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168 SALMON v. CLAGETT.
Ordered, that a commission as prayed; that the testimony
token under the same be subject to all legal exceptions, and be
returned on or before the fourth day of the next term; at which
term ibis case is to stand for hearing. But nothing herein shall be
so construed as to preclude the defendants from asking a continu-
ance of the ease if deemed necessary to take further testimony on
their part. ______________
Under this order a commission was issued and testimony taken
and returned accordingly.
30th December, 1830.—BLAND, Chancellor.—This case stand-
ing ready for hearing, and the solicitors of the parties having been
fully heard the proceedings were read and considered.
The proofs substantially sustain the allegations of the bill, and
leaving none of the facts of doubtful credibility, there is nothing to
be determined but the principles of equity properly arising out of
those established facts.
The defendants contend that the mortgage is void upon its face,
to the extent of the personalty at least, as having been made by
one who is incompetent so to dispose of it; and also, that it is a
nullity as against one of the grantors who was an infant when he
signed it; and against all of them; because it has not the requi-
site solemnity of such a contract, that of having been recorded in
time; and further, that there is an implied contract, attendant
upon this mortgage, which imposes obligations upon Salmon, in
favour of the sureties of Thomas Clagett, which Salmon has, in
various ways, so disregarded as to have released those sureties
from the incumbrance of the mortgage.
In answer to which it is denied, that any act of Salmons as
here shewn, can be considered as having that operation; and
moreover it is urged, that all the obligations of the implied con-
tract have been carefully and effectually preserved for the benefit of
those sureties, so that they can have no ground to complain of
Salmons acts whatever they may have been.
Then passing from the subject of the suit, to the suit itself, it is
objected, that the plaintiff can have no relief in this case; because
the suit has been instituted too soon; and because to perpetuate
the injunction merely, would be to lay the defendants subject to
the caprice of the plaintiff without leaving them any means of
extricating themselves. These are the matters to be considered.
In taking the position, that the mortgage is absolutely void,
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