#### Samuel Austin *versus*Horatio G. Henshaw

The estate of a testator being supposed to be solvent, the executor called upon the defendant to pay a debt due from him to the estate and requested him to procure a certain note made by the testator, promising to allow the same in part paj ment of the debt due from the defendant; whereupon the defendant, for a full consideration, procured the note, without any endorsement by the payee, and it was received by the executor according to his engagement. The estate proved to be insolvent, and the note was allowed by the commissioners for the benefit of the executor. It was *held,*that the executor could not recover of the defendant the .difference between the amount of the note and of the dividends decreed upon it.

On a case stated, it appeared that on the 1st of November, 1825, the plaintiff was appointed executor of the will of J. W. Hubbard, whose estate was generally believed to be solvent. The plaintiff, on the same day, called on the defendant for payment of two notes, amounting to 430 dollars, due from the defendant to Hubbard’s estate ; and informed him that he (the plaintiff) was desirous of settling the estate speedily, and that Mrs. T. Mower held a note against the estate which the defendant might procure and he (the plaintiff) would receive it, and allow it to the defendant towards the payment of his notes. The defendant thereupon procured the note of Mrs. Mower, which amounted to 309 dollars, by giving her his own note with a surety for 300 dollars and paying the balance in money and immediately brought the note to the plaintiff without any endorsement by Mrs. Mower, and the plaintiff thereupon allowed the same to the defendant in part payment of his twc notes, which the defendant then took up by paying the balance in money. The estate of Hubbard ultimately proved to be insolvent, paying only 73 cents bn a dollar. The plaintiff presented the note of Mrs. Mower to the commissioners of insolvency, who on January 1, 1827, allowed it in her name for the benefit of the plaintiff. On June 21, 1827, the plaintiff demanded of the defendant the repayment of the difference between the amount of the note of Mrs. Mower and the several dividends which had been decreed on the estate ; which the defendant refused to pay. According as the opinion of the *49Court should be upon these facts, the plaintiff was to become nonsuit or the defendant to be defaulted.

*Oct. 4th*

Burnside, for the plaintiff.

If the executor had himself paid the note of Mrs. Mower, he might have recovered back the sum in controversy as money paid by mistake. *Walker*v. *Hill,*17 Mass. R. 380 ; *Walker*v. *Bradley,*3 Pick. 261. So if the defendant had purchased the note without any communication with the executor. But the ground of defence is, that the defendant procured it at the suggestion of the executor. If he did so at the *request*of the executor, the executor ought to bear the loss ; but we have a right to infer, that as the executor wanted immediate payment of the defendant’s notes, the suggestion was for the defendant’s convenience. The defendant became owner of the note of Mrs. Mower, although it was not indorsed, and he might have maintained an action upon it in her name. If the executor cannot recover in this action, he is without remedy ; but it is not so clear that the defendant may not recover of Mrs. Mower the sum which he has paid her more than *ex mquo et bono*she is entitled to retain. But be this as it may, he is not in a better situation than Mrs. Mower would have been if the note had remained m her hands.

*A. Denny, contra,*

cited *Price*v. *Neal,*3 Burr. 1354 ; *Smith*v. *Mercer,*6 Taunt. 76.

*Per Curiam.*

The negotiation with Mrs. Mower must be considered as having been made at the request of the plaintiff, and he cannot be nermitted to throw the loss upon the defendant

*Plaintiff nonsuit.*