Appeal from the Superior Court of the City of San Francisco.

The plaintiff and defendant were both attaching creditors of L. Hermann, who had, prior to both attachments, assigned one hundred shares of the American Russian Company to James C. Ward, as security for a loan, and one hundred shares to. George R. Ward, as security for another loan.

In both cases, the stock was regularly transferred on the books of the Company, and the mortgagees had full power of attorney to sell, on non-payment of their respective claims. George R. Ward was the agent, under full power of attorney, of James C. Ward, who was absent from the State, On January 3d, 1856, the plaintiff served an attachment on George R. Ward, to secure any surplus due to Hermann. On the same day, the defendant served an attachment, for the same purpose, on the President of the American Russian Commercial Company, and on the following day, served an attachment on George R. Ward.

The debts of James C. Ward and George R. Ward becoming due, the latter, as attorney of the former, and in his own behalf, sold the two hundred shares of stock, leaving in his hands, after paying J. C. Ward's note, a surplus of three hundred and seventy-six dollars and eighty-nine cents, and after paying his own note, a surplus of twelve hundred and eighty-two dollars and fifty-four cents. At this latter sale, the defendant was purchaser, and, after paying Ward’s note, retained the surplus of twelve hundred and eighty-two dollars and fifty-four cents, claiming to have right to offset it. Plaintiff serves an execution on Ward for this surplus, and defendant serves an execution on him for the surplus of three hundred and seventy-six dollars and eighty-nine „ cents.

This is an agreed case to try the rights of plaintiff and defendant to these funds. The Court below entered judgment for defendant, and plaintiff appealed.