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THE WHARF CASE.
wharfage at those wharves held separate to be accounted for and
paid over as should be ultimately determined by the court who is
entitled to the wharfage. But, if this point is to be decided, it
must be after a decision at law upon the right; and it does not
appear that any action has been, or is intended to be brought for
the purpose of trying the right; and the title of the plaintiffs does
not appear sufficiently clear and strong. The bill in this case was
altered; and an order passed appointing the collector of the city
of Baltimore as receiver, with power to pay over to The Mayor,
&c. and to keep an account, &c.
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After which the plaintiff McElderry died, and another suit was
instituted in this court by the plaintiff Dugan and the heirs of
McElderry against these defendants; and the cases having been
brought on to be heard, it was agreed, on the 29th of April, 1831,
that in the place of the copy, which had been shortly before re-
ceived, a new bill should be filed, as an original bill, in lieu of the
first one; and that the answer to the first bill should be filed and
considered as an answer thereto.
In this new bill, filed on the 11th of May, 1837, it is stated,
that by the act of 1784, ch. 62, all that parcel of ground in Balti-
more, now commonly called Market space, extending from Balti-
more street south, parallel with Gay street, of the width of one
hundred and fifty feet to Water street, with the privilege of ex-
tending the same to the channel, became Tested in the then com-
missioners of Baltimore town, to hold for the purpose of erecting
a market-house thereon; and for the use of the then town, in like
manner as if they had been constituted a body politic; that in the
year 1794, the common tide flowed within this space up to and
over Water street; that this plaintiff Dugan being seised in fee
simple of the ground on the west side of Market space, extending
from the north side of Pratt street to the water; and the plaintiff
McElderry being seised in fee simple of the ground on the east
side of Market space, extending from the north side of Pratt street
to the water, they, on the 10th of February, 1794, made the fol-
lowing proposition to the then commissioners of Baltimore town,
'We, the subscribers, request your permission for making a
canal and wharf at our expense, in the Market space from the
south side of Pratt street to the channel or port-warden's line;
the canal to be eighty feet wide, and the streets on each side the
same to be thirty-five feet wide; the said canal, wharf, and streets
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