494 HIGH COURT OF CHANCERY.

points a receiver merely because the measure can do no harm."
"This principle reconciles the cases found in the books."

The bill in this case alleges a variety of facts, which do show
the fund to be in danger, and if proved to be true, or admitted,
would be sufficient to overcome the reluctance of the court to
interpose against the legal title, and take the possession of the
property under its care, as a measure of safety. It alleges, that
the defendants, the Diffenderfers, are insolvent, and wasting and
misapplying the property from which the creditors could only
expect to be paid; and there would seem to be no doubt of the
power, and the duty of the court to interpose in such a case,
even against the opposition of the mortgagees, Cariss and Ca-
tharine R. Diffenderfer; for though in the case of a prior mort-
gagee, having the legal title, the court will not, by the appoint-
ment ,of a receiver, deprive him of his right of possession, it
will not permit him to object to such appointment by any act
short of a personal assertion of his legal right, and taking pos-
session himself. Silan vs. The Bishop of JVorwich, 3 /Swans.,
112—115.

And as the defendants, the mortgagees in this case, do not
propose exerting their legal rights by taking possession; but,
on the contrary, express their willingness and consent that the
mortgagors shall continue in possession of the property, and
employ and dispose thereof in their business, it follows that the
mere existence of the mortgages executed for their security,
would not induce the court to forbear from appointing a receiv-
er, if, independently of such mortgages, it would be proper to
do so.

The question, therefore, is, have the complainants made out
by clear proofs, or admissions, such a case as, according to the
established principles regulating this branch of the jurisdiction
of this court, entitles them to its interposition in their behalf,
by appointing a receiver^?

It is conceded that the power is a delicate one, and to be ex-
ercised with prudence and circumspection; and there can be no
doubt that in the case of a commercial firm actually engaged
in trade, the power of the court, as invoked upon the present