
    James Fountain et al., executors, &c., complainants-respondents, v. Gussie C. Carlton et al., petitioners-appellants.
    [Decided February 14th, 1918.]
    On appeal from a decree of tlie court of chancery advised by Vice-Chancellor Baches, who delivered the following oral opinion: '
    “The present controversy is due to the embezzlement of one Kehoe, a former solicitor of this court, to whom both parties to this litigation entrusted their affairs. Kehoe’s peculations from his clients were numerous. I know this from other cases that' have been before me or are now before other vice-chancellors. This ease bears some resemblance to the one that was before me three weeks ago, in which the present petitioner Bullis figured.
    “In this case the complainants foreclosed their mortgage and entered a decree for $843. Kehoe was their solicitor. Four hundred dollars of the decree was paid by the former owner, and an alias fi. fa. issued to make the balance. After the decree was entered, the owner of the equity of redemption sold the mortgaged premises to Mr. Bullis. Bullis was to have a clear title and he hired Kehoe to look after his interest. The property was heavily encumbered and after paying the vendor the difference between the purchase, price and the amount of liens, Bullis entrusted Kehoe with $5,000 to pay off the liens. Kehoe failed to pay (the complainants, and the question is: Ts Bullis or are the complainants to lose this amount-of the theft? Was it Bullis’ money or the complainants’ that Kehoe stole?’ It seems to me that it must be held that the thief stole the money when and as it was given to him — that is, Bullis’ money. I cannot suppose, and there is nothing in the case to indicate, that ICehoe first applied the sum to the complainants’ debt and then stole it.
    “The rule to show cause allowed to Bullis why the fi. fa. should not be stayed and the decree canceled wlill be dismissed, with costs.”
    
      Messrs. Beekman & Spencer, for the petitioners-appellants.
    
      Mr. Jacob L. Klein, for the complainants-respondents.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion delivered in the court below by Vice-Chancellor Backes.

For affirmance — Garrison, Trenchard, Parker, Minturn, Black, White, Gardner — -7.

For reversal — Swayze, Bergen, Kalisch, Heppenheimer, Taylor — 5.  