the Court may order them to be delivered into the custody of the petitioner until such age. Applications under this Act may be made to the Master of the Rolls, or to any of the Vice-Chancellors.1 Orders made under the Act may be enforced by the usual process of contempt. A mother who has been guilty of adultery cannot apply. The mother has no strict right in cases of this kind, but the Court exercises its discretion upon the whole case as presented, it hearing the affidavits on both sides. The Act does not, however, enable the mother to resist the strict the husband to the custody of the children in cases where he is entitled to it.4 legal right of A RECEIVER is an indifferent person between the parties, appointed by the Court to receive the rents, issues, and profits of lands or other thing, in question in this Court, pending the suit, where it does not seem reasonable to the Court that either party should do it, or where a party is incompetent to do so, as in the case of an infant. He is to account for such receipt when the Court shall require him, and, to secure his doing so, he is commonly ordered to enter into a recognizance, with sureties.* The appointment of a Receiver is a matter resting in the discretion of the Court, and the Receiver, when appointed, is treated 1 In re Taylor, 10 Sim. 271. 2 Sect. 4. See also Warde v. Warde, 2 Ph. 786; Re Fynn, 2 De G. & Sm. 457; Norman v. Roberts, 3 De G. & Sm. 714; Re Tomlinson, 3 De G. & Sm. 371. Costellis v. Costellis, Dr. & W. 235. Edwards, Receivers, 2; H. K. Chase's Case, 1 Bland, 213. Prac. Reg. 355, 356; 2 Harr. (ed. Newl.) 499. Skip v. Harwood, 3 Atk. 564; Nichols v. Perry Patent Arm Co., 3 Stockt. (N. J.) 126; Oakley v. Patterson Bank, 1 Green Ch. 173; Rawnsley v. Trenton Mut. Ins. Co., 1 Stockt. (N. J.) 347; Lottimer v. Lord, 4 E. D. Smith (N. Y.) 183. See Verplank v. Caines, 1 John. Ch. 57. In Orphan Asylum v. M'Cartee, 1 Hopk 435, the Court remark, "It is said, that the appointing of a receiver rests in dis as virtually an officer and representative of the Court, and subject to its orders.1 The most ordinary cases in which Receivers are granted by the Court, are those in which the suit arises out of claims by parties having equitable interests in the subject; in such cases the Court will appoint a Receiver, for the purpose of protecting the property till the question between the parties shall have been determined.2 And, in general, it may be taken as a rule, that where the legal estate is vested in an individual claiming an interest paramount to that of the litigant parties, so that the litigant parties can only have an equitable interest, the Court will grant a Receiver, although, in doing so, it will always take care not to interfere with the rights of the party having the prior estate: therefore where a man has an equitable mortgage, "that is, if there is a prior mortgagee, then, if the prior mortgagee is not in possession, the other may have a Receiver, without prejudice to his taking possession." 3 In Berney v. Sewell, Lord Eldon says, "I remember a case, where it was much discussed, whether the Court would appoint a Recretion. This proposition does not teach much. A receiver is proper if the fund is in danger; and this principle reconciles the cases found in the books. There is no case in which the Court appoints a receiver, merely because the measure can do no harm." See Parkhurst v. Kinsman, 2 Blatch. C. C. 78. As a general thing, under the law in New Jersey, where a corporation is legally declared insolvent, receivers will be appointed. Nichols v. Perry Patent Arm Co., 3 Stockt. (N. J.) 126. 1 Angel v. Smith, 9 Ves. 338; Hutchinson v. Massarene, 2 B. & B. 55; Jeremy on Eq. Jur. 248, 249; Tillinghast v. Champlin, 4 Rhode Is. 173; Lottimer v. Lord, 4 E. D. Smith (N. Y.) 183; In re Colvin, 3 Maryland Ch. Decis. 278. See Williamson v. Wilson, 1 Bland, 421; Field v. Jones, 11 Georgia, 413. He is at all times entitled to, and must receive, the advice and protection of the Court. Cammack v. Johnson, 1 Green Ch. 173. See Matter of Receivers of the Globe Ins. Co., 6 Paige, 102; Hooper v. Winston, 24 Ill. 353. The appointment of a receiver alters no right, not even so as to prevent the running of the statute of limitations. Williamson v. Wilson, 1 Bland, 421. But though the appointment of a receiver does not involve a decision upon any right, still it can only be made at the instance of a party who has an acknowledged interest or a strong presumption of title, in himself alone, or in common with others; and where the property itself, or its rents and profits, are in danger of being materially injured, or totally lost. H. K. Chase's Case, 1 Bland, 213; Williamson v. Wilson, ib. 421. To authorize the appointment of a receiver in a suit in Chancery, the bill must lay a foundation for it, by stating the facts which show its necessity or propriety. Tomlinson v. Ward, 2 Conn. 396. ceiver, where it appeared by the bill, that there was a prior mortgagee who was not in possession: I have a note of that case: there Lord Thurlow made the appointment, without prejudice to the first mortgagee taking possession, and that was afterwards followed by Lord Kenyon."1 3 The same principle is applied to other equitable creditors, and indeed to all other persons having mere equitable estates. The rule, with respect to equitable creditors, is thus laid down by Lord Eldon, in Davis v. The Duke of Marlborough ; "The rule, I take to be, that the Court will, on motion, appoint a Receiver for an equitable creditor, or a person having an equitable estate, without prejudice to persons who have prior legal estates;-in this sense, without prejudice to persons having prior legal estates, that it will not prevent their proceeding to obtain possession, if they think proper; and with regard to persons having prior equitable estates, the Court takes care, in appointing a Receiver, not to disturb prior equities; and, for that purpose, directs inquiries, to determine priorities among equitable incumbrancers, permitting legal creditors to act as against the estates at Law, and settling the priorities of equitable incumbrancers. Provided it is satisfied, in that stage of the cause, that the relief prayed by the bill will be given when the decree is pronounced, the Court will not expose parties claiming that relief to the danger of losing the rents, by 4 1 See Cortleyeu v. Hathaway, 3 Stockt. (N. J.) 42, 43. In this case it was held, that the rights of a first and subsequent mortgagee are different. The first mortgagee has a legal right to the rents and profits, and has his remedy at law by ejectment. A subsequent mortgagee is better entitled to the remedy of a receiver, because he has no right to the possession at law as against his prior mort gagee, and if the first mortgagee refuses to exercise his legal rights, there seems a propriety in an interposition of a Court of Chancery. The rule in New York, that where premises are an inadequate security, and the mortgagor is insolvent, a receiver will be appointed, has not been adopted by the Court of Chancery in New Jersey, no distinction being made between a first and a subsequent mortgagee, whose rights are entirely different. Cortleyen Hathaway, supra. See Warner v. Gouverneur, 1 Barb. Sup. Ct. 38; Bank of Ogdensburg v. Arnold, 5 Paige, 39; Shotwell v. Smith, 3 Edw. Ch. 588; Ses Ins. Co. v. Stebbins, 8 Paige, 566. 2 See Curling v. Marquis Townshend, 19 Ves. 628. 32 Swanst. 108, 137. See Dalmer v. Dashwood, 2 Cox, 382, but they must first obtain leave of the Court, Bryan v. Cormick, 1 Cox, 422; Anon., 6 Ves. 287; Angel v. Smith, 9 Ves 335; Brooks v. Greathed, 1 J. & W. 176; Gresley v. Adderley, 1 Swanst. 579, and see post. Cortleyeu v. Hathaway, 3 Stockt. (N. J.) 41. not appointing a Receiver of an estate, on which it is admitted that they cannot enter." And here it may be remarked, that although, where there is a prior mortgagee in existence having the legal estate, the Court will not, by the appointment of a Receiver, deprive him of his right to possession, the Court will not permit him to object to the appointment of a Receiver by any act short of a personal assertion of his legal right, and taking possession himself. And if, after a Receiver has been appointed, he does not think proper to avail himself of his legal right, (which he may do by applying to be examined pro interesse suo,) he will not be permitted to have the benefit of the Receiver,3-the appointment of a Receiver being for the benefit of incumbrancers, so far, only, as expressed to be for their benefit, and as they choose to avail themselves of it.4 It may be mentioned here, that the Court will grant a Receiver at the instance of a second incumbrancer, in all cases in which the first incumbrancer is not in possession of the property, and that the circumstance of the party creating the incumbrance being abroad, and refusing to appear to the suit, will not deprive the mortgagee of his right to possession.5 In Holmes v. Bell, however, Lord Langdale, M. R., appears to have entertained some doubt as to his power to appoint a Receiver, where one of two mortgagees, who were tenants in common, was abroad, at least so far as regarded the moiety of the absent party, although he thought the objection removed by the circumstance of the mortgagee, who was in England, being in the possession of the whole estate. 1 The granting, however, of a receiver is a matter of discretion to be governed by the whole circumstances of the case, one of such circumstances being the probability of the plaintiff being ultimately entitled to a decree. Owen v. Heman, 3 Mac. & Gor. 378. Where, upon the application of a subsequent mortgagee, a receiver is appointed, it is without prejudice to any prior mortgagee or other incumbrancer, and the receiver will be directed to keep down the interest upon prior incumbrances. Cortleyeu v. Hathaway, 3 Stockt. (N. J.) 39. In this case the grounds are stated on which a receiver may be appointed on the application of a junior incumbrancer. Silver v. The Bishop of Norwich, 3 Swanst. 112, n., 115. See Anon., 6 Ves. 287; Angel v. Smith, 9 Ves. 336; Brooks v. Greathed, 1 J. & W. 178; Hunt v. Priest, 2 Dick. 540. Gresley v. Adderley, 1 Swanst. 579. Tanfield v. Irvine, 2 Russ. 149; also see and quære Coward v. Chadwick, ib. p. 150, n. 6 It may be mentioned, that a Receiver has been granted against a defendant who was out of the jurisdiction of the Court. And a Receiver has also been appointed upon affidavit that the defendant had absconded to avoid service.2 But although the Court will, in general, grant a Receiver, at the instance of a party having an equitable estate, when the individual having a prior legal estate is not in possession, it will not, unless under very particular circumstances, appoint one where the party having the legal estate is in actual possession of the property. Thus, although a second mortgagee may have a Receiver, where the first is not in possession, yet if the first mortgagee is in actual possession of the estate, a Receiver will not be appointed, unless indeed it is shown that the first mortgagee has been paid off, in which case a Receiver may be appointed on the application of a subsequent incumbrancer.* It is to be understood, that, in order to defeat an equitable mortgagee of his right to a Receiver, the possession of the party must be such a possession as invests him with a title to receive the rents and profits; a mere possession as tenant will not be sufficient. Moreover, as between mortgagees in possession and persons having subsequent interests, the Court will not appoint a Receiver against a mortgagee's own oath that something is due to him," 1 Gibbins v. Mainwaring, 9 Sim. 77; Smith v. Smith, 10 Hare, App. 71. 2 Pitcher v. Hellier, 2 Dick. 580; Maquire v. Allen, 1 B. & B. 75. * It seems that this rule will not apply where the party in possession is merely so upon execution, under a judgment, and that, in such cases, a creditor, having taken out an execution, cannot hold property against an estate created prior to his debt; see 3 Swanst. 117. Upon this principle Lord Eldon made an order for the appointment of a receiver of the rents and profits of a rectory, at the instance of a second incumbrancer, although a third incumbrancer was in possession under a sequestration from the bishop, which, in contemplation of the Court, is equal te a judgment. White v. Bishop of Peterborough, 3 Swanst. 109. As between equitable creditors and judgment creditors having possession under writs of elegit, it is competent to the Court to appoint a receiver in favor of the equitable creditors, not disturbing the just rights of any of the judgment creditors in possession. Davis v. Duke of Marlborough, 1 Swanst. 74. See Quarrell v. Beckford, 13 Ves. 377; Codrington v. Parker, 16 Ves. 469; Berney v. Sewell, 1 J. & W. 647; Lancashire v. Lancashire, 2 Beav. 120; Hiles v. Moore, 15 Beav. 175. 5 Archdeacon v. Bowes, 3 Anst. 752. See Sea Ins. Co. v. Stebbins, 8 Paige, 565; Bank of Ogdensburg v. Arnold, 5 Paige, 38; Frelinghuysen r. Colden, 4 Paige, 204. Rowe v. Wood, 2 J. & W. 553. See Bank of Ogdensburg v. Arnold, 5 Paige, 38; Frelinghuysen v. Colden, 4 Paige, 204; Sea Ins. Co. v. Stebbins, 8 Paige, |