
    Jane J. McKnight vs. James Bradley. James Bradley vs. Jane J. McKnight.
    ■ Principal and Surety — Equity.
    A borrowed money and gave her note for the amount with B, as her surety. She then deposited the money with B, with directions to purchase certain judgments against C, and take, for her, assignments from the plaintiffs. B purchased the j'udgments and took the assignments in his own name for the benefit of A, who then was, or soon after, became insolvent: Held, that equity would not compel B to surrender his legal title to the judgments for the benefit of A, ” and to be disposed of as she pleased, but would compel him to apply the proceeds in satisfaction of the note on which he was surety.
    Where the surety of an insolvent principal obtains, without fraud, the legal title to a fund belonging to his principal, equity will not compel him to surrender the legal title to his principal, that he may dispose of the fund as he pleases, but if the surety has not paid the debt, will authorize and compel him to apply the fund to its satisfaction.
    BEFORE DUNKIN, CH., AT WILLIAMSBURG,
    FEBRUARY, 1856.
    In the’case of McKnight vs. Bradley, first above stated, the Circuit decree is as follows:
    Dunkin, Ch. A. Isaac McKnight, son of the complainant, married the daughter of the defendant. In November, 1854, he was much embarrassed, and there were executions in the Sheriff’s office against him to the amount of about four thousand dollars. It was agreed between the plaintiff and the defendant that each should advance the sum of two thousand dollars for the purpose — not of satisfying the executions, but of purchasing, and thereby obtaining control of the same. The plaintiff accordingly placed that amount in the hands of the defendant, who, on 2d November, 1854, paid the same, together with a like sum on his own account, to William R. Nelson, Esq., Sheriff of the district, taking from him two separate receipts. In the receipt taken on behalf of the plaintiff, eleven executions are specially set forth, with a statement of the interest on each, calculated to the date. Then follows this acknowledgment on the part of the Sheriff:— “Received 2d November, 1854, of Mrs. Jane J. McKnight, by the hands of Dr. James Bradley, nineteen hundred and eighty-six dollars and ninety-nine cents, to be applied in full payment of the foregoing executions up to date, the said executions to be left open for the benefit of the said Mrs. Jane J. McKnight, she having paid the same with her own money, and not in satisfaction of the said executions, but with the view of getting assignments thereof from the plaintiffs.
    (Signed) W. R. NELSON, S. W. D.”
    The defendant’s money was paid to the Sheriff in like manner, and a receipt, setting forth the eight or nine executions specifically to which it was applied, was given to him by the sheriff. Other executions were subsequently obtained against A. Isaac McKnight, under which levies were made, and his property sold on the sale day in April, 1855, and afterwards, for the sum of three thousand eight hundred dollars. A contest arose as to the application of this fund, the junior execution creditors insisting that the payments made on 2d November, 1854, were a satisfaction of the existing executions, and that the fund realized under the subsequent sales was properly applicable to their executions. In order to determine the question, at the sitting of the Court of Common Pleas for Williamsburg District, for fall term, 1855, two rules were taken out against the sheriff — the history of which is detailed with groat clearness in the evidence of N. Philips, Esq., who on that occasion acted as counsel, representing the interests of the defendant, Dr. James Bradley. From this it appears that Mr. Solicitor Mclver was assistant counsel with himself. They had a conversation with Mr. Dozier, the counsel of Mrs. McKnight, when it was proposed that they should have a conference at Mr. Nelson’s house. The conference accordingly took place. The witness said his client, Dr. Bradley, was aware of this conference, and that both he (Dr. B.) and Mr. Mclver notified witness of the conference. Mr. Mclver informed witness that there had been a previous conference with Mr. Dozier. The result of the conference (proceeds the witness) was, that they should take out rules against the sheriff, based on these receipts and the assignments. There was no apparent hostility of interest between their client and Mrs. McKnight; they stood in the same position. Mr. Dozier said that the sheriff had called on him to answer the rule — result was that, as there was no difference between Dr. Bradley and Mrs. McKnight, the witness and Mr. Mclver should take out the rules, and Mr. Dozier file a formal answer for the sheriff, leaving to the junior execution creditors to contest the matter. Two rules were accordingly taken out against the sheriff — one on Mrs. McKnight’s receipt, the other on Dr. Bradley’s. Witness took out one rule, Mr. Mclver the other. Witness at first thought that one rule would be in the name of Mrs. McKnight, but at trial he found that both assignments were in the name of Dr. Bradley; both receipts were also to Dr. Bradley, but one was expressed to be for the benefit of Mrs. McKnight. Mr. Dozier answered the rules, and some counsel for the creditors contested it. The rules were made absolute. Sheriff Nelson was also examined. He said that at the last Court of Common Pleas, Mr. Dozier, on behalf of Mrs. McKnight, had applied to him for her proportion of sales of A. Isaac McKnight’s property. Witness declined until he could see Mr. Mclver. It was on this (said the witness) that the conference took place; witness was present at the conference. On the last night of the Court Mr. Mclver said that Mrs. McKnight was to get half the money; he told witness to apply one half the money to the credit of Mrs. McKnight.
    The original proceedings on the rules were put in evidence corroborating, in every particular, the statements of Mr.' Philips in relation to them. There were two separate rules taken out, and service accepted 14th November, filed 16th November, and both made absolute 17th November. The return of the sheriff stated that the fund was claimed by Dr. James Bradley, as assignee and owner in his own right, and for the benefit of Mrs. Jane J. McKnight of the executions elder in date, and by the several junior execution creditors on the other hand, who contested the right of the elder execution creditors, and that he was unwilling to gay over the fund until the right was adjusted, or without the sanction of the Court. Separate orders were entered on each of the two rules, making them absolute.
    After the order had thus been obtained, the plaintiff, Mrs. McKnight, directed the sheriff, out of her moiety of the fund, to apply fourteen hundred and sixty-five dollars to the satisfaction of an execution in his office against herself, as the surety of her son, A. Isaac McKnight, at the suit of the Bank of the State of South Carolina, and the balance, four hundred and thirty-five dollars, to be applied to other executions in his office against her as surety of her said son, A. Isaac McKnight, leaving the other moiety of the three thousand eight hundred dollars for the defendant. The plaintiff avers that by these applications, in addition to what the sheriff had received from other sources on her account, the executions in his office against her would be satisfied, with the exception of a small balance which she could easily pay, without the sacrifice of property. The bill charges that the defendant has prohibited the sheriff from so applying the nineteen hundred dollars to which the plaintiff is entitled, and threatens to issue an attachment against the sheriff for not paying over to him, the defendant, the whole amount of three thousand eight hundred dollars, on the ground that the assignments of all the executions were made to him alone, and that the proceedings under both the rules were conducted in his name.
    The defendant relies, for a justification of his proceedings, upon an alleged state of facts, entirely independent of, and beyond the matters thus stated by the bill and established by the evidence. It appears, from the testimony of Ezra Eady, that the two thousand dollars which the plaintiff paid to the sheriff on the 2d of November, 1854, was borrowed from the witness on 30th October previous, upon a note to which the defendant was surety; and it also appears that, at the same-time, the defendant borrowed from him a similar amount upon a note, with the plaintiff as his surety. It also appears that these notes are unpaid. The defendant, in his answer admits that, when he received the two thousand dollars borrowed by the plaintiff from Ezra Eady, “ he gave her a receipt that the money should be applied to.the purposes for which it was borrowed; that he did pay over to the sheriff, as well the two thousand dollars on his own part as the two thousand dollars borrowed by the plaintiff as aforesaid, with the understanding on the part of the sheriff thatthe executions to which the said money was applied should not be marked satisfied, but remain open for the benefit and protection of him, the defendant, and the complainant admits that he set apart certain executions which were to remain open for the benefit of the complainant.” The defendant further admits that he afterwards procured assignments, in his own name, not only of the executions which he had laid off as aforesaid, but of the executions which had been set apart and were to remain open for the benefit of the plaintiff. The defendant insists that he has a right “ to hold the said execution as a security for the payment of the note to Ezra Eady, so as to relieve the defendant from his liability as surety upon said note,” or that he has the right to receive the money under the rules against the sheriff for the purpose of doing himself justice in that behalf.
    It may be well in the first place to remark, that there was not only an absence of any antecedent agreement that the funds realized under the executions should be applied to the payment of the notes to Eady, but no such agreement is suggested or intimated by the answer of the defendant; on the contrary, he declares that, at the time of the loan, “he believed the plaintiff to be solvent and good for the amount of money.” lie states circumstances which, at a subsequent period, induced him to apprehend that he might suffer as surety on the note of Eady, and that he thereupon “ felt himself bound in self-defence to obtain the assignments in his his own name, as he was bound, as the plaintiff’s surety, for the money which purchased them.”
    It is entirely manifest from the evidence, that on the 30th October or 2d November, 1854, the defendant received from the plaintiff two thousand dollars of her own money, to be applied by him in a particular manner and for a specific object. The bill states that this purpose was to pay the money to the sheriff and procure from the plaintiffs in the executions assignments to the amount which each paid to the sheriff; “ that the plaintiff being a female, and not conversant with the manner of conducting such a business,” placed the money in the hands of the defendant, “ who gave her a receipt, stating that the money should be applied as aforesaid.” The defendant thereby became the agent or trustee for the plaintiff for a particular and specified purpose. The receipt which he took from the Sheriff on 2d Novelnber, 1854, when he paid him the plaintiff’s money, may well be regarded as his own acknowledgment of his fiduciary relation, and of the character and purposes of it. Having assumed this agency it was his duty to carry it out, and complete the arrangement.
    It was testified by the defendant’s daughter, that, a few days after the payment to the Sheriff, her father and the plaintiff were at witness’ house; that her father told the plaintiff he had brought those papers for her; witness said the papers were the Sheriff’s receipts. The plaintiff declined to take the papers, saying she had been advised not to take them- — -“that she did not wish to assume any responsibility.” Loose and indefinite as was this language, it may be construed as amounting to no more than an avowal of her original reluctance to assume responsibility in completing an arrangement in business with which she was not conversant, and which the defendant had undertaken to do for her. If the defendant either then or afterwards, intended to abandon his trust, or to discontinue his agency in the transaction, he should have so informed the plaintiff in explicit terms, and, at the same time, have placed in her hands the receipt which belonged to her, in order.that she might employ another agent to procure the assignments, or enable her to procure them herself. But having assumed an agency for a specified purpose, and been furnished, with the means of effecting that purpose, he had clearly no right in his own mind only to repudiate his agency and appropriate the means to a different purpose without either the concurrence or privity of his principal. If the plaintiff had been even apprised by the defendant of his intention to make use of her receipt for the purpose of procuring assignments to himself of the executions which she had paid off, she could at any moment have interposed and prevented the consummation of an object which she had not authorized or sanctioned, and which would defeat the purpose for which she had raised the money. But so far from communicating to his principal any information of a change in his intention, the defendant did much more than allow her to remain in ignorance. The evidence as to the course of proceedings under the rules, and especially the Sheriff’s returns to the rules prepared after a conference with the defendant’s solicitor, shew that, up to that time, the entire fund was claimed by him as assignee and owner, not for himself -alone, but in his own right, and for the benefit of Mrs. Jane J. McKnight (the plaintiff.) On this showing both the rules were made absolute, and afterwards, on the last night of the Court of Common Pleas, the defendant’s solicitor instructed the Sheriff to apply one half the money to the credit of the plaintiff, Mrs. McKnight.
    The Court is of opinion, upon the evidence, that all the transactions of the defendant in relation to the two thousand dollars placed in his hands by the plaintiff, including, as well the payment to the Sheriff as the assignments of the eleven executions and the proceedings under the rule, must be referred to his agency for the plaintiff, and enured to her benefit in such manner as she thought proper to direct, and it is so declared.
    It is ordered and decreed that the defendant be perpetually enjoined from any proceedings under his assignments, or otherwise, to recover from the Sheriff the moiety of the funds in his hands belonging to the plaintiff, according tó the judgment herein before declared; and it is further ordered and decreed that the defendant pay to the plaintiff the interest on the said moiety from the 17th November, 1855, the day on which the said rule was made absolute.
    The defendant appealed on the grounds:
    1. For that the decree is based upon the assumption “that there was not only an absence of all evidence of any agreement between the complainant and defendant, that the funds realized under the executions should be applied to the payment of the.notes to Eady, but no such agreement is suggested or intimated by the answer of the defendant.” Whereas, there was positive testimony to this effect, by W. 0. Bradley, as taken down by his honor the presiding Chancellor, in the following language, to _ wit: “ At Mrs. McKnight’s with his father — just as they were leaving — plaintiff said ‘ when he got the money from the sheriff and paid her note at Eady’s,’ that she would give him up his receipt j” and such an agreement or undertaking is also suggested or stated in the answer.
    2. For that his Honor permitted William R. Nelson, sheriff, to be sworn, and received his testimony in evidence, in behalf of the complainant, who, the defendant submits, was not a competent witness, inasmuch as he was directly interested in the event of the suit — having applied the money in controversy to executions against the complainant, and therefore was swearing off his own liability to the defendant under the attachment which was then suspended over him.
    
      3. For that his honor received in evidence the declarations of Mr. Mclver as proved by the said William R. Nelson— which, the defendant submits, were incompetent,because there was an absence of all evidence that Mr. Mclver was the agent or attorney of the defendant at the time the declarations were made, but, on the contrary, the evidence showed that his agency terminated when the rules were made absolute.
    4. For that the proof was, that the complainant was very much embarrassed, and she said herself “ that she was not worth anything,” which furnished a reason why the defendant in equity and good conscience had a right to have the money in controversy applied to save himself from ultimate liability as surety of the complainant.
    5. For that the charge of interest is improper, there not only being no evidence that the defendant had ever received the money in controversy; but, on the contrary, the evidence and the whole proceedings, especially the order for an injunction, show that he not only never did receive or control the money, but that she has so far had it her own way.
    6. For that this Court has no right, and ought not, to decree an injunction to restrain the attachment under the rule made absolute in the defendant’s name alone, without some showing at least, that the complainant was likely to sustain irremediable loss, by the defendant’s receiving the money in controversy — especially when she had a clear remedy against the defendant, for the misapplication or misuser of such money of hers as he might receive — and, when according to all the showing, the complainant not only interposed no objection to the rales being made absolute in the defendant’s name alone, but in effect consented to the same through her attorney, who was present, and defended the sheriff upon occasion of the rules.
    7. For that the decree is, in other respects, against justice, equity and conscience.
    
      In the case of Bradley vs. McKnight,
      
       the second cause stated in the caption, the circuit decree is as follows:
    Dargan, Ch. Upon the general merits of this case, I concur with the Chancellor who heard it on the original bill, at Feb. Term/ 1856, and gave a decree thereon. The facts are well stated in that decree, and they are substantially the same that were proven before me on the second trial. On an appeal from that decree, the Court of Appeals at May Term, 1856, without reversing or modifying the same, made an order in words as follows: “ It is ordered and decreed, that so much of the decretal order of the Circuit Court as enjoins the defendant from proceeding against the Sheriff, be continued, and stand in force, until otherwise ordered by the Court; that so much thereof as directs the defendant to pay interest be opened; and that the defendant do, within six months hereafter, file a bill setting forth the equities on which he relies, and that any final judgment/be suspended until the hearing of the cause.” James Bradley (the defendant in the original bill) did, accordingly, on 16th August, 1856, file a cross bill against Jane J. McKnight. The statement of the equity, stripped of its verbage, amounts to this: That Mrs. McKnight borrowed from one Ezra Eady the sum of $2,000, for which she gave her promissory trote, dated 30th Oct., 1S54, which was payable six months after date, and on which the said James Bradley was her surety; upon this note, before the filing of the cross bill, Eady recovered a judgment, and has issued an execution, but it still remains unpaid. Bradley, in his cross bill, further states, that Mrs. McKnight is insolvent, that he will be compelled to pay her debt to Eady, and that in consequence of her insolvency, he will have no means of enforcing reimbursement from her. The insolvency of Mrs. McKnight is proven to my entire satisfaction; Dr. Bradley will most assuredly have to pay the debt to Eady, and I am convinced he will be unable to collect the amount from Mrs. McKnight. If this constitutes an equity which entitles him to relief, the prayer of his cross bill should be sustained.
    For the purpose of illustrating the discussion of a principle, I will suppose that Dr. Bradley is in possession of a fund, to which Mrs. McKnight is entitled, and for the recovery of which she has filed her bill,«and is entitled to a decree, but for the interposition of the equity which Dr. Bradley has stated in his cross bill. The case as thus presented (which is the most favorable to Dr. Bradley) reduces itself to an abstract question of law. When the principal debtor is insolvent, and is suing his surety in this Court for a debt due by the surety to himself, can the surety resist the claim on account of the outstanding claim on which he is surety, and which has not been paid? I am aware of no authority in support of such a proposition. If Dr. Bradley would be entitled to detain or withhold such a fund, it must be on the principle of discount. But a discount is in the nature of a cross action, and the subject matter of a discount must be a subsisting debt;* the debt sued on, and that set up by way of a discount, must be mutually subsisting, at least at the time of the trial. A debt not due, cannot be set up as a discount either at law or in equity. If Dr. Bradley had paid to Eady the debt of Mrs. McKnight on which he was sued, before the filing of his cross bill, (or perhaps before this trial,) his case would have been clear. This defence would then have been good in the case supposed, in law and in equity. Or, if he had brought Eady into Court as a party, the Court could have compelled him to take a decree, both against the principal and the surety; and perhaps in that case, the Court might have decreed that the fund of Mrs. McKnight (being by the supposition in the hands of Dr. Bradley) be paid over directly to the creditor, to the relief of the surety. But Dr. Bradley has not pursued this obvious course, and he must abide the consequences. If a surety is relieved on the ground assumed in the complainant’s bill, how is the Court to be assured that the surety will apply the fund to the payment of the creditor, or that the security himself may not become insolvent before he pays the debt? But the case supposed for illustration, is in fact, not true; Dr. Bradley is not in possession of Mrs. McKnight’s fund. That fund has gone in the hands of the Sheriff, and has been by him applied to the satisfaction of executions in his office against her. If it was her money (as assuredly it was) this was a rightful application. Notwithstanding this application of the fund, Dr. Bradley has obtained a rule against the Sheriff, for not paying over to him this money. It was for the purpose of enjoining the enforcement of this rule, that Mrs. McKnight filed her original bill. It was principally for the relief of the Sheriff, who was to be compelled by virtue of these rules, to pay over to Dr. Bradley the very money which he had already paid virtually to Mrs. McKnight, by applying the same to her credit on executions in his hands against her.. If the Sheriff is compelled to pay the money to Dr. Bradley, he will be driven to rely for reimbursement on Mrs. McKnight, whom Dr. Bradley has proved to be an insolvent person. As before intimated, I have arrived at the same conclusion with Chancellor Dunkin, as expressed in his decree, namely, “that upon the evidence, all the transactions of the defendant (Bradley) in relation to the two -thousand dollars placed in his hands by the plaintiff, (Mrs. McKnight,) including as well the payment to the Sheriff, as the assignment of the eléven executions, and the proceedings under the rule, must be referred to his agency for the plaintiff, (Mrs. McKnight,) and inured to her benefit in such manner as she thought proper to direct; and it is so ordered and decreed.”
    It is further ordered and decreed, that the cross bill of the defendant, Bradley, be dismissed, and that he be perpetually enjoined from any proceedings under his assignment, or the rule or rules which he has obtained against the Sheriff to recover or collect from the said Sheriff, the said sum of two thousand dollars, or any part thereof, mentioned in the bill of Mr. McKnight, and herein adjudged to belong to her, to appertain to her use and benefit, and to be subject to her control and direction. It is further ordered, that the said defendant, Bradley, pay the costs.
    James Bradley, the defendant in the first stated case, and the complainant in the second, appealed on the grounds:
    1. Because it is a plain and well settled principle of equity, (sustained and confirmed by an unbroken current of authorities, elementary and judicial,) that when the principal debtor is insolvent, and is suing his surety in this Court for a debt d.ue by the surety to himself, the surety may resist the demand,. on account of the outstanding claim for which he is surety,, even though the same be not paid — and all that the principal could possibly ask, (with any pretence of right or conscience,) would be that the surety apply the fund to the satisfaction of the original debt.
    
      2. Because if the surety in this case is not in possession of the fund, his equity is stronger. He is entitled to have the fund applied, so as to exonerate himself; and this as well against the principal, as against the Sheriff, who, if he did pay out the money, acted wilfully, and in his own wrong.
    The Equity Court of Appeals, after argument, ordered the case to this Court, where it was now heard.
    
      Rich, Bellinger, for appellant.
    
      Dozier, contra.
    
      
      Heard before Dargan, Ch., at Williamsburg, February, 1857.
    
    
      
      
         This is the only case heard by Chancellor Johnston during the term.
    
   The opinion of the Court was delivered by

O’Neall, J.

The defendant in the original bill, and the complainant in the cross bill, has at law the right to compel the Sheriff to pay to him the funds in his hands. It is conceded in the decree, on the cross bill, that if he had paid the debt to Eady, for which he was the surety of the complainant in the original bill, and the defendant in the cross bill, that he could not under the facts stated and conceded to be true, be compelled to forego his legal advantage. Indeed it is said by the Chancellor, if Bradley had brought Eady into Court as a party,” (I suppose defendant to the cro(ss bill) “ the Court could have compelled him to take a decree against the principal and surety, and perhaps in that case, the Court might have decreed that the fund of Mrs. McKnight, (being by supposition in the hands of Dr. Bradley) be paid over directly to the creditor, to the relief of the surety.” How, after these concessions, the Court can undertake .to deprive the complainant in the cross bill of his legal advantage, I do not perceive. For the principles settled in Taylor vs. Heriot, 4 Des., 227, that a surety may apply to the Court of Equity for relief as soon as he is endangered, is enough to sustain him in the position which he now occupies. He has been guilty of no fraud. The money which bought the executions, and which he set apart for Mrs. McKnight, still,, however, taking the assignments in his own name, was raised on the note of the defendant in the cross bill on which he was her surely. She is conceded to be insolvent, and he will have.,the money to-pay. Ought she not to pay the money arising under the executions in his exoneration ? That would be the very right of the case. For it is precisely the same as if he had, out of his own pocket, advanced the money, and taken the assignments as he did, in his own name; but stating that certain of the executions were to be for her. Would the Court of Equity deprive him of his legal advantage by setting rip the trust? I have no doubt that until he was refunded, no such thing would be done. Here I think the same principle of equity will apply. Mrs. McKnight must do equity before she demands it of Dr. Bradley.

But it is supposed that as he has not paid Eady’s'debt, he cannot be protected. At law, where he would have had to rely on his discount, that would have been a fatal objection, if any action could have been sustained on the part of Mrs. McKnight. But she cannot sustain an action at law. Her whole right depends upon the trust which Dr. Bradley assumed in taking the assignments, and which would have been carried out, had it not been for his position as her surety. He has the power at law by attachment to compel the Sheriff to pay the money to him. That is the same as if it toas in his hands. Will the Court deprive him of this advantage ? I am clear that it ought not. For as surely, he is entitled to the protection of the Court against the wrong which his principal is attempting, by applying the fund to a debt against herself alone, and leaving him to pay the surety debt; a debt contracted to raise the means, by which the purchase of the executions for her was accomplished.

If Dr. Bradley be considered as the agent of Mrs. McKnight, I do not see how that will affect his rights. As her agent, he raised the funds, whereby the executions were bought; but he did not pay for them out of her funds. In the prosecution of the agency, he borrowed the money for himself and her, and he became surety for her part, and she for his part; and it is now ascertained that he must pay for her. Would a Court compel an agent, having still the control of the fund collected under the executions, to turn the same over until he was protected? I apprehend it would not. In Story on Agency, chap. 14, § 352, a lien is defined to be “a right in one man to retain that which is in his possession belonging to another, until certain demands of him, the person in possession, are satisfied.” The rights of Bradley are somewhat analogous to the rights of lien. He has by his credit acquired the very fund now attempted to be taken from him. He has constructively the possession of it, inasmuch as he has the means at law of compelling the payment. In the Bank vs. Levy, 1 McMul., 431, the Court enforced the lien of the agent as a means of securing himself against outstanding liabilities. That case, it seems to me, though on a much larger scale than this, yet presents the very principle, whereby Bradley may be protected. It seems to me on every principle of honesty and fairness, he is entitled to have the benefit of the proceeds of the executions, originally set apart for the benefit of the complainant in the original bill, to discharge the debt to Eady.

It is therefore.ordered and decreed that the Circuit decrees be reversed, and that Dr. Bradley, the defendant in the original bill and the complainant in the cross bill, be allowed to receive the proceeds of the executions originally set apart for Mrs. McKuight, now in the hands of the Sheriff of Williams-burg District, and that he do apply the same forthwith in discharge of the debt to Mr. Eady, mentioned in the pleadings.

JoHNSTON' AND WARDLAW, CC., AND WARDLAW AND Munro, JJ., concurred.

Dunkin and Dargan, CC., dissented.

Withers, J., absent.

Decrees reversed.  