money the commission may use, it is appar- [counties, and sublet the highway work to plain- [Ed. Note.-For other cases, see Counties, Appeal from Circuit Court No. 2 of Baltimore City; James M. Ambler, Judge. Action by Thomas S. Holt and another, trading as the Holt Construction Company, against the State Roads Commission and others. From an order sustaining demurrers of the Title Guaranty & Surety Company and others, and dismissing the bill, plaintiffs appeal. Affirmed. Argued before BOYD, C. J., and BRISCOE, BURKE, THOMAS, URNER, STOCKBRIDGE, and CONSTABLE, JJ. Frank Gosnell, of Baltimore (Hazelton A. Joyce, Jr., of Cambridge, and Marbury, Gosnell & Williams, of Baltimore, on the brief), for appellants. Julian W. Ridgely and Aubrey Pearre, Jr., both of Baltimore (Barton, Wilmer & Stewart and Harley & Wheltle, all of Baltimore, on the brief), for appellees. BURKE, J. Thomas S. Holt and Clayton S. Kauffman, copartners trading under the name of the Holt Construction Company, 1. CORPORATIONS (§_544*)—INSOLVENCY-AD- | filed their bill of complaint in circuit court MINISTRATION OF ESTATE-TRUST FUND. No. 2 of Baltimore city against the appellees on this record. When a corporation becomes insolvent, it is so far civilly dead that its property may be administered in equity as a trust fund for the benefit of its stockholders and creditors, of whatever state they may be residents. [Ed. Note.-For other cases, see Corporations, Cent. Dig. §§ 2162-2169; Dec. Dig. § 544.*1 2. COUNTIES (§ 129*)-IMPROVEMENTS-HIGHBRIDGES SUBCONTRACTORS-Sure WAYS Where a bridge company contracted to construct a bridge and certain highways for two counties, and executed a bond conditioned that if the bridge company should comply with the contract and should indemnify and save harmless the commissioners of the contracting counties and the state against all costs, expenses, damages, or loss to which the commissioners and state might be subjected by reason of any wrongdoing, misconduct, want of skill or care, negligence, or default on the part of the bridge company, its agents or employés in and about the execution and performance of the contract in the matter of constructing the highway, then the obligation should be void, otherwise to remain in full force and virtue, the surety was not liable for the bridge company's failure to perform its contract, by which it sublet the construction of the highways to a subcontractor, due to the bridge company's subsequent insolvency. [Ed. Note. For other cases, see Counties, Cent. Dig. § 197; Dec. Dig. § 129.*] 3. COUNTIES (§ 130*)-IMPROVEMENTS-BRIDGES AND HIGHWAYS-CONSTRUCTION - SUBCONTRACT-RIGHTS OF SUBCONTRACTOR. Where a bridge company contracted to construct a bridge and certain highways for two The material facts which need be stated are these: On or about the 15th of May, 1911, the York Bridge Company, a Pennsylvania corporation, entered into a contract with the county commissioners of Caroline county and the county commissioners of Talbot county for the furnishing of all material and labor for the construction and completion, according to plans and specifications on file in the office of each of said counties, of a bridge known as Dover Bridge, and also a section of highway for a distance of about .83 miles upon and along the Dover Bridge road in Caroline county. Under the contract of the York Bridge Company with the county commissioners of the two named counties, it was to be paid the following prices for the road construction: For borrow and fill, the price of 50 cents per cubic yard. For all class B oyster shell surfacing, 75 cents per square yard. For riprapping, $1.25 per square yard. The contract further provided that the contractor should give his personal attention to the performance of the contract, and should keep the same under his control. The subletting of portions of the work to be done under the contract might be done only upon the written consent of the county commissioners and approved by the engineer, and that the contractor should not, either legally | the construction of the section of highway or equitably, assign any of the moneys pay- mentioned along the Dover road. The porable under the contract, or his claim there- tions of that contract material to this case to, unless by and with the like consent of are: the county commissioners in writing. No liability should attach to the county commissioners or to the counties, under the terms of the contract, until the engineer had approved the work and certified in writing that the contractor had completed the work according to the requirements of the contract. It was further provided that the contractor should not be entitled to demand or receive payment for any portion of the work or material, except in the manner set forth in the contract and specifications, and until the engineer had given his certificate to that effect, whereupon said counties, by and through the county commissioners, will, within 30 days after such completion and delivery of said certificate, pay, or cause to be paid, the said contractor, in cash, the whole amount of money then due the said contractor, under the contract, excepting such sum or sums as may be lawfully retained under any of the provisions of the contract hereinbefore set forth. "Whereas, on the 15th day of May, A. D. 1911, the York Bridge Company entered into missioners of Caroline and Talbot counties, a contract in writing with the county comMaryland, for the furnishing of all material, etc., and to construct and complete, as per plans and specifications on file in the offices of the county commissioners of Caroline and Talbot counties, bridge known as Dover Bridge and section of state highway for a distance of about 0.83 miles upon and along Dover Bridge land, which contract is known in the business road, in Caroline and Talbot counties, Maryof the York Bridge Company as contract number eleven hundred and ninety-four (1194): Now, therefore, for and in consideration of the sum agrees to furnish all labor, tools, appliances hereinafter named, the construction company and every other thing necessary and pertinent to the construction of the said section of state highway upon and along Dover road. It is company is to assume all the obligations and understood and agreed that the construction to do everything necessary to the construction and completion of said road as called for by the plans and specifications which are on file in the offices of the county commissioners of Caroline and Talbot counties, and to be governed by the said plans and specifications the same as the York Bridge Company itself has agreed to be governed. For and in consideration of the work to be performed, the bridge company agrees to pay the construction company, upon approval and acceptance of said road by the county commissioners as follows: For borrow and fill, the price of fifty cents ($.50) per cubic yard. For all class B oyster shell surfacing, eighty cents ($.80) per square yard. For riprapping, the price of one dollar and twenty-five cents ($1.25) per square yard." It will be noted that the only change in the prices for the work was that the plaintiffs were to receive 80 cents for oyster shell surfacing instead of 75 cents, as provided in the contract of the bridge company with the county commissioners. The Title Guaranty & Surety Company, one of the appellees, became surety upon the bond of the York Bridge Company for the completion of the work according to the terms of the contract. This bond was given under the Acts of 1910, c. 217, § 39 (Code 1912, art. 91, § 72). The condition of the bond was that if the principal, the York Bridge Company, shall in all respects comply with the terms and conditions of said contract, and his obligations thereunder, including the specifications therein referred to and made part thereof and such alterations as may be made in said specifications as therein provided for, and shall indemnify and save harmless the said county commissioners of Caroline and Talbot counties and the said state of Maryland against or from all costs, expense, damages, injury, or loss to which the said county commissioners of Caroline and Talbot counties and the said state of Maryland may be subjected, by reason of any wrongdoing, misconduct, want of care or skill, negligence, or default, upon the part of said principal, his agents or employés in or about the execution or performance of said contract, including said specifications, and such alterations as may be made in said specifications as therein provided for, and shall save and keep harmless the said county commissioners of Caroline and Talbot counties and the said state of Maryland against and from all losses to them or either of them, from any cause whatever, including patent infringements, in the matter of constructing | ceiver had been appointed for said corporasaid section of state-aided highway, then this obligation to be void, and otherwise to be and remain in full force and virtue in law. About a year after the contract had been awarded to the York Bridge Company, it entered into a contract with the plaintiffs for The bill alleged that the plaintiffs "completed their said work under said contract with the York Bridge Company, a body corporate, and there is now due and owing your orators under said contract the sum of four thousand five hundred dollars ($4,500) or more," and that said sum is due the plaintiffs "for labor and materials furnished by them to said contractor, the York Bridge Company"; that the state roads commission and the county commissioners have in hand and ready for payment on said contract the sum of approximately $5,000. It is further alleged that the plaintiffs are the only persons, so far as they know, to whom the York Bridge Company is indebted for labor and materials; that the said bridge company is a nonresident of this state, and is insolvent and unable to pay its debts, and that a re tion in the state of Pennsylvania by a court of competent jurisdiction. It is then alleged that the Title Guaranty & Trust Company is liable for the indebtedness of the York Bridge Company to the plaintiffs, and that it should pay the same and be subrogated to the rights of the plaintiffs, and should collect the amount thereof from the state road commission and the county commissioners of Caroline and Talbot counties. The relief prayed for was: (1) That a receiver may be appointed to take charge of the said fund now in the hands of the said state roads commission and the said O. E. Weller, as chairman thereof, and the said county commissioners of Talbot county and the said county commissioners of Caroline county, and such other property as the said York Bridge Company may have in the state of Maryland, and to preserve or dispose of the same under the direction of this court. (2) That the said state roads commission and the said O. E. Weller, as chairman thereof, and the said county commissioners of Talbot_county and the said county commissioners of Caroline county may be required to bring into this court, to be deposited to the credit of this cause, the aforesaid fund now due on said contract. (3) That the said York Bridge Company and its foreign receiver may by injunction be restrained and enjoined from collecting the said fund or any part thereof from the said state roads commission, the said O. E. Weller, as chairman thereof, the said county commissioners of Talbot county and the said county commissioners of Caroline county. (4) That the said state roads commission and O. E. Weller, as chairman thereof, the said county commissioners of Talbot county and the said county commissioners of Caroline county may by injunction be restrained and enjoined from paying over the said sum of money or any part thereof, until the further orders of this court. (5) That your orators' claim to the said fund may be adjudicated by this honorable court in these proceedings. (6) That the said the Title Guaranty and Surety Company may be required to pay the claim of your orators, and in turn be subrogated to the rights of the plaintiffs to the fund in question. (7) That your orators may have such other and further relief as the nature of their case may require. Redmond C. Stewart, the receiver of the York Bridge Company, filed a petition in which he stated that by an order of court passed in the case pending in circuit court No. 2 of Baltimore city, entitled "York National Bank v. York Bridge Co.," he had been authorized to take proceedings in this cause, looking to the establishment of his claims as receiver against the fund involved in this controversy, and prayed to be made a party defendant, and an order of court was passed admitting him as a party defendant as prayed. The state roads commission filed its answer to the bill in which it denied: "That the Title Guaranty & Surety Company is entitled to collect the amount of the indebtedness of the York Bridge Company to the complainant from these defendants, or that the complainant is entitled to an injunction restraining these defendants from paying over said balance of $5,516.66, or any part thereof, to the York Bridge Company, or its receiver, or that the complainant is entitled to have a receiver appointed for said sum of money, or any part thereof." The Title Guaranty & Surety Company and Redmond C. Stewart, the receiver of the York The court sustained the demurrers and dismissed the bill, but ordered the costs of the proceedings to be paid by the receiver out of the fund in dispute. From this order the plaintiffs have appealed. [1] "It is an established rule of equity that, when a corporation becomes insolvent. it is so far civilly dead that its property may be administered as a trust fund for the benefit of its stockholders and creditors (Graham v. La Crosse & M. R. R. Co., 102 U. S. 148, 167, 26 L. Ed. 106)-not simply of stockholders and creditors residing in a particular state, but all stockholders and creditors of whatever state they may be citizens. In Wabash St. L. & P. R. R. Co. v. Ham, 114 U. S. 587, 594, 5 Sup. Ct. 1081, 29 L. Ed. 235, it was said that the property of a corporation was a trust fund for the payment of its debts, in the sense that when the corporation was lawfully dissolved, and all its business wound up, or when it was insolvent, all its creditors were entitled in equity to have their debts paid out of the corporate property before any distribution thereof among the stockholders. When the general debts and assets of a private corporation, lawfully doing business in a state, are in course of administration by the courts of such state, creditors who are citizens of other states are entitled, under the Constitution of the United States, to stand on the same plane with creditors of like class who are citizens of such state, and cannot be denied equality of right simply because they do not reside in that state, but are citizens residing in other states of the Union." Blake v. McClung et al., 172 U. S. 239, 19 Sup. Ct. 165, 43 L. Ed. 432. [2] The Title Guaranty & Surety Company is not liable for the payment of the plaintiffs' claim for the reason that it assumed no such liability under the terms of the bond. Although such a liability was asserted by the bill, it was not pressed in argument, or insisted upon in the brief, and it must be conceded that under the terms of the bond, which we have transcribed, that company is under no obligation to pay the plaintiffs' claim. It is said in 4 Elliott on Contracts, § 3633, that: "The contractor may assign different parts of the work to subcontractors and others, unless prohibited by the agreement, but he is responsible for those he employs, since a contract does not exist between a subcontractor employed by the general contractor and the owner of the building, and the responsibility of the owner is only to the general contractor. Thus a provision in a contract for the construction of a railroad, permitting the railroad company to apply any money due or to become due under the contract to the payment of liens for labor and materials furnished the contractor, does not impose any obligation on the railroad company to pay liens, since the provision was wholly for the benefit of the railroad company." What the York Bridge Company in fact did was to sublet a portion of the work covered by the contract to the plaintiffs, al tract quoted above, it was prohibited from doing so, without the written order of the county commissioners approved by the engineer, and this order and approval does not appear to have been given. It was likewise prohibited from assigning any money payable under the contract. The plaintiffs must be treated as mere subcontractors. [3] They are simply creditors of the York Bridge Company, and not of the defendants, who are debtors to that company, and to whose receiver the fund is now payable. Under the facts of the case, the doctrine of subrogation has no application. That doctrine is never applied, when by so doing it will work an injury upon other persons by destroying their legal or equitable rights. Milholland & Wilcox, Trustees, v. Tiffany, 64 Md. 460, 2 Atl. 834, the court says: In It "may be applied on equitable principles in behalf of one, who at the instance and request of the debtor pays a lien or incumbrance which he was under no legal obligation to pay, provided it does not interfere with intervening rights and incumbrances. It will not, of course, be applied as against superior or equal equities.' The plaintiffs have no more claim upon the funds than other persons who may have supplied labor and material on the erection of the Dover Bridge. To sustain the plaintiffs' claim under the circumstances would be to establish a precedent that might involve the public authorities in litigation and result in the expenditure of public money and the consumption of public time in any case in which there was a dispute between the subcontractor and the general contractor. Although the facts are not precisely similar, the principles announced in Lombard Gov. Co. v. Mayor and City Council of Baltimore, 121 Md. 303, 88 Atl. 140, should be applied to this case. The plaintiffs occupy the same situation as other subcontractor creditors of the insolvent company, and must share rate ably with them in the distribution of the assets of the company. The cases of Ex parte Golding, Davis & Co., 13 Ch. Div. 628, and Kemp v. Falk, 7 App. Cas. 573, cited by the appellants, dealt with the right of stoppage in transitu, and established the right of an unpaid vendor to the surplus proceeds of the sale of his own goods after the rights of the subpurchaser had been performed. In the first case cited there had been an absolute sale of the goods by the original purchaser, but the purchase money had not been paid. "Can the vendor," said Cotton, L. J., "make effectual his right of stoppage in transitu without defeating in any way the interest of the subpurchaser? In my opinion he can. He can say: I claim the right to retain my vendor's lien. I will not defeat the right of the subpurchaser, but what I claim is to defeat the right of the purchaser from me; that is, to intercept the purchase money which he will get, so far as is necessary to pay me." Nor do we find anything in the cases of Bellamy v. Davey (1891) 3 Ch. 540, and Hurley v. Atchison, etc., Ry., 213 U. S. 126, 29 Sup. Ct. 466, 53 L. Ed. 729, in conflict with the conclusion we have reached. Those cases presented a dissimilar state of facts and were governed by different principles. The order appealed from will be affirmed. Order affirmed; the costs in this suit to be paid by the receiver of the York Bridge Company out of the fund. (83 N. J. Eq. 470) MAYOR AND COMMON COUNCIL OF 1914.) (Court of Chancery of New Jersey. Aug. 21, INJUNCTION (§ 26*)-Grounds of Relief. An injunction could not be granted to enjoin separate suits at law, brought by millowners, whose factories adjoin the l'assaic river, for damages for the wrongful abstraction of water from the river by a water company, which suits had no connection with each other, since to do so would violate a fundamental equity rule that distinct and independent causes of action may not be united in one bill. [Ed. Note.-For other cases, see Injunction, Cent. Dig. §§ 24-49, 54-61; Dec. Dig. § 26.*] Suit by the Mayor and Common Council of Newark against the National Silk Dyeing Company and others, to enjoin certain suits at law. Denied. ant. Herbert Boggs, of Newark, for complainW. I. Lewis, of Paterson, for National Silk Dyeing Co. et al. Gilbert Collins, of Jersey City, for East Jersey Water Co. STEVENS, V. C. This is an application to enjoin 12 suits at law, brought by millowners, whose factories adjoin the Passaic river, for damages for the wrongful abstraction of water by Newark, Jersey City, and the East Jersey Water Company. The application must be denied, for the reasons given by me in the case of Newark v. Chestnut Hill Land Co., 77 N. J. Eq. 23, 75 Atl. 644. It is said that the case on hand is distinguishable from the case cited in that there it did not appear that a multiplicity of suits would be prevented by the mere transfer of jurisdiction, while here it does, for the object here is to consolidate 12 suits into one. But, if this court sustained the contention, it would violate one of the fundamental rules of equity pleading, viz., that distinct and independent causes of action must not be united in one bill. The suits by the National Silk Dyeing Company against Newark have no connection with those against Jersey City or the East Jersey Water Company. The suits by the different companies against those corporations have no connection with each other. Simmons v. Paterson, 60 N. J. Eq. 385, 45 Atl. 995, 48 L. R. A. 717, 83 Am. St. •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes Rep. 642, was quite different. There several complainants, suffering from a common nuisance, joined in one bill. The effect of this nuisance upon lands, known as riparian, was the subject dealt with by the Court of Errors. Here it would seem that the injury or prin- | cipal injury complained of is the injury to the various businesses of the plaintiffs. There the complainants were affected by the same act. Here the plaintiffs are affected by the perfectly distinct acts of Newark, Jersey City, and the water company. did not restrict the power of a wife, under paragraph 5, to make contracts, express or implied, with reference to the improvement of real property which would be enforced in equity, though not created by conveyance or other instrument. [Ed. Note.-For other cases, see Husband and Wife, Cent. Dig. §§ 575-581; Dec. Dig. § 150.*] 4. HUSBAND AND WIFE (§ 202*)-OWNERSHIP OF PROPERTY-RESTRICTIONS-ENFORCEMENT AGAINST WIFE. Where a husband and wife, owning a tract of land by the entirety, laid it out in building lots according to a general plan, imposing limitations on the use of the land as building lots It is true that the aggregate damage reand restrictions intended to secure the erection of first-class one-family residences on the tract, sulting from the separate acts of the three and the husband sold complainant a lot, with wrongdoers may be variously estimated by reference to the plan, which showed that certain different juries, if the cases be tried sepa- other lots were abutting and subject to such rately, but the possibility of different find- restrictions, the wife after the death of her husband, and becoming a feme sole, was liaings on the same state of facts is not able to complainant for the performance of the ground of equity jurisdiction. Besides, there limitations and restrictions with reference to is nothing to indicate that, if the verdicts the adjoining property as an implied covenant, should be the result of differing or conflict- though all of the restrictions and limitations were not specified in complainant's deed. ing estimates of total damage, Newark would [Ed. Note.-For other cases, see Husband and be the one to suffer. If consolidation of the Wife, Cent. Dig. §§ 737, 945; Dec. Dig. § 202.*] suits for the purpose of trial be, to a greater or lesser extent, desirable, I know of no reason why the Supreme Court should not be asked to consolidate. I cannot overlook the fact that the Su preme Court, in the suits brought by the Weidman Dyeing Company, has formulated a rule which it has applied to this very class of cases, thus declaring that it deems itself competent properly to deal with them. (83 N. J. Eq. 454) SCHICKHAUS v. SANFORD. (No. 33–478.) (Court of Chancery of New Jersey. Aug. 21, 1914.) 1. HUSBAND AND WIFE (§ 193*)-MARRIED WOMEN-RIGHT TO CONTRACT-STATUTES. 3 Comp. St. 1910, p. 3226, § 5, declaring that contracts of a married woman shall be enforceable in equity as if she were sole, is qualified by section 14, declaring that a married woman may not execute any conveyance of her real property or any instrument incumbering the same without her husband's joinder. [Ed. Note.-For other cases, see Husband and Wife, Cent. Dig. §§ 716-718, 940; Dec. Dig. 8 193.*] 2. COVENANTS (§ 20*) TIONS. IMPLIED RESTRIC Restrictions, in a general plan adopted by the owner to sell lots, may in equity be imposed on the lands beyond the express restrictions contained in the deeds to the purchaser, on the theory of implied covenant. [Ed. Note.-For other cases, see Covenants, Cent. Dig. § 19; Dec. Dig. § 20.*] 3. HUSBAND AND WIFE (8 150*)-MARRIED CONTRACTS ENFORCEMENT IN Action by Emma L. Schickhaus against Margaret J. Sanford. On motion to strike out bill for want of equity. Denied. W. C. Headley, of Newark, for the motion. Ernest F. Keer, of Newark, opposed. EMERY, V. C. The facts set out in the bill substantially show that one Sanford and his wife, being the owners by the entirety of a large tract of land in Newark, laid out the same for sale in building lots according to a general and uniform plan relating to the limitations made upon the use of said lands as building lots, and with restrictions. intended to secure the erection of first-class onefamily residences on the tract. The bill also shows specially, as to the lot which was purchased by the complainant's predecessor in title, that according to the general plan as declared by the owners, appearing by the map adopted by the owners, complainant's lot was to be a lot 50 feet by about 100 feet in depth, located on Sanford avenue, one of the three streets laid out through the tract, and abutted on two lots fronting on Clinton avenue, each about 50 feet in width and 175 feet in depth. According to the general plan as alleged in the bill, these two lots were to be sold together as a lot fronting 100 feet on Clinton avenue and 175 feet deep. Complainant's lot was purchased, relying on the existence of this map and plan, making the adjoining lots abutting lots, and upon the special representation by the owners that WOMEN EQUITY. these lots on Clinton avenue were to be sold 3 Comp. St. 1910, p. 3226, § 5, declares as abutting lots, and, as thus shown on the that contracts of a married woman shall be en- map then produced, for the purpose of inforceable in equity as though she were sole, ducing complainant's purchase of the adjoinand section 14 provides that a married woman may not execute any conveyance or incum- ing lot, the price of which, as then agreed on, brance on her real property without her hus- was increased by reason of this adjacency band's joinder. Held, that paragraph 14 re to the abutting lots. But the deed for comlated only to the character of conveyances and instruments by which a married woman's real plainant's lot, which is also set out in the property might be conveyed or incumbered, and bill, while it referred to the lot as being No. |