Goldsborough, J.,

delivered the opinion of this Court:

This was an attachment on warrant, issued out of the Superior Court of Baltimore city, at the suit of the appellants, against the goods, chattels, rights, credits, &c., of the Pittsburg, Port Wayne & Chicago Rail Road Co., upon a judgment obtained by tbe appellants against the last named company, in the District Court and Court of Common Pleas for Allegheny county, Pennsylvania, and laid in the hands of the appellee.

The appellee appeared as garnishee, and pleaded that the defendant was never indebted as alleged, and nulla bona. Upon interrogatories propounded by the appellants, the appellee admitted rights and credits of the defendant *478in its hands more than sufficient to cover the claim of the appellants. These rights and credits arose from the sale of through tickets, under an arrangement by virtue of which rail road companies have authority to sell through tickets, reporting the sales monthly, and holding the balance subject to draft at sight.

The appellee, as garnishee, however, relies for defence upon certain mortgages mentioned in the record, by one of which it appears that ‘ ‘all the property and effects of the defendant, including its income, was, at the time when the attachment was laid, under mortgage to John Furgusson and Thomas E. "Walker, of the city of New York.”

At the trial of the cause, it was admitted and ag-reed that the debt, for the recovery of which the attachment in this case was sued out, is due to the plaintiffs by the defendant, for oil furnished by the plaintiffs to the defendant, and by the defendant used in the working and use of their rail road.

The appellee offered in evidence the deeds above referred to, especially the deed from the defendant to John Furgusson and Thomas E. Walker, executed on the 1st day of January 1857.

The appellants then presented the prayer mentioned in the record, which was rejected by the Court; to this rejection the appellants excejrted.

Before reviewing .the action of the Superior Court in rejecting the appellants’ prayer, we will notice the point made by the appellee, that “it does not appear by the bill of exceptions that the cause of action was submitted to the Court or jury, and therefore the Court could not declare the conveyance no bar to a recovery, when there was nothing to recover on.”

It must be observed, that the prayer is not an affirmative one, asking the Court, from the evidence set out in the prayer, if found by the jury, to instruct them that the *479plaintiffs are entitled to recover. On tbe contrary, it was an exercise of tbe privilege of the plaintiffs, to raise a question of law arising out of the facts enumerated, and to demand an opinion on it, (see 1 Gill, 143,) not as conclusive of Hie plaintiffs’ right to recover, hut as ancillary to that right.

The objection, that the cause of action was not submitted to the Court and jury, we think is sufficiently answered by the admission of the appellee at the trial, that the debt was due the appellants for oil furnished by them to the defendants. It was therefore unnecessary for the jury to pass upon the evidence thus admitted. See 11 Md. Rep., 185.

It was contended that the instruction contained in the-prayer, that the mortgage did not operate as a conveyance-of the gross revenue of the read, was erroneous, and that the prayer, for that reason, was properly rejected. It is-true, that this proposition seems to be independent of tbe more definite and substantial one predicated on tbe facts' submitted in tbe other portion of tbe prayer for the finding of the jury ; yet as the propositions contained in the prayer are properly connected, we think the first should be construed as limited to a construction of tbe mortgage before: default, and in that sense that it should he considered with the latter as one entire proposition. 4 Md. Rep., 305.

A careful examination of the mortgage deed of the 1st of January 1857, fully satisfies us that the mortgagors' conveyed only the net income of the rail road, after payment of all expenses, while they remained in no default in paying the interest and providing a sinking fund.

Whatever might have been the force and effect of those-clauses of the mortgage deed which enumerate the class and description of the property conveyed, yet those clauses are controlled by tbe sixth clause, the concluding part of *480which, must be regarded as an affirmative covenant, amounting to a re-demise.

(Decided March 26th, 1863.)

It certainly was the intention of the contracting parties, that until there was a default, the mortgagors being allowed to retain possession and have the management of the rail road, should, from its operation and the receipt of the gross income, provide the means to meet their liability as created by the mortgage. Such construction effectuates wbat to this Court appears to have been clearly the intention of the parties. Any other would he productivo of injustice, and would be to place the right of enjoyment and use guarantied to the mortgagors until default, at the mercy of the mortgagees, without subserving in any manner tbe interests of the parties for whose security the mortgage was executed. Sec 1 Md. Rep., 225.

With the affirmative right of possession and management of the road, it must follow that the mortgagors had a legal right to contract for such articles as would enter into the expense of maintaining and operating the road. In this case, it is admitted that the claim in dispute is for ■ioil furnished hy the appellants to he “used in the working -of the rail road.”

Judgment reversed and procedendo awarded.