
    The Maine Fire and Marine Insurance Company versus Lemuel Weeks and Trustees.
    Where one had delivered to his sureties certain negotiable promissory notes, for their indemnity against their liabilities on bis account, and it was afterwards ascertained that the same were not necessary to their indemnity, no demand of them having been made by the bailor, it was held that the bailees were not chargeable as his trustees on account of their holding those notes.
    To charge trustees, the principal must have a cause of action against them, or they must have in possession personal chattels belonging to him, capable of being seized and sold on execution. Negotiable notes are not such chattels.
    The persons summoned in this case, as the trustees of the defendant Weeks, having severally sundry demands against him, and having, as his sureties, executed bonds to the United States, for duties on merchandise imported by him, had received from him a conveyance of sundry effects to be by them appropriated for discharging their demands and indemnifying them against those bonds Afterwards, those effects being apprehended to be insufficient for the purposes for which they had been conveyed, Weeks delivered to them two promissory notes payable to him and another, or order, and endorsed in blank by the promisees, which were [ * 439 ] deposited with the supposed trustees, to hold * until it should be ascertained whether the other property, conveyed as aforesaid, would be sufficient to indemnify them, in which event they were to restore them to Weeks; but if the money due on those notes should be necessary to their indemnification, they were to collect it, and, after appropriating so much of it as should be so necessary, pay the surplus, if there should be any, to Weeks.' From a statement exhibited by the trustees, it did not appear that the proceeds of those notes were necessary to their indemnity ; and they had, since they were summoned in this action, delivered them over, by Weeks’s order, to a third person, taking security from her to return them, or the money received upon them, in case they should be adjudged trustees of Weeks on account of their possession of the said notes at the time of their being summoned.
    Upon the disclosure of these facts, the question before the Court was, whether the persons summoned as trustees were liable to be charged.
    
      Mellen for the plaintiffs.
    
      Whitman for the trustees.
   By the Court.

These promissory notes were assigned to the supposed trustees as a further indemnity, if needed. It appears that they were not needed, and the defendant had a right to reclaim them. But, to charge the trustees, it is necessary that the principal have a cause of action against them, or the trustees must have personal chattels in possession, belonging to the principal, capable of being seized and sold upon execution. Negotiable notes are not such chattels. The defendant Weeks had no cause of action against these trustees on account of the notes, until a demand by him, and a refusal on their part to deliver them. If such demand and refusal had taken place, they would have been chargeable. As the facts are upon this disclosure, they must be discharged.  