delivered the opinion of the court.

In this case, upon the petition of a creditor of the firm of Cochran & Comegys, the real estate of William Cochran, one of the partners, was sold after his death, upon the ground *142charged in the bill, that the partnership property was insufficient to pay the partnership debts. The Union Bank of Maryland, was a creditor of the firm, upon judgment obtained against Comegys the surviving partner, to the amount of $22,500. The debt was originally due upon sundry promissory notes drawn by Comegys, Falconer and Company, for the accommodation of Cochran Comegys, and discounted by said bank. Before the distribution of the fund raised by the sale of the real estate, the Union Bank of Maryland exhibited a short copy of their judgment, claiming a dividend of the proceeds of sale. The auditor rejected the claim, upon the ground, that the Union Bank of Maryland, as a creditor of Cochran Sr Comegys, had already received out of the assets, dividends to a larger amount than her due proportion. To this report of the auditor, disallowing her claim to a dividend, the bank excepted. The Chancellor passed an order overruling the exceptions, from which an appeal has been taken to this court.

This court are of opinion) that there is error in the decision of the court below, rejecting the claim of the bank to a dividend .-

Several of the items contained in the account of payments exhibited by the bank, to the auditor, and which were considered by him as dividends, were not, we think, of that character. They were manifestly payments made, not out of the assets, because the face of the accounts shew, that they were derived from other sources. The sum of $3877,44, with interest, standing to the credit of Cochran & Comegys in bank, we think the bank had a right to retain in part payment of her claim; because if suit had been instituted for the recovery of that sum, the bank could have successfully resisted the recovery of it, upon the ground of a right of retainer, she being at the time a creditor of Cochran & Comegys to a larger amount.

The sum of $1060, appears to have been paid, by one of the executors of John G. Comegys, and is stated in the account of the bank, (which not being excepted to is evidence) as *143being the proceeds of sale of a lot of ground of said Comegys, and which was appropriated, or pledged by him to the payment of the hank’s claim in his life time. The sum of $3500 was paid by Cornelius Comegys Company, the drawers of the note, according to their contract with the bank, and of course, cannot he considered, as a dividend of the assets of Cochran & Comegys.

We consider, that there was sufficient evidence of the claim of the hank before the auditor, the same not being excepted to, or put in issue. The right of the bank to a dividend, was alone contested, not the legal sufficiency of the evidence to prove her demand.

We are therefore of opinion, that the order of the Chancellor, overruling the exceptions of the Union Bank to the auditors report, and confirming the same, was erroneous, and ought to he reversed.

The decree was accordingly reversed with costs to the appellant in both courts, and the case referred to the auditor of the court of Chancery, with directions to state an account, in conformity with this opinion, which account, was subsequently ratified and confirmed by this court.