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THE CAPE SABLE COMPANY'S CASE. 617
holder of the estate, In those cases, as insisted on by the defen-
dant's counsel in this case, the injunctions were obtained by him
and general relief; and for an injunction to stay all further proceedings on the said
judgment and execution, and also commanding the said Mullikin and Gwynn not to
receive the amount of the said judgment until the further order of the court.
To this bill was subjoined an affidavit, made by the plaintiff before a justice of
the peace, of the truth of the facts therein set forth in the usual form. Upon which
the bill was submitted to the Chancellor.
2d April, 1824. —JOHNSON, Chancellor. —Benjamin H. Mullikin having endorsed
the notes of George Howard, as well as notes of Howard and Beatty, his deceased
partner, to a considerable amount, to indemnify him, on the 25th of September, 1817,
Howard gave Mullikin a mortgage on a tract of land called Joseph's Gift, the con-
veyance to be avoided on the notes, he had or should endorse, being taken up by
Howard, or on his paying to Mullikin whatever sum he might have to pay, in con-
sequence of his indemnity. The notes were not returned by the principal debtors,
and Mullikin had to pay a very considerable sum of money.
William Wilkins & Co. became the endorsers of the notes of Mullikin to a large
amount; to indemnify them, Mullikin conveyed the property, the title to which he
had acquired by the mortgage from Howard, subject to be defeated on Mullikin's
notes, that were or should be endorsed by Wilkins & Co., being taken up by Mulli-
kin, or on his paying to Wilkins & Co. the amount they should have paid in con-
sequence of their endorsements. The sum of nine thousand dollars appears to have
been paid by them, thereby making them the creditors of Mullikin to that extent,
the payment whereof was secured by the conveyance to them of the mortgage from
Howard to Mullikin.
Some time after these transfers, and long after they had been duly recorded, Mul-
likin obtained a judgment, in Anne Arundel County Court, against Howard for
f 21, 786. The judgment was entered on the 28th of October, 1823. Previous to
the rendition 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 dis-
charge. On the 16th of April, 1823, Wilkins & Co., in consideration of f 10, 000,
conveyed all their interest in the mortgaged premises to Thomas Cross, the com-
plainant, which conveyance was recorded on the 21st of the same month. Subse-
quently to the rendition of the judgment, it was entered on the docket of the court
in which it was obtained, for the use of William Gwynn of John, one of the
defendants.
George Howard, by deeds executed and recorded, has conveyed to the complais-
ant the personal 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 injunction to prevent 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? 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 Mullikin », Howard, that the claim by Mullikin 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 judgment at law remained in Mullikin, no
matter to whom he transferred the mortgaged premises. No doubt, if I may fee per-
mitted to express a legal opinion, in this, the court was perfectly correct; otherwise,
78 v. 3
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