1 gard to the application of the funds, B. & M'K. accounts and pay over the money to his credit-sence of any instruction from P. & Company in reors, as the proofs show that he did. This was by the express consent of some of the creditors, and the presumed consent of all, as no dissent or complaint appears to have been made by any; and no one had any right to complain but the parties who were to receive the benefit of the assignment. This possession was held at the will and pleasure of the creditors, which they could have withdrawn at any time, if dissatisfied with the management of Wheeler; and this was a substantial compliance with that part of the assignment which relates to the appointment of an agent, or trustee, for the purpose of executing and fulfilling the trusts and purposes of the assignment. The creditors were, of course, to be the judges of the fitness and competency of such agent, or trustee; and they were the only parties interested in the faithful discharge of his duties. No formal appointment was necessary; an express or implied assent of the creditors to Wheeler's acting as agent, or trustee, was all that could be required, according to the fair interpretation of the assignment. We are, accordingly, of opinion that the decree of the Circuit Court, dismissing the bill without prejudice, be affirmed. Decree affirmed. When a factor makes advances, or incurs liabili ty on a consignment of goods, if there be no special agreement, he may sell the property in the exercise of a sound discretion, according to general usage, and re-imburse himself out of the proceeds of the sale, and the consignor has no right to interfere. The lien of the factor for advances and liaconsigned, but, when sold, to the proceeds in the bilities incurred, extends not only to the property hands of the vendee, and the securities therefor in the hands of the factor. The acceptors of the bill of exchange having, when the bill became due, funds of the drawers in their hands sufficient to pay the same, the liability of the accommodation drawers was as completely discharged, on the payment of the bill, as that of the principals. The case, as stated in the opinion of the court, was as follows: "Brander & M'Kenna, in 1833, 1834, 1835, were commission merchants at New Orleans, and acted as factors and agents for William E. Phillips & Company, of Huntsville, Alabama, in the sale of cotton, and made advances thereon. On all sales they were to receive two and a half per cent. for commission, and the same amount for advances. In August, 1834, Phillips & Company were indebted to Brander & M'Kenna, in the sum of 121*] *JAMES S. BRANDER and Hugh L. one thousand three hundred and fifteen dollars M'Kenna, Plaintiffs in Error, V. WILLIAM E. PHILLIPS and Henry Bell, trad- Bills of exchange-duty of drawee to make application of funds in his hands-lien of factor -accommodation drawers. B. & M'K., merchants at New Orleans, were the factors of P. & Company, of Huntsville, Alabama, and made advances on cotton shipped to him. In August, 1834, P. & Company were indebted to B. & M'K., one thousand three hundred and fifteen dollars; and Williams, the agent of B. & M'K., agreed with P. & Company, that B. & M'K. would advance eight thousand dollars on bills to be drawn between the 20th of April, and the 31st of July, 1825, by P. & Company, and any two of six persons named, among whom were Horton and Terry, two of the defendants in this suit. Before July 31st, 1835, several shipments of cotton were made to B. & M'K. by P. & Company, and several bills were drawn by them jointly with Horton and Terry, and by others without them; all of which were accepted by B. & M'K. These bills, with the advances before made, amounted to twenty-nine thousand seven hundred and ninety-five dollars, and the proceeds of the shipments were twenty-two thousand four hundred and sixty dollars. B. & M'K. applied these proceeds to the liquidation of the bills drawn by P. & Company to the exclusion of those drawn by them jointly with Horton and Terry; and, as these bills exceeded the proceeds of the cotton, they brought an action on a bill drawn June 4th, 1835, by P. & Company, and Horton and Terry, amounting to three thousand dollars. The Circuit Court instructed the jury, that if they believed from the evidence, that at the maturity of the bill, B. & M'K. had sufficient funds of P. & Company to pay the bill, and Horton and Terry to be accommodation drawers, and sureties only, then, in the ab and fifty-seven cents, for advances. On the Between the 15th of August, 1834, and the 31st of July, 1835, several shipments of cotton were made to the plaintiffs by the defendants; and several bills were drawn by them, some jointly with Horton and Terry, and others without them; all of which were accepted by the plaintiffs. These bills, including the advances previously made, amounted to the sum of twenty-nine thousand seven hundred and ninety-five dollars and sixty-five cents. The proceeds of the shipments of cotton to meet these advances, amounted to the sum of twentytwo thousand four hundred and sixty dollars and forty-three cents. The plaintiffs applied the proceeds of the cotton to the liquidation of the bills drawn by Phillips & Company, to the exclusion of those drawn by them jointly with Horton and Terry; and as the acceptances exceeded the proceeds of the cotton, this action was commenced on a bill due 4th June, 1835, for three thousand dollars drawn by the defendants. On the trial, the court instructed the jury, if they believed from the evidence that, at the maturity of this bill, Brander & M'Kenna had sufficient funds of Phillips & Company in their hands to pay it, and believed Horton and Terry 123*] to be accommodation drawers and by him for the latter, as well as for the former. securities only, and knew this at the maturity If not, what agent would ever make advances? of this bill, then, in the absence of any in- When a principal sends forward goods to his structions from Phillips & Company, in regard factor, even though sufficient to meet advances to the application of the funds, Brander & then actually made, they are not more applicaM'Kenna were bound to apply them to pay this ble to those advances than to liabilities then inbill, and could not hold them to meet the pay-curred but not actually due. This has been esment of a bill drawn on them by Phillips & tablished by a current of authorities. Huber. Company, which had been accepted, but was Prælect. lib. 20, title B. sec. 1, 3; Ex-parte not then due. And that if, when this bill be- Deeze, 1 Atkyns, 229; Godin v. London Ascame due, the funds of Phillips & Company insurance Company, 1 Burr. 494; Kirkman v. the hands of the acceptors were sufficient to pay it, the bill was extinguished, and recovery could not be had on it." To this instruction an exception was taken; and the jury having given a verdict for the defendants, the plaintiffs prosecuted this writ of error. The case was argued by Mr. Gilpin for the plaintiffs in error, and by Mr. Crittenden for the defendants. Mr. Gilpin, for the plaintiffs in error: Shawcross, 6 Durnford & East, 16; Walker v. If the property in the hands of the factor was subject to be applied by him to the latest of his liabilities as well as to the earliest, is there a different rule in regard to the proceeds of that property? There is certainly no reason why there should be. If it be right The relation of Brander & M'Kenna with for the factor to have security upon the one, it William E. Phillips & Company was strictly is equally proper that he should have it upon that of principals and agents, or factors. The the other. It is even more proper, because the former had no interest of their own in the cot-object of the consignment is not merely to ton forwarded. In performing this agency, obtain advances, but also have sales made at the plaintiffs acted under two contracts, the any time when the state of the market should nature and mutual obligations of which were render it expedient. If the factor's security well defined and understood. Their general were lessened by a sale; if the proceeds derived contract as agents arose, by legal implication, from the sale were held by him with a lien less from the course of trade which had existed effective for his security than the unsold propbetween them and Phillips & Company for a erty, sales would never be made till *the [*125 series of years. They received their cotton, whole consignment was received. From the sold it, made payments and advances, and were evidence in this case it is apparent that allowed a certain commission. Their special Brander & M'Kenna were to sell the cotton contract, though relating to the same kind of "at their discretion;" their rights were not to business, was yet entered into for the particu- be altered by the sale; the price they received lar benefit of Phillips & Company, and on par- for the cotton remained in their hands, exactly ticular terms. The object was to induce ad- as if it had been the cotton itself. Their lien vances from Brander & M'Kenna, to the on the one diu not differ from their lien on the amount of eight thousand dollars, on a personal other. Ex-parte Dumas, 2 Vesey, Sen. 585; guaranty of certain individuals, independently Kruger v. Wilcox, 1 Ambler, 252; Foxcroft v. of any security by shipments of cotton. To Devonshire, 2 Burr. 936; Drinkwater v. Goodthe extent of the probable security which such win, 1 Cowp. 251; Kinlock v. Craig, 3 Durnford shipments would afford, they were already & East, 122, 786; Atkinson v. Elliott, 7 Durnford willing to make advances. This contract, & East, 376; Hammonds v. Barclay, 2 East, therefore, could have no object but to secure 227; Mann v. Shiffner, 2 East, 529; Haille v. them, if the whole proceeds of the cotton Smith, 1 Bos. & Pull. 563; Houghton v. Mattshould not, in the end, cover the whole amount of the advances. Now, what, under such circumstances, are an agent's rights? In the first place, he has a lien on the whole property, to cover his whole liability; as well as debts that he has actually paid, as debts for which he is bound to provide. On the 1st June, 1835, the cotton on hand was not more subject to be appropriated to the liquidation of a bill of William E. Phillips & Company, which Brander & M'Kenna had then actually paid, than of one not yet due, which they had accepted. No principle is better settled than this, that an agent cannot be required to apply property in his hands to a debt due, if he has also incurred a future liability. The property may be held hews, 3 Bos. & Pull. 492; Cowell v. Simpson, 16 Ves. 280; Hudson v. Granger, 5 Barn. & Ald. 31; Colley v. Merrill, 6 Greenl. 50; Bradford v. Kimberley, 3 Johns. C. C. R. 434; Brown v. M'Graw, 14 Peters, 495. If, then, Phillips & Company could not themselves have directed the application of any portion of the cotton forwarded by them, or of its proceeds, to any particular liability which Brander & M'Kenna had incurred as their factors, the law will not certainly direct such an application. It will only do so in cases where a party might himself have done it. Brander & M'Kenna had the right, on the 4th of June, to appropriate the money, which was then in their hands as the proceeds of the cotton, to any liability due or to become due, which they had then incurred; Phillips & Company could not control the exercise of that right; the court, therefore, will not do so. But, suppose that the receipt by Brander & M'Kenna of money derived from the sale of the cotton, in June, is to be considered as a payment to them; still, they never appropri pay the bill, without specific or express in structions. The obligation to make this appli cation was implied by the circumstances. On the deposit of the money in the hands of another, particular orders for its application are not required. Implied orders are equivalent. In this case, the application of the funds to pay the first bill becoming due, was ordered by the bill itself. There is another consideration in this case which the court will notice. The question here is one in which sureties are interested. The indorsers of the bill are called upon to pay a bill, for the payment of which ample funds were in the hands of the acceptor when it became due; and it is asked to apply those funds to debts becoming due afterwards, with which they had no connection. ated that payment to the account arising under the special contract, nor were they bound so to appropriate it. The evidence shows that they kept their account of the advances to the amount of eight thousand dollars under the special contract, separate and distinct from their general contract; in this separate account they never gave a credit for the amount of these sales; it was rendered to Phillips & Company, and such a credit never was claimed by them; finally, one of the partners of that firm admitted that the credit was properly applied to the 126*] general account, and although this admission was made after the dissolution of the partnership, yet it is not the less competent evidence of the fact. Wood v. Braddick, 1 Taunt. 204; Lacy v. M'Neille, 4 Dowl. & Ryl. 7. Nor were they bound by law to apply it to the special account; Phillips & Company Can the drawers of the bill withhold the having directed no application, it remained funds in their hands until the final adjustment with Brander & M'Kenna to make it to one or of accounts between them and the drawers? the other, at their own option; and especially This would be most inequitable, and against might they so make it as to provide for the the express terms of the acceptance. The acdebt which was least secured. Manning v. ceptance on the part of the drawees was a conWeston, 2 Vern. 606; Goddard v. Cox, 2 Strange, tract to pay the bill when it should become 1194; Bodenham v. Purchas, 2 Barn. & Ald. due; the contract on the part of the drawers 45; Peters v. Anderson, 5 Taunt. 601; Bosan- was to furnish funds to enable them to pay it quet v. Wray, 6 Taunt. 598; Kirby v. Marl- when due. The contract of the latter has been borough, 2 Maule & Selwyn, 22; Simson v. Ing-performed; and shall the contract of the former ham, 2 Barn. & Cress. 65; Brewer v. Knapp, 1 Pick. 337; Dedham Bank v. Chickering, 4 Pick. 340; Blackstone Bank v. Hill, 10 Pick. 133; Hilton v. Burley, 2 New Hamp. Rep. 196; Cremer v. Higginson, 1 Mason. 324; United States v. Wardwell, 5 Mason, 85; Bainbridge v. Wilcocks, Bald. 538; Mayor of Alexandria v. Patten, 4 Cranch. 320; Field v. Holland, 6 Cranch, 27. remain unexecuted, to the injury of the other drawers, who had no other connection with the parties but upon the bill? This court have said, in other cases, that whenever there is an account between parties and rests, the application of funds in the hands of the party to whom money is due, is to be made to the period of the rests in the account. Outstanding items in the account are not to operate to prevent such appropriations. Cited, Bell v. Morrison, 1 Peters, 351. *Mr. Justice M'Lean delivered the [*128 opinion of the court: This is a case on error from the Circuit Court for the District of South Alabama. Brander & M'Kenna, in 1833, 1834, 1835, were commission merchants at New Orleans, and acted as factors and agents of William E. Phillips & Company, of Huntsville, Alabama, in the sale of cotton, and made advances thereon. On all sales they were to receive two and a half per cent. for commission, and the same amount for advances. Mr. Crittenden, for the defendants in error: No agreement was made between the plaintiffs in error and William E. Phillips & Com- The question in this case is only on the inpany, that they should make advances on cot-structions of the court; were they correct, if ton to be shipped to them from Alabama. In the facts were so found by the jury? 1834, an agreement was made that bills should be drawn to the amount of eight thousand dollars, to be also signed by certain persons, and which Brander & M'Kenna agreed to accept. No particular advance was made on any one of these bills; but as a bill or bills were drawn, cotton was to be shipped by William E. Phil lips & Company, to furnish funds for payment. The contract of the drawers was, to furnish funds for the payment, out of the proceeds of cotton, to pay the bill or bills when due. The Circuit Court of Alabama said, that if funds were so provided, they should be applied to pay the bills as they became due; and they denied the right of the plaintiffs in error to hold funds in their hands provided by the drawers of the bills for their payment, for the purpose of paying bills which might become due subsequently, and by leaving the bills due unpaid, subject the indorsers to liability. The jury have found that when the bill on which this 127] suit was brought became due, funds were in the hands of the acceptors sufficient to pay them; and this is conclusive. The bill on which this suit was instituted, was also signed by Horton and Terry, and was payable in nine months, according to the contract with Williams, the agent of Brander & M'Kenna. The funds in their hands when the bill became due should have been applied to In August, 1834, Phillips & Company were indebted to Brander & M'Kenna in the sum of one thousand three hundred and fifteen dollars and fifty-seven cents, for advances. On the 15th of the same month, John Williams, agent for Brander & M'Kenna, agreed to advance Phillips & Company the sum of eight thousand dollars on bills, to be drawn between the 20th of April, and the 31st of July, 1835, by them, and any two of six persons named; among whom were R. Horton and N. Terry, two of the defendants in error. Between the 15th of August, 1834, and the 31st of July, 1835, several shipments of cotton were made to the plaintiffs by the defendants, and several bills were drawn by them, some jointly with Horton and Terry, and others without them; all of which were accepted by | came payable; and the instruction of the Cir the plaintiffs. These bills, including the advances previous ly made, amounted to the sum of twenty-nine thousand seven hundred and ninety-five dollars and sixty-five cents. The proceeds of the shipments of cotton to meet these advances amounted to the sum of twenty-two thousand four hundred and sixty dollars and forty-three cents. cuit Court to the jury was, if at that time the plaintiffs had in their hands funds of Phillips & Company, of a sufficient amount to pay this bill, and they knew that Horton and [*130 Terry were accommodation drawers, they were bound to pay it. When the plaintiffs accepted this and the other bills, were they not aware of their respective amounts and the times they became due? And were they not bound to take up the bills at maturity? Of this there can be no doubt. The bills drawn subsequently to the one under consideration, amounted to fifteen thousand dollars, all of which were accepted by the plaintiffs. Were these acceptances The plaintiffs applied the proceeds of the totton to the liquidation of the bills drawn by Phillips & Company, to the exclusion of those drawn by them jointly with Horton and Terry; and as the acceptances exceeded the proceeds of the cotton, this action was commenced on a bill due 4th June, 1835, for three thousand dol-made, to any extent, on the credit of Horton lars drawn by the defendants. and Terry? This has not been contended. On what ground, then, can this action be sustained? The application of payments by the creditor, where no direction is given by the debtor, has no relation to the present case. On the trial, the court instructed the jury that, if they believed from the evidence that at the maturity of this bill Brander & M'Kenna had sufficient funds of Phillips & Company in their hands to pay it, and believed Horton 129*] and Terry to be accommodation *draw-time, on acceptances made on the same day, the ers and securities only, and knew this at the maturity of this bill, then, in the absence of any instructions from Phillips & Company, in regard to the application of the funds, Brander & M'Kenna were bound to apply them to pay this bill, and could not hold them to meet the payment of the bill drawn on them by Phillips & Company, which had been accepted, but was not then due. And that if, when this bill became due, the funds of Phillips & Company, in the hands of the acceptors, were sufficient to pay it, the bill was extinguished, and recovery could not be had on it. Had the bills become payable at the same plaintiffs might have insisted on applying the funds in their hands to the payment of the notes without securities. But this would have been a very different case from the one now before us. After having accepted the bill under consideration, payable at a time stated, the plaintiff's accepted other bills, payable at a more remote period. Now, the contract by the acceptors was, that they would pay these bills as they respectively became due. And this they were bound to do, so long as the funds of the consignors in their hands remained unexhausted. A bill became extinguished so soon as it was paid by the plaintiffs, with the funds of Phillips & Company. And this principle applies as strongly to those bills signed by the accommodation drawers, as to others. To this instruction an exception was taken, and the plaintiffs in error contend that they had a right to hold the cotton and its proceeds to meet all outstanding liabilities which they had incurred on account of Phillips & Company; Could the plaintiffs lay a foundation for a and that they had a right so to marshal the se-recovery against Phillips & Company, by showcurities, in the absence of any express agreement on the subject, as to save themselves from loss. as that of the principals. ing payment of a bill drawn by them, out of their own funds? This would not be pretended. And yet this is the principle contended Where a factor makes advances, or incurs for in the present case. The liability of the liabilities on a consignment of goods, if there accommodation drawers was as completely disbe no special agreement, he may sell the prop-charged, on the payment of the bill in question, erty in the exercise of a sound discretion, according to general usage, and re-imburse himself out of the proceeds of the sale; and the consignor has no right to interfere. The lien of a factor for advances and liabilities incurred, extends not only to the property consigned, but, when sold, to the proceeds of the sale in the hands of the vendee, and the securities therefor in the hands of the factor. Drinkwater v. Goodwin, Cowp. 251; Haughton v. Matthews, 3 Bos. & Pull. 489; Brown v. M'Gran, 14 Peters, 495; Story on Agency, 380. The relation of factors which the plaintiffs bore to Phillips & Company, gave them no power to vary their acceptances. The cotton consigned was to meet the payments of the bills as they became due. This was known to Horton and Terry; and it may well be supposed that their liability was incurred in virtue of this *arrangement. But the plaintiffs, by [*131 appropriating the proceeds of the cotton to the payment of future liabilities, have violated their contract, endeavoring to defeat the just reliance of the sureties, and charge them with the payment of the bills which they guarantied. This the plaintiffs cannot do. It would be a great hardship, if not a fraud on the sureties. No lien can be regarded or enforced under such circumstances. The lien of a factor depends upon legal principles, founded on equitable considerations, and can be held valid on no other grounds. But the case under consideration does not turn upon this principle. The liabilities of the plaintifs exceeded the proceeds of the property consigned: and the question to be answered is, whether they can claim a re-imbursement from Horton and Terry, who were bound jointly with Phillips & Company, in certain bills amounting to eight thousand dollars. Other bills to a much larger amount, drawn by Phillips & Company, without security, were accepted by the plaintiffs, several of which were not due, when the bill in controversy before, affirmed. We think that the instruction of the Circuit Court was correct, and the judgment is, there This cause came on to be heard on the tran- | nine thousand six hundred and eleven dollars script of the record from the Circuit Court of and nine cents, showing a balance against Nixthe United States for the Southern District of dorf & Hager of six thousand three hundred Alabama, and was argued by counsel; on con- and eighty-one dollars and forty-three cents. sideration whereof, it is now here ordered and It is further stated in the bill that the firm of adjudged by this court, that the judgment of Hager & Smith afterwards purchased of Nixthe said Circuit Court in this cause be, and the dorff, who was then doing business on his own same is hereby affirmed, with costs. account, goods and merchandise to the amount of four thousand five hundred dollars, for which they gave their promissory notes; that Hager & Smith afterwards failed in business, and Hager removed to the Western country, leaving Smith to pay the debts of the firm, on the common law side of the court, upon the promissory notes; and refuses to permit him to set off the above balance of accounts in that suit. He, therefore, prayed that Nixdorff might be enjoined from proceeding further at law; and that by decree of the court this equitable off-set 132*] TOBIAS NIXDORFF, Appellant, V. LEWIS SMITH, Appellee. A decree of a perpetual injunction on sults in: Court of the District of Columbia, reversed, and the bill dismissed; the accounts between the parties having been erroneously adjusted in the Circult Court. stituted on the common law side of the Circuit ON appeal from the Circuit Court of the should be allowed. The prayer for the injunc United States for the District of Columbia, for the County of Washington. This case was argued by Mr. Key for the pellant, and by Mr. Coxe for the appellee. tion was granted. Nixdorff, in his answer, denied that any balap-ance was due from Nixdorff & Hager to Hager & Smith; and he also denied that he had ever refused to go into a settlement of the accounts between the two firms. Mr. Justice M'Kinley delivered the opinion of the court: This is an appeal to this court, from the Circait Court of the District of Columbia, for the County of Washington, sitting in chancery. By order of the court below, the accounts between the parties, as set up in the bill and answer, were referred to an auditor, with many special instructions. By his report it appears, that the amount of debts collected by Hager & Smith for Nixdorff & Hager, under the contract between the parties, amounted to fortytwo thousand and twenty-six dollars, including interest, to which he added the amount of goods contained in the inventory, after deducting twelve and a half per cent. from Nixdorff's half, making in all fifty-four thousand eight hundred and thirty dollars and twenty-six cents, [*134 to the credit of Nixdorff & Hager; and he charged them with debts paid under the contract, including interest, the sum of forty-five thousand nine hundred and ninety-two dollars and fifty-two cents; to which he added the sum of five thousand dollars paid by Smith to Nixdorff, making in all the amount of debits fifty thousand nine hundred and ninety-two dollars and fifty-two cents; showing a balance in favor of Nixdorff & Hager of three thousand eight hundred and thirty-seven dollars and seventyfour cents. Smith. the appellee, filed a bill in chancery against Nixdorff, stating that he had purchased of Nixdorff all his right and interest in the stock in trade, and commercial business, then carried on in the city of Baltimore by Nixdorff & Hager; and agreed to pay to Nixdorff, in hand, the sum of five thousand dollars, and at the expiration of two years, thereafter, such further sum as would be sufficient to re-imburse to Nixdorff the balance of his interest, for investment of capital and interest thereon, after deducting the payment of the five thousand dollars. And in contemplation of the agreement, and after the terms had been fully settled among the parties, but before it was written, Smith entered into partnership with Hager, and agreed with him to continue the same business, under the name and firm of Hager & Smith. And in anticipation of the new partnership, it was agreed that the firm of Hager & Smith should assume the whole of the debts of Nixdorff & Hager, and provide for their payment; and that all the debts owing to Nixdorff & Hager should be collected by Hager & Smith; and it was further agreed that Smith should sustain no loss by the collection of the debts due to Nixdorff & Hager. It is further charged, that Nixdorff's half of the goods, in the store of Nixdorff & Hager, was sold to Smith, at twelve and a half per cent. discount on the cost price; that an inventory 133*] was taken of the goods, and, after making the stipulated deduction, Nixdorff's half amounted to five thousand nine hundred and seventy-five dollars and thirty-two cents. In the reformed report the auditor charges The agreement, dated the ninth day of August, Nixdorff with forty-five thousand nine hundred 1833, and signed by the parties, was made part and ninety-two dollars and fifty-two cents, for of the bill. It is there charged, that the amount debts paid by Hager & Smith for Nixdorff & of debts paid by Hager & Smith for Nixdorff Hager, and adds the five thousand dollars paid & Hager, including interest to the first of No- by Smith to Nixdorff, making Nixdorff's debt vember, 1837, was forty-five thousand nine to Hager & Smith fifty thousand nine hundred hundred and ninety-two dollars and fifty-two and ninety-two dollars and fifty-two cents; and cents; and the amount collected for them, with he credits Nixdorff by forty thousand three interest, to the same period, amounted to thirty-hundred and seventy-six dollars and sixty cents, To this report the complainant filed the following exceptions: "The auditor has erred in this, that he has charged the complainant with the amount of the whole inventory of the goods of Nixdorff & Hager. Whereas the complainant was purchaser of one half of the goods only, and should have been charged with no more: the other half being the private property of Hager, and as such brought into the capital stock of Hager & Smith." The court sustained this exception, and directed the auditor to restate the accounts between the parties. |