This case has once been before the law court, '71 Maine, 308, and it was then held that "the plaintiff’s ownership is prima facie evidence of his right to a share in the sum .recovered for the earnings of the vessel, notwithstanding a recovery in Hagar’s name alone.” That the plaintiff was such an owner, and that the judgment in the action began by Hagar in his lifetime, recovered and collected by this defendant as his administrator included such earnings, are conceded facts. It follows that When that judgment was collected, the defendant *295had in his hands a sum of money, the amount of which has been agreed upon by the parties, which belonged to the plaintiff, and which has not been in any way disposed of with his consent.
In the same decision it was held that, " if the defendant in good faith paid over the money or allowed it to be appropriated for the benefit of the estate he represented, without notice not to pay it over, he is not liable therefor.” This presented a question of fact for the jury, which was taken from them by the ruling of the presiding justice, and the exceptions filed to that ruling were sustained. By the present report of the case this question is presented to the court upon the evidence.
Starting from the point, which, as we have seen is conceded, that the defendant at one time had money in his hands belonging to the plaintiff, it is quite evident that the burden is upon him to show why he should not be liable in this action; for, as held in McLarren v. Brewer, 51 Maine, 402, so long as the plaintiff can trace his property he may recover, and to this rule, as there stated, money is no exception. Assuming this burden, the defendant says he appropriated the money in good faith for the benefit of the estate, relying upon the assignment made by his intestate. Upon this point there seems now to be no dispute in regard to the material facts, and without imputing any moral delinquency or fraud to the defendant, we think they fail to sustain the defence.
In his testimony the defendant admits that he had knowledge of the plaintiff’s ownership in the vessel. He denies personal and positive knowledge, and lays considerable stress upon that fact. But he admits that he had been so informed both in Hagar’s lifetime, and subsequently and from his answers, no other inference can be drawn, than that he believed the information. He also knew that the judgment .included a sum for the earnings of that vessel. Here certainly is sufficient knowledge to put him upon his guard, sufficient to induce the belief that the plaintiff had some interest there which should not and could not with propriety be disregarded.
Nor does the assignment under which the defendant claims to have paid the money avail him. Independent of the suspicion which his knowledge should have thrown upon its validity, only *296a portion of the money included in the judgment was paid in accordance with its provisions. The assignment was not absolute, but as collateral security for a specific demand. This demand was secured by other property, and the notes were signed by Mrs. Hagar as surety, and after its discharge fifteen hundred dollars were left, more than sufficient to meet the plaintiff’s claim.
True, this fifteen hundred dollars was subsequently allowed upon another demand, upon which Mrs. Hagar was also surety. But the defendant could not avail himself of any subrogation to which Mrs. Hagar might have been entitled. This was a personal privilege which she alone could claim, or which she might waive. The case shows that the other collateral was assigned to her, while it does not appear that she made any claim whatever to this. There was then no subrogation in fact.
Another objection to the defence, is the fact that the money was not in a legal sense paid for the benefit of the estate. It was paid upon a demand due from the estate. But the defendant in his evidence, says the estate had been decreed insolvent, and this demand had never been proved before the commissioners. It was not competent therefore, for him to pay any part of the estate’s money upon it.. This should have been reserved to be distributed in the legal way among all thecreditors. Nor does itappear that he did so appropriate, or allow it to be appropriated as belonging to the estate. From his own statement he neither charged himself as administrator with this money, nor gave himself credit for the amount paid by it. Nor did he act as administrator in the settlement of that demand, but in an entirely distinct capacity, that of agent for one who was surety therefor. It may therefore be properly said that as to this plaintiff, he not only had knowledge of such facts as should have, at least, led to further inquiries as to the ownership of this money, but that legally he still has the money in his hands. In accordance with the provisions of the report, the default must stand, and
Judgment for ‡1133.32, andinterest, as provided in the report.
Appleton, C. X, Walton, Barrows and Peters, XL, concurred. Libbey, X, having been of counsel did not sit.