620 CAPE SABLE COMPANY'S CASE.— 3 BLAND.

and himself, unless a cross entry is made, allowing him the amount
as against the company.

The fifth error alleged is for amount of two drafts on and ac-
cepted by A. Mitchell in favor of R. Caton. at four months; the
one dated the 19th of February, 1822, for $649; and the other
dated on the 10th of February," 1822, for $623.43. In day-book,
folio 65, the claimant is made debtor to drafts accepted for amount
of those drafts, and in folio 93, is made debtor to the company for
payment of the same drafts by A. Mitchell, agent. The auditor
thinks that this error is proved.

But in the sixth place, the claimant denies his liability for the
amount of the draft for $623.43; insisting that it should be charged
in account to Dr. Troost. But no evidence of Troost's liability
has been furnished; and in the absence of such evidence, the
claimant should not be relieved from the charge.

The seventh error complained of, is for the claimant's draft in
favor of Charles F. Mayer for $50. It is alleged, that this draft
has not been paid by the company. But no proof has been fur-
nished, by which the auditor could try the correctness of this
allegation. The auditor, therefore, thinks, that the error is not
proved.

The last error is for amount of the capital furnished, or supposed
to have been furnished by the claimant. He claims for capital,
and additional capital, the sum of $9,166.66; and for negro capital
the sum of $1,197.70. The former sum is entered in ledger folio 9;
but he is clearly mistaken in supposing, that he has been charged
with the amount of his negro capital. The auditor has, therefore,
made a deduction only of the amount of capital and additional
capital. But to this reduced allowance the auditor objects; be-
cause, as capital, it cannot be considered a claim on an equality
with the claims of creditors of the company, but should be intro-
duced in an account of distribution of surplus estate, if there be
any surplus, among all the capitalists. And if the auditor be cor-
rect in this opinion, the claim should be further reduced by the
amount of negro capital, to the amount of which the claimant's
advances are applicable. For the same reasons, the amount of
capital to be contributed by the claimant, viz. $10,364.36, should
* be reduced from the amount of claim No. 14; no credit
649 having been allowed therefor in said claims.

But the auditor further reports, that by an agreement made and
entered into between Richard Catou and others, who were after-
wards incorporated by the name of the Cape Sable Company, of
the first part, and said Philip G, Lechleitner and Gerard Troost of
the second part; and dated on the 25th of September, 1813, the
said Lechleitner and Troost engaged to erect and establish, on the
lands at Cape Sable, belonging to said Richard Caton and others,
works for making copperas and aluni; and to carry on and super-