I concur in the decree except as to the fifty-two hogsheads received from Foos & Barnett. Those hogsheads were not in Adden’s possession and control, and could not have been shipped by *697him without first paying the $3000 due thereon to the manufacturers. Had the latter shipped the sugar with instructions to pass to Aclden’s account the surplus over the stun due themselves, clearly this surplus would have requesented the value of all of that sugar, which could, under any circumstances, he said to have been received from, or for Aciden. The case is not, in my judgment, altered by the fact that defendants paid the sum due the manufacturers before the latter shipped the sugar, instead of afterwards. I think, therefore, that of the second draft only such proportion is due to plaintiffs as the surplus going to Acklen’s account bore to the value of one hundred hogsheads. To this extent I dissent from the opinion and decree.
Maiming, J., concurs in this opinion.