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 *8by 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, its contents are imported into the order so far as necessary for the purpose of construction.
Turning to the complaint in that action, we find that the only property specifically described in it is the fund (then in the hands of Falkner, Bell & Co., but subsequently transferred to the defendant) “arising out of said business,” i. e., the sale of wire cables.
At the time of making the order, and long afterward, it was one of the points in dispute in Jones v. Richter whether or not those parties were in fact partners. But they were all the time “alleged” partners, and this fund was particularly described as the property of the “alleged partnership.” There is no doubt that the court had jurisdiction over it from the beginning to the end of the litigation, before and after the intervention of Seale, and the only question is whether its order so described it on the day it was made that the receiver could have lawfully demanded its possession. That the description was sufficient for that purpose I cannot doubt. This particular fund was described in the complaint as a debt due to the partnership therein alleged, and by the terms of the order the receiver was to take possession of all “moneys due or to become due on account of the partnership alleged in the complaint herein.”