court below, a petition of appeal from the decision of the receivers not to adopt his proposed answer, and on the following February 13th, this appeal was dismissed by the court below, with an opinion, stating the reasons for so doing, (reported in 121 Fed. 192). More than a month after the filing of the answer of the receivers of the Asphalt Company of America, as hereinbefore stated, to wit, on March 18, 1903, the appellant filed a petition in the court below, for leave to intervene and answer the said bill of foreclosure of the Land Title & Trust Company, with the defenses already set out in his written request to the receivers January 2d, and also in his petition of appeal to the court below, from the decision of the receivers above referred to. Upon this petition for intervention, a rule was issued to show cause on March 30, 1903. This rule was accordingly heard, counsel on both sides appearing, and on April 3, 1903, it was ordered by the court that the prayer of said petition be denied. From this order, an appeal was taken by the petitioner, Harry C. Spinks, and will be referred to as the first of the appeals now before this court.

Prior to the filing of appellant's petition for intervention, to wit, February 16, 1903, an order was made by the court below, consolidating the four suits in the caption, in all of which the Land Title & Trust Company was asserting a prior lien on certain assets. On February 23, 1903, an order was made, referring the claim of the Land Title & Trust Company, in the consolidated suit, to a special master, to ascertain and report the amount of principal and interest of the collateral gold certificates of the Asphalt Company of America outstanding, and also the collateral gold certificates of the National Asphalt Company, and the amounts due and to become due thereon for semiannual payments, and to report and ascertain what securities are held by the Land Title & Trust Company and the Equitable Trust Company for the security of said certificates, in what manner they are pledged, and how they could be sold to the best advantage. On the coming in of the reports of the special master, first and supplemental, the court below, on April' 3d, entered its decree of sale in accordance with the recommendations of said reports, directing publication of notice of sale, and that the receiver should publish notice to creditors of the Asphalt Company of

America to present their claims, etc. On May 14th, the appellant states that he filed with the receiver his proof of claim as a creditor of the Asphalt Company of America, which claim the receiver declined to report to the court, on the ground that the Land Title & Trust Company had filed a claim on behalf of all the outstanding collateral gold certificates, including those held by the appellant. On May 15th, sale was had of the pledged securities, pursuant to the decree, and on the 18th of May, decree was entered confirming said sale. The terms of sale were complied with prior to June 3d, and all the property included in the sale was invested in the General Asphalt Company. The report of the receiver of claims against the Asphalt Company of America, was filed on June 4th, and on June 15th, a decree was entered confirming said receiver's report, and directing distribution. On July 3d, Spinks filed in the court below a petition of appeal from the determination of the receiver not to allow his claim as a creditor of the Asphalt Company of America, and on July 6th, said petition was dismissed. by that court. From the order dismissing the petition, an appeal has been taken to this court, and will be referred to as the second of the appeals now before us.

On July 20, 1903, Spinks filed a petition to intervene in the consolidated cause, and set aside the decree of sale and decree confirming sale, which petition was heard, and the petition to intervene in the consolidated cause denied by the court below. From the order denying the petition to intervene, an appeal has been taken here, and will be referred to as the third of the appeals now before this court.

With this general statement of the character of the litigation involved in the consolidated suits, we come to consider the merits of those appeals and the questions of law involved therein. The first and third appeals may be considered together, the one relating to the petition to intervene in the so-called foreclosure suit, and the other to the petition to intervene in the consolidated cause preferred to the court below after the sale under the decree, and seeking to set aside the decree of sale and the decree confirming the sale.

In the first appeal, the appellant represents himself as having filed his petition to intervene in the foreclosure suit in the court below, as the holder of 1,000 shares of the capital stock of the Asphalt Company of America, out of a total of 600,000 shares. The so-called foreclosure bill was filed November 18, 1902, by the Land Title & Trust Company, as trustee of the securities conveyed to it by the Asphalt Company of America, for the benefit of the holders of the collateral gold certificates issued by it as above described. The allegations of the bill heretofore briefly outlined, including the allegation of the default to the amount of $2,723,075.44, were necessarily considered and investigated by the receivers, as appears by their answer filed February 14, 1903. That these allegations were carefully considered and investigated, is emphasized by the statement of the appellant in his petition for intervention, that he had applied to the said receivers before the filing of the answer, to wit, on January 2,.1903, to include in their answers certain defenses set out by him, and that the receivers, after presumably considering the same, had declined to adopt the answer proposed by appellant, and that thereafter, to wit, on January 14, 1903, the said ap