Horwill, J.

1. The second defendant, the son of the plaintiff, was a servant or agent of the first defendant. The second defendant used a sum of money belonging to his mother for the purpose of the business of the first defendant; and the plaintiff brought this suit against her son and his principal to recover this sum. It appeared from the accounts of the first defendant kept with the second defendant that the account of the second defendant with the first defendant was credited with this amount. That first defendant objected to the maintainability of the suit on the ground that it was really a matter between himself and the second defendant and that there was no privity of contract between him and the plaintiff. On the 10th August, 1934, the plaintiff put in a petition for the appointment of a Commissioner to settle the accounts of defendants 1 and 2, as she was willing to take whatever was found due on accounting. Both the defendants endorsed this application with a statement that they had no objection to the appointment of a Commissioner and that each was willing to pay the other what might be found due from the one to the other upon account being taken, and that the Cou