delivered the opinion of the court.
Penny, to whom the plaintiff had sent a consignment ol lime, having sold it on a credit to Bosque, had taken the note of the latter for the price thereof. The executors finding this note among Penny’s papers, collected it, imagining that the plaintiff could only be considered as a creditor of the estate for its amount. The present suit was instituted to enforce the plaintiff’s right to have the amount *601of the note separated from the estate of the deceased and paid over to him. This was decreed by the Court of ProT_ , J , 1 , . J bates, and the executors appealed.
among the papera decease, which had been taken ¡" paymentortho price of property to the latter, and should be. dciivcred up by tho executors, or its proceeds if collected, without being mingled with the estate of the deceased.The judgment of the Court of Probates (the plaintiff’s allegations being admitted,) appears to us perfectly correct, The deceased was the plaintiff’s factor. The note belonged A u to the former, and ought to have been returned to him 7 o without being mingled with those of the deceased: so must j."l. tne proceeds.
It is ordered, adjudged and decreed, that the judgment of the Court of Probates be affirmed with costs.