
    Dodge & Phillips v. Wilbur & Scott.
    G. & Co., commission merchants in London, employed H. D., one of the plaintiffs, as their agent in Florida, to procure for them consignments of cotton, and to enable him to make the necessary advances to shippers, they authorized him to draw either upon themselves or upon the defendants, merchants in Hew York, and they, at the same time, wrote to the defendants, requesting them to accept and pay such bills as might be drawn upon them by H. D., in conformity to his instructions, and promising due honor to such sterling bills as the defendants, for their own reimbursement, should draw upon them, G. & Co.
    
      Held, that there was no privity between the shippers of cotton, to whom advances were made by bills upon the defendants, and the defendants, so as to entitle the latter to an equitable lien upon the proceeds of the cotton, in the event of the dishonor of the sterling bills drawn by them, for their own reimbursement, upon G. & Co.
    
      Held, that the defendants, in accepting and paying the bills of H. D., acted neither as his agents nor as those of the shippers, but solely as the disbursing agents of G. & Co., the consignees by whom, through the defendants, the required advances were made.
    
      
      Held, that the contract of the shippers was exclusively with the consignees, and that when the latter, as they were entitled to do, retained a sufficient sum from the proceeds of sales to cover advances and charges, the surplus belonged absolutely to the former.
    
      Held, that if the defendants acquired any lien upon the .ground that the bills which they paid were drawn against the cotton shipped, and were paid upon the laith of the shipment, their lien was confined to that portion of the proceeds which the consignees were entitled to retain to cover advances and charges, and could not reach the surplus belonging to the shippers.
    Upon these grounds, held, that the fund in controversy, which was a surplus arising from the sales of cotton shipped by the plaintiffs, the advances upon which had been made through bills accepted and paid by the defendants, could not be applied to reimburse, pro tanto, the defendants, whose sterling bills upon the consignees, G. & Co., owing to the insolvency of the latter, had been dishonored.
    Decreed, that the fund which, by consent of the parties, had been deposited with the New York Life Insurance and Trust Co., should be paid over to the plaintiffs ; costs, the suit being in a measure amicable, equally divided.
    (Before Oaklet, Ch. J., Sandford <fc Duer, J. J.)
    Nov. 24, 25, 26, 1851;
    Feb. 28th, 1852.
    This was a bill filed by the plaintiffs, in the supreme court, in equity, to reach the proceeds of cotton, consigned by them to the house of A. A. Gower, Nephews & Co., of London. The case was subsequently removed to this court. The facts,-as they appear from the pleadings and evidence, are as follows :
    The firm of A. A. Gower, Nephews & Co., were merchants in London, in the year 1847,. and for many years previous, and in the course of their business, were in the habit of receiving consignments,for sale, on commission, of cotton from the United States, on which they made advances, and they had correspondents and employed agents in the United States in their business. The firm of Masters, Markoe & Co., of New York, till dissolved, Nov. 21,1844, by the death of Mr. Masters, and afterwards their successors, the firm of Markoe, Wilbur & Scott, until the year 1847, were correspondents and agents of the firm of A. A. Gower, Nephews & Co., in the business of such consignments of cotton and advances thereon. The defendants, Jeremiah Wilbur and Thomas Scott, were the survivors of Markoe, Wilbur & Scott. The plaintiff, Daniel K. Dodge, was, in the cotton season of 1846-7, and during several seasons before had been, an agent of A. A. Gower, Nephews & Co., at Apalachicola, to procure consignments of cotton to them, with authority to make advances to the shippers by drafts against such consignments. On the 14th of August, 1846, Messrs. Grower, Nephews & Co., merchants of London, made an agreement with Mr. Dodge, then in London, relative to advances to be made by them, through him as their agent, on cotton to be shipped to them from Apalachicola, the ensuing season, for sale. This agreement was contained in their letter of that date, delivered to him in London, as follows :
    “ London, 14th August, 1846.
    “Me. D. K. Dodge, of Apalachicola,
    “ London:
    “ Sie.—We now commit to writing for your guidance, the substance of the conference we had with you this forenoon, respecting operations during the approaching season ; begging, you will consider the following to be the terms on which we are willing to receive consignments of cotton from Apalachicola or Mobile, through your instrumentality, subject to such modifications as circumstances may render essential; while, for the present, we base our instructions and estimates on the supposition of the crop 1846-41, being two millions and a quarter of the usual sized bales, say, 2,250,000 bales crop.
    “ 1. Desirous alike, of extending our relations to such an extent as may yield a remuneration to you, and of avoiding too heavy a business when that which we do with the Mississippi is taken into the account, we think we should not be desirous of going beyond ten to twelve thousand bales the ensuing season from Apalachicola.
    “ 2. - Considering it probable, under ordinary circumstances, that middling Orleans cotton, Liverpool classification, may be worth about 141 per lb., we authorize you to make advances, with the following securities on our account, on a quality of cotton equal to that specified above, of five cents per lb. (5 cents per lb.,) to shippers on speculation, and of five and one half cents per lb., (51 per lb.) to safe responsible planters. Should you, to the best of your judgment, find it necessary, in order to secure consignments from desirable parties, to give the latter additional- advance ; in either case, timely notice to be given to us to have the same covered by insurance; and your drafts to be accompanied by invoices and bills lading granted by the masters of the vessels which are to bring. the cotton to Great Britain. No advance being authorized by us, while as yet the cotton is in any stage of transition from the interior.
    
      “ 3. These advances are in the usual manner to be made either by drafts directly on us at from 60 to 90 d. sight, containing a clause indicative of the shipment against which made, or by your drawing on New York, at as long advance as practicable, the acceptors and payers there of these drafts reimbursing themselves at maturity, by valuing on us in time for the sterling equivalent-at the customary sight, and specifying in these drafts the payments against which they are issued.
    
      “ 4. The rate of advance specified in the second clause of this letter, being based on the supposition of a crop of two and a quarter millions of bales, we have to make the following provision for any increase in the estimated quantity which may be very manifestly expected, namely : that you reduce the rate of your advance a quarter cent per every hundred thousand bales, which it may be pretty correctly ascertained will be gathered beyond the standard crop mentioned in these instructions.
    “ 5. All cotton on which we make advances, either by bills drawn on us direct or circuitously through New York, is to be insured by us. For your information, we may mention, that your own friends in New York, Messrs. Marlcoe, Wilbur & Scott, will be advised of this arrangement, and requested to cooperate in carrying it into execution.
    “6. We expect you will use your endeavors to procure us the consignment of vessels; to whose affairs, whether here or in Liverpool, we shall give every attention, and place to your credit one half of whatever we obtain for doing such business.
    “ 7- The rate of commission is to be three per cent, on sales to cover remuneration for selling, insuring and guaranteeing.
    “ From .this we may abate i per cent, if we find other principal houses in the trade perform the same services for two and one-half per cent. Of whatever we obtain from this source, we shall pay to you a sum equal to one-third part in full of your remuneration.
    “ 8. Should you obtain and execute orders for the purchase of cotton from respectable responsible parties, and find it necessary to reimburse yourself on us, we are to do the insurance by timely intimation, and you are to send us the shipping documents precisely as if it were a consignment under advance, with this specialty that you are to send us at same time, your own draft at 60 d. st. on the party who ordered and for whose account is the cotton, that we may secure your interest in case of need.
    “ For this service you are to give us a sum equal to i of your „ commission for buying and shipping.
    “You are to keep us fully informed of all your proceedings, and wishing you a safe and prosperous return to.your own country,
    “We remain, -
    “ Your very obt. servt’s,
    “ A. A. Gower, Nephews & Co.”
    The business was carried on by the Gowers, in the following manner. Dodge received the cotton at Apalachicola, and shipped it direct to Liverpool, to the consignment of the Gowers ; upon doing so, he forwarded to the New York house of the defendants, an invoice and bill of lading of the consignment, made out to the Gowers, and drew upon the defendants’ house in favor of the shipper, for the advance authorized by the Gowers. The defendants then compared the invoice and drafts with the limits and instructions of the Gowers, and if in conformity, accepted and paid the drafts; they thereupon transmitted the invoice and bills of lading to the Gowers, with orders for insurance, and reimbursed themselves by their own drafts on the Gowers, including in them their own commission of one per cent, for their services. These drafts were accepted and paid by the Gowers, and their amount was charged upon the cotton, and against the shippers, as the advance of the consignees.
    The following is the letter referred to in the opinion of the court, from plaintiff Dodge.
    
      Apalachicola, April 'M.th, 1847.
    Messrs. Markoe, Wilbur & Scott :
    Dear Sirs :—I have received nothing from you by the last two mails, and consequently nothing to reply to. My last was on the 20th, inclosing bill lading of the three shipments, 810 bales cotton, to Liverpool.
    
      I have now to advise my draft on you, in addition to the three previous ones, amounting to $26,409, for $6987, at sixty days’ sight, in my own favor, against those three shipments, viz. 810 bales, per “ Cumberland, Sir Howard Douglass and Margaret,” being at the rate of 85 c. pr. lb. I should have drawn for an additional amount, and the parties may think me too stringent when the quality of the cotton is taken into view.
    The parties don’t wish these cottons sold, until the maturity of the drafts against it, and under the expectation that my drafts on you can be negotiated, if need be, to meet the bills for the purchase, there will be ample time for the Liverpool market to reach its maximum before it would be placed in the market to meet the bill of yours. Should they entertain different views, I will communicate them. But, in the event of any difficulty in N. Y., whereby paper should become difficult to negotiate, arising from causes now apprehended by some, you are at liberty to cash my drafts, and reimburse yourself at once in London.
    Yours truly,
    D. K. Dodge.
    In April 1847, the plaintiffs shipped, through Dodge, at Apalachicola, the above mentioned 810 bales of cotton to the Gowers, and Dodge drew upon the defendants’ firm for the usual advance, forwarding to them the invoices and bills of lading of the consignment. The defendants’ firm accepted and paid the drafts, and reimbursed themselves by drafts upon the Gowers, who accepted all the drafts, and paid the first maturing, but failed before the maturity of others, which remained unpaid by them, and were taken up by the defendants. The controversy arose out of the unpaid drafts upon this last consignment. Notice of their dishonor was given to the plaintiffs by the defendants.
    The Gowers’failure occurred on the 11th of September, 1847 ; and at that time a part of their last consignment of cotton remained unsold in their hands. After sales were completed, the net proceeds of these cottons, above the amount of all the acceptances of the Gowers (representing their advances upon them), amounted to ¿£1,265 3s. and lid., and were in the hands of Gowers, Nephews & Co.
    The unpaid acceptances of the Gowers, taken up by the defendants, exceeded-this sum, and they claimed in London, that this surplus of sales, over advances, should be paid to' them towards the dishonored acceptances they had been obliged to pay. The plaintiffs claimed it as their fund, being the proceeds of their cotton, over and above the charges and advances received by them.
    By agreement, the fund and controversy were transferred from London to New York. The sum of $6,267 09, the equivalent of the above amount sterling, was deposited with the defendants, the New York Life and Trust Company, subject to the respective claims of the parties, to determine which, the action was brought.
    
      W. M. Evarts, for the plaintiffs, argued the following points:
    I. The plaintiffs are manifestly entitled to this fund as the proceeds of their cottons consigned to Gowers, remaining after satisfying all the liens and charges of the consignees.
    II. The defendants claim that the drafts of Dodge on them, on account of this consignment paid by them, were not so paid by them as agents of Gowers, the consignees, nor as the advances of the latter on such consignment, but for account and accommodation of Dodge—that Gowers having failed to reimburse them, Dodge, the drawer, or Dodge and Phillips, the owners of the cotton, are indebted to them in the amount of such accommodation acceptances—that they have, therefore, a lien or title to subject this fund, part proceeds of the cotton, to the payment of such debt to them.
    III. Conceding the debt as claimed by the defendants, they never had any lien on the cotton, and have none on the proceeds, for its satisfaction. The cotton never was in their possession, actual or constructive, nor did they ever hold the relation to Dodge, or to Dodge and Phillips, of factors or consignees. The debt claimed can be none other than a personal demand for money paid to the use of the drawer of the drafts, or of the owners of the cotton. (3 Corns. 243.)
    IV. But the drafts on the defendants accepted, and paid by them, were so accepted and paid by them as agents of A. A. Gowers, Nephews & Co., and as the advances of the latter to the consignors upon the cottons consigned to 'them for sale. (1.) It is of the essence of the contract of consignment upon advances, that the advances should come from the consignee ■—thus becoming, pro tanto, a payment for the property consigned, and leaving at risk only the surplus or margin. (2.) The effect of the defendants’ view of the relations between the parties is, that the owner trusts his whole property with the consignee, and borrows money from another party—thus receiving no payment on account, and placing the whole value of the consignment at risk. (3.) The whole course of trade, and all the objects of the parties, are at variance with such a view; and the unequivocal result of the testimony is, that the consignor to Gowers had his option to take his advances from them, either by drafts on them at London, or on Markoe, Wilbur & Scott, in New York. The latter acted in the acceptance and payment of the drafts, as the mere disbursing agents or bankers of Gowers. Upon the payment of the drafts by them, the advances of Gowers to the consignor were completed, and the sums became matters of account between them and Gowers.
    Y. That Dodge had a part interest in this consignment, can make no difference in the nature or effect of the defendants’ acceptances and payments of his drafts drawn upon the same. (1.) The shipping documents showed Dodge to be the party interested, and the acceptance of the drafts by defendants was made upon inspection of such documents. (2.) Previous transactions, in which Dodge was interested, solely or jointly with others in the consignments, had been carried on between the parties in the same manner, as where the consignments were the property of strangers.
    YI. The plaintiffs should have a decree for the payment to them by the defendants, the New York Life Insurance and Trust Company, of the amount on deposit, with all accumulations of interest, and for their costs to be paid by the defendants, Wilbur & Scott.
    
      S. P. Staples, for the defendants.
    If Messrs. Gowers had applied the proceeds of the cotton to meet the bills drawn against it, they would all have been paid; and there would have been a surplus from such proceeds, over and above the drafts and the charges on the cotton, of ¿61265 3s. lid., which, in such case, would have belonged to the plaintiffs, the owners of the cotton. The account C, in the case, which is made up by Messrs. Gowers, shows how the account would have stood if all the bills had been paid. This amount of ¿61265 3s. lid. has been remitted to this country and deposited in the New York Life Insurance and Trust Company, under the stipulation found at page 22, amounting, in the currency of the United States, to $6267 09. By this stipulation the amount is to be paid to the party entitled thereto. The 810 bales of cotton in question did not belong to southern shippers or planters, but to the plaintiffs, which was not known to the defendants till after the failure of the Gowers. The Gowers would have applied these proceeds to pay the bills, if they had not been forbidden by Mr. Dodge. The statement on this subject in the bill is not proved. The foregoing facts are admitted or clearly proved, from which, among other things, it appears : That the sterling bills were drawn against the cotton. That the proceeds of the cotton were the only funds in the hands of Gower, Nephews & Co. for their payment. That Mr. Dodge agreed that said proceeds should be so applied, before the defendants accepted his drafts ; on the faith of which they did accept and pay them. That the cotton belonged to the plaintiffs. That the sterling bills were the property of the plaintiffs, drawn at their request, controlled by them, sold for their benefit, and the proceeds applied to their use. That the defendants accepted the plaintiffs’ drafts for their accommodation, without funds, other than the cotton and their right derived from Mr. Dodge to draw on it. That the defendants’ compensation, one per cent., allowed by the plaintiffs, was included in one of the dishonored sterling bills, and now remains unpaid. That the bills were accepted, and the funds in question, would have been applied towards them, had not Mr. Dodge prevented it. That the funds are not claimed by the creditors of Messrs. Gower, but belong either to the plaintiffs or defendants.
    ■ I. The cotton and its proceeds not having been, under these circumstances, appropriated to the payment of these bills, the defendants are legally and equitably entitled to have them so applied. (Mandeville v. Walsh, 5 Whea., p. 285; Satloch v. Harris, 3 Term Rep. 182; Brander, &c., v. Phillips, 16 Peters, 122; Thomas v. Da Costa, 8 Taun. R. 345; Harris v. Clark, 3 Comstock R. 115, 117, 118; Story on Bills, § 13; 1 Eq. Cas. Ab. p. 93, pl. 5; 11 Ves. p. 22, Wright v. Morley; Cross on Lien, p. 295, Law Library 18, U. S.; 9 Paige 435, Curtis v. Tyler.)
    
    II. The letter of August 14,1846, from Gowers to Dodge, and the action of Mr. Dodge thereupon, were an agreement that the bills should be paid from this particular fund—the proceeds of the cotton—and the bills are to be treated as if they had expressed on their face that they were payable therefrom.
    III. The defendants were agents merely, and were paid by the plaintiffs. The plaintiffs were carrying on the general business of shipping cotton, on joint account and profit with Messrs. Gowers (sharing the commissions), and were also the owners of the 810 bales, the proceeds of which are now in question. The plaintiffs intrusted their property, the sale of it, and the custody of the proceeds, to Messrs. Gowers ; the defendants were in no wise responsible for the solvency or fidelity of Messrs. Gowers. The commission of one per cent, which the defendants received from the plaintiffs, was all their compensation ; and this was for accepting and paying the plaintiffs’ bills, and drawing and negotiating the sterling bills, and conducting such correspondence as was connected with it. The plaintiffs could have employed any other agents. As agents, and by virtue of said agreement, the defendants had a lien on these funds in the hands of Gower, Nephew & Co. They, as the factors of the plaintiffs, also had a lien, which, by their acceptance of said bills and by said agreement, inured to the benefit of the plaintiffs.
    IV. By the stipulation between the parties, if the defendants are entitled to have this balance applied on said protested bills, it is to be paid to them for that purpose.
   By the Coübt.

Duer, J.

It is admitted that the fund, now in controversy, has arisen from the sale, by the consignees, of cottons belonging to the plaintiffs, and that the sum retained by the consignees is sufficient to cover all the advances made to the plaintiffs, and' all necessary charges. The plaintiffs, therefore, as shippers and owners of the cottons, must be entitled to the surplus which they now claim, unless we shall be convinced that the whole proceeds of the cottons were so appropriated to the satisfaction of the sterling bills drawn by the defendants, which they have been compelled to pay, as to render it our duty to apply them, so far as we are enabled, to that purpose.

It is insisted, on the part of the defendants, that in giving their assistance to carry into execution the arrangement of the 14th of August, 1846, between Gower & Co. and the plaintiff, Dodge, they acted as the agents of Dodge, and through him, of the shippers to whom he made advances, and not as the agents of the consignees, Gower & Co.; that, consequently, the acceptance and payment of each bill drawn upon them by Dodge, in pursuance of the arrangement, ought to be considered as an advance made by them to the shippers of the cotton, against which the bill was drawn, upon the faith that the proceeds of the consignment should and would be applied to the satisfaction of the sterling bills, which they, the defendants, for their own reimbursement, were authorized to draw ; that they, therefore, acquired, in each case, an equitable lien upon the cotton shipped, and its proceeds in the hands of the consignees—a lien which, in the present case, has not been affected by the failure or the acts of the consignees, but which this court, so far as it has power, by awarding to them the payment of the fund, now under its control, is bound to enforce.

Those positions were rested, partly upon general principles of law, and partly upon the construction which the learned counsel for the defendants gave to the arrangement of the 14th of August, and to the subsequent acts and correspondence of Dodge.

We have examined, with attention, the numerous authorities, that were cited by the learned counsel for the defendants, but cannot perceive, that reasonably construed, they lend any countenance to the doctrine that they were alleged to establish. There is no case, in its material circumstances, resembling the present, in which a lien legal or equitable, has been held to exist: none in which an advance of moneys to the shipper of goods by a third person, not the consignee of the goods, nor having any power of disposition or control in relation to them, has been held to create a lien, or to operate as ah equitable assignment, in his favor, without the further proof that such was, in reality, the agreement or understanding of the parties. The mere fact, that the moneys would not have been advanced, had not the shipment been made, has never been deemed sufficient, and we are therefore of opinion, that the claim of the defendants to the fund in controversy, unless it can be rested upon a positive contract, must be rejected. The defendants were not the consignees of the cotton, nor in any sense the factors of the owners and shippers. ' The cotton was never in their actual or constructive possession. It is true that the invoices and bills of lading, were transmitted to them, and were sent through them to the consignees, Gower & Co.; but they were not transmitted for the purpose, nor with the effect, of giving to them any power of disposition or control, in relation to the cotton, or its proceeds, but merely as evidence that the proper shipment had in fact been made, and that the limits which Dodge, as the agent of the consignees, in making,advances,-was bound to observe, had not been exceeded. Without this evidence, it is true, the defendants would not have accepted the bills of Dodge, for the plain reason that, unless this evidence was furnished, they had no authority to draw for their own reimbursement, upon the consignees, Gower & Co. These circumstances, however, by no means justify the inference, that by the understanding of the parties, the cotton and its proceeds were appropriated to the payment of the sterling bills, drawn by the defendants, since they are entirely consistent with the supposition that their sole reliance for the payment of those bills, was upon the personal responsibility of Gower & Co. They agreed to accept and pay the bills of Dodge, properly drawn, upon the assurance of Gower & Co., that the sterling bills drawn by them for their reimbursement, would be duly honored. It was, indeed, agreed, between the shippers of cotton, and the consignees, that all advances made to the former, together with commissions and charges, should be deducted from future sales, but' there was no privity whatever, between the shippers and the defendants, unless in particular cases, it was created by an express agreement. No such privity was contemplated by, or resulted from the arrangement of the 14th of August, under which all the parties were acting. It may be, that the relation between the defendants and Gower & Co., was such as to make it the duty of the latter to apply the proceeds of the cotton to the satisfaction of the bills drawn upon them by the former; but if so, it only follows, that it is against the proceeds which remained in the hands of Gower. & Co., or their assignees, and which exceeded the amounts of the protested bills, and not against the surplus belonging to the shippers, that the defendants ought to have asserted their claim. The shippers. agreed that from the proceeds of the cotton, a sum sufficient to cover all the advances and charges for which they were liable to the consignees, should be retained by the latter, but they did not agree that the moneys so retained should be applied to the indemnity of the defendants, and that in the event of a misapplication, the surplus belonging to themselves, should be liable; yet', it is upon the supposition of a contract, of which there is no' evidence, and the existence of which we have no right to infer, that the claim' of the defendants, as now advanced, is mainly founded.

Nearly the whole argument, on the. part of the defendants, proceeded on the assumption that in accepting and paying the bills of Dodge, and in drawing for their reimbursement, they acted as the agents of the shippers of the cotton, and not of Gower & Co., the consignees. Even could we assent to this view of the relations of the parties, it is by no means a necessary consequence that the defendants acquired a lien which could give them a just claim to the surplus proceeds now in controversy, while, on the other hand, if this view is erroneous, the claim, unless it can be rested upon a positive contract, is manifestly groundless. It is manifestly groundless, if the defendants acted throughout merely as the disbursing agents of Gower & Co., under their instructions, for their accommodation, and looking to them alone for their compensation and indemnity; and that it was in this character they acted, and in this light alone, that their acts are to be viewed, we are entirely satisfied.

The circumstances that they were selected as agents by Dodge, and that their commissions, as such, were to be paid out of the property shipped, we regard as wholly immaterial. Although selected by Dodge, it was not by his instructions that they were governed, nor for his benefit that they acted. In accepting and paying his bills they acted at the request, and for the accommodation of Gower & Co., to enable them to make the necessary advances to shippers, and their authority to draw for their reimbursement was not derived from Dodge, but solely from his and their principals.

As to their commissions they were fixed by agreement between them and the Gowers, who alone were personally liable to them for their payment. That they should be a charge upon the property consigned was a part of the contract, not between them, but between the consignees, and the shippers.

Such are our views of the relations between the shippers of cotton, the consignees, and the defendants, as they grew out of the arrangements of the 14th of August, and we are of opinion that there are no special circumstances, that distinguish the case and rights of the plaintiffs, from those of other shippers. Their property is not subject to the claim which is now urged, unless that of other shippers would have been equally liable.

We do not consider the letter of Dodge, of the 24th of April, ’47, as designed to vary, in any respect, the rights and liabilities of the parties under the arrangement of the 14th of August. The terms of the letter are easy to be reconciled with that construction of the arrangement which we have adopted, and whether Dodge has rendered himself personally liable to the defendants for the whole or any portion of the protested bills, is a question which, in this suit, we have no right to determine, and must therefore refuse to consider. This liability, were it established, could not operate as an equitable assignment of the property of the plaintiffs.

The plaintiffs, in our judgment, are entitled, in respect to the fund, to the decree which they ask.

As the suit, however, is, in a measure, amicable, the fund-having been transferred to this country, with the consent of the parties, in order that their rights might be here determined, the aggregate costs must be equally divided, and if, upon the division, an excess shall be found due to the plaintiffs, their judgment against the defendants must be limited to that sum ; if the excess shall be in favor of the defendants, it must be deducted from, and paid to them out of the fund.

Decree modified accordingly.  