William Esbitt, as Receiver of the Assets & Prop. of First Disc. Corp. v. Dutch-Am. Mercantile Corp., 335 F.2d 141 (1st Cir. 1964). · Go Syfert
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William Esbitt, as Receiver of the Assets & Prop. of First Disc. Corp. v. Dutch-Am. Mercantile Corp., 335 F.2d 141 (1st Cir. 1964). Cases Citing This Book View Copy Cite
88 citation events (19 in the last 25 years) across 15 distinct courts.
Strongest positive: Securities and Exchange Commission v. GPB Capital Holdings, LLC (nyed, 2023-12-07)
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Top citers, strongest first. 35 distinct citers. How cited ↗
discussed Cited as authority (rule) Securities and Exchange Commission v. GPB Capital Holdings, LLC (2×)
E.D.N.Y · 2023 · confidence medium
Mercantile Corp., 335 F.2d 141, 143 (2d Cir. 1964); then quoting Am.
discussed Cited as authority (rule) Securities and Exchange Commission v. Byers (2×)
2d Cir. · 2010 · confidence medium
Mercantile Corp., 335 F.2d 141, 143 (2d Cir.1964).
discussed Cited as authority (rule) Donell v. Kowell
9th Cir. · 2008 · confidence medium
As the Supreme Court stated in Peacock v. Thomas, “we have approved the exercise of ancillary jurisdiction over a broad range of supplementary proceedings involving third parties to assist in the protection and enforcement of federal judgments -including attachment, mandamus, garnishment, and the pre-judgment avoidance of fraudulent conveyances.” 516 U.S. 349, 356 , 116 S.Ct. 862 , 133 L.Ed.2d 817 (1996); see also Pope v. Louisville, New Albany & Chicago Ry., 173 U.S. 573, 577 , 19 S.Ct. 500 , 43 L.Ed. 814 (1899) (holding that a receiver appointed to “accomplish the ends sought and direc…
discussed Cited as authority (rule) Eberhard v. Marcu
2d Cir. · 2008 · confidence medium
Mercantile Corp., 335 F.2d 141, 142-43 (2d 7 Cir. 1964) (questioning the use of a receivership to perform the functions of a bankruptcy court). 8 We have little difficulty holding that the district court had jurisdiction over the matter of the 9 Receiver’s application. 10 2.
cited Cited as authority (rule) Eberhard v. Marcu
2d Cir. · 2008 · confidence medium
Mercantile Corp., 335 F.2d 141, 142-43 (2d Cir.1964) (questioning the use of a receivership to perform the functions of a bankruptcy court).
discussed Cited as authority (rule) Securities & Exchange Commission v. Capital Consultants LLC
9th Cir. · 2006 · confidence medium
Mercantile Corp., 335 F.2d 141, 143 (2d Cir.1964) (concluding that, "in bringing an action for an injunction and the appointment of a receiver, the SEC is [] concerned with the protection of those who already have been injured by a violator’s actions from further despoliation of their property or rights” not merely with "the enjoining of possible future violations”) (internal quotation marks omitted). .
discussed Cited as authority (rule) SECURITIES AND EXCHANGE COMMISSION, AND KAREN LYNN BENSON P.J. BRIX, LLC, CLAIMANTS-APPELLANTS v. CAPITAL CONSULTANTS LLC JEFFREY L. GRAYSON BARCLAY L. GRAYSON, THOMAS F. LENNON, RECEIVER-APPELLEE. SECURITIES AND EXCHANGE COMMISSION CAROLYN L. ARNTSON ARNTSON FAMILY HOLDINGS, LLC MARY ARNTSON JERRY L. BAKER MARY BETH BAKER KAREN LYNN BENSON RODERICK A. LIVESAY BRIX DEARMOND LLC JOHN R. CHANEY J. DAVID COUGHLIN AND JENNIFER LEE COUGHLIN TRUST J. DAVID COUGHLIN MARLENE DUTCHER ROBERT DUTCHER DAVOL FAMILY TRUSTS a AND B ANN HAZEN FRANCIS FREMONT LAND COMPANY LLC FUNERAL ASSOCIATES LLC JAY A. HINZ HOLTZ JOINT TRUST KENNETH E. HOLTZ ROSELLA G. HOLTZ PAULA J. KING SHELLEY KING LABORERS INTERNATIONAL UNION OF NORTH AMERICA, LOCAL 296 ELIZABETH MCNALLY JAMES MURPHY PATRICIA J. MURPHY WAYNE MUSGROVE ESTATE OF BENNIE KAY MUSGROVE BETTY NORRIE INTERTRIBAL TIMBER COUNCIL P.J. BRIX, LLC KENNETH R. POORMAN POORMAN FAMILY LLC QUALITY ELECTRIC MONEY PURCHASE PLAN SCOTT THOMASON DONALD E. TYKESON TRUST DONALD E. TYKESON DONALD E. TYKESON FOUNDATION BOYD VAN NESS WAND'S FUNERAL HOME DEFINED BENEFIT PENSION PLAN ROBERT J. WILHELM TRUST ALLEN AND ESTHER WILSON REVOCABLE TRUST LESLIE R. WOLF MARTIN WOLF DEBORAH WOLF NANCY M. GABRIEL JOSEPH GABRIEL ROBERT B. GUTTERMAN TRUST S.M. GUTTERMAN, MA, JD, PROFIT-SHARING PLAN G.S. GUTTERMAN, MD S.M. GUTTERMAN G.S. GUTTERMAN IBEW LOCAL UNION 1245 NOEL B. FLYNN JELD-WEN FOUNDATION QUALITY ELECTRIC, INC. AFTCS-PREFERRED ENDOWMENT CARE-CALIFORNIA AMERICAN FUNERAL & CEMETERY TRUST SERVICES PREFERRED ENDOWMENT CARE — OREGON/WASHINGTON, EIGHTH DISTRICT ELECTRICAL PENSION FUND EIGHTH DISTRICT ELECTRICAL BENEFIT FUND, AND AMERICAN FUNERAL AND CEMETERY TRUST SERVICES VIRGINIA K. MUDD VIRGINIA B. MUDD REVOCABLE TRUST v. CAPITAL CONSULTANTS LLC JEFFREY L. GRAYSON BARCLAY L. GRAYSON CAPITAL CONSULTANTS LLC ANDREW WIEDERHORN LAWRENCE A. MENDELSOHN JEFFREY
8th Cir. · 2006 · confidence medium
Mercantile Corp., 335 F.2d 141, 143 (2d Cir.1964) (concluding that, "in bringing an action for an injunction and the appointment of a receiver, the SEC is [ ] concerned with the protection of those who already have been injured by a violator's actions from further despoliation of their property or rights" not merely with "the enjoining of possible future violations") (internal quotation marks omitted). 17 See Cohen, 337 U.S. at 546 , 69 S.Ct. 1221 . 18 See SEC v. Basic Energy & Affiliated Res., Inc., 273 F.3d 657 , 665-67 (6th Cir.2001) (holding that a court order resolving some claims to rece…
discussed Cited as authority (rule) Benson v. Lennon
9th Cir. · 2006 · confidence medium
Mercantile Corp., 335 F.2d 141, 143 (2d Cir. 1964) (concluding that, “in bringing an action for an injunction and the appointment of a receiver, the SEC is [ ] concerned with the pro- tection of those who already have been injured by a violator’s actions from further despoliation of their property or rights” not merely with “the enjoining of possible future violations”) (internal quotation marks omit- ted).
cited Cited as authority (rule) Akin, Gump, Strauss, Hauer and Feld, L.L.P. v. E-Court, Inc. D/B/A PointofPay.Com, Inc., by and Through, C. Daniel Roberts, Receiver and Henry L. Mitchell, III
Tex. App. · 2003 · confidence medium
Mercantile Corp., 335 F.2d 141, 143 (2d Cir. 1964)).
cited Cited as authority (rule) Akin, Gump, Strauss, Hauer and Feld, L.L.P. v. E-Court, Inc. D/B/A PointofPay.Com, Inc., by and Through, C. Daniel Roberts, Receiver and Henry L. Mitchell, III
Tex. App. · 2003 · confidence medium
Mercantile Corp. , 335 F.2d 141, 143 (2d Cir. 1964)).
discussed Cited as authority (rule) H. Sand & Co., Inc. v. Airtemp Corporation
2d Cir. · 1991 · confidence medium
See Dunn v. Uvalde Asphalt Paving Co., 175 N.Y. 214, 216-18 , 67 N.E. 439 (1903) (defendant could not counterclaim for damages to adjoining property owners who had sued him, but whose claims had not yet been paid); Esbitt v. Dutch-American Mercantile Corp., 335 F.2d 141, 143 (2d Cir.1964) (defendant could not retain money for indemnity where “the defendant has not yet incurred any liability and may never incur liability”).
discussed Cited as authority (rule) Scholes v. Schroeder
N.D. Ill. · 1990 · confidence medium
Nothing that is said here is in any respect inconsistent with SEC v. Keller Corp., 323 F.2d 397, 402-03 (7th Cir.1963) or Esbitt v. Dutch-American Mercantile Corp., 335 F.2d 141, 143 (2d Cir.1964), on which Scholes’ Mem. 7-9 seeks to rely.
discussed Cited as authority (rule) Sec v. The American Board Of Trade, Inc. (2×)
2d Cir. · 1987 · confidence medium
In Esbitt v. Dutch-American Mercantile Corp., 335 F.2d 141, 143 (2d Cir.1964), for example, we observed that "[a] primary purpose of appointing a receiver is to conserve the existing estate." Similarly, in SEC v. Manor Nursing Centers, Inc., 458 F.2d 1082, 1105 (2d Cir.1972), we stated that "the appointment of a trustee to help preserve the status quo while the various transactions were unraveled was necessary to obtain an accurate picture of what transpired." Although we have warned that "the appointment of trustees [or receivers] should not follow requests by the SEC as a matter of course," …
discussed Cited as authority (rule) Securities & Exchange Commission v. American Board of Trade, Inc. (2×)
2d Cir. · 1987 · confidence medium
In Esbitt v. Dutch-American Mercantile Corp., 335 F.2d 141, 143 (2d Cir.1964), for example, we observed that “[a] primary purpose of appointing a receiver is to conserve the existing estate.” Similarly, in SEC v. Manor Nursing Centers, Inc., 458 F.2d 1082, 1105 (2d Cir.1972), we stated that “the appointment of a trustee to help preserve the status quo while the various transactions were unraveled was necessary to obtain an accurate picture of what transpired.” Although we have warned that “the appointment of trustees [or receivers] should not follow requests by the SEC as a matter of…
discussed Cited as authority (rule) Securities and Exchange Commission v. Walter Wencke, Theodore Delusignan, Movant-Appellant v. R.N. Gould, Receiver-Trustee
9th Cir. · 1986 · confidence medium
See e.g., Application of Howard, 325 F.2d 917, 919 (3d Cir.1963); see also SEC v. Investors Security Corp., 560 F.2d 561, 567 (3d Cir.1977) (holding that when "receiver acted within the powers delegated by the [trial] court to accomplish ends sought by the underlying action, [such as] protecting defrauded] investors and creditors, the district court had jurisdiction over the proceeding ... as an ancillary matter”); Tcherepnin v. Franz, 485 F.2d 1251, 1255-56 (7th Cir.1973) (same), cert. denied, 415 U.S. 918 , 94 S.Ct. 1416 , 39 L.Ed.2d 472 (1974); Esbitt v. Dutch-American Mercantile Corp., 3…
discussed Cited as authority (rule) United States v. Royal Business Funds Corporation
2d Cir. · 1983 · confidence medium
We by no means intend to disturb the general rules that a debtor may not agree to waive the right to file a bankruptcy petition, that the pendency of an equitable receivership rarely precludes a petition in bankruptcy, see In re Federal Shopping Way, Inc., 433 F.2d 144 (9th Cir.1970); In re Prudence Co., 79 F.2d 77 (2d Cir.1935); In re Yaryan Naval Stores Co., 214 F. 563 (6th Cir.1914), or that equity receiverships should not “perform the functions of the bankruptcy court.” Esbitt v. Dutch-American Mercantile Corp., 335 F.2d 141, 143 (2d Cir.1964). *16 Nevertheless, a debtor subject to a f…
discussed Cited as authority (rule) Securities and Exchange Commission v. An-Car Oil Company, Inc., Cyrus W. Partington, Intervenors-Appellants
1st Cir. · 1979 · confidence medium
See SEC v. Lincoln Thrift Association, supra, 577 F.2d at 603 ; SEC v. Bartlett, 422 F.2d 475 , 477-78 (8th Cir. 1970); Esbitt v. Dutch-American Mercantile Corp., 335 F.2d 141, 143 (2d Cir. 1964); Los Angeles Trust Deed & Mortgage Exchange v. SEC, 285 F.2d 162, 182 (9th Cir. 1960).
examined Cited as authority (rule) Fed. Sec. L. Rep. P 96,120 Securities and Exchange Commission v. Investors Security Corp. And William H. Brown. Securities and Exchange Commission v. Investors Security Leasing Corporation, William H. Brown, Dale R. McDonald and William J. Lynam. Appeal of Equibank, N.A., in No. 76-2133. Appeal of Hilliard Kreimer, Receiver for Investors Security Leasing Corporation, in No. 76-2134 (3×)
3rd Cir. · 1977 · confidence medium
SEC v. Texas Gulf Sulphur Co., supra, 446 F.2d at 1307 ((2 Cir.), cert. denied, 404 U.S. 1005 , 92 S.Ct. 561 , 30 L.Ed.2d 558 (1971)); SEC v. S & P National Corporation, 360 F.2d 741 , 750 (2 Cir. 1966); Lankenau v. Coggeshall & Hicks, 350 F.2d 61, 63 (2 Cir. 1965); Esbitt v. Dutch-American Mercantile Corporation, 335 F.2d 141, 143 (2 Cir. 1964).
examined Cited as authority (rule) Securities & Exchange Commission v. Investors Security Corp. (3×)
3rd Cir. · 1977 · confidence medium
SEC v. Texas Gulf Sulphur Co., supra, 446 F.2d at 1307 [(2 Cir.), cert. denied, 404 U.S. 1005 , 92 S.Ct. 561 , 30 L.Ed.2d 558 (1971) ]; SEC v. S & P National Corporation, 360 F.2d 741 , 750 (2 Cir. 1966); Lankenau v. Coggeshall & Hicks, 350 F.2d 61, 63 (2 Cir. 1965); Esbitt v. Dutch-American Mercantile Corporation, 335 F.2d 141, 143 (2 Cir. 1964).
cited Cited as authority (rule) Securities & Exchange Commission v. R. J. Allen & Associates, Inc.
S.D. Fla. · 1974 · confidence medium
See, also, Securities and Exchange Commission v. Manor Nursing Centers, Inc., 2 Cir., 458 F.2d 1082, at 1105 ; Esbitt v. Dutch-American Mercantile Corp., 335 F.2d 141, 143 (2d Cir., 1964).
cited Cited as authority (rule) Securities and Exchange Commission, and Securities Investor Protection Corporation, Applicant-Appellee v. Alan F. Hughes, Inc. And Alan F. Hughes
2d Cir. · 1972 · confidence medium
Cf. SEC v. S&P National Corp., 360 F.2d 741 , 750 (2 Cir. 1966); Esbitt v. Dutch-American Mercantile Corp., 335 F.2d 141, 143 (2 Cir. 1964).
discussed Cited as authority (rule) Securities and Exchange Commission v. Manor Nursing Centers, Inc. (2×)
2d Cir. · 1972 · confidence medium
SEC v. Texas Gulf Sulphur Co., supra, 446 F.2d at 1307 ; SEC v. S & P National Corporation, 360 F.2d 741 , 750 (2 Cir. 1966); Lankenau v. Coggeshall & Hicks, 350 F.2d 61, 63 (2 Cir. 1965); Esbitt v. Dutch-American Mercantile Corporation, 335 F.2d 141, 143 (2 Cir. 1964).
discussed Cited as authority (rule) Securities & Exchange Commission v. Manor Nursing Centers, Inc.
S.D.N.Y. · 1971 · confidence medium
Securities arid Exchange Commission v. Texas Gulf Sulphur Co., *932 312 F.Supp. 77, 90-93 (S.D.N.Y.1970), aff'd 446 F.2d 1301 , 2 Cir., filed June 10, 1971; Lankenau v. Coggeshall & Hicks, 350 F.2d 61 (2d Cir. 1965); Esbitt v. Dutch-American Mercantile Corp., 335 F.2d 141, 143 (2d Cir. 1964); Los Angeles Trust Deed & Mortgage Exchange v. Securities and Exchange Commission, 285 F.2d 162, 181-182 (9th Cir. 1960), cert. denied, 366 U.S. 919 , 81 S.Ct. 1095 , 6 L.Ed.2d 241 (1961); Securities and Exchange Commission v. Bartlett, 422 F.2d 475 , 477-478 n. 6 (8th Cir. 1970); Securities and Exchange C…
discussed Cited as authority (rule) Fed. Sec. L. Rep. P 93,072 Securities and Exchange Commission v. Texas Gulf Sulphur Company, a Texas Corporation
2d Cir. · 1971 · confidence medium
Comm’n v. Bartlett, 422 F.2d 475 , 477-478 & n. 6 (8 Cir. 1970); Lankenau v. Coggeshall & Hicks, 350 F.2d 61 (2 Cir. 1965); Esbitt v. Dutch-American Mercantile Corp., 335 F.2d 141, 143 (2 Cir. 1964); Los Angeles Trust Deed & Mortgage Exchange v. Securities & Exch.
discussed Cited as authority (rule) John C. Lankenau, Esq., as Receiver of Lester D. Brown, D/B/A L. D. Brown Co. v. Coggeshall & Hicks, Applicant-Appellee. This Case Came Up on Appeal Under the Style SEC v. Brown, That Used in the District Court. Upon Request, However, the Case on Appeal Has Been Renamed, as Indicated. Securities and Exchange Commission v. Lester D. Brown, D/B/A L. D. Brown Co.
2d Cir. · 1965 · confidence medium
Similarly, in Esbitt v. Dutch-American Mercantile Corp., 335 F.2d 141, 143 (2d Cir. 1964), we expressed strong reservations as to the propriety of allowing a receiver to liquidate; it was permitted only because it had been virtually completed by the time the appeal had been decided.
discussed Cited as authority (rule) Lankenau v. Coggeshall & Hicks
2d Cir. · 1965 · confidence medium
Similarly, in Esbitt v. Dutch-American Mercantile Corp., 335 F.2d 141, 143 (2d Cir. 1964), wTe expressed strong reservations as to the propriety of allowing a receiver to liquidate; it was permitted only because it had been virtually completed by the time the appeal had been decided.
cited Cited as authority (rule) Wharton v. Hirsch
2d Cir. · 1965 · confidence medium
We are still shown only a “possible but unestablished and unliquidated liability.” Esbitt v. Dutch-American Mercantile Corporation, 335 F.2d 141, 143 (2 Cir. 1964).
discussed Cited as authority (rule) Irving L. Wharton, as Trustee in Reorganization Under Chapter X of the Bankruptcy Act of Continental Vending MacHine Corp. v. Robert S. Hirsch, Irving L. Wharton, as Trustee in Reorganization Under Chapter X of the Bankruptcy Act of Continental Vending MacHine Corp. v. Bernard P. Weiner, in the Matter of Continental Vending MacHine Corp., Debtor
2d Cir. · 1965 · confidence medium
We are still shown only a "possible but unestablished and unliquidated liability." Esbitt v. Dutch-American Mercantile Corporation, 335 F.2d 141, 143 (2 Cir. 1964). 3 Moreover, this second application for injunction presents no issues that were not raised and adjudicated in the prior proceedings and must be barred for that reason.
discussed Cited as authority (rule) Hirsch v. Wharton
2d Cir. · 1965 · confidence medium
In an analogous situation this court has held that “equity will not permit the set-off of a possible but unestablished and unliquidated liability.” Esbitt v. Dutch-American Mercantile Corp., 335 F.2d 141, 143 (2 Cir. 1964).
discussed Cited as authority (rule) Hirsch v. Wharton
2d Cir. · 1965 · confidence medium
In an analogous situation this court has held that 'equity will not permit the set-off of a possible but unestablished and unliquidated liability.' Esbitt v. Dutch-American Mercantile Corp., 335 F.2d 141, 143 (2 Cir. 1964).
discussed Cited "see" Fed. Sec. L. Rep. P 94,356 International Controls Corp. v. Robert L. Vesco, and Andean Credit, S.A., Intervenor-Appellant. International Controls Corp. v. Robert L. Vesco, and Fairfield General Corporation, International Controls Corp. v. Robert L. Vesco, and Vesco & Co., Inc. (2×)
2d Cir. · 1974 · signal: see · confidence high
See n. 5, supra. Accordingly, we do not believe that Vesco & Co. was prejudiced by the district court's procedures or that reversal would serve the interests of due process 21 On this appeal, ICC has argued that there was jurisdiction under the 1934 Act on the alternative ground of ancillary jurisdiction premised on the final judgment entered with the consent of ICC in SEC v. Vesco et al., supra. The argument runs that the appointment of a Special Counsel and a board of directors was the equivalent of appointing a receiver, and that in Esbitt v. Dutch-American Mercantile Corp., 335 F.2d 141 (2…
cited Cited "see" Alexander Tcherepnin v. Robert Franz, Peerless Closure Company, Alexander Tcherepnin v. Robert Franz, Henry McGurren Alexander Tcherepnin v. Robert Franz, Braewood Building Corporation
7th Cir. · 1973 · signal: accord · confidence high
Accord, Esbitt v. Dutch-American, 335 F.2d 141, 142 (2d Cir., 1964). 8 25 IV.
cited Cited "see" Tcherepnin v. Franz
7th Cir. · 1973 · signal: accord · confidence high
Accord, Esbitt v. Dutch-American, 335 F.2d 141, 142 (2d Cir., 1964). 8 IV.
cited Cited "see" Cooper v. North Jersey Trust Co.
S.D.N.Y. · 1965 · signal: see · confidence high
See Esbitt v. Dutch-American Mercantile Corp., 335 F.2d 141 (2 Cir. 1965); Esbitt v. Paul L.
cited Cited "see, e.g." United States of America and Mortimer Todel, as Receiver of the Funds, Assets and Property of Roosevelt Capital Corporation v. Franklin National Bank
2d Cir. · 1975 · signal: see also · confidence medium
See also Esbitt v. Dutch-American Mercantile Corp., 335 F.2d 141, 142-43 (2d Cir. 1964); Roof v. Conway, 133 F.2d 819, 823 (6th Cir. 1943); 7 Moore, If 66.07[3] at 1938.
Retrieving the full opinion text from the archive…
William ESBITT, as Receiver of the Assets and Property of First Discount Corp., Respondent,
v.
DUTCH-AMERICAN MERCANTILE CORP., Appellant
28724_1.
Court of Appeals for the First Circuit.
Jul 14, 1964.
335 F.2d 141
Eugene M. Parter, New York City, (Joseph Levine and Emil Weitzner, New York City, on the brief), for respondent., Emanuel Becker, New York City (Mc-Lanahan, Merritt & Ingraham, New York City, on the brief), for appellant.
Moore, Smith, Kaufman.
Cited by 52 opinions  |  Published
J. JOSEPH SMITH, Circuit Judge.

The defendant appeals from a judgment of $25,055.79 entered against it in the United States District Court for the Southern District of New York, Irving Ben Cooper, District Judge, in a suit brought by the receiver of the First Discount Corporation to collect an indebtedness. The defendant concedes that it owed the $25,055.79 to the First Discount Corporation, but contends that (1) the District Court had no jurisdiction over the suit and (2) it should have-been permitted to retain the $25,055.79 in order to indemnify it against possible future liability from a pending suit. We hold that the Court had jurisdiction and correctly denied set-off, and affirm the judgment.

The respondent receiver was appointed in the United States District Court for the Southern District of New York on June 1, 1961 by Judge Herlands in an action brought by the Securities and Exchange Commission to enjoin the First Discount Corporation permanently from using the mails or other interstate facilities for the fraudulent sale of securities. Judge Herlands’ order directed the receiver to collect and take charge of “all the assets and property of, belonging to, or in the possession of * * * First Discount Corporation * * * and to hold the same subject to further order of this Court.” Pursuant to this order, the receiver brought this action to collect all the indebtedness owed by the defendants.

All the parties are residents of New York, and since there is no diversity, the District Court had jurisdiction to entertain the receiver’s suit only if it was ancillary to the SEC action. The defendant contends that a suit to collect a simple debt cannot be properly termed “ancillary” to the SEC action. We cannot agree. If the receiver’s suit is to aid in the accomplishment of the ends sought and directed in the SEC action, it is ancillary to the main action for jurisdictional purposes. Pope v. Louisville, New Albany & Chicago Ry. Co., 173 U.S. 573, 577, 19 S.Ct. 500, 43 L.Ed. 814 (1899). Unfortunately, the pleadings in the SEC suit were not made part of the record below, but it seems reasonably clear from the judgment granting the injunction and appointing the receiver that one of the aims of the SEC suit was to protect investors who had already been defrauded by the practices of the First Discount Corporation. If the assets of the First Discount Corporation are not promptly marshalled to provide a fund from which defrauded investors may be at least partially reimbursed, there is a[*143] strong possibility that these assets will be dissipated or wasted. A primary purpose of appointing a receiver is to conserve the existing estate. Defendant’s argument that there is a difference between conserving the estate and adding to it by collecting outstanding debts is specious. Outstanding debts are assets of the estate, and if not collected promptly, may become uncollectible.

The fallacy in the defendant’s argument stems from its failure to view the aim of the SEC action as anything more than the enjoining of possible future violations. But in bringing an action for an injunction and the appointment of a receiver, the SEC is also concerned with “the protection of those who already have been injured by a violator’s actions from further despoliation of their property or rights.” SEC v. H. S. Simmons & Co., 190 F.Supp. 432, 433 (S.D. N.Y.1961). In protecting the investing public which has been defrauded from further losses, the District Court has broad equitable powers to direct the receiver to marshal the assets of the First Discount Corporation. See SEC v. Keller Corp., 323 F.2d 397 (7 Cir. 1963); SEC v. Fiscal Fund, Inc., 48 F.Supp. 712 (D.C. Del.1943) ; Los Angeles Trust Deed and Mortgage Exchange v. SEC, 285 F.2d 162 (9 Cir. 1961). These powers were exercised by Judge Herlands, and this suit by the receiver must be considered ancillary to the main action. We hold that the District Court had jurisdiction over the suit.

This is not to say. that we approve the use of an equity receivership to perform the functions of the bankruptcy court. The record plainly indicates that the First Discount Corporation is hopelessly insolvent and is in the process (almost completed) of liquidation. We see no reason why violation of the Securities Act should result in the liquidation of an insolvent corporation via an equity receivership instead of the normal bankruptcy procedures, which are much better designed to protect the rights of interested parties. See Los Angeles Trust Deed & Mortgage Exchange v. SEC, supra, 285 F. 2d at 182; New England Coal & Coke Co. v. Rutland Ry. Co., 143 F.2d 179 (2 Cir. 1944). Were it not for this court’s decision in Manhattan Rubber Mfg. Co. v. Lucey Mfg. Co., 5 F.2d 39 (2 Cir. 1925), from which we are reluctant to depart without full briefing, though it may possibly be distinguishable, we should feel compelled on our own motion to direct the District Court to order the filing of a bankruptcy petition. However, the receivership has progressed almost to completion without objection and it would apparently not be in the interests of the parties to direct that further proceedings be diverted into bankruptcy channels.

Defendant next contends that it should be permitted to retain the $25,055.79 in order to be indemnified if it is held liable to one Zimmerman in a suit now pending before the Supreme Court of New York. Zimmerman seeks to recover $11,686.12 in damages resulting from defendant’s alleged conversion of 400' shares of Thiakol Chemical stock. Defendant claims that if it is held liable to Zimmerman, it was acting as First Discount Corporation’s agent when it received the allegedly converted securities, and equity would allow a set-off because the First Discount Corporation is insolvent.

We see no merit in this contention. Even if we assume that the defendant is entitled to indemnity, the defendant has not yet incurred any liability and may never incur liability. The amount of possible liability is also uncertain. Though here it is well established that First Discount Corporation is insolvent, and where a plaintiff is insolvent, equity may permit a defendant to set off an unmatured claim to prevent injustice, American Surety Co. of N. Y. v. City of Akron, 95 F.2d 966, 970 (6 Cir. 1938), equity will not permit the set-off of a possible but unestablished and unliquidated liability such as the defendant’s. Dunn v. Uvalde Asphalt Paving Co., 175 N.Y. 214, 218, 67 N.E. 439 (1903). Moreover, the nature of the allegations in the Zimmerman action in[*144] dicate that if the defendant is held liable for converting securities, there is no reason equity should prefer the defendant over the defrauded creditors who will be benefited by the recovery of the entire $25,055.79.

The defendant’s last ditch contention that the District Court abused its discretion in awarding interest on the judgment is patently without merit.

The j'udgment is affirmed.