598 CAPE SABLE COMPANY'S CASE.—3 BLAND.

fendant's counsel in this case, the injunctions ivere obtained by
him who was no partj to the suits at law, and onh T\ent to pro
tect particular propertj liom the executions.

called Joseph's Gift, the conveyance to be avoided on the notes, he had or
should endorse, being taken up by Howard, or on his paying to Mullikm
whatever sum he might have to pay, in consequence of his indemnity The
notes were not returned by the principal debtors, and Mullikm had to pay a
very considerable sum of money

William Wilkins & Co became the endorsers of the notes of Mullikm to
a large amount to indemnify them, Mullikm conveyed the property, the
title to which he had acquired by the mortgage from Howard, subject to be
defeated on Mullikm's notes, that wrie or should be endorsed by Wilkins
& Co being taken up bv Mulhkin or on his paying to Wilkins & Co the
amount they should have paid in consequence of their endorsements The
sum of nine thousand dollais appears to have been paid by them, thereby
making them the creditors of Mullikm to that extent, the payment whereof
was secured by the conveyane to them of the mortgage from Howard to
Mullikm

Some time after these transfers, and long after they had been duly re-
corded Mulhkin obtained a judgment, in Anne Arundel County Corit,
against Howard for $31 786 The judgment was entered on the 28th of
October, 1823 Previous to the lendition of the judgment, Howard obtained
the benefit of the insolvent laws of this State, and the judgment appears to
be subject to the legal effect of the discharge On the 16th of April, 1833,
Wilkins &. Co , in consideration of $10 000 conveyed all their interest in the
mortgaged premises to Thomas Cioss the complainant, which conveyance
was recoided on the 21st of the same mouth Subsequently lo the rendition
of the -judgment, it was enteied on the docket of the Court in -which it was
obtained, for the use of William G-wynn of John, one of the defendants

George Howard, by deeds executed and recorded, has com eyed to the
complainant the peisonal property Howard acquired since his discharge
under the insolvent law Subsequently to all the transfers a fieri facias
issued on the judgment, which has been laid on the mortgaged premises, as
well as on the personal property and an application is made for an injunc-
tion to present the sale of the sheriff No bond is filed for the prosecution
of the injunction

The first question which presents itself, is has the complainant presented
an equitable foundation for the interposition of this Court J Second if he
has, can it be obtained without an injunction bond )

It appears by an exception taken to the opinion of the Court on the trial
of the cause of Mulikini v Howard, that the claim by Mullikm on Howard
was not merged by the mortgage given by the latter to the former, but
existed independent of the mortgage, and the right to recover by a judg-
ment at law remained in Mullikin, no matter to whom he transferred the
mortgaged premises No doubt, if I may be permitted to express a legal
opinion, in this, the Court was perfectly correct otherwise, in the event of
that propertv proving deficient no redress could be had to recover the defi-
ciency if Howaid was ever able to meet it To say the mortgage merged
the claim at law would, in effect, be determining the mortgage itself a
nullity for when it was given no claim existed, the object of the deed was
to secure the payment to Mullikin of whatever sum he might pay, not that
he had paid it was entirely prospective But although the legal right re-
mained in Mullikm to obtain a judgment for the money paid by him, it will