his own use, in exclusion of the other incumbrancers, he was directed to account, and a receiver was appointed: Dumville v. Ashbrooke, cited in Drury v. Barnes, ubi supra.

Where a trustee mixes the trust funds with his own

moneys.

Chancellor Jones, in The Orphan Asylum Society v. M'Cartee, Hopk. 429, decided that a trustee's mixing the trust funds with his own was not sufficient for the appointment of a receiver, where it was not alleged that the fund was in danger, nor denied that the trustee kept accounts. "Many "trustees," said the chancellor, "and many public "agents, keep their moneys in no other manner; 'they mix the trust funds with their own funds in "bank or in coffers; and it is not deemed a breach "of duty."

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Where a party has delayed applying for a Receiver.

A complainant will not be allowed a receiver where he has been guilty of delay or has omitted a proper opportunity of advancing his cause.

Thus, in Young v. Graham, 1 Hogan, 118, the defendant opposed the motion for a receiver on the ground of the plaintiff's having neglected to make the application when the answer came in; so much time had since elapsed that the cause might now have been in the list for hearing, if due diligence

had been used. The Master of the rolls, M'Mahon, said, "It is a fixed rule of practice that a plaintiff "who has allowed an issuable term and vacation (in "which issue might be joined and witnesses exam"ined) to elapse, after an answer has been filed, will "not be afterwards allowed to move for a receiver "on the admissions in the answer. This application "is never complied with, if the plaintiff has been "guilty of delay or has omitted a proper oppor"tunity of advancing his cause. I shall, therefore, "refuse the application, without entering into the "merits of the case as they may appear on the "pleadings."

And in Kirwan v. Kirwan, 1 Donnelly's Minutes of Cases, 71, a receiver was refused on the ground of delay. The party applying had rights in 1831, but did not file his bill until 1834.

Will contesting in a surrogate's court.

There are English cases that show how a court of equity will interfere in preserving a testator's property, while his will is litigating, by the appointment of a receiver: Montgomery v. Clark, 2 Atk. 378; King v. King, 6 Ves. 172; Atkinson v. Henshaw, 2 Ves. & B. 85, and note there of Walker v. Walker; also, Ball v. Oliver, 2 Ves. & B. 95; and, particularly, Watkins v. Brent, 7 Sim. 512; S. C. on appeal, 1 Mylne & Craig, 97; Marr v. Littlewood, 2 ib. 454.

And there are also cases in England, where such an officer has not been appointed, because the eccle

siastical court could grant an administration pendente lite: Richards v. Chave, 12 Ves. 462; Knight v. Duplessis, 1 Ves. sen. 324; and see Jones v. Frost, 3 Mad. C. R. 1; and Dew v. Clarke, 2 Sim. & S. 108. And, in the State of New York, a surrogate, in case of a contest relative to the proof of a will or relative to granting letters testamentary or of administration with the will annexed or of administration in case of intestacy or when, by reason of absence from the State of any executor named in a will or for any other cause, a delay is necessarily produced in granting such letters, may, in his discretion, issue special letters of administration, authorizing the preservation and collection of the goods, chattels, personal estate and debts of the deceased, and to secure the same at such reasonable expense as the surrogate shall allow; and for those purposes he may maintain suits as administrator, &c, &c.: Laws of 1837, p. 524, § 23, 24; (a) and see also, 2 R. S. 62, § 33.

Thus the court of chancery may well be saved the trouble of appointing a receiver of the personal effects of a testator; (b) while, the jealousy of the court in taking away the legal estate in lands from

(a) Query. How far does the above power of the surrogate to appoint a collector, embrace the case of a recall of probate or letters? In Rutherford v. Douglas, note (a), 1 S. & S. 111, a receiver was appointed, pending a suit in an ecclesiastical court, to recall probate. And see Watkins v. Brent, 7 Sim. 512; S. C. on appeal, 1 Mylne & Craig, 96; Marr v. Littlewood. 2 ib. 454.

(b) Indeed, the court of chancery has no original jurisdiction to try the validity of a will of personal property: Colton v. Ross, 2 Paige's C. R. 396.

an heir, devisee, &c., makes a receiver seldom wanted where a will of real estate is in controversy. As to the subject of appointing a receiver over the legal estate, see the first part of this chapter.

In Maryland, the court of chancery has authority to protect the property of an intestate or testator, by appointing a receiver, pending a litigation in the orphans' court for probate or administration; and in such case the court proceeds upon the ground that the property is in danger, because it may get into the hands of those who have no interest in it, and it will not forbear to exercise its power to appoint a receiver, because the orphans' court may provide for the collection of the effects of the deceased by granting letters pendente lite: In re Colvin, 3 Md. Ch. Decis, 278.

Demurrers to a bill, praying a receiver on account of a litigation pending in the ecclesiastical court, were overruled, notwithstanding the receiver was asked generally, and not pending the litigation in the ecclesiastical court; and notwithstanding that the bill also was framed for and asked a declaration of rights, administration and partition, and although such further relief could not be granted until the litigation in the ecclesiastical court was determined, and parties added accordingly: Major v. Major, 8 Jur. 797.

The existence of a suit to recall probate in which the probate was ordered into court is not of itself a sufficient ground for appointing a receiver: Newton v. Ricketts, 10 Beavan, Rep. 525.

Mortgagee in possession.

A receiver of chattel property held by a mortgagee in possession will not be appointed except in cases of necessity; for, possession after forfeiture, constitutes the essential element of a chattel mortgage. It is the precise thing contracted for, the security on the faith of which the creditor usually makes his loan and without which he would have retained his funds in his own hands. To deprive him of it, without just cause, is to impair the obligations of a valid contract, a proceeding beyond the constitutional power of the court, as well as of the Legislature: Patten v. The Accessory Transit Company, 4 Abbott's Prac. Rep. 235 (reversing S. C. p. 139, ibid.)

Where any thing is due to a mortagee in possession, he will not be deprived of such possession by any appointment of a receiver.

In Quarrell v. Beckford, 13 Ves. 377, the court said, "that if the mortagee, though he cannot state, "with any great precision, what sum is due to him,

can say upon his oath, he believes a sum of money "is due and his mortgage is not satisfied, the court "will not take the possession from him, even for the 'purpose of placing it in the hands of the court." However, if a mortgagee in possession declines saying whether there be any thing due to him, a receiver can be appointed. This may (although it was a case for a consignee) be gathered from Quarrell v. Beckford; and especially from Codrington v. Parker, 16 Ves. 469.