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126 SALMON v. CLAGETT.
On discovering, at the hearing, that a party had failed to take some material testi-
mony, the case was, on affidavit, continued, and a commission issued to take the
evidence. A person who acquires personal assets by being party to a breach of
trust, or devastavit by the executor or administrator, may be held liable.
A deed or mortgage given to secure the payment of money cannot be objected to by
a party, because of its not having been recorded. What acts of the creditor will
discharge a surety. If all the creditors remedies be expressly reserved, the
surety will not be discharged by any act of the creditor. Where a mortgage
debt is payable by instalments, the mortgage may be foreclosed when the first
instalment becomes due. An injunction granted to protect mortgaged property
before the mortgage debt became due.
THIS bill was filed on the 14th day of July, 1828, by Charles
Salmon against Elizabeth Clagett j Edmund Clagett, Samuel A.
Clagett, John W. Clagett, Thomas Clagett, and Richard H. Clagett.
It is stated and appears, that some time in or before the year 1816,
William Clagett died intestate, leaving a considerable real and
personal estate, and the defendant Elizabeth his widow, and the
other defendants his children. Soon after the death of the late
William, his widow, having been appointed his administratrix,
took possession of his personal estate, returned an inventory
thereof, and settled accounts with the Orphans Court, shewing a
surplus to the amount of $2,753 13; and although a distribution
had been ordered by the Orphans Court, yet she had not actually
delivered the property or paid any money accordingly to either of
the representatives of her intestate; but together with the defen-
dant Edmund Clagett, retained the possession of all the deceased's
real and personal estate, using and employing it for the common
benefit of themselves, and his other legal representatives. That
in the summer of 1827, the defendant Thomas Clagett, com-
menced business as a merchant in the city of Baltimore; and to
enable him the more advantageously to carry on his trade, the
plaintiff Charles Salmon, was induced to lend his credit to him
upon receiving, as a security against loss, a mortgage from the
defendant Thomas Clagett, and the other defendants, who are
his mother and brothers, the material parts of which deed are
expressed in these words:
This Indenture, made this 22d of September, 1827, between
Elizabeth Clagett, Edmund Clagett, Samuel A, Clagett, Richard
H. Clagett, John W. Clagett, and Thomas Clagett, of the one
part, and Charles Salmon of the other part, ' Whereas, the said
Thomas Clagett, one of the parties of the first part of this deed,
hath lately commenced and intends pursuing the business of a
merchant in the city of Baltimore; and whereas, the said Charles
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