
    Overlock vs. Hills.
    Where a creditor received of his debtor the note of a third person as collateral security, which he promised to use all reasonable means to collect, and to account for; and afterwards the principal debt was otherwise paid ; it was held that he was thereby absolved from all further obligation to collect the note, thus deposited with him, and was bound to return it to the owner.
    This case, which was assumpsit, came up by exceptions taken to the opinion of Perham J. before whom it was tried in the court below.
    The plaintiff and one Matthews, being joint promissors in a note made payable to the defendant on the 20th day of April, 1829, the plaintiff delivered to the defendant, as collateral security, a note which he held against one Robbins, taking the plaintiff’s written promise “ to take all reasonable means to collect the same, and to account for what may be collected,” &c. Robbins had been for seven or eight years, and still was resident at Miramichi, in the British Province of New Brunswick. In March, 1830, the plaintiff complaining that no diligence had been used to collect the amount of Robbins, and the note given by the plaintiff and Matthews to the defendant being about to become due, the defendant agreed that if the plaintiff would obtain a new note for the amount, signed by Cutler and Harding, he would give up the Robbins note, and the note signed by the plaintiff and Matthews, the plaintiff agreeing to give up the obligation aforesaid. Such a note was accordingly procured and sent to the defendant by Matthews; who, however, did not carry the defendant’s obligation, and had no orders to ask for Robbins’s note; and the defendant accepted the note sent, and delivered up that of the plaintiff and Matthews. This was done in two or three weeks after the agreement in March. In June following, the defendant sent Robbins’s note to Miramichi for collection. And on the 1st day of December, 1830, the plaintiff tendered to the defendant his obligation, and demanded Robbins’s note ; which the defendant said he could not deliver, having sent it out of the country in June preceding, to be presented for payment. The action was brought upon the obligation or agreement of April 29, 1829 ; and the breach alleged was that the defendant had not accounted' for the note, but had refused to deliver it up when demanded, after having compelled the plaintiff to pay the principal debt. The defendant produced Robbins’s note at the trial, and offered it to the plaintiff, but it was not accepted.
    The defendant’s counsel requested the Judge to instruct the jury that he had a right to send the note to Miramichi at any time while his written promise remained in the hands of the plaintiff; that the plaintiff, to entitle himself to' the note at any time prior to its being sent away, was bound to have tendered to the defendant his said obligation; and that the defendant had a right to consider the contract as subsisting in force, till it was returned to him. This the Judge declined to do. But he instructed the jury that if they believed that the defendant agreed and promised to deliver up the note of Robbins, upon receiving that of Cutler and Harding in lieu of the plaintiff’s, then they ought to find for the plaintiff. But if they should not find such an agreement, they would inquire whether a reasonable time to obtain Robbins’s note and return it to the plaintiff, had elapsed from the 1st day oí December, 1830, when it was demanded, till the time of commencing the action; and if it had not, then to find for the defendant. On returning a verdict for the plaintiff, and being interrogated by thp Judge at the defendant’s request, they said they had found the agreement to deliver up the note, as stated ; and therefore had not inquired as to the reasonableness of the time.
    The defendant took exceptions to the refusal of the Judge to give the desired instructions.
    
      A. Smith, for the plaintiff.
    
      Allen, for the defendant.
   Parris J.

delivered the opinion of the Court, at the ensuing term in Kennebec.

The defendant in April, 1829, when he received the Robbins note, promised to take all reasonable means to collect it, and to account for what might be collected, after paying the costs, on a note given him by the plaintiff and Matthews.

The Robbins note was then due, and Robbins, himself, was at Miramichi, in the Province of New Brunswick, where he had resided seven or eight years.

In March, 1830, the defendant, having the Robbins note in his possession, made a further agreement, as found by the jury, that he would deliver up that note on receiving another signed by Harding and Cutler, which, as appears by the testimony of Cutler reported in the case, was procured by Matthews and sent to the defendant some time in April, 1830, and was by him received in pursuance of the latter agreement.

The defendant having accepted Harding and Cutler's note in payment of that which he had against the plaintiff arid Matthews, ought not to be permitted longer to hold the Robbins note, under the original agreement. That was manifestly received as collateral security, and when the principal debt was discharged, the collateral or pledge ought clearly to be given up, independant of any agreement to that effect But lhe jury have settled the fact, that there was such an agreement. The agreement was in March; — the condition, upon which it was to be returned, was performed and accepted in April, and from that time the defendant’s lien upon the Rob bins note ceased, and he held it subject to the demand of the plaintiff.

The argument, that the defendant was liable on his promise to take all reasonable means to collect the Robbins note, and therefore, that he had a right to control it until his receipt was tendered, is inconsistent with his preceding conduct, as well as his agreement found by the jury. He received the note in Jlpril, 1829, and then made the written agreement under which he attempts to shield himself. After keeping it for nearly a year, without using any means to collect it, he agrees to return it, upon receiving other satisfactory security. That is procured, he accepts it, and immediately, according to his own account, begins, for the first time, to “ take reasonable means to collect” the Robbins note, by sending it to Miramichi. His interest in that note had ceased, the debt for which it was pledged having been paid; he had agreed to return it; and if, after this, by sending it away, he put it out of his power to return it, he did what his original agreement did not, at that time require; what his subsequent agreement forbid; and what the law will not justify.

Judgment affirmed.  