
    
      KING'S CURATOR vs. OSBORNE & AL.
    
    
      Appeal from the court of the first district.
    
    
      If notes are placed in a man's hands for collection and to secure him for advances 
      made and to be made, he may resist a demand of them till he be indemnified.
   Martin, J.

delivered the opinion of the court. The plaintiff claims sundry notes, endorsed and delivered to the defendants for collection, and to secure the payment of advances made, and to be made by them, for his benefit. The defendants resisted the claim on the ground, that they were the owners of the notes, and were accountable, only, for the surplus,in the defendants’ hands, after the amount was collected.

East’n District

March, 1824.

It is shown that the defendants applied for letters of curatorship on the deceased’s estate,, and in a schedule filed, under oath, in the court of probates, put down those notes as the property of the estate.

It is urged, by the plaintiff that the defendants are only pledgees of the notes, and the contract of pledge does not give them any right against third persons, unless a notarial act intervenes.

The defendants contend, that they are the owners of the paper; that they only, can sue for its amount, until they endorse it over, or their endorsement be stricken out-that they are not pledgees, for they can legally dispose of the thing, and are only bound to account for the surplus-that they need not procure the sale of the thing to enforce their payment.

We are of opinion, the judgment of the district court was correctly given for the defendants. They have a qualified property in the paper, and may transfer or reduce it into money, and are only bound to account for the balance: at least, they hold in trust, till they are fully reimbursed their advances, and secured for any engagement they have taken on the faith of being compensated out of the proceeds of the sales.

Carleton for the plaintiff, Morse for the defendants.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be affirmed, with costs.  