delivered the opinion of the court.
This is an action by the holder of a promissory note against the estate of the maker. The answer sets up in defence divers matters, amounting, in substance, to a denial that the petitioner has any right to the note sued on; that it was ever legally transferred to him ; or that be ever gave for it a bona fide consideration. Upon the evidence adduced in * support of this defence, which was taken subject to all legal exceptions, there was a judgment of non-suit, from which the plaintiff has appealed,
A bare denial of a plaintiff’s right to a negotiable in-strumenh which is put in suit, cannot of itself authorize the maker to investigate or contest his title to the same, when he holds by a blank endorsement, unless the note ^as been lost or stolen, which is not alleged in this case, The maker, who wishes to question the holder’s right to . , . ... it, must first show that he has an interest in doing so; for> qe has not,, the question of ownership is'one with which he has nothing to do. That interest may, and generally does, consist in preserving some equitable grounds of defence, of which he apprehends an attempt is made to deprive him, by an assignment, which is not bom fide. No such allegation is to be found in the answer, but on the trial some attempt was made to prove that the succession of L’Homme-dieu, from whose curator the plaintiff holds the note, was largely indebted to the deceased, Beeson, and that there were accounts to be adjusted between the two estates. Granting that such be the fact, the defence would be but little aided by the admission, for it appears from the pleadings and documentary evidence, that the note sued on was given in part payment of a lot of ground, adjudicated to the deceased, Beeson, at the sale of the succession of L’Hommedieu, and that the estate is insolvent; no set off could,^therefore, be pleaded by the defendant, had the action been brought by the curator of L’Hommedieu’s estate. Green vs. Davis et al., *2577 Martin, N. S., 238. But it is contended, that Stewart, one of the curators of L’Hommedieu’s estate, could not legally transfer a note belonging to the same, or give it to the plaintiff in payment of his own debt, as one of defendant’s witnesses testified has been done in this case. If such transfer, or use made of the note, be illegal and improper, as no doubt it is, the act has operated no injury to the defendant, and, therefore, affords him no just cause of complaint. The curator is responsible for the whole amount of the notes received from the sale of the succession of L’Hommedieu, and the creditors and other persons concerned, will no doubt look to his securities, if he fails to render a faithful account of them. On the merits, the plaintiff is entitled to recover, having made out his case.
In a suit against the maker of a note, it is no ground of de-fence that it •was improperly transferred by the curator of an estate, to which it belonged, to the holder, when it is endorsed in blank.It is, therefore, ordered, adjudged and decreed, that the judgment of the Court of Probates be annulled, avoided and reversed, and this court, now proceeding fo render such judgment as should have been given below, do order and adjudge, that the plaintiff do recover of the estate of Amos Beeson, the sum of one thousand and three dollars, with legal interest from the 25th of September, 1837, and costs in both courts, and that, the property mortgaged, as set forth in plaintiff’s petition, be sold to satisfy this judgment.